Hough and Knowles (No. 2)

[2007] FamCA 1587

FAMILY COURT OF AUSTRALIA

HOUGH & KNOWLES (NO. 2) [2007] FamCA 1587

FAMILY LAW – CHILDREN – Mother relocated with children with father’s consent – Parties reached agreement on majority of issues – Consent minutes – Issues in dispute – Where father’s alternate weekend time with children to take place and where handovers to occur – Mother concerned about children’s travelling time – Mother seeks father travel to spend time with children every second alternate weekend or that children only spend one out of four weekends with father at his home – Order: children spend time with father each alternate weekend – Handovers to occur at father’s home at commencement and at mother’s home at conclusion – Handovers for school holiday time to occur at father’s home

Family Law Act 1975 (Cth)

APPLICANT: Mr Hough

RESPONDENT: Ms Knowles

FILE NUMBER: ADF 1655 of 2006

DATE DELIVERED: 19 October 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 19 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Berman

SOLICITOR FOR THE APPLICANT: Wendy Botting

COUNSEL FOR THE RESPONDENT: Mr Boehm

SOLICITOR FOR THE RESPONDENT: HBH Legal

Orders

1. By consent that the parties do each have equal shared parental responsibility for the infant children the eldest son born … March 1993 a daughter born … May 1995 and the youngest son born … September 1997.

2. By consent that the said children do live with the mother.

3. That the said children do spend time with and communicate with the father as follows:

   a.On each alternate weekend commencing on Friday 26 October 2007 from 8:00pm (SA time) on the Friday until 8:00pm (VIC time) on the Sunday, or on the Monday in the event that that day is a public holiday in both Victoria and South Australia upon condition that the handover at the commencement of the weekend take place at the father’s home in B, South Australia and the handover at the conclusion of the weekend take place at the mother’s home in A, rural Victoria.

   b.By consent for one half of each Victorian short school holiday period at times to be agreed between the parties PROVIDED THAT if the father is unable to make arrangements for the care of the said children he shall give the mother 21 days notice of that circumstance.

   c.By consent for the first half of the 2008/2009 Victorian Christmas school holiday period including Christmas Day at such times as may be agreed between the parties and during the same times in each alternate year thereafter and for the second half of the 2007/2008 Victorian Christmas school holiday period at such times as may be agreed between the parties and during the same times in each alternate year thereafter PROVIDED THAT if the father is unable to make arrangements for the care of the said children he shall give the mother 42 days notice of that circumstance.

   d.By consent for one half of the Easter holiday period in each year unless Easter shall fall in a school holiday period at times to be agreed between the parties.

   e.By consent in the event that Father’s Day falls during a time when the children are living with the mother then from 8:00pm (SA time) on the Friday preceding Father’s Day until 8:00pm (VIC time) on the Sunday.

   f.By consent by way of telephone communication at such times as may be determined by the father provided the same occurs prior to 8:00pm (VIC time) on any day.

4. That for the purposes of sub-paragraphs 3(b) and 3(c) hereof handovers at the commencement and the conclusion of the time spent shall take place at the father’s home at B, South Australia.

5. That for the purposes of sub-paragraphs 3(d) and 3(e) hereof handover at the commencement of the time spent shall take place at the father’s home at B, South Australia and at the conclusion of the time spent shall take place at the mother’s home at A, rural Victoria.

6. By consent in the event that Mother’s Day falls on a weekend when the children would be with the father pursuant to paragraph 3(a) of these orders then that order is suspended for that weekend.

7. By consent that sub-paragraph 3(a) hereof be suspended during all school holiday periods.

8. By consent that insofar as paragraph 3 hereof applies to the child, the eldest son, his participation in spending time with or communicating with the father shall be subject to his wishes.

9. By consent that each party is to advise the other of any significant medical or dental treatment required by any of the said children whilst in the care of either parent.

10. By consent that the father be at liberty to attend such school functions and events in which the children may be participating.

11. That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.

12. That all applications be dismissed and removed from the active pending cases list.

13. That liberty be granted to speak to the minutes of order.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1655 of 2006

MR HOUGH

Applicant

And

MS KNOWLES  

Respondent

EX TEMPORE REASONS

Introduction

1. I have before me competing applications for orders in relation to two specific children's issues. 

2. Sometime after July 2007, but the precise date of which is not apparent from the evidence before me, the mother and the three children of this relationship, namely, the eldest son born in March 1993, a daughter born in May 1995 and the youngest son born in September 1997 relocated from C in rural Victoria to A in rural Victoria.  This was done with the consent of the father, after the presentation of a family report by Dr A, Family Consultant, recommending that such a relocation be permitted.  Thus now the mother, the children, the mother's new partner and their child live in A and the father continues to live in B in South Australia with his new partner and her child.

3. Apart from the issue of relocation, the parties have been able to agree on many other issues that were in dispute, and I have before me a minute of consent orders which finalises those matters.  However, despite the best efforts of the parties and the Family Consultant and the parties' legal representatives, there are still two issues in dispute and in respect of which I need to make orders, and they are as follows:

   3.1Whether the current alternate weekend time that the children spend with their father is to continue or whether it should be altered such that one alternate weekend is spent at the father's home in B and the next alternate weekend is spent in A.

   3.2Whether in any event there should be a change to the place of handover.

4. The mother's proposal about these matters is set out in her affidavit, namely, in paragraph 32 as follows:

   “32That apart from the aforementioned flexibility with weekends with the applicant to coincide with long weekends I believe the best proposal for the children would be as follows:

   (a)That the applicant spend time with the children at [B] each fourth weekend (subject to changes for long weekends) with myself delivering the children from [A] to the front of the applicant’s house at [B] on the Friday evening and with the applicant returning the children to the front of the [A] Hotel or the [A] Police Station by 8:00pm Victorian time Sunday (or Monday if a long weekend).  This travel is to be varied to take into account my offer to do all the travel on weekends as set out in (c) hereof.

   (b)That the applicant spend time with the children in [A] one weekend in four with the applicant collecting the children from the front of the [A] Hotel or the [A] Police Station at 4:00pm Friday and returning them to the [A] Hotel or Police Station at 6:00pm Sunday or such earlier time as the applicant agrees (on Monday if the Monday is a Public Holiday).

   (c)In the event that the applicant spends time with the children as referred to in (b) hereof that on the subsequent weekend the children spend time with the applicant in [B] I will deliver the children to and collect the children from the applicant in [B]. The children would be collected from the applicant in [B] in sufficient time to return to [A] by 8:00pm Victorian time.

   (d)That the cycle of weekend time with the applicant as in (a) hereof resume on the 3^rd Friday after the cessation of holiday time with the children.

   (e)That for holiday time with the children I will deliver the children to the applicant at [B] at the start and the applicant to return the children to [A] at the end.

   This arrangement would ensure that both parents share the travel equally on normal weekends by travelling the whole way at the start or end of the weekend and if the applicant travelled the whole distance between [A] and [B] on another weekend he would be compensated by me travelling the entirety of the distance the next weekend.  I am certain the children would benefit greatly from such an arrangement.  It would also assist in the applicant being able to spend more time with [the eldest son] and be involved in many of his activities as well.”

5. However, the mother also makes it clear in her evidence that, if the children are to spend all of their weekend time with the father in B rather than alternate between B and A, then the children should only spend one weekend out of every four weekends with the father. 

6. It seems that the father has no difficulty with the mother's proposal contained in (e) above, on the basis that the arrangements for the weekends continue as they have been.  However the balance of the mother's proposal is certainly in dispute. 

7. The father's proposal is that the current arrangements continue, namely, the children spend alternate weekends with him in B with the handover, both at the commencement and at the conclusion of that time in M, rural South Australia. 

8. I mention at this point that, whatever the order that is put in place as to the time spent by the children with the father, the parties are agreed that in relation to the eldest son that order should be subject to his wishes. The parties also agree that if the handover at the conclusion of the time spent is to take place at M, it should be at 4:15pm South Australian time on the Sunday, or on the Monday if it is a long weekend.  Further, it is agreed that the order for weekend time should be suspended during all school holiday periods.

The Factual Background

1. The father was born in June 1968 and is now aged 39 years.

2. The mother was born in September 1971 and is now aged 36 years.

3. The parties met in March 1991 in Victoria when they were both serving in the Army.

4. In April 1991 the parties commenced living together in Brisbane.

5. In March 1993 the parties’ first child, a son, was born.

6. In May 1995 the parties’ second child, a daughter, was born.

7. The mother says that after her daughter’s birth she suffered depression.

8. In September 1997 the parties’ third child, the younger son, was born.

9. The father says that the parties separated in January 2002 but the mother asserts that they separated in 2001 but remained living in the same house until January 2002.

10. After separation the father lived in a unit in R, South Australia and the mother and children remained in the former matrimonial home.

11. In January 2003 the mother and children moved to C, rural Victoria.

12. The mother commenced a de facto relationship with Mr R.

13. In September 2006 the mother and Mr R’s child E was born.

14. On 22 November 2006 the father filed an Application for Final Orders and an Application in a Case in this court seeking parenting orders.

15. On 20 December 2006 Senior Registrar Kelly made interim parenting orders by consent.

16. On 15 January 2007 the mother filed a Response to an Application for Final Orders and a Response to an Application in a Case.

17. On 8 March 2007 the Honourable Justice Burr ordered that the parties and the children attend a conference with a Family Consultant.

18. On 15 March 2007 the mother filed an Amended Response to an Application for Final Orders.

19. On 21 March 2007 the Honourable Justice Burr ordered that at the next hearing Dr A, Family Consultant provide an oral report to the court as to the views of the children.

20. On 21 March 2007 the mother filed an Amended Response to an Application in a Case.

21. On 28 March 2007 the Honourable Justice Burr delivered ex tempore reasons declining the mother’s interim application to relocate to A in rural Victoria and granting orders for the children to spend time and communicate with the father.

22. On 17 April 2007 the Honourable Justice Dawe ordered that a Family Assessment Report be prepared.

23. On 26 June 2007 Dr A provided a Family Report recommending that relocation be permitted.

24. On 19 July 2007 the mother filed an Application in a Case seeking to relocate to A in rural Victoria with the said children but this application was discontinued on 10 August 2007.

25. On 27 August 2007 Dr A provided an oral report to the court and I made an order pursuant to Section 11F of the Family Law Act 1975 that the parties attend upon Dr A for counselling.

The Issues

1. The issues in dispute appear to be as follows:

   34.1The mother says that the frequent travel is affecting the children adversely.  She says there is no difficulty with the journey from A in rural Victoria to M in rural South Australia on the Friday but there are significant problems with the return journey.  She says, for example, that the children are tired and niggly, and they become ratty.  They are also hungry.  That night, she says, they have difficulty sleeping and they are tired and grumpy on the next day and this impacts upon their school attendance and their school work. The father says these problems are of the mother's own making, and she would not have these difficulties if she broke up the return journey.

   34.2The mother suggests that if she delivers the children to the father at his home at B on the Friday and the father then returns them to her at A on the Sunday, there can be uninterrupted journeys and the children may cope better with the travel.  The father opposes this, primarily because it was the mother who moved to A and she should therefore do the bulk of the travelling.

   34.3The mother suggests that with the children becoming more involved in activities in and around A on weekends it would enhance their relationship with the father if he spent every second alternate weekend with the children in A.  The father is strongly opposed to having to travel to A.  He says there are practical issues such as he would have to stay in a motel with the children.  He would almost certainly not be able to have any quality time with them on the Friday night and, indeed, the time spent might even need to start on the Saturday morning.  However most importantly, he values his time with the children as family time and he says that can really only occur at B.

The principles applicable to the matters before the court

1. In exercising its jurisdiction in relation to children the Family Court is bound by the provisions of the Family Law Act 1975.  The objects of those provisions of the Act relating to children are:

   (a)to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children; and

   (b)to protect the children from physical or psychological harm; and

   (c)to ensure that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. (Section 60B(1))

2. The basic principles underlying those objects are that except where it would be contrary to a child’s best interests:

   (a)children have the right to know and be cared for by both parents; and

   (b)children have the 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; 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. (Section 60B(2))

3. Should parties be unable to agree about matters touching upon the welfare of a child and seek orders from the court in relation to that child, the court must in determining whether to make orders regard the best interests of the child as the paramount consideration. (Section 60CA)

4. Under the provisions of Section 60CC, in determining what is in the best interests of the child, the court must consider the following matters so far as they might be relevant in each particular case, that is:

   Primary considerations

   (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. (Section 60CC(2))

   Additional considerations

   (a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

   (b)the nature of the relationship of the child with:

   (i)each of the child’s parents; and

   (ii)other persons (including any grandparent or other relative of the child);

   (c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

   (d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)either of his or her parents; or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)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;

   (f)the capacity of:

   (i)each of the child’s parents; and

   (ii)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;

   (g)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 characteristics of the child that the court thinks are relevant;

   (h)if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

   (j)any family violence involving the child or a member of the child’s family;

   (k)any family violence order that applies to the child or a member of the child’s family, if:

   (i)the order is a final order; or

   (ii)the making of the order was contested by a person;

   (l)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;

   (m)any other fact or circumstance that the court thinks is relevant. (Section 60CC(3))

1. The court must also consider the extent to which each parent has fulfilled his or her parental responsibility and has facilitated the other parent in fulfilling his or her parental responsibilities. (Section 60CC(4))

2. Each of the parents of a child has parental responsibility for the child subject to any order of the court. (Section 61C)

3. Under the provisions of Section 61DA(1) when making a parenting order 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.  However, this presumption does not apply in certain circumstances, namely if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)family violence.

4. Further the presumption may be rebutted by evidence that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. (Section 61DA(4))

5. If the court is to make an order that the parents of the child are 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. (Section 65DAA(1))

6. If the court does not make an order for the child to spend equal time with each of the parents the court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child. (Section 65DAA(2))

The Evidence

1. The father was represented by Mr Berman.  The father relied on his affidavit filed on 17 September 2007 and he was cross‑examined. 

2. The mother was represented by Mr Boehm.  The mother relied on her affidavit filed on 25 September 2007 and she was cross‑examined.

3. To repeat, there was a Family Report provided in this matter in June 2007 by Dr A, but that primarily addressed the issue of relocation. There were recommendations made by Dr A as to the frequency that the children should see their father in the event of relocation, but I do not consider that those recommendations assist me in the decision I have to now make, given that relocation has actually occurred and the evidence before me is on that basis, rather than the hypothetical basis presented to Dr A. In any event, neither party sought to rely on any aspect of the report of Dr A and it was not referred to at all during the final hearing.  There was also no request by either party for Dr A to attend for the purposes of cross‑examination in relation to her report. 

4. Dr A also gave a brief oral report to the court on 27 August 2007 during the first day of the trial in this matter, but again neither party now relies on anything in that report and neither party sought to cross‑examine Dr A in relation to it.  Indeed, all that Dr A did in that report was to repeat what the parties had said to her about the issues in dispute and she made no recommendations and, importantly, she did not speak to the children for the purposes of that report.

Discussion

1. The children have been spending regular alternate weekends with the father at his home in B with his new partner and her child since at least the order made by this court on 20 December 2006.  It is quite apparent that the children enjoy a meaningful relationship with their father and that they are benefiting from that.  The evidence indicates that the children have not only enjoyed their time with their father but, importantly, since it has been occurring on a regular basis, the children have settled down in their lives generally and they have improved in their school work.  This much was conceded by the mother in cross‑examination.

2. I find that a significant reason for the children's improvement generally and for the current state of their relationship with their father is the frequency and the regularity with which the children are able to spend time with their father, thus if it is at all possible, consistent with the best interests of the children, to maintain the alternate weekend arrangement, then that should be done.

3. The mother, of course, says that it can be maintained but only if on every second alternate weekend the father travels to A in rural Victoria and spends time with the children there.  To repeat, the father is strongly opposed to that, but I consider that the father is being somewhat short-sighted in that view.  It could indeed enhance his relationship with the children by allowing them to involve him in their extracurricular activities if they could spend time with him in A.  However, there is no basis for it being as frequent as the mother proposes and, at most, it need only be one weekend every now and then.

4. Primarily the children should spend their time with the father in B, where the father is able to provide a family environment which includes his new partner and her child, but the father should give serious consideration to spending some time in A with the children.  I can see benefits for the children in that and also benefits for their relationship with their father if that was to occur.  However, that said, I do not consider it would be in the children's best interests to force the father to spend a weekend in A with the children.  He is opposed to it, and there are the practical problems of accommodation and when the time could actually commence - namely, Friday night or Saturday morning.

5. The problem with the Friday night is that, because of the father's work, he could not leave B until, say, 5:00pm in the afternoon and he would then get to A too late to have any meaningful time with the children.  Thus, in the end result, I will not be making an order that the father spend time with the children in A but, given what I propose about handovers, there will be the opportunity for the father to spend some time in A on the Sunday, if he wishes.  In any event, I am certain that the mother would agree to change the arrangements for a weekend if the father wanted to spend that time in A with the children, rather than in B, and I encourage the father to seriously consider this.

6. One obvious consequence of that occurring - namely, the father having the odd weekend in A - would also be a lessening of the amount of travel for the children but it would still not overcome the mother's issues about the impact of the frequent travel, and I will now address that. 

7. I am concerned that the mother is adopting the position that she is, either because of a desire to restrict the time that the children spend with their father or, put another way, because of the failure on her part to appreciate the needs of the children.  She was aware that the father was opposed to travelling to A on each second alternate weekend, yet her proposal was that if he did not do that then the children should only spend one weekend a month with the father.

8. The mother denies that she is seeking to limit the time the children spend with the father, and says that it is the problems with the travel that are the basis for only proposing one weekend each month in those circumstances.  However, I do not accept that, and I find that the mother does not appreciate that the children need to see their father on a regular and frequent basis to maintain their relationship with him and to allow him to have the input that they need from him in their lives.

9. Clearly, the mother has difficulties with the children on the return journey and there are consequences that flow into the next day.  However, that should be no surprise to the mother but, instead of looking at ways to obviate these problems, the mother's response is to require that the father either come to A on each second alternate weekend or only see his children on one weekend in four. 

10. The father's evidence is that he recognises that the children may be tired and grumpy and niggly on the return journey after a weekend of activities, but he suggests a contributing factor to their behaviour is that the mother fails to break up the journey, as I have commented on already.  Whether that is correct or not, if the father has a better way of doing this, then the wife's proposal of she delivering the children to B and the father returning them to A should have some attraction. The father, though, opposes that, principally because it was the mother who wanted to move and did move to A.  Now, that is obviously correct, and that does provide a reason for the mother to undertake the bulk of the travel, but if it is in the best interests of the children for the travel to be shared in the way proposed by the mother, then that is what should be put in place. 

11. In my view, given that the father says he has the answer to the difficulties of travel, then it would be in the children's best interests for him to undertake that return journey.  That would also have a number of other benefits - namely, the father could attune the children's activities and mealtimes on the Sunday to alleviate any possible problems on the return journey.  It would allow the father to travel to A earlier in the day and spend some time with the children in the place where they live, if that was something that the father and/or the children desired and, finally, it would give the father more time with the children on the Sunday evening, whether that was time spent in the car travelling from B to A or going to A earlier and spending that time in A.

12. Although the father indicated that he agreed with the mother's proposal that for school holiday periods she would deliver the children and he would return the children, I propose to order that the mother do all of that travelling.  The return journey would not entail the same problems identified by the mother as she does with the return journey at the end of a weekend. 

13. In relation to the proposal by the mother that the cycle of weekend time that the applicant has resume on the third Friday after the cessation of holiday time with the children, I consider that the alternate weekends should simply continue on, otherwise it can become too complicated.

I certify that the preceding 61 numbered paragraphs are a true copy of the reasons herein of the Honourable Justice Strickland.

Associate

19 October 2007