Gilbert and Gilbert
[2018] FamCA 442
•15 June 2018
FAMILY COURT OF AUSTRALIA
| GILBERT & GILBERT | [2018] FamCA 442 |
| FAMILY LAW – INTERIM PARENTING – Review of Local Court Orders – Hearing de novo – Where the father has appealed orders made by a local court for the children to live with the mother following her unilateral relocation – Where the father seeks that the children return to the area in which he lives – Where the mother and children now live with the maternal grandparents – Where the children have been spending regular time with the father since the Local Court Orders were made – Where the mother claims the father has been more engaged with the children since separation – Where the mother has no family support in the area in which she lived with the father – Where the father has some unspecified physical disabilities – Where the father adduces no evidence as to the impact of these disabilities on his parenting capacity – Where neither party claims the children are at risk of harm in the care of the other parent under the current arrangements – Where the children appear to be settled in the new arrangements – Where it is appropriate for the current arrangements to remain with a fresh set of orders made – Orders made for the children to live with the mother and spend time with the father. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 96 |
| AMS and AIF (1999) 24 Fam LR 756 B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755 Banks & Banks [2015] FamCAFC 36 Deiter & Deiter [2011] FamCAFC 82 Eaby & Speelman (2015) FamCAFC 104 George & George [2013] FamCAFC 182 Goode and Goode: [2006] FamCA 1346 Grella & Jamieson [2017] FamCAFC 21 Malcolm & Monroe [2011] FamCAFC 16 Marvel v Marvel (No. 2)[2010] FamCAFC 101 Mazorski v Albright[2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343 MRR v GRR [2010] HCA 4 Smith & Smith [2017] FamCAFC 226 SS & AH[2010] FamCAFC 13 Taylor v Barker (2008) 37 Fam LR 461 |
| APPLICANT: | Mr Gilbert |
| RESPONDENT: | Ms Gilbert |
| FILE NUMBER: | PAC | 614 | of | 2018 |
| DATE DELIVERED: | 15 June 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 23 May 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr O'Brien |
| SOLICITOR FOR THE APPLICANT: | Campbell Paton & Taylor |
| COUNSEL FOR THE RESPONDENT: | Ms Spain |
| SOLICITOR FOR THE RESPONDENT: | Stojanovic Solicitors |
Orders
That the orders made by the Local Court at B Town on 25 January 2018 be discharged.
Pending further order
That the mother and father have equal shared parental responsibility for the children X born … 2011 and Y born … 2014 (collectively “the children”).
That the children live with the mother.
That the mother be restrained from relocating the primary residence of the children from the maternal grandparents’ home at Suburb C.
That the mother be restrained from removing the child X from his present school.
That the children spend time and communicate with the father as agreed between the mother and father in writing such writing to include SMS or email communication and in default of agreement as follows:
(a)during periods equivalent to NSW school terms, each alternate weekend commencing on the first weekend after the resumption of school term from 7pm Friday until 4pm (5pm Daylight Saving Time) Sunday;
(b)during periods equivalent to NSW school holidays for one half of such school holiday periods at the end of term one, term two and term three commencing on the first Saturday of such school holiday period at 11.00 am and concluding on the Sunday in the middle of the holiday period at 4.00 pm (5.00 pm Daylight Saving Time);
(c)during the period equivalent to NSW Christmas school holidays in a week about arrangement as agreed or in default of agreement for a period of seven (7) nights from 11.00 am 26 December to 5.00 pm 2 January then from 11.00 am 9 January to 5.00 pm 16 January then 11.00 am 23 January to 5.00 pm on the day before school resumes;
(d)on the Father’s day weekend from 7.00 pm Friday until 4.00 pm Sunday; and
(e)by way of telephone or electronic communication in the evening of each Monday, Wednesday and Friday that the children are not otherwise with the father and provided always that the mother shall have telephone or electronic communication in the evening of each Monday, Wednesday and Friday that the children are not otherwise with the mother and for the purpose of this Order the mother and father shall both ensure that the children are able to be contacted and are afforded privacy during such times.
That both parents are at liberty to attend on occasions significant to the welfare of the children including occasions relating to schooling, religious education, sport, extracurricular activities and other occasions significant to the welfare of the children.
That for the purposes of the children spending time with the father, the mother or her nominee known to the children is to deliver the children to the father or his nominee known to the children at the commencement of time at the McDonald’s Family Restaurant Suburb D (“the changeover venue”) and the father is to return the children to the mother or her nominee known to the children at the changeover venue at the conclusion of his time.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gilbert & Gilbert has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 614 of 2018
| Mr Gilbert |
Applicant
And
| Ms Gilbert |
Respondent
REASONS FOR JUDGMENT
On 25 January 2018 the New South Wales (“NSW”) Local Court at B Town made interim parenting orders in proceedings commenced in that court by the applicant father. The father’s application was in the context of the respondent mother relocating from B Town in the central west of NSW with the children to ultimately Suburb C in Sydney where she and the children live in the maternal grandparents’ home.
The orders, in summary, provided that:
a)the subject children X aged nearly seven and Y aged four live with the mother; and
b)the children spend time with the father:
i)during school terms each alternate weekend from 7.00 pm Friday to 4.00 pm Sunday;
ii)for half of the school holidays; and
iii)otherwise as agreed between the parties.
The father has now appealed to this Court under s 96 of the Family Law Act 1975 (Cth) (“the Act”). The appeal is to be determined as a hearing de novo but this Court may receive the evidence and affidavits of the parties that were before the Local Court: s 96(4)(a). This Court may make such order as it considers appropriate including affirming the Local Court orders or reversing or varying them: s 96(4)(b).
The proceedings
The father commenced proceedings by way of his Initiating Application filed in the Local Court at B Town on 12 January 2018. His application was supported by his affidavit filed the same day.
The father’s application sought final orders, in summary, as follows:
a)that the parties have equal shared parental responsibility for the children;
b)that the children live with the father; and
c)that the children spend time with the mother as agreed between the parties.
The father sought interim orders in his application relevantly as follows:
a)that the mother cause the children to be delivered to the father’s residence by no later than 5.00 pm on 12 January 2018;
b)that failing compliance by the mother with the previous order a recovery order issue for the return of the children to the father;
c)that the children live with the father;
d)that the children spend time with the mother if she is living in B Town as agreed but failing agreement from 5.00 pm Sunday to 5.00 pm the following Sunday in each alternate week and if the mother is not living in B Town as agreed between the parties;
e)that the mother be restrained from removing the children from the B Town area without the prior written consent of the father; and
f)that the mother be restrained from enrolling the children in any day-care or public school other than specifically named day care centres and public school without the prior written consent of the father.
The mother filed a Response on 24 January 2018 to the father’s Initiating Application. In that response she sought final orders, in summary, as follows:
a)that the mother have sole parental responsibility for the children;
b)that the children live with the mother; and
c)that the children spend time with the father as agreed between the parties.
The mother in her Response sought interim orders, in summary, as follows:
a)that the father’s application for interim orders be dismissed;
b)that proceedings be transferred to the Parramatta registry of the Federal Circuit Court of Australia;
c)that the children live with the mother;
d)that the children spend time with the father as agreed between the parties; and
e)that the mother be permitted to enrol the child X in Suburb C Public School.
The father filed his Notice of Appeal on 23 February 2018. The appeal was listed for directions on 3 April 2018 and on that day was listed for hearing on 23 May 2018.
The primary proceedings are now listed before a judge of the Federal Circuit Court of Australia at Parramatta on 2 August 2018.
Context
The father is presently aged 52 and the mother is aged 42.
The parties commenced cohabitation in 2007 and married in 2007.
The subject children are the only children of the relationship. The parties separated in mid-November 2017 when the mother left the then matrimonial home in B Town taking the child Y with her to E Town on the NSW North Coast.
The father’s evidence
The father relied upon his affidavit filed 9 May 2018.
The father says that the children have grown up in B Town and that prior to the mother moving from the matrimonial home the youngest child was attending day-care in B Town and the older child was in kindergarten at the local public school.
The father says that some 15 years ago he suffered a stroke and as a consequence he suffers from some physical injuries although precisely what those injuries are is not identified by him.
He asserts that he works flexible hours and is able to get the children to school and day-care.
The father says that on 31 October 2017 the mother left the matrimonial home leaving him a note as to the younger child’s day-care attendances. He says that she returned to the home five days later “in the middle of the night”. The father attended to the children’s needs during the mother’s absence.
Subsequently, on 16 November 2017 the father says that he left the home to take the older child X to school and on his return the mother had left the home with the younger child Y. He subsequently became aware when he spoke to the mother on the phone later in the day that the mother had gone to E Town. The mother, he says, said to him “I love it here, I want to live here. I like my job and you don’t support me”. The mother later suggested that the father travelled to E Town with the older child during the Christmas period and January as she had work in E Town and the younger child’s day-care was closed during that time. The father was not prepared to do so.
The mother later returned to B Town with the younger child on 24 December 2017. The following evening the mother informed the father that she was leaving in the morning and the mother left the home at 6.15 am on 26 December 2017. It appears that the mother had once again travelled to E Town.
On 29 December 2017 the father sent the mother a text message telling her “by your actions you’ve made your intentions clear, you are no longer welcome at this house”.
The children remained with the father for the next two weeks.
On 6 January 2018 the maternal grandparents visited the children in B Town. They informed the father that the mother “will be coming back here soon”. On 7 January 2018 the mother and the maternal grandmother attended at the home in B Town. Despite the father’s protests the mother left with the children.
The father notified the police of the mother’s removal of the children and in doing so complained to the police that the mother had the children in a car not fitted with proper child restraints. The father demanded that the children be returned, otherwise, he would take legal action.
The father asserts that he has always worked full-time to support the family. The mother was the primary caregiver for the children although she did work from time to time. The father says that in August 2016 the mother obtained employment at B Town that required early morning starts. The father says that he attended to the children’s morning needs, getting them ready for school or day care whilst he got himself ready for work. The father asserts that he was engaged in the children’s lives including assisting the older child with homework.
The father expresses his concerns for the children in that the relocation may have a negative impact on their psychological well-being, that they do not have adequate housing, bedding, clothing or food and that they are being exposed to an unsafe living environment.
He proposed in his affidavit filed 12 January 2018 that if the mother remains away from B Town with the children he would have time with them as agreed but was “unsure” how the mother would facilitate such time.
Subsequent to the interim orders made in January, the children have spent time with the father each alternate weekend and during school holidays as provided for. The children have their own room in the home at B Town.
The father has engaged the children with his extended family particularly for the younger child’s fourth birthday and a family reunion over the Easter period. Otherwise, when the children are with him, he provides care for them and engages them in other activities. He asserts that his disability does not hinder his ability to care for the children.
The father presently has a child support assessment in the sum of $284.79 payable monthly. Otherwise, he continues the mother’s and the children’s private health cover.
The father expresses concerns as to the mother’s living circumstances in E Town but as she says she has now moved to the maternal grandparents’ home at Suburb C in Sydney, such concerns are no longer relevant.
Should the children be returned to reside in B Town the father seeks that an equal time arrangement be implemented as to their care. He says that he would move out of the matrimonial home although he would need time to find suitable alternative accommodation for himself. His preference would be for the mother to find adequate housing for herself and the children in the B Town area.
The mother’s evidence
The mother relied on her affidavit filed 4 May 2018.
The mother says that the father provided little help in caring for the children and that she was the primary carer during the parties’ relationship. She concedes that subsequent to her obtaining employment in December 2016 that he attended to getting the children to school and day-care in the mornings.
The mother says that she would finish work at about 2.00 pm, return to the home and then attend to the children and domestic tasks whilst the father remained in his home office only joining her and the children for dinner. The mother says she received ongoing financial assistance from her mother.
The father, she says, left his then full-time job in 2014 claiming that he was “bored”. He later obtained employment with the F Ltd during which time he had a blood clot removed from his brain. Several months later he lost his job with F Ltd. The mother says that thereafter the father became bitter and short tempered.
The father later found temporary contract work living with his parents during the week and returning to B Town on weekends. This continued for about eight months. He subsequently found other employment but it lasted only a few months. The mother asserts that the father thereafter was bitter and said “I want to kill myself”. It was the mother’s view the father was suffering from severe depression and the parties attended upon a psychotherapist. The mother asserts that they were informed that the father was unable to complete certain tasks as a consequence of his earlier stroke and that he lacked spatial awareness and was depressed.
The mother says that a treatment program was prescribed for the father and he commenced receiving a Centrelink disability pension. She is not aware whether the father undertook any of the proposed treatment. She further asserts that the father suffers from insomnia and sleep apnoea wearing a mechanical sleep apnoea apparatus that she needed to assist him with. The father, otherwise, wears a knee brace which operates on electric current, the electrodes need to be changed regularly which is a task that the father cannot do. The father requires a medical certificate each year to renew his driver’s licence.
Of concern is the mother’s assertion that in mid-2017 the father telephoned her from G Town and said “I’m lost and don’t know how to get home”. She took the father to the hospital and told him that he needed to get professional assistance. She is unaware as to whether he has sought assistance.
She says that subsequent to commencing work in December 2016 she and the father have in effect been living separate lives, sleeping in separate rooms and keeping separate bank accounts. She says that the family did not operate as a unit.
She complains that the father showed no interest in taking part in family activities but wanted to stay at the home in his office, staying in the office on some occasions all day and all night. Various family activities were undertaken with the children without him.
The mother complains that during the last few years she suffered from poor health including pneumonia and chronic tonsillitis. She believes that the environment in B Town was a major reason for her health issues.
She agrees that she left the home in late October 2017 to travel to E Town. She says for a job interview at which she was offered employment that included further training and paid attendance at a TAFE course.
In mid-November she left the home and went to E Town with the youngest child who she enrolled at the local day care centre. She says that she left the child X in the father’s care as she did not want to disrupt his routine, it being close to the end of the school year. She says the child was able to do a number of things independently such as getting dressed for school and bathing.
She agrees that she invited the father to bring the child X to E Town over the Christmas and school holiday period but that the father refused. She says she informed him that she would be returning for the children and that she needed to return to E Town for employment. After her attendance at the home during the Christmas festive period, she returned to E Town on her own. She complains that the father did not facilitate her having contact with the children and made it very difficult for her to speak to them on a daily basis.
She returned to B Town on 7 January 2017 with the maternal grandmother. She agrees that she then left with the children and the maternal grandmother taking the children to her parents’ home at Suburb C in Sydney where she has remained with the children since.
She has no plans to return to B Town where she has no family and asserts that work opportunities are limited and the climate affects her health.
The father, she says, has spent time with the children in accordance with the interim orders made in January 2018. To facilitate his time she drives the children each alternate Friday from Suburb C to McDonald’s family restaurant at Suburb D where there is a changeover with the father. Before she commences the drive the children are bathed and dressed in comfortable pyjamas and have an evening meal. The drive is about three hours as is the return drive on a Sunday after she collects the children from the father.
In addition to time provided for in the interim orders the children spent additional time with the father over the Easter period from Thursday, 29 March 2018 until Tuesday, 2 April 2018. Otherwise, the mother facilitates electronic communication between the father and the children each Monday, Wednesday and Friday, save for the Fridays the children are to be with the father. The father has now implemented video communication with the children which appears to the mother’s observation to be working well.
The maternal grandparents’ home at Suburb C has three bedrooms. The mother shares a bedroom with the child Y and the child X sleeps in a separate bed in the maternal grandmother’s bedroom. The home affords a large backyard for the children to play in.
The child X now attends H School and is in year one. The mother takes the child to school and collects him at the conclusion of the school day. X is also engaged in local sports activities and has now made a number of friends both at his school and at the gym. The mother is participating in the literacy group in X’s class and also volunteers at the school canteen.
The child Y no longer attends day care as the mother is unable to afford the cost of $80.00 per day without financial assistance from the father. However, the mother has engaged the child in other activities such as tennis and gymnastics.
The children, to the mother’s observation, have a strong and loving bond with the maternal grandparents. The maternal grandfather has recently purchased a new bicycle for Y and a scooter for X and the children are able to enjoy local outdoor activities including going to the beach and parks and have recently been given a puppy.
The mother says that when living in B Town, especially during winter, the children were mostly at home and indoors due to the climate. The weather at Suburb C, to her observation, is more mild and pleasant allowing the children to participate in outdoor activities.
The mother wishes to remain living at Suburb C with the children. The children have told her that they enjoy spending time with the father who now engages them in child focused activities unlike his lack of engagement with them during cohabitation.
The mother expresses concern as to the father’s ability to care for the children due to his physical disabilities that see him require assistance from others.
The mother is a qualified tradesperson. She wishes to settle the children in prior to seeking employment but does undertake some freelance work around her obligations with the children. She expects that her full-time employment opportunities are much better in Sydney than in B Town.
The mother provides financial support for the children and claims that the father, when asked by her to provide support, has said words to the effect of “doesn’t the government give you money”.
Relocation
The Full Court said in Grella & Jamieson [2017] FamCAFC 21:
17.In that respect it is well settled by authority that any parent enjoys the right of freedom of mobility to live wherever the parent chooses to live. However, that right must defer to the expressed paramount consideration, the welfare of the child, if that were to be adversely affected by a movement of a parent (see, for example, U v U (2002) 211 CLR 238 at [89] per Gummow and Callinan JJ with whom Gleeson CJ, McHugh and Hayne JJ agreed).
Whilst that is the paramount consideration it is not the only consideration. In AMS and AIF (1999) 24 Fam LR 756 at 792 His Honour Justice Kirby said:
[144]……a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.
This particular case has as its primary element the issue of relocation.
The jurisprudence (see B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755; Morgan & Miles (2008) Fam LR 275, (2007) FLC 93-343) is clear in that such cases remain to be determined like all parenting matters by considering the best interests of the child in the context of the legislative framework.
In Taylor v Barker (2008) 37 Fam LR 461 their Honours Bryant CJ and Finn J said:
[53]…… when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible: see U & U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.
Their Honours went on to say:
[83]However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or substantial and significant time” with each parent.
In Morgan & Miles (supra), Boland J identified the relevant principles to be taken into account by a judicial officer when assessing competing proposals about where a child is to primarily reside. Those principles were cited with approval in Malcolm & Monroe [2011] FamCAFC 16.
Interim Applications
In Marvel v Marvel (No. 2)[2010] FamCAFC 101 the Full Court discussed the difficulties associated with making findings on contested evidence in the following terms:
120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
In SS & AH[2010] FamCAFC 13 the majority (Boland and Thackeray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
Later, at paragraph [100] their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In Deiter & Deiter [2011] FamCAFC 82 the Full Court was particularly concerned with the situation where the contested facts related to an assessment of risk and said at [61]:
… Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
In George & George [2013] FamCAFC 182 the Full Court cited Deiter & Deiter (supra) in confirming that the mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it.
In Eaby & Speelman (2015) FamCAFC 104 the Full Court on the same issue relevantly observed:
18.…that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
In Banks & Banks [2015] FamCAFC 36 the Full Court said:
47.As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.
48.It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
49.Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD(2014) FamCAFC 42.
50.When it is obvious that the findings made as to some of the s.60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CCfactor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
51.…
52.In the following discussion, we will detail the most significant s 60CC factors we have taken into account in reaching our decision. The absence of discussion of any particular s 60CC factor does not reflect any failure to consider it. Rather, it reflects our assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors we specifically address.
THE LAW
The relevant principles in relation to parenting and interim proceedings are well settled Goode and Goode [2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA(1) 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 child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:
a)there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child or family violence [s 61DA(2)]; or
b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)].
In Smith & Smith [2017] FamCAFC 226 at [38] the Full Court in referring to s 61DA(3) said:
[38]In Marvel v Marvel (2010) 43 Fam LR 348 the Full Court, while recognising the burden on judges in busy courts of negotiating legislation of “labyrinthine complexity”, nevertheless said this about the “exclusion” in s 61DA(3):
107.… The exclusion may also be relevant where there are numerous and complex factual issues which are incapable of determination at an interim hearing. The practical effect of the application of s 61DA(3) is that the task and complexity of decision-making on a narrow issue or issues is reduced. However the task still requires some reference to s 61DA(1) and (2) and the giving of reasons, which may be very brief, why it is considered appropriate for the exception in s 61DA(3) to be applied …
The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
Best Interests
The Primary Considerations: s 60CC(2)
The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski v Albright[2007] FamCA 520; Brown J considered ordinary definitions of the term “meaningful” and observed:
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
There appears to be no issue that both children have historically a settled relationship with both parents. It is probable that the mother presents to them as their primary long-term carer and there are issues on the evidence as to the nature and extent of the father’s engagement with the children particularly in more recent years during which the mother asserts that the father has struggled with his health and to her observation depression. It is important for the children to have an ongoing relationship with both parents with both parents able to have a meaningful relationship with the children and meaningful involvement in their lives that is important, significant and valuable to the children.
The mother asserts that she feels settled in her present accommodation in Suburb C with her parents and that both children have settled into the new arrangements. The mother is clearly averse for a number of reasons to a return of her and the children to B Town notwithstanding the father’s position that he is prepared to make the matrimonial home available for their occupation.
The mother says that she has no family support in B Town and that her prospects of returning to employment in B Town are poor. She suffered ill health while living in B Town. She does not wish to return B Town. There is no doubt conflict between her and the father. These issues suggest a probability that the mother’s parenting capacity may well be impaired should she be ordered to return with the children to B Town. Such would have the prospect of diminishing the ongoing relationship between herself and the children.
There is, otherwise, conflict between the parties that will no doubt impact upon the parenting arrangements for the children should both parents reside in B Town. The father asserts that he is able to find alternative accommodation for himself but his family support is not in B Town but elsewhere.
At present the mother asserts that the children are enjoying the present circumstances of their relationship with the father who on the mother’s evidence has stepped up in the context of his more limited engagement with the children and provided, to the mother’s observation, to the children a more meaningful relationship with their father.
There is no complaint made by either party as to the present time with arrangements for the children to spend with the father. The travel arrangements would appear to be a bit onerous for the children but neither party suggests that the present arrangements are impracticable or, otherwise, having any adverse effect on the children.
This consideration is indicative of the current arrangements being maintained pending final hearing.
Section 60CC(2)(b) – need to protect
This factor is not of great significance in the context of this matter. The father expressed certain concerns as to the children’s wellbeing in the care of the mother consequent upon the breakdown of the relationship. The mother’s circumstances have significantly changed thereafter and she is in a settled arrangement in her parents’ home with the children.
Of more concern in the context of this consideration is the father’s ongoing health, particularly as it impacts upon his day-to-day ability to engage with and care for the children. The mother gives evidence of some aspects of his disability and evidence as to some investigation as to his mental health circumstances. Curiously, notwithstanding that the father had suffered a stroke some years ago and does, even on his own evidence, have ongoing disability, he has provided to the Court no objective medical evidence going to his capacity to provide long-term residential care for the children. It is the mother’s evidence that he needed assistance in some way or another on a day-to-day basis. However, he has, it appears, demonstrated his capacity to engage with and care for the children in the more limited circumstances of the time with them afforded to him pursuant to the current orders, although it is noted that there has been significant engagement by his extended family. This can only be a good thing for the children.
The question of the father’s long-term parenting capacity and whether there are risks to the children in his care awaits a final hearing and the presentation of proper evidence. Whilst left unaddressed this aspect of the father’s case is indicative of the children remaining in the primary care of the mother.
The Additional Considerations
Section 60CC(3) sets out the additional considerations. The more relevant consideration are discussed below.
a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
There is no evidence as to any views expressed by the children. This is surprising in circumstances where some four months have passed since the children moved from B Town and during that time have passed regularly between the mother and father. The father does not contend that the children have complained to him of their move away from B Town or, indeed, of their current arrangements for time with him. The mother likewise has given evidence of no complaint by the children as to their living circumstances with her. Perhaps it can be inferred that the children have settled into their current arrangements and the restructuring of their relationship with the father quite well.
b)the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
The children’s relationship with both parents is discussed above, in particular in the context of the need for the children to have a meaningful relationship with both parents. Otherwise, the children now have significant contact with the maternal extended family at Suburb C and it appears by reason of the current contact arrangements with the father good contact with extended paternal family in the environs around B Town.
c)…
ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
The mother asserts that she and the father lived financially independently since late 2016 and that thereafter the father has provided little by way of direct financial support to her. Although it appears that he has maintained mortgage payments and outgoings on the home occupied by the family until final separation. Otherwise, post separation the mother has received little financial support from the father and at present he has a modest monthly child support obligation.
d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
There is little evidence that can assist a consideration of this factor. The children have been settled in their current arrangements with the mother for some time. Notwithstanding those current arrangements were a significant disruption to the children’s previous settled arrangements in B Town although those arrangements were overshadowed by the deteriorating relationship between the mother and the father. The father seeks orders that would facilitate the mother returning to B Town with the children as she is adamant that if the children are required to relocate to B Town she will accompany them. In that circumstance it would be appropriate that the mother and children reside in the matrimonial home with the father accommodated elsewhere. His capacity to accommodate himself elsewhere is untested as he has provided precious little evidence as to his employment, if any, and as to his financial circumstances including any capacity to provide ongoing support for the children.
The mother asserts that the children are well settled and neither party makes any complaint as to the interim arrangements for the father’s time with the children. Indeed, the mother is of the view that such arrangements have required the father to be more engaged with the children to make their time with him more meaningful on weekends and during school holidays.
There is no evidence to suggest that the father could not travel to Sydney from time to time to engage with the elder child’s school or the extracurricular activities undertaken by the younger child.
An order requiring the children to be relocated to B Town would again provide a significant disruption to their lives in circumstances where an ultimate determination may well see them leave B Town again to live in Sydney or elsewhere with the mother. Such a consideration is indicative of inflicting no further significant change in this interim period and permitting them to remain with the mother in Sydney pending final trial or, otherwise, agreement between the parties.
e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
Neither party asserts that this factor is a significant issue. Whilst the travel arrangements for the children each alternate weekend are somewhat onerous they are subject to no criticism by either party and indeed appear to have been working well with the parties able to agree as to further time for the children with the father outside the scope of the defined orders.
The mother has facilitated the father having electronic communication with the children almost each alternate day and there is no suggestion that such communication will not continue.
f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The evidence is indicative of the mother being historically the primary carer for these young children. Her capacity to provide for the needs of the children is not realistically in issue particularly in the context of the father seeking an order for, in effect, shared care should the children be required to return to B Town.
However, on the other hand, there are reservations expressed by the mother as to the father’s parenting capacity arising from the father’s long-term health circumstances particularly as to his physical disability and mental health. There is no evidence from the father that would assist the Court in assessing this issue save simply the father’s assertion that he suffers from a disability. The evidence suggests that he has engaged with a local hospital, a psychotherapist and a medical practitioner in relation to these issues. Yet not one document that would assist the Court in appreciating his health circumstances has been provided in the context of this interim hearing. The reservations as to his long-term capacity will need to be the subject of final hearing in due course.
g)…
h)…
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The mother’s somewhat itinerant movements in October 2017 to early January 2017 are the subject of much complaint by the father. They are to be seen in the context of a deteriorating matrimonial relationship possibly where the parties have indeed lived separately and apart although in the one home. It is apparent that the mother was endeavouring to ultimately make an independent life for herself and the children out from under the shadow of the poor domestic relationship between herself and the father.
The father on the other hand since separation has been reluctant to provide financial support for the mother and the children, perhaps this is understandable in the context of his chagrin as to her move to Sydney. Otherwise, there is little evidence as to this issue and a fuller determination will await final hearing.
j)…
k)…
l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
These are interim proceedings and the making of final orders will await trial and final determination. It may be that the circumstances of the mother and children change again, or further evidence comes to light as to the father’s capacity to care for the children, and in those regards it may be that some further application is made to the Court.
m)….
A review of the primary and additional considerations above is clearly indicative of the children remaining in their present circumstances with the mother and with the father having time much the same as provided for in the current interim orders. However, the mother should be restrained from further moving the children’s residence or the older child’s present schooling circumstances pending further order on application for good reason. Otherwise, there should be an order providing for the current electronic communication between the father and the children to continue with the father also able to attend on occasions significant to the welfare of the children in Sydney where the attendance of either or both parents is to be reasonably expected. In the circumstances of this matter such orders are in the best interests of these children.
The Presumption: Parental Responsibility
The court is satisfied that in all circumstances of this matter the presumption as to equal shared parental responsibility should apply. There is no issue asserted that would prevent the presumption applying.
Equal or Substantial and Significant Time
Equal time is, in the context of this matter, physically and geographically impossible, particularly where the eldest child is now at school and where the parties live some hours apart. The considerations apply to the question of substantial and significant time.
Substantial and significant time is defined in s 65DAA(3) of the Act as:
(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Whilst the current defined time appears to be working well and facilitating the children’s more meaningful engagement with the father, their distance from him makes it difficult for the children to spend days that do not fall on weekends or holidays or time with the father that allows him to be involved in their daily routine and occasions and events of particular significance to the children or the children to be involved in occasions and events of special significance to the father.
As such it is not practicable in the present circumstances to make orders for equal time or substantial and significant time. But, otherwise, it is appropriate to make an order that facilitates the father being able to attend Sydney on occasions when he is able to engage in events significant to the welfare of the children particularly as to schooling, religious education, extracurricular activities, health or other significant occasions.
Having regard to the expected timeframe for this matter to proceed to final trial, it would be appropriate to make an order for the children to spend the father’s day weekend with the father. Otherwise, they will be spending time with the father reasonably close to their respective birthdays and to the father’s birthday such that no specific order need be made.
In light of the above considerations, it is appropriate to make a fresh set of orders in lieu of those made by the Local Court at B Town. Orders will be made accordingly.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 15 June 2018.
Associate:
Date: 15 June 2018
0
14
1