MACE & MACE
[2019] FCCA 2969
•15 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MACE & MACE | [2019] FCCA 2969 |
| Catchwords: FAMILY LAW – Interim hearing – parenting – proposed relocation – where the father sought to prevent the mother from altering the children’s place of residence – mother granted leave to relocate children’s place of residence whilst they are in her care. |
| Legislation: Family Law Act 1975 (Cth), ss.63C, 60B, 60CA, 60CC, 61DA, 65D, 65DAA 79 Federal Circuit Court Rules 2001, rr.1.06, 4.01 |
| Cases cited: Goode & Goode (2006) FLC 93–286 |
| Applicant: | MR MACE |
| Respondent: | MS MACE |
| File Number: | SYC 6319 of 2018 |
| Judgment of: | Judge Morley |
| Hearing date: | 20 September 2019 |
| Date of Last Submission: | 20 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 15 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lioumis |
| Solicitors for the Applicant: | Newnhams Solicitors |
| Counsel for the Respondent: | Ms Winfield |
| Solicitors for the Respondent: | Dc Balog & Association |
ORDERS
The parties have equal shared parental responsibility for [X], born … 2006 (“[X]”), and [Y], born … 2009 (“[Y]”).
The children live with each of the parents on a week about basis, with changeover during school term occurring at the end of school on Friday.
During the week during school term that the children are in the mother’s care pursuant to these orders, they will spend time with their father from after school Wednesday until 8:30pm.
During the week during school term that the children are in the father’s care pursuant to these orders, they will spend time with their mother from after school Wednesday until 8:30pm.
During school holidays at the end of terms 1, 2 and 3, the children will continue to spend time with their parents in a week about pattern pursuant to order 2 of these orders, unless otherwise agreed between the parties.
During the Christmas school holidays at the end of term 4 of each year, the children are to spend half the holidays with each of their parents, being the first half of the holidays with the father in even numbered years, and the second half of the holidays with the father in odd numbered years, and the first half of the holidays with the mother in odd numbered years, and the second half of the holidays with the mother in even numbered years, unless otherwise agreed between the parties.
The mother has leave to relocate the children’s place of residence whilst they are within her care to any place in the Southern suburbs of the Town A area.
Unless otherwise agreed between the parties in writing, [Y] will continue to attend School B until completion of her primary schooling, and [X] will continue to attend School C, until the completion of her high schooling.
Unless otherwise agreed between the parties, [Y] will attend a high school in the general Region D, and not in the Town A area.
All changeovers for the children at start and finish of time with a parent, when not occurring by collection from, or return to school, take place at School B, unless otherwise agreed between the parties.
Without any admissions by either party, each of the parents is restrained from denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household in the presence of, or within the hearing of the children.
Without any admissions by either party, each of the parents is restrained from allowing the children, or either of them, to remain in the presence of any third party who is denigrating the other parent, any member of the other parent’s family, or any member of the other parent’s household in the presence of the children, or within the hearing of the children.
Any written submissions in relation to costs by the mother are to be submitted to Chambers by no later than 4:00pm on 14 November 2019.
Any written submissions in reply to the mother’s application for costs to be submitted to Chambers by no later than 4:00pm on 6 December 2019.
IT IS NOTED that publication of this judgment under the pseudonym Mace & Mace is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 6319 of 2018
| MR MACE |
Applicant
And
| MS MACE |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons were delivered orally.
These reasons relate to an interim hearing that took place on 20 September 2019 between the father as Applicant, on an Application in a Case, and the mother as Respondent, relating to parenting issues concerning their children.
There are two children of the relationship, [X], born … 2016, 13 years of age (“[X]”), and [Y], born … 2009, 10 years of age (“[Y]”).
The issue in dispute at the interim hearing relates to the father’s Application to prevent the mother from altering the children’s place of residence outside a radius of 15 kilometres from School B.
The parents commenced cohabitation in June 1991, were married on … 1991, separated in September 2016, and were divorced on 6 October 2017. There were four children in their marriage; Ms K Mace, Mr N Mace, [X] and [Y]. Ms K Mace is 21 years of age and lives independently in the Northern Territory. Mr N Mace is 20 years of age and a university student, living between the parties. [X] attends School C and is in year 7, and [Y] attends School B and is in year 4.
Hereafter I will refer to [X] and [Y] as the children. Since the parents separated, the children have been living between the parents on an equal time basis. Following what may have been a Family Dispute Resolution mediation through Family Relationship Centre E in May 2018, the parents entered into what the father in his affidavit referred to as a ‘parenting plan’, confirming the equal shared care arrangement on a week-about basis and spending time with the parent with whom they are not then living from after school until 8.30pm on each Tuesday and Thursday.
The father annexes a copy of the purported parenting plan as Annexure A to his affidavit. I note that the copy so annexed is not a parenting plan as it is not signed by the parents, referring to section 63C(1) of the Family Law Act1975 (“the Act”). The care of the children has been shared between the parents on this week-about basis since separation.
Procedural History
These proceedings are commenced by Initiating Application filed by the father on 3 October 2018, in which he sought only final orders relating to property settlement between the parties under section 79 of the Act. The mother joined in the proceedings by filing a Response on 9 November 2018 seeking interim and final orders relating only to property settlement matters also.
Prior to the commencement of the proceedings by the father, the parties’ former matrimonial home at Property F had been sold and the proceeds of sale were held in a bank account. On the first return date of the matter on 14 November 2018, consent orders were made releasing an equal sum by way of interim property settlement for each of the parties and adjourning the matter to 9 April 2019 for further mention.
At that further mention, an order was made for the parties to attend a Conciliation Conference and the matter was further adjourned to 24 May 2019. That date appears to have been administratively adjourned to 25 July 2019 and the appointed Conciliation Conference did not occur.
The matter was further mentioned on 25 July 2019. Further order for Conciliation Conference was made and the matter adjourned to 1 November 2019 for further mention. On 5 August 2019, the father filed through his solicitors an Application in a Case seeking the parenting orders that I have set out hereunder.
The father did not file an Amended Initiating Application seeking final parenting orders. I note rule 4.01(3) of the Federal Circuit Court Rules 2001 (“the Rules”) provides:
A person may not file an application for an interim or procedural order unless: (a) an application for a final order has been made in the proceedings, or (b) the application includes an application for a final order.
I interpret that rule to mean that a party must not file an application for an interim order unless an application for a final order of the same nature has already been made.
When the mother filed her Response to an Application in a Case on 13 October 2019, she also sought an interim order, though not strictly a parenting order as it related to where the mother may reside, without mention of the children. Pursuant to rule 1.06:
The Court may in the interests of justice dispense with compliance, or full compliance, with any of the Rules at any time, and if a direction or order is made that is inconsistent with any of the Rules, the direction or order of the Court prevails in the proceedings.
The non-compliance by the father with rule 4.01(3) was not raised prior to interim hearing by either the Court of its own motion or the mother, and I will make an order dispensing with compliance by each the father and the mother with rule 4.01(3).
The issue that arose on the interim basis was the mother’s desire to relocate the children’s place of residence when they are living with her to the Town A area in Region D of New South Wales, and in particular, to the suburbs of Suburb G or Suburb H.
The father opposed this relocation of the children’s place of residence and opposed their place of residence being relocated any further than a 15-kilometre radius from School B whilst they are residing with the mother.
The orders proposed by the parties
The father, in his Application in a Case, sought the following orders:
a)That the parties have equal shared parental responsibility for the children;
b)That the mother be restrained by injunction from relocating the children’s residence outside of a 15-kilometre radius from School B;
c)That should the mother relocate to a residence outside of a 15-kilometre radius from Suburb J, the children live with the father and spend time with the mother as agreed and/or in accordance with the children’s wishes;
d)That should the mother continue to reside within a 15-kilometre radius of School B, the children live with the mother and father in an equal time arrangement as follows:
i)In week one, first with the father from Monday to before school Friday. Second, spend time with the mother from after school Wednesday to 8.30pm. Third, spend time with the mother from after school Friday to Sunday.
ii)In week two, with the mother from Monday to before school Friday. Second, spend time with the father from after school Wednesday to 8.30pm. Third, spend time with the father from after school Friday to Sunday.
e)That the Respondent mother pay the Applicant father’s costs in respect of the application.
In the case outline document provided to the Court by Counsel for the father on interim hearing, the father sought the following interim orders:
a)That the parties have equal shared parental responsibility of the children;
b)That the mother be restrained by injunction from relocating the children’s residence outside of a 15-kilometre radius of School B;
c)That should the mother relocate her residence outside of a 15-kilometre radius of Suburb J, the children live with the father and spend time with the mother as agreed.
The mother, in her response to Application in a Case, sought only the following orders:
a)The Respondent be permitted to reside at Location I, Suburb G (Region D) or within a five-kilometre radius;
b)That the Applicant’s application be dismissed with costs.
As referred to above, neither party sought any final parenting orders and, in effect, the mother sought no interim parenting orders. With the best interests of the children as the paramount consideration, I have approached this matter on the basis of the real intent of the parties in their applications. That is, that the mother seeks to relocate not only her own place of residence but that of the children during the alternate weeks that they are in her care from a current rental accommodation at Suburb J to rental accommodation in the southern suburbs of the greater Town A area.
The Evidence
At the interim hearing, the father was represented by Ms Lioumis of Counsel. He relied on his affidavit sworn 1 August 2019, and Ms Lioumis provided a Case Outline document and made submissions on his behalf.
The mother was represented by Ms Winfield of Counsel. She relied on her affidavit sworn 13 August 2019, her affidavit affirmed 19 September 2019 and the affidavit of her partner, Mr K affirmed 19 September 2019. Ms Winfield provided an Outline of Submissions, List of Documents and a Chronology.
The address given by the father on his affidavit sworn 1 August 2019 is that of the former matrimonial home, being Property F, however that property had been sold by the parties prior to the matter first coming before the Court on 14 November 2018, as on that day, consent orders were made dealing with part distribution of the proceeds of sale of that property that were held in a bank account for the parties. The mother deposes that the former matrimonial home had been sold in April 2018.
In the father’s Initiating Application filed in October 2018, he asserts that his residential address is care of the address of his solicitors in Castlereagh Street, Sydney, and that the mother’s residential address is at the former matrimonial home. Neither assertion could be correct.
The form for Initiating Application, in part A, requires parties to state their address for service, and in another part, provides for a party to state their residential address if they choose so to do, though it is not compulsory to provide that address. The father has provided the address of his solicitors as his residential address, but as I have noted, that cannot be correct.
The Father’s Evidence
The evidence of the father relevant to the issues in the interim hearing is as follows.
On 20 July 2019, the father received an email from the mother in the following terms:
Hi Mr Mace,
We have just talked to the kids, telling them we have been given notice to vacate this house.
We have decided to settle in Region D, and plan to commute to continue the girls’ schooling down here.
I think it is important to keep you posted as the kids may be quite emotional about this, understandably.
Ms Mace.
Sent from my iPhone.
The father replied by email the same day in the following terms:
Hi Ms Mace
That is very unfortunate you have to move.
This is going to be very, very upsettling [sic] and unsettling for the children.
A stable and familiar school environment and community is so important for the children’s well being and as such, they must stay in their current schools.
Have you considered Suburb L or even Suburb M as the rent is less than what you are paying, rather than a drastic move to the Region D.
Staying in the area would be far better for our children’s stability, including Mr N Mace.
I’m sure none of the children want to move to Region D.
Mr Mace.
On 23 July 2019, the father instructed his solicitors, Newnhams Solicitors, to write to the mother’s solicitors, which those solicitors did on that day, indicating the father did not consent to the mother relocating the children to the Region D and advising:
Unless we receive an undertaking from your client that she will not relocate within a 10-kilometre radius of her current residence, we put your client on notice that our client will be filing an urgent interim application seeking injunctions to same effect. Should this be necessary, costs will be sought.
On literal reading of the undertaking required, it would seem to have allowed the mother to relocate to anywhere she chose other than a place within a 10-kilometre radius of her current residence.
On 25 July 2019, the matter was before Her Honour Judge Neville for mention in relation to the existing property settlement proceedings and the issue of the mother’s proposed relocation was mentioned by the solicitor advocate appearing on behalf of the father, and responded to by the solicitor advocate appearing on behalf of the mother.
The undertaking sought from the mother in the letter from the father’s solicitors of 23 July 2019 as referred to above, and the court was advised on behalf of the mother that no such undertaking would be given.
On 30 July 2019, the father instructed his solicitors to write to the mother’s solicitors, which they did, in the following terms:
We refer to the above matter and your client’s proposed relocation. We are instructed that your client is considering properties in Suburb L to rent. We confirm that should your client provide an undertaking that she will not move further than Suburb L by 5pm 30 July 2019, our client will not file his application to restrain your client relocating.
On 31 July 2019, the father’s solicitors received a letter of response from the solicitors for the mother, D.C. Balog & Associates, in which those solicitors confirmed that no undertaking as sought by the father would be given by the mother, and advised:
Our client’s landlord has advised her that she needs to quit the premises and having found she is unable to afford to live in suitable accommodation in Sydney, it is in the best interests of the children that she would move to Region D which is only a one hour drive from Sydney.
And:
There will be very little change to the current arrangements in respect of the children, who will remain at the same schools and spend the same time with your client.
The father asserts that the mother was paying $850 for her accommodation at Suburb J, being a property with four bedrooms and two bathrooms. The father does not specify what period is covered by the $850, whether weekly, fortnightly or monthly, but good sense tells us that he meant weekly.
The father annexes to his affidavit various asserted available rental property listings downloaded from internet searches, asserted by him to be examples of:
…suitable three and four-bedroom properties within 15 kilometres of School B…and at a cost of $495 to $610 per week.
The father deposes that the children have:
…lived their entire lives in … Sydney. They have a strong friendship groups at school and enjoy school and the area they live in. Both children are: ensconced in the community, attending soccer, church youth group and other community events.
The father deposes that on 20 July 2019, [Y] sent him text messages as follows:
We are moving again to Region D, an hour away from my friends, my school, my everything.
And:
I don’t live near my friends. They can’t visit me.
The father does not indicate if these two text messages were part of a chain of text messages between himself and [Y] or if they were isolated text messages, as the wording of the second text message would seem to contradict the father’s evidence set out in paragraph 36.
The former matrimonial home, “the house the children grew up in”, was sold by the parties in April 2018.
The father asserts that:
Moving to the Region D would make it difficult for the children to spend time with their friends outside of school hours, or participate in the usual activities on [the mother’s] weeks.
The father asserts that for the children to reside in Region D, south of Town A, they would need to travel by two trains and a bus in each direction to go from home to school and back, and that to arrive at school by 8.45am, the children would need to board a train at Town A at 6.53am:
The father asserts:
In the afternoons, the children would not arrive back to Town A station before 5.06 pm.
The father compares this to the current circumstances where he drives the children to school whilst they are living with him, and that [X] catches a bus to school and [Y] walks to school when they are living with their mother. The drive from the father’s house is asserted to be “5 to 10 minutes”, and that the walk for [Y] takes “about 2 minutes” to school from the mother’s house. For [X], it is a trip of “about 10 to 15 minutes by bus”.
The father then gives some evidence about his willingness and availability to care for the children on a fulltime basis week by week, rather than on the alternative week basis, in the event that the mother relocates to the Region D, leaving the children to live with him on the fulltime basis. I take it that the arrangement referred to in the evidence by the father reflects the arrangements that pertain during the alternate week when the children are living with him under the current arrangements.
The Mother’s Evidence
The evidence of the mother relevant to the issues on interim hearing in her affidavit sworn 13 August 2019 is as follows.
The mother confirmed that existing care arrangements for the children were that they resided with the parties in a week-about arrangement without any formal orders having been made under the Act.
The mother deposes that she takes:
…Efexor and Lamictal to deal with long-term depression. This is managed by a psychologist and by her general practitioner…
The mother’s only qualification, and only work experience, is as a technician.
The mother pays one-half of the children’s school fees and assumes that the father pays the other half.
The mother pays:
…all the extracurricular fees such as the soccer for [Y] of $300 per term and her soccer equipment.
The residence occupied by the mother and her partner and the children when they are in her care, and “our” dog, N, at Location O, Suburb J is leased by her at a rent of $850 per week.
The mother asserts, in her evidence, and it was not objected to on interim hearing:
Because of my low income, I cannot afford the rent.
The mother gives evidence, and it was not objected to on interim hearing:
My partner is on payments from Centrelink and has no money to meet the rental.
The mother was given notice to quit the home as at 17 October 2019, being the date required for quittal.
The mother deposes:
I spent some time looking in the Region P area but cannot afford the prices. I have found, in the Region D, many affordable, beautiful houses close to the beach which are available for $600 per week with three bedrooms and two bathrooms.
The mother deposes:
I am intending there will be no change in the children’s schooling and no change in the time they spend with their father. The only change will be increased travel time from the Region D to Suburb M, which is minimal. Further, I would drive the children myself or accompany them if I decide we should travel on public transport.
The mother works in Suburb M, and she mother expands on this aspect of her evidence further in her later affidavits detailed below.
The mother deposes that if living in Region D, she will have support from her mother and a close family friend, Ms QMs Q, who “lives close by.” The mother has no family in Sydney.
The mother refers in her evidence to a matter relevant to the issue, being the children’s relationship with their brother, Mr N Mace, who is a student at R University. She deposes that there will be a room for him at any place at which she resides, should he choose to reside there at any time.
Under a current Child Support Assessment issued 5 August 2019, the father pays to the mother by way of child support for the children $56.34 per week.
The evidence of the mother relevant to the issues on the interim hearing in her affidavit affirmed 19 September 2019 as is follows.
The mother intends to drive the children to school every day of the alternative week that they reside with her under the present week-about care arrangements if she moves to the Region D.
The mother works at Suburb M three days a week and on the days that she is not working, she would drive the children to school, wait, and drive them home. She deposes that she may find extra work during those school days on which she is currently not working.
In the event that one of the children is unable to attend school due to illness or other cause, then her partner, Mr K, the maternal grandmother or Ms Q (presumably a reference to the Ms Q referred to in the mother’s earlier affidavit) can stay with the child. The mother deposes that she has asked each of them if they would be available so to do and they have each confirmed that they would.
The mother deposes that the paternal grandmother, Ms R, resides at Suburb S, which is nine kilometres from Suburb H/Suburb G and that Ms Q lives in Suburb H.
The mother deposes that she has “now missed out on the Suburb G property” that she made reference to in the orders sought in her Response to Application in a Case.
The mother asserts in her evidence, and it was not objected to on interim hearing that:
To stay in the Suburb M/Suburb J area at $600 or less, I would probably have to get a 3-bedroom unit, which is less desirable and I would have to give the dog to [the father], which would upset the children.
The mother refers to the addresses of four properties that she has seen advertised, three in Suburb H and one in Suburb G, at weekly rentals between $540 and $600, presumably, per week.
The mother relies on the evidence of her partner, Mr K in his affidavit affirmed by him on 19 September 2019, which, relevant to the issues on interim hearing, is as follows.
Mr K is in receipt of Newstart payments from Centrelink and due to a family tragedy …, he has been emotionally affected and his ability to work to his full capacity is affected.
Mr K asserts that he is beginning to apply for work but will be able to better pursue that aim once it is clear where he and the mother and the children, when they are in the mother’s care, will live. He has in the past conducted a business on his own behalf as a professional.
The evidence presented for the mother did not detail how many days per week she attends employment at Suburb M. In response to a question from me, I was advised by Ms Winfield, on instructions, that the mother works two and a half days per week as a technician.
Ms Lioumos, for the father, set out brief submissions in her Case Outline document on behalf of the father and made oral submissions on his behalf on interim hearing. Ms Winfield provided written submissions on behalf of the mother in her outline of submissions document and also made oral submissions on behalf of the mother on interim hearing.
The Law
The Full Court and High Court have authoritatively discussed the approach to be followed in interim parenting hearings by reference to the legislative pathway.[1]
[1] See Goode & Goode (2006) FLC 93 - 286 and MRR & GR [2010] HCA 4.
In Goode & Goode, the Full Court suggested that on an interim application relating to parenting issues, the Court should follow the framework set out in paragraphs 81 and 82 of that judgment, and I incorporate those paragraphs in this judgment:
[81] In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
[82] In an interim case that would involve the following:
(a) Identifying the competing proposals of the parties;
(b) Identifying the issues in dispute in the interim hearing;
(c) Identifying any agreed or uncontested relevant facts;
(d)Considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)Deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the court does not consider it appropriate to apply the presumption;
(f)If the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)If the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)If equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA (3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) If neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) If the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)Even then the court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the court considers after affording procedural fairness to the parties it to be in the best interests of the child.
As is made evident in the cases, and in particular in Goode & Goode, the statutory pathway applies in interim as well as final hearings. In cases of dispute or contested evidence in interim proceedings, the Court should be cautious in making findings of fact where there is contested evidence.
Section 60B of the Act sets out the objects of part VII of the Act relating to children that inform the making of parenting orders and the principles behind those objects. I have considered those objects and the principles behind those objects in formulating these reasons and I keep them in mind when I formulate the parenting orders that will result from these reasons.
Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child or the children as the paramount consideration.
Section 60CC of the Act provides that in parenting orders regarding a child’s best interests, the Court must consider the primary considerations set out in subsection (2), noting the waiting requirement in subsection (2)(a) and the additional consideration as set out in subsection (3).
Section 61DA(3) provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child. When the Court is making interim orders, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making the order. The presumption does not apply in certain main circumstances relating to abuse of a child or family violence.
The presumption can be rebutted, in which case the Court must then go on to decide what parental responsibility order should be made, if any, in the best interests of the children.
I turn to section 65DAA. If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must first consider whether the child spending equal time with each of the child’s parents would be in the best interests of the child and reasonably practicable and if it is so in the best interests of the child and reasonably practicable, go on to consider making an order for the child to spend equal time with each of the parents.
If equal time is found not to be in the child’s best interest or impracticable, or is found to be in the child’s best interests and practicable, but the Court considers and rejects equal time with each parent as a result of consideration of one or matters in section 60CC, then the Court must consider making an order that the child spend substantial and significant time (as defined in section 65DAA(3)) with the parent with whom the parent does not live on the same triple step basis as for the consideration of equal time.
Under the combination of sections 60CA, 60CC, and 65D if neither equal time nor substantial and significant time is considered to be in the best interests of the child, or is impracticable, or is considered to be in the best interests of the child and practicable, but the Court after considering making such an order does not do so, then the Court may make such orders as in the discretion of the Court it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC. The process is one involving the exercise by the Court of a judicial discretion.
As was said by the High Court in Bondelmonte & Bondelmonte[2] at paragraph 32 of the joint judgment of the bench:
[32]A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the Court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion [Norbis v Norbis (1986) 161 CLR 513 at 518], as does the overall assessment of what is in the best interests of the child.
[2] Bondelmonte & Bondelmonte (2017) 259 CLR 662.
Before beginning a determination of what is in the children’s best interests by consideration of the primary and additional considerations in section 60CC, I turn to the guidance of the Full Court of the Family Court of Australia as to the proper approach on an interim basis to the issue of relocation of children to a place a significant distance from one of the child’s parents. In this case, the issue relating to the distance being proposed by the mother and opposed by the father which the children would be relocated is not so much an issue of the distance between where the children would then be living whilst in the mother’s care and where the father resides, as an issue as raised by the father of the distance between where the children would reside while they were in the mother’s care and where they are attending school, and the difficulties the father asserts would arise due to that distance and the children having the opportunity to interact socially with their friends and be part of the community that they have, until now, been used to.
When considering the best interests of the children I remain mindful that for half the time, that is every second week, the children will be continuing exactly as they have been, in effect since separation, because they will be continuing to reside for half the time with their father, presumably in the general Region P area around Suburb J. The father does not give evidence as to where he is currently residing, and the evidence in paragraph 21 of his affidavit as to how the children travel to school and how long it takes does not assist, as he only deposes that:
The children are currently driven to school when they are living with me.
And:
There is also plenty of public transport options near my home for the children to get to and from school.
I am not given evidence by either party of the travel distance between the area in which the mother seeks to take up residence and the children’s schools, or the father’s place of residence, which is an unknown. I am only given the father’s evidence in paragraph 22 of his affidavit, not objected to on interim hearing, that:
Such travel would likely take more than one hour in each direction, and may be far more depending upon traffic and where in Region D the mother moves to.
The mother’s evidence in paragraph 41 of her affidavit sworn 13 August 2019, was not objected to on an interim hearing. She asserts that:
The only change will be increased travel time from the Region D to Suburb M which is minimal.
As noted above, the mother has deposed that she does not intend any change in relation to the children’s schools or any change in the time that the children spend with their father. That does not mean that there will not be change that can have an effect on the best interests of the children, for example, increased travel time to and from school during the week when in the mother’s care, distance from their friends and familiar social life during that week.
These proceedings are for orders on an interim basis. In determining whether to make orders as sought by the father requiring, in effect, that the mother not change the children’s place of residence during the time they were in her care to a place outside a 15 kilometre radius from School B, or in the alternative, that if the mother does relocate outside that radius the children live with the father and spend time with the mother as agreed, or whether to make orders as sought by the mother that would enable her to relocate the children’s place of residence while they were in her care to the southern suburbs of Town A in Region D, any such order being pending a final hearing of the Court, is, of course, not determining the “relocation” issue on a final basis, but only on the basis of what parenting arrangement is best in the interests of the children between the making of interim orders and the making of final orders after a full hearing with testing of all the evidence with, if ordered, the assistance of some expert social science evidence by way of a Family Report.
In making the determination of what is in the best interests of the children as the paramount consideration, I must evaluate the competing proposals of the parties, that is, to move or to prevent the move, in the light of the primary and additional considerations set out in section 60CC of the Act and after consideration of the presumption relating to parental responsibility in section 61DA and if then relevant, the matters in section 65DAA as already referred to.
The legislative pathway does not make any distinction between the approaches to be taken in determining what is in the best interests of a child in a “relocation” case and in any other parenting issues case as indicated in Sayer & Radcliffe & Anor:[3]
[47] It is now well-established principle that, while some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathway 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.
[3] Sayer & Radcliffe & Anor (2012) 48 FAM LR 298.
See also Morgan & Miles[4] and Palmer & Hammer.[5]
[4] Morgan & Miles (2007) 312 FLR 114.
[5] Palmer & Hammer (No.2) [2011] FamCAFC 196.
In Sayer & Radcliffe and Anor at paragraphs 48 to 54, the Full Court discussed the relevant principles that apply in parenting situations that involve a relocation issue. I incorporate paragraphs 48 to 54 in these reasons:
[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 (No 2) at [76]; Morgan at [80]-[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.
[49] The provisions of the Act which form that legislative pathway have been reproduced at length by this court many times: Taylor v Barker (2007) 37 Fam LR 461; [2007] FamCA 1246, Morgan (above), Adams v Randall (2011) 46 Fam LR 453; (2011) FLC 93-482; [2011] FamCAFC 204. It is sufficient for current purposes to identify and summarise those sections contained in Pt VII of the Act which govern decisions about children, and consider statements of the High Court and of this court which guide their application in the context of relocation cases:
Section 60B – Objects of Part and principles underlying it.
Section 60CA – Child's best interests paramount consideration in making a parenting order.
Section 60CC – How a court determines what is in a child's best interests.
Considerations relevant to relocation include:
·Primary considerations: meaningful relationship with both parents.
·Additional considerations:
-nature of child's relationship with parents and other persons;
-extent to which parent has taken or failed to take opportunity to participate in decision-making, spend time and communicate;
-likely effect of changes in child's circumstances including effect on child of any separation from either parent, other child or other person with whom they have been living;
-practical difficulty and expense of a child spending time and communication with a parent and whether that will substantially affect child's right to maintain personal relations with both parents on a regular basis;
-capacity of each parent and any other person to provide for the needs of the child.
Section 61DA – Presumption of equal shared parental responsibility when making parenting orders.
Section 65DAA – Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances (where an order for equal shared parental responsibility has been made, and such time is in the best interests of the child and reasonably practicable).
Section 65DAA(5) – Factors the court must have regard to in determining reasonable practicability:
(a) How far apart parents live.
(b) Parents' current and future capacity to implement an arrangement for equal or substantial and significant time.
(c) Parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing arrangements.
(d) Impact arrangements would have on the child.
(e) Such other matters the court considers relevant.
[50] The legislation therefore requires multiple layers of consideration, but does not provide express guidance as to the order in which such matters are to be considered, or what weight is to be attached, other than to commence with the presumption of equal shared parental responsibility and what follows from that decision.
[51] The operation of the legislation in relocation cases has been expressly considered by the High Court in MRR v GR (2010) 240 CLR 461; 263 ALR 368; 42 Fam LR 531; (2010) FLC 93-424; [2010] HCA 4 (MRR), an appeal from an order of a Federal Magistrate refusing to allow relocation. In joint reasons for judgment, the court (French CJ, Gummow, Hayne, Kiefel and Bell JJ) summarised the effect of the legislation and concluded that orders for equal or substantial and significant time are to be guided by the practical feasibility of such time, not merely its desirability. Their Honours said ( at [6]-[15]):
[6] Part VII of the Act (ss 60A-70Q) concerns children. It was substantially amended in 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Section 60B(1) of the Act provides that it is an object of the Part to ensure that the best interests of children are met, 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". 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 a child's best interests are listed in s 60CC.
[7] Section 65D(1) provides that the Court [...] may make such a 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 shared parental responsibility for the child. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child. [...] Section 65DAB requires the Court to have regard to any parenting plans entered into between the parties and is not relevant in this case.
[8] Sub-section (1) of s 65DAA is headed "Equal time" and provides: "If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (para (a)) but the Court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the Court is obliged to:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
[9] Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
...
[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
[52]In this case an order for equal shared parental responsibility was made. The orders for time the children have with the father were on an ever increasing basis beginning with 9 am to 12 noon on Saturday, fortnightly to 9 am to 5.30 pm on a Saturday, fortnightly. After May 2012 the time was to include a Wednesday from 2.30 pm to 5.30 pm. Short periods of time were provided for on special days including Christmas. These orders were hardly substantial and significant time. No reasons were given connecting the orders about time with the father and the order for equal shared responsibility.
[53]There can be no doubt that the decision the Federal Magistrate was required to make was very difficult. All relocation decisions are difficult, not the least because of the serious ramifications involved for the parents and the children. Clarification and guidance has been provided by decisions of this court. We refer to the approach outlined in Starr v Duggan [2009] FamCAFC 115 per Boland, Thackray and Watts JJ where their Honours said (at [33]-[39]):
APPROACH TO APPLICATIONS INVOLVING RELOCATION OF A CHILD
[33] The core principle consistently referred to in all appellate decisions involving challenges to parenting orders (including where an order for relocation is sought) is the "paramountcy principle" found in s 60CA. That is, a court must regard the best interests of the child as the paramount, but not sole, consideration.
[34] The interplay between the paramountcy principle, the objects of the Act and the principles underpinning those objects is described in Goode & Goode (2006) 36 Fam LR 422; (2006) FLC 93-286; [2006] FamCA 1346.
[35] In McCall & Clark the Full Court referred (at [58]-[60]) to explanations given in other relocation cases of the order in which relevant provisions in Part VII may be applied when determining a parenting application. Their Honours (Bryant CJ, Faulks DCJ and Boland J) went on to explain (at [61] and [62]) that it will often not be an academic exercise to consider whether a child should spend equal time with both parents, as such an order is likely to be sought by a non-relocating parent.
[36] The Full Court also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be "dual consideration" of some matters. This is so because consideration of the s 60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals. Some of the matters to be considered under s 60CC(3), for example the likely effect of any change in the child's circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s 65DAA, especially s 65DAA(5).
[37] Thus the appellate decisions determined after the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) have set out a framework which a judicial officer may follow when determining applications for parenting orders, including an order that a child be permitted to relocate.
[38] However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
·first make findings concerning the relevant s 60CC factors;
·then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child's best interests; and
·then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) -- which may be done by referring back to the earlier s 60CC findings.
[39] Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child's best interests, including the proposal to relocate.
[54] The requirement to clearly rather than inferentially follow the legislative pathway in relocation cases was confirmed recently by this court in Heaton v Heaton [2012] FamCAFC 139 (Heaton) per Coleman, Ainslie-Wallace and Ryan JJ. Their Honours said (at [32]-[39]):
[32] His Honour was first required to determine the children's best interests by reference to the well known "primary" and "additional" factors referred to in s 60CC in taxthe light of the competing proposals of the parents, that is, the father remaining in Sydney and the mother wishing to move with the children to Port Macquarie. Although the mother's "fall back position" of remaining in Sydney to stay with the children required consideration, we consider that in elevating that concession to the status of a proposal resulted in his Honour's failure to adequately evaluate her application to relocate and misapplication of the section.
[33] It is only in this way that his Honour could have properly considered all of the relevant factors to come to a determination of the children's best interests.
[34] His Honour was then obliged to consider the provisions of s 65DAA(1).
[35] As the plurality of the High Court said in MRR v GR 263 ALR 368; 42 Fam LR 531; (2010) FLC 93-424; [2010] HCA 4 at [13]:
Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of the order ... A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist ...
[36] Their Honours continued:
His Honour treated the answer to the first mentioned question, whether it was in the best interests of the child to have equal time with each parent, as determinative of whether an order should be made. His Honour did not consider, as he was obliged to do, whether it was reasonably practicable in all the circumstances ...
[37] Weregretfully conclude that his Honour erred in his determination of the issue of equal shared time. By conflating the disparate issues of "best interests" and "reasonable practicability" the Federal Magistrate's reasons for judgment do not demonstrate substantive, if not formal, adherence to the legislative pathway. As is apparent from a reading of them, with respect to his Honour, his consideration of each issue was vitiated by its dependence upon conclusions or assumptions with respect to the other issue. His Honour was required to first consider whether equal time was in the children's best interests pursuant to s 60CC. If he concluded that it was, it was then necessary to consider the parties' competing proposals and determine whether equal time was reasonably practicable. He did not do this.
[38] These errors are such that the appeal must succeed. As the High Court said in MRR v GR (supra), the determination of both of the questions in s 65DAA(1) provide the source of jurisdictional power to make the order to which the section refers. It is not sufficient to argue that although his Honour's findings do not follow that "pathway" when read as a whole, inferentially, it may be said that he made the determinations required of him in s 65DAA.
[39] It is unnecessary for us to consider whether, generally, a "slavish" pursuit of the "legislative pathway" is not essential.
Of particular assistance in making the required determination of what parenting order will be in the children’s best interests on an interim basis is the decision of Boland J sitting as a Full Court in Morgan & Miles. I incorporate into these reasons paragraph 72 to 88 of that judgment:
[72] There can be no dispute that in determining a case where one party, which research indicates is invariably the mother, (see Easteal, P, Behrens, J and Young, L, ‘Relocation Decisions in Canberra and Perth: A Blurry Snapshot’ (2000) 14 Australian Journal of Family Law, 234) wishes to relocate, a court is making a parenting order generally about who the child will live with or with whom the child shall spend time. The Act does not treat “relocation” cases as a special category of parenting orders. In that respect the amending Act has effected no change to the law.
[73] It is also undisputed that in determining a parenting case where one party wishes to relocate the child’s best interests remain the paramount, but not sole, consideration.
[74] The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application [to] obtain such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.
[75] It is clear that if a parenting order for equal shared parental responsibility has been made prior to any parenting application involving a relocation, the parties have a primary duty under s 65DAC to determine jointly if proposed living arrangements for a child would make it significant more difficult for that child to spend time with the “left behind” parent.
[76] If no order for equal shared parent responsibility has been made and s 61C governs the situation, the parties can exercise parental responsibility either jointly or severally.
[77] The requirements of s 65DAC, properly observed, therefore require parents to consult and make a genuine effort to agree about a move which would make it significantly more difficult for the child to spend time with the “left behind” parent. The operation of s 65DAC, when applicable, clearly precludes a unilateral move by one parent without notice and consultation with the other parent.
[78] In considering whether the child should live with the parent who proposes to relocate a court:
·Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
·Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
·Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
·If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
·In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
·When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
·Will careful[ly] weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
¨ that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
¨ that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
¨ that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
¨ the non-relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
·Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
[80] It follows from my exposition of the legislation, that earlier core principles:
·that the child’s best interests remain the paramount but not sole consideration;
·that a parent wishing to move does not need to demonstrate “compelling” reasons;
·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
·the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement, remain valid.
[81] What the legislation now requires is:
- consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
- if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
[82] It is important to note that there are no separate provisions in the Act dealing with interim, as distinct from final orders, although s 61D(3) does not require mandatory application of the presumption of equal shared parental responsibility on the making of an interim order. Thus there is no legislative mandate to consider different criteria in interim parenting application involving relocation to final applications, although the former will of necessity, be an abridged enquiry.
[83] I have noted above that cases before the introduction of amending Act generally applied principles enunciated in Cowling, and particularly had regard to those factors relevant to a child’s stability as the foundation for orders maintaining existing arrangements. Thus generally courts prohibited a relocation on an interim basis, or made orders which provided for the return of a child if only a short period had elapsed after a unilateral relocation by one parent.
[84] The cases demonstrate that sensibly Judges recognised that these very difficult cases, often with far reaching consequences for the child, required the full investigation which can only occur at a final hearing, or now by issues being identified and determined in a Less Adversarial Trial as contemplated in Div 12A of Pt VII.
[85] In Goode the Full Court considered whether the principles in Cowling remained applicable after the introduction of the amending Act, particularly paragraph 22 in Cowling which talks about a “well settled environment”. The Full Court determined the amending Act had effected change which required reconsideration of that paragraph. Whilst lengthy, it aids understanding to set out the relevant passages from Goode:
[71] The reasoning in Cowling, particularly in paragraph 22 of the reasons for decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time.
[72] In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
[73] That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).
[86] I conclude, the legislation, including the matters referred to above in Goode, does require consideration of s 60CC, s 61D, and s 65DAA (with reference to s 4(1)) in dealing with all interim applications for parenting orders including applications involving a relocation, or where an “unauthorised” relocation has occurred.
[87] As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.
[88] It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C and S remain apt and relevant to determination of these cases.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
I turn now to a consideration of the matters set out in section 60CC of the Act. I go first to the primary considerations, the first of which is the benefit to the children having a meaningful relationship with both of the children’s parents.
In comparing the competing proposals of the parties, I note that the father’s proposal is, in effect, to maintain the status quo, that is, with the mother patently living within a 15 kilometre radius of School B at the present time (given the amount of time she proposes it takes the child to travel between her home and that school).
The proposal of the mother would have the children’s place of residence while they were in her care relocated to one of the southern suburbs of the Town A area and would, therefore, put a distance between that area and Suburb J for the children to travel to and from school on each school day when they were in the mother’s care. Such a relocation over that distance would also mean that the children would have to travel the same amount of extra distance on weekends when they are in the mother’s care if they are attending sporting events or functions, social occasions, birthday parties and so forth in the area in which they have been used to living, that being the Region D around Suburb J.
The effect of both of these proposals on the relationship between the children and the parents is the first of the primary considerations and I note the mother’s evidence given in both of her affidavits, that in the event that the orders made by the Court enable her to relocate the children’s place of residence to the southern suburbs of the Town A area when they were in her care, the children will still attend the same school and they can still spend the same amount of time with the father that they spend at the present time.
In relation to the time with the father, I have to presume that that is a reference to the Tuesday and Thursday afternoons from after school until about 8.30pm that they currently spend in the father’s care during the mother’s week, and conversely, that they spend in the mother’s care during the father’s week.
A move of the children’s place of residence when with the mother to the southern suburbs of the Town A area cannot, on any of the evidence that I have traversed in this matter, have an effect to the detriment at all of the relationship, a meaningful relationship, between the children and their father. On the evidence in this matter, though it is not given specifically (and we do not yet have the benefit of social science in the matter through Family Reports), patently there is a close and loving relationship between the father and each of the children and there is a close and loving relationship between the mother and each of the children.
The mother does not propose a lessening of time that the children spend with the father in the event that she is able to relocate their place of residence while they are with her. Conversely, it would not mean any lessening in the time the children spend with their mother. The principle effect of the move for the relationship between the children and the parents, on comparing the competing proposals of the parties, would be that if the father’s application is successful and orders are made that the mother is not able to relocate the children’s place of residence when they are spending the time with her outside of a 15 kilometre radius from Suburb J, or in the alternative if she does relocate her own place of residence outside that radius the children would live the greater part of the time with the father and spend time with her on the father’s proposal as agreed or in accordance with the children’s wishes, can have a detrimental effect on the children’s relationship with the mother if it leads to the mother suffering sufficient unhappiness or being sufficiently disgruntled, or feeling sufficiently thwarted in her life proposals at the present time, as to communicate those feelings to the children.
The Court cannot find that that would happen because there is not sufficient evidence available to find that that would happen. That would need some assistance of social science, particularly after a qualified person has discussed this matter with the children. It is a possibility, and it is the only effect that I can find at the moment that this move may have on the relationship of either of the children with either of the parents. The whole of the case speaks of that. It is patent on everything. I am able to find that there is not sufficient detriment to the children’s relationship with either parent to prevent an order being made that the mother may relocate the children’s place of residence. That, of course, is only one of the considerations.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The other primary consideration is the need to protect the children from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.
The father gives in his evidence some opinions that the children may suffer detriment if the proposed move takes place in that they would be removed from the area in which they have grown up to date, and that they would be that much further away from their friends, sport and social activities.
The mother’s evidence is that the children will be continuing to attend the same schools, that the children would be continuing to spend one week in every two in that area by residing with their father, presuming that he does live in that specified area.
I cannot find that there is anything in this case that enlivens the second primary consideration that points to any risk in the matter. Therefore, I do not need to give attention to subsection (2A) that relates to the weighting between the two primary considerations.
Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
In relation to the additional considerations the first is any views expressed by the children. In that regard, I have some evidence from the father as quoted earlier in these reasons in relation to comments he asserts that [Y] made in text communications to him, which are plainly interpreted as [Y] showing a disinclination to move to the Region D, and such a move causing her a worry that she would not be living near her friends, that she would be moving away from her school and her everything.
I, of course, cannot define what she meant by “her everything” but she is only a young lady and the messages sent to her father very close upon the time when this issue was apparently raised with the children by the mother indicate that she has a disinclination to move.
[Y] is 10 years of age and [Y] is not of an age yet where her views will be given great weight by the Court. [Y] is still at an age where she is to be parented by both of her parents and it is no unusual thing when parties have separated, for one parent to move out of the area that the children have been used to living in prior to their parents marital relationship splitting up. These children have had the benefit of being able to continue the normal course of their lives in the period of three years now since their parents separated. Nevertheless, I cannot find that the views expressed by [Y], which I accept on the evidence given by the father, are a factor that mitigates against the mother’s proposal to relocate her place of residence when the children are with her to the southern suburbs of Town A.
In particular, of course, on the mother’s evidence, [Y] may be moving a distance away from her school but she will still be attending the same school and she will be in the same area one week in two. On the mother’s evidence, she will be available to bring the children down for social and sporting occasions and to interact with their friends.
I have no evidence in relation to the views of [X] in the matter.
The nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
I have already made comments and finding about the nature of the relationship with the children with each of the parents and I do not have sufficient evidence to make a finding about the nature of the children’s relationship with other significant persons such as Mr K, the mother’s partner, any other members of the father’s household, the children’s maternal grandmother or Ms Q.
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 do not find that this consideration assists me with the issues in this particular matter. On the basis of the evidence, I have no criticism to level against either of the parents in relation to this consideration.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Once again, this does not assist me with the issue in this case. It is, however, gratifying to say that on all the evidence I can only find that each of the parents has fulfilled their obligations in this regard.
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
This consideration is a prime consideration, as pointed out by the Full Court in the cases referred to above.
On the evidence in this matter, if the children’s place of residence while they are in the mother’s care is relocated to the southern suburbs of Town A, it will not affect any change in the amount of time they can spend with their father. It will not affect any change in the amount of time they can spend with their mother. It may have some effect on the amount of time they can spend with their brother, Mr N Mace, though the evidence is not at all clear as to exactly where Mr N Mace spends his time or how he apportions that time between his mother and his father.
I do have the evidence of the mother that Mr N Mace will have a place in and be welcome in whatever place she moves to, at any time he wishes to go there.
I am unable to find that there will be a detriment to the children by way of a lessening in or a harm to the relationship with either of their now adult siblings because, on the evidence, I do not have any material to make that finding.
Obviously an effect of the change on the children’s circumstances will be the travelling time that will take place in the mornings and evenings while they are in the mother’s care to travel from where they may be living in the southern suburbs of Town A to the school they attend.
I referred, in summarising the evidence above, to the estimate given by the father of the amount of time that will be taken and his evidence, which I have related because it was not objected to on interim hearing, as to times they will need to catch public transport and the times they will get home to Town A Station if they return by public transport.
I have also quoted the mother’s evidence, not objected to on the interim hearing, which is limited only to that the main change, which will be the time it takes to travel between the southern suburbs of Town A in Region D and Suburb M. I note that the mother there is talking about her ultimate destination at Suburb M to go to work, and not the children’s schools.
The children are travelling over a distance of up to an hour to get to school and from school, and this is not an unknown feature in the Greater Sydney area. I find that the amount of time the children would be travelling to and from their school, except only occasions when there are serious traffic delays on the route between the southern suburbs of Town A and Suburb J which will necessitate, of course, and of which the Court can take judicial notice, of travelling up and down the freeway.
I cannot find that that additional time is going to work such a detriment to the children during the week that they are in the mother’s care that it will cause the children any harm, or it will cause the children any detriment in their social life, in their schooling or anything other than they may get up a little earlier in the morning to be ready to get in the car and go to school.
I have to say at this point, in relation to the effect of change, that this is not a move over a significant distance, a phrase referred to in many relocation cases. This is a move over a certain distance. I am not given any evidence by the parties in relation to actual distance and so I cannot refer to actual distances, but the distance travelling on the freeway between the southern suburbs of Town A and Suburb J is not such a large distance as it would impede any of the actions of the children in the normal course of their life.
I am mindful of the comments of Boland J in Morgan & Miles, which Her Honour referred to as a relocation case, but did note that she was not sure that it came within a classification of ‘relocation’ case because the distance being moved in that case was about 120 kilometres.
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
Given the mother’s evidence, it is her intention to have the children continue to attend the same schools and to spend the same amount of time with their father as has been the case since separation. I do not find that there is any practical difficulty or expense in the children spending time or communicating with their father.
In the mother’s evidence, she works at Suburb M and she intends to bring the children down for school and for spending time with their father, whether it is a work day for her or not a work day.
The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs
All of the evidence before the Court shows that both these parents have full capacity to provide for each of the children’s needs, including emotional and intellectual needs.
Part of the mother’s case is that in providing for the financial needs of the children, in the sense of providing suitable accommodation for them, her financial circumstances require her to move out of the Sydney Metropolitan Area, and she has selected Region D, being the southern suburbs of Town A.
On her evidence, she seeks to provide for herself and the children with her partner the same nature of accommodation as they have at the present time. In this regard, the internet property searches referred to earlier in these reasons provided by the father include properties of a townhouse or unit nature, which would not provide the same accommodation as is comparable with the mother’s current accommodation on her evidence and in those cases would mean that the family dog has to change homes.
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
I find that this consideration does not assist me with the issue to be decided in this matter.
[X] is 13 years of age and [Y] is 10 years of age. Two young ladies who are lucky enough to live in a working, cooperative, shared care arrangement between their parents.
Neither of the children are indicated to be in any way of Indigenous decent so those considerations do not apply.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Under this consideration I do not find anything that particularly assists me in deciding the issue principally before the Court.
I do not find anything in this case that indicates that the attitude of either of the parents to their responsibilities of parenthood are other than the very best. The father is obviously acting out of his parental concern in relation to the children and there is no criticism to be found there. The mother is obviously acting out of her parental concern in seeking to provide what she considers suitable and appropriate accommodation for the children while they are in her care, in circumstances where, on the evidence, through no fault of her own she must vacate her current accommodation.
In relation to the further considerations, happily this is not a case where family violence is in issue, and nor need I give attention to the consideration as to whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the children, as this is a matter being dealt with on an interim basis and I do not find that there are any other facts or circumstances that the Court thinks relevant in the matter.
Parental Responsibility
Before I make a finding in relation to the competing proposals of the parents I must, as indicated earlier on, turn my attention to section 61DA of the Act which requires me whenever a parenting order is going to be made in relation to the children, to apply the presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility.
Near the start of these reasons I set out the competing applications of the parties, including the orders sought by the father on interim hearing as outlined by his Counsel most helpfully in her Case Outline document.
Neither the father nor the mother indicate that they are seeking sole parental responsibility for the children. The father indicated that he is seeking an order for equal shared parental responsibility for the children. The mother’s Application before the Court is silent on the issue.
There is absolutely no basis in this matter whereby the Court would find that the presumption of equal shared parental responsibility has been rebutted.
There is no basis on which the Court would find that the presumption does not apply by reason of abuse or family violence, and though these are interim proceedings and pursuant to section 61DA(3), the Court need not apply the presumption if it considers that it would not be appropriate in the circumstances to do so. I cannot see any circumstances in this matter that would mitigate against the presumption being applied and an order being made on the interim basis for the parents to have equal shared parental responsibility for these children.
Up to the current time they have each had responsibility for the children under section 61C of the Act which as the Full Court said in Goode & Goode is a different concept to equal shared responsibility, but patently until this issue arose these parents, despite being on strained terms with each other, have cooperated seamlessly and communicated seemingly seamlessly in making decisions for the long term benefit of these children.
Having found that the presumption applies and with an intent, therefore, that an order for equal shared parental responsibility will be made, I have to give attention to section 65DAA of the Act and consider the matters set out therein, firstly, relating to the children’s parents having equal time with the children. That is the arrangement that the parents have organised between themselves and have sustained for a period of about three years.
Happily I am able to stop at that point and find that it is in the best interests of these children for them to spend equal time with their parents and find that it is reasonably practicable for the children to spend equal time with their parents.
Therefore, I consider making an order for the children to spend equal time with their parents and based on the consideration of the matters under section 60CC in these reasons I find that it is in the children’s best interests to spend equal time with their parents and to make orders accordingly.
Having made that finding I do not need to go on further through the matters in section 65DAA.
Conclusion
In weighing up the considerations in section 60CC I find that it is in the best interests of the children to allow their mother the freedom to move over the distance, whatever it may precisely be, between the southern suburbs of Town A and the Suburb J area.
I find that making an order that the mother may not reside outside a 15 kilometre radius from the School B if the children are to be in her care on a week about basis, which on the boil down is the real meaning of the proposal of the father, is an unnecessary restriction on the freedom of the mother to choose where she wishes to live and to make that choice based upon the financial factors she refers to in her evidence.
It is not such a distance that it causes immediate disruption for the children. It is not such a distance that it renders onerous the mother’s proposal that she will maintain the children attending their current schools and that she will maintain the children spending the same time with their father as they have been used to spending in the past several years.
Accordingly, I make orders as set out at the start of these reasons.
I certify that the preceding one hundred and fifty-seven (157) paragraphs are a true copy of the reasons for judgment of Judge Morley
Associate:
Date: 21 October 2019
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