Loverdos & Bonnor
[2022] FedCFamC2F 893
Federal Circuit and Family Court of Australia
(DIVISION 2)
Loverdos & Bonnor [2022] FedCFamC2F 893
File number(s): SYC 1387 of 2018 Judgment of: JUDGE BOYLE Date of judgment: 7 July 2022 Catchwords: FAMILY LAW – Children – relocation – mother permitted to relocate with children to Queensland. Legislation: Family Law Act 1975 Cases cited: Franklyn & Franklyn [2019] FamCAFC 256
Sayer & Radcliffe (2012) 48 Fam LR 298
U & U (2002) 2011 CLR 238
Division: Division 2 Family Law Number of paragraphs: 129 Date of last submission/s: 7 June 2022 Date of hearing: 2, 3, 4, 5 May 2022 Place: Sydney Counsel for the Applicant: Mr Reeve Solicitor for the Applicant: Marsdens Counsel for the Respondent: Ms Kennedy Solicitor for the Respondent: Broun Abrahams Burreket ORDERS
SYC 1387 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LOVERDOS
Applicant
AND: MS BONNOR
Respondent
order made by:
JUDGE BOYLE
DATE OF ORDER:
7 July 2022
THE COURT ORDERS THAT:
1.The parents shall have equal shared parental responsibility for the children, X born in 2015 and Y born in 2017 (the children).
2.The children shall live with the mother.
3.The mother shall be permitted to relocate the residence of the children to Brisbane, and shall give the father 21 days notice of the move.
4.The father shall spend time with the children in accordance with the orders made 3 February 2020 until the mother moves to Brisbane.
Relocation to Brisbane
5.Upon the children relocating to Brisbane, and on the basis that the father remains living in Sydney, the children shall spend time with the father as agreed between the parties, and failing agreement:
5.1During school terms, on each alternate weekend from after school/day care on Friday until before school/day care on Monday, with such time to occur in Brisbane.
5.2The father may elect to spend one weekend of his time in order 5.1 each school term with the children in Sydney, on providing 14 days written notice to the mother, and changeovers shall occur on the same basis as in order 5.3.
5.3During school holiday periods following term 1, term 2 and term 3 for the first half on the school holiday period in even numbered years and the second half of the school holiday period in odd numbered years with the mother to deliver the children to the father’s residence at the commencement of the time and the father to deliver the children to the mother’s residence at the conclusion of the time.
5.4During the school holiday period following term 4 the children shall spend half of each school holiday period, from the first day of the school holidays until 7 days later at 6.00pm and each alternate week thereafter with the father to have the first week in even numbered years and the mother to have the first week in odd numbered years.
5.5Notwithstanding any other Order, the children shall spend time with the father:
5.5.1From 9:00am on Christmas Eve until 12.00pm on Boxing Day in each year ending in an even number.
5.5.2In the event that the children are not already spending time with the father on the weekend that includes Father’s day from after school or day care or 5.00pm on Friday until 5.00pm on Sunday.
5.5.3In the event that the children are not already spending time with the father on the weekend including or immediately following the father’s birthday, from 5.00pm on Friday until 5.00pm on Sunday on the weekend including or immediately following the father’s birthday.
5.5.4Commencing in 2024 during the school holiday period following term 4 for half of each school holiday period with the father to have the first half in even numbered years and the mother to have the first half in odd numbered years.
6.In the event the father provides the mother with 48 hours’ notice of his intention to be in Brisbane, the mother shall facilitate the children spending time with him for a period of up to 72 hours in Brisbane, during which the father shall take the children to school, and any sport or extracurricular activities scheduled during that period, with such time to occur no more frequently than once each fortnight.
7.Notwithstanding any other Order, the children shall spend time with the mother:
7.1From 9.00am on Christmas Eve until 12.00pm on Boxing Day in each year ending in an odd number.
7.2In the event that the children are not already spending time with the mother on the weekend that includes Mother’s Day from after school, or day care, or 5.00pm on Friday until 5.00pm on Sunday.
8.For the purpose of the children’s travel between Brisbane and Sydney:
8.1Until both children are permitted to travel as unaccompanied minors subject to airline requirements, the mother shall travel with the children from Brisbane to Sydney and the father shall travel with the children from Sydney to Brisbane, with each party to bear the costs of their own flights and those of the children.
Co-location in Brisbane
9.Upon the father providing the mother with 7 days’ written notice that he is able to facilitate such time, in lieu of Order 5, the children shall spend time with the father as agreed between the parties during school terms and failing agreement as follows:
9.1During school terms from after school/day care on Wednesday until before school/daycare (or if not a school day, 9.00am) on Monday each alternate week;
10.In the event that the children are not already spending time with the mother on the weekend including or immediately following the mother’s birthday, they shall spend time with her from 5.00pm on Friday until 5.00pm on Sunday on the weekend including or immediately following the mother’s birthday.
11.For the purposes of Orders 5 and 9;
11.1The school holiday period shall be deemed to commence after school on the last day of mandatory pupil attendance on the school term and conclude at 5.00pm on the day prior to first day of mandatory pupil attendance on the first day of the following school term.
11.2The midpoint of the school holiday period shall be calculated by counting the number of days (including partial days as a full day) and by dividing the number thereby derived by two and then:
11.2.1In the event that there is an odd number of days in the school holiday period then the midpoint is and changeover shall occur at 6.00pm on the odd day; and
11.2.2In the event there is an even number of days then the midpoint is and changeover shall occur at 6.00pm on the last day of the first half of the school holiday period.
11.3The first half of the school holiday period shall be defined as the period commencing at the conclusion of school on the last day X attends school for the school term, or once Y is also attending school the last day the children attend school for the school term, until the midpoint of the school holiday period.
11.4The second half of the school holiday period shall be defined as that period commencing at 6.00pm on the midpoint of the school holiday period until the commencement of school on the first day of the following school term.
11.5The father’s pattern of alternate weekends in order 4 shall commence on the first weekend after the commencement of each term in even numbered years and on the second weekend of each term in odd numbered years.
Other orders
12.The mother shall facilitate the children communicating with the father via Skype or Facetime or any other agreed platform at times agreed between the parties, and failing agreement each Tuesday, Thursday and Saturday at 5.00pm, when the father is not with them.
13.The father shall facilitate the children communicating with the mother via Skype or Facetime or any other agreed platform at times agreed between the parties, and failing agreement each Tuesday, Thursday and Saturday at 5.00pm, when the mother is not with them.
14.The mother and the father shall keep each other informed of:
14.1Their current telephone number and residential address;
14.2Any significant injury or illness suffered by the children and any treatment or attention given to the children in relation to health problems suffered by them from time to time;
14.3All school, extra-curricular and sporting activities in which the children are involved.
15.Both parties be and hereby are restrained from making derogatory, disparaging or offensive statements about the other to any other person in the hearing or presence of the children.
16.Both parties be and hereby are restrained from discussing matters raised in these court proceedings in the hearing or presence of the children.
17.In the event of an emergency, including serious illness or significant injury to the children or either of them or any other matter affecting the children’s safety, the party with whom the children are living shall notify the other party by phone or text message as soon as is reasonably practicable.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Loverdos & Bonnor has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BOYLE:
INTRODUCTION
These are proceedings with respect to two children: X, known as X, now aged seven and Y, known as Y, now aged five. The mother seeks to relocate with the children to Brisbane, which is opposed by the father. For ease of reference and with no disrespect intended, the applicant shall be referred to as the father, and the respondent is the mother, in these reasons.
The girls live primarily with their mother, and have always done so. The parties were separated under one roof for five months. They have spent time with their father since the mother and children moved from the former matrimonial home in August 2017.
At the time the parties began living separately Y was three months old. The parties made arrangements between them for the girls to spend time with the father. Prior to the orders of 3 February 2020 the children were spending three nights each fortnight with their father, and an additional morning for breakfast each alternate week.
The parties reside close to each other in the north of Sydney. The mother has family living nearby, including her mother. The father’s mother resides a couple of hours drive north of Sydney. The father receives support from an uncle and his partner in Sydney. The children have good relationships with all of their extended family.
The parties entered into final property orders on 3 October 2018. Were it not for this issue of relocation, it is likely the parties would have been able to resolve time arrangements.
The mother commenced a relationship with Mr C in 2017. Mr C resides in Brisbane. He shares care of his two children J aged ten, and K aged seven. He and the children’s mother have an amicable co-parenting relationship.
There is no issue that X and Y have developed a good relationship with Mr C, and his children. The mother was able to leave the children in his care during the school holidays prior to this hearing whilst she worked in Sydney. The father took no issue with this arrangement as being appropriate for the children.
A final hearing was conducted by Judge Myers in November 2019. Final orders made 3 February 2020 did not permit the mother to relocate to Brisbane. The orders provide for time between the girls and their father alternate weekends from after school Friday to before school Monday, and one afternoon each week; from 1 January 2022 the children spend time with the father each alternate weekend from after school Thursday to before school Tuesday; and once Y commences school an equal time arrangement.
The mother successfully appealed to the Full Court, and orders on 11 June 2021 remitted the matter for hearing. Orders on 7 June 2022 granted leave to the parties to adduce further evidence on the issue of the mother’s employment.
Both parties propose equal shared parental responsibility, and an equal sharing of school holidays.
DOCUMENTS RELIED ON
The father filed a case outline document identifying the documents he relied upon:
(a)Amended Application for Final Orders filed 11 August 2021.
(b)Affidavit of father filed 23 March 2022.
The mother filed a case outline document identifying the documents she relied upon:
(a)Amended Response to Initiating Application filed 8 September 2021.
(b)Affidavit of mother filed 13 April 2022.
(c)Affidavit of Mr C filed 14 April 2022.
(d)Affidavit of Ms L filed 14 April 2022.
(e)Affidavit of Dr M filed 9 April 2022.
(f)Affidavit of Ms E filed 8 September 2021.
(g)Affidavit of Ms I filed 8 September 2021.
(h)Affidavit of Professor N filed 26 April 2022.
Additionally the court has been assisted by a Single Expert Report prepared by Dr O dated 9 March 2022. Dr O was cross-examined.
The judgments of Judge Myers and the Full Court were not relied on by either party and have not been read.
MOTHER’S PROPOSALS
The mother’s primary position is that the children live with her in Queensland. On the basis he lives in Sydney, the father would spend time with the children on alternate weekends from Friday to Monday during school terms, in Queensland. He can elect once each term, for a weekend to be in Sydney. On weekends in Queensland he collect and return the children to and from daycare or school. On weekends in Sydney the mother will deliver the children to, and collect them from, the father’s home. School holidays would be shared equally, on a week about basis over the summer holidays. There are specific provisions for special days.
Should the father live in Brisbane he would spend time with the children each alternate Wednesday to Monday. Although this was not clearly expressed as an alternate week proposal in the Minute[1], it was clear from the manner in which her case was run, and submissions made on her behalf. The same arrangements as are otherwise in the mother’s proposal would apply to holiday time, and special days.
[1] Exhibit M2.
Should the mother not be permitted to relocate the children, the father would spend time with the children on alternate weeks with changeovers on Mondays. The same arrangements as are otherwise in the mother’s proposal would apply to holiday time, and special days.
father’s proposals
The father’s primary position is that the children spend week about with each parent, with changeovers on Fridays. Whilst the mother resides in Sydney the father would agree to enter a Binding Child Support Agreement to pay an additional amount of $250 per week over the assessed amount of child support.
The father’s alternate position is that the children would live with him, and spend time with the mother each alternate Thursday to Tuesday.
ISSUES
The following are the relevant issues for determination in the matter:
(a)The impact on the children’s relationship with their father should they be permitted to relocate to Brisbane.
(b)The mother’s capacity to support and facilitate a relationship between the children and the father should they live in Brisbane.
(c)The mother’s ability to financially support herself and the children if they remain in Sydney.
(d)The impact on each of the parties’ parenting capacity whether the children are in Brisbane or Sydney.
The case law makes clear that relocation cases are not to be treated as a separate category of parenting cases. The children’s best interests are the paramount concern.[2] The circumstances of each parent, including issues of practicality, are also relevant considerations.[3] The mother is not required to demonstrate compelling reasons for wishing to move. When a parent seeks to relocate a child’s place of residence consideration of such factors form part of a ‘deeper enquiry about where the best interests of a child may lie, and what arrangements will best serve those interests’.[4]
[2] Sayer & Radcliffe (2012) 48 Fam LR 298.
[3] Franklyn & Franklyn [2019] FamCAFC 256.
[4] U & U (2002) 2011 CLR 238.
The court is required to examine the proposals put, and the impact of those proposals on the child’s best interests.
credit
The father’s advocate submitted that credit findings are relevant in this matter. He described the father as calm and considered in giving evidence, which I accept. He described the mother as discursive and tangential at times in her manner of giving evidence, which I accept. I do not accept that these differences in style go to issues of credit.
I accept that the mother’s affidavit should have referred to the two incidents in May 2021 where she punched the driveway, and deliberately burnt her hand on a pot on the stove. That she knew those matters were set out in notes produced under subpoena from her psychologist and psychiatrist does not relieve her of the need to deal with such matters.
The mother was not clear in her affidavit with respect to her use of alcohol. I accept she has candidly spoken to Dr M, and to Dr O, on this subject and that there is evidence before the court on this topic. I accept she did not make clear to Ms I her level of alcohol use, despite their supportive clinical relationship.
These are matters that have been dealt with where they arise with respect to the mother’s evidence, and I do not regard it as useful to make findings with respect to credit.
As regards the submissions related to the mother’s income, I accept there is a speculative aspect to that evidence. The mother’s source of income is not as straightforward as the father’s, in that it is not derived from one enterprise, and is partly episodic. As I understand her evidence she intends to have an ongoing business with Ms E. They are developing an app for purchase related to Business D (Business D), with income from merchandise opportunities around that. She proposes seeking employment around sporting events, through public relations work. She proposes filming and distributing sports related content available through online platforms on a subscription, or pay, basis.
The father took issue on a credit basis with her evidence about the income of Business D. The mother did not properly disclose the financial information related to this enterprise. It was not made clear that the majority of the income is from Ms E’s consultancy work, which is proposed to be separated from the income from her work with Business D. The main source of funds for their enterprise so far is a $27,500 grant from the Queensland Government, and $23,000 from sales. I accept that the business is not yet running as Ms E and the mother anticipated. This is in part due to the impact of the pandemic, and that neither of them are currently living in south-east Queensland. This is the area they intend to target, as they already have subscribers to their existing platform.
I accept that it is difficult to compare the mother’s income should she live in Sydney or Brisbane. I do not accept that this is due to credit issues so much as her reliance on work opportunities as they arise.
FATHER’S APPLICATION to adduce further evidence
On 13 May 2022 the father filed an Application in a Proceeding to adduce further evidence relating to the mother’s work opportunities with Company AG. On 7 June 2022 leave was granted to the parties to adduce further evidence in the matter.
The Father relies on Company AG press release published on 5 May 2022. He submits that the mother has a position on the Company AG team for sports, which was omitted in her trial affidavit. He submits that due to this new evidence the court would not accept her position as to future income whether she lives in Sydney or Brisbane.
The mother contends that the press release is no more than publicity released by the Company AG, and that she remains engaged with Company AG as a freelancer. She contends that she does not form part of the Company AG’s public relations team.
The mother was cross-examined about her freelance work and the opportunities that may be available to her with Company AG in the future. Her evidence is dealt with below.
The further evidence adduced by the father does not change the matters dealt with at hearing, in that there is no evidence of employment with Company AG on a short or long term basis. The mother’s work with Company AG is likely to continue on an ad hoc basis, as referred to below.
Parties’ Health
The mother gave evidence about having a medical condition. The syndrome covers a variety of symptoms. For her it involves the movement of organs within the gut, and hyper mobile joints which cause pain, particularly in her back. It is not a condition easily diagnosed as there is no specific blood, or other, test for it. A physiotherapist treating her suggested that is the root cause of her various symptoms. She has had surgeries with respect to gut problems. She has described back pain that left her barely able to walk after frequent flights between Sydney and Brisbane in December and January 2022. The symptoms vary in type and severity.
The mother has had ongoing difficulties with her mental health. She receives treatment from a psychiatrist, Dr M, and psychologist Ms I. She has a long term general practitioner, Dr P, with whom she meets regularly. Both Dr M and Ms I provided evidence, and Ms I was cross examined.
Dr M has treated the mother since August 2021. Her psychologist was concerned that she may need pharmacological intervention, and had suggested she see a psychiatrist in 2020. During 2019 the mother was seeing a psychiatrist Dr H, however, that ceased. The mother has regular appointments with Dr M every 2 to 6 weeks, depending on the mother’s mental state.
Dr M has diagnosed the mother with a major depressive disorder with anxious distress; adult ADHD; binge eating disorder; alcohol use disorder. In her most recent report of 9 April 2022 the psychiatrist noted “she has much improved in all the symptoms with both pharmacological and psychological interventions. She carries a positive prognosis, especially if her psycho social stressors could be subsided in the future”.
It is clear from the evidence of her psychiatrist, psychologist, and Dr O, that the mother benefits from therapy. She is engaged in treatment, and is goal oriented. Dr M referred to her as “committed and diligent in practising healthy coping strategies”.
Dr O was concerned about the mother’s reliance on alcohol, and was of the view that the mother had alcohol use disorder in the moderate to severe range at the time of the report interviews. It was of particular concern that the mother, despite being engaged in a therapeutic relationship with her psychologist, had not raised her use of alcohol. The mother’s evidence is that at times of stress from 2019 she used alcohol about 4 nights a week, at 6 to 8 drinks. This was occurring at times the children were asleep, and she was the only adult in the home. She advised Dr O that there had been an occasion she had consumed alcohol in the morning.
The childcare attended by the children made a report to the Department of Communities and Justice (DCJ), that in October 2019 she arrived to collect the children smelling of alcohol.[5] A report was not made by the childcare on that day. The mother agreed that it was possible she had a drink before collecting the children. She was clear that she was careful with respect to her consumption if she had to drive. Her evidence is consistent with the childcare not reporting to DCJ, as mandatory reporters, on that occasion.
[5] Exhibit C1 p1748.
On 22 November 2019 staff at the childcare were concerned about the mother’s behaviour: she spoke very slowly, wore her sunglasses, and her manner was strange. This was linked in the report to the prior occasion of the mother smelling of alcohol in the report made to DCJ by the childcare.
The mother recalled in her evidence that at that time Y had been hospitalised. She swallowed the lid of a texta, choked and turned blue. Y required emergency surgery to remove the lid. Both parents were at the hospital, and X was cared for by the maternal grandparents. The mother’s evidence is that she had not slept for several days. She stayed awake with Y in hospital. After Y’s release from hospital she stayed awake monitoring her breathing. She recalled being a “zombie” at the time, worse than when the children were newborn. She denied drinking alcohol. I accept this evidence. It is consistent with the evidence from independent sources.
Dr M agreed with Dr O that the mother had an alcohol use disorder. Dr M provided the mother with very direct advice on the problems of alcohol consumption, including developing an understanding of the biological implications. I accept that the mother has taken on the advice of Dr M. Dr M regards the mother as now in early remission. She accepts that her alcohol consumption has significantly reduced since pharmacological treatment was provided for her depression and ADHD.
Dr O accepted Dr M’s view of the mother being in remission. If she continues on the same path, by August 2022 he would regard her as being in sustained remission.
The mother’s partner was unaware of the extent of her alcohol consumption. When he gave evidence he referred to the mother being concerned about her level of drinking, but that he had not observed her to drink in a way that was concerning to him. This suggests that the worrying consumption occurred in Sydney. There is no evidence that she has sought to hide the extent of her drinking from him in Brisbane. As a consequence of these issues Mr C has cut down on his drinking in support of the mother. The mother has started using an Oura ring to track her health, as part of minimising her use of alcohol.
I accept Dr O’s evidence that “the nature of alcohol is slippery”: drinking can become problematic very quickly. It is associated societally with celebrating, and commiserating. The evidence of Dr M and Professor N[6] supports that as at April 2022 the mother was either entirely abstinent, or drinking very little. With the assistance of Dr M, I accept Dr O’s view of her as a highly functional individual, who has applied herself diligently to getting alcohol consumption under control.
[6] Affidavit of Professor N filed 26 April 2022, page 8.
Dr M is clear in her report that it would be helpful for the mother if her “psycho - social stressors could be subsided”. A significant stressor for the mother is living in another state from her partner. She has been living between Brisbane and Sydney since 2019. This is also relevant to the mother’s punching the driveway and burning her hand in May 2021, which occurred shortly prior to the determination by the Full Court.
The father has had difficulties with depression. He has sought assistance, and benefited from it. I accept that he does not have any current mental health issues. I accept that the mother’s mental health fragilities are greater than the father’s.
Dr O accepted that a key recommendation made by him was for equal shared parental responsibility. He was supportive of a care arrangement for the children that was substantial and significant, somewhere between equal time and five nights each fortnight. If the children remain living in Sydney he regarded equal time as more realistic. This was to accommodate the mother moving between Sydney and Brisbane. He accepted more time in Brisbane would be good for the mother.
It became clear during his oral evidence that Dr O had not considered an arrangement where the father moved back and forth to Brisbane during school terms, rather than the children. He had been concerned that the children would not manage travelling more than once or twice a term, which would cause a significant diminution in their time with their father. A proposal where the school term for them was predominantly in Brisbane, with one weekend each term and half holidays in Sydney was considered by him to be manageable for the children.
EMPLOYMENT
The parties’ capacity to earn an income is significant for the children’s long term interests. There is an obvious benefit to them in having a reasonable standard of living, of similar standard in the households of each of their parents. There is a benefit to the children in having the role models of parents engaged in productive work. Employment has ancillary benefits in providing, particularly for goal oriented people such as these parents, satisfaction and a sense of self-worth. They have each argued the advantages of living in either Brisbane or Sydney respectively, as it impacts their employment.
The father is self-employed through a business Loverdos Pty Ltd trading as Company Q. He established the business in 2002. The father argues that were the mother permitted to relocate with the children he could not live in Brisbane, as he could not maintain his business from there.
The business currently has three employees. One of the employees has been in the business for years and is a professional. She is trusted by him to attend site visits on his behalf.
The Company R is the business’ major client. There are face-to-face meetings required for the Company R projects three to five times per week. The father conducts site visits on average three times per week in Sydney. The business has projects outside of Sydney, including one each in Brisbane, Melbourne, City AH and Asia. He does not conduct regular site visits on these projects. For example, he does not anticipate attending Asia at any time, and has attended City AH twice in 2022.
The father has a degree of control over his diary, and has flexibility to shorten or lengthen his working day. For example, he routinely leaves work at 2:30pm to collect the girls from school on days they are in his care. He is able to work longer hours when the children are not with him, and remotely.
His evidence is that the business suffered a downturn during COVID, however, that is turning around. He anticipates an income of $340,000 for the 2022 tax year, which is an increase on the previous year. He has been able to utilise director loans to assist in payment of legal fees for this litigation. He also owes his mother $221,000.
I accept the father’s evidence that he is required to attend meetings and site visits in Sydney. I accept that he is able to manage his diary, and fix appointments on particular days during the week. This means he could organise his work so he was not required to be physically present in Sydney each weekday. If he were not available to attend a site meeting, he has an employee who has the expertise to attend in his place.
I accept his evidence that some matters can be dealt with by video conference, but it does not substitute for people looking at a plan together, having discussions, and making adjustments. I accept that it would be extremely difficult for the father to continue to operate the business if he lived full time in Brisbane. His employees are Sydney based, his contacts are Sydney based, and most of his projects are in Sydney. As I understand his evidence, it would be possible for him to work remotely some days weekly.
The mother was previously an elite athlete. She is passionate about her sport, and women’s engagement in it. She has used her experience as an athlete to obtain employment in various ways. She previously worked for Company S on $100,000 per annum. She resigned in the face of rumours around her relationship with Mr C, following her work at a major sporting event in 2016. She was pregnant with Y at that time. She also worked in public relations for a major sporting event in 2018.
Her proposal is to seek work from public relations companies which can be done in Australia, so that she is not absent from the children for extended periods. For example, she declined work at a major sporting event, as she regarded it as being too long away from the children at their ages. She would assess any offer of work away from home depending on the children’s needs at the time. This limits her choice of work in public relations for major sporting events.
During the pandemic there have been opportunities in Australia. For example, events like the Event T that were covered by a television channel remotely. I accept this will not continue. The mother worked ‘hosting’ events like the Event T. Hosting involves packaging highlights of the footage from the night before, and chairing panel discussions.
The mother worked on the coverage of a major sporting event for a television channel in April 2022. The sports event now has a separate women’s event the day before the men’s event. This work involved attendance at the television studio in Sydney. Her evidence is the television channel are moving the base for events to Melbourne, as the employees are largely Melbourne based. This is consistent with the photograph relied on by the father to re-open the proceedings, that being a promotional photograph taken in front of the television studios in Location U, Melbourne.
The day rates of pay for the various types of public relations work undertaken by the mother differ between $1,200 and $750, depending on the role she is undertaking. If she is a guest on a programme, the fee is $750. When she is hosting the fee is $1,000, and public relations work is $1,200. Some longer events are done as a package, rather than at a day rate. She has an entity, Company V, through which she invoices work where insurance is required. Other work is invoiced privately.
She has pitched to do a daily highlights show of events like the Event T that would be produced out of Mr C’s studio in Brisbane, and sold to a television channel. She does not know if this pitch will be successful.
The mother has been involved with sporting events in Australia. For example, she is on the organising committee of the Event W, and the Event Z. These positions are voluntary. Taking on these roles assists her engagement with the community, and career opportunities. She has also worked on sporting events that are not broadcast, such as one in City AB. I accept her evidence that these engagements are not paid well for the amount of work and time involved.
The Event AC is taking place in City AD in late 2022. She has made enquiries of a television station for hosting opportunities. This would be 2 days of work, if she is successful.
The mother is keen to promote women’s athletics. She proposes working with Ms E, who gave evidence. Ms E incorporated a business, Business D (Business D), in 2014. She is the sole director and shareholder. The business has two parts. The first is her consulting work on improving Event AE. Her estimated turnover for that work is $200,000 per annum. The second is promoting women’s athletics through an app, and sale of associated merchandise. The income from that was $50,000 in 2021, of which $27,500 was from a grant from the Queensland Government. Ms E proposes working with the mother on the latter, separate from her consultancy work.
They set up a web based app in 2020. That is being shut down, to be replaced by a mobile app available for purchase through the App Store. The majority of subscribers to the current platform are located in south east Queensland. Plans for app development have been delayed by the pandemic, floods in south east Queensland, health issues for Ms E, and the mother’s absence from Brisbane. Ms E was unable to work for 6 months following an injury. Additionally she is living in South Australia whilst her partner works on a project there, related to re-building after bushfires in that State. Her return to Queensland has been further delayed by factors arising from the recent change of government in South Australia, which has impacted the project her partner is working on.
Ms E has taken advice from her accountant, and proposes formalising the separation of the two strands of her business, and entering a partnership with the mother for Business D. A partnership agreement has been drawn up, but not executed. The mother and Ms E are optimistic about the likely success of the Business D venture. Given the experience of both these women that is not an unreasonable expectation.
There was complaint that full disclosure of this venture has not been provided to the father, as was sought. I am satisfied that at the hearing evidence was available about the project’s financial viability. I accept that there have been various impediments to the progress of the project, but that it is being pursued by the mother and Ms E and has a reasonable prospect of success.
The third strand of the mother’s plan to earn an income is by creating videos for Business AF’s online platform, available on a subscription basis. She is able to utilise her partner’s studio to create high quality video required for this purpose.
The mother had a taxable income of $11,017 in the 2020 financial year, $11,325 in 2021, and anticipates a similar income this year. She pays $650 per week in rent. The money from her property settlement has been depleted on litigation costs, and living expenses. Like many in the community she was significantly affected by lockdowns in her ability to earn an income. As I understand it, she was not eligible for any government support. The father’s business was eligible for government support.
The mother proposes moving within Sydney for cheaper rental accommodation if she is not permitted to relocate. It is not clear given the late proffer of a child support agreement, what impact an extra $250 per week for a period of three years would have on her ability to remain within the area where she resides.
Dr O noted in his oral evidence that the financial situation between the parties was important. He observed that both parties are ambitious, active, and require agency. This accords with their respective presentations in the witness box. In this context he referred to proper resourcing for the mother as being significant in any resolution of the matter. Whilst financial matters are not within Dr O’s purview, as he was clear, they have a bearing on the mother’s well-being were she required to remain in Sydney. It was only after Dr O’s evidence that a proposal for a child support agreement was put by the father. This is despite the mother’s financial situation being an issue.
I accept that her work prospects would be improved by residing in Brisbane. She would be able to engage in Business D in the same place as the majority of subscribers. Public relations work for a television channel will be run out of a studio in Melbourne, which requires travel from either Sydney or Brisbane. Her ability to put together video packages of events, or to do promotional or other videos is assisted by the availability of Mr C’s studio and expertise for broadcast quality product.
I accept Dr O’s characterisation of the mother as altruistic and community minded. He referred to her as an “achiever”, and restless if she is not achieving. This is an example of the intersection between employment and mental well-being for the mother. I accept that a sense of fulfilment from an enterprise such as Business D is important for her. The children will benefit from their mother achieving in several ways. Her being happy and content is positive for her parenting, and consequently for their well-being. It also provides these young girls with a positive role model.
Support for the parents
In Brisbane the mother would have the day-to-day support of Mr C, including with care arrangements for the children. If she is required to travel for a day, or two days, care arrangements can be more easily managed by her.
The mother and Mr C have now been in a relationship for five years. Their relationship has survived the stress of extensive litigation, and residing in two different cities. I accept that theirs is a committed, long term relationship. They have each developed close relationships with the other’s children. Their children get on well. They were both clear that should the mother be unable to relocate they will find a way to make their relationship work.
The maternal grandmother has provided significant support to the mother. She lives nearby, and has stepped in to provide assistance on many occasions. She is close to her grandchildren. She has a good relationship with Mr C. The father has contacted her when concerned about the mother. She has maintained a civil relationship with the father, and they have been able to effect changeovers when required without difficulty.
The maternal grandmother was caring for the maternal grandfather as his health deteriorated. He was admitted to palliative care prior to the hearing. He passed away shortly before the application to adduce further evidence was heard.[7]
[7] Affidavit of Ms Bonnor, 3 June 2022 [9].
The maternal grandmother’s evidence is that she is contemplating moving to Brisbane. She took steps to ensure her husband was at a facility that would enable a transfer to their Brisbane equivalent. She was considering moving out of Sydney following his death, regardless of whether the mother moved. I accept that she will likely move to Brisbane to continue support for the mother and children.
The father is provided with support from his mother, uncle, and particularly his uncle’s wife. She attended the interviews with Dr O. She is developing a close relationship with the children, although she has not been directly involved in their care arrangements.
The paternal grandmother has a close relationship with the children. As she lives out of Sydney she is able to assist with scheduled care arrangements, but not if an emergency arises. The father has called on the mother when he needed assistance recently for X to attend hospital. He stayed with Y, and the mother took X to hospital. There would be difficulties if there was an emergency on the father’s alternate proposal of alternate weekends with the mother, and the children residing with him in Sydney. It would also be difficult on the mother’s third option, as she would be absent Sydney in alternate weeks. The father would need to juggle attending to the emergency and care of the other child, without the mother’s assistance.
PRIMARY CONSIDERATIONS
Section 60CC(2) The primary considerations are:
(a) Benefit to the children of having a meaningful relationship with both of their parents.
There is no issue that these children have the benefit of a meaningful relationship with both their parents. Both parents have supported a meaningful relationship between the children and the other parent, and I accept will continue to do so.
(b) The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There is no issue of the children being subjected to abuse, neglect or family violence.
ADDITIONAL CONSIDERATIONS
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.
The children are both of an age that their views are not significant in a determination of this issue. It is unlikely that either has a real concept of what it would mean to live in a different city to their father, or to have their mother living in a different city when she is not with them, or to live full time with their father.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents, and
(ii) other persons (including any grandparent or other relative of the child);
These children both have the benefit of loving relationships with each of their parents. The children have lived most of the time with their mother. Both parents propose significant, or equal time, should they live in the same place. The father’s alternate proposal if the children are not permitted to move, and the mother moves to Brisbane, is that she would see the children alternate weekends. They have never spent time so limited with the mother. The mother does not propose that would occur. She would instead arrange her life so that she lived alternating between Sydney and Brisbane.
As Dr O noted, these children are not burdened by their parent’s conflict. This supports a finding of both parents being child focused, and able to protect the children from exposure to the adult dispute. It is to their credit that they have managed this through extensive litigation, a previous final hearing, appeal and re-hearing. It also suggests that they will continue to manage when the pressure of litigation is gone.
The parents have both supported the children’s relationship with the other parent. A notable example of this was during the second lockdown. The father offered to have X at his home several days each week, so he could undertake some of the home schooling. The mother was concerned that with so much instability caused by the pandemic, it would be too much movement between houses for X. Instead, she suggested that the father participate in home schooling remotely. The parties agreed on fixed times, to make it routine like a school day for X. The mother set X up with her work materials, and ensured the father had copies. The father and X were joined by AVL, so that the father was on screen in front of X. By this method he took her through her lessons. The mother was able to leave the room and attend to other matters in the house. By agreement, the father texted the mother when X lost focus, or there was an issue with technology, or otherwise. There is no issue from either that this worked well for X. It also shared the burden of home schooling between each of them.
This example demonstrates the parent’s capacity to find creative solutions for their children. That it was the mother’s idea, which the father embraced, bodes well for future cooperation between the parties in assisting their children.
When X had breathing difficulties the father telephoned the mother for assistance. She immediately went to the father’s home, and took X to the hospital. He cared for Y, and the parties were able to communicate effectively with respect to X’s medical needs. The medical advice was that X was holding her breath, rather than having breathing difficulties. The mother was given strategies to deal with this, which she shared with the father.
These examples are demonstrative of the parents’ ability to set aside their differences to co-operate when it matters for their children. It supports a finding that they will both look at ways to support the children’s relationship with their father, living in a different city.
The children have close relationships with their extended maternal and paternal families. This is particularly so for the maternal grandmother, who has lived nearby and provided assistance and care to them their whole lives. She is likely to reside in Brisbane if the mother and children are living there. This will provide support to the children in settling into life in Brisbane. It is reasonable to expect that if she is not living there, she would nonetheless assist in that process.
The children are developing a close relationship with Mr C, and his children. They have recently rented accommodation large enough to give the various children their own space when they are all in the home.
Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
I accept that both parents take opportunities available to them. A consideration of this factor does not assist in determining the issues in this matter.
Section 60CC(3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
The father has met his obligations pursuant to a child support assessment. I refer elsewhere to his proposal made during the hearing of a child support agreement.
Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
AND
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
I accept that the father has the resources to arrange for regular accommodation in Brisbane. This could be done either through Air BnB, or serviced apartment type accommodation. Either can provide a practical, home style venue unlike a hotel. It is possible to make arrangements to rent either in advance, so that his time in Brisbane is spent in the same place if that is his preference.
The mother has been bearing the burden of being split between two cities. Although she has managed this, it has come at a significant personal cost. I accept that her functioning has been impacted by this split, which has implications for her parenting of the children. There is no issue that support from her partner would assist the mother to function better as a parent, with better mental health, on a day-to-day basis. There is no issue that the girls benefit from better functioning parents.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent of other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs.
AND
Section 60CC(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Within the material tendered by the parties, and referred to during the hearing, were many text messages passing back and forth between the parties. These demonstrate the parties’ ability to generally maintain a civil and functional relationship. I accept Dr O’s observation of the texts as mostly being “empathic and friendly”. These indicate that each of the parents have the capacity to set aside difficulties between them to promote the children’s best interests.
There are many texts, including photographs, about things like the making of hats for the Easter bonnet parade, the parade itself, getting Y to bed, children’s tantrums. The parents have demonstrated the capacity to engage in the day to day business of parenting, notwithstanding the extensive litigation.
Some communication has carried a burden for the mother, such as seeking the father’s agreement for payment of X’s therapy and coding classes. The father has regarded his requests for information of the when/where/how style as business like. The mother has regarded these as intrusive. I accept that it rankles the mother to feel that she is going “cap in hand” over money for something she regards as important for the children. Dr O referred to the mother’s stress at these types of exchanges, which would diminish were she better resourced.
The mother has concerns about the father’s parenting, such as, that he may limit their horizons as women, or engage in harsh parenting of them. It is within this context that issues were raised about misogyny. That is whether the father is a misogynist, or expresses misogynistic views that may be damaging to the girls. The other aspect of that is whether the children may become aware of these sorts of criticisms of him by the mother. This could damage their relationship with him.
As Dr O suggested, I accept he could be described as ‘a man of his generation’, and not a misogynist. An example of this is referring to women with whom he works as “the girls”, whilst it is clear he values their capacity and contributions. Dr O canvassed this, with people involved with the children, such as X’s psychologist, in reaching his conclusion. The parties’ legal representatives both accepted that on the evidence I would not find that the father either is a misogynist, or expresses damaging misogynistic views.
I accept that the mother, is ‘a woman of her generation’. She is aware of the damaging effects of misogyny, use of gendered language, and body shaming on girls and women. She is keen to see societal changes in attitude that properly acknowledge the roles of women. She is irritated by any suggestion that women should take the administrative role in households, for example, in order to facilitate men’s work. Her work with the enquiry into women’s athletics has no doubt sharpened her concern about the harm of outdated thinking about women and girls.
I accept that there is a cumulative effect to these kinds of matters for women generally, and in the context of a relationship. Remarks in texts that may seem innocuous to the outsider have an edge when sent or received by former partners. There are text exchanges where her frustration with the father over these kinds of issues bubble up. It was an issue that she discussed with Dr O.
Accepting the mother’s complaints about the father at face value, Dr O’s evidence is that the father is unlikely to act towards his daughters as the mother experienced him. I accept Dr O’s evidence that the father wants his girls to achieve whatever they wish for, on their own terms. I do not doubt his support for them.
Ensuring that the children spend regular time with their father, gives them the benefit of lived experience with him. I accept this can ameliorate any critical views held by their mother in two ways. Firstly, their experience of his love and support for their interests provides a counterweight to any negativity of their mother. Secondly, their mother’s observation of the strength of those relationships is likely to quell any of her anxieties. The evidence supports that despite texts where the father reasonably perceives himself attacked by the mother, this has not impacted the children, nor the father’s relationship with them.
There is a degree of distrust between the parties. This was evident in cross examination of the father about occasions the mother has requested he spend additional time with the girls. He said this was dependent on the “context”. This is part of the same issue, from the mother’s perspective, as her being required to provide the minutiae if she requests additional financial contributions for the children. If, for example, the mother required the father to care for the children so she could attend to her mental health, she should feel comfortable to approach him. If, however, she experienced his questioning of her to be invasive about why it was necessary, she would be unlikely to ask for help. This could be to the children’s detriment.
Dr O noted that each parent had some element of immaturity when dealing with the other. I accept that communication is a two-way street, and the mother’s experience of the father would mean she knows that providing a degree of context is helpful for him to consider a request.
I accept that a high level of pragmatism is part of the father’s make up. An advantage of this is that he has sought, and utilised, advice from others about the children.
Dr O spoke of the concept of ‘good enough’ parenting. He explained this as meaning good enough to give solid foundations to the children. Some failings in the parent can benefit children, by equipping them to adapt, and giving them a realistic sense of how the world works. He used the example that if the father is not always emotionally attuned to the children, and they feel sometimes that he does not “get” it, the strength of their relationship otherwise will mean they manage that.
The father is a diligent and loving parent. The children have a strong relationship with him. I accept that the father has the parenting capacity to maintain that strong relationship across geographical distance. The circumstances of the pandemic required creative solutions to problems. Both parents participated in finding solutions, and carrying them out, to their children’s benefit. I accept they will continue to do so.
Section 60CC(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
The parents are of similar cultural background, and a consideration of this factor does not assist to resolve the issues.
Section 60CC(j) any family violence involving the child or a member of the child’s family:
There is no current issue of family violence raised by either party. The mother experienced the father as coercive and controlling. Given the parties’ level of co-operation post separation, this is not an issue requiring determination.
Section 60CC(k) if a family violence order applies, or has applied, to the child or a member of the child’s family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
There is no family violence order.
Section 60CC(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceeding in relation to the child
Dr O referred on a number of occasions in his evidence to the need for orders to be specific and clear to prevent further litigation. He regarded both parents as being practical people, who will cope better with a clear path to navigate. This is the case whether the orders go for, or against, their desired outcome.
A conclusion to litigation will likely assist the mother’s mental health. It is highly preferable for there to be orders that do not lead to further litigation.
Dr O suggested that orders may need to specify a time from which the children could make their own decision about their care arrangements. When the children are in teenage years I accept that they desire to spend more time with their friends, and those relationships start to take precedence. That is some years away for both these children. Neither party supported Dr O’s suggestion. Nor can orders achieve what Dr O envisaged. It is the court’s responsibility to make orders which finalise the litigation. If either party wishes to bring further litigation in the future, there are hurdles that will need to be overcome.[8] That is the way such issues are managed in accordance with law. It is hoped that will not be required, given the detriment of further litigation.
[8] Rice & Asplund [1978] FamCA 84.
PARENTAL RESPONSIBILITY
Both parties seek orders for equal shared parental responsibility. I accept that their communication is sufficient to support such an order.
CONCLUSION
Dr O referred to the benefit for the children if there was some magic land where both parents could keep live happily in the one town. That is not an option in this matter.
Considering options where the children reside in Brisbane, Dr O was of the view that alternate long weekends with the father in Brisbane were best, because it maintained the connection between the father, the children and ordinary things like school, sport and the like. That would not preclude a weekend in Sydney during the school term. School holidays can occur in Sydney, or elsewhere should the father choose. Dr O was clear that he is not in favour of weighting the holidays in favour of one parent. As he put it “children are sacrificed on the altar of evenness”. I accept that evidence.
The orders provide for either an alternate weekend arrangement from Friday to Monday, or alternate Wednesday to Monday, depending on the father’s decisions about where he chooses to live. I accept his evidence that he cannot live fulltime in Brisbane, however, that may change in the future. It may be he can organise himself to allow alternate Wednesdays to Mondays in Brisbane. I am satisfied that on either proposition, the children will have the benefit of their meaningful relationship with him continuing. He is a dedicated and practical parent who has the capacity to make these arrangements work.
School terms are usually between 8 to 10 weeks duration. I accept that there are benefits for the children maintaining their connection to the broader paternal family, which can occur over holidays and on one weekend during each school term. This would not overly burden the children with travel, and gives the father weekend time with them in his home. It means the father will spend time with them in Brisbane on 3 to 4 occasions each school term.
I accept the submission of counsel for the mother that there are potential difficulties for the girls in seeing their mother settled in a home with Mr C and his children when they are not with her. That would be the outcome were orders made for the children to continue to reside in Sydney.
I also accept that the mother has had difficulties with her mental health where she has carried the burden of moving between Sydney and Brisbane. It is in the context that the issues of alcohol use arose. It is not in the girls’ best interests to have their mother not functioning well.
The way the mother earns an income requires her developing and maintaining different streams of work. She needs to be available to take up opportunities where the timing is not of her choosing. Her capacity for work would be assisted by her not living between Sydney and Brisbane. She would also have the benefit of access to the studio, and expertise of Mr C in Brisbane.
The father has an established business, and the assistance of employees. I accept that the children being in Brisbane will not be easy for him. However, he has control of his diary and work schedule. He can plan around time with the children, as he does at present. The prospect of the children living with their father in Sydney and spending alternate weekends with their mother is not realistic for their emotional needs. They have never spent so little time with their mother on an ongoing basis. There is also the practical difficulty of the support available to the father should there be a health emergency, for example.
Each of these parents have a great deal to offer their children. They have demonstrated that that they are able to make arrangements so that X and Y can continue to have a meaningful relationship with each of them. These children have close relationships with their father, which the mother has supported. I accept that those relationships can be maintained and developed whilst the children live in Brisbane.
I certify that the preceding one hundred and twenty-nine (129) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Boyle. Associate:
Dated: 7 July 2022
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