Foxley and Foxley
[2018] FCCA 1165
•10 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FOXLEY & FOXLEY | [2018] FCCA 1165 |
| Catchwords: FAMILY LAW – Parenting – 3 young children – father lives in Town 4 – mother lives in Town 5 – relocation – best interests. |
| Legislation: Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA, 69ZT Evidence Act 1995, ss.55, 135, 136, Parts 3.2 and 3.8 |
| Cases cited: Banks & Banks [2015] FamCAFC 36 Sayer & Radcliffe & Anor [2012] FamCAFC 2096 Starr & Duggan [2009] FamCAFC 115 |
| Applicant: | MR FOXLEY |
| Respondent: | MS FOXLEY |
| File Number: | DUC 125 of 2017 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 4, 5 and 6 September 2017 |
| Date of Last Submission: | 30 October 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 10 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kenny |
| Solicitors for the Applicant: | Campbell Paton & Taylor |
| Counsel for the Respondent: | Mr Blithery |
| Solicitors for the Respondent: | Gillard Family Lawyers |
ORDERS
All previous orders are discharged.
The parents shall have equal shared parental responsibility for the children [X] born 2011, [Y] born 2013 and [Z] born 2014.
The children shall live with the mother.
The children shall spend time with the father as agreed between the parents in writing, and failing agreement as follows:
(a)For the first half of each school holiday period in even numbered years;
(b)For the second half of each school holiday period in odd numbered years;
(c)If the father is able to travel to Town 5 or within a 20km radius of where the children and the mother are living for the purpose of spending time with the children, then the children shall spend time with the father at that location each alternate week for no more than 5 days as nominated by the father on 28 days’ notice to the mother. Upon being provided such notice the mother must not unreasonably withhold the children from the father.
All changeovers for the purpose of orders 4 (a) and 4 (b) are to take place in Town 6 with the mother to deliver the children to the father at the playground in Town 6 at the commencement of the time and the father to return the children to the mother at the same location at the conclusion of time.
The parent not spending time with the children shall be at liberty to have telephone/Skype contact with the children each night between 6.30pm and 7pm.
Each party is restrained by injunction from denigrating the other party, or members of the other party’s family to or in the presence of the children and shall immediately remove the children from the presence of any other person doing so.
Each party may obtain from the children’s school or day care centre, copies of school reports, newsletters, order forms for school photographs and other information normally provided to parents and may attend events at the children’s school or day care normally attended by parents.
Each party is to behave respectfully to the other at school functions and not attempt to discuss personal issues including issues relating to the children with the other parent at school functions.
Each party is to provide authorisation to any medical practitioners of the children to allow all parties to have direct access to the child’s health and medical records.
Each party shall advise the other as soon as reasonably practicable in the event that any of the children while in their care are involved in an accident or medical emergency requiring treatment at hospital or are diagnosed with a serious illness.
Each part shall advise the other of a change of address or contact telephone number within 24 hours of a change occurring.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Foxley & Foxley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
DUC 125 of 2017
| MR FOXLEY |
Applicant
And
| MS FOXLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant father and the respondent mother have three children together. They are:
a)[X] born 2011;
b)[Y] born 2013; and
c)[Z] born 2014.
The Court is asked to determine where the children should live and what time they should spend with the parent with whom they are not living. The difficulty for the children is that their parents are currently living a significant distance apart from each other, making any proposal for the children to live in a shared care arrangement or an arrangement where they would be spending significant and substantial time with the parent with whom they were not living not just impractical, but impossible.
At the date of hearing, the father was living in Town 4 and the mother was living in Town 5, a travelling distance[1] of some seven and a half hours.
[1] by car
Issues for determination
Both parents want the children to live with them, and are seeking orders to this effect. They each then in turn seek that the children spend time with the other parent in a practical manner given the significant distance between the parties’ residence.
The children at present live with the father in Town 4, where they have been living since April 2017. They were for a period of time after separation living with the parents in a shared care arrangement and thereafter with the father in Town 1.
There are significant differences in the parties’ cases in respect of how the children came to live with the father after the parties’ separation. From the perspective of the children’s best interests, the determination of these matters is important because it reflects on the parties’ capacity to provide for the needs of the children and their insight as parents, as well as the allegations of family violence.
Relevant Legal Principles
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. The central enquiry is for the Court to determine the outcome that will be best for the children the subject of the proceedings.
The children’s best interests are ascertained by a consideration of the objects and principles in s.60B and the primary and additional considerations in s.60CC.[2]
[2] Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 at [9]; The Full Court in Goode v Goode[2] mandated that the legislative pathway must be followed in all parenting cases. The High Court in MRR v GR [2010] HCA 4 affirmed the legislative pathway
In Starr & Duggan[3] the Full Court stated that the legislation does not mandate consideration of the relevant sections in any particular order. The Full Court in McCall & Clark[4] also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be dual consideration of some matters. This is so because consideration of the s.60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals.[5] Consideration does not mean discussion.[6]
[3] [2009] FamCAFC 115 at [38] per Boland, Thackray & Watts JJ
[4] [2009] FamCAFC 92
[5] See discussion in Starr & Duggan [2009] FamCAFC 115 at [35]-[36]
[6] Banks & Banks [2015] FamCAFC 36 at [39]; Howard & Howard [2016] FamCA 455 at [45] not disturbed on appeal
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests.
In the event that the Court orders the parties to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the children spending equal time with the parents. If the Court finds that it is not in the children’s best interests or reasonably practicable, then the Court must consider the children spending substantial and significant time with the parents.
The High Court held in MRR v GR[7] that:
s 65DAA(1) “is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent”. The Court held further that s 65DAA(1)(b) “requires a practical assessment of whether equal time parenting is feasible”.
[7] (2010) 240 CLR 461 at 467 [15].
The application of the statutory provisions in the context of relocation cases has been discussed by many authorities. The Full Court in Malcolm & Munro[8] approved what was said by Justice Boland in Morgan & Miles[9], particularly at paragraphs 79 to 81, where her Honour said as follows:
[8] (2011) FLC 93-460
[9] (2007) FLC 93-343
79. In considering whether the child should live with the parent who proposes to relocate a court:
Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
80. It follows from my exposition of the legislation, that earlier core principles:
that the child’s best interests remain the paramount but not sole consideration;
that a parent wishing to move does not need to demonstrate “compelling” reasons;
that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.
81. What the legislation now requires is:
consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
In Sayer & Radcliffe and Anor[10] the Full Court discussed the approach to be taken when a parent is seeking to relocate as follows:
It is now well established principle that whilst some special requirements may apply, relocation cases are guided and judicial officers are bound by the same legislative pathways as other parenting cases under the Act. In other words relocation is not to be treated as a discrete issue in the making of parenting orders ... A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents … It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway. (citations omitted)
[10] [2012] Fam CAFC 209 at [47]
In Heaton v Heaton[11] the Court held that what is required in relocation cases is for the Court to determine the children’s best interests by reference to the well-known “primary” and “additional” factors referred to in s 60CC in the light of the competing proposals of the parents.[12]
[11] (2012) 48 Fam LR 349 (“Heaton”) at [32].
[12] cited with approval in Boyle & Zahur& Anor (No.2) [2017] FamCAFC 263 at [34]
Decisions in respect of children’s best interests and decisions in parenting proceedings are discretionary, with such discretion to be exercised within the legislative framework. It is apposite to be reminded of what the High Court has said in respect of the Court’s discretion in this regard, namely that parenting cases “necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof.”[13]
The evidence in [parenting] cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions.[14]
[13]CDJ v VAJ (1998) 197 CLR 172 at 219 [151]; [152] per McHugh, Gummow and Callinan JJ.
[14] ibid Cited with approval in Boyle v Zahur & Anor (No.2) [2017] FamCAFC 263 at [14]
Furthermore, the High Court[15] has relatively recently stated, being a reminder of the discretionary nature of parenting decisions, that[16]:
A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child. (references omitted)
[15] Bondelmonte v Bondelmonte and Another [2017] HCA 8 at [32]
[16] These were obiter comments in the context of an appeal with considerations different to the present case
Parenting cases are always difficult. Determining where children are to live in circumstances where the parents live significant distances apart, is even more difficult. The competing proposals in this matter were finely balanced. While it may be seen that the orders the Court makes in one sense reward bad behaviour[17], this is not so. It is the children’s best interests which are the paramount consideration, and after a careful balancing of the relevant considerations as explained further below, the Court has come to the determination as set out in the forefront of these Reasons for Judgment.
Findings of Fact
[17] In the sense that the father has moved the children’s residence unilaterally
A note on the evidence
The conduct of parenting proceedings is governed by Division 12A of Part VII of the Act. One of the guiding principles is that the proceedings be conducted with as little formality and legal technicality and form as possible. Furthermore, Parts 3.2 to 3.8 Evidence Act1995 (Cth) do not apply to child related proceedings[18]. However, the evidence still needs to be relevant to be admissible, and evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding.
[18] S69ZT Family Law Act
The Court’s powers pursuant to, inter alia, sections 55, 135 and 136 of the Evidence Act remain. Objections to evidence may still be taken although in these proceedings no such objections were taken.
It is of little assistance to the Court, simply because certain provisions of the Evidence Act are excluded by virtue of s69ZT, that evidence in chief contains various opinions without basis[19] or is drafted as if it were a submission. Affidavits should contain assertions of primary fact only. This is so even if certain provisions of the Evidence Act are excluded.
[19] Which would otherwise be excluded by s76 Evidence Act
As the High Court[20] has held:
The uncritical reception of inadmissible evidence, often in written form and prepared in advance of the hearing is to be strongly discouraged. It tends to distract attention from the real issues, give rise to pointless cross-examination and cause problems on appeal where it may be difficult to know the extent to which the inadmissible material influenced the judgment at first instance.
[20] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 at [35]
Further difficulties arise in respect of expert evidence, where the expert does not clearly articulate the basis of an opinion or otherwise the facts which were assumed in coming to a particular opinion. In these proceedings the expert was vigorously cross-examined. It is not for the cross-examiner to elicit from the expert the basis of the opinion; this is something which should be plain on the face of the report otherwise the report may well be objectionable.
The evidence in these proceedings was lengthy. The Court, in its Reasons, has not referred to each single assertion, whether factual or by way of an opinion, made by each of the parties and their witnesses. The reasons refer to the most pertinent facts and while there might not be specific mention of each evidentiary dispute and each legal argument made on behalf of the parties, such matters were certainly considered.
Background
The parents are both in their early thirties. They met in 2006 and started living together in 2007.
At the time the parties commenced cohabiting the mother had been living in Town 5, New South Wales. Almost immediately and in approximately 2007, the parties moved together to Town 3 in Western Australia after the father obtained employment there.
In 2008, the parties purchased their first home together in Town 3, Western Australia. They lived in this property until 2010.
The father’s employment in Town 3 was initially a residential placement until the last year when he worked on a fly-in fly-out basis.
The parties moved to Town 5 in 2010, where they lived until 2013. During this period, [X] was born on 2011 and [Y] was born on 2013.
Between 2013 and 2014, the parties and the two children lived in (country omitted), having moved there in order for the father to again work in (employment omitted). This was a decision made jointly by the parties.
In 2014, the mother and the children moved from (country omitted) to Town 5, Australia, leaving the father behind to continue working. He returned to Australia in 2014. He then again obtained a fly-in fly-out position at Town 3. [Z] was born on 2014.
In 2015, the father told the mother that he found the fly-in fly-out work to be unsuitable due to his absences from the children and the family. The parties agreed for the father to look for a residential placement in New South Wales.
Shortly thereafter, the father obtained casual but full-time work in Town 4 on a week-on week-off basis, with a progression to a permanent full-time residential placement. The parties were both of the view that it was in the family’s best interest for the father to pursue this position. As such, the parties agreed for the whole family to move to Town 4 and commence living there from February 2016. During the period which followed, the mother and the children travelled to Town 4 from time to time, and the parties made enquiries as to local day care and preschools. In 2016, the father’s role at the (employer omitted) was made redundant and consequently the family continued living in Town 5.
In June 2016 the father accepted a three year contract for residential work in Town 2. The parties agreed to move to Town 1 so the father could take up this employment opportunity. The move occurred in July 2016.
The family relied on the father’s income and important decisions in respect of where the family would live were based on the availability of work for the father such that he could support the family financially.
The mother has not been in full-time employment since 2010. Between that time and about 2011 she worked casually until she went on maternity leave ahead of [X]’s birth. After separation the mother has chosen not to return to full-time work. Instead has enrolled in tertiary studies and is in receipt of Austudy Allowance from Centrelink.
The mother says that her capacity to undertake paid employment during the next three years will be very limited while she is completing her university degree. As part of her on-line tertiary study commitments, which includes attendance at some lectures and tutorials on campus, the mother is required to undertake placement shifts at a hospital. She is studying to be a (occupation omitted). Her attendance pattern at university varies from semester to semester.
At the time of final hearing, the mother was living with the maternal grandmother, albeit she was in a serious relationship with Mr S at whose home she stays from time to time. Long-term the mother would like to reside with Mr S.
At the time of final hearing, the father was working and living in Town 4. He was employed on a full-time basis with a 7 day on, 7 day off roster, being a residential placement.
Mother’s Move from Town 1 to Town 5
Immediately prior to the family moving to Town 1, indeed in the week of that move, the father came to know that the mother was having an extra-marital affair with Mr S.
The father was also, at about that time, concerned about the mother’s mental health, which he considered was compromised at the time.
The move to Town 1 went ahead and within a day of moving the mother told the father that she was not happy and that she wanted to return to Town 5.
In August 2016, the mother left Town 1 and returned to Town 5. She stayed with a friend for a period of two weeks.
The children remained living with the father in Town 1. At the time, [Z], the parties’ youngest child, was still being breastfed and during the period of time the mother was away, [Z] was weaned off the breast.
In that period of two weeks, the mother did not spend any face to face time with the children, although she did speak to them on Skype. When she returned to Town 1, she initially indicated that she would stay, but after a short while, confirmed her feelings that the marriage was over and that she wanted to be with Mr S. Thereafter the parties separated.
On 23 August 2016 the parties signed an agreement in respect of the children’s parenting arrangements. They agreed for the children to remain living in the family home in Town 1 and for the parents as much as possible to have a 50/50 arrangement of spending time with the children. This arrangement involved the mother travelling between Town 1 and Town 5 every second week and staying in the former family home while the father worked for the week. When the father had the week off work, the mother travelled back to Town 5 and the children lived with the father.
Such arrangement remained in place until approximately 9 January 2017 when the mother informed the father that she was no longer willing to travel to Town 1 to spend time with the children in accordance with the agreement the parties reached in August 2016. She also sent the father a text to the effect:
I want to live here in Town 5 with the kids. I don’t want to be in Town 1 anymore. It makes me miserable there.
The father responded with:
OK we can work towards that. But there has to be changes from you.
The difficulty for the Court is that not all of the text messages exchanged between the parties on the day are in evidence. The mother’s evidence contains texts sent in the morning and the father’s evidence contains texts sent in the afternoon. There appear to be missing texts as the conversation between the parents does not quite gel. On the one hand the mother says in the morning that she wants the children to live with her in Town 5, but then by the afternoon she is asking the father to urgently look into day-care arrangements for the children for the weeks when the father is working because the mother was not willing to come to Town 1 any longer to look after the children during those times.
Certainly the Court accepts that the mother made known to the father that she did not want to go back to Town 1 and that she wanted the children to live with her in Town 5. The father did not consent to the children moving to Town 5 but he was not completely closed to the idea. The difficulty for the father was what he saw as the mother’s concerning behaviour, which was discussed with the maternal grandmother in a series of text messages in late December and early January.
The maternal grandmother’s evidence in cross-examination was that her opinion of what the mother had been going through at that time has changed based on subsequent conversations with her daughter. That is, she no longer believed the father about what he had been telling her about the mother’s behaviour, but rather believed her daughter as to the parties’ dynamics at the time.
This does not mean that the father’s subjective beliefs as to the mother’s behaviour were unfounded, it simply means that the maternal grandmother’s subjective views about the matters subsequently changed. The Court accepts that the father was genuinely concerned about the mother’s wellbeing after separation, and more so because of the children’s relationship with the mother.
Children’s move from Town 1 to Town 4
In about 2017, the father applied for and obtained a full-time position in Town 4. He did not tell the mother that he was considering moving or indeed that he was planning to move with the children at the time that he applied for the role.
The father commenced proceedings in the Federal Circuit Court of Australia on 10 April 2017, seeking, inter alia¸ for the children to live with the father. Prior to this, the father had initiated a mediation process in order to see if the parties could reach agreement about the children’s living arrangements.
On 11 April 2017, the father’s solicitors sent correspondence to the mother’s solicitors confirming the parties’ agreement that the children would spend time with the mother during the school holidays from 14 April 2017 to 23 April 2017. However, the father sought from the mother an undertaking that the children would be returned at the conclusion of that period. This was done at about the same time as informing the mother that the father intended to move or indeed had moved with the children to Town 4.
The undertaking was not provided and the parties did not reach agreement about the children spending time with the mother until the matter was before the Court on 4 May 2017.[21] At that time, the mother pressed for an interim hearing in respect of the children’s living arrangements, and the matter was set down for interim hearing on 16 May 2017.
[21] The children did not spend any time with the mother for about 6 weeks.
On 16 May 2017 interim orders were entered into by consent for the children to live with the father and spend time with the mother.[22] The mother elected to resolve the interim proceedings in favour of an expedited final hearing in recognition of the limitations in the interim hearing process.[23]
[22] The agreed terms were noted to be “without prejudice”
[23] Notation to Orders
Allegations of Family Violence
The mother alleges that the father was coercive and controlling towards her during the entirety of the parties’ relationship. She asserts that such behaviour manifested itself in the various moves of the parties’ residences and ultimately in the children remaining in Town 1 at the time of the parties’ separation.
Dr S[24] notes as follows:
In the period after the couple separated, the children remained living in the care of Mr. Foxley at his demand and on reflection, Mrs. Foxley suggested that she should not have agreed to this but she felt so controlled by Mr. Foxley, in addition to no doubt guilty about her actions that resulted in the breakdown of the marriage that she did not take any action and the children remained in the care of the father.
[24] Paragraph 241 of Expert Report
The evidence does not support any finding that the father engaged in coercive and controlling behaviour as alleged by the mother or that the children remained living in the father’s care after separation “at his demand”. The parties’ separation was a difficult time for the parents. It is a finding of the Court that they both acted in what each believed was the children’s best interest with their own reasons behind doing so.
The father alleges that the children are at risk of being exposed to family violence if they were to live with mother due to the incident between Mr S and his wife on 2017.
Mr S was not an impressive witness.
While the incident on 2017 was not a one-off incident, and Mr S was not behaved in a child focused manner not only towards his own children but more importantly towards the children of the parties herein, the Court does not find that there is any unacceptable risk of harm to the children as a result of this incident or ongoing.
Relevant Considerations
Children’s views and Relationships
The children are still very young, and it was only the view of the oldest child that was elicited by the expert. [X] stated that she likes both parents and enjoys spending time with both her parents. She claimed however, that she would like to reside in Town 5 with her mother so that she could see her more often. Given [X]’s age, Dr S did not place substantial weight on these expressed wishes.
However, the Court does take note of those wishes but given the child’s age infers from those expressed wishes that [X] is missing her mum and being with her mum, particularly in circumstances where she has had the longest experience of living with both parents and having the mother as the children’s primary carer.
All three children have strong relationships with both of their parents. Both parents are capable and loving, and have met the children’s physical needs. Dr S’s evidence is that the mother is the parent who is more emotionally expressive, slightly more engaged and connected with the children than the father.
Dr S was also of the opinion that if the children’s needs for attachment security are not prioritised, there is a risk of psychological harm that whilst the children are seeming functioning well now, may manifest later, including with respect to their mental health and interpersonal functioning. Dr S also opined that the children’s primary attachment was to the mother, although they have strong attachments to the father.
The mother is in a new relationship, which at the time of hearing was still in the early stages. While both the mother and Mr S spoke of a long-term commitment, they had not yet started living together. Both the mother and Mr S were in the process of separating from their spouses. In addition, Mr S is the father of three boys who are aged between two and seven. The children’s relationship with Mr S’s children was the subject of some very limited evidence.
The mother’s long term plans are to live with Mr S. Such an arrangement will have a significant impact on the children, not only because they would be living with Mr S as well as the mother, but also because they would from time to time be living with Mr S’s children as well. These relationships all remain untested.
Parental Attitudes
In a text message sent to the father on 30 August 2016 the mother stated as follows:
I want to rewrite on the parenting plan you need to change the way you parent the kids because I’m sick of dealing with the spoilt brats because of the way you parent them
Fucking over it hey they weren’t nearly as bad as this before you took over as the primary carer. Stop fucking spoiling them and buying them shit and giving into them constantly it’s fucked and they’re horrible spoilt children who throw a tantrum every single…
Clearly as at the date of that text message the mother was frustrated with the children’s behaviour and she blamed the father for it. The text message is a concession by the mother that as at late August 2016 the father was the children’s primary carer. While this may have been something the mother conceded in that text message, the fact is that she was still living with the children for a week a fortnight. Therefore, the primary carer role had not solely shifted to the father. It was only after the mother stopped going to Town 1 from about January 2017 that the father became the children’s primary carer, and he has remained so to date.
What is confusing is that the mother indicated in that text message, which was sent very early on after the primary care arrangements shifted, that she wanted the parenting plan changed. For reasons which are unexplained she did not follow up on that – except that by January 2017 she had confirmed that she wanted the children living with her in Town 5. The Court notes that it is the mother’s case that this had always been her intention, even as early as August 2016 when the parties entered into the parenting plan. The father denies being told by the mother of her intention until January 2017.
Ultimately, the Court accepts that each of the parties has wanted the children to live with them post separation.
It was submitted on behalf of the mother in respect of her move from Town 1 to Town 5 that it was incredibly important for the Court to look at the mother’s options upon separation. It was submitted on behalf of the mother:
The Mother would not have been able to stay in Town 1 on a fulltime basis unless it involved living separated under one roof with the Father. The parties had no family, close friends, or other supports there. The parties had never lived there previously. The mother had no job there. They had only very recently moved. There was no way she could have secured accommodation in Town 1 separate to the Father at this juncture.
The fact is that the mother could have remained living in Town 1 at the time of separation, even if it was in the first instance being separated under the one roof with the father. The father was working in a manner which meant that he was away from the home every second week (which permitted the parties to enter into the shared care arrangement which followed).
The fact that the parties had never lived in Town 1 previously, or the fact of having no family, close friends or other supports there, are not of itself reasons as to why the mother could not remain living in Town 1 after separation. They might have made her stay there more difficult, but not impossible.
The fact that the mother had no job in Town 1 was no different to her not having a job anywhere else. There is no evidence that she had applied for employment in Town 1 but was not able to secure it.
What the Court knows about the mother’s financial situation is that at the time of separation, the mother was a joint owner of a property with the father in Western Australia. What the Court also knows is that the mother had previously worked casually in (employment omitted).
The submission that “there was no way[25] she could have secured accommodation in Town 1 separate to the father at this juncture” is not supported by any evidence. The evidence is simply silent on the issue. Indeed, the absence of evidence in the mother’s case as to any efforts which she went to in order to secure accommodation in Town 1 separate to the father, including evidence of her financial circumstances and possible avenues of income, is fertile ground for a Jones v Dunkel inference. However, this is not an inference that the Court is prepared to draw in the circumstances but neither is the Court prepared to draw an inference in line with the submission made on behalf of the mother.
[25] Emphasis added
It was further submitted that the mother did not have the option available to her to return to Town 5 with the children at that time, unless she did so unilaterally. It was submitted that it was to her credit that she did not do so.
The Court does not accept that the mother did not have the option available to her to return to Town 5 with the children. Not only did the mother sign the agreement whereby:
The children will be living in Town 1 in the family home and will have as much as possible 50/50 contact with both parents… [with such arrangement to]… be highly flexible based on the needs of [the mother]… for her University studies and [the father]… for his work commitments.
But also, the parties had agreed to review the arrangements embodied in that agreement in early September 2016.
It is however certainly to the mother’s credit that she did not remove the children and unilaterally change their residence to Town 5.
The mother did not, at that time, commence any parenting proceedings seeking for the children to live with her in Town 5. This is because the parties were negotiating.
It was only after the father moved with the children from Town 1 to Town 4[26] that the mother sought interim orders for the children to live with her in Town 5.
[26] A move which was done without the mother’s consent and without any prior notice to her
The mother is critical of the father, and correctly so, for the way he moved with the children to Town 4. It was done in circumstances where the parties were having discussions about the children’s living arrangements including arranging for mediation, and without any prior notice to the mother or her consent.
Strong submissions were made on behalf of the father that the mother acted in self-interest and that she put her relationship with Mr S ahead of the children. It is not a submission the Court accepts.
There were a myriad of reasons the parties separated when they did and why they managed their parenting in the way that they did. To suggest that the mother did what she did because of her relationship with Mr S is far too a simplistic view of all that was going on at the time.
The Court accepts the submission, made on behalf of the mother, that the period of four or so months immediately following separation was a period of ambivalence and confusion for the parties.
However, the mother says she knew she wanted to live in Town 5 and that she wanted the children to live in Town 5 with her. She knew she was enrolled into University and wanted to undertake those studies. She knew that she did not want to continue with her relationship with the father. She knew that she wanted to continue with her relationship with Mr S.
Her move to Town 5 in 2016 and subsequent refusal in January 2017 to spend any more time with the children in Town 1 were choices which the mother made in the context of the circumstances she found herself in, some of which were of her own making.
Dr S was not prepared to say that the mother demonstrated any parenting deficit by leaving Town 1 but rather that it was a poor decision by the mother which showed her lack of understanding. Dr S was also of the opinion that at the time neither party was thinking clearly and that they were both trying to their best in the circumstances. The Court accepts Dr S’s opinion about these matters.
Advantages and Disadvantages of the Competing Proposals
It was while the parties were living in Town 5 that all three children were born. However, they have lived in different locations for the majority of their young lives.
Town 4 is a much smaller town than Town 5. The children have no extended family living in Town 4 or close to Town 4. The father and the children are relatively isolated there. While the paternal grandmother has been an outstanding support for the father and while the Court accepts that she will continue to be such a support to the father, the practicalities of the situation mean that she is not available at short notice.
The father has worked in Town 4 since 2017. He has worked in other locations previously, in similar but not identical roles, for longer periods of time[27]. The only reason the father and the children are living in Town 4 is because of the father’s work.
[27] Including living in Town 5 and working away
Town 5 offers the children more extended family support and a wider network of friends and relatives the mother can rely upon. Town 5 offers the mother more opportunities to find employment and housing.
The Practicalities
The parents live a fair distance apart, with such distance being prohibitive of the children spending regular time during the weekdays and weekends with each of the parents.
The reality of the situation is that no matter which parent these children live with, they will only spend limited time with the other parent. As they grow, the burden of the travel required by them to spend regular time with the non-resident parent will no doubt grow, and may result in the children refusing to engage in such travel to the detriment of their relationship with the parent with whom they do not live.
This does not mean that the Court cannot make orders for the children to spend time with the parent during the school term with the parent with whom they are not living. Both parents propose that this occur. The father’s proposal involves significant travelling for the children, something they have been doing for at least the last year. The mother’s proposal involves the father travelling and making arrangements to spend time with the children close to their residence. Neither is ideal and the Court is not bound by the parties’ proposals.
An order which is a hybrid of the two parties’ proposals will therefore be made, with the children having regular school holiday time with the parent with whom they are not living as well as the opportunity of spending additional time with that parent upon certain notice being given.
Parental Responsibility
There is of course a presumption of equal shared parental responsibility enshrined in the legislation.
Both parents submitted to the Court that an appropriate order for parental responsibility was for there to be an order for equal shared parental responsibility. In the circumstances of this case the Court does not find that the presumption has been rebutted, particularly in light of the parties’ applications for an order for equal shared parental responsibility.
Orders for equal shared parental responsibility will thus be made. The making of such an order triggers the operation of s65DAA. Given the physical distance between the parties’ residences neither an order for equal time nor an order for significant and substantial time within the legislative meaning is practical.
In Conclusion
Ideally, these children would get to benefit from a co-operative relationship between their parents, and frequent and substantial, if not equal time, with each of the parents. But this is simply not possible given the physical distances between the parties’ residences at present.
The reality is that maternity and paternity will always have an impact upon the wishes and mobility of parents, including their moral obligations which sometimes last a lifetime and are restrictive on personal choice and movement of the parent.[28]
[28] Gummow & Callinan JJ in U v U [2002] HCA 36 at [92] cited with approval in Lansa & Clovelly [2010] FamCA 80
The Court has carefully weighed up the parties’ competing proposals in coming to its determination, and what has swayed the balance in favour of the orders which the mother seeks in summary are the following matters[29]:
a)Until separation, the children had been primarily cared for by the mother. The father worked and at times he was absent for many weeks from the children’s lives. Both parents were involved in the children’s care and upbringing.
b)The children’s attachment needs and stability and security of those attachments are very important. The children have had instability in their care arrangements since at least separation, but more primarily since the mother stopped going to Town 1 in 2017. The father’s unilateral move of the children’s residence to Town 4 in 2017 was a decision which significantly changed the children’s care arrangements and which did not place the children’s needs first.
c)The practical difficulty and expense of the children spending time with the non-resident parent is a significant factor in the circumstances of this case.
d)In the scheme of things, the mother is ultimately the parent who is more available to care for the children and who has the greater flexibility to arrange her life around the children’s needs – as she had done to separation if not subsequently. While she is currently studying and while her future hours of work are not presently known, the Court accepts that she will make arrangements which are child focused.
e)The father’s hours of work are currently regimented, and he is away from the home for a significant amount of daytime hours 7 days in every fortnight. He is simply not available to the children except outside of the hours he is at work. He is available to them at all other times.
f)Both parties do and will continue to require support in looking after the children’s needs. The father’s support network in Town 4 is extremely limited. The mother’s support network in Town 5 is much greater, albeit still limited.
g)The father has indicated that a shared care arrangement would be in the children’s best interest if the parties lived in close physical proximity to each other. The father has previously lived in Town 5 and worked in similar employment as he does at present. The mother has not been employed for many years and it is likely that there are limited prospects of her employment in Town 4. The father has the greater capacity to live and work closer to the mother than the mother does to the father.
h)On balance, orders which see the children living with the mother in Town 5 offer the children more opportunities to spend more time with the mother and more time with the father.[30] Their return to the parent who was their primary carer for years is an important factor as are their attachments to that parent. While Dr S opined that [Z] should be the litmus test in terms of the children’s attachments, the legislation does not limit the Court’s consideration to the youngest child. Rather the Court has to concern itself with each of the children.
[29] This is not an exhaustive list and indeed regard must be had to the whole of the reasons for judgment
[30] Than they would be spending with the mother if they lived with the father
For all of those reasons, orders as set out at the forefront of these Reasons are made.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 10 May 2018
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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