GROTH & BANKS
[2017] FamCA 3
•13 January 2017
FAMILY COURT OF AUSTRALIA
| GROTH & BANKS | [2017] FamCA 3 |
| FAMILY LAW – CHILDREN – Relocation –Where the mother seeks to relocate intrastate with the parties’ six year old child – Where the father opposes the application and seeks to restrain the mother’s relocation to a certain distance or alternatively change the child’s residence – Where the Court finds it is in the child’s best interests to relocate with the mother – Presumption of equal shared parental responsibility applied – Where the Court finds it is in the child’s best interests and reasonably practicable for the child to spend time with the father – Where the parties’ respective proposals lacked detail concerning the practicalities of the child spending time with the father upon relocating – Orders made for the child to spend each alternate weekend with the father and the parties to share the travel required to facilitate changeover – the child to spend time with the father on special occasions and for half of school holidays. |
| Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 64B(2)(i), 65DAA, 69ZT |
| AMS v AIF (1999) 199 CLR 160 |
| APPLICANT: | Mr Groth |
| RESPONDENT: | Ms Banks |
| INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
| FILE NUMBER: | MLC | 865 | of | 2012 |
| DATE DELIVERED: | 13 January 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thornton J |
| HEARING DATE: | 4, 5, 6 & 7 October 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Tim North SC |
| SOLICITOR FOR THE APPLICANT: | Nicholes Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Rohan Hoult |
| SOLICITOR FOR THE RESPONDENT: | Ian Robertson Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Paul Glass |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
BY CONSENT IT IS ORDERED THAT
All previous parenting orders be discharged save for the declaration contained in orders (a) and (b) made on 11 June 2013 by Cronin J.
The father and mother shall have equal shared parental responsibility for J born … 2010 (“the child”).
THE COURT ORDERS THAT
The child live with the mother and the mother be permitted to relocate with the child to Town D.
The parties do all things and execute all documents to ensure that the child is enrolled in and attends D Primary School.
The child spend time with the father as follows:
(a)During the school term, each alternate weekend from the conclusion of school on Friday (or 3.30pm on a non-school day) until the commencement of school on Monday (or where Monday is a non-school day, the next school day) with changeovers to occur as follows:
(i)On the first occasion each month:
A.the father to:
(a)collect the child from school at the commencement of time; and
(b)return the child to school at the conclusion of time;
(ii)On the second occasion each month:
A.the mother is to:
(a)deliver the child to the father at the McDonald’s Restaurant closest to halfway between the residences of the mother and the father as agreed in writing, or in default of agreement, the McDonald’s Suburb T at the commencement of the time; and
(b)collect the child from the father at the same location at the conclusion of the time; and
B.the father is to:
(a)collect the child from the mother at the McDonald’s Restaurant closest to halfway between the residences of the mother and the father as agreed in writing, or in default of agreement, the McDonald’s Suburb T at the commencement of the time; and
(b)return the child to the same location at the conclusion of the time.
(b)During school holidays:
(i)One half of all school holidays, being the first half in even numbered years and the second half in odd numbered years;
(ii)The time in Order (5)(a) above is suspended during school holiday periods;
(c) Otherwise, as agreed between the parties in writing.
Notwithstanding any other order, the mother’s time with the child will be suspended and the child spend time with the father as follows:
(a)on Father’s Day each year from 10.00am until the commencement of school (or 9.00am on a non-school day) the following Monday;
(b)for two hours on both the child’s birthday and the father’s birthday from the conclusion of school (or 4.00pm on a non-school day) until 6.00pm; and
(c)in odd numbered years from 11.30am on 25 December until 3.00pm on 26 December.
Notwithstanding any other order, the father’s time with the child shall be suspended as follows:
(a)in even numbered years from 11.30am on 25 December until 3.00pm on 26 December.
Subject to Order 5(a)(ii), unless otherwise agreed in writing, for the purposes of facilitating the child spending time with the parents pursuant to these Orders, the parties shall cause changeover to occur at the child’s school on school days and all changeovers that occur on non-school days shall take place at the McDonald’s Restaurant closest to halfway between the residences of the mother and the father as agreed in writing, or in default of agreement, the McDonald’s Suburb T.
Unless otherwise specified or agreed, the school holiday time shall commence:
(a)for the first half of the holidays, from the conclusion of school on the last day of the school term and conclude at 4.00pm on the day calculated to be halfway through the holidays; and
(b)for the second half of the holidays, from 4.00pm on the day calculated to be halfway through the holidays and conclude at 4.00pm on the day before the school term commences.
For the purpose of these Orders:
(a)school holiday periods are defined by the school that the child is attending;
(b)the number of nights in each school holiday period shall be used to calculate one half of the school holiday period; and
(c)if there is an uneven number of nights, the mother shall retain the additional night.
The parent with whom the child is not living or spending time shall be permitted to telephone the child whilst the child is in the other parent’s care and the other parent shall facilitate such telephone communication.
BY CONSENT IT IS OTHERWISE ORDERED THAT
In the event that the child does not spend time with the father in accordance with these Orders:
(a)the father be afforded equivalent make up times at times to be agreed between the parties as soon as practicable; and
(b)failing agreement, within forty eight hours of a party informing the other the time cannot proceed, the time is to occur within fourteen days of the date on which the child was to be spending time with the father at times and dates nominated by the father and notified to the mother in writing.
Both parties be restrained from:
(a)denigrating the other party or any member of the other party’s family in the presence or hearing of the child or allowing a third party to so do; and
(b)discussing these proceedings with or in the presence of, or within the hearing of the child or allowing a third party to so do.
Each party shall notify the other party by telephone, text message or email, as soon as possible and in any event within twenty four hours, of any serious injury or illness suffered by the child while with that party.
The mother keep the father informed by email at all times in writing of the names, addresses and telephone numbers of all medical professionals who have or may treat the child.
The mother is to authorise each medical professional in writing within twenty four hours of the medical professional seeing the child in the form of Annexure A (with a copy to the father via e-mail) to provide copies of any notes, medical certificates, test results, letters of referrals, reports and letters received from other medical professionals to the father and authorise them to discuss any aspect of the child’s health with the father.
Where the child does not attend school due to illness the mother shall:
(a)provide to the father via email within four hours, advice of the non-attendance and the reason why; and
(b)in the event the child attends a medical practitioner, provide to the father a copy of the medical certificate within twenty four hours.
The mother or father be at liberty to deliver a copy of these Orders to any person or body engaged in the education, medical care, or child care of the child.
The mother forthwith authorise any school the child may attend to provide the father with copies of reports, newsletters and announcements of school activities, or otherwise pertaining to the education of the child.
If the school does not make available in writing to the father the documents referred to in Order (19) above, the mother shall then:
(a)provide written particulars, which includes by email, of such reports and/or activities to the father within three days of such documents or particulars being received by the mother from the school, and
(b)authorise staff members at any school the child may attend, to discuss the child’s progress with the father.
Both parties be permitted to attend any school the child may attend for events to which parents are usually invited.
Both parties be permitted to confer with any school the child may attend and attend any appointments individually made and the mother shall:
(a)provide any authority required by the school to give effect to this Order; and
(b)provide a copy of such authority to the father by email within fourteen days of the father making a request for such authority.
The mother will keep the father informed of all regular activities the child attends at any other organisations including the nature of the activity and all times and locations that the child attends.
The information referred to in Order (23) above is to be provided to the father by email within twenty four hours of receipt by the mother; and the mother shall provide any authority required by such organisation to give effect to this Order.
The father be permitted to attend any activity referred to in Order (23) for events to which parents are usually invited or attend.
The mother and father are hereby restrained from causing or permitting the child to undergo any religious ritual or induction, such as baptism or attend any such ceremony other than as a guest or attend any religious service, without first having obtained the other party’s prior consent in writing for the child to do so.
Both parties shall do all things and sign all documents to ensure the child participates in the following Catholic sacraments and all necessary lead ups to:
(a)First Communion;
(b)Reconciliation; and
(c)Confirmation.
Within thirty days of the date of these Orders the parties shall do all things and sign all documents necessary to obtain an Australian passport for the child, and thereafter, to ensure that the child has a current Australian passport at all times with the expense borne equally.
Should the child’s passport be unable to be located at any time the parties shall:
(a)do all things and sign all documents necessary to obtain a replacement passport for the child within thirty days;
(b)if notice has been given by one party of overseas travel in accordance with Order (31) below, the parties shall do all things and sign all documents necessary to obtain an emergency replacement passport within twenty four hours and
(c)in all circumstances the party responsible for holding the passport when it was lost shall pay all required fees for its replacement.
At times when the child is not travelling overseas, the father will retain the child’s passport and release it to the mother seven days prior to the departure date as notified to him in accordance with Order 31(b) below.
The parties are permitted to take the child out of Australia for holidays and for other short periods of time and in relation thereto:
(a)unless the parties otherwise agree in writing, the occasions on which the parties take the child out of Australia shall coincide with the time which the parent would spend with the child pursuant to the earlier provisions of these orders;
(b)the travelling party will give the other party not less than twenty eight days written notice of the proposed travel;
(c)the travelling party will furnish to the other party an accurate daily itinerary not less than fourteen days prior to the scheduled departure including:
(i)the departure date and return date;
(ii)the country or countries the travelling party and the child will be travelling to;
(iii)the approximate dates on which the child will arrive and depart each country; and
(iv)a copy of the return airline tickets and a telephone number and address at which the travelling party and the child can be contacted in each country at each overnight location;
(d)that the parties be restrained from taking the child to a country which is not a signatory to the Convention on the Civil Aspects of International Child Abduction 1980 without the written consent of the other party;
(e)while the child is out of Australia with the travelling party, the travelling party shall ensure that the other party is able to have contact with the child by telephone or webcam or video conference not less than once per week; and
(f)where the mother is travelling with the child, she will return the child’s passport to the father within seven days of the child’s return to Australia and both parties shall sign a document acknowledging the exchange of the passports back to the father.
Each party shall notify the other by, not more than twenty four hours after any change to their address and/or landline and/or mobile telephone numbers and/or their email address.
IT IS FURTHER ORDERED THAT
All extant applications with the exception of any costs application be otherwise dismissed and the matter be removed from the list of pending cases.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS DIRECTED THAT
All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.
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 Groth & Banks 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).
Annexure A
AUTHORITY UNTIL FURTHER ORDER OF THE COURT
To:
[Insert name and address of Medical Practice,
Medical or Dental Practitioner or Hospital
(“Medical Provider”)]
I, MS BANKS of in the State of Victoria hereby ACKNOWLEDGE that MR GROTH of E Street, Suburb L in the State of Victoria … (“Mr Groth”) is the father of J born … 2010 (“J”) and that Mr Groth and I have equal shared parental responsibility for J. I have no greater entitlement than Mr Groth to attend upon [insert name of Medical Provider] with or without J in relation to J’s health, and to obtain any and all documentation or information from [insert name of Medical Provider] in relation to J’s health.
I hereby AUTHORISE [insert name of Medical Provider] to furnish Mr Groth, or a medical practitioner nominated by Mr Groth, with any and all documentation or information including but not limited to medical files, reports, consultation notes, referrals and results associated with J with respect to J’s health including but not limited to his medical conditions, treatment and prognosis, as and when requested by Mr Groth and with no further notice to me.
I further AUTHORISE [insert name of Medical Provider] to provide such documentation or information by fax or email.
I hereby AUTHORISE Mr Groth to make appointments and attend upon [insert name of Medical Provider] with or without J in relation to J’s health and to be informed of J’s health including but not limited to his medical conditions, treatment and prognosis, as and when requested by Mr Groth and with no further notice to me.
Dated the day of 20….
Signed: ……………………………………
MS BANKS
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 865 of 2012
| Mr Groth |
Applicant
And
| Ms Banks |
Respondent
REASONS FOR JUDGMENT
The parents of six year-old J (“the child”) have been engaged in litigation in this Court since 2013. Final parenting orders were made in June 2013. The child has lived with the mother since birth and was conceived as a result of an artificial conception procedure through the IVF program by arrangement with the father.
The parents lived together in a relationship but separated some eight years before the child was born. When the child was born the mother was not married or in a de facto relationship. The father is the sperm donor and has been declared the parent of the child under those final orders. Those orders provided for the parents to have equal shared parental responsibility for the child and for the child to live with the mother. There are no proposals to change the order for equal shared parental responsibility for the child.
The orders also provided for a regime for the child to spend increasing time with the father including spending one half of all school term holidays commencing in the second year of school and two weeks of the long summer holidays in the third year of school. After the father filed an Initiating Application to transfer the residency of the child from the mother to him in July 2014, various interim orders were made increasing the time that the child spent with the father.
At the time of trial, by way of interim consent orders, the child was spending time with the father each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday, or Tuesday if Monday was a non-school day, and each Wednesday from the conclusion of school until 7:30 pm.
The father’s Initiating Application was amended five times and he seeks to continue interim orders which were made in July 2014 restraining the mother from moving the child’s residence. He amended his proposals during the course of the trial and his proposal to transfer the residency of the child was ultimately put in the alternative.
The mother’s Response essentially sought orders to relocate the residence of the child to Town D.
At the conclusion of the trial the parties proposed a number of other orders by agreement and I am satisfied that it is in the best interests of the child to make those orders. The orders proposed by consent are outlined in the consent orders included in this judgment.
Currently the child is living about 30-40 minutes drive from the father’s home. The distance involved in the relocation represents on the father’s evidence at most a drive of between approximately 80 to 130 minutes from the home of the father to Town D depending on the time of day. The father, the mother and the mother’s partner work in the Melbourne Central Business District. On the mother’s evidence the travel time from the Central Business District of Melbourne to Town D is about 40 minutes or 60 km and a return trip would be approximately one hour and twenty minutes.
A relocation of the child’s residence to Town D would effectively render the Wednesday spend time arrangements impractical on the evidence of the father.
There was no evidence from either party or the Independent Children’s Lawyer about the travel time for the mother’s proposed changeover location at McDonald’s Suburb T on non-school days. The father proposed that for the purposes of changeovers that do not occur at school that the parties agree on a location in writing or in default of agreement the R Children’s Contact Centre. He proposed that where there is no agreement between the parties and that Contact Centre is unavailable then changeover occur at an independent supervised contact centre nominated by him and where no such centre is available then at the McDonald’s closest to halfway between the residences of the mother and the father.
The applications
The father’s application
In the afternoon of day four of the trial, the father amended his proposals by way of Annexure A to Fifth Amended Initiating Application as follows:
3.For so long as the mother lives at locations as described in (a) and (b) hereof, or alternatively in accordance with (c) hereof, the child shall live with the mother:
(a)While the child attends [SS] Primary School, [Suburb N], within 5 km of [SS] Primary School or should there be written agreement between the parties for the child to change schools within 5 km of the agreed school;
(b)While the child attends secondary school as identified in order 31 hereof at a location that the child will be able to travel entirely by public transport to the school in no more than 40 minutes. That is (for the avoidance of doubt) the time the child takes from leaving his residence to arriving at school using public transport, not including taxis or similar, is 40 minutes or less.
(c)Within a ten (10) kilometre radius of the corner of Bourke and Swanston Streets Melbourne.
4.Whilst the child lives with the mother the child spend time with the father as follows:
(a)Each week from the conclusion of school on Wednesday (or 3:30pm on a non-school day) until the commencement of school on Thursday (or 9.00am on a non-school day) with the father to collect the child from school at the commencement of time and deliver the child to school at the end of the time.
(b)Each alternate weekend from the conclusion of school on Friday (or 3.30pm on a non-school day) until the commencement of school on Monday (or 9.00am on a non-school day) with the father to collect the child from school at the commencement of time and deliver the child to school at the end of the time.
(c)School holidays:
(i) one half of all school holidays, being the first half in even numbered years and the second half in odd numbered years.
(ii) The time in orders 4 (a) or 4 (b) is suspended during school holiday periods.
5.Notwithstanding any other order the mother’s time with the child be suspended and the child spend time with the father as follows:
(a)on Father’s Day each year from 10.00am until the commencement of school (or 9.00am on a non-school day) the following Monday;
(b)for two hours on both the child’s birthday and the father’s birthday from the conclusion of school (or 4.00pm on a non-school day) until 6.00pm; and
(c)in odd numbered years from 11:30am on 25 December until 3.00pm on 26 December.
6.Notwithstanding any other order, the father’s time with the child shall be suspended as follows:
(a)from 10.00am on Mother’s Day until the commencement of school the following Monday (or 9.00am on a non-school day); and
(b)in even numbered years from 11:30 am on 25 December until 3.00pm on 26 December.
7.Whilst the child is living with the mother, in the event that the child is unwell at times he is due to be spending time with the father in accordance with these Orders, the father be given the opportunity to care for the child on those occasions.
8.Unless otherwise specified or agreed the school holiday time shall commence:
(a)for the first half of the holidays, from the conclusion of school on the last day of the school term and conclude at 4.00pm on the day calculated to be halfway through the holidays; and
(b)for the second half of the holidays, from 4.00pm on the day calculated to be halfway through the holidays and conclude at 4.00 pm on the day before the school term commences.
9.For the purposes of these Orders:
(a)school holiday periods are defined by the school that the child is attending. Where the child changes school then the commencement date is defined by the school the child is leaving and the end date is defined by the school to which the child is moving;
(b)the number of nights in each school holiday period shall be used to calculate one half of the school holiday period; and
(c)if there is an uneven number of nights the mother shall retain the additional night.
10.Hand-overs of the child that do not occur at school will occur at a location as agreed by the parties in writing or in default of agreement at [R] Children’s Contact Centre... Where there is no agreement between the parties and [R] Children’s Contact Centre is unavailable then hand-over will occur at an independent supervised contact centre nominated by the father and where no such centre is available then at the McDonald’s closest to halfway between the residences of the mother and father.
11.For the purpose of facilitating change-over where [R] Children’s Contact Centre or another independent supervised contact centre is used then the costs of changeover are to be borne equally by the parties.
…
31.Schooling:
(a)Subject to Orders 31(b) and 31(c) or unless agreed in writing the parties shall do all things and sign all documents necessary to ensure that the child is enrolled at and attends [SS] Primary School [Suburb N] until the child completes Year 6;
(b)Should the child be accepted to attend the Xavier College in Years 4, 5, 6 or 7, both parties shall do all things and sign all documents necessary to ensure the child’s enrolment and attendance until the child completes Year 12;
(c)Should the child be accepted to attend:
(i)St Kevin’s College; or
(ii)Scotch College; or
(iii)Trinity College; or
(iv)Camberwell Grammar
from Year 4 onwards and an offer for a place at Xavier College has not been received:
(i)where possible the offer be deferred until Year 7;
(ii)where the offer cannot be deferred both parties shall do all things and sign all documents necessary to ensure the child’s enrolment and attendance at said school and where the child is accepted to more than one of the schools, preference will be given to the schools in the order listed above.
32.In the event that the mother has refused or neglected to execute any instrument/s in accordance with her obligations under any order herein, this Honourable Court hereby appoints the Registrar of the Family Court of Australia, the Melbourne Registry pursuant to section 106A(1) of the Family Law Act 1975, to execute all and any such instruments in the name of the mother and do all and any such act all things necessary to otherwise give validity and operation to the instrument/s.
In the alternative the father proposed orders that should the mother reside outside a 5 km radius from the child’s current school that the residency of the child be transferred to him. He proposed detailed orders for the child to spend time with the mother in that event. However this was not seriously pressed in submissions.
The mother’s application
In response, on day 4 of the trial, the mother sought the following orders which amended her proposals for the child to spend time with the father in her Amended Response to Initiating Application filed 22 September 2015. The mother sought the following orders:
…
6.The mother be permitted to relocate the child to the [Town D] area
7.The child to live with the mother and the child to be enrolled in school/s as follows:
(a)For the duration of his primary education;
(i) [D] Primary School, …[Town D] or in the alternative,
(ii) [A] Primary School, …[Town D]
(b)For the duration of his secondary education;
(i) [BB] College, …, or in the alternative,
(ii) [AA] College, … or in the alternative,
(iii) [H] College, ….
(c)The father to sign all documents and do all acts necessary to enrol the child in the above school/s. The father to ensure that the school/s have current contact details necessary for the school to provide the father with all school materials, including school reports and parent information.
8.In the event the mother resides in [Town D] with [the child], the father spend time with [the child] as follows:
(a)for 2 weekends out of 3 from after school Friday until the start of school Monday
(b)on Father’s Day weekend from after school Friday until the commencement of school Monday
(c)for one half of all the term holidays plus 3 extra sequential nights
(d)in each summer holiday from the last day of school until the 23rd December and from the [sic] 29 December until 15 January each year
9.In the event that the mother resides with [the child] in the Melbourne environs the child shall be spend [sic] time with the father:
(a)each alternate weekend from after school Friday until the start of school Monday and
(b)each Wednesday from after school until the start of school Thursday
…
14.For the purposes of changeover:
(a)the father to pick the child up from school and return the child to school or if a non-school day then the father to pick the child up from McDonald’s [Suburb T] and return the child to McDonald’s [Suburb T].
…
17.The parent with whom the child is not living with or spending time with shall be permitted to telephone the child whilst they are in the other parent’s care and the other parent shall facilitate such telephone communication. Both the mother and the father shall inform each other of any change to their home and/or mobile telephone numbers not less than 24 hours after such change.
18.In the event of any future dispute regarding the child, including interpretation of these orders, the parents to enter into child focused counselling at the direction of Mr. [P] before issuing any family law proceedings.
…
And the Court Notes
The mother does not claim that the father’s time be suspended in the event that the child is spending time with the father, pursuant to Paragraph 8, on Mother’s Day, her birthday or the child’s birthday.
The mother’s initial Response included an alternative proposal to relocate to the Suburb U area which was abandoned at procedural hearings before the trial.
The Independent Children’s Lawyer was appointed to independently represent the interests of the child.
At the conclusion of the trial the Independent Children’s Lawyer did not support the mother’s application to relocate with the child to Town D and supported the father’s primary proposals.
There were no submissions addressing the principles in Rice v Asplund (1979) FLC 90-725 and each of the parties and the Independent Children’s Lawyer appeared to accept that there was sufficient change in circumstances to warrant a reconsideration of the final orders.
Independently of the parties’ mutual concessions, I am satisfied that, because the mother proposes to move the residence of the child without the agreement of the father, this was not contemplated when the final parenting orders were made. I am satisfied that the mother’s proposal is a change in circumstances which warrants consideration of the parenting issues afresh in the best interests of the child.[1]
[1]Poisat & Poisat [2014] (2014) FLC 93-597 at 79,386-7 and 79,391-2.
Background
During the course of the trial the parties referred to the judgment of Cronin J. The background to these proceedings is set out in the reasons for judgment of Cronin J delivered 11 June 2013[2] and in order to put this trial into context it is necessary to extract some background from those reasons for judgment at paragraphs 41 to 61:
[2]Groth & Banks [2013] FamCA 430.
The parenting dispute
Background
41.The mother and the applicant knew each other for a number of years but had not lived together since 2002.
42.The applicant is 41 years of age and the mother 42. They met in 1991 and lived together between August 2001 and February 2002. When their relationship concluded in 2002, they executed a financial agreement to finalise the division of their property. They met again in 2004 but since that time, their relationship has been limited to that of being friends rather than as de facto partners.
43.The friendship relationship however, extended to the applicant providing the mother with financial assistance for her mortgage payments, a motor car, car insurance and airfares for a holiday.
44.In December 2007, the applicant was diagnosed with testicular cancer and had one testicle removed. He then made a decision to freeze some of his sperm. The mother knew of the cancer.
45.In January 2008, the mother approached the father and suggested that they have a child together. Because of the applicant’s illness, that is significant because she was aware that he was about to undergo chemotherapy.
46.I find they agreed that they would parent any child born as a result of their decision but at the same time, their relationship would be that of separated parents. They did not intend to live as a united couple but as friends.
47.In February 2008, the parties attended a medical specialist in sperm collection. To that specialist, the mother described the applicant as her partner. Shortly thereafter, the applicant underwent surgery and 15 straws of sperm were harvested and frozen.
48.In 2008, the IVF Program understood the parties were a couple and in 2009 the mother completed forms describing the applicant as the “donor” of sperm but also that she was his partner. She then underwent cycles of the program and became pregnant. She gave birth to [the child] in October 2010. The relationship between the parties was sufficiently sound and cooperative at that stage for the applicant to be present at [the child’s] birth. There was no dispute about paternity nor that the applicant would not fulfil some parenting roles. To the extent that during the hearing before me, the words that the applicant “was just a donor” were used, the mother responded in cross examination that:
[The father] was always going to be more than a donor.
49.The bizarre twist arose in the parties’ relationship because to the point in time where [the child] was born, neither party had told their respective families that the applicant was his father.
50.The applicant’s family was not even aware of the birth of [the child]. The mother’s family was aware that she was undergoing the IVF program and obviously had become pregnant but was not aware that the sperm was that of the applicant. The mother’s unchallenged evidence was that her parents thought that the donation was anonymous.
51.After the birth of [the child], the applicant visited the mother where she lived with her parents and where he was simply described as “[applicant’s first name]”. The family remained unaware of the truth.
52.During this time, the applicant financially assisted the mother. He paid for the IVF procedures and also for the consultations for the extraction of his own sperm. Such was the relationship that the mother obtained a rebate for the IVF expenses.
53.Towards the end of 2010, the mother’s grandmother died. The grandmother’s children had been devised her residence but the mother’s uncle wanted to sell his one half of the property. The mother’s family could not buy out the uncle and a family discussion occurred. The mother suggested to the applicant that he buy the uncle’s interest. The applicant responded by offering to provide the necessary $205,000 if that sum was recognised in the form of a trust for the benefit of [the child]. The mother and the applicant agreed that the applicant would lend the money to the mother for that specific purpose. They then attended a solicitor to draw up a loan agreement. The mother agreed that this property interest was to be [the child’s]. That necessitated [the child’s] interest being held by the mother on trust and that was to be done by declaration of trust.
54.The appointed solicitor drafted a loan agreement to which changes were made by the parties but ultimately, despite consensus and indeed the payment by the applicant of the $205,000 to the mother, the final document was never executed. That caused not only significant angst for the applicant because his money had been provided but also stress for the mother because she felt that executing the agreement would be seen as a concession by her of the applicant’s parentage of [the child]. What it did lead to was litigation in the Supreme Court brought by the applicant. I return to this topic below.
Paternity becomes publicly known
55.In around August 2009, notwithstanding his friendship with the mother and her involvement in the IVF program, the applicant began a relationship with his current partner. Without the mother’s knowledge, the applicant was dating but not living with his current partner. Because of the nature of the relationship of the mother and the applicant, that new relationship should not have been troublesome but its exposure had a significant impact on the mother.
56.It was not until the middle of 2011 that a dramatic change in the parties’ relationship occurred.
57.In about August 2011, the applicant’s current partner, who knew of the existence of [the child] but who was unaware of the paternity, came across text messages between the mother and the applicant. They naturally disturbed her because she knew that the applicant had been a friend of the mother and she wondered about his intentions. She challenged the applicant who asked her to trust him. The applicant then had little choice but to broach the subject with the mother and he did so.
58.This was a contentious subject but I find the applicant told the mother of the prospect of this family finding out about [the child] because of what his partner then knew. It is hard to discern whether it was the prospect of the paternity being exposed or the fact that the mother became aware of the applicant’s partner that caused her the most anger and anxiety. Either way, I found her reaction understandable.
The respective extended families
59.The relationship between the mother and the applicant’s parents had never been good. About 12 years ago, the mother took out an intervention order against the applicant’s mother. That ended their association. It also contributed to the applicant not being candid with his own extended family about his on-going relationship with the mother and I find, about the birth of [the child].
60.The applicant said he did not know the exact reason for the intervention order against his mother but he denied that there was still bad blood from his mother’s perspective. Just the same, his parents were kept in the dark about [the child]. He said that his parents and sister had not liked the mother in the past and they had “moved on” but he gave a different version given to a counsellor in August 2011. In evidence, he said he had speculated that his parents would have not approved of him bringing a child into the world, born outside of a marriage. I have doubts about that answer because when the applicant’s parents ultimately came into contact with the mother, it seems that the relationship was still frosty and even today, is not cordial. Nothing I heard suggested that there was any reason for the secrecy other than the parents did not approve of the mother and possibly of the applicant’s relationship with her.
61.Having said all of that, the applicant did tell his parents about [the child] in a letter which he handed to his father and to their credit, according to the applicant at least, they were excited and wanted to meet [the child].
The evidence before me was confined to events which have occurred subsequently.
I am satisfied on all the evidence of the following background facts.
The father is aged 45 and employed on a part time basis as a General Manager of a family owned company business. He works in the Central Business District of Melbourne. The mother is aged 44 and is employed as a health professional in the Central Business District of Melbourne.
On the evidence of the father “for the first 9 months of [the child’s] life there were no issues between [the mother] and [the father]. Problems with [the father] attending and spending time with [the child] only occurred following [the parents’] decision to tell [their] families as to [the child’s] true parentage and [the father’s] disclosure to [the mother] of [his] relationship with [his] now wife”.[3]
[3] Father’s affidavit filed 9 November 2015 at paragraph 4.
The mother and child are living with the maternal grandparents (who turned 70 in 2016) in their home in the eastern suburbs of Melbourne in close proximity to the child’s current school. The maternal grandparents propose to sell their home and downsize in retirement. The mother has no other accommodation but regularly stays at the home of her partner Mr N in Town D.
The mother met her partner in April 2013 and the relationship progressed slowly as he was introduced to the child. The mother’s partner is 55 years old and is employed as the chief financial officer of a statutory authority. He is committed to a loving relationship living with the mother in Town D and is financially committed to the building of a new house on the property where he lives. The child has spent regular time at the home of the mother’s partner in Town D, staying overnight, and has a good relationship with the mother’s partner. The mother’s partner is supportive of the father’s relationship with the child and prepared to assist the mother in facilitating the time that the child spends with the father.
The father lives with his wife, their two year old child and the wife’s two 11 year old children from a previous relationship. They live in the southern suburbs of Melbourne about 25 kilometres or approximately 40 minutes drive from the child’s current residence. The father met his wife in about April 2009 and commenced living with her in April 2012. The father married his wife in 2015.
I am satisfied that both parents have a close, loving and meaningful relationship with the child.
Family Court proceedings
The following is a brief summary of the applications and interim orders which have been made since the final orders were made in 2013:
·On 2 July 2014 the father filed an Initiating Application seeking orders in relation to the child’s schooling and medical issues.
·On 16 July 2014 the father filed an Amended Initiating Application seeking that child live with him and have no contact with the mother for a period of three months, and thereafter, time with the mother be reintroduced and be gradually built up to each Wednesday from 9.00am to 6.00pm and Saturday overnight.
·On 18 July 2014 the mother filed a Response to Amended Initiating Application seeking that the child live with her, the mother be permitted to relocate to Town D, the child be enrolled in schools in the mother’s local area, the matter be referred to a Roundtable Dispute Management Conference/Mediation, an Independent Children’s Lawyer be appointed, a family report be prepared by Mr P, and the final orders be amended to provide for changeovers to occur at the R Contact Centre (on an interim basis) and, on a final basis, at the closest McDonald’s to the half way point between the mother and father’s residences.
·On 18 July 2014, Senior Registrar FitzGibbon made orders appointing an Independent Children’s Lawyer and providing for the father to spend time with the child each Wednesday and Friday mornings and restraining the mother from relocating the residence of the child from his current residence in Suburb N.
·On 14 August 2014 the father filed a Further Amended Initiating Application seeking orders in substantially the same terms as his application of 16 July 2014, with the addition of a number of other interim orders sought, including that the child be enrolled in and attend kindergarten at the O Centre each Monday from 9.00am to 3.00pm, each Wednesday from 9.00am to 10.00am and from 5.00pm to 5.30pm and each Friday from 9.00am to 3.00pm; that the child to spend time with the father each Wednesday from 10.00am until 5.00pm with the mother to deliver the child to the kindergarten each Wednesday at 9.00am and collect the child from the kindergarten at 5.30pm; and that the child spend time with the father each alternate weekend.
·On 21 August 2014 Senior Registrar FitzGibbon made orders (largely in accordance with the interim orders sought by the father in his Further Amended Initiating Application filed 14 August 2014) for the child’s enrolment in kindergarten at the O Centre with sessions to commence 25 August 2014 each Monday from 9.00am to 3.00pm, each Wednesday from 9.00am to 10.00am and from 5.00pm to 5.30pm and each Friday from 9.00am to 3.00pm, and providing for the child to spend time with the father from 10.00am until 5.00pm each Wednesday with the mother to deliver the child an hour earlier and collect the child half an hour later from the O Centre. Orders were also made for the child to spend time with the father each alternate weekend from 3.00pm on Friday until 5.00pm on Saturday and for the parents to provide authorities to institutions with the assistance of the Independent Children’s Lawyer to give effect to the final orders made 11 June 2013.
·On 1 December 2014 Senior Registrar FitzGibbon made consent orders for the child to spend time with the father each Wednesday from 10.00am to 5.00pm and alternate weekends from 3.00pm Friday until 5.00pm Sunday. By consent an order was made restraining the mother from causing the child to be enrolled in or attend any kindergarten, playgroup, or school in the Town D area. The orders effectively restricted the child’s enrolment to the O Centre and the child’s current school. Consent orders were also made restraining the mother from causing or permitting the child to remain in the Town D area overnight for more than one night during Monday to Friday each week without the father’s written consent.
·On 7 September 2015 the father filed a Further Further Amended Initiating Application seeking final orders for, amongst other things, that the child live with the father and spend substantial and significant time with the mother. The father also provided an alternate position for the child to spend time with him in the event that the mother does not relocate and lives within a certain distance from the child’s school in Melbourne.
·On 22 September 2015 the mother filed an Amended Response to Initiating Application seeking final orders that, amongst other things, the mother be permitted to relocate with the child to Town D and that the child spend substantial and significant time with the father. The mother also provided an alternate position for the mother to relocate to the Suburb U area in the event that she is not permitted to relocate with the child to Town D.
·On 29 September 2015 the father filed a Fourth Amended Initiating Application seeking an additional order that the child’s surname be changed from ‘Banks’ to ‘Groth’ or ‘Banks-Groth’.
·On 5 October 2015 I made interim consent orders which provided for the child to spend time with the father from the commencement of school in 2016, each Wednesday from the conclusion of school until 7.30pm and each alternate weekend from the conclusion of school Friday until commencement of school on Monday.
·On 19 February 2016 the father filed a Fifth Amended Initiating Application whereby the father’s primary position was no longer that the child live with him provided that the mother lived within a certain distance of the child’s school in Melbourne. In the event that the mother did not live within a certain distance of the child’s school in Melbourne, the father sought that the child live with him and spend substantial and significant time with the mother. The father abandoned his proposal that the child’s surname be changed.
·On 22 February 2016 the father filed an undertaking to pay the mother child support of $175 per week.
Issues
The detail of the parties’ proposals changed during the course of the trial.
The key issue is whether it is in the best interests of the child to permit the mother to relocate the child from Suburb N to Town D where she proposes to live with her partner. Inherent in this issue is the question of whether it is in the best interests of the child to change schools.
The arrangements for the child to spend time and communicate with the parent with whom he does not live and the changeover venue were also in issue.
Whether the child should live with the father was raised as an alternative issue in the trial but was not ultimately pressed by the father. The father proposed in the alternative that, in the event that the mother does not herself live at a location within 5 km of SS Primary School or any agreed school, that the child shall reside with the father and spend time with the mother.
The Independent Children’s Lawyer in his Case Outline did not support the father’s application for the child to live with him. The issue in the alternative was not referred to in final submissions.
Both parents sought orders for the enrolment of the child in secondary schools but did not press this in submissions.
Ultimately a number of other issues were resolved between the parties and consigned to a consent minute for incorporation into the final parenting orders.
Evidence
The documents relied upon by each party are listed in Annexure A to these reasons for judgment. A number of exhibits were tendered by each party. The parents, the father’s wife, mother’s partner and the Family Consultant were cross-examined. The expertise of the Family Consultant was not challenged.
Standard of Proof
The relevant standard of proof is the balance of probabilities. Without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.[4]
[4] Evidence Act 1995 (Cth) s 140.
Evidence of the father
The father’s initial proposal was for the child to change residence from the mother to him and to change schools to a primary school close to his own home. This was ultimately amended to an alternative which was not pressed.
In his affidavit material the father deposed to being concerned that the relocation would provide the mother with “an ongoing opportunity to alienate” the child from him which would not be in the best interests of the child. He deposed to various historical episodes where he maintained that over a lengthy period of time the mother has not facilitated the child’s relationship with him and obstructed his involvement in the child’s life. He referred to the practical difficulties for the child travelling between Town D and his residence in Suburb L which he maintained would take between 80 and 130 minutes on a weekday and would require him to leave home between 6:30am and 7.00am to ensure the child attends school on time in Town D. He deposed “I do not regard time spent driving on a highway as quality one-on-one time”. He referred to the fact that spending time mid-week would not be practical in the event that the child resided in Town D.
The father deposed to being concerned about the reduction in time that the child might spend with him and his wife, younger sibling and his wife’s children.
The father deposed to practical difficulties in the child attending D Primary School because the bus route did not include the mother’s partner’s address which is 3.5 km from the school. He also deposed to the before and after school service as having not been assessed by “Australian Children’s Education and Care Quality Authority” as of 1 November 2015. He deposed to the child’s current school having “an out of school care program run by Camp Australia” which operates before school between 7.00am and 8.30am and after school between 3.15pm and 6.00pm. The father maintained that the most recent NAPLAN results for schools in Australia provided from 2014 showed that at Year 3 the child’s current primary school had substantially higher results than D Primary School and the results at Year 5 level show the schools are similar.
The father contended that the child’s current medical clinic located in Suburb G is 19 km from his own home but that this represented a difficulty should the child relocate to Town D.
The father deposed (at paragraph 55 of his affidavit filed 9 November 2015) that he is unable to relocate from the Suburb L to Town D for the following reasons:
· he and his wife and children have recently moved into a house that was purpose-built for their family in the same suburb where they had previously lived and such a move would be “an enormous upheaval for all our family”;
· his family is integrated into the local community with the children attending local primary schools where they are settled and it is planned that they attend the local secondary College. The children participate in local sports clubs and have established friendship groups in the area;
· the child J’s half sibling “is linked to the local maternal health care nurse”;
· he and his wife have a support network of friends amongst the local community particularly related to school;
· his extended family, including parents and his sister and her family, live in Melbourne and a move to Town D would make spending time with them more difficult for the child including spending time with his cousins;
· his wife’s extended family live a short distance from the father’s home and provide childcare assistance; and
· his family business is based in the Melbourne Central Business District and he could not relocate “without significant adverse impact” on his employment.
The father deposed to commencing the proceedings seeking a change of residency for the child from the mother to him primarily due to the extreme problems that were occurring between the parties during changeover. He detailed the numerous difficulties that he had encountered with the mother and her parents before July 2014 which included difficulties in the child transitioning to him which he maintained were caused by the attitude of the mother and the maternal grandparents. The father deposed to the difficulties at changeover escalating to the point where the mother and her parents became increasingly verbally abusive and physically violent towards him and his sister when the child commenced spending overnight time with him. He deposed to deciding not to spend time with the child between 4 June 2014 and 21 June 2014 “due to the mother’s continuing obstruction of changeover and the increasingly violent incidents occurring at changeover.”[5] He deposed to the mother and the maternal grandparents refusing to refer to him as “Dad” or “Daddy” in the presence of the child and referring to him as “the donor”, “a friend” or simply by his first name.
[5] Father’s affidavit filed 19 October 2015 at paragraph 114
The father produced evidence that between August 2014 and November 2014 the child was absent on 20 occasions from the O Centre and deposed that, to his knowledge, no medical certificates were provided for any of these absences. The attendance records also indicated that on 26 occasions the child was dropped off later or collected earlier by the mother than stipulated by the orders of 21 August 2014.
The father deposed to the mother “rarely” facilitating the child spending time with him beyond the time ordered by the Court. He deposed to the mother failing to provide him with medical authorities and access to the child’s medical records notwithstanding that authorities had been provided to her for signature by her former solicitors after the final parenting orders were made. He deposed to a delay of eight months caused by the mother’s failure to complete authorities despite her agreement for him to contact the clinic where the child attended. He deposed to further difficulties in the mother’s execution of medical authorities which were incomplete and which caused him to return to the Court to obtain orders in August 2014. The father deposed to concerns about the child’s immunisation record being incomplete but that after communications with the mother he was satisfied that the child’s immunisations were up-to-date and he confirmed this through Medicare. The father also deposed to historical episodes where he had not been recorded as the child’s guardian on a patient admission form which occurred before the final parenting orders were made in 2013. Ultimately, during the trial the parties agreed to consent orders regarding the completion of medical authorities (a copy of the form of authority that the parties have agreed that the mother is to execute is Annexure A to the orders).
Leave was granted for the father to adduce further evidence since the filing of his last affidavit. He gave evidence about four matters which caused him concern about the mother’s attitude towards his relationship with the child. These were about the following:
·Difficulties caused by the mother failing to facilitate his registration as the child’s parent on the school online noticeboard in July 2016 (he could ultimately only view and not amend the profile);
·A dispute with the mother about a period of one and a half hours for the return time from his spend time arrangement on a Wednesday of the child’s school athletics day;
·An allegation that the mother had told the child that he was responsible for stopping the child from travelling overseas for the school holidays with the mother. The father claimed that the child had told him this sometime before June 2016; and
·A failure to facilitate his time with the child on the weekend of Saturday 30 July 2016 when he saw the child from 3.30pm on Sunday and the child told him that he had “been to [Town D]”.
In his affidavit material the father deposed to some occasions when the mother and her family had denigrated him in the presence of the child. The mother in response to that affidavit material did not admit that conduct but provided no evidence as to her own version of events. Counsel for the mother put to the father that the language described by him in his affidavit (at paragraph 45) had not been used by the mother and in response he stated “I rely on my affidavit”.
When asked by the Independent Children’s Lawyer if he had a conversation with his wife about moving to Town D, the father maintained that he had a conversation but it was not something which his wife would want to do. He cited reasons similar to those provided in his affidavit material such that he worked in Melbourne, that his wife and children had the support of extended family, and the local community where the children went to school. He said that this would be “upheaving four people”.
Cross-examined about the difficulties for the child transitioning to his mother at changeovers, the father conceded that he had implemented a routine when returning the child to the mother at McDonald’s, of pulling over on the freeway to give the child a hug so that the child would not feel uncomfortable hugging him in the presence of the mother. He said that he had done this after the child told him that he did not like to kiss him in front of his mother. The father gave an example of an occasion where the mother encouraged the child to kiss him in front of her in a “jestful way” and when the child did not do so they both laughed, and he left. He described this as “their little joke”.
The father went on to describe the circumstances of the changeover at McDonald’s as taking about 30 seconds and that the child just wants to “get out of there” and that the mother is uncooperative in answering any of his questions at the time of changeover. He suggested that she would say “Can’t talk now. I’ll ring later” and that she would not follow up which led him to utilise email.
The father agreed that he suspected “without proof” that the child is influenced not to share information with him.
In cross-examination the father refused to accept any responsibility for what the Family Consultant had described as a “cauldron of discontent” and “battleground” between the parties. When asked whether he accepted that both parties had contributed to this situation, he responded “I struggle to see how I’ve contributed to it. I feel I have done everything the mother has asked to resolve the discontent. I find it difficult to put my hand up for any responsibility.” When asked about the fact that the Family Consultant was of the view that he had been unsuccessful in his attempts, the father responded “I’ve done everything [Mr P] recommended and the mother has virtually done none of it.”
Evidence of the father’s wife
The father’s wife was cross-examined and gave evidence that the father had a fantastic relationship with the child and that he spent time reading with him and doing special things with him. She said that the relationship was “amazing” and that her own children were envious about the relationship that the child had with his father because they did not have a similar relationship with their own father. She stated that the father of her two children lives in Brisbane and he sees them every school holidays for about one week.
Cross-examined by the Independent Children’s Lawyer, the father’s wife confirmed that the child’s relationship with his mother is very important. She stated that the child is encouraged to talk about his mother and he occasionally mentions things that he has done with his mother.
Contradicting the evidence of the father, she stated that she had not talked with the father about moving to Town D. However she said that this was something that she would not contemplate. She cited similar reasons to those given by the father and suggested that she would not want to live in close proximity to the mother in Town D. She stated that this was because of historically negative interactions between her own children and the mother. She stated that at present she does not live in close proximity to the mother because the mother lives about 20 km away which is about half an hour and the child’s activities are focused in that suburb.
Evidence of the paternal aunt
The evidence of the paternal aunt was not challenged. She deposed that she is married with three children aged 11, 10 and six who have a close relationship with the child. She deposed to the child spending time with her children at a park, attending birthday parties and enjoying sleepovers and holiday time at the beach with the father and his wife and her children. She detailed changeovers where she attended and in particular between April and May 2014 and February 2015 when she complains that the mother was aggressive and abusive in the presence of the child. The paternal aunt outlined occasions in May 2014 where the changeover was not effected because of the mother’s reluctance to allow the child to be picked up by the father. She referred to notifying the mother that she proposed to video her because she alleged that the mother was in contravention of court orders. She deposed to the mother forcefully grabbing her hand whilst she was holding the phone camera.
The paternal aunt complained about the behaviour of the maternal grandparents at changeover when they attended with the mother. She deposed to the most serious incident occurring at changeover on 31 May 2014. She described the mother and the maternal grandparents acting aggressively and denigrating the father in the presence of the child. She asserts that the child was distressed. She described feeling intimidated by the mother and the maternal grandparents and complains that the mother followed her into the dry cleaners and refused to leave the store.
At paragraph102 of her affidavit the paternal aunt deposed:
In early 2014, I observed [the mother] becoming increasingly anxious and angry about sleepovers starting at [the father’s] house in May 2014 pursuant to the 2013 final orders. In front of [the child] [the mother] would throw [the child’s] bags at [the father] and me, pull inappropriate faces, glare complain about my presence and tell me I wasn’t wanted or liked by [the child]. [The mother] also pushed herself up against me, and grunted and stamped her feet or clenched her fists. This behaviour appeared to be triggered if it was apparent that [the child] was transitioning without much distress between [the mother] and [the father]. I observed from April 2014 onwards that [the mother] refused to allow [the father] to pick [the child] up. Every time he did so, she started screaming in front of [the child] “Oh my god ... Put him down, put him down” or alternatively she said “Now I have spoken to [the child] and I have told him that you will not pick him up today, okay?”. This made handover almost impossible as [the father] couldn’t even pick [the child] up to put him in the car.
The paternal aunt also deposed to the child becoming anxious before returning to the mother from spending time with the father and the child being concerned about ensuring that the father left quickly at changeover because the mother does not want to see him.
The paternal aunt deposed to the child having an affectionate and loving relationship with the father when spending time with him in the absence of the mother and enjoying activities together.
Evidence of the mother
The mother deposed that she and the child reside with her 70-year-old parents in their home in the eastern suburbs but that it is an old house which requires “a lot of maintenance and upkeep”. She deposed that the maternal grandparents’ home is the main source of superannuation and they wish to downsize to a smaller more manageable home to enjoy retirement with the money they receive from the sale.
Regarding her proposal to live in Town D, the mother deposed that the trip from Town D to Melbourne is via a dual carriageway which is zoned at 110km/h. She deposed to her partner asking her to relocate to Town D and to making a decision to do so and apply for permission to move the child’s residence in July 2014. The mother deposed to her partner advising her that “he could not relocate to Melbourne because he has invested a large sum of money into improving his land; he had also invested a large sum of money to build a new home; he preferred the lifestyle in [Town D].”[6] The mother at that time proposed that when the child is spending time with the father, he collect the child from school on Friday and return him to school on the following Monday or if the Monday is a non-school day then on the Tuesday. The mother also proposed halfway changeovers at McDonald’s Suburb T or some other agreed location.
[6] Mother’s affidavit filed 2 November 2015 at paragraph 23.
The mother deposed to the child having established a very loving and trusting bond with her partner. She deposed to her partner having given the child a puppy for Christmas in 2014 and the child being very attached to the dog. She deposed to the child engaging in activities with her partner and having joined a weekend playgroup for bushwalking with children and parents so that she has made friends with other residents of Town D. She deposed that the child refers to her partner by his first name and that the child is fully aware of his own father.
The mother deposed to having made enquiries about the schools in the Town D area and that the D Primary School has better NAPLAN results than the child’s current school. She noted that the school has its own school bus and before school program which commences at 6.30am and an after-school program which concludes at 6.30pm, which is particularly helpful given her employment obligations. She deposed to her partner having flexible start times in his employment and therefore having the capacity to assist the child preparing for school and delivering the child to school on mornings when she had worked night shift. She noted that the child’s current school commences at 8.35am and does not offer a before school care program which is difficult given that her night shift roster concludes at 8.00am.
In cross-examination she gave evidence of working part-time three nights per week on a rotating roster contract generally working from 9.30pm until 8.00am. However she stated that she currently has regular nights being Wednesday, Thursday, Friday in one week and Monday, Saturday, Sunday in the other week. When questioned about not being available to participate in changeover to or from school she maintained that she has done this “so far and it works well”.
The mother deposed to the cooperation between the parents which occurred when the child attended the father’s wedding in 2015 and also improvements in the child’s transition to the father when spending time with him since September 2015 when the parents came to an agreement for the child to spend four days with the father which was not court ordered during the school holidays. The mother deposed to successfully incorporating the use of a diary between the parents after receiving suggestions from professionals on strategies to minimise conflict and to build the child’s confidence when transitioning to the father.
Concerning her financial circumstances the mother deposed that a medium rental for the area where she is living would amount to $495 per week and that there are less than 50 rentals per year. She deposed to this rent amounting to nearly half of her income after paying other living costs such as electricity, gas, food, insurances and that she would be “living hand to mouth”.
As to her income she deposed to earning approximately $1,560 per fortnight but that she no longer has sick leave available. She deposed to the father currently paying $1,234 per month in child support which he has paid since approximately November 2013. In cross-examination she conceded that she had deposed to an income which was $500 per fortnight less than the average of what she received. She explained that she did not get sick leave and appeared to be uncertain about whether the undertaking provided by the father would eliminate her financial difficulties.
When questioned about her uncooperative approach to other nominated persons collecting the child in March 2016 on behalf the father when he had work commitments, the mother responded that she could not remember and stated that she had offered the father make up time.
When asked about why she did not provide details of other proposals to relocate to another suburb when further information was sought by the father, the mother stated that she did not respond because “it just got too hard.” She stated that she had to sell her unit to pay for the legal proceedings. When asked whether the father was “in the business of maliciously or unreasonably interfering in her life”, she responded “No”. When asked whether she could live within a 5 km radius of the child’s current school, she maintained that her application was to move to Town D with her partner. She stated “we could if we wanted to but we want to live in [Town D]” and stated that she could “not afford to buy a property anywhere now”.
The mother maintained that the travel time from the Central Business District of Melbourne to Town D was about 40 minutes or 60 km from the Central Business District. She was unsure of the distance from the father’s home to Town D. She was not in a position to contradict the father’s estimate of 130 minutes travelling time from his home to Town D and double that time for a return trip.
Regarding the child’s health the mother deposed that the child enjoys very good health, has suffered the normal range of childhood ailments and is meeting all the normal developmental milestones. She deposed to the child suffering from a “viral associated wheeze” which he first suffered in 2012 and followed up at the respiratory clinic of the X Hospital. She deposed to the child having been diagnosed by the Director of Respiratory Medicine with “viral associated wheeze” and that she was advised that he will grow out of this condition between the ages of six and eight. The mother deposed to having kept the father informed at all times of the hospitalisation of the child and of all medicines and treatment he required. She deposed to the father having attended the X Hospital when the child was admitted and to the father having emailed the Director of Respiratory Medicine to confirm the diagnosis.
The mother deposed that the Chief of Surgery and Head of Urology at the X Hospital confirmed that the child does not have any urological problems during a consultation with both parents and the paternal grandmother. The mother maintained in cross-examination that there is a “really great medical centre in the town” of Town D which offers pathology, physiotherapy and other services.
In cross-examination the mother was prepared to apologise and concede that she made a mistake about the terms of the orders made by the Senior Registrar on 21 August 2014. She explained that because the orders required enrolment she did not understand that the child was required to attend the sessions at times when she was available to care for him instead. She maintained that when those orders were clarified in December 2014 she complied with them. She conceded that the child’s enrolment at the O Centre was to ease his transition to school and pointed out that this was successful. She reluctantly agreed that it was also a basis for easing the transition to the father for the child. However she denied that she sabotaged the arrangement to influence the child against the O Centre by making it clear that she was unhappy with his enrolment there. She stated that it was ridiculous to suggest that she told the child not to eat at the home of the father or at the O Centre.
Regarding Annexure RG1 to the father’s trial affidavit, being a letter dated 28 November 2014 to the Independent Children’s Lawyer from the manager of the O Centre, she was ultimately prepared to concede that she had left the O Centre in no doubt that she was not happy with the child attending there and that the child would have picked up on this. Notwithstanding that she had consented to court orders for the enrolment, she stated that the O Centre did not meet her standards and the manageress was hostile towards her. She maintained that the father had selected the O Centre.
The mother was also prepared to concede that notwithstanding a restraining order upon her relocating to Town D with the child, she swore an affidavit on 26 November 2014 which deposed to her spending five out of seven nights with the child at Town D and that “[The child] and I have embraced the community of [Town D] and in return have been embraced by the local community”.
In the same affidavit she deposed to registering the child for kindergarten on a Tuesday and Thursday at Town D. In her evidence she maintained that she continued to live with her parents in Suburb N with the child and that when she worked on three nights during the week, the child slept at the home of her parents where she also lived. She maintained that she did not live at Town D and that both she and the child lived at the maternal grandparent’s home in Suburb N.
In cross-examination the mother was not prepared to concede that she had “gone shopping” for other advice at the same time that both parties were consulting the Family Consultant. In her affidavit material she complained that the father would not cooperate with her proposal to seek other advice. In cross-examination she pointed to the fact that the strategies were not working in transitioning the child and did not agree that she was not prepared to accept the Family Consultant’s advice.
The mother agreed that her partner had declined an invitation by the father to meet and that she agreed with his decision in the midst of the litigation.
Concerning the father’s complaints to the Family Consultant that the mother had failed to provide authorities for the child’s medical practitioners, the mother stated that she had previously signed numerous authorities for the father. She stated that all authorities were signed.
The mother denied that she had encouraged the child to refer to his father by his first name and stated that it was up to the child to refer to his father in whatever way he liked.
Referred to the Family Consultant’s comments that the child does not want his mother to see him being nice to his father, the mother ultimately stated that she would prefer that the child not “feel that way”. However when it was put to her whether she found that to be a matter of concern when she read it in the report, she said “not particularly”.
The mother was referred to comments by the child to the Family Consultant that he was confused by his mother telling him that his father does not like her. The mother denied that she had said this to the child.[7] In cross-examination she accepted that the child had said this to the Family Consultant and “obviously [the child] has picked up on something”. She insisted that she supports the relationship between the child and the father and that she would not jeopardise that. She said that the child looks forward to spending time with the father. She conceded that if the Court found that she had said these things to the child, that would support the view that she has not been supportive of the relationship.
[7] Family report dated 31 August 2016 at paragraph 13.
Cross-examined about whether her attitude towards the father had been hostile and aggressive during sessions with the Family Consultant in 2013 and 2014, the mother repeatedly stated that she could not remember.
Under cross-examination the mother maintained that she had been counselled by Mr P and Miss Q and that she had a change of mind and was cognisant that it was very important for the child to have the father in his life and to spend time with him. She denied that she was resentful about the final orders made in June 2013 but agreed that there were difficulties at changeover. She denied telling the child that the father does not like her but was prepared to concede that the child may have “picked up on something”.
Regarding the dispute between the parties about the child travelling overseas, the mother conceded that she did not bring a court application because she had hoped that there would be some agreement and she didn’t want to “waste court time and money just to get a passport.” She stated that the father would not sign a document for the passport. She denied telling the child or “planting the idea in his head” that the father was responsible for the child not travelling overseas. She stated that she told the child that the reason was that she did not organise his ticket in time.
Cross-examined about the father’s access to the school online noticeboard she maintained that she had experienced difficulties with the program and that she had offered the father the use of her password after having unsuccessfully tried to provide him with access. She maintained that it was an oversight that she had not recorded the father as an emergency contact when she completed the application for access to the school online noticeboard because the school had hard copies of the information about the father as an emergency contact and she completed the form in a hurry.
Evidence of the mother’s partner
The mother’s partner deposed that he is 55 years old and employed as the Chief Financial Officer of a statutory authority. He deposed to having no children and wanting “to move forward into a fully committed loving relationship living in [Town D]” with the mother.
Section 60CC(3)(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
It was inappropriate in this case to seek the views of 6 year old J about relocation having regard to his young age. However I have given some weight to the fact that he is of school age and has already established a meaningful relationship with the father. Developmentally this is an important foundation.
Section 60CC(3)(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 child has a meaningful and loving relationship with both parents and their respective partners and families.
Section 60CC(3)(c): the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child
Both parents have made every effort to take the opportunity to participate in making decisions about major long-term issues in relation to the child and to spend time and communicate with the child. This has been overshadowed by the context of the litigation.
Section 60CC(3)(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
Both parents have fulfilled their obligation to the maximum extent to maintain the child.
Section 60CC(3)(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
The likely effect of any changes in the child’s circumstances including any separation from either of his parents is a significant additional consideration here. The father has been spending time with the child each Wednesday after school and this is likely to become practically impossible and not in the best interests of the child having regard to the distance between the homes if the mother relocates to Town D. However on the evidence of Mr P, should the child spend each alternate weekend and half the school holidays with the father, this is a viable option to maintain the child’s meaningful relationship with the father. The child’s circumstances upon changing schools will no doubt require an adjustment that this was not identified by Mr P as a matter of concern.
Section 60CC(3)(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
Although there are practical difficulties in the child spending time with the father if the child is permitted to relocate to Town D, the parents have not historically lived in close proximity. The father works part time and has the capacity to implement the spend time arrangements referred to by Mr P should the child’s residence be relocated to Town L. I am mindful of the travelling time involved for the child spending time with the father which will be greater than the current arrangement. However on many occasions the father will be travelling from the Melbourne Central Business District after work on a Friday to Town D and returning to Suburb L. This will involve a trip for the child on Friday after school of between 80-130 minutes. The travel before school from the father’s home to Town D each alternate weekend will present a challenge because it will require an early start but Mr P did not identify this as a problem for the child.
Section 60CC(3)(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
I am satisfied that both parents have the capacity to provide for the needs of the child including emotional and intellectual needs.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
I am satisfied that both parents have acted responsibly regarding their responsibilities of parenthood generally but their attitude to the child has been clouded by the conflictual relationship since litigation began.
Section 60CC(3)(j): any family violence involving the child or a member of the child's family
Serious allegations have been raised on the evidence of the father and the paternal aunt about the conduct of the mother at changeover in 2014 and in February 2015. These allegations also relate to the conduct of the maternal grandparents in the presence of the child. Counsel for the father submitted that “the horrendous events in 2014 in relation to changeover … are indicative of an underlying attitude”.
I do not make any findings of family violence because of the seriousness of the allegations which are denied. Rather I find that the evidence about changeovers corroborates the evidence of Mr P about the negative attitude of the mother.
Section 60CC(3)(k): if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter
On the evidence before me there are no family violence orders applicable to the child or a member of the child’s family.
Equal shared parental responsibility
There is no dispute that the presumption of equal shared parental responsibility applies in this case. The parents here are in agreement that an order be made for equal shared parental responsibility for the child. On all the evidence I am satisfied that it is appropriate for an order to be made for the parents to have equal shared parental responsibility for the child. A parenting order providing for equal shared parental responsibility for the child mandates consideration of s 65DAA.
Equal time and substantial and significant time
Under s 65DAA(1) of the Act if a parenting order provides that a child’s parents are to have equal shared parental responsibility, the Court must:
a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Section 65DAA(2) provides:
(2)Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Both the best interests of the child and whether it is reasonably practicable must be satisfied (see Strickland J in Ulster & Viney (2016) FLC 93-722 at 81,605 referring to the Full Court in Beckham & Desprez [2015] FamCAFC 247 at [21] – [28]).
Under s 65DAA(3) a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parenting includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays;
(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.
In Ulster & Viney (supra), Ainslie-Wallace and Ryan JJ considered “substantial and significant time” as defined in s 65DAA(3) of the Act. Strickland J agreed with their findings and reasons in relation to the meaning of “daily routine” in s 65DAA(3)(b)(i) of the Act.
At 81,615, Ainslie-Wallace and Ryan JJ said of s 65DAA(3)(b)(i):
… the provision does not limit the question of involvement in daily routine to school weeks. Nor does it require involvement in each and every aspect of a child’s daily life. This interpretation is consistent with the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 which introduced s 65DAA(3) into the Act and described the provision as follows:
186.Subsection 65DAA(3) makes it clear that substantial and significant time requires that the child spend both some time on weekends and holidays and some time on other days. It may also include time in daily routine and allow for participation in events that are significant to the child. This might include sporting events, birthdays or concerts. It would also include the child being able to be involved in events of significance to the parent such as family weddings or christenings, mother’s or father’s day, birthdays.
We agree with counsel for the mother’s submission that the section is to be interpreted in the context of a divided family, where parents live separately and apart from one another, and that it does not require “daily physical association with each and every procedure or activity that occurs – each day or each weekday.”
Section 65DAA(5) sets out the mandatory factors to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time, or substantial and significant time with each of the parents. These factors include how far apart the parents live from each other, the parent’s current and future capacity to implement an arrangement for such time, the parent’s current and future capacity to communicate with each other to resolve difficulties in implementing such an arrangement and the impact that such an arrangement would have on the child. The Court must have regard to other matters as the Court considers relevant.
Sections 65DAA(1) and (2)(a) and (b) are concerned with the reality of the circumstances of the parents and child, not whether it is desirable that there be equal time or substantial and significant time spent by the child with each parent.
In MRR v GR (2010) 240 CLR 461, at 466[13] the High Court said:
Section 65DAA(1) is expressed in the imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c ) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
(Footnotes omitted)
Since separation the parents in this case have never spent equal time with the child and the father does not seek that the child spend equal time with him. The child has always lived with the mother who is the primary carer. I am satisfied that it is not in the best interests of the child nor that it is reasonably practicable to make an order for the child to spend equal time with each of the parents.
The consideration of substantial and significant time is a mandatory consideration in the exercise of the discretion of the court. Counsel for the father submitted that the mother’s proposals cannot amount to “substantial and significant” time.
My focus is on the best interests of the child and what is reasonably practicable. I am satisfied that it is in the best interests of the child and reasonably practicable for the child to spend time with the father each alternate weekend, for the special days proposed by the father and for half of the school holidays.
I accept that the mother has had significant difficulties adjusting to the final orders made in June 2013 and that the assistance of the Family Consultant has been necessary for the implementation of the spend time arrangements. Those arrangements have featured significant problems at changeover historically and there was a reluctance on the part of the mother to communicate with the father about a medical issue which did not ultimately require any treatment. Nevertheless, I am satisfied that the child has spent regular time with the father in recent times and that this has been clearly successful in consolidating a meaningful relationship between the child and the father. Despite the misgivings of the father about the attitude of the mother, there is no question that the child spending time with the father has been of great benefit to the child. The mother’s evidence was that the child looks forward to spending time with the father. On all the evidence the father has a meaningful relationship with the child and the child will continue to benefit from this relationship.
Conclusion
Each party approached the trial with little focus on the proposals of the other party and the practicability of each proposal. Both parties were so firmly of the view that their initial position should be adopted that they had put no real thought into any alternative. An example of this was the hurried amendment of each party’s proposals on the last day of trial. The mother’s amended proposals lacked attention to detail. There was a general lack of focus on the mechanics of changeover if the child relocated to Town D.
I am satisfied on all the evidence that notwithstanding the continuous ebb and flow of the litigious conflict between the parents, the child has a meaningful relationship with both parents. I accept the evidence of Mr P that the child has felt the negative message of restraint in the mother’s attitude towards the father and that this causes the child anxiety because it contradicts his own feelings about his father. On the evidence of Mr P, a move to Town D has the positive feature of reducing the number of difficult emotional exchanges for the child by removing the Wednesday evening exchange and potentially removing the importance of the struggle around the litigation for the mother which might improve her attitude towards the father either consciously or unconsciously.
A restraint on the mother’s relationship with her partner of some two years, prohibiting her from living with him at his property and in the community where she has developed friendships, has the likely potential to increase the negativity of the mother towards the father which will clearly not be in the best interests of the child. As the father deposed he has built a house and a life with his family in the community where he resides and would not be prepared to move because of the importance of these connections.
Counsel for the father submitted that in cross-examination the mother’s partner was not challenged about whether he could move because it was not part of his evidence that he could not move. I accept the unchallenged evidence that the mother’s partner has made a financial commitment to improving the property where he lives and that the mother, her partner and the child have engaged in activities in the community at Town D for some time. Neither the mother nor the father are required to prove that they have compelling reasons either for or against the proposed relocation.
In weighing up the competing proposals I have concentrated on the effect of those proposals on the welfare of the child. The mother’s relocation proposal provides the likely potential for improvement in her attitude towards the father, whilst the father’s proposal would effectively place constraints upon the mother which she will continue to resent. It would do nothing to mitigate the negativity which has been the source of difficulties for the child. Taking into account that the child has completed only his first year of schooling and is only six years old there is no evidence that he will be adversely affected by a change of schools. There is also the benefit of a relocation noted by Mr P.
The mother’s financial circumstances have been adversely impacted by the costs of litigation and this forms part of her reasons for living with the maternal grandparents. This is not tenable in the long-term and the evidence that the maternal grandparents have a need to eventually sell their property was unchallenged.
As Mr P stated unless the child understands clearly and unequivocally that his mother genuinely supports and values his relationship with his father, he is likely to develop problems in the future. I am satisfied that permitting the mother to move with the child to live with her partner in Town D is more likely to result in an improvement in the parental relationship which on the evidence of the Family Consultant will clearly benefit the child. I am satisfied on all the evidence that the mother on relocation will continue to implement the alternate weekend spend time arrangements as she has done in recent times and that she will be prepared to support the child in spending half of the school holidays with the father. I am satisfied that her partner will also support this arrangement.
Whilst there will be practical difficulties in the child spending time with the father because of the driving distance between the home of the mother’s partner and the father’s home, I am satisfied that both parents have the capacity to accommodate this and that the child is old enough to manage the trip. A provision for changeover from school whenever possible is in the best interests of the child on all the evidence. Although an adjustment to a new school will inevitably be a change for the child, he is already familiar with the home of the mother’s partner and will also have the familiarity and comfort of the father’s home environment when he is spending time with the father to balance this change.
The enduring litigation between the parents since the child was aged two, has placed an intolerable stress on both parents and their families. This inevitably continues to impact on the child. A move to Town D for the child will provide him with the benefit of living with the mother and her partner in circumstances where a family oriented future can be planned close to his school without the spectre of further conflict around his living arrangements which might result from orders specifying a residence within a radius of particular schools or from the corner of Burke and Swanston Street Melbourne. The father will continue to have the opportunity to build and grow his close relationship with the child by the child spending alternate weekends, half of school holidays and special days with the father in his own family environment with which the child is already comfortable and familiar.
I do not propose to adopt the spend time proposals of the mother because they had scant attention to detail and were not ultimately supported by the Family Consultant in cross-examination. I prefer those of the father which provided detailed proposals for school holidays, including Christmas and special occasions and were in keeping with the recommendations of the Family Consultant. It is inevitable that the child will develop interests in the Town D community which will need to be accommodated on weekends. As Mr P pointed out spending time with his father for two or three weekends sequentially is unlikely to be viable in the long term for the child. Additionally the effect of the mother’s proposals would be that the father would never spend time with the child at Christmas. The mother’s proposal which provided for the child to spend time with the father for half of term holidays and an additional three sequential nights did not provide any detail or explanation of the logistics. Her proposal for the child to spend time with the father for the weekend of Father’s Day is problematic in the scheme of alternate weekend spend time arrangements and likely to lead to further dispute between the parties. I have adopted the father’s proposals for that occasion. The parties are, of course, at liberty to agree to some other arrangement.
I propose to permit the mother to relocate the child’s residence to Town D and adopt the oral evidence of Mr P about the spend time arrangements. This means that orders will be made for the child to spend time with the father each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday or on Tuesday if Monday is a non-school day. I propose to make orders adopting the proposals of the father regarding the spend time arrangements for school holidays and special days. I note that the mother provided a notation that she did not seek that the father’s time be suspended on Mother’s Day, for her birthday or for the birthday of the child, so these have not been incorporated into the orders.
The parties and the Independent Children’s Lawyer did not focus on the practical reality should the child relocate to Town D in terms of the implementation of the spend time arrangements. The mother’s proposal requires the father to undertake all of the driving between Town D and his work or between his home in the southern suburbs of Melbourne and Town D. The only changeover alternative to school proposed by the mother was McDonald’s at Suburb T.
The father’s changeover proposal did not really grapple with the child living in Town D. His proposal seemed to provide that he undertake all of the driving and proposed a Contact Centre in an inner suburb or some other Contact Centre nominated by him or if unavailable, “the McDonald’s closest to halfway between the residences of the mother and father”. Nothing in the evidence warrants the use of a Contact Centre and this was not pressed in submissions. The Contact Centre was problematic in the past on the evidence of Mr P.
It is always open to the parties to agree in writing as to the mechanics of the driving and changeovers and it may be that the father prefers to undertake all the driving from and to school having regard to his proposal.
The proposals and submissions regarding the practicalities left a gap which in these unsatisfactory circumstances I am left to fill as best I can. As a matter of fairness in these circumstances where the mother chooses to relocate the child a greater distance from the father than was the case previously, then the mother should share the driving with the father for the purpose of the spend time arrangements.
I have adopted the current consent interim orders for alternate weekend spend time arrangements which provide for an additional day for the father in the event that Monday is a non-school day. This is because of the travel required.
I propose to make orders for the mother to collect the child from school in Town D every four weeks on Friday during school terms and to deliver the child to the father at an agreed changeover location or in default of written agreement, the McDonald’s restaurant located at Suburb T. This was the location proposed by the mother for changeover on non-school days. This location is approximately halfway between the father’s residence and Town D which is one of the locations in his proposal. The mother should collect the child from the same location before school the following Monday or Tuesday of that fourth weekend during school term. The orders will provide for the same changeover location as the default location for changeovers which occur outside of school terms and on non-school days.
It is implicit in the granting of permission to the mother to relocate the residence of the child to Town D that both parties do all things to ensure that the child is enrolled in the D Primary School proposed by the mother in close proximity to the residence of the child. The father was also of the view that the child should attend a school in close proximity to the home where the child lives.
The father proposed that orders be made for the enrolment of the child in a number of schools from Year 4 onwards but there were no submissions addressing this issue. The mother proposed that the child be enrolled for the duration of his secondary education in several secondary schools. I am not in a position to make any findings about the best interests of the child by the time he is in year four and the circumstances of the child at that time would be mere speculation.
It is inappropriate, having regard to the change of residence and primary school, to make orders for the enrolment of six year old J in secondary school. The parents will have to assess the child’s progress as he matures and take into account his developmental needs and interests in terms of his education. It is not in the best interests of the child to make any particular orders about further school enrolment into the future in the absence of evidence about what would be in his best interests. This is a decision for the future which the parents should make together in consultation given they have equal shared parental responsibility for the child.
It is also inappropriate to make the order sought by the mother for the parties to consult Mr P before initiating any further court proceedings in the event of any dispute. The father has not agreed to such a restriction and there is little utility in such an order if the other party does not wish to participate. It would clearly be in the best interests of the child for the parents to attend mediation or obtain some independent assistance in the event of any further dispute. Litigation should be a last resort particularly in circumstances where as in this case the parties have had no opportunity to build any cooperation because of the continuing litigation.
I certify that the preceding two hundred and sixty (260) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 13 January 2017.
Associate:
Date: 13 January 2017
Annexure A
Documents relied upon by the applicant father:
Fifth Amended Initiating Application filed 19 February 2016;
Undertaking filed 22 February 2016;
Affidavit of the father filed 19 October 2016;
Affidavit of paternal aunt, Ms Z, filed 19 October 2015;
Affidavit of father’s partner, Ms C, filed 19 October 2015; and
Affidavit in reply of the father filed 9 November 2015.
Documents relied upon by the respondent mother:
Amended Response to Initiating Application filed 22 September 2015;
Affidavit of the mother filed 2 November 2015; and
Affidavit of mother’s partner, Mr N, filed 2 November 2015.
Documents relied upon by the Independent Children’s Lawyer:
Affidavit of Mr P filed 15 December 2015;
Affidavit of Mr P filed 21 September 2016; and
Documents produced pursuant to subpoena.
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