Esser and Backer
[2019] FCCA 3473
•29 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ESSER & BACKER | [2019] FCCA 3473 |
| Catchwords: FAMILY LAW – Parenting – where there are two children of the relationship – where the mother has relocated interstate – where the children have resided in Victoria their entire life – whether the mother be permitted to relocate the children's residence interstate – where there are no allegations of risk of harm in either parents care. |
| Legislation: Family Law Act 1975 (Cth), pt.VII, ss.60CC, 61DA, 65DAA |
| Cases cited: A & A (Relocation Approach) [2000] FamCA 751 Cowley & Mendoza [2010] FamCA 597 Hepburn & Nobel (2010) FLC 93-438 |
| Applicant: | MS ESSER |
| Respondent: | MR BACKER |
| File Number: | DGC 2959 of 2013 |
| Judgment of: | Judge Middleton |
| Hearing dates: | 25 & 26 July 2019 |
| Date of Last Submission: | 7 August 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 29 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Agresta |
| Solicitors for the Applicant: | Stephen Peter Byrne Lawyer |
| Counsel for the Respondent: | Ms Howe |
| Solicitors for the Respondent: | Guthrie and Associates |
ORDERS
That all previous orders be discharged.
That the parties have equal shared parental responsibility for the children namely [X] born … 2007 and [Y] born … 2008 (“the children”).
That the children live with the father in Victoria.
That the children spend time with the mother as follows:
(a)During each school term holiday as agreed and failing agreement commencing at 10:00am on the first Saturday of the holidays and concluding at 5:00pm, 10 days later;
(b)During the long summer holidays as agreed and failing agreement:
(i)In 2019 and odd years thereafter, from 10:00am on 23 December to 5:00pm on 9 January; and
(ii)In 2020 and even years thereafter, from 10:00am on 9 January to 5:00pm on 26 January.
(iii)Such other times as agreed.
(c)On each of the children’s birthdays at times to be agreed between the parties, and failing agreement, the parent who is not spending time with the child on their birthday pursuant to these orders shall spend time between 5:00pm and 6:00pm via Skype.
(d)That the Respondent father spend time with the children on Father's Day weekend each year.
(e)That the applicant mother spend time with the children on Mother's Day weekend of each year.
For the purposes of the children's travel to allow their time with the mother in the Northern Territory:
(a)The Mother to do all such things as may be required to purchase a return airfare for the children not less than 30 days prior to their proposed departure dates from Melbourne with the father to reimburse the mother for 50% of such fare within 60 days of the purchase.
(b)That the parties do all things necessary to ensure that the children, travel as an unaccompanied minor on all flights until such age that they are deemed suitable not to travel as an unaccompanied minor.
That changeover is to take place with the father delivering and collecting the children at Melbourne Tullamarine Airport and the mother collecting and delivering the children at Town A Airport
For the purpose of telephone-Skype-Facetime or other electronic communication:
(a)the parent with whom the children not living with shall telephone the children each Monday, Wednesday and Sunday at 7:30pm AEST, as well as the Mother's birthday, with the call to be placed to [X]’s mobile phone;
(b)The children otherwise be at liberty to telephone the parent with whom they are not living at their own discretion;
(c)Each party keep the other advised at all times of the contact numbers for the children's personal mobile telephones and advise the other parent of any changes thereto within 48 hours
That each party keep the other advised at all times of their available email addresses and advise the other parent of any change thereto within 48 hours of any such change and all communication between the parties be limited to email correspondence except in medical or other emergencies regarding the children.
These orders provide authorisation to;
(a)allow the provision to both parties of any information affecting the health and welfare of the children from any health, educational or welfare professional or other professional attended upon by the children;
(b)To permit the children's schools to provide documents, including but not limited to reports, notices and photographs to both parties; and
(c)Permit both parties to discuss the children's performances or treatment with their carer or teacher.
That each parent be permitted to take the children for holidays interstate or overseas during the time the children are otherwise with them upon obtaining the written consent of the non-travelling party with such consent not to be unreasonably withheld, provided that the travelling parent has provided, in writing, to the other parent, at least four weeks in advance:
(a)travel itineraries, nominating origin and destination;
(b)Evidence of fully paid return tickets for the children;
(c)Travel insurance for the children;
(d)Details of accommodation booked, including but not limited to, address and telephone number;
(e)Each party has liberty to apply at short notice in relation to any intended travel.
Both parties shall do all such acts and sign all documents necessary to maintain current passports for the children and renew same as necessary on the basis that any fees be borne equally by the parties.
That the parties ensure that the children's passports remain in the possession of the father at all times unless the children are travelling overseas without the father, in which case the father ensure the children’s passports are made available to the children by no later than 48 hours before the intended departure date and with the passports to be return the father no later than 48 hours upon the children return to Australia.
In the event the mother returns to Victoria the following orders shall apply:
That all previous orders shall be discharged.
That the parties have equal shared parental responsibility for the children namely [X] born … 2007 and [Y] born … 2008 (“the children”).
That the children live with the mother, on a week about basis, from conclusion of school Friday to commencement of school Friday and each alternative week thereafter.
That the children live with the father, on a week about basis, from conclusion of school Friday to the commencement of school Friday, and each alternative week thereafter.
For the purpose of telephone-Skype-Facetime or other electronic communication:
(a)the parent with whom the children not living with shall telephone the children each Monday, Wednesday and Sunday at 7:30pm AEST, as well as the Mother's birthday, with the call to be placed to [X]’s mobile phone;
(b)The children otherwise be at liberty to telephone the parent with whom they are not living at their own discretion;
(c)Each party keep the other advised at all times of the contact numbers for the children's personal mobile telephones and advise the other parent of any changes thereto within 48 hours
That on each of the children’s birthdays at times to be agreed between the parties, and failing agreement, the parent who is not spending time with the child on their birthday pursuant to these orders shall spend time between 5:00pm and 6:00pm via Skype.
That the Respondent father spend time with the children on Father's Day weekend each year.
That the applicant mother spend time with the children on Mother's Day weekend of each year.
That each party keep the other advised at all times of their available email addresses and advise the other parent of any change thereto within 48 hours of any such change and all communication between the parties be limited to email correspondence except in medical or other emergencies regarding the children.
That these orders provide authorisation to:
(a)Allow the provision to both parties of any information affecting the health and welfare of the children from any health, educational or welfare professional or other professional attended upon by the children;
(b)Permit the children’s schools to provide documents including but not limited to report, notices and photographs to both parties; and
(c)Permit both parties to discuss the children’s performances or treatment with their carer or teacher.
That each parent be permitted to take the children for holidays interstate or overseas during the time the children are otherwise with them upon obtaining the written consent of the non-travelling party with such consent not to be unreasonably withheld, provided that the travelling parent has provided, in writing, to the other parent, at least four weeks in advance:
(a)travel itineraries, nominating origin and destination;
(b)Evidence of fully paid return tickets for the children;
(c)Travel insurance for the children;
(d)Details of accommodation booked, including but not limited to, address and telephone number;
That each party has liberty to apply at short notice in relation to any intended travel.
That both parties shall do all such acts and sign all documents necessary to maintain current passports for the children and renew same as necessary on the basis that any fees be borne equally by the parties.
That the parties ensure that the children's passports remain in the possession of the father at all times unless the children are travelling overseas without the father, in which case the father ensure the children’s passports are made available to the children by no later than 48 hours before the intended departure date and with the passports to be return the father no later than 48 hours upon the children return to Australia.
IT IS NOTED that publication of this judgment under the pseudonym Esser & Backer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
DGC 2959 of 2013
| MS ESSER |
Applicant
And
| MR BACKER |
Respondent
REASONS FOR JUDGMENT
Background
The application concerns parenting arrangements for two children [X] born … 2007 age 12 years and [Y] born … 2008 aged 11 years.
The parents of those children commenced cohabitation in 2006 married on … 2007 and separated in July 2013.
Final orders were entered into in May 2014, by consent, and provide for the children to live with their mother and spend time with their father on a regular basis.
The children spent time with the parents in accordance with those orders until at the commencement of 2018 the model unilaterally moved the children's residence to Town B some one hour and 45 minutes away from the children's primary school at Town C primary school and the father's home.
Although the father did not consent to such move, and indeed the move was brought about in circumstances where the mother made the decision herself despite an order for equal shared parental responsibility, the father accepted the change and a reduction in the children's time with him occurred.
The father was a sportsperson and suffered significant injuries as a result of his occupation and he is expecting a personal injury payout in excess of $500,000.
The mother is a Country D immigrant and does not have permanent residency in Australia. She obtained a Bachelors degree in 2017 and has since that time worked on a temporary or part-time basis as a professional up until she took a position in Town A in the Northern Territory.
The mother’s case centres around her need to obtain permanent employment to assist her in potentially becoming a permanent resident of Australia and she asserts that the only full-time job she could secure was a job in Town A.
The father became aware that the mother had accepted a job in Town A in October 2018 and immediately objected to the move.
The father arranged for mediation in January 2019 however, the parties were unable to resolve the dispute and the father thereafter retained the children during their school holiday time with him.
The mother filed her application on 15 January 2019 and the matter came before the court on 25 January 2019 and on that occasion orders were made by consent for the children to live with the father and spend time with the mother by way of electronic communication and in the event the mother travelled to Victoria during the time she remained in Victoria and at other times as agreed between the parents.
The mother as at 25 January 2019 had moved to Town A in the Northern Territory.
It is in that context that the matter came before me by way of final hearing.
The Issues
The primary issue for determination is whether the mother be permitted to relocate the children's residence to Town A or not.
It is common ground that each parent has the capacity to care for the children, the children appear to be doing well at school and always have done, neither child has an overwhelming preference to live with either parent, and both children have a well-established secure relationship with both of the parents.
Orders sought
The applicant mothers proposed orders were set out in her case outline: filed on 23 July 2019 and provide for the children to live with her and that she be permitted to relocate the children to Town A, Northern Territory.
The mother proposes that the children thereafter spend holiday time with the father and that the parties share the costs of travel equally.
The mother also proposes orders relating to birthday time, Father's Day Mother’s Day time, telephone communication, the issuing of passports and other ancillary matters.
The father’s proposed orders are set out in this case outline filed on 23 July 2019 and therein proposes alternate orders wherein if the mother were to remain living in the Northern Territory the children live with him and spend holiday time with the mother and in the event the mother returned to live in Victoria that the children live on a week about basis with each parent provided the mother resides within a thirty (30) minute radius of the children school or schools.
The Material
The mother relied upon the following material:
a)initiating application filed 15 January 2019;
b)Her affidavits affirmed 28 of June 2019 and 14 January 2019; and
c)The Family reports of Mr E dated 1 March 2019 and 19 July 2019.
The father relied upon the following documents:
a)His affidavit filed on 27 June 2019;
b)Response to initiating application filed 3 April 2019
c)Notice of risk filed 3 April 2019;
d)The two reports of Mr E.
The Law
This application relates to parenting orders the provisions of Part VII of the Family Law act apply. In applying those provisions it is the children's best interest that is my paramount consideration.[1]
[1] Section 60CA
In determining what is in the children's best interests I must consider the matters set out in section 60CC(2) and (3).
It is well settled law that relocation cases are to be determined in accordance with the relevant principles and authorities pertaining to all parenting applications.
Justice Murphy in Cowley & Mendoza[2] quite properly said:
“A relocation case is not a specific subcategory of parenting case no principle specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances. A relocation case falls to be determined like any other parenting case.”
[2] [2010] FamCA 597
It was submitted by the applicant that the principles set out in A & A (Relocation Approach)[3] remains an appropriate authority.
[3] [2000] FamCA 751
In Hepburn & Noble[4] the Full Court of the Family Court of Australia discussed whether the application of the principles in A & A is still appropriate in light of the amendments introduced by the Family Law Amendment (shared parental responsibility) Act 2006 (Cth). Their Honours expressed concern that the decision was still being referred to given that since the act has been substantially amended and there have been a number of significant decisions of the full Court addressing the issue of relocation.
[4] (2010) FLC 93-438
Their honours went on to note that it would of been more relevant for the Federal Magistrate to have regard to the guidelines and principles emanating from the subsequent full court decisions.[5]
[5] Taylor & Barker (2007) FLC 93-345; and McCall & Clarke (2009) FLC 93-405
The Full Court in Starr & Duggan[6] at paragraph 38, said this:
“However, it is important to emphasise (as we made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to: first make findings concerning the relevant section 60CC factors; then consider (based on the section 60CC findings) whether equal time or substantial and significant time is in the child's best interest; and then consider whether such arrangements are reasonably practicable by addressing the matters referred to in section 65DAA(5)-which may be done by referring back to the earlier section 60CC findings.”
[6] [2009] FamCAFC 115
I will approach my determination in the above-mentioned way.
Consideration of the Evidence with regard to the Legislative Pathway
Primary Considerations.
The parents agree that both children have a strong secure and loving relationship with each of them.
In Mr E’s report dated 6 March 2019 (the first report) at paragraph 104 he provides evidence as follows:
“There would appear to be no issues of concern regarding the children's relationship with either parent and in many ways, such would appear to be strong, healthy, appropriate and emotionally secure.”
In his report dated 19 July 2019 (the second report) at paragraph 66, Mr E provided evidence as follows:
“…both parents demonstrated a very positive, close and loving relationship with their children. It was that there were no particular issues or concerns with respect to the children's relationship with their mother or father.”
In the circumstances, the evidence supports a finding that both children would benefit from having a meaningful relationship with both of their parents.
Unfortunately as a result of the parents current living arrangements there will undoubtedly be a diminishment in the relationship between the children and the parent with whom they do not reside. This will be bought about due to the distance between the parents and the relatively short time that the children would spend with the non-live with parent.
Having regard to the relationship the children have with both parents it would be optimal if they were able to spend substantial and significant time with each of their parents. However, the Family Law Act requires me to consider the benefit of the children having a meaningful relationship with each of their parents not an optimal relationship with each of them. Justice Kay in Godfrey & Saunders[7] put it succinctly where at paragraph 36 he said:
“Even if the move results in a diminishing of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.”
[7] [2007] FamCA 102
The evidence further establishes that the children would cope with living with either parent, no doubt due to the very strong and secure relationships with each of them. These children have had the benefit of being able to establish strong secure bonds with each of their parents post separation.
In those circumstances, the evidence supports a finding that the children would maintain and benefit from a meaningful relationship notwithstanding the diminution of the relationship in terms of the amount of time spent, through the use of electronic communication, including telephone Skype FaceTime and/or any other video link up together with the physical time that they would spend with the non-live with parent during school holiday times.
Both parents gave evidence at trial that they had no concerns for the children in the care of the other parent.
In Mr E's first report at paragraph 102 he says:
“At the outset, this family consultant would seek to advert that there would appear to be a notable absence of risk in this matter and in this family consultant's opinion, whilst both parties make some allegations and raise what could best be described as minor issues in respect of the other, there was limited information to assess that the children were either previously or would likely be at risk in the future in the care of either parent.”
In his second report at paragraph 66 Mr E states:
“As noted in the initial report of March 2019, there was an obvious absence of risk in this matter and both parents demonstrated a very positive, close and loving relationship with the children. It was assessed that there was no particular issues of concern with respect to children's relationship with the mother or father. This family consultant's position remains unchanged in respect of the parties equally sharing parental responsibility.”
The mother submits that “neither parent submits there are serious issues of risk in this case and there is no need to protect children from harm or abuse”.[8]
[8] See paragraph 30 of written submissions.
The father submits that the only risk to the children is a risk posed by the proposal to relocate the children to Town A and the father says that the move is unnecessary and the risk can be prevented if the children remain living in Victoria.
I am satisfied on the evidence that there is no need to protect the children from either the mother or the father and that there is no risk in either parent's home.
Additional considerations.
In the first report both children expressed a view that they wished to remain living with their father.[9]
[9] See paragraph 74 and paragraph 82.
In the second report, [X] conveyed a distinctive uncertainty and advised that he would take no issue living with either of his parents.[10]
[10] See paragraph 51.
[Y] was interviewed and he was strongly opposed to moving schools, said he did not like School F and indicated he preferred his current school much better because he had many good friendships. When asked to consider the future parenting arrangements [Y] said it would be “fine living with his father” because he is used to such arrangements and indicated that if he was to move in with his mother in Town A he would “miss it a bit, but get used to it.”. When the issue was explored a little further [Y] then advised that he would not be upset with either future option.[11]
[11] See paragraph 61-63 second family report
In written submissions Council on behalf of the mother submits that the children's views in the first report should be considered in the context that they had only been living with the father for a short period of time and that the change in their views, that is, their retreat from a slightly stronger position of preferring the father's care, can be explained by the fact that the children have a better experiential base on which to compare the parenting provided over a longer period by both parents and to reflect on the absence of their mother in their lives.
There is some attraction to that submission in the sense that both boys have consistently reported that they miss their mother and would like to spend more time with her. In reviewing the assessment of Mr E it is quite clear that both children find the current position difficult because of the distance now between their parents and as a result the change in the amount of time they spend with both parents.
However, when one considers the views expressed by the children in both reports in their entirety it is clear in my view that both children prefer living in Victoria and both children can articulate the benefits of living in Victoria. Both children were also able to express some negativity about both the mother and father's home however, in assessing all of the evidence contained within the family report on this issue I am satisfied that the children have consistently leaned towards residing in Victoria in the community in which they have lived for most of their lives.
As I previously said the children have a very strong positive relationship with each of the parents.
I am satisfied that each of the parents have taken every opportunity to participate in making decisions for the children and to spend time with the children to communicate with the children.
The evidence certainly supports a finding that the mother has at times made unilateral decisions and in doing so has failed to properly communicate her desire or indeed the decision to the father. Indeed in relation to the decision to move to Town A the mother informed the children, did not inform the father, but rather told the children that they could tell the father if they wished.
The mothers counsel in written submissions submitted that the father's evidence that he would not visit Town A was evidence of his lack of child focus and evidence of a lack of commitment to spend time with the children. I do not accept that submission.
The clear evidence of the father was that he has real restrictions regarding travel as a result of the serious injuries he suffered as a sportsperson. He gave evidence that he found it difficult to drive long distances and that he found it difficult to sit for long periods of time in confined spaces.
I am satisfied that the father is very committed to his children and indeed it was the evidence of Mr E whilst being cross-examined that in his view the father had demonstrated a child focused approach to parenting and had embraced his role as a parent. Indeed, the children in the second report confirmed that the father was undertaking more of a parenting role.
In those circumstances I am not satisfied that there was evidence to support a finding that the father displayed a lack of commitment to spend time with his children.
There is no evidence to support a finding that either parent has failed to fulfil their obligation to maintain the children.
It is a fact that the children have been in the primary care of the mother and that she has supported them financially through her employment as she receives no financial assistance from the government.
It is also a fact that the father has had a limited capacity to earn income in circumstances where he has suffered significant injuries. As a result he has been able to provide only minimal child-support to the mother.
It is also a fact that both parents have undertaken further studies to improve their ability to earn income. The mother has obtained a Bachelors degree and is now employed on a full-time basis.
The father continues to be a sports instructor, studied to be an activity Gactivity G instructor and is one third of the way through a mindfulness course in order to hopefully increase his capacity to earn income.
Counsel for the applicant attempted to undermine the father's ability to maintain the children in those circumstances. The Family Law Act requires a consideration as to whether each of the parents has fulfilled their obligation to maintain the child in light of each parent's capacity to earn income. It is not appropriate to suggest that one party has failed to fulfil their obligation to maintain the child simply because they cannot earn as much as the other parent.
The evidence satisfies me that both parents have fulfilled their obligation to maintain the child to the best ability available to each of them.
The children have primarily lived with their mother all their lives up until January 2019. During most of the time the children were able to spend substantial and significant time with their father. That time was interrupted as a result of the mother’s unilateral move to Town B in 2018.
The family consultant considered that move to be an upheaval for the two children. The move required the children to change schools, establish new friendships and spend less time with their father.
The children have now been living with their father since January 2019 and have returned to their former school and reconnected with friends. Both children expressed a view that they enjoyed the friendships and indeed [X] was looking forward to commencing high school with some of his school friends.
The proposed orders by the mother would see another significant change to the boys living arrangements. The boys would have to integrate into a new school and establish new friendships in the Town A area. The boys would also once again see considerably less of their father and their friends.
The orders proposed by the father would see the children remaining in the area in which they have grown up, remaining at their current school and for [X] moving on to high school with friends and continuing to enjoy the extracurricular activities they undertake with their father and friends.
The Family consultant confirmed that the children could cope with the move to Town A and that they would adapt. When asked how he arrived at his ultimate conclusion that the children should remain living with the father (in the second report) Mr E stated it was because there was a stable school, they like the environment they were in and they also had a routine that had been established and solidified with the father who had demonstrated a child focused approach and had embraced his role as a parent. Mr E was of the view that the children were in a settled environment.
Counsel on behalf of the father put it to Mr E that the fact that the children would cope does not necessarily mean that it would be in their best interests. Mr E answered “correct, when other options are available they should be explored.”
When specifically asked whether another change (“upheaval”) for [Y] in particular would be in his best interests Mr E emphatically declared “no it would not”.
It was suggested that the children look upon the father as the greater emotional support and Mr E was asked whether anything had changed by the second report and Mr E said “no”.
Weighing up the totality of the evidence I am satisfied that there would be less of a negative impact on the children if they remained living with their father than if they relocated to Town A.
As I said at the time of the hearing this is a finally balanced matter and, indeed, that comment is perhaps supported by the fact that Mr E provided two (2) family reports within a relatively short period of time and arrived at a different recommendation in each of them.
Whilst it is not determinative it is relevant to note that the mother gave evidence that she would return to Victoria if the children were not permitted to relocate.
This is relevant having regard to the nature of the relationship with both of the children's parents and the clear evidence that both of the children want to spend substantial and significant time with each of their parents and, furthermore, that those wishes are supported by Mr E in his evidence.
The father was asked in cross-examination whether he would move to Town A. It was suggested that he could find work in his chosen fields of sports instructing, activity G instructing and mindfulness facilitation.
The father said he had made enquiries in relation to work as an activity G instructor and found only one organisation looking for teachers. He continued that Melbourne had a good demographic and a much larger population and if he were to move he would be competing against an established organisation.
In light of that evidence I am satisfied that it is more possible for the children to spend substantial and significant time with both parents if both parents were to live in Victoria. Whilst there is power to make a coercive order, that power should only be exercised in rare or extreme circumstances, namely for a parent to perform their role as a primary carer.[12]
[12] Oswald & Karrington [2016] FamCAFC 152, D & SV (2003) FLC 93-137, Sampson & Hartnett (number 10) FLC 93 350.
In this case, however, there is no need to force a parent to move location to perform a role as primary carer. It is common ground that both parents can and have performed the role of primary carer and indeed the father has been performing the role of primary carer in a child focused and appropriate manner since January 2019.
Furthermore, neither party seeks a coercive order and this was not explored as an option during the trial and in those circumstances the parties have not been afforded procedural fairness and the making of such an order would be an error at law.
Clearly as a result of the parent’s current residences there is a practical difficulty and expense involved for the children to spend time with either parent. That difficulty and expense will obviously affect the children's right to maintain personal relations and direct contact with both parents on a regular basis.
However the evidence establishes that the children have a solid foundation and ongoing strong relationship with both of their parents and in those circumstances the difficulty and expense will not substantially affect the children's right to maintain personal relations and direct contact with both parents on a regular basis. They will have the benefit of electronic communication and telephone communication with the non-resident parent and this will help maintain their relationship with that non-resident parent.
As I have previously mentioned it is common ground that both parents have the capacity to provide for the needs of the children, including their emotional and intellectual needs. However the mother’s capacity to understand the children's emotional needs concerning their relationship with their father does come into question somewhat.
The mother made a unilateral decision to relocate the children, some 1 hour 45 minutes away from the father and thereby effected the children's time with the father and, having made the decision to move to Town A, told the children that they could tell their father if they wanted to. Both of those actions show a limited insight into the emotional needs of the children.
I accept that the mother’s move to Town B and her move to Town A were predicated on her desire to secure ongoing full-time employment but that does not mitigate against the lack of insight shown by the mother particularly having regard to the circumstances in which the decisions were made and the communication to the father was provided. Particularly in circumstances where there has been an order for equal shared parental responsibility since 2014 and the mother failed to discuss either move or decision with the father prior to making her ultimate decision.
Nothing turns in relation to subsection (3)(g) and (h) of the Family Law Act.
I am satisfied on all the evidence that both parents have shown a positive attitude to the children and towards their responsibilities as parents and they have demonstrated a capacity to ensure that the children have a strong attachment and relationship with both parents. Indeed the Family consultant whilst giving evidence in court said “both parents have done a really good job with their kids”.
There is no family violence alleged or apparent within this family.
At the time of trial the children had spent some holiday time in Town A and had visited School F. The children were equivocal in regards to whether they should live with the mother or the father.
The children have not lived in Town A and in those circumstances, the impact of any long-term move to Town A is untested. They have not lived through the reality of living in Town A and all the changes that come with that.
Whilst it is true that the children coped well with the move to Town B both expressed some negatives about that change.
The children have been able to live the reality of living with their father, and despite the fact that they as a result no longer lived with their mother who had been their primary carer for all if not most of their life, they were comfortable and indeed happy to remain living with him.
In those circumstances I am satisfied that the order I have made is an order that is least likely to lead to the commencement of further proceedings because there is some certainty about the children being settled in the father's care whilst there is some uncertainty about the children becoming settled in Town A.
It was pressed by the mother through her evidence and indeed submissions that the mother would benefit from security and stability by having a full-time job in Town A. The argument was developed to assert that the mother would be more likely to obtain permanent residency in Australia if she were able to remain in full-time employment for a period of two years.
It is a fact that the mother has been in Australia at the time of trial for some 12 years and had continued to live on her current Visa and had continued to obtain part-time and casual employment.
There was no objective evidence submitted to the court to prove the mother’s assertion that upon having worked full-time for two years she would be more likely to obtain permanent residency. In those circumstances I cannot give much weight to that fact or circumstance.
It was further asserted that the stability that comes from full-time employment for the mother would have an advantageous effect on her parenting or, conversely, that the lack of stability would have a disadvantageous effect on her capacity to parent.
I do not find favour in that submission because the mother has been in casual or part-time employment since arriving in Australia and post separation and her capacity to parent has not come into question save for the remarks I previously made regarding her lack of insight into the children's emotional needs. Again there is no independent evidence from any qualified expert, or indeed anyone to support a finding that the mother’s capacity to parent will be disadvantaged if the children remain living in Victoria and either she remains in Town A or decides to move back to Victoria. In those circumstances, I again give very little weight to that additional fact or circumstance.
Parental Responsibility
Both parents seek an order for equal shared parental responsibility, and indeed the family consultant recommends an order for equal shared parental responsibility and the fact is the parents have had an order for equal shared parental responsibility since 2014. The evidence supports a finding that an order for equal shared parental responsibility is in the best interests of the children.
Furthermore section 61DA of the Family Law Act provides that 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.
That presumption does not apply if there is evidence to support a finding that a parent of the child or a person who lives parental child has engaged in abuse of the child or another child or family violence. There is no such evidence to support such a finding.
In those circumstances an order for equal shared parental responsibility must follow and I intend making one.
Having made an order for equal shared parental responsibility the provisions of section 65DAA are triggered.
The High Court in MRR & GR[13] at paragraph 13 said:
“Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par(a)) and the question whether it is reasonably practicable that a child spend equal time with each of them (par(b)).It is only when both questions are answered in the affirmative that consideration may be given under par(c), to the making of an order. The words with which par(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 is a question of fact that it is reasonably practicable that equal time spent with each parent is a statutory condition which must be fulfilled before the court has power to making 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, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure is sub-ss(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.”
[13] [2010] HCA 4
Their Honours also held that 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 an equal time arrangement. In other words, the provisions are not considered in the abstract, but must be applied to the factual circumstances of the case.
It is the mother's proposal that she remain in Town A and that the children live with her there. The mother does not provide an alternative proposal in the event she was living in Victoria.
It is the father's case that in the event the mother remains living in the Northern Territory the children live with him. The father provides an alternate proposal in the event the mother returns to reside within 30 minutes of the children's school or schools and that proposal provides for the children to live on a week about basis with both of the parents.
The mother informed the family consultant during interviews for the second report that if the children were not permitted to relocate to Town A, she would plan to move back to Victoria as she did not believe the children living with their father in the long term is the best arrangement. She expressed some concerns about her ability to obtain residency in those circumstances have regard to the fact that she had not been able to secure full-time employment in Victoria.[14]
[14] See paragraph 20 of family report dated 9 July 2019.
The family consultant ultimately recommended that if at some future stage the mother would move back to Melbourne and reside within a 30 minute drive from the children's schools then the children should live in a week about arrangement.
Submissions on behalf of the applicant relating to the equal living arrangement are found at paragraph 15. It is submitted on behalf of the applicant that the recommendation the report writer made was not an opinion he was asked to form having regard to the two competing proposals that were present before him at that time.
However in circumstances where the mother “in strong terms” told Mr E that she would come back to Victoria if the children could not go to Town A it was appropriate for Mr E to consider whether, if she were to return to Victoria, it would be in the children's best interests for them to live in an equal time basis.
I must consider whether an equal time arrangement is in the best interests of the children and reasonably practicable. The evidence establishes quite clearly that these parents are able to communicate for the benefit of the children. They have been separated for some considerable period of time and they have been able to facilitate and encourage the children in having a meaningful relationship with both parents. More so than that the children have a strong attachment to both of their parents and indeed voice a view that they wish to spend substantial and significant time with each of their parents.
There is no evidence to support a finding of family violence and although at times communication has been less than satisfactory the parents have nevertheless in the main been able to make decisions for the benefit of their children.
In those circumstances an order for the children to live on an equal basis with both parents is an order that is in the best interests of the children.
However I cannot make an order unless it is reasonably practicable to do so. In considering whether it is reasonably practicable to do so I must consider the provision of section 65DAA (5). Clearly the parents currently live so far apart that such an order would be completely impractical.
I have no doubt based upon the evidence before me that the parents would have a capacity to implement an arrangement of that nature however, the tyranny of distance prevents them from doing so.
Furthermore notwithstanding some difficulty in the parent’s communication I am satisfied that the parent’s capacity to communicate with each other and resolve difficulties is sufficiently adequate to make such an arrangement reasonably practicable.
Indeed, in circumstances where the mother moved to Town B despite the father being disappointed in the move there was nevertheless an agreement for the children to spend time with their father by way of an altered arrangement.
The evidence supports a finding that there would be a positive impact on the children if they were able to live equally with each of the parents.
They have expressed in both reports a desire to spend as much time as possible with each of the parents. They expressed a view that they would miss both of their parents no matter with whom they lived. The evidence establishes that the children enjoy undertaking activities with both of their parents.
Having considered those factors it is clear that an order for equal time is not reasonably practicable and accordingly the “statutory condition” cannot be fulfilled and I therefore have no power to make such a parenting order if the mother were to remain in Town A.
I am required therefore to consider an order that the children spend substantial and significant time with each of their parents. For the same reasons as expressed above I am satisfied that it is in their best interest to spend substantial and significant time with each of the parents but regrettably, having regard to the reality of their situation such an order is impracticable.
Alternate Orders
The mother gave evidence that she would find it difficult to return, would suffer financially as a result but would nevertheless return to live in Victoria.
The report writer made a recommendation about parenting arrangements if the mother was to return.
The father proposed an order, in the event the mother returned to live in Victoria within a 30 minute radius of the children’s school. He proposed that the children live in an equal time arrangement.
The mother’s Counsel made submissions about the recommendations made by the family report writer for an equal time arrangement.
I am satisfied that there has been procedural fairness on this issue and furthermore that I must consider that proposal in light of the order for equal shared parental responsibility and section 65DAA.
I have previously stated that I am satisfied that an order for equal time is in the best interests of the children. I can only make such and order if the parents live within sufficiently close proximity.
I have already considered the provision of section 65DAA(5) and in doing so was satisfied that the evidence supported a finding that subsection (5)(b)-(d) could be answered in a positive light. It was only the distance between the parent’s current residences that precluded an order for an equal time arrangement.
In those circumstances I am satisfied that should the mother move to within 30 minutes of the children’s schools the evidence supports a finding that an equal time arrangement is both in the children’s best interests and reasonably practicable.
Having answered both questions set out in section 65DAA(1) in the affirmative I have the power to make such an order and I intend doing so.
Additional Orders
The orders the father proposes provide for the children to spend holiday time during the school term holiday arrangements (but for the long summer holidays) with their mother for 10 days in each. During the long summer holidays in odd years for a period of 18 days between 23 December to 9 January and in even-numbered years for a period of 18 days between 9 January to 26 January.
The mother proposes slightly longer periods of time for the father in the event the children were to live in the Northern Territory.
I note that the children enjoy activities with both parents and indeed want to spend as much time as practicable with each of their parents. I also note that the children enjoy their friendships and the extracurricular activities that they undertake in the Melbourne. In the circumstances I am satisfied that the evidence supports the orders the father proposes relating to school holiday time more so than the orders proposed by the mother.
The orders proposed for the father provide for the children to spend some holiday time in each holiday period with each of their parents and in the Melbourne area, it would follow with their friends.
The mother proposes that the parties share the costs of the children's travel equally. The mother also deposed to her willingness to pay for regular flights until the father could make more money. The father stated that he could pay for half of the children's flights, although it would take some time to save for this.
It is a fact that the father will shortly receive a payout in excess of $500,000 as a result of injuries he sustained as a sportsperson. In those circumstances, and notwithstanding the fact that the father has limited income I am satisfied on the evidence that the father could meet the costs of the children’s travel equally. Whilst the father proposes that the mother be required to meet the costs of a return ticket I am satisfied on the evidence that both parties should meet the costs of the children's travel equally.
The mother proposes that the children spend time with the parent with whom they are not living on their birthdays by way of Skype communication between 5:00pm and 6:00pm. The father does not propose an order in relation to Birthday time however in the circumstances, the evidence certainly supports an order being made for the children to spend some telephone and/or Skype time with the non-resident parent on their birthdays.
Similarly the mother proposes orders relating to Father's Day and Mother's Day and the father does not. The evidence supports an order being made for the children to spend Father's Day and Mother's Day with their respective parents and the orders proposed by the mother are orders that I considered to be in the best interest of the children.
The father proposes orders for the children to telephone Skype or face time the non-resident parent and each Monday, Wednesday and Sunday and that the children otherwise be limited to telephone the non-resident parent. The evidence at trial was that the children had been communicating with their mother via this form of communication and that the communication had been ongoing. In those circumstances, an order for ongoing telephone Skype or face time is an order that is in their best interests.
Both parents seek an order for the children to have valid passports. The mother seeks an order that the father return the passports to her and the father seeks an order that the passports remain with him. In circumstances where the children will primarily live with the father as a result of the orders I have made I am satisfied that the passport should remain with the father but be released to the mother in accordance with the order that the father seeks.
For those reasons I am satisfied that the orders I have made are in the best interest of the children.
I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of Judge Middleton
Associate:
Date: 29 November 2019
Key Legal Topics
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Family Law
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Jurisdiction
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