Hodge and Hodge

[2009] FamCA 949

FAMILY COURT OF AUSTRALIA

HODGE & HODGE [2009] FamCA 949

FAMILY LAW – CHILDREN - Interim proceedings - Relocation - While the parties were married they lived near Newcastle, New South Wales - Upon separation the mother relocated with the child to Queensland and they have been living with the maternal grandparents - Mother and father to have equal shared parental responsibility - Child to live with the mother and spend time with the father for three consecutive days Sunday to Tuesday not more frequently than once per fortnight and as otherwise agreed
FAMILY LAW – PRACTICE AND PROCEDURE - Transfer of proceedings - Proceedings transferred to the Federal Magistrates Court in Brisbane

Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA

Goode v Goode (2006) FLC 93-286
McCall v Clark (2009) FLC 93-405
Taylor v Barker (2008) FLC 37-461
U v U (2002) 211 CLR 238

APPLICANT: Mr Hodge

RESPONDENT: Ms Hodge

FILE NUMBER: NCC 1801 of 2009

DATE DELIVERED: 18 September 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 18 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Mr Coyle

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Mr Galloway

Orders

(1)The mother and father shall have equal shared parental responsibility for the child, …, born on … May 2008 (“the child”).

(2)The child shall live with the mother.

(3)Each of the parties shall take all reasonable steps to ensure that the child spends time with the father for three consecutive days from 10:00 am Sunday to 4:00 pm Tuesday not more frequently than once per fortnight, and as otherwise agreed.

(4)For the purposes of implementing Order 3 hereof:

(a)The father shall give the mother not less than three days notice of the Sunday upon which the child is to commence spending time with him;

(b)The mother shall cause the delivery of the child to the home of the paternal grandmother at L, Queensland at the commencement of the time that the child is to spend with the father; and

(c)The mother shall cause the collection of the child from the same place at the conclusion of the time spent by the child with the father.

(5)The mother shall maintain a communication book to facilitate communication between the parties in respect of issues related to the child and each party shall relay important information concerning the child to the other by way of written notification in the communication book, which will travel with the child at changeovers.

(6)Both parties shall forthwith enrol themselves to commence, participate in, and complete a post-separation parenting program.

(7)Pursuant to s 65DA(2) and s 62B of the Act, the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

(8)These proceedings are transferred to the Federal Magistrates Court of Australia at that Court’s Brisbane Registry, with the proceedings to be relisted by that Court on a date fixed within that Registry.

(9)The applications for Interim Orders 3 and 4 (relating to Recovery Orders) in the father’s Initiating Application filed on 21 July 2009 are dismissed.

(10)All other interim applications pressed at hearing today are dismissed.

NOTATIONS

A.The Court is informed that the father has already enrolled and commenced a post-separation parenting program with Interrelate.

B.The parties have already initiated the use of a communication book.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1801 of 2009

MR HODGE

Applicant

And

MS HODGE

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1.Three applications are pending before the Court today for interim determination.  Those applications are as follows:

a)The interim orders sought by the father in his Initiating Application filed on 21 July 2009.

b)The orders sought by the mother in her Application in a Case filed on 5 August 2009.

c)The interim orders sought by the mother in her Response filed on 5 August 2009.

2.Each of those applications came before Federal Magistrate Lapthorn in the Federal Magistrates Court of Australia in Newcastle on 10 August 2009.  On that date interim orders were made, but it is plain that they were made for an exceedingly short period of time because the matter was re-listed for interim determination today with priority.  Regrettably, the priority that the matter deserved was not able to be afforded to it before the Federal Magistrates Court.  Accordingly, Federal Magistrate Lapthorn transferred the proceedings to the Family Court of Australia for determination.

3.The parties in the proceedings began their cohabitation in early 2003.  They were married in 2007.  Their child, a daughter, was born to their relationship in May 2008.  That child is now 15 months of age.  The parties separated on 30 May 2009.

4.Before 2006, the parties had lived at M in the Newcastle area in New South Wales.  In 2006, the parties purchased a home at M, New South Wales, and they lived there until the time of their separation.  Upon separation, the father remained in occupation of the former matrimonial home in M, and the mother and the child relocated to Queensland and have been living with the maternal grandparents at their home in the Hervey Bay area since that time.

5.The parties are now in dispute about where the child should live. 

6.There would have been no dispute about the child continuing to live with the mother had she chosen to live with the child in a residence in or about the M district.  The Initiating Application filed by the father on 21 July 2009 contains not only the interim orders to which I have referred, but also a raft of final orders proposed by him.

7.Final Order 2.1(a) proposed by the father is in the following terms:

“If the mother shall return to and remain living within 75 km of the [M] Post Office in New South Wales (“[M]”) [the child] shall live with her mother until 30 May 2010”

8.Final Order 3.2 proposed by the father is in the following terms:

“For so long as [the child] is living with her mother pursuant to Order 2.1(a), the child shall spend time with her father from 9:00 am to 5:00 pm on the Sunday, Monday and Wednesday of each week”.

9.The father now seeks residence of the child because she is too geographically distant in Queensland to spend time with the father with the frequency that the father thinks proper.  For all intents and purposes therefore, this interim contest is a “relocation” case.

10.In U v U (2002) 211 CLR 238 the High Court, by majority, most recently distilled a number of important principles concerning relocation cases.

11.Firstly, the High Court confirmed that it is for the Court and not for the parties to define the issue in pending cases.  If the parties wish to control the issues then they are able to enter into parenting plans.  Once the parties are unable to reach a compromise and the matter is litigated before the Court, the best interests of the child are the paramount consideration in the determination of appropriate parenting orders, irrespective of the competing proposals of the parties.  The Court is not bound to the polarised options submitted by the parties.  In making orders that do not reflect the orders devised by either party neither the judgment or orders are vitiated.

12.Secondly, the High Court noted that the parent wishing to relocate with the child bears no onus of proving the existence of compelling reasons for the relocation.

13.Thirdly, the High Court observed that it is unlikely that relocation disputes will admit of perfect solutions.  Predictions about domestic, marital and social arrangements are matters upon which minds will inevitably differ.  Findings about the child’s short, medium and long-term interests permissibly fall within a wide range of discretion.

14.Fourthly, the High Court stated that it should not be assumed that the non-residential parent cannot, or should not, contemplate moving so as to be nearer the relocating residential parent and child.  The reasons for maintenance of the place of residence of the non-residential parent ought to be explored at the hearing, just as the reasons for the proposed relocation of the residential parent are explored.  It must not be assumed that the residential parent must subordinate their wish to relocate to the wish of the non-residential parent to remain and pursue their life in a place of their choosing.

15.U v U was decided before the amendments to the Family Law Act were introduced by the Family Law Amendment Shared Parental Responsibility Act 2006, which Act was proclaimed to commence on 1 July 2006. 

16.The Full Court of the Family Court has had occasion to reconsider the principles established by U v U, and its own decisions, in light of those legislative amendments.  Such reconsideration was unavoidable because the amending Act altered the process by which the Court makes parenting orders.

17.As was recognised in Goode v Goode (2006) FLC 93-286, there is now a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives both as to parental responsibility and as to time spent with the children.

18.In Taylor v Barker (2008) FLC 37-461, the Full Court confirmed that the proposed relocation of the children to a geographically distant place should be considered as just one of the proposals for the child’s future living arrangements rather than as a discrete issue. The Full Court also held that a relocation proposal must be evaluated not only in the context of findings about what is in the child’s best interests under s 60CC of the Act, but also in the context of s 65DAA of the Act, which mandates consideration of the children spending equal, or alternatively, substantial and significant time with the other parent in the event of allocation of equal shared parental responsibility.

19.More recently in McCall v Clark (2009) FLC 93-405, the Full Court again reviewed the authorities on relocation cases. The Full Court endorsed its statements in Taylor v Barker and confirmed the necessity for the Court to canvass all of the available options, including relocation of the non-residential parent to a place nearer to the relocating residential parent and child.  When weighing the advantages and disadvantages of the competing options, the Full Court made it plain that it is the advantages and disadvantages to the children rather than the parties which are relevant.

20.It is against the background of those principles that the evidence adduced by the parties must be analysed.

21.When making parenting orders, the court is mandated to regard the child’s best interests as the paramount consideration.  The Act specifies with precision the criteria that the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child.  The Court is required to apply a rebuttable presumption that it is in the best interests of the child for the child’s parents to be allocated equal shared parental responsibility for the child.

22.When the Court is asked to make an interim parenting order, as is the case presently, that presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making those orders.  However, the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence, and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child.

23.The legislation makes it clear that the presumption applies to the allocation of parental responsibility and it is not a presumption about the amount of time the child should spend with each parent. 

24.In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents.

25.If the presumption of equal shared responsibility does not apply or is successfully rebutted and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions. 

26.Having acknowledged the law by which I am bound, I turn to consider the criteria under s 60CC by which the best interests of the child are determined.

27.Because these are interim proceedings, the evidence brought by the parties is necessarily abbreviated.  On the basis of the evidence adduced, I accept that the child enjoys a meaningful relationship with both parents.  The meaning of a “meaningful relationship” has recently been considered by the Full Court in McCall v Clark and the Full Court endorsed the view that a “meaningful relationship” is one which is “important, significant and valuable to the child”.  I conclude at this stage that the child has a relationship of that ilk with each of the parents.

28.There are allegations of the child having been exposed to intermittent episodes of violence between the parties.  The allegations are uncorroborated and the allegations made by one party against the other are refuted.  Plainly, the child needs to be protected from any family violence, but in the circumstances I cannot make a finding that she has actually been exposed to family violence in the past.  I am prepared to accept the submissions, expressed or inferred, on behalf of the parties that there is likely no exposure of the child to family violence in the future with each of her parents individually.

29.The child expresses no view about the outcome of these proceedings, which is unsurprising given that she is only 15 months of age and probably has no knowledge of the litigation in any event. 

30.The evidence available does enable me to conclude at this early stage that the child enjoys a positive relationship with each of her parents and other relatives in her life from the families of origin of each parent. 

31.I accept that each party is capable of, and willing to, encourage the child’s relationship with the other.

32.There is no evidence before the Court about the effect upon the child of separation from one parent or the other.  There is no evidence before the Court about the child’s attachments, but that is unsurprising at this interim stage. I nevertheless infer that it would be beneficial for the child to spend reasonably frequent time with each parent. 

33.Self-evidently, there will be enormous practical difficulty and expense in the child spending time with a non-residential parent in the circumstances of this case.

34.The father says that he will remain living and working in the M district of New South Wales irrespective of the outcome of the proceedings.  It is contended on his behalf that the reason for that is the responsibility that he has to continue with the conduct of the business formally conducted jointly by the parties through a corporate entity called D Pty Ltd, a company in which the parties are directors and shareholders.  Conversely, the mother says that she will remain living in Queensland irrespective of the outcome of these proceedings. 

35.Each party has the capacity to provide for the physical, emotional and intellectual needs of the child.  I find that each party is dedicated to the child and that each party has a proper attitude to the responsibilities of parenthood, subject of course to the unsubstantiated counter-allegations of violence yet to be determined.

36.No family violence order exists as between the parties, at least by reference to the evidence adduced to this point in time.

37.I have already dealt with the issue of family violence in the context of the need to protect the child from exposure to it, but there are other salient circumstances that merit consideration in the determination of these proceedings.

38.The evidence enables an inference to be fairly drawn that the parties had been contemplating a move as a family unit to Queensland in recent years.  The mother says as much in paragraphs 12 and 23 of her affidavit filed on 10 September 2009 and she enjoys some corroboration from the maternal grandfather, who deposes at paragraph 16 in his affidavit filed on 11 September 2009, to a conversation he allegedly had with the father to that effect. It is noteworthy that in the affidavit material filed in response by the father in these proceedings he did not squarely dispute that evidence to which I have just referred.

39.It is also uncontested that the families of origin of both parties live in the south eastern corner of Queensland.  The mother’s parents live in V, Queensland, and that is where she presently resides.  The father’s parents are divorced.  The paternal grandmother lives at L in Queensland.  The paternal grandfather lives in N in Queensland.  One of the father’s brothers lives in Brisbane.

40.The mother enjoys the familial support of her parents at this point in time.  The evidence indicates that the mother is currently suffering from a psychological affectation described as “adjustment disorder with mixed anxiety and depressed mood”.  That is a diagnosis of a treating psychologist and the father apparently accepts it.  Without the expertise to diagnose the mother’s condition himself, the father has contended in his evidence, and in submissions by his learned solicitor, that the mother does have some form of psychological or emotional fragility.

41.The mother has limited financial ability to remove herself from Queensland back to the M district.  The uncontested evidence is that the father now controls the company D Pty Ltd for all practical purposes.  That company is the corporate vehicle through which the parties conducted a business, which was the vehicle by which income was generated for the family.

42.In view of the matrimonial separation between the spouses, it is clearly untenable for the mother to return to work with the father in that small business.  On the evidence so far adduced, the mother does not receive either spousal maintenance or child support from the father.  Her only form of income is a Centrelink payment. 

43.As I have already indicated, the father’s documents indicate that he expected that the mother would be the residential parent for the child at least for the next nine months until May 2010, because that is the plain import of Orders 2.1 and 3.2 sought in his Initiating Application for Final Orders.

44.Turning to the question of parental responsibility, as dictated by s 61DA of the Act, as I have already mentioned, there are counter-allegations of family violence and each party denies the allegations made against him or her by the other.  The Court, in determining interim proceedings, is only able to make its determination on the basis of uncontested evidence and inferences that fairly arise.  I am unable at this interim stage to resolve the contentious issue of family violence.  For that reason, I make no finding that it has occurred in the past, and for that reason the presumption of equal shared parental responsibility should at least apply by reason of s 61DA(2).

45.When considering s 61DA(3), the presumption of equal shared parental responsibility is to apply unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied.  I do not come to that consideration or finding.  For those reasons, the presumption continues to apply.

46.I turn to consider s 61DA(4), which provides that the presumption of equal shared parental responsibility may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.  I am not led to that conclusion by the matters I have already canvassed under s 60CC of the Act.  In those circumstances, the presumption of equal shared parental responsibility applies in these proceedings.

47.I pause to note that that is the order for which each party has advocated.  Each party wishes to participate in equal shared parental responsibility for their daughter.

48.Because I intend to make an order allocating equal shared parental responsibility to the parties, s 65DAA of the Act requires me to consider the child spending equal, or alternatively, substantial and significant time with her parents. 

49.I conclude on the evidence that it is not in the best interests of the child to spend equal time with both parents.  Neither parent wants that.  As I have already indicated, the mother wants the child to live primarily with her, and as already adverted to, the final orders proposed by the father in his Initiating Application propose that the child reside predominately with the mother, at least for the next nine months.

50.On the evidence adduced, and on the basis of the submissions made, the father would not be able properly to have the child spend equal time with him in any event because of his commitment to the business. The submissions made on his behalf indicate that he spends five to six days per week conducting the business, which entails work for him both in the field and in the office.  He spends up to five hours per day attending to that business.  It was suggested on his behalf that for any time that the child would live with him, whilst he was working, the child would be cared for by an employee in that business who has children of her own.  In my view, those circumstances are not commensurate with an ability to cater to a child residing with him for equal time.

51.Nor in my view is it practical for the child to spend equal time with each parent, given the stated positions of the parties that they will individually remain in the Newcastle and Hervey Bay districts irrespective of the outcome of the proceedings. 

52.Given that I do not find that it is in the best interests of the child to spend equal time in each household, I am required to alternatively consider the prospect of the child spending substantial and significant time with the father.  In my view it is appropriate for the child to do so, but there are limitations on the practical application of such a living regime. That arises from the limitation on resources of the parties and the geographical distance between the households of the parties.  I therefore intend to make interim parenting orders that permit the child to spend substantial and significant time with the father, within the limits of the parties’ resources.

53.Apart from the parenting orders respectively sought by the parties, the mother has additionally sought an order, the effect of which would be to change the venue of these proceedings from Newcastle to Brisbane.  That application is resisted by the father.

54.Having regard to the parenting orders that I shortly intend to make, these are the obvious facts.  The child will live predominately in Queensland.  The mother lives in Queensland.  The mother’s family lives in Queensland.  The father’s family lives in Queensland.  The father of course will continue to live in the M district.  He additionally relies upon two other witnesses in the proceedings, namely Mr C and Ms E, but the mother’s learned counsel has indicated that neither of those witnesses will be required for cross-examination having regard to the contents of their affidavits.  It may well be that the father intends to call further witnesses on the final hearing as to final orders but at this point they cannot be identified.

55.At present, the mother is not eligible for a grant of legal aid in Queensland where she lives, apparently because of her shareholding in the private corporation which conducts the business which has hitherto been the source of the parties’ income.  Conversely, the father is presently in receipt of a grant of legal aid in New South Wales despite his current control of that corporation and business although, of course, that could change if proceedings are transferred to Brisbane as the mother seeks.

56.Having regard to all of those circumstances, my view is that the balance of convenience favours the proceedings being determined in Brisbane as the venue.  I therefore intend making an order referring the matter to the Federal Magistrates Court at the Brisbane Registry.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin.

Associate: 

Date:  2 October 2009