Hudson and Hudson
[2009] FMCAfam 792
•31 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HUDSON & HUDSON | [2009] FMCAfam 792 |
| FAMILY LAW – Parenting – parties agreed that children to live with father and as to extent of mother’s time with them – mother seeks injunction restraining father from living with children outside of specified radius of her locality – whether a parenting order – power of court to grant injunction – matters relevant to exercise of discretion. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 64B, 65DAA, 68B, 69B & 114 |
| Sampson & Hartnett(No.10) [2007] FamCA 1365 Mills & Watson [2008] FMCAfam 2 Bennett & Bennett (2001) FLC 92-088 Re Bell; Ex parte Lees (1980) FLC 90-850 |
| Applicant: | MR HUDSON |
| Respondent: | MS HUDSON |
| File Number: | PAC5359 of 2007 |
| Judgment of: | Lindsay FM |
| Hearing dates: | 25 May & 17 June 2009 |
| Date of Last Submission: | 23 June 2009 (by written submissions) |
| Delivered at: | Parramatta |
| Delivered on: | 31 July 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Chesters |
| Solicitors for the Applicant: | Norwest Family Law |
| Counsel for the Respondent: | Mr Harper |
| Solicitors for the Respondent: | Meyer Pigdon Family Lawyers |
ORDERS
The mother and father have equal shared parental responsibility for making decisions about the major long-term issues in relation to the care, welfare and development of the children [X] born in 1995, [Y] born in 1999 and [Z] born in 2001.
The mother have sole parental responsibility for making the day-to-day decisions about matters that are not major long-term issues concerning the said children when the said children are in her care.
The father have sole parental responsibility for making the day-to-day decisions about matters that are not major long-term issues concerning the said children when the said children are in his care.
The said children live with the father.
The said children spend time with mother as follows:
(a)during school terms:
(i)each alternate weekend from 5:30pm on Friday to 7:30am on Monday; and
(ii)each Wednesday from 5:30pm to Thursday on 7:30am; and
(b)during school holiday periods:
(i)for the first half of each of the holiday periods following Term 1, Term 2 and Term 3, such period to commence at 5:30pm on the last day of the school term and to conclude at 12:30pm on the middle Sunday of the school holiday period;
(ii)for the first half of the Christmas school holiday period in each year ending in an even year and alternate year thereafter, such period to commence at 5:30pm on the last day of the school term and to conclude at 12:30pm on the second Sunday of January that year; and
(iii)for the second half of the Christmas school holiday period en each year ending in an odd year and each alternate year thereafter, such period to commence at 12:30pm on the second Sunday of January that year and to conclude at 7:30am on the first day of Term 1.
Notwithstanding the above orders, the following applies in relation to special days:
(a)in each year ending in an odd year, the mother will spend time with all the said children from 5:30pm on each of the said children’s birthdays until 7:30am on the following day;
(b)in each year ending in an even year, the father will spend time with all the said children from 5:30pm on each of the said children’s birthdays until 7:30am on the following day;
(c)on the mother’s birthday, if the said children are not otherwise in the mother’s care, the said children will spend time with the mother on that day from 5:30pm until 7:30am on the following day;
(d)on the father’s birthday, if the said children are not otherwise in the father’s care, the said children will spend time with the father on that day from 5:30pm until 7:30am on the following day; and if in a year ending in an odd year the said children are in the father’s care for his birthday and there are two or less days between the end of the father’s care period on that day and the first day of Term 1 of the school that the children attend, then the said children will remain in the father’s care;
(e)on Mother’s Day, if the said children are not otherwise in the mother’s care, the said children will spend time with the mother on that day from 10am until 7:30am on the following day; and
(f)on Father’s Day, if the said children are not otherwise in the father’s care, subject to the day not being the mother’s birthday, the said children will spend time with the father from 10am until 7:30am on the following day.
The mother be at liberty to communicate with the said children by telephone or mobile telephone at any reasonable time while the said children are not in her care.
The father ensure that the said children are available to communicate with the mother by Skype and/or MSN videophone at times as agreed between the parties.
The father provide the mother with any and all correspondence, school reports or documents of whatsoever nature supplied by the school(s) the said children attend concerning each of the said children within seven (7) days of him having received the said correspondence, reports or documentation.
The father advise the mother by email of any and all special events, functions, sports days, parents’ evenings and the like which may be scheduled by the school(s) the said children attend no later than three (3) days after the father is informed of any such events.
The father endeavour to take the children to Hillsong Church, [B] each Sunday while they are in his care.
The father provide the mother with information as soon as practicable upon the happening of the following:
(a)any medical emergency involving any child, including but not limited to serious illness, accident or hospitalisation;
(b)events or information related to the general health of each child, including but not limited to medical appointments, test results, progress reports and details of any treatment, and notice of appointments to be provided as soon as practicable following the making of any such appointments;
(c)occasions or events of special significance to any child or party; and
(d)matters relating to the education of each child, including but not limited to parent/teacher interviews, disciplinary matters, achievements, awards, concerts and special events, sports days, newsletters and notices.
The said children will forthwith be enrolled in schools in the Northern Beaches area, being such schools as the parties may agree within fourteen (14) days or as fixed upon application to the Court following the expiry of that period.
For the purposes of paragraphs 5, 6(a), 6(c) and 6(e) of these orders, the mother will collect the said children from the home of the father at the commencement of the time-spent and the father will collect the said children from the home of the mother at the conclusion thereof.
For the purposes of paragraphs 6(b), 6(d) and 6(f) of these orders, the father will collect the said children from the home of the mother at the commencement of the time-spent and the mother will collect the said children from the home of the father at the conclusion thereof, where applicable.
All applications do otherwise stand dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hudson & Hudson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC5359 of 2007
| MR HUDSON |
Applicant
And
| MS HUDSON |
Respondent
REASONS FOR JUDGMENT
This is a very unusual case.
The father and mother married in 1994, separated in September 2006 and divorced in November 2007. They have three children namely, [X] born in 1995 and therefore aged thirteen, [Y] born in 1999 and therefore aged ten and [Z] born in 2001 and therefore aged seven.
When the parties lived together all of the children were schooled at home by arrangement with the New South Wales Board of Studies. The mother undertook responsibility for their schooling.
When the parties separated the children remained with the mother and the home schooling arrangements continued. When they separated the parties each moved into different homes. The former matrimonial home was sold. The proceeds of sale have been divided between them. The mother moved into rental accommodation in [V] and the father moved into a one bedroom apartment beneath his mother’s home at [C].
[V] and [C] are adjacent suburbs in the [B] area of Sydney.
The father exercised time-spent with the children following separation but the parties could not agree the form of parenting orders and ultimately those matters came before me for the first trial listing on
25 May 2009.
A Family Report had been previously ordered and released in April of 2009.
The principal issues addressed in that Family Report were whether the father’s time-spent should include a Friday component and the extent to which he should be obliged to ensure that the children attend church and activities related to it. The children and the mother are regular attendees at the Hillsong Church which is situated close to [C].
However, by the time the matter came on for trial in June the mother had decided that the children should live with the father.
The Court was informed of her position on 25 May 2009. The final hearing was adjourned to 17 June 2009 and the parties ordered to amend their responses and applications and an updated Family Report ordered.
The same family consultant prepared both reports.
The best summary of the matters actuating the mother’s decision that the children should live with the father is to be found in the second Family Report where the family consultant reports at paragraphs [12] to [15]:
12.Ms Hudson tried to remain composed during this interview and to demonstrate that her changed proposal for the children to live with their father was a decision based on the practicalities of their care and the financial support they needed, but she broke down in tears a number of times during the session. She indicated that her changed proposal was not a sudden decision, but had evolved in the face of ongoing stresses in her attempts to offer the children reasonable quality upbringing. She did not want them to be worried about money and she worried about the fact they could not afford to do things. Ms Hudson said that her proposal for the children to live with their father was her attempt “to find a solution that is best for them”.
13.Ms Hudson denied that she was suffering from depression, but outlined several very distressing family tragedies and financial stresses that she had faced in the last 12 months. She said that her father had died of cancer. Geographically, he had been her closest relative living on the Central Coast. Her mother, who lives in [P], had been involved in a motor vehicle accident that left her with serious injuries and despite having undergone several operations she was still requiring quite a lot of care.
14.In addition, Ms Hudson explained that for the last 2½ years she has been using her savings to cover the living costs for herself and the children. Since March 2009 her financial position has worsened with her rent going up. Child support payments going down and a reduction in her Supporting Parents Benefits now that [Y] was 8 years old. Ms Hudson explained that she had cut her expenses in every way she could. She no longer had a landline phone, has had the gas disconnected for cooking and only uses electricity. She has cut all the children’s activities that cost any money, though [Y] is still going tap dancing because he has a scholarship. She questions, “If I can’t pay for rent and food, how can I look after the children?”. Moreover, she perceived “it was not good for them to be stuck in a situation” where they are affected by financial difficulties, worried that they cannot do things and where they feel their mother is always at work.
15.Ms Hudson said she could not foresee any real improvement in her financial situation even when she does stop home schooling the children and goes to work because she would need a high paying job to improve the family situation and pay the added costs that will be incurred by her going to work. She pointed out that she had not worked for close to fifteen years since [X] was born, when she had worked [in the childcare industry]. She foresaw that she was going to need retraining and while she undertook this she would have to find a job and retrain part-time, which could mean extended hours away from home.
The father is willing for the children to live with him.
By the time the matter came before me for trial in May the father had already begun to live in one room accommodation in the [L] area of Sydney during those periods of time when he was not exercising time-spent with the children. [L] is in the Northern Beaches area of Sydney, near Manly. He lived at his mother’s home when exercising time-spent with the children.
The distance by road trip from [C]/[V] to [L] is approximately thirty-five kilometres. Such a road trip, using the M2, would take approximately forty minutes and involve three road tolls for a one-way trip. If one wanted to avoid the tolls one would travel by the Pacific Highway which is a distance of approximately thirty-nine kilometres and with a travelling time of approximately sixty-seven minutes, longer in peak travelling time. These matters I have taken from the family consultant’s report but they were not the subject of serious challenge by the parties.
It is important to be very clear about what the competing applications of the parties were when they came before me for trial on 17 June 2009.
There was no proposal by either party for the children to live with their mother. The mother did pursue an injunction in relation to the place of residence of the father and the children and sought orders in relation to the schools that they would attend (both of those applications were bound up with the other in that the mother sought that the children attend schools which are generally in the [B] area). In no part of her application or in the written submissions of her Counsel or in her evidence did the mother suggest that if the Court refused to make the orders sought by her relating to the place of residence of the father and the children or the schools they attend, that the children in that event would live with her. On the contrary, the mother said at paragraph 74 of her Trial Affidavit:
In the event that this Court intends to allow Mr Hudson to relocate our children to the northern beaches for the purposes of them attending the schools Mr Hudson has proposed, I would like to put forward a different proposal for my care periods. Annexed and marked “AE” is a copy of my alternative proposal.
The orders sought by her with respect to the children are strikingly similar in that annexure to those in her principal application; that is, her Amended Response (in which the injunction is sought). For example, her Amended Response, filed on 4 June 2009, in addition to seeking orders that the children live with the father and that the parties have equal shared parental responsibility for major long-term issues, seeks orders that the children spend time with her during school terms each alternate weekend from 3pm on Friday to Monday at 8:30am and on each Wednesday from 3pm to Thursday at 8:30am. The orders sought in the annexure attached to her Affidavit as the “alternative proposal” provided for the children to live with the father, for the parties to have equal shared parental responsibilities for major long-term issues and for the children to spend time with her during school terms each alternate weekend from 5:30pm Friday to Monday at 7:30am and each Wednesday from 5:30pm to Thursday at 7:30am.
The orders sought are strikingly similar, although it should be noted that the alternative proposal annexed to the Affidavit expresses the time-spent to be during school terms “as determined by the school at which the children attend”. I do not think that expression alters the meaning of the proposal.
So the mother, in contemplation of the Court refusing the orders she seeks relating to where the children and the father live and where the children attend school, makes it clear that she will still seek orders that provide for the children to live with the father and to see her spend essentially the same time with the children during school term, that is, four nights per week even though the hours of commencement and conclusion are slightly different.
I have not set out in detail the other orders sought in the respective documents but they are strikingly similar.
In no case is the mother asking the Court to re-visit the question of where the children should live if she is unsuccessful in seeking her orders relating to where the father and the children live and where they attend school.
At the trial the mother relied upon her Trial Affidavit and was cross-examined. The father had not filed a Trial Affidavit following the mother’s change in attitude but he gave oral evidence and he was cross-examined.
Neither party required the family consultant to attend for cross-examination and both of her reports were received by me in evidence.
The father’s ultimate position was that if I made the orders sought by the mother relating to where he and the children live and where the children attend school he would continue to seek an order that they live with him, although he made it clear that he would be extremely unhappy about that circumstance.
The father is no longer a member of the Hillsong Church as he was during the period when the parties lived together. The evidence made it plain that he does not share the view the mother has that the children’s attendance at church and involvement in its community are matters that are essential to their welfare and development. He understands the significance of the church and its related activities to the children and he agrees that he will ensure that they continue to attend the church but it was his strong view as it emerged in his evidence that the children would benefit from being moved to a physical location that was somewhat removed from the church.
I should also note the very clear agreement of the parties that the children would attend normal state educational facilities in the event that they live with the father. There is no question but that their home schooling experience has ended.
It is also clear that there is no significant dispute between the parties as to the time the mother should spend with the children if they are to live with the father. He is in general agreement with the alternate three night weekends and the weekly overnight period.
The mother’s “alternative proposals” sought orders that the father deliver the children to her at the Hillsong Church at the commencement of her time with the children and he collect them from there at the conclusion. The proposals set out in her Amended Response saw them collected to and from school during school term.
The father sought an order that provided for the responsibility for the transportation of the children on the Wednesday evening and Thursday morning to be shared between the parties. Other than that limited issue, there was no area of controversy between the parties as to the time the mother should spend with the children.
Insofar as the dispute related to schools, this was a function of the mother’s application that sought to keep the father living with the children within a specified radius of the [C] Post Office. She wants [X] to attend [C] School and wants [Z] and [Y] to attend a public school in the [B] District (either [S] School or [C] School). The relevant portions of her Trial Affidavit (paragraphs [55] to [74]) make it clear that her principal concern in relation to schooling is tied up with the location at which they reside. She raises specific criticisms of the schools in the Northern Beaches area, which the father promotes, but that is not the heart of the disputation on this issue, which is that she says that they should attend schools at which she can become involved and which will facilitate her on-going involvement in the children’s lives and which involve minimal distances to be travelled by them getting to and from school from the home of either parent; that is, schools within the [B] area.
In summary then:
a)both parties agree that whatever else I do I should order that the children live with the father;
b)both parties agree that I should make an order that provides for the children spending alternate three night weekends with the mother and overnight on each Wednesday during school term and for extended periods during school holidays;
c)the parties are in some minor disagreement as to the travel arrangements which would facilitate the mother’s Wednesday overnight period with the children during school term in the event that the father and the children live in the northern beaches area, and as to the sharing of transportation arrangements generally;
d)the parties are in dispute about the schools the children should attend but not the fact that they should no longer be home schooled; and
e)the dispute relating to the schooling is a function of the mother’s contention that the children should reside in the [B] area.
The order sought, which is at the heart of this dispute, is that found at paragraph 18 of the mother’s Amended Response. She sought an order that:
The father be restrained from moving the children’s place of residence outside of a 20 kilometre radius from the mother’s residence.
The family consultant in her second report recommended that the children “live with their father within a 10 kilometre radius of their current home”. As outlined in her Counsel’s closing submission the mother sought an order:
That the father be restrained from moving the children’s place of residence outside of a 20 kilometre radius from the [C] Post Office.
However, she indicated that she would not oppose an order that the father be restrained from removing the children’s place of residence outside of a ten kilometre radius from the [C] Post Office as recommended by the family consultant.
Given the father’s evidence that by the time of trial (indeed the first trial listing in May) he had already changed his principal place of residence - that is the residence he lived at when the children were not with him - to a location in [L], strictly speaking the effect of the order sought by the mother would require the father to move from his place of residence from [L] to the [B] area, rather than to restrain him from moving.
As I will come to in a moment, nothing turns on the question as to whether I am being asked to make an order that requires him to move or restrains him from moving. The accommodation that he has enjoyed at his mother’s home, whilst suitable for the exercise of time-spent with the children was not suitable for arrangements where the children live with him and he would be obliged to find alternative accommodation in the [B] area in any event.
I am using the shorthand expression of “[B] area” to describe the general locality in which the mother wishes the father to reside with the children, that is, a distance of between ten and twenty kilometres of the [C] Post Office.
My summary of the dispute set out above makes plain that this is a case that turns on whether I make the injunction sought by the mother. If I do, it is plain that I will make orders that the children be educated at one or other of the institutions sought by her. The father did not agitate against those particular institutions, only the locality in which they were situated. If I refuse the mother’s application then the children will be educated at a state school contiguous to the [L] area. Again there was nothing that was before me that suggested the mother argued particular schools that the father is considering are inadequate or unsuitable for the education of the children.
The order of injunction sought is directed to the father. It seeks an order that restrains him from taking certain steps. Plainly the steps are those that relate to where the children live but that does not alter the nature of the order sought in that is in an order sought against the father. It is an injunction that relates to the children but it is not an injunction directed to the children. It is an order that regulates an important aspect of the children’s welfare but it does so indirectly.
Part VII of the Family Law Act 1975 (Cth) (“the Act”) deals with children. An important aspect of that Part is the making of parenting orders. Parenting orders are dealt with in Division 5 of Part VII. Section 64B, which appears within that Division, describes the meaning of a parenting order and provides:
(1) A parenting order is:
(a)an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or
(b)an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).
(2)A parenting order may deal with one or more of the following:
(a)the person or persons with whom a child is to live;
(b)the time a child is to spend with another person or other persons;
(c)the allocation of parental responsibility for a child;
(d)if 2 or more persons are to share parental responsibility for a child - the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e)the communication a child is to have with another person or other persons;
(f)maintenance of a child;
(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates; or
(ii) the parties to the proceedings in which the order is made;
(h)the process to be used for resolving disputes about the terms or operation of the order;
(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
The section then goes on to deal with specific issues relating to the allocation of parental responsibility and communication and to define what it means to make an order in favour of a person relating to parental responsibility.
Both parties seek an order that the children live with the father. Any order of injunction directed to him that seeks to restrain him from moving the children’s place of residence from outside a locality is an order that requires him to live within that locality. It is not possible to make an order that sees him have the children live within that locality and for him to live without it because both of the parties seek an order that the children live with him. They cannot live independently of him within that locality and still live with him.
The Full Court of the Family Court of Australia in Sampson & Hartnett(No.10) [2007] FamCA 1365 at para.[35] said, after having set out in detail the provisions of s.64B:
In our view, notwithstanding the breadth of the language in this section, particularly the terms of paragraph (i), an order requiring a parent to live in a particular place is not a parenting order as there defined.
To properly understand that observation and especially so as to understand whether or not the Full Court was drawing any meaningful distinction between an order requiring a parent to live in a particular place (as was the case in the judgment the appeal from which the Full Court heard) and an order restraining a parent from moving from a particular place (as, arguably at least, here), I set out the detailed analysis of that decision which appears in the judgment of Federal Magistrate Walters in Mills & Watson [2008] FMCAfam 2 at paras.[83] to [100]:
83.Ms Sampson was originally from the Geelong area. She had close family there. Mr Hartnett (and his immediate family) lived in Sydney.
84.Ms Sampson moved to Sydney 2 or 3 years before she met Mr Hartnett. They began living together (in Sydney) in mid 2000, and married in mid 2001. Their first child was born in Sydney in April 2003.
85.Ms Sampson and Mr Hartnett separated in August 2004 - at which time Ms Sampson was pregnant with their second child. After separation, Ms Sampson moved to Geelong with the parties’ first child. Their second child was born a few months later.
86.Mr Hartnett had a son from a previous marriage, the care of whom he shared with his former mother. At or around the time that Ms Sampson and Mr Hartnett separated (August 2004), Mr Hartnett’s son started to live with him on a full time basis (although he continued to see his mother at regular intervals).
87.When the matter came to trial (in Sydney), Ms Sampson was living in rented premises in Geelong with the two children. Mr Hartnett was still living in Sydney. The trial took place in May and October 2006. Moore J delivered Reasons for Judgment in February 2007. Her Honour found that “the period since separation (had) been fraught with conflict and continual litigation either related to the children or to property and financial matters”. (See Sampson & Hartnett [2007] FamCA 202, at paragraph 18.)
88.One of the orders made by Moore J was as follows:
The children’s residence is to be established in Sydney no later than 1 May 2007. (Order 17)
89.As the majority of Full Court (Bryant CJ and Warnick J) observed, the orders made by Moore J “… did not actually mandate the relocation of the mother herself to Sydney … (but they) would be unworkable if the mother did not relocate”. (See Sampson & Hartnett (No 10), at paragraph 4.)
90.One of the issues raised in the appeal was the court’s power to directly or effectively order a parent to relocate.
91.The majority began their discussion of the relevant principles by observing that “… there is little doubt that the Family Court has power to ‘effectively’ order a parent not to relocate by ordering that parent, who wishes to act as primary parent, not to change the location of the child.” (See paragraph 19) Put another way, the Court has power “… to make orders effectively, though indirectly, restraining the movement of a parent.” (See paragraph 25)
92.After discussing a number of authorities (including B & B: Family Law Reform Act 1995 (1997) FLC 92-755, H v E (1999) FLC 92-845, AMS & AIF (1999) FLC 92-852, A & A (Relocation Approach) (2000) FLC 93-035 and U & U (2002) FLC 93-112), the majority said:
In our view, there is nothing in the authorities that establishes that there is no power within the FLA to directly restrain a parent from relocation or to directly require relocation. To the contrary, while there has been no decision expressly on point, there are some statements that support the existence of such a power. (Emphasis added)
93.The majority then turned their attention to the current provisions of the FLA. Their Honours found as follows:
a)Notwithstanding the breadth of the language contained in section 64B, an order requiring a parent to live in a particular place is not a “parenting order” as defined in that section. (See paragraph 35)
b)Section 68B (dealing with injunctions in relation to children) is “unlikely to be a source of power to directly restrain the freedom of movement of a parent.” (See paragraph 38) (Emphasis added)
c)Sections such as ss.65DAA, 65D and 60B “… are replete with references to parental obligations and duties. … These and other provisions support the notion that, the parties having surrendered the resolution of dispute about parental arrangements to the court, the court has the function of crafting orders that ensure the best parenting arrangement is put in place and that parents ‘fulfil their duties, and meet their responsibilities …’ . It is entirely consistent with that function that parenting orders, and orders that support those orders, such as injunctions, be directed to the parents and place obligations upon them.” (See paragraphs 45 & 46) (Emphasis added.)
d)Subject to the rules relating to procedural fairness, a court is not bound by the parties’ proposals relating to arrangements for the care of children. Instead of simply choosing between situations already in existence, the court can use a “coercive” order to create a situation which is more likely to be in a child’s best interests. (See paragraph 47)
94.The core of the majority’s decision appears in the following three paragraphs:
57. If it is within power to order a person not to relocate, it would be surprising if it was not within power to order a person to relocate, although one would imagine the exercises of power to the latter effect would be even more rare, because the effect is more drastic. The person being ordered not to move at least has chosen that location ay some stage and for reasons which one assumes at least once existed. This contrasts with a person who may not wish to go somewhere and therefore the order is much more of an imposition on that person’s freedom.
58. However, we conclude there is power under s.114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare, because:
i) the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and
ii) in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent’s choosing.
59. The prospect of ordering a parent to relocate and in effect “parent” in a situation not of that parent’s choosing, legitimately gives rise to concerns, particularly in respect of enforcement. What if the parent, in response to such an order, simply hands the child to the other parent…? The fact that such vexing questions arise does not mean that the power does not exist and may be rightly exercised at times. Enforcement is discretionary and may be rare (in certain situations). On the other hand, enforcement may be appropriate if a primary parent ordered to relocate, simply did not do so. (Emphasis added.)
95.Having earlier recorded that Moore J had not made findings to the effect that:
a)if the children lived in Sydney, then the mother would more probably than not move there; and/or
b)if the mother chose not to relocate, then the children would be best living with the father,
the majority turned to consider whether the evidence supported her Honour’s decision to, in effect, require the mother to relocate to Sydney. In doing so, the majority said:
74. … A person wishing to relocate will frequently be living in a settled environment awaiting the imprimatur of the court before moving. In other circumstances, where a move has already been made, or is planned, settled arrangements in the new location will be in place or arranged. Where the court may be ordering the return of a parent to a location in which they have lived for some time, but from which they have moved without the consent of the other party and in circumstances in which existing orders or arrangements for the other parent to spend time with the children will be rendered ineffective, there will usually be arrangements in the original location for the practicalities of life, such as accommodation, schooling and employment if relevant, which can readily be identified by the Court. If there are not, that fact would normally be a relevant consideration.
75. To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move. One would therefore reasonably expect a close analysis of the moving party’s capacity and/or the other party’s capacity to provide for such practicalities having regard to the orders proposed by the court. It is probably only in the circumstance of significant wealth of both parties that it might reasonably be inferred that the practicalities of life could be met without detailed inquiry.
76. This was a very difficult case …
77. We do not say that the true “effect” of her Honour’s orders was a wrong result. However, it was an extreme one and we think required an unusually stringent inquiry.
78. Insufficient scrutiny was given to alternatives to enable the development of the father/children relationship. Insufficient scrutiny was given to the practicality of the mother living in Sydney.
96.The majority found that Moore J failed to adequately address the practicality of Ms Sampson relocating to and remaining in Sydney. For example, there was no, or no adequate, consideration of such factors as:
a)Ms Sampson’s capacity to work (as “measured against” her care of the children);
b)the costs of childcare;
c)the availability of paid employment for Ms Sampson; and
d)Mr Hartnett’s capacity to meet any need that Ms Sampson may have for support.
97.The majority concluded that the appeal should be allowed, and that the matter should be remitted to Moore J, to enable her Honour to consider the various matters contained in the Judgment.
98.The other member of the Full Court, Kay J, supported certain “sentiments” expressed in selected decisions of courts in the United States of America and Australia. (See paragraphs 129 & 131) Those decisions recognise the difficulties associated with ordering a parent to live in a place which is not of his or her choosing. They also recognise that parents often have very valid reasons for wishing to relocate, and that the long term best interests of children are unlikely to be met by compelling both parents to remain in a particular location so that children can continue to have the opportunity to spend time with each of them.
99.After observing that the Full Court had “… not been directly asked to determine the issue of the power of the Court to make an order requiring a parent to move from a well established place of residence to a different location so as to place the children in closer proximity to the other parent”, Kay J said:
I have severe doubts that there is power to make such an order or, if the power exists, it would not be exercised other than in the most exceptional circumstances.
100.In Pender & Haywood [2007] FamCA 1526, Boland J summarised the effect of Sampson & Hartnett (No 10) as follows:
The Full Court held that the trial judge fell into appealable error by not considering the practicality of the orders, including the financial capacity of the mother to move to Sydney.
The majority held that the Court did have power, which power could, in an extreme case, be exercised to compel a parent to move in order to facilitate a shared parenting regime, but found in the particular case the orders “were in effect at the extreme end of the discretionary range” and that “strong and well defined support for them was necessary”.
Federal Magistrate Walters also makes the following observations in relation to the Full Court decision at paragraph [125] of Mills & Watson (supra):
125.In Sampson & Hartnett (No 10), the majority found that the case law does not authoritatively establish that there is no power in the FLA to directly require a parent to relocate. To say that it has not been authoritatively decided that the Court lacks power to require a parent to relocate is not the same, of course, as saying that such a power actually exists. Much of the majority’s judgment in Sampson & Hartnett (No 10) concerns itself with their Honours’ search for such a power. They ultimately conclude that the power does exist, and that it is to be found in FLA section 114(3).
On the question of the specific powers in the Act to make the orders sought His Honour’s summary of that topic appears at paragraphs [163] to [166]:
163.I am aware that, in Sampson & Hartnett (No 10), the Full Court referred to the earlier decision of a different Full Court in H & E (1999) FLC 92-845, where it was speculated that s. 114 might provide power to enable a court to directly restrain the freedom of movement of a parent - but only “when dealing with parents who have been previously married to each other”.
164.Thus, after concluding that s.68B “is unlikely to be a source of power to directly restrain the freedom of movement of the parent”, the Full Court in Samson and Hartnett (No 10) turned its attention to s.114(3) and said:
Perhaps obviously, in a parenting issues case, the justice or convenience of an injunction is likely to be closely connected with the parenting orders made and the findings that underpin those orders.
165.Clearly, the majority in Sampson & Hartnett (No 10) was of the view that s.114(3) could be used “in a parenting issues case”. Their Honours concluded as follows:
... there is power under s.114(3) of the (FLA) to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child.
166.Unfortunately, the majority in Sampson & Hartnett (No 10) gave no reasons for its view in that regard. Nor did their Honours refer to either MIMIA & B (No 3) or s.69B. I note, as well, that the Full Court did not limit its conclusion (as quoted above) to children of a marriage or parties to a marriage.
Turning to the alternative basis for making the order it should be observed that s.69B of the Act provides:
(1)Proceedings that may be instituted under this Part must not, after the commencement of this section, be instituted otherwise than under this Part.
Clearly the orders sought by the mother in this case are not those that are described in sub-s.(1) of 68B. The injunction sought is not for the protection of the children or one of the categories of person described in sub-s.(b) and neither is it an order that seeks a person from entering or remaining in places of residence, employment or education of such persons.
Each of the parties is seeking a panoply of other parenting orders so the injunction sought can be characterised as that described in sub-s.(2).
The injunction sought is directed at the father but is an injunction “in relation to” the children.
Section 68B(2) is expressed in identical terms to s.114(3) of the Act in relation to the general injunctive power, save that the order is in relation to an “injunction” and not a “injunction in relation to a child”.
The parties to these proceedings have been married so the constitutional considerations, which were discussed by Federal Magistrate Walters in Mills & Watson (supra), as points of distinction between the opportunity to exercise the s.114(3) power and the s.68B power do not arise.
Would it matter which of the two injunctive powers I utilised (assuming that I was prepared to make the order sought by the mother)? In particular, would it make any difference as to the applicability of certain provisions of Part VII of the Act?
Section 60CA of the Act provides:
In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
The Full Court of the Family Court in Sampson & Hartnett (No.10) (supra) determined that an order of the kind sought by the mother in these proceedings is not a parenting order so that s.60CA does not apply. Section 60CC sets forth how a Court is to determine what is in the child’s best interests. To the extent that the best interests of the children are significant to the determination of the application that section continues to apply even though there is no statutory requirement for me to regard the best interests of the children as the paramount consideration.
Section 61DA of the Act provides:
(1)When making a parenting order in relation to a child, 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.
I will be making a series of parenting orders, nearly all of which are agreed. (I have identified the very narrow area of disputation relating to the arrangements for the collection and delivery of the children at the commencement and conclusion of the mother’s time with them if the father is allowed to move to the Northern Beaches area.) But the parties are also agreed with respect to matters of parental responsibility and that they should be shared in relation to all long-term issues. I will make those orders. The application of the presumption does not arise. Neither, given the scope and detail of the matters agreed (which I am prepared to order), does the need arise to go through the s.65DAA exercises.
Whether I use the injunctive power of s.68B(2) or s.114(3) of the Act the only guidance I receive from the part of the statute granting the power is that I am to make an order in any case “in which it appears to me to be just or convenient to do so”. Finn J in Bennett & Bennett (2001) FLC 92-088 (a decision made before the 2007 reforms of the Act) expressed the view that the power to issue injunctions under s.68B(1) was still governed by the paramountcy principle, which then appeared in a different section of the Act, but Her Honour said that this was because s.68B(1) was then, as it is now, worded as follows:
… the Court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including …
No such similar introductory language is included in s.68B(2), which can be the only source of the power to make the injunction in this case.
I should mention at this point the unresolved controversy relating to the question as to whether there is a substantive difference in the power a Court has to make an order as between s.68B(1) and s.114(1) on the one hand and s.68B(2) and s.114(3) on the other. The former sections provide for a power in the Court to make “such order or grant such injunction” whereas the latter sections refer only to the power to be able to “grant an injunction”. Two judgments of the High Court in Re Bell; Ex parte Lees (1980) FLC 90-850 regarded the omission of a specific power to make “orders” in the latter sections as significant. See the discussion of this issue by the learned authors of CCH Australian Family Law and Practice Volume 2 at 46-240. For the reasons described in that text I do not propose to regard the powers as being materially different. In any event, given the position that at trial the father was living for part of the time in the area in which the mother wants him to continue to reside and for the time at which he was not exercising responsibilities for the children, was living without that area, it will be difficult to determine whether or not I would be making an order that would not properly be described as an injunction. I do not propose to enter into that potentially sterile controversy.
Most “relocation” cases - that is, cases involving a dispute as to where a parent should reside with the children - focus upon evidence and argument that relates to the parenting orders sought and, arising out of the resolution of that controversy, orders are made that deal with the specific issue of where the parent with whom the children live shall live himself or herself. The machinery to make such orders is found, as we have seen, in s.114 of the Act or (though not authorised by the Full Court in Sampson & Hartnett (No.10) (supra)) in s.68B.
This case is unusual because the parenting orders are (almost entirely) agreed, whether the injunction is made or not.
So, it is a case directly about the grant of the injunction itself. I have found (consistent with authority) that I am not making a parenting order. Consequently, the best interests of the children are not paramount.
I should note at this point my concerns that this entire controversy is one that is predicated upon both of the parents knowing full well that the children do not want to live with their father. All three of them want to live with their mother. They have made that position clear in both family reports. They have a good relationship with their father although it has been strained at times in relation to the tension that exists between their expectations as to participation in church activities and his desire to, as he expressed it in his oral evidence, take them out of “the bubble that they have been in”. All children, and especially the eldest child [X], articulated very clearly their desire to live with their mother and their reasons for expressing that view. Both parents know that this is the clear position of the children.
There is every possibility that whatever order I make in these proceedings the children will, given their ages and level of maturity, prevail upon their parents to enable them to return to live with their mother. I harboured considerable doubts at the outset of the trial as to whether or not the mother’s conduct should be seen as a form of “grand gesture” to draw attention to what she regarded as her financial difficulties. I still have some reservations in that regard although at the end of her oral evidence I have come to the view that she had genuine difficulty in reaching the position that she had and that the summary of her position to be found at paragraphs [51] and [52] of the family consultant’s report was accurate:
51.It is assessed to be most distressing for the children that their mother has arrived at the decision that they must go and live with their father because she cannot cope financially. Additional reasons are that Ms Hudson’s personal emotional resources have been depleted by catastrophic events in her own family and by unfortunate financial pressures beyond her control. This has combined with the need for her to completely change her lifestyle from home-based mother to working mother and her fear of what her future holds. At present, Ms Hudson can see no obvious way forward and no relief to her current difficulties, which she fears will impact on the children adversely.
52.Ms Hudson places high expectations on herself to be a good parent and to ensure her children have everything they need. At present, with the pressures she is under, she feels she is letting them down. Essentially, Ms Hudson needs “time out” while she attempts to find some direction and establishes some sense of security in her life.
The advantages to the children from remaining within the [B] area are relatively obvious.
They will already be dealing with a significant change in their lives in that they will be obliged to participate in public schooling. They have not established any peer groups in their ages. Their friends are in the area in which they have resided. In terms of time with the children, though, I reminded myself that the mother’s alternative applications do not involve her spending any more time with the children if they live in one location as against another. Nevertheless, I can infer that there would be greater opportunities for her to attend at the school to reassure the children if that were necessary in the early stages of their public schooling. That could happen if they attended schools in the Northern Beaches area, albeit that the mother would have further distances to travel.
The father in his oral evidence often made the point that it was open to the mother herself to relocate to different rental accommodation in the northern beaches area or at least an area closer to it than where she presently resides. The mother will be seeking to find employment in any event and that may take her to other areas of Sydney. She has not been in employment for nearly fifteen years. She was previously employed in [the childcare industry]. She may need to re-train and she may need to work part-time while that happens.
She said that rental accommodation was more costly in the Northern Beaches area than in the [B] area and the father did not seem to disagree with that, although I was not given any hard information to demonstrate the level of disparity in costs of rental.
The family consultant thought that if the children were moved to [L] they would see less of their mother because it would be unrealistic to expect that mid-week time could be spent with her but her fears in that regard were unfounded in that, if one goes to the text of the alternative proposal made by the mother, it is not materially different in terms of time sought from her Amended Response.
The father has no attachment to the [B] area other than that his mother lives there. His social outlets and the majority of his friends live in the Northern Beaches area. The beaches themselves are a significant aspect of his recreation. He was quite explicit too, as I have noted above, in noting advantages to the children from them being removed from the church-focused environment in which they had spent all of their lives.
The family consultant also makes the important point that the parents living close together would enable more informality to be introduced in relation to the arrangements the children have for spending time with their parents as they grow older. That is especially important with [X], even now. But it is a benefit that can be obtained by either one of the parents moving closer to where the other lives and is not only achieved by inhibiting the father from choosing to live where he wishes.
The father works in the [W] area which is midway between [B] and the Northern Beaches, although a little closer to the latter. That was my understanding of the agreed position of the parties. His working hours are flexible but he will not be able to call upon the assistance of his mother during term time if he lives a significant distance from her. She, it will be recalled, lives in [C].
Whatever order I make I remind myself that it will not be the optimal order in terms of the children’s best interests. That would be an order that saw them live with their mother and spend substantial and significant time with their father. That alternative is not open to me on the applications of either party and my evaluation of the other proposals must be seen in that light.
If the matter fell to be determined according to the paramountcy principle it may be that an order would be made in the terms sought by the mother though the matter, even then, would not be free from doubt. Each of the primary considerations referred to in s.60CC of the Act will be fulfilled on either party’s application, that is, whether I grant the injunction or not.
In terms of the additional consideration set forth in s.60CC(3) I find as follows:
a)Sub-s.(a): I have already dealt with the children’s wishes - they are not being met by either application.
b)Sub-s.(b): The children have a good relationship with each of their parents but their lives have been more closely involved with that of their mother and they have a greater confidence in and allegiance to her.
c)Sub-s.(c): Each of the parties are keen to facilitate a relationship between the children and the other party and recognise the importance of that relationship to the children.
d)Sub-s.(d): There will be a significant effect on the children as a function of the change involved in their living with their father. The effects of that change in their living arrangements would be mitigated to some extent but not, I find, to a significant extent, by the granting of the injunction in the terms sought by the mother.
e)Sub-s.(e): In terms of the practical difficulty and expense of the children spending time with the mother, this was a matter referred to in the mother’s evidence and in the family consultant’s report, particularly as it related to the mid-week time, but it has not ultimately expressed itself in terms of any modification of the mother’s proposals. She seeks mid-week time with them in any event. The parties are in dispute as to where the children should be handed over for the purposes of that time-spent. It may be that the mother would find whatever travel was involved on her part will be onerous but she will need to give consideration as to whether or not that is capable of being remedied by her moving closer to the area where the father resides. Where she resides, in any event, may to a significant extent be a function of the employment (part-time or full-time) that she is able to procure.
f)Sub-s.(f): The mother has the greater capacity to provide for the emotional and intellectual needs of the children but the father still impressed me as a conscientious and thoughtful parent.
g)Sub-ss.(g) and (h): These sub-sections do not seem to me to be of any particular relevance.
h)Sub-s.(i): Each of the parties demonstrated a strong sense of their responsibilities as a parent. The father, it should be borne in mind, has been prepared to assume the responsibility for the children in the light of the mother’s decision to resign it. He is criticised to some extent by the family consultant for not then agreeing to modify his preferences as to where he lives with the children and it must be recognised, to that extent, he has not put his preferences aside for the benefits, such as they are, as arise from the children living closer to their mother.
i)Sub-s.(j): There is no family violence involved.
j)Sub-s.(k): This sub-section is similarly not relevant.
k)Sub-s.(i): I have significant reservations as to whether or not any orders I make will dictate the ultimate disposition of the living arrangements for the children. It may be that the stressors associated with the children moving away from their mother and going into the public education system are such that a return to their mother’s care is inevitable. That will depend upon the attitude taken to the predicament of the children by each of the parents. I do not think whether or not I make the injunction sought is a matter that is going to itself bear upon the issue of the likelihood of further proceedings.
My discussion, passim, sets out the other matters that I consider relevant to the children’s best interests (s.60CC(3)(m)).
The father indicated that he would be unhappy at being obliged to reside in the [B] area. There is no doubt that he saw this to some extent as an attempt by the mother to continue to control important aspects of his life even whilst surrendering principal responsibility for the children to him. He was concerned as to the extent to which his unhappiness in being forced to live in that area would impact upon the attitude he brought to the parenting of the children and I thought he was genuine in expressing his concerns rather than expressing them because he thought it would assist him in resisting the injunction.
It is a not insignificant matter to oblige a responsible adult person to live in a metropolitan area of a capital city where he or she does not want to reside. It is a substantial interference with the liberty of an individual and I would only take that step if I thought there were compelling circumstances relating to the welfare of the children that required that substantial interference with the father’s rights to be ordered. I am not so satisfied. I think it is appropriate now that the parents have resolved between themselves that the children should live with the father, that he be able to make an informed decision as to where he considers they can be most appropriately parented by him. He has taken their preferences and interests into account but he has not allowed them to be determinative and I do not think it is unreasonable of him to have proceeded in that way, or that the Court should interfere with his decision.
I propose to refuse the order for injunction sought by the mother.
That inevitably means that the children need to be schooled in the Northern Beaches area. I think the parties have a significant capacity to agree upon matters relating to the welfare of the children. They should be given an opportunity to agree upon the institutions the children should attend within the Northern Beaches area. I did not anticipate that in the event that the location at which the children should reside was resolved, the parties would have any difficulty in fixing the identity of the high school (in the case of [X]) and primary school (in the case of the boys) that the children should attend in that area but there can be liberty to apply in relation to that issue if they are not in agreement within, say, fourteen days of the making of these orders.
I propose to make the orders sought in the mother’s alternative application relating to the time she spends with the children.
During school term and on alternate weekends, the mother should collect the children on the Friday from the father’s home and the father should collect them from the mother’s home on a Monday morning. The hours nominated by the mother reflect the realities of travel, given the mother’s present residence at least. On Wednesdays she should collect them from the home of the father and he collect them from her on the Thursday morning. Again, the travel is relatively onerous, especially for the children, but not intolerable. The hours of collection by each of them represent the realities of travel.
A sharing of the burdens and costs of travel is appropriate, as it also is for the children to experience their parents’ sharing of such burdens and costs.
Logically, such sharing should apply in relation to both school holiday and special occasion time. It will encourage each of them to carefully consider the location at which they each reside when decisions in that regard need to be made.
If her undertaking the share of those responsibilities means she has to use a portion of the capital that remains to her from her property settlement to purchase a reliable motor vehicle, then she should do so.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate: Ms N. Julius
Date: 31 July 2009
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