Fairhurst and Fairhurst
[2012] FMCAfam 283
•29 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FAIRHURST & FAIRHURST | [2012] FMCAfam 283 |
| FAMILY LAW – Parenting – Interim Order – inter-state relocation – very young child – financial circumstances of the relocating parent. |
| Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAA, 65DAC |
| AMS and AIF (1999) 24 Fam LR 756 Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755; Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343 Taylor v Barker (2008) 37 Fam LR 461 Mazorski v Albright (2008) 37 Fam LR 518 T v N (2004) 31 FamLR 281 Cales v Cales (2011) 44 FamLR 376; Sampson v Hartnett (No.10) (2007) 38 FamLR 315 |
| Applicant: | MS FAIRHURST |
| Respondent: | MR FAIRHURST |
| File Number: | BRC 11547 of 2011 |
| Judgment of: | Lapthorn FM |
| Hearing date: | 21 March 2012 |
| Date of Last Submission: | 21 March 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 29 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Byrne |
| Solicitors for the Applicant: | Pearson & Associates |
| Counsel for the Respondent: | N/A |
| Solicitors for the Respondent: | Slater & Gordon |
ORDERS
Until Further Order
That the mother and father have equal shared parental responsibility for the child X born (omitted) 2008;
That, provided the father vacates the former matrimonial home at Property B in the State of Victoria and continues to pay the rent on the property, on or before 12 April 2012 the mother return the child to live at Property B;
That upon compliance with Order (2) herein the mother be restrained from removing or causing the removal of the child’s residence from the Melbourne Metropolitan Area;
That the child live with the mother;
That the child spend time with the father as agreed between the parties but failing agreement as follows:
(i)From 4.00pm Friday to 6.00pm Sunday each alternate weekend commencing 13 April 2012; and
(ii)From 4.00pm each Wednesday to 9.00am each Thursday commencing 18 April 2012;
That pursuant to Rule 8.01 of the Federal Magistrates Court Rules 2001, these proceedings be transferred for hearing to the Federal Magistrates Court of Australia at Melbourne.
IT IS NOTED that publication of this judgment under the pseudonym Fairhurst & Fairhurst is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 11547 of 2011
| MS FAIRHURST |
Applicant
And
| MR FAIRHURST |
Respondent
REASONS FOR JUDGMENT
Introduction
I am asked to make interim parenting orders in relation to a three year old child, X. X’s mother, Ms Fairhurst moved from Melbourne to Brisbane after separating from the child’s father Mr Fairhurst in November last year. The mother has brought an application seeking parenting orders for the child to live with her; the parties to share equally their parental responsibility for the child; the child to spend time with the father in Victoria for a period of 2 weeks each year and on other occasions if the father was to travel to Queensland. She also sought orders for the father to communicate with the child by way of Skype.
The father on the other hand sought orders for the mother and child to return to live in Melbourne and thereafter the child to live with each parent on a week about basis.
Brief Background
The parties commenced to live together in a relationship in June 2006. X was born on (omitted) 2008 and the parties married on (omitted) 2009. They separated on 1 November 2011 and on that day the mother relocated with the child from Melbourne to Brisbane. The mother remains living with her parents in (omitted). The father remains living in (omitted) in Victoria.
Issues and Competing Applications
I am asked to put into place interim parenting orders until the court has had an opportunity to determine the matter after a final hearing. In doing so I will need to determine what living and spend time arrangements are in the child’s best interests. The significant issue that forms part of that consideration is whether the mother and child should be able to remain living in Brisbane pending the final hearing or whether they should return to Melbourne.
The mother proposed that in the event that she was required to relocate back to Melbourne with the child (there was no suggestion she would not return with the child if the Court ordered child’s residence to be in Melbourne) she should be the primary carer of the child and the child should spend alternate weekends with the father and an overnight in the off week. The father proposed an alternate week shared care arrangement in that scenario.
In the event that the mother was not required to relocate the child’s residence the father proposed through his solicitor that he spend block periods of time with the child during the whole of the school holidays in Melbourne and for one weekend mid term in Brisbane. The rationale behind the school holidays given the child is not yet of school age was that the paternal grandmother is a school teacher and she would be able to assist the father care for the child if he needed to work during any period of time the child was to spend with him. He proposed the mother pay for the child’s airfares to and from Melbourne and he would pay for his airfares for the mid term weekends. The mother was prepared to pay for the airfares if this option was adopted by the Court.
I am also asked to transfer these proceedings to the Melbourne Registry of the Federal Magistrates Court if I order the child’s residence to be in Melbourne.
The Evidence
The applicant mother relied upon her Initiating Application filed 21 December 2011, her affidavit also filed that day and a further affidavit filed 19 March 2012. The Court was also assisted by her Counsel’s written submissions.
The respondent father relied upon his Response filed 12 March 2012 and his affidavits filed:
a)12 March 2012;
b)14 March 2012; and
c)20 March 2012.
He also relied upon the affidavit of the paternal grandfather Mr W filed 12 March 2012. The father’s solicitor also relied upon written submissions.
As this matter proceeded by way of hearing “on the papers” the Court has not had the benefit of having any evidence tested by cross-examination. There was no report from a family consultant nor were any documents tendered into evidence. Consequently the Court’s decision today is based on the written evidence of the parties and paternal grandfather. Interim proceedings such as this are difficult to determine when there are disputed facts and independent evidence is unavailable.
Some facts were not in dispute. I find that the parties commenced their relationship whilst they were both working at a resort on (omitted) in 2006. In 2007 they lived with the applicant’s parents in Brisbane for a while before travelling overseas on an extended holiday. It was during this holiday that the applicant fell pregnant with X. Upon their return from the overseas holiday they again lived with the applicant’s parents until about 6 weeks after the birth of X. In late September 2008 they moved to Melbourne to live initially with the respondent’s parents and then in rental accommodation. For about 10 or 11 months the father was unemployed and the mother worked full time. After the father obtained full time employment the mother reduced her hours of paid work outside the home and was more available to care for the child. The paternal grandparents often cared for the child of an afternoon when the mother was at work until the father had returned from his employment and the paternal grandfather who is retired also cared for the child on Thursdays.
Although the mother did not concede the father was the child’s primary carer during his period of unemployment I am satisfied that he is likely to have been. I am satisfied that after the mother’s working hours were reduced and the father had returned to full time work the mother had resumed the role of primary carer. Both parties were assisted by the care provided by the paternal grandparents. Consequently the child is likely to have a close relationship with both parents and the paternal grandparents.
Since the mother’s move to Brisbane she has been residing with her parents and the child is likely to have developed a relationship with them as well but given the relative newness of that living arrangement that relationship it is not likely to be as strong as that which the child is likely to have with the paternal grandparents.
The mother asserted that the marriage broke down in April 2011 however the father whilst conceding there were difficulties in the marriage gave evidence that they separated on 1 November 2011. The day prior the mother posted on her Facebook page the following:
Happy 2nd Wedding Anniversary to my hubby!xxx Love you Stu!
She received 10 ‘Likes’ and 3 written comments in response to her post.
Whilst the disputed question as to the date of separation could not be tested at the interim hearing I find that it is highly likely given the mother’s posting on Facebook that she did not consider the marriage over on 31 October. There is no doubt however that the following day the mother communicated to the father her intention to leave the relationship.
Although he asserted a belief that the mother would return to Melbourne I make no finding in that regard. I am however satisfied that he made it clear to the mother that he did not agree to her removing X. The mother’s response to the father’s evidence in this regard focused more on the father’s belief of her intention to return rather than his evidence that he told her she could not take X. She did however give evidence of the father not preventing her from leaving such that he removed his vehicle to allow her to drive away in her vehicle. No doubt if he had have left his vehicle in place he would have been accused of being controlling. I do not consider his actions in moving his vehicle in anyway imputes support for or acquiescence in the mother’s move to Queensland.
I find that the mother has unilaterally relocated the child’s residence form Melbourne to Brisbane.
I am satisfied that the mother acted promptly in attending to formalising parenting arrangements by arranging for an alternative dispute resolution practitioner led mediation which was not successful and thereafter filing an application for parenting orders. That application was filed on 21 December 2011.
The father did not file a response until 12 March 2012 which was 2 days prior to the first return date. He addressed this apparent delay in his affidavit by giving evidence of an unsuccessful application to Victoria Legal Aid and not receiving timely assistance from a private solicitor. He was initially desirous of avoiding court proceedings and agreed to attend the mediation to which I have already referred. He then approached his lawyers at around the same time as the mother filed her application. He indicated he experienced some difficulties in filing documents in the Melbourne registry. Whilst there has been some delay I make no adverse finding in that regard. I am satisfied that the father had communicated to the mother his objection to the child being relocated from Melbourne on the day of separation and has maintained that position throughout.
Since the mother has been living in Brisbane she has organised for the child to communicate with the father via Skype. The father complained that this form of communication is unsatisfactory in developing his relationship with the child.
When the mother travelled to Melbourne in February the mother and child stayed with the father for a few days and the child also spent time with the paternal grandparents. The father has also seen the child whilst in Brisbane for his court appearances.
On the first return date I commented that the mother’s supporting affidavit was sparse. Her second affidavit provided much more detail and raised a number of allegations of the father being irresponsible financially, gambling and not being available for the family. The father denied the allegations. I make no findings in that regard.
The mother’s evidence is that she is not able to afford to live in Melbourne and needs the support of her family. She did not file any affidavit by either of her parents or her brother corroborating their willingness to provide emotional and financial support as well as child care assistance. Whilst living in Melbourne the mother worked in a low paying position for a major retail outlet. She did not consider she would have the ability to afford her own rental accommodation and child care if she was to return. The mother currently works as a (omitted) working weekends and nights. It seems that the mother has had no difficulty obtaining work throughout her life as the evidence suggests that she obtained work in Melbourne soon after relocating there in 2008 and again very soon after her relocation to Brisbane. It is highly likely she would be able to obtain work if living back in Melbourne although the work is likely to be low paying.
I am satisfied that even if the mother found work she would find it financially difficult living in Melbourne. To his credit the father offered to move out of the former matrimonial home to enable the mother and child to live there. He offered to pay the rent for 6 months. Should this transpire he would live with his parents. I am satisfied that this would go some way towards addressing the mother’s financial concerns although she would still live in modest financial circumstances.
Whilst I am satisfied the mother would be able to obtain employment she would still need to arrange child care whilst she is employed. In the past the parties were able to care for the child because they worked different hours and had the assistance of the paternal grandparents. In the mother’s second affidavit she raised concerns about the paternal grandfather being able to properly care for the child by way of impaired health and alcohol consumption whilst the child was in his care. She did not raise this in her first affidavit. The paternal grandfather had filed an earlier affidavit but would not have had time to respond to her allegations. The facts alleged by the mother are not facts of which she has any first hand knowledge save possibly for some illnesses suffered by him in 2011. I am not satisfied that there is sufficient evidence to find that the paternal grandparents would not be suitable or able to resume caring for the child if the mother or father needed someone to assist them with child care if she was living in Melbourne.
Legal Principles
All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act 1975. In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[1] and must consider the best interests of the child as the paramount consideration.[2] Whilst that is the paramount consideration it is not the only consideration. In AMS and AIF his Honour Justice Kirby held: [3]
[144] ……a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.
[1] S 60B
[2] S 60CA
[3] (1999) 24 Fam LR 756 at page 792
In determining what is in a child’s best interests the court must consider the matters set out in s 60CC.
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[4] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:
a)Children have a right to know and be cared for by both their parents;
b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;
c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
d)Parents should agree about the future parenting of their children; and
e)Children have a right to enjoy their culture.
[4] S 60B lists the objects and principles for Pt VII.
The legislative framework which must be followed in all parenting cases,[5] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[6] This presumption may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s best interests for it to apply.[7]
[5] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[6] S 61DA
[7] S61DA(2) & (4)
For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[8] Unless there is a court order to the contrary each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[9] When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.[10] A major long-term issue in relation to a child means an issue:
[8] S61B
[9] S61C
[10] S65DAC
about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[11]
[11] S.4
In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s 65DAA which provide for a consideration of the child spending equal time with the parents. In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[12] If the court finds that equal time is not in the child’s best interests or that it is not reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[13]
[12] S65DAA(1)(a) & (b), MRR v GR [2010] HCA 4
[13] S65DAA(2)(c) & (d)
This legislative approach must be followed in all parenting cases.[14] This particular case has as one of its elements the issue of relocation. Much has been written and said about relocation cases such that there may be a perception that they are a unique type of case to be determined differently from others. The jurisprudence however is clear that such cases remain to be determined like all parenting matters by considering the best interests of the child in the context of the legislative framework.[15] In Taylor v Barker[16] their Honours Bryant CJ and Finn J said:
[53] …… when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible: see U & U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.
[14] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[15] B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755; Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343
[16] (2008) 37 Fam LR 461 at page 475
Their Honours went on to say:
[83] However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or substantial and significant time” with each parent.[17]
Best Interests Considerations
The primary considerations: s 60CC(2)
[17] ibid at page 480
The benefit to the child of having a meaningful relationship with both of the child’s parents
The current geographical distance between the parties and the very young age of this child create difficulties for her to develop and maintain a meaningful relationship with her non-primary carer. Whilst the child was living in the same house as both parents she was able to have a meaningful relationship with each of them.
The mother’s relocation to Brisbane has compromised the child’s ability to properly develop and maintain her relationship with the father. Under the mother’s proposal the child would only see the father for a period of 2 weeks in Melbourne each year and for other periods if the father was able to travel to Brisbane. During the hearing she was prepared to consider the child spending block periods of time during the school holiday periods and for a weekend during the school term. I am not satisfied that the mother’s proposal is one that would enable this child to fully develop and maintain a meaningful relationship with her father given the significantly reduced time she would now experience with him. Having said that it is not time itself that is of the essence. With respect I adopt the view of Brown J in Mazorski v Albright[18] where her Honour said:
[26] ………I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible in their best interests, substantial and significant.
[18] (2008) 37 Fam LR 518 at 526 [26]
Given the young age of the child however, the long gap in seeing her father that would necessarily follow if the mother was to remain living in Brisbane may lead to a compromising of her relationship with him.
Although the mother makes provision in her proposed orders for the use of technology I am not satisfied that that form of communication would be sufficient to maintain a parent/child relationship given the child’s young age.
At this interim stage it is difficult to determine the actual strength of a parent/child relationship and whether it would withstand lengthy separations. Until there is more evidence available to the Court it would be prudent to adopt a more cautious approach that would enable a parent/child relationship to be maintained.
The father’s proposal would see the mother and child returned to Melbourne. In the interim and from the perspective of the child having a meaningful relationship with each of the parents I am satisfied that his proposal at least in regard to practicability from a geography sense is to be preferred.
His proposal of the child living with each parent in an equal shared care arrangement so soon after the parties’ separation is however difficult to assess. Since the father has been working full time the mother has been the child’s primary carer. I make that finding even though the father primarily cared for the child when she was a young baby during his period of unemployment and the paternal grandparents have also been significant carers.
Given the child’s young age I would be concerned about her being away from her primary carer for any lengthy period of time at least until there is some objective evidence as to her ability to cope with such an arrangement. Until that evidence is available an absence of 3 days (or 2 nights) may be appropriate but I would hesitate in extending that period of time until there was more evidence.
For this reason the proposals that each party submitted during the hearing as to block holiday periods of time are not ideal but I received the submissions on the basis of practicality in the context of the child living interstate from the father.
The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
There is no evidence to suggest this child is at risk of any physical or psychological harm in the household of either parent. The mother raises some concerns as to the potential for neglect at the hands of the paternal grandfather however her evidence falls short of what would be required for me to make such a finding.
The additional considerations: s 60CC (3)
Any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give to the child’s views
This is not a relevant consideration given the young age of the child.
The nature of the relationship of the child with each of the child’s parents
There is no independent evidence before the court as to the nature of the child’s relationship with either of the parents. I am however satisfied that it is highly likely given the involvement each of them has had in the care of the child that she would have a close relationship with both of them.
As both parties worked the paternal grandparents assisted by way of providing care for the child particularly the paternal grandfather. I am satisfied that it is highly likely that the child also has a close relationship with the paternal grandparents. The child’s relationship with the maternal grandparents appears to be more recent however I am satisfied that in the 4 month period she has been living with them she would have been developing a relationship with them.
The nature of the child’s relationships will be a significant consideration at the final hearing. I am concerned however that at this interim stage the mother’s relocation and the consequential significant reduction in time in which the child will be able to spend face to face with the father has the potential to compromise the child’s relationship with him and also the paternal grandparents. For that reason the father’s option of the child being returned to Victoria is to be preferred in the interim.
The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent
This important issue can not be determined without evidence being tested. The father argued that the mother had orchestrated her move and conducted herself in a way that would provide her with a strategic advantage. Notwithstanding the father providing evidence of the mother’s comments posted on Facebook suggestive of an appreciation on her part of a preparedness to conduct herself in a way that may place her in a positive light as apposed to the father I am not in a position to make that finding at this interim stage. Whilst I find the mother has facilitated face to face time as well as Skype communication since her move, her unilateral relocation in and of itself may amount to an unwillingness to promote a continuing relationship. That however is not a matter that can be determined on the papers.
The likely effect of any changes to the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other child or other person with whom he or she has been living
Under the father’s proposal the child would return to the former matrimonial home where she would be in familiar surroundings. She is also familiar with the paternal grandparents’ home where the father would live. The child may miss her maternal grandparents with whom she has begun to develop a relationship.
The mother would not have the support of her family if she lived in Melbourne and given her modest financial means there will be strains on her ability to care for the child. I am however satisfied that she would be able to rely on the assistance of the paternal grandparents there being no evidence of a breakdown in their relationship.
It is disappointing I did not have any evidence from the mother’s family to assist me to consider more fully the extent of support the mother has in Brisbane.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Neither party is in a strong financial position. With the parties living at a significant geographical distance there will be ongoing difficulties and expenses incurred if the child is to spend time with the father. The child is too young to fly unaccompanied which would further add to the costs of the parties. Given the young age of the child there would be a need for more regular periods of time between child and father than that proposed by the mother making it more problematic if the mother was to live in Brisbane and the father in Melbourne.
The capacity of each of the child’s parents and any other person, including any grandparent or other relative of the child, to provide for the needs of the child including emotional and intellectual needs
There is no evidence to suggest that either parent does not have the appropriate capacity to provide for this child’s day to day needs including emotional and intellectual needs. The mother raised in her second affidavit a number of criticisms of the father’s availability to the family unit whilst they were together but has not criticised his capacity to provide for the needs of the child. She alleged excessive gambling on his part which may have an impact on his ability to provide for the child financially but as that allegation is denied I am not in a position to make any findings.
The mother raised concerns as to the paternal grandfather’s capacity to provide appropriate care for the child but without corroborative evidence I am not prepared to make any finding accordingly.
The maturity, sex, lifestyle and background of the child and of the child’s parents
The child’s right to enjoy his or her culture if the child is an Aboriginal child or a Torres Strait Islander child and the likely impact on any proposed parenting order
Neither party identified as being from a particular culture requiring a determination of these considerations.
The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents
This consideration will need to be determined after the testing of evidence at a final hearing.
Any family violence involving the child or a member of the child’s family and any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested by a person
There is no evidence of family violence or family violence orders.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
As these are interim proceedings the litigation will be ongoing unless the parties manage to resolve the matter prior to a final hearing.
The extent to which each of the parents has fulfilled or failed to fulfil, his or her responsibilities as a parent S60CC(4)
The written submissions of each party raise a number of matters that will require determination at a final hearing. I do not propose to canvass them in this judgment.
Presumption of Equal Shared Parental Responsibility
Both parties have sought orders to equally share parental responsibility for the child. There is no evidence that would warrant a displacement of the presumption at least at this interim stage and I will make an order accordingly.
Consideration of Equal Time or Substantial and Significant Time
Having applied the presumption I am required to consider whether it would be in this child’s best interests to live with each of the parties in an equal time arrangement. The father seeks such an order. Not only must I be satisfied that such an arrangement would be in the child’s best interests I must also be satisfied that such an arrangement would be reasonably practicable.
If the mother was to remain living in Brisbane and the father to remain living in Melbourne it is clear that it would not be reasonably practicable. For the same reasons a substantial and significant time order would also fail the reasonable practicality test.
Whilst an equal time arrangement might be reasonably practicable if the parties were to live in close proximity as suggested by the father’s proposal I am not satisfied, having considered the factors above, that it would be in this child’s best interests at least at this stage of the proceedings given there is no direct evidence as to the ability of the child to spend significant periods of time away from her primary carer. Although it would be possible to make orders for a child to live with parents in an equal time arrangement that did not involve large blocks of time with one parent I do not consider it to be in the child’s best interests to spend a couple of nights at a time with each parent. Frequent changeovers could be destabilising for the child and risks inflaming any conflict between the parents.
Before a court could be satisfied that an equal time arrangement was in a child’s best interests a number of factors would need to be considered.[19] The physical separation of these parties is too recent to enable the court to ascertain their ability to work together in such an arrangement.
[19] See S65DAA(5) and T v N (2004) 31 FamLR 281
I am however satisfied that it would be in this child’s best interests if a substantial and significant time arrangement was in place. The mother proposed that if the child was to live in Melbourne the child should spend alternate weekends with the father and for an overnight in the other week. Doing the best I can on the limited evidence before me I am satisfied that the child should be able to spend 3 days or 2 nights away from her mother at a time. In my view this could be achieved by spending Friday evenings to Sunday evenings with the father each alternate weekend but also for an overnight each week in the middle of the week such as Wednesday evenings. Such an arrangement would of course only be possible in the mother and child were living in Melbourne.
Discussion
Parenting cases that have as one element the issue of relocation are usually difficult to determine. Deciding what interim arrangements are to be put into place is also difficult given the truncated nature of interim hearings. There are merits in both parties’ arguments.
The financial circumstances of the mother are an important consideration to which I have given significant weight. She set out in her second affidavit her anticipated costs of relocation. They are not insubstantial when the income earning capacity of the parents is taken into account along with the need for child care arrangements whilst the mother is working. The father’s proposal to vacate the former matrimonial home and meet the rent on the property would be a significant assistance to the mother and go some way towards addressing the financial burden she will bear by living in Melbourne. The mother asserts she has rent free accommodation in Brisbane by living with her parents and assistance with child care. The support from the mother’s family is another important consideration. It is unfortunate she did not file any corroborative evidence as to the extent of that support.
The need for this child to have an ongoing relationship with the father is also important and to which I have given significant weight. The child is only 3 years and 8 months of age. She is still very young. The father has had significant involvement in the care of the child through his role of primary carer during his lengthy period of unemployment and his continued parenting of the child with the mother until separation. If the child had have been a few years older I may have had more confidence the father/child relationship would withstand the periods of separation that would necessarily flow from parents living in different States. Without evidence as to the extent of the child’s ability to maintain that relationship I prefer a more cautious approach to avoid the potential for compromising the child’s relationship with the father. For this reason the father’s proposal of the child living in Melbourne should be preferred to the mother’s even when the mother’s financial difficulties are taken into account.
For all of the reasons I have set out in this judgment I have concluded on balance that the best interests of this child would be served by her living in Melbourne until the Court is able to determine the longer term arrangements.
I am satisfied the Court has power to restrain a parent from relocating a child’s residence[20] and accordingly I will make an order that the mother return the child to Melbourne and be restrained until further order from changing the child’s place of residence outside the Melbourne metropolitan area. That order though will be subject to the father continuing to pay the rent on the former matrimonial home until further order. Although the father offered to pay the rent for 6 months I am of the view that unless there is an order until further order there will be greater potential for further litigation if the final hearing is unable to be determined within that 6 months as even if the mother is able to obtain employment she may not be able to earn sufficient income to meet the added burden of rent.
[20] Cales v Cales (2011) 44 FamLR 376; Sampson v Hartnett (No 10) (2007) 38 FamLR 315
I propose to give the mother 14 days in which to relocate which will also enable the father time to move into his parent’s home.
Although I will make an order for the child’s return to Melbourne, for the reasons I have set out in this judgment I am not persuaded there is sufficient evidence at this interim stage to find that the father’s proposal for an equal time arrangement is in the child’s best interests. I propose to make orders that would provide for the child to live primarily with the mother but spend time with the father for one weekend each fortnight and 2 extra nights being one night each week. Given the father will be living with the paternal grandparents I am satisfied that child would also be able to maintain her relationship with them during the time she spends with her father including caring for the child until the father returns home from work of an evening.
Having decided the child should live in Melbourne I need to consider the transfer of these proceedings to the Melbourne Registry of the Court. As both parties and the child will be residing there pending the final hearing the balance of convenience clearly lies in the proceedings be conducted there. Accordingly I will transfer the matter.
For these reasons I make the orders set out at the commencement of this judgment.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Lapthorn FM
Date: 29 March 2012
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