Larsson and Casey
[2016] FamCA 971
•16 November 2016
FAMILY COURT OF AUSTRALIA
| LARSSON & CASEY | [2016] FamCA 971 |
| FAMILY LAW – Parenting – children – interim hearing relocation to Darwin |
| Family Law Act 1975 ss 60CC, 60I(9)(d), 96 |
| Cowling v Cowling (1998) FLC 92-801 |
| APPLICANT: | Ms Larsson |
| RESPONDENT: | Mr Casey |
| FILE NUMBER: | CAC | 1672 | of | 2016 |
| DATE DELIVERED: | 16 November 2016 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 11 November 2016 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Hill, Sautelle White Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Mr Byrne, Go To Court Lawyers |
Orders
That the requirement for a s 60I certificate be dispensed with.
The applicant mother and the respondent father have equal shared parental responsibility for the children of the relationship, namely B (B), born … 2006, and C (C), born … 2002.
That B lives with the applicant mother.
That C lives with the respondent father.
That the mother is permitted to relocate B’s residence to Darwin.
That B spends time with the respondent father as agreed between the parties. In the absence of agreement B shall spend time with the respondent father as follows:
(a)During the end of first term school holidays (Northern Territory) for the first week that corresponds with the NSW school holidays for C.
(b)During the end of term two school holidays (Northern Territory) for the first week that corresponds with the NSW school holidays for C.
(c)During the end of term three school holidays (Northern Territory) for the first week that corresponds with the NSW school holidays for C.
(d)During the end of year Christmas school holidays (Northern Territory) for the first three weeks that correspond with the NSW school holidays for C in the even years, and the last three weeks that correspond with the NSW school holidays for C in the odd years.
(e)Failing there being any overlap between the NSW and Northern Territory school holidays for the end of term school holidays, then for the first week of the Northern Territory end of term school holidays.
That C spends time with the applicant mother as agreed between the parties. In the absence of an agreement C shall spend time with the applicant mother as follows:
(a)During the end of first term school holidays (New South Wales) for the balance of the school holidays other than the week referred to in 6(a) above;
(b)During the end of second term school holidays (New South Wales) for the balance of the school holidays other than the week referred to in 6(b) above;
(c)During the end of third term school holidays (New South Wales) for the balance of the school holidays other than the week referred to in 6(c) above;
(d)During the end of year Christmas school holidays (NSW) for the balance of the school holidays other than the three week periods referred to in 6(d) above;
(e)In the event that orders 6(e) is operative, then for the first week of the NSW end of term school holidays.
The applicant mother is to organise and pay the travel expenses for B and C as agreed, and failing agreement 100 per cent of the cost of a return economy class travel from Darwin to Sydney four times a year for each.
That except when the respondent father is spending time with B in accordance with Order 6, the applicant mother will facilitate Skype communication between B and the respondent father as agreed, and failing agreement between 5:00pm and 6:00pm each Sunday, Darwin time.
That except when the applicant mother is spending time with C in accordance with Order 7, the respondent father will facilitate Skype communication between C and the applicant mother as agreed, and failing agreement between 5:00pm and 6:00pm each Wednesday, Sydney time.
That each parent keeps the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advises the other parent of any change within seven days of such change.
That in the event of childhood illness or emergency the parent with whom the children are with shall contact the other parent forthwith to inform them of the situation.
That both parents be permitted to liaise directly with the school to receive notices, information, newsletters, reports, school photographs and any other necessary information about the children’s progress.
It is noted that these orders dispose of the appeal lodged 13 October 2016.
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 Larsson & Casey 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 CANBERRA |
FILE NUMBER: CAC 1672 of 2016
| Ms Larsson |
Applicant
And
| Mr Casey |
Respondent
REASONS FOR JUDGMENT
The matter came before me on 11 November 2016 as an appeal from an order of the Local Court at D Town made on 11 October 2016, such order being appealed by way of Notice of Appeal filed 13 October 2016.
On that day the Local Court made three orders being:
1.This matter is now transferred to the Federal Circuit Court Canberra
2.The mother is restrained from relocating the child [B] until further order of the Court.
3.The social media prohibition order made 6.10.16 – social media postings to be removed, and no further postings to be made, with application to both parties – is continued.
Of these orders it appears that only Order 2 is the subject of the appeal. By virtue of the transfer order the matter is listed before the Federal Circuit Court at Canberra on 30 November 2016.
The appeal before me is governed by s 96 of the Family Law Act 1975. The appeal has been filed within time and leave is not required. The appeal is to proceed by way of a hearing de novo. The matter was argued on the first return date.
The key issue relates to the intention of the mother to move from E Town, on the New South Wales (NSW) South Coast, to Darwin, in the Northern Territory. Together the parties have two children being B (B), born in 2006, and C (C), born in 2002. B currently lives with his mother. C currently lives with his father, in Sydney. The mother’s position is that she will move to Darwin for reasons that will be explained later. She seeks, but is currently restrained by the orders made by the Local Court at D Town, to take B with her to Darwin. The father, on the mother relocating, seeks that B move to live with him and his brother C. On the case as put by each of the parties there is no third option. That is, there is no option for the mother to remain in E Town with B. The choices are either B living with the mother in Darwin or with the father in Sydney.
History
In setting out the factual matters to be relied upon in this application the mother relied on her affidavit of 27 October 2016, which referenced her affidavits of 23 September 2016 and 7 October 2016, while the father relied on his affidavits of 10 October 2016 and 9 November 2016.
The parties met and commenced a relationship in F Town, NSW in about November 1999 but separated by 2007. By January 2012 the mother and both C and B had moved from F Town, to G Town, NSW as the mother had formed a relationship with her now husband, Mr Larsson. In September 2012 C moved from living with the mother to living with the father, a small distance from F Town. A number of months after this the father and C moved to Sydney to live. In about April 2013 the mother, Mr Larsson and B moved to E Town, a country town on the NSW South Coast. This meant that the mother and B, and the father and C were living in excess of 500kms apart from each other. In June 2014 the mother and Mr Larsson had their first child, H, born in 2014. In 2016 their second child, J was born. The father has also re-partnered, with Ms I.
In about August 2016 Mr Larsson was informed of a job opportunity with in Darwin. The mother and Mr Larsson determined that he would apply for the position. He did so and was granted the position. He was due to commence the position in October 2016. The affidavit material is not specific as to whether or not he has commenced, however is specific that if the position was not taken up there was no other position for him to hold and that he would either have to leave the his current employment or be unpaid pending another position being taken up.
The arrangement for B and C spending time with each other and with their parents has been for them to spend time together, with the parent they are not living with, each school holidays. This has seen each of them spending half the school holidays with their mother and half the school holidays with their father.
In addition to that, B has spent time with his father on approximately another seven occasions through 2016, the bulk of these being occasions when he has gone skiing with his father and his brother. This additional weekend time was not occurring before 2016.
On being informed of the mother’s desire to move to Darwin the father voiced his immediate resistance to the relocation of B to Darwin.
No mediation was undertaken between the parties prior to the institution of these proceedings. The proceedings have been commenced on the basis of the urgency of the situation. The father complains that mediation should have been a precursor to the undertaking of litigation in order to give the parties an attempt to resolve the issues. He further complains that any urgency put forward to justify the commencement of proceedings without the necessary pre-proceedings steps was an urgency that was brought about by the mother.
For the father it is put that the conditions precedent to the commencement of proceedings under s 60I of the Family Law Act 1975 have not been met. It appears however that given the relocation of Mr Larsson to Darwin under circumstances where there are two young children of the relationship and the mother is currently separated from Mr Larsson, that s 60I(9)(d) has application in that the application made by the mother has the requisite circumstance of urgency. In making such a finding I note the emphasis placed on this matter by the father and the understandable frustration expressed that there was no step of mediation or counselling attempted to resolve these matters in advance of the litigation. This is a matter I will give further consideration in relation to the s 60CC factors.
Each of the parties made some criticism of the other in respect of their parenting capacity. The mother, for example, raised issues as to struggles the father has previously had with depression, and commented on such issues as C’s hygiene. The father has asserted that the mother has not taken the opportunities available to her to spend time with C and is critical that the mother has taken steps both in moving to E Town and now seeking to move to Darwin that renders the practicality of C and B spending time together with each other so difficult as to mean that their relationship will be consigned to being like cousins rather than brothers. Given the interim nature of these proceedings I am unable to determine the merits of these criticisms. The mother, for example, asserts the father’s consent to her move to E Town, while the father denies such consent. The father points to C’s age, almost 14, to explain the matters the mother pointed to regarding hygiene. These are not matters to be resolved on an interim basis, and are unlikely to be decisive within the s60CC matters even if they were resolved.
It is however noteworthy that the undisputed arrangement between the parties has been for the father to have the primary care of C and the mother to have the primary care of B, under circumstances where there was initially the distance between the father’s residence just outside of F Town and the mother’s residence at G Town, then, the father’s residence in Sydney and the mother’s residence in G Town before any move further away was made. Under circumstances where this arrangement persisted I am content to find that each of the parents regarded the other as having sufficient parenting capacity and relationship with a child in their primary care as to mean that each considered it the best interests of that child were met by the arrangements.
At the hearing it was identified that each of the parties seeks an order for equal shared parental responsibility for C and B, at least at this stage.
The wife has made clear that her position is that she will reside in Darwin. She seeks that B live with her, her husband and other two children there. The father’s position in response to this is that B should live with he and his partner and C in Sydney. There is no middle ground.
Under the circumstances of these positions it can readily be seen that there is no reasonably practicable option for either an equal sharing of time nor for substantial and significant time.
Law in relation to interim proceedings and relocation
In Goode and Goode the Full Court noted that in interim proceedings,[1] as in final proceedings, there is an obligation to follow both the structure of, and the process of reasoning set out in the Family Law Act 1975 (Cth) (‘the Act’).[2] This is a structure that supports a legislative intent in favour of substantial involvement by both parents, subject to the adequate protection of children, subject to the best interests of children, and subject to reasonable practicability.
[1]Goode & Goode (2006) FLC 92-286 at [72].
[2] Family Law Act 1975 (Cth).
In cases where an order is made for equal shared parental responsibility (a matter that is currently uncontested by the parties), consideration must be given to equal time, such a consideration involving an assessment of best interests, but such an order only being allowable if it is reasonably practicable.
The High Court in MRR & GR found that a Court is obliged to make findings in relation to reasonable practicability before it is open to the Court to make an order for equal time.[3] In assessing reasonable practicability, the Court is concerned with the reality of the situation faced by the parties.[4] It is readily apparent that reasonable practicability in this case allows neither equal time nor substantial and significant time to be spent by each of the parents.
[3]MRR v GR (2010) 240 CLR 461.
[4] Ibid.
While the pathway remains the same for an interim as a final hearing, the Full Court in Goode recognised that, in interim proceedings, the Court has a limited ability to deal with factual matters. There the Court cautioned that where findings of fact cannot be made, a court at first instance should not be drawn into the merits of the substantive case but should rather look to matters such as the agreed facts, matters that are not in dispute, prior arrangements, current circumstances, and the proposals of the parties.[5]
[5] Goode & Goode (2006) FLC 92-286 at [82].
Justice Boland, sitting as the Full Court in Morgan & Miles,[6] specifically applied Goode to an interim contest involving relocation. Having found that the same pathway is applicable for relocation cases on an interim basis as for other cases, Boland J went on to note that it is highly desirable (save in cases of emergency) that arrangements not be determined in the abridged context of an interim hearing.[7] Thus, particularly where the issue is relocation, the question of stability “may be extremely relevant on an interim basis”. The importance of such stability must be assessed on a case specific basis, and does not involve a return to the law as set out in Cowling.[8]
[6]Morgan & Miles (2007) FLC 93-343.
[7] Ibid [88].
[8] Cowling v Cowling (1998) FLC 92-801.
Necessarily, any consideration mandates a consideration of the parties’ proposals, noting that it is open to the Court to consider other options as long as the parties are given procedural fairness (U & U).[9] Similarly, Boland J in Morgan & Miles noted that the Court must carefully weigh and balance the s 60CC factors in respect of the competing proposals put by the parties.[10]
[9]U v U [2002] HCA 36.
[10] Morgan & Miles (2007) FLC 93-343 at [79].
Section 60CC factors
In addressing the s 60CC factors the applicant mother made reference to the decision of Foster FM (as he then was) in Francis & Bordina[11] which was a case that dealt with an interim relocation from Bateman’s Bay, on the NSW South Coast, to Darwin. It was a case that bore some similarity to the present case. In particular I was taken to the s 60CC analysis engaged in by his Honour.
[11] [2013] FMCAfam 14
In examining the primary considerations, this is a case that does not involve a cogent need to protect B from physical or psychological harm. Despite some reference to risk in each of the Notices of Risk filed by the parties, in the circumstances where there have been settled arrangements involving the separation of the siblings and the primary care by each of the parents along with the circumstance of geographical separation, the acceptance of that settled arrangement is such as to mean that I do not consider it necessary to structure orders for the protection of B or C.
Similarly, in consideration of meaningful relationship between each parent and each child, the settled arrangements engaged in are indicative that each parent treated the arrangements as sufficient for the maintenance of their relationship with the child that was not living with them. While neither the father nor the mother has particularised what arrangements should be in place, for B to spend time with the mother if B lives with him, it is difficult to envisage anything significantly greater than school holiday time (accepting some weekend time would still be possible).
The arrangements that would be in place should B either live in Darwin or Sydney are reflective of what each has previously treated as sufficient for C to gain the benefits of relationship with the mother and B to gain the benefits of relationship from the father.
additional considerations
B is reported as expressing a view that he wishes to move to Darwin.
At present the expression of this view is controversial. That is, it is a matter of contest as to what influence may have been brought to bear on B and to what extent the expression came from him (that is, it is asserted that somebody else may have sent a text message attributed to B). Accordingly, I am unable at this interim stage of the proceedings to make any finding as to a view expressed by B.
The nature of the relationship of B with each of his parents and with his siblings.
Until the commencement of the proceedings B was living in a settled arrangement with his mother, Mr Larsson and his two younger siblings. He is described as having a close relationship with his younger siblings and to be functioning well under the primary care of his mother. The relationship with his brother and father was maintained primarily through 50 per cent of the school holidays, although this year he has been able to spend seven other occasions with his father and brother. C on the other hand has been living primarily with his father and for half the school holidays has been spending time with his mother. There was little to describe the quality of the relationship between C and his mother, although the father was critical as to some interactions. As for the relationship between B and his father, the father attests to B’s excitement at spending time with him engaging in activities such as snowboarding. He also states that B gets on extremely well with his partner Ms I. Generally, although not of recent times, it appears that they have been able to spend good time together via Skype communication. This appears to be compromised since the commencement of the litigation.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in decisions about major long term issues, to spend time with and to communicate with the child.
Each of the parents was somewhat critical of the other. The mother’s criticism of the father was that until 2016 he did not take the opportunity to spend additional time outside of school holidays with B. The father, it must be recognised, faced significant practical impediments given the distance between the parties. He has certainly taken opportunities in 2016 over and above the school holiday time. He likewise was critical of the mother for not taking further opportunities to spend time with C. The degree to which either of these can be brought home to undermine the manner in which each of the parents has related with their children is not able to be resolved during the interim proceedings.
Obligations to maintain the child
Some criticism was made of the father that he was in arrears of child support. The father’s evidence indicated that until recently there had been a private arrangement in respect of child support and that a debt had accrued at about the time that the mother sought registration with the Child Support Agency for collection of the amount. At present I am not able to draw any inference as to a deficit in the father’s maintenance of B by virtue of this debt. The facts as deposed to are simply too ambiguous to allow a safe inference to be drawn that the father has acted in such a manner as to indicate that he does not take proper regard for the care of B through the support of B.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from his parents or, in this case, siblings
If B relocates to Darwin there will be no change in the time he spends with his father and brother on school holidays. Ad-hoc times, where weekends have been spent skiing, seem quite impracticable should B live in Darwin. However, I note, that it was common between the parties that the ski season will not resume until June 2017. Accordingly, any impact for at least the next seven months in relation to such weekends is likely to be minimal. If B is to move to Darwin, the time that he spends with his father and C is similar, although not identical, to the time that he currently spends. If B is to live with the father, there is a change in primary carer, and separation of B from his younger siblings and also to Mr Larsson. This is a fundamental change in the key relationships that make up B’s primary care environment.
The practical difficulty and expense for the child spending time with and communicating with the parent
Clearly a move to Darwin involves an increase in the expense related to B spending time with his father and C. This is an expense the mother proposes to wholly make good. The parties were in dispute as to the difference in the practical difficulties between B living in Darwin and B living in E Town. They differed between each other as to the time to be taken in travel. I was unable to determine any significant difference in terms of travel time for B between Darwin and Sydney and E Town and Sydney. One significant difference is that travel from Darwin would seem to frustrate weekend time spent at the snow for B with his father and brother C.
The capacity of the parents to provide for the needs of the child, including emotional and intellectual needs
As noted previously, the arrangements whereby one parent has had the primary care of one of the children of the relationship and that the relationship with the other parent has been maintained through spending half school holidays is indicative that each regards the other as properly having the capacity to care for the children of the relationship. T
The maturity and characteristics of the child or children
C has struggled with ADHD. B is not identified to have particular needs. Little information is before the Court at this stage other than the boys’ ages.
The attitude to the child, and the responsibilities of parenthood, demonstrated by each of the child’s parents
The father’s criticism of the mother’s resort to litigation without using pre-litigation procedures such as counselling and mediation falls to be considered at this point. This could arguably be taken to have been a failure on the part of the mother to recognise the importance of the father in making arrangements, or at least coming to an agreed position if possible, as to what should happen in respect of B. Previously there have been good examples of cooperation between the parties, yet here the move was presented the father in a presumptive manner.
Family violence
Not relevant.
Family violence order
Not relevant.
Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings
Not relevant at this point in the proceedings, pending the final determination of the matter.
Any other fact or circumstance
Not relevant.
Discussion
The key matters in determining this case involve a consideration of the primary relationships that surround B. Although a move to Darwin involves a change in location for him, it maintains the cluster of his home relationships, with his mother, with Mr Larsson, and with his younger siblings. That cluster has until now been the accepted arrangement for the care of B. No substantive criticism is brought to bear on how B is growing up under this arrangement (although there is criticism of some undermining of the father during this period of conflict). At the same time, the move to Darwin will involve some, but acceptable change to the time B spends with his father and C. It involves no change to the time C spends with his mother. This case, unlike many that involve a significant increase in distance, does not also involve a substantial change in the time spent with each parent. The move is consistent with the arrangements that until now the parents have accepted as being appropriate for the best interests of B and C. That is, despite the change in location, the move to Darwin involves a stability of relationships and arrangements for both B and C pending a final resolution of the matter. These are the matters that I place significant weight upon in determining that B will continue to live with the mother, albeit in Darwin.
The evidence was unclear as to the extent to which there was overlap between the Northern Territory and NSW school holidays. I will make orders to maximise the use of any overlap for the time that B will spend with his father and C in Sydney.
The father sought his costs of these proceedings. No circumstances have been identified to justify the making of a costs order and no submissions were made in support of the application. No order for costs is made.
Other matters were raised in relation to the furthering of the proceedings including the transfer of proceedings to another Registry, the preparation of a Family Report and the appointment of an Independent Children’s Lawyer. These are matters more properly dealt with when the matter comes on for directions before the Federal Circuit Court at Canberra on 30 November 2016.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 16 November 2016.
Associate:
Date: 16 November 2016
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