Hannan and Hannan - [2008] FMCAfam 107

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HANNAN & HANNAN

[2008] FMCAfam 107

FAMILY LAW – Interim relocation – allegations of unilateral move – agreement to equal shared parental responsibility.

Family Law Act 1975 (Cth), ss.60B, 60CC(2) and (3), 61DA, 65DAA

Applicant:

MR HANNAN

Respondent:

MS HANNAN

File number:

TVC 1371 of 2007

Judgment of:

Coker FM

Hearing date:

29 January 2008

Delivered at:

Townsville

Delivered on:

29 January 2008

REPRESENTATION

Solicitors for the Applicant:

McDonald & Leong

Counsel for the Respondent:

Mr T Betts

Solicitors for the Respondent:

Giudes & Elliott

ORDERS

The parents have equal shared parental responsibility for the major long term issues of the children [S] born in 2000 and [J] born in 2002 including but not limited to:
(a)a child’s education (both current and future);
(b)a child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
The parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree;
(c)They shall make a genuine effort to come to a joint decision.
If the Mother is residing in Townsville the children live with each parent for a period of one week commencing with the Father at 3:00pm on Friday 1 February 2008 until 3:00pm on Friday 8 February 2008 and to alternate each week thereafter.
If the Mother is not living in Townsville the children live with the Father from 3:00pm Friday 1 February 2008 and the children spend time with the Mother at all reasonable times as may be agreed and in particular each alternate weekend commencing on Friday 8 February 2008 from after school on Friday until before school on Monday.
The children spend one half of all school holiday periods with each of the parents with the Mother to have the first half of such school holiday periods in 2008 and the second half in 2009 and to alternate each year thereafter.
Pursuant to Section 67Q of the Family Law Act 1975 a recovery order issue and warrant issue authorising and directing the Marshall, all officers or agents of the Australian Federal Police and all officers of the police forces of all states and territories of the Commonwealth of Australia to take possession of the children [S] born in 2000 and [J] born in 2002 and to deliver the children to the care of the Applicant Father forthwith.
Such recovery order lie on the Registry file until 3:00pm 1 February 2008 and to be uplifted upon the request by the solicitor for the Applicant Father in writing.
Pursuant to Rule 15.09 of the Federal Magistrates Court Rules, a person to be nominated by the Family Dispute Co-ordinator of the Federal Magistrates Court of Australia be appointed a court expert in this matter to inquire into and report on parenting issues in relation to the said children and that:
(a)the parties co-operate with the report writer and make themselves and the children available for interview and observation;
(b)the court shall be responsible for the costs of the report.
(c)the report be filed in the court by 22 April 2008.

IT IS FURTHER DIRECTED THAT:

The Applicant file and serve any affidavits of evidence in chief to be relied upon no less than 28 days prior to the date set for trial.
The Respondent file and serve any affidavits of evidence in chief to be relied upon no less than 18 days prior to the date set for trial.
No party has leave to rely upon any material filed outside the time provided within these directions other than with leave of the Court.
The applicant pay the hearing fee or file an application to waiver the hearing fee no less than 7 days prior to the date set for trial.
Each party file and serve on each other party 3 days prior to the date set for hearing, a case outline setting out:
(a)the final orders sought;
(b)a chronology;
(c)a list of documents intended to be relied upon at trial; and
(d)statement of evidence which they say supports the principles contained in section 60CC
The application be listed for a compliance check on a date to be fixed in Townsville.
The application be listed for 2 days hearing on a date to be fixed in Townsville.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
TOWNSVILLE

TVC 1371 of 2007

MR HANNAN

Applicant

And

MS HANNAN

Respondent

REASONS FOR JUDGMENT

This application relates to orders sought with regard to the parenting of two young children, [S], born in 2000 and therefore seven years of age; and [J], born in 2002 and therefore five years of age. The children are the children of the applicant father, Mr Hannan, and the respondent mother, Ms Hannan.
The parties have, fortunately, been able to make arrangements which have generally been successful in relation to the parenting of the children until recent times when circumstances have changed. The mother made a move, the father says unilaterally, such that she no longer resided in Townsville but obtained accommodation which was, she indicates, far less expensive in [X], a drive of about an hour or an hour and a quarter south of Townsville.
The father, in his application which was filed only a matter of days after the mother's departure, seeks orders with regard to the children's return to Townsville and seeks, in the alternative, either that there should be equal shared parental responsibility and that until the mother returned to Townsville the children live with him and spend time with her or, upon the mother's return, that there should be a shared parenting arrangement and he suggests that that should be from 3 pm Friday until 3 pm on the following Friday in each alternate week.
The mother's response was filed on 24 January 2008. She seeks orders which agree to some extent with the father in that she proposes that there should be equal shared parental responsibility, but then proposes that the children should live with her, that she should have the opportunity of continuing to live in [X] and that the father should spend time with the children each alternate weekend from 4 pm Friday until 4 pm Sunday, as well as one half of the various school holiday periods including Easter, June/July, September and Christmas school holidays and that there should also be the opportunity for telephone communication.
The mother then goes on to particularise other special arrangements including such issues as Christmas Day, Father's Day, Mother's Day, birthdays and the like.
The issue is, like so many that come before the Court, very difficult and the position of both parties can be understood when one considers their financial circumstances as well as commitments that they have with regard to employment and the like. Obviously assistance is provided when one considers those matters that are set out in the Family Law Act and how the Court should look at dealing with arrangements in relation to the parenting of children.
Of course the starting point is, as it always is, the consideration that the paramount issue or matter is that the welfare of the children should be considered first. But there is other guidance or direction that is provided. I am mindful, of course, as I must be, of the provisions of section 60B and section 60CC of the Family Law Act and in particular subsections (2) and (3). Section 60B sets out the various factors that need to be considered by way of the objects of the Act and of course the first of those is to ensure 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 interests of the children.
Other factors, of course, require that there be protection of the children from physical or psychological harm and that the children, of course, receive adequate and proper parenting from each of their parents and to ensure that parents fulfil their duties including, particularly of course, the duties associated with providing for a meaningful relationship with the children.
Section 60CC then sets out the various matters that a Court must consider in how it determines what is in a child's best interests. In other words, it provides a check list of various matters that need to be looked at. It is broken down particularly into two specific considerations, the primary considerations and the additional considerations. The primary considerations relate to, firstly, a consideration of the benefit to the child or children of having a meaningful relationship with both of the child's parents and the need to protect the child from physical or psychological harm; from being subjected to or exposed to abuse, neglect or family violence.
Fortunately there does not seem to be any real issue, if at all, in relation to the need to protect the children. Peripherally the mother makes comment about a concern with regard to the child [J] and to the fact that he is asthmatic and that the father is a heavy smoker but, with respect, that seems to me to be to a large extent grasping at straws. I note in particular in that regard that Dr M in a notation of

12 September 2007
indicates that [J] has asthma which has required little active treatment over the past one to two years other than associated with upper respiratory tract infections and at the change of season.
She goes on:
He should not be exposed to cigarette smoke either in vehicles or in dwellings or otherwise at any time as this is likely to precipitate an asthma attack requiring medication.
The mother says that the father smokes heavily and refers to consumption of a packet of cigarettes a day. One would think that if that is the case the child, who is now over five years of age, would obviously have experienced difficulties with asthma during the period that the parties were living together. No doubt the father, if he is acting in an appropriate and proper manner, would be mindful of that and would act such that he would not, for example, smoke in his vehicle nor would he smoke in the dwelling house and would be away from the child. I do not see the issue of asthma and the use by the father of cigarettes as a matter of any real concern in relation to this matter.
What then remains of course when one considers the primary considerations is the children's right to a meaningful relationship with both parents. Both the mother and the father propose that there should be equal shared parental responsibility. If that is the case then, of course, when one considers the matters set out in section 61DA the Court is required, as of course also are the parents, to give consideration to the presumption that is in the best interests of the children.
There is nothing in the material here before the Court which suggests that it would not be appropriate for the parents to have equal shared parental responsibility and, in fact, both the mother and the father suggest that that is the case. I am more than satisfied that there are no issues of abuse or violence or evidence otherwise that would satisfy me that that would not be the appropriate course and therefore I intend, obviously, to make orders with regard to equal shared parental responsibility.
What flows from that then is the requirement, that if the presumption is to be applied, then the Court must consider pursuant to the provisions of section 65DAA whether equal time with each parent would be in the child's best interests and is reasonably practicable, and if equal time is not appropriate, then the Court must consider whether substantial and significant time would be in the child's best interests and is reasonably practicable.
Quite clearly it is in the children's best interests that they should have the opportunity for a meaningful relationship with both of their parents. The mother says that that simply is not able to be properly put into effect because of the fact that she, because of financial considerations, is living in [X], a distance of an hour or mores travel away. I am mindful however, as I must be, of the fact that the mother was made clearly aware of the father's objection in relation to relocation.
The parties may have attended mediation and been unable to reach agreement, but what is abundantly clearly is that there was a proper course to follow. In fact, the mother was made aware of the fact that there was a proper course to follow. She acknowledges in her own material that she was advised not to make the move and yet subsequently, and it would appear virtually on the day that the move was to occur, notification was given by way of correspondence forwarded from her solicitors to the father, of the fact that the move was to be made.
The correspondence from the solicitors to the father was on 26 October 2007 and I note that 26 October 2007 was a Friday. By normal course of mail the correspondence could not have been received by the father until Monday, 29 October 2007 and the mother had already moved. She moved precipitously and she moved without the father's knowledge. She explains, in the correspondence that was forwarded, that although she had been actively looking for rental properties in the same price range she is currently renting, she has been unable to find any such property to rent.
It goes on. Therefore she has no option but to move to [X] where she has the support of family and also the added benefit of lower rental than in Townsville. All of that may be correct, but the greater consideration and the paramount one that is always before this Court is, of course, the children's right to, as is set out in section 60CC(2), a meaningful relationship with the father.
The mother's actions preclude that from occurring. It may be that the father was, for a period of six months or so, only having time with the children on alternate weekends but the past is by no means the determinant of what must happen in the future. The parties were in mediation. They were, at least from the father's perspective, seeking to move toward more liberal time with the children. The law says that that must be the consideration of the Court and there is no basis upon which I would consider that that should not be the appropriate course to follow, in relation to the matter.
I must say that what also troubled me in relation to the correspondence of 26 October 2007 is that the mother sets out what she says are circumstances that mean that she cannot remain living in Townsville, notwithstanding the father's objection, and yet on the second page of the correspondence there is a paragraph, no doubt forwarded upon instructions, in these terms:
We note that you were to spend time with the children on the weekend commencing 26 October 2007. However, you contacted [Ms Hannan] and advised her that it was not convenient for you to spend time with the children then and you demanded that she swap weekends to the effect that you would then spend time with the children on the weekend commencing 2 November 2007. We hereby put you on notice that our client does not consent to swapping weekends and therefore, given that you did not wish to spend time with the children on the weekend commencing
26 October, your next weekend with the children will commence at 5 pm on Friday, 9 November 2007.
The mother cannot have it both ways. She cannot fail to a consent in relation to arrangements with regard to weekends and yet then demand that her wishes, unilaterally made in relation to arrangements with regard to where she should live, should abide. I am not at all satisfied that there was not an alternative arrangement that might possibly have been made. It may not have been the most convenient, but the overriding consideration is the welfare of the children and their right to a meaningful relationship with both parents. The mother's actions preclude that.
I am mindful, obviously, of the other matters set out as additional considerations in section 60CC(3) and, of course, considerations with regard to the move. In particular, of course, the mother has, along with the children for some three months, now been residing in [X]. The older of the two children, [S], has attended school and [J] is commencing today prep school or the equivalent.
The fact is, however, is that the father's objections were known. They were recorded from the very beginning and because of the work load before the Court it was impossible for it to be dealt with more quickly than has now occurred. The mother has acted unilaterally. The consequences of the actions fall upon her and no one else. It was inappropriate in the extreme that she acted in the way that she did. It would be inappropriate in the extreme for the Court to allow the unilateral actions to stand particularly when, in my assessment, there is nothing that would preclude the father from being very significantly and appropriately involved in these children's lives.
I intend, for those reasons therefore, to make orders with regard to the children's residence in Townsville. I note the indication is given to the effect that the mother would, notwithstanding difficulties associated with her doing so, return to Townsville. As I indicated, the fact that she may have difficulties returning from [X] is as a direct result and solely as a result of the actions taken by the mother contrary, it would appear, contrary to indications and advices given to her.
The appropriate course therefore is that until further the following orders should apply:
ORDERS DELIVERED
RECORDED: NOT TRANSCRIBED

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Coker FM

Associate: C Herbst

Date: 14 February 2008