Klein and Klein
[2009] FMCAfam 794
•13 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KLEIN & KLEIN | [2009] FMCAfam 794 |
| FAMILY LAW – Parenting – mother wishes to relocate with children from Bendigo to Adelaide – mother took children to Adelaide without permission of the court or the father – mother left nine year old boy in the care of the maternal grandmother in Adelaide – boy required emergency intervention by support services after he threatened to kill himself and others – two year old attached to both mother and father. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| A & A: Relocation Approach (2000) 26 Fam LR 382 AMS v AIF (1999) 199 CLR 160 Carpenter v Lunn(2008) FLC 93-377 KB & TC (2005) 33 Fam LR 471 Sampson v Hartnett (2007) 38 Fam LR 315 Taylor and Barker (2007) 37 Fam LR 461 U v U (2002) 211 CLR 238 |
| Applicant: | MR KLEIN |
| Respondent: | MS KLEIN |
| File Number: | MLC 1118 of 2009 |
| Judgment of: | Riley FM |
| Hearing dates: | 22, 23 & 24 July 2009 |
| Date of Last Submission: | 24 July 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 13 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Robert Allen |
| Solicitors for the Applicant: | Lampe Family Lawyers |
| Counsel for the Respondent: | Dennis Baker |
| Solicitors for the Respondent: | Cash & Stavroulakis Lawyers |
ORDERS
The mother and father have equal shared parental responsibility for [X] who was born in 1999 (“[X]”) and [Y] who was born in 2007 (“[Y]”).
With effect from 24 January 2010, the mother is restrained from living more than 40 kilometres from [M] Primary School in Bendigo without the consent in writing of the father.
The mother and father are each restrained from relocating the residence of [X] and [Y] more than 40 kilometres from the [M] Primary School in Bendigo without the consent in writing of the other parent.
After the mother returns to the Bendigo area:
(a)[X], and, when he turns eight years old, [Y], live with their mother from Friday after school in alternate weeks week to the following Friday after school and live with their father from Friday after school in the other week to the following Friday;
(b)until [Y] starts school, [Y] live with his father and spend with his mother:
(i)alternate weekends from after school on Friday to 5pm on Sunday, on the same weekend that [X] is with his mother; and
(ii)each Tuesday and Thursday from the commencement of school until the conclusion of school;
(c)between [Y] starting school and turning eight years old, [Y] live with his father and spend with his mother alternate weekends from after school on Friday to before school on Wednesday, on the same time that [X] is with his mother.
(d)[X] and [Y] spend half of the long summer holidays with each parent each year and unless otherwise agreed [X] and [Y] are to spend with the mother the first half of the holidays commencing in December 2010 and each alternate year thereafter and they are to spend with the father the first half of the holidays commencing December 2011 and each alternate year thereafter;
(e)[X] and [Y] spend time with the parent with whom they are not living in the relevant week from 5.00pm Christmas Day to 5.00pm Boxing Day;
(f)[X] and [Y] spend from 8.30am on Easter Sunday to 4.00pm on Easter Monday with the parent with whom they are not living at the relevant time;
(g)[X] and [Y] spend time with the parent with whom they are not living in the relevant week from 3.30pm to 7.00pm on their birthdays and on the birthday of the parent with whom they are not living in the relevant week;
(h)[X] and [Y] spend time with their mother from 11.00am until 6.00pm on Mother's Day;
(i)[X] and [Y] spend time with their father from 11.00am until 6.00pm on Father's Day;
(j)[X] and [Y] spend time with one or the other of their parents at such additional or other times as the parents agree;
(k)changeover occur at [X]'s school, or, if he and [Y] are not attending school that day, at the home of the parent with whom he will be staying after the changeover.
Before the mother returns to the Bendigo area:
(a)[X] and [Y] live with their father;
(b)[X] and [Y] spend with their mother:
(i)half school holidays and unless otherwise agreed the first half;
(ii)from Friday after school to 5.00pm on Sunday on any weekend she chooses, provided that she gives the father seven days written notice, and provided it is not on the Father's Day weekend;
(iii)such other or additional times as the parents agree;
(iv)changeover occur at [X]'s school or, if [X] is not at school, at the father's house.
[X] and [Y] communicate by telephone with the parent with whom they are not living on up to one occasion on any day provided that it is before 7.30pm, with the parent with whom [X] and [Y] are not living to make the call and the parent with whom [X] and [Y] are living to facilitate the call.
The mother and father be at liberty to attend all school functions, activities and events that parents with the child at the school would ordinarily attend unless the school directs otherwise.
The mother and father be at liberty to attend any organised extracurricular activities engaged in by children.
The mother and father each advise the other of any medical treatment received by [X] or [Y] while they are in that parent’s care and advise the other parent of the name, professional address and telephone number of the medical professional concerned.
The mother and father advise each other of any proposed change of residential address, email address or landline telephone number seven days before the change takes place.
Each party:
(a)attend and complete, as soon as practicable, a Parenting Apart post separation parenting program ("the program") at an organisation or organisations as nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia;
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;
(c)pay and otherwise be responsible for all costs associated with the program; and
(d)provide an appropriate certificate of completion of the program to the other parties or their solicitors.
In the event that the mother and father are unable to resolve any issues that may arise relating to their care of [X] or [Y], the mother and father, at the request of either of them, are to immediately seek professional assistance from Relationships Australia or such other organisation as they may agree, and comply with all reasonable requests and directions of the organisation.
Each party and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of [X] or [Y] and from permitting any other person to do so.
Each party and their servants and agents are restrained from discussing these proceedings with or in the presence or hearing of [X] or [Y] and from permitting any other person so to do.
Pursuant to ss.62B and 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 Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Klein & Klein is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 1118 of 2009
| MR KLEIN |
Applicant
And
| MS KLEIN |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting orders in respect of [X] who was born in 1999 and who is now almost 10 years old and [Y] who was born in 2007 and who is now 2½ years old.
The parents commenced cohabitation on 24 October 1998, married in 2005 and finally separated on 24 January 2009. On that date, the mother left the family home in Bendigo with the two children and took them to Adelaide. The mother did not have permission from the court or the father to do so. The mother left a note for the father saying that she had left with the children but did not say where she was going. The father suspected that she was in Adelaide with her family. He telephoned her or sent her a text message every day for some weeks. However, the mother did not answer the father's telephone calls or respond to his messages.
The father would like the children to live in Bendigo with him and the mother would like the children to live in Adelaide with her. The parents have very limited funds to pay for travel between Bendigo and Adelaide. The father is in receipt of a single parenting payment and the mother is in receipt of a disability pension. She has arthritis and back pain. The father said that if the children lived in Adelaide he would be unlikely to move there. The mother said that if the children lived in Bendigo, she “would have to” return to Bendigo.
In her first affidavit sworn in these proceedings, on 3 April 2009, the mother said that the father had never been physically abusive towards her. However, in an affidavit sworn on 10 July 2009, the mother said that, while living with the father, she was emotionally strained from physical and other abuse. When cross-examined about this, the mother said that she had only been given two hours to prepare her affidavit. She confirmed that she had not meant to say physical abuse and she confirmed that the father had not been physically violent towards her.
[X] has had some very serious behavioural and emotional issues.
A report dated 2 December 2008 from Bendigo Child and Adolescent Mental Health Services (“CAHMS”) showed that [X] had difficulty with his attention, concentration and impulse control and also with his ability to make friends.
After being taken by the mother to Adelaide, the mother placed [X] in the care of his maternal grandmother while the mother and [Y] lived at the mother’s sister's house. The mother was about 40 minutes drive away from [X]. He was able to see his mother and brother on weekends.
The maternal grandmother arranged for [X] to attend [W] Primary School in [V] in Adelaide. [X] was recommended for emergency intervention while he was at that school. He was assessed as a potential danger to himself and others. The report particularly mentioned [X]’s:
a)attention seeking behaviours;
b)school refusal;
c)difficulties following instructions;
d)threats to kill himself;
e)threats to kill others;
f)physical violence towards others at school;
g)threats to run away on several occasions; and
h)threats to bring a knife to school to slash other children's school bags.
The mother was asked about this in cross-examination. She maintained that [X] had a meltdown on one day. She said it was the day after he had spoken to his father on the telephone for the first time since going to Adelaide. The father had telephoned the maternal grandmother’s house in the hope of locating his family, and the maternal grandmother’s husband had allowed [X] to speak to his father.
The mother did not suggest that there was anything untoward about the content of the conversation. However, the mother implied that [X]’s emotional state the following day was all the father’s fault. The mother’s claim that [X] only had problems on one day does not sit well with the information that he had threatened to run away on several occasions and that he was engaging in school refusal. It could be expected that school refusal would only be noted if it was more than an occasional problem.
On 10 March 2009, the mother began renting her own property in [L] in Adelaide. [X] at that stage resumed living with his mother and [Y] and changed schools again to [L] Primary School. The mother explained in cross examination that he began at that school with short days, on the advice of the school, given the problems that he had experienced at his previous school.
The father gave unchallenged evidence that the teacher at [L] would not let [X] go to the toilet during class time. This resulted in [X] emptying his bowels into his pants on a number of occasions.
Against this backdrop, the mother said in an affidavit sworn on
27 April 2009that “both children were extremely happy and settled under my care [in Adelaide]. [X] was doing well in school. He was making friends and becoming a more settled young man.” This is a serious misrepresentation of how [X] was coping in Adelaide. It leads me to consider that the mother was not a reliable witness about matters of major significance concerning her children's well-being.
The father sought a recovery order on 25 February 2009. The court asked Mr Crabtree, the father’s solicitor, to telephone the mother to advise her that the matter was before the court, inviting her to participate, and saying that a recovery order might be issued. The mother did not take the solicitor’s calls or respond to telephone messages left on her or her relatives’ telephones. A recovery order was made later on 25 February 2009.
Notwithstanding the messages that had been left, the mother did not contact the father or Mr Crabtree in the following weeks. The father sought and obtained a location order on 24 March 2009. Independently of that order, the police ascertained the whereabouts of the children and executed the recovery order on 25 March 2009. [X] and [Y] were returned to their father on that day. They have lived with him in Bendigo since then. The mother has remained in Adelaide.
[X]’s latest report dated June 2009 from his school in Bendigo indicates that his class behaviour is acceptable. It states that [X] was showing greater maturity this year in relation to his attitude to school and to his classmates. It also stated that [X] had said things to children that he had later regretted and needed to work on building bridges with them.
A letter dated 5 May 2009 from [X]'s primary school in Bendigo indicated that [X] was being appropriately dressed and prepared for school each day, had settled back into the classroom reasonably quickly and had renewed friendships from last year and was developing new ones. The letter noted that there had not yet been any temper outbursts or prolonged arguments that had been regular occurrences last year. The letter noted a growth in maturity. It said that [X]'s brashness and high-handed dismissal of others was settling. The letter said that [X] appeared secure and happy in his current situation and he spoke of both parents positively.
The family report
A family report was prepared by Dr Karen Owen. She noted that [X] presented as an assertive and self assured young man who had advanced verbal skills but very poor social interaction skills. Dr Owen expressed the view that [X] may have Asperger’s Syndrome, but acknowledged that she had not conducted the appropriate tests. Her view was somewhat speculative.
In relation to [Y], Dr Owen noted that he was an alert child who displayed reluctance about being separated from both his mother and his father. During the observation session, Dr Owen reported that [Y] was initially excited by his contact with his mother but soon lost interest in her in favour of activities within the room. Dr Owen considered that [Y] displayed no disorders of attachment and appeared to be securely attached to his mother and positively attached to his father.
Dr Owen was particularly concerned about the family’s standard of accommodation. Largely for that reason, it seems, she recommended that [X] and [Y] live with their mother. Dr Owen said in her report:
33.… [The father’s] capacity to provide financially for his family has necessitated frequent and significant periods of time, indeed the majority of time since his children have been born, to reside in circumstances that would be considered inadequate such as living in the back of a van, in tents, or in trailers. (emphasis added)
…
35.… whilst maybe not ideal, the circumstances in which the family were living prior to the [[O] event omitted] did in fact provide some stability and was one of the few times that the family had a stable residence. HoweverMr Klein's dream was to work as a volunteer for [O] and so the entire family were uprooted, including his wife and children, to live in the back of a van in order that Mr Klein could pursue his dream of working at [O]. (emphasis added)
…
58.The primary concern of the writer is that with respect to stability of living environment, it is evident that Mr Klein has not, over an extended period of time, been able to provide Ms Klein or the children with stable, secure accommodation. Considering that the best predictor of future behaviour is past behaviour, the writer is extremely concerned about the capacity of leaving the children in the care of Mr Klein, given his propensity to require the family unit to live in substandard accommodation and transient accommodation. (emphasis added)
The wife alleged that the family home in Bendigo was “a very unstable and dangerous house”. She said there were electrical issues with the house, such as flickering lights, and she said that it leaked when it rained. The father conceded that there had been problems with three lights. He said two of them were caused by inferior energy saving globes which had been replaced. He said that he had arranged with the landlord for an electrician to check the other light. The father conceded that there had been leaks in the house on three occasions during very heavy rain. He said that one of the leaks had occurred in the bathroom in the first month that they lived in the property. He said the problem had not occurred since. The father said there had been leaks in the gymnasium near a window but not near any electrical fittings and there had also been a leak in the kitchen. The father said that he had raised the issue with the owner but it was difficult to address because it had not rained heavily enough for some time to be able to check for leaks. This evidence was unchallenged and I accept it.
The mother acknowledged that she had signed a condition report for the house on 8 December 2007 at the commencement of their lease. The mother indicated in that report that all aspects of the house were in good condition, including light fittings, power points and the air-conditioning unit. The mother identified photographs of the outside and inside of the house. They showed a double fronted, Victorian brick house that appeared to be clean, reasonably tidy and appropriately furnished and fitted out. The photographs disclosed no obvious dangers or inadequacies. I do not accept that the family home in Bendigo is substandard accommodation or presents a danger to the children.
To properly understand Dr Owen's “primary concern” about accommodation, it is necessary to have an accurate chronology of the family's various dwellings. It seems that Dr Owen may not have been given a very clear picture of the sequence of events regarding accommodation.
[X] and [Y]’s parents met on 5 August 1998 at the [omitted] Hotel in Mornington in Victoria when the mother was almost 21 years old and the father was 38 years old. The father was working at the hotel as a [omitted] and the mother was working there [occupation omitted].
The mother returned to her home in Adelaide for her 21st birthday in October 1998. The father followed. They immediately began living together in Adelaide in the father's van. The mother became pregnant with [X] two months later. The parents remained living in the van in Adelaide until 29 April 1999 when they moved into a unit in [D] in Victoria. [X] was born about four months later in 1999.
The parents and [X] remained in the unit in [D] for about 17 months until 12 September 2000 when the father took up a position as a volunteer at [O]. The mother and [X] went with him, although they could have stayed in the unit.
The family stayed in the father's van for seven days and they then moved into a house in [H] in Sydney for a few weeks. At about this time, they decided not to return to the unit in [D]. The family then lived in a tent in the [N] caravan park in Sydney for about a week. For about 13 months between 3 November 2000 and 8 December 2001, the family lived in a one-bedroom unit in [E] in Sydney.
The family then spent about two weeks in a tent and in their car at [K] Caravan Park in the [B] and at [C] Caravan Park in the [B]. For about 15 months between 23 December 2001 and 9 April 2003, the family lived in a house in [C]. The father's sister in Bendigo offered him some work in her [business omitted]. The family lived for about a month behind her shop. That did not work out. The family stayed at the [R] caravan park in Victoria for about a week and then went to the maternal grandmother’s house in Adelaide. They spent about one week in the house and then moved into a converted shed in the maternal grandmother's backyard. They stayed at the maternal grandmother's place for about seven months between 29 May 2003 and 22 December 2003.
The family then stayed in various caravan parks in South Australia until 14 February 2004. At that stage, they moved into the [S] caravan park in South Australia and were sleeping in their car or a tent. The mother suffered a miscarriage. The owners of the caravan park permitted the family to stay in a caravan for six weeks in exchange for the wife cleaning the toilets and showers. The family was in the [S] caravan park for about six months between 14 February 2004 and
3 August 2004.
For the next three years and four months, between 4 August 2004 and
7 December 2007, the family lived in a house in [G]. It is about three or hours drive from Adelaide. For about 14 months from 8 December 2007, until the mother left with the children on 25 January 2009, the family lived in a house in Bendigo.
[Y] was born in 2007. The family was then living in a house in [G]. [Y] has not lived in a tent or caravan or the back of the car at any stage.
[X] was born in 1999. At that time, the family lived in the unit in [D]. A little over the first year of [X]'s life was spent in that unit. The family then spent about seven weeks in a van, a caravan or tent. For about next year, the family lived in the unit in [E] in New South Wales. They then spent about two weeks in caravan parks in the [B]. The family then spent about 15 months in the house in [C] in New South Wales. The family then spent about a month living behind the father’s sister’s shop, and one or two weeks in caravan parks and so on. The family then spent about six months in the maternal grandmother's converted shed. There was then another period of about eight months in a tent, the back of the car and a caravan. When [X] was almost five, on 4 August 2004, the family moved into the house in [G]. On
8 December 2007, the family moved into the house in Bendigo. In the approximately 5 years since 4 August 2004, [X] has lived in two houses. In total, [X] has spent less than two years living in tents, cars, caravans converted sheds and such like and has not lived in such accommodation at all in the last five years or thereabouts.
Accordingly, when Dr Owen said that the father had caused his children, in “the majority of time” since they had been born, to live in circumstances that would be considered inadequate, such as in vans, tents or trailers, she was mistaken. When she said that past behaviour is the best predictor of future behaviour, she does not appear to have given any weight to the fact that [X] had been adequately accommodated for the last five years and [Y] had always been adequately accommodated.
This case seems to be very similar to Carpenter v Lunn(2008) FLC 93-377, where the family report writer misapprehended the chronology of events. The Full Court of the Family Court in that case held that the primary judge had erred by placing significant weight on the family report writer's opinion when it was based on a serious misapprehension of the facts. Dr Owen said that the accommodation issue was a “primary concern” for her. In view of the importance of the accommodation issue to Dr Owen, and in view of her misapprehension about the true situation, especially in the last five years, I do not consider that I can give significant weight to Dr Owen's recommendations.
It is of course a fundamental responsibility of parenthood to adequately accommodate children. In this day and age, it might be thought that it is the responsibility of the mother as much as it is of the father to provide adequate accommodation for their children. It might also be thought that children’s needs are best met by living in the one house for prolonged periods if not for their entire childhoods. In any event, the fact is that [X] and [Y] have been adequately accommodated for the last five years. They had one move of house in the five years before separation. There is little reason to suppose that the father would inadequately house them in the future.
I also note that the family report did not in terms specifically address any of the matters that the legislature requires the court to consider in ascertaining the best interests of children. Nor did the family report address such issues as equal time or substantial and significant time. In all the circumstances, it seems that the family report may have focused on the question of accommodation and paid no attention to all the other matters that must be considered in ascertaining the best interests of children. For this reason also I consider that I should not give significant weight to the recommendations in Dr Owen's report.
The parties’ proposals
The father provided a minute of proposed orders to the court during the course of the hearing. The mother relied on the orders sought in her response filed on 3 April 2009.
The father proposed that the parents have equal shared parental responsibility for [X] and [Y]. The mother proposed that she have sole parental responsibility for [X] and [Y].
The father proposed that the children live with him in Bendigo and spend various amounts of time with the mother depending on whether she continued to live in Adelaide or whether she returned to within
100 kilometres of Bendigo. If the mother remained in Adelaide, the father proposed that the children spend with their mother:
a)one week of the first term and third term holidays;
b)both weeks of the second term holidays;
c)half of the summer holidays;
d)time by agreement during school term in the Bendigo region.
If the mother lived within 100 kilometres of Bendigo, the father proposed that the children spend with their mother:
a)each alternate weekend from after school on Friday to before school on Monday;
b)each Wednesday from after school to before school the following Thursday;
c)half of school holidays; and
d)special occasions.
In her response filed on 3 April 2009, the mother proposed that [X] and [Y] live with her in South Australia. She proposed that the father have contact with the children as deemed appropriate by the court. She proposed in her response that the contact be supervised. However, at the hearing, the mother resiled from her claim for the children's time with their father to be supervised. The mother also sought orders in her response that the father be restrained from consuming any illicit or non-prescription drugs for 24 hours prior to and during any time spent with the children. However, at the hearing, this matter was not pursued. There was no suggestion that the father has any problems with drugs.
Authorities concerning relocation
AMS v AIF
The relevant principles in relocation matters were explained by Kirby J in the High Court in AMS v AIF (1999) 199 CLR 160 as follows (citations omitted):
142First, each case depends on the application of the governing legislation which, in turn, is in a constant state of amendment and re-expression. Care must therefore be observed in applying propositions advanced in particular jurisdictions where the legislative duties of the courts are relevantly different. Necessarily, the facts of each case are unique. Those facts call forth a “careful and delicate analysis”, which renders previous decisions of limited assistance, except in so far as they offer illustrations which may tend to promote a general consistency of approach.
143Secondly, unless legislation provides otherwise, no single factor is dispositive of decisions governing the residence of a child in a context of the proposed relocation of the parent with whom the child resides. It is necessary for a court, making decisions affecting the child’s place of residence, to attempt a resolution of often irreconcilable considerations. Statute may, and commonly does, instruct that the “welfare” (or “best interests”) of the child should be the paramount consideration. It may provide a list of considerations or “principles” to be applied in the exercise of the court’s powers. However, the “paramount” consideration is not the same as the “sole” or “only” consideration. The relevance of enumerated statutory principles will depend upon the circumstances of the particular case. Preconceived notions as to the weight which must be given to particular factors are incompatible with the exercise of an individualised judicial discretion such as is mandated by Australian legislation.
144Thirdly, a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule.
145Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.
146Fifthly, whilst legislative reform sometimes reflecting international law, has laid increased emphasis upon the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with each of them on a regular basis, the rule is not an absolute one. Courts recognise the implications of the application of that right for the custodial (or residence) parent, and particularly because most of them are women. To avoid unnecessary derogations from women’s equality or the “feminisation of poverty” resulting from the effective immobilisation of a custodial (or residence) parent, some Canadian judges have lately proposed a presumptive deference in favour of the right of the custodial (or residence) parent to reside where she or he decides unless good reason, relevant to the welfare or best interests of the child, is demonstrated to the contrary. Although this presumption was supported by a minority in the Supreme Court of Canada in Gordon v Goertz, it was rejected by the majority as incompatible with the individualised assessment required by the statute, addressed as it is to the best interests of the child. The objective of the minority was understandable. However, the reasoning of the majority is preferable, at least so far as the applicable Australian legislation is concerned.
147Sixthly, in evaluating disputes concerning an expressed desire of a custodial (or residence) parent to relocate the residence at which the child will reside in circumstances which necessarily diminish the opportunities of the other parent to have access to, and contact with, the child, courts have suggested, rightly in my view, that a more relaxed attitude should be adopted to relocation within Australia than relocation overseas. This approach is connected with the ready availability of reliable transport and telecommunications, social and cultural factors, the absence of many dangers which exist in other parts of the world and notions of national community. But even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child’s contact with, and access to, the other parent. Proof that the custodial (or residence) parent has remarried and wishes to join a new spouse overseas; wishes to return to a supportive family in the land of origin, or has a well thought out and reasonable plan of migration may suffice to convince the court having jurisdiction over the child, that the best interests of the child favour continuance of the custodial (or residence) arrangement in another jurisdiction but with different orders as to access and contact.
148Seventhly, just as, depending upon the legislation, conditions may be placed upon a custodial (or residence) parent as to where the child may reside according to its best interests, when it is proposed that residence arrangements change, the very fact of disturbing them (particularly if likely in practice to alter access to, and contact with, the other parent) will present a consideration that must be taken into account in judging whether new arrangements should be approved. If a parent seeks to change arrangements affecting the residence of, access to or contact with the child, he or she must demonstrate that the proposed new arrangement is for the welfare of, or in the best interests of, the child. Because the child’s access to, and contact with, the other parent will necessarily be diminished to the extent that relocation of its residence disturbs a physical proximity which has hitherto existed, it will often be necessary to adjust orders as to access. This will be done to offer new and different facilities of access and contact such as longer periods of residence with the other parent during school holidays and at other times.
149Eighthly, although at common law the concept of custody was indivisible, statute has altered this position. Joint custody and guardianship became increasingly common even before recent legislation made shared parental responsibility for a child the modern norm. Yet even now, courts necessarily retain the power to order otherwise. Under the legislation, before it was changed, the determination of whether joint or sole guardianship should be ordered was within the discretion of the court. Departure from the norm of shared parental responsibility is also within the court’s discretion.
A v A: Relocation Approach
In the matter of A & A: Relocation Approach (2000) 26 Fam LR 382, the Full Court of the Family Court set out a guide for courts in considering relocation matters. That guide is set out at [108] as follows:
In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas:
· 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 ss.60B and 68F of the Family Law Act (Cth) 1975. The wording of s 68F(2) makes clear that the Court must consider the various matters set out in (a) - (l) of that subsection.
· The object and principles of s 60B provide guidance to a court's obligation to consider the matters in s 68F(2) that arise in the context of the particular case.
· It is to be expected that reasons for decision will display three stages of analysis and:
1. A court will identify the relevant competing proposals;
2. For each relevant s 68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s 60B;
· As one, but only one, of the matters considered under s 68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.
· The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
· Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.
3. On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child's best interests are the paramount but not sole consideration.
· The process of evaluating the proposals must have regard to the following issues:
a) None of the parties bears an onus:
· In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.
b) The importance of a party's right to freedom of movement:
· In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s 92 of the Constitution, where applicable.
· In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child's rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.
c) Matters of weight should be explained:
· In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.
· In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.
KB & TC and U v U
More recently, in KB & TC (2005) 33 Fam LR 471, a differently constituted Full Court of the Family Court (Bryant CJ, May and Boland JJ) considered the High Court decision of U v U (2002) 211 CLR 238. In KB & TC, the Full Family Court said:
70. In U v U (2002) 211 CLR 238 at 260 Gummow and Callinan JJ said:
“We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. Whether the Court is obliged, or will be able in every case to treat each of the three steps as discrete and in the suggested order may be another question. But the Court is not, on any view, bound by the proposals of the parties. The Court has to look to the matters stated in s.68F and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child’s best interests.”
71. In U v U the High Court reaffirmed that the “overarching issue” (at 260) is to ensure any parenting order is in the best interests of the particular child. We accept that whilst in some cases each s 68F(2) factor may be relevant in determining what is in the best interests of a child, in other cases a more limited examination of s 68F(2) factors may be appropriate as being the only relevant (our emphasis) factors to the particular issue to be determined.
72. We discern that the decision in U v U has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s 68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.
…
83. In U v U at paragraph 70 Gummow and Callinan JJ, when dealing with the appellant’s argument that the trial Judge had failed “to focus on, analyse and reach a conclusion on the separate proposals of the respondent and the appellant...”, said:
“There is, in our opinion, an air of artificiality about the appellant’s argument on the first ground. No doubt there will be cases, perhaps many cases, in which a court can and should adopt, with few changes or additions, the arrangements proposed by one of the parties for the future of the child or children whose welfare is paramount, in preference to the other.
...
There will, however also be cases, and not a few of them we suspect, in which it will simply not be possible for a judge to adopt exclusively or perhaps even substantially, a proposal of either party. In such a case the final order will evolve out of the evidence as it emerges, and submissions as they are developed.”
84. Hayne J at paragraphs 171 and 172, also dealt with the requirement, in some cases, for a trial Judge to look beyond the proposals of the parties, in his or her fundamental task of ensuring the parenting orders made are in the best interests of a child. He said:
“171. In these circumstances, it would be quite wrong to treat the decision that is to be made as confined to a choice between whatever may be the particular ‘proposals’ that the parents may make for the residence of, and contact with, the child. So to confine the inquiry would, in this case, have required the Family Court to ignore admittedly relevant evidence that was led about what the mother would do if it were decided that the child should live in Australia rather than India. More fundamentally, it would confine the Court’s inquiry to what the parents suggested would be in the best interests of the child, regardless of whether those suggestions were informed, even wholly dictated, by the selfish interests of one or other of the parents. To confine the inquiry in this way would, therefore, disobey the fundamental requirement of the Act that the Court regard the best interests of the child as paramount. Those interests may, or may not, coincide with what one or both of the parents put forward to the Family Court as appropriate arrangements for residence and contact.
172. That is not to say that the Family Court is to embark upon some roving inquiry about the matter, unfettered by any regard for the evidence led and the matters which the parties seek to contest. Due account must be taken of the fact that proceedings in the Family Court are conducted in a framework of adversarial procedure familiar to the common law. (I do not stay to consider how or to what extent that adversarial model has been modified by the Act or rules of court made under it.)”
85. The requirement to look beyond the proposals of the parties highlights the fundamental difference in litigation involving the welfare of a child, and ordinary inter partes litigation. This unique requirement may necessitate a trial Judge crafting orders which are outside the proposals presented by either party, subject to the caveats expressed by Hayne J set out above. This task requires a trial Judge to afford the parties procedural fairness by indicating and inviting comment on changes to the parties’ own proposals, for example, by way of additional or different contact to that proposed by the relocating party, or a limitation to a period of restraint in removing a child from its present geographical location.
In U & U, Gaudron J, in dissent, noted at [35] that:
“it is noteworthy that in this case there was no consideration of the possibility that the father could return to India permanently to avail himself of frequent and regular contact with his daughter. The failure to explore that possibility, particularly given the father’s origins, his professional qualifications and family contacts in India, seems to me to be explicable only on the basis of an assumption, inherently sexist, that a father’s choice as to where he lives is beyond challenge in a way that a mother’s is not.
Hayne J, also in U & U, at [173-175], made an observation to a similar effect:
In this case, there were only three outcomes which were raised by the parties in the proposals which they made and in the way in which the matter was conducted at trial. Put shortly, and incompletely, those three outcomes were that the child would reside with the father in Australia, with the mother in India or with the mother in Australia. All of those outcomes assumed that the father would remain in Australia.
There may have been some sufficient and compelling reason for the parties to make that assumption and to conduct the litigation on this premise. But neither the premise nor the reasons for adopting it were explored in evidence or in argument in the courts below and therefore these matters could not be tested or examined in this Court. The premise is not one which, in relocation cases, should be accepted as a matter of course.
When one parent (for whatever reason) wishes a child who is, or is to be, resident with that parent to move to a place distant from the other parent, it should not be assumed that that other parent cannot, or should not, contemplate moving to be near the child. There may be (and for all that is known, in this case there was) compelling reason for that other parent (here, the father) not to move, but it would ordinarily be expected that these reasons would be explored in evidence and the validity of any assumption that the other parent will not move would be examined. Just as, in this case, the mother was asked what she would do, if she could not have the child reside with her in India, so too it might have been expected that the father would be asked what he would do, if the mother were to have the child reside with her in India. Such questions should not be treated as mere forensic tests of parental devotion, to which only one answer is seen as being satisfactory proof of being a loving parent. Rather, they are no more than a prelude to a deeper inquiry about where the best interests of the child may lie and what arrangements will best serve those interests.
Their Honours’ observations highlight that the best interests of the child may be such that, where one parent wishes to relocate, the other parent should also consider relocating to be closer to the child. In this case, that would mean that consideration should be given to the father relocating to Cobram or elsewhere.
Post 1 July 2006
Substantial changes to the Family Law Act 1975 (“the Act”) were introduced with effect from 1 July 2006. The fundamental principles to be applied in relocation matters do not appear to have greatly changed from the authorities set out above. However, the particular steps to be followed and factors to be considered in parenting matters in general, and relocation matters in particular, have been somewhat modified.
In Sampson v Hartnett (2007) 38 Fam LR 315, Bryant CJ and Warnick J held at [58] that the court has the power to restrain a parent from relocating and the power to order a parent to relocate, if that is in the best interests of the child. Their Honours indicated that the power to order a parent to relocate would be properly exercised in fairly rare circumstances.
Additionally, in Taylor and Barker (2007) 37 Fam LR 461, Bryant CJ and Finn J said:
77. His Honour, correctly in our view, endeavoured first to consider without regard to the relocation proposal, whether it was in the child’s best interests to spend “equal time” with each parent. When he concluded that it was not, he did not need to consider whether “equal time” was “reasonably practicable”.
78. But he did have to move to consider, the option of “substantial and significant time” which he regarded as having “obvious and very significant” advantages. The legislation gives no guidance as to the stage at which a court should commence a consideration of the relocation proposal, but if having found advantages in “substantial and significant time” (or for that matter in “equal time”), his Honour had then turned to consider the “reasonable practicability” of such an arrangement, some assistance would have been gained from s65DAA (5) which provides:
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.
79. A consideration of these matters would have required his Honour to evaluate the differing proposals of the mother and father and to consider whether “substantial and significant time” would be “reasonably practicable” if the mother were to relocate to Queensland. This would seem to be a logical path to follow but as the legislation does not prescribe an order in which the relocation proposals are to be considered, we are not prepared to find that his Honour’s decision was incorrectly reached.
80. His Honour did not specifically find that the mother’s proposal for the child to spend time with the father did not come within the definition of “substantial and significant time” as arguably it might have. However, he clearly recognised that the mother’s proposal was very different from the existing arrangements which he had found to have advantages for the child, so nothing ultimately turns on whether the time which the child was to spend with the father under his Honour’s orders did amount to “substantial and significant time”. Ultimately the advantages of the mother’s proposal outweighed, in his Honour’s opinion, the advantages of the existing arrangements, which would have been “reasonably practicable” if the mother remained in Canberra, but was not if she moved to Queensland.
81. We acknowledge that his Honour’s approach to the application of s 65DAA, which we have endorsed, does require that the matters which the court has to consider under that section (being “equal time” or “substantial and significant time”), must initially be considered without regard to any relocation proposal which might also be before the court. However any relocation proposal will then have to be balanced against the option of “equal time” or of “substantial and significant time” if either of those options has been found to be in the child’s best interests, with the outcome normally emerging from a consideration of whether such an arrangement was “reasonably practicable”.
82. We also acknowledge that this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter, and that at least prior to the 2006 legislative amendments, the preferred approach was not to consider a relocation proposal separately from other proposals in relation to the child’s living arrangements.
83. However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.
Best interests of the child
Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(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.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their 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 (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
However, the best interests of the child are not the only consideration.
Section 60CC(1) of the Act relevantly provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations. Additionally, the court must consider the matters set out in subsections (4) and (4A). I will address those considerations in order.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
It is clear that there would be a very great benefit to both [X] and [Y] in having a meaningful relationship with both of their parents. No arguments were put to the contrary.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
As discussed above, the mother withdrew her allegation that there had been domestic violence perpetrated by the father towards her during the parents’ relationship.
The mother claimed that the father had physically abused [X]. She said that on one occasion, the father grabbed [X] by his top and in the process punched his skin. The mother said she heard him squeal and ran to his aid. The father totally denied punching [X]. He said that both he and the mother had physically disciplined [X] by giving him a smack on the bottom or hand when he had been naughty.
I do not accept the mother's claims about the punch. For the reasons stated above, I do not consider her to be a reliable witness. I consider that the mother has misrepresented and exaggerated the occasion when the father grabbed [X] by his top. I accept the father’s evidence that both parents have smacked [X]. Smacking is an act of violence which is becoming increasingly deplored as a method of disciplining children. Apart from teaching children to be violent, smacking is no longer widely regarded as a particularly effective method of improving children's behaviour. Both parents should find a better means of guiding their children’s actions.
The mother claimed that she was economically abused. It was not suggested that the mother was not given access to the limited funds that the family had. Rather, the argument seems to have been that the father was a very poor provider for his family. The father’s work history was not described in detail to the court. However, from the chronology set out above in relation to the family's accommodation, it certainly appears that neither the mother nor the father earned substantial amounts of money.
The father claimed that he sometimes earned $200 per hour from [occupation omitted]. However, it seems that he did not often get [omitted] work. The father was working in Sydney when the family was living in the [B]. He had to drive an hour and a half each way to work. The father said that his sister offered him a job working in her [business omitted] in Bendigo. However, he said she did not properly pay him and he had to take her to court. He said he was recently successful in recovering $2,000 wages from her. The father and his sister have had a falling out.
It seems that the father often did not have any work at all. He said that he recently did a course that enabled him to obtain a security licence, the costs of which were covered by a charitable organisation. The father also said that last year he was working on an [omitted] website he had designed. He said this project would eventually earn some money. Since the children have been returned to him, he said that he was unable to work because he was busy caring for them.
I suspect that neither the mother nor the father were particularly materialistic or particularly work oriented. It seems that, for many years, the mother was willing to accept a life of poverty with the father. However, more recently, it seems that the mother formed the view that a higher standard of living was required.
I accept that the father was a poor provider by the standards of contemporary Australia. However, at least in the last five years, the family was adequately accommodated. I do not consider that the father's poor provision for his family amounted to economic abuse.
The mother also said that the father subjected her to mental abuse. She said he was possessive and controlling. The mother said that the father had said that if she ever left him he would kill her, the children and himself. The father denied these allegations. However, he did admit telling [X] recently that if he could not see [X] and [Y], life would not be worth living. That is a terrible thing to say to a child. The proper message to give children is that life is always worth living, and grief and disappointment can be overcome.
The father's admission about what he told [X], as well as his admission that he was somewhat depressed for some years, also leads me to conclude that he could very well have told the mother that if she left him he would kill himself. I do not accept the mother's claims that the father had threatened to kill her or the children if she left. The mother did not report these claims to any authorities and they do not appear to me to be the sort of thing the father would have said. Rather, these claims seemed to me to be more in keeping with the other false allegations made by the mother.
The mother said that the father's children from a previous marriage “have no contact with him” as a result of the father’s verbal abuse towards them. The mother said that the father’s children from a previous marriage had suffered many years of emotional harm from their father. She said that he “is not allowed to have contact” with his children from the previous marriage apart from sending birthday cards and receiving school reports and school pictures. The mother said that a clinical psychologist had discovered that the father had caused extreme emotional harm to his children from his earlier marriage.
The father's son, [Z], swore an affidavit in this proceeding. He was not cross-examined. I accept his evidence as set out in the affidavit. [Z] said that his father had never been verbally or physically abusive to him. [Z] said that his mother and grandparents told him repeatedly that his father wanted nothing to do with him and hated him. [Z] said that this caused him not to want to see his father at the psychologist's office when he was 13 years old.
[Z] said that he had previously spent alternate weekends and holidays with his father. [Z] said that he had previously had a loving and happy relationship with his father, who had treated him and his brother well, was a great cook and spend a lot of time playing with them and taking an interest in them and their interests.
[Z] said that, as a result of what his mother and grandparents had told him, he did not see his father for many years and he and his brother suffered emotional harm as a result. [Z] said that he no longer has a relationship with his grandparents because of the lies they told him about his father. [Z] said that he is now closer to his father than to his mother.
[Z] said that, in 2004, his partner, Ms N, who is the mother of his two sons, encouraged him to contact his father. He discovered that his father had sent him birthday and Christmas cards every year but that his mother had returned them to the father without Mark's knowledge.
[Z] said that he visited his father for two weeks when the father and the mother were living in [G]. [Z] said that he saw how devoted the father was to [X] and [Y]. [Z] said that the father was spending long hours studying, building his business and working as a cleaner throughout the night but still found time to help with feeding [Y], changing his nappies and playing with [X]. [Z] said the father seemed to get very little sleep. [Z] said that the mother seemed very content with her life and told [Z] on numerous occasions that she was the luckiest woman alive having married such a devoted husband and father. [Z] said that the mother always seemed to have lots of time to sleep, watch television and smoke marijuana while the father worked and studied to improve their life.
[Z] said that he was proud and happy that his father is the grandfather of his children. [Z] said that his younger brother [T] had visited the father in [G] before [Z] did. [Z] said that [T] decided to stay and live with the father. When the family moved to Bendigo on 8 December 2007, [T] decided to remain in [G] due to his work commitments.
The mother's claims about [Z] and [T] were quite extraordinary. They were expressed in the present tense. That is, the mother said that [Z] and [T] “have no contact” with the father because of his verbal abuse. She said the father “is not allowed to have contact” with [Z] and [T] apart from cards, school reports and school photos.
The mother said these things even though she knew that [T] had lived with her and the father in [G] and even though she knew [Z] had visited her and the father in [G] and resumed his relationship with the father. When cross-examined about these matters, the mother said that she was only referring to the past. However, that is certainly not the way the affidavit reads.
Again, the mother has seriously misrepresented important facts to the court. I do not accept that the father has been emotionally abusive to [X] or [Y]. On the contrary, I consider that the father has been a loving and caring parent towards them.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The mother said in oral evidence that [X] had told her that he wished to live with the father. [X] told Dr Owen he did not know who he wanted to live with. However, [X] told Dr Owen that he believed that if he lived with his mother he would not be able to see his father. [X]'s belief is certainly consistent with his experience after his mother took him to Adelaide. [X] also told Dr Owen that, in an attempt to be fair, a practical solution for him would be to spend alternate weeks with each parent and to change between schools in alternate weeks. [X] also said that his parents hate each other and they were involved in a full scale war. [X] said he did not know which army to be part of and which army was winning in which week. Dr Owen considered that [X] appeared to be extremely distressed by the conflict between his parents.
It is obviously not practicable to change between schools in alternate weeks. In other respects, it is appropriate to give some weight to [X]'s views. He is almost 10 years old. Although he has some behavioural issues, Dr Owen noted that [X] appears to be advanced in terms of intelligence, vocabulary and sense of humour. [Y] was too young to express a view.
The father said, and his evidence was not challenged, that [X] had told him that he did not wish to return to Adelaide for the following reasons:
a)he was sick of Aunty S, the mother’s sister, coming over with someone called [D] and continually going to the mother's fridge and getting alcohol and getting drunk;
b)he was sick of the mother showing favouritism to [Y];
c)he did not like being threatened with violence by the mother's stepfather and [D];
d)the father helps him with his homework;
e)the father had got him involved in things he had wanted to do for ages like Scouts;
f)he did not like his mother getting drunk and smoking drugs as soon as she woke up; and
g)his father takes him to places like the football and parks.
Section 60CC(3)(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)
[X] and [Y] appear to have a strong bond with both of their parents.
The maternal grandmother swore an affidavit in this proceeding. However, she did not say anything about her relationship with the children. As stated above, [X] stayed with the maternal grandmother for about six weeks after the mother took him to Adelaide. It was during this time that [X] required emergency intervention due to a potential for self harm and harm to others. The father said in an affidavit filed on 24 April 2009 that the maternal grandmother had hit [X] across the head and her husband had grabbed [X] by the ear and pulled it as a way of discipline. The maternal grandmother did not dispute these allegations in her affidavit filed on 28 April 2009. The mother said that she was supported by her family in Adelaide but did not say anything about the relationships between her family members and [X] and [Y]. In these circumstances, I do not consider that I could properly find that [X] or [Y] have a good relationship with the maternal grandmother or her husband.
The mother also has a sister and nieces and nephews living in Adelaide. The sister, Ms S, swore an affidavit in this proceeding. She said nothing about the relationship between her and her children on the one hand and [X] and [Y] on the other. In these circumstances, I am not able to find that [X] and [Y] have a good relationship with their cousins and aunt in Adelaide.
The father has had a falling out with his sister in Bendigo and has in fact recently sued her for the under-payment of wages. In these circumstances, I am not able to find that [X] and [Y] have a good relationship with their relatives in Bendigo.
Obviously, it would be much better for [X] and [Y] to have good relationships with all members of their extended family.
Section 60CC(3)(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
The mother does not seem to be at all willing or able to facilitate and encourage a close and continuing relationship between [X] and [Y] and their father. The mother removed them from their home and took them to an undisclosed location. The mother did nothing to arrange any contact in person or by telephone between [X] and [Y] and their father in the two months between her removing them and the recovery order being executed. In fact, the mother obstructed the father's efforts to have contact with [X] and [Y].
The mother has not put to the court any particular amount of time that she considers [X] and [Y] ought to spend with their father. The mother until trial proposed that the father only spend supervised time with the children. She resiled from that position at trial, presumably because she realised it was untenable.
The mother has also seriously misrepresented to the court various matters that are of major significance in determining where and with whom [X] and [Y] should live. The mother swore on oath that [X] and [Y] were well settled with her in Adelaide when [X] had only lived with her for about two weeks before recovery order was executed and when [X] had required emergency intervention in Adelaide because he was a potential threat to himself and to others. The mother also swore on oath that the father had been physically abusive towards her when in fact he had not. The mother also swore on oath that the father had no contact with his children from his first marriage when one of them had in fact lived with the mother and the father in [G] and the other had stayed with them there and had subsequently had regular contact with the father.
I also note that Dr Owen was under a misapprehension about the chronology concerning the family's accommodation. In view of the mother’s misrepresentations to the court, I consider that it is very likely that the mother deliberately misrepresented the chronology of the family's accommodation to Dr Owen.
It seems to me that these serious misrepresentations were an effort by the mother to minimise the time that the court might order [X] and [Y] to spend with their father. It seems to me that the mother embarked upon these serious misrepresentations because she has no intention of facilitating and encouraging a close and continuing relationship between [X] and [Y] and their father.
Notwithstanding all this, the mother's counsel argued that the mother would facilitate and encourage a close and continuing relationship between [X] and [Y] and their father. Counsel pointed to the note that the mother left for the father when she departed for Adelaide. It said, among other things:
I have always told you that I would never stop you having a relationship with the boys but you have to think about what they want more than what you want.
Although the mother said that she would not stop the father having a relationship with [X] and [Y], her actions speak louder than her words. She would also do well to take her own advice and think about what [X] and [Y] would want rather than what she wants.
There is no indication that the father would not facilitate and encourage a close and continuing relationship between [X] and [Y] and their mother. His proposals include a fairly standard amount of time for [X] and [Y] to spend with their mother.
Counsel for the mother criticised the father for seeking a recovery order when he had no reason to suppose that the children were under threat. That was an unusual submission in circumstances where [X] required emergency intervention for threats to harm himself and others at one school in Adelaide that he attended and emptied his bowels into his pants at the other.
I do not consider that the father overreached in seeking a recovery order. [X] is doing better at school in the father's care than he was in the mother's. As it turned out, the mother chose not to return to Bendigo. If she had, there is every chance that she would have sought and the court would have ordered [X] and [Y] to spend a large proportion of their time with her in the lead up to the trial. I dare say that is the outcome the father would have expected.
Section 60CC(3)(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
[X] appears to have settled back well into his primary school in Bendigo. The letter dated 5 May 2009 indicates that [X] was at that stage resuming some friendships from 2008 and was forming new ones. This is a very positive development for [X] as he had difficulty in the past making friends. It is of course vital to children's development that they be able to forge strong bonds with their peers. Knowing about the major difficulties that [X] experienced at the primary school at [V], I can only conclude that removing [X] from his current school in Bendigo could be seriously damaging for both his short term and long term psychological well being.
[X] has strong relationships with both his parents. It seems to me that he needs to have both of them closely involved in his life. When [X] was in Adelaide, for the first six weeks, he spent time with his mother and younger brother only on weekends and did not see his father at all. This proved extremely difficult for him.
[X] and [Y] spent about two months in early 2009 in the proximity of the maternal family in Adelaide. Otherwise, they had spent little time with them. It is of course preferable for children to spend a good deal of time with all the members of their extended family. However, I do not consider that [X] and [Y] would be much affected by seeing their extended family in Adelaide only occasionally.
It is clear from the family report that [Y] is attached to both his mother and his father. For [Y], it is of very great importance that he is cared for by both his parents on a regular and frequent basis. At [Y]’s stage of development, he should not be separated from either parent for any prolonged periods. His attachment to his parents could be damaged if he is not able to often spend large amounts of time with both of his parents.
[X] and [Y] both need to continue spending large amounts of time with each other. However, there is a considerable age gap between them. It may be, in view of other considerations in the case, that they do not need to be together at all times while [Y] is still very young.
Section 60CC(3)(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
If the mother remains in Adelaide, and the father remains in Bendigo, it will be virtually impossible for [X] and [Y] to exercise their rights to maintain personal relations and direct contact with both parents on a regular basis. The parents in this case have very little money. They are both in receipt of government benefits. They are not able to afford to fly between Adelaide and Bendigo frequently or at all.
The trial in this matter finished on a Friday afternoon. The court invited the mother to seek time with [X] and [Y] over the weekend. She declined the offer on the basis that she could not afford it.
Clearly, if both parents lived in Bendigo or if both parents lived in Adelaide, the rights of [X] and [Y] to maintain personal relations and direct contact with both parents on a regular basis could easily be exercised.
Section 60CC(3)(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
In general terms, both parents have the capacity to provide for the needs of [X] and [Y]. The mother and father are both loving and engaged parents. However, neither parent has provided particularly well for the children financially. Traditionally, financial support is primarily the father's responsibility. The father admitted to having debts in excess of $10,000. This is a very large amount of money for someone on a subsistence income.
[X] clearly had some needs that were not being met last year which resulted in him being involved in the CAHMS early intervention program for children who are displaying challenging behaviours. The school in Bendigo identified the difficulties he was experiencing as:
a)difficulty controlling impulses, for example, calling out, interrupting others and rushing into activities;
b)becoming restless and overactive in group activities;
c)wanting to be in charge of activities or what the class did;
d)difficulty with social interactions; and
e)arguing a lot.
Notwithstanding those difficulties, the report dated 2 December 2008 noted that [X] was a likeable boy who tried hard to entertain others and make them laugh.
The intervention program required parental involvement. The father acknowledged that the mother had attended the program rather than him. He said that he could not go as well because he had to mind [Y] as younger siblings were not permitted to attend. The report noted that the mother attended more than half of the parenting group sessions and was a valuable contributor to group discussion. The mother did not say why she missed a substantial proportion of the parenting group sessions.
Notwithstanding that the mother must have been aware of [X]'s difficulties with school and social interactions, she took him away from his familiar environment, and his father, and left him with his maternal grandmother for about six weeks. The mother and [Y] during that time were living with the mother's sister. [X] was only able to spend time with his mother and brother on weekends and was not able to spend time with his father at all. [X] was sent to a new school in [V] where he presumably knew no one. As stated above, [X]'s reaction when placed in this situation included threats to kill himself and others. It is difficult to imagine all that [X] would have been feeling during the six weeks that he spent with his grandmother. However, it seems likely that he would have felt anxious and abandoned.
It is of course a huge upheaval for children when their parents separate. It can be extremely difficult even for well balanced children to cope with their new circumstances. There is a vast body of research which has shown that when parents separate, children do best if the other aspects of their lives remain as stable as possible. That is, ideally, the children after separation will live in the same house, attend the same school, live in the same community, have the same friends, attend the same sporting, social and artistic activities and spend as much time with each parent as they did before separation.
It is also generally recommended that when parents separate, they tell their children together that the separation is imminent and they tell their children together what their living arrangements will be and what the arrangements will be for them to spend time with each parent. By speaking to the children together, the parents are able to reassure the children that their parents will continue to act together in the children's best interests notwithstanding the separation.
In contrast to this ideal way of separating, the mother acted unilaterally. She removed the children from their home, their community, their familiar activities, their father, [X]’s school and [X]'s friends. The mother placed both [X] and [Y] in an unfamiliar environment. The mother placed [X] in the care of his maternal grandmother for six weeks. He was able to see his mother and brother only on weekends and his father not at all. [X] was sent to a school where he presumably knew no one.
The mother does not appear to have given a moment's thought to how [X] and [Y] might have felt in that situation. Even by the time of the trial, the mother gave no indication that she was at all conscious of the extremely difficult situation she had put her children in. She said that [X]'s threats to kill himself and others were a one-off event that she apparently blamed on the father for having spoken to [X] on the telephone the previous day. The mother was obviously minimising the distress that [X] was suffering and took no responsibility for it herself.
I can only conclude that the mother has put her needs ahead of her children's and has not thought about their needs at all. In the present case, the benefit to the mother of taking the children to Adelaide was that she would have emotional and financial support from her family. The mother said that her father, who I assume to be her stepfather, was able to financially assist her in Adelaide. It was not explained why he could give the mother money in Adelaide but could not send it to Bendigo.
I accept that the mother was given emotional support by her family in Adelaide. I accept that if the mother was emotionally supported she would be more able to fulfil [X] and [Y]'s needs. However, if the mother and her family had been more conscious of [X] and [Y]'s need for stability after their parents separation, I have no doubt that the mother's family could have found ways to give the mother emotional support while she remained with [X] and [Y] in Bendigo.
All in all, I consider that the mother has shown no insight into [X] and [Y]'s needs when she removed them from Bendigo. I am not at all confident that the mother will develop any insight into their needs in the future.
The mother through her counsel attacked the father for seeking the recovery order and subjecting the children to the trauma of being taken by the police. However, there would have been no occasion for a recovery order to be issued if the mother had not, without the permission of the father or the court, removed the children from Bendigo. It is also quite possible that the recovery order would not have been issued or executed if the mother had responded to the telephone calls from Mr Crabtree. It is more likely that the mother would have been ordered to bring the children back to Bendigo herself pending an interim hearing. That would at least have spared the children the experience of being brought back by the police.
The mother claimed that she relocated to South Australian as a result of fear and harassment and threats of violence she and [X] and [Y] suffered from the father. I do not accept these allegations for the reasons stated above. Additionally, I accept [Z]’s unchallenged evidence that the mother told [Z] on numerous occasions in [G] that she was the luckiest woman alive having married such a devoted husband and father. The mother acknowledged sending the father a Valentine's card as recently as 2008 that was full of loving sentiments and a Father's Day card that said the father was the best father any kid could have. While people may make a special effort for special occasions, the sentiments expressed in these cards are not consistent with the father being frightening and harassing towards his family. The father did not present in the witness box as a person who would behave in that way.
The mother’s case seemed to be that [X] and [Y] should live with her in Adelaide because she is their mother and she loves them. However, it is not enough to love one’s children. It is also necessary to be aware of their needs and to actively meet their needs.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The family in this case have generally had a fairly subsistence level lifestyle. It may be thought that the mother’s actions in taking [X] and [Y] to Adelaide without the consent of the father or the permission of the court reflect a certain immaturity on her part.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor does not apply in this case.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parents have demonstrated a good attitude to the responsibilities of parenthood, with some exceptions. Neither of them, but particularly the father, has been a very good provider for [X] and [Y]. There is also the question of how [X] reached the point where he needed early intervention from CAHMS in Bendigo last year. The mother would blame the family's transient lifestyle. However, the family was settled in [G] from 4 August 2004 to 7 December 2007 and then moved to Bendigo on 8 December 2007 where they remained for all of 2008. The reasons for the family's move to Bendigo were not explained to the court. It may have been better for [X] to have had the stability of remaining in [G]. However, the move appears to have been the result of a joint decision of both parents.
As stated previously, the mother has not demonstrated a proper attitude to her responsibility to facilitate and encourage a close and continuing relationship between [X] and [Y] and their father. The mother did not demonstrate a proper attitude to [X]'s needs when she removed him from a stable environment and placed him in the care of his grandmother for six weeks.
The father did not demonstrate a proper attitude to his responsibilities as a parent when he said that he would not relocate to Adelaide if [X] and [Y] moved there. The father does not have a job in Bendigo that keeps him there. He does not own a house in Bendigo. He is estranged from at least one of his relatives in Bendigo. The father said that people in Adelaide had not paid him for the work he did. That can happen anywhere, and did in fact happen in Bendigo when his sister did not pay him appropriately for his work. The father also said that the mother’s family did not like him. However, Adelaide has a large population. He could live there without bumping into them. Compared with [X] and [Y]’s needs to have a meaningful relationship with their father, his reasons for not wanting to relocate are paltry. I consider that the father’s point blank refusal to relocate indicates a reluctance to put [X] and [Y]’s best interests above his own preferences.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
This matter has been addressed previously.
Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
There are no family violence orders in this case.
Section 60CC(3)(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
In general terms, it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings in relation to [X] and [Y]. It is very stressful for children, not to mention their parents, to be the subject of ongoing litigation.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
Subject to the matters set out below, I do not consider that there are any other relevant facts or circumstances.
Section 60CC(4): Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii)communicating with the child; and
c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
These matters have been addressed previously.
Section 60CC(4A): If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Many of the circumstances since separation have been addressed previously. However, there are some other matters of note. Separation occurred on 24 January 2009. The father telephoned the mother or sent her a text message every day. She did not respond. On 7 February 2009, the father drove to Adelaide and parked outside the home of the mother's sister, Ms S. He waited to see if the mother or children appeared. The police approached him and asked him if he was a fire bug. He said he was just taking photographs of horses. That was obviously nonsense, but the police let him be.
While the father was outside the property, he sent the mother text messages saying that he knew a man had just left the house, advising her not to be alarmed by his presence, saying that he was getting two more things for his lawyer, and saying that “the cops were cool”. Ms S confirmed that a man had in fact left her house. She said he was her housemate, [D]. The father did not see any sign of the mother or [X] or [Y] and eventually went away. Ms S, [D], the mother and [Y] moved out of that house a few weeks later.
It was understandable that the father wanted to find out where his wife and children were. If the mother had told him exactly where they were, he would probably not have behaved as he did. However, it was obviously quite disturbing for everyone in the house to know that the father was outside watching the house and checking who was entering and leaving.
After the recovery order was executed on 25 March 2009, the matter was urgently listed for 3 April 2009. On that date, the mother was represented by counsel. She indicated to the court that she did not wish to return to Bendigo. Interim orders were made for the children to remain with their father in Bendigo and spend time with their mother between 7 and 17 April 2009. An order was also made for the appointment of an independent children's lawyer. Unfortunately, no such lawyer was appointed. The matter returned to court on 27 April 2009. On that date, orders were made by consent for [X] and [Y] to spend the Mother's Day weekend and the first week of the June-July Victorian school holidays with their mother.
The children spent time with their mother in Adelaide in the June-July school holidays. The mother returned them by bus to Bendigo on
4 July 2009. After delivering [X] and [Y] to their father at about 5pm, the mother went to his sister Ms K’s house to stay the night. Ms K lives behind her [business]. The mother and Ms K were in the [business] at about 6pm when they saw the father drive past. They saw [X] in the car.
The mother says that the husband drove past again after five or
10 minutes and drove past again after another five or 10 minutes. The mother said that the father left a message on the telephone of Ms K’s son [S] saying that the father knew [S] had lied in court and knew that the mother was staying at Ms K’s and if they thought they were going to help the mother with the family law proceedings they should think again.
The mother said that about 30 minutes later, she saw the father outside the [business] taking photos of her and Ms K. The mother said that
Ms K called the police. The mother said that Ms K’s husband Mr K went outside to confront the father. The mother said that the father jumped on Mr K’s foot and Mr K retaliated by grabbing the father's shirt.
The mother said at that point the police happened to be driving past and they stopped and intervened in the altercation. The mother said that about half an hour later, the father returned to the children who had been left alone in the car in the dark.
The father said that after collecting the children at 5pm he had driven past his sister's [business] because it was on the way. He said [X] noticed that his mother was in there. The father said that he took [X] and [Y] home, gave them the dinner, collected someone to look after them and then returned with that person and the children to the [business]. He said he was only outside the [business] for a short time. The father did not identify the person who he claimed was looking after the children and no one else has mentioned that person.
The mother provided a police report which said that a police officer happened to witness a verbal argument between two males on the footpath. The police officer said that no offences were investigated but family incident reports were submitted identifying all parties.
The father did not explain why he felt it was necessary to take photographs of the mother and Ms K. Again, it was disturbing behaviour. I do not accept that the father did in fact have another adult present to supervise the children during the incident on 4 July 2009. No one else, including the police officer, mentioned any such person. I accept the mother’s evidence that the father left [X] and [Y] alone in a car in the dark for some time so that he could take photographs of their mother. This is poor parenting.
The mother’s counsel urged the court to accept that the father’s sole motivation in wanting [X] and [Y] to return to the Bendigo area was to force the mother to return to the father as his wife. The father denied that. It is well known that, at the time of separation, the person who leaves the relationship is generally much further along the process of emotionally dealing with the separation than the person who is left. Some of the father's disturbing behaviour can perhaps be understood in that light.
That is not to say that it is acceptable for the father to lurk outside the places where the mother is staying. It is completely unacceptable. While the father may have had difficulty coming to terms with his separation from the mother, I doubt that seeking a reconciliation was his sole motivation in wanting [X] and [Y] to live in Bendigo. In any event, the father's motivation is not the critical issue. The critical issue is the best interests of the children.
Equal shared parental responsibility
Section 61DA of the Act 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.
3.When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
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.
The father proposed equal shared parental responsibility and the mother proposed that she have sole parental responsibility for [X] and [Y]. It seems to me that the presumption of equal shared parental responsibility applies in this case. I am not satisfied that there are reasonable grounds to believe that the father has engaged in child abuse or family violence. The other evidence in the case does not satisfy me that it would not be in the best interests of [X] and [Y] for their parents to have equal shared parental responsibility for them.
Equal or substantial and significant time with each parent
Where the parents have equal joint parental responsibility for a child, s.65DAA of the Act requires the court to consider the child spending equal time, or, failing that, a substantial and significant time, with each parent. That section provides as follows:
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.
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;
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.
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.
There are well known contraindications for equal time. One is where there is high conflict between the parents. The parents in this case certainly have not been communicating well in recent times. However, it seems to me that they would both be perfectly capable of communicating adequately once these proceedings are over. If need be, mediation would assist them.
Another contraindication is where a child is very young. [Y] of course is in that category while [X] is of a suitable age for equal time. Often, where a child is quite young, the arrangements for the child need to change over time. It would be undesirable to split the siblings in this case. However, a temporary reduction in the time [X] and [Y] spend together may produce a result that is in the best interests of both children.
A particularly major contraindication for equal time is where the parents live a long way apart from each other. Obviously, [X] can only go to one school at a time. One option is for one parent to move closer to the other. This is discussed further below.
I consider that in all the circumstances of this case, it would be in the best interests of [X] to spend equal time with each of his parents. [X] has a good relationship with both of them. They each give him different benefits, and quite frankly, they each have different shortcomings, in terms of their ability to provide good parenting for [X]. [X] himself would prefer to spend alternate weeks with each of his parents. [X] is an intelligent boy who is almost 10 years old and who is in the process of settling after some serious behavioural and emotional issues. Some weight should properly be given to [X]'s views. It would be reasonably practicable for [X] to spend equal time with both of his parents if they lived in the vicinity of each other, but not if the mother stayed in Adelaide and the father stayed in Bendigo.
[Y] is attached to both of his parents. It is important for his proper development that those attachments are fostered. At his young age, equal time with both parents would not be suitable, although by the time he was about eight years old, it probably would be. For the time being, [Y] would do better if he lived predominantly with one parent. As he has spent the last few months predominantly with his father, [Y]’s primary attachment is now presumably to his father. At [Y]’s age and stage of development, it could be very damaging to [Y] to rupture that attachment. It is also very important for [Y] have stability and continuity.
I consider that, for the time being, it would be in [Y]’s best interests to live predominantly with his father, but spend substantial and significant time with his mother. Substantial and significant time cannot be arranged while both parents live so far apart. If one of them moved closer to the other, [Y] could spend substantial and significant time with his mother. By the time he is about eight years old, I consider that it would be in [Y]’s best interests to spend equal time with each parent.
If the mother remains in Adelaide, and the father remains in Bendigo, [X] and [Y] would be able to spend time with one parent or the other only on school holidays and the occasional weekend during term time. I do not consider that such a limited amount of time with either parent would be in [X] or [Y]’s best interests. It seems to me that [X] and [Y] need input from both of their parents much more regularly than that. It is also unlikely that [X] and [Y] would see their parents during term time due to the financial constraints on both of the parents. Indeed, I have real doubts that either parent would be able to consistently have the funds to ensure that [X] and [Y] were able to see their non-resident parent even on school holidays.
Conclusion
In all the circumstances of this case, [X]'s behavioural and emotional problems in the past, and the fact that he is now much more settled in Bendigo, are of overwhelming significance. It seems to me that strenuous efforts need to be made to address [X]'s short and long term emotional well being. He is a child who has been at great risk. He is now doing much better at his school in Bendigo. [X]’s stability is an absolute priority in this case. Uprooting him at this point in time could do him irreparable damage. For that reason, I consider that it is imperative that [X] remains in Bendigo. It is important for [Y] that he is not separated from his brother. Accordingly, [Y] should also remain in Bendigo.
As stated above, it is in the best interests of [X] that he spends equal time with each of his parents. The result is that the mother should return to the Bendigo area to enable [X] to spend equal time with her. I have considered whether I should order the mother to return or leave it up to her to decide whether she returns or not. She did in fact say that she would return if the court ordered that [X] and [Y] remain in the Bendigo area. However, I consider that it is so clearly in [X] and [Y]'s best interests that the mother participates fully in their care and upbringing that I should order her to return to the Bendigo area. She may need a little time to organise the move. There will be orders enabling her to do so. However, ideally, she would return to the Bendigo area immediately.
I consider that [Y] is too young to spend equal time with each of his parents at this stage. Until he starts school, it would be in his best interests to spend alternate weekends with his mother, from Friday after school to 5pm on Sunday, on the same weekend that [X] is with his mother, as well as Tuesday and Thursdays each week during school hours. This will enable [Y] to have frequent time with his mother, but still have the benefit of living predominantly with one parent. Between [Y] starting school and turning eight years old, I consider that it would be in his best interests to spend from after school Friday to before school Wednesday, in alternate weeks, with his mother, at the same time that [X] is with his mother. This is age-appropriate as it will give [Y] the benefit of living with the parent while spending substantial and significant time with the other. There will be orders accordingly. After [Y] turns eight, I consider that it would be in his best interests to join his brother in spending equal time with each parent.
I am somewhat concerned about splitting siblings. However, the arrangements I have indicated seem to me to be the best outcome, in view of [X]’s and [Y]’s different needs. They will only be separated only on a temporary basis and only for a short time each fortnight. It is much less of a separation than might have occurred in the past when orders would often provide for children to live with one parent and spend alternate weekends with the other.
The father proposed specific issues orders but the mother did not, and she did not address the father’s specific issues proposals. I assume the mother did not oppose them. There will be orders more or less in accordance with the father’s specific issues proposals.
I also consider that there should be orders for both parents to attend post-separation parenting courses. These courses assist parents to deal with the particular challenges that arise in being a good parent in circumstances where the parents have ended their marriage or marriage-like relationship. Orders are routinely made in this court for parents to undertake post-separation parenting courses. It seems to me that it would be very much in [X] and [Y]’s best interests that the parents in this case attend and complete such a course. There will be an order to that effect.
Finally, if the parents do continue to have ongoing issues in relation to their care of [X] and [Y], it would be in their best interests that those issues be promptly addressed with the assistance of a professional mediator. There will also be an order to that effect.
I certify that the preceding one hundred and fifty-four (154) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Ashika Kanhai
Date: 13 August 2009
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