Freeman and Rouse
[2007] FMCAfam 752
•27 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FREEMAN & ROUSE | [2007] FMCAfam 752 |
| FAMILY LAW – Relocation – unilateral relocation of the mother to [X] – children living with the father in Brisbane – evidence of family violence – history of drug use by the father – order that the children be permitted to relocate to live with the mother – order for shared parental responsibility in the best interests of the children – costs of spending time with the father to be shared equally. |
| Family Law Act1975 (Cth) |
| A & A: Relocation approach [2000] FLC 93-035 AMS v AIF (1999) 199 CLR 160 Godfrey & Sanders [2007] FamCA 102 H & L [2000] FLC 93-036 Martin & Matruglio [1999] FLC 92-876 M & S (formerly E) [2006] FamCA 1408 Paskandy & Paskandy [1999] FLC 92-878 U & U (2002) 211 CLR 238 |
| Applicant: | MR FREEMAN |
| Respondent: | MS ROUSE |
| File number: | BRC4114/2007 |
| Judgment of: | Burnett FM |
| Hearing date: | 17 September 2007 |
| Date of last submission: | 17 September 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 27 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hanlon |
| Solicitors for the Applicant: | Bruce Dulley Family Lawyers |
| Counsel for the Respondent: | Ms McDiarmid |
| Solicitors for the Respondent: | Holloway Jenkins |
| Independent Children's Lawyer | Ms Hogan |
| Solicitors for the Respondent: | Carter Naughton Rice |
ORDERS
That the children live with the Mother.
That the Mother and Father have equal shared parental responsibility for the children;
That the children spend time with and communicate with the Father at such times as the Mother and Father may agree but to include:
(a)in the event the children reside with the Mother in [X] and the Father continues to reside in Brisbane:
(i)in Hervey Bay for the gazetted Easter school holidays in each year on an equal shared basis (alternating between the first and second halves of the Easter weekend);
(ii)one weekend per term with same time to be spent by the children in Brisbane, the costs of such time to be shared equally;
(iii)the Father be at liberty to give four weeks notice in writing to the Mother in advance for an additional two weekends per term with the Mother to facilitate transport of the children from [X] to Emerald or Brisbane as is requested by the Father;
(iv)All of the gazetted June school holidays in each year;
(v)all of the gazetted September school holidays in each year;
(vi)one half of the end of year gazetted school holidays (alternating between the first and second halves);
(vii)sharing of special days where possible;
(viii)the weekend which includes Father’s Day;
(ix)an overnight period in any one week that the Father may be in the general vicinity of the children’s place of residence;
(b)in the event the children reside with the mother in [X] and the father relocates to Central Queensland such that he live no greater than two hours travel from [X] then the children spend two out of three weekends with the Father with such spending time with to commence on Friday after school and conclude at 6.00pm Sunday; and
(i)in Hervey Bay for the gazetted Easter school holidays in each year on an equal shared basis (alternating between the first and second halves of the Easter weekend);
(ii)for half of the gazetted school holidays in June and September each year;
(iii)for half of the end of year gazetted school holidays (alternating between the first and second halves);
(iv)sharing of special days if possible;
(v)the weekend which includes Father’s Day;
(vi)an overnight period in any one week that the Father may be in or near [X].
(c)Alternatively in the event that the Father resides between two and four hours drive from [X] the children spend time with the Father for one in every four weekends with such spending time with to commence on a Friday after school and to conclude at 6.00pm Sunday at the Father’s place of residence; and
(i)the Father have liberty to visit and spend time with the children at [X] but no more frequently than every second weekend.
.
(d)In the event that the children reside with the Mother in [X] and the Father relocates to [X]:
(i)the children spend time with the Father from the conclusion of school on Thursday to commencement of school the following Monday in each fortnight;
(ii)for the gazetted Easter school holidays in each year on an equal shared basis (alternating between the first and second halves of the Easter weekend);
(iii)for half of the gazetted school holidays in June and September each year;
(iv)for half of the end of year gazetted school holidays (alternating between the first and second halves);
(v)sharing of special days if possible;
(vi)the weekend which includes Father’s Day.
(e)That to enable the children to spend time with the father in accordance with clause 3:
(i)the Father purchase air tickets for the children to fly from Emerald to Brisbane at the commencement of each visit and from Brisbane to Emerald and the Mother purchase air tickets for the children to fly from Emerald to Brisbane at the conclusion of each visit;
(ii)the Mother to deliver the children to Emerald airport at the commencement of each visit and ensure that they board their flight to Brisbane;
(iii)the Father to collect the children from Brisbane airport at the commencement of each visit;
(iv)the Father to deliver the children to Brisbane airport at the conclusion of each visit and ensure that they board their flight to Emerald;
(v)the Mother to collect the children from Emerald airport at the conclusion of each visit;
(vi)otherwise in respect of any travel the parents bear the costs equally.
(f)That each parent permit the children to telephone the other parent at any time the children express a desire to do so and if the Father is resident in Brisbane then he be permitted to contact the children by telephone twice weekly but otherwise once a week;
(g)That each parent keep the other informed of their residential address and reliable telephone number.
(h)That the parent with whom the children live authorise the school at which the children attend to provide information to both parents upon the request of either parent;
(i)That while the children are spending time with the Father, the Father not:
(i)consume any illegal substances nor expose the children to anybody who has or will consume illegal substances;
(ii)permit the children to be driven in a motor vehicle which is being driven illegally;
(iii)permit the children to travel in a motor vehicle unless they are properly restrained by wearing a seatbelt; and
(iv)permit the children to ride their bikes unless they wear a helmet.
IT IS NOTED that publication of this judgment under the pseudonym Freeman & Rouse is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC4114 of 2007
| MR FREEMAN |
Applicant
And
| MS ROUSE |
Respondent
REASONS FOR JUDGMENT
In this application the applicant, Mr Freeman, seeks parenting orders in respect of children to his marriage to the respondent, Ms Rouse. The children are L born in 1996, and T born in 1998.
The father seeks orders:
a)that the children live with him;
b)that the parties have equal shared parental responsibility for the children; and
c)that the children spend time with and communicate with the mother at such times as may be agreed; but failing agreement:
i)for all of the Gazetted Queensland Easter school holidays each year;
ii)for all of the Gazetted Queensland June/July school holidays each year;
iii)for all the September/October Gazetted Queensland school holidays each year; and
iv)during the December/January school holidays as follows:
(A)from December 24 to the end of December/January school holidays in 2007, and each odd-number year thereafter;
(B)from 26 December to the end of December/January school holidays in 2008, and in each even numbered year thereafter;
v)on special days such as birthdays, where possible;
vi)the weekend which includes Mothers' Day;
vii)for a period of up to one week in Brisbane per annum (outside of school holiday time) if the mother is in the Brisbane area.
The orders sought by the mother are as follows:
a)that the children live with the mother;
b)that the mother have sole parental responsibility for the children;
c)that the children spend time with and communicate with the father at such times as the mother and father may agree but to include:
i)in the event the children reside with the mother in [X] and the father continues to reside in Brisbane:
(A)in Hervey Bay for the gazetted Easter school holidays in each year on an equal shared basis (alternating between the first and second halves of the Easter weekend);
(B)one weekend per term with same time to be spent by the children in Brisbane, the costs of such time to be shared equally;
(C)the father be at liberty to give four weeks notice in writing to the mother in advance for an additional two weekends per term with the mother to facilitate transport of the children from [X] to Emerald or Brisbane as is requested by the father;
(D)all of the gazetted June school holidays in each year;
(E)all of the gazetted September school holidays in each year;
(F)one half of the end of year gazetted school holidays (alternating between the first and second halves);
(G)sharing of special days where possible;
(H)the weekend which includes Father’s Day;
(I)an overnight period in any one week that the father may be in the general vicinity of the children’s place of residence;
ii)in the event the children reside with the mother in [X] and the father relocates to central Queensland such that he live no greater than two hours travel from [X] then the children spend two out of three weekends with the father with such spending time with to commence on Friday after school and conclude at 6.00pm Sunday; and
(A)in Hervey Bay for the gazetted Easter school holidays in each year on an equal shared basis (alternating between the first and second halves of the Easter weekend);
(B)for half of the gazetted school holidays in June and September each year;
(C)for half of the end of year gazetted school holidays (alternating between the first and second halves);
(D)sharing of special days if possible;
(E)the weekend which includes Father’s Day;
(F)an overnight period in any one week that the father may be in or near [X].
iii)Alternatively in the event that the father resides between two and four hours drive from [X] the children spend time with the father for one in every four weekends with such spending time with to commence on a Friday after school and to conclude at 6.00pm Sunday at the father’s place of residence; and
(A)the father have liberty to visit and spend time with the children at [X] but no more frequently than every second weekend;
iv)In the event that the children reside with the mother in [X] and the father relocates to [X]:
1. the children spend time with the father from the conclusion of school on Thursday to commencement of school the following Monday in each fortnight;
2. for the gazetted Easter school holidays in each year on an equal shared basis (alternating between the first and second halves of the Easter weekend);
3. for half of the gazetted school holidays in June and September each year;
4. for half of the end of year gazetted school holidays (alternating between the first and second halves);
5. sharing of special days if possible;
6. the weekend which includes Father’s Day.
v)That to enable the children to spend time with the father in accordance with clause 3:
(A)the father purchase air tickets for the children to fly from Emerald to Brisbane at the commencement of each visit and from Brisbane to Emerald at the conclusion of each visit;
(B)the mother to deliver the children to Emerald airport at the commencement of each visit and ensure that they board their flight to Brisbane;
(C)the father to collect the children from Brisbane airport at the commencement of each visit;
(D)the father to deliver the children to Brisbane airport at the conclusion of each visit and ensure that they board their flight to Emerald;
(E)the mother to collect the children from Emerald airport at the conclusion of each visit.
d)That each parent permit the children to telephone the other parent at any time the children express a desire to do so and if the father is resident in Brisbane then he be permitted to contact the children by telephone twice weekly but otherwise once a week;
e)That each parent keep the other informed of their residential address and reliable telephone number;
f)That the parent with whom the children live authorise the school at which the children attend to provide information to both parents upon the request of either parent;
g)That while the children are spending time with the father, the father not:
i)consume any illegal substances nor expose the children to anybody who has or will consume illegal substances;
ii)permit the children to be driven in a motor vehicle which is being driven illegally;
iii)permit the children to travel in a motor vehicle unless they are properly restrained by wearing a seatbelt; and
iv)permit the children to ride their bikes unless they wear a helmet.
The independent children's lawyer seeks orders that conform with the recommendations of the independent report-writer, Valma Johnson, who recommends that the children live with their mother in [X], and that the children spend time with their father during all of the school holidays except at Christmas-time when the mother is able to take leave and holiday with them in respect of which the holidays will be half-shared.
The mother’s proposed orders constituted the agenda for debate for all matters. The spending time with arrangements were arrangements principally proposed by the mother as modified by the Independent Children’s Lawyer. During the course of submissions it was agreed by all parties that the spending time with arrangements would apply equally irrespective of which parent succeeded in obtaining an order that the children live with them.
Following discussion between Counsel for each of the parties it was agreed the following three matters were in issue and required judicial determination:
a)with whom the children were to live;
b)whether the mother have sole parental responsibility or whether there be an order for equal shared parental responsibility; and
c)the issue of costs concerning travel to give effect to the orders.
Background
The parties commenced cohabitation in 1990. L was born in 1996, and T in 1998. The parties separated in 2000. During that time the parties resided in a number of localities, including Cairns and Hervey Bay. Hervey Bay was the most recent place at which the parties cohabitated as husband and wife. It seems while the parties were at Hervey Bay the mother determined to terminate the relationship.
The father at that time had, in any event, resolved to return to Brisbane because he had not been successful in obtaining employment in the Hervey Bay region. When the father returned to Brisbane he took up residence with his mother (the paternal grandmother), and his brother at the paternal grandmother's house.
The mother at that time also decided to return to Brisbane in order to enable the father to continue his relationship with the children. Although she also had decided to terminate the relationship she was content to reside at the paternal grandmother's house until such time as she organised her affairs.
Although there were some instances of domestic violence in the few months following separation which resulted in the mother taking out a domestic violence order, these matters are not of moment in this proceeding. Those events appear to have been confined to the post-separation adjustment period. Insofar as they are relevant, they are discussed below.
After the mother separated in a formal sense from the father, she had the children living with her. From this period being 2000 until approximately April this year, the children lived with the mother and spent time with the father. Initially, the father would see the children on Wednesday afternoons for about four hours, and every Friday afternoon until Sunday afternoon. It remained this way for a further two years following which the parents each agreed to the mid-week visit extending to overnight stays.
As Ms Johnson noted in her report, and is the fact, the mother did not ever have weekend time with the children. Whilst that might be generally regarded as an unbalanced time-share arrangement, there was good reason in this instance. The mother was able to organise her employment over this period such that she worked on weekends, which left her time through the week to spend with the children. The penalty rates paid to the mother on the weekends enabled her to enjoy a better income than mid-week employment did. Furthermore, this enabled her to attend to the children when they returned home from school ensuring that their school-week routine was smooth and productive.
Despite the father's return to Brisbane, he was not successful in obtaining employment. That was by election. During the period 2001 until late 2005 he was heavily involved in the production of amphetamines. That appeared to be the principal source of income for him. Indeed, his income was such that he did not receive Centrelink payments for about three and a half years during this period.
In late 2004 he was arrested and charged in relation to offences concerning possession of amphetamines. He says that this was a cathartic event for him. He was frightened that he might be imprisoned. He also stated in evidence that he was concerned that he might end up in a morgue; the inference clearly being that the people with whom he was associating were not necessarily polite company.
He says that shortly after these events he also ceased using drugs, which up until that time had been a significant feature of his life. In evidence he acknowledged that he had used variously speed, marijuana, and LSD. He claims that the mother also used drugs when they were living together. This allegation was vehemently denied by the mother.
It would appear from his evidence that drugs have been a constant feature of his lifestyle. He was a regular drug-user using it on occasions daily up until late 2004. He used drugs both away from and on occasions when he had the children with him.
It was particularly troubling to hear, for instance, that when using speed a significant side effect was that he would not sleep. He denied that when he ceased using speed he was adversely affected by its non-use. However, he agreed that when he ceased using speed an immediate side-effect was the need to sleep for lengthy periods to “catch up”.
It was put to him in cross-examination that on occasions when he was still using drugs he forgot for instance to collect the children from child-care, and/or would arrive at child-care dressed in his underwear. He did not deny those matters, although sought to minimalise the significance of those events.
I am satisfied that the use of drugs did in fact impede his performance generally, and that in particular, so far as it concerned occasions involving the children, that there was some adverse effect upon him in respect of his attitude to children's matters by reason of his drug use.
The father re-entered the workforce in about late 2005 or early 2006, at which time he worked at a bakery for about six months. Following that employment he took up employment at the [X] Hotel as a casual storeman/delivery driver. He continues in that employment. He states he works approximately 35 hours per week on average, and has some element of flexibility in his times. That flexibility is necessary because he relies upon the paternal grandmother to assist in the care of children, in particular taking children to school of a morning. As the paternal grandmother also works, it is necessary for him to have some flexibility to enable him to take the children to school on those occasions when his mother cannot.
Although the case is fashioned as an application for parenting orders, it is indeed more in the nature of a relocation application. In April this year the mother and her partner determined to relocate from Brisbane to [X] in Central Queensland. That relocation occurred in April this year, and at the time of that relocation the matter first came before this Court. Interim orders were made providing that the children reside with the father and spend time with the mother pending final orders. Since April this year the children have in fact lived with the father. The mother has only spent time with the children on three occasions since that time because of her relocation.
Legal principles
In considering applications for parenting orders, the Court may, subject to s.61DA, make such parenting orders as it thinks proper: s.65D. Section 61DA provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. The presumption will not apply if there are reasonable grounds to believe that a parent is engaged in abuse of the child, or there is evidence of family violence. This and all other issues have to be resolved with the best interests of the children being the paramount consideration. The complexity of the Court’s task is compounded because of the relocation issues.
The principles governing relocation cases have varied slightly since the introduction to the amendments of Part VII of the Act. Despite that matter which will be relevantly addressed below the following principles expressed in AMS v AIF (1999) 199 CLR 160 remain firmly in place, namely:
·Each case depends on an application of the governing legislation. As the facts of each case are unique the individual facts call for a “careful and delicate analysis” which renders previous decisions of limited assistance except in so far as they offer illustrations which may tend to promote a general consistency of approach: AMS v AIF[1].
·No single factor is dispositive of decisions governing the residence of a child in the context of the proposed relocation of a parent with whom the child resides and the Court is required to attempt a resolution of often irreconcilable considerations although the Act does instruct that the welfare or best interests of the child should be the paramount consideration. The paramount consideration however is not the same as the “sole” “only” consideration. Preconceived notions as to the weight which must be given to particular factors are incompatible with the exercise of an individualised judicial discretion such as is mandated by the legislation[2].
·The statutory instruction to treat best interests of the child as the paramount consideration does not oblige the Court to ignore the legitimate interests and desires of the parents although if there is a conflict between those considerations priority must be accorded to the child’s welfare and rights which matters in any event cannot be viewed in the abstract separate from the circumstances the parent with whom the child resides[3].
·The Act has been enacted and the relevant discretions exercised in recognition of a society which attaches high importance to the freedom of movement and the rights of adults to decide where they will live. “Courts recognise that an unwarranted and interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to effect the welfare or best interests of the child.”[4]
·Whilst jurisprudence recognises the increased emphasis upon the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with the other, the rule is not an absolute one[5].
·Where relocation is proposed within Australia a more relaxed attitude should be adopted than where proposed relocation is overseas[6].
·When it is proposed that residence arrangements change, the fact of disturbing them presents a consideration that must be taken into account in determining new arrangements should be approved. Where a parent seeks to change arrangements affecting the residence of and access or contact with the child that parent must demonstrate that the proposed new arrangement is in the best interests of the child[7].
[1] At 207
[2] AMS v AIF at 207
[3] AMS v AIF at 208
[4] AMS v AIF at 208
[5] AMS v AIF at 209
[6] AMS v AIF at 209
[7] At 210
The decision of the High Court in AMS v AIF and in particular the observations by Kirby J have been considered in a number of decisions since the pronouncement of that authority. See for instance Paskandy & Paskandy [1999] FLC 92-878; Martin & Matruglio [1999] FLC 92-876; H & L [2000] FLC 93-036; and A v A: Relocation approach [2000] FLC 93-035. Finally the High Court revisited the question of relocation in its later decision in U v U (2002) 211 CLR 238[8].
[8] It is to be noted that in U v U Gummow and Callinan JJ with whom Gleeson CJ and Hayne J concurred noted AMS v AIF in passing without any criticism of it. See page 261.
More significantly the majority in U & U accepted the process was as stated in A v A: Relocation approach supra in which case the Full Court of the Family Court stated the process to be as follows:
“[108]. It is convenient to bring together in a summary form the most significant points we have made above. Courts of first instance faced with cases involving a proposal to relocate the residence of a child should adopt the following guidance and should be able to expect that cases are presented in a way which addresses the following matters to the extent that they arise:
In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas:
· The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.
· A court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residency contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances.
· It is necessary for a court to evaluate each of the proposals advanced by the parties.
· A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be “permitted”.
· The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child’s best interests.
· It is necessary to follow the legislative directions espoused in s 60B and s 68F of the Family Law Act 1975 (Cth). The wording of s 68F(2) makes clear that the Court must consider the various matters set out in (a)-(1) of that subsection.
· The object and principles of s 60B provide guidance to a court’s obligation to consider the matters in s 68F(2) that arise in the context of the particular case.
· It is to be expected that reasons for decision will display three stages of analysis and:
1.A court will identify the relevant competing proposals;
2.For each relevant s 68F(2) factor, a court will set out the relevant evidence and the submission with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make finding son each factor as the Court thinks fit having regard to s 60B;
· As one, but only one, of the matters considered under s 68F(2), the reasons for the proposed relocation as they bear upon the child’s best interests will be weighted with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.
· The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
· Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child’s contact with, and access to, the other parent.
3.On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.
The process of evaluating the proposals must have regard to the following issues:
a) None of the parties bears an onus:
· In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.
b) The importance of a party’s right to freedom of movement:
· In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party’s rights under s 92 of the Constitution, where applicable.
· In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.
c) Matters of weight should be explained:
· In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss60B and 68F(s) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.
· In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.”
Despite the recent amendments to Part VII of the Act that approach has retained favour with the Full Court. Recently in Godfrey & Sanders [2007] FamCA 102 Kay J cited that authority with approval. In Godfrey & Sanders the Court also noted that approval the single judge decision of Dussau J in M & S (formerly E)[9] where in that instance Her Honour was considering a relocation application involving a proposed relocation to England from Australia. In particular His Honour Kay J noted with approval the observations of Dassau J that it is clear there is no onus upon the Applicant for relocation and nor is there a presumption against it. Further His Honour noted with approval Her Honour’s observations that just because the relationship between a child and a parent will inevitably be affected by a move away that in itself should not preclude the Court from permitting relocation[10]. Importantly His Honour Kay J adopted Dassau J’s observations at paragraph 38 of her decision that:
“The objects and principles of the Act, the primary and additional considerations under section 60CC, together with the various provisions in relation to equal shared parental responsibility, direct the court to squarely maintaining the important relationship between a child and his/her parents. The child’s best interests remain the Court’s paramount consideration (section 60CA). In the opening words of the objects provision in section 60B(1) of the Act, and again in section 60B(2) where it is stated that the principles set out there apply, except for when it is or would be contrary to a child’s best interests”, the legislature has not diminished the best interest test as integral to any parenting issues, including the difficult issue of relocation.”
[9] [2006] FamCA 1408
[10] See para 30 Godfrey & Sanders adopting para 38 M & S (formerly E)
In summary I adopt the approach provided for in A & A: Relocation Approach as supplemented by other matters identified by Dassau J in M & S (formerly E).
The Court’s power to make a parenting order includes the power to make an order that discharges, varies or suspends or revives some or all of a parenting order: Section 65D(2). Otherwise the Act generally provides that in proceedings for parenting orders the Court may make such parenting orders as it considers proper: Section 65D(1). In any event, as earlier stated, the overriding consideration concerning any particular parenting order in relation to a child is that the Court must regard the best interests of the child as the paramount consideration: Section 65AA; Section 60CA.
In the present context it appears a conventional parenting application approach should be adopted with due consideration being afforded for the relocation orders sought.
Sole parental responsibility or equal shared parental responsibility
Each of the father and the Independent Children’s Lawyer contended that an order should be made for the parenting order to provide for equal shared parental responsibility for the children. The mother contended that she should have sole parental responsibility.
Section 61DA(1) provides there is a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility. The presumption can be displaced where there is evidence of abuse of the children or of family violence.
In this case there is no evidence of abuse of the children however there was some evidence of family violence. It was contended for by Counsel for the mother that the history of the relationship between the parties demonstrated the propensity for family violence as an ongoing characteristic of their relationship. Three instances were alleged on the evidence. The first instance concerns the occasion when the father pushed the mother into the door; the second instance was the occasion that the father threw himself upon the bonnet of the car; and the third was an occasion when the father is alleged to have pulled a gun.
Although the father initially denied those events he did acknowledge that events of that kind did occur although he sought to minimalise the extent of those events. The events concerning the car occurred in front of the child L. The father agreed the child was distressed about this event.
The event involving the car resulted in the mother seeking a domestic violence order. Although an order was made without admission of liability it is apparent from the concessions made by the father in cross examination that there was indeed some basis for the making of the orders.
From my observations of the father in the witness box I formed the view that he did have a propensity to quickly rise to anger. He is physically a man of stocky build and once riled I expect would present as a threatening person.
I accept each of these instances occurred. However they need to be considered against the relevant background at the time. The earlier instances involved occasions during the immediate post separation period. The matters were no doubt exacerbated because the father at that time was an active drug user. He says he has not partaken of drugs since 2004 at which time he elected to cease using drugs because of his being arrested and charged. However prior to that time he was clearly a heavy user of drugs. It appears that at the time he used drugs daily. In recent times at the request of the Independent Children’s Lawyer he has submitted himself to random drug testing. The results of that drug testing have been in the negative. However I do have reservations about the matter. Although he says he ceased using drugs in 2004 a person with whom he consumed drugs on a regular basis was his brother. His brother gave evidence that he only ceased using drugs approximately six weeks ago. Otherwise he has continued to use drugs.
It was submitted by the mother’s Counsel that this history of drug use and the risk of the father falling back into the habit remains alive. In that context it was submitted that the father was at risk of defaulting to the sort of behaviour which ultimately led to the mother obtaining a domestic violence order (albeit one obtained without admission).
In this case there is no evidence of abuse of the children of the parties. Indeed, both parties appear to be devoted to the children, and subject to their individual circumstances, each seek to promote the children's best interests, albeit that one party - as my reasons reveal - appears to do so in an idiosyncratic and selfish manner.
The expression provided by Section 61DA(2)(b) is not provided in a temporal context. There has been evidence of family violence and accordingly the presumption does not apply.
If I am incorrect in my construction of Section 61DA(2)(b) Section 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the Court it would not be in the best interests of the child for the child’s parent to have equal shared parental responsibility for the child. Although I deal with questions of best interest later in this judgment it is to be noted that the test provided for there is different to that provided for in Section 61DA(2).
In either event the section merely applies to displace the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. It does not derogate from the Court’s power to make an order for equal shared parental responsibility if the Court regards that matter as being in the best interests of the child.
Despite the presumption not applying for reasons which follow I consider it is appropriate that there be an order providing for equal shared parental responsibility of the children, as I consider such an order as being in the best interests of the children.
Ultimately the question of whether there should be an order for equal shared parental responsibility is in my view a question of whether or not such an order would be in the best interests of the children. I have dealt with the best interest considerations concerning with whom the children should live below. In that regard the proposals by the Independent Children’s Lawyer and by the father that there be equal shared parental responsibility it constitutes the preferred proposal by reason of my examination of those matters identified. I do not intend to add to them except to make one further observation. Prior to the mother relocating the father took the opportunity to spend time with the children and communicate with them over an extended period of time. I accept however that he was not particularly proactive when it came to making decisions about major long term issues. I accept the mother’s evidence that on most occasions particularly for instance in relation to schooling the father simply acquiesced in respect of the mother’s conduct. No doubt that arose in part because the father was not unduly inconvenienced by any of the mother’s decisions. For instance her decision to move the children from the [W] School to [M] School would not have constituted a significant burden for the father. However since the mother’s relocation the father has assumed the role of making significant decisions. The mother has not challenged those significant decisions nor made complaint of them. For instance the father chose to remove the children from the [M] School to [E] School.
I accept the father’s evidence that events of the past few years have constituted something of a wake-up call for him. I do not think the communication issues between the parties to be so insufferable that matters of long term care cannot be resolved between them. Some of the principal issues, for instance education, will now simply be resolved by reference to geography. Other major long term issues such as religion have not presented as an issue between the parties.
It follows that in my view it is in the best interests of the children that the parents have equal shared parental responsibility.
Equal shared time or substantial and significant time
Accepting that an order for equal shared parental responsibility is indeed in the best interests then the Court is required to consider whether the parenting order should provide for equal time with each of the parents, if such is reasonably practicable, or in default whether there should be an order provided that the children spend substantial and significant time with each of the parents as an order in their best interests.
In this case, before examining the questions of whether there should be equal time or substantial and significant time, the question of reasonable practicality has to be examined. In determining what is reasonably practicable for the purposes of equal time or substantial and significant time, the Court must have regard to how far apart the parents live from each other; the parents current and future capacity to implement an arrangement for the children spending equal time or substantial and significant time with each of the parents, and the parents' current and future capacity to communicate with each other and resolve difficulties that might arise and implementing an arrangement of that kind, and the impact that such an arrangement would have on the children and any other matters that the Court considers relevant.
In this case the father lives in Brisbane and the mother lives at [X]. [X] is located in Central Queensland not far from Emerald. It is fair to say they live a significant distance from each other. Any arrangement involving equal time is clearly impractical, having regard to the situation in which each of the mother and father live.
It also appears that it would be impractical, having regard to substantial and significant time. Substantial and significant time means time that the child spends with the parent, being time the child spends with a parent, including days that fall on weekends and holidays, and days that do not fall on weekends and holidays, which allow the parent to be involved in the child's daily routine and occasions and events that are of particular significance to the children, and the time that the children spend with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
It is clear that having regard to the distance between the mother and the father it is impractical to suggest that the children can spend substantial and significant time with the parent with whom the children do not live. The tyranny of distance is too great in this instance to permit the children to spend time that includes both days that fall on weekends and holidays, and days that do not fall on weekends or holidays outside a set regime provided for.
Further, it is clear that any arrangement will not allow the parent to be involved with a child's daily routine except on the occasions that the child lives with that particular parent, and occasions and events that are of particular significance to the child because those matters will clearly relate to the geographic region in which the child principally lives. It is impractical to, for instance, expect the father to travel to [X] to participate in, for instance, a particular school activity such as a fete, or to see the child present a school pantomime and the like. The same applies if the child lives in Brisbane; the mother cannot be expected to do likewise.
Furthermore, distance would prevent the child spending time with the parent on such occasions that are of special significance to the parent. For instance, if a parent's birthday falls mid-week. It is impractical, having regard to the distance involved, to expect the children to travel to either [X] or Brisbane for that purpose.
Those matters are further compounded by the capacity to implement any such arrangement. The evidence is that the cost of travel between Brisbane and Emerald is certainly no less than $149 per person, one way, and possibly more per trip. Each of the husband and wife are of modest means, and would not be able to reasonably afford the expense of that travel as might be contemplated if there were to be an order permitting substantial and significant time.
In addition, there is the matter of the current and future capacity to communicate with each other. That matter is explored below, but in summary it is fair to say that there has been evidence to date of difficulty in this regard. I do not think those matters will improve in the short term.
Finally, there is a question of the impact that such an arrangement would have on the children. Again, having regard to the distances of travel involved and the age of the children such as an arrangement, in my view, is not reasonably practicable.
It follows that irrespective of whether there be an equal time arrangement or a substantial and significant time arrangement, questions of reasonable practicality would intervene to render any such orders impracticable, and accordingly, no such orders can be made.
With whom the child should live
Despite the issue of equal shared time/substantial shared time, the Court is still required to determine the issue of with whom the children live, and what spending time with arrangements are appropriate, having regard to the best interests of the children as the paramount consideration. The best interest considerations are provided for in s60CC.
Best interest considerations
Primary considerations
The benefit of the child having a meaningful relationship with both the child’s parents
The evidence is that prior to the mother’s proposed relocation there had been a longstanding relationship between the parties which involved the children spending six nights out of fourteen at the father’s residence and the balance at the mother’s residence. The children have clearly had a good relationship with each of their parents. However since the mother relocated the children have had only limited contact with her.
In her evidence Ms Johnson noted that the primary attachment of the children was to the mother. When questioned specifically about each of the children she noted concerning T that she had been missing her mother enormously and that she was aggrieved and struggling to contain her emotions. She considered that T sensed that she could not open up and allow her feelings to be seen and that she had to cope internally with her emotional turmoil. She told the consequence of this was that T was likely to suffer an adverse effect upon her forming closer emotional attachments and that she would have difficulty trusting in the context of future intimate relationships. This position was not irreversible if the child returned to the mother.
For L she opined that he was a more sensitive child who had developed a better self protective mechanism. Despite that she felt he was hoping to force the mother to return to Brisbane. If L was relocated to [X] then Ms Johnson considered that despite some initial difficulty the emotional effects would not be as extreme upon him as it would be if he remained with the father. She considered that this would be because prior to the mother’s relocation in April 2007 L had not been as emotionally close to his father as he had been to his mother. She was of the view that he was old enough to carry an image of his father in his mind and therefore maintain intact the relationship with his father by spending time with him on holidays and the like.
In terms of the proposals the proposal advanced by the Independent Children’s Lawyer and the mother that the children live with her is the one which would best advance this consideration. This is particularly so because of their attachment to the mother and the fact that the children are now old enough to carry the mental image of their father in their minds.
The need to protect children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence
The principal contention in respect of this consideration concerns the father’s drug history. Unquestionably the father has been involved in the consumption of drugs and the manufacture of them. Although he says he ceased this activity in 2004 Ms Johnson expressed the opinion that drug effected persons are never really free from the scourge of drugs. The father’s brother was also a heavy drug user. Indeed the evidence was that the father and the brother consumed drugs together. They did so on occasions when the father had the children in his care albeit it was not done in the immediate presence of the children. The brother only recently ceased the consumption of drugs. That is because in the course of his employment as a plasterer he is engaged in a project involving the construction of a prison and is at risk of being randomly drug tested. I expect that his employment on that contract is not permanent and that once he is relieved of the risk of random drug testing he may well revert to his former behaviour. The drug issue is concerning. In particular it is of concern that on previous occasions when the father was consuming drugs he left the children in the care of others. In particular he left the children in the care of the paternal grandmother. Whilst it does not appear to be any question of her capacity or care on those occasions when she had the children the fact remains that his selfish conduct associated with the taking of drugs demonstrates a greater risk to the children by potential for exposure of the children to abuse or neglect.
While it may well be that the children were with the paternal grandmother when drug taking occurred it is unsatisfactory to cast this burden upon her and/or proceed in anticipated reliance on this resource.
For the mother’s part the father also made allegations of drug use. The mother denied those allegations. The allegations were first raised in affidavit material filed immediately before the trial. They had not been raised on any earlier occasion. The mother denied the allegations. I accept her denials as truthful.
In the circumstances I consider the Independent Children’s Lawyer’s and the mother’s proposal that the children live with the mother as best satisfying this consideration. Given the drug risk the children are less likely to be exposed to those matters and the attendant risk of abuse or neglect if they are with the mother.
Additional Considerations
The views expressed by the children
In the family report prepared by Ms Johnson, L appeared to be equivocal in terms of the parent with whom he would like to live. For instance Ms Johnson noted that when asked the question where he would like to live he said he would sooner live with Dad in Brisbane but Mum if Mum was going to live on the Gold Coast because the Gold Coast seemed like a pretty good place. He was simply unable to express a view.
Ms Johnson noted in her report that from her discussion with L she was informed that the father did not really like the idea of the children going to live in [X]. It seems apparent from Ms Johnson’s assessment of L that in fact L by his conduct was hoping to force the mother to return to Brisbane. He is generally clearly unhappy about the difficulties between his parents.
In all of the circumstances I am not inclined to afford any weight to the views of the children as they are clearly too young and torn between their parents to provide any meaningful on this point.
The nature of the relationship of the child with each of the child’s parents and other significant persons
Prior to the mother relocating to [X], the children had a very close relationship with the mother. The children were attended to principally by the mother, and historically had been so attended to by her prior to separation. Since separation, the mother had undertaken the difficult task in relation to care on school days, leaving the father to have the pleasure of children on weekends.
It is quite clear from the evidence that the father, himself, did not assume the greater burden in relation to those matters, and to that end, the father's contact - time with the children was somewhat rarefied.
In the father’s household there are two other significant people so far as the children are concerned, the children’s paternal grandmother and the children’s paternal uncle. It is clear that the children each have a close relationship with each of those persons. In particular the paternal grandmother undertakes many of the household tasks and other tasks which would ordinarily be undertaken by the mother. They include tasks such as housekeeping, cleaning, making lunches and driving the children about. It is clear that the father is heavily dependent on his mother for that purpose. When asked whether she was prepared to travel to Rockhampton or Emerald to visit her grandchildren in the event that the orders provided for the children to live with the mother the paternal grandmother replied in the affirmative. She is in employment and accordingly she would have to make arrangements to undertake such travel through the course of the year as her employment permitted. Undoubtedly if the children did relocate she would have less contact with the children.
In addition the children also spend considerable time with the paternal uncle. His involvement appears to be less active. He is clearly present in their lives as he lives in the same household as the father and the children. However other activities appear to be limited in their extent to occasions such as the odd fishing event. Some concern however arises concerning the father’s brother as he has only recently ceased using drugs. He is a tradesman and is presently employed on a building site at a prison. For that reason he has refrained from using drugs during his recent employment because of a concern that he may be drug tested. Given his long standing drug use related particularly by the father in his evidence I am not confident that he will desist from using drugs in the long term. Although he has been present in the children’s lives I am not of the view that his presence is overly significant. In any event as with the paternal grandmother he too has indicated that should the children be permitted to relocate to [X] with the mother he would be prepared to visit them as and when his employment and circumstances permitted.
As I have earlier stated the children are each close to each of their parents. They are also close to the paternal grandmother and the paternal uncle. The closeness between the children and the paternal grandmother and the paternal uncle however arises more out of a function of the father’s parenting. Particularly while he was consuming drugs there was a clear propensity of the father to rely upon the paternal grandmother to assist him with the parenting role. In any event this has continued to a large extent as the paternal grandmother undertakes many of the domestic chores associated with maintaining the children’s household.
That said, Ms Johnson was clearly of the view that the children would be able to maintain those relationships in the event that the children were permitted to relocate with the mother. In addition it appears that each of the paternal grandmother and the paternal uncle themselves were prepared to adjust their personal arrangements in order to visit the children in the event that the children live with the mother.
If the children were to live with the father it seems highly possible that the relationship between the mother and the children would be permanently fractured. This is particularly so in respect of the child T who is assessed by Ms Johnson as clearly missing her mother and as suffering a form of grief by reason of her separation. Matters will only get worse with them.
It follows that the proposal by the Independent Children’s Lawyer and the mother that the children live with the mother best achieves a maintenance or relationships between the children and each of their parents as well as other significant persons.
Willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent
The evidence is that prior to the mother’s relocation each of the mother and the father had in place adequate arrangements to facilitate and encourage a close and continuing relationship between the children and the other parent. So far as the Section 60CC(4) considerations were concerned each of the child’s parents took the opportunity to participate in making decisions about major long term issues in relation to the children (although the mother did more so than the father), spent time with the children and communicated with the children and facilitated the other parent to do likewise.
However the circumstances leading to relocation and since relocation itself the same cannot be said. The circumstances leading to relocation warrant some consideration in this context.
It is apparent that the mother and her present fiancé had given consideration to relocation some time before these events arose. Although the mother sought to minimise the amount of notice she had prior to relocation her fiancé was more forthcoming.
Although a job offer was only received in March it is apparent that the matter had been in the minds of the mother and her fiancé for some time. The mother for instance spoke of the decision to relocate as being as much a lifestyle decision as one designed to achieve economic advantage. I do not accept lifestyle decisions such as relocation from Brisbane to [X] are decisions made lightly. It is unfortunate but the fact is that the mother did not inform the father of her early views on relocation. The first the mother informed the father of her proposed relocation was on 29 March 2007. The information was conveyed in the context of a fate accompli with the children being relocated with the mother.
In cross-examination it was put to the father that the circumstances surrounding the change of residence from the mother's care to his involved an element of trickery and deceit.
In broad terms, the mother informed the father on 29 March that she would be relocating to [X]. The next day the father said that he objected to the mother's intention to relocate and indicated he would serve papers upon her meaning he would commence proceedings. The children were then permitted to spend time with the father over the Easter break, which the children did. The children returned to the mother and then a further occasion was requested when the father asked whether he could see the children on one further occasion before they went to [X].
Prior to that time the mother had asked the father whether he was proceeding with his earlier threat to serve papers upon her, to which the father said no. The clear inference that was drawn from that statement by the father was that the father was no longer pursuing his objection to the mother relocating with the children to [X].
Accordingly, on 9 April the mother released the children to the father and he collected the children from the mother on the basis that the children would be returned the next day. The father denies that there was any such agreement, but despite that agreement did not speak up and protest the mother's proposed relocation, but simply took the children.
By that time, he had already determined to provide instructions to his solicitors to make an application. He did not choose at that time to inform the mother that he had done so. Whilst he says that he did not intend to hold the children over, it is clear that was his interest. He says the holding over occurred because he received legal advice that afternoon (9 April ).
I consider he held over deceptively. He acknowledged in cross-examination that he had lied to the mother as to whether he was going to serve papers, the mother having earlier inquired of him about that matter and he having denied the matter.
He was aware at this time that the mother's household was packing up and preparing to travel, and he knew or had a reasonable basis to believe that the mother had terminated her employment and her rental arrangements.
Furthermore, it was apparent that the children, too, believed they were relocating as the father had done nothing to disabuse the children of that matter despite the fact that the children had been aware of the prospect of relocation since at least 29 April.
In my view, this was a significant failure on the part of the father concerning the making of decisions about major long-term issues in relation to the child. The mother had been relatively upfront in informing the father of her intention to relocate. The father, however, rather than approaching the matter in an upfront manner sought to surreptitiously and deceitfully proceed to set himself up in relation to the care of the children such as to have the children come into his care, and then hold over in the manner complained of by the mother.
The second matter which is complained of concerns the relocation of the children from the [M] School to the [E] School. It appears that immediately following the father having the children come to live with him, he withdrew the children from the [M] School and enrolled them at the [E] School. This was despite the fact that there was the prospect of proceedings to resolve matters on an interim basis. That prospect should have reasonably suggested to him that there was a possibility of an unnecessary move of the children from one school to another, pending the resolution of these matters by final orders.
The father accepted he did not consult the mother at all in relation to that matter. That is a significant matter because of the age of the children, and in particular because of the other issues that were alive in the children's lives at that time.
Clearly, it would have been apparent to the father that the children would have been disturbed by the mother's upheaval in her relocation from Brisbane to [X], and accordingly, in relation to making decisions about any issues such as schooling it would have been important for the purposes of advancing the children's best interests that the mother be consulted in relation to that matter. His omission to do so is, in my view, telling.
The mother did not appear to me to be a particularly insightful individual. Her evidence concerning the thought given by her to the impact of the news of relocation to the father is one instance. Another instance was the mother’s failure to give any consideration at all to long term spending time with orders. Indeed it was curious to me that despite the fact that she had given thought to spending time with orders in the event that the children live with her she had given no such thought to like orders in the event that the children were to live with the father.
The father also did not present as a person who was particularly insightful. To a large extent matters occurred about him. I accept the mother’s evidence that prior to the current differences between them in respect of many of the major long term issues such as education she made the decisions and the father simply acquiesced. He did not appear to be particularly involved in those decisions until the event of relocation when it became imperative that he do so. I note the mother’s acknowledgement that having been challenged to do so he rose to the occasion.
The father says that he always supported a relationship between his children and their mother. However, his conduct appears counter-indicative. For instance, the father, himself, does not speak to the mother.
The evidence is that he rarely approached the mother by telephone to deal with conflict between them. Perhaps most interestingly, I take into account, as I am required to under s60CC(AA), matters that have occurred, and circumstances that have existed since separation.
When the occasion of holiday contact came to be considered in the recent June/July (2007) it appears that the spending time with period did not occur. That occurred largely because the father says the mother would not speak to him on the telephone. However, the mother says she was unable to take time from work because she had recently commenced new employment in [X], but was happy for the children to travel to [X] and be with her. To my mind, that would have been an acceptable situation.
The father, however, says that because no arrangement was made by the mother he felt no compulsion to do so. The mother has only been able to see the children on three occasions since she departed for [X]. There appears to be no effort on the part of the father to advance the time spent by the mother, or contact between the mother and the children.
Since the relocation the mother says she has largely been unable to spend time with the children because of her present circumstances. She presently works approximately 60 to 70 hours per week in two jobs. She says this is necessary because of the financial impost upon her household associated with litigation. I accept her evidence in this regard. At the same time the father has been in employment on a full time casual basis as a delivery driver for a hotel. Despite these matters no arrangements have been put in place to facilitate the transportation of the children from Brisbane to [X] to visit their mother.
In my view both parents are equally responsible for this. The mother has not offered to pay and the father has not been prepared to organise these events. In terms of where the children live I do not think the proposal of either party will impact significantly upon this consideration. Prior to the litigation the parties had a working relationship between them which endured for some years. No doubt once the question of where the children live is resolved an accommodation will be reached between the parties. So much in any event is apparent by reason of their agreement at trial concerning spending time with arrangements. The parties each commenced with differing proposals but ultimately achieved consensus in that matter. In this regard I am mindful of the evidence of the mother that there are and have been poor lines of communication between she and the father.
Whilst I accept as fact that communication between the parties has not been great that position has ensued as much by reason of the complacency of the parties as for any other reason. It is only in the context of the present dispute that the parties have been drawn to litigation. Issues of with whom the children live are in the context of relocation are significant and their failure to communicate in respect of this matter does not satisfy me that they cannot communicate about minor matters.
In the context of this consideration I do not consider either of the mother’s or the father’s proposals are decisive.
The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other child or person with whom they have been living
I have touched upon this matter above. In this case the most significant issue concerns the separation of the children from the mother. I accept the evidence of Ms Johnson that it is preferable for the children to live with the mother as the strongest attachment exists between the children and the mother. It is particularly so for the child T. It is in this case unthinkable that the children should be separated.
In my view the Independent Children’s Lawyer and the mother’s proposals best advances this consideration.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
This matter has also been touched on above. As I have noted the parties agree concerning spending time with arrangements. Irrespective of which party has the children live with them the spending time with arrangements contended for by both parties are identical. In that context neither proposal can be preferred to the other.
The capacity of each of the child’s parents and any other person including a grandparent or other relative to provide for the needs of the child including emotional and intellectual needs
At this time the children live with the father at the paternal grandmother’s house. They share a bedroom. The father proposes to construct a downstairs bedroom so that the child L can live downstairs. That will only occur if the father succeeds in obtaining orders for the children to live with him.
The father however openly admitted that in the event the court makes orders for the children to live with the mother he is more likely than not going to relocate to be near the children. It is likely that he will relocate to either of Rockhampton or Emerald once he secures employment in either of those centres.
No question arises concerning the accommodation arrangement proposed by the mother.
Aside from physical needs I have touched upon this issue when discussing the nature of the relationship between the children and each of those persons.
In this context the mother has a greater capacity to provide for the needs of the children, particularly the child T. (If the children are happier within themselves, as they will be with the mother, then relationships with others will be much better). It is for that reason that the Independent Children’s Lawyer and the mother’s proposal best advances this consideration.
The maturity, sex, lifestyle and background of the children and of the children’s parents and any other characteristics of the children that the Court thinks relevant
The children are young. They are still emotionally bonded to the mother and are evidencing distress at their separation. On this basis the mother’s proposal best advances this consideration.
The attitude to the child and responsibilities of parenthood demonstrated by each of the child’s parents
In this case the father has paid limited child support for the children. The attitude conveyed by the father in the course of his evidence was that he paid no more than he was required to pay.
I found his evidence on this point curious, particularly having regard to the father's employment history, and indeed of the fact that for at least three and a half years, during which time he was not in employment, there was no contribution to child support. Throughout that time the father was supported by the proceeds of the manufacture of illicit drugs.
The evidence demonstrates that since approximately 1999 the father has paid only $1150.99 in respect of child support, and has not seen the need to pay more. I consider this reflects a very poor attitude of him to his responsibility of parenthood. Likewise, the fact that the father was inclined to cast the burden of care on a day-to-day basis in respect of household matters on to his mother equally reflects upon his attitude to particularly the children.
The father accepted that he provided approximately $2,700 by way of child support. He also acknowledged that the cost of the children would have been significantly well in excess of that. However despite that matter he has not offered to make any greater contribution. It was suggested to him that the cause of his minimal contribution to the cost of maintaining the children by way of child support that he might otherwise be able to afford greater contribution to the cost of travel for the children for the purpose of them spending time. He acknowledged that he would be prepared to pay half the travel costs.
Other observations on this issue were made in the context of the willingness and ability of each of the child’s parents to facilitate relationships. For reasons earlier outlined I consider the Independent Children’s Lawyer’s and the mother’s proposal best advances this consideration.
Any family violence involving the child or a member of the child’s family
As discussed above in the context of a consideration of the discharge for the presumption for equal shared parental responsibility there has been a history of family violence. However I do consider that any high risk of recurrence has passed although I accept there is a residual risk in the event that the father were to revert to his former drug habits. In those circumstances I think the Independent Children’s Lawyer’s and the mother’s proposals best advances this consideration.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children
Having regard to the father’s previous drug history and the risk that he may again fall into drug use I think that an order that the children live with the father would occasion a greater risk that the matter returns to Court for further orders than might otherwise be the case. Accordingly the proposal by the Independent Children’s Lawyer and the mother best advances this consideration.
Having regard to all the relevant considerations I am of the view that the overwhelming preponderance of matters to be considered resolves in a determination that it is in the best interests of the children that the children live with the mother as proposed in the proposals of the Independent Children’s Lawyer and the mother’s proposal.
So far as the primary considerations are concerned:
Attitude to parenting
The father was clearly heavily involved in drug use until at least 2004. He has admitted as much in his affidavit material. Under cross examination that matter was further expended upon as he described for instance the difference between the period of affect after smoking natural marijuana as opposed to hydroponic marijuana. Likewise he spoke of the affect of speed. He also acknowledged that during this time this occurred whilst he was in a garden shed. Although it is said to have occurred away from the children the fact remains that the children were for that time passed into the care of his mother.
Travel costs
The parties cannot agree in relation to this matter. Again this must be resolved by reference to best interest considerations. The parties accept the proposals for spending time with. They each agree that such a proposal should operate reciprocally in other words that irrespective of which party the children live with, the terms were appropriate. The terms contemplate travel between [X] and Brisbane and other points.
In resolving this issue I have not lost sight of the fact that the relocation was at the mother’s election. She is of course entitled to relocate as was observed by Kirby J in AMS & AIF[11]. However to relocate without regard to the expense and impost upon the other party is in my view unfair. The mother has chosen to relocate for lifestyle and economic reasons. To that end she has imposed an additional and no doubt unexpected financial burden upon the father.
[11] AMS & AIF
The father of course will enjoy some saving by reason of the relocation. He will only have his children for a short time each year which will leave him otherwise free to pursue greater employment and other financial opportunities. There should be some offset to allow for that matter. The mother’s proposal that the father purchase air tickets for the children to fly from Emerald to Brisbane and return lacks insight and is further evidence of selfishness on her part. The fact that she is entitled to orders that the children live with her is only because it is in their best interests that an order be made in those terms. Orders for spending time with the father should however not unduly impede his entitlement in that regard. Based on present estimates the cost of putting these orders into effect will be about $2,400 per annum per child. The father will no doubt enjoy a saving in that order. The mother equally enjoys a better lifestyle and earning capacity by reason of her decision to relocate. In my view it is in the best interests of the children that the costs of spending time with arrangements be borne equally. The orders will be crafted to provide that the father pay for the air fares from Emerald to Brisbane and that the mother pay for the air fares from Brisbane to Emerald.
Conclusion
The mother has relocated. Her relocation has precipitated an application for parenting orders. Despite separation for over six years parenting orders had not been required prior to this time. In view of the orders I propose it is likely the father will also relocate. Presently he lives at home with his mother, as he has done since separation.
That matter, whilst relevant is not decisive. The fact remains all the evidence demonstrates that it is in the best interests of the children that they be permitted to relocate to live with the mother. The evidence also demonstrates that long term it is in their best interests that the parents have joint shared parental responsibility.
The parties should also equally share travel costs for spending time with purposes.
Orders
In the circumstances I order:
a)That the children live with the Mother;
b)That the Mother and Father have equal shared parental responsibility for the children;
c)That the children spend time with and communicate with the Father at such times as the Mother and Father may agree but to include:
i)in the event the children reside with the Mother in [X] and the Father continues to reside in Brisbane:
(a)in Hervey Bay for the gazetted Easter school holidays in each year on an equal shared basis (alternating between the first and second halves of the Easter weekend);
(b)one weekend per term with same time to be spent by the children in Brisbane, the costs of such time to be shared equally;
(c)the Father be at liberty to give four weeks notice in writing to the Mother in advance for an additional two weekends per term with the Mother to facilitate transport of the children from [X] to Emerald or Brisbane as is requested by the Father;
(d)all of the gazetted June school holidays in each year;
(e)all of the gazetted September school holidays in each year;
(f)one half of the end of year gazetted school holidays (alternating between the first and second halves);
(g)sharing of special days where possible;
(h)the weekend which includes Father’s Day;
(i)an overnight period in any one week that the Father may be in the general vicinity of the children’s place of residence;
ii)in the event the children reside with the mother in [X] and the father relocates to Central Queensland such that he live no greater than two hours travel from [X] then the children spend two out of three weekends with the Father with such spending time with to commence on Friday after school and conclude at 6.00pm Sunday; and
(a)in Hervey Bay for the gazetted Easter school holidays in each year on an equal shared basis (alternating between the first and second halves of the Easter weekend);
(b)for half of the gazetted school holidays in June and September each year;
(c)for half of the end of year gazetted school holidays (alternating between the first and second halves);
(d)sharing of special days if possible;
(e)the weekend which includes Father’s Day;
(f)an overnight period in any one week that the Father may be in or near [X].
iii)Alternatively in the event that the Father resides between two and four hours drive from [X] the children spend time with the Father for one in every four weekends with such spending time with to commence on a Friday after school and to conclude at 6.00pm Sunday at the Father’s place of residence; and
(a)the Father have liberty to visit and spend time with the children at [X] but no more frequently than every second weekend.
iv)In the event that the children reside with the Mother in [X] and the Father relocates to [X]:
(a)the children spend time with the Father from the conclusion of school on Thursday to commencement of school the following Monday in each fortnight;
(b)for the gazetted Easter school holidays in each year on an equal shared basis (alternating between the first and second halves of the Easter weekend);
(c)for half of the gazetted school holidays in June and September each year;
(d)for half of the end of year gazetted school holidays (alternating between the first and second halves);
(e)sharing of special days if possible;
(f)the weekend which includes Father’s Day.
v)That to enable the children to spend time with the father in accordance with clause 3:
(a)the Father purchase air tickets for the children to fly from Emerald to Brisbane at the commencement of each visit and from Brisbane to Emerald and the Mother purchase air tickets for the children to fly from Emerald to Brisbane at the conclusion of each visit;
(b)the Mother to deliver the children to Emerald airport at the commencement of each visit and ensure that they board their flight to Brisbane;
(c)the Father to collect the children from Brisbane airport at the commencement of each visit;
(d)the Father to deliver the children to Brisbane airport at the conclusion of each visit and ensure that they board their flight to Emerald;
(e)the Mother to collect the children from Emerald airport at the conclusion of each visit;
(f)otherwise in respect of any travel the parents bear the costs equally.
vi)That each parent permit the children to telephone the other parent at any time the children express a desire to do so and if the Father is resident in Brisbane then he be permitted to contact the children by telephone twice weekly but otherwise once a week;
vii)That each parent keep the other informed of their residential address and reliable telephone number.
viii)That the parent with whom the children live authorise the school at which the children attend to provide information to both parents upon the request of either parent;
ix)That while the children are spending time with the Father, the Father not:
(a)consume any illegal substances nor expose the children to anybody who has or will consume illegal substances;
(b)permit the children to be driven in a motor vehicle which is being driven illegally;
(c)permit the children to travel in a motor vehicle unless they are properly restrained by wearing a seatbelt; and
(d)permit the children to ride their bikes unless they wear a helmet.
I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of Burnett FM
Associate: Beverley Schmidt
Date: 27 September 2007
0
4
1