HAMRICK & HAMRICK
[2010] FMCAfam 815
•5 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HAMRICK & HAMRICK | [2010] FMCAfam 815 |
| FAMILY LAW – Parenting – relocation – best interests of children – significant and substantial time required – whether living in Western Australia will adversely affect the children’s present relationship with the father – presumption of equal shared parental responsibility not rebutted – significance of need for regular physical interaction between father and children – whether relationship can be fostered and developed without regular physical interaction – consideration of psychological effects upon mother if unable to relocation – consideration of psychological effects upon father if relocation allowed – determination that relocation is not in children’s best interests – arrangements for graduated increase in substantial and significant time with father leading to equal time between parents. PROPERTY – Assessment of matrimonial pool – consideration of financial and non-financial contributions – adjustment pursuant to s.75(2) – consideration of justice and equity of orders. |
| Family Law Act 1975, ss.60B, 60CA, 60CB, 60CC, 61DA, 65D, 65DAA, 75(2), 79 |
| MRR & GR (2010) 263 ALR 368 Goode v Goode (2006) FLC 93-286 U v U (2002) 211 CLR 238 |
| Applicant: | MS HAMRICK |
| Respondent: | MR HAMRICK |
| File Number: | TVC 418 of 2009 |
| Judgment of: | Coker FM |
| Hearing dates: | 28 & 29 July 2010 |
| Date of Last Submission: | 29 July 2010 |
| Delivered at: | Townsville |
| Delivered on: | 5 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Betts |
| Solicitors for the Applicant: | Brad Robins Legal Centre |
| Counsel for the Respondent: | Mr Fellows |
| Solicitors for the Respondent: | Wilson Ryan & Grose |
ORDERS
That all previous orders be dismissed.
That the parents have equal shared parental responsibility in relation to the major long term issues for the children, [X] born [in] 2005 and [Y] born [in] 2007.
That without limiting the parental responsibility of either parent pursuant to paragraph (2) of these orders, each parent keep the other parent informed of and properly consult with the other with respect to any major long-term issues affecting the children. For the purposes of these orders, “major long-term issues” include:
(a)the children’s education (both current and future);
(b)the children’s religious and cultural upbringing;
(c)the children’s health, including that except for emergencies, neither party shall take the children to any health professional without first informing the other;
(d)the health of each party, including any issues which may impact on the ability of the wife or the husband to care for the children;
(e)the names by which each of the children is known;
(f)changes to the children’s living arrangements that may make it more difficult for the children to live with a parent, including that all changes of address and telephone number shall be notified to the other parent immediately;
(g)generally, any matter regarding the children in respect of which a parent should be informed of or consulted with respect to having regard to the provisions of Part VII of the Family Law Act 1975.
That notwithstanding Order 2 herein:
(a)The Mother shall be responsible for the day-to-day care, welfare and development of the children whilst they are living with or spending time with her; and
(b)The Father shall be responsible for the day-to-day care, welfare and development of the children whilst they are living with or spending time with him.
That the children live with the Mother.
That the children spend time with the Father at all reasonable times, and that the time that the children spend with the Father gradually increase on the following basis:
(a)Until 1 January 2011:
(i) in week 1 from 9.00am Saturday to 9.00am Monday;
(ii) in week 2, from 9.00am Saturday to 4.00pm Sunday,
(iii) with that arrangement alternating in a fortnightly cycle.
(b)From 1 January 2011 from after school Friday until the commencement of school on Tuesday in alternate weeks.
(c)From 1 January 2012 from after school on Thursday until the commencement of school on Wednesday in alternate weeks.
(d)From 1 July 2012 the children live with the parties on a week about basis with changeovers to occur from after school each Friday.
That neither parent relocate the residence of the children out of the Townsville area without an order of this Court or the prior written consent of the other parent.
In relation to school holidays the following:
(a)The children to spend block holiday time with the Father for a total of 4 weeks during the year, commencing 2011, to be divided between the school holiday periods, and to include in each alternate year that they spend Christmas day with the Father.
(b)The children to spend all other school holiday periods with the Mother.
(c)The children shall spend 12.00 noon to 6.00pm on Christmas day with the parent with whom they are not spending holiday time with.
That the Father’s time with the children pursuant to order 8(a) should include not more than a two week period with the children during the Christmas school holiday period, concluding in alternate years on or before 31 December in that year, and for the last two weeks of the school holiday period in the alternate year.
The holiday arrangements in paragraph 8 shall take precedence over the alternate weekly arrangements in paragraph 6. The parent with whom the children spend time in the last week of a school holiday period shall not spend time with the children in the first week of the following school term.
That the Father and the Mother as the case may be, be entitled to communicate with the children during any time that the children are living with the other parent (including during holiday periods) at times as may be agreed and failing agreement at 6.00pm on each day excluding changeover day.
That notwithstanding orders 6 and 8 and provided that the parents and the children are in the same locality, both of the children spend time with the parent with whom they are not otherwise living, on the following days:
(a)The children shall spend Mother’s day with the Mother from 9.00am until 5.00pm.
(b)The children shall spend Father’s Day with the Father from 9.00am until 5.00pm.
(c)The children shall spend 3 hours if a school day and 6 hours if not a school day, with the parent with whom they are not otherwise spending time, on each of the children’s birthdays and on that parent’s birthday.
(d)From 5.00pm Christmas Eve until 1:00pm on Christmas Day.
Each party shall keep the other party informed of his/her address and landline telephone number at all times and shall advise the other party of any change to their address or landline telephone number including new contact details, within 24 hours of such change.
That each party be at liberty to travel away from Townsville during the block holiday periods they spend with the children.
THAT AS AND BY WAY OF FINAL PROPERTY SETTLEMENT:
So as to effect a division of 70 percent in favour of the Wife and
30 percent in favour of the Husband including:
(a)that the wife retain all superannuation entitlements in her name;
(b)that the Husband retain all superannuation entitlements held in his name;
(c)That within 60 days of the date of these Orders, the Wife transfer to the Husband all her right, title and interest in and to the former matrimonial home situate at Property M, Townsville and that the Husband pay to the Wife the sum of $69,000 and indemnify the Wife in relation to any liability then attached to the property.
That in the event of the property not being transferred pursuant to Order 15(c) herein, then that the property be sold and following the payment of all liabilities attaching thereto that the Wife receive
70 percent of the proceeds of sale and the Husband receive 30 percent of the proceeds of sale.
That save as set out above, each party otherwise retain all property in their possession, including chattels, motor vehicles and monies held in bank accounts in their name or on their behalf and any other property in their possession or control.
That save as set out above, each party shall be solely liable for any debt standing to that party’s name as at the date of this order and shall indemnify the other party in relation to any liability attaching to such property.
IT IS NOTED that publication of this judgment under the pseudonym Hamrick & Hamrick is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Townsville |
TVC 418 of 2009
| MS HAMRICK |
Applicant
And
| MR HAMRICK |
Respondent
REASONS FOR JUDGMENT
There are two young children the subject of parenting proceedings before this court, [X], born [in] 2005, and therefore just recently turned five years of age, and [Y], born [in] 2007, and therefore approaching three years of age. They are the children of Ms Hamrick, whom I shall for convenience refer to as “the mother,” and Mr Hamrick, whom I shall refer to as “the father.”
They are fortunate children. They have two loving, caring parents who, quite clearly, are motivated to do what they both consider to be in the best interests of their children and to be fully involved in their upbringing. Unfortunately, these proceedings arise because the mother wishes to commence living in [G] in Western Australia, and the father wishes to continue to live in Townsville and, of course, to have the children living in the same locality as him.
The parents formed a relationship in about 2000. They married in 2002 and, in the latter part of 2003, left Western Australia, where they had met and had established their relationship, to travel to Townsville. The move was particularly designed to enable the father to gain qualifications in respect of [omitted]. The parties continued to reside in Townsville until the father obtained his qualifications and he continued to work with the organisation that had originally been involved in providing employment for the father, [H] of Townsville, though the company itself is a national, if not international organisation.
The parties separated in September of 2008. The mother then filed her application seeking orders in relation to arrangements with regard to the parenting of children in May of 2009. The mother then amended her initiating application in May of 2010 and in fact detailed there the orders that she sought with regard to the parenting of these two young children. The orders also provided proposals in relation to the issue of property settlement. The final orders sought by the mother were in these terms:
Parenting Orders
1.That the children of the marriage, [X] born [in] 2005 and [Y] born [in] 2007 live with the mother.
2.That the parents have equal shared parental responsibility in relation to the major long-term issues of the children;
3.That the mother be at liberty to relocate with the children to [G], Western Australia.
4.The children are to live with, and spend time with, and communicate with, the father as agreed between the parties and failing agreement as follows:
IF THE MOTHER IS PERMITTED TO RELOCATE:
4.1 Until both children are of an age where they can travel unaccompanied by air in accordance with prevailing airline polices:
EITHER
4.1.1for one (1) x two (2) week period per annum in the Townsville are, with the mother delivering the children to the father in Townsville and the mother collecting the children from the father at the conclusion ; with
4.1.2the mother to be responsible for the cost of her travel expenses, and the parties to share equally the cost of the childrens’ travel expenses; and
4.1.3the mother and the father to agree the dates for the travel in writing three (3) months prior to such travel taking place; and
4.1.4the mother to spend time with the children during the time at 5.1.1 above as agreed between the parties and failing agreement every fourth (4th) day from 3.00pm to 12 noon the next day;
OR
4.1.5in the [G] area from two (2) x two (2) week periods per annum; with
4.1.6the mother to be responsible for the cost of the father’s travel expenses from Townsville to Perth and return;
4.1.7the father to be responsible for all other travel expenses including accommodation expenses;
4.1.8the mother and the father to agree the dates for the travel in writing three (3) months prior to such travel taking place and the mother to be responsible for booking the father’s return flights between Townsville and Perth;
4.1.9the mother to spend time with the children during the time at 4.15 above as agreed between the parties and failing agreement every fourth (4) day from 3.00pm to 12 noon the next day;
4.2When both children are of an age when they can travel unaccompanied by air in accordance with airline regulations:
4.2.1for one half of the children’s Christmas school holidays, the first half in odd numbered years and the second half in even numbered years;
4.2.2for all the Easter school holidays every year, all of the June/July school holidays in odd numbered years and all of the September/October school holidays in even numbered years;
4.2.3the mother and father to share equally the costs of all flights between Townsville and Perth return and the father to be responsible for the cost of all other travel and accommodation expenses associated in transporting the children for time with their father;
4.2.4the mother and the father to agree the dates for the travel in writing three (3) months prior to such travel taking place;
5.All such further and other times that the father is in the area in which the mother is living, the father is to spend time with the children as agreed between the parties;
6.The mother shall facilitate communication between the children and the father by way of regular telephone calls and webcam (including on special days such as birthdays, Father’s Day and Christmas Day);
IF THE MOTHER AND CHILDREN REMAIN LIVING IN TOWNSVILLE:
7.That the children spend time with the father from 9.00am Saturday until 9.00am Monday and on Thursday from 2.30pm to 5.30pm in one week and then in the following week from after school Monday until before school Tuesday, such time to continue and be revisited once both children have commenced full time school;
8.The school holidays be shared equally between the parties, provided that if the father cannot take leave from work, the children spend the remaining school holiday periods with the mother, with the intention of the mother travelling to Western Australia during these school holiday periods, such holiday periods to include Christmas Day in each alternate year and the father’s time at paragraph 7 to be suspended during the school holiday periods the children are spending with the mother;
9.The children spend time with each parent on “special days”, such days to include Mother’s Day, Father’s Day, the children’s birthdays, Easter Sunday and Christmas Day (provided the mother and children are in Townsville);
10.There be reasonable telephone communication at all times between the children and the parent with whom the children are not spending time with;
11.Each party shall keep the other party informed of his or her telephone number and address at all times and shall advise the other of any change to residence or telephone contact details within twenty-four (24) hours of such change;
Property Settlement Orders
12.That the net non-superannuation matrimonial property pool be divided on a 80:20 basis in the wife’s favour.
13.That each party retain their own superannuation interests.
14.That the husband pay the wife’s costs of and incidental to this application.
15.Such further or other order as this Honour Court deems fit.
The father responded to the mother’s application, filing his response on 2 July 2009. He then further particularised his position in relation to the matter in his amended response filed on 21 May 2010. The father’s position was to continue the proposals in relation the parenting of the children as detailed in the amended response to the initiating application filed on 21 May 2010, but in the case outline filed on 9 June 2010, the father amended the proposals in relation to property settlement such that rather than a property distribution which was of an equal nature as between the mother and the father, the father sought orders and pressed for finalisation of issues with regard to matrimonial property distribution on a basis of 65 per cent/35 per cent in favour of the mother.
The final orders that were sought by the father, therefore, in relation to both parenting and in respect of property were in these terms:
1. That the application filed 13 May 2009 be dismissed.
2.That the parents have equal shared parental responsibility in relation to the major long term issues for the children:
[X] born [in] 2005;
[Y] born [in] 2007.
3.That without limiting the parental responsibility of either parent pursuant to paragraph 2 of these orders, each parent keep the other parent informed of and properly consult with the other with respect to any major long-term issues affecting the children. For the purposes of these orders, “major long-term issues” include:
3.1 the children’s education (both current and future);
3.2 the children’s religious and cultural upbringing;
3.3 the children’s health, including that except for emergencies, neither party shall take the children to any health professional without first informing the other;
3.4 the health of each party, including any issues which may impact on the ability of the wife or the husband to care for the children;
3.5 the names by which each of the children is known;
3.6 changes to the children’s living arrangements that may make it more difficult for the children to live with a parent, including that all changes of address and telephone number shall be notified to the other parent immediately;
3.7 generally, any matter regarding the children in respect of which a parent should be informed of or consulted with respect to having regard to the provisions of Part VII of the Family Law Act 1975.
4.That the parties gradually increase the time the children spend with the husband on the following basis:
4.1 That from 1 January 2011 the children live with the wife and spend time with the husband from after school Friday until the commencement of school on Tuesday in alternate weeks.
4.2 That from 1 January 2012 the children lie with the wife and spend time with the husband from after school on Thursday until the commencement of school on Wednesday in alternate weeks.
4.3 That from 1 July 2012 the children live with the parties on a week about basis with changeover to occur from after school each Friday.
5.That neither parent relocate the residence of the children out of the Townsville area without an order of this Court or the prior written consent of the other parent.
6.The children to spend block holiday time with the husband for a total of 4 weeks during the year, to be divided between the school holiday periods, and to include in each alternate year that they spend Christmas day with the husband. The children to spend all other school holiday periods with the wife.
7.The holiday arrangements in paragraph 6 shall take precedence over the alternate weekly arrangements in paragraph 4. The parent with whom the children spend time in the last week of a school holiday period shall not spend time with the children in the first week of the following school term.
8.That the husband and the wife as the case may be, be entitled to communicate with the children during the weeks that the children are living with the other parent (including during holiday periods) at times as may be agreed and failing agreement at 6.00pm on each day excluding changeover day.
9.That notwithstanding paragraphs 4 and 6 and provided that the parents and the children are in the same locality, both of the children spend time with the parent with whom they are not otherwise living, on the following days:
9.1 The children shall spend Mother’s day with the mother from 9.00am until 5.00pm.
9.2 The children shall spend Father’s Day with the father from 9.00am until 5.00pm.
9.3 The children shall spend 3 hours if a school day and 6 hours if not a school day, with the parent with whom they are not otherwise spending time, on each of the children’s birthdays and on that parent’s birthday.
9.4 Notwithstanding whichever parent the children were with, in alternative years the children shall spend from Christmas Eve until 1:00pm on Christmas Day with one parent and then return to that parent at 10:00am on Boxing Day.
10.Each party shall keep the other party informed of his/her address and landline telephone number at all times and shall advise the other party of any change to their address or landline telephone number including new contact details, within 24 hours of such change.
11.That each party be at liberty to travel away from Townsville during the block holiday periods they spend with the children.
Property settlement
12.That the matrimonial assets of the parties including superannuation be valued and divided 65% to the husband and 35% to the wife including that:
12.1 The division of assets shall take into account all costs associated with the sale of such assets including preparing them for sale.
12.2
The wife transfer to the husband at the husband’s cost, her interest in the former matrimonial home situated at
Property M, Townsville.
12.3 Separately from 12.1 the wife reimburse to the husband 50% of all expenditure by him of whatever nature, incurred with respect to the parties’ real properties following separation.
13.For such further or other order as to this Court seems fit.
14.That the wife pay the husband’s costs of and incidental to these proceedings.
I have had the opportunity of considering the evidence that has been relied upon by both parties in relation to this matter, and as is so often the case, the principal evidence was that which was provided by the mother and the father. I also, of course, had the assistance of two family reports prepared by Ms B, and I will refer to those reports a little later in these reasons.
I also, however, had the opportunity to consider the evidence of a number of other deponents to affidavits relied upon in these proceedings. From the mother’s perspective, there was evidence called from her mother, Ms S. Ms S generally impressed me as a witness of determination and, most particularly, as supportive for the mother.
Her affidavit filed 7 May 2010 was the subject of some conjecture. In particular, there were a number of statements by Ms S which were challenged by counsel for the father. The maternal grandmother was questioned about the relationship that she had with the mother. She spoke of the significant interactions that they had almost daily by way of telephone call, and regular visits were also effected. There was support also provided by other family members, and Ms S acknowledged that that was the case. Ms S also confirmed that they were indeed a close family and that whether they lived in close proximity or not, the continuation of support which had previously been provided by family and, in particular, Ms S to the mother, would continue.
Ms S was questioned about the observations which she had made of the mother. In particular, Ms S commented, in paragraph 22, about the mother no longer being the –
“happy-go-lucky daughter that I once had.”
She said that the mother appeared to be upset and even to break down in tears regularly in their telephone calls. It would appear clear that
Ms S would support her daughter in every way possible. She certainly emphasised that that would be the case but, also particularly made note of the fact, that if there was to be a continuation of the current living arrangements, in other words, that the mother and the children were to continue to live in Townsville, then there would be difficulties with regard to her continued interaction because she had work, other family members, and simply did not have the financial wherewithal to continue her regular visits and interaction with the mother.
Ms S was asked whether she knew of the proposals that the mother had put forward, in relation to the arrangements for the children to maintain a relationship with their father. She said that she did not, but anticipated that they would include continued telephone calls, visits and any other arrangements that might properly be able to be put in place. She was asked whether she thought one occasion per year for two weeks would be, as it was put to her, “fair”, and she indicated that she did not believe that to be the case.
She was not, however, questioned at any great length in relation to what alternative proposals there were but emphasised on a number of occasions that she believed that her daughter would do, all that she could to ensure that there was a continued and fostered relationship between the children and their father, notwithstanding that they would be living on opposite sides of the country and that there would be only limited opportunities for physical interaction.
Ms S was recalled following evidence that was given by the father in relation to these proceedings. That recall related to evidence that was given by the father in relation to an issue which the father said arose in recent times and, in fact, following the aborted trial which was listed for 10 and 11 June 2010.
The father gave evidence in relation to a difficulty that he experienced, he said, at the school on Friday, 11 June 2010, as a result of an unfortunate exchange or incident involving the grandmother and the child [X].
The father gave this evidence in response to certain questions that were directed to him relating to whether or not he thought that he would be able, if the mother were given leave to relocate with the children, to locate himself also in Western Australia, or, more particularly, in [G].
The father had said that that would not be the case and, in fact, indicated that the difficulties that he thought would arise would be because, he believed that his relationship with the children would not in fact be fostered if he were nearby, because of the significant involvement of the mother’s family that would occur with them all also being in the [G] area. When asked to clarify that particular position taken in relation to the matter, he related what he said were the circumstances of 11 June 2010.
He said that on that day he had attended at the school because he had wanted to see the children, having not had the opportunity to see them on the preceding day, the Thursday after school, because of the prior arrangements made with regard to the hearing of the trial, which was aborted.
The father says the grandmother attended at the school with the child, [X]. The father says that he was waiting to speak with the child but that the situation was that the grandmother determinedly prevented him from having the opportunity to interact with [X].
The father’s position was to say that the grandmother would not facilitate him seeing the child or, at least, spending time with the child, and that it appeared that the grandmother specifically waited at the school until such time as class commenced and adults were required to leave, so as to prevent him from spending time with the child.
The grandmother’s response in relation to that was to say that she had not taken any steps to prevent the father spending time with the child. She said that she saw the father at the school on the veranda. She indicated that she had pointed the father out to [X].
She was, however, asked whether she had encouraged [X] to go to her father and I thought the answer that she gave was rather telling. She did not indicate that she had encouraged her but, rather, had said that she, “did not discourage her”. In other words, she indicated that she had really remained mute on the particular point, and had simply allowed the child to make the decision as to whether she would go to her father or stay beside her.
It was, of course, a difficult situation for all and the parties are, of course, to be commended that there was not an unpleasant exchange between them, though, one would think, that it was an uncomfortable situation for all concerned, not the least of whom, would have been [X]. It was clear, and it was acknowledged, that the father held back, that he did not try and prevent the grandmother from being with [X] but that he had stayed in close proximity.
It was only one small example of some of the difficulties that exist, particularly between the father and the mother’s side of the family, but it, perhaps, was an indicator of the difficulties that the father said he expected would occur if, in fact, he were to attempt to live in the same locality as the mother, when that locality was also the residential area of many members of the mother’s family.
I was generally impressed the maternal grandmother, Ms S. I have no doubt that she would be a good grandmother to the children. More particularly, I have no doubt that she would be a supportive and loving mother to the mother. What, however, did give rise to some concern, was whether she truly appreciated the distinction that should properly be drawn between the involvement and role of grandparents and other family members as well as those significant to a child’s life, and the far more significant and important role and involvement of the parents of the children.
From the father’s perspective, a considerable number of additional witnesses swore affidavits in support of the father. They were not required to be called in relation to cross-examination and generally the evidence simply was supportive of the father and, in particular, supportive of the close relationship that he has with the children.
In that regard, I note that the father’s aunt, Ms L, spoke of her observations of the children appearing happy spending time with the father and that they clung to him and obviously had a great deal of affection for him and he for them. She was not challenged in relation to those statements or her observations with regard to the good time that the children had with their father and with other extended members of the father’s family.
More particularly, she was not challenged in relation to some of the comments she made with regard to the lack of support that was forthcoming from the mother with regard to additional or extra opportunities that the father sought to spend time with the children. In particular, she spoke of visits in October 2008 to Townsville, and the fact that the father sought for there to be an opportunity to spend extra time with the father, so that they could celebrate Ms L’s birthday. The mother would not agree to that occurring, and it does not appear that any real explanation was given in that regard.
Similar comments of that nature were given by other friends and family, all detailing the closeness of the relationship between the father and the children, the obvious enjoyment that they have in their interaction and relationship with each other, and the clear emotional bonds and ties that are in existence. I accept the evidence of those various witnesses, including: Mr K, Ms M, Ms T and Ms E.
Also giving evidence on behalf of the father was his superior, Mr T. Mr T is the managing director of [H] North Queensland, the employer of the father. Mr T details the requirements necessary to become a [occupation omitted] in Queensland.
It is noteworthy that, in paragraph 6, he sets out those requirements and, whilst it was not the subject of cross‑examination and, in fact,
Mr T was, subsequent to notice being given, released so that he was not cross‑examined in relation to his evidence, it appears to indicate that there is a process to follow in Queensland for the purposes of becoming registered, and the father made reference to the fact that there was a similar necessity for registration in Western Australia, and that he was not registered in that State. It is a relevant consideration, in relation to the proposals or, at least, suggestions that the father might be able to obtain employment in Western Australia, or even more specifically in [G].
Mr T also gave unchallenged evidence about the alterations that were made following separation, to the hours that the father worked. It was noted, in paragraph 20, that the father told Mr T that he had moved to a new residence following separation in September 2008, and that [H]
“immediately provided Mr Hamrick with flexible time during work hours during this period.”
It is clear that the employers of the father hold him in high regard and, to that end, have provided him with flexibility in relation to the hours of employment, so as to enable him to continue and to foster his relationship with the children.
I accept the evidence of those various witnesses in relation to these proceedings and, of course, note that their evidence in relation to such matters was unchallenged.
I turn now to the evidence of the parties and the evidence of Ms B. I must say that I was enormously impressed by both the mother and the father in this matter. It is noteworthy that Ms B, the report writer, also commented about the parents and their capacity to provide for and to meet all of the basic needs and requirements in relation to the children. Certainly, it was noted, and I acknowledge, that the mother has, perhaps, had the more primary role in relation to the care of the children, but it is the father who seeks to be more fully involved in the children’s lives, and Ms B observed that, in her professional assessment, that could only be of benefit to the children. Ms B also commented upon issues in relation to the ages of the children and their need, therefore, for regular interaction and involvement between each parent and the children.
I turn, firstly, however, to the evidence of the mother in relation to this matter. Generally, I must say that the mother impressed me as a woman who, quite clearly, was determined to be a significant and important person in her children’s lives, and had set out, from the very time of the children’s birth, to be the primary carer which she clearly was.
At the same time, whilst impressing me in many respects in that regard, I must say that I was troubled by the mother’s position taken in relation to this matter. There may, of course, have been an element of disappointment on the mother’s part in her firmly held belief that she and the father had agreed to return to Western Australia and, in fact, even more specifically, perhaps to [G] at some time after the father’s qualifications had been obtained.
The father denied that that was the case, though I note that the maternal grandmother gave evidence that she was certainly aware that that was an indication, given in relation to the matter. Ms S was not particularly challenged in relation to what was said to have been the subject of discussions between she and the father, but of course, Ms S, quite properly, was unable to comment on what might or might not have been the terms of discussions between the mother and the father, other than to say that the mother had certainly expressed to her an indication of a desire to return to Western Australia, and that that had been an agreed course to follow, in relation to the marriage.
The mother’s proposals in relation to the parenting of these children were troubling for me. It was troubling for a number of reasons, not the least of which was that the mother’s amended initiating application, filed on 7 May 2010, only really foreshadowed two possibilities in relation to the parenting of the children. The first of those related to the mother being able to relocate to [G], and the second related to the mother and the children remaining living in Townsville. Of course, it did not, in any way, address another possibility which was, in fact, pushed on the mother’s part as being a real possibility, that being that the mother should relocate to [G], and that the father should follow, either to Western Australia or, even more specifically, to the town of [G].
It seems that there was an acknowledgment, therefore, on the part of the mother, that the father would be true to his word and to his statements with regard to a lack of any intent to travel to [G]. More particular, however, I was troubled by what the mother proposed in relation to the father’s developing relationship with the children. Her proposals in relation to the children spending time with the father, if she and the children were able to relocate to [G], were broken down into two options. The first of those options related to a time until the younger of the two children, [Y], was to turn five. That would not be until September 2012 and, therefore, was certainly to be operative for at least two years.
The mother’s proposals in that regard were for the father to have one two-week period per annum in Townsville with the children, with the mother delivering the children to the father and the mother collecting the children from the father at the conclusion of that time. Alternatively, the mother proposed that there should be two by two‑week periods per annum in [G], with the mother to be responsible for the cost of the father’s travel. There were other possibilities explored in relation to the matter, and the mother quite readily conceded that, if the father were in the same locality or that other opportunities were available, such as time to be spent in a major capital city, such that travel would be less daunting than would be the case between, say, Townsville and [G], that there could be other opportunities considered.
What troubled me, is that the mother had not considered such arrangements to any real extent, in relation to the children and to their further development of their already existing relationship, with their father.
The mother, whilst acknowledging that other opportunities or possibilities were available, dependent upon notice being given and time being available, did not in my assessment in any event give the impression that she was really prepared to provide extra time. If anything, the events in recent times, for example, when some additional time was sought by the father with the children when the first trial was aborted, so as to make up for time missed, did not augur well for the future. And, with respect, a concern had to arise that if that was the difficulty between one suburb in Townsville and another, what possible difficulties could arise in relation to arrangements proposed, for example, on short notice over thousands and thousands of kilometres.
The mother’s second option related to arrangements when the children were of school age and the proposals there were for one half of the children’s Christmas school holidays in alternating first and second half of the year, and for the entirety of the Easter school holidays each year and for all of the June/July school holidays in odd-numbered years, and the entirety of the September/October school holidays, in even-numbered years.
The mother proposed that the parties should share equally in the costs of such travel and further, the mother proposed that the mother and the father had to agree to the dates for travel in writing three months prior to such travel taking place. The fact is, that three-month requirement would mean that there needed to be agreement in relation to the various holiday periods preceding the holiday period before it. It seemed very much to be an element of possible discord between the parents and of course it also gave rise to the need for planning that perhaps was simply unable to be facilitated, the mother conceded that a lesser notice period may be acceptable but could not be specific.
I was troubled in many respects therefore by the proposals put by the mother and unfortunately was not necessarily comforted by the concessions that she gave during cross-examination with regard to other opportunities and possibilities being considered.
The mother’s alternative proposal, in relation to arrangements with regard to the father’s time to be spent with the children, if she were in Townsville, involved the children spending time with the father from
9 am Saturday until 9 am Monday, and on Thursday from 2.30 pm to 5.30 pm in one week and in the following week from after school Monday until before school Tuesday. The mother’s proposals were, therefore, for a total of three nights per fortnight, as best I understand the proposals, as well as an additional opportunity for an afternoon from after school until about 5.30 pm.
The mother then proposed that the school holidays should be shared between the parties, provided that if the father could not take leave from work, then the children spend the remaining school holiday periods with the mother with the intention of the mother travelling to Western Australia during such school holiday periods. In fact, the father proposed exactly that in relation to arrangements with regard to school holidays.
The mother proposed also that there should be reasonable telephone communication either with her living in [G] or on occasions in Townsville when the children were not spending time with the father. The real concern in that regard is that, particularly with regard to telephone communication from [G] to Townsville, the mother seemed to be very much of the view that that would be more than adequate compensation, and certainly sufficient to continue to foster the relationship between young children and their father.
I gained the distinct impression that the mother was prepared to “talk the talk” in that regard and certainly made appropriate concessions in relation to the opportunities that might be available with regard to the father spending time with the children or communicating with the children. But I unfortunately also gained the distinct impression that much of what was said was simply words and that there was little real prospect of them being able to be put into effect.
In that respect, for example, there is very real concern that must arise with regard to issues in relation to the financial circumstances of the parties. Whether the father was earning significant income, and it would appear from the material that he has an income in the vicinity of $70,000 to $75,000 per annum, would not necessarily mean that there could be as much opportunity for time to be spent as possible. Similarly, the mother’s intention, and it is a perfectly valid position to take, is not to seek work but to continue at least for the next few years, and certainly until [Y] were to commence school, to be available full time for the care and supervision of the children, which would preclude her obtaining work and therefore providing additional income that might be used to facilitate further time, to be spent by the father with the children.
The mother’s proposals were therefore unfortunately hopes rather than expectations, at least in my assessment. I am troubled that the tyranny of distance which would obviously arise would also be exacerbated by the very real financial constraints that would arise as a result of the place that the father was to work and the financial circumstances which the mother quite understandably, sought to impose upon herself and the children, at least into the foreseeable future, because of her very clear wish to be involved day-to-day in the relationship and caring for the children.
Most troubling of all, however, in relation to this matter, and it was the subject of very considerable cross-examination and query, related to the real value that the mother placed upon the relationship that the father was to have with the children. It was commented upon by counsel for the mother in submissions that the mother was put in an almost impossible position when being cross-examined about what might be her response in respect to the question of which relationship was more important, the mother’s family relationship or the father’s relationship, with the children.
It was certainly a question that could properly, and was properly, only answerable in one way, that being that the mother recognised that the father’s was the more important or significant relationship, in relation to these two children. However, again, whilst the words were spoken, I unfortunately gained little comfort from what was said and was far more inclined to the view that the mother’s real position would be to say that the relationship with her family, was more important.
Much was made of many of the statements that were contained within the trial affidavit filed by the mother on 7 May 2010. In particular, reference was made to the statement contained within paragraph 208 of the mother’s affidavit. It is in these terms:
As the months have gone by since Mr Hamrick and I separated and I have not, as originally planned, been able to return to Western Australia to be with my family, I find that I am missing my family more. I am feeling more and more out of touch with my family, especially my sisters, [names omitted], who I am unable to visit regularly. Although I am able to speak to my family over the telephone, this is not the same. I am unable to maintain my desired relationship with my mother, two sisters, eight nieces and nephews, my father, my stepfather [name omitted], my stepbrother Mr G and my stepsister, (who has two adult children, aged 20 and 18), a total of 17 close family relatives, not including grandparents and aunts and uncles – by way of telephone. The children and I are not part of their daily lives, routines and activities.
The mother very much contended that there was significant importance in hers and the children’s opportunity to be entwined and enmeshed in the lives of her family in [G]. I however raised with her the concern that obviously arose from such a statement, relating to the obvious effect upon the father.
If the mother, an adult, felt that her relationship was affected, that she, as she put it, “felt more and more out of touch with her family” and that telephone communication was not the same, such that she and the children did not feel a part of the daily lives, routines and activities of her family, then what would be the corresponding effect upon the father?
The mother again acknowledged that there would be difficulties there, but unfortunately, in my assessment, very quickly then sought to minimise that, as a real consideration. The suggestion contained within her trial affidavit that it was important that there be those relationships with other significant persons, and in particular, cousins of the children, because they would be able to support each other in the longer term, when perhaps the mother or the father or both, were not around, was trite in the extreme.
It clearly showed, as unfortunately I assess was the case in relation to this matter, that the mother placed the importance of the relationship with her family and in particular, the mother’s relationship with the maternal grandmother, as far more significant in relation to the children and to their lives, than the involvement of the father.
It was a matter that permeated throughout this case, and it was a matter that troubled me enormously.
I should also note that there were concerns continuously expressed in the material of the mother, and also in the family report, of issues with regard to the mother’s health, or more particularly, mental health. The mother was sad at not being able to live, at the present time, in close proximity with her mother and her family. It affected her capacity in relation to getting on with, and enjoying her life, though the indications that she gave to the report writer were that she was able to portion off those elements of sadness, on occasions when parenting the children so that they did not, at least it would seem directly, become affected by such issues.
What was pressed, understandably, on the part of the mother, was that whilst there may not necessarily have been at this time a concern held with regard to the mother’s mental health, that was not to say that there would not be a further concern that might arise, if the mother was finally aware that she was not able to return, unless circumstances changed, or consent was obtained from the father, to [G], such that she would find herself “stuck” in Townsville.
It was contended that if that was the case, there might be a real development of a depressive illness, rather than the current feelings of sadness that were expressed by the mother. I accept that that is the case, and that it is not the optimal position in relation to the mother’s capacity to parent, but just as clearly, the mother’s own evidence was that she was able to cope, and that whilst she felt somewhat isolated from her family, sad that she was not part and parcel of them, she was still able to deal appropriately with all of the issues, associated with the parenting of the children.
I am mindful, of course, of the possible effects upon the mother, and therefore upon the children, if her parenting is not as good as it possibly could be, as a result of her sadness. But I will comment a little more in relation to that particular element of the determination, when considering the process to be followed in relation to the final outcome.
As I say, I was generally impressed with the mother. I have no doubt that she has done an outstanding job in respect of the rearing and caring for these children, from birth to the present time. Certainly she has been the primary carer, and she is to be commended in relation to that. But just as clearly, the father’s involvement in the children’s lives is a critical consideration, and one which must be balanced against all of the other considerations that the mother seeks to emphasise and to rely upon.
I turn now to the evidence of the father in relation to this matter. Similar to what was said in respect of the mother, it is clear that he is a caring and loving parent, able to meet the day to day needs and obligations in relation to the children. I gained the distinct impression that he was a rather precise man and, whilst his manner in court, particularly with regard to cross-examination may have been seen to have been a little bit short, or combative, I gained the impression as his evidence was given, that it was more a reaction to an unfamiliar environment, and a stressful or difficult circumstance, than a real indication of the type of personality that the father had.
That impression was enhanced, for me, in relation to this matter when I note that in answer to almost every question delivered in cross-examination, the father referred to counsel for the mother as, “Mr Betts”. I wondered whether that was in some way, a disguised challenge to the questioning by counsel for the mother, but was comforted to note that in re-examination, when questions were directed to the father for clarification of issues that had arisen in cross-examination, exactly the same stance was taken by the father in relation to his answering of questions. He referred to his own counsel, in every question, as “Mr Fellows”, and he was just as precise, in the answers that he gave.
My impressions with regard to the father are that he is a very professional gentleman. He would no doubt be a most competent and precise [occupation omitted], and I gained the impression that his manner of speech was a reflection of that precise type of nature, as well as, of course, a means by which he could deal with the stressful circumstances of the court process.
The father was asked a number of questions about his own mood or state, and how he would feel about issues in relation to the mother moving. He was asked whether he would be angry and he said that he would not be. He said, when asked whether he was disturbed by the possibility of the mother’s move and whether he would be, as counsel described it, “devastated,” that he would be but he said additionally that he would be “torn apart.”
He said that he would not wish to try and further describe his feelings, if the move, as proposed by the mother, was to occur, but I gained the distinct impression that his emotions were raw, particularly at that time, and that he was genuine in his indication that he would be “devastated,” and to a significant degree, emotionally torn, as a result of any move.
I noted that, because it seems to me that it is a factor which must be considered in balance with issues in respect of how the mother might be affected, if she were not able to make the move. Similar considerations arise, and again, I will need to comment a little further in relation to them in due course.
I should note also that the father was genuine in his support of the mother. He was asked whether he valued the mother’s care that had been provided to the girls. He emphatically answered “yes” and emphasised that she had done a very positive job in relation to the caring of the children and that he did not wish or seek to make any criticism of that.
It was in fact one of the overriding impressions that I gained in relation to this matter and it led to my opening comments in these reasons. The parties both were caring, loving and supportive parents of both of these children. The tragedy was that as life had moved on for both of them, certainly subsequent to separation, the situation had arisen where a very significant distance was a possibility between where one party wished to live and another party wished to live, and of course there were then concerns and considerations as to with whom the children should live.
Overall, I was most impressed by the father. I thought that much of what had been set out in his material and which was the subject of evidence before the court was considered and certainly truthful evidence. The father was asked whether he had considered the possibility of a move to Western Australia. More often than not, the expectation would have been that a person would deny that that was the case if, as was the position taken by the father at the time of trial, that he did not wish to go.
He did not take that stance, however, but rather acknowledged that he had made inquiries about employment, that he had looked at other alternatives and possibilities in Western Australia, but that any interest that might have been shown in him was quickly diminished when it was noted that he was not registered in Western Australia as a [occupation omitted] and that therefore there would be further time and expectations placed upon him and employers, before he would be able to obtain work.
Significantly, I thought that there was a real element of genuine concern held by the father, in relation to what might be the circumstances if he were to travel to [G]. Not only were there genuine concerns held by him in relation to whether he would be able to obtain proper remunerative employment, but also there were the genuine concerns that he would be the subject of, what might be called a whispering campaign, by members of the mother’s family.
The father gave evidence that he would not, even if devastated by the mother being granted to go, travel to [G] himself. When asked why he still would not travel to [G], he quite specifically said that he thought that it would be better for the children that he not be there, because if there were 12 or more years of him being diminished in the eyes of the children it would not only hurt him, but in the longer term would hurt the children.
Unfortunately, from the mother’s perspective, I gained that distinct impression with regard to those possibilities if there was that opportunity given for the mother to move to [G]. In that respect, I note that there were certain criticisms of the father about who should or should not, for example, have been involved in handovers, and in particular whether members of the mother’s family should be involved. The father had said, and I accept, that he did not object to other persons being involved but thought that the mother and he should be the two people primarily involved in any handover. It seemed that the mother sought to draw a conclusion from that, that the father objected to the involvement of members of her family, rather than to simply acknowledge that he had sought to involve others in a less specific way than did the mother.
What was clear, however, is that whilst there were criticisms made of the father, it would seem that the unchallenged evidence of the father was that when many members of the mother’s family had travelled to Townsville to spend time and to interact with her and the girls, not one, including her step-brother, her sisters or her mother, had made any direct contact with the father. That was notwithstanding the fact that it would appear that there were some elements of friendship or even closer relationship when the father and the mother were together. It gave me the impression that the father’s concerns that he would be ostracised from the family unit were real possibilities, and that if the children were, as the mother proposed, significantly involved in her family and their activities in [G], then the father would be seen as an outsider and that there would be occurring, a diminution in the respect held by the girls for the father and in their relationship with the father.
Whilst it was clear that there were opportunities and possibilities of the father moving to [G] if the mother were to go, I am satisfied that the father’s stance, taken in relation to this matter, is taken for genuine reasons and for reasons which in analysis can properly be understood as being appropriate, in all the circumstances.
I turn now to the evidence of the family reporter. Two reports were obtained from Ms B. The first of those reports is dated 2 October 2009 and was admitted into these proceedings and marked as exhibit 2. Her second report was dated 26 July 2010, only a matter of days before the hearing of this matter, and again was admitted and marked as exhibit 3 to the proceedings.
In both reports, the final recommendations of the reporter were to the effect that parental responsibility should be shared between the parties and that the children should remain living in Townsville, while both parents remain living in Townsville. Perhaps that is a little unclear in that it did not specify or set out what might be the case if the mother were not to live in Townsville, but in any event, the mother’s own evidence in relation to this matter, and again she is to be applauded for the stance taken, was that if the children were to remain, she would remain.
The second report still made similar recommendations in relation to the children, but the terminology with regard to the children living in Townsville was slightly different. In the first report, it was recommended that the children remain living in Townsville “while both parents remain living in Townsville,” but on the second occasion it was recommended that the children simply remain living in Townsville. There was no suggestion that there was in fact an obligation or need for both parents to be living in Townsville. It is a distinction which needs to be noted in relation to this matter.
Quite clearly, Ms B was impressed with both of the parties. In paragraph 87 of the first report, she made a comment which I thought was telling. She says:
[X] and [Y] are blessed that they have two parents who not only wish to know them closely and invest their time and energy into them, but have the capacity to do so. At the children’s current age, maintaining the close and frequent physical contact with their father in the manner they are currently able, maximises their opportunity to develop their attachment relationship with him.
Ms B commented about the issue of a closer alignment and relationship for the children with their extended family. In paragraph 86 of the first report, she says:
Certainly, children gain many positive emotional and identity benefits from having multiple attachments to other adults within extended family groups. In this way, Ms Hamrick’s wish to include extended family in a more intensive way in the children’s lives is a very positive one. Importantly however, the emotional and identity benefits the children develop with these attachments with extended family do not compare to the direct benefits from developing a warm and invested relationship with a parent.
It is an important consideration and it is one that must be looked at, particularly in light of the actual objects of the Family Law Act as set out in section 60B of the Family Law Act. Section 60B subsections (1) and (2) is in these terms:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interest of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
It is noteworthy, particularly as section 60B, provides under the object, for arrangements to be put in place with regard to the children and their parents. They then go on to detail the need for protection of the children from physical or psychological harm and the need to ensure that children receive adequate and proper parenting, to help them achieve their full potential. And noteworthy, that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
Nowhere is there a reference under the objects of the Act, to ensuring that children have the benefit of others in their lives. Only when one comes to the principles underlining the objects is there reference to the child’s right to spend time on a regular basis with and communicate with on a regular basis with other people, significant to their care, welfare and development such as grandparents and other relatives.
It should be strongly noted however, that the precursor to those statement of principles, set out in subparagraphs (2)(a) through (e), relates to the principles underlying the objects and highlight:
except when it is or would be contrary to a child’s best interests.
The real consideration here is therefore, that whilst there is an obvious benefit to these children of a close and loving relationship with other adults and with extended family members, there is a corresponding effect upon the children’s opportunity for a relationship with their father. Not the least of which would arise from the fact that suddenly, thousands of kilometres would be between where the father lives and where the children live. It is a significant consideration again to be looked at, in relation to in this matter.
Ms B’s report of October 2009 was littered with concerns about the effect upon the relationship between the children and the father, if the move, as proposed by the mother, was to occur. Ms B commented in paragraph 88 as follows:
While Ms Hamrick has proposed the prioritisation (both financially and time wise) of the children and Mr Hamrick’s visits if they did relocate, these provisions would not support the development of that close connection with a parent in comparison to the current time with their father.
It is a very significant consideration because no matter how great a priority was given, issues would obviously arise which would affect the fostering and development of the relationship between the father and the children.
I have commented upon some of those already, referring particularly to issues in relation to the cost of such opportunities being taken and the time which might be available for such opportunities to be taken. There is a very real distinction to be drawn between the hopes or wishes the mother might have, in relation to the opportunity for the father to develop and foster his relationship with the children and what would actually be the reality of the situation if the mother and the children were to live in [G] and the father were to continue to live in Townsville, as he indicates.
In that respect, I was troubled by comments that the mother made in her material about the ability to foster and develop the relationship by telephone even though she, as an adult, was not able to foster her relationship and to continue to see it on the same level, as she previously had with her own parents. It was a troubling consideration in relation to the matter and again, it was commented upon by Ms B in both the first report and the second report. The second report, prepared some nine or 10 months after the first report, provided an excellent re-examination, and update of the circumstances that existed in relation to this family unit.
Ms B, when commenting about her more recent observations, also spoke of recent studies that had occurred in relation to the types of arrangements that were put into effect now as a result of changes to the legislation in 2006. She makes the following comments in paragraphs 36 and 37 of the second report:
Recently a significant longitudinal study (McIntosh et al, 2010) of parents who had been involved in a relocation dispute found that particular characteristics predicted the improvement of their relationship following the end of the dispute. These parents were those that can a) focus on the children and their changing needs (that is, parents are prepared to be flexible from moment to moment), b) recognise the parenting arrangements will never be perfect, c) are an active part of the children’s lives, d) accept that it is expensive to be actively involved in children’s lives, e) are honest and f) don’t bicker.
There are currently so many positive childhood ‘ingredients’ for [X] and [Y]. Both the parents’ demonstrate that they are both able to focus on the children and wish to do so. The parent’s reported a general progression of the children’s positive adjustment also. There is existing history of the parents being active participants in the children’s lives and they have maintained the children’s extra curricular activities despite being financially strained. It is important to note that [X] and [Y] will not remember the amount of overnights they have spent with each parent or where their art work was stored. They will remember whether they felt safe, cared for and protected from conflict.
Such comments are very apposite in relation to this particular matter. There are difficulties but the parents have been able to work together and Ms B, in particular, recognised that that was the case. She went on to say in paragraph 39 the following:
There also should be some understanding that the combination of the children having slightly different requirements at each home and each parent approaching tasks with some slight differences will result in some differences such as the timing of reducing night time drinks, removing dummy’s and sharing bedrooms.
On the whole the parents share a remarkable amount of similarities such as value for educational investment, extracurricular activities, supporting social events involving the children, involving the children in domestic tasks, similar routines, agreeing in the same school and kindergarten. It is an important consideration that whilst there are what are sometimes referred to as glitches or difficulties in the interaction between these parents, overall they are able to work together and to put the best interests of the children to the fore. Ms B emphasised that and more particularly, emphasised the importance to the children of that being in place.
Ms B also reiterated the concerns that she had expressed in her earlier report about the effects that might occur with regard to the children’s relationship if the move and relocation, as proposed by the mother was to occur. In paragraph 59 of the second report she says:
At the children’s current age, their attachment relationship is based heavily on the physical and interpersonal exchanges with their caregiver. This means that developmentally this is much harder over a distance to create the depth of bond when the method relies solely on phone or internet. During toddler and early childhood age, the close attachment that builds from sharing time with a parent comes from accumulating intuitive knowledge about the parent based on the relationship pattern, shared activities, personal care bestowed by the parent.
Ms B goes on, in paragraph 60, to make the following comments:
For the children (especially [Y]) extended time away from their father will require significant ‘scaffolding’ for them to keep their father in mind. The children’s memory capacities (especially [Y]) are not yet developed to the point that they can go without seeing their father for extended periods of time (ie, four to six months), and maintain the intuitive knowledge and comfort in their relationship with him that the children are currently afforded from regular time.
It is a most significant point in relation to this matter because, of course, even with the best endeavours of the parties, there could and would be very significant periods of time where these children would be absent from the father, other than perhaps by way of telephone or possibly videolink. That is simply not the same as the attachments that grow from sharing activities together, and that simple physical interaction that is so important, particularly to young children and to their opportunities to develop their relationships and bonds with those so important to them.
Ms B was challenged as to whether she had, in fact, commenced her assessment in relation to this matter from a basis of suggesting that, because of the young age of the children, that there could not be the possibility of relocation. She said in her first report the following:
Certainly with time, consistency, parental routine and emotional support children adjust extremely well and in fact benefit from supported changes. However, even these positive parental behaviours of consistency and reassurance can not be applicable when the changes children are expected to make are beyond their developmental capacity.
Ms B was questioned as to whether that meant that in her professional opinion, a relocation with regard to young children could not occur. She was asked whether, in fact, she had therefore started from the premise that no relocation was beneficial except, for example, in circumstances of serious domestic violence or issues of that nature, and that therefore there could not or should not be relocation. Ms B very quickly indicated that there was no such stance taken by her in relation to children of any age, but rather, an immediate need was required to look at the attachments that were in place, and how those attachments had to date been fostered and developed, and how they could subsequently be fostered in and developed.
Ms B was in no way suggesting that there was a hard and fast rule that should be applied, in relation to children’s capacity to attach, and therefore relevance to be given to the age of children, and as such, whether they could or could not continue relationships following a relocation. Rather, she emphasised the importance of each case being an individual case, and one that needed to be looked at on the basis of it being in the best interests of the children, when considering their existing relationship with the parent with whom they might be spending, less time.
Ms B also addressed issues in relation to the parents own health and wellbeing. She particularly spoke of the concerns that were held with regard to what she called, the mental health of the mother. She spoke under that heading about the mother’s reported symptoms, of sadness and a feeling of isolation. But she noted that they did not meet the criteria for a major depressive episode. It was, of course, clear that the mother was sad at not being able to presently live in close proximity to her mother and extended family, but that it had not affected her capacity to parent the children. In paragraph 42 of the second report she says the following:
What is firstly suggested is that her current experience of sadness and ‘bleakness’ does not appear to affect her daily parenting or ability to experience an active and involved life. However,
Ms Hamrick appears to be ‘going through the motions’. That is to say that while on the one hand she reports not being happy, finances are stretched and aspects of her current schedule lack the emotional ‘richness’ she would prefer, she still ensures her behaviour and routine are focused on what is important as a parent.
There are issues of concern in relation to the matter. There are real issues as to whether in the longer term, these continued feelings of sadness, “bleakness” might have a more significant affect upon the mother. Ms B addresses that particular aspect of the matter in paragraphs 44 and 45 of the second report, where she says:
There are some limitations in forecasting the future outcomes of Ms Hamrick’s sadness as this would be highly dependent on her process of adjustment (if she remained in Townsville) over the next 12 months, financial stability and the escalation or reduction in conflict with Mr Hamrick.
Currently protective factors that reduce Ms Hamrick’s current sadness progressing into a more major illness are her sociability, her social supports (though not as close as preferred), connectedness to family (though they are physically distant), and being an active parent in the children’s life.
Ms B then goes on, in commenting about that particular aspect of the matter, to make the following comment at paragraph 48:
It should be highlighted that it is far from unusual for parents to experience periods of sadness, bleakness about their future, and a loss of direction over the course of them raising children within a context of stretched emotional resources and significant stressors. This happens for parents from a broad range of factors, such as the death of important family figures or strained marital relationships.
The fact is that here the mother is sad, but just as clearly, and the material would indicate that it is the case, the father also is experiencing difficulties with regard to the breakdown of the relationship, and has real fears and concerns about the loss, as the father would describe it, of the close relationship that he wishes to have with the children, and which he says the children deserve to have with him.
Ms B refers to the father as being insecure, and in particular, speaks of his concerns, with regard to the children. I commented previously about the father making reference to being devastated if the children were to travel away with the mother, she being allowed to relocate, and that he would be “torn apart”. I raised, in submissions in relation to the matter, the concerns that I had to not only consider, of course, the mother’s position in relation to this matter, but also, of course, to consider the effect upon the father of his role as a father to the children, if he was, as he described it, devastated or torn apart by the fact that the children were living on the other side of the country, and how that would affect his capacity to parent.
I am mindful, of course, of the comments that have been made regularly by the Full Court and, in fact, more recently in MRR & GR (2010) 263 ALR 368 about the need to consider the state of mind of the parent who wishes to relocate. It is a relevant consideration in relation to all matters to be determined, and it is certainly relevant here. But, with respect, there is also a need to consider the effect upon the father, who wishes to remain and wishes to have the children remain in Townsville, if it were the case that the children were to relocate. His capacity to be a long distance parent to the children, and to have a meaningful relationship with them, which is the children’s right and entitlement, is also a factor which must be looked at, in relation to any further and final determination.
I should say, in the end, that I was most assisted by the reports prepared by Ms B in relation to this matter. I note and accept her expertise in relation to the recommendations with regard to parental responsibility and also with regard to the children remaining living in Townsville. On my assessment of the report and the evidence of Ms B, she has addressed so many of the issues of concern and dispute between the parents and has balanced that with issues in relation to considering the capacities of each parent to provide for the children and to meet their obligations as parents, as well as to ensure the children’s right to a continued relationship with those two most significant persons in their lives, is fostered and developed.
I turn now to issues with regard to the law and how to deal specifically with the matter of relocation as proposed in relation to this matter. In that regard, I have been referred to the recent decision of Murphy J in Cowley & Mendoza [2010] FamCA 597, but I do not have a final number in relation to that decision at this time.
Murphy J in that case set out under the heading, ‘Parenting Orders and “Relocation Cases” – Principles’, a detailed consideration of the various matters that have been the subject of consideration by the Full Court and the High Court and the statutory framework that should be considered and followed in relation to any determination. I could not more appropriately set out the principles to be followed in relation to the matter than has been done by Murphy J in that case, and record the commentary as follows:
17.Parenting orders, of whatever type, are driven by a determination of the best interests of the particular children who are the subject of the proceedings (Sections 60CA; 60CB; 61DA(1) & (4) and 65DAA). The issue of best interests is not left at large. The path to a decision about that issue is signposted by a number of mandatory considerations. Some considerations are marked as having primacy, whilst others are “additional” (s. 60CC).
18.The “primary considerations” have particular importance but, as the word “additional”, used in the following subsection, implies, they are to be considered in conjunction with the “additional considerations”. The proper analysis of each represents not an end point in itself, but a pathway (albeit a mandatory pathway) to determining the best interests of children by according appropriate weight to those considerations relevant to the individual children and the particular circumstances in which they find themselves.
19.Further, “best interests” is not the application of a theoretical construct but, rather, the practical application of a number of considerations relevant to the individual needs, desires, health and aspirations of the particular children of this particular parenting relationship.
20.Importantly, analysis of the statutory considerations must also be consistent with the overall objectives of the Act (s. 60B(1)). The statutory objectives are given light and shadow by the principles underlying them – which are also outlined in the Act (s 60B(2)). Together, they represent a number of obligations cast upon those responsible for the nurturing and care of children and rights enjoyed by those children accordingly.
21.The statutory Objects and Principles are unifying aims, but attempts to meet the Objects, and to accord with the Principles, will vary from parent to parent and child to child. The individual characteristics or idiosyncrasies of parents will invariably mark the parenting relationship. Where parental conflict (particularly significant conflict) intervenes, differences in belief systems, personality, psychopathology, attitude and the like are thrown into sharp focus. The circumstances in which aims – statutory or otherwise – are satisfied, or not, must vary with the individual parents and children and with their particular circumstances.
22.Decisions about the best interests of individual children, arrived at by weighing those Objects and Principles, and the statutory Considerations are given further statutory direction and specificity by further statutory requirements which:
(a)direct a court to presume (rebuttably – s 61DA(4)) that shared parental responsibility is in a child’s best interests (s. 61DA(1)); and
(b)require, consequentially, the court to consider whether an equal time order is in the best interests of the children (s65DAA(1)); and
(c)if not, require the court to consider whether a child spending “substantial and significant time” (s 65DAA(2) (as defined – s 65DAA(3)) with each parent is in the children’s best interests; and
(d)require the court to consider the extent to which parents have fulfilled their parenting obligations, particularly in the post-separation period (s 60CC(4) and (4A).
23The two requirements earlier referred to, relating to the amount of time children spend with their separated parents, are each governed, in turn, by a consideration of not only whether either is in the children’s best interests but, also, whether each is “reasonably practicable” (s 65DAA).
24The determination of “reasonable practicability” is, also, not left at large but is circumscribed by a number of statutory factors, including geographic distance, capacity to implement the relevant arrangements; the capacity of the parents to communicate with each other in the future; the impact on the children and any other matters which the court considers relevant (s 65DAA(5)).
25Ultimately, the court must bring a consideration of all of the statutory matters to a practical and enforceable conclusion in the individual circumstances of conflicted parents who, by definition, cannot agree sufficiently to do so themselves.
The Source of Power
26.In the present case, which attracts the convenient descriptor, “relocation case”, counsel for the father referred in written submissions, and during the hearing, to my decision in Pitken and Hendry [2008] FamCA 186. In that decision, and more recently in the matter of Lansa & Clovelly [2010] FamCA 80, I attempted a distillation of the principles emerging from the legislation and the earlier decisions of the High Court and the Full Court there referred to. Counsel for the father also referred to a more recent decision of the Full Court in Starr and Duggan [2009] FamCAFC 115. All of those decisions were handed down prior to the recent decision of the High Court in MRR v GR.
27.The decision and principles enunciated within MRR are, of course, of very significant general importance but they can also be seen to be of particular importance to the facts of this case, in which both parties and the Independent Children’s Lawyer contend for an order that the parties have equal shared parental responsibility for decisions about “major long term issues” of the children, and in which the mother seeks to relocate with the children internationally.
28.The High Court held in MRR:
8.Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"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." [emphasis in High Court judgment]
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
(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."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n 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".
29.In what might be seen to be a particularly important part of the judgment, the High Court went on to hold:
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.[footnote and citation omitted]
30.And, later, in another passage which I consider, with respect, to also be particularly important to this case, it was held:
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s. 61DA(1) is not determinative of the questions arising under s. 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in [M], Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
31.In my view, it remains the case that, as I said in the earlier decisions referred to:
· A “relocation case” is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.
· A relocation case falls to be determined like any other parenting case: the fact-finding (or value-finding) exercise required by s 60CC is directed toward ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time.
32.But, other matters there referred to must now be reconsidered. In particular, while factual findings about best interests will drive many of the matters crucial to be considered in arriving, ultimately, at a decision about appropriate orders (for example, whether, in appropriate cases, the presumption of equal shared parental responsibility is rebutted), it is also in my view necessary to make distinct findings about reasonable practicability.
33.Findings about best interests might be seen to have a predominant relationship with the child; findings about reasonable practicability might be seen to have a predominant relationship with the parents. Writing in the Australian Law Journal after the decision in MRR, Dr Dickey QC has said:
In the majority of cases concerning a child’s future there must be a balancing of the interests of the child with the interests of each of the parents. The interests of the child do not override the interests of the parents; they have to co-exist with them. The function of the court is to balance these interests in a way that best promotes the welfare of the child whilst giving appropriate recognition to the claims and interests of the parents.
(Reflections on MRR v GR (2010) 84 ALJ 296)
34.The court is bound to consider carefully the proposals of the parties but, in ultimately making parenting orders, is not bound by the parties’ proposals; an obligation exists to formulate (subject to procedural fairness considerations) orders considered to best meet the best interests of the subject children. (See AMS v AIF (1999) 199 CLR 160; U v U (2002) 211 238). Section 65DAA, as it seems to me, legislatively endorses that approach. The obligation created by the section is an obligation to consider the matters there enumerated - independent of the proposals of the parties – in circumstances where an order provides, or is to provide, for the parties to have equal shared parental responsibility.
The Nature of the Inquiry?
35.The Full Court said in Starr and Duggan [2009] FamCAFC 115:
36.The Full Court [in McCall & Clark [2009] FLC 93-405] … pointed out that in seeking to address the relevant provisions of the legislation it is inevitable there will be “dual consideration” of some matters. This is so because consideration of the s60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals. Some of the matters to be considered under s 60CC(3), for example the likely effect of any change in the child’s circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s 65DAA, especially s 65DAA(5).
36.In the same case, the approach of earlier Full Courts to the manner in which the parenting enquiry should take place was endorsed:
38. … it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
·First make findings concerning the relevant s 60CC(3) factors;
·Then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
·Then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
37.It seems to me that the subsequent decision of the High Court in MRR gives cause to respectfully review at least some of those statements.
38.While it is plain that the legislation does not, itself, mandate any particular order for the consideration of the prescribed matters, if, as the High Court has determined, s 65DAA contains the power to make parenting orders in the circumstances specified within it, and its provisions contain, as the High Court has said, “… a power which is conditioned much as it is where a jurisdictional fact must be proved to exist…”, it seems to me necessary to first make findings necessary to decide whether the power is invoked: namely, findings about whether an order “is to provide that a child’s parents are to have equal shared parental responsibility for the child”.
39.That question, in turn, depends upon whether the statutory presumption (s 61DA) applies or, does not apply (s 61DA(2)) or, is rebutted (s 61DA(4)) or, whether one or more parties, independent of the application of the presumption, seek such an order.
40.Taken together, then, the decision in MRR and the provisions of the Act (as interpreted by the High Court) require the court, as a first step, to make findings so as to determine the question of whether the presumption applies or, independent of that, whether the court should make an order to that effect (either because one or other of the parties seek it, or because, subject to natural justice considerations, the court considers such an order is in the best interests of the children the subject of the proceedings). That decision involves findings about either “family violence” or “abuse”, as each is defined, or “best interests”. (See s 61DA.)
Summary of Principles
41.The decision in MRR, in combination with the legislative requirements (and bearing in mind the Full Court’s decision in Goode v Goode (2006) FLC 93-286), would, then, appear to me to require a court contemplating the making of parenting orders to:
·First apply a presumption that it is in the best interests of the subject children for their parents to have equal shared parental responsibility in respect of them;
·Next, make findings as to whether any “family violence” or “abuse”, as each is defined, exists;
·Further or alternatively, then make findings, by reference to s 60CC(3) about such matters pertaining to best interests relevant to the issue of whether parental responsibility should be shared equally;
·Determine, accordingly, whether the presumption of equal shared parental responsibility is, as a result of findings about each (or, perhaps, both) of the above matters, respectively, inapplicable or rebutted or, presumption or not, whether such an order should be made;
·If the presumption is inapplicable or rebutted, and such an order should not otherwise be made, make findings about best interests relevant to a determination of what ultimate orders are in the best interests of these particular children in their particular circumstances (s 65D; s 60CA; s 65AA). (As the Full Court put it in Goode, the enquiry about best interests is “at large”);
·If the presumption is not inapplicable or rebutted, or if it be determined that an order for equal shared parental responsibility should in any event be made, the court must (s 65DAA) then proceed to:
o Make findings as to whether the subject children’s best interests are best met by an order for equal time; and
o Make findings as to the matters prescribed in s 65DAA(5), and, as a result;
o Make findings about whether an equal time order is reasonably practicable (that is, in the words of the High Court, make “a practical assessment of whether equal time parenting is feasible”); and
o If it is not, conduct the same process, but this time with findings directed to a consideration of whether a “substantial and significant time” order (as defined – see s 65DAA(3)) should be made;
·If neither an equal time order, nor a substantial and significant time order, should be made, proceed to determine the orders which the earlier findings point to being in the subject children’s best interests. (s 65D; s 60CA; s 65AA).
42.It might be thought that, as a matter of logic, if neither party seeks an order for either equal time or substantial and significant time, a consideration of the power to make such an order may become moot. But, that is clearly not so.
43.First, the court must (subject to procedural fairness) formulate proposals, independent of the parties, consistent with findings about the children’s best interests. (See, eg. U v U, above). Secondly, while, in accordance with the High Court’s judgment in MRR, s 65DAA contains the power to make those orders, the section also plainly casts an express obligation upon the court to consider the exercise of the power to make each such order in the prescribed manner when the precondition to its application is met (viz. an order is to provide for equal shared parental responsibility). That statutory obligation exists despite the fact that, in any given case, neither party seeks an order of either type.
There are, I must say, though it was not perhaps so strenuously pressed in relation to this matter, significant concerns of a similar nature in relation to the father. He is insecure in his relationship with the children, and, as was certainly suggested by counsel for the mother, defensive in relation to any challenges to what he might propose, in relation to the children. There is clearly an issue for each parent in relation to their capacity to move forward in relation to this matter, arising from their own emotional sensitivities. They are matters that might need to be more fully considered by the parents, and whilst there does not appear to have been, at least on the face of it, any direct suggestions of the parents seeking or arranging psychological assistance or counselling, it is certainly a matter that was touched upon in relation to their continued interaction with each other.
Section 60CC(3)(i) is, in many respects, an adjunct to those matters to be considered pursuant to the provisions of section 60CC(3)(f) to which I have already referred. Subsection (i) requires that the Court give consideration to the attitude to the child or children and to the responsibilities of parenthood demonstrated by each of the child’s parents. It is clear that these parents show an appropriate and responsible attitude to these children. It is clear that they have to the forefront in all of their dealings with the children and with each other a perspective of what they consider to be responsible parenting and appropriate parenting for the children.
The difficulty, as I have already commented, arises simply from the fact that each considers that what they propose in relation to the children to be more beneficial than might necessarily be the case, in relation to what the other parent proposes.
The parties do have many positive interactions, one with the other. It was commented on throughout the reports that have been prepared in relation to this matter. Ms B commented upon it, for example, in paragraph 96 of her first report, when she said the following:
Some barriers may remain in how the parents approach negotiation and decision making which leads to both of them feeling undermined and disrespected. It would remain beneficial to both parents if they considered including some form of mediation from time to time in the future. The children will benefit considerably from having the equal input of both parents experience and parental care into decision making.
Ms B also was mindful of that in other comments that she made with regard to the approach to parenting and, in fact, particularly, the approach to co-parenting. She made comment at paragraph 65 of the second report as follows:
It is more likely that following the resolution of the financial arrangements and use of a communication book, that conflict may reduce again. In consideration of a) the mother’s mental health, b) the current level of parent conflict, and c) the reduced capacity of the children at this age to develop close attachment with their father over significant distance, it is strongly suggested that the positive developmental outcomes for the children from having face-to-face time with both parents be strongly prioritised.
The fact is that Ms B noted that the continued litigation between the parties and the unresolved issues, both in relation to the parenting of the children and the financial aspects of the relationship between the parties, did give rise to effects upon their approaches to parenthood and their capacity to work together, but there is a very real expectation that once those matters have been able to be dealt with, that there would be significant improvements in relation to the responsible approach to parenting by both of the parents, and, in particular, the responsible approach to co-parenting.
Subsection 60CC(3)(g) relates to the maturity, sex, lifestyle and background of the child and relevant characteristics of the child that might be relevant in relation to the matter. It, along with subsection (h) relating to issues of whether there is Aboriginality of Torres Strait Islander considerations, are not relevant in relation to the determination of this matter.
Similarly, sections 60CC(3)(j) and (k) relate to issues of family violence and the existence of family violence orders. As I commented earlier, it is one of the matters that gives rise to some real comfort in relation to this matter, that notwithstanding the difficulties that each of these parents have experienced over time, there has not been any suggestion of domestic violence or a need for one parent or the other to be protected from the unreasonable actions or harassment of the other parent.
Whilst there is difference between the two parents and, perhaps on occasion, feelings of concern by both parents that they are not being heard, in relation to what they consider is appropriate with regard to the children, the parents have overall been able to ensure that the best interests of the children were to the fore, and whilst there have been difficulties in their communication and decision-making processes, they have not in any way led to inappropriate behaviours by either of the parents.
Section 60CC(3)(l) requires that the Court consider making orders that would be least likely to lead to the institution of further proceedings in relation to the children. Of course, that is, with respect to the legislators, an impossibility. One simply does not know what the future holds. All that can be done by any judicial officer attempting to resolve issues with regard to the parenting of children, is to have to the forefront of any decision that they make, the obvious requirement that arises pursuant to the provisions of section 60CA of the Family Law Act, that the best interests of the children are the paramount consideration.
After that, there is a hope that once there is in place a structured or settled arrangement in relation to the future parenting of the children, that each parent, and of course the children, will adapt and settle into that arrangement, such that it becomes more comfortable for all concerned. There is no guarantee, but there is, at least in this instance, a hope, as was expressed by the report-writer, that once the financial issues are dealt with and once the overriding concerns that relate to a determination of parenting issues are brought to a close, that there will be a settling of any difficulties between the parents and therefore a greater likelihood that the orders that are put in place, will lead to a structured and appropriate arrangement, in relation to the parenting of the children.
I am not at all minded to consider that there is any other fact or circumstance that should be considered as relevant in relation to this matter. There was certainly some emphasis on issues with regard to the health of the mother and whether there would be a future concern that might arise with regard to issues in respect of the mother’s depression or deterioration in her mental heath. The mother’s own evidence, however, was that she was able to act appropriately in relation to the parenting of the children.
It was noteworthy that whilst she was sad, it was commented upon by Ms B, as an expert in the area, that sadness is not an uncommon occurrence following the breakdown in a relationship and a lack of achieving all that one hopes when they enter into a relationship, and particularly all that one hopes when a relationship is established. There was no independent medical evidence called in relation to this matter, and one would think that that would be the obvious outcome of the fact that the mother has not suffered emotionally, to the extent where treatment is required to assist her to deal with the psychological or emotional impacts of a breakdown in the relationship.
Similarly, the father also has feelings of insecurity, defensiveness, and perhaps a real concern that if the children were to be removed from the locality in which they presently are and in which the father resides, that there would be a real possibility of a “depressive episode or illness” in the father’s own life. They are matters that were raised, but, as I say, there was no real evidence in relation to those matters. The reporter commented upon both parents having indicators of difficulties in relation to the breakdown of the relationship and the possible consequences of the orders that the other sought in relation to these proceedings, but they were not factors which, in my assessment, would have any overriding impact in relation to any determination.
Having considered all of those matters in relation to this matter, I have, as I would hope is obvious, come to the final consideration that the proposals put by the father in relation to this matter, at least insofar as arrangements with regard to the further and graduated increase of his relationship and time with the children and the assurance that he and the children have that regular, if not daily, then certainly weekly, interaction and exchange with each other, is the most appropriate arrangement to be put in place.
In my assessment, it is practicable. It is child-focused, and it is, when one considers in an overall manner the entirety of the situation, the only arrangement which would ensure that the best interests of the children are put to the fore and are the paramount consideration.
Property matters
I intend to address the issues in relation to property settlement. It is clear that it has been an issue which has been secondary to both parties in relation to the determination of this matter. It is clear that the parents have put to the forefront, and, in fact, their legal representatives acknowledge that that was the only proper course to follow, in relation to this matter with regard to the determination of proceedings.
Having given the indications, however, in relation to this matter as to what I intend to do with regard to the parenting of the children, it is, of course, necessary for me to turn to the issues of property settlement and how that can properly be considered. It was noteworthy and again, I think reflects the importance that the parents put upon the children’s issues, that there was not a question asked by either counsel of the other parent, in relation to issues of property settlement.
It was taken as a given that there was a property pool to be divided between the parties, and there was obviously a need for consideration of how that pool would be divided. There was not, however, a huge difference in relation to the proposals that each parent put. As I indicated at the beginning of these reasons, the position that was taken by the mother was that there should be an 80/20 split of the property of the parties, though it was, in fact, conceded by her counsel at the time of addresses, at the conclusion of the hearing, that if the mother were to be “successful” in her application for relocation, then there would be little that would change any view that there should be an equal distribution of the matrimonial assets between the parties.
The father’s position was to say that the distribution should be 65/35 in favour of the wife. In light of the decision that is already clear in relation to arrangements with regard to the parenting of the children, the differences that need to be considered in relation to this matter are not all that significant. It is, if you like, a distinction between an 80/20 split in favour of the wife or a 65/35 split in favour of the wife.
I am mindful, of course, of the considerations that must be looked at in relation to property settlement. There have been numerous decisions on point with regard to the course to be followed in relation to any property distribution to be effected between parties.
In that respect, I turn, then, to the law and to its application in relation to this matter. Section 79 of the Family Law Act defines the court’s powers in determining applications for property settlement. Subsection (2) of section 79 provides that:
The court shall not make an order under this section unless it is satisfied that in all the circumstances, it is just and equitable to make the order.
Section 79(4) sets out the matters the court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters include:
(a)the financial contributions made directly or indirectly by or on behalf of a party to the marriage or by a child to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the make of the contribution, c eased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) as far as they are relevant;
(f)any other order made under the Family Law Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The approach to the determination of an application under section 79 is well established by authority (see, for example Pastrikos and Pastrikos; In the Marriage ofLee Steere and Lee Steere; In the Marriage of Ferraro; In the Marriage of Clauson and In the marriage of Whitely and Whitely) the process ordinarily involves a multiple part procedure.
The court must first identify the assets, liabilities and financial resources of the parties and attribute a value to all assets, usually at the time of the hearing. Thereafter it must evaluate the contributions made by each of the parties as defined in section 79(4)(a) to (c). Finally, the court must consider the financial resources, means and needs of the parties, and other matters set out in section 75(2) in so far as they are relevant. An adjustment of the amount due to each party by way of contribution is then made by reference to the section 75(2) factors. It is not essential, however, that such an adjustment be made. Generally speaking, an adjustment is made because one party has greater needs and the other has stronger means. Section 75(2) is concerned with the process of arriving at a just and equitable result.
In determining what order the court should make under section 79, the court must be satisfied, in all the circumstances of the case, that the order to be made is just and equitable – not simply that the underlying percentage division of the net value of the parties is appropriate. In other words, in consideration of whether the overall result of the order in the property settlement proceedings, is just and equitable [see section 79(2)]. It is the justice and equity of the actual orders that the court must consider Russell v Russell.
Section 75(2) of the Family Law Act sets out the matters which must be taken into account by the court when determining applications with respect to maintenance. This is the prospective element of the determination of the application for property settlement. The assessment of contributions during the marriage is the retrospective element.
In the Marriage of Ferraro (supra) the Full Court said:
“A now well established line of authority in this court indicates the new approach normally to be taken in the exercise of the discretion in section 79 proceedings. That approach is firstly to ascertain the property of the parties at the time of the hearing, then to consider ‘contributions’ of the parties within paragraphs (a) – (c) of section 79(4) and then consider the matters in paragraphs (d) – (g), more especially paragraph (e) which takes up by reference the provisions of section 75(2) which are generally referred to as the ‘Section 75 Factors’”.
Obviously therefore, there is a four-step process to be followed in relation to the distribution to be effected between the parties. The first is to assess, as best can be done, the position with regard to the property of the parties, as at the time of trial. That process has been, to a very significant degree, made straightforward as a result of agreement reached between the parties, in relation to the property pool. What is agreed to be the pool in relation to this matter is as follows:
Value of matrimonial home $360,000.00
Mortgage debt $257,090.08
Net value (ignoring sale costs) $102,910.00
Add-back against wife proceeds of sale of Pajero 10,000.00
Ford Laser (husband) 3,850.00
Property pool $ 116,760.00Husband’s [S] Superannuation 16,220.00
Husband’s [M] Superannuation 8,346.00
Wife’s [W] superannuation $ 61,000.00
Superannuation pool $ 85,566.00The second step then to be looked at in relation to the matter is to consider the contributions of the parties, both financial and non-financial, to the acquisition, maintenance, and improvements of the assets of the parties. Again, it was almost unchallenged by each parent that during the relationship, they contributed appropriately and to the best of their ability, in the manner that they were able.
During the early parts of the relationship, the mother had some work, and the father was in full-time employment. In the latter stages of the relationship and certainly subsequent to 2003, when the move was made in early 2004 to Townsville, the father both studied and worked as a [occupation omitted], and the wife had some work, until the birth of the child [X] in 2005. Thereafter, the mother was involved entirely in the care and supervision of the children.
It is not appropriate, nor was it suggested by either parent, that there should be some distinction drawn between the financial contribution of the father, and perhaps, therefore, the lesser, non-financial contribution brought about by his involvement in the parenting of the children and the homemaking activities that he was able to involve himself in, as opposed to the non-financial contribution by the mother, but obviously the far greater contribution as a mother and homemaker which occurred with her being within the residence.
Both parents, through their counsel, acknowledge that the contributions that they made, though different, were contributions that were to be considered, to all intents and purposes, equal during the period of the relationship.
In that respect, it is obviously required that there should be notation of the fact that the wife did bring into the relationship an interest in superannuation with the [W] superannuation scheme, but as best one can assess, in about 2002, it was valued at approximately $25,000, and as the relationship commenced some two years or so before that, there would be an expectation that there would have been a lesser sum than that contained within any entitlements that the wife had, at the time the relationship commenced.
In any event, there would have been, obviously, during the relationship, at least when the wife was working, continued additions to the superannuation, and that clearly has come from the matrimonial pool. It is a small factor in relation to this matter, and, in fact, when one looks at the totality of the contributions made, on both a financial and non-financial basis during the relationship, I am not minded to think that there should be any adjustment to an equal distribution or assessment of the contribution, as between the mother and the father.
Subsequent to separation in September 2008, the mother’s contribution as a homemaker, and particularly as the primary carer for the children, would have increased, simply because, on those occasions when the father would normally have been within the household when the parties were living together, he would not so often have been there. The mother would have that additional contribution, but it needs to be considered, of course, in balance with the fact that there were thereafter occasions when the children were in the father’s care, and he would have had sole responsibility, in relation to the care and supervision of the children.
Subsequent to separation, there were different contributions, but again, as I have indicated, they would be, in my assessment, equal, though in different aspects. I am satisfied that during the entirety of the relationship and post-separation, therefore, each of the parents contributed to the acquisition, improvement, and maintenance of the assets of the parties, and subsequent to separation, in an equal though different way, and find that the appropriate distribution to be considered in relation to this matter is a fifty-fifty distribution of property.
The third step, then, in relation to any assessment of the entitlements in relation to property require a specific consideration of those matters required to be looked at pursuant to the provisions of section 75(2) of the Family Law Act. Section 75(2) details a number of matters which must be considered in relation to a proper assessment of an appropriate distribution to be effected between parties. Section 75(2) is in these terms:
75(2) [Matters] The matters to be so taken into account are:
(a)the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the credit’s debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party’s role as a parent; and
(m) if either party is cohabiting with another person – the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i)the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
Of particular relevance in relation to this matter, however, are those factors required to be taken into account pursuant to the provisions of section 75(2)(a), (b), (c), (g), (k), (l) and (na). Section 75(2)(a) requires consideration to be given to matters with regard to age and state of health of each of the parties. What is clear is that each of the parties are in, on the face of it, good health and that neither has any special needs with regard to assistance or care. There is, however, arising from a consideration of the age of the parties, a need to look at issues in relation to those matters which arise pursuant to the provisions of section 75(2)(c) and (l).
The age of the parties, and in particular here, the age of the mother, is directly reflected in the fact that, pursuant to the arrangements that are in place, she has, at the present time, and will at least for the next year and a half or thereabouts, have the primary responsibility for the care of the two children, under the age of 18 years. More particularly and it seems to have been accepted in relation to this matter, that the mother wishes to continue her role as parent and in particular what is sometimes referred to as a “stay-at-home parent” in relation to the children. It is obvious that that has a significant effect upon the mother’s capacity to earn income over and above what might be received by her as a way of Centrelink benefits or as a result of child support paid by the father. They are matters which weigh in favour of the mother and need to be considered in respect of the determination of this matter.
Flowing from those considerations are also matters which must be looked at pursuant to the provisions of section 75(2)(b). In this instance, there is a vast disparity between the income of the mother and the father. The mother, through the appropriate and proper choices that she has made in relation to the parenting of these children, has limited, if any, real income available to her other than Commonwealth benefits and child support payments, received from the father.
The father, for his part, has income which, as best I can assess from the financial statement filed in relation to this matter and of course there was no challenge in relation to what was contained within that financial statement, appears to have an income in the vicinity of $75,000 per year. The husband indicates that his weekly income is $1442 per week.
The father, however, then has, as would obviously be appropriate, obligations in relation to the continued support of the children. This, of course, is not paid by him at the present time because of an arrangement in place between he and the mother to ensure that he has responsibility for the payment of the entirety of the mortgage associated with the property which is jointly owned but presently occupied by the mother at Property M, in Townsville.
What will occur, of course, subsequent to property settlement if, as appears to be anticipated by all, that the matrimonial home will be sold will be a situation where the father will be required to pay, in accordance with the appropriate child support assessment, an amount with regard to the support of the children. However, it will be an amount which does not in any way reflect the income which will remain in his possession when, at least in the next year to year and a half, he will have lesser of a responsibility for the children and therefore, lesser expenses associated with their care and supervision.
The disparity in income and the future prospects that the father has as opposed to the far more limited prospects, even when they are able to be taken up by the mother, means that that again is a factor which will be of significance in relation to the determination of this matter and any adjustment as to the percentage entitlements in relation to property.
Subsection (g) requires that there be consideration given to, where the parties have separated or divorced, of a standard of living that is in all the circumstances reasonable. That again is a factor which weighs significantly in relation to this matter.
The property pool of the parties as agreed can be broken down into two parts, the immediately available assets with a total of about $116,760, and the superannuation assets, which are far less available to the parties, totalling $85,566. Unless the appropriate application were made, perhaps by the mother in this matter, the actual funds for distribution and use immediately, are just a little in excess of $100,000. When that is to be divided between the parties and both are then expected to make arrangements in relation to their future provision, including accommodation suitable for them and the children when the children are in their care, there is a need, obviously, to look at the capacity to provide for the future, and in particular, the future needs of each party.
The father will have a lesser sum available to him, it being the case that he, in fact, acknowledges in the final addresses made in relation to this matter, that a property settlement should, to a significant degree, favour the mother, but he will also, of course, have the income which he currently earns and which one would expect would be unaffected in the near future or at all, and which one could further expect, would only improve over time.
It is, again, therefore, a factor of some significance in relation to this matter, because there needs to be a practical realisation of the actual effect of any distribution, to be effected between the parties. It is all well and good to simply do percentage calculations in relation to the matter, but as was commented upon the Full Court of the Family Court in Clauson & Clauson (1995) FLC92-595, there is an obvious need to look at the actual monetary exchange that will occur as a result of any property settlement. It was, of course, a similar consideration to that to which I referred in the outline of the law in relation to this matter, when one finally is required to look at the justice and equity of any distribution to be effected.
The duration of the relationship is another factor to be considered, and whilst it is not necessarily a long marriage, there is the obvious consideration that arises here as a result of the decision made by the mother, but no doubt whilst together, supported by the father, to suggest that the mother should be primarily involved in the care and supervision of the children and therefore she would be less able to earn income, and, therefore, to provide for herself. It is, again, a factor, which, to at least some extent, weighs in favour of the mother.
I have already commented about the issue of child support and of the assessment that has been made and will continue to be made, in relation to contribution toward the costs of the children, particularly when in the mother’s care. Section 75(2)(na) requires that the Court give consideration to any child support payable under a child support assessment, and it is a factor which needs to be looked at, because it will, of course, affect the available funds for the father, but just as clearly will be reflected in the income to be coming into the mother’s house, and will not, as I have indicated, at least in my assessment, in the early stages of any future arrangement, provide enough to meet all of the possible needs, hopes, and expectations of the family.
In the end, there are, therefore, a number of factors which weigh in favour of a significant adjustment in relation to the mother. Having found that the appropriate distribution, following consideration of contributions by the parties is a fifty-fifty distribution, I am very much of the view that the appropriate distribution to be effected between the parties, once there is consideration of section 75(2), is an adjustment to those figures of 20 per cent in favour of the wife, such that the final distribution to be considered is a 70/30 distribution as between the husband and the wife.
The totality of the pool available to the parties is just a little in excess of $200,000, and if that were to be the sum for the purposes of distribution, then pursuant to the division that I consider appropriate in relation to this matter, it would mean that the wife would receive $140,000, and the husband would receive approximately $60,000.
There is, however, a superannuation pool agreed of $85,000, of which $61,000 is the superannuation held in the [W] superannuation scheme, in the name of the wife. The wife would, therefore, obviously receive a further distribution of approximately $80,000, but, of course, in the agreed sum for distribution between the husband and the wife is an add-back for the proceeds of sale of a Pajero motor vehicle, which has already been received by the wife. I would think that if the wife, then, is to receive a further sum of approximately $69,000 from the pool available for the parties, it would mean that the husband would receive superannuation held by him, of a little in excess of $24,000 and approximately $35,000 in relation to material entitlements, which, after consideration of the husband’s retention of the Ford Laser motor vehicle, would be a cash payment of approximately $30,000.
When one considers the justice and the equity of such a distribution and, in fact, the actual cash values that are to be considered in relation to such a distribution, I am satisfied that is an appropriate distribution to be effected between the husband the wife. The order of the Court, therefore, in relation to property settlement will reflect a property distribution of 70/30 in favour of the wife.
The orders, therefore, in relation to parenting, with respect to the two children of the marriage and property settlement as between the husband and the wife will be as outlined above.
I certify that the preceding two hundred and forty-seven (247) paragraphs are a true copy of the reasons for judgment of Coker FM
Associate:
Date: 5 August 2010
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