GUEST & MANN

[2015] FCCA 2706

FEDERAL CIRCUIT COURT OF AUSTRALIA

GUEST & MANN [2015] FCCA 2706

Catchwords:
FAMILY LAW – Parenting – relocation from Darwin to (omitted) – 2 year old child – relocation allowed but deferred to allow father to wind-up business and follow.

Legislation:

Family Law Act 1975, ss.60CC, 61DA, 65DAA, 90SB, 90SD, 90SF

U v U (2002) 211 CLR 238
Goode & Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461

Applicant: MR GUEST

Respondent: MS MANN

File Number: DNC 446 of 2014

Judgment of: Judge Young

Hearing dates: 13 & 14 August 2015

Date of Last Submission: 14 August 2015

Delivered at: Darwin

Original Orders Delivered on: 6 October 2015

Amended Orders Delivered on: 13 November 2015

REPRESENTATION

Solicitors for the Applicant: Ms E Terrill of Terrill & Associates

Solicitors for the Respondent: Ms J Franz of Darwin Family Law

ORDERS

AS AMENDED

1. That the mother and father have equal shared parental responsibility for the child X born (omitted) 2013 (“the child”) and will make a genuine effort to come to joint decisions in the child’s best interests.

2. That the child shall live with the mother.

3. That the mother is permitted to change the residence of the child from Darwin to the (omitted) after 1 December 2016.

4. That until 1 December 2016 (while the child is living in Darwin) or after 1 December 2016 if the father is living on the (omitted) the child shall spend time with the father as follows:

   (a)From Friday, or Thursday if the following day is a public holiday, at 5.00pm until the following Monday, or Tuesday if the preceding day is a public holiday, at 9.00 am (Week One) and each alternate weekend thereafter.

   (b)From Wednesday at 5.00pm until Thursday at 9.00am and from 1 January 2016 from Wednesday at 5.00 pm until Friday at 9.00 am (Week Two) and each alternate week thereafter.

   (c)For Christmas 2015 with the father to pick up the child from daycare on 24 December 2015 and to drop the child off at 9.00am at daycare on 30 December 2015 and for each alternate odd numbered year thereafter from 23 December to 4 January until the child commences school.

   (d)On the child’s birthday, the child shall spend equal time with both parents, with such time to be agreed.

   (e)On the father’s birthday when, if it is a school day, the father will collect the child from school and return the child to school the following day or, if it is a non-school day, from Friday 5.00pm before the birthday to 9.00am the following Monday.

   (f)On Father’s Day when, if the child is not already spending time with the father, the child will spend from 5:00pm on the Friday before Father’s Day until the following Monday with the father to collect the child from and deliver the child to day care, school or after school care.

   (g)For one week on 4 separate occasions each year (excluding arrangements for Christmas), with the father to give the mother at least 42 days’ notice of the time that is to happen.

5. That the child shall spend the following time with the mother and the father’s time is suspended during that time:

   (a)On the Mother’s birthday when, if it is a school day, the mother will collect the child from school and return the child to school the following day or, if it is a non-school day, from 9:00am until 9:00am the following day; and

   (b)On Mother’s Day when, if the child is not already spending time with the mother, the child will spend from Friday 5.00pm before Mother’s Day to 9.00am the following Monday.

   (c)For Christmas 2016 from 23 December 2016 to 4 January 2017 and for each alternate even numbered year thereafter until the child commences school.

6. That in the event the child is unable to attend daycare or school due to illness or some other reason, the parents will equally share the responsibility of caring for the child, which includes taking leave from their place of work and taking the child to medical appointments.

7. That after 1 December 2016 if the father is not living on the (omitted) the child shall spend time with him:

   (a)For one week on 4 separate occasions each year, with the father to give the mother at least 42 days’ notice of the time that is to happen and once the child begins school in the same terms as Order 8.

   (b)That the father shall be able to phone or Skype or have equivalent video communication with the child at least twice a week on days as agreed between the parents at 6.30 pm Queensland time with the father to make the call to the mother’s phone.

   (c)That the child be permitted to communicate via phone or Skype or have equivalent video communication with the father on their own initiative at other times with the mother to facilitate this communication.

8. That once the child begins school Orders 4 (g) and 7 (a) shall cease and the child shall spend time with the father as follows:

   (a)During the Queensland gazetted school holidays for half of the school holidays at the end of Terms One, Two and Three (which are two weeks in total), such halves to be agreed between the parties and in the absence of agreement for the second half of each of these school holiday periods;

   (b)During the Queensland gazetted school holidays for half of the school holidays at the end of Term Four (December/ January school holidays), such halves to be agreed between the parties and in the absence of agreement with the first half with the father in odd numbered years and with the first half with the mother in even numbered years.

9. That the parties shall bear the cost of flights for the child equally with the father to book and pay for flights to him and the mother to book and pay for flights to her.

Other matters

1. That each parent will immediately advise the other parent of any medical or other emergency related to the health and welfare of the child.

2. That each parent will advise the other parent of their respective telephone numbers (including mobile and landline numbers), and email address and each parent shall, within 48 hours of any change of either their telephone number or email address, advise the other parent of that change.

3. That each parent be entitled to obtain directly from any day care or school attended by the child, copies of any school reports, school photos or any other verbal or written information relevant to the child’s education, and for this purpose, the mother shall immediately notify the father of the names and contact details of any school attended by the child.

4. That each of the parents be entitled to obtain directly from any health or welfare professional or any other professional attended by the child, copies of any reports, notices of other relevant verbal or written advice relating to the health and welfare of the child and for this purpose, each of the parties shall immediately notify the other party of the names and contact details of any relevant health or welfare professional and keep the other so informed within one week of any change.

5. That in the event that a child requires emergency medical treatment, the parent caring for the child is to immediately advise the other parent via phone, or SMS message within 24 hours of the emergency treatment being received.

6. That both parents are entitled to attend school or extracurricular events and the parents are to keep one another informed of such events.

7. That within 1 month of these orders the parties enrol in a post separation parenting programme if they have not already done so.

Travel within Australia and Overseas

1. That the mother and father may travel with the child on holiday (within Australia or overseas) for up to four weeks (which may include two separate periods of two weeks) outside of the town/city in which the child ordinarily resides only if:

   (a)Each parent notifies the other parent in writing of the travel not less than 42 days in advance; and

   (b)The parent provides the other parent with a travel itinerary and contact details (accommodation name, location and a telephone number) for the child while they are  away; and

   (c)Each parent takes all reasonable steps to facilitate the child having phone or Skype or equivalent video communication at least twice per week during the period/s of travel; and

   (d)If the holiday interferes with the child spending time or communicating with one parent, the other parent is to provide alternative arrangements for make-up time and/or communication.

Child’s Passports

1. That the mother and father will do all things and sign all documents necessary to obtain an Australian passport for the child within 30 days of a request by either party and that, if either parent does not sign the passport applications for the child within 30 days, then these orders will provide sufficient authority such that the Registrar of the Federal Circuit Court of Australia is authorised to sign the passport application on either parent’s behalf.

2. That, when the child is not travelling overseas, his passport remains in the possession of the mother.

3. That the child’s passports must be given to the father within 10 days of the father’s written request, provided the mother has agreed to the travel.

Spousal Maintenance

1. That the father shall pay the mother spousal maintenance of a sum equal to one half of the crèche or after school care fees applicable to the child (presently calculated at $388 a week with one half being $194) from 14 August 2015 with payments to be paid weekly into the mother’s nominated account and all arrears of spousal maintenance or sums due under the order of 3 October 2014 accrued at 14 August 2015 are discharged.

2. That the spousal maintenance payable under Order 19 shall cease to be payable on the mother ceasing full time employment.

3. That each party is restrained from denigrating the other party in the presence or hearing of the children or permitting any third person to do so in the presence or hearing of the children.

IT IS NOTED that publication of this judgment under the pseudonym Guest & Mann is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

NOTATION: These orders have been amended pursuant to rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 to reflect the changes in order 4 b) from ‘2015’ to ‘2016’; in order 4 c) changing the year and dates with the addition of ‘2015 with the father to pick up the child from daycare on 24 December 2015 and to drop the child off at 9.00am at daycare on 30 December 2015’ and changing ‘even’ to ‘odd’; in order 4 e) changing the words ‘9:00am until 9:00am the following day’ to ‘Friday 5.00pm before the birthday to 9.00am the following Monday’; in order 5 b) changing the words from ‘6:00pm the Friday before Mother’s Day until 6:00pm on Mother’s Day’ to ‘Friday 5.00pm before Mother’s Day to 9.00am the following Monday’; the addition of order 5 c); and in order 21 with the addition of the words ‘with payments to be paid weekly into the mother’s nominated account’.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 446 of 2014

MR GUEST

Applicant

And

MS MANN

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a parenting matter. The parties and their 23 month old son, X born (omitted) 2013, reside in Darwin. The principal issues in dispute are whether it is in the best interests of the child to live with his mother on the (omitted) beginning from February 2016 (the mother’s position) or from October 2017 (the father’s position) and whether the child should spend equal time with the father. On the relocation issue the father agrees that the mother would be happier living on the (omitted) and he is willing to move to the (omitted) to be near his son but says that he cannot reasonably do so until October 2017. He says that any earlier move to the (omitted) by the mother would deprive his son of having a meaningful relationship with both his parents.

Background

1. Both the mother and father were born in (country omitted), although the mother moved to Australia as a child and is now an Australian citizen. She grew up on the (omitted) with her family. Her father, stepmother and sister continue to reside there.

2. The parties met in (country omitted) in 2011 while the mother was employed there on secondment from her Australian employer. They began living together in (country omitted) in 2012. In that year the mother’s father became aware of an opportunity for a couple to manage a (business omitted) in Darwin. The parties sought and obtained the positions. The move to Darwin was seen by the parties as a step towards securing their financial future but they did not intend to reside here permanently. In (omitted) 2012 they moved to Darwin to work as (occupations omitted) at the (business omitted). In (omitted) 2013 the father commenced his own (omitted) business. This was in addition to his duties managing the (business omitted).

3. The parties’ son, X, was born in Darwin on (omitted) 2013. The birth was difficult and the mother suffered some post-natal complications. It also appears that there were significant pressures stemming from the demands of managing a (business omitted) and the father’s commitment to the (omitted) business. The relationship of the parties began to break down in mid-2014 and they separated in August 2014.

4. The mother alleges that the father subjected her to physical and verbal abuse during this period. On one occasion, she alleges, he threatened to throw a laptop into the television and then picked up a chair and threatened to throw it at her. On another occasion, she alleges, he was verbally abusive. On one occasion she says he threatened to smack her and her father (who was not present) in the mouth when it was proposed that she and her father take over the management of the (business omitted). The father denies ever threatening the mother but does admit having said that if her father tried to take over the management of the (business omitted) he would “slap him in the teeth”. The father said in cross-examination that he was upset when he said this and did not mean it. Beyond this single admitted threat I am not prepared to make a finding that the father has engaged in family violence.

5. The Family Report writer in this case concluded that the child had been exposed to high conflict but that there was no evidence of current problems. The child attends crèche while the mother works and the report writer had discussed the child with crèche staff. There were no concerns about his development. He was said to be a “happy little boy” who interacted “really well with educators”. There was positive staff interaction with both parents and there were no observed differences in X’s behaviour following him being in the care of the mother or the father. While I am satisfied that there has been high conflict between the parents I am also satisfied that this is not a case where the need to protect the child from being subjected to, or exposed to, abuse, neglect or family violence is an issue.

6. Nevertheless, the father has had difficulty managing his feelings of anger flowing from the separation. Notwithstanding his initial denial during cross-examination it was clear from the father’s own affidavit material that this was so. He sought medical treatment and was diagnosed with depression. This was treated with medication although by the time of trial the father had recovered and was no longer taking medication.

7. The mother says, and I accept, that she was afraid of the father and this was one motivating factor in her decision to leave Darwin in September 2014 with X and fly to the (omitted). This in turn led to a recovery order being made on 19 September 2014. At that time, in recognition of the fact that the mother had no employment and nowhere to live in Darwin, the father consented to an interim order that he pay her $450 a week “towards accommodation costs”. The father is in arrears under this order and the mother seeks an enforcement order. The father seeks the revocation of the order and the discharge of arrears.

8. The mother deposes that it was her intention to return to Darwin after obtaining a domestic violence order against the father. This may be so but on or about 7 August 2014 the mother purchased a unit in the (omitted) and paid a $13,450 deposit and subsequently on or about 4 September 2014 paid a further deposit of $55,000 from her savings. The unit now has a tenant and is “negatively geared”. She deposes that there is a shortfall between weekly rent received, $330 and weekly outgoings, an “estimated” $188 for interest and an “estimated” $195[1] for rates and unit levies, or $383 in total. On the mother’s figures the shortfall is $53 a week.

   [1] Or $10,140 a year.

9. An examination of the mother’s (omitted) bank account from which these amounts were paid shows that the opening balance in July 2014 was $98,016.76 and, including the withdrawals for the deposits referred to above, the closing balance at 31 December 2014 was nil. The father says that he did not know of the mother’s (omitted) bank account until it was disclosed in later correspondence between lawyers. He says if he had known of these arrangements he would not have consented to the order for payment of $450 a week. Be that as it may, at the time the mother was ordered to return to Darwin in October 2014 she was not employed and it was reasonable that the father consent, as I understand he did, to an order for her maintenance as a condition of her return.

10. The mother has resided in Darwin since returning from the (omitted). She found employment on 6 January 2015 and earns $69,744 a year plus some benefits such as car maintenance. She rents a two bedroom unit for herself and X. X attends crèche. According to the mother the crèche fees, after a government rebate, are $388 a week.

11. The present orders are that X spends time with his father from 5.30pm to 7.30pm on Wednesday and 11.00am to 2.00pm on each Saturday and each alternate Sunday. The parties have departed from these orders by agreement. I was told from the bar table that X spends four nights a fortnight with his father: Friday, Saturday and Sunday in alternate weeks and Wednesday night in the other week.

12. The mother complains that the handovers between her and the father have been difficult and fraught. I accept the mother’s evidence about this and accept that the father has been, at times, unnecessarily difficult and belligerent towards her and her family. Some evidence of this appears in the SMS messages and emails from the father to the mother. Copies of some of these communications were annexed to the mother’s trial affidavit. The father accepted that some of the language used by him was “inappropriate” but asserted that he had been “frustrated”. When asked about his threat directed to the mother’s father to “slap him about the teeth” the father said that he had been upset and had said things he did not mean. While I am prepared to accept what the father says about that incident I still consider that the style of the father’s communications with the mother is of concern. It is at times, to use the words of the Family Report, “antagonistic, provocative and contradictory”. I am satisfied that this language and the attitude it expresses is a significant factor in the mother’s wish to move to the (omitted). I am also satisfied that such a style of communication is deleterious to the best interests of the child because, if continued, it is oppressive to the mother and defeats the possibility of effective co-parenting.

13. As the Family Report writer observes, the mother has also contributed to the difficulties in communication through inconsistent communications, particularly about handovers.  I consider that both parents in this case would benefit from attending a post-separation information and skills program for parents. I propose to make an order that they attend the Resolve/Anglicare “For the Kids” program.

14. The father has some insight into how counter-productive his words and conduct have been. In one email to the mother on 1 April 2015, after the Family Report had been released to the parties, the father said:

    “I am sorry for my often confrontational communication style with you. I promise that I will not ever communicate with you in an aggressive manner again. I have read the Family Report and I understand that my confrontational attitude has caused you to experience some emotional pain. I understand that this has impacted on X’s well-being.”

1. Notwithstanding this evidence of a degree of maturity and insight on the father’s part if I were reliant on the father’s evidence alone I would be left with reservations about his willingness and ability to change and improve his conduct. However, the mother was willing to concede that his conduct has improved and, while still confrontational at times, was getting better. She considered that the father had made good progress in coming to terms with the separation, he no longer needed medication and his living arrangements had improved, particularly because he had moved in to live with his mother. The mother stated that the father’s mother was “very good with X”. Although no evidence was called from Ms G, the father’s mother, it appeared to be uncontentious that Ms G had moved to Darwin in 2014 to support her son. She is employed as a (occupation omitted) at the (employer omitted). I infer from the mother’s evidence about Ms G that Ms G has a good relationship with X and that she is an important figure in his young life. I am satisfied that Ms G is a beneficial influence in the life of her son and grandson.

2. The father insisted that the option of him relocating before October 2017 to live on the (omitted) to be near X was not a reasonable one. He asserted that his (omitted) business was just starting (although it appears to have been operating since 2013) and that moving to the (omitted) would necessitate his abandonment of the business. He said that he was indebted to his mother who had advanced monies to set up the business. The debt was said to be $20,000. In addition he had borrowed for his legal fees and any disruption to his income would cause financial hardship. He did not believe that relocating the business to the (omitted) was likely to be viable because it was a much more competitive market than Darwin. He said he expected that he would have difficulty finding work and the best he could expect would be to obtain bar work.

3. The mother asserted that the (omitted) business was not thriving and abandoning it would not, therefore, cause any significant financial hardship. She pointed out that the father was a qualified (occupation omitted).

4. Assessing the profitability of the father’s (omitted) business and consequently the financial hardship, if any, in abandoning it is not an easy matter. The business is incorporated and his salary or drawings are, according to his financial statement, $600 a week. No other information was given about the business. It was put to the father in cross-examination that this relatively modest income (which is reflected in the father’s child support liability of $42 a week) hardly justified his insistence that the abandonment of the business would cause financial hardship. The father asserted that, in fact, the gross monthly income of the business was $8,000-$10,000. He paid on average $1,200 a month for fuel and $1,600 for labour. These were his principal overheads. If these figures are correct this would give the business a net income of $5,200-$7,200 a month. In addition he repaid his mother $1,000 a month. He said, he was negotiating a new contract or contracts and he was confident that the income of the business would increase. The apparent discrepancy between the father’s stated income and the claimed income of the business was not explained. The business is set up as a company and, while in substance the alter ego of the father, that structure may in part explain the difference between the personal income of the father and the income of the business.  

5. The father asserted that if he could get the business established on a viable basis it may be possible to run it from the (omitted) after October 2017. In any event, he was prepared to move after that time. Although I am a little sceptical about the father’s claims for his business and dubious about his hopes to run it from the (omitted) the fact remains that he has an established business in Darwin and it provides his sole source of income. I do not know what his employment prospects on the (omitted) are. In response to the assertion that he could work as a (occupation omitted) the father said he no longer has tools and I infer from that that it is some considerable time since he worked as a (occupation omitted). A further factor is Ms G. She is employed in Darwin as a (occupation omitted) and I assume this is secure employment. It is likely that if her son left Darwin she would relocate as well. A relocation to the (omitted) would involve not only Ms G ceasing his business and searching for new employment but his mother also resigning and seeking new employment.

6. The mother gives as her main reason for wishing to move with X to the (omitted) that the cost of living in Darwin is high and she cannot afford to live here. It is notorious that the cost of living in Darwin is high, particularly rents. The mother pays rent of $480 a week. She also pays $388 a week for child care expenses after allowance for government child rebates and allowances. According to her financial statement her weekly shortfall is $87. The father pays child support for X of $42 a week pursuant to an assessment. He also pays $80 a week child support for a child of a previous relationship. He resisted the mother’s application that he continue to pay her $450 a week. He asserted that there was no basis pursuant to section 90SF(1) of the Family Law Act1975 for a finding that the mother is unable to support herself adequately. Nevertheless, the father indicated that he would consent to an order that he pay the mother 50% of the crèche fees (presently $194 a week i.e. half of $388), in addition to his child support obligation. I consider that this amount was appropriate for the father to pay by way of de facto maintenance from the time the mother found employment and placed X in crèche. Her counsel informed me that the mother began work on 6 January 2015 and, I infer, placed X in crèche from about that time. I consider that the mother was not able to adequately support herself by reason of having the care and control of a child from that time and I am satisfied, by reason of the father’s consent to an order in that sum, that he is reasonably able to pay that amount. Further, I am satisfied as to the requirements of section 90SB and section 90SD of the Family Law Act1975. If there were to be any change of circumstance, for example X being removed from crèche or beginning to attend school, so that crèche fees were no longer payable or payable in a lesser amount I consider that this order should be revoked or varied.

7. As to the arrears, I consider, as noted above, that it was appropriate that the father contributed to half of the crèche fees from the time the mother obtained employment. The evidence as the amount of the crèche fees is not entirely satisfactory. The mother’s financial statement from July 2015 says the crèche fees to June 2015 were, after deduction of government rebates and allowances, $280 a week. However, during cross-examination the mother said the crèche fees had recently (on a date not specified) increased to $388 a week after deduction of government rebates and allowances. According to a calculation prepared by counsel for the mother the father has paid $5,030 from 6 January 2015 which, at trial on 13 August 2015, was a period of 32 weeks. If he was liable for $140 a week over these weeks he would have been liable for a sum of $4,480. He has in fact paid a sum of $5,030. In the circumstances I propose to discharge the arrears under the order for payment of $450 a week as at 13 August 2015 and order that the father pay to the mother half the crèche fees after deduction of government rebates and allowances from 14 August 2015.

The Family Report

1. I have already adverted to the Family Report. The Family Report writer interviewed the father and the mother and observed their interactions with X. She also conducted telephone interviews with the mother’s sister and the father’s mother. The Family Report writer referred to the concern raised by the mother’s sister that she, the mother, sometimes cried in front of X. The mother explained that this was the result of stress arising from her situation. In my view, it is also indicative that the mother is unhappy in Darwin and any long-term stay is likely to make her unhappy. This was conceded by the father. This is a factor that needs to be taken into account with other factors.

2. The Family Report writer concluded from her observations that the parents have an “ineffective co-parenting relationship which is characterised by poor communication”. She further concluded that the father and mother both demonstrated strengths in parenting X and were attuned to his needs and were able to provide a structured and supportive learning environment for him. The Family Report writer observed that the mother provided a richer description of her parenting style than the father and her understanding of a child focused approach is likely to provide X with a solid foundation on which to grow and develop in the future.

3. She concluded that the mother’s current parenting capacity appeared to be compromised due to the father’s offensive communications, the financial pressures of residing in Darwin and the lack of family support. Nevertheless, she concluded, it was in the child’s best interests to have a meaningful relationship with both parents and the best option for achieving this was for both parents to remain in Darwin unless the court was satisfied that remaining in Darwin was not financially viable for Ms Mann. She recommended that change over take place at the child’s crèche and on weekends at a contact centre to minimise conflict.

4. I agree with the Family Report writer that it is in the child’s best interest to have a meaningful relationship with both parents.

The competing proposals

1. The mother’s primary proposal is that the parents have equal shared parental responsibility, that X live with her and she be permitted to change the child’s residence to the (omitted) in February 2016. She says that it would be reasonable for the father to relocate to the (omitted) at the same time she relocates but if the father does not wish to relocate until 2017 she proposes that during that intervening period he travel to the (omitted) and spend 5 days each calendar month with X at his accommodation. In addition she proposes that the child spend up to 7 days with his father in Darwin three times a year. She offers to pay $200 towards his accommodation costs when he visits the (omitted) and she proposes to fly with X to Darwin for the three visits and return with him at her own expense. She also proposes that there be regular Skype or telephone communication.

2. In the alternative, if she is not permitted to relocate with X before his fourth birthday (the father’s proposal), she proposes that the child live with her and spend time with his father as agreed but in default of agreement on a fortnightly basis each alternate weekend from Friday evening to Monday morning and Wednesday to Thursday in the other week. In addition she proposes that X spend 3 separate weeks with his father and proposes that the child spend alternate Christmas and special days with his father.

3. The father’s primary proposal until the child is 4 years old, as set out in his case outline, is substantially the same as the mother’s alternative proposal, that is, that the parents have equal shared parental responsibility and that the child live with his mother in Darwin and spend time with him each alternate weekend from Friday until Monday morning and Wednesday night in the other week. During the trial he proposed an additional night during the week. Once the child turns 4 years old he proposes an equal time arrangement with the child to spend 5 days with the mother and then 5 days with him on a cycle. Once the child commences full-time school he proposes that the child live with the mother and him in alternate weeks.

4. In the alternative, if the mother is allowed to relocate now, he proposes that the child spend time with him on at least 6 occasions each year for at least 1 week each time. He proposes that the mother and he share the cost of his airfares and accommodation equally. He proposes that the mother pay him $1,000 a month to provide her share of the cost of airfares, accommodation and ancillary costs. These last 2 proposals do not appear to be entirely consistent with each other but the latter is possibly a “liquidated” assessment of the likely cost of the first.

5. The mother was cross-examined as to the practicality of her proposal that the father visit the (omitted) once a month for 5 days and that X spend time with his father during that period. The mother asserted that flights were as little as $75 each way between Darwin and the (omitted) with Tiger Air. These budget flights were apparently “red-eye” flights arriving on the (omitted) at approximately 6.00am. She proposed that the father would stay in motel accommodation for those 5 days. She suggested that the cost would be $60-$70 a night for a 3 star motel. She suggested that the father could travel during that time using public transport which she asserted was “good”, by which I understood her to mean convenient and accessible. In response to a question about whether a motel was likely to be “set up” to accommodate a young child she asserted that there were some with playgrounds and so on. Similarly, in relation to a question about whether cooking facilities were likely to be available she asserted that some motels had cooking facilities.

6. While this proposal may be possible and affordable I am satisfied that it is unlikely to be conducive to X spending a stimulating, pleasant or enjoyable time with his father. A motel or hotel room is unlikely to be an appropriate place to spend an extended period with a toddler even if there were a playground nearby. Many parents may be reliant on public transport while travelling with their children but it does limit flexibility. In combination with motel accommodation, as is proposed here by the mother, I am satisfied that it is likely to make the whole experience onerous for X and his father. A primary consideration in determining the best interests of the child is the benefit to the child of having a meaningful relationship with both of the child’s parents. It was not in contention between the parties that the child is close to both parents and that it was in the best interests of the child that he spend, at least, substantial and significant time with the father. I am satisfied that the mother’s proposal in this regard is not the optimal arrangement or the one most conducive to the development of a meaningful relationship between X and his father.

7. I am satisfied that the arrangement in the best interests of the child having regard to his age and developmental stage is one where he lives with his mother and sees his father regularly and in circumstances that are conducive to him spending time with his father that is stimulating, pleasant and enjoyable. In the circumstances of this case I am satisfied that that means the mother must continue to reside with X in Darwin for some period, the father’s primary proposal, or the father himself must relocate to the (omitted) earlier than he wishes, as the mother asserts is reasonable.

8. U v U[2] emphasizes the necessity of examining the reasons of the party who does not wish to move in these cases. I have adverted to the factors that need to be considered in paragraphs 16, 17, 18, 19 and 20 above. I have found some difficulty in deciding whether the stated reason for the father’s unwillingness to relocate until X’s turns 4 years old in October 2017 is reasonable. I found the father’s evidence on this point lacking in detail. While it is easy to understand that a precipitate winding-up of his business in Darwin could lead to losses I am not persuaded that the mother should have to wait 2 years before relocating. The father justifies the 2 year period on the basis that this will allow him to securely establish the business in Darwin and, possibly, to operate it from the (omitted). His business is a small one and, in substance, consists of him and another employee. How he hopes to operate such a business from the (omitted) was not explained and I think his proposal involves a good deal of speculation and not a little hope. Nevertheless, I accept that there are valid reasons for his wish to delay any departure to the (omitted) for some period although I am not satisfied that 2 years is justified.

   [2] (2002) 211 CLR 238, especially per Gaudron J at [35] and Gummow J at [175].

9. It is clear from the case law that a party wishing to relocate need not demonstrate “compelling reasons”[3] and that while a child’s best interests are the paramount consideration they are not the sole consideration in parenting matters and the right of freedom of movement of a party will also be taken into account. That said, I am satisfied that the mother’s reasons for wishing to move to the (omitted) are sound and reasonable, including her wish to be nearer to her family. I also accept that the high cost of living in Darwin is a relevant factor. However, the mother is employed and I do not accept that it is not financially viable for her to remain in Darwin, particularly if the father is ordered to contribute half of the fees for crèche that, in effect, allows her to pursue employment. The final positions of the parties: departure in February 2016 or departure in October 2017, would appear to reflect some concession by each of the parties. In submissions counsel for the mother urged another option, that of allowing the mother to relocate at some midpoint between these positions, such as X’s third birthday in October 2016. This option was not put to the father in cross-examination but I am satisfied that in general terms he had the opportunity to answer the mother’s case on this point which, relevantly, was that the father’s claims about the business, including the requirement for a substantial period - approximately 2 years, to rearrange his business affairs in Darwin, were overstated.

   [3] For example, Goode & Goode (2006) FLC 93-286

10. I have concluded that the mother’s primary proposal is not likely to encourage a meaningful relationship between X and his father because the father will need some period to wind-up his business in Darwin and for his mother, whom I assume will also leave Darwin with her son, to find alternative employment. I have concluded that the father’s reasons for not wishing to move to the (omitted) in February 2016, as the mother’s proposal would require if he were to maintain a meaningful relationship with X, that is, the likely financial cost of winding-up his business along with the likely need for him and his mother to relocate sooner than they otherwise might, are reasons for refusing the mother’s application to relocate by February 2016.

11. However, I am not satisfied that she should have to wait until October 2017 as the father proposes. The principal factors in this conclusion are that I am not satisfied that the father will suffer financial hardship if he relocates sooner and I also think the father is likely to relocate sooner himself if the mother and X relocate. Further, I am satisfied that the mother will probably continue to be unhappy in Darwin, as was conceded by the father in cross-examination, and that there is a risk that her continued unhappiness will adversely affect X’s welfare. I also take into account the mother’s right to freedom of movement.    

The legislative pathway

1. I have reached the general factual conclusions set out above. The Family Law Act1975 requires me to follow a decision making pathway and, against the background of the general conclusions set out above, I set out my conclusions along that pathway below.

The child’s best interests

1. According to section 60CC(2) of the Family Law Act1975, in determining what is in the child’s best interests, the primary considerations are:

   (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   In the circumstances of this case I am satisfied that (a) is the only relevant primary consideration. It is in the child’s best interests to have a meaningful relationship with both of his parents. In the circumstances of this case and having regard to the child’s age and developmental stage, that is, when the child is likely to be forming primary attachments, a meaningful relationship with both of his parents is to be achieved by the child living with the mother and spending, at least, substantial and significant time with the father.

1. According to section 60CC(3) the court must consider additional factors. I have set these out below with my conclusions about those factors.

Section 60CC(3)(a) – any views expressed by the child.

1. The child is too young to have expressed any views.

Section 60CC(3)(b) – the nature of the child’s relationship with the child’s parents and other persons (including grandparent or other relative of the child).

1. The child has a close relationship with both parents. The Family Report identifies both parents as having “demonstrated strengths in parenting X” and being attuned to his needs “along with the ability to provide a structured and supportive learning environment for him”. The report writer identified the mother as providing a richer description of her parenting style and concluded that her “understanding of a child focused approach is likely to provide X with a solid foundation on which to grow and develop in the future”.

2. The report writer was not required for cross-examination and I accept these conclusions.

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 to communicate with the child.

1. Both parents have sought the opportunity to participate in major long-term issues relating to the child, indeed it has at times been a further source of conflict between them. Nevertheless, as the Family Report writer recommends - a recommendation with which I agree - shared parental responsibility is appropriate in this case.

2. The mother was critical of the father for missing some of the times X was to spend time with him. The present order provides that X is to spend time with his father from 5.30pm to 7.30pm on each Wednesday and from 11.00am to 2.00pm on each Saturday and on each alternate Sunday. The mother refers in her affidavit to various excuses offered by the father for his failure to comply with the orders. Some of the excuses were reasonable but not all. More importantly on some occasions it appears that the mother was not advised in advance by the father that other matters prevented his compliance. She deposes that X was disappointed.

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.

1. The mother complained in evidence that the father was one month in arrears with his child support payments. The father denied this. On the information available I was not able to make a finding about this.

2. The father was undoubtedly in arrears with the amount of interim spousal maintenance under the order that he consented to at the time of seeking an order that the mother return to Darwin from the (omitted). However, I have decided that as circumstances have changed that it is appropriate to discharge those arrears and substitute a different order to support the mother in payment of crèche fees.

Section 60CC(3)(d) – the likely effect of any changes in child’s circumstances, including the likely effect 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.

1. For the reasons set out above I have concluded that the likely effect of the mother relocating to the (omitted) before October 2017, assuming the father remains in Darwin, is likely to be deleterious to the development of a meaningful relationship between X and his father. The author of the Family Report also concluded that the best option for X to have a meaningful relationship with both parents was for both to remain in Darwin unless the court was satisfied that it was not financially viable for the mother to remain here. I agree in general terms with the conclusions of the Family Report writer but I am not satisfied that the mother should remain living in Darwin beyond the end of 2016.

2. Although I am satisfied that Ms G, the father’s mother, is a significant figure in the child’s life and her influence is beneficial I am unable to reach any conclusion about the effect of any separation from her due to the mother relocating to the (omitted).

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.

1. For the reasons set out above I have concluded that the practical difficulty of the child spending time with the father should the father remain in Darwin and the mother relocate to the (omitted) will substantially affect the child’s right to maintain personal relations with his father.

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.

1. I am satisfied that each of the child’s parents has the capacity to provide for the needs of the child, including emotional and intellectual needs. Beyond concluding that Ms G, the father’s mother, is likely to be a beneficial influence in the child’s life, I am not able to conclude that any other person has the capacity to provide the child’s needs.

Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions, of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.

1. This factor is not relevant in this case.

Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child [various matters follow].

1. The child is not an Aboriginal child or a Torres Strait Islander child.

Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

1. The communication style of each parent, particularly the father, with the other parent and the resultant high level of conflict is deleterious to the best interests of the child. It is to be hoped that this can be addressed by the parties themselves. The Family Consultant recommended that both parties undertake the Resolve/Anglicare For the Kids post-separation parenting program. I agree with this recommendation and propose to make an order accordingly.

Section 60CC(3)(j) – any family violence involving the child or a member of the child’s family.

1. Apart from one relatively minor admitted incident of family violence involving a threat to the father (who is not present) of the mother I have not found any family violence. However, the high level of conflict between the parties is deleterious to the best interests of the child.

Section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family [various matters follow].

1. No family violence order applies or has applied.

Section 60CC(3)(l) - whether it would be preferable to make an order which would be least likely to lead to the institution of further proceedings in relation to the child.

1. The father has sought orders that the child spend equal time with him. It is conceivable that such orders may be appropriate at some future time if the parents were able to adopt an effective co-parenting style. However, at present I am not satisfied that this is likely. It is appropriate to make orders dealing with future likely changes of circumstances such as the child attending school.

Section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant.

1. There are no other facts or circumstances that I consider to be relevant.

Parental responsibility and spending time

1. Section 61DA(1) provides:

   When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child from the child’s parents to have equal shared parental responsibility for the child.

2. I am satisfied that it is in the best interests of the child for the parents to have equal shared parental responsibility. Although the mother initially sought sole parental responsibility by the time of trial she conceded that shared parental responsibility was appropriate.  I agree.

3. Section 65DAA(1) provides as follows:

   Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, 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.

4. Section 65DAA(2) provides as follows:

   Subject to subsection (6), if:

   (a) a parenting order provides (or is to provide) that a child’s parents are the 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.

5. Section 65DAA(5) provides as follows:

   In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a) how far apart the parents live from each other; and

   (b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents: and

   (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing arrangement of that kind; and

   (d) the impact that an arrangement of that kind would have on the child; and

   (e) such other matters as the court considers relevant.

6. I am satisfied that it is appropriate to order that the child live with the mother and, at least, spend substantial and significant time with his father but I feel a significant reservation about the ability of the parents to implement an arrangement for the child spending equal time and as to the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind. The reservation principally stems from the father’s difficult and provocative communication style with the mother. This has been adverted to above. Notwithstanding that the mother was willing to acknowledge some significant improvement in the father’s behaviour my assessment of him in the witness box was that he remained unfairly and strongly suspicious and critical of the mother’s motives and conduct. I consider that, while it is possible (and desirable in the interests of the child) that this will change over time, it is presently a serious obstacle in the way of the effective communication between the parents. I doubt the parents’ capacity, particularly the father’s, to be able to effectively communicate with the other party to implement an equal time arrangement. I doubt their capacity to respond flexibly and to be able to reach the compromises in the interests of the child that an equal time arrangement requires.

7. Counsel for the father urged me to make orders for equal time through a graduated process until the child was, say, 8 years old. The difficulty with this proposal is that it assumes that the communication between the parents will likely become more effective over time or that the present difficulties in communication will likely not, under such an arrangement, militate against the best interests of the child. Reluctantly and with some reservations (I do not exclude the possibility that the father’s attitude will continue to change and improve) I have concluded that this assumption is not justified. My primary reason for that conclusion is outlined in the previous paragraph.

8. I am satisfied that it is reasonably practicable for the mother to remain in Darwin until the end of 2016 and that it is reasonably practicable that the child spend substantial and significant time with the father under the arrangement proposed below. It is not reasonably practicable for the mother to live in Darwin beyond the end of 2016. I consider it likely that the father would then relocate to the (omitted).[4]

   [4] See MRR v GR (2010) 240 CLR 461 as to the necessity to consider whether arrangements proposed for a child to spend equal time or substantial and significant time with a parent are reasonably practicable.

Conclusion

1. I have concluded that the appropriate order is that the child spend substantial and significant time with his father. The child presently spends 4 nights a fortnight with the father: Friday, Saturday and Sunday nights and Wednesday night in the second week. The mother wishes to keep this arrangement for the balance of 2015 but from the beginning of 2016 was willing to contemplate 5 nights a fortnight: Friday, Saturday and Sunday in one week and Wednesday and Thursday in the second week.

2. The father’s proposal until X’s fourth birthday is similar. He proposes that X spend time with him on Friday Saturday, Sunday and Wednesday nights in 1 week and Wednesday night in the second week. Although there is a history of conflict at changeover, this appears to have been resolved or ameliorated in recent times by an agreement that handover take place at X’s crèche. I propose to order that X spend 4 nights a fortnight with his father for the remainder of 2015 and beginning in 2016 that he spend 5 nights a fortnight with his father made up of Friday, Saturday and Sunday nights in alternate weeks and Wednesday night and Thursday night in each other week.

3. After balancing the various matters in this case, including the father’s need to have a reasonable time to wind-up his business in Darwin and the mother’s genuine need relating to her own happiness and probably the interests of the child, to live nearer her family support I consider that after 1 December 2016 the mother should be allowed to move the residence of the child to the (omitted).

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Original Judgment Provided: 6 October 2015

Amended Judgment Provided: 25 November 2015