Jabot and Kristensen
[2018] FCCA 639
•29 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JABOT & KRISTENSEN | [2018] FCCA 639 |
| Catchwords: FAMILY LAW – Parenting – 4 year old child – mother wishes to relocate with child from Sydney to (omitted) – father opposed to relocation – where child is to live and what time he is to spend with the non-resident parent. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61DA, 65DAA, 65DAC |
| Cases cited: Browne & Dunn (1893) 6 R 67 Slater & Light [2011] FamCAFC 1 U & U [2002] HCA 36 |
| Applicant: | MR JABOT |
| Respondent: | MS KRISTENSEN |
| File Number: | PAC 1514 of 2017 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 5 March 2018 |
| Date of Last Submission: | 6 March 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 29 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ladopoulos |
| Solicitors for the Applicant: | John Spence & Associates |
| Appearing for the Respondent: | Mr Walkom |
| Solicitors for the Respondent: | Walkom Lawyers |
ORDERS
All prior parenting orders are discharged.
The parents shall have equal shared parental responsibility for the child [X] born (omitted) 2014.
The child shall live with the mother.
The mother is permitted to relocate the child’s residence to (omitted) in Queensland.
Until the child commences school, unless the mother and father agree otherwise in writing the child shall spend time with the father as follows:
(a)Until the child relocates to Queensland:
(i)for two nights in week 1 and each alternate week thereafter from after childcare on Friday (or 4pm if there is no childcare) to Sunday evening at 5pm; and
(ii)for two nights in week 2 and each alternate week thereafter from after childcare on Thursday (or from 4pm if there is no childcare) to 10am on Saturday.
(b)Once the child has relocated to Queensland, for a period of one week every five weeks, commencing on the fifth Friday after the child relocates to Queensland; and
(c)Such other times as the mother and father may agree to in writing.
Once the child commences school, unless the mother and father agree otherwise in writing the child shall spend time with the father as follows:
(a)On the fifth weekend of each school term, from Friday until Sunday;
(b)During the school holiday periods at the end of Term 1 each year, from the last day of school term until the second Monday of the school holiday period;
(c)During the school holiday periods at the end of Term 2 each year, from the second Sunday of the school holiday period until the last Sunday of the school holiday period;
(d)During the school holiday periods at the end of Term 3 each year, from the last day of school term until the second Monday of the school holiday period;
(e)During the school holiday period at the end of Term 4 each year, as follows:
(i)Where the school holiday period commences in a year ending in an even number, for a period of three weeks commencing on the second day after the last day of school term; and
(ii)Where the school holiday period commences in a year ending in an odd number, for a period of two weeks ending on the second last day of the school holiday period; and
(iii)Such other times as the mother and father may agree to in writing.
Unless the mother and father agree otherwise in writing, if Father’s Day does not fall on an occasion that the child is to spend with the father pursuant to these orders:
(a)The father can elect to spend time with the child on such Father’s Day weekend either by:
(i)Moving one of the periods provided for in order 5(a) or 6(a) above or;
(ii)Having an additional weekend to what is provided for in order 5(a) or 6(a) above; and
(b)The father must notify the mother of his election in writing by no later than 1 August each year.
Unless the mother and father agree in writing, if Mother’s Day falls on an occasion that the child is to spend time with the father pursuant to order 5 or 6 above:
(a)The child’s time with the father shall be suspended on such occasion;
(b)The father can elect to spend time with the child for an equivalent length of time to the suspended occasion, either one week earlier or one week later than the suspended occasion; and
(c)The father must notify the mother of his election in writing no later than 1 April each year.
For the purposes of facilitating orders 5 to 8 above and subject to order 10, unless the mother and the father agree otherwise in writing, once the child has relocated to Queensland:
(a)The mother shall:
(i)Arrange for the child to fly from Queensland to Sydney together with an accompanying adult, such flight to arrive at Sydney no later than 8pm on the day that the child is to start spending time with the father;
(ii)Pay for the child and the accompanying adult flight; and
(iii)Notify the father of the flight details, including departure and arrival times and the name of the accompanying adult, such notification to be in writing and at least 48 hours in advance of the flights arrival at Sydney.
(b)The father shall:
(i)Arrange for the child to fly from Sydney to the (omitted) together with an accompanying adult, such flight to arrive at the (omitted) by no later than 8pm on the day that the child is to finish spending time with the father; and
(ii)Pay for the child and the accompanying adult flight, such notification to be in writing and at least 48 hours in advance of the flights arrival at the (omitted).
Until the child attains 9 years of age, the child is to be accompanied by either parent responsible for their transportation or an appropriate family member of that party and unless otherwise agreed in writing between the parties the child is to be transported by commercial air travel.
The child shall communicate with the father by video call each Tuesday, Thursday and Sunday between 6.30pm and 7.30pm Eastern Standard Time, with both parents to do all things necessary to facilitate such communication.
Remove all outstanding issues from the list of cases awaiting finalisation.
THE COURT NOTES THAT
A.The father has agreed to not use illicit drugs, including cannabis or consume alcohol whilst spending time with the child.
IT IS NOTED that publication of this judgment under the pseudonym Jabot & Kristensen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1514 of 2017
| MR JABOT |
Applicant
And
| MS KRISTENSEN |
Respondent
REASONS FOR JUDGMENT
Introduction
These are final parenting proceeding in respect of the only child of the parties, [X], who was born on (omitted) 2014.
The parties are in disagreement about [X]’s future living arrangements. The mother wishes to relocate to Queensland with [X], and the father is opposed to [X] moving from the Sydney metropolitan area. The father initially proposed that [X] live with him if the mother moves to Queensland. The mother has made it clear that she would not be moving to Queensland unless [X] could also live there.
[X] is about to turn 4 years old. He has been living with the mother for his entire life. His parents separated in April/May 2016, when he was about two years old.
In (omitted) 2015, the father commenced working in Darwin on a 4 week on/1 week off basis. The father remained in such employment at separation and [X] was spending 4 days every 5 weeks with the father until April 2017.
In November 2016, the father suffered a workplace injury. He remained employed in Darwin, albeit he was performing light duties. He received a compensation payment of some $40,000 as a result of the injury he suffered. The father resigned from his employment on (omitted) 2017, and he returned to live in Sydney at the end of April 2017.
The parties reached a property settlement in 2017. As a result, the mother received $100,000 and the father approximately $42,000. The mother says that she had 12 months to purchase a property otherwise it would have affected her single parent pension and/or family tax benefit payments.
After some 6 months of searching and putting in a few offers on properties in the (omitted) area, the mother purchased a home on the (omitted). She exchanged contracts on (omitted) 2017. She says that she was very anxious about telling the father; in fact she said she was “terrified”.
On (omitted) 2017, after the mother purchased a home on the (omitted), the father commenced proceedings seeking, inter alia¸ orders for the child to live with him on the basis that he was opposed to the mother moving with the child to the (omitted).
On 5 April 2017, interim orders were made by consent, for the child to live with the mother and spend time with the father for two nights each week. Since the orders were made, the parties have by and large complied with the orders.
The father has had surgery to his hand, which occurred in or around (omitted) 2017 and since 11 September 2017 has been certified fit to resume normal work duties.
The father has since then commenced an apprenticeship as an (occupation omitted), which will take him approximately 5 years to complete. His income, which as a (occupation omitted) was up to $2200 net per week whilst working in Darwin, has now been reduced to approximately $800 net per week. Prior to obtaining the work in Darwin, the father worked as a (occupation omitted) in Sydney for approximately 12 or 13 years. He says the job was too hard on his body and over the years he had suffered a number of injuries. The father is currently paying child support as assessed in the amount of $40 per week. He anticipates that as he progresses through his apprenticeship, his income will increase and he will be assessed to pay child support at a higher rate.
The mother presently works part-time. She has always worked but prefers not to return to full-time employment just yet because she would rather look after the child as much as possible. The child attends day-care three days per week.
The father lives with his parents. He would like to eventually buy his own home, but because he has two dogs, he says that he would not be able to purchase an apartment but rather has to look for a house. The same scenario applies if he is to rent.
The mother lives in rental accommodation with her father in (omitted). After separation, she was living with her brother but had to move out because they needed the bedroom which she and the child were occupying because her sister in law suffered a broken back.
A Family Report was prepared and released to the parties on 19 October 2017. The final hearing dates were allocated on 6 November 2017, and the final hearing took place on 5 and 6 March 2018.
The Relevant Legal Principles
The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations, the Court is to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both of the child’s parents.
A meaningful relationship “is one which is important, significant and valuable to the child”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]
[2] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121]
[3] McCall & Clark at [122]
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence[4]. The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[4] s60CG (1)(b); See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)
[5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[6]
[6] MRR v GR [2010] HCA 4 at [15]
The Full Court in Goode v Goode[7] mandated that this legislative approach must be followed in all parenting cases. The High Court in MRR v GR[8] affirmed the legislative pathway.
[7] (2007) 36 Fam LR 422, (2006) FLC 93-286
[8] [2010] HCA 4
In respect of proposed relocation by a parent, Justice Gaudron said in U v U[9]:
36 . Further, it must be accepted that, regrettably, stereotypical views as to the proper role of a mother are still pervasive and render the question whether a mother would prefer to move to another state or country or to maintain a close bond with her child one that will, almost inevitably, disadvantage her forensically. A mother who opts for relocation in preference to maintaining a close bond with her child runs the risk that she will be seen as selfishly preferring her own interests to those of her child; a mother who opts to stay with her child runs the risk of not having her reasons for relocating treated with the seriousness they deserve.
37 . It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated. That is so whether it is the mother or the father who wishes to relocate. So much was made clear in AMS v AIF.
[9] [2002] HCA 36
However, the reality is that maternity and paternity will always have an impact upon the wishes and mobility of parents, including their moral obligations which sometimes last a lifetime and are restrictive on personal choice and movement of the parent.[10]
[10] Gummow & Callinan JJ in U v U [2002] HCA 36 at [92] cited with approval in Lansa & Clovelly [2010] FamCA 80
In Jurchenko & Foster[11] the Full Court of the Family Court cited with approval what was said by Gaudron J in U v U, observing that, although “Gaudron J was in the minority as to the outcome”, her Honour’s observations were “not only a perceptive statement of the forensic realities but also an accurate statement of the required approach to cases where one parent wishes to ‘relocate’.”
[11] (2014) FLC 93-598 at 79,421, [127]
It is with those judicial pronouncements in mind that this Court has taken on the task of determining the issues in these proceedings.
Competing Proposals
There is one concerning issue to the Court in the sense of what Gaudron J said in U v U, and that is how the parties’ proposal “in the alternative” came to be, and what the actual competing proposals were at final hearing.
The father commenced these proceedings on the basis of the child living with him. That was his primary position. He had sought an order in the alternative for the child to spend time with him if the child was to live with the mother should she chose to remain living in Sydney.
The mother’s application has always been for her to be permitted to relocate with the child to the (omitted).
At the commencement of the hearing the Court enquired of the parties if they had any proposals in the alternative; that is an alternative proposal for the mother if she remained in Sydney and an alternative proposal for the father if the child moved to the (omitted). The Court was careful to tell the parties that they had no obligation to put any such proposals to the Court, but that the Court might be assisted in understanding what might be practical for each of them in the two scenarios.
By that stage, the father’s primary position had changed and rather than seeking orders for the child to live with him and then orders in the alternative, the only orders he sought were for the child to live with the mother and for him to spend time with the child on a regular and frequent basis (which meant that the mother would have to remain living in Sydney). The father had also by day two of the proceedings, and consequent upon the query from the Bench formulated a proposal for time (not his preferred position) if the child was to live with the mother on the (omitted).
On the second day of hearing, the parties produced an agreed minute as to their positions in respect of the two possible scenarios. Ultimately, what came to be an “agreed minute” from both parties were two sets of minutes as to what was to happen if the mother and child were permitted to relocate from Sydney to the (omitted) and if the mother remained living in Sydney with the child.
The father did not press an order for the child to live with him.
Therefore, there was agreement between the parties that the child would live with the mother on a final basis.
The difficulty with the father’s position is that it appears similar to that identified by the Full Court in Jurchenko.[12]
Our earlier discussion… suggests that his Honour approached the matter with a mindset in which it was assumed that the outcome needed to be one which would ensure a meaningful relationship with both parents – which according to his Honour could be achieved only if both parents lived in the same location. Having posed the question in this way, there then became only one available answer when the father’s refusal to consider moving to Town D was accepted as beyond criticism, and the mother was treated as having made a concession she would stay in Perth. It follows from what we have said that his Honour fell into error.
[12] At [125]
Upon discussion with learned Counsel for the father, the Court was urged to assess the parties’ competing proposals as set out in the ‘agreed minute’. This was a course urged upon the Court notwithstanding the concerns the Court raised with this approach in light of the comments by Gaudron J, that is, that the mother had indicated that she would not be moving without the child and that it was after this concession that the father changed his primary position and hence his final proposal for the child’s living arrangements.
Best Interest Considerations
Views of child and child’s relationships
The child is only 4 years old. At the time of the Family Report interviews he was even younger. His views, given his age and developmental stage, were neither sought by the Family Consultant nor would they be given any weight by the Court.
The father’s evidence is that the child had expressed to him a reluctance to move from Sydney. In the opinion of the Family Consultant:
At three years of age children are not cognitively mature enough to comprehend such matters. One can only assume that the crying referred to by the father emanated from other factors other than the boy’s actual wishes about his future location. Hence the decision needs to be made without input from the child.
The child’s relationships with both of his parents are strong and loving. He has a close bond with the father notwithstanding that the mother is his primary carer and that until April 2017 he had spent limited time with the father due to the father working in Darwin.
While speaking to the Family Consultant, the father accepted that prior to working in Darwin he had not spent as much time with the child as the mother had, due to his employment.
Parents’ participation in long-term decisions, spending time and communicating with child
There is a dispute about the parents in relation to whether the mother knew that the father had intended to return to Sydney at the time that she purchased the home on the (omitted).
The mother says that she had spoken to the father and he had indicated that the job in Darwin would take about 5 years to complete, and that even after his injury there was no clear indication by him that he would return to Sydney. She says that she chose the (omitted) for a number of reasons, including that it was much closer to Darwin than Sydney so that the child could continue to spend time with the father, that it was somewhere she could afford to buy a nice home for her and the child and where she had family support.
The father on the other hand says that he told the mother before she bought the (omitted) property that he was returning to Sydney, and that she went behind his back and bought the property knowing he was returning to Sydney. Indeed, the father alleged that the mother had conspired to move interstate without informing him. It is the father’s view that the mother’s actions showed how little she regarded the father/son relationship.[13]
[13] Family Report paragraph 51
The mother’s evidence is that although she exchanged contracts on the (omitted) property on (omitted) 2017, her finance was not approved until (omitted) 2017, and the settlement took place on (omitted) 2017. The contract was subject to finance.
The mother further states that she intended on telling the father about her purchase on or about 3 March 2017, but that before she could raise the topic the father said that he had been looking for houses down the (omitted) for the mother to buy, and that “there is no fucking way you’re going to move to Queensland...”
The evidence of the parties is that, by way of telephone call made on 29 March 2017, the mother told the father that she had purchased a home on the (omitted) and that she intended to move there with the child. This was following a similar phone conversation the mother had with the paternal grandfather on the same day.
Despite an affidavit of some 27 pages and an additional 100 pages of annexures,[14] the father does not set out any conversation that he alleges he had with the mother prior to 23 February 2017 confirming that he was returning to live in Sydney on a particular date. The extent of the father’s evidence in chief is that “At the time that the applicant advised of her decision to move, I had advised her in January 2017 that ‘I’m moving back to Sydney this year’.
[14] The affidavit was not paginated, therefore this is an approximation
The father’s evidence is that the mother, in an email to the paternal grandfather sent on 30 March 2017, indicated “I have taken everything into consideration in making this decision and it hasn’t been easy but I feel that it’s no different to what’s happening now.” This is suggestive of the mother not being advised of any firm decision by the father that he intended to return to Sydney on a full-time basis and when he would do so.
In respect of this matter, the Court accepts the mother’s evidence – namely, that at the time she purchased the (omitted) home the father had not told her with any certainty that he was returning to live and work in Sydney nor when he would do so on a permanent basis.
The Court also accepts the mother’s evidence that she did not believe that events would take the course they did after she purchased the (omitted) home. The Court accepts the mother’s evidence that she believed that her proposal for the child to live in Queensland with her would be of no practical difference to the arrangement which had been in place for a significant period since mid-2015, with the father living and working in Darwin and only returning to Sydney one week out of every five.
There was one incident which occurred in early April 2017 which warrants comment. It occurred after the mother had notified the father that she had bought the house on the (omitted) and after there had been agreement between the paternal grandparents and the mother for the child to spend time with them. On 1 April 2017, the mother delivered the child to the paternal grandparents’ home as previously arranged for them to care for the child that night. Unbeknown to the mother, the father had returned to Sydney from Darwin and was at this parents’ house. The following day, the father sent to the mother a message saying the child would be returned to the mother that afternoon. Close to the arranged time for return of the child, the mother received a text message from the father which said:
I’ll be caring for [X] at my parents until the court states you are not leave the State with our son.
The child was not returned to the mother as previously arranged. The mother made contact with (omitted) Police who spoke to the father. The mother was served with the father’s Initiating Application on 4 April 2017, which was returnable on 5 April 2017. The mother says that she agreed to the interim orders made on that day because she was desperate to have the child returned to her care.
As noted earlier, the parties have by and large complied with the Court orders made in April 2017. There have been very few hiccups with the child spending time with the father, for example a disagreement between the parties as to whether the father could take the child to Melbourne at Christmas in 2017.
Obligations to Maintain the Child
The father at present pays an amount of approximately $40 per week in child support, following a recent assessment.
In the period after the making of the orders on 5 April 2017, the father’s weekly child support payments were firstly reduced to $280.00, then to $114.42 and then to nil. After the father recommenced employment he has recommenced paying child support. The rate at which the father is currently assessed is significantly lower than the rate at which he had previously been paying child support.
The mother is otherwise financially responsible for meeting all of the costs associated with rearing the child.
Effect of Change, Capacity to provide child’s needs and Attitudes
The Family Consultant opined as follows:
[X] appears potentially capable of adjusting wherever he lives after initially coming to terms with changed routines. Although he has lived from the greater part of his life with Ms Kristensen, his history of overnight periods away from her has likely added to his resilience. He is also yet to establish ongoing peer relationships or form strong connections to the local area.
…
If Ms Kristensen is not permitted to relocate interstate, she will undoubtedly feel most disappointed and blame the father.
Yet during her interview she indicated she will accept the Court’s decision and move on with her life.
…
Should he fail to prevent [X]’s removal from NSW, Mr Jabot will also take it badly and blame the mother. During his interview he could not contemplate any alternatives to his proposal or discuss possible ways of maximising contact with [X] should the boy be residing interstate.
During the hearing, the father was quite able to contemplate alternatives to his proposal, and indeed he realised that his proposal for the child to live with him was not in the child’s best interest. He also gave frank evidence that he will do whatever it takes to ensure that he spends time with the child even if the child resides interstate.
The father conceded that the mother had demonstrated a capacity to encourage and foster a relationship between him and the child. While in one sense such a concession could be viewed as being begrudgingly made during cross-examination, the Court accepted this evidence on the basis that the father had not really turned his mind to the issue in that manner until he was asked the questions in cross-examination.
The central issue as the Court understood the father’s case was that if the mother moved with the child to the (omitted), then this would have a significantly negative impact on the child’s relationship with the father. The move would inhibit the child’s ability to have a meaningful relationship with the father because there would be such a limited opportunity for the father and child to spend together.
As held by the Full Court in Jurchenko & Foster[15]
It must be remembered that the Family Law Act … does not obligate a court to ensure a child maintains a meaningful relationship with both parents... Rather, the court must consider the benefit to a child of having such relationships (citations omitted)
[15] [2014] FamCAFC 127 at [25]
The Court finds that the child would benefit from maintaining a meaningful relationship with both of his parents. He has to date had the opportunity of doing so, and both parents have ensured that he has a meaningful relationship with them. The mother has, in difficult circumstances after separation and with the father remaining in Darwin, fostered and encouraged the child’s relationship with the father.
While the Court accepts that since April 2017 the child has been spending time with the father two nights per week, such orders were agreed between the parties and as such show a willingness and commitment by both parents to facilitate the child’s meaningful relationship with the parents.
The Family Consultant was of the opinion that the father tended to view the mother as overprotective of the child. This was not a matter which was explored in cross-examination.
The father was critical of the mother, not only to the Family Consultant but also during the hearing, stating for example that the mother treated the child like “the golden goose[16]”
[16] Supposedly a reference to the “Jack and the Beanstalk” a fairy tale where a goose is said to lay golden eggs
Annexed to the mother’s affidavit were a series of text messages which the parents had exchanged in May 2016 and then in December 2016. This is clearly but an example of some of the communication between the parents. In those text messages, the father is degrading of the mother and uses derogatory terms when communicating with her. He uses words and phrases such as “cunt” and “fuckn lieing bi polar bitch” (sic). Furthermore, the mother gives evidence about the parties’ communications in early 2017, when the issue of the mother’s intended move to the (omitted) was discussed. The mother deposes to the father calling her a “fucking idiot” and a “bitch” during a conversation on 29 March 2017.
The father was not cross-examined about all of the alleged conversations or indeed in respect of the specific allegations of family violence, on the basis that the parties would not be making a Browne v Dunn[17] submission to the Court and also on the basis that family violence was not an issue in the proceedings.[18]
[17] (1893) 6 R 67 (HL)
[18] To the extent that there might be an argument for time between the child and the parent alleged to have engaged in family violence to be curtailed for the purpose of alleviating the risks to the child
On the evidence, the Court finds that the father has at times been less than respectful towards the mother.
The father admitted in cross-examination that his feelings have at times gotten the better of him, and that he had acted in ways which were not child focused. An example of such behaviour was the father insisting that the TV and washing machine be returned to him after separation in circumstances he knew that the mother did not have a washing machine and that she was relying on the father’s machine to ensure that the child’s laundry was completed.
After observing the father in the witness box, where his demeanour and behaviour at times was challenging of the authority of the Court process, the Court finds that it is likely that such disrespectful behaviour will continue if the father does not obtain the benefit of orders he seeks, that is, it is likely that the father will feel aggrieved and blame the mother for what has happened. It may also be that the father continues acting towards the mother in the disrespectful manner he has at times displayed even if he does obtain the benefit of the orders he seeks, and perhaps particularly so.
The Court accepts that it will be more difficult for the child to maintain a meaningful relationship with the father if the child is living in another state, as the mother proposes. The Court also accepts that there are significant financial impediments to the parents facilitating frequent time between the child and the father if the child is living in another state.
However, the Court finds that the mother will continue to foster a relationship between the child and the father even if the child is living interstate with her. While it is that the child will not be able to have the father’s physical involvement with his daily activities, the child will still be able to have the father’s long distance involvement through the facility of Skype or other video conferencing in his daily life. Although not ideal, the use of such technology will lessen the effect of the physical distance between the parties’ proposed residences.
Lastly, there was no evidence in the father’s case which would suggest that he could not or would not move to the (omitted) if the child was to live there. The Court accepts that the father’s extended family lives in Sydney, but neither this nor a partner and small child prevented the father from working interstate for a number of years.
If the child remained living in Sydney and orders made in accordance with the ‘agreed minute’ then there would be little change to the child’s current circumstances, namely he would remain living with the mother and spend time with the father. Such an arrangement would permit the child to spend significant and substantial time with the father.
The mother submits to the Court that her proposal would mean that she could stop renting and provide more certainty and security for the child. The Court accepts the mother’s desire to live in her own home as opposed to a rental home is a genuine desire which is also based on her assessment of the child’s current and future needs. The parent wishing to relocate with the child does not need to have compelling reasons for wanting to do so.
Practical Difficulties
If the child was to live on the (omitted), there would be some financial constraints and practical difficulty on the child spending time with the father. However, both parents have assured the Court that they would do their utmost to ensure that if the child was to live on the (omitted), that there would be sufficient earnings in the parents’ respective households to permit the orders for time to be facilitated.
If the child was to live in Sydney, there would be no practical difficulties with the child spending time with the father.
Parental Responsibility
As noted earlier in these Reasons, there exists under the Act, a statutory obligation on the Court that when making a parenting order the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal share parental responsibility for the child. The Act provides for circumstances when the presumption is rebutted. The Court is not satisfied on the evidence before it that the presumption has been rebutted.
The parents both submit that there should be an order for equal shared parental responsibility.
If such an order was to be made, it would require decisions in respect of any major long-term issues in relation to the child to be made jointly by the parents. It would require the parents to consult one another in relation to the decision to be made about that issue and to make a genuine effort to come to a joint decision: s65DAC.
Despite their differences in opinion and at times the use of crass and inappropriate language, the Court is satisfied that the parents have the capacity to enter into such dialogue and to make joint decisions in respect of any major long-term issues in relation to the child.
As such, the Court finds that an order for the parents to have equal shared parental responsibility is in the child’s best interests.
The making of an order for equal shared parental responsibility triggers the operation of s65DAA as noted earlier.
An order for the child to live with each of his parents on an equal basis is not in the child’s best interest, the best interest considerations having been discussed earlier in the reasons for judgement.
An order for the child to spend significant and substantial time is prima facie an order in the child’s best interest, but if the child was to live with the mother on the (omitted) it is not an order that is then reasonably practicable.
Conclusion
This is a difficult matter which requires a fine balancing of the relevant matters.
It is a finding of the Court that the mother will not move without the child and on that basis her proposal for living in Sydney with the child has to be viewed in light of that concession. The mother’s interests too have to properly be taken into account, her reasons for relocating, and not just the concession that she will not move without the child.
It would be erroneous of this Court to approach this matter with the mindset that the outcome of a meaningful relationship with both parents is needed; and that it can only be achieved if both parents lived in the same location.
The child will have the benefit of a meaningful relationship with his father as he has had to date, no matter where he lives. The relationship might be different depending on whether the child lives in Queensland or in New South Wales, but it will nonetheless be meaningful and of benefit to him.
The mother will continue to foster and promote the child’s relationship with the father wherever she lives. While there may be some financial constraints on the parties, their future financial situation is, on each of their evidence, likely to improve (particularly the father’s) thus making the proposed orders for the child to live with the mother on the (omitted) and spend time with the father reasonably practicable.
Ultimately, the Court finds that the child should live with the mother and that she be permitted to relocate the child’s residence to the (omitted).
For all of these reasons, orders as set out at the forefront of these Reasons are in the children’s best interests.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 29 March 2018
Key Legal Topics
Areas of Law
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Family Law
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