HUNTER & BRUCE
[2015] FCCA 2851
•31 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUNTER & BRUCE | [2015] FCCA 2851 |
| Catchwords: FAMILY LAW – Interim Relocation where father works away 4 weeks out of every 5 week period. |
| Legislation: Family Law Act 1975, ss.60CC, 61D, 61DA, 65DAA |
| Cases cited: C & S [1998] FamCA 66 A v A: Relocation Approach (2000) FLC 93-035 |
| Applicant: | MR HUNTER |
| Respondent: | MS BRUCE |
| File Number: | NCC 1467 of 2015 |
| Judgment of: | Judge Myers |
| Hearing date: | 31 August 2015 |
| Date of Last Submission: | 31 August 2015 |
| Delivered at: | Newcastle |
| Delivered on: | 31 August 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Gianacas Argiris McDonald |
| Solicitors for the Respondent: | Bell & Johnson Solicitors |
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The parties have equal shared parental responsibility for the children X born (omitted) 2009 and Y born (omitted) 2010.
Conditional upon compliance with order 10 herein the said children live with the mother.
The mother be entitled to relocate the children’s residence to the (omitted) Shire, NSW.
The children spend time with the father as follows:
For up to five (5) consecutive nights in any five (5) week period upon the father giving the mother not less than 28 days’ notice of the dates and times at which the father will collect the children from and return the children to the mother, with such time to be spend in and around the (omitted) Shire.
For half of the New South Wales school holidays being the first half in even numbered years commencing at 10.00am on the day immediately after the children finish attending school until 5.00pm on the date midway through such holidays and the second half of such holidays in odd numbered years commencing at 5.00pm on the date midway through such holidays and concluding at 5.00pm on the day before the children resume attending school.
From 12 noon on 24 December 2015 to 3.00pm on 25 December 2015.
The father shall collect and return the children to and from the mother’s residence when the children spend time with the father pursuant to order 4a and 4c above.
The parties shall collect and return the children to and from one another at a location as agreed between the parties when the children spend time with the father pursuant to order 4b above and failing agreement the father collect the children at the commencement of the children’s time with the father from the mother’s residence and the mother collect the children from the father’s residence at the conclusion of the children’s time with the father.
The mother be prohibited by injunction from bringing the children into contact with Mr E.
The children have telephone communication with the father on Tuesday and Thursdays between 6.00pm and 7.00pm with the father to initiate the call to the mother’s telephone.
The parties are restrained from abusing, insulting, belittling, rebuking or criticising each other to or in the presence of the children or any of them and from permitting any other person to do so.
THE COURT FURTHER ORDERS THAT:
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child/ren of the relationship attend upon a family consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and in particular:
(a)to consider the factors in sections 60CC, 61DA and 65DAA of the Family Law Act1975;
(b)to profile of the parties
(c)to assess the parties interactions;
(d)to assess the child/ren’s developmental and emotional state;
(e)to assess the relationship of the child/ren to the parties and other significant persons in the child/ren’s household;
(f)to ascertain the wishes of the children unless inappropriate by reason of age or other special circumstance;
(g)to assess the proposed and actual home environments;
(h)to assess the proposals of each party as to the child/ren’s future.
The Court requests the said report be released by date to be advised.
The family consultant is granted leave to inspect all documents produced in response to subpoena.
If the family consultant is unable to inspect documents produced in response to subpoena at the Newcastle Registry of the Commonwealth Law Courts, the Registry Manager upon receiving a request from the family consultant, is to forward such documents to the Registry nominated by such consultant to permit such inspection.
Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for X born (omitted) 2009 and Y born (omitted) 2010 and the Legal Aid Commission of New South Wales is requested to provide such representation. The parties are to provide to the Legal Aid Commission at PO Box K847, HAYMARKET NSW 1238 forthwith all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.
Should the Independent Children’s Lawyer or the father form the view the mother has breached order 7 above the father or the Independent Children’s Lawyer are granted leave to restore the matter on 48 hours’ notice.
The matter is transferred to the docket of Judge Terry for listing in the Tamworth/Armidale circuit of the Federal Circuit Court on a date and time to be advised.
THE COURT NOTES THAT:
There is a conciliation conference listed on 29 October 2015 at 9.30am and a directions hearing listed at 12.00pm 29 October 2015 in Newcastle.
IT IS NOTED that publication of this judgment under the pseudonym Hunter & Bruce is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1467 of 2015
| MR HUNTER |
Applicant
And
| MS BRUCE |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This is an interim decision in the matter of Hunter & Bruce in respect of two children of the parties’ relationship – namely, X born at (omitted) 2009 and Y born (omitted) 2010.
The father, Mr Hunter, is the applicant in the proceedings and seeks interim orders that are as follows:
(1)that the matter be listed urgently;
(2)that the Court grant short service of the application;
(3)that the mother be restrained from moving outside of 25 kilometres from the post office at (omitted);
(4)that the mother and children, X born (omitted) 2009 and Y born (omitted) 2010, return to live in or about the (omitted) area within 48 hours of the date of these orders;
(5)that the parties have equal shared parental responsibility for the children of the marriage, being X born (omitted) 2009 and Y born (omitted) 2010;
(6)that the children live with the mother;
(7)that the children spend time with the father as follows:
(i)from 10 am on the Monday after the father returns to the (omitted) area until 5 pm on the day before he leaves the (omitted) area;
(ii)at other times;
(8)that the father is to collect the children from the residence of the mother at the commencement of each period of time the children spend with the father;
(9)that the mother is to collect the children from the residence of the father at the conclusion of each period of time they spend with the father;
(10)the father is to provide the mother in writing his work roster and give such notice as is possible as and when he is in the (omitted) area.
Attached to the father’s initiating application is a parenting plan that the Court has considered. It is a parenting plan executed by the parties. It appears to have been executed as a result of the parties’ attendance at (omitted) Dispute Resolution on or about May 2015. The parenting plan provided for the parties to have equal shared parental responsibility; that the mother and father have the day-to-day care and responsibility of the children; that the children live with the mother and spend time with the father, essentially for a period of seven consecutive nights during the New South Wales term 2 2015 school holiday period, and then at other specific times.
A notation is contained within the parenting plan as follows:
The father notes that he strongly contests X and Y being relocated in (omitted) and he intends to file an application with the Court seeking an order for X and Y to be returned to the (omitted) area.
In support of the orders sought by the father, he caused to be filed an affidavit sworn by him on or about 11 June 2015. The father deposes that he is the father; that he was born in (omitted) 1990; his wife, Ms Bruce, was born on (omitted) 1990; that the parties commenced cohabitation in about 2007, married in (omitted) 2013 and separated in October 2014, although are not divorced. The father deposes to there being the two children of the relationship – namely, X and Y – and that the father currently works for a business known as (employer omitted) as a (occupation omitted) through another business he describes as “(employer omitted)”.
It is the father’s evidence that he works at (omitted) in Western Australia, which is about 100 kilometres off the coast of Western Australia, that he describes as being opposite the town of (omitted).
It is a feature of importance in these proceedings that the father works a roster of some 26 days on and nine days off. The father deposes to normally taking approximately two days to get home and two days to return to work and that one day is taken from the 26 days from what he describes as his days off. In effect, the father deposes to having seven clear days off work after taking into account travel time. The arrangement is something akin to four weeks on and one week off in a five-week roster.
The father deposes to currently living or returning to live, when he is not working, at a property he describes as the former matrimonial home at (omitted). It is the father’s evidence that the home is a three-bedroom brick veneer property. The father describes the home as having an open plan lounge, dining and kitchen. The father sets out in his material that, when he is at home from Western Australia, he resides in the property with this current partner, Ms S, born (omitted) 1993. The father deposes that his father, Mr R, aged 56, will live in the home on a permanent basis when the father is not living at (omitted). The father sets out in his affidavit that his partner Ms S has her own accommodation in (omitted). The father sets out that he will occupy the master bedroom, his father will occupy the second bedroom and the children will share the third bedroom during periods the father is not otherwise away working.
The father gives evidence that, when he is in the (omitted) area not working, he proposes to spend the majority of his time supervising the children but if he is unable to do so his partner, Ms S, or his father, Mr R, would be able to do the same. It is the father’s evidence that his mother, Ms G, lives in (omitted) at (omitted), which is nearby, and she would also be available to assist the father.
The father sets out in his material that he has become aware that the mother has moved from her accommodation at (omitted) and is now residing at (omitted), that he describes as “some five hours drive from (omitted)”. It is the father’s evidence that he is unaware as to the mother’s exact location but he believes that she is living with her sister, Ms L.
The father gives evidence that he is aware that the mother’s parents, Leonie and Mr R, also live nearby at (omitted). It is the father’s evidence and an agreed fact in these proceedings that the mother’s relocation was unilateral – that is, she made a one-sided decision to move with the children. The father sets out at paragraph 21 that he objects to the mother having relocated with the children without his knowledge and he objected to the move.
The father sets out that he believes that the mother is residing with her sister and that she has three children – namely, A, aged eight; B, aged seven; and C, aged four – and that the mother’s sister’s partner, Mr B, also resides at the property.
The father deposes that he has some concerns that the mother has been residing with a person known as Mr E with the children. The father deposes Mr E is also known as “Mr E”. The father suggests that he is unsure as to what the accommodation arrangements might be for the mother with Mr E living at her sister’s home as well.
Prior to the relocation, the father deposes that X attended the (omitted) Primary School and Y attended a (omitted) child care centre three days per week, being Wednesday, Thursday and Friday. The father sets out that he is now of the belief that X is enrolled at the (omitted) Public School, and Y is not attending any form of child care.
The father deposes that, prior to the mother’s relocation, she was residing in a four-bedroom unit at (omitted). The father sets out in his material that, on or about 19 May 2015, he returned from working in Western Australia and received a number of text messages from the mother in which she indicated her desire to relocate to (omitted). It is the father’s position that he did not consent to that relocation. The father sets out that, on 20 May 2015, he attended mediation with the mother with (omitted). An agreement was reached that forms annexure B to the father’s affidavit, being the parenting plan the Court has considered. The father suggests in his material that he became aware that the mother had actually relocated when he telephoned the (omitted) Public School to inquire after X. The father deposes that he spoke with the principal of the school and was advised that X was now enrolled at the (omitted) Public School.
It is the father’s evidence that, on or about 6 June 2015, the mother delivered both X and Y to his mother’s home to spend time. The father gives evidence in his material that the mother demanded that X be returned to her at 9.30 on Sunday, 7 June 2015 and thereafter took him back to (omitted). The father sets out that he had care of Y from 6 June 2015 and proposed to return her to the mother on 14 June 2015, in accordance with an agreement reached between the parties. The father sets out that on Sunday, 7 June 2015, he flew back from Western Australia to be in (omitted).
The father suggests that it was his understanding the mother moved to (omitted) to get away from what he describes as her current partner, Mr E, and to be closer to her family. The father gives some evidence that he is aware that there is an apprehended violence order against Mr E for the mother’s protection due to what he describes as “domestic violence”.
Despite the ADVO the father gives evidence that he is aware that the mother and Mr E continue to reside together in (omitted). The father sets out in his affidavit material that it is his belief that the mother has little support from her family, that her family has a history of what he describes as “family violence” against the maternal grandmother and that the mother has two brothers who live in (omitted), both of whom have spent time in prison for assault and violence. The father suggests there is no basis for the mother’s move to (omitted) other than to make it difficult for him to spend time with the children when he returns to the (omitted) area. The father deposes that he is concerned that, if the mother remains in a relationship with Mr E, the children will be exposed to family violence.
The father gives some evidence that both the children have said to him that they want to live with him. The father sets out at paragraph 45 of his affidavit he accepts these comments would be on the basis that they are missing spending time with him and he believed it appropriate that the children remain living with their mother, provided they are not exposed to violence from Mr E or the mother’s family. It is an agreed fact in these proceedings that the father has expressed his desire to continue working away in Western Australia and that he will at least be working away for some 12 to 18 months from now.
The father sets out in his material that X has said to him, “Mr E calls mum a ‘cumbucket’.” The father suggests that X said to him on the telephone words to the effect, “You’re a spiteful little cunt.” The father sets out at paragraph 47 Y said to him in the presence of his partner, Ms S, words to the effect, “Ms S, mum says you’re a slut but I don’t think so.” It is the father’s position he believes the language being used by the children is wholly inappropriate, as does the Court. The father sets out in his material he seeks an order that the mother be restrained from living with or allowing the children to be near Mr E. It is the father’s evidence that he believes it would be difficult to enforce such an order if the mother were away from the (omitted) area, because of his work commitments.
The mother caused to be filed a response on or about 30 July 2015. The mother seeks interim orders as follows:
(1)That the parents have equal shared parental responsibility for the children X born (omitted) 2009 and Y born (omitted) 2010.
(2)That the children live with their mother in the (omitted) Shire in New South Wales and the father spend time with and communicate with the children as follows:
(a)from 5 pm Friday until 5 pm Monday for one weekend in each five weeks, being the weekend the father is not working in Western Australia;
(b)as agreed between the parties and in accordance with the father’s work roster, with the time to be spent in the (omitted) Shire;
(c)by telephone for not more than 30 minutes every Tuesday and Thursday evening between 6 pm and 7 pm with the father to initiate the telephone contact by calling the mother’s mobile telephone.
(3)That each party refrain from making critical or derogatory remarks about the other or members of the other party’s family in the presence or hearing of the children and each party provide the other a contact number and address for the children when the children are in that party’s care.
The mother sought interim spousal maintenance orders. It was agreed between the parties that the matter to be agitated before the Court was not that of parenting and spousal maintenance but parenting only. The Court does not deal with the respondent’s spousal maintenance application.
In support of the orders sought by the mother, she caused to be filed an affidavit on or about 30 July 2015 sworn or affirmed the same date. The mother deposes to being born on (omitted) 1990 and is currently 24 years of age. She deposes that the father is indeed the father of the two children, X and Y. The mother deposes to having met the father in 2007 through mutual friends and commenced a relationship within one month of having met. It is the mother’s evidence that the parties commenced living together in rental accommodation in (omitted) approximately three months after the relationship commenced.
At the time of the commencement of the relationship, the mother gives evidence that the father was working and studying as an (occupation omitted) and was required to commence work at 6.30 am and was home by 4.30 pm. The mother gives evidence that she gave up her full-time employment to become a stay-at-home mother and that X was then born on (omitted) 2009.
The mother deposes that when X was born the father did not take any time off work to stay home with her and the new baby. The mother complains bitterly throughout her affidavit that, during the course of their relationship, the father would get home from work each day and would not do such things as attend to home duties or take care of X but, instead, went to football training twice per week on Tuesday and Thursday evenings and went to the gym what she describes as “every other day”. The mother sets out at paragraph 15 of her affidavit that the father would work on weekends or play football and that the mother cannot recall any time where the father undertook any cooking, cleaning, bathing or changing of X’s nappies and that it simply never took place.
The mother sets out in her affidavit at paragraph 17 that she is the primary carer for the two children.
Likewise, the mother suggests in her affidavit material that the father did not take any time off work when Y was born. At the time Y was born the mother states the father was working at (employer omitted), which is an employer located at a suburb called (omitted) that she describes as being some 15 minutes’ drive from where the parties were residing at (omitted). It is the mother’s evidence that when the father was employed at (employer omitted) he worked from 5.30 am and would return home at about 6 pm to 6.30 pm. The mother suggests that the father would frequently go straight to football training on a Tuesday and Thursday evening or else go to the gym other nights of the week and thereafter would come home at 9 pm. It is the mother’s position very much in these proceedings that she has been raising the children without the assistance of the father.
The mother suggests that she cannot recall a time throughout the parties’ entire relationship where the father has cared for the children by himself. The mother deposes to there being a difficult relationship with the father whereby they would argue about the father’s lack of contribution to the children or the home and what she describes as his “low tolerance” of the children.
The mother deposes that, when Y was about two years of age, she was in the garage with the father, that Y made a mess with some of the tools and that the father thereafter took a piece of electrical tape and hit Y across the legs so hard it made her skin break, bleed and bruised through her tights. The mother deposes that Y became hysterical and that, when she confronted the father about this incident, the father thereafter told the mother that it took place and he hit her because Y had made a mess of his tools.
The mother suggests at paragraph 23 of her affidavit that she recalled another occasion when X wanted attention from the father but the father wanted to sleep and that the father sat up in bed and hit X around the head hard. This the mother deposes also caused a huge argument between the parties.
Despite these things, the mother suggests that, on (omitted) 2013, she and the father got married at (omitted) in Queensland and that, in late February 2014, the father commenced what she describes as “fly in/fly out” employment in Far North Queensland. The mother deposes the father’s employment meant that the father spent 28 days at work followed by two days travelling and seven days at home, two days travelling and a further 28 day’s work. The mother sets out that the effect the father’s schedule was one where he would spend one week at home out of every five weeks and that this continues to be the father’s work arrangement, to her knowledge.
It is the mother’s evidence that, as a result of the decision by the father to engage in a fly in/fly out position, the father has missed out on most of what the mother describes as “family significant events” in 2014 and some in 2015. For example, the mother deposes that the father missed X’s birthday in 2014 and 2015. The mother complains that the father did not ring X on his birthday this year until 8.30 pm and X was only six years of age and was already asleep. The mother deposes that the father missed Father’s Day in 2014 and 2015 and that she took the children to lunch on Father’s Day in 2014 by herself, and that the father missed Y’s birthday in 2014 and Y’s birthday has not yet occurred in 2015.
It is the mother’s evidence that the father missed Christmas Eve in 2014 and 2015, complaining that he was getting drunk in (omitted) with his friends, and that when he did come to spend time with the children he was what the mother describes at paragraph 28 of her affidavit as “abusive and hung over”.
The mother suggests that, when the father did come home from his work, he would be extremely tired and sleep during the first two to three days he was home and the father would then spend the rest of his time catching up with friends, going to nightclubs or pubs, playing football or going to the gym. It is the mother’s position in these proceedings that she has very much cared for these children without the father’s assistance.
At paragraph 32 of the mother’s affidavit she deposes that the paternal grandfather, Mr R, realised she was being placed under significant stress as a result of looking after the children without the father’s assistance. It is the mother’s evidence that the paternal grandfather offered to look after the children every Saturday night so that she could spend some time away from home without the children. The mother deposes that this allowed her to get things done around the house, such as cleaning, ironing and maintenance, without having to also watch the children the mother suggests she was also able to catch up with friends, which she was never able to do as a single parent. It is the mother’s evidence that, when she did take the children to the father’s parents’ home, the children would be bathed and in their pyjamas ready for bed and that she would have given them dinner and packed breakfast for them. The mother gives evidence that she would return to collect the children from the paternal grandparents’ home the following day by 9 am.
The mother suggests at paragraph 34 of her affidavit that, when she disclosed this arrangement to the father, the father became abusive towards her and said to her words to the effect, “Who are you fucking, you slut?” or, “You’re a disgusting excuse for a mother. You can’t even look after your own children.” The mother suggests that the father became abusive towards her in telephone calls and that he would call her what she describes at paragraph 35 as “incessantly”.
The mother gives some evidence as to matters that took place between the parties in early October 2014 to the beginning of November 2014 at around the time of the parties’ separation. The mother deposes that, as at 14 November 2014, she made up her mind or made a decision that she did not want to be in a marriage with the father and there was no chance of reconciliation.
The mother deposes that, following separation in November 2014, she remained the primary carer for the children and continued to reside in what she describes as the “matrimonial home”.
The mother deposes that, following separation in 2014, the father continued to work in Western Australia on the 28-day-on/seven-day-off routine, meaning that he would not spend what she describes as “substantially significant time” with the children. The mother deposes that, from late October 2014 until the date she swore her affidavit, the father had had a total of five weeks off from work and that those weeks fell in late December 2014, early February 2015, March 2015, May 2015 and early to mid-June 2015. The mother suggests that the father did not take advantage of the time that he had off to spend time with the children.
The mother alleges an ongoing position whereby the father has denigrated her or otherwise been abusive towards her. The mother gives some evidence that there has been some difficulties obtaining a laptop the parties owned during the relationship, as the laptop held pictures of injuries the mother alleges were caused to Y by the father when the father is alleged to have hit Y with the electrical cord after messing up his tools.
Under the heading Relocation, the mother deposes that she relocated to (omitted) with the children on or about 14 May 2015; that (omitted) is 392 kilometres from (omitted) or about five hours drive. The mother deposes that, when she first came to reside in (omitted), she stayed initially with her sister, Ms L, and her family in their five-bedroom home for around two weeks whilst her rental home was painted. The mother deposes to having secured what she describes as a “lovely, modern, new rental home” in (omitted); that the home is a modern three-bedroom home and the cost of the rental for the home is about $250 per week.
The mother deposes to having been born in (omitted) and that she has what she describes as a good support network there. The mother provides evidence that her sisters, Ms L and Ms J, both live in (omitted) with their families, that they both have children and that she is very close to her sisters. It is the mother’s evidence that they talk on the telephone every day and see each other most days. The mother deposes that the children attend school with her nieces and nephews and spend time together after school every day.
The mother deposes that X is enrolled in the (omitted) Public School and the current school term runs from about 13 July 2015 to 18 September 2015 and that X plays junior rugby league in (omitted) every Saturday morning and trains every Friday afternoon, and that X has been picked up to play in two carnivals, which is a district event. The mother deposes that Y is enrolled in preschool for two days per week and that the mother has incurred significant costs in relocating to (omitted).
The mother provides evidence that she is reliant on Centrelink payments because she is a full-time mother and receives no other support from the father. It is the mother’s evidence that if she were ordered to relocate back to (omitted) she would be unable to afford to find suitable accommodation again in (omitted) and be unable to afford to move the furniture to (omitted).
It is the father’s position in these proceedings that he would vacate the former matrimonial home and be prepared to be bound by an order whereby the mother could remain living in the home and he would pay the mortgage.
It is the mother’s evidence that the father is not in a position to spend time with the children during school holiday periods because of his work commitments. The mother deposes that, since her relocation, the father has spent time with the children only on one occasion when he was home for the week in June 2015 and, on that occasion, she drove to (omitted) on Saturday, 6 June 2015 and dropped the children with the father’s mother because the father was not yet at home. The mother gives some evidence that the father arrived home during that evening on Saturday, 6 June 2015 and spent time with X and Y during the day on Sunday, 7 June 2015; that on Sunday she picked X up at 9.30 and they drove back to (omitted) and X had to attend school again the following week, and that Y stayed with the father during the week, meaning that she missed preschool.
During the week, the mother deposes she rang the father because X wanted to speak with Y on the telephone as the children were very close and rarely spent time apart. It is the mother’s evidence that the father would not let X speak to Y and that the father hung up on X.
On 31 July 2015 the Court ordered that the parties make themselves and the children available for interviews for the purposes of the preparation of a limited issues report. The Court has had the opportunity to consider the limited issues report prepared by family consultant Ms J. The family consultant sets out that she conducted interviews at the Family Courts, Newcastle Registry, on 17 August 2015 interviewing: the father, the mother and the children. The family consultant sets out that she read:
a)the initiating application filed by the father dated 12 June 2015;
b)the affidavit of the mother filed 12 June 2015;
c)a notice of risk filed 12 June 2015;
d)a response to an initiating application filed by the mother 30 July 2015;
e)an affidavit of the mother filed 30 July 2015; and
f)a notice of risk document filed 30 July 2015.
One of the issues that was identified during the report was the impact on the mother and subject children if orders were made for her to relocate back to (omitted) from (omitted).
The family consultant sets out her understanding of there being no orders in place and that the children currently live with the mother in (omitted) until the day of the limited issues report, not having spent time with the father since on or about May to June 2015. The family consultant sets out her understanding of the parties’ competing proposals – that is, the father seeking that the children relocate back to the (omitted)/(omitted) area and that the mother seeking she remain living in (omitted) in order to, what the family consultant sets out at paragraph 9, as engage with the support of her family.
The family consultant notes that the mother proposes changeovers at (omitted) for the children to spend time with the father for the entirety of their school holiday period and during the school term the father can spend time with Y, preferably in (omitted), so the siblings are not separated for the week.
The family consultant set out what she describes as “issues in dispute”. The issues are whether the mother should relocate; and what the family consultant describes as a concern around the mother at one stage having had an AVO against her with the person in need of protection being the paternal aunt after she reportedly physically assaulted her.
At paragraph 12, the family consultant sets out:
The main issue of concern is the children being exposed to family violence in the mother’s household, as the mother remains in a relationship with Mr E, who, according to the mother, lives in (omitted) with a friend and occasionally stays at her home, whereas the children reported Mr E lives with them and sleeps in the mother’s bedroom. The children reported Mr E sometimes visits his friend in (omitted), but most of the time he lives with them.
The father has suggested to the family consultant that he believes he could not have a meaningful relationship with the children if they remained in (omitted) and his overall plan was to work hard and make enough money for the long term in order to establish himself in his own business.
Having read the family consultant’s limited issues report, it seems common ground that the children have a close and loving relationship with the paternal family, who have provided care for the children when the mother has needed what the family consultant describes at paragraph 15 as “respite”.
The father suggested to the family consultant the maternal family were not a good support to the mother and, other than her sisters, her family have never bothered to come to (omitted) on a regular basis. The father suggested to the family consultant that the maternal grandparents did not bother to attend their wedding on (omitted) and, when the family consultant asked whether or suggested that they may have been financially constrained, the father advised the maternal grandfather owned his own (omitted) company and the maternal grandmother works full time as an (occupation omitted) and, from his perspective, they had finances able to afford to attend.
The father suggested to the family consultant that the relationship between the maternal grandparents was one historically of family violence and that the mother viewed violence as a normal part of life. The father suggested to the family consultant it was the mother’s experience of life growing up as a child and that she is now in a violent relationship with Mr E.
The father reported to the family consultant that he and the mother separated due to the mother entering into a relationship with Mr E. The father denied ever being physically violent towards the mother or anyone else and that the disputes between the parties during the course of their relationship were verbal and in private only so as to not expose the children to arguing.
The father suggested he became aware of the violence between the mother and Mr E when one of the mother’s friends called the father and advised him that the mother had been beaten up in front of the children by Mr E. The mother suggested to the family consultant that she called the police because Mr E became upset when the father had upset her; that she and Mr E had had a verbal dispute which ended with Mr E biting the mother’s arm. The father suggested to the family consultant that Mr E had also been charged with stealing the mother’s car and an apprehended domestic violence order was taken out to protect the mother.
The father suggested that, whilst the mother reported she was no longer in a relationship with Mr E, he knew that was not the case and that Mr E plays rugby league and rugby union and he had seen Mr E’s name on team sheets with the clubs in (omitted). The father suggested that Mr E moved from (country omitted) 18 months ago and there was no reason why he should have moved to the (omitted) area other than him following the mother in order to continue their relationship. The father expressed his concern for the wellbeing of the children whilst ever they were in or around Mr E.
The father suggests that Mr E caused a significant amount of damage to the former matrimonial home which cost some $5000 to repair, including a smashed door window and holes in the wall. The mother suggested to the family consultant there was a smashed glass pane on the door and that the damage caused to the door was accidental. The mother denied to the family consultant any other damage was caused by Mr E.
The father suggested to the family consultant that, whilst he was away, the mother called upon his family to care for the children so that she could go out with friends almost every weekend. The father suggested to the family consultant that his family understood the mother needed a break from caring for the children and that they were happy to support the mother. The father advised the family consultant the mother had a very close relationship to his sister and had established a number of close friendships over the eight and a half years she lived in (omitted). The father did not accept the mother had more support in (omitted).
The father raised concerns to the family consultant the children would not have access to what he described as “modern facilities or services” or, indeed, the same opportunities, if they remained living in (omitted). He reported that Y recently broke her arm and there were no X‑ray services in (omitted) Hospital so she was taken by ambulance to (omitted) Hospital, which was over two hours away.
When the mother was interviewed, she espoused the benefits of remaining in (omitted). The mother informed the family consultant she has been and the children have been much happier and settled since the mother has received support from her family. The mother suggests that she had, essentially, been a single parent caring for the children on her own whilst the father was away working and that, whilst the father said he was away providing for the family, it was the mother’s allegation the father had a gambling habit and would spend large amounts of money to big-note himself in front of family or friends. It is the mother’s position that the father had prioritised his needs for money and status over spending time with the children.
The mother suggested to the family consultant that there had been some pushing and shoving as well as verbal disputes between her and the father but the police were never called.
The mother reported to the family consultant her complaints that the father would not spend time with the children when he returned home from working but would, instead, make plans to take the mother out and leave the children behind. The mother suggested to the family consultant that the father was always too tired or too short-tempered to spend quality time with the children.
The family consultant sets out that it is common ground the mother has lived in (omitted) for the past eight and a half years after leaving her home in (omitted), due to having a dysfunctional relationship with an older male when she was 15 years of age.
The family consultant suggests that, whilst the father alleged the maternal grandparents only ever came to (omitted) for weddings or funerals, the mother reported they came to (omitted) twice a year to see her and the children and she remained in regular contact with them. The mother suggested to the family consultant that she has always maintained a close and loving relationship with the maternal grandparents and, whilst they only came to visit her twice a year, she thought it was because they could not afford to do so. The mother suggested that she also wanted to remain in (omitted) because the maternal grandfather is very ill with emphysema and vascular disease. It was the mother’s position that she believed the maternal grandfather may have to have his legs amputated and she wanted to be there to support her family as well as have them support her.
The mother was asked by the family consultant about the incarceration of the maternal uncles and she indicated she thought they had been incarcerated for driving offences.
The mother suggested that she did get a great deal of support from the paternal family but it was largely from the paternal grandfather, with whom she has a very good relationship. The mother suggested to the family consultant that she did not have the same close relationship with the paternal grandmother.
The mother suggested to the family consultant that the remained willing to facilitate time between the children and the father if she remained in (omitted).
The mother reported to the family consultant that she had secured her own housing and Mr E did not live with her but resided with a friend in (omitted). The mother agreed with the family consultant that there was a violent incident between herself and Mr E when he had been drinking and was upset because the father had upset her. The mother indicated Mr E does not normally consume alcohol and thought he acted violent because he is not used to drinking alcohol and that she said this behaviour by Mr E was out of character.
The mother reported that she remained in a part-time job in a (occupation omitted) and was trying to provide stability for the children and feels returning to (omitted) will only disrupt the children again.
The family consultant had a chance to interview the children. X presented before the family consultant as a six-year-one-month-old child. He was happy and appeared developmentally within normal parameters and there was no reported issue with behaviour at home or school. It was apparent that X attends the (omitted) Public School and is in kindergarten and, up to the time the mother relocated in (omitted), X was attending (omitted) Public School. The family consultant noted that X enjoys school and is reported to be achieving at an average academic standard and X’s interests are reported as him enjoying rugby league, playing with his cousins and going to (omitted) with his father.
X was able to state his clear views regarding the limited issue. He said he loves living in (omitted) as there is “so much to do”. He said he has his cousins to play with and he has more friends at (omitted) School than he did at (omitted). Y was interviewed also at the same time and jumped in and said X was counting his cousins as his friends which meant that, in reality, he has the same amount of friends as before.
X suggested to the family consultant their current home is bigger than the home they had recently left, which was the mother’s rental property, as opposed to the former matrimonial home. When asked who lived there, both X and Y both said the mother, Mr E and them. The family consultant clarified by asking if Mr E just stays one or two nights or does he live there all the time. The children said he lives there all the time except when he goes to see his friends in (omitted). X reported whilst he does not like Mr E yelling and swearing at the mother and at times he is frightened by the behaviour, he likes it when Mr E lets him stay in bed while Mr E makes him breakfast. X said he likes spending time with the maternal grandparents but misses the paternal grandparents, in particular the paternal grandfather, who would buy them Kinder Surprises. It was common ground the paternal grandfather provided the mother with a great deal of support and, as such, he built a very close and loving relationship with both children.
The family consultant suggested these views are developmentally appropriate, as (omitted) is a new and exciting place for X. The family consultant opined that from X’s perspective, he now has cousins to play with and is able to have more time and freedom to engage in play, as opposed to living in (omitted), where he says he was bored. The family consultant suggested the views appear not to have been influenced by the mother and X’s views are his own experience, where he was able to compare his current arrangements with previous arrangements. The family consultant expresses a view that the current circumstances are much more appealing to X; therefore, it is what he prefers. The family consultant opines that X does not have the maturity or foresight to envisage what living in (omitted) might look like in the long term and how it might impact upon his ability to spend time with the father, for X is only concerned about the here and now.
X wanted the judge to know he likes living in (omitted) but misses the paternal grandfather as well as the father and paternal grandmother. He said he did not miss the father’s partner as he does not like her because she yells at the mother. The family consultant suggests it would appear that there has been conflict in the past where the mother and father’s partner had had verbal altercations with the children present.
Y presented before the family consultant as a four-year-10-month-old child. The family consultant suggests that she presented as a gentle, happy child and appeared to present developmentally within normal parameters. Y enjoys preschool and is reported to have reached age-appropriate milestones. Y was the opposite of X, in that she reported she does not like Mr E because he scares her when he yells and swears at the mother but she enjoys the company of the father’s partner. Y was able to state her clear view regarding the limited issues, saying she wants to come back to (omitted) to live as she misses the father and paternal grandparents.
The family consultant suggests these views are developmentally appropriate, as Y is at an age where she continues to rely heavily on her primary caregiver and peripheral carers to help her organise her feelings.
Y wanted the Judge to know that she likes (omitted) but does not want to live there. She would like to return to (omitted).
The family consultant sets out the observations of the parents and the children:
In the observations between the mother and the children it is evident the children have a close and loving relationship with her. She engaged with the children in a warm, caring manner and they responded according. In observations between the father and the children, they were excited to see him and immediately ran and hugged him. It is not surprising, given they have not spent time with him for a number of months. The father immediately engaged the children in conversation about school and football and Y rarely left her father’s side.
The family consultant suggested under the heading Evaluations that there were limits identified with the report, being there was no subpoenaed material from the New South Wales Police regarding the mother, father, Mr E and the maternal uncles. The family consultant set out it was concerning to her that there has been family violence in the form of mutual verbal abuse and, according to the mother, the father being physically abusive at times when he would push and shove her. Despite these allegations, the family consultant suggests the children appear to have been oblivious to the abuse and view their parents as having been nice to each other.
The family consultant suggests it was pleasing the mother and father had no issues relating to alcohol and other drug abuse, diagnosed mental health disorders, criminal histories, and have no involvement with the child protection services.
The family consultant set out:
It is of concern that the mother remains in a relationship with Mr E and so, should the court find Mr E poses a risk to the children, she may need to choose between her relationship with Mr E and a relationship with the children.
The father does not seek orders that the children reside with him. It is a feature of these proceedings where I must only choose where the children live as their father does not offer himself as an alternative carer to the children on a full-time basis. It is the father’s stated desire that he will continue to work the roster he does, working away for some 12 to 18 months from now.
The family consultant suggests there may be some concern with respect to the maternal uncles if they have been convicted for violence or drug-related offences. The family consultant suggests there is significant concern with respect to Mr E.
The family consultant sets out:
It would appear that both parents are loving, capable and nurturing. They have the capacity to co-parent effectively, as long as they are the one who makes the arrangements and do not have third parties interfering.
At paragraph 72 under Evaluation, the family consultant sets out:
It is evident that the father spending weeks at a time away from the mother and children has placed all of the responsibility of parenting onto the mother and, at times, she has needed the support of the paternal family to help her cope. The father’s commitment to provide for his young family should not be criticised at all but, in practical terms, he became the absent father and the mother was the sole carer, who has struggled to cope on her own.
Paragraph 73, the family consultant sets out:
It is reasonable to expect that, after years of relying on the paternal family, the mother now wants to harness the support of her own family. In doing so, she now feels supported and is much happier in herself. As a consequence, her outlook on life and the way she feels about herself is reportedly having a positive effect on her ability to parent.
The family consultant suggests:
It is pleasing the mother and father were able to negotiate spending time arrangements for the children after the limited issues report. Whilst the mother was concerned the father may not return the children into her care, nevertheless she agreed to the children spending time with the father.
At paragraph 75, the family consultant suggests it is of benefit the father has retained the matrimonial home for the mother and children to move back into should orders be made for the mother and children to relocate back to (omitted), particularly if the mother left the rental property with rent being unpaid. Paragraph 76, it suggests the impact of the father’s proposal with regard to limited issues on the children will be that they will be returned to the home, the community and the school they have been familiar with all their young lives. They can continue to have relationships with the paternal grandparents, who have been hands on supporting the mother and, as such, they have built a very close relationship with the children. Moreover, in the short term, they can continue to spend time with their father when he is home from work for the work and, in the long term, if the father’s plans come to fruition, he can spend alternate weekends and midweek time as a minimum.
The family consultant opines that on the downside, if the mother feels emotionally unsupported in (omitted), this may impact upon her mental health and have negative implications for the children. The impact of the mother’s proposal with regard to limited issues on the children will mean that, if the mother continues in her relationship with Mr E, then the children will be placed at risk of harm due to family violence.
If Mr E no longer plays a role in the mother and children’s lives and the mother remains in (omitted), then she will seemingly have the support she needs from her family to help parent the children. The flow-on effect of the mother feeling happy and supported is that she will then have the emotional resources to be able to effectively parent the children. It is the case here where the family consultant is of the view that the mother has largely been caring for the children in circumstances where the father has been away working.
The family consultant suggests at paragraph 79:
It is evident by the children’s presentation that the mother has done an exceptional job and there is little reason why she should not continue to do so.
The family consultant warns against the children’s views being given significant weight at the children’s young ages and them having been in (omitted) only a short period of time. The family consultant at paragraph 83 suggests that, if the children are exposed to family violence from Mr E and, as such, if the mother chooses to continue her relationship with Mr E, then the children may be best placed with the father. If Mr E does not pose a risk to the children, then the mother may benefit from remaining in (omitted) because of support of the family.
Under heading Recommendations, it sets out:
If the Court finds the children are at unacceptable risk of harm in the mother’s care due to family violence from Mr E and the mother refuses to end her relationship with Mr E, then the children may benefit from being placed in the father’s care. Being removed from the mother, who is their primary carer, would undoubtedly have a significant impact upon the children’s emotional and psychological states; however, being exposed to family violence is also extremely damaging and traumatic and has long lasting implications. If the Court finds the children are at risk in the mother’s household, not only due to Mr E but also due to the maternal uncles, and injunction ought be made so the mother cannot bring the children into contact with them. This is only if they have been incarcerated for violent and/or drug-related offences which would place the children at risk of unacceptable harm. If the Court finds the mother’s capacity to parent is bolstered by her having the support of her family in (omitted), then it is recommended the mother remains in (omitted) and the children spend time with the father as agreed. Further investigations on limited issues should be undertaken by way of full family report with interviews to include both the maternal and paternal grandparents.
The Court has read and considered the exhibits tendered during the course of the proceedings. The Court has heard and considered the submissions made by counsel and solicitors in the proceedings.
Parenting proceedings are governed by part 7 of the Family Law Act 1975 and, in determining the outcomes of parenting matters, the Court must consider the best interests of the child or children as the paramount consideration. Whilst that is the paramount consideration, it is not the only consideration. In AMS & AIF Kirby J held:
...a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parties. If there is a conflict between these considerations, priority must be accorded to the child’s welfare and rights; however, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.
The objects of part 7 are to ensure the best interests of the child by both parents having a meaningful involvement in their children’s lives, that the children are protected from physical or psychological harm, that they receive adequate and proper parenting and that the parents fulfil their duties and meeting their obligations and parental responsibilities.
In determining what is in a child’s best interests, the Court must consider the matters set out at section 60CC. When making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. This presumption may be rebutted in cases of child abuse or family violence or when the evidence establishes it is not in a child’s best interests for it to apply. In the event Court orders the parties to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA, which provide for a consideration of the children spending equal time with the parents. If the Court finds that is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. This legislative approach must be followed in all parenting cases.
This particular case has as one of its elements the issue of relocation. Much has been written and said about relocation cases, such that there may be a perception that they are a unique type of case to be determined differently from others. The jurisprudence, however, is clear that such cases remain to be determined, like all parenting matters, by consideration of the best interests of the child in the context of the legislative framework. In Taylor & Barker, Bryant CJ and Finn J said:
...when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principles has been not to deal with that change, or relocation, as a separate or discrete issue but, rather, just as just one of the proposals for the children’s future living arrangements, at least insofar as that approach is possible –
in that regard –
see U & U (2002) 211 CLR 238 and KB & TC (2005) 33 FamLR 2471.
Their Honours went on to say:
However, consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages of – and that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with both parents.
The decision in A & A: Relocation Approach is authority for the principle that, in reaching a decision in cases where one party proposes to relocate with a child or children of the relationship, the Court cannot proceed to determine the issue in a way that separates the issues of relocation from that of residence and the best interests of the child. Compelling reasons for or, indeed, against the relocation need not be shown. The best interests of the child are to be evaluated taking into account considerations including legitimate interests of both the resident and non-resident parent. Where the best interests of the child remains the paramount consideration it does not oblige a court to ignore the legitimate interests and desires of the parents. If there is a conflict between these considerations, priority must be accorded to the child’s welfare rights. If a parent seeks to change arrangements affecting the residence of or contact with a child, he or she must demonstrate that the proposed new arrangement, even if that new arrangement involves a move overseas, is in the best interests of the child.
During the course of submissions by counsel for the father sought to rely upon the decision in Morgan & Miles, a decision of Boland J, particularly relying on paragraph 88 that states:
It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: A Report to the Attorney-General Prepared By the Family Law Council (Family Law Council of Australia, Barton, 2006) make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the types of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C & S remain apt and relevant to determination of these cases.
In the decision of C & S, Warnick J set out:
In my view, it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a relocation, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with respect to one of its parents from what it or they had been immediately beforehand.
The comments made by Boland J in Morgan & Miles and those of Warnick J demonstrate a position often adopted by the Court when dealing with relocation matters on an interim basis, but only after a consideration of section 60CC, section 61D and section 65DAA. Those comments should not be construed as a test, the onus of which lies at the feet of the parent seeking to relocate.
Counsel for the father referred to the case of Hepburn & Noble. In Hepburn & Noble, the central issue in the appeal was the potential importance to relocation decisions of any disappointment that would be suffered by the residential parent restrained from relocating with the child, the extent to which such disappointment might diminish that parent’s capacity and any consequence or adverse effects upon the child. The Full Court recognised there was a material difference between disappointment simpliciter and disappointment that manifests in behaviour that undermines the child’s best interests. Only the latter is particularly influential and there must be good evidence of it.
The Court considers those matters set out at section 60CC. The Court is required to consider two primary considerations, being those found at subparagraph (2)(a) and (b):
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents –
this is a case where, on the face of the evidence before it, there is a benefit to these children having a meaningful relationship with both parents. The Court must consider:
(b)the need to protect the child[ren] from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
This is a case where, without Mr E, the Court could easily find that the children will not suffer physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence in either party’s household. It is the view of the Court, however, that if Mr E remains living with the mother or the children are exposed to him, that they will suffer physical or psychological harm as a result of being exposed to family violence. It is for that reason the Court proposes to make an injunctive order preventing the children from coming into contact with Mr E and an order that the children live with the mother conditional upon her complying with the injunction.
Mr E appears to be a violent person who the children are scared of. They have been exposed to family violence at the hands of Mr E and the mother, in the view of the Court has sought, at least on the face of the evidence thus far, to minimise her relationship with Mr E.
The Court must consider as additional considerations “any views expressed by the child and any factor (such as the child’s level of maturity or understanding) that the court thinks are relevant to the weight it should give [those] views”. The children have expressed a view. The family consultant warns the Court from giving those views weight in circumstances where the children don’t have a significant level of understanding about what it might be to long-term live in (omitted) or remain in (omitted) in circumstances where at least the oldest child is very much simply living in and enjoying a new situation or a new area that he has not lived in previously.
The Court must consider the nature of the relationship with each of the children’s parents. The nature of the relationship between X and Y and the mother is different from that of X and Y and the father. The father has, for a significant period, not lived in the household full time. He has been working away for at least four weeks out of every five and the nature of the relationship between the children and the mother is very much one where she is the primary carer. The family consultant is complimentary of her ability to look after the children. In saying that, the children have been spending time with the father but theirs is very much a secondary attachment because the father, again, has not been there at all times. He has missed occasions because of his work. The nature of the relationship between the children and the paternal grandparents is a very good one and a strong one. They have been a large support for the mother, the paternal grandfather particularly, and the children have a longstanding, loving, strong relationship with him.
The Court must consider the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child or communicate with the child. The Court does not criticise either party for failing to make decisions about major long-term issues in relation to the child. The mother raises much complaint against the father, in that when he has come back from Western Australia he has failed to take the opportunity to spend time with the children or to communicate with the children. The Court does not criticise the father for working the roster he works and the family consultant does not criticise him, either. The mother does criticise the father for coming back from work and prioritising such things as going to the gym or playing sport over his ability to spend time with the children or communicate with the children. In circumstances where the evidence is contested, the Court cannot make any findings about that issue. It is simply a matter in dispute.
The Court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, their obligations to maintain the child. The mother seeks spousal maintenance orders or otherwise complains that the father has not supported the children financially. The Court cannot make any findings about that issue today and the Court notes the mother did not seek to agitate the orders sought by her for interim spousal maintenance. It is a matter where the court may make findings on a final basis but for today the Court can make no findings with respect to the extent to which each parent has fulfilled or failed to fulfil their obligations to maintain the children.
The Court must consider the likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either his or her parents or any other child or other person with whom he or she has been living. The father works in Western Australia. He chooses to return to (omitted). It is by his choice that he does so and, whilst the Court accepts that the father has his parents in (omitted) and that his girlfriend lives with him in (omitted) but at other times she lives away, it is very much the father’s choice to return to (omitted). The mother does not wish to reside in (omitted). She desires to live in (omitted). There will be a separation of the children from the father by virtue of his work and the effect of that separation has been that the children have very much been cared for by the mother on a full-time basis. The father has provided secondary care and the mother even complains that he has not done that. If the children remain living in (omitted), then they will spend less time perhaps than they currently do with the father. It will be very much a choice for the father whether he chooses to return to (omitted) or whether, perhaps, he might choose to return from working and go to (omitted) to spend time with the children, but it is very much the father’s choice. He does not work in (omitted). Four out of every five weeks, the father is away. The father is seeking in part to dictate to the mother in these proceedings that she should remain in (omitted) waiting around for his return. If the father travels and spends time with the children in (omitted), then the effect of the separation will be somewhat minimised. It is not a case in these proceedings where the father seeks an order the children live with him. He did not put that as an option available to the Court. The father has indicated that he desires to remain working away for some 12 to 18 months.
The children will not be separated from the mother so the Court does not need to consider that effect.
The effect of the children being separated from any grandparent or other relative of the child will cause some effect upon the children. They have a strong relationship with the paternal grandfather and the Court does hope that, if the children spend time with the father, over the school holidays, perhaps, that that relationship will continue, but it is very much a secondary relationship as compared to that between the parents and the children.
The Court does consider the effect of the separation of the children from the father’s partner. They also have a good relationship with her. There will be an effect if the mother moves away and the children will be impacted somewhat by that separation.
Ultimately, though, given that the children have resided primarily with the mother in circumstances where she has really been their only carer for four weeks out of every five, the effect will be not as great as otherwise might have been had the children been spending substantial and significant time with the father. They are used to not spending time with the father for lengthy periods and they are used to not spending time with the father’s partner for lengthy periods.
The Court must consider the practical difficulty and expense of a child spending time and communicating with a parent and whether that difficulty or expense will substantially affect the child’s rights to maintain personal relations and direct contact with both parents on a regular basis. One of the practical difficulties in this matter is the father working interstate. As I have said before, he works some four out of five weeks away. Whilst he has nine days off because of the travel component of his employment, he is only ever back for seven days at a time. It makes it difficult, near on impossible, to make any orders other than infrequent time for the father in circumstances where he is not around to spend time with the children every week or, for instance, every second week; and because of his partner’s living arrangements she is not available also or around to spend time with the children every week or every second week. She does not reside in (omitted), other than at times when the father is residing in (omitted).
When considering the practical difficulty and expense of the child spending time with and communicating with a parent, again the Court notes that the father chooses to return to (omitted) when he finishes his employment. He could choose at times to return to New South Wales and instead go to (omitted) rather than (omitted), and it is very much a case where the father seeks that the mother sit in (omitted) waiting for one week out of every five for the father’s return in circumstances where her relationship has ended.
The Court must consider the capacity of each of the child’s parents to provide for the needs of the child, including their intellectual and emotional needs. The father has the capacity to provide for the children. The mother has the capacity to provide for the children, save and except this: the mother has, historically, relied upon the assistance of the paternal family. Her relationship with the father has broken down. Proceedings are now on foot and the parties – if I can say this – the parties are at loggerheads in these proceedings. There is very much a conflict. The mother has moved away in order to obtain support from her family in circumstances where, historically, she has needed support. She has needed support because of the long periods of time the father is away. The family consultant referred to the issue of respite. The mother does not have the father available to her, for instance, to spend every second weekend with the children. She does not have available to her the father so the children might spend Wednesdays overnight so she might do such things as cooking and cleaning, going out and buying groceries or otherwise doing the things she needs to do. She will largely be reliant upon third parties if she needs time away from the children. It is the mother’s position that she obtains the capacity to provide for the needs of the children if she has the assistance of her family. It is not a case of, simply, disappointment that the mother might suffer if she does not move away to live in (omitted). It is a case very much about or concerned with capacity: the capacity of the mother to provide for the needs of the children, including their intellectual and emotional needs, bolstered through third parties because of the father’s inability, through his employment to spend time with the children other than, really, one week out of every five.
The capacity of the mother to provide for the needs of the children, including their intellectual and emotional needs, supported by her family, is a consideration the Court gives significant weight in the current decision.
The Court must consider the maturity, sex, lifestyle and background of the children and of either of the child’s parents, and any other characteristic of the child that the Court considers are relevant. The Court does not give that consideration in any way. The Court is not aware that the children are Aboriginal or Torres Strait Islander children.
The Court must consider the attitudes to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents. The Court raises no criticism of the father’s choice to work interstate. It simply does not. It is just a fact in these proceedings. It is a factor that the Court must take into account but the Court does not lay at the feet of the father any criticism. He has not been irresponsible in being a parent who works away. It is a choice he has made.
The Court is significantly critical of the mother’s attitude to the children and towards her responsibilities of parenthood. She has chosen, on the face of it, to remain in a violent relationship with Mr E and she has chosen to pretend it did not still exist. The Court is of the view the mother has misrepresented her relationship with Mr E for the purposes of, in effect, bolstering her case. She has sought to minimise, by the look of it, the violence taking place between her and Mr E. She has sought to excuse his behaviour in circumstances where the children are significantly scared and affected by the violence inflicted upon the mother by Mr E. The Court will be making an injunction against the children coming into contact with Mr E and an order that the children living with the mother is conditional upon the mother complying with that order – that is, if she breaches the order, the lives with order, will end and the mother will have to come back to the Court as a result of the father or the independent children’s lawyer re-listing the matter. It must be made clear Mr E must not come into contact with these children. The mother must prioritise her relationship with the children over that of her relationship with Mr E.
The Court does find there has been some family violence involving the children, the mother and Mr E. The Court is aware that there has been an apprehended violence order for the protection of the mother against Mr E. Again, it is a significantly concerning matter. The father suggested through his counsel during the course of the proceedings that perhaps, if the mother lived back in the (omitted) area, the father would be better able to police what was taking place in the mother’s household. The father suggests that, whilst Mr E was residing with the mother in (omitted), he occasioned to the mother’s home some $5000 worth of damage. The children were exposed to family violence at the hands of Mr E whilst they were in (omitted). The apprehended domestic violence order was sought and obtained whilst the mother was residing in (omitted). The mother residing in (omitted) did not mitigate against the children being exposed to family violence at the hand of Mr E. The only order that can is that the mother must not bring the children into contact with Mr E.
It is the view of the Court it is appropriate the Court makes an order that the children live with the mother but it be conditional upon the mother’s compliance with an injunctive order so that it is made adequately clear to her that she needs to choose or prioritise her relationship over the children and Mr E, if she wants to be with Mr E, then the children will not be with her. The only reason the Court does not make an order that if she brings the children into contact with Mr E they live with the father is because the father cannot facilitate it because of his work, and although the Court asked counsel about the issue counsel declared that the father was not in a position – was not seeking an order the children live with him. He simply was not. And if the matter comes back as a result of the orders I make today because the children have come into contact with Mr E, then the father will need to reconsider his position: whether he does continue to reside and work in Western Australia; whether he does change his application that the children live with him; perhaps whether the paternal grandfather seeks to join the proceedings and seeks an order the children live with him.
The Court must make orders that would be preferable and least likely to lead to the institution of further proceedings. No matter what orders I make today, there will be further proceedings.
I consider section 61DA, the presumption in favour of equal shared parental responsibility. It is the view of the Court that the presumption in favour of equal shared parental responsibility of both parents should not be rebutted by reasons of abuse of the children. The mother alleges that the father has physically abused Y. The Court cannot make any findings about that in circumstances where the evidence is contested but, on the face of it, there is no evidence available to the Court that would allow the Court to make a finding that there has been an abuse of the child or another child who has been a member of the parent’s family. The Court does not rebut the presumption because of issues of family violence between the parents.
The Court otherwise considers that it is in the best interests of these children that there be equal shared parental responsibility. To use the wording of the Act, the Court does not consider it would not be appropriate in the circumstances for the presumption to be applied when making the order. And otherwise the Court considers that it would be in the best interests of the children for the parents to have equal shared parental responsibility. The Court will make an order for equal shared parental responsibility of the children between the parents.
I consider section 65DAA and it provides that the Court is to consider the children spending equal time or substantially significant time with each parent in certain circumstances. The Court considers whether the children should spend equal time with the father and the mother. It is the view of the Court that it would be in the best interests of these children that they spend equal time but I must also consider reasonable practicalities found at subparagraph (5) of section 65DAA. Subparagraph (a) provides the Court must consider how far apart the parents live from one another. They live too far apart for there to be equal time.
The parents’ current and future capacity to implement an arrangement for the child to spend equal time or substantial and significant time with the parents: because of the father’s work commitments, where he is working four out of every five weeks, he does not have the current capacity to implement an arrangement of equal time. The parents’ current and future capacity to communicate: the parents do have a current and future capacity to communicate with each other and resolve difficulties that might arising in implementing an arrangement of that kind. The impact that the arrangement of that kind would have on the children: in the view of the Court, probably a positive one, despite the youngest child’s age – despite Y turning five this year.
Equal time is not reasonably practicable, so I turn to substantial and significant time, which is defined at subparagraph (3) to be – time the child spends with the parent that includes days that fall on weekends and holidays and days that do not fall on weekends and holidays. The time the child spends with the parent allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child. The time the child spends with the parent allows the child to be involved in occasions and events that are of particular significance to the parent. Certainly it is in the best interests of the children that they spend substantial and significant time with the father, but I again turn to subparagraph (5) of section 65DAA.
The parents live too far apart, and I will say that the father works too far away. He works in Western Australia for the majority of his time. Because of that, he could not spend substantial and significant time, even if the mother lived in (omitted). Even if the mother lived in (omitted), the father could not spend substantial and significant time with the children because his work commitments are such that it does not allow him to do so. Whilst he might spend time with the children that falls on weekends and holidays and days that do not fall on weekends and holidays, it does not allow the father to be involved in the children’s daily routine. One week – seven days – out of every five week period is not such that it allows the father to be involved in the child’s daily routine.
“Substantial and significant time” means substantial and significant but it also means, in my view, time that is such that there is some frequency so that perhaps a week does not go by where the father is not spending time with the children so that he is involved in the children’s daily routine. The father does not have the current and future capacity because he says for the moment that, for at least the next 12 to 18 months, he intends to continue working in Western Australia to implement an arrangement of substantial and significant time.
Parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind: again, I think the parties have that ability. They have the current and future capacity to communicate sufficiently to overcome issues that might arise in implementing an arrangement of that kind, and the impact that the arrangement would have on the children would be a positive one, but again the father works too far away. That is the effect of the father’s work that causes the Court to allow the mother to continue to reside in (omitted). The father seeks the mother move back to (omitted) in circumstances where, for four weeks out of every five, he lives in Western Australia; where, for four weeks in every five, the mother will be waiting around, where perhaps she will be hoping to rely upon the paternal family in circumstances where her relationship with the father has been fractured, in circumstances where the only respite she might receive is as a result of going hat in hand to the paternal family in circumstances where – I say it again – her relationship has ended with the father.
So, having regard to those matters found at section 60CC(2)(a) and (b), (3)(a) to (m), having regard to section 61DA, having regard to those matters found at section 65DAA, having regard to Hepburn & Noble, Goode & Goode, having regard to Morgan & Miles, having regard to C & S, it is the view of the Court the only orders I can make are the following because I think they are in the best interests of the children.
I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of Judge Myers
Date: 13 November 2015
Key Legal Topics
Areas of Law
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Civil Procedure
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Negligence & Tort
Legal Concepts
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Appeal
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Duty of Care
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Negligence
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Damages
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Causation
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