Hopkins and Higgins
[2008] FMCAfam 984
•12 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOPKINS & HIGGINS | [2008] FMCAfam 984 |
| FAMILY LAW – Children – residence. |
| Applicant: | MS HOPKINS |
| Respondent: | MR HIGGINS |
| File Number: | CAC 2358 of 2007 |
| Judgment of: | Brewster FM |
| Hearing date: | 28 August 2008 |
| Delivered at: | Canberra |
| Delivered on: | 12 September 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Burgess |
| Solicitors for the Applicant: | Legal Aid Office (ACT) |
| Counsel for the Respondent: | Mr Blank |
| Solicitors for the Respondent: | Farrar Gesini & Dunn |
ORDERS
That the parties have equal shared parental responsibility in relation to the child [X], born in 2000.
That whilst the mother continues to reside in Queanbeyan the parties share the care of the child on a week about basis.
That upon the mother’s relocating to Brisbane the following orders will take effect.
That the child reside with the father.
That the mother spend time with the child as follows:
(a)For one half of the first and third midyear school holidays being the first half of holidays in even numbered years and the second half of holidays in odd numbered years.
(b)For the whole of the second midyear holiday.
(c)For four weeks in the Christmas school holidays being the first four weeks of holidays commencing in even numbered years and the last four weeks of holidays commencing in odd numbered years.
(d)On any weekend outside of school holidays if the mother is in the Queanbeyan area at times chosen by the mother. She is to give the father at least 14 days notice of any such proposal.
(e)By telephone each Tuesday, Thursday and Saturday and on Mother’s Day, the mother’s birthday, the child’s birthday and Christmas Day between 6.00pm and 7.00pm Queanbeyan time. If she prefers she may make the call on Christmas Day between 9am and 10am.
That the mother be responsible for the costs of the child travelling from Canberra Airport to Brisbane and return. She is to give the father at least 14 days notice of the flights she has arranged.
That the father may opt to have the child for a single period of up to three weeks in any Christmas school holiday period but in such an event the time the child would otherwise be with the mother is to be made up in the following school year.
That when the mother has the child during the second part of the Christmas school holidays he is to be returned to the father two clear days before school resumes.
That when the child is with the mother in the second midyear holiday or the Christmas holidays she is to permit the father to telephone him each Wednesday and on Christmas Day on the same basis as in Order 5(e) but substituting Queensland time.
A holiday is deemed to extend to cover the whole of the period the child does not attend school. One half of a holiday period is to be calculated by dividing the days the child does not attend school by two. If this is an uneven number the mother is to have the extra day.
IT IS NOTED that publication of this judgment under the pseudonym Hopkins & Higgins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 2358 of 2007
| MS HOPKINS |
Applicant
And
| MR HIGGINS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a dispute in relation to the residential arrangements with respect to the parties’ child [X]. [X] was born in 2000 and is therefore almost 8 years of age. Involved in this dispute is a proposal on the part of the mother to relocate with [X] to Brisbane.
Background
The father is aged 30 and the mother 28. They commenced a relationship in 1997 and separated on 30 November 2001 when [X] was 14 months old. Since separation they have cared for [X] on a shared basis and since mid 2005 this has been on a week about basis.
The mother has re-partnered. Her partner Mr H and she have a child [Y]. [Y] was born in 2006 and is therefore two years of age.
The Parties’ Proposals
The mother proposes that she be permitted to move to Brisbane with [X] and that the father should spend time with him for two weeks each midyear holiday and for half of the Christmas school holidays. She also proposes that there be added to this one weekend each two months. The father’s primary proposal is the mother should remain in Queanbeyan where the parties currently live and that the week about arrangement should continue in place. He proposes that if the mother relocates to Brisbane [X] should live with him in Queanbeyan and spend time with his mother for half of each school holiday period.
Discussion
In resolving this matter I am required to treat [X]’s best interests as the paramount consideration. Section 60CC sets out a number of matters that I am required to consider when assessing what is in [X]’s best interests and I will discuss each part of that section in due course. It is convenient at this stage however if I indicate the reasons the mother wishes to relocate to Brisbane.
As I have already indicated the mother has re-partnered. Her partner Mr H is in the scaffolding industry. In that role he was a sub-contractor to a firm called [B] which ran operations in the Canberra area. [B] however has ceased to operate in the Canberra area and switched the focus of its operations to Brisbane. Mr H proposes to move to Brisbane to continue his association with this firm.
I indicate at this stage that I am not satisfied that Mr H could not obtain employment in the scaffolding industry in the Canberra area. However I am satisfied that the income he can earn in Brisbane is substantially more than that which he could earn if he remained in Canberra.
Mr H is committed to moving to Brisbane, that is he would not remain in Queanbeyan if the decision went against the mother. The mother for her part is equally committed to the move to Brisbane and will relocate there no matter what decision I might make.
This raises an issue which I will discuss and dispose of at this stage of the judgment. The father wishes to remain in Queanbeyan and does not wish to move to Brisbane or the Brisbane area. His roots are in Queanbeyan and this is where his family live. This is where he works. He is involved in [the building industry]. He is not working at present due to an injury but anticipates being able to return to work later in the year. Hitherto much of his employment has been involved in doing sub-contracting work for a Mr G who runs a firm called [S]. When he returns to work he proposes to branch out and, using the contacts he has acquired, do direct contracting work. He anticipates however that he will still do some work for Mr G.
As I have indicated the father does not wish to follow the mother if she relocates to Brisbane. I have already given some of the reasons for this. In addition he would have to start from scratch in the field in which he works. There are naturally some uncertainties as to whether this would be viable. Nevertheless he has indicated that if I were to make an order that [X] should live with his mother and that she should be permitted to relocate to Brisbane he would be prepared, in order to maintain the present relationship he has with the child, to himself relocate. This raises the question as to whether I should resolve the case on this basis, that is that the present arrangement can be continued if I were to make an order that would permit the mother to move to Brisbane. This would force the father to himself relocate if the present shared arrangement were to continue. I am satisfied that a shared arrangement is in [X]’s best interests. Should I resolve the case on this basis?
I considered a similar issue in a case of [T] which on appeal is reported under the name of Taylor & Barker (2007) FLC 93-345. In that case I declined to engage in what I called “social engineering” and tailor my decision with a view to forcing a relocation, in that case of the mother’s partner from Queensland to Canberra. In the present case it is the reverse. The mother’s partner has said that he is relocating to Queensland and no matter what order I make this decision will obtain. I accept that this is the case. My impression of Mr H is that he is committed to earning the best income he can. He migrated from New Zealand to Australia for this reason and in doing so left behind his family of his first relationship. As I say I accept that he will relocate no matter what decision I might make. He is aware of the fact that
Ms Hopkins will follow him and that he will not lose his child. I do not criticise him for his ambition and can understand the motives behind his decision to relocate. But Mr Higgins has different priorities. Should I decide the case on this basis? This would also involve an exercise in social engineering, in this case taking the line of least resistance. I do not propose to engage in such an exercise. I propose to decide this case on the basis that the mother will move to Brisbane and father will remain in Queanbeyan.
I now turn to section 60CC.
Section 60CC divides the matters to be taken into account into primary considerations and additional considerations. There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both his parents. The second is the need to protect the child from physical and psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence.
Neither of these is an issue in this case. In relation to the child having a meaningful relationship with both his parents I am satisfied that a meaningful relationship will continue with the parent with whom he will no longer be living even though he will only see that parent during school holiday periods and perhaps on the occasional weekend.
The additional considerations are set out in sub-section (3). I will briefly discuss each of the paragraphs in that sub-section.
Paragraph (a) refers to any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that I think relevant to the weight that should be given to the child’s views.
The Court has the benefit of a report from a Regulation 7 expert
Dr Barry Schwarzer. Dr Schwarzer reported that when he spoke to [X] he ([X]) expressed a wish to move to Brisbane. Dr Schwarzer commented however that this wish “appeared to be a result of the positive image of such a move that had been presented to him by his mother (eg access to the beach, a new house)”. Dr Schwarzer reported that [X] said that he likes living in Queanbeyan and would be happy to stay there. [X] said that he likes both his parents and wishes to maintain his relationship with them. Dr Schwarzer commented that [X]’s preferences about where he would like to live were based on an “immature judgment”. I agree.
Paragraph (b) refers to the nature of the relationship between the child and each of his parents and with other persons (including any grandparent or other relative of the child).
It is apparent that [X] has a close relationship with each of his parents. Dr Schwarzer reported a good relationship between [X] and [Y]. I am satisfied that there is a close relationship between [X] and his paternal grandparents who live in Queanbeyan. I am not satisfied that there is a close relationship between [X] and Mr H. By this I do not mean to imply that there is a problem in the relationship but simply that my impression was that Mr H was not greatly involved in [X]’s life.
Paragraph (c) refers to the willingness and the ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent. Neither party has claimed that the other lacks such willingness or ability.
Paragraph (d) refers to the likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his parents or any other person with whom he has been living.
No matter which decision I make [X] will be separated for a significant period of time from one of his parents. There is nothing I can do about this. If he remains in Queanbeyan he will also be separated from his half brother [Y]. If he moves to Brisbane he will be separated from his grandparents and also from a paternal aunt who lives in the area.
Paragraph (e) refers to the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis. No matter what the outcome of this case there will be such a difficulty and expense but there is nothing I can do about this.
Paragraph (f) refers to the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child including emotional and intellectual needs. In this case it is the capacity of the parents that is relevant. I am satisfied that both of them are able adequately to provide for [X]’s needs.
Paragraph (g) refers to the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristic of the child that I think relevant. There is nothing in this paragraph which impacts on this case.
Paragraph (h) refers to Aboriginal or Torres Strait Islander children and is not relevant.
Paragraph (i) refers to the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents.
The mother has been criticised in one respect in relation to fulfilling her responsibilities as a parent. This arises out of the discovery by the mother that [X] had been the victim of sexual abuse in the form of anal intercourse. This was perpetrated by one of Mr H’s children who was at the time living with them. This child was aged 9 at the time. The mother learnt of an allegation that Mr H’s child had sexually abused another child about [X]’s age who was a playmate of [X]. She learnt this because the father of the abused child reported that on an airline trip to Britain with his mother the child had made these disclosures. The mother took no steps in relation to this matter until the abused child’s mother returned about two weeks later. She was then told that [X] was included in the children said to have been abused. She then spoke to [X] who confirmed this. She was criticised for the two week delay. I think this criticism is well founded. However it was a most unusual event and unusual set of circumstances and I do not propose to extrapolate from it any general inability on the part of the mother to fulfil her responsibilities as a parent. In the end it plays no part in the resolution of this case.
Paragraph (j) refers to family violence and (k) to family violence orders. Neither of these is relevant.
Paragraph (l) requires me to take into account whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. I do not believe that a decision either way will make further proceedings either more or less likely. This paragraph is not relevant.
Paragraph (m) requires me to consider any other fact or circumstance that I think relevant. Such facts or circumstances will emerge in the balance of this judgment.
Sub-section (4) requires me to consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and lists a number of criteria to be addressed in this respect. I do not criticise either party for failing to fulfil his or her responsibilities as a parent.
I am faced with two alternatives in this matter. The first is to accede to the mother’s application and order that the child live with her and that she be free to relocate. The second is that I make an order that the child continue to reside in Queanbeyan. As I have indicated the mother has stated that in any event she will be relocating to be with her partner. Effectively my making such an order would be an order that the child live with the father.
There are a number of matters that indicate that I should make orders as sought by the mother. If I do so [X] will continue to live with a parent with whom he has a close relationship. Furthermore he will continue to live with his half brother [Y]. Sibling relationships are very important and it would be unfortunate if the time he can spend with [Y] were limited to school holidays. Furthermore the mother is not in employment and would be more available to care for [X] both before and after school than the father will when he obtains employment. The father will need to rely on before and after school care. On the other hand, when considering these logistical issues, the mother is unable to drive due to a medical condition and this will doubtless have an impact. For example [X] is a keen footballer and getting to and from training by public transport may create practical difficulties.
The advantages for [X] if I were to make an order which would have him continue to live in Queanbeyan are as follows:
a)He would be living with his father with whom he has a strong bond.
b)He would continue to see a good deal of his paternal grandparents and also of his paternal aunt.
c)He would continue to live in Queanbeyan where he can attend the same school he has always attended and where he has established friends.
There is no difference that I can discern in the strength of the relationship that [X] has with his father and with his mother and so those factors balance out. When viewed in the aggregate the other factors also balance out. I think that sibling relationships are perhaps more significant in the long term than the relationship with a child’s grandparents but there is to be also put into the balance the fact that Queanbeyan is [X]’s established home and all that goes with it. It can therefore be seen that the case is extremely finely balanced. Making a decision in a case like this is not a typical exercise of judicial power. It involves a greater exercise of discretion than do most judicial decisions. This was recognised by Kirby J. in AMS v AIF (1999) FLC 92-852. In that case at paragraph 150 His Honour said as follows:
“… an appellate court, invited to review the exercise of discretion at first instance, will avoid an overly critical or pernickety analysis of the primary Judge’s reasons, given the large element of judgment, discretion and intuition which is involved.”
I have had the advantage of seeing both parties in the witness box.
I acknowledge the limitations of forming assessments based on this given all the factors involved and the artificiality of the surroundings. Nevertheless, whilst I do not criticise the mother in any way, I felt that the father was the more perceptive parent and more attuned to [X]’s needs. It is impossible to explain why I came to that conclusion. It is a classic example of the “intuition” referred to by Kirby J. In what is otherwise a very finely balanced case I find this the deciding factor and propose to make an order that [X] live with the father.
As I have indicated the father proposes contact during half school holidays but I propose to expand that somewhat. One reason for this is the issue of [Y]. I propose that [X] spend time with the mother for one half of the first and third midyear holidays, the whole of the second midyear holiday and for four weeks of the Christmas school holidays. The Christmas holidays are usually about six weeks in duration so this would allow the father about two weeks with the child. I will make provision in case the father wishes to go on a more extended holiday with the child. If he wishes to spend three weeks with [X] over the Christmas school holidays he may do so but the lost time with the mother is to be made up in either the first or third term holidays in the following year. I will make provision for telephone contact.
By way of explanation for Order 10 I considered it desirable to define the length of a school holiday because of the practice of the NSW Government, when school breaks up on a Friday, to deem the holiday as starting on the following Monday.
All of this is predicated on the assumption that the mother will move to Brisbane. She has said that she will be doing this no matter what and I accept her evidence at face value. However in the event that she changes her mind then the present shared arrangement should continue. I will make provision for this but will not make provision for more detailed arrangements other than a shared arrangement on a week about basis. By this I mean I will not make provision in relation to school holidays or special days. If the mother does change her mind and if the parties are unable to reach agreement in relation to the details of the shared arrangement they can request that I amend my orders to cater for this.
I turn now to the issue of the cost of travel when the mother moves to Brisbane. I propose to order that the mother be responsible for the costs of travel. This is for the following reasons:
a)The reasons for the mother relocation are essentially economic. It appears that in Brisbane Mr H can earn a very substantial income. On the other hand, with the mother not working, the father cannot expect to receive any child support and the costs of raising [X] will fall on his shoulders alone.
b)It is not the father’s doing that these costs now have to be incurred.
The issue of costs of travel was not agitated at the hearing and I am prepared to entertain an application by the mother to vary my orders. In the first instance this could be by way of written submissions from her lawyer. If having read those submissions I felt minded to vary my orders I would re-list the matter for further argument.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Brewster FM
Associate:
Date:
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