FEWSTER & FEWSTER
[2021] FCCA 1059
•18 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FEWSTER & FEWSTER | [2021] FCCA 1059 |
| Catchwords: FAMILY LAW – Parenting – final orders – 3 children, 2 with special needs – mother has them during the school week and father has them on weekends – mother has been commuting for 4 to 5 hours per day to work in a specialised role in Sydney – mother seeks to relocate with children back to Sydney – father seeks equal time arrangement with children to remain living in greater City B region – present arrangements unsustainable for the mother and the children – best interests of the children warrant relocation being permitted. |
| Legislation: Family Law Act 1975, Pt VII. |
| Cases cited: Adamson & Adamson (2014) FLC 93-622 Godfrey & Sanders [2007] FamCA 102 Mazorski & Albright (2008) 37 Fam LR 518 MRR v GR (2010) FLC 93-424 Zahawi & Rayne [2016] FamCAFC 90 |
| Applicant: | MR FEWSTER |
| Respondent: | MS FEWSTER |
| File Number: | NCC 2941 of 2018 |
| Judgment of: | Judge Betts |
| Hearing dates: | 19, 20 and 31 August 2020 |
| Date of Last Submission: | 4 September 2020 |
| Delivered at: | Newcastle |
| Delivered on: | 18 May 2021 |
REPRESENTATION
| Counsel for the Applicant: | Mr Levick |
| Solicitors for the Applicant: | Gianacas Argiris Mcdonald |
| Counsel for the Respondent: | Ms Stares |
| Solicitors for the Respondent: | McAneny Lawyers |
ORDERS
The mother and father have equal shared parental responsibility for the children, X born in 2011, Y born in 2011 and Z born in 2013 (“the children”) save that:
(a)the mother is to have sole parental responsibility in respect of the children’s health; and
(b)the mother is to have sole parental responsibility in respect of the children’s education.
Prior to making any major long-term decisions pursuant to order (1)(a) or order (1)(b), the mother is to notify the father in advance and invite him to give his input. Upon making a decision, the mother is to promptly notify the father in writing of same.
The children live with the mother.
That effective from 12pm on the middle Saturday of the Term 2 school holidays in 2021, the mother be permitted to relocate the children to Town C.
Thereafter, unless the father is living within one hour’s drive of the mother and the children:
The children spend time with the father as follows:
(a)During school terms, each alternate weekend from 5pm Friday until 5pm Sunday;
(b)For the first 10 days of the Term 1, 2 and 3 school holidays as agreed in writing and failing agreement, from 5pm on the last day that the children attend school until 5pm on the 10th day however if the children spend time with the mother in the Term 1 school holidays for Easter during the first 10 days of such holiday, then the father have the equivalent of 10 days during the Term 1 holidays;
(c)From 5pm Easter Saturday to 5pm Easter Monday in even numbered years;
(d)From 9am Good Friday until 5pm Easter Saturday in odd numbered years;
(e)From 5pm Christmas Eve until 5pm Christmas Day in odd numbered years;
(f)From 5pm Christmas Day until 5pm Boxing Day in even numbered years;
(g)For half of the Christmas holidays (Term 4 holidays) as agreed in writing and, failing agreement, for the first half in odd numbered years commencing at 5pm on the last day the children are to attend school until 5pm on the mid-point and the second half in even numbered years commencing at 5pm on the mid-point until 5pm on the day before the children resume attending school;
(h)On the weekend of Father’s Day from 5pm Friday until 5pm Sunday;
(i)Additional time as agreed in writing between the parties.
Notwithstanding any other order, the children spend time with the mother:
(a)On the weekend of Mother’s Day, from after school Friday until commencement of school Monday;
(b)From 5pm Easter Saturday to 5pm Easter Monday in odd numbered years;
(c)From 9am Good Friday until 5pm Easter Saturday in even numbered years;
(d)From 5pm Christmas Eve until 5pm Christmas Day in even numbered years; and
(e)From 5pm Christmas Day until 5pm Boxing Day in odd numbered years.
The children spend time with the father on each child’s even numbered birthday as follows:
(a)If the relevant birthday falls on a school day, then on the immediately following Saturday from 9am to 5pm;
(b)On a non-school day, from 9am on the child’s birthday (if the other parent is otherwise scheduled to care for the children), until 9am the following day.
Unless otherwise agreed between the parents in writing, the father (or his nominee) is to collect the children from the mother (or her nominee) at E Railway Station at the commencement of his time; and the mother (or her nominee) is to collect the children from the father (or his nominee) at the D Service Centre at the twin service stations on the F Freeway at Town G.
If the father moves to within one hour’s drive of the mother and the children:
Orders 5 – 8 (inclusive) are suspended and instead the following orders will apply.
The children spend time with the father as follows:
(a)During school terms, each alternate week from the conclusion of school or 3pm Wednesday until the commencement of school or 9am Monday.
(b)For the first 10 days of the Term 1, 2 and 3 school holidays as agreed in writing and failing agreement, from 5pm on the last day that the children attend school until 5pm on the middle Saturday, however if the children spend time with the mother in the Term 1 school holidays for Easter, then the father have the equivalent time during the Term 1 holidays.
(c)From 5pm Easter Saturday to 5pm Easter Monday in even numbered years;
(d)From 9am Good Friday until 5pm Easter Saturday in odd numbered years;
(e)From 5pm Christmas Eve until 5pm Christmas Day in odd numbered years;
(f)From 5pm Christmas Day until 5pm Boxing Day in even numbered years;
(g)For half of the Christmas holidays (Term 4 holidays) as agreed in writing and, failing agreement, for the first half in odd numbered years commencing at 5pm on the last day that the children attend school until 5pm on the mid-point; and the second half in even numbered years commencing at 5pm on the mid-point until 5pm on the day before the children resume attending school;
(h)On the weekend of Father’s Day from after school Friday until the commencement of school Monday;
(i)Additional time as agreed in writing between the parties.
Notwithstanding any other order, the children spend time with the mother:
(a)On the weekend of Mother’s Day from after school Friday until the commencement of school Monday;
(b)From 5pm Easter Saturday to 5pm Easter Monday in odd numbered years;
(c)From 9am Good Friday until 5pm Easter Saturday in even numbered years;
(d)From 5pm Christmas Eve until 5pm Christmas Day in even numbered years; and
(e)From 5pm Christmas Day until 5pm Boxing Day in odd numbered years.
The children spend time with each parent on that parent’s birthday, as follows:
(a)If the relevant birthday falls on a school day, from the conclusion of school until commencement of school or 9am the next morning;
(b)On a non-school day, from 9am on the parent’s birthday (if the other parent is otherwise scheduled to care for the children) until 9am the following day.
The children spend time with the father on each child’s even numbered birthday as follows:
(a)If the relevant birthday falls on a school day, from the conclusion of school until the commencement of school or 9am the next morning;
(b)On a non-school day, from 9am on the child’s birthday (if the other parent is otherwise scheduled to care for the children), until 9am or commencement of school the following day.
The children spend time with the mother on each child’s odd numbered birthday, as follows:
(a)If the relevant birthday falls on a school day, from the conclusion of school until the commencement of school then next morning;
(b)On a non-school day, from 9am on the child’s birthday (if the other parent is otherwise scheduled to care for the children), until 9am or commencement of school the following day.
Unless otherwise agreed in writing, changeovers that do not occur at school are to occur by the father (or his nominee) collecting the children from the mother’s home at commencement; and the mother (or her nominee) collecting the children from the father’s home at the conclusion.
Orders that apply regardless of where the father lives:
The mother will facilitate the children communicating with the father by audio visual means (facetime/skype or other telephonic means, if agreed) at 7pm each Monday and Wednesday when the children are in the mother’s care or at other times as agreed in writing, for a period of up to one hour. For the purpose of this order, the mother will initiate communication and will ensure that, so far as possible, the children are given a private and quiet environment in which to communicate with the father.
The father will facilitate the children communicating with the mother by audio visual means (facetime/skype or other telephonic means, if agreed) at 7pm each Thursday and Sunday when the children are in the father’s care or at other times as agreed in writing, for a period of up to one hour. For the purpose of this order, the father will initiate communication and will ensure that, so far as possible, the children are given a private and quiet environment in which to communicate with the mother.
The mother and father:
(a)Are to provide the other parent with full particulars of any medical or allied health practitioner, health service provider or institution attended by the children and these orders authorise that medical or allied health practitioner or institution to provide the other parent (at that parent’s expense) with any information concerning the children’s health and treatment, including but not limited to any diagnosis, prognosis, medications prescribed, treatment referrals and likely costs of any future treatment; and
(b)Are to provide a copy of these orders to the children’s school/s. This order authorises the school/s to provide the father (at his expense) copies of all school reports, school photographs (and orders forms), newsletters and any other information ordinarily provided to parents.
Both parents are permitted to attend the children’s school for all school events and extra-curricular activities that parents would normally be invited to attend, including parent/teacher interviews.
Pursuant to section 68B of the Family Law Act, each parent is restrained from:
(a)Denigrating, insulting or belittling the other parent, or any member of the other parent’s family or household;
(b)Knowingly allowing or permitting the children to be exposed to such denigration.
Each parent will advise the other parent immediately in the event that any of the child/ren suffers a serious illness, injury or hospital admission while in that parent’s care.
Each of the mother and the father may travel interstate with the children during any period of time that the children are in his/her care. The parent proposing the travel must:
(a)Provide to the other parent at least 2 weeks’ notice in writing of the interstate travel plans;
(b)Provide to the other parent a copy of the travel itinerary and contact details for the children while interstate (including full street addresses of where the children will be staying); and
(c)Not propose to travel during school terms.
Each of the mother and father may travel overseas with the children, during any period of time that the children are in his/her care. The parent proposing the travel must:
(a)Provide to the other parent at least 2 months’ notice in writing of the overseas travel plans;
(b)Provide to the other parent a copy of the travel itinerary and contact details for the children while overseas (including the full street addresses of where the child/ren will be staying);
(c)Not propose to take the children to a country listed on the Australian Government Smart Traveller website as posing a travel or safety risk;
(d)Not propose to take the children to a country which is not a signatory to the Hague (Child Abduction) Convention.
(e)Not propose to travel during school terms.
That in the event that the father intends to travel outside the Commonwealth of Australia with the child/ren, the mother will provide the father with the child/ren’s passport/s at least 20 days prior to the notified date of departure and the father will return the child/rens’ passport/s to the mother within 7 days of their return.
Pending the mother relocating with the children in accordance with these orders, the interim orders of 30 April 2019 will continue to apply save that the children will spend time with the father during the first half of the Term 2 holidays in 2021, concluding at 12pm on the middle Saturday. Upon the mother relocating thereafter, the interim orders are hereby discharged.
All outstanding applications are dismissed and the matter removed from the List of Active Pending Cases.
IT IS NOTED that publication of this judgment under the pseudonym Fewster & Fewster is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2941 of 2018
| MR FEWSTER |
Applicant
And
| MS FEWSTER |
Respondent
REASONS FOR JUDGMENT
(As Corrected)
Introduction:
This case concerns the future parenting of three (3) girls:
(a)X and Y, identical twins aged 10; and
(b)their younger sister Z, aged 8.
The parties to the proceedings are the children’s parents, Mr Fewster (“the father”) and Ms Fewster (“the mother”).
Broadly, the parents are in dispute as to whether the children should continue to live in the greater City B region, or whether they should relocate with the mother to western Sydney. The amount of time that the children should spend with the father in either location is also in dispute, as is the issue of parental responsibility.
Short history:
The parents commenced a relationship in Sydney in 2006, married in 2010, moved to the greater City B region in 2012 before ultimately purchasing a home in Suburb H (a suburb on City J) where they settled in March 2016.
The children have always attended Suburb H Public School.
In September 2017 the parents finally separated and the mother moved out and initially rented close by. By agreement between the parents, they have shared the care of the children almost equally, albeit in a lop-sided way.
During school terms the children have lived with the father each weekend from after school Friday to before school Monday. The children live with the mother during the school week from Monday through to Friday. School holidays are shared equally.
The practical effect of this arrangement is that during school term the mother attends to all of the children’s schooling, educational support and allied health requirements; the father essentially gets all of the “quality time” on weekends.
Both parents work. The father is a tradesman who works as a manager for Employer K based in City B. He regularly travels to the Region L and to the Region M and sometimes Sydney.
The mother is employed as a professional with Employer N based in Suburb O, Sydney.
Prior to final separation the Mother had negotiated with her employer to work part-time hours. But once the parents had separated, the mother found herself having to return to full-time work for economic reasons.
She is obliged to work from the Suburb O office. She was commuting from Suburb H to Suburb O for around 4 hours each weekday.
In August 2018 the mother proposed relocating with the children back to Sydney. The father opposed it.
On 30 April 2019 the parents formalised the existing post-separation parenting regime by way of interim consent orders. They also consented to final orders by way of property settlement, pursuant to which the father retained their Suburb H property and the mother retained their former home at Town C in Western Sydney – where she is seeking to relocate back to.
Around May 2019, citing rental affordability issues, the mother moved from Suburb H to the Region M where she has been house-sitting.
Though more affordable, this move has further increased the mother’s commute time by up to an hour.
Her usual weekday routine with the children is, to use her word, “tough”.[1]
[1] Mother’s affidavit, para 42
On Mondays and Tuesdays the mother drives from the Region M to Suburb H where she drops the children off at OOSH [2] prior to school, then drives south to Sydney for work, returning to Suburb H in the afternoon to collect the children before returning again to the Region M.
[2] “OOSH” is short for “Out Of School Hours” care
The mother’s travel burden is less on Wednesdays and Thursdays as her friend Ms P collects the children from Suburb H Public School in the afternoons and brings them back to the Region M.
On the Friday the mother has the morning commute but the father then collects the children after school.
The father has a vastly more manageable work/life balance. He and the children enjoy regular quality time together, the Suburb H Public School is close by and he also has his parents available to assist with care if needed.
Both parents have re-partnered. The mother’s partner lives in Western Australia but at this stage he and the mother have no plans to live together. The children have spent time with him both in New South Wales and in Western Australia.
The father’s partner (and her two younger children) live in a town in the Region L, about an hour’s drive from Suburb H. The children have spent time, including overnight time, at her home.
The trial:
By consent, the trial was conducted by video-link. Both parties were represented by counsel.
The father relied upon his:
(a)Case Outline;
(b)Amended Initiating Application filed 6 September 2019;
(c)Affidavit filed 28 July 2020.
The mother relied upon her:
(a)Case Outline;
(b)Amended Response filed 20 July 2020;
(c)Affidavit filed 20 July 2020. [3]
[3] The mother also relied upon her Notice of Risk filed 05/11/18 but did not advance any meaningful risk issues at trial.
The Family Report was marked as an exhibit. In the course of the trial, the parties tendered various other documents including comprehensive fall-back proposals. [4] The mother also provided some short written submissions in support of her proposals.
[4] Exhibits 6 and 7 respectively
I had the advantage of seeing both parents give their evidence.
The father’s cross-examination was fairly brief whereas the mother’s cross-examination occupied a full day.
Some observations and findings in respect of the father:
I was generally impressed by the father’s dedication to the children and his evident love for them. Having forged a close and loving relationship with all of them, he very much wishes to continue to play a significant role in their lives. In my view he has much to offer them.
The father did however come across as rather concrete, or “black and white”, in his thinking.
Compared to the mother, it was evident that he has a different and more simplistic approach towards the children’s allied health care and educational support needs. For instance in relation to X, who has a range of learning difficulties, his view is that to improve her learning she simply needs to do “more repetition”. In contrast with the mother, he presented as being much less aware of, and attuned to, X’s specific learning and allied health needs.
This is partly explained by the glaringly obvious fact that the father has had a much lesser involvement with allied health appointments and support services than the mother.
In the witness box the father conceded that:
(a)the mother had always taken the children to the dentist;
(b)the mother had always taken the children to eye appointments. The father had never attended for any eye tests for the children;
(c)the mother was the parent who arranged, and attended, the childrens’ tutoring. The Father had made some financial contributions in more recent times but had never himself attended even when given the option to participate by video-link during the COVID-19 lockdown;
(d)the father had not been involved in any of the children’s speech therapy appointments, despite the mother providing him with a schedule of visits six (6) months in advance;
(e)since separation the father had only attended two psychologist appointments and one paediatrician appointment;
(f)the father had never made a single phone call to a support service to arrange an appointment, or to seek a second opinion.
Despite the father’s evidence as to his “flexible” work hours, there is nothing to suggest that he has made any meaningful attempt to use that flexibility to participate in the children’s allied health and support needs.
The father was critical of the mother for allegedly not consulting him in advance about allied health appointments in circumstances where at no time did he take any proactive steps to arrange such appointments himself. For instance, when the mother obtained a behavioural optometrist referral for X in Sydney, the father’s only response was to complain that the mother should have engaged someone local. But having complained about it, the father then did not make any enquiries of his own as to the availability of local practitioners or their costs; instead he effectively cast the onus back onto the mother to do so.
The father was quite content for the mother to do all of the “running around” in this respect.
The father was also content for the mother to pay a disproportionate share of the children’s associated allied health and support expenses. Pursuant to the interim orders of 30 April 2019 the father was required to contribute equally to such expenses – but only if he had given his prior consent to such appointments/attendances.
In reliance on that order, the father complained that the mother would only send him bundles of receipts after the event. He therefore took the position that he was not obliged to pay half.
The practical effect of the interim orders was that the father had a right of veto as to equal costs sharing unless the mother first obtained his consent to services; he effectively cast the onus entirely onto the mother to find the cheapest services and make all associated enquiries. This was rather mean-spirited of him and in turn the mother resented his approach and just ended up paying the overwhelming bulk of the costs herself.
The father’s affidavit also complained about the mother having a “private” meeting with the paediatrician on the one occasion that they jointly attended there, but this was taken entirely out of context. The paediatrician had offered both parents a private session but it was only the mother who took it up.
Overall, the father’s complaints about the mother not involving him in allied health and educational support matters came across as rather hollow. If he had genuinely attempted to involve himself in such matters it might be different. His energy and efforts in this respect were underwhelming.
His affidavit was also unfairly critical of the mother’s communication in relation to the event when Z sprained her ankle in August 2019. He deposed that she had sprained her ankle on the Tuesday and was not informed until the Friday. In the witness box he conceded the ankle sprain was on a Thursday and the mother texted him that day.
Some observations and findings in respect of the mother:
The mother consistently came across as rather serious and sombre, if not positively downcast. I gained the distinct impression that she had been worn down by the proceedings and by her ongoing weekly travel burden.
Her devotion to the children, and her active involvement in their weekly routines, was obvious.
The mother was adamant that she would not relocate without the children. Her position is that if she cannot relocate than she will simply have to make the best of her situation and would have to look at buying a home in the greater City B area.
She was challenged as to her attitude towards the father and his family, in that she clearly had refused the father’s offers to collect the children after school – saving them from spending so much time at OOSH, and also saving the mother around $800 per month in OOSH fees.
Had the mother taken up those offers, in all likelihood the father would have been caring for the children for at least some of that time. The paternal grandparents would likely also have assisted to a significant degree.
In a perfect world, it is true that the mother should have taken up that offer. She properly conceded that the children enjoy spending time with the father and that there would be a benefit to them in spending time with him after school rather than in OOSH. But she reasoned that the children had given her emphatic feedback that they did not want to spend extra time with the paternal grandparents. The mother does not have a lot of time for the paternal grandparents and in my view this coloured her perception; the mother did not seem to appreciate that the children were also caught in a loyalty bind.
But while the mother could have taken up the offers, it must also be noted that the father had never himself offered to drive the children back to the mother at the Region M to save her any travel time. Such a gesture of goodwill on his part would potentially have gone some way to improving the co-parenting relationship.
So in summary, the mother was very much “stuck” with having to do all of the weekday commuting whether or not she accepted the father’s offers of after-school care. But even so, her refusal to accept the offers was something of an “own goal” on her part and not entirely child-focussed.
While the mother was vastly more attuned to the children’s healthcare and support needs, and while she usually did inform the father in advance of the appointments, it was also apparent that the mother had unilaterally made arrangements for the children to attend various activities - including allied health appointments - on the basis that she would make the decision and inform the father about it later. She could, and should, have been more consultative and in that sense she could be seen as having been somewhat dictatorial.
The mother was cross-examined about her earlier suggestion that the children attend Region L Grammar School in the City Q region. Her suggestion was made on the basis that, if they did so, then she would move to that area where there was more affordable housing. I accept the mother’s evidence that in making that proposal she was “trying to make an unfeasible situation work”. When cross-examined about the relative expense of sending the children to the Region L Grammar School, she clearly had not thought through the mathematics. The father rejected her proposal which, overall, smacked of an attempt at compromise borne out of quiet desperation on her part.
The mother was cross-examined about her involvement in a fatal car accident on 13 August 2019.
She was not in any way at fault for the accident. Another driver had run a “Give Way” sign, resulting in a collision which led to the death of the passenger in the other vehicle. The father’s affidavit had complained that, despite spending three days in hospital, the mother had not informed him of the accident and had not offered for him to care for the children in the meantime.
There is some superficial merit in the father’s complaint; the mother should have arranged to at least let the father know what had happened. But most significantly, the accident underscores the long-term unworkability and inherent dangers involved with such an extensive amount of car travel.
The accident left the mother with whiplash injuries (for which she has physiotherapy) as well as some ongoing anxiety while driving (for which she sees a psychologist). The fact that the mother was afterwards able to resume her substantial weekday commute in many ways bears testimony to her resilience and strength of will.
The mother conceded that on 5 May 2020 she had sent the father a lengthy, somewhat bristling and argumentative email in response to his email to her. But that was the only such email produced by the father and on all of the evidence it was something of a “one-off”.
In a credibility sense, probably the most damaging evidence against the mother came at the very end of cross-examination by which time she was rather weary.
The mother said that if she is able to relocate with the children, her clear preference is that the children spend every third weekend with the father, rather than every alternate weekend. She reasoned that the girls would cope with travelling every third weekend, but not every second weekend as it would become “burdensome on them” over time. The mother also wanted to be able to organise regular weekend activities for the girls in the Sydney region.
She also said that if the parties were living in the same locality (greater City B or western Sydney), that an alternate Friday - Monday weekend arrangement with the father would be best. She rejected an alternate Wednesday to Monday morning arrangement (5 nights per fortnight) on the basis that the children would not then have enough time with her to do “girl stuff”.
Unhappily, the mother’s subsequent written submissions reinforced that oral evidence. She advocates that even if the father follows them to western Sydney, he should still only spend alternate weekends with the children. Even this is contingent upon the father living within 40 kilometres of her – which struck me as an arbitrary radius.
The mother did propose that, on any scenario, the father have a little more than half of the school holidays with the children. But my impression was that her time proposals were rather “mean” overall.
I consider that frustration underpinned some of that. After all, the mother had been trying to negotiate a relocation since August 2018 and the father had steadfastly maintained that he could not/would not relocate from the greater City B region. Only at the eleventh hour during the trial, when the evidence was already closed, did the father indicate that he would relocate.
That said, the mother’s parenting proposals did cause me a measure of concern, as they potentially foreshadowed a less-than-enthusiastic attitude towards fostering the children’s relationship with the father in the event of relocation.
But I have to consider the evidence as a whole – including that the Family Report writer had herself recommended that in the event of relocation the father spend every third weekend with the children rather than every alternate weekend. Moreover, the weight of the evidence demonstrates that post-separation the mother has in fact made significant efforts to facilitate the children’s relationship with the father.
The law:
These parenting proceedings are brought pursuant to the provisions of Part VII of the Family Law Act (“the Act”).
The key objects and principles which underpin the operation of Part VII of the Act are set out in section 60B.
When deciding whether or not to make a particular parenting order the court must regard the “best interests” of the children as the paramount consideration: section 60CA, section 65AA.
In arriving at a best interests determination, the Act prescribes mandatory considerations in section 60CC. There are two “primary considerations” prescribed in section 60CC(2)(a) and section 60CC(2)(b) and fourteen “additional considerations” prescribed in section 60CC(3)(a) – section 60CC(3)(m), the last being a catch-all designed to accommodate the facts of each individual case and family that comes before the court.
When a court is making a parenting order, section 61DA(1) imports a rebuttable statutory presumption that it would be in the best interests of the children for the parents to be allocated equal shared parental responsibility.
“Parental responsibility” is legislatively defined in section 61B as:
All the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Parents with equal shared parental responsibility are obliged to consult with each other, and try to reach agreement about, the “major long-term issues” for the children: section 65DAC.
“Major long-term issues” are defined in section 4 of the Act and relevantly include long-term decisions as to a child’s health and education and any “changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.”
The statutory presumption in section 61DA(1) that an order for equal shared parental responsibility would be in a child’s best interests does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence: section 61DA(2).
When the presumption does otherwise apply, it is still rebuttable if the evidence satisfies a court that the making of such an order would not in fact be in the child’s best interests: section 61DA(4).
If the court makes an order for the parents to have equal shared parental responsibility, this engages the statutory pathway set out in section 65DAA of the Act.
Specifically, section 65DAA(1) requires that the first option the court must consider is equal time with both parents - provided such an order is in the “best interests” of the children and “reasonably practicable” for the parents to implement. If equal time fails one of these criteria, then section 65DAA(2) requires that the court must consider as the second option making an order that the children live primarily with one parent, but spend “substantial and significant time” with the other parent – which means more than just weekend and holiday time.[5] But again, such an order can only be made if it is in the “best interests” of the children and “reasonably practicable” for the parents to implement.
[5][5] See section 65DAA(3)
If “substantial and significant time” fails one of those criteria, then the parenting arrangements simply come down to what is in the “best interests” of the children having regard to the court’s findings as to the mandatory considerations in section 60CC.
For the purposes of section 65DAA, “reasonable practicability” is defined in section 65DAA(5) as follows:
Reasonable practicality
65DAA(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note: Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
In MRR & GR (2010) FLC 93-424, the parents of a young child had moved from Sydney to Mount Isa to enable the father to take up highly paid employment in the local mines. The parents separated after moving there and the mother sought to relocate back to Sydney with the child. The father opposed it; he sought equal time with the child in Mount Isa.
The trial judge made an order for equal shared parental responsibility, thus triggering section 65DAA. His Honour then went on to make an equal time order on the basis that both parents continue to live in Mount Isa.
The mother unsuccessfully appealed to the Full Court of the Family Court, before successfully appealing to the High Court.
The mother’s argument was based upon the meaning of “reasonable practicability” in section 65DAA(5).
The facts established that the mother had limited work opportunities in Mount Isa and was dependent upon Centrelink benefits whereas she had full-time work available to her in Sydney with flexible hours. In Mount Isa she was only able to afford to live in a caravan park or in a “rough” area. All of her family support was in Sydney. The Family Consultant considered that the mother was “definitely despondent” about her living circumstances in Mount Isa.
In contrast, the husband had a home in Mount Isa and a high-paying job in the local mines.
Their Honours observed that a finding as to “reasonable practicability” goes to the court’s jurisdiction to make a parenting order under section 65DAA(1); that reasonable practicability is not concerned with the desirability of making an equal time order but requires consideration of other, different matters. Reasonable practicability requires the court to consider the reality of the situation of the parents and the children. It requires a practical assessment of whether the proposed parenting order is feasible.
The High Court held that the trial Judge had not properly considered the issue of reasonable practicability from the mother’s perspective and that an equal time order in Mount Isa was not reasonably practicable having regard to the mother’s circumstances.
Best interests findings:
Broadly, the competing proposals are:
(a)father’s primary proposal – that there be equal shared parental responsibility and that the children remain living in the greater City B region in a week-about arrangement;
(b)father’s fallback proposal in the event of relocation – that he spend alternate weekends with the children, increasing to 5 nights per fortnight if he himself relocates;
(c)mother’s primary proposal – that she have sole parental responsibility and the children relocate with her to the western Sydney region (Town C), spending time with the father each third weekend;
(d)mother’s fallback proposal in the event her relocation application is unsuccessful – that the children live with her and spend alternate weekends with the father.
There is no real contest about the school holidays; the mother proposes that the father have a little over half.
In setting out the above proposals, I am mindful that “relocation” is not a discrete preliminary issue. There is no onus on the mother or the father in relation to the relocation issue per se. The competing parenting proposals need to be considered holistically – and with the clear understanding that the parents’ respective “fallback” positions are not to be taken as concessions.
I add that there is no need for me to consider the scenario whereby the mother relocates without the children as she has expressly disavowed that option.
Against that background, I now set out my best interests findings. These should be read with my earlier findings. Some of them will be relevant to more than one of the mandatory considerations; I will endeavour not to be unduly repetitive. I will also use a shorthand description of each mandatory consideration rather than slavishly repeating them in full.
PRIMARY CONSIDERATIONS:
Section 60CC(2)(a) - the benefit to the children of having a meaningful relationship with both parents:
A “meaningful” relationship in this context refers to a relationship that is important, significant and valuable to the child. It is qualitative adjective, not a strictly quantitative one: per Brown J in Mazorski & Albright (2008) 37 Fam LR 518.
It does not mean “optimal”: per Kay J sitting as the Full Court in Godfrey & Sanders [2007] FamCA 102.
These children have always had a meaningful relationship with both parents and they would benefit from maintaining those meaningful relationships. The children are well used to spending regular time with both of them.
The parents living in the same locality will best facilitate maintenance of an ongoing meaningful relationship between the children and both parents. Put another way, it would be the “optimal” situation.
Relocation will better promote a more meaningful relationship between the children and their mother, but it comes at the cost of their relationship with the father. Nonetheless the father/children relationships are well established and would still remain meaningful at a distance.
Section 60CC(2)(b) - the need to protect the children from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence:
The mother’s material makes various historical allegations of family violence against the father. But when interviewed by the Family Report writer, the mother did not want to discuss them. Nor were those issues pressed at trial.
Beyond noting that allegations were made, it is impossible for me to do anything with them. The father denies that he perpetrated family violence and I was not asked to make findings either way. For practical purposes I will therefore put the family violence allegations to one side.
The mother alleged that the father drank alcohol to excess, including binge drinking on occasions, sometimes leading to him displaying violent or otherwise inappropriate behaviour. The father denied these allegations and ultimately the mother did not advance the father’s drinking as a serious risk factor at trial.
The father alleged that the mother’s partner Mr R inflicted corporal punishment on the children by hitting them around the head. When he emailed the mother about these matters, she responded reactively by making counter-allegations of assault against him and accusing him of interrogating her. Their communication on point was not constructive.[6]
[6] Father’s affidavit, annexure “G”
Y and Z both told the Family Report writer about Mr R slapping them on the face. The mother denied that Mr R had ever slapped Z, but admitted that he had flicked Y’s ear on one occasion after she had become hysterical. The mother said she told Mr R not to do it again.
The Family Report writer recommended that the parents be restrained from physically disciplining the children or from permitting any other person to do so.
While there is superficial merit in making such an order so as to avoid potential parental conflict about the matter in the future, neither parent sought such an order. The father did not press the matter at trial and it seems to me that the parents have been able to properly address the issue without the need for orders.
In closing, I agree with the Family Report writer that this is a case with “very minimal” risk factors.
ADDITIONAL CONSIDERATIONS:
Section 60CC(3)(a) - views expressed by the children:
According to the Family Report writer, the children had a limited perspective of the conflict.
X was focussed on fairness, saying that she wanted to spend four (4) nights with each parent. But interestingly she also conveyed to the Family Report writer that she was in fact uncomfortable with many aspects of the current co-parenting situation which has been more or less equal.[7]
[7] Paragraphs 79 & 80 of the Family Report
Y also expressed a view that equal time would be best, although given her comments to the Family Report writer I consider that her views were influenced by things the father told her.[8]
[8] Paragraphs 87, 90 & 91 of the Family Report
Z told the Family Report writer that she wanted more time with the mother, including weekend time but she also did not want to leave behind her friends in the local area. The Family Report writer considered her views to be “developmentally appropriate”.[9]
Section 60CC(3)(b) – Nature of children’s relationships:
[9] Paragraphs 97 & 98 of the Family Report
The children have excellent relationships with both parents.
They have good relationships with the extended paternal and maternal family members.
In terms of extended family, the children spend the most time with the paternal grandparents. The maternal family is based in the Sydney region.
The children have also developed relationships with each of the parent’s new partners, and with the father’s partner’s children. They also have friends at school and in the local area.
Section 60CC(3)(c) - extent to which parents have taken the opportunity to participate in the childrens’ lives, including in decision-making:
The parents have consistently played a significant role in the children’s lives.
The mother has been the more involved parent in terms of decision-making for the children, particularly after separation. The father has not taken a great interest in the children’s allied health and support needs; the mother has been proactive, dedicated if at times somewhat dictatorial.
Section 60CC(3)(ca) – extent to which parents have fulfilled obligations to maintain children:
Both parents work; neither of them has sought formal payment of child support from the other.
The mother has borne the brunt of the costs relating to the children’s allied health and support services. The father conceded that since January 2019 he had contributed around $1,100 towards those costs in circumstances where the mother had paid more than ten times that amount.
The father has paid for school uniforms and the like but his financial contribution overall has been much less than the mother’s.
At one stage the father had proposed to the mother that the parties contribute towards a joint account to meet these types of expenses. The mother declined that offer as she did not trust him to contribute a fair share.
Section 60CC(3)(d) – likely effect of any change in circumstances:
This is a particularly significant consideration.
Each party contends that their respective parenting proposal is in the children’s best interests.
I will address this consideration later when I weigh up the competing proposals.
Section 60CC(3)(e) – practical difficulty and expenses & whether they will substantially affect the children’s right to maintain parent relationships:
Real practical difficulties (and to a lesser extent, expenses) arise if the mother relocates with the children and the father remains living in Suburb H. During school terms, the children will realistically only be able to spend time with the father on weekends as they do now. But the difference is that it will be every second or third weekend rather than every weekend - a significant reduction for the children.
If both parents live in the same locality, whether it be the greater City B region or the western Sydney region, then no serious practical difficulties or expenses arise in terms of facilitating each parent’s relationship with the children.
Section 60CC(3)(f) – capacity of parents and relevant others / Section 60CC(3)(g) – maturity, sex, lifestyle and background of the children:
It is convenient for me to group these two considerations together given the way the case was presented.
X has learning difficulties and cognitive deficits. She has particular difficulties with her auditory memory and has problems comprehending and following instructions, as well as identifying words and sounds.
She has had speech therapy since she was 3 ½ years old. In more recent times this has been suspended while she undergoes some behavioural eye therapy.
X receives learning support in the classroom. The mother has actively and diligently pursued educational supports for X outside of the classroom as well. In addition to herself assisting X with reading and extra homework each day, the mother has arranged for X to receive tutoring.
But even with this extra support, X significantly struggles with her literacy and numeracy. She is achieving below her age expectations. She is going to need ongoing interventions and support to achieve her full educational potential; it looks like a challenging road ahead for her.
Y also has some learning difficulties; she also struggles at school and presently has below average results. The mother reads with Y on a daily basis, and assists her with additional reading and writing homework.
Y also has some difficulties managing anger and frustration; her behaviour can at times be challenging.
Z is an average student. But the mother still assists her by reading with her on a daily basis including helping her with “sight words”.
The mother has arranged for all three children to attend upon a psychologist sessions to help them manage their feelings, including anxiety, in the context of finding themselves in a separated family.
The mother submitted that the father has only a superficial understanding of the children’s developmental and support needs; that he is not sufficiently interested or engaged in those matters and that only she can provide them with the full spectrum of care that they require, particularly X.
I accept the Family Report writer’s description that:
45.The strengths of the mother are identified as her commitment to provide the children with an attuned, empathic and trustworthy parent who is highly motivated to source and ensure the children have access to all they could need in relation to all aspects of their health and extra-curricular activities…
I also accept the Family Report writer’s observations about the father’s parenting capacity:
55.The father’s views of the children are much more simplistic than the mother’s. When asked about their personalities, he initially described them collectively in terms of their interests and activities they enjoyed. With further encouragement he was able to comment on this, however the father presented as a concrete thinker and clearly struggled to articulate his views of each of them individually. The father had very simplistic views about the needs of the children in terms of emotional development for Y and educational and medical needs for X…
According to the Family Report writer, the subpoenaed Suburb H Public School records support the mother’s contention that in relation to X “the father has a limited understanding of the processes and support that will be required for her.” [10]
[10] Paragraph 58
During his interview, the father explained to the Family Report writer that X was a “slow learner.” (The father admitted that he was a slow learner himself at school but he said that when he got older things “just clicked” for him; he takes the same view in relation to X.)
Under the heading “Evaluation”, the Family Report writer opined that:
122.The father appears to have very limited insight into the children’s needs and while he appears to be able to provide the children with consistency, warmth and stability, the children require a parent who is attuned to their individual needs, with the capacity to facilitate them getting the support services that they need. The father’s ability to understand and effectively meet the developmental needs of the children is assessed as poor. This is demonstrated through his descriptions of their developmental needs and required supports, suggesting that he has a very basic understanding of this element of their care.
I broadly accept that evidence. But to be fair, those observations ought really be limited to X, and to a lesser extent, to Y. Z does not seem to have any particular allied health or support need at this stage, aside from having had some counselling from a psychologist.
The mother is much more attuned to the children’s care needs than the father is; their agreed post-separation roles reflect their mutual acknowledgment that the mother is the parent much better placed to meet the children’s support needs.
In saying these things, I do not want to be seen as overly downplaying the father’s vital parenting role. He spends quality time with the children and they benefit from that. He has a more “laid-back” parenting style than the mother does; the children benefit from being regularly exposed to both of their parenting styles.
To avoid doubt, I make clear that I consider both to be good parents.
Section 60CC(3)(h) – Aboriginality & cultural issues:
This consideration does not arise.
Section 60CC(3)(i) – attitude to the children and to the responsibilities of parenthood:
Both parents are devoted to their children.
They have been able to agree upon the post-separation parenting arrangements; they have largely shielded the children from their dispute.
Each parent properly values the other parent’s role in the children’s lives. The mother’s application to relocate is not motivated by any sinister desire to separate the children from the father. Nor is the father’s resistance to relocation motivated by any ill-will against the mother. Each parent is advancing proposals that they genuinely believe to be in the children’s best interests.
Section 60CC(3)(j) & (k) – family violence and related orders:
For the reasons given earlier, the family violence allegations do not assist me in arriving at a decision. There have never been any family violence orders.
Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely lead to the institution of further proceedings:
The father conducted the trial on the basis that he would not be relocating if the mother was successful.
Only in closing submissions did he concede that he will relocate in that event. In written submissions the mother vigorously objected to that change of position, citing a lack of procedural fairness given that the evidence had closed.
But while this is strictly true, the mother did not seek a re-opening of the evidence. Moreover, I do not see any substantive prejudice to the mother’s case. Parents commonly amend their proposals in the course of a trial or at the time of closing submissions; judges encourage this if it will narrow the issues or otherwise assist the court to craft a best interests outcome for the children concerned.
As the father has now foreshadowed his own relocation, and put forward a proposed fallback order which addresses that contingency, I am obliged to take it into consideration. In my view, the father’s belated expression of willingness to follow the mother and the children adds weight to her relocation argument. While there is inevitably some uncertainty as to exactly when and if the father might follow, and exactly how close by he will live, I consider that if the father did in fact follow the children then he would choose to live within a reasonable commuting distance of the Town C home so as to facilitate his proposed 5 nights per fortnight “fallback” arrangement.
Section 60CC(3)(m) – any other relevant fact or circumstance:
MRR & GR (supra) discussed “reasonable practicability” in the context of section 65DAA.
For reasons I will shortly give, I do not propose to order equal shared parental responsibility in this case; accordingly section 65DAA is not engaged.
Nonetheless, the feasibility and practicality of orders can potentially be a significant consideration for a court in the context of the catch-all provision - section 60CC(3)(m). The effect of orders upon a parent’s life and work circumstances (amongst other things) can be highly relevant to the best interests of the children concerned.
In my view the mother’s presently weekly travel burden is oppressive and unsustainable. Given the sheer amount of time she spends behind the wheel, there is a real and foreseeable risk of the mother becoming fatigued which may lead to another accident. Further, the amount of time she spends on the road must itself lead to a statistically higher risk of her being involved in an accident through no fault of her own (as has already happened.)
The mother has endured the travel burden to date because she wants to keep working for her Sydney-based employer. This is entirely reasonable.
Her work is specialised. She receives a base salary of around $123,000 per annum with the prospect of bonuses. Her employer offers reasonably family-friendly hours in that the mother works in the office from 9.30am to 2.30pm Monday to Friday, having every second Wednesday off. She has a good working relationship with management and is a valued employee, having worked for the business for 23 years.
There is no equivalent position for her in the greater City B region. I accept the mother’s evidence that working for her employer from home is not available to her as a full-time employee. While I consider that Employer N would be likely to “cut her some slack” given her past work history, she cannot expect to be given special or favoured treatment on a long-term basis. Her employer’s business has undergone a restructure; the mother holds a leadership position within her department’s team; she needs to be in the office to lead that team.
When challenged about not producing a specific individualised letter from Employer N confirming that the mother was unable to work from home, she explained that her employer is “quite litigious” and would thus be unwilling to generate such a letter. I accept that evidence.
I am therefore satisfied that in order to keep her current employment, the wife will have to keep commuting to Sydney. I also accept that, for financial reasons, the mother cannot revert back to part-time work with Employer N.
In my view the mother’s current travel burden is not “reasonably practicable” on a long-term basis.
The father impliedly concedes as much. Though at trial he had initially pressed for a continuation of the current parenting arrangement, he has since sensibly retreated from that.
Short of continuing that unsustainable commute, the mother would have to source other employment in the greater City B region. But her specialised skillset is such that there will be much fewer employment options available. Perhaps most significantly, her likely income would reduce to something in the order of $70,000 - $80,000 per annum. This would be a substantial reduction in the wife’s base income, without even allowing for bonuses with her current employer.
The mother would be making a substantial economic sacrifice and the long-term ramifications would be enduring.[11] They would not only impact the mother financially, they would also impact her capacity to financially provide for the children in the manner she had done to date. Past history shows that it is likely that the mother will continue to bear a disproportionate share of the children’s support costs, which she will be much less able to do with a lower income. The older children, especially X, are at real risk of this additional support being reduced.
[11] One example is the reduction in her employer-funded superannuation contributions
Though the mother has shown admirable stoicism to date, I consider that she would deeply resent an outcome which so disadvantages her. I consider that over time it would likely have an adverse impact on her capacity to cooperatively and constructively co-parent the children with the father. She would be deeply unhappy and resentful of the father.
Weighing up the competing proposals:
Though truisms, each family is unique and each parenting case must turn on its own facts. But so-called “relocation” cases pose particular challenges.
In Zahawi & Rayne [2016] FamCAFC 90, the Full Court (comprising Thackray, Murphy & Austin JJ) made a number of observations about relocation cases.
The Full Court said (omitting footnotes):
47. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U:
…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
48. “Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
In Adamson & Adamson (2014) FLC 93-622 a differently constituted Full Court (Ainslie-Wallace, Murphy & Kent JJ) held at paragraph 66 of their Honours’ reasons that the right of a parent to live where he/she wants to, and the freedom of mobility of that parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference. Even then the interference is legitimate only to the extent necessary to avoid such adverse effects.
Returning then to the present case, one thing is clear: the current co-parenting arrangements cannot continue. As change is inevitable, the mandatory consideration in section 60CC(3)(d) – likely effect of any change of circumstances – looms large.
Which parenting proposal is in the best interests of these particular children?
If the children remain living in the greater City B region in an equal time arrangement as the father seeks, then there are obvious advantages to them. They can spend a whole school week and a weekend with each parent. They can continue to attend their current school, maintain their friendship groups, their regular interaction with the paternal grandparents (and other paternal family members) and their substantial extra-curricular activities without interruption.
Superficially this looks ideal for the children, but on a closer inspection it is not so.
Unless the father decided to substantially “step up” in terms of his week-to-week support of the children’s educational and allied health needs, something for which he is ill-equipped, the likely outcome is that those supports will diminish. This would not be a good outcome for X or Y.
It is likely that the mother will end up booking as many allied health and other appointments for the children during her own time with them. But this will not always be possible; the mother will only have half of the available school days available to do so. This is likely to significantly fan the flames of resentment and hurt the co-parenting relationship and in turn the children will suffer - particularly if for economic reasons the mother did decide to stay working for Employer N and to keep commuting long distances each week.
I also refer back to the “reasonable practicability” matters already mentioned in the context of section 60CC(3)(m).
In summary, I do not consider that the children would have their full range of support needs met if both parents lived in an equal time arrangement in the greater City B area; I do not think that the co-parenting relationship would be particularly amicable. The mother will have had to make all of the sacrifices, personal and economic. This is a very big ask. In my view she would not cope particularly well, particularly given she would also be “losing” effective control over the children’s week-to-week school routines. This would be an especially bitter pill for her given that she has sacrificed her own quality time with the children since separation purely so as to ensure that their needs have been met.
In my view this scenario would likely adversely impact the quality of the mother’s parenting capacity, and her capacity to co-parent with the father in an effective way. The children, who have been largely shielded from their parents’ conflict to date, are at real and enduring risk of exposure to it. This would not be in their best interests. The economic cost to the mother’s household would also be substantial and would only exacerbate the tensions between the parents as to the cost of the children’s allied health and support needs.
I add that the mother’s deep unhappiness would be real and objectively soundly based given that her choices would be to either work locally (stunting her career and sacrificing substantial income), or continue an unreasonable weekday commute but without even the ‘consolation’ of being able to effectively control and manage the children’s extra needs.
Though in greater City B the children would get to spend weekends with the mother and would have both parents living close by, I consider that, overall, such an order would not be in the best interests of the children.
If the mother relocates with the children to western Sydney, they will have to start at a new school and make new friendships. They can continue their extra-curricular activities, albeit with different children, clubs, teachers etc.
The mother accepted that the children enjoy their present school and that they have lots of friends there. [12] They certainly have a number of friends and seem to be reasonably popular and socially active children. The mother acknowledged that the children would be very distressed about moving away from their friends.
[12] The father sets out their friendships in paragraph 150 of his affidavit
In terms of extended family interaction, the children would lose the paternal family week to week and instead gain the maternal family.
I consider that the children would adjust, though it would be challenging.
They would benefit from having the mother more available to them physically and practically. There would be no more 5am starts but they may still have to get up reasonably early.
In that respect I need to address one disputed fact – namely the mother’s likely commute time to work from Town C. The father’s evidence was that, given Sydney traffic, her travelling time would be much the same as it is now from the Region M. This is, it would take around 2 ½ hours each way. This was said to be based on his own driving experiences when the parties lives at Town C between 2008 – 2012.
The mother disagreed; she asserted that the commute was around 50 – 60 minutes each way.
Unhelpfully, neither party had driven the relevant route in more recent times.
Just as unhelpfully, and particularly given the obvious spirit of Division 12A of the Act, the parents stubbornly refused to reach consensus as to the travel time. This was despite my encouragement and with the benefit of experienced legal representatives.
The father submitted that I could simply take “judicial notice” of the likely traffic difficulties driving through Sydney in peak hour. But while there is potential merit in this, it is also the case that Sydney roads are upgraded regularly or semi-regularly over time so as to manage traffic increases – the success or otherwise of which is best determined by someone who has lived the experience recently – which neither parent had.
In the circumstances, and over the strident objection of the father’s counsel, I allowed the mother to tender a “Google Map” showing the estimated travel time by motor vehicle between the two locations. I treated the map as being a “business record” and thus admissible under the Evidence Act.
The map gave an estimated travel time by motor vehicle of between 59 minutes (fastest route with tolls) and 66 minutes (slower route but without tolls).
Notably the map did not disclose one highly relevant matter – namely the time of day at which the travel was to occur. The map did however disclose a “travelling time by train” option wherein it showed a train departure time of 1.32pm. On that basis I infer that the travel time by motor vehicle was based on a similar departure time – around the middle of the day –certainly not “peak hour” on any view.
Peak hour” traffic could certainly take much longer. But thinking practically about things, the mother would logically try to avoid or limit driving in peak hour as much as possible. As she finishes work in the office at 2.30pm she will seemingly avoid peak hour on the return trip. Given her 9.30am start time she may encounter some peak hour traffic on the way in.
On balance I am satisfied that her driving time each day will be substantially less than from greater City B or the Region M, and probably in the order of 2 – 2 ½ hours in total. Objectively this is still a significant travel burden but it is manageable.
In terms of schooling, there is a public school some seven (7) minutes’ drive away from Town C. There is also a grammar school some 30 minutes away by bus. I accept the mother’s evidence that, having made proper enquiries, both schools offer appropriate learning and related opportunities for the children.
The Grammar school fees would be in the order of $15,000 per annum which the mother can afford if she is at Town C given her significantly reduced fuel and OOSH bills each week and the fact that she can pay off her home mortgage rather than paying “dead” rent. She calculates that she will be saving around $450 per week in total which I broadly accept, save that she may have overestimated her fuel savings given that her travel time is likely to be a little longer than she had estimated.
But even if the Grammar school proved to be unaffordable, the local public school is a perfectly acceptable option. The Family Report writer was clear in her evidence that most public schools would be able to satisfactorily handle these particular children’s educational needs.
The mother would have access to more support from family and friends, albeit that they all live around an hour away from Town C. She will have a couple of extra hours available to spend with the children each weekday to assist them with their support needs.
If the father did not follow, the most difficult issue for the children would be their loss of their weekend time with him. They would find this challenging, especially in the short to medium term.
Electronic communication with the father, and spending a larger “chunk” of the school holidays with him would go some way towards assisting the children to adjust.
But to be clear, the relationship the children have with the father is well-established and not at risk. It would remain meaningful at a distance. I do however consider that alternate weekends with the father would be better for the children than every third weekend. Though it would involve somewhat more travel, alternate weekends would better promote the relationships and assist the children to maintain their local connections with the paternal family and friends.
It would be better for the children if the father followed them to western Sydney. This would enable him to maintain more regular and substantial time with the children. His work flexibility is potentially helpful to him in this respect. His proposal that he spend 5 nights per fortnight with them is a more child-focussed outcome than the mother’s Friday – Monday weekend proposal. While 5 nights would encroach on the mother’s time and capacity to meet the children’s allied health and support needs, she would still be in a good position to provide for those things while still maximising the father’s time with the children.
Put another way, while the children would maintain a meaningful relationship with the father even if he stayed in the greater City B region, something close to an optimum arrangement can be achieved if he follows.
In closing, it is not in the children’s long-term best interests that they live in an equal time arrangement in greater City B. The optimum result in their best interests would be to allow the relocation and implement the father’s 5 nights per fortnight proposal; failing this their best interests will be best served by the father’s proposed alternate weekend arrangement.
Applying the statutory pathway:
Given the statutory pathway set out in section 65DAA, it is convenient to first consider the allocation of parental responsibility.
The parties both conducted the case as though the presumption applied.
The mother had initially sought an order for equal shared parental responsibility. But by the time she spoke to the Family Report writer her position had changed.
At trial she set out to rebut the presumption by contrary evidence. She pointed to always having been the proactive parent in terms of arranging for the children’s allied health and support needs; that the father has been disinterested or uninvolved; that he has been financially recalcitrant about such matters; and that the communication between the parties is generally somewhat strained and difficult. She contended that decisions needed to be made and that it would be in the children’s best interests that she be able to just “get on with it.”
The father’s submission was that his non-involvement was a consequence of the mother unfairly excluding him from decision-making, particularly in relation to allied health matters. He took exception to the Family Report writer querying whether an order for equal shared parental responsibility may fail because the father might behave in an oppositional manner in relation to future decision-making about allied health matters. He submitted that there was no evidence that he had behaved in an oppositional way; he contended that he had effectively gone along with whatever the mother had decided. There is force in that submission.
The father also pointed to the fact that the parents had been able to reach agreement about the post-separation parenting arrangements, save for the relocation issue.
There is some merit to what each parent says. The mother paints a somewhat bleak picture of their communication which tends to downplay the significant areas of agreement/acquiescence by the father; the father paints an overly rosy picture which downplays the yawning gap between what each parent contributes towards the children’s support and allied health expenses and largely ignores the hard reality of the mother’s week-to-week existence.
In the end, I consider that equal shared parental responsibility has only worked in relation to the children’s support and allied health needs because the mother has done the necessary groundwork, made the decisions and met the bulk of the associated expenses. As to those matters she has always been dedicated, efficient and actively engaged. As to the children’s health issues, she has effectively been exercising sole parental responsibility in a de facto sense for a long time.
I asked the Family Report writer about the benefits to the children of the father having the opportunity to be more involved in their allied health and support needs during the school week. Her evidence was that the difficulty would arise in relation to the necessary “follow-up” appointments / work that would be required. I asked her why the father couldn’t be given the opportunity to do that follow-up work and she was quite firm that the father could not be relied upon to do what was necessary given that his understanding and attitude towards the children’s needs was so different to the mother’s.
The Family Report writer did accept that both parents had close and loving relationships with the children and she accepted that equal shared parental responsibility was an aspect of each parent’s “meaningful relationship” with the children. She nonetheless considered that the court should vest sole parental responsibility in the mother given the parents’ different attitudes, their communication issues and the mother’s much deeper understanding and commitment to meeting the children’s health and support needs.
I broadly accept the Family Report writer’s evidence. However, I am of the view that the children’s best interests would be best served by a hybrid order whereby the mother has sole parental responsibility but limited to matters concerning the children’s health and education only.
In respect of education, as my orders will provide for the children to relocate to western Sydney I consider the mother will be far better placed to make the relevant decisions. She will carry most of the practical burden in ferrying the children to and from school; the father also admitted he had not looked into either Sydney school the mother had suggested from which I infer that he trusts her decision-making. The mother is also best placed to arrange for any necessary tutoring support for the children.
I consider a hybrid order would be in the children’s best interests as it would enable their needs to be met efficiently, effectively and without conflict. The mother’s sole parental responsibility will be subject to an obligation to inform the father in advance of decisions and invite his input. Such an order would keep the father involved.
I see no reason to vest the mother with sole parental responsibility in respect of any other major long-term issues of the children. The children’s names are agreed, there are no religious or cultural issues that have arisen; and after this case is decided it would not be in the children’s best interests that the mother be able to make unilateral changes to their living arrangements where such changes would make it significantly more difficult for them to have a relationship with the father.
Living and spending time arrangements / relocation:
As I am not proposing to make an order for equal shared parental responsibility, the statutory pathway in section 65DAA falls away. It is simply a “best interests” question.
The current situation is unsustainable and not in the children’s long-term best interests.
In my view it would be in their best interests to relocate with the mother to western Sydney and that their relationship with the father be facilitated by:
(a)if he remains living at a distance - alternate weekend visits and increased holiday time with him;
(b)if he follows - 5 nights per fortnight with him. This gives the children the opportunity to maintain quality time with the father. To the extent the mother’s capacity to support the children’s learning may be somewhat impinged, any disadvantage will be offset by them having the benefit of that quality time. The mother will still have ample opportunity in her own time to arrange allied health appointments.
As to (a), alternate weekends strikes the best balance in terms of the children’s relationship with the father. No doubt over ensuing years he will need to be mindful of their extra-curricular activities and will need to show some flexibility; maybe some weekends he will visit them instead or perhaps he and the mother can swap weekends. They will have the capacity to arrange that, particularly as the children get older.
While the father lives in greater City B the handovers should be at an appropriate “middle ground”. I prefer the father’s proposed handover locations; given that his time ceases on a Sunday I see no difficulty in the mother travelling a little further on that day. It is a small price to pay in all the circumstances.
If the father follows them to western Sydney, I reject the mother’s proposal that he must live within a 40 kilometre radius before a 5 nights per fortnight arrangement comes into force. In my view it will be sufficient that the father lives within an hour’s drive of the mother. The children will cope with an hour’s drive to or from school, particularly where it will only be for 5 trips out of 20 each fortnight.
In this respect the parties can deploy some common sense and practicality. The mother must be mindful that the father needs to live at a place where he can himself commute to and from work; the mother needs to be mindful that it will be a significant undertaking for the father to follow and that she needs to show some flexibility. So while the order will require that the father lives within one hour’s drive I would urge that the parties not “split hairs” as to a few extra minutes in either direction.
I also consider that it would be in the children’s best interests that the mother not relocate the children until end of term 2 school holiday period, so as to give the children time to adjust and to say goodbye to their school friends at Suburb H. A slight delay is bearable and will enable a more orderly transition for everyone.
Pending the relocation, the current arrangements should continue.
Conclusion:
For these reasons the court makes the orders set out at the commencement herein.
I certify that the preceding two hundred and thirty-one (231) paragraphs are a true copy of the reasons for judgment of Judge Betts
Associate:
Date: 18 May 2021
CORRECTIONS (8 June 2021)
Order 10 (a), changed from “During school terms from the conclusion of school or 3pm Wednesday until the commencement of school or 9am Monday” to “During school terms, each alternate week from the conclusion of school or 3pm Wednesday until the commencement of school or 9am Monday”.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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