Kohl and Rennie
[2018] FamCA 1003
•28 November 2018
FAMILY COURT OF AUSTRALIA
| KOHL & RENNIE | [2018] FamCA 1003 |
| FAMILY LAW – INTERNATIONAL RELOCATION – Where the father seeks to relocate with the children to New Zealand – Where the mother opposes relocation and sought week-about equal time arrangement – Where both parents are of Maori heritage – Where the paternal grandparents are prominent members of their community – Where relocation away from the mother and maternal family would not be in the best interests of the children – Where the relationship between the mother and the children will deteriorate if relocation permitted – Relocation not permitted – Where order for equal shared parental responsibility is in the best interests of the children – Where order for equal time is not in the children’s best interests – Where orders made for children to live with father and spend significant and substantial time with mother. |
| Australian Passports Act 2005 (Cth) s 11(1)(b)(i) Family Law Act 1975 (Cth) |
| MRR v GR (2010) 240 CLR 461 Taylor & Barker (2007) 37 FamLR 461 |
| APPLICANT: | Mr Kohl |
| RESPONDENT: | Ms Rennie |
| INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
| FILE NUMBER: | SYC | 984 | of | 2016 |
| DATE DELIVERED: | 28 November 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Stevenson J |
| HEARING DATE: | 30 & 31 July 2018 & 1 August 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Christie SC |
| SOLICITOR FOR THE APPLICANT: | Mills Oakley |
| THE RESPONDENT: | Ms Rennie appearing on her own behalf |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Reynolds |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Brian Samuels & Associates |
Orders
All existing parenting orders in relation to the children:
● X born on … 2009 and
● Y born on … 2011
("the children") are discharged.
The parties have equal shared parental responsibility for the children.
The children live with the father.
The children spend time with the mother as follows:
4.1during school terms each alternate week from the conclusion of school on Thursday until the commencement of school on Tuesday.
4.2for half of all school holidays as agreed to by the parties and in the absence of such agreement as follows:
4.2.1the first half of each mid-year school holiday period in even years and the second half in odd years.
4.2.2for half of the summer school holidays being the first half in even years and the second half in odd years.
4.2.3from 4.00 pm on Christmas Day until 4.00 pm on Boxing Day in odd years
4.2.4on Mother's Day from 9.00 am to 5.00 pm should such day not fall on the mother's weekend pursuant to these orders.
4.2.5on each of the children's birthdays should such days not fall during when the children would otherwise spend time with the mother pursuant to these orders at times as agreed to by the parties.
4.3At such other times and dates and for such other periods as agreed to by the parties.
In the event that the children's time with the mother falls on Father's Day pursuant to these orders such time is to be suspended between 9 am and 5 pm on Father's Day.
In even years the children spend time with/live with the father from 4 pm on Christmas Day until 4 pm on Boxing Day.
In the event that the children's time with the mother pursuant to these orders falls on either of the children's birthdays the children are to spend time with the father at times as agreed to by the parties on those days.
In order to give effect to these orders, the parties effect changeovers at the children's school where possible and otherwise the mother is to collect the children from the father's residence at the commencement of her time with the children and the father is to collect the children from the mother's residence at the conclusion of such time.
The parties each have reasonable telephone communication with the children during any periods that the children are living with or spending time with the other parent pursuant to these orders and the parents are to each facilitate such telephone communications.
Each party forthwith notify the other of any significant illness, physical injury or medical condition suffered by either child or as soon as practicable in the case of an emergency.
The father obtain a paediatric review of each of the children and the mother take part in such paediatric review NOTING THAT the father had made an appointment for the children to see Dr B on 6 August 2018.
The parties do all things necessary to ensure that the children hold valid Australian passports at all times.
In the event that either party seeks to travel with the children on an overseas holiday he or she provide to the other party reasonable notice of at least 28 days a detailed itinerary, contact details whilst overseas and return air tickets for such party and the children, with such travel permitted only during NSW school holiday periods during periods when the children would otherwise be living or spending time with such parent and neither party unreasonably withhold consent to such travel.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kohl & Rennie has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 984 of 2016
| Mr Kohl |
Applicant
And
| Ms Rennie |
Respondent
And
| Independent Children's Lawyer |
Brian Samuels & Associates
REASONS FOR JUDGMENT
The proceedings
Mr Kohl and Ms Rennie are the parents of two children:
·X born in 2009 (eight) and
·Y born in 2011 (seven).
These proceedings concern parenting orders in relation to X and Y. A significant issue in the proceedings was the application of the father to relocate with the children to New Zealand. This proposal was strongly opposed by the mother and not supported by the Independent Children's Lawyer ("the ICL").
The applicant father sought the following orders:
1.That the Father have sole parental responsibility for the children X (born …2009) and Y (born … 2011) ("the children").
2.That the children live with the Father.
3.That the children be permitted to relocate with the Father to New Zealand.
4.That pursuant to Section 11(1)(b)(i) of the Australian Passports Act 2005 (Cth), the children be entitled to have an Australian travel document including but not limited to an Australia Passport and to give effect to this Order, the Father be permitted to unilaterally complete, sign and lodge any application for issue or renewal of the child or children's passport or any other document required to allow the child or children to travel outside the Commonwealth of Australia.
5.That the children spend time with the Mother, in Australia:
(a)For the entirety of the terms 1 and 3 New Zealand school holiday period;
(b)For one half of the term 2 and 4 New Zealand school holiday period, with such time being the first half in odd numbered years and the second half in even numbered years.
6.That for the purpose of the children spending time with the Mother in Australia, the Father, or his nominee, shall accompany the children to Australia, and on their return to New Zealand, until the youngest child attains the age of ten (10) years and thereafter, the children can travel as unaccompanied minors.
7.That the father be liable for the costs of the children's travel to Australia as set out in Order 5.
8.During the time the children are with the Father, the Father shall encourage and facilitate the children commencing with the Mother by skype, factime (sic) or telephone contact at least once per week.
9.That the Father keep the mother informed, and authorise any school to keep the Mother informed, as to their progress by providing to the Mother their school report cards and yearly school photographs.
The father proposed to live with the children at C Town in New Zealand in a Maori community. The paternal grandfather is the chair of a tribal authority and the paternal grandmother is the chief executive officer of a private tertiary institute. The paternal grandparents have offered support to the father and were witnesses in his case.
The ICL proposed the following orders in the event that the children do not relocate with the father to New Zealand:
1. That all previous parenting orders between the parties be discharged.
2.That the parties have equal shared parental responsibility for the children [X] (born … 2009) and [Y] (born ... 2011) ("the children").
3. That the children live with the Father.
4. That the children spend time with the mother as follows:-
4.1During school terms each alternate week from the conclusion of school on Thursday until the commencement of school on Tuesday.
4.2During school holiday periods for half of each NSW school holiday period during periods as agreed to by the parties and in the absence of such agreement as follows:
4.2.1During the first half of each mid-year school holiday period in even years and the second half in odd years.
4.2.2For half of the summer school holidays being the first half in even years and the second half in odd years.
4.2.3During Christmas in odd years from 4pm on Christmas Day until 4pm on Boxing Day.
4.2.4On Mother's Day from 9am to 5pm should such day not fall on the mother's weekend pursuant to these orders.
4.2.5On each of the children's birthdays should such days not fall during when the children would otherwise spend time with the mother pursuant to these orders at times as agreed to by the parties.
4.3At such other times and dates and for such other periods as agreed to by the parties.
5In the event that the children's time with the mother falls on Father's Day pursuant to these orders such time is to be suspended between 9am and 5pm on Father's Day.
6During Christmas in even years the children are to spend time with/live with the father from 4pm on Christmas Day until 4pm on Boxing Day.
7In the event that the children's time with the mother pursuant to these orders falls on either of the children's birthdays the children are to spend time with the father at times as agreed to by the parties on the children's respective birthdays.
8In order to give effect to these orders changeovers are to take place at the children's school where possible and where this is not possible the mother is to collect the children from the father's residence at the commencement of her time with the children and the father is to collect the children from the mother's residence at the conclusion of the mother's time with the children.
9.That the parties each have reasonable telephone communications with the children during any periods that the children are otherwise living with or spending time with the other parent pursuant to these orders and the parents are to each facilitate such telephone communications.
5. (sic) That WITHOUT ADMISSION BOTH parties be restrained from:
5.1Exposing the children to violence including physical or verbal threats or intimidation, whether such threats or intimidation or violence be directed at the children, the Mother, the father, or any other member of either party's household;
5.2Denigrating the other or members of the other party's family in the presence or hearing of the children and each party shall do all acts and things reasonably necessary to prevent any other person doing so;
5.3Discussing these proceedings or any issues arising out of these proceedings with the children or permitting any third party to do so;
5.4Making critical or derogatory remarks on social media, such as Facebook or Twitter in relation to the other parent or referring in any way to the proceedings;
5.5Permitting the children to watch violent videos or TV programmes or to play violent video or electronic games;
5.6Being under the influence of alcohol in the presence of the children or whilst the children are in his or her care;
5.7Using, ingesting or administering to himself or herself any illicit or non-prescribed drugs (other than over the counter medication); and
5.8Bringing the children into contact with any person under the influence of illicit drugs or alcohol in excess.
6That the mother and father ensure that the children attend school on each and every school day during any periods that the children are in such parent's care pursuant to these orders.
7In the event that either or both children are sick and unable to attend school the parent in whose care the children are in are to provide a medical certificate for such child to the children's school and to the other parent.
8That the mother and father ensure that the children eat healthy and nutritional meals during any periods that the children are in such party's care.
9That each party is to forthwith notify the other of any significant illness, physical injury or medical condition suffered by either child or as soon as practicable in the case of an emergency.
10That the father shall obtain a paediatric review of each of the children and the mother be ordered to take part in such paediatric review NOTING THAT the father has made an appointment for the children to see [Dr B], paediatrician on 6 August 2018.
11That the mother attend and complete a parenting after separation course such as offered by ...
12That the parties ensure that the children have valid Australian passports at all times and that they sign all documents required and do all things necessary to ensure that the children's passports are valid and up to date.
13In the event that either party seeks to travel with the children on an overseas holiday they are to provide the other party with reasonable notice (at least 28 days), a detailed itinerary, contact details whilst overseas and return air tickets for such party and the children and such travel is to only be permitted during NSW school holiday periods and during periods when the children would otherwise be living or spending time with such parent and neither party is to unreasonably withhold consent to such travel.
14That the parties will each encourage and foster the children's relationship with the other parent and other members of their respective households and extended families.
In the event that the children relocate to New Zealand with the father, the ICL proposed the following orders:
1. That all previous parenting orders between the parties be discharged.
2.That the Father have sole parental responsibility for the children X (born… December 2009) and Y (born …2011) ("the children").
3. That the children live with the Father.
4.That the children be permitted to relocate with the Father to New Zealand.
5.That the father re-locate the children to New Zealand during the second half of the first NSW school holiday period following the date of these orders and the children are to spend time with the mother during the first half of such NSW school holiday period.
6.That pursuant to Section 11(1)(b)(i) of the Australian Passports Act 2005 (Cth), the children be entitled to have an Australian travel document including but not limited to an Australian Passport and to give effect to this Order, the Father be permitted to unilaterally complete, sign and lodge any application for issue or renewal of the child or children's passport or any other document required to allow the child or children to travel outside the Commonwealth of Australia.
7.That the children spend time with the Mother, in Australia as follows:-
7.1For the entirety of the terms 1 and 3 New Zealand school holiday periods;
7.2For one half of the term 2 and 4 New Zealand school holiday periods, with such time being the first half in odd numbered years and the second half in even numbered years.
8.That for the purpose of the children spending time with the Mother in Australia, the Father, or his nominee, shall accompany the children to Australia, and on their return to New Zealand, until the youngest child attains the age of ten (10) years and thereafter, the children can travel as unaccompanied minors.
9.In order to facilitate Order 7 of these orders the father or his nominee shall deliver the children to the mother at Sydney Airport at the commencement of the children's time with the mother and mother return the children to the father or his nominee at Sydney Airport at the conclusion of her time with the children.
10.In the event that the mother travels to New Zealand at other times than referred to in Order 7 herein and in particular during New Zealand school terms and provides the father with reasonable notice in writing the father shall facilitate the children spending additional time with the mother at times and dates and for such periods as agreed to by the parties such time to include overnight time where that is possible.
11.That the father be liable for the costs of the children's travel to Australia as set out in Order 7 herein and further that the father shall purchase all return air tickets for the children and or for himself or his nominee to enable them to travel to Australia to spend time with the mother.
12.During the time that the children are with the Father, the Father shall encourage and facilitate the children communicating with the Mother by skype, FaceTime or telephone contact at least once per week.
13.That the Father keep the mother informed, and authorise any school to keep the Mother informed, as to the children's progress at school by providing to the Mother their school report cards and yearly school photographs.
14.That the father ensure that the children attend school on each and every school day during any periods that the children are in his care pursuant to these orders.
15. That WITHOUT ADMISSION BOTH parties be restrained from:
15.1Exposing the children to violence including physical or verbal threats or intimidation, whether such threats or intimidation or violence be directed at the children, the Mother, the father, or any other member of either party's household;
15.2Denigrating the other or members of the other party's family in the presence or hearing of the children and each party shall do all acts and things reasonably necessary to prevent any other person doing so;
15.3Discussing these proceedings or any issues arising out of these proceedings with the children or permitting any third party to do so;
15.4Making critical or derogatory remarks on social media, such as Facebook or Twitter in relation to the other parent or referring in any way to the proceedings;
15.5Permitting the children to watch violent videos or TV programmes or to play violent video or electronic games;
15.6Being under the influence of alcohol in the presence of the children or whilst the children are in his or her care;
15.7Using, ingesting or administering to himself or herself any illicit or non-prescribed drugs (other than over the counter medication); and
15.8Bringing the children into contact with any person under the influence of illicit drugs or alcohol in excess.
16Both parents ensure that the children eat healthy and nutritional means during any periods that the children are in such parents care.
17That each party is to forthwith notify the other of any significant illness, physical injury or medical condition suffered by either child or as soon as practicable in the case of an emergency.
18That the father shall obtain a paediatric review of each of the children prior to relocating the children to New Zealand and the mother be ordered to take part in such paediatric review NOTING THAT the father has made an appointment for the children to see [Dr B], paediatrician on 6 August 2018.
19That the father is to provide the following information to the mother as soon as such information becomes available:-
19.1 His residential address and contact details in New Zealand;
19.2The name, address and contact details of the children's school(s) in New Zealand; and
19.3The name, address and contact details of the children's GP and or medical health professionals in New Zealand.
20That the father is to provide to the children's GP and relevant medical practitioners in New Zealand a copy of the [Dr B's] paediatric assessment report dated November 2016 along with any further paediatric assessments of the children.
21That the father provide to each of the children's medical practitioners an health professionals in New Zealand an authority to speak and communicate with the mother directly in respect to any medical and health issues relating to each of the children.
22That the mother attend and complete a parenting after separation course such as offered by ...
23That the parties will each encourage and foster the children's relationship with the other parent and other members of their respective households and extended families.
In her final submissions the respondent mother indicated that she sought a
week-about equal time arrangement during school terms and for the children to spend half of their birthdays with each parent. The mother stated that she agreed otherwise to the orders proposed by the ICL, in the event that there is no relocation of the children to New Zealand.
Background
The father was born in New Zealand in 1982 and currently is 36 years of age. The mother was born in Australia in 1989 and is presently aged 29 years. Both parties are of Maori heritage.
The parties commenced a relationship in 2008 and separated in October 2014. The mother contended that they did not cohabit at any time during their relationship and that they were in contact with each other only irregularly from approximately 2010. The father alleged that the parties cohabited at various times during the relationship.
Until September 2015 the father worked from 2.00 pm until 10.00 pm on Monday to Friday. In September 2015 the father suffered an injury to his arm in his workplace, which has resulted in a partial permanent disability.
The children lived with the mother after the breakdown of the parties' relationship and spent time with the father on weekends. There was a dispute as to the amount of time which the children spent in the care of the father but it appeared to be common ground that they spent each weekend with him from 2015.
On 23 February 2016 the father filed an Initiating Application, by which he sought orders that the children live with him and that they relocate to New Zealand. On 23 March 2016 the father removed the children from their school without the knowledge or consent of the mother. He then unilaterally changed their school and they did not attend a school at all again until 8 April 2016.
The father filed an Application in a Case on 24 March 2016 and the mother a Response on 18 April 2016. On 19 April 2016 interim orders were made which provided that the children live with the mother from Friday afternoon until Sunday evening each week and with the father at all other times.
Records produced on subpoena by the Department of Family and Community Services ("FACS") (Exhibit 3) demonstrated that case workers were involved with the parties and the children from about 2013. Records produced by the children's schools (Exhibits 4, 5, 6, 7 and 8) showed that they were absent on numerous occasions in 2015 and 2016.
On 20 April 2016 X suffered a fracture to his arm while in the care of his father. No steps were taken by the father to inform the mother of this injury until the following day.
On 22 June 2016 interim orders were made, following a contested hearing, which provided that the children live with the father and spend time with the mother during school terms each weekend from the conclusion of school on Friday until the commencement of school on Monday. These arrangements remain in place.
The orders of June 2016 provided that both parties do all things necessary to cause the children to undertake a global paediatric assessment. The father made a tentative appointment with Dr B on 19 October 2016. His solicitors informed the mother of this appointment, requesting her consent and payment of half of the fees payable to Dr B. The mother made no response to this letter.
The children ultimately attended upon Dr B on 8 November 2016. The mother was informed of but did not attend this appointment. Her Legal Aid representation was withdrawn during 2016, due to her failure to attend appointments.
Dr B prepared reports dated 14 November 2016 in relation to each of the children. In relation to Y, Dr B reported and recommended as follows:
In summary, [Y] is a healthy, engaging, neuro-developmentally normal five year old. She clearly has sugar-induced oral decay that needs to be addressed as a priority.
Recommendations:
1. Paediatric dental review as a priority.
2.Paediatric dietitian review with both parents to ensure appropriate dietary choices are being made.
3.Parental consideration be given to bringing [Y's] bedtime back to 7.30 to 8.00 pm.
In relation to X, Dr B reported and recommended as follows:
In summary, X is an engaging almost 7 year old boy with the following significant problems:
1. Obesity with borderline hypertension
2. Very poor dentitian, likely secondary to excessive dietary sugar.
3. Significant learning difficulties
Recommendations
1. Paediatric dental review as a priority
2.Paediatric dietitian review with both parents to ensure appropriate dietary choices are being made.
3.Blood tests to exclude hypercholesterolaemia, and insulin resistance as a marker for early diabetes. These have been arranged today.
4.Psychometric evaluation with an Educational & Developmental Psychologist to elicit global learning difficulties and/or a specific learning disorder such as dyslexia or its numerical equivalent. I would recommend Ms D at D and Associates, who is well known to the Family Court as an Independent Expert.
5.Language assessment with a Speech Pathologist given the school's concerns about language skills
6.Paediatric medical review in 3 months to evaluate weight and blood pressure (to be arranged)
7.Depending on results of the above assessments, consideration be given to a further Paediatrician assessment to explore additional diagnoses, especially Attention Deficit Hyperactivity Disorder (ADHD)
8.[X]'s access to television and video games be limited to those classified PG, and parents should give considerable thought to eliminating all access to violent screen content.`
On 16 November 2016 the father filed an Application in a Case, whereby he sought orders to permit him to travel to New Zealand with the children during the upcoming Christmas school holidays. Interim orders were made by consent on 30 November 2016 and the children spent the period 27 December 2016 to 24 January 2017 with the father and paternal family in New Zealand.
In 2017 the mother gave birth to a son, Z, who is presently 19 months of age. Z's father is Mr E, with whom the mother said that she does not cohabit but "has a good relationship".
In July 2017 the mother requested that the father consent to her travelling to the United States with the children in February 2018 (Exhibit 11). She explained that the proposed trip was a celebration of the birthdays of the children, their infant half-brother Z and a maternal uncle. The father refused his consent, on the basis that he objected to the children travelling during school term time.
The mother then proposed that the trip take place during the April 2018 school holidays and the father again refused his consent. This time the father relied on "the possibility that those dates (for trial) to coincide with your proposed travel arrangements". Accordingly, the children did not have the opportunity to travel to the United States with the mother.
Approach to these proceedings
In making a parenting order, the Court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out two “primary” and several “additional” considerations, to which the Court must have regard in determining what orders are in a child’s best interests.
The Court must have regard to the objects of Part VII, as contained in section 60B(1) and the principles underlying those objects, as set out in section 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.
Section 61DA requires the Court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the Court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the Court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)). If there is no order for equal time, the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3), (4) and (5). There is no temporal definition of “substantial and significant time”.
In MRR v GR (2010) 240 CLR 461 the High Court of Australia said:
[8] Subsection (1) of s 65DAA is headed “Equal time” and provides:
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.
Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the Court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the Court is obliged to:
(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.
Subsection (3) explains what is meant by the phrase “substantial and significant time”.
[9]Each of subss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.
…
[13]Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
…
[15]Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. …
In Taylor & Barker (2007) 37 FamLR 461 the Full Court (per Bryant CJ and Finn J) considered the proper approach to cases which involve a proposal by one party to make a significant change to the place of residence of a child. Their Honours said, inter alia:
(i)When dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible:
U v U (2002) 211 CLR 238; (2002) FLC 93-112 and Bolitho & Cohen(2005) 33 Fam LR 471; (2005) FLC 93-224 applied.
(ii)There was no substance in the argument that the magistrate had erred in dealing with the issue of relocation and the reasons for it as a separate and determinative issue. A relocation proposal should continue to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the relevant s 60CC matters; however, such a proposal now also needs to be considered in the context of s 65DAA. Given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subs (2) (primary considerations) and subs (3) (additional considerations) of that section, it would seem only logical that the court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.
…
(v)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”), the magistrate had then turned to consider the “reasonable practicability” of such an arrangement, some assistance would have been gained from s 65DAA(5). A consideration of these matters would have required the magistrate 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, it was not possible to conclude that the magistrate’s decision was incorrectly reached.
(vi)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.
The evidence and witnesses
The applicant father relied upon the following affidavits:
1. Mr Kohl (the father) affirmed on 13 July 2018
2. Mr Kohl Snr (the paternal grandfather) affirmed on 13 July 2018
3. Ms Kohl Snr (the paternal grandmother) affirmed on 13 July 2018.
The father and his parents both gave oral evidence by way of cross-examination.
The mother, who was unrepresented at trial, relied on her affidavits sworn on 15 April 2016 and 14 June 2016. The mother gave oral evidence by way of cross-examination.
I had the benefit of a Family Report dated 25 October 2017 prepared by Family Consultant Ms F. The Family Consultant gave oral evidence.
The best interests of the children: 60CC considerations
Section 60CC(2)
The Family Consultant assessed that the children "appear to have warm and affectionate relationships with both parents, although [X] seemed to be more comfortable interacting with his father and more reactive when interacting with his mother." The Family Consultant opined that:
118.Although the parental communication is poor and the conflict between them previously often high, if the parents obtained help with their communication and containing their hostility for the benefit of their children, [Y] and [X] would benefit from both parents being involved in the decision-making about their well-being. If [Mr Kohl] is permitted to relocate to New Zealand with the children, sole parental responsibility seems a practical option with the requirement that he inform and consult [Ms Rennie] about the children.
The proposals of both parties would result in the children spending unsupervised block periods of time with each parent. During the Family Report interviews they both indicated that they were prepared to agree to a week-about equal time arrangement. I construe the proposals of each of the parties and their willingness to agree to an equal time arrangement as mutual concessions that the children currently derive benefit from a meaningful relationship with both their mother and their father and that they will continue to do so into the future. In my view, the proposals of the parties and their willingness to implement a week-about arrangement indicate that they each consider that the children are not at risk in the unsupervised care of the other parent.
The Family Consultant reported that the father "said that the children are safe in both homes but that [the mother] often leaves the children with their grandmother or other family members". There was no evidence of any involvement of officers of FACS with the parties or the children since the departmental file was subpoenaed in 2016. There was no evidence of any FACS involvement in the mother's care of Z. I assume that, in the interests of the children, the ICL would have adduced evidence of any such FACS involvement.
Counsel for the father submitted that "a block of five nights with the mother is how many times the children will be exposed to not having their basic needs met", which I construe as a contention that the children would be at risk in her care. As noted, the father opined that the children "are safe" in the household of each parent. The Family Consultant offered no view that the children currently are at risk in the care of the mother. She recommended that "if safe", they spend five or six days per fortnight in her household. Having heard all of the evidence, the ICL proposed that the children spend five nights per fortnight in the care of the mother.
For these reasons, I am satisfied that the children currently are no at risk in the care of the mother. Additionally, as appears below, there was no evidence of present failure by the mother to provide for "the basic needs" of the children.
Section 60CC(3)
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
In respect to the views of Y, the Family Consultant reported as follows:
68.[Y] described the current parental arrangement as being "good" because she likes being with each parent. She said that she misses both parents when she is not with them and described enjoyable times when with each parent. [Y] said that she will be with her father for the week (after the Family Report interviews) for school holidays and expressed great happiness about this prospect. When asked about New Zealand, [Y] said that she would miss her father if she is not living with him. She added that she would miss her mother too.
The Family Consultant reported further:
94.[Y] appears to be progressing well developmentally, academically and socially. She was observed to an active, kindly, sociable and
co-operative child. [Y] reported positive feelings about maintaining a relationship with both parents and said that she misses each parent when not with them. She appears to have a warm relationship with her half-brother, [Z]. [Y] expressed the view that she wants the current arrangements to remain in place and to be able to spend time with both parents.The Family Consultant opined as follows:
95.Although [Y] is a child of not yet seven years of age, she expressed her feelings and views clearly. [Y's] views and feelings should be heard and taken into account, but due to her young age and stage of development, these should not be the determining factor. She also does not yet have the cognitive capacity to understand the issues around relocation and she did not express a view about this, nor was she asked.
The Family Consultant described that X presented as "very reserved" and "quite uncomfortable to be in the court and during the assessment". She reported:
76.[X] described his father as being always happy. He said that he likes being with his father and that it is always good [when he is with his father]. He described his mother as being angry. [X] described his sister warmly as being happy and he said that she likes "performing". He spoke about the baby as being "happy" but also expressed conflicting emotions about [Z].
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)
I have referred above to the assessment of the Family Consultant as to the nature of the relationship of the children and each of their parents. The Family Consultant opined further as follows:
93.[X] and [Y] appear to have different, but overall, warm relationships with each of their parents. There appears to be a close sibling relationship between [Y] and [X].
The Family Consultant noted that the mother raised her voice at X immediately when he threw objects during the observation session. She considered that X was "testing his mother" and that he was not as responsive to her discipline as had been the case with the father. In her oral evidence the Family Consultant said words to the effect:
There are problems with [X's] relationship with the mother. They are both volatile. It concerned me that [X] experienced the mother as angry.
The mother said in her oral evidence words to the effect:
Maybe I have a problem with how I deal with my anger. I do yell at them but I do not hit them. I got angry when [X] swore at me but he does not now. If he swears at me of course it is appropriate that I yell at him.
The mother made these comments when taken to the following material in the Family Report:
100.Regarding [Ms Rennie's] presentation during Family Report interviews, her high level of anger, while understandable to some degree in the context of her finding the court process difficult, is very concerning. It is particularly concerning as it appears that, if [Ms Rennie] is feeling upset or angry about something, she does not seem able to contain her anger and it escalates, eventually subsides, only to be triggered repeatedly. [Ms Rennie] reported that she also becomes angry at home, particularly with [X]. She also reported that this anger occurred during her pregnancy with [Z] and she suggested that her hormones may have contributed to the verbal abuse between her and [Mr E]. If [Ms Rennie] is unable to contain and regulate her own emotions in other contexts, such as her home, the children could be exposed to her anger on a regular basis and this could impact on their emotional development and on their ability to learn different ways of responding and regulating their own emotions. [X] is particularly vulnerable in this area.
The father deposed that X refused to spend weekends with the mother on several occasions during 2017. In his oral evidence, however, the father said that there are no difficulties at present with X spending time with the mother. He added that both children spent time with the mother during the September 2017 and Christmas 2017/2018 school holidays and that X spent five or six weekends with her prior to the trial in 2018.
It thus appears that both children now go without difficulty to spend time with the mother. In my view, the reason for X's reluctance to do so until relatively recently was not identified with any precision in the evidence. I accept the evidence of the father to the effect that he encouraged X to spend time with the mother, which is to his credit.
The Family Consultant assessed that the children have a close sibling relationship and that Y 'appears to be quite sympathetic towards X, despite him being reportedly "cranky and sad"'. It may well be that the ICL was correct in the submission that "their positive and close sibling relationship is one of the few constants in their lives."
The maternal grandmother was interviewed by the Family Consultant and indicated that she provides regular assistance to the mother with the care of the children. Somewhat presciently, perhaps, the maternal grandmother observed to the Family Consultant that both parents "need to grow up" and to "communicate with each other as they had prior to the father's application".
In October 2017 the Family Consultant spoke to X's teacher, who described his learning and developmental difficulties. The Family Consultant reported on her conversation with X's teacher as follows:
82.[Ms G] described [X] as having significant learning and development problems. She said that [X's] academic work is still at kindergarten level and that he has not made notable academic progress over the year, with her continually having to remind [X] of daily routines and expectations. [Ms G] reported that [X] appears to have cognitive receptive problems, difficulty understanding instructions easily, and has variable capacity to remember information from day-to-day. She said that [X] has poor focus and that he functions best in class with individual attention. She said that [X] likely missed the important foundation learning in kindergarten due to his absenteeism and the trauma he may have experienced from the parental conflict, but that he also appears to have a learning disability. [Ms G] emphasised the need for [X] to have a full paediatric assessment as soon as possible, and definitely prior to him commencing Year 3.
83.[Ms G] said that [X] has ongoing health issues with colds and mucus. She reported that [X] was either very angry or sad and that he cries frequently and easily, even over insignificant requests, which he may be misinterpreting as him being in trouble. [Ms G] reported that [X] can be very violent with other children and towards himself, often saying "I want to kill myself" if he does not manage his school work or things do not go his way.
The paternal grandmother was interviewed by the Family Consultant and fairly stated that she "could not contribute much information about the children due to their infrequent contact". The paternal grandfather said that he and his wife usually spend two weeks in Australia with the father and the children around September each year. As noted, the children and the father spent the period 27 December 2016 to 24 January 2017 in New Zealand with the paternal family. It is thus the case that the paternal grandparents have had limited involvement with the children.
Section 60CC(3)(c) the extent to which each of the child’s parents 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
The mother did not attend the children's appointments with Dr B on 8 November 2016. I note, however, that she was heavily pregnant with her son Z at this time. I accept her evidence that she had a difficult pregnancy and she may also have encountered problems with travel between her home at Suburb H and Dr B's rooms at Suburb J. As appears below, the mother proffered that one of her reasons for failure to attend this appointment was that she "cannot be around him" [the father].
Dr B made a number of recommendations in relation to the medical treatment and management of each of the children. Neither party has implemented these recommendations but, in fairness to the mother, she would have had great difficulty in doing so since the children are in her care only from Friday afternoon to Monday morning during school term time.
When the father was asked why he failed to follow through with the recommendations of Dr B, he said inter alia as follows:
●I did not have the money for a paediatric review after three months
●I don't know why I did not follow up on an appointment for an assessment of learning disabilities
●there has been no assessment for ADHD
●I have not got round to an appointment with a paediatric dietitian
●I hoped the school would help out with speech pathology.
The father said that he asked his parents for financial assistance with meeting medical costs only approximately ten days before the trial. He conceded that he could have done so at a much earlier stage but offered no explanation for his failure to take up this option.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Each of the parties lives in difficult financial circumstances. In my view, this consideration is largely irrelevant to the outcome of these proceedings.
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
The father's proposed relocation of the children to New Zealand obviously would bring about significant changes in their circumstances. They would be separated from the mother, the maternal grandmother and other family members and their young half-sibling Z. Their time with the mother and Z is highly likely to be limited to school holidays, as she lacks the financial resources to fund additional trips between Australia and New Zealand. Additionally, she has the responsibility of full-time care of a young child.
The Family Consultant considered and addressed the likely advantages and disadvantages of the proposed relocation. She pointed to unknown factors in this balancing exercise, including the outcome of a full assessment of X and the impact upon the mental health of the mother.
Advantages identified by the Family Consultant of the proposed relocation included the following:
●stability of life with the father and paternal family in a strong Maori community, in which the paternal grandparents have prominent roles
●longer blocks of time free from exposure to parental conflict
●support for the father in his parenting role from his family
●X may benefit from "stable blocks of time without being exposed to his mother's anger".
Disadvantages of the proposed relocation identified by the Family Consultant included the following:
●"inevitably" there would be a change in the nature of the children's relationship with the mother
●until he matures, their young half-sibling Z may not remember the children between school holiday visits
●travel between Sydney and New Zealand may become burdensome over time
●X may experience difficulty in adjustment to a different school in New Zealand and require reassessment
●the mother is likely to "experience significant loss and grief", with a consequent but unknown level of risk to her mental health
●if the children remain in Sydney they will sustain relationships with both of their parents, their half-sibling and maternal family members
●if the children remain in Sydney, they will receive ongoing support from staff at their current school
●the children are "settled and secure in the current arrangements".
Counsel for the father submitted that "the court should consider a more curtailed weekend arrangement", in terms of the children's time with the mother, and posed the rhetorical question "is that sufficient to prevent relocation?" The father made no such application, however, and gave no evidence which would indicate that he harbours any wish for such an outcome. As noted, in fact he told the Family Consultant that he would agree to a week-about arrangement and that he considered the children to be "safe" in the household of each of the parties. Neither the ICL nor the Family Consultant put any such proposal. I those circumstances, I will not entertain this suggestion for a "more curtailed weekend arrangement."
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
At present each of the parties lives in Western Sydney. Implementation of time for the children with the mother does not seem to be problematic, in terms of practical difficulty and expense. Obviously that situation would change very significantly with a relocation to New Zealand.
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 my view, it is abundantly clear that each of the parties has a limited capacity to provide for the needs of the children. Counsel for the father sought to sheet home to the mother responsibility for the children's poor dental health, school attendance, lack of immunisation and other unfortunate circumstances prior to their transition into the care of the father. It appeared that this submission rested on the mother's evidence to the effect that she and the father did not cohabit during their relationship. This submission was inconsistent with the father's own account of his involvement with the care of the children before and after the separation of the parties.
The father deposed that he and the mother "shared the care of the children" from the separation in October 2014 until April 2016. He deposed that he "assisted with all aspects of X's care" after his birth and that he was the primary carer of the children on most weekends, while the mother went to clubs with her friends.
During her oral evidence, the mother made frank concessions in relation to her failures to meet the needs of the children. She said inter alia:
●it is my own fault that he's [X] missed school, I let him walk all over me
●missing a lot of school in kindergarten may have created problems for [X] – I take full responsibility
●of course I feel guilty about the dental work – it is my fault
●I have learned my lesson, I am tougher now, I was still changing when I saw the Family Consultant
●I know he [X] attended school very little in kindergarten – I know it is my fault. I am sorry".
The children's semester 1 2018 school reports recorded that both children were fully or partially absent for six days up to 22 June 2018. This level of absence does not suggest that the mother fails to deliver them to school on Monday mornings. X's teacher reported to the Family Consultant in October 2017 that he, and presumably Y, often are delivered to school by the maternal grandmother on Monday mornings. The mother gave evidence that the maternal grandmother works afternoon shifts and has offered regular support in delivering the children to school in the mornings.
In my view, it is noteworthy that Dr B's concerning assessment of X's health, learning and developmental problems came nine months after the children transitioned to the primary care of the father. It is thus evident that the father had achieved little in addressing X's difficulties during that period.
The father has not taken steps to implement the recommendations of Dr B. Similarly, it appears that he has not taken steps to address the problems outlined by X's teacher to the Family Consultant. I consider that he gave unpersuasive explanations for his failure to address these serious difficulties of X.
I consider that the paternal grandparents have had limited involvement in addressing X's health and developmental difficulties, even allowing for geographical separation. The paternal grandfather said that he was aware that X had seen a paediatrician in November in 2016 and that he recommended a review in three months. The paternal grandfather said that he had been told of dietary problems, possible ADHD and learning and speech difficulties.
The maternal grandmother said that the father told her of the appointment with Dr B in November 2016. She stated that the father told her that there had been a follow-up appointment and that she was unaware that X in fact had not seen a paediatrician or a psychologist in accordance with the recommendations of Dr B.
In my view, it is unhelpful that the failings of each of the parties as parents are set out and analysed in detail in these reasons. It is patently obvious that they have each failed to fulfil their responsibilities as parents at various times. It is equally obvious, however, that they both love the children and have a strong wish to play a significant role in their lives.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The ICL submitted that an important consideration, in terms of this factor, is the conflict between the parents and its impact upon the children. I have referred above to the wise statement of the maternal grandmother to the Family Consultant that she considered that each of the parents "need to grow up" and adopt a more civil and constructive form of communication. There is no doubt whatsoever that the children would benefit from a cessation of hostilities between their parents.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
The parties made mutual allegations of past family violence. There was no independent evidence to corroborate any of these allegations, thus factual findings would be problematic and probably of little utility for present purposes. I am inclined to agree with the submission of the ICL that these allegations are "largely historical" and that a more helpful focus would be minimisation of future contact between the parents.
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
No relevant factors emerge from the evidence in terms of this consideration.
Parental responsibility
The ICL proposed that the parties have equal shared parental responsibility for the children in the event that there is no relocation to New Zealand. As noted above, the Family Consultant took the same position but added a rider that the parties should obtain help with their communication and containing their hostility ...". The father sought sole parental responsibility irrespective of whether the children live in Australia or New Zealand.
The mother stated openly to the Family Consultant that she "can't stand his face" in relation to the father. In her oral evidence, however, the mother gave some indication of willingness to develop a more constructive approach to a
co-parenting relationship with the father. She said inter alia:
● I don't mind sharing them
●I did not go [to the paediatrician appointment] because at this time I cannot be around him, maybe later we will be ok, also I was pregnant
● I am willing to keep it the way it is
●I admit I am really angry with him but when this is over, I promise I will be better.
The mother said "I admit that I am broken and angry, I am miserable." In my view, this statement encapsulated her response to loss of the primary care of the children and her real fear of their moving to another country. It seems to me that there is reason for optimism that the mother's emotional state may stabilise, if the children remain in Australia and spend meaningful time with her.
For these reasons I conclude that the presumption of equal shared parental responsibility should apply and has not been rebutted for the purposes of section 61DA(3). I am not satisfied that either party has engaged in abuse of the children or in perpetration of family violence, such that they should not hold equal shared parental responsibility.
Conclusion
As the parties will have equal shared parental responsibility I am required to consider whether it is in the best interests of the children, and reasonably practicable, that they spend equal or substantial and significant time with each parent. I am not satisfied that an equal time arrangement would be in the best interests of the children. I conclude that orders that the children should spend substantial and significant time with each parent would be in the best interests of the children. I am satisfied further that the orders proposed by the ICL would result in a regime of substantial and significant time for the children with each parent.
I have concerns in relation to an equal time arrangement. A move to a week-about regime, for example, would constitute a reasonably significant change for the children from an arrangement which has now been in place for a period in excess of two years. Both children appear to be "settled and secure", in the words of the Family Consultant, with the current parenting arrangement of living primarily with the father. I share the concern of the Family Consultant that X "may struggle emotionally" if there is a disruption to the primary care of the father and that he may "test his mother more" and "be more exposed to her anger" if there is to be an equal time arrangement. Additionally, the mother may be challenged by an equal time arrangement which must accommodate her responsibility for primary care of her young son Z.
I will make orders which broadly are in terms of the proposal of the ICL. I am not satisfied that the children's best interests would be met by orders which would see them spend time with the mother, the maternal grandmother and their
half-sibling Z only during school holidays. I accept the evidence of the Family Consultant, to the effect that there would be an "inevitable" change in the nature of the children's relationship with the mother if they spend time with her only during school holidays. I accept also the evidence of the Family Consultant to the effect that Z may not remember the children between school holiday visits until he acquires more maturity. I infer that such changes to these relationships would be contrary to the best interests of the children.
It follows that I conclude that the best interests of the children require that they remain in Sydney. The father made no proposals for time with the mother in such circumstances, other than the submission of his counsel that there should be "a more curtailed weekend arrangement". There were no particulars of any such proposed arrangement and as noted no evidence to that effect from the father. As indicated, I am satisfied that orders in the scheme proposed by the ICL would meet the best interests of the children.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 28 November 2018.
Associate: M. Rankin
Date: 28 November 2018
Key Legal Topics
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Family Law
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