Heaton and Heaton

FAMILY COURT OF AUSTRALIA

HEATON & HEATON

[2014] FamCA 761

FAMILY LAW – CHILDREN – Whether the mother be permitted to relocate the children’s place of residence from Sydney to the Mid North Coast of New South Wales – Nature of the children’s relationship with each parent – Likely effect of change – Best interests.

Family Law Act 1975 (Cth) ss 60B , 60CA , 60CC, 60CC(2), 60CC(3), 61DA, 65DA(2), 65DAA(1), 65DAA(3)

G & C [2006] FamCA 994
Godfrey & Sanders (2007) FamCA 102
Goode & Goode [2006] FamCA 1346
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

APPLICANT:

Ms Brown (formerly Heaton)

RESPONDENT:

Mr Heaton

FILE NUMBER:

NCC

1835

2010

DATE DELIVERED:

5 September 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Sydney

JUDGMENT OF:

Hannam J

HEARING DATE:

3, 4 and 5 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Graham

SOLICITOR FOR THE APPLICANT:

Byrnes & Cox Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Sansom

SOLICITOR FOR THE RESPONDENT:

Watts McCray Lawyers

Orders

All previous Orders in respect of E Heaton born … 2004 and J Heaton born … 2005 (“the children”) are discharged.
The parents are to have equal shared parental responsibility for the children and are to confer with each other as to decisions concerning the long term care, welfare and development of the children, including but not limited to, their education, religious and cultural upbringing, health, name and any further proposed changes that make it significantly more difficult for the children to spend time with a parent.
The children are to live with the Applicant mother.
The children are to spend time with and communicate with the father as follows:
(a)During the school term on two weekends, being at the end of week three and week eight from 6.00 pm Friday until 4.00 pm Sunday with the mother to deliver the children to and collect the children from the McDonalds Family Restaurant at …, at the commencement and cessation of each such period.
(b)At any time in Town P that the father is able to facilitate, provided the father gives to the mother fourteen (14) days’ notice of the intention to exercise such time.
(c)For one half of each New South Wales Gazetted school term holiday period at the conclusion of term 1, term 2 and term 4 as agreed or failing agreement the first half in odd numbered years and the second half in even numbered years.
(d)For all of the New South Wales Gazetted school holidays for the period at the conclusion of term 3.
(e)For the purposes of time in holidays under (c) and (d), changeover is to occur at the McDonalds Family Restaurant at…
(f)The father is to have liberal telephone communication with the children as agreed between the parties.
(g)At other times by mutual agreement.
The parties are to authorise the Principal of the school attended by the children from time to time to provide to the other party upon issue copies of each school Report, school Newsletters, school photographs, any other Reports on progress and/or performance at school, details of any behavioural issues and any notification to parents of events affecting the children and events to which parents are normally invited including Parent/Teacher nights and sporting and social occasions, and service of a copy of the sealed Orders upon the Principal of the school shall be sufficient compliance with this Order.
Both parties are to keep the other informed of a telephone contact number and residential address at all times and where there is any change of such number and/or address the party whose number and/or address is changed is to notify the other party within twenty four (24) hours of the change.
Each party is to telephone the other as soon as practicable upon the happening of any of the following:
(a)       Either of the children becoming seriously ill.
(b)       Either of the children becoming hospitalised.
(c)       Either of the children being involved in an accident.
Pursuant to Section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a party contravenes these Orders are included in these Orders, annexed hereto.
All outstanding applications and cross-applications in respect of the children are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Heaton & Heaton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCC 1835 of 2010

Ms Brown (formerly Heaton)

Applicant

And

Mr Heaton

Respondent

REASONS FOR JUDGMENT

Introduction

The parents of E, who is 10, and J, who is almost nine, cannot agree about their future care. Following the parents’ physical separation the children have remained in their family home in C, a suburb of Sydney, with their parents caring for them under various arrangements.
After the completion of the parents’ property dispute, in July 2012 the mother was required to leave the family home. Since then the children have lived in a “week about” equal time arrangement with their father caring for them each alternate week in their home. In each alternate week, the mother travels from Mid North Coast and cares for the children in a serviced apartment near the family home.
The father proposes that the current arrangement, being “week about” in Sydney continue, so that the children may remain living in the C area. The mother wishes to have the children live with her in Town P on the Mid North Coast and spend regular time with their father in both Sydney and the Mid North Coast.
I must make orders concerning the children’s parenting arrangements that are in their best interests.

Background

Mr Heaton (“the father”), who is 46, and Ms Brown (“the mother”), who is 44, met in about 1997 when they were in their late 20s, in Town P where they were both living and where the father was working. The father returned to work in Sydney and the parties were married in Town P in September 2000. After the marriage, the mother moved to Sydney and the parties began to live together.
The mother was in paid employment until just before the child E’s birth in 2004. The child J was born in 2005.
During the marriage the family was a traditional one in the sense that the mother was the main carer for the children and attended to their everyday needs, while the father worked full-time, often for lengthy hours, and was less involved in the children’s day-to-day care. As the children grew older, the father was involved in some of the children’s school activities and extracurricular activities. The marriage was, for some time, a happy one.
In about October 2009 the parents separated but continued living in the family home and caring for the children. From this time the mother continued to be the main caregiver, though the father did provide some assistance. Both parents recognise that this was a difficult time and, although the mother alleges that the father was somewhat verbally abusive to her, neither parent makes any allegation against the other in relation to parenting capacities or skills and each acknowledges that the other parent maintained a loving and caring relationship with the children.
In July 2010 the mother filed an Initiating Application, commencing the first stage of the proceedings, seeking similar orders to those being sought at this hearing.
There was a dispute between the parents concerning the mother taking the children to the Mid North Coast at Christmas in 2010 without having prior discussions with the father. When the father then also travelled to the Mid North Coast there was an incident involving the father and the extended maternal family. On 21 December 2010, the father was charged with assaulting the maternal grandfather and an Apprehended Violence Order was sought for the protection of the maternal grandfather and the children. As I understand it, the father consented to the Apprehended Violence Order being made but challenged the criminal charge.
After the mother spent Christmas 2010 with the children in Town P, the father then spent time with the children and other members of his extended family on the Gold Coast in January 2011.
On 23 February 2011 the charges against the father were dismissed in the Local Court and no further apprehended violence order was sought.
In about March 2011 the mother commenced a relationship with Mr T, who resides in Town P. Mr T is divorced and has a 14-year-old daughter who resides in Town P and spends time with him there. Mr T has regular contact with the children when they are in Town P and has been assessed by the Family Consultant, who raises no concerns about him.
In July 2011 the hearing in the first proceedings commenced and was adjourned part-heard to December 2011. During the period of adjournment, orders provided for the children to be cared for in an arrangement known as a “nesting order”, whereby they remained in their home and their parents moved in and out on a weekly basis to care for them separately. The hearing continued in December 2011 and was adjourned for Judgment. During this adjournment the nesting Order continued in relation to the children.
There was an incident at the home between the mother and the father’s sister on 18 March 2012 in which each alleges they were assaulted by the other.
Final Orders were made on 23 March 2012 in respect of both parenting and property proceedings. Under the orders the mother was required to move out of the home by July 2012. The orders also provided that the parents had equal shared parental responsibility for the children, the children were to continue attending their current school and, if the mother lived within a 15 km radius of the school, the children were to live with their mother and father each alternate week, that is, on a week about, equal shared basis.
The parties were divorced on 12 August 2012
The mother appealed against the parenting Orders and the appeal was heard on 23 August 2012. The mother’s appeal was successful and the matter was remitted for rehearing in the Federal Circuit Court but was subsequently transferred to the Family Court.
Following the appeal the “week about” equal shared parenting arrangement continued pending this hearing.
Since July 2012, on the week in which the children live with their father they remain living in their family home and during the week that they are cared for by their mother, they live in a serviced apartment a short distance from their family home. The children have continued to attend the same school.
When the children are living with their father he generally takes them to school prior to going to work and on school afternoons he collects them from school one to two days per week. On the other three to four days, the paternal grandparents who live nearby collect the children from school and take them to their home and care for them until the father arrives home at around 6.00 pm. Sometimes other family members, particularly one of the father’s two sisters, who also live nearby, care for the children after school and on occasions where the father may require their assistance such as during school holidays.
When the children are living with their mother at the serviced apartment she takes them to and from school and participates in some activities with them after school. The mother does not require the assistance of any other person in caring for the children.
The children participate in sport on Saturdays and the parents cooperate so that each parent takes one child to his or her sport during the week they are in the mother’s care. During the week that the children are in the father’s care the father’s family assist in taking the children to sport.
During the week that the children live with their mother the father works longer hours starting earlier and leaving later. His employer is described as “fully supportive and flexible to accommodate the children’s needs.”

The competing proposals

Each of the parents wishes to continue having equal shared parental responsibility for the children.
It is the mother’s proposal that the children relocate to reside with her in Town P and that they spend time with their father during the school term, both in Town P and in Sydney. It is also her proposal that the children spend time with their father during school holidays.
The mother proposes, if the children were permitted to live in Town P, that they initially live with her in her parents’ home or with her and Mr T. It is the intention of the mother and Mr T to marry in the next 12 to 24 months and to purchase a home together large enough for all of their respective children to each have their own bedroom. The mother does not believe that it will be necessary for her to resume paid employment, but if she does seek work it will be during school hours only. The mother’s parents who live in Town P are both fit and well enough to assist in the care of and supervision of the children, if required.
The mother’s proposal changed slightly in the course of the hearing with the result being that she proposes that the children spend time with their father for two weekends in each school term in Sydney, during any time the father is able to travel to the Mid North Coast and during school holiday periods for a total period that exceeds half of the holiday time.
In the event the children were not permitted to relocate to the Mid North Coast, the mother indicated she would move to live in Sydney herself. In this event, it is her proposal for the children to live with her and to spend alternate weekends from Friday after school to Monday morning with the father, as well as half of school holiday periods with the father.
The father’s proposal is that the mother should not be permitted to relocate the children to any place outside their present schools’ catchment area and that they should live in Sydney in a “week-about” arrangement with himself and the mother. In the course of the hearing the father also addressed his position in the event that the mother is permitted to have the children live with her in Town P concerning the children spending time with him. If this were to eventuate he proposes that they spend time with him in Sydney each third weekend during school terms from 7.00 pm Friday evening until 5.00 pm Sunday, on any other weekend during school terms in Town P that he is able to travel to Town P, for half of the term one, two and Christmas school holiday periods and the whole of the holiday period at the conclusion of term three and other special days.

The Law And Discussion

The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects 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 interests 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.
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).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations

The primary considerations (under s 60CC(2)) are:-
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

Will the children receive the benefit of having a meaningful relationship with both of their parents under the proposed orders?

The meaning of the phrase “meaningful relationship” is not defined in the Act itself. However, the Full Court in McCall & Clark[1] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[2] and has also agreed with the reasoning of Bennett J in G & C[3].
[1] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[2] (2007) Fam LR 518
[3] [2006] FamCA 994
Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
Her Honour also said that “meaningful” is a qualitative adjective, not a strictly quantitative one.
Bennett J discussed the terminology in G & C (supra) and said “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).”
In this case there is no doubt that a meaningful or significant relationship with each of the parents will continue to advantage these children. However, it is central to the father’s case that it will not be possible for the children to maintain a “meaningful relationship” with him under the mother’s proposal as it will significantly reduce the children’s time with him and his involvement in their daily lives. In developing this submission great emphasis was placed not only on the reduction of time the children would spend with their father under the mother’s proposed orders but on the absence of day-to-day interaction between himself and the children under the mother’s proposal.
The Family Consultant said that under the mother’s proposal “there is a risk that the [the children’s] relationship with their father could be compromised by such a move, particularly if [the father] were to lose touch with the day-to-day details of the children’s social, educational and personal development – the processes that help to maintain close parent-child relationships.” She also said, however, that if the children were to relocate, due to their ages, they each have the cognitive capacity to be able to independently maintain important memories and significant relationships from a distance. The Family Consultant said that in this case, due to the children’s developed language skills and emotional capacity, time-keeping abilities and experiences of family life, “separation from either parent is less critical (than it would be for a much younger child), as long as both parents support their relationships with the other parent and recognise them as important. (which these parents seem to do).” This opinion was not challenged under cross-examination and in my view accords with common sense.

The evidence in my view, does not necessarily support the conclusion that the father would lose touch with the day-to-day details of the children’s social, educational and personal development if they were to move to the Mid North Coast under the mother’s proposal.
Currently, the father is heavily involved in the children’s day-to-day lives given that he is responsible for their care on an equal shared basis. In addition to being responsible for their daily care every second week, the father is also involved in the children’s weekly sporting activities and refers in his affidavit to attending special events associated with the children in each of the years following the making of the first final orders, such as a school welcome barbecue, parent teacher nights and sports presentations and carnivals. The father also referred to assisting the children with their homework, though he later conceded that as the children are collected by his parents three to four afternoons per week he is not involved in assisting with homework on these days. Another activity that the father is involved in exclusively with the children is their religious practice, as he is a practising Catholic and the children attend Mass with him regularly when they are in his care.
Initially, the mother proposed under her orders that the father could spend time with the children on any weekend that he was able to travel to the Mid North Coast provided that he give two weeks’ notice to her. She subsequently amended her proposal so that the father could spend time with the children in Town P on any occasion he is able to visit, that is, not only limited to weekends. The father’s evidence is that he has flexible job and, other than in an emergency when he may be required to take phone calls, he is not required to work on weekends. This evidence was confirmed by his employer. The father said and his employer confirmed that he could access unpaid leave in addition to his annual leave, for the purposes of spending more time with his children.
Under cross-examination, the father was not able to identify any reason that would prevent him from being able to regularly travel to the Mid North Coast. The father earns a significant income, and it was put to him that a flight to Town P would cost around $200.00. There is no evidence that the father has any other regular commitment requiring him to be in Sydney on weekends. There seems no reason why he could not attend the children’s sporting activities in Town P and take them to Mass on each weekend he visits them. With advance planning there also seems no reason why he could not attend activities at the children’s school as the mother’s agreement to him spending time with the children in Town P is not limited to weekends. The father’s employer said that it is the nature of the father’s business that he can plan his time well.
The mother has demonstrated over the past two years that it is possible for a parent to live in a different location to the children but parent them successfully, even on an equal shared basis. There is no dispute that when the mother is in Sydney, residing in the serviced apartment with the children, she has been able to be fully responsible for their care and participate in their day-to-day activities such as after school activities and sport during the time that the children are in her care. Similarly, there is no reason why the father should not be able to participate with the children in their day-to-day activities and care for them whenever he is able to visit Town P.
It is also envisaged under the mother’s proposed orders that the children spend more than half their school holidays with their father and spend two weekends each term with him in Sydney. This would enable them to participate in events related to the extended paternal family.
On behalf of the father it was submitted that McCall & Clarke (supra) and Mazorski & Albright (supra) support the proposition that if the children share anything less than the full gamut of experiences with a parent, the relationship between them will not be meaningful. In my view, these decisions are not authority for this proposition. Further, in McCall & Clarke (supra), in addition to approving the formulation of the expression “meaningful relationship” of Brown J in Mazorski & Albright (supra), the Full Court also referred to the decision of Kay J sitting in the appellate jurisdiction of the Court as a single Judge in Godfrey & Sanders[4] in which his Honour said, in dealing with a mother’s application to relocate [at 36]:
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
[4] (2007) FamCA 102
In this case, although it may be that there will be some diminution of the quality of the relationship between the father and the children should they relocate to the Mid North Coast, having regard to the particular proposal, the father’s capacity to travel regularly to Town P and participate in a range of the children’s activities and these children’s personal attributes and experience, as outlined above, I am of the view that a meaningful relationship between the father and the children will continue to be maintained in these circumstances.
Under the father’s alternate proposal, if the children were to reside with the mother in Town P, the children would also receive the benefit of maintaining a meaningful relationship with both parents.
None of the other alternate proposals in this matter (an equal time order or living with one parent and spending time with the other in the Sydney area) raise any concerns that the children will not be able to maintain a meaningful relationship with both parents.

Abuse, neglect or family violence

This is not a matter where there is any suggestion of the children having been subjected to or exposed to abuse, neglect or family violence.

Additional considerations

Section 60CC(3) sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

The children’s views

This matter is unusual in that the children have expressed not only their views about the competing proposals, but have given the Court a good understanding of their subjective experience of a parenting arrangement over the past three years, which is being sought to be continued by one of the parties.
Both E and J are intelligent and articulate children. According to the Family Report each had drawn their own conclusions that their father’s preference is to live in Sydney with them and that their mother’s preference is for them to live in Town P with her and Mr T.
Each of the children seemed to the Family Consultant to be careful to present both parents in an equally favourable light. According to the Family Consultant both children clearly enjoy spending regular time with each of their parents and want to continue to be able to do so. They also both spoke easily and positively of spending time in Town P and of living in Sydney with either parent, and about spending time with other members of each of the extended families. Neither child is opposed to living in Town P and each seemed to assume that such a move would make their mother happy. The child J also said that he would feel ‘great’ if things were left as they are now, though in an effort to ensure everybody’s happiness he suggested that it perhaps would help if his father moved nearer to Town P and his mother moved closer to Sydney.
Each of the children also described their own subjective experience of the ‘week about’ arrangement that they have experienced for the past two years. The child E described the most difficult aspect about her parents’ separation and this arrangement as being part of two households and having to repeatedly adjust to the different pattern of care each parent provides. She said that the constant moving back and forth between two households sometimes leaves her feeling like she has “no home” and that although the current arrangement is good because she gets to see and spend time with both parents equally, she is “very very very very very sick of it.” The Family Consultant felt that the ‘it’ being described was the ‘week about’ arrangement. The child J also expressed some discontent with the week about arrangement to the Family Consultant saying that he often feels like he “is in a washing machine going forward [and] back, forward [and] back”.
The father did not accept that in making these comments to the Family Consultant, the children were describing their experience of equal shared care in two different households. He said under cross-examination that E’s description of sometimes feeling that she has no home, being sick of “it” and J’s description of feeling as if he is in a washing machine relate to the children’s experience of being frustrated at staying in different rooms at the serviced apartment with their mother, rather than as dissatisfaction with the equal shared care experience.
There is no evidence to support the father’s conclusion that the children were regularly housed in different apartments when in their mother’s care and that this had caused the children to feel frustrated. The Family Consultant said that the children raised no concerns with her about the serviced apartment environment and her clear impression was that the constant moving between households was the source of their complaint. Under cross-examination the father was unable to concede that the children were feeling anything negative about the shared care arrangement or that any feelings of being unsettled were attributable to anything other than the change of serviced apartment. In my view, the mother has consistently demonstrated a greater attunement to her children’s expressed dissatisfaction with the constant changes inherent in an equal shared care arrangement and the orders she seeks takes these views into account to a greater extent than the father.
It has been submitted on behalf of the father that significant weight should be attached to the part of the views of the children that they wish to continue spending regular time with each parent, which he says contraindicate a move to the Mid North Coast. However, it does not seem to be the father’s case that the Court should attach significant weight to the children’s expressed views about the negative aspects of the experience of equal shared care. Submissions on behalf of the mother were that particular weight should be attached to the children’s views concerning the different patterns of care and especially the negative experiences of the cared shared arrangement and less weight should be attached to their views about where they should live.
In my view, the most informative aspect of the children’s views in this matter is their description of their subjective experience of one of the proposals, that of equal shared care between two households. Having regard to the children’s ages and obvious intelligence the expressions of their experiences are likely to be reliable. Despite her negative expression of the arrangement E nonetheless felt that the parenting arrangement should stay the way it is, whereas J suggested that two consecutive weeks with each parent might help him cope better. In other words, although the children still expressed support for a shared care regime, they did not resile from the criticisms about it.
A logical interpretation of the context in which each of the children expressed their feelings about the parenting arrangement, a lack of complaint to the Family Consultant concerning the serviced apartment and the absence of the evidence in relation to the father’s complaint of constant changes to the serviced apartment lead me to conclude that the children’s dissatisfaction is with the constant changing between households inherent in an equal shared arrangement. I attach significant weight to the views expressed by the children about their experience of this parenting arrangement. I also attach some weight to their views about each of the parent’s proposals, but in light of the evidence of the Family Consultant that these children are attempting to broker a peace between the parents as they do not wish to be disloyal or make either of them unhappy, I attach less weight to this aspect of their views.

What is the nature of the children’s relationship with each of the parents and other relatives

The children in this matter each have a secure and well-developed relationship with each of their parents and extended maternal and paternal families. This is not a matter where at any stage, it has been suggested that orders which are in the best interests of the children will turn on this consideration. The Family Consultant said that there were no concerns raised about the nature of either child’s relationships with either parent or Mr T and it was evident that both children love and feel loved by each of their parents.
Although there was some criticism, which in my view is valid, about the failure of the mother in the first proceedings to reveal the true extent of her relationship with Mr T, there is nothing in these proceedings that relates to this matter and no evidence to suggest that there is anything untoward in the relationship between the children and Mr T. Whilst it is clear that the children are still getting to know Mr T, so that the sustainability of the blended family proposed by the mother in Town P is untested, the Family Consultant had no concerns about the children’s relationship with Mr T and nothing concerning was raised otherwise in the proceedings.

Willingness and ability of each parent to foster a close and continuing relationship between the children and the other parent

As these proceedings were commenced prior to June 2012, one of the best interest considerations is the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent. It is contended on behalf of the father in relation to this consideration that there were some instances where the father was not informed about some of the decisions made by the mother, which he would have expected, particularly in a case where the parents are exercising joint parental responsibility. In my view, these examples do not relate to the issue of the mother’s willingness or ability to foster a close and continuing relationship between the children and the other parent, but relate more to the parents’ capacity to keep the other parent informed about decisions related to the children.
The Family Consultant was of the view, and it was not contradicted by any evidence, that despite the tension in the parental relationship which was described by the Family Consultant as “at times palpable”, both parents have demonstrated the ability to contain themselves and remain focused on the children. Despite their differing attitudes towards some aspects of each other’s parenting, the parents have been able to support the children’s relationship with the other parent.
The mother has, initially through her own choice and later as a result of court orders, endured an arrangement which she regards as less than ideal from her personal perspective for almost five years. Despite her personal unhappiness there is no evidence to suggest that she has sought to undermine the orders in place and through these arrangements the children have been able to have a continuing and close relationship with both parents and both have been involved in the children’s every day care. The change to the mother’s proposal in the course of the hearing so that the father can be involved in the care of the children whenever he is able to travel to Town P demonstrates in my view, a continued commitment to supporting the relationship between the children and the father.
In continuing to propose an arrangement whereby the children are cared for by both parents the father likewise shows an ability and willingness to support the continued relationship between the children and their mother. The parents’ proven capacity to exercise joint parental responsibility over the past five years, despite the obvious stress and tension involved in their situation, demonstrates their mutual support for the relationship between their children and the other parent.
The parents’ capacity to help each other on a practical level, such as sharing the responsibility to take the children to sport on weekends when they are in the mother’s care as she has no extended family support in Sydney, also demonstrates their ability to focus upon meeting the children’s needs to have a good relationship with both parents and augurs well for the future. This is important, as in circumstances where the proposal of each parent is so strongly opposed by the other parent, the success of whatever arrangement comes about as a result of the court orders will depend to a very large extent upon how the adults behave.

The likely effect of any change in the children’s circumstances

This consideration is in my view, the most salient of the best interest considerations in this matter.
The father attaches great weight in his views expressed to the Family Consultant, his oral evidence and through submissions, to his contention that the orders proposed by him amount to the least change for the children. He places particular emphasis on the fact that the children will be able to continue to attend their current schools and maintain their friendship relationships under his proposed orders. I agree that it is unlikely that the children’s relationship with their father and other paternal family members would be seriously affected if the father’s proposed orders were made. However, although, it may be superficially easy to draw the conclusion that a continuation of the current orders is unlikely to affect the children in other ways, the overall context of these proposed orders must be considered.
There is no doubt that although both of the parents have been diligent to ensure that the court orders have been complied with to date, the mother has been unhappy with the equal shared care arrangement for many years and only participates in it as she has no alternative. Although the mother may be criticised, to some extent validly in my view, for not having more closely engaged with the possibility that she may not be able to relocate the children to Town P, it is clear that she has done so as she continues to maintain that an equal shared care arrangement is not in the children’s best interests. She has however, to her credit, maintained the position that if she is not permitted to relocate with the children to Town P, she will return to live in Sydney. Although the mother has provided little detail about her plans in this regard, she made it clear that if this were to occur that she would be unhappy, financially worse off and would not have the benefit of the supportive extended family and network of friends that she has in Town P. Although Mr T seems to accept that he will move to Sydney if the mother returns to Sydney, and this will provide some emotional support to the mother, it is clearly not his preferred position.
Under cross-examination, the mother said she had looked into buying a home in areas such as Blacktown or Penrith for her and the children, or possibly near Parramatta. She indicated on a number of occasions that she would not be able to afford to buy any property in the Suburb C area, where the children reside. Although this may mean that the children would have to move to a different school if they were to live with her in Sydney, the mother conceded she had not made any enquiries about alternate schools because she was hoping the children would be allowed to relocate. When interviewed by the Family Consultant for the purposes of the Family Report, the mother said that she doubted that she could afford to live in or near the former family home, and if she were required to remain in Sydney she would anticipate living in Penrith, or the western suburbs or possibly the Central Coast.

The mother had also not made enquiries as to employment opportunities for herself in Sydney.
The mother said she and Mr T had only briefly discussed the possibility of the children not being permitted to relocate to the Mid North Coast and her and the children remaining in Sydney. She said it was uncertain if Mr T would be able to live in Sydney because of his work and as his daughter of a previous relationship and his elderly mother lived in the Town P area.
On the unsatisfactory state of the evidence, I am of the view that any order which effectively required the mother to reside in Sydney (including the father’s equal time proposal) could amount to significant change for the children that may be detrimental to them. If the mother cannot afford to rent or buy a home within reasonable proximity to their current home, they may be required to change schools and would lose the essential advantage of such an arrangement. If the mother were able to find accommodation near Suburb C, she would be most likely required to find full-time employment for financial reasons. If this involved her working outside of school hours she would not be available to care for the children during that time. As the mother has no extended family available to assist she may be required to obtain formal care which would not only be an added expense, but the children would lose the advantage of their mother caring for them.
The children are already aware that their mother wishes to live in Town P and will undoubtedly appreciate that if orders are made as the father seeks, that the mother will be even more unhappy. I also accept the evidence of the Family Consultant that these parents have been locked in a power struggle for a number of years, that they are each unyielding in their respective positions, and whatever orders are made will result in one parent being very unhappy. I also accept the evidence of the Family Consultant that mitigating the impacts for the children under any of the proposed orders largely depends upon the behaviour of the adults in their lives. In other words, in the event that the orders were made as sought by the father, the impact upon the children of the current arrangement continuing against the mother’s wishes will very much depend upon how the mother accepts and lives with the arrangement, and whether or not the father treats it as a victory in his power struggle against the mother and affects the way in which he relates to the mother as a result. As previously indicated, the mother has demonstrated that she has the capacity to make an arrangement work effectively even though she opposes it, which predicts to some extent her capacity to continue to do so in the future.
The circumstances that would be brought about if the orders proposed by the mother are made obviously involve a great deal of change for the children. They would be required to live in a new location and establish themselves with new peers, at a new school and in new activities. The children are however familiar with Town P and have good established relationships with their extended maternal family there. There is nothing about their psychological functioning that would suggest that they would not adapt to a new home and school. The mother’s proposed orders also involve the children commencing to live with Mr T and the sustainability of a new blended family is untested. However, Mr T has been known to the children for some time and no concerns about him have been raised.
The children would have one home under the mother’s proposed orders which would eliminate the negative aspect of constant change in housing and different patterns of care each week. Further, at a practical level, as the mother does not intend working outside of school hours, or possibly at all, if the children are permitted to relocate to the Mid North Coast, she will be available to attend to all of their after-school activities herself. Although the father was reluctant to concede that there would be benefits for the children in having their mother available to care for them after school, he ultimately said that it was “maybe” preferable for the children to spend more time with their mother after school hours than be cared for by extended family members. The Family Consultant also agreed that all other things being equal, if a parent was willing and able to care for a child after school that this would be preferable to being cared for by extended family members.
Despite some of the identified advantages in the mother’s proposal, there is no doubt that the move to Town P would be a significant change for these children. Having regard to the close involvement of the father in the children’s every day care from the date of separation, they would undoubtedly feel some sadness and loss associated with the reduction in time with their father and the extended paternal family who are currently significantly involved in their everyday lives.
Once again, to a very large extent, the impact of the change in circumstances upon the children will be dependent upon adult behaviour. The Family Consultant said that it will be important for both parents to shield the children from their own feelings. She said that the father could assist by letting the children know that he is managing and for the father to go to Town P and spend time with the children in their own environment. She also stressed the importance of both parents providing a united front. Accordingly, as I previously noted in respect to the father in the event that he is successful in obtaining the orders that he seeks, if the mother obtains the orders she seeks it is important for the sake of the children that she does not treat this as a victory in her power struggle with the father. The father’s capacity to manage orders with which he does not agree is untested though there is nothing to suggest that he is not capable of doing so.
In summary, the children will be impacted by whatever decision is made though to a very large extent the level of this impact is in the hands of the parents, particularly the parent who is not successful in the proceedings.

Practical difficulty or significant expense in spending time with and communicating with the other parent

Under the father’s proposed orders the parents would equally share the care of the children, so this consideration does not arise.
Under the mother’s proposed orders the parents would share the expense associated with the children’s time with their father on two weekends during the term and during school holidays while the father would bear the expense of travel to and accommodation in Town P.
The father had unfortunately not explored the possibility of a regular travel to Town P prior to the hearing. Under cross-examination, the father said he had not looked into the cost of flights, then claimed that he could not afford to fly to Town P and back on weekends and seemed oddly enough, to insist that he would prefer to take the journey by car. However, ultimately it was not suggested on his behalf that he was impeded in regularly travelling to Town P on the basis of expense or practical difficulty.
The mother raises a real issue of the relative cost of living in Sydney compared to the Mid North Coast in the event that she was effectively required to live in Sydney to give effect to orders that the children live with or spend time with her. Although there is scant evidence on this issue, I accept her submission that there are much greater costs associated with living in Sydney than the Mid North Coast.

Capacity of each of the parents and any other person to provide for the needs of the children

The parents of the children have demonstrated great capacity to provide for the children’s needs to date. They are diligent and capable parents who have remained focused on the needs of their children in difficult circumstances.
It is an alternate proposal of the father’s that the children reside with him in Sydney and spend time with their mother, if the Court finds that it is not in their best interests to be cared for in an equal shared care arrangement. I am of the view that the father would not be in a position to meet all of the children’s needs if such orders were made.
Under the current arrangements the father cares for the children with some assistance from his extended family, especially in the afternoons after school and during holidays. He also makes necessary arrangements to ensure that any interstate or occasional overseas travel occurs during the weeks the children are in the mother’s care. During the alternate week when the children are in the mother’s care the father works long hours to make up the work hours he misses during the week that the children are in his care.
The father maintained that he is able to balance his employment and the care of the children under the current regime. He initially did not agree under cross-examination that it would be impossible for him to care for the children if they lived with him full-time. Ultimately, after being pressed under cross-examination about the details of his work commitments, the father agreed that if he did have work commitments and was unable to attend to the needs of the children he would rely upon one of his sisters or his mother.
Submissions made on behalf of the father that the mother has been deficient on occasions in keeping the father informed of decisions relating to the children and has allegedly involved the children in the parents’ dispute, were couched in terms of the mother’s incapacity to meet the children’s needs.
So far as failing to inform the father of decisions is concerned, many of the examples relied upon relate to events that occurred many years ago, including during the particularly difficult immediate post separation period. Others, in my view, relate to quite trivial issues. In other cases the decisions made by the mother were uncontroversial and not objected to by the father, such as allowing the child E to have her ears pierced or J receiving minor dental work. The basis upon which these examples are said to demonstrate that the mother has an incapacity to meet the children’s needs is unclear.
In my view it is of much greater significance and to the credit of both of the parents that despite the significant difficulties in communication style and five years of tension between them they have demonstrated the capacity to make sound decisions to meet their children’s needs.
There are no particular issues of maturity, sex, lifestyle and background relating to these children, which require consideration. The children do not identify as aboriginal or Torres Strait Islander. There are no allegations of family violence in this matter.

Attitude to the children and responsibilities of parenthood

It was submitted on behalf of the father that the mother had not managed to keep the children shielded from the parental dispute and as I understand it, this submission related to the mother’s attitude to the children and the responsibilities of parenthood. In a similar vein to the submissions made in relation to the failure to communicate certain decisions, in my view, the example relied upon by the father is relatively trivial and occurred reasonably close to the post separation period. Further, the father has also made some regrettable remarks in the presence of the children, concerning the dispute.
Overall, however, the Family Consultant was of the opinion, which I accept, that whilst there is a level of tension and disagreement between the parents, the parental relationship is not a central issue in this matter. The parents have under challenging circumstances, to their credit, continued to make a concerted effort to shield the children from their relationship and communication difficulties. I am of the view that both parents have shown a commendable attitude toward their parental responsibilities.

Institution of further proceedings

In my view it is generally preferable to make orders that would be least likely to lead to the institution of further proceedings in relation to children. In this case the children have been the subject of proceedings between their parents for the last four years including two fully contested parenting proceedings.
As each of the parents holds an intractable position about the advantages of the orders proposed by themselves, the main issue is that, regardless of the outcome, one of the parents will be unhappy and may even seek to challenge the final decision again. It is not possible to frame orders that would lessen the likelihood of the unhappy parent appealing the decision. Apart from this, there is no particular suite of orders which will be least likely to lead to further proceedings being instituted.

Parental responsibility

The parents in this matter seek an order of joint parental responsibility. Further, s 61DA provides that when making a parenting order in relation to a child (except in certain circumstances which do not apply in this case) the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Accordingly, an order of equal shared parental responsibility will be made

Is it in the best interests of the children to spend equal time with each parent?

Section 65DAA(1) of the Act provides that if the Court is to make a parenting order which provides for the child’s parents to have equal shared parental responsibility for the child, the Court must consider whether the child spending equal time with each of the parents would be in the best interests of the child and whether such an arrangement is reasonably practicable. If such an order is considered to be in the child’s best interests and reasonably practicable, the Court must consider making an order to provide for the child to spend equal time with each of the parents. In McCall and Clark (supra) the Full Court referred to the earlier Full Court decision in Goode & Goode[5] [at 64] that the meaning of the word “consider” in this section “suggests a consideration tending to a result, or the need to consider positively the making of an order if the conditions [in s 65DAA(1)(a) and (b)] are met”.
[5] [2006] FamCA 1346
In this matter the orders proposed by the father are for the children to spend equal time with each of the parents and it is his position that such orders are in the children’s best interests and are reasonably practicable. The mother’s position is that such an order is not in the children’s best interests, nor is it reasonably practicable.
In supporting the equal time orders he proposes, the father relies, in particular, upon the children maintaining a meaningful relationship with each of the parents that he says is best promoted by the children spending equal time with each parent. It is submitted on his behalf that as the children have a strong and loving relationship with each of the parents, which has developed out of the equal shared care arrangement implemented since the date of separation, this arrangement should continue. Further, according to the father, the crux of the issue is that under an equal time arrangement each parent has daily interaction with the children, which does not exist under any other arrangement.
Although all of the mother’s proposed orders (that is whether she is permitted to relocate the children to Town P or not) involve the children living with her and spending less than equal time with their father, the submissions made on behalf of the father focused more on opposing the relocation, than on the mother’s contention that an equal time arrangement itself is not in the best interests of the children.
Central to the mother’s submission that equal time is not in the best interests of the children is that the children’s experience of this arrangement has not been completely positive and that in particular each of them does not like the constant moving between households involved in an equal time arrangement. Although there is no doubt that the children wish to continue having each of their parents significantly involved in their care, it is submitted that an equal time arrangement is not the only way to achieve such an outcome and is not in this case in the best interests of the children.
In my view, in a matter such as this where the Court has actual evidence about the children’s subjective experience of an arrangement under consideration, as opposed to speculating about it, significant weight should be attached to the children’s description of that experience if it is regarded as reliable. For the reasons previously indicated, I am of the view that the children’s description of their experience is likely to be reliable and I attach significant weight to each of their experiences that there are negative aspects of being part of two households, having to repeatedly adjust to different patterns of care provided by each parent, and constantly moving between the households.
Under cross-examination the father’s counsel sought to have the Family Consultant agree that the close relationship the children share with their parents is a result of the equal shared care arrangement they had experienced. The Family Consultant only partially agreed with this proposition and said that parental attunement, responsiveness and cooperation and the relationship between the parents underpins a child’s sense of security rather than equal time with each parent. She said that there are a lot of children that have very good relationships with a parent, even though they don’t spend equal time with that parent. She also said that although such an equal time arrangement allows children to feel they have both parents involved in their lives, it doesn’t have to be an equal time arrangement for that to happen.
I accept the submission made on behalf of the mother that the circumstances in which the equal time arrangement came about were such that they were imposed upon the mother in particular, rather than chosen by the parents due to the agreed advantages of such an arrangement. The circumstances in which the equal time arrangement came about included the initial decision the parents made to continue to jointly parent the children in the former family home while separated, and was followed by the “nesting order” made by the Court during the adjournment of the last proceedings. Ultimately the equal time arrangement that was ordered following the first proceedings continued, even though the mother was successful in her appeal and a re-hearing of the parenting proceedings was ordered.
I am of the view that although the combined qualities of the parents has resulted in well-adjusted children who have a strong and loving relationship with each of them, this is attributable to each of the parents having played an active and committed role in the care of the children, rather than to the actual form of the parenting arrangement itself. When particular regard is given to the actual experience of the children under this form of parenting arrangement I cannot conclude that an order for the children to spend equal time with each of their parents is in the best interests of these children.
Having considered that an order that the children spend equal time with each parent is not in their best interests, the Act then requires me to “consider” whether the children spending “substantial and significant time” with each of the parents would be in the children’s best interests and is reasonably practicable.
Subsection 65DAA(3) sets out that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with a parent includes both days that fall on weekends and holidays and days not falling on weekends and holidays, and allows the parent to be involved in the child’s daily routine and occasions and events of particular significance to the child and the parent.

Is it in the best interests of the children to spend substantial and significant time with each of their parents?

Having regard to the history of these children’s care experience, the nature of their relationship with each of their parents, together with the views of the children, I am of the view that it is in their best interests to spend substantial and significant time with each of their parents.
The disadvantages associated with an equal time parenting arrangement, particularly the absence of a single established home and constantly moving between two households does not arise under orders whereby the children live with one parent and spend substantial and significant time with the other.
In this case, the proposal of the mother for the children to live with her in Town P and for their father to spend time with them in Town P and Sydney during term time and for more than half of the school holidays is the only order proposed by the parents that provides for this arrangement. It is not proposed under this scenario that the children spend time with their father on a consistent particular non-weekend day. However, given the flexibility the father has in his working arrangements, and the mother’s proposal that the children spend time with their father whenever he is able to visit the Mid North Coast, combined with the father’s clear desire to attend the extra-curricular activities in which the children will be no doubt involved, the mother’s proposal will allow for an arrangement that fits within the definition of “substantial and significant time”.
It has not been submitted that the mother’s proposal would not be reasonably practicable. Although the father had not given much thought to the details of the mother’s proposal and attempted under cross-examination to suggest that the uncertainty of events would make it difficult to plan several months ahead, he was unable to give details of this difficulty and his employer said that nature of the job allowed for the father to plan well. Ultimately it was not submitted on his behalf that the proposal was not reasonably practicable. As stated, the father earns a good income and has no other obligations or commitments which interfere with his flexibility to make himself available to travel to Town P regularly. Although there was no evidence before me of the availability of flights between Sydney and Town P, the father’s proposal in his orders that the time he would spend with the children in Town P would commence at 7.00 pm Friday and finish at 5.00 pm Sunday suggests that he had researched the availability of flights and was satisfied as to this issue.
Although such orders were not proposed by either of the parties, other alternatives that could give effect to the children living with one parent and spending substantial and significant time with the other are orders whereby the children live with the father in Sydney and spend substantial and significant time with the mother or live with the mother in Sydney and spend substantial and significant time with the father.
As discussed previously in these Reasons, the father does not have the capacity to have the children live with him full-time and to care for them without significant input from his family members. Even if the children were to spend substantial and significant time with their mother, the father’s work commitments are such he is only able to care for the children after school one to two days per fortnight. The father only manages to care for the children full-time during alternate weeks as he makes up the hours lost during his care weeks in the following week by working extended hours.
The mother has made it clear that she could reside in Sydney if required to do so.
The final alternative is that the children reside with their mother in Sydney and spend substantial and significant time with their father. The father did not raise any issues of reasonable practicability with this scenario. So far as the mother is concerned, her opposition to any order which would see her live in Sydney was so entrenched that she did not put forth sufficient evidence for me to conclude that either of these scenarios was not reasonably practicable. In light of her demonstrated capacity to make arrangements to ensure that previous court orders were complied with, I am satisfied that these alternative arrangements would be reasonably practicable.

Conclusion

The children in this matter have found themselves the subject of orders that they have had to live with, but which are not entirely satisfactory. Although the equal shared care arrangement was able to be managed due to the cooperation between the parents, it is not an arrangement that was arrived at by consensus but rather evolved in circumstances not necessarily of the parents’ choosing over a number of years. It is tempting to conclude that despite their differences, due to the level of cooperation between the parents, the children have managed well as a result of this arrangement and it, therefore, should continue. However, the Court must craft orders that allow for the best interests of the children to be met having regard to all of the relevant best interest considerations.
In this matter the primary consideration of the children receiving the benefit of a meaningful relationship with both of their parents is of great significance. The nature of the relationship the children share with their parents and other family members, their views about the time they wish to spend with each of their parents and their experience of the shared care arrangement, together with the likely effect of a change in circumstances upon them are all important additional considerations.
For the reasons given, I am of the view that orders that provide for the children to live with one parent and spend substantial and significant time with the other will most appropriately meet their best interests. Having regard to each of the relevant considerations and weighing up the advantages and disadvantages of all proposed care scenarios, I am of the view that the best interests of these children will be met by the making of orders as proposed by the mother. Although I accept the opinion of the Family Consultant that any of the proposed suite of orders will have some impact upon the children in my view there are greater advantages and fewer disadvantages for these children under the orders proposed by the mother than as proposed by the father or as arising from the circumstances.
The orders that I make are as set out at the forefront of these reasons for Judgment.

I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 5 September 2014.

Legal Associate:

Date: 5 September 2014

[2014] FamCA 761

5 September 2014

Key Legal Topics

Areas of Law

Family Law