LENEHAN & LENEHAN
[2020] FCCA 3621
•22 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LENEHAN & LENEHAN | [2020] FCCA 3621 |
| Catchwords: FAMILY LAW – Parenting – relocation – two children aged 8 & 3 years – best interests – children’s residence to remain with the mother on the Region B – presumption to be applied in favour of equal shared parental responsibility. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61B, 61DA, 65DAA, 65DAB |
| Cases cited: Sayer & Radcliffe [2012] FamCAFC 209 MRR & GR [2010] HCA 4 |
| Applicant: | MR LENEHAN |
| Respondent: | MS LENEHAN |
| File Number: | NCC 3076 of 2017 |
| Judgment of: | Judge Purdon-Sully |
| Hearing dates: | 4, 5, 6 February, 28 May 2019, 3 June & 7 September 2020 |
| Date of Last Submission: | 7 September 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 22 December 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr McGregor on 4, 5, 6 February and 28 May 2019 Mr Carlton on 3 June 2020 |
| Solicitors for the Applicant: | East Coast Law from 6 October 2017 until 24 February 2020 Burchill & Horsey Lawyers |
| Counsel for the Respondent: | Ms Kirkman-Scroope on 4, 5, 6 February and 28 May 2019 Mr Van der Weegan on 3 June and 7 September 2020 |
| Solicitors for the Respondent: | Emerson Family Law from 23 October 2018 until 16 April 2020 Freedom Law |
ORDERS
THE COURT ORDERS ON A FINAL BASIS:
That all previous Orders and Parenting Plans be discharged.
That the following Parenting Orders shall apply for the children, X (born in 2012) and Y (born in 2017) ("the children").
Equal Shared Parental Responsibility
That the parents shall have equal shared parental responsibility in relation to all major long-term issues in relation to the children.
That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility and shall make a genuine effort to come to a joint decision. They are not, however, required to consult with each other about the daily care of the children. The types of decisions about which parents are required to inform and consult include but are not limited to:
(a)changing the name of the children;
(b)the children's passports;
(c)relocating the residence of the children so that existing parenting arrangements become impracticable;
(d)changing the school of the children; and
(e)a significant medical intervention for the children.
Living Arrangements for the Children
That the children shall live with the Mother.
That the children shall be permitted to remain living with the Mother in the Region B region, Queensland with the Mother restrained from removing the children’s residence outside of the Region B region without the written consent of the Father or Court order.
Spend Time Arrangements for the Children
That the children shall spend time with and communicate with the Father at all times as agreed between the parties in writing, and failing agreement, from the commencement of school Wednesday to 5.00pm Sunday on the last week of each month.
That whilst the children are spending time with the Father, the Father will do all acts and things necessary to ensure that the children attend upon all extra-curricular activities and medical and allied health appointments as scheduled and required.
School holidays
That the children spend time with and communicate with the Father for one half of each of the school holiday period gazetted for the State of Queensland, on a week about basis and that any Order regarding time that is inconsistent with the above Order shall be suspended so as to facilitate time under this Order such time to recommence on the weekend after the school term recommences determined as if the sequence had not been interrupted.
That on Y attending prep the Christmas school holidays with the children will be shared equally between the parents.
For the purpose of interpreting Orders 9 and 10 of this Order:
(a)A holiday period shall commence at the conclusion of school on the last day of the school term and shall conclude at 9:00am on the first day of the next school holiday term;
(b)Pupil-free days and weekends that fall during the school holidays form part of the school holidays as if they are a school holiday day; and
(c)Changeovers shall occur at 9:00am on the Monday of the commencement of each week of the school holidays.
Christmas Day
That the parents shall spend Christmas Day with the children on an alternating basis, with the Father to spend Christmas Day with the children in 2020 with the commencement of a parent’s time pursuant to Orders 9 and 10 to reflect which parent in any given year will spend time with the children on Christmas Day.
Father's Day
That the children shall spend time with the Father from 9:00am to 5:00pm on Father's Day and that any provision for time under this Order that is inconsistent with this Order shall be suspended so as to facilitate time under this Order.
Mother's Day
That the children shall spend time with the Mother from 9:00am to 5:00pm on Mother's Day and that any provision for time under this Order that is inconsistent with this Order shall be suspended so as to facilitate time under this Order.
Mother's Birthday
That, on the Mother's birthday:
(a)If falling on a school day, the children shall spend time with the Mother from 3:00pm to 7:30pm;
(b)If falling on a non-school day, the children shall spend time with the Mother from 9:00am to 6:00pm,
and that any provision for time under this Order that is inconsistent with this Order shall be suspended so as to facilitate time under this Order.
Father's Birthday
That, on the Father's birthday:
(a)If falling on a school day, the children shall spend time with the Father from 3:00pm to 7:30pm;
(b)If falling on a non-school day, the children shall spend time with the Father from 9:00am to 6:00pm,
and that any provision for time under this Order that is inconsistent with this Order shall be suspended so as to facilitate time under this Order.
Children’s birthdays
That, on the child's birthday:
(a)If falling on a school day:
i.For the parent who does not have care of the children that morning, that parent shall spend time with the child from 3:00pm to 7:30pm;
ii.For the parent who has care of the· children that morning, that parent shall spend time with the children at all other times except for the period from 3:00pm to 7:30pm;
(b)If falling on a non-school day, the children shall spend time with the Father from 9:00am to 2:00pm and with the Mother from 12.00pm to 7:30pm,
and that any provision for time under this Order that is inconsistent with this Order shall be suspended so as to facilitate time under this Order.
Telephone Communication
That the children shall be permitted to communicate with both parents via telephone and Facetime at such times as the children reasonably requests and the parent with care of the child shall facilitate the telephone call to the other parent.
That unless otherwise agreed in writing the Mother and Father may telephone and/or Skype the children each Tuesday and Saturday between 5:30pm and 6:00pm or on a special occasion if that parent is unable to attend that special occasion with the parent without care of the children to facilitate the telephone and/or Skype call to the other parent with that parent to initiate the telephone/Skype call and the other parent to ensure that the children are available to take the telephone/Skype call and are afforded privacy during the telephone/Skype call.
That the parent with whom the children are not spending Christmas Day shall telephone the children between 10.00 and 10.30am that day.
Changeover
That unless otherwise agreed in writing between the parties, changeovers shall occur as follows:
(a)During school term at the children's school on school days and at Children's Contact Centre on non-school days;
(b)During the school holidays:
iii.with the Mother to deliver the children to the Father at the City N airport with the Mother to meet the costs of such travel; and
iv.with the Father to deliver the children to the Mother at the Brisbane airport with the Father to meet the costs of such travel.
(c)For the purpose of Order 20(b) the parents shall confirm by text message to the other the collection point at the airport.
The children's education
That the children shall attend the C School at the commencement of their primary school education until the completion of their high school education, unless otherwise agreed in writing between the parents.
That the parents shall do all acts and things as maybe necessary, including signing any necessary documents, to facilitate the children’s enrolment and attendance at the C School.
Parental Behaviour/Authorities
That the parents shall:
(a)keep the other parent informed by email at all times of their contact telephone number, email and current residential address and advise of any change within forty-eight (48) hours;
(b)keep the other parent informed by email of the names and addresses of any treating medical or other allied health practitioners who treat the children and by these Orders the Mother and Father authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children and both parents are at liberty to attend the children's specialist medical and allied health appointments; and
(c)inform the other parent by telephone as soon as reasonably practicable of any medical conditions, significant health issues or significant illness suffered by the children and these Orders shall authorise any treating medical practitioner to release the children's medical information to the other parent.
That by this Order the Mother and Father authorise the children’s schools, day care centre and extra-curricular activity providers to provide to the other parent copies of all reports, photographs, notices, newsletters, general notices and such other information normally provided to parents with any cost to be met by the requesting parent.
During the times the children is living with either party, that parent shall:
(a)respect the privacy of the other parent and not question the children unduly about the personal life of the other party;
(b)speak of the other party respectfully;
(c)not denigrate or insult the other party or the party's family in the presence or hearing of the children and use his or her best endeavours to ensure that others do not denigrate or insult the other party or the party's family in the hearing or presence of the children; and
(d)refrain from involving the children in any parenting disputes or showing them and discussing with them with respect to these proceedings.
Both parties are at liberty to attend the children's sporting and extra-curricular activities.
Miscellaneous Orders
That unless otherwise agreed in writing between the parties or if there is an emergency, all communications regarding the Children shall be between the Mother· and the Father via the online communication tool, "Our Children Australia" ( Talking Parents, or Parenting Wizard, with each party to bear their own costs pertaining to same.
That the Father shall do all acts and things necessary to ensure that the children shall not have any unsupervised contact with the paternal uncle, Mr D, when the children are under the Father's care pursuant to these Orders.
That in the event that the mother is visiting Town E and the father visiting the Region B the father shall be at liberty to spend some additional time with the children as may be reasonable and as agreed in writing between the parents.
Y's Birth Certificate
That unless already attended to within seven (7) days from the date of these Orders, the Mother and the Father shall do all acts and things necessary, including signing all and any necessary documents, to apply for Y's Birth Certificate which shall record the child’s name as Y and include the Father's name on the said Birth Certificate with each party to share equally in the cost of same.
Overseas Travel
The parents will do all things necessary to ensure that the children have current passports with the cost of the passports to be equally shared.
The Mother will hold the passports.
That unless otherwise agreed in writing the children will be at liberty to travel with a parent outside of Australia for holidays provided that such travel is in accordance with these Orders, is undertaken during school holidays and is to a country which is a signatory to the Hague Convention of 25 October 1980 on the Civil Aspects of International child Abduction.
To that end :
(a)The travelling parent shall provide the other parent three (3) months’ notice of the intended travel together with a proposed itinerary detailing the intended destination, proposed departure date and proposed return date;
(b)If the travelling parent is the Father the Mother will provide to the Father within fourteen (14) days of written request the children’s passports to permit such overseas travel.
(c)The travelling parent shall no less than fourteen (14) days prior to departure provide a final itinerary including overseas addresses, a copy of return tickets and telephone contact details for the children for the period they are away.
(d)The travelling parent will ensure that the children communicate with the other parent by telephone, FaceTime or other social media platform on at least one occasion each week.
(e)That the travelling parent will otherwise permit the other parent reasonable communication with the children whilst away.
(f)That within (seven (7) days of his return to Australia, the Father, if the travelling parent, shall return to the Mother the children’s passports.
Parenting Coordinator/Family Dispute Resolution
That within twenty- eight (28) days of the date of these Orders the Mother and Father shall engage a Parenting Coordinator as may be agreed between them or as nominated by the Director of Court Counselling to assist them in the interpretation and implementation of this Order (including any claim by a party that it should be varied) or to otherwise assist them in any parenting disputes, with the parents to equally share the costs of such Coordinator.
In save for emergent circumstance, prior to the issuing of any further proceedings in this Court or the Family Court of Australia (including any claim by a party that it should be varied or if a party wishes to relocate so that existing parenting arrangements become impracticable), the parties shall first attend Family Dispute Resolution ("FDR") with an FDR Practitioner jointly appointed by the parties and make a genuine attempt to resolve the dispute with such costs to be shared equally between the parties. Failing agreement as to that appointment the party raising the dispute shall nominate three (3) FDR Practitioners, one of whom shall be chosen by the other party within fourteen (14) days in writing.
NOTATION:
A. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the fact sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Lenehan & Lenehan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
NCC 3076 of 2017
| MR LENEHAN |
Applicant
And
| MS LENEHAN |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
A.These reasons were delivered ex tempore and corrected for literal and grammatical errors.
Introduction
This matter concerns the future parenting arrangements for X, aged 8 years, born in 2012 and Y, aged 3 years, born in 2017.
The parents commenced to cohabit in 2007, married in 2009 and separated on a final basis in August 2017.
At the date of separation they were residing in Town F, south of Town E. On separation, the mother relocated to Town C on the Queensland’s Region B. The mother was then seven months pregnant with the parties’ youngest child. X was attending the Town F Public School.
X meets the criteria for a diagnosis of autism spectrum disorder level 2.
The father, who is aged 44, resides in Town E. He is in full-time employment as a manager at Employer G at Town E.
The mother, who is 45, resides in Town H. She is a professional with a business with contracts on the Region J.
X attends Grade 2 at the Town C College.
Proposals
After advancing a number of proposals, it was the father’s final position in written submissions filed on 1 July 2019[1] that the mother should return the residence of the children to within 80 kilometres of the Town E Post Office; that there should be a restraint in her removing the children from the area; that X should live on a week-about basis with her parents immediately; that Y live primarily with the mother until he turns five years of age in 2002 at which time it would be week-about with X; school holidays (Easter alternating) should be shared equally once Y turns three years of age; time on special occasions with Christmas Day to alternate between the parents; and daily video time with the parent when the children are not in that parent’s care.
[1] The father’s proposal as to shared care differing from his amended proposal on 28 May 2019, Day 4 of the trial (Exhibit 17)
If the mother does not return to the Town E area, then the father proposes that the children live with him and spend time with the mother from after school Wednesday to 5:00pm Sunday on the last week of each month; for half the school holidays (Easter alternating) and on special occasions with Christmas to alternate; video calls and the cost of travel to be shared equally.
The father seeks orders with respect to the children’s attendance at particular schools in Town E.
If the court does not make the orders sought by the father, and the children remain living on the Region B, then in the alternative, he seeks that the mother be restrained from removing the children from the Town H area; that he spend time with the children broadly on the same terms as proposed by him for the mother if the children were ordered to live with him in Town E; with a further order that the parties share the travel and accommodation costs of the father spending time with the children on the last week of the month from Wednesday to Sunday.
There are other orders in relation to registration of Y’s name and his name for the purposes of registration was agreed at the trial.
There was an issue in respect of renewal and holding of passports. I was informed by both Ms Kirkman-Scroope for the mother and Mr McGregor for the father at the time that that issue seemed to have been resolved and that it was more to do with Y’s name. I am not exactly sure whether that is the case, having considered the submissions on behalf of the father in this matter. However, I intend to deal with it later on.
The mother seeks that the children continue to live with her on the Region B and spend alternate weekends with the father for two consecutive nights from after school Friday to 4.30pm Sunday, and with Bryon two days per fortnight from 9:00am to 5:00pm to coincide with X’s time. When Y reaches three years of age, which of course he already has, then his time would coincide with X’s time. Changeovers would continue at K Contact Centre. The mother’s alternate proposal if the children are required to return to the Town E area is that X spend three nights a fortnight with the father and Y build up to that arrangement.
The orders sought by the father are detailed in written submissions filed on his behalf on 1 July 2019.
The orders sought by the mother are set out in written submissions filed on 1 July 2019.
However, with respect to the discrete issue that came before the court for further hearing on 7 September 2020, I have had the benefit of considering the oral submissions that were made on behalf of both parties by their respective Counsel at that time.
Procedural history
The father initiated the current proceedings on 6 October 2017.
On 4 December 2017, Judge Middleton sitting in Wauchope, New South Wales, ordered that the matter be transferred to the Maroochydore Circuit of this Court; that the children reside with the mother and the father spend time each alternate weekend with the eldest child from 9:00am Saturday until 5:00pm Sunday and with the youngest child for one hour on both Saturday and Sunday each alternate weekend.
There was provision for phone time and the children were permitted to remain on the Region B with the mother. Changeover was to be effected at K Contact Centre on the Region B and a family report was ordered.
On 5 April 2018 Ms L released a family report. She recommended the children’s return to the Region M and live with the mother, with the children spending four nights per fortnight with the father (two nights each week) with Y spending two day periods a week with the father and then the same time as X commencing when Y turned one year of age.
On 13 April 2018, Judge Coates made an order for equal shared parental responsibility and varied the order for the father’s time with the children such that the father would spend time with the eldest child from after school Friday to 5:00pm Sunday each alternate week, and for Y for three hours on Saturday and Sunday from 9:00am to 12:00pm. There was provision for video time twice a week. Those orders, as varied on 23 January 2020 continue, save that the father’s time with Y each alternate weekend is from 8.30am to 4.30pm on Saturday and from 8:30am on Sunday to a time as may be agreed between the parents.
Apart from an increase in Y’s time with the father varied on 23 January 2020, his Honour’s orders continue.
By consent orders made in chambers on 6 April 2018, the father spent block time with X from 6 to 15 July and time with Y on three consecutive days from 9:00am to 5:00pm during this period.
Further block time for X and time for Y over a three-day period was implemented in October 2018.
Ms L prepared an updated report on 14 January 2019. She recommended, inter alia, that the parents share responsibility for the long-term care, welfare and development of their children; that the children live primarily with their mother, provided she is prepared to return to the Region M in New South Wales, within a reasonable commuting time of the father’s residence, and if the mother was not prepared to relocate, that the children live with the father with the time that the mother spend with the children, those arrangements for the mother be reversed (noting that both parents were financially comfortable and travel for time with the children was affordable by both) with changeovers to continue to be conducted through the Children’s Contact Centre at K Contact Centre or school whenever possible, to avoid boundary stresses between the parents that might be witnessed by the children.
Trial directions were made on 19 September 2018 setting the matter down for three days commencing 4 February 2019. The matter came before me as a trial judge on that date, the matter then, in what has become an increasing problem for this Court in terms of listing accommodation, going over the estimated timeframe, with the matter then listed for a further day of hearing on 28 May 2019. The evidence that day did not conclude until 3.32 pm. Final submissions were filed in written form by both parties on 1 July 2019 and the matter was reserved at that time.
On 19 February 2020 however, the mother was granted leave to reopen, both parties then self-acting, the mother seeking an order for sole parental responsibility as opposed to equal shared parental responsibility and the father raising issues to do with his health.
Between the trial in 2019 and the hearing on 19 February 2020, the father had filed two applications (9 October 2019 and 6 January 2020) and the mother two applications (17 January 2020), including an application for a recovery order and a contravention application with a further contravention application foreshadowed by her to the Court.
A further trial date, allocated on 3 June 2020, was adjourned that day because of technical issues, the trial having been conducted by way of Microsoft Teams, face-to-face hearings having been prohibited due to COVID-19 restrictions in the court.
The court then allocated a further date for the trial of the matter on 7 August 2020. The solicitors for the father, however, informed my chambers that the father’s Counsel was unavailable on that date. The matter was then listed to 7 September 2020, the only issue proceeding that day being the discrete issue of parental responsibility, the father’s Counsel informing the court that the father did not press any issue to do with his health as a relevant consideration for the court.
On 5 October 2020, the mother, again self-acting, filed a further Application in a Case seeking 55 Orders, the mother, inter alia, raising issues to do with the father’s family, including an order that the children not be brought into contact with any person associated with AVO proceedings.
The father, also self-acting, cross applied for orders for time over the Christmas school holidays and make-up time from 2021 to 2023.
I pause here to note, because of the pandemic, the father had not had an opportunity to spend time with the children because of border restrictions. That had been the case for some time.
Both the father’s application and the mother’s application were dismissed on 15 October 2020 with a notation that the parties should engage in Family Dispute Resolution. My published reasons that day should be read in conjunction with these reasons.
On 26 November 2020, the father filed a further application seeking holiday time over the 2020/2021 summer holiday period. The mother filed two Responses, one in an affidavit form, seeking 13 orders including orders for the release of her superannuation.
The matter was dealt with yesterday morning by me and orders were made in relation to the father spending time with the children over the holiday period, on the basis that he had already spent one week, he was going to have another further two weeks. The time would be separated by a week and arrangements were made in relation to changeover, both parties having agreed that the children would travel by air accompanied by their parents between City N and Brisbane.
It is regrettable that a final decision in this matter could not be made within a reasonable time following the court reserving its decision on 1 July 2019 when written submissions were filed. A number of factors contributed to this, including the parties’ self-represented status thereafter and change in legal representation including Counsel; their mutual propensity for filing various interim applications, the ability of the court to accommodate additional hearing time in an over-listed court calendar, compounded by the court’s operations during the COVID-19 pandemic which restricted face-to-face hearings. The further trial listing on 7 September 2020 on the discrete matter of parental responsibility could only be accommodated during a period of my annual leave.
The issues
The issues that require determination by the court are:
a)whether as sought by the mother, there should be an order for sole parental responsibility, or by the father, equal shared parental responsibility or in the alternative, he have sole parental responsibility depending upon what orders the court made in relation to the children’s time or living arrangements with their parents;
b)whether the children should live on the Region B or Region M region of New South Wales and the amount of time that they should spend with either parent depending on where they live. With respect to the latter, there is no issue that if the children are required to return to the Region M area where the father lives that the mother will return with them.
c)restraints and I mentioned earlier passports and I will deal with that later.
Legal principles
Part VII of the Family Law Act 1975 (Cth) (“the Act”) concerns children.
Section 60B(1) of the Act provides that an object of Part VII is to ensure that the best interests of children, inter alia, by “ensuring that they have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child”(s.60B(1)(a)); “protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”(s.60B(1)(b)); “ensuring that children have proper parenting to help them achieve their full potential” (s.60B(1)(c)) and “ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children” (s.60B(1)(d)).
Section 60B(2) goes on to provide, amongst other things, that a principle underlying the objects of Part VII, except when it is or would be contrary to the child's best interests, includes that “children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together”(s.60B((2)(a));“children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development such as grandparents and other relatives”(s.60B (2)(b));“parents jointly sharing duties and responsibilities concerning the care, welfare and development of their children (s.60B(2)(c)); and “parents should agree about the future parenting of their children” (s.60B(2)(d)).
Section 60CA requires that a court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations necessary to be taken into account in determining what is in the best interests are listed in s.60CC.
Section 65D(1) provides that the court may make such parenting order as it thinks proper subject to the provisions of ss.61DA and 65DAB.
Section 61DA(1) requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal share parental responsibility for the child.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with the parent of the child has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or that other person’s family, or family violence (s.65(DA)(2)).
The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of a child for the parents to share that responsibility (s.61(DA)(4))
Section 65DAB requires the court to have regard to any parenting plans entered into between the parents. That is not relevant in this case.
Section 65DAA(1), is headed “Equal Time” and provides that:
If a parenting order provides or is to provide that a children’s parents are to have equal shared 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.
Section 65DAA(2) makes provision for where a parenting order provides that a child’s parents are to have equal share parental responsibility for the child, but the court does not make an order for the child to spend equal time with each of the parents.
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.
Section 65DAA(3) explains what is meant by the phrase “substantial and significant time”.
Each of the subsections (1)(b) and (2)(d) in s.65DAA require the court to consider whether it is “reasonably practicable” for a child to spend equal time or substantial and significant time, as applicable, with each of the child’s parents.
Section 65DAA(5) then provides in that respect, that the court must have regard to certain matters. Those matters include, how far apart the parents live from each other; their capacity to implement the arrangement in question; the impact of an arrangement of that kind upon the child; and such other matter as the court considers relevant.
The above principles, which I have just outlined, were detailed in the leading High Court authority of MRR & GR [2010] HCA 4 (French CJ and Gummow, Hayne, Kiefel and Bell JJ) at [6] to [9].
In Sayer & Radcliffe [2012] FamCAFC 209, the Full Court (Faulks DCJ and May and Ainslie-Wallace JJ) said at [47] to [48]:
47.It is a now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders (see Morgan and Miles (2007) FLC 93-343 at paragraphs 72 to 73, Palmer & Hammer (No 2) [2011] FamCAFC 196 at paragraph 28).
48.A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents (see Palmer & Hammer (No 2) paragraph 76; Morgan and Miles paragraphs 80 to 81). It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
In my assessment then of the parties’ proposals and in determining ultimately what orders I should make in the best interests of the children, I am further guided by the following learned pronouncements.
In Sampson & Hartnett (No 10) (2007) FLC 93-350, the Full Court (Bryant CJ and Kay and Warnick JJ) said at [57] to [58] that whilst there is a power to order a person to relocate, it is a power that “would be even more rare, because the effect is more drastic” and any injunction to that effect “no more than is necessary to secure the best interests of a child”, and that the “proper exercise of such a power is likely to be rare, because:
(i) the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and
(ii) in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent’s choosing.”
In Morgan & Miles [2007] FLC, Boland J, exercising the jurisdiction of the Full Court as a single judge after reviewing the case law said, at 81-870, that the following court principles remain valid:
a)That the child’s best interests remain the paramount consideration but not the sole consideration;
b)That a parent wishing to move does not have to demonstrate “compelling” reasons;
c)That a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
d)The child’s best interest must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement.
e)And that what the legislation now requires is a consideration of the competing proposals against the criteria now in s.60CC informed by s.60B; and if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequence of an order for equal share parental responsibility.
In U & U [2002] HCA 36, Hayne J said at [170] that whilst the court must regard the best interests of the child as paramount that does not deny the fact that a number of people will be affected by the order that is made, in this case two adults and two children and, “the needs and wishes of each parent and the needs of the child (and, if of sufficient age, the child’s wishes) all bear upon the question to be considered by the …court.”
At [35] and [37] of that decision, Gaudron J said:
The failure to explore …[the possibility that the father could return to India] ….seems… explicable on an assumption, inherently sexist, that the father’s choice as to where he lives is beyond challenge in a way that the mother’s is not. Further, it must be accepted that regrettably, stereotypical views as to the proper role of a mother are still pervasive and render the question whether a mother would prefer to move to another state or country or to maintain a close bond with her child one that will, almost inevitably, disadvantage her forensically. A mother who opts for relocation in preference to maintaining a close bond with her child runs the risk that she will be seen as selfishly preferring her own interests to those of her child; a mother who opts to stay with her child runs the risk of not having her reasons for relocating treated with the same seriousness they deserve….[I]t is essential that ….each competing proposal be separately evaluated.
In AMS & AIF and AIF & AMS (1999) FLC 92-852, Kirby J at [141] to [151] set out nine general principles with respect to the relocation cases.
I will mention one in particular at [144]:
[A] statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige the court making the decision to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule.
His Honour noted that relocation matters are difficult matters because in the context of a decision affecting a child’s place of residence it attempts to resolve often irreconcilable considerations (see [143])
Whilst the Act requires the court to regard the best interests of the child as the paramount consideration “what is in the best interests of the child is not a matter about which there may be universal agreement” (Godfrey & Sanders [2007] FamCA 102 at [28]).
In Runcorn & Raine [2008] FamCA 837, Murphy J in a helpful discussion of the concept of parental responsibility, the principles relevant to and the significance of making an order for parental responsibility said this at [36] to [39]:
36. The exercise of discretion in favour of excluding completely one parent from consultation and decision making in respect of major long-term issues for their children - particularly when, as here, there are many years until the children turn 18 – is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person.
37.There is no doubt that the exercise of that discretion ought be resolved in favour of an outcome which is seen to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
38.Thus, as it seems to me, a decision about parental responsibility and, specifically about whether the statutory presumption of equal shared parental responsibility is rebutted by reason of “best interests”, involves the balancing of the considerations just referred to, always bearing in mind that these particular children’s best interests, given their particular circumstances, is the ultimate criterion.
39.Thus, the circumstances of particular children may, for example, require the enumeration of aspects of parental responsibility that will be shared (including equally) and those which are not.
With reference to an order for sole parental responsibility his Honour said the following at [310]:
….I consider that, generally, such an order ought be made only when there is cogent evidence that leaving a parent with none of the rights, authorities and responsibilities in respect of their children is in those children’s best interests.
Finally, in Brandon & Brandon (No 2) [2012] FamCA 374, Kent J said the following, relevant in this case, where the father’s case is that the mother’s relocation was “carried out by (her) essentially without notice) noting that she met the father in a park on the day she moved having put a plan into action for several months prior to the move) an told him she was going (with the children). This was the 3rd occasion the mother left the father (each without notice)[2]”:
30.The central task of determining parenting Orders in a child’s best interests is not an exercise in searching for disqualifying factors in either parent. Recognising that each person is unique, inevitably with strengths and weaknesses, both as a person and as a parent, the inquiry is essentially to determine parenting Orders that will positively promote the child’s best interests in the context of that child’s actual circumstances, including any perceived parenting weakness of either or both of the child’s parents.
31.Parental conduct is relevant only to the extent that it informs the assessment of parenting capacity or otherwise has weight in the determination of the parenting Orders in the child’s best interests, having regard to the considerations expressed in s 60CC of the Act, which the Court must consider in determining parenting Orders in the best interests of the child.
32.In this context, it is worth noting that in Jurss & Jurss (1976) FLC 90-041, a case decided not long after the Act, in its original form, came into effect, Demack J noted in respect of a then “custody” dispute that the Court’s inquiry is essentially a positive one designed to promote the interests of the child, not to demote the claims of either parent.
33.Given that the overriding consideration for this Court is best interests, the Court must consider the conduct of parents not with a view to punishing such conduct or to reward one parent and punish the other, but to ascertain from such conduct, to the extent to which it is relevant, where the best interests of the subject child or children will be served from now or into the future.
[2] Written submissions filed 1 July 2019 at page 2
Decision
For the reasons I shall now outline, I propose to make orders in line with the proposal of the mother, with some variations in the best interests of the children.
Discussion
In my discussion of this matter I propose to:
a)Firstly, consider and determine the issue of parental responsibility;
b)Secondly, make some preliminary observations and findings on the evidence; and
c)Finally, discuss the relevant considerations under s.60CC (2) and (3) and findings that informed my conclusion as to what parenting arrangement would meet the best interests of the children.
Parental responsibility
Whilst I accept that the parent’s capacity to communicate and co-operate is less than optimal and whilst the nature and extent of their engagement in this litigation suggests pause for thought as to whether the parties jointly sharing that responsibility would be contra-indicated in the best interests of the children including by reason of exposure of them to conflict and ongoing litigation (s.61DA(4)), on balance I am unable to conclude that the parents are incapable of achieving now, or in the foreseeable future, what the Act requires of those who share parental responsibility.
I am unable to conclude that the children’s best interests would be served by the father having no “duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s.61B) with respect to health or education or generally as sought by the mother. Decisions in respect of day-to-day issues, of course, are specifically provided for under the Act.
As is the case with the mother, the father is devoted to the children and to their needs. He has been consistent in spending time with them, notwithstanding distance. They would benefit from his input into all aspects of the major decisions to do with their lives.
The court acknowledges that there have been a concerning number of disputes between the parents about X’s health. Whilst there is no longer dispute about her diagnosis and the need for treatment, the concern remains that a lack of consensus and timely response could have potential negative impacts for X who has a significant diagnosis and needs across multiple dimensions. Any lag in timely decision-making would not be in her best interests. I cannot stress that enough to the parents.
There is no evidence that X is not receiving good medical advice with appropriate supports, notwithstanding some scepticism on the part of the father, at least initially, with respect to X’s diagnosis, and a further concern that the mother may be using that for strategic reasons, in respect of which I find there to be no persuasive evidence.
The evidence suggests that the father does trust the mother in this regard, and that he has looked to her to ensure proper arrangements are in place with respect to X’s health, the father, for example, agreeing that he left it to the mother to ensure that X saw an occupational therapist.
Whilst the evidence of Dr O, the child’s paediatrician, provides some support for one parent having decision-making responsibility where there is potential dispute to ensure the best outcome for X, I place weight on the following: that there is agreement on diagnosis, that there is agreement about its management, and that since February there has been a flicker of positive accommodation between the parents in what I accept has been a particularly trying time for the father who has not spent time regular time with the children because of border closures.
I further acknowledge that the father attended upon Dr O, which involves significant travel and expense, and whilst there are aspects of that visit that raise some concerns to which I shall later refer, it at least happened. It evidences the father’s commitment, even if he has issues with Dr O.
I was further heartened yesterday morning to hear that the parties had trialled air travel without court order and sorted out some time during these school holidays before I heard the father’s application. These are small beginnings, granted, but they are at least beginnings in the right direction.
I am satisfied that with professional assistance the parents are more likely than not to be able to reach agreement in the event of dispute.
On balance, I propose to make the order sought by the father for parental responsibility and subject to any further submission either wishes to make on the topic, I propose that the parents engage a Parenting Coordinator as agreed or as otherwise nominated by the Director of Court Counselling, with the parents to consult such coordinator in the event that they are unable to reach agreement on any matter within the parameters of equal shared parental responsibility and, otherwise if in dispute in parenting matters, with the costs of the Parenting Coordinator to be shared equally.
I otherwise propose that save for any emergent circumstance the parents communicate about the children via either the Our Children Australia website, Talking Parents or Parenting Wizard, that being a mechanism to assist their communication and it being a recommendation of the family report writer, with the parents to share the costs equally.
Overview of findings on best interests
Having then decided that I should, in the best interests of the children, make a parenting order that provides that the parents should have equal shared parental responsibility for both children, I am required to follow the pathway outlined in s.65DAA and consider whether equal time with each parent would be in the child’s best interests and reasonably practicable and, if not, then whether substantial and significant time would be an order in the best interests of the children and reasonably practicable.
The evidence before the court does not permit an affirmative answer to the question that it is either in the best interests of the children or reasonably practicable to make such an order for equal time, and I make a similar finding with respect to substantial and significant time and the reasonable practicability of that order.
This is because neither equal time nor substantial or significant time parenting is feasible.
As the High Court observed in MRR, the relevant provisions in s.65DAA, namely, ss.65DAA(1) and 65DAA(2) are concerned with the reality of the situation of the parents and the children, not whether it is desirable that there be equal time spent by the child with each parent or substantial and significant time if an order for equal time is not made.
It requires a practical assessment of whether equal time parenting or substantial and significant time parenting is feasible.
It could only be feasible if both parents live on the Region B or in the Town E area.
That assessment requires a consideration of the circumstances of each parent, more particularly those of the mother, the children’s primary carer.
On the evidence, the father is not prepared to move from Town E to the Region B. I accept his current work arrangements would make that difficult. He is the manager of a family business, which is based in Town E.
Nor am I able to conclude it is feasible for the mother to relocate closer to the Town E area. She does not want to return to the Town E area. As with the father who wishes to reside in Town E, the mother wishes to reside on the Region B.
As with the father in Town E, the mother has settled arrangements where she now resides. She has employment arrangements that provide her with flexibility to cater for the needs of the children. The children have settled arrangements there which have served them well.
The mother also asserts a need for strong boundaries in her dealings with the father. Whether the father views that as necessary or not is not to the point. I accept that the mother genuinely finds it challenging to engage with him. The mother informed Ms L that if she returned to Town E there would need to be strong boundaries in place between the parents. Mr P, a Clinical Psychologist who prepared a report of the mother for these proceedings, opined that the mother’s narratives concerning her life history and particularly events and circumstances prior to the marital breakdown, key separation milestones and decision-making with respect to relocation to Queensland remained consistent and credible in his treatment of her.[3] Shared parenting would require some evidence of a reasonable level of and an ability to share information, a demonstrated level of reasonable communication and a capacity to negotiate to enable the children to reasonably transfer between two households, evidence that does not exist here for young children to the requisite level.
[3] Report of Mr P annexed to affidavit filed 20 December 2018 at [58]
The desires of parents are also not irrelevant when considering the best interests of the children. Whilst it is the best interests of the children that is the paramount consideration, that does not expel every other relevant consideration. As was said in U and U (supra) at [82], the court “must be sensitive to the wishes and rights of parents to live and work wherever they desire.
Whilst the views of both parents must be equally respected, I place weight on the mother’s legitimate desire to continue to reside and work on the Region B in circumstances where she has been the children’s historical primary carer, where both children are young, where one child has special needs that require a range of supports, and where there is no persuasive evidence to suggest that the mother has not done a good job parenting the children in her primary care role, in the case of the youngest child, Y, the parties having separated before his birth, the parents living at a distance such that the greater parenting burden, by reason of that, has fallen on the mother.
That is not to acknowledge that the children are not the product of both their parents’ care. The father’s consistent involvement in their lives is a credit to him, and a positive factor in the children presenting as happy, well-adjusted children with attachments to both parents. However, without diminishing the father’s role, it must likewise be acknowledged that notwithstanding the parental conflict over their arrangements, the children’s attachments to their father have occurred in the primary care of their mother. That was the situation not only when the mother and X were living in Town Q during an earlier separation period at a time when X was very young, but following final separation. Y’s relationship with his father has only ever developed at a distance and in the primary care of his mother.
This is not a case where the children present as either reluctant to or anxious about spending time with their father. They enjoy their time with him. It has happened in the context of a poor co-parenting relationship, as I have noted, against the background of this litigation, the challenges of distance and the children’s disparate ages and developmental needs. As I said, it is a credit to both parents.
On the proposal of the father, the mother would be required to relocate back to the Town E area. There are some uncertainties on the evidence in that regard. On the Region B she has employment, stable accommodation and emotional support. She has stable supports for the children and, in the case of X, structures and services to meet her various needs.
Putting to one side that she does not want to return, there is no evidence that she would be able to resume her previous employment at Town R or how quickly she would be able to secure employment at all. She is now the mother of two children, not one.
She has organised her current work arrangements to meet the needs of her children. As a professional she has established her own business and networks which provide her with the flexibility to work from home and meet the needs of the children on a primary basis, including attending weekly specialist appointments for X. If they are not now weekly, they are regular.
She is contracted to a certification business as part of her employment duties. She has also completed a course relating to her employment. On her evidence, she would not be able to perform her current role if she is required to relocate to New South Wales because her job requires her to remain in Queensland. On her evidence, she would be unemployed if a relocation occurs.
The father’s evidence with respect to her employment prospects are, respectfully, speculative, unsupported by any evidence he places before the court to that end or how work opportunities in Town E would support or better meet the mother’s current flexible work arrangements which address the needs of the children.
On the mother’s evidence she does not have accreditation for her work in New South Wales. On her evidence at trial, she would have to wait for a job to come up in the Town E area and apply for it. Whilst it may be that she can obtain that accreditation - and she was in employment prior to separation and the court acknowledges the mothers’ good work record, including in New South Wales - even if it is to be accepted that her skills are portable and even if she was able to re-establish her certification business in New South Wales, there is likely to be some lag time in her being able to re-establish herself professionally and financially.
Her largely self-represented status in this litigation does not suggest that she is a person of means. She was required to borrow some money from her parents for some of her legal costs.
There is no persuasive evidence that the father would provide the mother with the financial support that she may require to re-establish herself.
The court places significant weight on the settled circumstances of the mother and the children on the Region B, including her employment, which is meeting her financial needs whilst providing flexibility in her care of two young children.
Section 60CC
Additional Considerations
In reaching a decision on which of the competing proposals will meet the best interests of the children, I have been informed by the following relevant matters under s.60CC(2) and (3). These findings supplement and/or expand upon the findings I have made in my earlier discussion and overview of the evidence.
I shall consider the additional considerations under s.60CC(3) first, before looking at the primary considerations under s.60CC(2), as this will better inform my assessment with respect to the latter, in my view.
With respect to the additional consideration, ss.60CC(3)(a) and (h) are not relevant considerations in my assessment of the parties’ proposals.
The children have a positive relationship with both parents. Both parties’ primary proposals will enable the children to maintain a positive connection with their parents and extended family members, as will the father’s alternate proposal if the mother was to remain living on the Region B with the children (s.60CC(3)(b)). However, the children are primarily attached to the mother, a significant factor which supports her remaining their primary carer given their ages and needs. It is essential, at their ages, given their history of care with their mother, that their significant relationship with her be preserved to ensure the children’s potential across all areas of their development. That is likely to be met by the proposal of the mother which will maintain the children’s stability and consistency of care. Even on the father’s proposal, Y would remain in the primary care of the mother for a period, a situation that currently exists, unless the mother did not relocate with the children to the Town E area. The mother’s evidence is, however, that she would relocate with the children if they were required to live in that area. The father’s proposal acknowledges the benefits to Y remaining in the mother’s primary care at least until October 2022, when he turns five, provided, of course, that the mother lives in close proximity to him in Town E.
Both parents have taken the opportunity to participate in major decisions to do with the children and spend time and communicate with the children, to maintain the children, and both have evidence an appropriate attitude to their parenting responsibilities (ss.60CC(3)(c), (ca) and (i)).
Whilst the father was critical of the mother’s actions in relocating and asserts a lack of support by her to facilitate his relationship with the children as a consequence - indeed, asserting positive action taken by her to stymie his relationship with the children - all of this detailed in written submissions filed on his behalf at paras [10] to [16] of those submissions - it is not necessary to address each and every complaint.
Whilst I acknowledge difficulties and tensions between the parents following separation, played out against a background of adversarial litigation, and that the mother presents as a determined person in achieving an outcome she views as supporting the children’s interests, a fair view of the evidence suggests that the mother has facilitated the relationship and is likely to continue to do so in the future.
The strength of the father’s relationship with the children, acknowledged by the father and observed by Ms L, did not happen in a vacuum. It is unlikely to have happened devoid of the mother’s support. I repeat and rely on my earlier discussion and findings in this regard.
It is a conclusion supported by other evidence before the court, such as the mother agreeing to the children spending time with the father within days of her relocation to the Region B, by permitting the father to stay in her house, the children on the whole spending regular time with the father, the mother’s history of doing so with X when she resided in Town Q, and the mother offering the father time with the children when she had work commitments in Town R.
The likely effect of any change in the children’s circumstances is a significant consideration, s.60CC(3)(d).
The proposal of the mother will continue a care arrangement for the children that is known and tested.
The children are in settled arrangements in their mother’s care. Notwithstanding the arrangements the father is able to implement at least initially for the children on his primary proposal, the mother is available to care for the children full time save for, on her evidence, one and a-half days a week. She is able to provide, in short, continuity of care which has served them well.
The fact that X may have evidenced no effects to a change in her residence to Victoria when she was very young, not attending school and not being diagnosed with autism, is not relevant to a consideration as to the potential impact on her of a further relocation on the proposal of the father.
His proposal would present a significant change for X, now a school-aged child, a child who has therapeutic needs, a child who benefits from predictability, routine, certainty and stability. Her current care arrangements, as I have said, have served her well.
The father’s proposal would involve a change in X’s schooling. On the mother’s evidence, X was unhappy when attending her former school of Town F. She had difficulty making friends at the time. She is, however, doing very well at Town C College, a private school with supports in place to meet her needs. The father’s proposal would involve X adjusting to new teachers and new friendships at a new school with no evidence that it would likely provide her with any additional educational or other benefits to those she’s already receiving on the Region B or to justify a change for a child of her special needs.
The father’s proposal would not only involve a change in residence and schooling but a change in X’s supports which, at trial, were being provided on the Region B involving a psychologist, an occupational therapist, a speech pathologist and a paediatrician.
The father does not lead evidence of comparable supports in the Town E area, including when X could access them. When it was put to him that the mother had made enquiries about an equivalent support network of allied health professionals for X in the area and, on her investigation, there were none, he was dismissive of that. Other than on his oral evidence that he intended to obtain particular supports in particular areas, he placed no evidence before the court to contradict the mother’s evidence, and he had not made contact with the proposed professionals. It was a significant gap in his evidence for a child of X’s needs. Whilst Ms L opines that equivalent supports would be available in the Town E area, she does not outline the factual basis underpinning that view. On her own concession, she did not have expertise in the area of autism.
I accept the evidence of the mother, the parent most knowledgeable about X’s care routines, the parent who on the evidence of Ms L, supported on the whole of the evidence, had “made every effort to get an accurate diagnosis for X, arrange psychological support for her and engage a range of allied health professionals, as well as ensuring that she has support at school”[4] the parent best placed to express a view about how X’s needs would be supported.
[4] Report of Ms L annexed to her affidavit filed 18 January 2019 at [7.14]
The father had sought no advice from any of X’s therapists as to any impact on her of his proposal or whether it was in her therapeutic interest to relocate and, if so, how that should be managed in her best interests.
The court is accordingly unable to conclude on the evidence that, on the father’s primary proposal of the children returning to Town E, X would be able to access the same level of care and therapy that she is able to receive on the Region B currently.
Even if, however, that was the case, the court is unable to assess on the evidence the impact any gap in any of X’s therapies may have on her or how that could be properly managed, a significant consideration, given the extent of her therapies.
The proposal of the father would also have X immediately spend six nights with him in a block on her return. There were various proposals, I have to say, put about this and I was a little confused, but on the written submissions that were made it was a week-about arrangement. Whether it is six nights or seven nights, really at the end of the day, is neither here nor there. Either would present as a significant change for X and a significant change for both children. Any significant change for both children given their ages and needs which would involve extended time from their mother is likely to be disruptive and distressing for both children because of the mother’s primary care role. The court does not accept the evidence of the father that the children’s distress could be easily managed.
The proposal of the father, in that event, is that whilst he is able to take extended leave to settle the children and care for them, which I accept, he thereafter would require the assistance of his sister to assist him as required. However, the mother is available to meet the children’s needs on a full-time basis.
The advantages of more time with the father, whilst an important, significant consideration, are however outweighed by the disadvantages of the proposed change, not only to X and to Y, but the mother who not only acknowledges the children’s needs but is best placed to meet their needs by reason of the role she has assumed to date but who on the proposal of the father would then be required to facilitate the change including giving up her current work arrangements which support her family unit and live in a place where she does not want to live.
Put another way, the benefits to the children on the proposal of the father of extra time in his care, whilst important, do not present as so advantageous that it warrants the significant changes presented on his primary proposal of a return.
Even if the parents lived closer to each other, I am unable to conclude that an order for equal time would be in the best interests of the children, given their primary attachment to their mother, or that by 2022 that would be the case for Y.
Further, and as earlier discussed, the parents do not evidence the requisite level of communication that would support the making of that order now, an order that would potentially expose the parents to regular, possibly even daily, communication to support an order for equal time or substantial and significant time, particularly given X’s complex needs.
That is notwithstanding the application of the presumption under s.61DA(1) of the Act, that being a presumption that relates to major decision making with respect to the children.
It is a factor of particular relevance given X’s needs and the substantial supports put in place by the mother to address her communication and behavioural difficulties. It is also relevant to Y given his tender age.
The state of the communication between the parents favours a proposal where the children reside with one parent primarily, in their bests interests. It favours the proposal of the mother in that regard.
The practical difficulty and expense for the children to spend time with a parent is a significant factor. I repeat and rely upon findings made with respect to other considerations relevant to this consideration.
I am unable to conclude that on the proposal of the mother, which would have the children continuing to reside on the Region B, that the children’s ability to maintain personal relations and direct contact with the father on a regular basis would be substantially affected on her proposal (s.60CC(3)(e)). The father has evidenced the commitment, capacity and means to be able to maintain regular contact with the children under the current orders. He has flexibility in his work arrangements and significant control over his work, as, on his evidence, he does not have fixed hours. On his proposal, he has the capacity to take block time off work to care for the children, if he assumed primary care on his primary proposal before the court. When the mother was living in Victoria for 15 months, he was able to arrange his work commitments so that he worked three weeks out of every month and spent the fourth week with the mother.
The father’s alternative proposal that, if the children were to remain on the Region B, he would spend time with them from the commencement of school Wednesday to 5:00pm on Sunday on the last week of each month would meet the children’s best interests. There is no persuasive evidence to conclude that the father does not have the capacity to the meet the costs of accommodation and travel on that basis. The court on the evidence however is not able to conclude that the mother has the financial means to contribute to the father’s costs, other than during the school holidays, with respect to air travel for herself and the children, as was the case over the most recent Christmas holiday period.
I find that if the children remained living on the Region B the father will continue to spend regular time with them and that his alternative proposal will met the best interests of the children by enabling the children to maintain relations with both parents on a regular basis. It will enable him to spend time with them on the weekend and during the school week in their best interests.
I find that the mother will likely comply with the court orders that provide for such time.
It is not necessary to consider the father’s proposal based on the mother not returning to Town E, if the children’s residence was ordered to be in the Town E area, because, on her evidence, she would return.
With respect to holiday time, the issue of distance and the ages and needs of the children away from their primary carer is a relevant factor.
I find that a proposal that will see the children spend half of the school holidays with each of their parents and a week-about regime at Christmas until Y starts school, when it should then transition to half Christmas holidays in blocks, strikes an appropriate balance in supporting the mother’s parenting role, in not disrupting the children’s settled arrangements, and in allowing the children to spend regular time with each of their parents.
It is a proposal that will afford the children an opportunity to spend block time with maternal and paternal family members, in the children’s best interests, when they are in the Town E area with respect to the paternal family. There is no evidence before the Court to suggest that the maternal family, on the mother’s proposal, could not spend regular time with the children if they are so minded to do so, in the children’s best interests.
The Easter weekend can alternate between parents. It is appropriate that the children – the parents are able to share the Easter Sunday, but that will need to alternate because of the distance issues, and there is no reason to suggest that that cannot be accommodated by the alternating of which half of the Easter school holidays the parent has.
The mother, on her evidence, will be prepared to travel with the children to spend time with the father during the school holidays. Both parents are now utilising air travel which is sensible.
Given the fact that there may be occasions when the mother does travel to Town E to visit her own family, it would be appropriate in those circumstances for there to be an order that the mother notify the father if she is in the Town E area and the parents attempt to reach some agreement on the father spending some time with the children during any visit that the mother may have over and above the orders that I intend to make.
Unless otherwise agreed, changeovers during school term should take place at the children’s school on school days or at the children’s contact centre at K Contact Centre on non-school days. Those arrangements seem to have worked well to date, and it also addresses some evidence in relation to the mother’s continued support for changeover to be at the contact centre.
Unless otherwise agreed, changeovers during the school holidays should occur by the mother delivering the children to the father at the commencement of time at the City N Airport, and by the father delivering the children to the mother at the conclusion of such time at the Brisbane Airport, with the parties to confirm in writing 24 hours prior thereto with respect to the collection point at each airport, and with each party to meet the costs of travel for themselves and the children one-way.
The parents’ ability to spend Christmas Day with the children should alternate – again, because of the distance factors – with the father to have Christmas Day this year. That may require some adjustment to when the alternating weeks during the Christmas school holidays commence until Y commences prep, at which time there will be block time. I am not proposing to nominate odd or even-numbered years for that reason.
What I am proposing to do is make an order that Christmas Day will alternate, with the father to have Christmas Day this year, and that agreement be reached between the parties in relation to who should have the first week of the school holidays to accommodate whichever parent will enjoy Christmas Day in a particular week. Once Y attends prep and Christmas holidays are to be equally shared, the parent who is due to have Christmas Day will have the first half of the Christmas holidays, and the parent who is not having Christmas Day with the children that year will have the second half, and it will thereafter alternate. The parent with whom the children are not spending Christmas Day should be permitted to call the children between 10:00am and 10.30am that day.
Provision should also be made in any orders for the children to spend special occasions with each of their parents in their best interests. Y’s birthday is in … . X’s birthday is in … . The orders that the mother is proposing in that regard seem appropriate.
The father should be at liberty to phone or Skype the children twice a week. It is neither here nor there to me on what days that should be. I note that the mother suggested Tuesday and Saturday and the father suggested Monday and Thursday, I think it was. I will come back to that. It should be twice a week and it should accord with the children’s routines. If that is 5 pm to 6 pm, as suggested by the mother, I have no difficulty with that. I will come back to that, if I may.
Both parents have the capacity to provide for the day-to-day needs of the children. However, the mother, by reason of her primary care role for the children, is more intimately acquainted with their day-to-day needs and routines and more likely by reason of their primary attachment with her to support the broad spectrum of their needs, including their emotional needs (s.60CC(3)(f)).
In making these findings, I acknowledge that in her report, Ms L, in referring to Reasons for Judgment of Judge Middleton of 4 December 2017, concurred with his Honour’s observations about the mother. His Honour’s reasons were not placed into evidence at trial. If recorded accurately in the report – I think there was some cross-examination of the parties in relation to that, but if recorded accurately in the report of Ms L, those comments appear to have been couched by his Honour as concerns based on the evidence presented before his Honour at an early interim hearing: a hearing of a truncated nature, when the evidence could not be tested, as opposed to findings that could properly be made on disputes of fact following a final hearing.
I have had the benefit of considering all of the tested evidence conducted over a five-day trial – possibly – well, it was a six-day trial, but, really, five days of evidence. My findings do not support a conclusion that the mother is either self-focused or manipulative, or that, by reason of that, the children are at risk of psychological or emotional harm in the future.
That view, with which Ms L appeared to concur at 7.21 of her second report, is not supported on the tested evidence. It is not supported by the unchallenged evidence of the mother’s psychologist, Mr P, who noted the mother’s genuine concerns in relation to the children’s current and long-term needs and welfare. Indeed, it is not supported by Ms L’s evaluation of the mother’s capacities as a parent, including her opinion as to her diligence in meeting X’s needs or the strength of the children’s attachments to her.
The mother’s desire to live on the Region B does not present as either a character or parenting flaw, just as the father’s desire to remain living in Town E when his children live 700 kilometres away is not a character or parenting flaw on his part. The mother is not required to provide compelling reasons for her decision to relocate to the Region B.
The observations of Ms L, respectfully, made at a time when the mother was adamant about not returning to Town E, that should the court order the children’s return that she thought “it was unlikely that the mother would not stay with her children" and at 7.21 and 7.25 of her second report that “.. her focus on keeping the children with her in a location 700 km from their father…” and that the mother’s asserted “change of heart about letting the children return to their father’s care” was one based on insight or “on her natural yearning to be with her children and her own realisation that she could not be parted from them” brings into the focus the risk of stereotyping motive and the forensic disadvantage that may present for a relocating parent. The court’s focus must be on a careful analysis of the evidence with respect to the competing proposals in determining the best interests of children, each case and each family, unique.
Whilst the mother was critical of the father’s response to X’s autism diagnosis and ability to support her needs, there is no persuasive evidence to suggest that he would not or could not do so.
The evidence with respect to X’s special needs is before the Court. I have referred to that earlier. It is a significant factor in the court’s assessment of the parents’ proposals, for the reasons that I have discussed and I repeat and rely upon earlier findings relevant to this s.60CC(3)(g). It supports the proposal of the mother in maintaining the children’s primary care with the mother.
I do not place a great deal of weight on the parties’ connection to Town E. The father lives and works there, and the parties purchased a home there. The father’s family lives there, and the mother’s family also resides and has business interests there. However, the mother hardly lived in Town E. Y never lived there and X lived there until she was one, then for 15 months in Victoria, then in Town E for one month, before the parties rented their Town E home and moved to Town F, south of Town E, where separation occurred. This is not, in the end, a case where there are older children and where geography, by virtue of age, friendships and community involvement, may be a more relevant factor in the court’s consideration as to the parenting orders that will serve the best interests of the children.
With respect to ss.60CC(j) and (k), the evidence of the mother is that during the relationship the father was the perpetrator of family violence towards her. Further, on her evidence, the father’s brother Mr D behaved in a sexually inappropriate manner with her, and that he presents and continues to present an unacceptable risk of harm to X.
Both allegations are denied by the father.
With respect to family violence, the mother deposes to incidents of family violence prior to and following separation. She deposes to the father, inter alia, calling her derogatory names; exhibiting aggressive and harassing behaviours, including throwing things at her; and that after they separated he had little regard or respect for her boundaries, entering her gated community without invitation and following her to a court hearing, by way of example.
The mother’s application for a Protection Order was dismissed on 2 May 2018 after a hearing.
The father denies he was a perpetrator of family violence as alleged. On his evidence, the mother was the one who had issues to do with “mood swings”, and he also made reference in his evidence to a “thyroid condition” that she had.
On the evidence, the court is not able to make findings either way according to the requisite standard based on the parties’ competing versions of events. The court, however, makes the following findings in response to the evidence relevant to this consideration:
The parents had an unhappy relationship, with features of conflict, resulting in a number of separations, instigated by the mother on each occasion. The parties’ engaged in marriage counselling which was unsuccessful.
The mother’s evidence that the father was, at times, aggressive, domineering and controlling finds some support in the evidence of Ms L, who found her engagement with the father challenging. During her interview with him, he displayed, at times, an imperious, controlling and argumentative attitude. He accused the court expert of bias – a serious allegation. It is evidence that suggests that even in a controlled environment, during a court-ordered process, the father was unable to maintain a reasonable level of control. It suggests that he adopts a blaming attitude when either unhappy, not in control of a process, or under stress, that blame extending to helping professionals who, in the case of Ms L, reportedly had agreed to see him on a Saturday at his request and otherwise appeared to try and accommodate his requests throughout the interview process.
It extended to unhappiness with how X’s paediatrician, Dr O, chose to conduct his interview with the parents and his diagnostic process (“I wasn’t happy with that assessment …it was a waste of time in relation to my expectations, and there would be some interaction with the doctor and the child”.)
Dr O’s Curriculum Vitae is in evidence. It suggests that he is more than qualified to treat X and determine how to conduct a parent interview. He holds dual degrees with First-Class Honours in both medicine and science from the University of Sydney. He has been a practicing physician for nearly 40 years. Before assuming a part-time specialist practice on the Region B focusing on children with developmental disorders, principally ASD, he was Medical Superintendent at the Royal Children’s Hospital in Brisbane, and then Clinical Director of Paediatrics in Gladstone.
Based on his qualifications, professional expertise and background in evidence, and the evidence that fell from the father under cross-examination at trial, the father’s complaints about Dr O lack evidentiary support and I accord them no weight.
The parents’ disparate personalities were in evidence at trial, the father dominant in his exchanges with the court, frequently interrupting, and the mother more withdrawn in her demeanour.
Whilst the mother evidences a determined and focused resolve with respect to how the best interests of the children can be achieved, and whilst her dealings with the father, at times, descended to the pedantic, and whilst her level of engagement with the court and the orders sought by her may suggest, at times, a level of unreasonableness, I did not view her as being either manipulative or self-focused. Nor was any evidence led by any qualified person to suggest that she was either irrational or exhibiting signs of paranoia. Dr P, for example, a qualified psychologist with two Masters Degrees, whose CV runs to pages and is in evidence, and who evidences extensive experience in this court, conducted psychometric testing of the mother. Neither that testing nor his interviews with the mother suggested any concerns by him about her personality or any flags for the court of a potential concern that suggested investigation by a qualified psychiatrist. Nor was there any orders made by this court that the mother be psychiatrically tested on an application by anyone, if that was a concern and there was evidence to support it. Nor did Dr O in his evidence suggest that the mother was displaying any personality or psychiatric symptoms of concern.
The father’s proposals before this court do not suggest that, ultimately, he had any concerns in that regard, notwithstanding him placing some evidence before the court in relation to the opinions expressed by others with respect to the mother in other court proceedings.
The evidence suggests, however, that the father may lack some insight into how he presents to others, including an understanding of and respect for boundaries. The father’s decision to drive into the mother’s gated community was, at best, ill-advised.
His proposal for the immediate introduction of 6/7 days a fortnight in block time for a child of X’s needs – where the parents do not have, as I have earlier said, optimal communication and a level of optimal trust – similarly suggests a lack of insight into how that arrangement could be managed in X’s best interests or how it would serve her best interests given her primary care by her mother since birth.
The court accepts that the father has been deeply affected by the mother’s relocation and the separation from his children. The evidence suggests that the circumstances of separation were likewise distressing for the mother. The mother is reported by Ms L to have cried when she described her decision to relocate on the final occasion, at a time when she was seven months’ pregnant, as a fear reaction which just compelled her “to go”, a fear that the father would harass her and “just not leave her alone”.
The criticism of the mother in submissions on behalf of the father by reason of the mother’s pre-meditation does not advance matters. Rare is such a thing as a perfect separation or a separation that does not cause usually both parties, considerable upset or pain.
The father presented at trial with a modest ability to validate any of the mother’s feelings that led to their separation, including her experience with his brother. The mother became emotional in the witness box when recounting her experience with Mr D.
Nor did he present with an ability to reflect on why the mother felt the need to separate from him as she did, or the confluence of factors that gave rise in the lead-up to her leaving in the circumstances she did, that form of separation apparently presenting to her as the better option than staying, notwithstanding a late-stage pregnancy, the primary care of a special needs child, and her being on maternity leave.
On the father’s case, the mother “deserted him one day when he was at work”, the father unable to accept any blame for the breakdown of the relationship, notwithstanding the history of prior separations and the parties being in marriage counselling at final separation.
I had an opportunity to see both parties in the witness box. The mother was cross-examined at length by experienced Counsel. There is a great deal of distrust between the parents, however there is no persuasive evidence that the mother has made up allegations against the father or his brother Mr D for forensic advantage. Nor is the Court able to conclude according to the requisite standard whether or not the mother submitted a fraudulent document to the court, upon which she also forged the father’s signature – a most serious allegation. A decision in that regard is not required to be made, other than it being evidence of the level of trust between the parties that remained at trial, the document relating to the mother’s move to Town Q in 2013, not her move to the Region B in 2017.
The circumstances of the parties’ earlier separations suggest that the mother was unhappy in her relationship with the father. She had left him on two prior occasions. On the first occasion, she was living in Town Q for around 15 months, initially staying with her father in Victoria. On the second occasion, she was in the process of making her way to Victoria, to her parents, when the father was able to persuade her en-route to reconcile with him. When she left the father on the third and final occasion in August 2017, it is clear that she wanted to get away from him. She sought her supports in Queensland, where she had a cousin and a friend, and where her parents were considering purchasing a home. It is not the case that she had no real connection with the Region B.
I place little weight on the criticism of the secrecy of her plans. Whilst hindsight is usually clarity of vision, the mother’s action at final separation suggest that she was seeking to avoid conflict, not generate it. The evidence of past separations and, indeed, her demeanour in the giving of her evidence at trial, support that view.
At the time of final separation the mother was heavily pregnant with Y; in an unhappy and unravelling marriage where she was feeling unsupported, rightly or wrongly, by the father; where she was primarily managing X’s challenging behaviours, including sexual behaviours, against a background of concerns about Mr D, not only his behaviour towards her but potentially towards X. She was close to giving birth to her second child. She felt she had to escape (on her case) in other words avoid the potential for the father’s harassment of her and/or overtures to return to the relationship on her case. The evidence can be put no higher than that.
In the circumstances the court should be slow to pass judgment on why parents at stressful times act in a particular way, even if their actions are premeditated or form part of a pattern of prior response to a stressful situation. As Hayne J in the High Court said in AMS at [204] the problems that family law deals with are “…human problems, with all their attendant variety and complexity.” It can be difficult, if not unfair to a party to attempt to reduce a “…complicated mass of human experience”, likely years in the making, to “the simplest terms”. In the end, the mother’s decision to leave as she did is not a factor that is alone dispositive of a determination on the parenting arrangements for these children into the future. Time has moved on.
Nor does the risk of family violence present as an unacceptable risk of harm for the children on any proposal before the court.
There is no evidence that the children have been negatively affected by the parties’ separation nor exposed to acts of family violence with negative impacts for them.
I accept however that an order for changeovers should continue to be at the school, a contact centre or a neutral venue such as an airport, unless otherwise agreed.
I further accept that there is evidentiary support for the interim order prohibiting the father from leaving the children in the unsupervised care of his brother Mr D. That should remain.
On the evidence of the mother prior to separation, she disclosed to the father that his brother had acted inappropriately with her and he was dismissive of her. On her evidence, she told the father that Mr D had “…pressed an erection into her when she was saying goodbye to him” and that he had“…ejaculated on her.”
As noted by Ms L, the mother did not report the incident to the police. I place little weight on that fact as a basis for discounting her evidence, given that the alleged perpetrator was the father’s brother – that is, a family member.
Nor is there evidence that the mother addressed the matter with the father’s family, the father informing Ms L that the mother did not have a close relationship with his family.
Whilst in his sworn evidence the father addresses the issue of risk in the context of Mr D spending time with X, he does not address the mother’s assertions.
The father, however, did not accept the mother’s account, although he conceded under cross-examination that the mother did disclose something about that to him and that he had spoken to Mr D who denied it happened. On his account, Mr D had embraced her for a kiss at which time his penis had briefly brushed against her.
On the father’s evidence the mother’s motives were suspicious. With respect to the mother’s concern about X’s apprehension around Mr D, it was the father’s position that the child had been negatively influenced by the mother.
The father’s position, I have to say, is curious. It is unclear why he was prepared to accept Mr D’s version of events over that of the mother, Mr D, a person who sadly suffers from serious mental health problems.
Either the mother has lied about the incident or Mr D has lied. There can be no other explanation.
There is no persuasive evidence to doubt the mother’s experience or any evidence to suggest any forensic or other advantage to her in making a false allegation about Mr D in proceedings that do not concern him. Her concerns would have no impact on the outcome of the relocation application, other than to highlight the father’s response and his ability to act protectively, even if he did not believe the accusation. Mr D does not live with the father. Whether the children lived on the Region B or in the Town E area would have no bearing on the outcome that the court would make in that regard, the court having mechanisms available to it to otherwise address the mother’s concerns by way of separate order with respect to Mr D.
Relevantly, there is other evidence before the court that suggests that Mr D lacks boundaries, appropriate boundaries, and that he has behaved in socially unacceptable or inappropriate ways with others. The evidence of the maternal grandmother, Ms S, is that the paternal grandmother had spoken to her on several occasions about her concerns about Mr D and that on one occasion when Ms S was at the Town E Hospital with the paternal grandmother at a time when Mr D had been admitted experiencing psychotic episodes and for the purposes of medication adjustment, when Mr D went to hug his mother, Mr D “…sniffed her neck and then started to kiss her on the neck. She had to force him away.”
That evidence was not challenged by the father.
There is also evidence from X’s psychologist to suggest that X reported that she was touched or almost touched by Mr D. Whether she was or was not touched in an inappropriate manner, the psychologist was of the view that X was uncomfortable about the contact.
In the context of the mother’s asserted experience of Mr D and X’s reporting, the mother could be forgiven for having a concern about Mr D’s unsupervised contact with X, where a professional recommendation in 2017 of Ms T was that X required urgent and regular therapy sessions to help address her fascination for sexual stimulation and sexual interactions.
I find there to be evidentiary support for the making of the orders sought by the mother with respect to the children’s unsupervised contact with Mr D for the protection of the children.
Acknowledging that there is no crystal ball, the parenting orders proposed by the mother with some variation are orders least likely to lead to further litigation (s.60CC(3)(l)). The court accepts that if the mother returned and lived in the Town E area on the proposal of the father, the parties would be more likely to have more frequent contact and by that reason alone, there may be a greater risk of the children being exposed to parental tension with potential negative impacts for them.
Whilst neither party has been reticent approaching the court for assistance when they feel that they have needed it, and the court further acknowledges that it appears that financial matters remain outstanding with proceedings in that regard yet to be filed, the mother would benefit from some assistance in understanding what the court can or cannot do in regard to parenting matters. Mr P recommended ongoing therapeutic monitoring and support, even if not clinically indicated.[5]
[5] Supra at [64]
I would also encourage the mother to engage – well, given the fact that the mother has attended two post-orders parenting programs, it is probably not going to be beneficial that she attend a third one - I would, however, encourage her to engage with a community-based legal service if she requires some legal assistance. It would probably be better for her if she could in that regard seek some further financial assistance from her mother to obtain some proper legal advice from a trained family law specialist. It might assist her in reaching agreement with the father on future issues and assist her to focus where her focus needs to be.
Acknowledging that the mother has been largely self-represented and further acknowledging that the father’s contribution to the parenting dispute does not escape scrutiny, a court order can provide some certainty as it gives parameters within which parents are expected to operate. However, it is not a substitute for parents exercising their responsibilities which they carry by law, if not the privilege that is theirs, to make their decisions as a parent.
It is a responsibility which will involve both parents in a myriad of decisions for the balance of the children’s minority, where parents are expected to exercise their common sense, evidence some give and take and focus on important matters. I have to say that not all of the matters that the mother has presented to this court in the various interim applications that she has filed have been matters that necessarily warrant court adjudication.
For this reason alone, a Parenting Coordinator and an order for the parties to engage in Family Dispute Resolution before filing further parenting proceedings may assist the parties in interpreting and implementing the orders that I intend to make in the best interests of the children and otherwise assist them in resolving future parenting issues. The court should be a place of last resort, not first resort. The Act makes that clear. The court is not equipped to conduct some ongoing review of how separated families are travelling and make endless variations to orders to respond to issues that may present.
Whilst parenting orders are never final orders as such, the orders that I make today are final orders. They are titled final orders. It will end the parenting proceedings in this court and the parents are expected to work within the framework of those orders, permitting common sense to dictate their course, as parenting is a fluid process for intact as well as separated families. So it is going to require the parents to adapt to changed circumstances and in the spirit of goodwill focus on the best interests of their children. Where however there remains dispute, the court orders must prevail until they are varied by a court on further application.
Now, whilst not the subject of detailed submissions in making orders least likely to lead to further dispute, making orders that address overseas travel and the holding of passports should be made in the best interests of the children. I will make those orders shortly.
With respect to s.60CC(3)(m), I repeat and rely upon my earlier findings relevant to this consideration. I mentioned earlier that the father did not press any issues in relation to his health problems, so that was not a consideration in my assessment of the competing proposals.
Primary considerations
There are benefits to the children of having a meaningful relationship with both of their parents (s.60CC(2)(a)). Whether the children reside on the Region B or on the Region M, the children who already have an established beneficial relationship with each of their parents will continue to enjoy that relationship with their parents and there is no evidence to suggest on either proposal that they would not derive those benefits into the future.
In particular, there is no persuasive evidence to conclude that those benefits would not exist if the children remained living on the Region B with the mother on her proposal and that on her proposal, the children would not continue to benefit from a meaningful relationship with their father. Whilst it is accepted that a long-distance relationship with less frequent time spent together may be a different relationship from that developed if the child and the parent live closer together, it does not mean it is not meaningful (M & S [2006] FamCA 1408 at [42]). Even if the father’s relationship with the children proved to be of a lesser quality by reason of distance, again it does not lead to a conclusion that it would not be a meaningful relationship. As Kay J said in Godfrey & Sanders [2007] FamCA 102 at [36]:
…what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
I am satisfied that the mother’s proposal is one that will enable the children to continue to develop a relationship of importance, significance and of value to them with respect to each of their parents. The father accepted that he had maintained a good relationship with the children notwithstanding the travel and the distance involved.
With respect to s.60CC(2)(b), I repeat and rely upon earlier findings relevant to this consideration. Save for the children being left in the unsupervised care of the father’s brother Mr D, I am unable to conclude that the children are in an unacceptable risk of harm on the proposals of either parent.
The court places significant weight on its findings with respect to the primary and additional considerations which support the proposal of the mother that the children should remain living with her on the Region B.
The court, for the reasons given, otherwise makes an order for equal shared parental responsibility as proposed by the father.
Whilst the orders that I intend to make which will see the children continue to reside on the Region B was not an outcome recommended by Ms L, I attach little weight to her ultimate recommendations which were not supported by the whole of the evidence before the court.
Whilst I acknowledge that Ms L had the advantage of interviews and observations of the parents and the children, her evidence was impacted by a lack of fulsome inquiry of all relevant considerations, some inconsistencies, some conclusions and some opinion premised on assumptions that lacked factual support. It was further impacted by a number of concessions she made in her expanded oral evidence at trial, including with respect to her level of expertise.
For expert opinion to have any value, the expert must evidence the necessary qualifications, experience and expertise to express the opinion proffered and the facts upon which an opinion is based must be proved by admissible evidence (Paric v John Holland (Constructions) Propriety Limited [1985] 62 ALR 85 at [9], citing Ramsay & Watson (1961) 108 CLR 642. See also McGregor & McGregor (2012) FLC 93-507 at [80] to [81]).
By way of example, Ms L did not particularise in her report the material relied upon by her. She could not recall receiving documents. She was unable to outline the basis upon which she formed some of her views. Her evidence at trial with respect to a developmentally appropriate regime of time for Y, given his age, was inconsistent and the basis upon which she formed her view unclear. On her evidence, whilst having experience in the area, the assessment of young children was not her area of expertise. That evidence must be viewed in the context of a recommendation in her first report that at age 5 months, Y, who had never been in the primary care of his father, should transition to his primary care if the mother did not return to live herself in Town E. There is no evidence to suggest that the best interests of Y would have been served by a change of his residential care at that juncture. It suggests the focus on the mother’s actions on moving away from the father and the desirability of her return as opposed to an assessment of which parenting proposal was feasible and likely to support Y’s best interests.
Further, there was an inconsistency in her recommendations between her first and second reports, the first report recommending that Y graduate to spending the same time with the father as X for two nights per fortnight from when he turned one year of age, whereas in the second report, Ms L recommended that his daytime time occurred twice a week with the father, not to graduate to the same time as X, but as two consecutive nights a week until he was three years of age.
There was also no fulsome assessment of the impact on X and/or the mother of relocation back to the Town E area.
Ms L’s email to the mother recording what the father had told her about the date for the mother’s C-section operation was couched in an unfortunate way. It invited assumption and conclusion before she had had an opportunity to hear from the mother ((“[o]bviously that was deliberate on your part, and it would help me to know why. And also, why did you not name the father or consult him about the baby’s name”). In her detailed reply the mother explained, inter alia, that her operation had been brought forward because of her insulin levels; that she had gestational diabetes, and she was concerned about her and the baby’s health; that she did not advise the father deliberately that the date had been brought forward. The mother’s explanation for this and her response to the issue to do with the child’s name is not included in Ms L’s report in a fulsome manner.
Ms L’s evidence that “on balance it was better if the children went back to the community they’re growing up in you know” was predicated on the incorrect assumption that they had grown up in that community. That is not the case.
It appeared to be further predicated on the mother’s eventual willingness to return (“Thankfully now the mother has said she will go if the Court orders her to go, so that is a relief to me.”)[6]
[6] Transcript Day 4, p 317, l1.13-17
Conclusion
Whilst the court acknowledges the legislative intent in favour of substantial involvement of both parents in the lives of their children, both as to parental responsibility and as to time spent with parents, it must be in their best interests and reasonably practicable.
For the reasons I have outlined, it is not open to the court to find that an order for equal time or substantial and significant time is in the best interests of the children.
Nor is it reasonably practicable for the children to spent equal time or substantial and significant time with each of the children’s parents.
The best interests of the children require orders in terms of the mother’s proposal as to time with some variations to that proposal.
It should be supported by an order for equal shared parental responsibility between the parents.
There should be a restraint on the mother relocating from the Region B area as sought by the father.
Y’s name has been resolved. I shall, however, make an order if it is necessary to ensure that the father is registered on the birth certificate and Y’s name appears on the birth certificate as the parties have agreed. And there will be the passports.
I will make the orders detailed in the mother’s Case Outline document filed on 25 January 2019, save for the following variations, and these orders will appear at the commencement of my published reasons.
The children will live on the Region B.
The father will spend time with the children, unless there is agreement in writing to the contrary, during the school term from Wednesday to Sunday or such shorter period within that time as the father may elect. That will occur during the last week of the month. I am picking that up from his alternative proposal.
Christmas Day will alternate and Easter will need to alternate.
Changeovers, unless there is a written agreement between the parents, will be at the City N or Brisbane Airport with the costs to be shared.
There will be a restraint on the mother from relocating from the Region B area without the written consent of the father or order of the court.
I make the orders sought by the mother with respect to birthdays and Father’s Day and Mother’s Day.
While the father is spending time with the children in Queensland, the father will do all such things necessary to ensure that the children attend upon their extracurricular activities in Queensland and ensure that they attend their medical and allied health appointments as scheduled.
The Christmas time will be week about until Y attends prep. Thereafter, it will be equally shared. All other holidays are equally shared because they only amount to two weeks in Queensland, save for the Christmas holiday, so each parent will have a week. Until Y attends prep, Christmas holidays will be week about. That will necessitate an accommodation between the parents as to when the week about time commences or which parent has the first week because Christmas Day will be alternating. Same with Easter, the parents will need to alternate who has the first week or the second week in Easter to ensure that they spend Easter day on an alternating basis.
Telephone communication – subject to hearing from the parties will be twice a week. I have Tuesday and Saturday between 5.30pm and 6:00pm. That was because it was the mother’s proposal, but it may well be that that can be varied. I will come back to that. There should also be liberty for the parents to also telephone on special occasions. If, for example, a parent is unable to attend a special occasion, there should be a telephone or a Skype call. As I said, the parent who is not spending time with the children on Christmas Day should be at liberty to telephone the children between 10:00am and 10.30am on that day, unless there is agreement to the contrary.
During school term, changeovers will be at the school on school days, or a day care centre if applicable and otherwise at the children’s contact centre on non-school days. During the school holidays, the mother is to deliver the children to the father at the City N Airport and meet the costs of that travel and the father to deliver the children to the mother at the Brisbane Airport on return and meet the costs of that travel, and the parents are to confirm by text message the arrangements including the collection point at the airport.
I will make provision in the orders for during school holidays or other orders that the time arrangements will be suspended and also when time should resume after the school holidays. It will commence on the weekend after the school term recommences, determined as if the sequence had not been interrupted. That should hopefully deal with one of the issues that has previously presented itself.
The children will attend the Town C College at the commencement of their primary school education until the completion of their high school education, unless otherwise agreed in writing between the parents. The parents will need to do all such acts as necessary to sign whatever documents are required to facilitate that.
There will be orders in relation to parental behaviour that both parents seek and the usual authorities to enable parents to obtain information in relation to medical issues and schooling issues. The orders will authorise the relevant schools, day care centres or extracurricular activity providers to provide that information. The same will apply for doctors and allied health professionals.
There will be orders dealing with parental behaviour which both parties have sought to ensure non-denigration, respecting the privacy of the parents, not questioning the parents, speaking respectfully of the parents, those type of orders, not involving the children in the parenting disputes.
There will be specific provision to enable the parties to attend sporting and extracurricular activities of the children.
There will be an order that all communications will be through either the Our Children Australia or Talking Parents or Parenting Wizard website.
There will be a restraint on the father bringing the children into the unsupervised contact of the paternal uncle. I am not making an order that the restraint extend to no contact. Mr D is a part of the father’s family. There is no evidence to suggest that the father would not act protectively of the children and ensure that the order is complied with.
Y’s birth certificate, if that is still an issue, then that will need to be attended to, with that certificate to record Y’s full name and the father’s name on the birth certificate, and the parents can share the costs equally if that has not been done.
In terms of overseas travel, I have mentioned that before. I propose to make that order. There is not a lot of evidence about it. I do not even know whether it was referred to in the written submissions of the parties, however it is one of the orders the father sought. I think the mother has a Country U background. I do not see that it would not be in the best interests of these children to be able to travel overseas with their parents. Of course it cannot be done at the moment. However there should be provision for it in the best interests of the children and for the parents to ensure that the children have current passports and that the costs of those passports be equally shared. I am proposing that the mother hold the passports. I appreciate that the father sought to be able to hold one passport and I can understand that equality can sometimes be a persuasive argument however the mother is the primary carer of the children. There is no evidence that she is a flight risk. It unnecessarily complicates overseas travel arrangements if one parent has a passport and another parent has the other passport. I am just going to leave them with the mother.
Unless otherwise agreed in writing, the children will be at liberty to travel with a parent outside of Australia for holidays, provided that such travel in accordance with these orders, is undertaken during school holidays and is to a country that is a signatory to the Hague Convention. There will be some standard provisions in relation to what the travelling parent needs to do – that is, provide the other parent with three months’ notice in the intended travel, together with an itinerary of intended destination, proposed departure date and proposed return date.
Then if the travelling parent is the father, the mother will provide to the father within 14 days of a written request the children’s passports to permit overseas travel. That will often be necessary if one needs to obtain visas or to attend to other requirements. Then the travelling parent shall not less than 14 days prior to departure provide a final itinerary, including overseas addresses, a copy of return tickets, telephone contact details for the children for the period that they are away and the travelling parent will ensure that the children communicate with the other parent by telephone, FaceTime or other social media platform on at least one occasion each week and that the travelling parent will otherwise permit the other parent reasonable communication with the children whilst away. I shall order that within seven days of return if the father is the travelling parent, then he will return the children’s passports to the mother. I think that that is probably the easiest and most sensible way of sorting out overseas travel.
In terms of a Parenting Coordinator, I would like to make that order. It was not something that was raised during the trial, so I will invite some submissions about that. What I would like to do is to require the parties within 28 days to engage a Parenting Coordinator as may be agreed between them or as nominated by the Director of Court Counselling.
In my view, it is likely to assist them in the interpretation and implementation of the orders that I have made. It will hopefully avoid the number of applications that this court has had to deal with from both parents. It will hopefully assist them in focusing where they need to focus, deciding what is important and what is not important. The parents shall equally share the costs of the coordinator.
Otherwise save for emergent circumstances, under the Act, the parents are required to engage with a family dispute resolution practitioner before they bring a parenting application. However I propose to make an order that sets that out, including a process as to how that can happen in the event that the parties are not able to do so.
I certify that the preceding two hundred and sixty-three (263) paragraphs are a true copy of the reasons for judgment of Judge Purdon-Sully
Associate:
Date: 8 April 2021
Key Legal Topics
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Family Law
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Jurisdiction
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