Ireland and Maine (No 2)
[2010] FamCA 686
•6 AUGUST 2010
FAMILY COURT OF AUSTRALIA
| IRELAND & MAINE (NO. 2) | [2010] FamCA 686 |
| FAMILY LAW – CHILDREN – Relocation to Gold Coast – Shared parental responsibility orders requested by parties – Principles in parenting matters – Conflict and tension of the parties – Issues of violence – The emotional health and wellbeing of the party seeking to relocate – Consideration of time to be spent by other parent – New partners – Related financial issues to relocation and parenthood – Orders made for children to live with mother and be relocated to the Gold Coast FAMILY LAW – PROPERTY – Just and equitable division of net proceeds of sale of home – Loans to parents – Superannuation |
| Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61D, 61DA, 65DAA |
| Minagall v Ayres (1966) SASR 151 Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 In re J (a child) (FC) [2005] UKHL 40 Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 62 ALJR 70 A v A: Relocation approach (2000) FLC 93-035 AMS v AIF; AIF v AMS (1999) FLC 92-852 U & U (2002) HCA 36 Taylor and Barker (2007) FLC 93-345 Sampson and Hartnett (No. 10) (2007) FLC 93-350 Starr and Duggan [2009] FamCAFC 115 McCall and Clark (2009) FLC 93-405 Rosa and Rosa [2009] FamCAFC 81 Collu and Rinaldo [2010] FamCAFC 53 Pitken and Hendry [2008] FamCA 186 Fitzroy and Fitzroy [2009] FamCA 954 Lansa and Clovelly [2010] FamCA 80 Crowley and Mendoza [2010] FamCA 597 Mallahorn and Mallahorn [2010] FamCA 631 MRR v GR (2010) 263 ALR 368 |
| APPLICANT: | MR IRELAND |
| RESPONDENT: | MS MAINE |
| FILE NUMBER: | MLC | 2283 | of | 2009 |
| DATE DELIVERED: | 6 AUGUST 2010 |
| PLACE DELIVERED: | MELBOURNE |
| PLACE HEARD: | MELBOURNE |
| JUDGMENT OF: | YOUNG J |
| HEARING DATE: | 12, 13,14 AND 15 JULY 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MS SMALLWOOD |
| SOLICITOR FOR THE APPLICANT: | GILLIAN COOTE FAMILY LAW |
| COUNSEL FOR THE RESPONDENT: | MR DAVIS |
| SOLICITOR FOR THE RESPONDENT: | KEMPSONS LAWYERS |
INDEX
ORDERS
ISSUES
APPLICATION
AFFIDAVITS RELIED UPON BY PARTIES
THE CHILDREN
AGREED OUTCOMES
NOTICE OF CHILD ABUSE OR FAMILY VIOLENCE
FAMILY VIOLENCE
PREVIOUS COURT ORDERS
BACKGROUND FACTS
POOL OF ASSETS AND LIABILITIES
B PROPERTY
H PROPERTY
SUPERANNUATION
OBSERVATION OF WITNESSES
STANDARD OF PROOF
RELEVANT LEGAL PRINCIPLES
FAMILY LAW ACT 1975 (Cth) – RELEVANT SECTIONS
S 60CC CONSIDERATIONS
S 65DAA
FATHER’S PARENTING AND RESIDENTIAL PROPOSAL
MOTHER’S PARENTING AND RESIDENTIAL PROPOSAL
FATHER
MOTHER
FATHER’S POST SEPARATION TIME SPENT WITH THE CHILDREN
PARTIES’ EARLIER PROPOSED MOVE TO QUEENSLAND
FAMILY REPORT – MR A
MS M
BEST INTERESTS AND EQUAL TIME
BEST INTERESTS AND SUBSTANTIAL AND SIGNIFICANT TIME
SECTION 60CC(3)(d)
ORDERS - TIME TO BE SPENT BY FATHER
VENUE FOR CHANGEOVER
ADDITIONAL ORDERS
PROPERTY – APPROACH TO DIVISION OF NET ASSET POOL
SECTION 79(4)
SECTION 75(2) FACTORS
JUST AND EQUITABLE OVERVIEW
CONCLUSION
Orders
IT IS ORDERED:
Children
THAT all previous parenting and children’s orders be discharged as at the commencement date of the second week of the Victorian September school holidays in 2010.
THAT the mother and father (“the parties”) have equal shared parental responsibility for the children of the relationship C born … June 2004 and G born … December 2007 (“the children”).
THAT the children live with their mother.
THAT the children be permitted to be relocated by their mother to live on the Gold Coast, Queensland, from the commencement of the second week of the Victorian September school holidays in 2010.
THAT the children spend time with the father as follows:
(a)for two (2) weekends during each of the Queensland school terms (but not during the months of school holidays and to coincide with a long weekend in Queensland (if practicable) and -
(i)on one (1) such weekend the mother and the children are to travel to and from Melbourne at dates and times to be agreed; and
(ii)on the other such weekend the father is to travel to and from Queensland from Friday afternoon to Monday morning or otherwise as agreed (and to Tuesday if it is a Queensland long weekend);
(b)during Queensland school holidays:
(i)for the first two (2) weeks (13 consecutive nights) in January 2011;
(ii)in the December / January periods yearly thereafter and commencing 2011 / 2012 for 18 consecutive nights at dates and times to be agreed with Christmas Day to be with the mother in 2010 and in alternate years thereafter;
(iii)for one (1) week (7 consecutive nights) in each of the school term holidays in April, June, and September;
(c)at all other reasonable times and for an agreed period subject to the children’s schooling and activities when the father, or his parents, are in Queensland subject to the mother having been given no less than twenty-one (21) days prior written notice thereof;
(d)twice weekly, or more regularly as agreed, by electronic means including telephone, skype, webcam and e-mail, and for telephone time the father is to telephone the children at pre-arranged and convenient times and at his expense and the mother will ensure the children are available to receive such telephone calls;
(e)the mother, when the children are on holidays or time spent with the father, have contact with them, at her expense, likewise as provide for in (d) hereof;
(f)subject to agreement with the mother, and all cost and travel issues being resolved by discussion, on his birthday and Father’s Day if such time can be incorporated within (a), (b) or (c) hereof;
(g)again by agreement the father’s time with the children should not occur on Mother’s Day or on her birthday if such time can be excluded from (a), (b) or (c) hereof;
(h)at all other reasonable times agreed between the parties;
(i)for all time spent periods the changeover venue be the school C attends on the Gold Coast, or the airport(s) or as agreed by the parties from time to time.
THAT the mother pay the reasonable return air travel costs of the children and herself (but not the father) for the time spent periods provided for in orders 5(a)(i) and 5(b)(i), (ii) and (iii) hereof but for a maximum of seven (7) occasions in each calendar year commencing 2011 and liberty is specifically reserved to each of the parties to apply in writing and upon proper material filed for a variation of this payment requirement on or after 1 February 2014.
THAT the father pay all of his air travel costs and related expenses.
THAT all air flights are to be booked, by agreement between the parties and failing agreement by the mother, as early as possible to take advantage of discount offerings from the air lines (and it is intended by this order that all such air flights (save January 2011) be booked and paid for by the parties at least nine (9) months in advance of time to be spent with the children).
THAT the father is to be in substantial attendance at all periods of time spent with the children in Melbourne, save that for his actual daytime work hours, if required, then the children can be cared for by his parents or Ms D.
THAT the mother be responsible for transport of the children to and from Coolangatta or Brisbane airports and the father be likewise responsible for all such transport to and from Melbourne or Avalon airports and at all times the children be at the airport(s) one (1) hour prior to departure.
THAT the mother authorise all Queensland schools and kindergartens to provide to the father, at his expense, copies of all reports of the children and notices of special events including school concerts and parent / teacher interviews.
THAT the parties and their servants or agents be and are each restrained from abusing or denigrating the other.
THAT both parties are to keep the other fully informed of any medical or health issue of either of the children or any incident involving their wellbeing which occurs whilst in their care.
PURSUANT to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.
PROPERTY
THAT each party retain their superannuation entitlements.
THAT each party retain their motor vehicles and all personal assets, shares, chattels and possessions.
THAT the net proceeds of sale of the H property, estimated in the sum of approximately $301,500, be apportioned as to 58% to the father and 42% to the mother.
THAT the parties be each responsible for any loan, debt, advance or borrowing owing to their parents and indemnify and keep indemnified the other in that regard.
THAT unless otherwise specified and except for the purposes of enforcing any order:
(a) any joint tenancy of the parties in the H property is expressly severed;
(b)each party be solely liable and indemnify the other against any liability encumbering any item of personal property to which that party is entitled pursuant to these orders.
THAT all extant applications be otherwise dismissed and the proceedings be removed from the docket of Young J.
THAT all documents subpoenaed to Court be forthwith returned by the Subpoenas Clerk, Family Court, Melbourne Registry to the person or organisation who produced such documents to the Court.
IT IS CERTIFIED
THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the mother and father.
IT IS NOTED
A.THAT in pronouncing the orders for payment of air travel costs the Court is accepting of the assurances of the father that he will regularly pay to the Child Support Agency, for payment out to the mother, his assessed monthly child support sum.
IT IS NOTED that publication of this judgment under the pseudonym Ireland & Maine is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 2283 OF 2009
| MR IRELAND |
Applicant
And
| MS MAINE |
Respondent
REASONS FOR JUDGMENT
ISSUES
The mother and father are the parents of two children C born in June 2004 and G born in December 2007 (“the children”). They have lived all of their short lives in Melbourne. The mother, having spent her past twelve years living in Melbourne, primarily in a relationship with the father has now proposed to relocate with the children to the Gold Coast, Queensland. That move is opposed by the father and thus all parenting issues and an assessment of the best interests of the children are the primary matters before the Court. The issue of the best interest of the children and the parent with whom they should live and the location where they would be best placed were difficult decisions in a somewhat finely balanced hearing.
The parties’ Melbourne home has been sold and there is an agreed pool of assets, subject to an assessment of certain liabilities, primarily an alleged loan from the parents of the father which facilitated the parties being able to acquire ownership of and equity in their Melbourne home. The Court is asked to divide the property and superannuation of the parties and I have made appropriate orders that are, in all of the circumstances, just and equitable.
APPLICATION
FATHER
The father’s initiating application was filed 18 March 2009 and was amended pursuant to his further application filed 11 December 2009.
By a further amended application filed 5 February 2010 pursuant to Orders that I had made on 22 January of that year the father then sought, and in the hearing before me he now sought the following amended orders, in summary:
§that the parents have equal shared responsibility for the children;
§that the children live with the mother in Victoria and spend designated weekly and school holiday periods with him;
§in the alternative, and if the mother were to alone relocate herself to Queensland, the children live with the father and spend designated monthly and holiday times with her;
§for the parties to facilitate communication and travel arrangements and for each of them to be kept advised of medical and health issues for the children;
§as to property, for the proceeds of sale of the former matrimonial home to be apportioned either:
§by the payment to the mother of a sum equal to 40% - 45% of the pool of assets; or
§upon repayment to the mother’s parents of $25,000 and the father’s parents of $131,200 then for the balance of monies to be apportioned as to 70% to the mother and 30% to the father;
§each parent otherwise retain their superannuation and other assets and their motor vehicle.
In final submissions Counsel for the father varied the orders sought for division of property so that the father then sought, in the alternative, orders that:
§each party retain their own superannuation, each of their parents be repaid the then agreed sums they had advanced to the parties and the remaining pool of assets then be divided as to 70% to the mother and 30% to the father, or (and in the alternative);
§each party retain their superannuation entitlements, neither of the parents be reimbursed for funds advanced and the net proceeds of sale of the home be divided as to 40% to the mother and 60% to the father.
MOTHER
The mother’s response application was filed 28 April 2009 and subsequently amended on 25 November 2009. In each of those responses the mother sought orders for equal shared parental responsibility and for the children to live with her and spend time with their father. Her initial orders sought were filed on the basis that she would continue to reside in Melbourne. She did not then propose to relocate the children to Queensland. It was by her subsequent amended response that she sought an order that the children live with her in Queensland on the basis that she pay the costs of their air travel.
The further amended response of the mother was filed 19 February 2010 and at that time orders for division of property were sought in addition to the parenting and children’s orders and the relocation application then before the Court.
In her Outline of Case document filed with the Court at the commencement of these proceedings the mother has refined her response and she now seeks the following orders, in summary:
§ that the parents have equal shared responsibility for the children;
§ that the children live with her in Queensland;
§that the children spend time and communicate with the father on weekends and school holidays and otherwise by electronic means as therein proposed;
§that the mother bear the costs and responsibility for the children’s travel arrangements, including the cost of an adult to accompany the children for so long as is necessary;
§that upon the sale of the home the net proceeds after payment of costs, expenses, outgoings and proper liabilities including both the mortgage debt and the commercial line of credit, but not any alleged loan to the father’s parents, be then divided as to:
§the sum of $25,000 to her parents; and
§the balance to be divided between each of the parties as to 60% to the mother and 40% to the father.
In the conduct of her case, and in her further evidence and by submissions made by her Counsel on her behalf the mother further modified her orders sought in that:
§she discontinued her claim for her parents to be repaid the sum of $25,000;
§the property and superannuation of the parties be divided equally, rather than the 60% - 40% division in her favour as she had earlier sought; and
§she identified her intended departure date to the Gold Coast, with the children, to be in the second week of the upcoming September 2010 school holidays on the basis that the father would have the first week of those holidays with the children in Melbourne and thereafter they would relocate to a home, school and kindergarten on the Gold Coast to reside permanently with the mother.
There was both a level of flexibility and uncertainty in the mother’s proposals as I have hereafter substantially evaluated. As the mother has now disclosed a relationship with her new gentleman friend who lives in a southern suburb of Brisbane the future proposed residence of the mother and children is initially intended to be on the Gold Coast but thereafter may vary dependent upon the development of that relationship. Her case in this regard is that there would be less than one hour in travel time between her intended Gold Coast address or any other likely Brisbane address and that factor, by itself, would not further disadvantage either the children or the father in his interstate travel to spend time and communicate with the children.
AFFIDAVITS RELIED UPON BY PARTIES
FATHER
The father relied upon and I have read the following documents:
§each of his applications before the Court but primarily his amended initiating application filed 5 February 2010;
§his trial affidavit filed 5 July 2010;
§the affidavit of his father, Mr Ireland Senior, filed 5 July 2010;
§the affidavit of his partner Ms D filed 5 July 2010 (and this witness was not required for cross examination);
§his financial statement filed 8 July 2010;
§his Outline of Case document.
MOTHER
The mother relied upon and I have read the following documents:
§each of the response, the amended response and the final amended response filed 19 February 2010;
§her trial affidavit filed 2 July 2010;
§the affidavit of Ms M filed 23 June 2010;
§the affidavit of her mother, Mrs Maine Senior, filed 1 July 2010 (and this witness was not required for cross examination);
§her updated financial statement filed 2 July 2010;
§her Outline of Case document.
The further affidavit relied upon is that of the Family Consultant Mr A to which is annexed his detailed Family Report dated 27 April 2010. Counsel for both parties cross examined this witness.
THE CHILDREN
C is six years of age and is in his first year at an eastern suburbs Primary School. His health is good and his mother said that he is progressing well at school. G is approaching three years of age and attends crèche on two days in each week. Again there are no issues with her health.
AGREED OUTCOMES
In the conduct of this case the parties agreed and, on a careful evaluation of all of the evidence for the reasons which I have later explained, I have accepted that:
§there should be an order made for the parents to share equal parental responsibility for the children; and
§the two children should not be separated from each other (this was never an issue in the hearing).
NOTICE OF CHILD ABUSE OR FAMILY VIOLENCE
On 28 April 2009, that is on the date of the hearing before Registrar Sikiotis, the mother caused to be filed a Notice of Child Abuse or Family Violence wherein she alleged against the father that he had:
§engaged in family violence by physically and/or verbally assaulting her on various occasions during the relationship and in particular since 1 January 2008 and most particularly on 30 November 2008, often in the presence of the children;
§had engaged in family violence by physically and/or verbally assaulting her on various occasions since separation at changeover, often in the presence of the children.
Each of these allegations have been the subject of detailed evidence by the parties in their affidavits, they have been cross examined upon these facts and in the determination of orders that are made in the best interests of the children I have hereafter considered the evidence and made appropriate findings, where required.
FAMILY VIOLENCE
As I am asked to pronounce an equal shared parental responsibility order I must apply a presumption that such an order is in the best interests of the children. Notwithstanding the requested and agreed outcome by the parties the Court must evaluate the evidence and determine that the presumption is not rebutted (s 61DA(2)).
The term “family violence” is defined in s 4 of the Act as follows:
“Family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal well-being or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal well-being or safety”.
The mother alleged family violence within that above definition and thus her evidence and the response of the father must be examined and I have made findings upon the issue of parental responsibility.
PREVIOUS COURT ORDERS
This Court has previously pronounced the following orders to which I have had regard.
Order of 28 April 2009
On this day Registrar Sikiotis ordered, until further order that:
§the children live with the mother;
§the children spend time with the father on each Wednesday and Sunday during daylight hours at specified times and otherwise as agreed;
§the changeover take place in the foyer of the N Police Station;
§the father is not to be affected by alcohol during his time with the children;
§the father be in substantial attendance with the children during his time spent with them;
§each party keep the other informed of any medical treatment required by the children and each ensure that the children take any recommended or prescribed medication.
There were various notations annexed to that order which provided a record of concerns or positions of each of the parents including:
§the father denied the necessity for certain orders to have been made insofar as they impacted upon him or could be seen to be critical of his time spent with the children or his consumption of alcohol;
§the children would not be attending child care on Wednesday;
§the father did not believe the police station changeover was appropriate or in the best interests of the children and he proposed to seek a variation to that order at the next adjourned hearing date;
§the mother did not believe the introduction of Wednesdays was appropriate but agreed only on a trial basis and reserved her right to vary that order at the next hearing.
Order of 12 June 2009
Orders were made on this day by Senior Registrar FitzGibbon following a defended hearing where both parties were represented by Counsel. It was ordered, until further order, and in summary that:
§the father spend time with the children overnight from 5.00 p.m. Tuesday until 5.00 p.m. Wednesday and from 5.00 p.m. Saturday to 6.00 p.m. Sunday;
§the changeovers continue at the N Police Station;
§both parents undertake post separation parenting courses and further undertake individual counselling to address the issues of conflict between them;
§each of the parents, their servants and agents were directed not to denigrate the other to the children or in the presence or hearing of the children.
Order of 30 November 2009
Orders were made by consent on this day by Registrar Sikiotis for the father to spend time with the children, in summary, as follows:
§from 4.00 p.m. on December 23, 2009 until 12.00 noon on 26 December 2009 with changeover at the N Police Station;
§from 7.20 a.m. on 3 January 2010 until 5.00 p.m. on 11 January 2010.
It was further ordered for the purposes of the father’s time to be spent with the children that:
§the father travel to Coolangatta Airport, Queensland for the purposes of collecting the children;
§changeover on 3 January 2010 be at that airport;
§changeover on 11 January 2010 be at the N Police Station;
§the mother pay for the children’s flights to Melbourne on 3 January 2010;
§other orders providing the father’s time with the children that are inconsistent with the above orders be suspended for that period.
It was noted to the orders that the father was to fly to Coolangatta Airport on or prior to 3 January 2010 at his own expense.
Order of 22 January 2010
The matter came before me on this day and I made orders and directions for hearing and ordered the preparation of a Family Report upon specific issues and matters that were clearly addressed within that order.
Additionally I then determined that an Independent Children’s Lawyer would not be appointed and the mother, through her Counsel, then advised the Court that pending the defended hearing of these proceedings she would remain living in Melbourne and not relocate the children to live elsewhere within Australia.
BACKGROUND FACTS
The following agreed facts were presented to the Court:
§the father was born in 1976 and is 34 years of age;
§he has established a new relationship with Ms D, a full-time manager who has a three year old daughter, P born in February 2007. The father of that child now resides in the United Kingdom;
§the mother was born in 1972 is 38 years of age. By occupation she is a part-time teacher. She has formed a new relationship with Mr L, 38 years of age who resides in a southern suburb of Brisbane. He has two daughters, aged 6 and 5 years. He is a member of the Australian Defence Force. His salary was not known to the mother and not disclosed to the Court. He shared care of his daughters on an agreed roster basis with his wife who works for an airline;
§the mother and father commenced a de facto relationship in 1999 and separation occurred after a particularly concerning incident on 30 November 2008;
§without admission of responsibility, the father consented without legal representation to a Family Violence Intervention Order on 2 December 2008. Prior to the expiration of that Order the mother applied for an extension, but subsequently withdrew such application;
§following the 30 November 2008 separation incident the father was charged by the police with recklessly causing injury (to the mother) but subsequently that charge was not prosecuted;
§the mother’s parents live on the Gold Coast, Queensland;
§the mother has no other family in Victoria;
§the father’s family live in Melbourne, as does his brother and his family;
§by agreement the former matrimonial home at H was sold on 28 June 2010 for $685,000 and it is the net proceeds of the sale of that property, and other assets and superannuation of the parties that are to be divided by Court order in these proceedings.
POOL OF ASSETS AND LIABILITIES
For the purposes of the property proceedings the parties initially adopted the assets, liabilities and financial resources as were identified in paragraph G of the Outline of Case document filed on behalf of the mother.
At the conclusion of evidence Counsel for the father produced a statement of assets and liabilities which was then accepted on behalf of the mother and I have set out hereunder that agreed financial position:
Proceeds of sale of the property at H $685,000.00
Less agent’s commission 11,302.50
Less advertising 3,893.41
Less conveyancing 1,075.00
Less preparation costs incurred by the wife 5,314.76
Less home loan 341,598.25
Less line of credit 20,244.00
Net proceeds $301,572.08
Father’s motor vehicle – Kia Rio $6,000.00
Mother’s motor vehicle – Nissan Maxima $4,000.00
Telstra Shares (held by father) $642.00
Tattersalls Shares (held by father) $1,243.00
Surplus share proceeds retained by father
(allowing $7,000 retained by each party) $7,000.00
NET ASSET POOL EXCLUDING
FUNDS FROM PARENTS $320,457.08
Loan from the father’s parents $131,200.00
Gift from the mother’s parents $25,000.00
NET ASSET POOL AFTER REPAYMENT
TO PARENTS $164,257.08
SUPERANNUATION
Colonial (father) $52,793.00
Australian Super (mother) $21,792.00
EPAS (mother) $2,258.00
$76,843.00
As to the liabilities there was evidence that the mother’s parents had contributed an additional $8,000 towards moving expenses but those additional monies were claimed to be set off against the other expenditure identified in paragraph 6 of the affidavit of the father’s father. That would be a proper outcome. Otherwise, and in any event, the mother had only ever sought that adjustment of $25,000 to be repaid to her parents and had not admitted the obligation to repay the much larger sum advanced by the father’s parents.
The finally agreed sum of $131,200 from the father’s parents was calculated as being the difference between their purchase price of the property at B (a sum of $292,500) and the monies they were paid by the parties pursuant to their borrowing from the Commonwealth Bank; that is the father’s parents then received repayment of $161,200. Thus the balance of the alleged loan was agreed in quantum to be $131,200 (but actually was $131,300). The issue for determination is whether in fact it was a loan and was repayable, in whole or in part by the parties.
Counsel for the mother acknowledged during the hearing and, contrary to the original orders sought by her, that there was a financial contribution provided by the father’s parents and whilst, at the commencement of the hearing, he assessed that sum on instructions generally to be $100,000 that quantum was ultimately a matter of agreement in the sum of $131,200. That was subject however to the question of its required repayment or otherwise whether it should be treated as a direct financial contribution made by the father’s family pursuant to s.79(4)(a) of the Family Law Act1975 (Cth) (“the Act”).
B PROPERTY
In late January 2003 the father’s parents purchased in their name the property at B. The purchase price was $292,500. The settlement statement for that purchase was annexed to the affidavit of Mr Ireland Snr. The property was purchased as a home for the parties and they paid rent to the father’s parents from late January 2003 until April of the following year.
Prior to the birth of their first child the parties needed alternate accommodation as the B property was not of an appropriate size for their family. They were not in a position to borrow the required sum from a bank to purchase a new home and did not have the required deposit. An arrangement was therefore struck where the father’s parents, as vendors, generously agreed to sell them as joint purchasers on title the B property for $161,200 with the intention that that property thereafter be sold and a more appropriate home purchased for the family.
Annexed to the affidavit of the father is the statement of adjustments relating to the sale of B property to the parties. It is there recorded that a deposit of $32,000 was paid but I find as a fact that such a payment was not made. Indeed it was finally agreed between Counsel that the mother was incorrect in her memory and knowledge thereof. The adjustments showed the payment of stamp duty of $12,460 and I find that was paid by the parents.
The parties were able to borrow from the Commonwealth Bank a sum sufficient to pay $161,200 to the parents.
An issue in dispute was as to the then value of B property and specifically what financial benefit did the father’s parents provide to the parties by way of a discounted favourable purchase price. It was said by the parents that the B property was then valued at $325,000, a modest increase over its earlier purchase price from January of 2003. Ultimately this issue was not required to be determined by the Court as the then value of B property was agreed by all parties to be the price at which the father’s parents had purchased the property, that is $292,500.
The evidence of Mr Ireland Snr. in his affidavit was that he and his wife were owed a sum of $163,800 as a loan which had been advanced to the parties pursuant to a very clear verbal agreement. That quantum however was later agreed at $131,200 during this hearing.
Mr Ireland Snr’s evidence, supported by the father, was that each of the four family members involved sat at a table and discussed the sale of B property at the reduced price and the loan and financial responsibility of the parties then to repay that sum to his parents. No formal loan documents were drawn and the matter was said to be a verbal agreement within family. The father’s parents have not intervened in the proceedings and have not sought, directly, an order for repayment to them of the required sum. It was agreed that a period of more than six years have elapsed since those monies were provided to the parties and thus there was agreement that the enforcement of oral repayment obligation would not be successful in a civil court hearing.
Mr Ireland Snr. asserted that the agreement which he and his wife had made with the parties was that if they sold or vacated the home they were then intending to buy the full amount of the agreed advance or loan would then be repaid. He asserted that that agreement was made in the presence of and to the knowledge of the mother. It was further asserted that it had been agreed if there was a separation between the parties the monies would also be repaid. No legal advice was sought at the time by any of the parties to the financial transactions.
Mr Ireland Snr. asserted that the agreed sum of $131,200 was owed by the partnership of the mother and father and that repayment was required. Significantly however he did not intervene in these proceedings and formally sought no such repayment order.
Notwithstanding Mr Ireland Snr’s. assertions of the loan debt and the legal and moral obligation upon the parties to repay $131,200, when pressed in cross examination he, somewhat reluctantly, but very properly conceded that he would not pursue the debt and would not institute proceedings for the recovery of that amount as against either the father or the mother. That is an important fact to which I have given significant weight, but it does not lessen the very generous financial assistance provided by the father’s family and which I have properly reflected in my order for division of the property.
The evidence of the mother on this subject is primarily to be found in paragraph 129 of her affidavit where she denied that there was any discussion about money owing to the father’s parents and further denied that there was any arrangement to borrow or repay monies to them.
In her cross examination she stated that there had not been any conversation about buying the home, the financial circumstances thereof and the discounted price of B property when sold jointly to the parties as a foundation for them thereafter to acquire H property. The mother said she signed documents as required and they must have included the various transfers of land, contracts to sell and purchase and of course the documents of mortgage from their bank. I am inclined to a somewhat generous view of her evidence that she had a limited financial knowledge and understanding of those transactions and was most likely not fully concentrating upon those discussions. The fact that the mother otherwise alleged that a reason for the sale of B property jointly to them was to obtain tax benefits for Mr Ireland Snr. and his wife was inaccurate but also highlighted that she was privy to and had knowledge of some of the issues of a family discussion, albeit she was only prepared to disclose those which she erroneously felt were of some benefit to her financial argument before the Court.
The evidence of the mother and specifically her statement in cross examination that the father’s parents should not be repaid their contribution money, and her denial that there was ever a loan for such monies is curiously to be contrasted with her orders sought and request for repayment to her parents of the sum of $25,000. It is hard to imagine the circumstance where the mother could have been advised to deny the contribution or repayment on behalf of the Irelands, but to claim for her parents their more modest advance of funds to her family. I do not accept the mother’s evidence on this property issue where it conflicts with that of Mr Ireland Snr.
The reality of the financial situation is that the parties could not have purchased their family home in H without that equity in B property being available to them. On any assessment of the evidence the father’s parents have been very generous to the parties and have made a very considerable direct financial contribution to them being in a position to purchase and live in H property.
I have assessed the financial generosity of the father’s parents in the context that they were providing a family home not only for the parties but, perhaps more particularly, for the grandchildren.
In the hearing the financial circumstances of the father’s parents became known to the Court. Mr Ireland Snr. encountered financial difficulties in 2007 which required the sale of his then home and he is now renting the property where he resides with his wife and where the father lives on a casual basis. Mr Ireland deposed in paragraph 16 of his affidavit that “whilst our financial position is not dire, we are not able to forego the repayment of these funds”. His evidence is that whilst he is employed full-time as a store manager he is nearing retirement age and his wife is not in paid employment. The mother, somewhat casually in her evidence, asserted that they own another property. I have no particulars of that situation.
I find that the father’s parents have made a significant financial contribution directly to the acquisition of the H property. I find there was a family discussion at which the mother was present and there was an oral agreement for them to be repaid the sum of (correctly adjusted) $131,200 if that relationship broke down or if the parties agreed to sell their family home, notwithstanding the fact that the father’s parents had elected not to separately enforce that liability.
I do accept the evidence of Mr Ireland Snr. and the father and I contrast that the mother’s knowledge was incomplete and very casual given that she would never have jointly acquired a home, either at B or H without the substantial financial contributions of the father’s parents.
The loan is not strictly enforceable on the evidence before me but it is most certainly relevant as a direct financial contribution made to the acquisition of B property and H property to which I have given full and proper weight.
H PROPERTY
The B property was sold in May 2006 for $313,000 and at that time the balance of mortgage repayable to the Commonwealth Bank was $167,700.
The property at H was purchased for $482,000 and financed by the equity in B property, monies that the mother asserted were loaned by her parents, some savings and the balance by way of a loan from the Commonwealth Bank of $350,000.
H property has now sold for $685,000 and its settlement is scheduled for 27 August of this year. By agreement the parties have accepted that there will be net proceeds of approximately $301,500, subject to any further adjustments, and these monies comprise the bulk of available assets, subject to family liabilities, to be divided between the parties.
SUPERANNUATION
The parties have agreed upon their existing superannuation entitlements and the father has some $28,000 more in superannuation than does the mother. He is in continuing full-time employment and is four years younger than her and these are matters to which I have had regard in determining a just and equitable settlement of property.
By agreement there is to be no superannuation split and each party will therefore retain their own superannuation and I have carefully balanced the proper division of all other net assets having regard to those additional entitlements that are now available to the father.
OBSERVATION OF WITNESSES
I have had the benefit of observing the father, mother and this witness in giving their evidence on oath and in observing them in the courtroom. Those observations have been of very real assistance to me in formulating appropriate orders and are acutely available to a trial judge and the legal authority for such a position is that part of the Judgment of Kirby J in Minagall v Ayres (1966) SASR 151 at 154 per Hogarth J; see also Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 at 313:
“By conventional theory, the observations made by a trial judge of the appearance and demeanour of a witness giving evidence are not only available to be used in the determination of a dispute but amount to important ingredients of the decision-making process. They normally provide the primary decision-maker a distinct advance which controls, and even limits, the exercise by the appellate court of its statutory functions in an appeal by way of re-hearing: see Owners of Steamship Honestroom v Owners of Steamship Sagaporack [1927] AC 37 at 47; Jones v Hyde (1989) 63 ALJR 349 at 351; 85 ALR 23 at 27; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178ff.”.
I have had the significant benefit of hearing all of the evidence in its entirety, of reading carefully all of the affidavits, the exhibits to the affidavits and the other documents in the proceedings. I have reflected upon and have weighed all parts of the individual testimony against the balance of all evidence prior to delivering these reasons for judgment.
The unique role and observations of a trial Judge has been highlighted by the House of Lords, Appellate Committee, in the case of In re J (a child) (FC) [2005] UKHL 40 and I refer to this opinion to support my observations in this case.
In paragraph 4 and paragraphs 10-12 (inclusive) of the Judgment of Baroness Hale of Richmond the role of the trial Judge in the evaluation of oral evidence was considered and it was there stated that:
“10. The Court of Appeal appears to have intervened on the basis, first, that the judge’s conclusion on the risk was not justified by the evidence and second, that he had given it too much weight in his overall conclusion. Yet the assessment of the risk depended entirely on the judge’s evaluation of the father’s present intentions and likely future behaviour and its impact upon the child. There was objective evidence of the risk in the fact that the father had made the allegations in writing and then withdrawn them when he saw that they were damaging rather than helping his case. Whether he might do so again depended crucially on the judge’s evaluation of his oral evidence. The judge was the only person who could do this. He concluded that, while the father was sincere in his current intention not to raise such allegations again, there was a serious risk that if disputes arose in future, as they might easily do, he would resurrect them. These were findings of credibility and primary fact with which, for all the reasons explained by Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360, at pp 1372-3, an appeal court is not entitled to interfere”.
I take this opportunity to emphasise the importance in this case that I have received by observing the parents in giving their evidence. It has afforded me a very real and meaningful opportunity to assess their character, behaviour and personality. In such a case where parenting orders and relocation is sought and where the future domestic circumstances, lifestyle and re-partnering are matters in issue then I consider that those opportunities afforded to me as the trial Judge were of very particular significance. Specifically they have assisted me in formulating the orders made for the future welfare and best interests of the children.
STANDARD OF PROOF
The appropriate standard of proof that I have applied is the civil standard, namely the balance of probabilities. The more serious that the matter was, or its importance in this case, then I have more strictly examined the level of proof required.
S.140(1) of the Evidence Act 1995 (Cth) provides that a Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. Sub-paragraph (2) further provides that, without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject – matter of the proceeding; and
(c) the gravity of the matters alleged.
In Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2, Dixon, J. said:
“Except upon criminal issues to be proved by the Prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal.”
Subsequently the High Court said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 62 ALJR 70 at 170 – 172:
“The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct”.
The civil proof therefore requires “a reasonable satisfaction” following a search for the truth and an evaluation of evidence adduced having regard to both statute and case law and in the context of the respective power or capacity of a party to produce or counter such evidence (Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 454).
The law requires that satisfaction be on a level of probability not certainty. I approached the determination of issues of proof on the basis that I can be fairly and properly satisfied of any alleged fact before accepting same. Conjecture or suspicion is not sufficient as the proof of the fact must be both rational and reasonably open and likely.
RELEVANT LEGAL PRINCIPLES
In A v A: Relocation approach (2000) FLC 93-035, the Full Court (Nicholson CJ, Ellis and Coleman JJ) summarised the relevant principles which they then said applied to relocation cases (at 87,551-2):
§the welfare or best interests of the child, as the case may be under the relevant legislation, remains the paramount consideration but it is not the sole consideration;
§a court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances;
§it is necessary for a court to evaluate each of the proposals advanced by the parties;
§a court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be 'permitted';
§the evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests;
§it is necessary to follow the legislative directions espoused in s.60B and s.68F (as it was) of the Family Law Act (Cth) 1975. The wording of s.68F(2) (as it was) makes clear that the Court must consider the various matters set out in (a) – (l) of that subsection;
§the object and principles of s60B provide guidance to a court's obligation to consider the matters in s68F(2) (as it was) that arise in the context of the particular case.
Counsel for the mother very substantially relied in his submissions upon the decision of the High Court in AMS v AIF; AIF v AMS (1999) FLC 92-852, and in particular that part of the Judgment of Kirby J at paragraphs 186, 188, 191 and 192. Those paragraphs are as follows:
“[186] That brings me to the mother's complaints that the Full Court failed to correct errors of principle in the approach of the primary judge which resulted in the determination that she should have sole custody of the child but under conditions which subjected her to the restrictions of an extremely severe injunction. If she wished to remain the custodial residence parent, that injunction effectively confined her, with the child, to the Perth metropolitan area. It prevented her from making a new life for herself in the Northern Territory, as was her desire”.
[188] I do not consider that the references in the reasons of the primary judge [220] and in those of the Full Court [221] to the provision of "permission" to the mother to return to the Northern Territory with her son indicated an erroneous understanding of the decision which had actually to be made. As I have shown, this was the very way in which the parties framed their respective affidavits and presented their arguments. It was unsurprising, therefore, that the judges should also slip into the same language. Notwithstanding this, it would be preferable that such references to "permission" to relocate be avoided. The word has a tendency to distract attention from the jurisdiction actually being exercised. In this case, it concerned the custody and guardianship of the child, residence arrangements and access and contact orders, all of which fell to be decided having regard to the welfare of the child as the paramount consideration [222] . To treat the determination of the residence of the child, and the connected issue of custody, as dependent upon the giving or withholding of "permission" to a parent to relocate his or her residence may divert attention from the child's welfare, to the competing needs and demands of the parents in conflict”.
“[191] First, to impose upon a custodial (or residence) parent the obligation to demonstrate "compelling reasons" to justify relocation of that parent's residence, with consequent relocation of the residence of the child, is not warranted either by the statutory instructions to regard as paramount the welfare of the child [225] or by the practicalities affecting parents. Parents enjoy as much freedom as is compatible with their obligations with regard to the child. The freedom continues, including with respect to their entitlement to live where they choose. At least in the case of a proposed relocation within Australia, the need to demonstrate "compelling reasons" imposes on a custodial parent an unreasonable inhibition. It effectively ties that parent to an obligation of physical proximity to a person with whom, by definition, the personal relationship which gave rise to the birth of the child has finished or at least significantly altered.
[192] Whilst a proposal to take a child to a place where it would be exposed to risks and dangers might, in a particular case, warrant a need for "compelling reasons", such seems scarcely applicable for relocation within Australia. In the latter case, the attention of the decision-maker should ordinarily be to the possibility of formulating different arrangements for access and contact which would meet that child's welfare. If "compelling reasons" were the criterion for relocation, few indeed would be the custodial parents who could meet that standard. The result would be a very serious inhibition upon the freedoms of custodial parents, mostly women, without any commensurate or equivalent inhibition upon the freedoms of movement of non-custodial parents”.
Although each of these reported decisions were delivered prior to the legislative amendments of 2006, the guiding principles remain largely relevant and applicable although they have been expanded upon. The effect of those legislative amendments, which placed a more substantial emphasis on both parties having a meaningful relationship with the child and a substantial and significant involvement in their life, have been discussed in numerous relocation authorities, of this Court and also of the High Court in its decision of U & U (2002) HCA 36 where their Honours said:
“89. “Whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent.”
Those more recent reported decisions of this Court include Taylor and Barker (2007) FLC 93-345, Sampson and Hartnett (No. 10) (2007) FLC 93-350, Starr and Duggan [2009] FamCAFC 115, McCall and Clark (2009) FLC 93-405 and Rosa and Rosa [2009] FamCAFC 81, Collu and Rinaldo [2010] FamCAFC 53, Pitken and Hendry [2008] FamCA 186, Fitzroy and Fitzroy [2009] FamCA 954, Lansa and Clovelly [2010] FamCA 80 and most recently the significant decisions of Murphy J in Crowley and Mendoza [2010] FamCA 597 and Mallahorn and Mallahorn [2010] FamCA 631. All of these decisions save for the last two mentioned were delivered prior to the High Court’s recent decision in MRR v GR (2010) 263 ALR 368.
I have accepted that I should deal with the proposed relocation of the children to the Gold Coast as one of the specific parenting proposals for their future living arrangements. I have therefore not separately considered relocation as a discrete issue but it is wholly intertwined with the children’s welfare and best interests and with which parent they should reside and what time should be spent with the other parent. I have examined all options and have had due and proper regard to all practical issues and difficulties. (see Taylor and Barker (supra).
In Starr and Duggan (supra), which must be read subject to cases thereafter decided, the Full Court (Boland, Thackray and Watts JJ) identified a “logical approach” to the determination of parenting cases involving a proposed relocation. Their Honours said:
“38. It is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
§ first make findings concerning the relevant s 60CC factors;
§ then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
§ then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.”
In MRR v GR (supra) the High Court substantially considered the meaning and applicability of S 65DAA of the Act and I have hereunder identified paragraphs which I regard to be of particular importance from that Judgment:
“9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
“13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.[footnote and citation omitted]”
“15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s. 61DA(1) is not determinative of the questions arising under s. 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
In compliance with the guidelines of the High Court and earlier Full Court decisions I have evaluated the best interests of the children in their primary living arrangements and the question of spending equal time or other periods of time with each of the parents and then the reasonably practical circumstances of that situation. I have concentrated upon “the reality of the situation” and the actual circumstances of the parents and children in their present and future life circumstances whilst at all times understanding that it is the best interests of children that is at the heart of all parental applications and such a determination is made by reference to the primary and additional considerations identified in s 60CC of the Act.
My approach has been to evaluate and make findings on each of those relevant legislative requirements and therefore my analysis of the evidence and the competing proposals is somewhat substantial and exhaustive.
In my approach to the application of the Act and reported decisions I have first considered and determined the best interests of the children. I had regard to s 60CA and the objects and principles identified in s 60B of the Act as set out hereafter. Should the parents have equal shared parental responsibility, notwithstanding any agreement by the parents that such a situation should apply? That required a careful evaluation of the presumption of shared parental responsibility and the circumstances of abuse and family violence where it could be rebutted (s 61DA(2)(a) and (b)). I then examined the primary and additional considerations of s 60CC(2) and (3) of the Act. Thereafter, and subject to the applicability or otherwise of equal shared parental responsibility the Court must evaluate s 65DAA and make findings as to whether equal time is reasonably practical and, if not consider and evaluate “a substantial and significant time order” or such other time as is proper and in the best interests of the children.
This evaluation therefore involved a close understanding and scrutiny of the proposals of each of the parents, both their positive aspects and short comings and a holistic appreciation of all of the benefits and negatives afforded to the children in every circumstance.
There is no obligation to demonstrate “any compelling reasons” to justify a relocation. The freedom of parents however must ultimately be subject to what is best for their children all matters considered and all practical circumstances examined.
It is not sufficient for the mother to establish, as her Counsel concentrated upon, a strong desire to return to Queensland, the presence of her family and new supportive friend, her health issues and all of the work and social opportunities there located. Ultimately there must be a balancing and determination of all of the wider family and society issues and benefits, including the sharing of equal time or substantial and significant time or other time with children and the benefits that the children derive therefrom. Into that mix the freedom of movement of the primary parent and emotional and stability issues, the quality and relationship that the children have with the other parent and their extended family and all practical, financial and geography matters must be addressed.
I have had specific regard to the comments of the Full Court in McCall and Clark (Bryant CJ, Faulks DCJ and Boland J) where at paragraph 135 they said:
“We accept that the availability of family support including such things as reliable quality child care, financial assistance, and emotional support for a parent and a child, can be very important considerations in any parenting case particularly one involving relocation, and are all matters to be balanced and weighed when considering competing proposals. But those factors, or a lack of them, do not automatically support a finding that a party’s parenting capacity will be compromised particularly when they may be counterbalanced, at least in part, by other benefits, including the sharing of day to day care of a child.”
A very helpful statement of principles has been enunciated by Murphy J in Crowley and Mendoza (supra) where at paragraph 41 he recently observed that:
“41.The decision in MRR, in combination with the legislative requirements (and bearing in mind the Full Court’s decision in Goode v Goode (2006) FLC 93-286), would, then, appear to me to require a court contemplating the making of parenting orders to:
§First apply a presumption that it is in the best interests of the subject children for their parents to have equal shared parental responsibility in respect of them;
§Next, make findings as to whether any “family violence” or “abuse”, as each is defined, exists;
§Further or alternatively, then make findings, by reference to s 60CC(3) about such matters pertaining to best interests relevant to the issue of whether parental responsibility should be shared equally;
§Determine, accordingly, whether the presumption of equal shared parental responsibility is, as a result of findings about each (or, perhaps, both) of the above matters, respectively, inapplicable or rebutted or, presumption or not, whether such an order should be made;
§If the presumption is inapplicable or rebutted, and such an order should not otherwise be made, make findings about best interests relevant to a determination of what ultimate orders are in the best interests of these particular children in their particular circumstances (s 65D; s 60CA; s 65AA). (As the Full Court put it in Goode, the enquiry about best interests is “at large”);
§If the presumption is not inapplicable or rebutted, or if it be determined that an order for equal shared parental responsibility should in any event be made, the court must (s 65DAA) then proceed to:
oMake findings as to whether the subject children’s best interests are best met by an order for equal time; and
oMake findings as to the matters prescribed in s 65DAA(5), and, as a result;
oMake findings about whether an equal time order is reasonably practicable (that is, in the words of the High Court, make “a practical assessment of whether equal time parenting is feasible”); and
oIf it is not, conduct the same process, but this time with findings directed to a consideration of whether a “substantial and significant time” order (as defined – see s 65DAA(3)) should be made;
§If neither an equal time order, nor a substantial and significant time order, should be made, proceed to determine the orders which the earlier findings point to being in the subject children’s best interests. (s 65D; s 60CA; s 65AA)”.
The above approach of Murphy J represents a careful analysis of previous cases and the guidelines of the High Court. It has highlighted the various questions which should be both asked and answered by the Court in their deliberations on parenting and children’s matters involving a relocation within Australia.
FAMILY LAW ACT 1975 (Cth) – RELEVANT SECTIONS
Section 60CA of the Act requires the court, in deciding whether to make a particular parenting order in relation to a child, to have regard to the best interests of the child as the paramount consideration. This has been my primary focus throughout my evaluation of all of the evidence.
The objects of and principals underlying Part VII of the Act and its amendments are intended to ensure that the best interests of children are paramount and are fully and wholly considered by the court in determining appropriate parental responsibility orders.
It is important for the mother and father to wholly understand their obligations and for such purpose I therefore have incorporated within this Judgment, the provisions of s60B of the Act. The objects are there stated to be:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children.
Sub-paragraph (2) thereof highlights the principles underlying those objects which are:
(a)children to have the right to know and be cared for by both parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture.
I have had careful regard both to the objects and principles as expressed above. There likely are emotional, behavioural, conduct and personality issues which may, on the facts of this case partly nullify those objects and principles. The mother and father have a largely un-co-operative and strained relationship with personal and communication issues which I have more fully explored. Ideally, as parents, they should be more understanding and respectful of each other and it would be very helpful if they each reflected upon and acted more positively to perform their primary obligations to the children.
Section 61DA of the Family Law Act 1975 provides that there is a presumption of equal shared parenting responsibility when making parenting orders. That presumption relates solely to the allocation of parental responsibility as defined in s 61B. The specific sub-section provides as follows:
(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.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
The basis upon which that presumption may be rebutted by evidence is identified in sub-section (4) where it provides as follows:
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Each of the parties requested an ongoing equal shared parenting arrangement notwithstanding the relocation outcome. I have carefully assessed s 4 of the Act and the evidence of family violence as between the parents, though such violence has never been directed to the children. Predominantly those allegations made by the mother against the father are of violence, abusive and insulting threats and bullying, intimidation and the physical assaults on the afternoon of the separation and in the period after 1 January 2008. The previous family violence order obtained in the circumstances of the separation was evidence of the then family violence, though that order has now lapsed.
Notwithstanding my findings upon the evidence related to family violence I have concluded that it is in the best interests of the children that the presumption of equal shared parenting responsibility be accepted and orders be made as sought by the parents in this regard. I conclude that the overall weight of the evidence is such as to negate the requirement of s 61DA(2) and apply that presumption. Indeed I concluded that it is important for these children, and for their parents, to have and understand and at all times implement an equal shared parenting arrangement, albeit that would require the father to enjoy periods of time with the children that are not substantial and significant time as defined in the Act.
S 60CC CONSIDERATIONS
How the court determines what is in the best interests of children is prescribed by s60CC of the Act and there are both primary and additional considerations that I have fully considered and evaluated. I have identified each of those relevant considerations and evaluated throughout my reasons for Judgment, the evidence of the father, mother and their witnesses upon each of these matters and then further reflected upon them in my determination of orders that are in the best interests of the children.
The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Overwhelmingly the primary consideration in this case is for both C and G to maintain and enjoy a meaningful relationship with both their mother and father. This is a difficult task in parenting cases where there is a continuing level of conflict and which involve a relocation where there is a vast distance between the households. I have carefully assessed the attitude and capacity of the parties and their preparedness to initially develop and then maintain such a meaningful, but not an optimum, relationship with the children to the benefit of the other parent. I have in particular been alert to the very young age of the daughter and the fact that she has had restricted time and opportunity to develop a bond with her father. That is an issue which the Family Consultant has identified and it is a matter of very real importance. The father’s close and loving relationship with his son is, of course, a matter of equal importance and that also would be likely impacted by relocation and geographical distance and a reduction in the regularity of time spent. I have both identified and evaluated those issues.
Sub-section(2)(b) thereof is of limited relevance in that there has not been any past or present need to protect either of the children directly from physical or psychological harm. The facts that were identified in the evidence were that the children were in the car on the date of the separation incident on 30 November 2008 or otherwise were in the home and would have heard occasional verbal abuse of the mother by their father. Further on changeover prior to the police station venue being commenced they likely would have also witnessed some difficult and tension filled circumstances and abuse of the mother by the father. That said however these children have not otherwise been exposed to any real and continuing level of neglect and family violence. I do not have a current concern for the children within this primary consideration. Their parents now have separated and clearly identified future lifestyles and through their post separation parenting courses, the Family Consultant’s Report and its interview process and with their own increasing maturity the parents must now understand those unfortunate past influences and impact upon the children. Whilst I have therefore carefully evaluated this primary consideration, and save for past specific findings made within the relationship, I do not see a future and relevant direct impact upon the children.
The relevant additional considerations of s.60CC(3) must be considered within the framework of deciding the best interests of the children and with whom they are to live and the related relocation issue. Within that framework and having regard to the specific issues in dispute before the court the additional relevant considerations that I have considered and assessed in determining the best interests of C and G are:
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child)
to provide for the needs of the child; including emotional and intellectual needs;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
I have not included sub-paragraph (k) as an additional consideration as the family violence order that was obtained by the police for the mother following upon the separation incident has not been extended and there is no current order extant. I have however had very carefully consideration to all of the past incidents between the parents insofar as they were in the presence of or impacted upon the children and those matters are subsequently discussed in these reasons for Judgment.
S 65DAA
As the parents agreed on the order for equal shared parental responsibility which I have evaluated and accepted, notwithstanding the evidence of some family violence, it was necessary to carefully consider and determine whether there should be a sharing of equal time or whether one parent should otherwise spend substantial and significant time, but not equal time, or other time, with the children.
The very formal obligation upon the Court is to consider in accord with s.65DAA equal time, or substantial and significant time in cases where there is an ongoing equal shared parental responsibility order. For the benefit of the parties the section provides:
Equal time
(1)If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)If:
(a)a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
That further option for delaying any intended relocation to Queensland was rejected by the mother who identified no benefit to the children and no merit whatsoever as it subjected her to the continuing financial stress and uncertainty, the weekly contact with the father and all of the conflict and issues which have arisen therefrom. The benefit of such a delayed departure may have been that the daughter would have more significantly bonded with the father and the extended paternal family and, as such, that will be part of the father’s meaningful relationship with his children which is a primary consideration of the Act. The harm was the delayed security and stability for the children. I have carefully considered and evaluated these issues though I concluded that a delay of some years to any further Court hearing on relocation or any now ordered delayed relocation would not be in the children’s best interests. Such a course of action would likely increase hostility, conflict, upset and otherwise have both financial and emotional implications upon the mother.
Following upon that Evaluation Mr A made certain recommendations to the Court, though he very properly did not offer a professional opinion upon the relocation issue itself which so largely turns upon the determined facts and evidence which I have assessed throughout these Reasons for Judgment. The specific recommendations of Mr A were:
“51.Although [C] and [G] will benefit if their parents were able to reach an agreement about how much time the children will spend in each parents care, it would seem, that at this point in time, this is unlikely to occur. On that basis the Court will need to make findings about a number of the aforementioned issues, not least of which relates to the allegations of family violence, and the role each parent plays in perpetuating the ongoing and currently unresolved conflict.
52.In the event that the Court makes a finding that the children should remain in Melbourne in [the mother’s] primary care, consideration may be given to increasing the amount of time which [G] and [C] spend with their father. A proposal which includes opportunities for two consecutive overnight stays with [the father], each fortnight, with some additional time after school for example, for an opportunity to share a meal with their father on the other week, would be appropriate.
53.In the event that the Court supports [the mother] and the children to relocate to Queensland, the children’s opportunities to spend time with their father will be significantly influenced by the twofold realities of distance and the significant financial costs inherent in air travel between the two cities. It needs to be said, however, such issues would be mitigated by [the father] relocating to Queensland, as discussed above. The alternative reality is that if [the mother] relocates and [the father] remains in Victoria, it is not unreasonable to consider that opportunities for the children to spend time with their father will, by necessity be reduced, this being contrary to what [the father] seeks. Given [G’s] age, however, the more frequent such opportunities are provided, the better. Simply spending time together during school holidays, as proposed by [the mother], is not considered enough to support [G], in particular, to sustain memories of her relationship with her father.
54.In the event that the children are required to remain in Victoria with their mother, it is recommended that handover occur at a Child Contact Centre at a location equidistant from the parents’ respective homes. Such a recommendation is made to further reduce the children’s exposure to their parents’ conflict, as allegedly currently occurs.”
In cross examination Counsel for the mother firmly established, and received from the Family Consultant a very positive response, that she is the parent to whom both children are primarily attached. He said that the father does have a secondary, but nevertheless important, relationship with both children.
He was asked about the various individual proposals of the mother as outlined in paragraph 97 of her affidavit for the purpose of promoting the relationship of the children with their father in the event that she was then living in Queensland with them. Mr A commented that more thought and preparation had clearly been given to the preparation of that list of options, beyond what the mother had previously discussed with him in their interview, but he saw it as a positive that the mother, or those advising her, had turned their mind towards the further promotion of the relationship of father and children if and when they are in Queensland. I most likely consider that a number of these options would have been suggested to the mother or indeed they would add very little to the real level of contact and father/child development. Given the past history of the very real difficulties and limitations upon the father’s time spent with each of the children the real issue here, and a central issue to the outcome of these proceedings, is and must be the mother’s willingness and ability to facilitate and encourage a close and continuing relationship between the children and the father were she to live in and around the Gold Coast. I have found that to be the most likely outcome.
In his viva voce evidence Mr A carefully highlighted the obligation of the mother to have a generous, active and goodwill based attitude and response to the father’s long distance relationship with both children. He rightly emphasised to the Court the need for the mother to be both positive and active in her promotion of that relationship and, clearly, if such were found not to be the case it would and could provide a very significant obstacle to a relocation.
These are difficult issues but important as an additional consideration within the requirement of s 60CC(3)(c). The mother has been very significantly influenced by the father’s physical behaviour, alcohol consumption, family conflict and, to a fair degree her understanding that her relocation may largely have depended upon proving this conflict and lack of communication to the Court and thereby to establish herself as a primary parent involved substantially with the principal care and upbringing of the children. The father significantly contributed to conflict and difficulties of the family and one of the questions now before the Court is whether relocation, and the significant geographical distance that the parties would be apart would lessen immediate conflict, reactions and tactics and promote a more stable future relationship as parents of these two young children.
I have concluded that there are real benefits to the children by allowing their relocation to Queensland. Both parents will then have a more settled local and family environment within their new relationships and where they can and must provide a more secure, stable and emotionally appropriate lifestyle for the children.
The Family Consultant did question an ongoing shared parental responsibility order in this case with its past level of conflict. His evidence was that the “acrimony and tension is of a concern”. I listened carefully to his evidence on these subjects but ultimately I was satisfied with the orders that I have pronounced.
I have most carefully concentrated upon the evidence of this Consultant upon the issue of the children bonding with their father, in particular G and his concerns, clearly expressed, that mere school holiday time is not sufficient for that child to sustain memories of her relationship with her father. I have therefore provided time spent orders that embrace further opportunity for monthly contact and emphasising the need of the father to travel regularly to the Gold Coast and to spend meaningful and enjoyable time with both children.
I ultimately have drawn from the evidence of the Family Consultant his support of the mother as the primary parent and his professional opinion that she would likely better encourage support and promote a meaningful relationship between the father and the children from a Gold Coast base. Ultimately, and upon much reflection, that is a conclusion with which I agree.
MS M
Ms M is a Counselling Psychologist and Family Therapist whom the wife has been professionally consulting since February of 2009. She was referred by her general practitioner.
The letter of referral is not in evidence before the Court but it seemingly identified the separation incident on 30 November 2008 and the anxiety suffered by the mother as a result therefrom and it was in that context of post traumatic stress that the referral to Ms M was then made.
Ms M’s professional qualifications and experience of fourteen years in private practice were before the Court in evidence. She is not a clinical psychologist and her professional role is in counselling and therapy.
Ms M prepared a report dated 5 June 2010 which was annexed to her affidavit filed 23 June 2010 and which was accepted into evidence. Her report was prepared for the purposes of this Court hearing.
Ms M did not bring her client history or notes to Court and unfortunately had only her report before her and thus her evidence was given exclusively from her memory and recollection.
As a general position she saw the mother monthly, largely because of financial reasons in that Medicare allows, initially, twelve visits for a client to a psychologist each year pursuant to which the full $70 rebate is reimbursed and that was all the mother could afford. This witness was of the professional opinion that she should have been consulting with and assisting the mother on a more regular basis.
Ms M has obtained a history from the mother of events surrounding the separation and subsequent issues with the parenting of the children, their changeover and conflict and tension as between the parents.
She assessed the mother as being an anxious and at some times a severely anxious person. There were said to be depressive symptoms evidenced by her tears, low self esteem and difficulty in functioning within her normal environment. She assessed the mother to be “more anxious than depressed” and stated that she had not referred her back to her general practitioner for medication or treatment for any depressive illness. In her evidence she described the mother as being a very fragile person … at the risk of developing a more severe clinical symptom and, in that outlook, expressed the opinion that it was emotionally in the best interests of the mother to be able to relocate with her children to Queensland. The evidence of the witness was that if the mother hereafter live with the children in Queensland then “her anxiety will lessen”.
In her report Ms M assessed and concluded that:
“The psychological impact on [the mother] was that she suffered symptoms of Post Traumatic Stress. This included recurrent and intrusive recollections of the event causing intense psychological distress. She experienced increased hypervigilance around the children and feelings of insecurity in her home. [The mother] avoided activities as well as struggled with feelings of detachment and estrangement from her friendships. Her feelings of low self worth and shame had developed. She found it difficult to experience pleasure in previously enjoyable activities. [The mother] has noted that her feelings of fear had increased substantially.
[The mother’s] relationship with her ex partner [the father] continues to cause [the mother] feelings of fear of intimidation, fear of unpredictability and negative, hostile interactions. Should [the mother] relocate to the Gold Coast, her contact with [the father] will be minimized therefore reducing the psychological impact and distress on her. This may ensure that the relationship is preserved in order that the two parents continue to effectively co-parent in the future”.
It is important to record that Ms M took all of her history from the mother, had not interviewed any other person and that this report was prepared for the purposes of supporting the orders sought by the mother in these proceedings. I therefore have very carefully balanced her viva voce evidence and written report.
One matter of both concern and interest which I raised was the penultimate paragraph of her report where Ms M said:
“[The mother] would benefit from the freedom to choose to rebuild her life. This includes establishing new relationships, having the security and support of family and managing financially”.
Ms M did not know of the mother meeting and developing a relationship with Mr L until she volunteered that fact in their most recent meeting in May of this year. Her evidence was that the mother opened up about the conversation with the words “there is a matter that I have not told you about …”. If indeed the mother had rekindled that relationship from after June 2009 then it had been withheld from her counselling and therapist discussions for almost a full year. It would and should have been a fact of importance if the mother was making meaningful proper disclosure of her lifestyle and all of the issues and facts of and related to a relocation of the children and her to Queensland. I regard her failure to disclose this “relationship” as a significant omission on the part of the mother and it substantially lessened the benefit and impact of this professional report in assisting the mother’s case.
Under cross examination it was put and accepted by the witness that, in layman’s terms, her role with the mother was for counselling and discussion and in an endeavour to make her life and outlook “happier”. Ms M, in that context therefore explored and developed issues and outcomes that were meaningful and of emotional benefit to the mother and thus it is not surprising to read a conclusion that, in her professional opinion, the mother would benefit from the freedom to choose and to rebuild her life. That opinion is, of course, properly given on the basis of that professional relationship but does not have account of the priority and best interests of the children and other significant adults and matters and facts now in evidence before the Court.
Given the importance that the mother now places upon her new relationship with Mr L, it is a matter of significance to which Counsel for the father directed questions that should that relationship likewise fail then that may be another trigger to cause the mother further unhappiness and insecurity. Ultimately with the Court not being given the opportunity to hear or see from Mr L the ability to make more refined determinations on that aspect is severely limited.
There is a level of emotive and inappropriate language in Ms M’s report, particularly the reference to “if [the mother] is imprisoned in a place she does not want to be and has no family support it is highly likely that there will be a negative impact on the children”. The word “imprisoned” is poorly chosen though Ms M did indicate that it was the mother’s word and it was intended by her to convey her thoughts and outlook of being trapped in Melbourne and extremely distressed by being unable to relocate.
Generally I accept the evidence of Ms M at its face value but with an incomplete background history and a counselling outlook it was of limited benefit. The mother is now an emotional, anxious, upset individual who has suffered a level of trauma and has in Melbourne an uncertain emotional and financial future that presently she is facing largely alone and without close comfort and support from family or friends. That will impact significantly and adversely upon the children and that cannot be said to be in their best interests.
BEST INTERESTS AND EQUAL TIME
Section 60CC(3)(e) requires the Court to consider the additional issue of the practical difficulty and expense of a child spending time with and communicating with a parent. Like considerations are part of the evaluation of the evidence required by s 65DAA(1)(b), (2)(d) and (5) in the context of children spending equal or substantial and significant time with each of the parents.
There are direct air flights between Melbourne and Coolangatta or Brisbane. Currently they are affordable when purchased on a discount basis well in advance of the flight day. The mother’s case is that she will spend up to $4,800 per annum on air flights and primarily be responsible for the cost of travel of the children. The parties are each able to deliver and collect the children to and from the airports in Melbourne and in Queensland.
On the basis of the mother and children living in Queensland each of the parents propose the father spend time with the children on a weekend in every month, alternating monthly between Melbourne and the Gold Coast. Additionally the competing proposals provide for extended holiday time and other forms of telephone and electronic communication.
Given that the primary parenting order is on equal shared parental basis I have concluded it is not in the best interests of the children and is not reasonably practical for there to be equal time spent with each parent. The geographical distance, the transport pressures upon the children and the financial costs make such an equal time spent scenario unworkable.
In MRR v GR (supra) the High Court identified not only factors such as the availability and desirability of housing, employment opportunities and the ability to derive gainful income but also the availability of extended family support and the emotional health and wellbeing of the primary parent. All of those matters have been considered ”within the reality of the situation of the parents and child” together with the various other matters identified in s 65DAA(5) thereof.
Neither parent sought an equal time order if the mother is residing in Queensland and the father in Melbourne and that is simply common sense, aside from all issues of what is reasonably practicable and in the best interests of the children.
BEST INTERESTS AND SUBSTANTIAL AND SIGNIFICANT TIME
I now consider if it is in the best interests of the children to make an order that they spend substantial and significant time with their father given the geographical distance, costs, lifestyle and all other issues.
“Substantial and significant time” has been defined in s 65DAA(3), in a mandatory sense, such as children can only be taken to spend such time with a parent if it includes (in summary):
(a)days that fall on both weekends and holidays and during the week; and
(b)time that allows the parent to be involved in the daily routine and in occasions and events that are of particular significance to the children.
For the practical reasons outlined in this Judgment and with the father determined to live in Melbourne even if the children are living on the Gold Coast then the parents have not asked for orders within sub-paragraph (b) above which would have the effect of concluding a substantial and significant time order. Whilst it may be that the orders do provide for time on both weekends and holidays it is not in the best interests of the children and not practicable to make orders whereby the distant parent (in this case the father in Melbourne) could be involved in the daily routine of the children, including particular significant occasions and events in their kindergarten, school, sporting and social lives.
As such, and whilst the orders will largely be accommodating of the time spent that was requested by the father in the event of such relocation to Queensland they strictly do not cover an order for “substantial and significant time” within the meaning of the Act.
I therefore find that it is in the best interests of the children to enjoy suitable and appropriate time with their father but that is not to be formally defined as “substantial and significant time”. It is simply not reasonably practicable and in the best interests of the children to pronounce an order as otherwise would comply with sub-paragraph (3) of s 65DAA.
SECTION 60CC(3)(d)
As an additional consideration I have considered the likely affect of the change in parenthood, and of relocation upon the children. I find that there would be a dramatic and unacceptable impact upon both children if separated from their mother. She has been with each of them throughout their lives and the evidence was that her longest period of separation has been nine days. Any such effect upon the children arising from a physical separation from their father would have less impact to them because of the time and circumstances post separation. The father’s primary application remain that the children live with the mother, albeit in Melbourne. I likewise have considered the impact on separation of the children from grandparents and that is identified throughout my reasons for Judgment.
ORDERS - TIME TO BE SPENT BY FATHER
WEEKENDS
Both parents sought and it is appropriate and in the best interests of the children that their father have regular time spent in most, if not every, month. That is particularly so because of their young age and the need for continued bonding with the father. Practical considerations are important and I have ordered that there be a weekend, or other holiday period in almost every month, subject to the actual calendar timetable to be adopted by the parties.
Specifically there are to be two weekends during each of the Queensland school term holidays, but not in the months of the actual school holidays which are the subject of a separate order. Ideally those weekends would coincide with a long weekend in Queensland, if practicable, or otherwise in Melbourne. The practical difficulties for the Court is to determine the specific days and hours of such weekends. I have no evidence of the actual flight schedule with departure and arrival flight times. The parties were not asked as to their convenience for collection or delivery to and from the respective airports on a Friday afternoon or Monday morning. I am of the view that a weekend period from Saturday morning until Sunday afternoon provides only one overnight to the father with the children and that is inadequate. Ideally there should be two, or even perhaps three, overnight occasions on such weekends. I have no evidence of the mother’s accommodation in Melbourne on those weekends when she accompanies the children to Melbourne. That will be for her to arrange. I intend therefore to leave to the parties the flexibility to negotiate the actual dates and times for such weekends and to balance the hours of work and other obligations of the parties with the convenience of the children and travel arrangements. In many ways this will be a first test of the communication and discussion skills and motivation of the parents. They will need to deal with any reorganisation of the children’s schooling on a Friday or Monday or with the impact of such days upon their employment and other like practical issues.
Given the young ages of the children they will need to be accompanied on all flights by an adult. That should initially be the mother and her offer to the Court was always to pay the reasonable air costs of travel and accompany the children on their return visits to Melbourne. I will order that should occur on the seven occasions in each year subject to the father volunteering to travel, or contributing to the air travel costs on any other weekend visit. One of the practical issues that might arise is, when the mother travels to Melbourne and the children are collected at the airport there might be a real level of co-operation required for the father then to transport the mother to where she is staying. That may be a hopeful scenario but nevertheless they are the practical issues that these parents must discuss and resolve. I will make no such order on that additional transport issue.
On the other weekend the father, at his election, is to travel to and from Queensland and there spend time with the children. He may, of course, be accompanied by his parents, Ms D or other member of his family. Likewise, at the election of the mother her parents or another trusted adult may, on certain occasions, accompany the children to Melbourne again both the best interests of the children and common sense must apply. I do emphasise that the father should take every opportunity on his weekends to travel to the Gold Coast on a Friday. It would be beneficial if he could collect the children from their then school and perhaps return them on the Monday morning. His difficulty is with accommodation and having an available motor vehicle to transport the children to entertainment venues, the parks or beach and like places. That will likely be costly and a challenge to the father but that is part of the ongoing obligation of parenthood.
HOLIDAYS
The children will have spent the first week of the upcoming September school holidays in Melbourne with their father. The first holiday period then to be considered is January of next year given that the father had Christmas Day of last year. There will be a period of two weeks, (thirteen consecutive nights), in January and the parties should look to book such travel forthwith. The mother will accompany the children and she may either return to Queensland or remain in that period in Melbourne but not to be in any regular personal contact with the children other than by telephone as is ordered.
Thereafter the order will provide for the father to enjoy eighteen consecutive nights with the children, in Melbourne, or elsewhere at his election, but I have left it open for the parties to determine the particular dates and times. I would have in mind, subject to air travel bookings and other practical arrangements that the children have each alternate Christmas period with one parent in the first year (and being the mother in this calendar year) and with the other parent in the following year and in like manner thereafter.
The orders provide for seven consecutive nights in each of the months of April, June and September and it is in those months and at Christmas therefore that the orders provide for the weekend time not to occur.
ELECTRONIC COMMUNICATION
It is to be hoped that the parents will involve themselves with all modern media and electronic communication, in particular Skype and webcam and that each will have or purchase the appropriate computer requirements, software and camera to facilitate this regular means of communication with the father during most times of the year but also with the mother when the children are with him on holiday periods.
COSTS OF AIR TRAVEL
It was part of the mother’s application that she bear the cost and responsibility for travel arrangements, including for her to accompany the children for so long as is necessary. That will become an expensive exercise and accordingly the orders are drafted to encourage the parties to purchase their discounted air tickets as early as is practicable. Having regard to both the offer made by the mother and the financial circumstances and income earning capacity of both parties I have limited the mother’s expenditure obligations to a maximum of seven occasions in each calendar year. If there is to be more air travel to Melbourne then the father is to pay all costs associated therewith.
The mother will be responsible for the transport of the children to and from Coolangatta or Brisbane airports. The father will be responsible for the transport of the children to and from Melbourne or Avalon airports. At all times the children must comply with the requirements of the airlines and be at the airport, ready for departure at least one hour prior to flight time.
VENUE FOR CHANGEOVER
There are practical difficulties in providing for all future changeover venues. What is needed is co-operation between the parties. Some changeovers should be at the school on the Gold Coast that C attends from time to time and that will facilitate Friday afternoon circumstances. Otherwise the convenience of the parents would likely suggest changeovers to occur at the respective airport terminals. I intend there to be a fair degree of flexibility so that a more suitable local venue, or, in time, even the front gate of their respective homes could be considered by them.
ADDITIONAL ORDERS
I have pronounced the usual orders for both parents to co-operate and keep the other advised of any medical or health issue with the children when they are in their care and supervision. The mother must authorise all Queensland schools and kindergartens to provide to the father, at his expense, (if required) copies of all reports of the children and notices of special events including school concerts and parent / teacher interviews.
I have required the father to be in substantial attendance during all periods of time spent with the children in Melbourne. The children certainly can be cared for by his parents or Ms D if and when the father is at his primary daytime job. His new job excludes weekend work and thus the orders are pronounced on the basis that he will be with the children on all weekends, and during holidays and therefore there should be no issue whatsoever with the requirement for substantial attendance.
I have imposed a time deadline on the order for payment of air travel costs and have fixed 1 February 2014 as a date upon which the parties may reflect upon, discuss and negotiate any other payment variation of the mother’s primary expenditure on the costs of air travel. The order is pronounced as the financial circumstances of the mother and father, and perhaps then their respective households are unknown and may change markedly from their current financial situation. I am not inviting further Court proceedings to be instituted but for commercial and more general common sense to be applied at that time.
PROPERTY – APPROACH TO DIVISION OF NET ASSET POOL
The agreed net sum available on settlement of H property is $301,500. Additionally the father has an additional $28,000 in superannuation entitlements and I well understand and have considered that with the age of each of the parties their entitlements do not vest for many years. The other personal assets of the parties, motor vehicles and shares provide a surplus in assets to the father of $11,000 approximately.
I have approached a just and equitable division of property on the basis of each party retaining their superannuation and their other personal assets and motor vehicles. On that basis the father has total assets of a value of $39,000 greater than the mother and that financial position has been balanced in the orders for division of property which I have pronounced.
SECTION 79(4)
In my reasoning throughout the property section of this Judgment I have had regard to the financial contributions made directly and indirectly on behalf of each of the mother and father. I have evaluated the contributions and advances made by each of their parents and I have concluded that they are not now enforceable and repayable loans but nevertheless they were significant direct contributions, primarily from the father’s parents. The acquisition of the B property was founded upon the financial generosity of his parents and that is reflected in the orders.
There were other non-financial contributions made by the father’s continuous employment, in both of his jobs and the mother’s employment from time to time subject to her parental and homemaker responsibilities.
The mother made a substantial contribution to the welfare of the family as the primary parent and substantially as the homemaker and I have balanced those contributions.
Likewise I have reflected upon the relevant s 75(2) factors insofar as they are relevant to contribution issues and further I have assessed the child support payments and future obligations of the father for the children and his committed promise to pay regularly the child support cash sums over future years as assessed.
SECTION 75(2) FACTORS
Both parents are of a relatively young age and are healthy. I am aware of their income and current and future employment opportunities. The father will most likely always have a superior earning capacity and the ability to work whatever hours or jobs as he may choose. His terms of employment and salary in his new job is attractive and he received a $5,500 redundancy payment which he has retained and has an unfair dismissal claim and perhaps a further payment which he also will retain.
In contrast the mother’s employment will be dictated by the children, their parenting and education requirements and suitable employment with appropriate hours to balance those primary obligations though I had regard to her evidence of her future earning capacity.
As a result of the orders made each party will have a cash sum as a deposit for the purchase of a future home or to meet rental and lifestyle expenses, subject to their decision to repay their parents.
I have specifically had regard to sub-paragraph (na) thereof and the ongoing child support to which the father has committed himself and the regularity of such payments will assist the mother in both the kindergarten and educational expenses of the children.
I generally am aware of the financial circumstances of Ms D though I am less aware of the future relationship of the mother and Mr L and his unknown financial circumstances but I have endeavoured to balance those matters in determining the orders for division of property.
The mother will have primary care and control of both children (c) and that together with her wish to maintain her role as a primary parent (l) are factors of significant weight in assessing a just and equitable property division.
On the basis that there was no reimbursement paid from the net pool of assets to either of the parents the mother ultimately sought an equal division of assets and the father a division as to 60% for himself and the remaining 40% for the mother, separate of their superannuation entitlements.
I propose an order that is slightly different therefrom balancing both s 79(4) contributions and the very specific s 75(2) factors. Whilst I have carefully analysed each of these steps in the process to determine a just and equitable division of property I have determined on the particular facts of this case that it is not necessary to make a separate percentage division in respect of each such step in the process. Counsel for the parties did not finally approach the property outcome in that manner (though the mother did stress her s 75(2) factors) and this is a relatively straight forward pool of assets given that the Court is dividing the net cash sum upon the settlement of H property with all other assets to be retained. I have previously assessed the additional value of the superannuation and other assets which the father has retained. I have assessed the direct financial contribution made by his parents, as offset by the more modest contributions made by the mother’s family. I have endeavoured to explain and balance all of the further facts and circumstances relevant to these parties in the property division.
I have concluded that a just and equitable order is for each party to retain their superannuation and personal assets and for the proceeds of settlement of the home of $301,500 to be divided as to 58% to the father and 42% to the mother inclusive of my consideration of the s 79(4) and s 75(2) factors. That means those monies are divided as to $174,870 to the father and $126,630 to the mother. These sums are each subject to the parties paying in like proportion any other additional settlement adjustments or receiving any additional monies available on settlement of H property.
JUST AND EQUITABLE OVERVIEW
I have reflected upon this outcome and whilst it is different from each of the competing orders sought by the parties I am satisfied that it concludes a just and equitable division of property.
CONCLUSION
I pronounce orders for the children that I have concluded to be in their best interests. Their future depends upon a very significant level of contribution from both parents to maximise their joint time and input with the children so that they may grow into teenagers knowing and respecting both parents and extended family. There must be improved communications between parents and the parties cannot financially or emotionally afford, and the children do not need any further or ongoing court proceedings.
As to the division of property, and after payment of their legal fees and disbursements, and any repayment to parents, each of the parties will have remaining a modest sum that they need prudently to invest or deal with to secure their future accommodation and future.
I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young
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Associate:
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