Hamblen and Sanchez
[2010] FMCAfam 543
•28 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HAMBLEN & SANCHEZ | [2010] FMCAfam 543 |
| FAMILY LAW – Parenting orders – reasonable practicality of the continuation of an equal shared care arrangement after a parent has relocated. |
| Family Law Act 1975, pt.VII, ss.60B, 60CA, 60CC, 61DA, 62G(3A), 62G(3B), 65DAA |
| AMS v AIF (1999) 24 Fam LR 756, (1999) 199 CLR 160, (1999) FLC 92-852, [1999] HCA 26 Goode v Goode (2006) 36 Fam LR 422, (2006) FLC 93-286, [2006] FamCA 1346 B and B, Re; Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755 Morgan v Miles (2008) 38 Fam LR 275, (2007) FLC 93-343, [2007] FamCA 1230 MRR v GR [2010] HCA 4 Taylor & Barker (2008) 37 Fam LR 461, (2007) FLC 93-345, [2007] FamCA 1246 |
| Applicant: | MS HAMBLEN |
| Respondent: | MR SANCHEZ |
| File Number: | NCC 3172 of 2008 |
| Judgment of: | Lapthorn FM |
| Hearing dates: | 6, 7, 20, 28 April 2010 |
| Date of Last Submission: | 18 May 2010 |
| Delivered at: | Newcastle |
| Delivered on: | 28 May 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gorton |
| Solicitors for the Applicant: | Armstrong Solicitors |
| Counsel for the Respondent: | Mr Hamilton |
| Solicitors for the Respondent: | Peter Hamilton & Associates |
ORDERS
That all previous Parenting Orders be discharged.
That [X] born [in]1999 and [Y] born [in] 2001 (“the children”) live with the Mother.
That Subject to Order (4) herein, the Father and Mother have equal shared parental responsibility for the children.
That the Mother have the sole parental responsibility in respect of the decision of which High School the children or either of them will be enrolled and attend subject to the Mother consulting the Father prior to making such decision.
The children spend time with the Father as agreed between the parties in writing, but failing agreement as follows:
(a)during school terms:
(i)each alternate weekend from conclusion of school on Friday to commencement of school on Monday or commencement of school on Tuesday if Monday is a holiday or a pupil free day to commence on 4 June, 2010 and to continue in that sequence thereafter;
(ii)on the Father’s Day weekend if not a weekend during which the children otherwise spend time with the Father pursuant to these Orders from conclusion of school on Friday to commencement of school on the following Monday;
(iii)should Easter not fall in the school holiday period the father will spend this time with the children in each even numbered year from conclusion of school on Thursday to commencement of school on Tuesday for that Easter weekend (with the mother spending this same period of time with the children in odd numbered years when Easter does not fall during school holidays);
(b)that during the school holidays at the conclusion of second and third terms, the children spend the whole of one of these periods with the mother and the whole of the other period for that year with the father. Each party is to provide notice in writing 6 weeks prior to the commencement of such holiday periods advising that he or she intends to spend the particular holiday period with the children. In the event that both parties seek the same 2 week period and an agreement can not be made, the children spend time with the father:
(i)for the entire school holidays which commence at the end of the third school term in each odd numbered year from the conclusion of school on the last day that the children are required to attend school in the third term to the commencement of school on the first day that the children are required to attend school in the fourth term;
(ii)for the entire school holidays which commence at the end of the second school term in each even numbered year from the conclusion of school on the last day that the children are required to attend school in the second term to the first day that the children are required to attend school in the third term;
(c)That during the school holidays at the conclusion of the first term the children spend time with the father as follows:
(i)for the first half of the school holiday period which commence at the end of the first school term in each even numbered year from the last day of the first school term that the children are required to attend school to the midpoint day at 5.00 pm;
(ii)for the second half of the school holiday period which commences at the end of the first school term in each odd numbered year from 5.00 pm on the midpoint day of such holiday to the commencement of school on the first day of school that the children are required to attend school;
(d)that during the school holidays at the conclusion of fourth term the children will spend time with the father as follows:
(i)for the second half of the holiday period in even numbered years commencing from 9.00 am on the midpoint day of the said school holidays until 9.00 am the day before the first day that the children are required to go to school in Term 1 of the following year;
(ii)from 5.00 pm on Christmas Day to 5.00 pm on Boxing Day in each even numbered year;
(iii)for the first half of the holiday period in odd numbered years commencing from 9.00 am on the day immediately following the last day the children are required to attend school in Term 4 to 5.00 pm on Christmas Day and then from 5.00 pm on Boxing Day to 9.00 am on the midpoint day of the said school holidays.
That should the Mother’s Day weekend fall on a spending time weekend of the children with the Father pursuant to Order 5(a)(i), such spending time with period be suspended for the entire weekend.
That the above spending time with periods be implemented as follows:
(a)when the Order requires the children to spend time with the Father from “conclusion of school” the Father or his nominee collecting the children from the children’s school at such time;
(b)when the Order requires the Father to return the children to the children’s school at the conclusion of a spending time with period the Father or his nominee returning the children to the children’s school;
(c)when the children are not required to be collected from the school or returned to the school, the parent with whom the children are either living or spending time with or such parent’s nominee delivering the children to the other parent or that parent’s nominee at that parent’s address for the purposes of commencement or the conclusion of the said spending time with period.
That should the Father commence, by 28 May 2011, to reside in the Central Coast area, Orders (2), (4), (5) (excluding Order 5(a)(ii)) and (7) inclusive be discharged from the time he commences to reside in that area and in lieu thereof the following Orders are to apply:
(a)during school terms:
(i)that the children live with the Father each alternate week from conclusion of school on Monday to the commencement of school on the following Monday, the first such period to occur so that the week which the children are with the Father is the same week as the Father’s fiancée’s children are with the Father’s fiancée;
(ii)that the children shall live with the Mother each intervening week from the conclusion of school on Monday until the commencement of school on the following Monday;
(iii)should Easter not fall in the school holiday period the father will spend time with the children in each even year from conclusion of school on Thursday to commencement of school on Tuesday for that Easter weekend and the Mother will spend the same period of time with the children in each odd numbered year.
(b)that during the school holidays at the conclusion of second and third terms, the children spend the whole of one of these periods with the mother and the whole of the other period for that year with the father. Each party is to provide notice in writing 6 weeks prior to the commencement of such holiday periods advising that he or she intends to spend the particular holiday period with the children. In the event that both parties seek the same 2 week period and an agreement can not be agreed, the children spend time with the parents as follows:
(i)with the father for the entire school holidays which commence at the end of the second school term in each even numbered year from the conclusion of school on the last day that the children are required to attend school in the second term to the first day that the children are required to attend school in the third term;
(ii)with the mother for the entire school holidays which commence at the end of the second school term in each odd numbered year from the conclusion of school on the last day that the children are required to attend school in the second term to the first day that the children are required to attend school in the third term;
(iii)with the father for the entire school holidays which commence at the end of the third school term in each odd numbered year from the conclusion of school on the last day that the children are required to attend school in the third term to the commencement of school on the first day that the children are required to attend school in the fourth term;
(iv)with the mother for the entire school holidays which commence at the end of the third school term in each even numbered year from the conclusion of school on the last day that the children are required to attend school in the third term to the commencement of school on the first day that the children are required to attend school in the fourth term;
(c)that during the school holidays at the conclusion of the first term the children spend time with the parents as follows:
(i)with the Mother for the first half of each school holidays which commence at the end of the first school term in each odd numbered year from the last day of the first school term that the children are required to attend school to the midpoint day at 5.00 pm;
(ii)with the Mother for the second half of each school holiday which commences at the end of the first school term in each even numbered year from 5.00 pm on the midpoint day of such holiday to the commencement of school on the first day of school that the children are required to attend school;
(iii)with the Father for the first half of each school holidays which commence at the end of the first school term in each even numbered year from the last day of the first school term that the children are required to attend school to the midpoint day at 5.00 pm;
(iv)with the Father for the second half of each school holiday which commences at the end of the first school term in each odd numbered year from 5.00 pm on the midpoint day of such holiday to the commencement of school on the first day of school that the children are required to attend school;
(d)that during the school holidays at the conclusion of fourth term the children will spend time with the parents as follows:
(i)with the Mother for the second half of each school holidays which commences from the end of the fourth school term in each odd numbered year from 5.00 pm on the midpoint day of the said school holidays until the commencement of school on the first day that the children are required to go to school in Term 1 of the following year;
(ii)with the Mother from 5.00 pm on Christmas Day to 5.00 pm on Boxing Day in each odd numbered year;
(iii)with the Mother for the first half of each school holiday which commences from the end of the fourth school term in each even numbered year from the conclusion of school on the last day the children are required to attend school in Term 4 to 5.00 pm on Christmas Day and then from 5.00 pm on Boxing Day to 5.00 pm on the midpoint day of the school holidays.
(iv)with the Father for the second half of each school holidays which commences from the end of the fourth school term in each even numbered year from 5.00 pm on the midpoint day of the said school holidays until the commencement of school on the first day that the children are required to go to school in Term 1 of the following year;
(v)with the Father from 5.00 pm on Christmas Day to 5.00 pm on Boxing Day in each even numbered year;
(vi)with the Father for the first half of each school holiday which commences from the end of the fourth school term in each odd numbered year from the conclusion of school on the last day the children are required to attend school in Term 4 to 5.00 pm on Christmas Day and then from 5.00 pm on Boxing Day to 5.00 pm on the midpoint day of the school holidays;
The above parenting orders be implemented as follows:
(a)when the implementation is to take place at school: by the parent with whom the children have been living with causing the children to be delivered to the school and the parent in whose care the children will be causing the children to be collected from the school;
(b)when the implementation is to take place other than at school: by the parent with whom the children have been living with causing the children to be delivered to the other parent or that parent’s nominee at that parent’s address.
That unless otherwise agreed in writing between the parties, the Mother cause the children to continue to be enrolled at and attend the
[T] School for the duration of their primary school education and to do all acts and things and execute all documents to cause the school to forward to the Father at his expense copies of all school reports, school photographs, identifications and any other document issued by the school which relates to the education or welfare of the children.
That each party keep the other informed of his or her current residential address and telephone number and advise in writing the other of any change of those details within 7 days of such change.
The parties keep each other informed of the children’s treating medical professionals and authorise such treating medical professionals to provide to both parties information regarding the children’s health and medical treatment.
Each party advise the other party as soon as practicable of any serious illness or injury suffered by either of the children whilst the children are in that party’s care.
That each party be restrained from denigrating or criticising the other or causing any other person to denigrate or criticise the other in the presence or hearing of the children.
IT IS NOTED that publication of this judgment under the pseudonym Hamblen & Sanchez is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 3172 of 2008
| MS HAMBLEN |
Applicant
And
| MR SANCHEZ |
Respondent
REASONS FOR JUDGMENT
Introduction
The parents of [X] born [in] 1999 and [Y] born [in] 2001 have since their separation in 2005 shared the care of the children. The current week about arrangement has become problematic as the father is living in Newcastle and the mother is living at [A] on the Central Coast. Because of this logistical difficulty the parties have sought orders for the children to live primarily with one of the parents.
Background
The parents commenced to live together in 1993 and married [in] 1995. They separated on a final basis in November 2005 and were divorced on 28 February 2009.
By the consent of the parties on 29 September 2006 I made orders that provided for the children to live with each parent in a week about arrangement. Included in those orders was an order restraining a parent from living more than 45 kilometres from the children’s school. Notwithstanding this restraint the father has moved to [C] in Newcastle to live with his current partner Ms E and her two children [L] aged 12 and [E] aged 8.
Issues
Whilst both parties would support the children continuing to live in a shared care arrangement they accept that as they currently live more than 45 km from each other this type of arrangement is problematic for the children. Although the father, at the commencement of the hearing had as a fall back position that the children’s school be changed to one that is more equidistant from their respective homes his primary position was that if the parties remained living greater than 45 km apart the children should live primarily with him and spend alternate weekends with the mother.[1] The mother on the other hand sought orders that would provide for the children to live primarily with her. Both parties agreed that in the event that they were living in close proximity to each other the children should live with them in a week about arrangement. Neither party wanted this option to be open ended and submitted that it should be subject to them moving to be near the other parent by the end of 2010.
[1] The father was given leave at the hearing to file and serve a minute of order sought. This minute was received on 18 May 2010.
The evidence
In support of her case the mother relied on her Initiating Application filed 13 August 2009, her affidavit filed 19 March 2010 and the affidavit of Ms S filed 19 March 2010. Ms S is the sister-in-law of the father.
The father relied on his Response filed 9 October 2009 and his two affidavits filed 9 October 2009 and 19 March 2010. He also relied on an affidavit of his fiancée Ms E filed 19 March 2010.
The court has had regard to a report prepared by Family Consultant
Ms R released 16 February 2010 and a number of documents that were tendered.[2]
[2] F1: Department of Education Student Absences and Aides Memoir, M1: Department of Education student records, M2: Medical Records from [H] Health, M3: Communications book used by the parties from 1 March 2006 to 6 August 2006.
Both parties and their witnesses gave evidence. The Family Consultant was also cross-examined.
Although the evidence of the parties differed in parts I did not detect any dishonesty on the part of either party. Their perceptions of events were clearly clouded by the dispute and the lack of trust that has developed since separation. The father presented as an intense and at times angry person but I was left with the impression any anger was borne out of a belief that he had much to offer the children and that his parenting style was better than the mother’s. His partner was supportive of the father in his views. The mother who presented as a more laid back individual than the father also lacked trust in him and appeared to be frustrated that her parenting was under question by the father and his partner.
Overall I formed the view that the witnesses gave their evidence to the best of their ability and they were honest in their recollections despite the differences.
I propose to address a number of issues that arose in the evidence.
The father lives in a home owned by Ms E in [C]. It is a modern 4 bedroom home with a study. Ms E is not prepared to move from this home. I make no criticism of her decision in that regard.
The father gave evidence that he moved in with Ms E in November 2008. The mother however believes that the father moved to Ms E’s home much earlier than that. She formed this view after noticing that children’s activities with the father often occurred in the Newcastle area and in June 2008 one of the children told her that they did not live at the father’s old address but only came to collect the mail. The father’s evidence was that over time he spent more time with Ms E at her home but it was not until the end of 2008 when he and Ms E committed to living together. Ms E supported the father’s recollection although she was less certain as to exactly when they had commenced living together. Although the father and Ms E had a relationship prior to the separation of the mother and father I am satisfied that their relationship developed over time and it is not unusual for a couple to spend increasing periods of time together prior to finally moving in together.
The mother lives in a 3 bedroom unit at [A]. The children have their own bedrooms. Whilst the mother has family and friends in the Newcastle area she has no intention of moving away from the Central Coast.
The father held the view that he was better placed to ensure the children’s education was supported. He believed the mother allowed the children to have too many absences from school. Both parties tendered documents from the Department of Education along with Aides Memoir.[3] The mother said that a number of absences were on the days the father returned the children to her and that it was unfair to blame her for them. There were also absences associated with the children’s involvement in [activities omitted]. The different records however were not consistent giving rise to questions as to their accuracy or interpretation. Whilst I am concerned that the children may have been missing too much school I am not able to determine the cause of this or if either party was responsible.
[3] Exhibits F1 and M1
The father maintained that the children would benefit from attending the same school as Ms E’s children which is a Catholic primary school at [omitted]. He gave evidence of looking at the ‘Myschool’ web site and concluding that this school would be better than the larger public school the children attend at [T]. Whilst I respect the view the father has taken after comparing the different schools I found no evidence to suggest the children were not doing well in their current school.
The father also gave evidence of purchasing for the children a computer programme developed by the Australian Institute of Mathematics called the Mathemagic Computer Tutor. This is used by the children and Ms E’s children 3 times a week whilst in the father’s home. The cost of the programme was $8,000. Although the programme licence allowed for its use on 3 computers and only 2 were used in the father’s household he did not provide it to the mother so the children could continue to use it when they were spending weeks with her. Whilst the programme was purchased at significant cost to the father and Ms E, by not offering it to the mother to enable the children to use it in her home the father appears to have focussed less on the children’s needs than the ongoing friction with his former wife.
The father has taken [Y] to see a speech pathologist to assist with language difficulties. He has not tried to involve the mother in these appointments believing she would not be interested.
The mother complained that the father did not attend parent teacher nights at the school. The father said he preferred to approach the teachers when he attended the school to collect or deliver the children. The family consultant spoke to Mr H, [X]’s teacher for 2009 and was informed that both parents were supportive and genuinely interested in their education. Although this evidence was not in direct form I am satisfied on all of the evidence that both parents are supportive of their children’s education and that neither party is to be preferred on this issue.
The children have however been tired at school. Both parents blame the other. [X] indicated to the family consultant that she did not like the travelling. When the children live with the father they get up around 5.30am on school days so the father can deliver them to Out of School Hours Care by 6.30am. He needs to deliver them that early so he can be at work on the Central Coast on time. They go to bed by 8.30pm. [L] and [E] do not have to get up early. The children’s school is only a 10 minute drive from the mother’s home and therefore the children do not have to get up early whilst they are with their mother.
Mr H told the family consultant he noticed that [X] was often tired and emotional but he did not know if that was during the weeks the children were with the mother or father or both.
If the children live primarily with their mother they would continue to attend [T] School and would only have to get up early once a fortnight when their father returned them to school after their weekend with him. On the other hand if the children lived their father they would attend a new school but one that [L] and [E] attend. They would not have to get up early in the father’s household but once a fortnight they would have to get up early when their mother delivered them to school.
[X] has suffered from bed wetting for some time. Historically the father has been more concerned about this than the mother. This may be indicative of their personalities and approaches to life. The mother is clearly a more laid back less intensive person than the father. The father has taken [X] to see doctors and has ensured she has received appropriate treatment and medication. He complains the mother does not take the bed wetting seriously. He has given up on involving the mother in arranging for the child to see doctors. This has led to a situation where the child was receiving medication in one household and not in the other. The mother has not attended all of the medical appointments. She says she was not always aware of them because the father would not tell her about them. I accept the father’s evidence that he initially told the mother about the medical appointments but became frustrated with her response and concluded she was not interested. I have not arrived at the same conclusion however. I am satisfied that it is not a case of the mother not being interested but preferring to take a more relaxed approach to the child’s difficulties. It is no doubt concerning for this child to experience the different approaches in each household.
There is insufficient evidence for the court to find that the child needs a particular approach or treatment. Notwithstanding the mother’s more laid back approach I am satisfied that she has informed herself of the child’s medication and treatment and will follow through with it.
The father and his partner arranged from [X] to be referred to see a clinical psychologist in October 2009. This was around the time the family was being assessed for the family report. The mother was not consulted about this prior to the appointments being made. I find that lack of consultation disappointing although in the context of this case not surprising. The father was concerned about the child having behavioural issues, but lacking trust in the mother to be supportive of his concerns, it is no surprise that he along with Ms E would pursue a psychological referral for his child.
Ms M was advised of the child’s behavioural difficulties and bed wetting. Mother told Ms M on 24 November 2009 that she was no longer having any problems with [X] bedwetting.
On 30 November 2009 during a session with Ms M the child, who was brought to the session by her father, told Ms M that her mother had ‘won’ in court the week before and that she would be going on holidays with her mother to Bali. She was purportedly worried about the plane crashing. On that day the child expressed concern about the mother having met with Ms M the week before. She also told Ms M that she was sick of everyone asking her who she wants to live with. The child disclosed having a sleep over on the weekend at a friend’s place. She told Ms M, the father and his partner that she did not have any toiletry issues during the sleep over. The father and his partner said to her “but you wore pull ups didn’t you?” When she said “no” they did not hide their shock. Whilst this shock may have been consistent with the level of intensity and concern they have on this issue Ms M had to speak to the father and his partner about their reaction. I have no doubt the mother would have reacted differently. During that session the psychologist indicated to the father and his partner that she thought the child’s difficulties were unlikely to have been caused by any childhood disorder but that her behaviour was most likely a reaction to the ongoing stress of shared care. They were advised about the need for consistency across both households.
When Ms M saw the child and mother again on 8 December 2009 she formed the view that the child and mother had a very positive relationship. Ms M noted that the mother reacted appropriately to the child’s concerns about flying to Bali.
The next session for [X] with Ms M was with the father’s partner. Ms E complained that the child’s behaviour in their home was worsening. Ms E gave examples to Ms M of the child sucking up to adults and rubbing things in the face of the other children in an attempt to get them jealous. When asked questions at the hearing Ms E gave evidence of the child being clingy and inappropriate in her behaviour with both adults and her children. When pressed she had difficulty giving examples rather than conclusions. Ms E is [trained in the mental health industry] although not currently working in the field. I do not doubt that Ms E formed her opinions of the child’s behaviour from her observations of the child’s interactions with others but is was disappointing she was not able to be more articulate as to exactly what that behaviour was that lead her to those conclusions. Ms E was very concerned that [X] had a heightened sense of her [omitted] abilities when she was not as a good a [omitted] as one of her own daughters. I find that despite Ms E’s training [in the mental health field]she may not be attune to the child’s self esteem issues even though Ms M discussed this with her on 15 December 2009.
When [X] saw Ms M after the family report interviews she was upset and told Ms M that she was very frightened that she would have to go and live with her mum full time. Apparently she was told by [L] that Ms E had told her that. [X] told Ms M that she didn’t want to live with her mother but wanted to live with her father and see her mother every second weekend. She complained the family reporter did not listen to what she had to say.
The following week during a session with her mother [X] told her mother that she wanted to live with her father and see her every second weekend. Both mother and daughter became very upset. Both the mother and Ms M attempted to get the child to talk about her feelings and she told the mother that she did not like how “mean” she was to her father and that she “lies” a lot. The mother spoke to Ms M when the child was out of the room expressing concern that the child may be repeating things said to her when in her father’s care.
The family consultant observed the children to have a very close and secure attachment to both parents and to have a significant relationship with Ms E and her children. She observed [X] to be a gentle, intelligent child somewhat anxious and clearly emotional. [Y] appeared to be a happy confident child. [X] appeared to understand the logistical difficulty associated with the father living so far from her school. She appeared to the family consultant to be torn between both parties. Ms R did not seek [X]’s views in regard to the future parenting arrangements as she considered that the child’s level of distress and anxiety was too great. Mr Hamilton on behalf of the father was critical of her for not doing so. I found this criticism disappointing. Although the Family Law Act 1975 says at s.62G(3A) that a family consultant who is directed to give the court a report on a matter must ascertain the views of a child and include those views in the report that provision is subject to s62G(3B) which says that the requirement to ascertain those views does not apply if it would be inappropriate because of the child’s age or maturity or there is some other special circumstance. Ms R needed to make the call in the context of the assessment whether to explore this issue in a child focused and sensitive way. I am satisfied that Ms R carried out her duties as a family consultant in a most appropriate and professional way and should not be criticised for making the call she did.
Legal principles
Parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975. In determining the outcome of parenting matters the Court must consider the best interests of the child as the paramount consideration.[4] Whilst that is the paramount consideration it is not the only consideration. In AMS v AIF his Honour Justice Kirby held:[5]
[144] ……a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.
[4] Family Law Act 1975 s.60CA.
[5] (1999) 24 Fam LR 756 at 792.
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[6]
[6] Family Law Act 1975 s.60B lists the objects and principles for pt.VII.
In determining what is in a child’s best interests the court must consider the matters set out in s.60CC.
When making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[7] This presumption may not apply or may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s best interests for it to apply.[8]
[7] Family Law Act 1975 s.61DA.
[8] Family Law Act 1975 s.61DA(2) and (4).
In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the children spending equal time with the parents. If the court finds that is not in the child’s best interests or reasonably practicable then the court must consider the child spending substantial and significant time with the parents.[9]
[9] See MRR and GR [2010] HCA 4 as to the requirement for the court to be satisfied as to both limbs of s.65DAA i.e. the need for equal time to be in the best interests and reasonably practicable.
This legislative approach must be followed in all parenting cases.[10] This particular case has as one of its elements the issue of relocation. Much has been written and said about relocation cases such that there may be a perception that they are a unique type of case to be determined differently from others. The jurisprudence however is clear that such cases remain to be determined like all parenting matters by considering the best interests of the child in the context of the legislative framework.[11] In Taylor v Barker[12] their Honours Bryant CJ and Finn J said:
[53] …… when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible: see U & U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.
[10] Goode v Goode (2006) 36 Fam LR 422, (2006) FLC 93-286, [2006] FamCA 1346.
[11] B and B, Re; Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755; Morgan v Miles (2008) 38 Fam LR 275, (2007) FLC 93-343, [2007] FamCA 1230.
[12] Taylor v Barker (2008) 37 Fam LR 461 at 475.
Their Honours went on to say:
[83] However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or substantial and significant time” with each parent.[13]
[13] Taylor v Barker (2008) 37 Fam LR 461 at 480.
Presumption of equal shared parental responsibility
There being no allegations of domestic violence or child abuse the presumption applies in this case. Both parties sought an order that they continue to share the parental responsibility for the children except for the issue of where the children should attend High School. I am satisfied that notwithstanding the parties’ differences of opinion in relation to where the children should live and the different approaches to obtaining medical treatment, they have the ability to communicate sufficiently on the important issues that arise when exercising their parental responsibility and for that reason I will order that they have equal shared parental responsibility.
Both parties agreed that in the event the children were living primarily with one party rather than in a shared care arrangement that parent should have the final say as to which high school the children attend after consulting with the other parent first. As they are both in agreement with this approach I will make an order accordingly.
Consideration of equal time or substantial and significant time
Having applied the presumption and indicating that I will make an order for the parties to equally share the parental responsibility for the children I must turn my mind to whether it is in the children’s best interests for them to live in an equal shared care arrangement and if it is reasonably practicable. In doing so I will consider the factors set out in s.60CC.
The primary considerations: s.60CC(2)
The benefit to the child of having a meaningful relationship with both of the child’s parents
Although both parents gave differing evidence in their affidavits in relation to the care provided to the children during their relationship and after separation they both conceded to the Family Consultant and in cross-examination that they have always shared the care of the children. Both parties worked during the relationship and although there was a period of time when the father lived away from the family through his work commitments and another time when he commuted between the Central Coast and Sydney, I am satisfied that they each played a significant role in the care of the children. They continued to do so after separation. The Family Consultant formed the view that both parents have nurtured the children’s emotional and psychological states and have worked together to meet the needs of the children such that the children feel loved, safe and secure in each home. There being no evidence to the contrary I am satisfied that these children have a positive and good relationship with both parents.
It is not possible to determine who the primary attachment figure is for each of the children. The Family Consultant formed the view that in this case that issue is not relevant in the minds of the children as they have secure attachments to both parents borne out of their experience of being parented and nurtured equally by both parents from infancy.
These strong attachments should assist the children to cope if they live with one parent more than the other. However there can be no getting away from a sense of loss they are likely to feel from being separated from one of their parents for a longer period than they would under the current arrangement.
The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
This is not a case where the court needs to be concerned about the need to protect these children from physical or psychological harm. The children would be safe and well cared for in either home.
The additional considerations: s.60CC (3)
Any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give to the child’s views
The father gave evidence that both children have said to him that they wanted to live with him and go to school with [L] and [E]. He said that [X] has expressed a wish to see her mother every second weekend. The mother said that [X] had never told her that until the session with Ms M in December 2009. Ms M was not called to give evidence. There is a risk in accepting a child’s wishes without contextualising them. If Ms M had have given evidence it may have been possible to explore the circumstances surrounding her wishes in more detail.
The Family Consultant did not have the benefit of seeing the notes produced under subpoena from Ms M the clinical Psychologist when she prepared her report. Prior to the cross-examination she read the notes and indicated that they did not cause her to change her position in any way. She remained concerned as to the level of anxiety exhibited by [X] and the level of distress she was experiencing in being torn between both parents. [X] did however indicate she was tired of the travelling.
[X] is almost 11 years of age and her views are relevant for my consideration although in themselves they would not necessarily be determinative of the issue of where she should live. I accept she has told her father, Ms M and her mother that she wants to live with her father but I remain concerned that her level of anxiety is such that caution should be given before affording too much weight to those wishes.
[Y] is 8 years of age and apart from the father’s evidence, there is no evidence of her views of where she wants to live. Given her young age any views expressed would not carry significant weight in any event.
The nature of the relationship of the child with each of the child’s parents and other persons
I am satisfied that the children have a loving and positive relationship with both parents and their extended families. The children have since the father moved in with Ms E developed a relationship with [L] and [E] which appears to be typical of sibling relationships. They also have a good relationship with Ms E.
The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent
Although the mother was concerned that she is denigrated in the father’s household I am not satisfied there is sufficient evidence to find either the father or his partner would deliberately denigrate the mother to the children.
Despite the parent’s differences they have continued to promote a relationship between the two households and there is no evidence to suggest this will not continue.
The likely effect of any changes to the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other child or other person with whom he or she has been living
There will be significant change for the children if the proposals of either party are adopted. If the children live primarily with their mother they will remain at the same school with the same friends from that area but spend less time with the father, his partner and her children. By remaining at the same school there is a level of stability and consistency which may benefit them given there would be a significant change in spending less time with their father.
If the children live with the father they would spend less time with their mother and have to change schools. Whilst the transition to a new school may be lessened by attending the same school as their step-siblings there is an element of the unknown as to how they will adjust to the new school at the same time they are experiencing a lessening of time with their mother.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
This case come about because of the practical difficulty with the parents living a significant distance from each other. The parties do not live so far apart that the children can not maintain a relationship with both parents but an equal shared care arrangement is not sustainable. Both parents recognise this and submit that the only alternative, if they continue to live so far apart, is for the children to live primarily with one parent and spend time on alternate weekends with the other parent.
The capacity of each of the child’s parents and 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
Although this case proceeded on the basis of minimal criticism of the parties the father certainly holds the view that he is more able to provide for the needs of the children. In support of that position he argued that he was more focused on [X]’s medical and schooling needs. The mother on the other hand says that the father has not always been there for the children’s special events such as [omitted] and for parent teacher nights.
There was nothing in the evidence to lead me to find a deficit on the part of either party or Ms E in this regard. They are all able to provide for the emotional and day to day needs of the children.
The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents and the extent to which each of the parents has fulfilled or failed to fulfil, his or her responsibilities as a parent: s.60CC(4)
The father’s move away from the Central Coast could be said to be self focused rather than child focused as he continued the shared care arrangement even though the children have had to endure the very early rises in order to get to school. On the other hand he has entered into a new relationship that appears to be lasting the test of time. Should this relationship continue there would be benefits to the children by way of stability in the father’s household.
The father argued that he was the more responsible parent in relation to the children’s medical needs but for the reasons I have already addressed I am not satisfied the different approach adopted by the father is to be preferred over that of the mother.
Any family violence involving the child or a member of the child’s family and any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested by a person
This is not a relevant consideration in this case.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The father’s counsel argued that there was a greater prospect of the mother moving to the Newcastle area than the father moving back to the Central Coast. I was invited to consider this prospect when making orders for the current circumstances of the parties. It was submitted that if I ordered the children to live with the father now a shared care arrangement would more than likely be reinstated if the mother moved to Newcastle. Accordingly I was asked to make orders to allow for this possibility and to limit the prospect of further litigation.
Although the majority of the mother’s extended family live in the Newcastle area I am satisfied that she is settled on the Central Coast and is employed there. Whilst she works for the same company as the father and there is the possibility of transfer there is no evidence as to the ease with which that could be achieved. Indeed the evidence would suggest that the husband had difficulties in transferring in the past but I do not place any weight on that as the circumstances may well be different now.
On balance I am not satisfied that either party will move from their current residences. They are settled there and have ‘moved on’ with their lives after the separation.
Although both parties asked for orders to be made for the resumption of a shared care arrangement in the event that they lived in close proximity to each other I am pleased they saw the need for a time limit on such an order. To leave such an order open ended may be unsettling for the children in the future if a parent moved in a few years time. Although it was suggested that any move should occur by the end of this year I am persuaded that it may be preferable to give the parties twelve months to consider where they should live. This should not be too disruptive for the children.
Conclusion
This is a finely balanced case. The children have had the benefit of shared care for a number of years and have experienced love and security in both homes. There is evidence however that [X] is experiencing the stress of that arrangement not just because of the issue surrounding the distance between the two households but also the different approaches to parenting adopted by the parties. Ms M has advised the parents of the benefit of a consistent approach. Despite this concern I am satisfied that if it were not for the issue of distance it would be in the children’s best interests for shared care to continue. The family consultant concluded the children have benefited from the shared parenting since infancy. The geographical distance between the two homes however means it is not reasonably practicable for it to continue.
When I weigh up the various factors that have been considered above I am persuaded the children should live primarily with their mother so as to maintain stability in their schooling and with their peer group at the school. This may go some way towards providing them with some comfort during the period of adjustment they will need to go through when they spend less time with their father, his partner and step-siblings.
This decision should not be seen as a punishment for the father in deciding to move away from the Central Coast. Both parents have much to offer their children but it is not reasonably practicable for the current arrangements to continue while they live so far apart. Given the level of anxiety [X] in particular has experienced, despite her expressed wishes, I am satisfied both children’s best interests would be served by the stability the mother can provide for the children on the Central Coast.
The mother had sought an order providing for either parent to take the children on a one week holiday outside of the school holiday period each year. This order was in the orders made in September 2006 and has enabled the mother to take the children on a regular family holiday. Now that the children are older and their schooling more significant I am not prepared to include that provision in the orders. It will be a matter the parties will need to discuss taking into account the needs of the children at the time.
I have also declined to make specific orders for birthdays and Easter when it falls during school holidays. These orders were not agitated at the hearing and are better left to the parents to reach agreement about in the future. The children will have holidays with each parent for one half of the holidays at the end of first term and for the whole of either the second or third holidays. For the end of year holidays I have also made orders for the parties to share the holiday periods but in the event the father remains living in the Newcastle area the children will return to the mother at 9.00 am the day before the children are to return to school for the new year so that they can settle down again before the school year recommences. Should the father live in the Central Coast area then that issue is not as significant and therefore the orders for that scenario will provide for the parent who has them for the second half of the school holiday to return them to school.
For these reasons I have made the orders set out at the beginning of this judgment.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Lapthorn FM
Date: 28 May 2010
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