JR & GLM
[2006] FMCAfam 288
•13 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JR & GLM | [2006] FMCAfam 288 |
| FAMILY LAW – Parenting – mother seeks to vary final parenting orders made October 2004 – such that child lives majority time with her – child aged 4 years – shared care arrangement in place for 18 months – mother seeks to relocate – child has close relationship with mother’s child of previous relationship. |
| Family Law Act 1975 |
| A v A: Relocation Approach (2000) FLC 93-035 AMS v AIF (1999) 199 CLR 160 B and B: Family Law Reform Act 1995 (1997) FLC 92-755 D & SV [2003] FamCA 280 H v W (1995) FLC 92-598 R and R; Children’s Wishes (2000) FLC 93-000 T & N [2001] FMCAfam 222 U v U (2002) FLC 93-112 |
| Applicant: | JR |
| Respondent: | GLM |
| File Number: | CAM 1090 of 2004 |
| Judgment of: | Sexton FM |
| Hearing dates: | 24 & 25 May 2006 |
| Date of Last Submission: | 25 May 2006 |
| Delivered at: | Orange |
| Delivered on: | 13 June 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Kenny |
| Solicitors for the Applicant: | Campbell Paton Taylor |
| Counsel for the Respondent: | Mr P Campton |
| Solicitors for the Respondent: | Garden & Montgomerie |
THE COURT ORDERS THAT:
Orders made by the Federal Magistrates Court in Canberra on 13 October 2004 be discharged.
While the mother remains living in the Woodstock/Warwick (not the real location) district, the following shall occur:
(a)Simon (not his real name), born 31 October 2001 live with each party on a week and week about basis during school terms with changeover to occur on Sundays at 5.00p.m. unless the parties agree on an alternative time;
(b)Simon live half of each school holiday period with each parent as follows:
(i)With the father in the first half and the mother the second half in even numbered years;
(ii)With the father in the second half and the mother the first half in odd numbered years.
(c)In the event Simon is living with his father on the Mother’s Day weekend, the father to return Simon to his mother at 9.00a.m. on Mother’s Day, instead of 5.00p.m;
(d)In the event Simon is living with his mother on the Father’s Day weekend, the mother to return Simon to his father at 9.00a.m. on Father’s Day instead of 5.00p.m;
(e)Changeover to occur at the mother’s residence with the father to deliver and collect Simon.
If the mother is living in Bathurst (not the real location) or no more than one hour from Woodstock in travel time by car, the following shall occur:
(a)Simon live with the mother as follows:
(i)Subject to Order (3)(d), every alternate week from 5.00p.m. Thursday until before school Monday during school terms;
(ii)Subject to Order (3)(d), every alternate Thursday from 5.00p.m. until before school on Friday during school terms;
(iii)For half of each school holiday period in accordance with Order 2(b) of these orders.
(b)Simon live with the father at all times he is not living with the mother.
(c)Orders 2(c) and 2(d) apply.
(d)Unless otherwise agreed, the father to deliver Simon to the mother’s residence at the commencement of her residence periods and the mother to deliver Simon to preschool/school or the father’s residence (whichever applicable) at the conclusion of her residence periods provided that if the mother notifies the father in advance that she will collect Simon at the end of his preschool/school day at the commencement of any of her residence periods, the mother be permitted to do so.
If the mother is living more than one hour in travel time by car from Woodstock, Simon to live with the father and to have contact with the mother as agreed between the parties, but Simon to have contact with the mother for at least one half of each school holiday period in accordance with Orders 2(b).
Simon at all times to have liberal telephone contact with the party with whom he is not residing.
Simon to attend Woodstock Public School in his primary school years or such other school as the parties may agree.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ORANGE |
CAM 1090 of 2004
| JR |
Applicant
And
| GLM |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns parenting arrangements for Simon age 4½ years. Final Orders were made in October 2004 that provide for Simon to spend week and week about with each parent during school terms and half school holidays. The Orders provide that this arrangement continue only while the mother remains living in the Woodstock/Warwick district (not the real location) in the Central West of New South Wales. The Orders provide for Simon to live with the father and have agreed contact with the mother if the mother moves from the Woodstock/Warwick district. The parties presently live only a few minutes apart in travel time.
Four months after final orders were made, the mother applied to vary them. She sought the majority care of Simon. She later amended her application to be permitted to relocate with Simon to Queensland. The father opposed any change to the October 2004 orders. His application for summary dismissal of the mother’s application was dismissed in November 2005. At that time, His Honour Justice Coleman made an order that the hearing of the mother’s application to relocate to Queensland be expedited.
In opening submissions Mr Kenny, Counsel for the mother, advised both the Court and the father for the first time that the mother was amending her application. She was now applying to be permitted to relocate with Simon to Bathurst (not the real location). She was also seeking an Order that Simon be permitted to attend a primary school in Bathurst. The parties’ affidavits did not address this proposal. The father remained opposed to any change in the present arrangements.
Background
The mother and the father are both aged 30. They started living together in December 1999 and separated in May 2004. The parties spent approximately 12 months living together in Queensland but otherwise lived in the Woodstock/Warwick district during their relationship. Neither party has re-partnered. The mother works casually as a barmaid and lives in rented accommodation in Woodstock. The mother has a child from a previous relationship, Charles (not his real name) aged 8 who lives with her and is in Year 3 at Woodstock Public School. Charles’ biological father lives somewhere in Queensland. The mother says Charles has seen his father 4 times in the last two years. Charles told the family reporter he sees his father once a year and wants to see more of him.
Simon’s father works full time as a foreman at the Warwick Abattoirs and lives just outside Woodstock with his mother in her home. The father owns a property nearby in which the parties lived before separation but which is presently rented. The father’s family are well established in the Woodstock/Warwick region and many of his extended family live there. The mother finds this oppressive.
The mother resents being constrained by Court Order as to where she can live. She finds herself bound to a town, Woodstock, with a population of 1,700 people or another, Warwick, with a population of 9-10,000, both of which she says offer limited opportunities for work, housing and recreation. She wants Simon to primarily live with her and she wants to be free to move further away.
Issues for determination
The Court must decide what parenting arrangements will promote Simon’s best interests. The mother’s Counsel submitted that as the mother proposes only a move of relatively short distance this is not really a relocation case, although the Court must still consider both parties’ proposals. The father’s Counsel submitted that the Court must consider the impact of the change proposed by the mother on Simon and examine each party’s proposal against the section 68F(2) factors.
The question of whether the relocation principles should apply in a case involving a move of relatively short distance was raised in the Full Court decision of D & SV [2003] FamCA 280. In that case the mother sought to move one and a half hours from the father’s residence, but residence was not seriously in issue. The Full Court held:
Where the move is over a relatively short distance such as this one, we would caution against the making of orders that restrict the residence parent’s freedom of movement. The inquiry should be directed more at alternative contact or shared residence arrangements.
The Full Court held that this requires a consideration of the parties’ proposals and also as to whether there are alternate arrangements to those being proposed by each party that “would meet all the criteria needed to determine what was best for” the child. In other words the Court must consider alternative forms of contact which could be arranged. Kirby J in AMS v AIF (1999) 199 CLR 160 said at p.224:
The attention of the decision-maker should ordinarily be to the possibility of formulating different arrangements for access and contact which would meet the child’s welfare…
The facts in D & SV are different from the facts of the present case as residence in that case was not seriously in issue, and in this case is seriously in issue. The mother seeks an order that Simon live primarily with her and the father seeks to retain the existing order that provides if the mother relocates out of the Woodstock/Warwick area, Simon live primarily with him. In stating the relevant principles to be applied, the Full Court in D & SV [2003] referred favourably to Counsel for the respondent’s submission that:
“any move of residence that requires a significant change in existing parenting arrangements can bring the principles discussed in those cases into play.”
The principles referred to are those set out in the Full Court decisions of A v A: Relocation Approach (2000) FLC 93-035 and B and B: Family Law Reform Act 1995 (1997) FLC 92-755[1]. The Full Court in
[1] As summarised in the Family Law Council, Discussion Paper: Relocation (Feb. 2006), Commonwealth of Australia, pp.10-11.
A v Astated the guiding principles to be applied in relocation cases:
a)The best interests of the child are the paramount consideration but not the sole consideration;
b)A court cannot require the applicant to demonstrate “compelling reasons” for the relocation;
c)The court must evaluate the competing proposals presented and weigh up the advantages and disadvantages of each for the child’s best interests;
d)This should not be done in a way that separates the issue of relocation from that of residence;
e)The court must weigh the evidence as to how each proposal would hold advantages and disadvantages for the child’s best interests; and
f)The court must refer to the principles underlying the objects of the parenting provisions of the Family Law Act and the relationship between those principles and the section 68F(2) factors.
The Full Court in A v A then set out a 3-step summary of the correct approach to be applied in cases involving a proposal to relocate the residence of a child[2]:
a)Identify the competing proposals of the parties;
b)Explain the advantages and disadvantages of each proposal by examining the section 68F(2) factors with regard to the objects of the parenting provisions of the Act, which includes an evaluation of the “reasons for relocation as they bear upon the child’s best interests” against other factors; and
c)Explain why one proposal is to be preferred having regard to the best interests of the child as the paramount, but not sole consideration.
[2] Ibid, pp10-12.
The competing proposals
The mother proposes that Simon live with her and that she be permitted to move to Bathurst and send Simon (and Charles) to school in Bathurst. She proposes that Simon spend four nights each fortnight during school terms with the father, being from Friday after school until Monday before school in each alternate week and from after school Thursday until Friday morning in the other week in addition to half school holidays. Bathurst has a population of about 38,000 and is an approximately 45-50 minute drive from Woodstock. The mother has no definite plans for the proposed move having only considered Bathurst as an option in the two weeks or so prior to hearing. The mother has not yet investigated schools or accommodation in Bathurst and although she has made inquiries, has not yet found employment there. She proposes to work part-time to accommodate her wish to care for the children. She said in cross-examination “I will only move if I get a job in [Bathurst]” and that she would take employment in Warwick but would not live there. Although the mother says she has had a number of jobs in Woodstock/Warwick, she says she has very few employment prospects in the area. She says the rented home in which she is living is about to be sold, and there is no suitable alternative rental accommodation in the area. The father says there are employment and accommodation opportunities for the mother in Woodstock or Warwick. On the evidence before me as to employment opportunities and available accommodation for the mother, I am unable to make any findings on those issues.
At the time of the interviews for the Family Report in February, 3 months before hearing, the mother told Mr Waddell she proposed to relocate away from Woodstock with Charles regardless of the outcome of these proceedings, although she wanted Simon to live with her. She was undecided as to where she would live but raised Bundaberg in Queensland, the Gold Coast, Sydney and the central coast as possible options. Her close friend, Ms Young (not her real name), said in oral evidence that she did not know where the mother plans to go and as far as she was concerned, the mother had not made a firm decision. They had discussed the central coast, and very recently, Bathurst. The mother later told Mr Waddell that if Simon were to live with her, she would remain in Woodstock. In oral evidence Mr Waddell said “the mother’s resolve was all over the place.” On balance I am not satisfied the mother has yet finally decided whether or not she will move to Bathurst, but she wants the freedom to decide.
The father proposes that the present equal shared arrangement continue and that Simon attend school in Woodstock or Warwick, preferably the same school as Charles. This means Simon attends day-care in the father’s week on 4 days and pre-school on Fridays. His grandmother takes him to day-care/pre-school in the mornings, his father collects him after day care by 4 p.m. and his grandmother collects him after pre-school. The father and his mother propose that this situation continue indefinitely into the future. Simon will attend school in Woodstock in 2007. In the mother’s week, Simon attends pre-school on Fridays, but otherwise is at home with the mother.
Guided by the High Court authorities of AMS & AIF (1999) 199 CLR 160 and U v U (2002) FLC 93-112 I have considered whether there might be options other than those proposed by each party, in particular an arrangement which would involve Simon continuing to spend equal time with the mother and the father, continuing to attend pre-school and school in Woodstock, but extending the region in which the mother could live while leaving the equal shared care arrangements in place. The region would include Bathurst. Having considered such a proposal against an examination of the section 68F(2) factors, I have determined such an arrangement would be impractical and unworkable.
Mr Waddell, the family reporter in the proceedings, does not support a change to the current parenting arrangements.
Evaluation of each proposal against Simon’s best interests having regard to the principles underlying the objects of the Act
The objects of the parenting provisions of the Family Law Act are set out in section 60B(1) of the Act:
To ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children
Section 60B(2)(a) emphasises the rights of a child to (i) know both parents and (ii) to be cared for by both parents. These rights apply whether the parties are married or separated. The right to know both parents has been recognised as a fundamental consideration and it is only in the most exceptional of circumstances that orders would interfere with that right. Section 60B(2)(b) provides that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development. It recognises the desirability of contact. The word ‘regular’ implies that contact should be as frequent as is appropriate. In B and B; Family Law Reform Act 1995 (1997) FLC 92-755 the Full Court of the Family Court said “it is now well accepted that in most cases meaningful contact by children with both their parents is important to their welfare both in the short and long term.” In deciding the contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in section 68F(2) of the Act. I have considered each item in section 68F(2) as far as relevant in the circumstances of this case.
Simon’s wishes
The Full Court in H v W (1995) FLC 92-598 at 81,947-8 and in R and R: Children’s Wishes (2000) FLC 93-000 at 87,071, said the wishes of children are important and proper weight should be attached to any wishes expressed by a child, depending on their basis and the maturity of the child:
“including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.”
The mother told Mr Waddell that Simon “has not been right” since the making of the parenting orders in October 2004. She said it took him
3 months to settle down. She said Simon tells her regularly that he does not want to return to his father’s house because he misses Charles and cannot contact her and Charles when he wants to. He asks when they will all return to live in the family home. The mother says Simon complains of being bored at the father’s home and asks why he has to go to day-care when he wants to be with her. Mr Waddell reports that the mother told him in the few weeks before interview that Simon’s attitude had changed and “he is becoming more angry, violent and distressed at times” and it’s “got to the point more and more where he doesn’t want to go home to his father”. She said “to be honest, I don’t think Simon is coping.” She told Mr Waddell that Simon is crying and distressed at changeover “but the other way round there’s no problem”. The mother told Mr Waddell that Simon’s behaviour means he wants to be with her and Charles. However, the mother said Simon used to be upset when she or Charles told him about an outing or event he had missed while staying with his father. She said in oral evidence that she and Charles have recently stopped doing this, which has worked better for Simon.
The father disputes the mother’s claim that Simon has been unsettled during changeover. The father told Mr Waddell he has not noticed anything unusual about Simon’s behaviour. He agrees there have been two occasions in recent months when Simon has been upset at changeover. Once, Simon hid under the bed at his mother’s and was initially reluctant to leave but Simon settled very quickly, once with the father in the car. Ms Young, a close friend of the mother’s said she was present at changeover the week before hearing and it went smoothly. I note that the parties agree Simon spends time with the other party during “his/her week”, so any problems the mother sees with changeover or Simon going to his father’s has not changed her attitude to this flexible arrangement.
In Mr Waddell’s view, there are a number of reasons Simon could show distress at changeover if the mother’s evidence is true. He says:
it is possible his behaviour represents an age-related inability to come to terms with the parental separation. This is extremely common in young children, who do not experience grief (as adults do) as a discrete, time-bound event which retreats further into history over time, but more as series of grief events throughout childhood that occur whenever a child’s progressive development reaches a new and more sophisticated understanding of what they have lost…. Such behaviour is often misinterpreted as a child’s dissatisfaction with the current residence model (or residence provider) rather than as an expression of a young child’s ongoing grief associated with the parental separation itself. Concern exists that Ms Rhodes could be misinterpreting Simon’s behaviour in this way through the lens of her own desire to change the current residence model.
On weighing up the evidence on this issue, I am not satisfied any distress shown by Simon at changeover or remarks made to his mother, should be interpreted as an expression of Simon’s wish to live with his mother and spend less time with his father.
Mr Waddell did not explore Simon’s views about the parenting arrangements given his young age. Simon told Mr Waddell he liked Queensland because of the big buildings and ocean and that he was looking forward to Woodstock Public School next year “I’m going to Charles’ school.”
On consideration of these matters I am not persuaded Simon has expressed a clear wish to reside with either parent.
Nature of relationship between Simon and each parent and others in Simon’s life
Mr Waddell observed Simon to have a warm and comfortable relationship with each parent and with his maternal grandmother. Mr Waddell could discern no difference in the relative strengths of Simon’s attachments to either parent. The father told Mr Waddell that Simon also had a “very close” relationship with his recently deceased paternal grandfather. Charles told Mr Waddell that Simon used to cry going to sleep at night over the death of his grandfather.
Mr Waddell found Simon has a “firm emotional attachment” to his elder half-brother Charles “whom he idolises to some extent”. Both parties agree Simon and Charles are closely bonded, that they benefit from time together and would benefit from attending the same school.
The mother said in evidence “he [Simon] connects more with me.” She said it would be enough for Simon to spend each alternate weekend with the father. The mother’s Counsel challenged Mr Waddell’s assessment of the strength of Simon’s relationships with each parent. Mr Kenny submitted Mr Waddell made a superficial assessment of the relationships between each party and Simon and should have observed Simon with each party separately from Charles. Mr Kenny cross-examined Mr Waddell about his failure to assess Simon’s reaction to leaving Charles. In cross-examination Mr Waddell did not alter his assessment.
On the mother’s proposal, Simon will spend less time with the father than he does presently. Mr Waddell says this will have an adverse impact on the relationship between Simon and his father. He also says it will have an adverse impact on Charles because the father and his mother, who Charles calls “Nanna” are very significant people in Charles’ life. In Mr Waddell’s view, Charles looks to the father as his father figure and Mrs Middleton as his grandmother figure. He says Charles should be encouraged to spend more time with Simon when he is with his father, though Charles still needs time without Simon. Mr Waddell does not support the mother’s proposal when considering the relationships between Simon and the significant others in his life.
The father’s proposal has two limbs: firstly if the mother remains living in the Woodstock/Warwick area and secondly, if she does not. On the father’s preferred option, the first limb, Simon will continue to enjoy equal time with each parent, will continue to spend substantial time with his grandmother and Charles. On the second limb of the father’s proposal, if the mother does move out of the area, Simon will spend less time with the mother and with Charles than he does presently. This could impact adversely on Simon’s relationship with his mother and with Charles and is the significant disadvantage of the second limb of the father’s proposal.
On the third proposal, which I have considered, that the mother move to Bathurst and continue the week and week about arrangement, Simon would continue to enjoy equal time with each parent, but would spend less time with Charles. However, it would be open to the mother to leave Charles at Woodstock Public School and to encourage Charles to spend more time with the father and Mrs Davidson (not her real name) in Simon’s week with the father than he does presently. It would also be open to the father and Mrs Davidson to actively encourage Charles to come with Simon more often during Simon’s week with the father rather than leaving it to Charles to decide whether or not to accompany Simon. Mr Waddell says this change in approach would assist both boys and I urge the parties to follow his recommendation.
On evaluating the impact of each proposal on Simon’s relationship with each parent and others significant in his life, I find the father’s preferred proposal best promotes Simon’s welfare.
Effect of change in Simon’s circumstances
On the mother’s proposal, Simon would have less time with his father, less time with his grandmother and would be required to leave pre-school if the mother moved to Bathurst before the end of the school year. He would not attend school in Woodstock, something he is looking forward to. He would have less contact with his existing pre-school/day-care friends. Simon would not have the benefit of living in an area in which his father’s family is solidly based. He would no longer attend day-care, something his father says he enjoys and has been attending, at least 1-2 days a week, since before the parties’ separation. Simon would not enjoy the flexibility he presently enjoys moving between both parties’ households. On the other hand, Simon would see more of his mother and be guaranteed more time with Charles, a real advantage for him. He would also attend the same school in Bathurst as Charles.
On the mother’s proposal, the mother expects to be happier. She presently feels trapped in Woodstock as she has no wish to move to Warwick. She is resentful of a situation which forces her to live where she does not want to live. She feels oppressed by the presence of the father’s family who she believes “spy” on her. She told Mr Waddell she has problems with the paternal grandmother and the father’s sister Margaret (not her real name), when she visits Woodstock, who in her view favours Simon over Charles. She chose not to approach the Community Health Centre for counselling because Mrs Davidson is the Manager. In Bathurst, the mother anticipates having more choice of accommodation, more opportunities for employment and more choice of recreational activities. I have no difficulty understanding the mother’s wish to move from Woodstock from her perspective. Mr Waddell says if the mother is very unhappy then this could impact on her capacity for parenting and therefore could impact adversely on Simon. Although there is no evidence before me of the mother’s current unhappiness impacting adversely on her capacity for parenting, this is a factor I take into account.
On the father’s proposal for a continuation of the present arrangements, there would be no change in Simon’s present circumstances.
On the third proposal, Simon would be travelling between Bathurst and Woodstock one day in each of the mother’s weeks to attend pre-school in 2006 and thereafter 10 times each week in the school term in the mother’s week. In my view, this would be onerous for Simon.
Practical difficulties
The mother is presently working 4 hours a week and is otherwise dependent on Centrelink benefits for financial support. She says she hopes to find part-time work in the children’s school hours whether she stays in the Woodstock area or moves to Bathurst so does not expect to earn more than a relatively modest income. The mother says she drives a car which consumes a lot of fuel, and would not be in a financial position to drive back and forth from Bathurst to Woodstock on a frequent basis. The father works from 6 a.m. until 3.30 p.m. each weekday in Warwick, a town further away from Bathurst than Woodstock. He leaves home by 5.30 a.m. and returns to Woodstock at approximately 4 p.m. The father also looks after his trotting horse for an hour to an hour and a half each afternoon. He says he would find it difficult in a practical sense to travel frequently between Warwick or Woodstock and Bathurst on weekdays. Mrs Rebecca Davidson, the father’s mother, works as Manager of the Community Health Centre in the Woodstock region from 8.30a.m. until 5 p.m. She is not usually home in the evening until 6 p.m. Although Mrs Davidson says she has some flexibility in her working day, I am not satisfied she would be in a position to assist with Simon’s transport between Bathurst and Woodstock on weekdays.
In relation to the mother’s proposal, the alternate Thursday night contact would involve one of the parties transporting Simon from after pre-school or school at about 3 p.m. from Bathurst to Woodstock and transporting him back to Bathurst at 9 a.m. the following day. On alternate weekends, one of the parties would have to transport Simon from Bathurst to Woodstock at 3 p.m. Fridays and from Woodstock to Bathurst by 9 a.m. on Monday morning. It would involve Simon travelling the 60-65 kilometres twice each week and would reduce the parties’ present opportunities for flexibility in their arrangements to suit the children. Given the mother cannot afford frequent travel by car between Bathurst and Woodstock and the father would be unavailable at either 3 p.m. or 9 a.m. to transport Simon on weekdays, I find the practical problems associated with the mother’s proposal a significant issue. The mother says Simon could travel by the school bus between Bathurst and Woodstock. While I accept that when he is older, that might be possible, I agree with the father that it is unrealistic to expect Simon to manage such transport in the foreseeable future, particularly as he only starts school next year.
In relation to the father’s proposal, if the mother remains in the Woodstock/Warwick region, the equal shared care arrangement will continue and the practical difficulties referred to do not arise. If the mother lives in Bathurst or elsewhere outside the Woodstock/Warwick region, Simon will attend school in Woodstock, live the majority of time with his father and spend time with the mother as agreed by the parties. It is not possible to address the practical difficulties which may arise in these circumstances, as this proposal does not specify where the mother will be living.
In relation to the third proposal, the practical problems are even greater than those which arise in relation to the mother’s proposal. It would mean the mother would be driving from Bathurst to Woodstock and return every day Simon was with her in the alternate week. This would be onerous for a child Simon’s age and very onerous and expensive for the mother. It may also significantly reduce the mother’s employment options.
On consideration of each proposal on this factor, I find Simon’s interests are best served by the father’s proposal for a continuation of the present arrangements.
Capacity of each parent to provide for Simon’s needs
Neither party was critical of the other’s capacity to care for Simon and I find both parties have the capacity to provide for Simon’s day to day physical needs. Each party offers Simon a happy day to day life involving healthy social interactions, games and a wide range of activities.
In regard to Simon’s emotional needs, I find neither party has facilitated Simon’s relationship with Charles to the extent they could have. Mr Waddell stressed the importance of Charles in Simon’s life and made these comments in his report:
it would not be in Simon’s interests for him to be separated from his brother any further than he already has been. One possibility is that Simon and Charles should reside primarily together, but this advantage would have to be balanced against the disadvantage of reducing Simon’s interaction with his father, and no doubt altering their future relationship to some degree. The strength of the emotional attachment between Simon and Charles also raises questions about JR’s apparent determination to leave Woodstock (with Charles) in the event that she does not obtain residence of Simon.
The mother complains that the father and members of his family are not sensitive to Charles’ feelings. One particular example: Charles was distressed after the family report interviews. Only one child was able to fit into the father’s utility for the return trip to Woodstock. Charles asked to travel back with the father, but Simon got his way when he insisted on travelling with the father. Charles was crying as he walked off with his mother. In cross-examination, the father conceded that in hindsight he could have handled the situation better from Charles’ point of view. The mother raised other examples. In cross-examination Mrs Davidson agreed Charles missed out on travelling with her and Simon on a holiday to Tasmania recently, and was not included in a small celebration for Simon’s birthday at her home last year. However, Mr Waddell said the mother described the father’s relationship with Charles in positive terms and said the father himself did not engage in favouritism between the two boys.
It is important for the father to initiate more opportunities for Charles to spend time at the father’s home with Simon, rather than leaving the decision to Charles. The mother should also encourage Charles to go with Simon more often. Each party needs to recognise the importance to Simon of his relationship with Charles and facilitate them spending more time together.
I find the mother’s proposal best promotes Simon’s relationship with Charles because her proposal guarantees Simon spends more time with him. However, as Mr Waddell says, this must be weighed against the need to guarantee that Simon’s relationship with his father remains stable and strong. If the parties take steps to increase the amount of time Charles spends with Simon’s father and grandmother, I am satisfied the father’s proposal would equally promote Simon’s welfare.
Simon’s need to be protected from physical or psychological harm
This factor was not an issue in this case.
The attitude has each parent shown to the responsibilities of being a parent
I find the mother has demonstrated an inconsistent attitude to her fundamental responsibility to ensure Simon maintains his strong relationship with both herself and the father. On the one hand, the mother has co-operated with the father to make the equal shared parenting arrangement work reasonably well for Simon up until recently. The parties have achieved a flexible working arrangement and both tell Mr Waddell and the Court that despite some problems, they communicate reasonably well. On the other hand, the mother moved to Queensland without Simon when the parties first separated without proper assessment of the ramifications of such a move for herself, Simon or Charles. The mother returned a month later because “we missed Simon”. It seems that move was a precipitous one. Last year, the mother decided she wanted to return to live in Queensland, again without planning how such a move could work for Simon in a practical sense, given he would be living so far away from his father and extended paternal family. At hearing, the mother decided she wanted to live in Bathurst, again without working out how, in practical terms, she could make this work for Simon. When at interview with Mr Waddell the mother initially claimed she would leave Woodstock whatever the outcome of these proceedings, then claimed that she would remain in Woodstock as long as she had a residence order for Simon in her favour. Mr Waddell made this comment:
This reversal in her earlier position is perplexing and casts doubt on the initial veracity of her stated reasons for wishing to relocate from Woodstock.
I am not satisfied the mother has been prioritising Simon’s needs when considering her plans for relocation. She has rather been prioritising her own needs. The mother told Mr Waddell “I don’t think it’s fair that I have to stay somewhere I don’t want to” but was undecided as to where she might want to live. The father told Mr Waddell that the mother had initiated a number of moves since he has known her, but “wherever JR moves she doesn’t seem to be happy”. If she moved to Sydney or the central coast, the mother considered fortnightly weekend contact was sustainable but did not know how the transport could be organised or afforded. If she was unable to relocate with Simon she said she would move to Sydney or the central coast anyway, again without proper consideration of how hers and Charles’ absence would impact on Simon. I agree with Mr Waddell’s view that the mother has given little thought to the financial or practical implications of any move in terms of ensuring Simon’s continuing contact with both his parents.
As submitted by her Counsel, the mother finds herself in a very difficult position trying to reconcile her needs with those of Simon, and indeed Charles. With the knowledge that Simon has a very close relationship with his father and grandmother and a very close relationship with Charles, it is difficult to reconcile the mother’s initial plan to move to Queensland and her stated intention to move away with or without Simon, with her contention that she remains focussed on what is best for Simon. I am not persuaded the mother has an appropriate level of insight into the importance of Simon maintaining his strong and stable relationships with both herself and the father. The mother said in oral evidence that she saw no disadvantage to Simon in her moving to Bathurst and that each fortnight with his father is enough. Her attitude is surprising given her wish for Charles to be treated the same as Simon by the father and grandmother and her concern when it seems to her this is not happening.
The father believes he can offer Simon more stability. If living in an equal shared arrangement or primarily with his father, Simon will attend a local school, a school in an area very familiar to him. If Charles remains at the same school, Simon will enjoy the benefit of having a brother at the same school. The father says he is willing to offer Charles the same stability. He says he will have Charles whenever Simon is living with him, just as often as Charles wants to be with him. He recognises the importance of his and his mother’s role in Charles’ life, as does Mrs Davidson. The father has facilitated Simon’s relationship with the mother and Charles by allowing Simon to spend time with them after day-care in weeks when Simon is living with him, and has consistently held the view that Simon needs substantial time with both his parents.
The mother complains that the father does not prioritise Simon’s needs over his other interests. The father is involved with the racing and training of a trotting horse and says he spends about 10 hours each week on average between September and April each year on this interest. He says Simon is often playing in the shed nearby his track when he is training and attends the races with him if with him on a race weekend. The father also plays Saturday football during the football season and occasionally attends training. He plays touch football in the summer. Mr Kenny for the mother cross-examined the father at length about his involvement with trotting. The father acknowledged the time he spends with his trotting horse, an hour to an hour and a half each afternoon and attendance at trotting meetings between October and April each year up to once a week. Mr Waddell noted the importance of maintaining some balance in one’s life but made no assessment as to whether or not the father had made a reasonable work/life/parent balance. The mother’s Counsel submitted the industry is “all consuming”, but the evidence on balance, including the father’s racing calendar for the period December 2003 to May 2006 [Exhibit 4] does not support that submission in relation to the level of the father’s involvement.
The mother’s proposal means Simon will be taken out of his present pre-school. The mother said in oral evidence that Simon would not attend pre-school in Bathurst. Simon has only just started pre-school and both parties and Simon’s grandmother agree he loves it. His reports show the wide range of skills he is learning in preparation for school. The mother’s proposal would also involve a change of school for her son Charles. The mother says Charles is settled and happy at Woodstock Public School. Charles told Mr Waddell he has lots and lots of friends, some of whom play at his home after school. Charles has already attended 4 primary schools: St Peters (not its real name) at Woodstock for 6 months, St Andrews (not its real name) at Warwick for 12-18 months, a school in Queensland for a month and Woodstock Public School since February this year. The mother now proposes that Charles move schools again. Mr Waddell says the negative impact of frequent changes of school is likely to impact adversely on Charles’ development long term. He says stability of education is very important for children. Although Charles is not the subject of these proceedings, I find the mother’s approach to his schooling relevant to the question of the mother’s attitude to the responsibilities of parenthood.
In relation to the parties’ respective attitudes to the responsibilities of parenthood, I find the father’s proposal best serves Simon’s interests.
The arrangements which would minimise the risk of there being further Court proceedings about Simon
I find if Simon continues to spend at least half his time with the father in the Woodstock region, there is less likelihood of further proceedings between the parties than if Simon moves with the mother to Bathurst. Given the uncertainty of the mother’s plans and the changes in those plans over recent months, if Simon were living with the mother in Bathurst and she found her circumstances there unsatisfactory for any reason, the mother may initiate further proceedings to enable her to move further from the area. If Simon is living with his father the majority of the time or at least half the time, there is, in my view, little prospect of further proceedings being initiated.
Conclusion
The mother proposes that Simon live with her and Charles in Bathurst where she believes she has more employment opportunities, better choices in housing and where she can live away from the father’s family. I accept that she feels the presence of members of the father’s extended family impinges on her privacy. The mother says she wants to work full time, or at least during school hours when Simon starts school. She wants Simon to attend a public school in Bathurst with Charles.
I find the mother’s plans for relocation are not yet settled. She has not yet been offered secure employment in Bathurst and has not yet investigated the costs or quality of the accommodation available there. She has not investigated the schools. She has made no plans for the children’s care should she be working outside school hours or for Simon’s care if she were to be working during 2006. The mother has not lived in Bathurst in the past, and apart from her friend Ms Young who plans to move there at the end of the year, the mother has no support in Bathurst. She has not given careful consideration to the practical problems associated with Simon spending significant time with his father if she were to live in Bathurst.
In the conclusion of his report, Mr Waddell says although the mother may have a legitimate need to leave Woodstock, Simon does not share this need:
The current residence model has the advantage of maintaining a balance in Simon’s very positive relationships with the most significant people in his life, such being his father and Charles, as well as his mother. JR’s proposal seeks to vary this balance, and it is not clear that this is either necessary or desirable for Simon.
When considering the pre-requisites necessary for a successful equal shared care arrangement usefully summarised by Her Honour, Federal Magistrate Ryan in T & N [2001] FMCAfam 222 I am persuaded the parties in the present case can continue to make the present arrangement work well for Simon. I accept that Simon has resisted changeover to his father on at least two occasions but on the mother’s own evidence Simon has been more settled since she has been more careful about telling Simon what he has missed. As already noted I find it would be beneficial to both boys if Charles could accompany Simon more often on contact and each party should encourage him to do so.
I am persuaded the father’s proposal for continued equal shared care is the option which will best serve Simon’s interests, that is, the arrangement which is presently in place. If the mother moves from the Woodstock/Warwick area to Bathurst, in my view, the equal shared arrangement would be impractical. If the mother is in Bathurst, I have made Orders for Simon to spend 5 nights each fortnight with her, the maximum number of nights I am satisfied the parties would be able to manage, in practical terms, given the travel involved. If the mother decides to relocate beyond Bathurst, Simon will live with his father and have contact with his mother as agreed. I am confident that given the history of the parties’ arrangements for Simon since separation, that the father will do all he can to maximise the time Simon spends with the mother in that circumstance. I take into account that the father readily responds now to Simon’s requests to play with Charles at his mother’s home in the father’s week. Simon will attend school at Woodstock Public School unless the parties agree on an alternative school. I am hopeful that Charles will stay at the same school where he is settled and doing well, so the boys can attend the same school, but the mother will make that decision.
I am satisfied that the Orders set out at the commencement of these Reasons are in Simon’s best interests.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Sexton FM
Associate: Collette McFawn
Date: 13 June 2006
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