Macleod and Macleod
[2016] FCCA 1446
•17 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MACLEOD & MACLEOD | [2016] FCCA 1446 |
| Catchwords: FAMILY LAW – Parenting – relocation – whether one parent should have sole parental responsibility – children’s views. |
| Legislation: Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA, 69ZT |
| Cases cited: Lennon & Lennon [2011] FamCA 571 |
| Applicant: | MS MACLEOD |
| Respondent: | MR MACLEOD |
| File Number: | MLC 1179 of 2009 |
| Judgment of: | Judge Williams |
| Hearing dates: | 15 – 18 March 2016 & 11 May 2016 |
| Date of Last Submission: | 11 May 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 17 June 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hall |
| Solicitors for the Applicant: | Adams Maguire Sier |
| Counsel for the Respondent: | Ms Wheeler |
| Solicitors for the Respondent: | Adrian Abrahams Family Lawyers |
ORDERS
As from the conclusion of the second school term in 2016, the previous Orders of the Court made on 17 June 2009 and 22 October 2015 be discharged and the following orders shall apply.
That the Mother and the Father have equal shared parental responsibility for the children of the marriage X born (omitted) 2002 and Y born (omitted) 2006.
That the children live with the Mother.
That the children spend time with the Father as follows:
(a)For the first week of the Term 2, 2016 school term holidays from 3.30pm or conclusion of school on the last day of Term 2 2016, until 6.00pm on the middle Saturday of the Term 2 school holidays;
(b)in the event the Father elects to live within 20 kilometres of the Mother's residence, then during school term, on a week about basis, from 3.30pm or the conclusion of school on Friday until 3.30pm or conclusion of school the following Friday commencing Friday, 15 July 2016, and each alternate week thereafter;
(c)in the event the Father remains living more than 20 kilometres from the Mother's home, then then during school term each alternate weekend from 3.30pm or the conclusion of school on Friday until 7.00pm on Sunday, such time to extend to 7.00pm on Monday if that day is a public holiday or pupil-free day;
(d)for one half of the school term holidays at times to be agreed and in default of agreement then:
(i)the first half in even-numbered years, from 6.00pm on the last day of school term until 6.00pm on the middle Friday of the vacation period; and
(ii)the second half in odd-numbered years, from 6pm on the middle Friday of the vacation period until 6pm on the following Friday;
(e)for one half of the long summer holidays at times to be agreed and in default of agreement then:
(i)the first half in even-numbered years, from 6pm on the last day of school term until 6pm on the middle day of the school holiday period;
(ii)the second half in odd-numbered years, from 6pm on the middle day of the school holiday period until 6pm on the Friday preceding the commencement of the next school year;
(f)from 4.00pm 25 December until 4.00pm 26 December in odd-numbered years;
(g)from 5.00pm on Saturday preceding Father’s Day until 5.00pm on Father's Day;
(h)for such further or other periods as may be mutually agreed in writing.
That the children’s time with the Father be suspended:
(a)On the weekend of Mother’s Day, from 5.00pm on the Saturday preceding Mother’s Day until 5.00pm on Mother’s Day;
(b)From 4.00 pm 25 December until 4pm 26 December in even-numbered years;
That where changeovers do not take place at school, changeover shall occur at a midpoint between the parties homes, and:
(a)in the event the Father continues to live in (omitted), changeovers shall occur at the (omitted);
(b)if the Father moves to live closer to the Mother's home, changeovers shall occur at a location to be agreed that is equidistant between the parties' homes.
That the cycle of the children's fortnightly weekend time with the Father pursuant to Order 4(a/b) herein shall:
(a)commence on the first weekend of term 3 in July 2016; and
(b)resume in each new school term as though the intervening school term and/or summer holiday periods had not intervened.
That the parties forthwith do all acts and things necessary to enrol the children to attend (omitted) College from the commencement of term 3, 2016, unless otherwise agreed in writing.
That the children have liberal telephone communication with each parent at all reasonable times whilst in the care of the other parent.
That each party be and is hereby authorised to:
(a)obtain from the children's schools copies of school reports, newsletters, notices and other correspondence ordinarily provided to parents;
(b)attend school-related events to which parents are normally invited such as parent/teacher interviews, sports days and school concerts;
(c)obtain from any medical practitioner consulted by either of the children, medical information and advice obtained or given regarding the child.
That each party keep the other informed in writing of:
(a)their current residential address, contact telephone numbers and email addresses;
(b)the name and address of any medical practitioner consulted by either child;
(c)any medication or treatment prescribed for either child from time to time.
That all extant applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Macleod & Macleod is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1179 of 2009
| MS MACLEOD |
Applicant
And
| MR MACLEOD |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is the mother and the respondent is the father of the children X born (omitted) 2002, now aged 13 years and Y born (omitted) 2006, now aged nine years. Both parties seek orders that the children live with them and spend time with the other parent.
Background
The mother was born on (omitted) 1973 and the father was born on (omitted) 1978. They commenced cohabitation on (omitted) 2001 and married on (omitted) 2004. They separated on 3 August 2008 when the mother left the former matrimonial home in (omitted). The father remained living in the home with the two children. The circumstances of the mother’s departure from the home remain contentious.
Prior to separation the mother was responsible for the care of the children and the father was the breadwinner for the family. The standard of care of the children was not challenged by the father and in fact the father’s own evidence at that time was:
‘she has been a great mother in the past’[1]
[1] Paragraph 7 of the family report of Mr P dated 11th of June 2009, annexure C of the affidavit of Mr Macleod sworn 24th of February 2016
At the time of separation X was aged five years and 11 months and Y was aged one year and 11 months. The mother asserts that between August 2008 and January 2009 she returned to the home during the day to look after the children and would leave when the father returned home from work. The father asserted that the children were cared for independently and that the mother only cared for the children on 3 or so occasions.
On 21 January 2009 the mother returned to the family home and sought to resume living there. As a result of the mother’s attendance at the family home, the father called the police and then took the children away from the home and stayed elsewhere overnight. The next day he obtained an interim ex parte intervention order in the Magistrates Court at Dandenong on behalf of himself and the children.
On 27 January 2009 the mother sought a variation of the intervention order which had been obtained by the father against her and also sought an intervention order against the father.
In February 2009 both parties withdrew their respective applications for intervention orders against the other.
On 13 February 2009 the father issued an application in this court seeking both parenting and property orders.
On 26 February 2009, the first return date of the father’s application orders were made by consent providing for the children to remain living with the father and for the mother to spend time with the children each alternate Thursday to Monday. Procedural orders were also made providing for the parties and the children to attend upon Mr P, psychologist, for the purposes of obtaining a family report and for the mother to attend upon Dr R psychiatrist, for the purposes of a psychiatric assessment.
There is significant disagreement between the parties about the events surrounding the first report of Mr P. The mother asserts that during a telephone conversation which occurred on 4 June 2009, the father told the mother that the family report interviews would not be proceeding. The father asserts that the mother failed to attend the family report interview without any explanation. The mother’s evidence under cross-examination was that she was tricked by the father not to attend the report with Mr P. This is further referred to at paragraph 135 - 139 hereof.
The mother did not attend for the psychiatric assessment with Dr R. Her evidence was that she was never advised by her solicitors of the time, date and place of the proposed assessment. This was despite annexure E to the father’s trial affidavit[2] which is a letter from Dr R to the mother’s then solicitors, Women’s Legal Service Victoria, dated 2 June 2009. That letter clearly refers to the rescheduling of the mother’s appointment with Dr R. There is no evidence that the appointment details were actually conveyed to the mother. There is no allegation in the current proceedings that the mother suffers mental health problems, save that it was put to the mother and she agreed that she had taken anti-anxiety medication in 2008 until she became pregnant with X.
[2] Affidavit of Mr Macleod sworn 24th of February 2016
For the purposes of these proceedings the father did not seek an order that the mother be psychiatrically assessed.
On 17 June 2009 when the matter was listed for final hearing, orders were made by consent providing for the children to live with their father and to spend time with their mother after school and day care each alternate Thursday until the following Tuesday return to school or to the day-care centre.
The orders also provide for the children to spend equal time with the mother during school holidays and for the children to spend time with their mother on special occasions
Additionally, an order was made for the father to have sole parental responsibility for the children and for the father to notify the mother of all long-term decisions he may make pertaining to the children in relation to, for example, education religion and health.
On the day the matter was listed for trial the orders indicate that the father was represented by senior junior counsel and the mother was represented by a solicitor appearing Amicus Curie.
At the time the final orders were made by the court the father was living in the former family home situated in (omitted) and the mother lived in (omitted). The mother relocated to her current address in (omitted) in February 2012, quite sometime after the orders were made. She did so in order to be closer to the children’s home and their schools in (omitted).
The mother spent time with the children pursuant to the orders until approximately January 2014 when the parties varied the arrangements prescribed by the orders. The variation provided for the mother to collect the children on Friday afternoon at the conclusion of school and return them to the father’s home in (omitted) on Monday night at 7.30 pm. The mother also collected the children from school on Monday afternoon.
The reason for the variation to the June 2009 orders is in dispute. The mother asserts that the variation was at the father’s insistence. The father asserts that the variation was to both accommodate the mother’s work commitments and to address the children’s failure to attend school when they were in their mother’s care.
In January 2015 X commenced year seven at (omitted) College in (omitted). Y continued to attend (omitted) primary school. Both parties agree that X found the academic standards at (omitted) College challenging and in particular, she struggled with Maths and English.
In February 2015 the father commenced discussions with the children about the prospect of moving to (omitted). The father asserts that principal reason for the move was to enable him to spend more time with the children after work, as (omitted) is much closer to his work in (omitted). This would also enable the children to attend extracurricular activities. He also asserts that the children stated to him that they wish to live closer to the beach.
There is much disagreement about the circumstances surrounding the children’s relocation to (omitted) and whether the mother consented or indeed knew about the proposals of the father to relocate the children to (omitted).
What is agreed, however, is that the father unilaterally enrolled the children in their new schools, (omitted) College, (omitted) for X and (omitted)’s primary school for Y. Both children commenced their new schools at the beginning of term four 2015. The father was able to unilaterally cancel the children’s previous school enrolment and re-enrol them in their new schools because of the 2009 orders which vested sole parental responsibility in the father.
On 22 May 2015 the father informed the mother of his intention to move with the children to (omitted).
On 25 August 2015 the father and the children moved from (omitted) to (omitted).
The father did not obtain the mother’s consent to removing the children from (omitted) to (omitted), despite the move making it exceedingly difficult for either party to comply with the orders of June 2009 or the variation of those orders which occurred as from January 2014.
The move to (omitted) was the catalyst for these proceedings which were issued by the mother on the 1 October 2015.
On 22 October 2015 the matter came before His Honour Judge McGuire. His Honour made interim orders providing for the children to remain living with their father in (omitted) and for them to spend time with their mother who remained living in (omitted), as follows:
1. Paragraph 3 of the Orders of the Court made by consent on 17 June 2009 (“the Orders”) be varied as follows:
a. Delete Paragraphs 3(a), 3(b) and 3(d) of the Orders and replace with the following:
3(a) (i) Each alternate weekend from after school on Friday if the Mother is able to do so otherwise from the (omitted) at 7:30 pm until Sunday 6:00 pm and such time to be extended to Monday evening at 7:30 pm in the event that the Monday is a curriculum-free day or public holiday commencing Friday 23 October 2015;
(ii) In addition the children shall be with the Mother from after school on Friday 30 October 2014 if the Mother is able to do so, otherwise as in (i) above;
(iii) In addition the children shall be with the Mother for the Victorian Labour Day weekend and Queen’s Birthday weekend in 2016 and from Friday 11 March 2016 commencing at the same time as in (i) and (ii) above until Monday 14 March 2016 at 6:00 pm and on ANZAC Day weekend from Friday 22 April 2016 until Monday 25 April 2016 at 6:00 pm at the same time as in (i) and (ii) above and on the Queen’s Birthday weekend from Friday 10 June 2016 until Monday 13 June 2016 at the same time as in paragraph (i) and (ii) hereof;
3(b) Changeover when not at school occur take place at the (omitted);
3(d) The parties shall spend time with the children during school term holidays with the Mother to have one full week and in addition 2 weekends out of the 3 weekends of the term holidays so the Mother shall have a block of 10 days of the term holidays by agreement, and if no agreement between parties, with the Mother to have the first half in even years.
The mother has spent time with the children in accordance with the orders of 22 October 2015 and continues to do so.
The proposals of the parties
The mother’s proposal
The orders which the mother seeks from the court are set out in the Minute of Final orders handed to the court by her counsel during the trial. They are as follows:
1. That with effect from the conclusion of the second school term in 2016, the previous Orders of the Court made on 17 June 2009 and 22 October 2015 be discharged and the following orders shall apply.
2. That the Mother and the Father have equal shared parental responsibility for the children of the marriage X born (omitted) 2002 and Y born (omitted) 2006.
3. That the children live with the Mother.
4. That the children spend time with the Father as follows:
(a) in the event the Father elects to live within 20 kilometres of the Mother's residence, then during school term, each alternate weekend from 3.30pm or the conclusion of school on Thursday until 9.00am or the commencement of school on Monday, such time to extend to 9.00am or the commencement of school on Tuesday if the Monday is a public holiday or pupil-free day;
(b) in the event the Father remains living more than 20 kilometres from the Mother's home, then then during school term each alternate weekend from 3.30pm or the conclusion of school on Friday until 7.00pm on Sunday, such time to extend to7.00pm on Monday if that day is a public holiday or pupil-free day;
(c) for one half of the school term holidays at times to be agreed and in default of agreement then:
(i) the first half in even-numbered years, from 6pm on the last day of school term until 6pm on the middle Friday of the vacation period; and
(ii) the second half in odd-numbered years, from 6pm on the middle Friday of the vacation period until 6pm on the following Friday;
(d) for one half of the long summer holidays at times to be agreed and in default of agreement then:
(i) the first half in even-numbered years, from 6pm on the last day of school term until 6pm on the middle day of the school holiday period;
(ii) the second half in odd-numbered years, from 6pm on the middle day of the school holiday period until 6pm on the Friday preceding the commencement of the next school year;
(e) from 4pm 25 December until 4pm 26 December in odd-numbered years;
(f) from 10.00am until 5pm on Father's Day;
(g) for such further or other periods as may be mutually agreed in writing.
5. That the children’s time with the Father be suspended:
(a) On the weekend of Mother’s Day, from 10.00am on the Sunday;
(b) From 4.00 pm 25 December until 4pm 26 December in even-numbered years;
6. That where changeovers do not adjoin the children’s attendance at school they shall occur at a midpoint between the parties homes, and:
(a) in the event the Father continues to live in (omitted), changeovers shall occur at the (omitted);
(b) if the Father moves to live closer to the Mother's home, changeovers shall occur at a location to be agreed that is equidistant between the parties' homes.
7. That the cycle of the children's fortnightly weekend time with the Father pursuant to Order 4(a/b) herein shall:
(a) commence on the first weekend of term 3 in July 2016; and
(b) resume in each new school term as though the intervening school term and/or summer holiday periods had not intervened.
8. That the parties forthwith do all acts and things necessary to enrol the children to attend (omitted) College, from the commencement of term 3, 2016.
9. That the children have liberal telephone communication with each parent at all reasonable times whilst in the care of the other parent.
10. That each party be and is hereby authorised to:
(a) obtain from the children's schools copies of school reports, newsletters, notices and other correspondence ordinarily provided to parents;
(b) attend school-related events to which parents are normally invited such as parent/teacher interviews, sports days and school concerts;
(c) obtain from any medical practitioner consulted by either of the children, medical information and advice obtained or given regarding the child.
11. That each party keep the other informed in writing of:
(a) their current residential address, contact telephone numbers and email addresses;
(b) the name and address of any medical practitioner consulted by either child;
(c) any medication or treatment prescribed for either child from time to time.
12. That all extant applications be otherwise dismissed.
The father’s proposal
The father’s proposal is as follows:
1. That the Respondent/Father to have sole parental responsibility for the children X born (omitted) 2002 and Y born (omitted) 2006 and he notify the applicant/mother of all long-term decisions he makes pertaining to the children in relation to, for example: education, religion and health.
2. That the children live with the respondent/father .
3. That the Applicant/Mother spend time with the children as follows
a. each alternate weekend from after school on Friday if the applicant mother is able to do so, otherwise from the (omitted) at 7 PM until Sunday 7 PM and such time be extended to Monday evening at 7 PM in the event that the Monday is a curriculum free day or public holiday;
b. that if the applicant/mother relocates to live interstate that she spend time with the children only in Melbourne during time spent other than four times during school term holidays;
c. in addition, the children shall be with the applicant mother for the Victorian labour day weekend and Queen’s Birthday weekend in 2016 and from Friday, 11 March 2016 commencing at the same time as in a) above, until Monday, 14 March 2016 at 6 PM and on Anzac Day weekend from Friday, 22 April 2016 until Monday, 25 April 2016 at 6 PM at the same times in a) above, and on the Queen’s Birthday weekend from Friday, 10 June 2016 until Monday, 13 June 2016 at the same time as in paragraph a) hereof;
d. for the first half of the long summer holiday period on an alternating basis save that when the children are spending time with the respondent father for the first half of such holidays when they spend time with the applicant mother on 26 December from 9 AM to 6 PM and when the children are spending time with the respondent father, on 26 December from 9 AM to 6 PM;
e. that the children shall spend time with each of the parties on their birthdays, mother’s day and Father’s Day at times to be agreed and on such occasions as the parties may agree in writing:
f. that the party shall use a communication book to be lifted X’s schoolbag the purpose of communication concerning issues relating to the children;
g. that the applicant/ mother be at liberty to telephone the children at the respondent/father’s home on Monday, Wednesday and Friday at 7 PM for up to 20 minutes at a time subject to her restricting her conversation to matters relating to herself and the children
h. the parties shall spend time with the children during school holidays with the applicant/mother to have one for week and in addition, two weekends out of three weekends of the term holidays so the applicant mother shall have a block of 10 days of the term holidays by agreement, and if no agreement between the parties, with the applicant mother to have the first half in even years
i. changeover when not at school occur at the (omitted).
4. That the parties both be at liberty to attend parent teacher interviews and other school related and extracurricular activities to which parents are usually invited to attend
5. That the parties keep each other informed as to their current residential address and contact telephone numbers and email addresses
6. That the parties keep each other informed as to any medical emergencies pertaining to the children and any medical treatment the children may require from time to time and both parties be at liberty to communicate with the children’s treating medical practitioners in relation to their treatment
7. That the respondent/father authorise the children schools to provide the applicant/mother with copies of newsletters, reports, photographs and other like documents which parents ordinarily receive at her sole expense.
8. That the parties be and are hereby restrained by injunction from:
a. denigrating each other to and/or in the presence on hearing of the children
The documents relied upon by the mother were as follows:
a)Amended Initiating Application filed 18 February 2016;
b)Affidavits of the mother sworn 1 October 2015, 3 December 2015, and 23 February 2016;
c)Affidavit of Mr A (De facto partner) sworn 25 February 2016;
d)Affidavit of Ms A (maternal grandmother) sworn 3 December 2015;
e)Notice of Risk dated 1 October 2015;
f)Family Report of Mr P dated 21 December 2015 (Annex to his affidavit sworn on 24 February 2016); and
g)Both the mother and the maternal grandmother, Ms A, gave evidence and were cross examined.
The documents relied upon by the father were as follows:
a)Response filed 13 October 2015;
b)Amended response filed 26 every 2016;
c)Affidavits of the father sworn 9 October 2015 and 24 February 2016;
d)Affidavit of Ms L sworn 9 October 2015;
e)Affidavit of Mr H sworn 25 February 2016;
f)Affidavit of Mr S sworn 17 February 2016;
g)Affidavit of Ms M sworn 27 February 2016;
h)Notice of Risk filed 13 October 2015;
i)Family Report of Mr P dated 21 December 2015 (Annex to his affidavit sworn on 24 February 2016); and
j)The father gave evidence and was cross examined. Counsel for the mother very sensibly conceded that it was not necessary to cross-examine the other witnesses who had sworn affidavits on behalf of the father.
Preliminary matters
At the commencement of the trial two matters were raised by counsel they were as follows:
a)Objections to evidence;
b)Whether the father should be permitted to file two further affidavits, namely one from his partner Ms Y and another from his mother Ms L.
Dealing with the first application, in relation to objections to evidence a list of objections to evidence was served on the father’s solicitors by the mother’s solicitors at 4.00pm on Friday 11 March 2016. A copy of that list was handed to me and to Counsel for the Father, who advised she had not previously received a list of the objections.
The matter was stood down to enable counsel to reach agreement in relation to some of the objections. When the matter returned to court, Counsel had reached agreement on a very limited number of objections. Counsel for the father conceded that pursuant to s.69ZT of the Act, the court had discretion not to apply the rules of evidence in child related proceedings. Rather than deal with each objection individually, Counsel for the father, correctly submitted that it was a matter of what weight would be accorded to evidence in non-admissible form. Quite properly, counsel for the mother conceded that was the case and that he wished it to be noted on the court record that the objections to the father’s various affidavits were as in accordance with the list of objections prepared by him. Counsel for the mother had not prepared a list of objections rather she sought to make an oral application in relation to objections as to evidence. There were two paragraphs which were conceded by counsel for the mother from the list of oral objections put forward by counsel for the father.
Ultimately, neither Counsel sought to pursue the issue of objections to evidence and both were content to rely upon the provisions of s.69ZT of the Act.
The second issue was the application made by counsel for the father to be granted leave to rely on the proposed affidavits of the father’s partner Ms Y and his mother Ms L.
Procedural orders were made His Honour Judge McGuire on 22 October 2015. Order 4 provided as follows:
Each party file and serve all affidavits upon which they seek to rely not later than 4.00 pm 21 days prior to the final hearing and the parties shall not file further affidavits after that time without first obtaining leave from a Judge of this Court to so do.
The trial affidavit of the mother was sworn and filed on the 23 February 2016 and trial affidavit of the Father was filed on 26 February 2016. The affidavits sought to be relied upon were both sworn on 11 March 2016, the Friday proceeding the long weekend prior to the scheduled trial commencement date, Tuesday 15 March 2016. Counsel for the father advised that the subject matter of the affidavits was whether or not the mother was aware of the father’s intended move to (omitted) from (omitted) in August/September 2015.
I note that the reasons for Judgment delivered by His Honour Judge McGuire on 22 October 2015, when the matter came before him for interim determination, made a finding in relation to the mother’s knowledge and acquiescence and or lack thereof in relation to the father’s move to (omitted). In those reasons His Honour stated at paragraph [6] as follows:
[6] I am satisfied that the mother had some notice of an intention to move but I am not satisfied on the evidence that she both acquiesced to the move and certainly did not consent to it. This is clear from the material provided by the father.
As it transpired, I heard nothing which would lead me to a different conclusion from His Honour’s determination. I advised counsel for the father that the issue of whether or not the mother was aware of the father’s move to (omitted), prior to the move being affected was not significantly relevant to the proposed arrangements for the children in the future. Counsel for the father did not press the matter any further. When both counsel were asked whether they required formal reasons for my ruling, counsel for the mother indicated that he did not and counsel for the father indicated she may reserve her position as to reasons. She did not raise this issue at a later time. Counsel for the mother did not indicate that the two affidavits upon which she sought to rely were relevant in any other manner other than the issue of the mother’s knowledge of the move by the father from (omitted) to (omitted).
I note that this issue was clearly agitated in the interim hearing before His Honour Judge McGuire on 22 October 2015, and the father would have been well aware that this was an issue at the date he filed his trial affidavit. There was no explanation given by counsel for the father as to why the affidavit had not been filed in accordance with His Honour’s trial directions which required all affidavits of both parties to be filed 21 days prior to the hearing.
Costs Application by the Mother’s Counsel 17 March 2016
On 17 March 2016 the matter could not proceed due to the ill-health of counsel for the father. Counsel for the mother indicated that he wished to pursue a costs application as a result of the required adjournment. Sensibly this application was not pursued.
The Applicable Law
Part VII of the Family Law Act 1975 (Cth.) sets out the provisions relating to children. Section 60B sets out the objects of the act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the act sets out how court is to determine what is in a child’s best interests.
Section 60CC(1) of the Act provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Section 60CC(2) of the Act provides that:
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I will firstly consider the primary considerations of the act.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Fortunately, both parents are of the view that both children should have a meaningful relationship with the other parent. This has been the case since orders were made by consent in June 2009, although the mother is of the view that her role as a parent has been marginalised by the father. Both propose that the children live with them and spend substantial and significant time with the other parent.
Counsel for the father, in her final submissions, directed me to various authorities as to the phrase “meaningful relationship”. She submitted that meaningful relationship does not mean optimal relationship. She submitted that Mr P in his report and evidence was focused on an optimal relationship. She did however concede that whatever the outcome of the proceedings the children would have a meaningful relationship with both parents.
Mr P, during cross examination by counsel for the father, agreed that the children have well established relationships with him and that these bonds would be maintained if the children were to reside with their mother.
I agree with the submission that irrespective of which household the children live in, the relationship between both children and both parents will be remain meaningful.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Both parents have filed a Notice of Risk.
The mother’s Notice of Risk was filed on 1 October 2015, paragraph 2(b) of the Notice states:
“the children are afraid of their father as they have witnessed him being threatening and violent to the mother in the past and he intimidates them.”
Paragraph 3(a) of the notice states:
“Allegations contained in previous affidavit material filed in the proceedings previously between the parties.”
Paragraph 4 of the notice states:
“the children are afraid of their father as they have witnessed the father being threatening and violent to the mother in the past and he continues to intimidate the children in a threatening manner.”
The father’s Notice of Risk was filed on 13 October 2015, paragraph 2(b) of the notice states:
“The children have witnessed the mother acting in a threatening and violent manner towards the father in the presence of the children. She continues on occasion to act in this manner to the detriment of the children.”
Paragraph (3) of the notice states:
“Allegations contained in the previous affidavit material filed with the Federal Circuit Court and Applications made for interim Intervention Order proceedings in the Magistrates’ Court”
Paragraph 4 of the notice states:
“The mother has continued to act in an irrational manner with spontaneous outbursts of threatening and violent behaviour often in the presence of the children. She has refused to comply with Court Orders to attend a Psychiatrist for a report to be attended to this Court.”
Not unusually, the allegations contained in each of the Notices of Risk are remarkably similar.
Mr P states in his report after interviewing the children: “Given the notices of risk that have been filed, and given what was reported by Ms E in her report under the heading “Issues in Dispute”, I can state confidently that there is no indication that there is any foundation to any of these concerns and that the children are clearly and obviously not at risk in the care of either of their parents”. [3] Mr P was of the opinion that there is no risk to the children other than a creation of anxiety by exposure to both parents to the dispute between them.
[3] at paragraph 25 of his report dated 21 December 2015
This statement was not challenged by either counsel during cross-examination and I accept the evidence of Mr P.
The additional considerations are set out in s.60CC (3) of the act. I will now consider the 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 views of both children are set out in the report of Mr P. According to the report, X made her position unequivocally clear. She would like to spend more time with her mother, but she does not want to move schools. As she had lived much of the time with her father, she now wanted an opportunity to live with the mother. There were two reasons advanced by X which were, firstly, she felt that at this stage in her life her mother was able to help more with “girl things”. Secondly, X feels the lack of her mother’s active involvement in her life and was of the view that her mother could also help to manage and organise her life and provide greater assistance with homework. This was of course, subject to her wish not to change schools yet again.[4] Mr P quoted X’s own words:
“it’s not that I don’t want to live with my dad, it’s just that I want to have more time with my mum. If things stay the same it will be okay but I would like to see much more of mum than I do now…. If a decision is made that it doesn’t happen then I’ll be sad but it will be okay.
“… I want them to know that I want more help with things like my homework in getting myself organised; my mum is really good at that. I also want to know that I want more time with Mum but mum also needs to know that what she thinks about dad and what she says about him is not how I see him. He is always trying to help me but he is busy.”
[4] at paragraph 22 to 24 of the report of Mr P dated 21 December 2015
The mother was accepting of X’s view. The father under cross-examination was of the opinion that X’s view as stated to Mr P was not a genuine expression of her views. His evidence was that after they left Mr P’s rooms on the journey home X cried and expressed remorse about her comments to Mr P and said that she still wanted to live with her father. Her explanation was that the mother would be upset if she had told Mr P her true views, which were that she wished to see more of her mother but to continue living with her father. He did not accept that Mr P had the capacity to discern whether or not X’s views were genuine. He was also of the opinion that the mother had exerted pressure on the children to elicit their views. The mother was cross examined about the emotional pressure she placed on the children, including allegedly crying on the telephone to the children after attending for the s.11F assessment report, however her response was that she did not influence the children in that regard. I have no doubt that the mother was upset after receiving the s.11F assessment report and that she would not have been able to keep her distress from the children.
Mr P was asked whether, in his opinion, the sentiments X expressed to him were genuine. His evidence was:
“I am much more suspicious of people who give me unequivocally black and white views. I think that her position was riddled with uncertainty, anxiety and ambivalence, so I think she is more believable because she is struggling with it.”[5]
[5]Page 15 at line 33 to 36 of the transcript dated 11 May 2016
In response to cross examination by counsel for the father, Mr P further said during his interview with X, the following occurred:
“Is there anything you would like the judge to know? “Tell the judge that my dad doesn’t really, really good job in looking after me and I really love him. I think that’s – I – it doesn’t fit with me that she has suddenly been transformed as a consequence of the influence that has been placed on – on her by her mum, because she saying all these things that are so positive about her dad.”[6]
[6] Page 32 at line 5 to 10 of the transcript dated 11 May 2016
Mr P also stated:
“my recollection is she is actually a pretty sensible, balanced kid, who is, sort of, struggling.”[7]
[7] Page 30, lines 33 and 34 of the transcript dated 11 May 2016
Y’s view[8] was also expressed to Mr P. His view was that whilst it was hard to leave his old school, he had settled really well at his new school; however his preference was to live with his parents on an equal basis.
[8] at paragraph 28 of the report of Mr P dated 21 December 2015
The father did not adduce any evidence that the view of Y as expressed to Mr P was anything other than a genuine view. In fact, during cross examination by counsel for the father, Mr P referred to his notes of his interview with Y, as follows:
“What would be the best outcome, do you reckon, Y? What would you like to see happen?” “If mum and dad could move back together, but I don’t think that will happen.” “What are you thinking about mum and dad and what they want?” “I really don’t know. I get really worried about it. I don’t want to upset them. I don’t know what I want to do. I have really mixed feelings. I want to be with mum, but I also want to be with dad. I love them both the same. I don’t know how such a hard decision can be made. I feel happy with both, but both of them. It will be sad to leave (omitted)’s, I think, because I’ve made some really good friends and I’ve got my basketball team there, but I do like living with them, and I’m half and half. I want to live half with mum and I want to live” – that’s his feelings, half. “Half of me wants to live with mum and half of me wants to live with dad. I think mum and dad shouldn’t worry so much about me and try and get on a bit better.”[9]
[9] Page 34, lines 40 – 47 and page 35, lines 1- 4 of the transcript
Accordingly, I find that the views of both children are considered, genuine and mature and that significant weight should be given to those views and in particular the views of X.
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)
Both children have an excellent relationship with each of their parents. X reported to Mr P that she loves her parents equally and that they are both equally important to her. Y would like his mother more involved in his life and to see her more frequently and to have her actively involved in his day-to-day life however he is also happy with his father and feels well cared for and looked after.
The children’s respective grandmothers have obviously had significant involvement in their lives. The maternal grandmother gave evidence about her involvement in the children’s lives. The paternal grandmother lives with the children and has obviously played an important role in their lives.
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
Participation in making decisions about major long-term issues in relation to the children
Paragraph 1 of the Consent Orders made on 17 June 2009 provide for the father to have sole parental responsibility for the children.
The mother’s perception is that she has had very little opportunity to participate in decisions about major long-term issues involving the children. She considers the father feels entitled to make unilateral long-term decisions and has not bothered to consult her. To this extent she has not been able to fully participate in decision-making and feels that her role as a parent has been marginalised. The father’s perception is that the sole parental responsibility orders of 17 June 2009 do not require him to consult with the mother prior to making major long-term decisions about the children. It is his prerogative alone.
This has had a number of consequences. Firstly the reduction of the mother’s time with the children, from the time that was provided in the orders of 17th of June 2009. The father and the mother disagree vehemently as to the reasons why the mother’s time with the children was reduced in January 2014. The mother’s perception is that the reduction of time was imposed on her by the father. The father’s perception was that the mother was unable to ensure the children’s attendance at school on days when the children were in her care. Secondly, the enrolment of X at (omitted) College was at the instigation of the father, although he did advise the mother of his intention to do so. X’s attendance at (omitted) College resulted in significant travel for her to enable her to spend time with the mother. It also seems that she had significant difficulty keeping up with the standard of work required by that school. This may be a factor why X was keen to embrace her new school, (omitted) Secondary College in (omitted). Thirdly, the father’s unilateral decision to move from (omitted) to (omitted). The father assumed that he was not required to consult the mother when changing schools, which is precisely what happened when he moved the family from (omitted). He was able to unilaterally cancel the enrolment of both children in their then current schools and to re-enrol the children in the schools which they now attend in the (omitted) area. There was no evidence that he had consulted the mother prior to doing so, nor did he see the necessity for the same. This had the consequence of enabling him to move from (omitted) without the consent of the mother. The move made it almost practically impossible for the children to spend time with the mother in accordance with the arrangements which had existed since January 2014.
Both parents had differing views about whether the mother had prior notice of the father’s intention to move. What is clear is that she did not consent to the move. The evidence of the father of the circumstances surrounding the move is that it was a joint family decision to move to (omitted). The idea of the family’s move from (omitted) to (omitted) commenced in February 2015 with the children expressing an interest to move closer to the beach, despite the fact that the children had never been to (omitted) until May 2015. The father gave evidence that he had arranged finance to purchase a house in the (omitted) area as early as May 2015 however he missed out on buying the house he originally wanted to purchase. He was then in a position of having an approval of finance to purchase another property which he did and which settled shortly prior to the family’s move to (omitted). The tenor of his evidence was that the children had partially instigated the move. I do not accept that the children instigated the move however, it is quite clear that it was presented to them in a favourable manner and no doubt the children were enthusiastic about the prospect.
Unless the mother was prepared to engage in significant travel, the move to (omitted) has had the effect of reducing the time the children are able to spend with their mother.
Opportunity to spend time with and communicate with the children
Between June 2009 and January 2014 the mother spent time with the children as best she could pursuant to the orders of 17th of June 2009. Thereafter she has spent time with the children in accordance with the new arrangements which reduced her time and which according to her, were imposed on her by the father as from January 2014.
The current proceedings were filed by the mother on 1 October 2015 and she seeks that the children live with her.
I find that both parties have taken all opportunities to spend time and communicate with the children.
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 children have lived with the father since separation. He has been financially responsible for the support of them whilst in his household. He was also responsible for payment of X’s private school fees at (omitted) College.
The mother has likewise been responsible for the financial support of the children in her household.
Counsel for the father put to the mother that she had failed to pay appropriate child support for the children. She implied that the mother had failed to lodge up-to-date tax returns to enable a proper child support assessment to issue. No documents were provided to support that proposition.
The mother’s evidence was that in fact, the father should pay her child support pursuant to the current assessment and that her tax returns were up to date.
I find that both parents have appropriately fulfilled their respective obligations to support the children.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The mother’s proposal is that the children live with her in (omitted) and spend significant time with the father, whether he chooses to remain in the (omitted) area or relocate to the (omitted) suburbs.
The father’s proposal is that the children remain living with him in (omitted) and spend time with the mother. He proposes that the time with the mother be in accordance with the arrangements entered into as from January 2014, provided the mother is prepared to travel to (omitted) to effect change over.
The mother’s proposal is a significant change in the children’s living arrangements which had been in place since 2009. However, the mother’s home in (omitted) is in the (omitted) suburbs of Melbourne where the children lived from birth until their relocation to (omitted). They attended kindergarten and (omitted) primary school in this location and have many friends and acquaintances in that area. Indeed the evidence of the father’s witness, Mr S, is that he lives in (omitted) and that his son, A is best friends with Y. A and Y are the same age and attended (omitted) primary school together. Furthermore, his daughter B, aged 11 years is friendly with X [10]. I have no doubt that the children have a strong social network in the (omitted) suburbs and that a return to this area would not cause them significant difficulty.
[10] paragraph 3 of the affidavit of Mr S sworn 17 February 2016
The children have an excellent relationship with their father and their paternal grandmother which would continue notwithstanding a return to the (omitted) suburbs. Mr P confirmed this when crossed examined.
The father was cross examined about whether he would return to the (omitted) suburbs in the event the children were placed in the care of their mother. His answers were contradictory. He initially said that the children were his priority and that he would do whatever was needed to prioritise the children. He then qualified that evidence by saying he would stay in (omitted) but later then said he would return to the (omitted) suburbs although not necessarily to his home in (omitted). He conceded that the terms of the rental agreement between himself and the tenants of the (omitted) property enabled him to give notice to vacate to the tenants to enable him to resume occupation of the property.
Tellingly, counsel for the father in her final submissions sought an order that if an order were made placing the children in their mother’s care in the (omitted) suburbs, then the father sought an order for equal time.
Mr P’s repeated evidence was that the children will do equally well in either parent’s household. He did not perceive that there would be any likely effect on the children of separation from either parent. His evidence was most emphatic and was as follows:
[Mr P]: Your Honour, my position is really as clear as it can be. If you decide that the children reside with their father and see their mother five of – on alternate weekends, they will be okay. I think if you make the decision that the children relocate and reside with their mother and see their father on alternate weekends, they will be okay. From the children’s perspective, if they were able to have their parents living closer together, I think they would be happier.[11]
In relation to X:
“And I think she would be absolutely fine, and I don’t think that her mother would be better than her father and I don’t think that her father would be better than her mother. What she said to me was, “I haven’t spent as much time with my mum, so I would like a chance to spend with her.” [12]
That’s why, from my perspective, it’s a fairly straightforward case. I understand that it’s complicated in, you know, a very – you know, but it’s – I think it’s a sort of a safe case, because the kids, I think, will be okay if they stay how they are. I think they’re likely to be okay if they – they move. And it makes sense to me that they want to spend more time with their mum, but it also makes sense to me that they want to spend time with their dad.[13]
[11] Page 27, lines 31 – 37 of the transcript
[12] Page 31, line 44 -47 of the transcript
[13] Page 35, lines 29 – 35 of Transcript – 11 May 2016
I have no doubt that the father will do all steps necessary to ensure the continuation of his close and devoted relationship with the children, irrespective of where he chooses to live. This will also include the support of the relationship between the children and their paternal grandmother.
In terms of education, obviously if the children live with their mother they would leave their existing schools on the (omitted) and would be re-enrolled in a school in the (omitted) area.
Whilst X is of the view that she does not want to change schools, she has readily coped with the change from (omitted) College to (omitted) Secondary College. According to Mr P,[14] X seems reconciled to the fact that she would attend school closer to the home with the mother.
[14] at paragraph 23 of the family report of Mr P dated 21 December 2015
Mr P was cross examined by counsel for the father about the change of school for both children which would be necessitated if the children were moved to their mother’s care. It was suggested to him that yet another change of school would be a big experiment for the children. In response to this proposition his evidence was:
The only problem with that question is that Mr Macleod embarked on quite a – an equally auspicious, I think, experiment, and one might argue he’s just lucky that – that it worked out okay.[15]
[15] Page 28, lines 13 – 16 of Transcript – 11 May 2016
The mother was cross examined about X’s preference to remain at (omitted) Secondary College. The mother’s evidence was that sometimes X said she would like to stay at the current school and other times she said she did not mind if she moved schools. When it was put to her that X had told Mr P that she did not want to change schools and that the mother had some difficulty with that proposition, the mother responded that one of the reasons X wanted to stay at school was that she was able to go to her boyfriend’s house and that she had a fairly free rein to do what she liked.
Y has accepted the move to (omitted) and has settled in to his new school. He does however miss his old friends. Mr P[16] is of the view that if Y were to return to his old school, or even another school or remain where he is, Y would adapt.
[16] At paragraph 28 of the family report of Mr P dated 21 December 2015
I accept that both children have adapted quickly and successfully to their new schools on the (omitted). Given the social connections with the (omitted) suburbs and the attitudes of the children towards changing schools as expressed to Mr P, I find that the children would have no difficulty in relocating to a school in the (omitted) suburbs closer to their mother’s home. In fact, the father’s move from (omitted) to (omitted) necessitated the children changing schools. The evidence of the father is that the children are thriving at the new schools and that the change of school was not problematic for either child.
The mother was cross examined about her proposed choice of school for the children and her evidence was that she had made some enquiries with a relatively new school (omitted) College in (omitted). She provided particulars of her enquiries during re-examination and stated that it was about 2 kilometres from her home in (omitted) and it was the only school where the children could attend the same campus. The father did not propose any alternate school for the children in the event the children were returned to live with their mother in the (omitted) suburbs.
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
A very significant reason for the father’s and children’s relocation to (omitted) was a reduction in the travel which the father had to undertake for his employment. He is employed in a responsible and senior position, as (occupation omitted) with (employer omitted), which is located in (omitted). His evidence was that whilst he was living in (omitted) he would travel to his employment in (omitted) each day leaving home to enable him to arrive at (omitted) at 8:30am and returning between 7.00pm and 7:30pm. This did not leave him with much time to spend with the children from the conclusion of school. It did not enable him to be involved in the children’s home work and most importantly, to be involved in and encourage the children to participate in extracurricular activities.
The father’s evidence was that since the move to (omitted) he would regularly arrive at home between 6:30 pm and 7.00 pm. This extra half hour enabled him to be more involved with the children’s homework and extra curricular activities. In addition, his evidence was that his work hours were quite flexible and that he was able to leave work at 4:30pm on a Wednesday to take Y swimming and to work from home on a Tuesday which enabled him to take Y to (hobby omitted). Furthermore, his evidence was that he was able to possibly work from home on Tuesdays and Fridays in the future except that he would have to attend a (employment omitted) at 10.00am each alternate Friday. He was able to arrange his work hours at his discretion.
He conceded that the proposal for the mother to spend time with the children if they remained living in (omitted) was a significant reduction of the time which the mother had initially enjoyed with the children pursuant to the 14 June 2009 orders. He conceded that it was very difficult, although not impossible, for the children to spend time with their mother on Thursday from conclusion of school until Tuesday at the commencement of school if they continued to live in (omitted).
It was put to the father that the move to (omitted) would also make it extremely difficult for children to spend time with their mother in accordance with the arrangements which had occurred since January 2014. His response was that the mother’s place of work in (omitted) was closer to (omitted) than it had been to the children’s schools when they were living in (omitted). His evidence was that the new schools were approximately one hour and 15 minutes from the mother’s work and notwithstanding that, he would be happy to meet the mother for change over at what he thought was a halfway point between (omitted) and (omitted), namely (omitted). He was happy to meet the mother at (omitted) at 7.00pm on Friday night for change over and again at 7:50 AM on a Monday morning at (omitted) and then take the children to school. He conceded this would involve the children travelling a distance of 75 km on Monday morning prior to attending school. In my view this cannot be seen as appropriate preschool travel nor in the best interests of the children He then varied his proposal so that the mother could collect the children from school at (omitted) on Monday afternoon and then return them to (omitted) on Monday evening. He considered that the mother could spend time with the children at her mother’s home which was near the proposed change over in (omitted).
The mother was not agreeable to the arrangements proposed by the father for her to collect the children from school on Monday afternoon and then return them to the father later that evening in (omitted). I find that such a proposal would impose significant and onerous travel on the children and the mother.
I find that the father’s current proposal :
(1)makes it impossible for the children to spend time with the mother pursuant to the June 2009 orders, namely for five nights each fortnight
(2)makes it completely impracticable for the children to spend time with the mother in accordance with the January 2014 arrangements.
Both counsel tendered Google maps in relation to the distances from various relevant places, including the mother’s home in (omitted), the mother’s place of employment in (omitted), (omitted) (X's School), to (omitted), (omitted) to (omitted) and (omitted).
The mother’s proposal was in the alternative, so that the children would spend time with the father for four nights a fortnight if he relocated to the (omitted) area and on each alternate weekend in the event he chose to remain living in (omitted). She proposed that the children would attend a local school in (omitted). Her proposal does not present any major practical difficulties if the father relocates to the (omitted) area. If the children live with the mother and the father remained living in (omitted), then the children would travel on Friday after school or Sunday evening. This would not involve any lengthy travel for the children prior to school on Monday morning.
The practical effect of the father’s relocation to (omitted) is that the children are able to enjoy an additional half hour each evening with their father and attend an extracurricular activity with their father on a Tuesday and/or Wednesday evening at the expense of the time that they could spend with their mother.
There was no explanation provided by the father why the flexibility with his working hours was not the case prior to the unilateral relocation to (omitted). He did not give any evidence to say that this had recently been implemented.
In my view, if the father has the flexibility of his working arrangements in accordance with his evidence, then a move back to the (omitted) suburbs would not present significant difficulties for him. He would be able to work from home each Tuesday and each alternate Friday with the possibility of each Friday. That would enable him to be available for the children after school on Tuesdays and possibly each Friday. With the cooperation of the mother, who indicated that she was keen to be involved in extracurricular activities, the children would be able to attend extracurricular activities scheduled in the (omitted) suburbs, with the added benefit that each parent would be able to attend at least some of the proposed activities.
Such a move by the father would enable the children to spend more time with the mother as they have both indicated they wish to do and would reduce the travel time for the children to move between each parent’s home.
The mother gave evidence about her current employment commitments and the fact that she had had elaborate discussions with her employer about changing her work hours in the event the children were to live with her. The result of those discussions was that the mother would be able to work school hours if she was prepared to be contacted after-hours should this be necessary. It would involve a step down in responsibility for the mother however she was prepared to do that to facilitate the children living with her.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
The mother was cross examined by counsel for the father at some length about her capacity to promote and facilitate a relationship between the children and their father.
It is apparent that the mother feels a considerable amount of animosity towards the father and she perceives that her role as the children’s mother has been marginalised by the actions of the father. This has no doubt been exacerbated by the circumstances of both the separation and the father’s commencement of primary care of the children
Counsel for the father suggested to the mother that she was not prepared to say anything positive about the father and that she was only too happy to put a negative spin on his actions. The mother’s comments about X being upset at the school graduation was an example of this.
The mother’s evidence was that X was very upset prior to the graduation and that she had reported this to Ms E during the s.11F assessment interviews. She was shown a photograph of X at the graduation, where she was happy and apparently enjoying the celebration. The mother’s explanation was that X had been hysterical prior to leaving home for the celebration upon learning that her father would be bringing a partner who was a stranger to X.
When asked to make positive comments about the father, the only comment the mother was able to make was that the father kept the house clean and tidy and attended to all of the washing. When pressed, she conceded that he had great friendships and worked hard. She was not prepared to make any further positive comments about the father.
Despite the attitude of the mother towards the father, there was no evidence that she would not or could not facilitate an ongoing relationship between the children and their father. I am of the view that the excellent, strong and committed relationship between the children and the father will continue irrespective of which household they are living in. The children’s comments to Mr P about how they perceive their relationship with both parents is telling in this regard.
The father’s attitude towards the mother is similarly compromised. The most obvious recent example of his attitude towards the mother is his unilateral relocation to (omitted) with the children in the face of the mother’s opposition to the move.
The father was cross examined about the mother’s lack of consent prior his move to (omitted) in August 2015. He conceded that prior to moving he did not firstly, obtain a court order enabling him to do so, and secondly, obtain the mother’s written consent. His evidence was that he had obtained a verbal understanding from the mother. When pressed, he conceded that the text message of the mother dated February 2015, which was exhibit J to his affidavit of 9 October 2015, was not evidence of consent but was rather evidence that the mother had considerable concerns about the proposed move. He conceded that the mother did not agree to the move to (omitted) prior to him entering into a contract in early August 2015, to purchase a property in (omitted). His evidence was, in fact, that he had made an earlier offer to purchase a property in May 2015, however he had been unsuccessful. As from May 2015 he had his finance arranged to enable him to purchase the property and move, however he had not advised the mother of this.
The father was obviously aware that the proposed move to (omitted) would have the effect of reducing the Mother’s time with the children in accordance with the arrangements which had been in place since January 2014. It must have been abundantly obvious to him that the move to (omitted) would have made it virtually impossible for the mother to spend time with the children in accordance with the orders of June 2009.
Notwithstanding the relocation to (omitted), the father has facilitated the children’s relationship with their mother, albeit the time the children have been able to spend with their mother has been reduced and has involved substantial travel for the children.
I refer to the comments at paragraph 69 hereof, as to the children’s perceptions of their relationship with each of their parents. Furthermore Mr P states:[17]
“Notwithstanding Mr Macleod’s role as primary parent, the reality from the children’s perspective is that both parents are of equal importance, and they would like both parents more actively involved in their lives”
[17] at paragraph 31 of the family report dated 21 December 2015
In my view it is highly unlikely that the children’s perception of the importance each of their parents in their lives would have been possible if either parent had been unable or was unwilling to facilitate and encourage a relationship between the children and the other parent.
Section 60CC(3)(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
I refer to the comments herein.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor does not apply in this case.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
In the order to address this consideration it is necessary to consider the circumstances giving rise to the father assuming primary care of the children.
As referred to elsewhere in this judgement, prior to separation the mother was the primary carer of the two children. At the date of separation X was aged five and Y was aged almost two. The father was not critical of the mother’s care of the children prior to separation and was content to adopt the role of breadwinner for the family whilst the mother was at home caring for the children. He conceded that the children were closely bonded with their mother and that they were happy and relaxed in her care.
There was much cross examination about the circumstances giving rise to the mother leaving the family home. The mother’s evidence was that she was ejected from the family home by the father and that she was homeless for some time following separation, indeed spending periods of time living in her car and was not in a position to provide suitable accommodation for the children.
The father’s response to the proposition, that he was the parent who decided what would happen with the children post separation, was that “if the mother wanted to challenge me for the children she could have done so”.
The father asserted that following separation, the mother did not make any attempt to see the children until approximately 8 weeks after separation when she visited the children on three or four occasions between October 2008 and January 2009. On at least two of these occasions the father was forced to involve the police to eject the mother from the home because she did not want to leave the children. As the father was working full-time and continued to do so, his evidence was the children were quickly placed into day-care and before and after school care.
In stark contrast, the mother asserted that during this time she would care for the children whilst the father was work and would leave the home when the father returned home. She did agree that on a number of occasions she was reluctant to leave the children.
On 21 January 2009 the mother returned to the family home and sought to resume living there with the children. The father’s response was to call the police and to apply for an intervention order against her.
Where the evidence of the mother and the father differs in relation to this this issue, I accept the evidence of the mother in preference to that of the father. It is inconceivable that the mother who was the primary carer of the children and who, on her evidence, was desperately missing the children and had made attempts to resume living in the family home with the children, would not have made any attempt to contact the children until eight weeks after she left the family home. The father was unable to provide any particulars of the daycare and before and after school care which he supposedly arranged for the children.
In any event, on the 13 February 2009 the father issued an application in this court seeking that the children live with him. I refer to paragraphs 9 to 11 which set out the circumstances relevant to the making of the orders on 17 June 2009.
The mother asserted that she was tricked about the father’s and the children’s attendance on Mr P for the first family report. Her evidence was that she had a telephone conversation with the father whilst he was in the car with the children on the way to Mr P’s rooms. She asserted that the husband told her that he was taking the children to a doctor however he did not disclose that he was on the way to see Mr P.
The father admitted that the mother telephoned him on the morning of the first family report interview in June 2009, whilst he was on the way to an appointment with Mr P. During that conversation, he told the mother that he was “on my way to the doctors”.
During cross examination, Mr P referred to a letter which he had received from the mother on 15 June 2009. A copy of that letter was provided to both counsel and subsequently tendered by Counsel for the father[18]. That letter reads as follows:
[18] exhibit F2
Dear Mr P,
I, Ms Macleod wanted to explain to you that I am just a desperate mother wanting to be a mother to my children. I do not have thousands of dollars at the moment and discussed this with my husband. We decided to come to an agreement which would mean we did not have to attend the appointment with you for a family report.
On 12 June’ 09 (Thursday) I rang and spoke to my husband, at 9 AM and 9:15 AM and asked him if he still wasn’t attending the appointment and he replied he wasn’t, he was taking our children to the local doctor as they had a cough. That afternoon I picked up our children and again asked my husband if he attended the court appointment. His reply was “no, we don’t have to go to court until the 17th.” My daughter X told me at the doctors she drew a beautiful picture of her family. Knowing this, I rang and asked my husband again and he said, X drew a picture for the Secretary at his solicitors as he had to drop in. X then told me the doctor asked about her dreams. I then knew my husband had attended the appointment. I rang my husband yet again and said to him to tell me the truth, his reply was, “I had already paid, it has nothing to do with the court, I just wanted to check our children were okay.”
I am just so devastated.
Thank you for your time.
Yours sincerely
Ms Macleod.
The evidence of the mother is entirely consistent with that letter, although, as pointed out by counsel for the father, the mother during her evidence did not give evidence about the events referred to in that letter from the sentence commencing “That afternoon…” .
I have no doubt as to the veracity of the mother’s evidence about this matter which is entirely corroborated by a contemporaneous document. I also have no doubt that the father’s conduct in obtaining the first family report and the circumstances surrounding the children remaining in the father’s primary care post separation left a lot to be desired. As a result of that evidence, I find that the husband’s credibility has been substantially compromised.
Despite the very sad circumstances for the children immediately subsequent to separation and the contentious circumstances in which the children came to be in the primary care of the father, I find that the mother has demonstrated at all times an appropriate attitude to the children and the responsibilities of parenthood. She has persisted in her endeavours to spend time with the children and to be an actively involved parent and to her credit the children have an excellent relationship with her.
The father has cared appropriately for the children and has discharged his parental responsibilities towards the children during the time they have lived in his primary care.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
Apart from the Notices of Risk which were filed by each of the parties and which I have referred to at paragraphs 54 - 57 hereof, the mother has made allegations of the overbearing and threatening demeanour of the father.
The father was cross examined about the events which occurred many years ago and prior to separation. In particular, he was cross examined about the heated arguments to which the children were exposed at the time of separation and the presence of the police in the family home.
He was cross examined extensively about an incident which occurred in the presence of the mother’s son C and which was referred to at paragraph 29 of the mother’s trial affidavit. This incident was also referred to at paragraph 8(c) of the father’s affidavit sworn 11 June 2009 and again at paragraph 34 of the father’s affidavit sworn 19 March 2009.
The father’s evidence about this incident was inconsistent with the two versions deposed to in the earlier affidavits.
In his final submissions counsel for the mother invited me to make adverse findings against the father. In relation to the issue of family violence. He also took exception to the comments of the mother’s counsel that the mother was “playing the violence card”.
The mother’s demeanour whilst giving evidence about the alleged family violence perpetrated by the father was subdued and entirely credible. The father’s evidence whilst attempting to explain the discrepancy in his affidavit material about this issue and in particular the incident involving the mother’s son C was not convincing.
However, whilst the father’s behaviour at that time is obviously of concern and a factor which I’m obliged to take into consideration, the reality is that the children have lived in the primary care of the father since 2009. I also refer to the comments of the children to Mr P and to the comments I have referred to at paragraphs 61 to 68 of this judgment.
Section 60CC(3)(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
On 20 January 2009 the father obtained an ex parte interim intervention order against the mother on behalf himself and the children in the Magistrates’ Court at Dandenong.
On 27 January 2007 the mother issued an application to vary the interim intervention order which had been obtained by the father. On the return date of that application, both parents agreed to withdraw their respective applications against each other.
There have been no further intervention orders obtained by either party and there has not been any findings made by any court in relation to the dispute giving rise to the intervention order.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
As previously referred to in this judgment, the current proceedings have arisen as a result of the father’s unilateral relocation of the children to (omitted). In order to minimise the possibility of yet another change in the residence arrangements of the children, it is appropriate that there be an order for equal shared parental responsibility. This is to ensure that one parent is not empowered to change the school enrolment of the children or their living arrangements without the consent of the other parent and thereby minimise the potential for a repeat of the current dispute.
The school which the mother proposes the children attend will be the third school the children have attended within the preceding 12 months It is obviously preferable that the children have certainty and stability in their education and living arrangements as they progress through their secondary school education.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
Mr P in his report canvassed the mother’s capacity and/or ability to move to (omitted), or to move to a midpoint between the two residences such as (omitted). That would enable the mother to at least take on an equal care arrangement with the children, or at least to reduce travel time with the children from home to school.
The mother’s position was that she would not or could not entertain such a move due to the work commitments of herself and her partner and her desire to live near her adult children in the (omitted) suburbs. There was some suggestion that her daughter D, the children’s half-sister might live with the mother in her household. I accept the explanation of the mother in this regard.
The father’s evidence as to his capacity and or willingness to return to the (omitted) suburbs is referred to at paragraphs 88 and 89 hereof. Apart from the distance for the father to travel to his place of employment, he did not raise any compelling reason why he would be unable to move back to the (omitted) suburbs.
Equal shared parental responsibility
Section 61DA provides, when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or it is otherwise not in the best interest of the child for the child’s parents to have equal shared parental responsibility.
Section 61DA of the Act provides as follows:
(1)When making a parenting order in relation to a child, the court must 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.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Equal or substantial and significant time with each parent
Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of s.65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time, with each parent. Subsections (1) to (5) inclusive of s.65DAA provide as follows:
Equal time
(1)… 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.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2)… if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(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.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In 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, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note:Paragraph (c) reference to future capacity – the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Parental Responsibility
The father seeks an order for sole parental responsibility for the children as has been the case since the orders made by consent on 17 June 2009. The mother seeks an order for equal shared parental responsibility.
I am of the view that the statutory presumption of equal shared parental responsibility applies in this case. I am not satisfied that there is evidence to rebut the presumption. An order for equal shared parental responsibility requires the parents to cooperate in making long-term decisions about current and future education, major health issues, religion and cultural upbringing, the child’s name and any change in the child’s living arrangements which will make it significantly more difficult for the child to have a relationship with the other parent.
The mother is a parent who has consistently pursued a full and beneficial relationship with each of the children. She has actively sought to be involved in their lives, subject to the limitation of an order for sole parental responsibility in favour of the father, including the being involved in their education and health. She considers herself to be a committed and devoted parent who has historically involved herself in every aspect of the children’s lives. This was not disputed by the father.[19] The father’s evidence was that she was the primary care giver of the children prior to separation and that he had no concerns about her capacity to parent or make decisions about the children prior to separation. He was unable to point to any deficiency in the mothers parenting other than at times the children had been absent from school whilst in their mother’s care.
[19] Family Report of Mr P dated 21 December 2015 at paragraph 14
The father has been a caring and committed parent who, prior to the move to (omitted), has made appropriate decisions quite clearly in the best interests of the children. I do not have any concerns about either parent to make appropriate decisions for the children in the future.
The purported exercise of sole parental responsibility by the father has resulted in the current proceedings. The children have changed schools without the input or consent of the mother. As a result of the father’s move to (omitted), the children’s living arrangements have made it significantly more difficult for the mother to have the quality of relationship with the children, as was envisaged by the June 2009 orders. In fact, it is practically impossible for the children to spend time with their mother in accordance with the orders of June 2009.
The father’s evidence about this issue was that he considered it appropriate for an order for sole parental responsibility in his favour even if the children were to live with their mother. This was despite his evidence that he had no concerns about the decision making capacity of the mother. He felt that he had to “take the reins” in the decision-making process and that the mother found it hard to move on from the past. He was of the view that both parents were currently unable to communicate as they could not agree on anything. However, his oral evidence in chief was that he last spoke with the mother last year as communication was mainly via text. However, and very importantly, prior to the move to (omitted), the parents could communicate all the time.
Under cross-examination the father agreed that communication with the mother may be difficult but he was prepared to try. He also conceded that he was prepared to do a parenting orders program. If the court so ordered.
The mother’s evidence about communication was that she considered it would be possible in the future. Both parents needed to put aside their differences and communicate in a manner beneficial for the children.
Both parties expressed their willingness to undertake a post-separation parenting course to assist their communication skills.
It is not uncommon for parents who are embroiled in litigation to be unable to communicate and to fail to reach agreement. This is no reason to exclude a competent parent from the decision-making process about their children’s lives. It is incumbent on these two competent and caring parents to improve their communication and cooperation skills to reach agreement about such issues.
It is a very serious matter to exclude the rights and responsibilities of parental responsibility from a parent. His Honour Murphy J stated in Lennon & Lennon [2011]FamCA 571:
[108] The exercise of discretion in favour of excluding one parent from consultation and decision-making in respect of major long-term issues through child is, it seems to me, a very significant step being a very serious interference with the fundamental rights of a person. There is no doubt that the exercise of that discretion ought to be resolved in favour an outcome which is seen to be in the best interests of the child. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant.
The parents are able to communicate via text and email. I consider the current problems have arisen to a significant extent from the imbalance of decision making power arising from the current order for sole parental responsibility. Clearly the father has adopted the position that his view is determinative and that he was not legally obliged to consult nor take into consideration the views of the mother. The father is a responsible and committed parent and I have no doubt that both parents will make appropriate decisions for their children if they are jointly required to do so. Accordingly, I intend to make an order for equal shared parental responsibility.
Statutory Pathway
Having determined that it is in the best interests of the children that there be an order for equal shared parental responsibility, I am now required to address the statutory pathway as set out in s.65DAA(1) –(5).
Firstly, I will address the children living equal time with both parents.
Neither party in their respective Application and Response have sought in order that the children live equal time with both parents. There was no specific evidence adduced on behalf of either party or cross examination by either counsel in this regard. However, as submitted by counsel for the mother, I am not bound by the proposals of the parties.
The only mention of equal time is contained in paragraph 34 of the family report where the possibility is raised if the mother were prepared to move to (omitted) or to midway point such as (omitted).
However, Mr P, under cross examination was of the view that the best arrangement for the children provided one parent was prepared to move reasonably close to the other was an equal shared arrangement.
Secondly, I will address whether an equal shared care arrangement is reasonably practicable. Obviously, such an arrangement would not be practicable given the current geographical constraints. It would be simply impossible for the children to live equal time in (omitted) and (omitted) and as previously referred to neither parent sought such an arrangement. It would, however be practicable if one parent were prepared to relocate closer to the other parent.
The evidence of the mother is quite clear that she had no intention nor indeed capacity to move to (omitted) or (omitted). The evidence of the father was equivocal as to whether or not he was prepared to move to the (omitted) suburbs to enable such a proposal. It initially seemed to me that the father’s preference, notwithstanding the flexibility of his work hours, was to remain living in (omitted). However, the father’s position changed during final submissions and I was informed by his counsel that his proposal for the children’s living arrangements in the event orders were made for their return to their mother in the (omitted) suburbs, was for equal time. This submission gives me the upmost confidence that if the children were returned to their mother in the (omitted) suburbs, then the father would be prepared to move closer to the mother’s home to enable an equal time arrangement to be implemented. I refer to the father’s evidence at paragraph 88 hereof about his capacity to move into his property in (omitted) and the fact that, if he chose to move, he would be able to retain the (omitted) property. There were no submissions made about the configuration of proposed equal time, however given the age, maturity and views of the children, I am of the opinion that a week about arrangement would be in their best interests.
Having regard to the matters mentioned herein and hearing the evidence of the parties and Mr P, I am of the view that, conditional upon the father relocating to the (omitted) suburbs, equal time is in the best interests of the children.
However, in the absence of a move by the father from (omitted) to the (omitted) area, it is not reasonably practical for the children to live equal time with each parent.
The proposals of both of the parents, in the absence of a move by either parent, provide for the children to spend substantial and significant time with the non-residential parent.
The proposal of the mother, in the event she is the primary carer of the children, provides for the children to spend each alternate weekend with the father, special occasions and half holidays.
The proposal of the father, in the event the father remains the primary carer of the children, provides for the children to spend each alternate weekend with the mother, special occasions and half holidays.
Although not referred to in the formal proposals, each parent is amenable to the children spending additional time on long weekends with the non-residential parent, on weekends which involve public holidays on the Monday.
Conclusion
The children’s best interests are served by them living primarily in their mother’s household in the event the father does not move from (omitted) to the (omitted) area.
Counsel for the father in her final submissions urged me to consider two factors which would support the continuation of the current living arrangements. Firstly, the children are thriving in their father’s care and to place them in their mother’s care would be a “jump into the unknown”. Secondly, the children, and in particular X has expressed a view to remain at her current school.
For the reasons set out herein, I do not accept the submission that the mother assuming primary care of the children poses a risk to the children or can be viewed as “a jump into the unknown” As referred to extensively in this judgment, the children have an excellent relationship with their mother and she has been significantly involved in their care since separation in 2008. Prior to separation, she was the children’s primary carer and there are no criticisms whatsoever of her capacity to care for the children when they were in her primary care. The evidence of Mr P is quite unequivocal that the children would do well irrespective of which household is their primary home.
The views of both children impress me as being well reasoned and mature and in regard to X, not unexpected for a young woman in her early teens, wishing to spend more time with her mother. I therefore place significant weight on their views.
I am also of the opinion that the father is more than likely than not to return to the (omitted) suburbs to assume an equal time arrangement with the children.
In relation to the issue of a change of school, I refer to paragraphs 93 to 97 hereof and in particular the evidence of Mr P. I unequivocally agree with Mr P that the father jumped into the unknown in August 2015, when he unilaterally relocated to (omitted). However, it is also abundantly clear from the evidence of Mr P in relation to the children’s comments about the change of school, that they are resilient and would cope with the change school.
For these reasons, I make the orders set out at the commencement of this judgment.
I certify that the preceding one hundred and ninety one (191) paragraphs are a true copy of the reasons for judgment of Judge Williams
Date: 17 June 2016
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Remedies
0