Hough & Knowles
[2007] FamCA 486
•28 March 2007
FAMILY COURT OF AUSTRALIA
| HOUGH & KNOWLES | [2007] FamCA 486 |
| FAMILY LAW - CHILDREN - With whom a child lives - Interim application by mother to relocate -Application declined - Inappropriate to approve the relocation on an interim basis - Whether equal time or substantial and significant time is appropriate and the considerations under s 60CC need to be properly addressed at trial. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA |
| APPLICANT: | MR HOUGH |
| RESPONDENT: | MS KNOWLES |
| FILE NUMBER: | ADF | 1655 | of | 2006 |
| DATE DELIVERED: | 28 March 2007 |
| PLACE DELIVERED: | Adelaide |
| EX TEMPORE REASONS OF: | Burr J |
| HEARING DATE: | 28 March 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
That the mother’s application on an interim basis to relocate from C, Regional Victoria to A, Regional Victoria is declined.
That further consideration of the proceedings be referred to the Case Management Judge on a date and at a time to be fixed by the Court.
AND IT IS ORDERED, UNTIL FURTHER ORDER THAT:-
The father spend time with the children, the elder son (“elder son”) born in March 1993, the daughter (“daughter”) born in May 1995 and the younger son (“younger son”) born in September 1997 as follows:
(i)From 11 am on Saturday, 31 March 2007 until 6 pm on Tuesday 3 April 2007, with the father to collect the said children at the commencement of such period from the mother’s residence in C and to return the said children thereto at the conclusion of such period;
(ii)From 9 am on Monday 9 April 2007 until 5 pm on Wednesday 11 April 2007, with handovers at the commencement and conclusion of such period to occur at M, rural South Australia.
(iii)Each alternate weekend from 5 pm on the Friday until 5 pm on the Sunday, commencing on Friday, 27 April 2007, save and except that in lieu of Friday, 25 May 2007 at 5 pm, the father's time with the said children commence at 11 am on Saturday 26 May and conclude at 5 pm on Sunday, 27 May, with handovers at the commencement and conclusion of such periods to occur at M, rural South Australia.
(iv)For one half of each of the end of semester Victorian school holiday periods save and except for the Christmas school holiday periods.
The parties be granted liberty to apply on the giving of seven [7] days’ notice to the other in the event that these proceedings are not finalised prior to the next Christmas school holiday period and the parties are unable to reach agreement as to the time the father is to spend with the said children during the Christmas school holiday period.
The father communicate with the said children by telephone on the Tuesday and Thursday of each week for a period of time between 6 pm and 7 pm (Victorian time) by the father telephoning the mother's telephone number.
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADF 1655 of 2006
| MR HOUGH |
Applicant
And
| MS KNOWLES |
Respondent
REASONS FOR JUDGMENT
In the context of proceedings before this Court which require a final determination on a number of issues, the matter before me today is the mother's application to relocate on an interim basis, pending trial, from C in rural Victoria to A in rural Victoria.
Prior to the separation of the parties she resided with the father in R, South Australia. It is the common ground of the parties that it is some 200 kilometres and therefore two hours between R, South Australia and C, Victoria. A return journey would therefore be some 400 kilometres or four hours. A move from C to A would be a move of a further 200 kilometres or two hours or a return trip of 400 kilometres or four hours.
Whilst the mother has proposed that handovers at the beginning and end of each period of time the father spends with the children should occur in M, South Australia, thereby not involving the father in any greater travel, there is no way of avoiding the fact that the children in the event of a move to A, Victoria would be required to spend an additional four hours in the car each alternate weekend and on school holiday changeovers, being a total of eight hours' travel for them each alternate weekend and holidays.
The provisions of the Shared Parenting Responsibility Act introduced some new provisions to the Family Law Act on 1 July 2006. The objects contained in section 60B of the Act were amended.
I have had regard to the provisions of section 60B, but in particular section 60B(1)(a) which is to the effect that the best interests of the children are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child.
The concern for the Court here is that a move of that nature certainly on an interim basis without the evidence being able to be tested in trial, could impact upon the relationship the children presently enjoy with their father.
Section 60B(2) also sets forth some principles that need to guide the Court and they include relevantly to this matter:-
(a)children have the right to know and be cared for by both their parents;
(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 in their care, welfare and development;
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children.
The principle which guides the Court overall though is that set out in section 60CA and that requires the Court to make a decision which it believes reflects the best interests of the children as the paramount consideration. In doing so, the Court has to consider section 60CC which is divided into primary considerations and additional considerations.
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 and being subjected to, or exposed to, abuse, neglect or family violence
Sub-section (a) is relevant to this matter. Subsection (b) is not relevant as there is no allegation by the parties that the children have been subjected to harm by the other parent.
That takes me to the 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 wishes;
This sub-section is particularly relevant in the determination of this matter. On 8 March 2007 I ordered that the parties attend a conference with a family consultant to try and resolve the issues in dispute between them, but also to enable the family consultant to determine the children's' views and then relay those views to the parties. That family consultant was Dr A and she duly undertook that task.
It did not assist the parties in reaching agreement and so on 21 March 2007, I ordered that Dr A provide brief oral evidence to the Court about the views that the children had expressed. Those views are overwhelmingly to the effect that they would like to move to A with their mother.
Without canvassing all the matters that Dr A raised in her evidence on that issue, she indicated that whilst the views of all three children were unanimous, they were expressed somewhat differently by the elder son, who is 14 years of age, as against the views expressed by the other two, namely the daughter, 12 years of age, and the younger son, nine years of age. However, all expressed views that they were excited about the move to A and were determined to go with their mother, stepfather and the new baby.
The elder son said that he had been to nine schools already and he was not troubled by having to go to a tenth. The daughter said that she had to go to high school anyway and so she was going to have to change schools as it was. Dr A was of the view that younger son’s affirmative position was somewhat influenced by his siblings.
The children expressed no concern about the fact they were going to leave their present friends and have to make new friends nor about the amount of time that was going to be involved in travelling in the event of a move to A, in terms of the times they spent with their father. However, Dr A was of the view that the children's' ages negatively impacted upon their capacity to perceive just what was involved in the process.
Interestingly, the elder son confirmed the position he had previously adopted, which was that he wanted to say when he wanted to go and see his father. Given the increased distances and travelling times now involved, that is a particularly relevant consideration.
I accept there is an increased probability that he would find the travel onerous and therefore find additional reason why it is that he should not spend time with his father some 400 kilometres away.
Dr A said that the mother acknowledged that she had painted a favourable and rosy picture to the children about the move to A and clearly that must have had an impact upon the views expressed by the children.
Whilst the views of the children are quite emphatically in favour of the move to A and express all the positives about such a move, I am obliged by subsection (a) to consider matters such as the child's maturity and level of understanding. Those are the matters which cause me greatest concern and I believe it would be improper on an interim basis to allow the relocation to A without exploring in some detail their level of understanding of what is involved in such a move. Thus, for the purposes of the interim proceedings I believe I ought give limited weight to the expressed views of the children.
(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);
There is no evidence before me other than that the children enjoy an excellent relationship with both their parents and with each of the parties' new partners.
The children will of course be able to easily maintain their relationship with the mother and her new partner, as it is an agreed position between the parties presently that the children are to live with the mother. However, in my view it would be more difficult for the children to maintain their important relationship with their father and of lesser importance, but nonetheless important relationship with his new partner, in the event of a move to A. That may not be the position after testing all of the evidence during a trial, but in my view it is appropriate to be cautious in this interim determination.
(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;
This is a matter which will be very important in the evidence tendered in the trial of the proceedings.
The father alleges in an affidavit filed on 26 March 2007, supported by an affidavit of his partner Ms S, also filed on 26 March 2007, that there are some matters of concern about the mother's support of the children's relationship with the father. It is not possible for me to say whether or not the matters raised in those two affidavits are true without them being tested in cross‑examination, but they do raise sufficient concerns for me at the moment to consider this to be an important factor in this interim determination. In addition, under this subsection it is appropriate for me to consider the mother's already one unilateral move from R, South Australia to C, Victoria.
(d)the likely effect on any changes in the children's circumstances, including the likely effect on the children 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;
This again is a particularly relevant matter. There is only some very limited information before the Court on this topic presently. It will clearly be a matter that would need to be explored in great depth during the trial of the proceedings.
For example, some of the issues are that a move to A would involve the elder son in attending his tenth school, C being his ninth. There is no evidence of any form before the Court presently as to how the children are coping with the most recent change of school.
There is nothing from the school itself or from the teachers which would help the Court determine whether or not they have been able to settle after their last move from R, South Australia to C, Victoria. It would be important to know that before allowing a further move to yet another school. There is some information provided from the mother about the A school and the support there, but again that evidence would need to be tested.
The other effect upon the children of such a change is of course the travelling time. As I said, the elder son might find it difficult to place seeing his father as his first priority if he had to undertake a round trip of eight hours to do so. The relationship he has with his father is, as presently indicated, more important than any other priorities the elder child might set for himself.
It is a relevant consideration, too, that if they see their elder brother not attending to see their father because of the long travel or whatever other reason, it may well impact upon the daughter and younger son.
Dr A already made the point that she was of the view that the younger son had been influenced by his other two siblings, thus there may well be some prejudice to the relationship the father has with his children if those factors are allowed to emerge.
There are other changes that would be entailed in a move to A. The children would need to discard present friendships and establish new ones. They would need to establish familiarity with new surroundings, new accommodation and new schools.
A matter which is likely to be important to the Court is whether or not the hotel environment of the proposed business venture of the mother's partner would be a suitable one for the children.
(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;
This again is a very relevant matter to the proceedings before the Court; too important to be dealt with just on an interim basis. The additional 400 kilometres and four hours of travel for the children on each occasion they see their father and the associated costs of same, are a relevant matter. Prima facie they are not factors which would support a move to A.
(f)the capacity of:
(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
to provide for the needs of the child, including emotional and intellectual needs;
I am sure that the father is important in that role in terms of providing for the emotional and intellectual needs of the children.
The primary role in that regard though almost certainly falls to the mother. It is a role that the father on present indications is happy for the mother to undertake. He is not presently challenging the arrangement that the children live with the mother. Thus, issues of how a move or a refusal of a move would impact upon the mother's capacity to care for the children is particularly important.
The mother makes some reference - and she did so to Dr A, as well - to the financial difficulties she encounters by residing in C. She quite clearly makes the point in the affidavits filed by her that a move to A and taking up the lease of the A Hotel will substantially benefit their financial circumstances. Clearly a capacity to financially support her children when she has their primary care is an important one and may well ultimately favour a move to A.
In that context, too, the evidence of the mother in her affidavits that the father is some $10,000 in arrears of child support also needs to be tested. If that proves to be the case, then it may well also favour a move to A. If it does not prove to be the case, there may be a different result.
In short, the information before the Court presently is not sufficient to make those important determinations on whether or not a move to A would assist the wife's capacity or, on balance, prove not to be such a good move.
(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.
(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;
and
(m)any other fact or circumstance that the Court thinks is relevant.
Subsections (g), (h), (j), (k), (l) and (m) do not throw up any additional matters for my consideration.
the attitude of the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
I believe I have canvassed the relevant matters for consideration under this sub-section adequately in the reasons already given by me.
Of particular relevance will be the mother's capacity to support the relationship between the father and the children in the event that she was permitted to move to A. That is an issue that has been squarely placed before the Court for its determination by the father in the affidavits to which I have previously referred.
Subsection (4) then requires the court 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, in particular, the extent to which each of the child’s parents:
(a)has taken, or failed to take, the opportunity:-
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
The last of those, of course, will directly bring to bear the issue of the father's track record in the payment of child support. The other two will require a consideration by the Court as to the capacity each of the parents has demonstrated in the past of a capacity to involve the other parent in the children's lives. That can only emerge in the testing of evidence before the Court on a trial of the proceedings.
Ordinarily the Court would be required to consider section 61DA of the Act, but on 20 December 2006, Senior Registrar Kelly made an order by consent that the parties have equal shared parental responsibility and thus it is not a matter requiring my determination today.
However, given the agreement that the parties have reached in that area, it does oblige me to consider the provisions of section 65DAA and that requires the Court to:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
That clearly is a matter for trial, but is another reason why it would be inappropriate on an interim basis to approve the mother's move to A. It would be difficult at first sight to understand how the children could spend equal time with their father given the mother's concession of equal shared parental responsibility.
Even if the Court was of the view that equal time was not appropriate, then the Court needs still to consider substantial and significant time under subsection (2). All those matters need to be addressed properly in the trial of the proceedings.
For those reasons, I decline the mother's application on an interim basis to relocate from C to A. I refer the matter to the Case Management Judge to consider listing the matter for trial at the earliest opportunity.
I give liberty to the parties to apply on seven days' notice in the event that the matter is not finalised prior to the next Christmas school holiday period and the parties are unable to agree upon the time the father is to spend with the children during that said Christmas school holiday period.
I certify that the preceding forty eight [48]) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr
Associate:
Date:
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as HOUGH & KNOWLES
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