H & H

[2006] FamCA 362

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT ADELAIDE APPEAL No SA8 of 2006

(No ADM 4392 of 2005)

IN THE MATTER OF:  H
  (Appellant Wife)
AND
  H
  (Respondent Husband)
AND
  CHILD REPRESENTATIVE

CORAM: THE HONOURABLE JUSTICE STRICKLAND

DATE OF HEARING: 12 April 2006
DATE OF REASONS: 11 May 2006

JUDGMENT

APPEARANCES: Mr McGinn of counsel instructed by Marion Yerbury appeared on behalf of the appellant wife

Mrs West of counsel instructed by Boylan and Co appeared on behalf of the respondent husband
Mr Morcombe of counsel instructed by Legal Services Commission appeared on behalf of the Child Representative

APPEAL SUMMARY

MATTER:H and H

APPEAL NUMBER:  SA 8 OF 2006
  (ADM 4392 of 2005)
CORAM:  Strickland J
DATE OF HEARING:  12 April 2006
DATE OF JUDGMENT:                  11 May 2006

CATCHWORDS:

FAMILY LAW – APPEAL from FEDERAL MAGISTRATE – CONTACT – Interim parenting orders – whether the trial Judge correctly applied the principles in Cowling – order changed the status quo of residence with the wife – wife intended to move to a town 40kms away – insufficient evidence to justify a substantial change to the residence arrangements for the child – order of Federal Magistrate set aside and previous status quo re-introduced.

Caselaw cited:

House v The King (1936) 55 CLR 499

Bellenden (formerly Satterthwaite) v Satterthwaite (1948) 1 All ER 343

CDJ v VAJ (1998) 197 CLR 172

F and S and Anor (2005) FLC 93-211

Cowling and Cowling (1998) FLC 92-801

Bennett and Bennett (1991) FLC 92-191

White DW and White RT (1995) FLC 92-648

Legislation cited:

Family Law Act 1975 (Cth)

Appeal allowed.

Question of costs reserved to 4 May 2006.
Introduction

This is an appeal by the wife against paragraph 1 of the orders made by Mead FM on 25 January 2006.
That order essentially provided for the child of the relationship to reside with the husband during the week and on one weekend out of every 4, and with the wife on 3 out of every 4 weekends.
That order altered the previous arrangement which had been in existence for 9 months following the separation, of the child living with the wife during the week and living with the husband on weekends as well as spending 3 hours with him on Tuesday evenings.
The husband opposed the appeal.
The child was separately represented before the learned Federal Magistrate and the child representative submitted that the pre-existing arrangement should not be altered. The child representative also participated in the appeal through counsel and consistent with his position before the learned Federal Magistrate supported the appeal.

Brief factual background

The learned Federal Magistrate did not set out any chronological background in her reasons for judgment but I have been able to glean the following from the documents relied on by the appellant for the purposes of the appeal.
The parties married November 1995. At that time the wife had a child, R, from a previous relationship. R is now aged 13 years.
The child L was born September 1996 and he is now aged 9 years.
The parties separated in April 2005. The husband remained in the former matrimonial home at town P and the wife moved into alternative accommodation with both children.
After separation the parties agreed that the child L would live with the wife during the week and with the husband on weekends and for three hours each Tuesday evening.
On 20 July 2005 the wife commenced to live with Mr H at town P. The children moved there as well and the arrangement between the parties simply continued.
On 6 December 2005 the husband filed an application in the Federal Magistrates Court seeking, inter alia, an order that the child L reside with the mother and the father on a week about shared care basis. He had become aware that the wife intended to move to town X, which is approximately 40 kilometres from town P.
On 18 December 2005 the wife and Mr H moved to live in town X where they had purchased a house property. At this time the child L was spending time with the husband.
The husband failed to return the child to the wife on 19 December 2005 as arranged and on 21 December 2005 the wife filed an application in the Federal Magistrates Court seeking, inter alia, orders that the husband deliver up the child to the wife, that the child reside with the wife and that the husband have contact.
On 22 December 2005 Mead FM adjourned the matter to 25 January 2006, provided for shared residence during the period of the adjournment and for handovers between the parties, appointed a child representative, and made certain injunctions.
On 24 January 2006 the wife filed a response by facsimile in which she sought, inter alia, orders that the child reside with her and that the husband have such contact as the parties agree or as ordered by the court.
On 25 January 2006 the matter again came before Mead FM for determination. Her Honour delivered an ex-tempore judgment and made orders including the one that is now the subject of this appeal. I will refer later to Her Honour’s reasons where relevant in the context of my consideration of the wife’s grounds of appeal.

The principles applicable to the appeal

The circumstances in which an appellate court should interfere with a discretionary judgment were set out in HOUSE v THE KING (1936) 55 CLR 499 at 504-505 where Dixon, Evatt and McTeirnan JJ said:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some of the material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his orders, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
With particular regard to a challenge based on the weight given by a trial Judge to factors relevant to an exercise of discretion, in BELLENDEN (formerly SATTERTHWAITE) v SATTERTHWAITE (1948) 1 All ER 343 at 345, Asquith LJ said:
“…It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”
Much more recently, the High Court (McHugh, Gummow and Callinan JJ) in CDJ v VAJ (1998) 197 CLR 172 has explained in the following terms, not only the limits on appellate interference with regard specifically to discretionary judgments concerning the living arrangements for children, but also the fact that there is no uniquely correct order when determining such arrangements:
“151…Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. The views of appellate judges about the proper order to be made will not infrequently conflict with those of the primary judge. Yet, absent legal error of a plainly unjust result, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge.
152 The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions…”

The grounds of appeal

The wife’s grounds of appeal are as follows:
“1. The learned Federal Magistrate erred in failing to give any or any sufficient reasons for her decision in that the reasons provided do not disclose Her Honour’s process of reasoning and do not address the arguments adduced by the applicant mother in support of the orders sought in her application.
2. Further, or in the alternative, the learned Federal Magistrate failed to give any sufficient weight to the status quo in relation to the arrangements for the care of the said child since separation.
3. Further, or in the alternative, the learned Federal Magistrate erred in giving improper weight to the proposed change in geographic location of the child’s residence with the mother.
4. Further, or in the alternative, the learned Federal Magistrate erred in that she gave no or insufficient weight to the wife’s proposal that the child’s school and sports connections remain unchanged after the mother’s move to town X.
5. Further, or in the alternative, the learned Federal Magistrate failed to give any or any sufficient reasons to identify any risk to the child’s welfare nor any strong or overriding considerations associated with the child continuing to reside with the mother after her proposed move to town X.
6. Further, or in the alternative, the learned Federal Magistrate failed to apply the principles set down in F and S & Anor 2005 FLC 93-211 (at p79,543).
7. Further, or in the alternative, the learned Federal Magistrate erred in making an order for residence in favour of the father when:-
(a)an established status quo was clearly present;
(b)that no risk to the child’s welfare was disclosed in the affidavit material;
(c)Her Honour’s reasons for judgment did not disclose any finding that the child would be really endangered by continuing to reside with the wife.”
During the hearing of the appeal the appellant’s counsel conceded that there was significant overlap in these grounds of appeal and that in many respects grounds 2 to 5 inclusive were merely specific examples of the alleged error the subject of ground 6. Thus he indicated that he only intended to proceed on grounds 1 and 6. He said that the complaint of the wife was that the learned Federal Magistrate had failed to apply the principles set down in F and S and ANOR (2005) FLC 93-211 and that was apparent from Her Honour’s reasons for judgment where she did not address these principles at all.
On that basis I consider it appropriate to deal with ground 6 first.

Ground 6

The decision of the Full Court of this Court in F and S and ANOR (supra) reaffirmed the principles established in COWLING and COWLING (1998) FLC 92-801 and which are recognised as those which govern the approach to the determination of applications for interim parenting orders under the Act.
It is useful to set out those principles in full as follows:
“19. Having regard to the earlier authorities of the Court to which we have referred and to the current provisions of the Act, we would summarise the relevant criteria for the determination of interim proceedings for residence and contact as follows:-
20. Firstly, having regard to the provisions of s65E, in determining what interim parenting order should be made, the Court must regard the best interests of the child as the paramount consideration.
21. Secondly, given the mode by which interlocutory proceedings are conducted, those interest will normally best be met by ensuring stability in the life of the child pending a full hearing of all relevant issues. Accordingly, as a general rule, any interlocutory order made should promote that stability.
22. Thirdly, where the evidence clearly establishes that, at the date of hearing, the child is living in an environment in which he or she is well settled, the child’s stability will usually be promoted by the making of an order which provides for the continuation of that arrangement until the hearing for final orders, unless there are strong or overriding indications relevant to the child’s welfare to the contrary. Such indications would include but are not limited to convincing proof that the child’s welfare would be really endangered by his/her remaining in that environment.
23. Fourthly, the Court is entitled to place such weight upon the importance of retaining the child’s current living arrangements as it sees fit in all the circumstances. In determining what weight to place upon that factor, it is appropriate for the Court to take account of the circumstances giving rise to the current status quo. In particular, the Court may examine the following issues:-
·whether the current circumstances have arisen by virtue of some agreement between the parties or as a result of acquiescence.
·whether the current arrangements have been unilaterally imposed by one party upon the other.
·the duration of the current arrangements and whether there has been any undue delay in instituting proceedings or in the proceedings being listed for hearing.
24. Fifthly, where the evidence does not establish that at the date of the hearing the child is living in an environment in which he or she is well settled, some limited evaluation of the relevant matters referred to in s68F(2) needs to be undertaken to ensure that the result embodied in the order promotes the child’s best interests. In undertaking that evaluation, regard must be had to the interim nature of the proceedings and the procedure referred to in C and C (supra).
25. Finally, in determining whether, at the date of hearing, a child is living in a settled environment, consideration should be given, inter alia, to the following:-
·the wishes age and level of maturity of the child.
·the current and proposed arrangements for the day to day care of the child.
·the period during which the child has lived in the environment.
·whether the child has any siblings and where they reside.
·the nature of the relationship between the child, each parent, any other significant adult and his or her siblings.
·the educational needs of the child.”
Before me it was submitted that the learned Federal Magistrate had misapplied the principles in COWLING in the following respects:
26.1The learned Federal Magistrate did not have proper or any regard to the evidence establishing that the child had been living in an environment in which the child was well settled.
26.2The learned Federal Magistrate did not make any finding that there were strong or overriding indications relevant to the child’s welfare that an order providing for a continuation of that settled status quo should not be made.
26.3The learned Federal Magistrate did not make an order that promotes stability in the child’s life.
It was submitted by counsel for the appellant that the evidence before the learned Federal Magistrate was that there was a settled status quo established by agreement between the parties following the separation. That status quo entailed the wife continuing as the primary caregiver of the child, and the complaint is that the learned Federal Magistrate altered that status quo without making any finding that to maintain it would entail a risk to the welfare of the child.
There is no doubt that on the evidence there was a settled arrangement whereby the child lived with the wife during the week as the primary caregiver and with the husband during the weekend and for 3 hours each Tuesday evening. There is also no doubt though that the learned Federal Magistrate recognised that. Her Honour said this in paragraph 4 of her reasons:
“(L) is certainly used to having all of his needs attended to by his mother since the parties separated in April of 2005, from Monday to Friday, but he has been equally used to a system whereby his father has attended to all of his needs on the weekend, because the parties very sensibly, and clearly thinking of L’s best interests, had instituted that arrangement between themselves for several months.”
Her Honour concluded though that the move to town X would “make a substantial difference to L’s day to day living arrangements”, and that she did not “have enough information to be confident that such a change is in his best interests”. Her Honour did find though that placing the child in the primary care of the father “was a slight change to the living arrangements” and in the short term was something that the child will cope with “admirably”.
It is submitted by the wife that there was no evidence to support a finding that a move to town X would make a “substantial difference”, that there was enough “information” before the Federal Magistrate about the move, that there was no evidence to support a finding, that placing the child with the husband during the week was a “slight change” and that the child would cope with it “admirably”.
Although it is difficult to follow Her Honour’s process of reasoning from her reasons for judgment it seems that in relation to the first issue Her Honour considered that the circumstance of the wife moving to another country town despite it being relatively close would be a substantial change in itself, and for the child it would entail attendance at a new school, a reduced involvement with his extended family, an inability to continue his current sporting arrangements, and a reduction in interaction with his friends. During the course of the hearing the learned Federal Magistrate said this:
“HER HONOUR: Mr Steven, the order that I had in mind, until I heard the submission about Auntie Z, quite frankly was that L remain in town P because it is effectively a relocation application. When we talk about 40 kilometres in the metropolitan area we’re talking about one end of Adelaide to the other. When we’re talking about 40 kilometres between town P and town X we’re talking about two completely different communities in country areas of South Australia and so I’m not particularly persuaded by Ms Cock’s admission that the only thing that changes in L’s life is moving 40 kilometres away because country towns being country towns, many things change in life including the sports teams that you play for, how much contact you do have with other communities. Some people travel a long way, some people don’t, and this is an interim matter, you see, and it seems to me that the only change that’s occurring in this is that the mother is choosing to live in town X.”
This puts into context what the learned Federal Magistrate said in paragraph 4 of her reasons, but it is challenged on the ground that there was no evidence before the magistrate on which Her Honour could make this finding. In my view that challenge is justified, and in this regard I consider that the learned Federal Magistrate fell into error. This error is then compounded by firstly the magistrate seeming to treat this matter as what she described during the hearing as a “relocation case” without then referring at all to and then determining the matter in accordance with the principles that apply in such cases, and secondly by the implication from paragraph 9 of her reasons that a move would entail changes to schooling, the child’s sporting arrangements and his involvement with family and friends. In respect of the latter the evidence was quite clear that L would be able to continue to attend the same school in town P, he would be able to maintain the same sporting arrangements, and he would continue to have a high level of interaction with family and friends. Indeed, it was as the wife’s counsel and the child representative submitted to the learned Federal Magistrate, namely, that the only change was that instead of living within approximately 500 metres of each other the parties would be living 40 kilometres apart. The evidence went no further than that.

There was no evidence to even raise the possibility that maintaining the status quo on the basis of the child living in town X during the week with the wife entailed any risk to the welfare of the child, and the learned Federal Magistrate certainly did not make any such finding.
Her Honour’s conclusion that the move to town X would make a substantial difference to L’s day to day living arrangements was not only not justified on the evidence but even if it was it could not be elevated to a finding of the sort of risk that the Full Court in COWLING had in mind.
The learned Federal Magistrate did indicate in her reasons that she did not consider that she had enough information to be confident that what she described as a substantial change whereby L would live with his mother in town X during the week is in his best interests, as opposed to on 3 out of every 4 weekends, but Her Honour was satisfied that what she described as the slight change whereby the child would reside primarily with the husband was something that the child could cope with admirably and thus presumably was in his best interests.
However, on the evidence that was before Her Honour, viewed on a comparable basis the greater change had to be altering the status quo and placing the child in the primary care of the father. To repeat, the evidence was that the only change surrounding the move was that instead of living close by the parties would be living 40 kilometres apart.
There was clearly insufficient evidence before Her Honour to justify a substantial change to the residential arrangements for the child. In an interim hearing it was an unjustified quantum leap to imply as Her Honour did that because the husband had been able to care for the child adequately on weekends that he can do the same during the week and that that only entails a slight change to the living arrangements. For one thing that has no regard to the make-up of the wife’s household and in particular the presence in that household of R, L’s step-sister. Thus again, in this respect the Federal Magistrate fell into error.
At this point I note that the principles of COWLING allow for the circumstance where the evidence does not establish that the child is living in a settled environment. In that event the obligation is to undertake an evaluation to the extent that it is possible of the relevant section 68F(2) factors. However, it can not be said that that is how the learned Federal Magistrate proceeded in this case and explains why Her Honour did not apply the principles set down in COWLING where there is a settled environment. Her Honour was well aware of the long standing arrangement between the parties but then failed to give it any or any sufficient weight.
In the circumstances I find that the Federal Magistrate erred in failing to apply the principles applicable in determining interim parenting proceedings.

Ground 1

In BENNETT and BENNETT (1991) FLC 92-191 the Full Court of the Family Court said in respect of the question of whether reasons were adequate or not:
“The important thing is that the Appellate Court must be placed in the position of being able to follow the trial judge’s line of reasoning, as must the parties, if they are to be satisfied that justice has been done.”
Also of relevance to the submissions on behalf of the mother are the statements of Kirby J in CDJ and VAJ (supra, at paragraph 186.10):
“10 A final consideration is pertinent, both to the approach that is proper to the Full Court reviewing the primary judge and to this Court reviewing a decision of the Full Court involving the evaluation of competing considerations and the exercise of a judicial discretion. Every appellate judge knows that the reasons given for a decision can never express the entire range of matters which the decision-maker has taken into account. In matters of evaluation and discretion, this would be impossible to achieve and undesirable to attempt. Judicial reasons whilst they must be adequate for the purposes of the exercise of any right to appeal cannot possibly catalogue all of the subtle considerations that lie behind a judicial decision.”
The complaint is that the reasons of the learned Federal Magistrate do not disclose Her Honour’s process of reasoning and they do not address the arguments of the wife that were put to her.
The reasons are quite short and there is no doubt that they do not address all of the arguments of the wife. However, that is not always necessary and it does not automatically indicate that the learned Federal Magistrate did not take those arguments into account.
I have already said that Her Honour’s reasons are somewhat difficult to follow, but read as a whole, as they must be, it is still possible to follow her line of reasoning.
Her Honour commences by referring to reasons that she had provided earlier in the day, and it seems that that is a reference to comments that Her Honour made during the hearing and part of which I have already referred to. The entirety of what Her Honour said is as follows:
“HER HONOUR: Mr Steven, the order that I had in mind, until I heard the submission about Auntie Z, quite frankly was that L remain in town P because it is effectively a relocation application. When we talk about 40 kilometres in the metropolitan area we’re talking about one end of Adelaide to the other. When we’re talking about 40 kilometres between town P and town X we’re talking about two completely different communities in country areas of South Australia and so I’m not particularly persuaded by Ms Cock’s admission that the only thing that changes in L’s life is moving 40 kilometres away because country towns being country towns, many things change in life including the sports teams that you play for, how much contact you do have with other communities. Some people travel a long way, some people don’t, and this is an interim matter, you see, and it seems to me that the only change that’s occurring in this is that the mother is choosing to live in town X.
I am not convinced on the material before me that there was notice of exactly what was happening, I think that’s a matter that is still to be determined, and I am not satisfied that there is a positive benefit or an advantage to L in a move. They are matters that I think need to be determined upon a final hearing when everybody can put those various issues and I can perhaps hear from teachers or psychologists, Mr P, who has clearly done a fairly extensive report.
I am not persuaded in any way, and that’s why I found your comments helpful, in that I think L is equally bonded to each of his parents. He clearly either doesn’t have, and that would be the most logical conclusion one might reach in this matter, rather than doesn’t want to express a view. Everything indicates that he thinks both of his parents are wonderful but, you see, L has lived his entire life in a particular town and he has extended family on both sides there and he has been going to school there. He has had problems at school. Those problems seem to have been identified and efforts made to address them, and this is in fact in my view a substantial change in L’s life that may in fact be in L’s interests but on an interim basis I’m not persuaded that that can be determined.”
That of course must be read with the ex tempore reasons for judgment, and what is quite clear from all that is that Her Honour considered that the “slight change” to the child’s living arrangements which would result from a change of primary caregiver was less disruptive to the child than the “substantial change” to his living arrangements that would flow from letting him live with his mother during the week in town X. Thus, it is possible to follow the line of reasoning of the Federal Magistrate, but clearly, as I have already found, there is a real issue about the adequacy of Her Honour’s reasons in that Her Honour failed to apply the principles applicable in determining interim parenting proceedings. Moreover, the learned Federal Magistrate failed to carefully explain her reasons for the change in the residence arrangements (WHITE DW and WHITE RT (1995) FLC 92-648 at p.82,565). Thus, to this extent there is merit in this ground of appeal.
Before leaving the grounds of appeal I need to say something about the submissions of the child representative.
The child representative supported the appeal, but in his written summary of argument he purported to present further grounds of appeal beyond those in the notice of appeal. However, there was no separate appeal by the child representative and there is no application by the appellant to add any additional grounds of appeal. Thus, there is no basis on which I could consider the further grounds presented by the child representative.
The child representative also made it quite clear in his written submissions that he was looking for this court to make some comment on the role of the child representative. In particular, the child representative was concerned about “a recent trend from Federal Magistrates to make orders compelling the child representative to interview children over issues before the court”. That had happened in this case and the child representative took exception to it.
This is an important issue and if there are perceived difficulties with “recent trends” then it is a matter that should be aired and addressed. However, this appeal is not the appropriate forum for that to occur given that there is no ground of appeal that was before me which is directed to this issue.

Conclusion

It follows from my discussion of the grounds of appeal that there is merit in the appeal and it should be allowed.

Re-exercise of discretion

Having concluded that the exercise of discretion by the Federal Magistrate can not stand, it is necessary for me to consider whether it is appropriate to re-exercise that discretion.
Given that this is an appeal from an interim decision and that an application for a stay has been refused I am of the view that in the interests of preventing any further delay I should re-exercise the discretion rather than remit the application for rehearing. All counsel sought that I do this and there is sufficient in the material to allow me to re-exercise the discretion. Further, no party sought to present any further evidence.
The appellant has set out in her notice of appeal the interim orders that she seeks in the event of the appeal being allowed and paragraph 1 of the orders of the learned Federal Magistrate being set aside. For the husband’s part his counsel told me that he still seeks interim residence of the child from Monday to Friday of each week, but if that is not to happen then the husband seeks residence on every weekend and overnight on one night during the week.
In determining these interim proceedings I need to apply the principles laid down in COWLING and they are set out in paragraph 25 above. In this case, prior to the wife moving to town X in December 2005 the evidence establishes that the child was living in an environment in which he was well settled. There were conflicts between the parties and involving the wife’s partner, and L was having difficulties at school, but despite this there was a settled status quo which had been in existence since the separation. Things then went off the rails when the wife purchased a house property in town X with her partner and moved there intending that L would continue to live with her from Monday to Friday of each week at town X. She did propose that L change schools and attend the school at town X, but that was more as a result of the difficulties that L was having at the school in town P and of which both parties were aware. In any event, the wife’s position before the learned Federal Magistrate and now is that L would continue to attend the same school at town P as he has always done.
When the wife moved the husband decided not to return L and that led to orders being made December 2005 for a week and week about residence arrangement which continued until the order the subject of this appeal was made.
Clearly, there are three issues that now arise, firstly, does the move to town X mean that there is no longer a settled environment in which the child is living, secondly if that is the case what is in the best interests of L bearing in mind the relevant matters arising under section 68F(2), and thirdly, if that is not the case, is there any risk to the child’s welfare in maintaining the status quo but with the child living with the wife in town X.
As to the first issue, I do not consider that the move to town X means that there is no longer a settled status quo to take into account. The evidence is that everything can stay the same in the child’s life save and except that instead of the parties living close to each other they will live 40 kilometres apart. The child will attend the same school, he will engage in the same sporting activities, and he will have the same interaction with his extended family and his friends.
On that basis the second issue is not applicable, and with the third issue there is simply no evidence of any risk to the welfare of the child.
There is of course an element of the unknown with the move to town X, but if it is a question of maintaining the status quo with the child living in town X or altering the residence arrangement then the former is by far the safer option on the available evidence.
Thus, applying the principles set down in COWLING and confirmed in F and S and ANOR (supra) it is in the best interests of the child to maintain the status quo despite the move to town X. What that entails though is the child residing with the wife from Sunday night until Friday night and with the father from Friday night until Sunday night each week as well as the child spending three hours with the father on each Tuesday night. The learned Federal Magistrate introduced into her orders the notion of the parent who has the child during the week also having the child on one weekend in every 4 weekends. However, that was not an order sought by anyone and there was no evidence presented and no submissions made which would justify such an order. Indeed, the child representative supports an order precisely in terms of the previous long standing arrangement.
The wife in her orders sought was seeking that there be a residence/contact arrangement, but in my view it should be a residence/residence order given that that more accurately reflects the previous status quo.
For the husband’s part, in the orders that he sought from this court he indicated that in the event of the status quo continuing he was seeking an order that the contact on the Tuesday evening extend to overnight. This was a submission made for the first time and quite late in the piece by the husband’s counsel and there was no evidence nor any submission to assist me in considering that application. In any event, as I have said I propose to re-introduce the pre existing status quo and I thus am not prepared to do what the husband now seeks.

Orders

In all the circumstances the orders that I propose to make are as follows:
64.1That the appeal against paragraph 1 of the order made by FM Mead on 25 January 2006 be allowed.
64.2That paragraph 1 of the order made by FM Mead on 25 January 2006 be discharged.
64.3That in lieu of that paragraph:
64.3.1Until further order the child L born September 1996 reside with each of his parents as follows:
64.3.1.1Subject to paragraph 64.3.1.3 hereof, with his mother from 7:00pm on Sunday to the conclusion of school of Friday of each week;
64.3.1.2With his father from the conclusion of school on Friday to 7:00pm on Sunday of each week;
64.3.1.3With his father for a period of 3 hours on each Tuesday after school at times to be agreed between the parties and in default of agreement as ordered by the court;
64.3.1.4With each of his parents for up to one half of each of the July and September/October school holidays in 2006 PROVIDED HOWEVER that the resident parent is on annual leave for the period that the child is to reside with that parent.
64.3.2Until further order:
64.3.2.1The said child continue to attend the Primary School in town P;
64.3.2.2The wife maintain the said child’s involvement in his sporting activities in town P.

I certify that the preceding
64 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland.
The 11^th day of May 2006.

……………………………………….
Associate

[2006] FamCA 362

11 May 2006

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness