Manzer & Almy
[2008] FMCAfam 901
•21 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MANZER & ALMY | [2008] FMCAfam 901 |
| FAMILY LAW – Parenting orders – relocation. |
| Family Law Act 1975, Part VII |
| Taylor and Barker (2007) 37 FamLR 461 Sampson and Hartnett (No 10) (2008) 38 FamLR 315 |
| Applicant: | MR MANZER |
| Respondent: | MS ALMY |
| File Number: | NCC 2614 of 2007 |
| Judgment of: | Lapthorn FM |
| Hearing dates: | 22, 23 January, 6 February 2008 |
| Date of Last Submission: | 6 February 2008 |
| Delivered at: | Newcastle |
| Delivered on: | Orders: 6 February 2008 Reasons: 21 August 2008 |
REPRESENTATION
| Advocate for the Applicant: | Mr Byrnes |
| Solicitors for the Applicant: | Byrnes Lawyers |
| Counsel for the Respondent: | Mr Davies |
| Solicitors for the Respondent: | McCabe Partners |
ORDERS
The mother and father have joint parental responsibility for the children of the relationship [X] born in 2002 and [Z] born in 2004 (“the children”).
From the date of this order until the mid point of the holidays at the end of Term 1 of the New South Wales School Year in 2008 the children shall live with the mother save and except as follows when they shall spend time with the father:
(2.1) from 9:00am on 21 March 2008 until 9:00am on 25 March 2008 provided that the mother shall deliver the children to the father at McDonalds, [P] at the commencement of such period and shall collect the children from the father at McDonalds, [P] at the conclusion of such period;
Conditional on the father:
(3.1) paying to the mother or as she otherwise directs the sum of $4,000 by 19 March 2008; and
(3.2) paying for a removalist to remove the mother’s furniture, goods and possessions from [Y] to [P];
the children shall as and from the mid point of the holidays at the end of Term 1 of the New South Wales School Year in 2008, live in [P] subject to the provisions of orders 4 - 8 below.
From the time the children live in [P] until the end of 2008 the children shall:
(4.1) spend time with the father as follows:
(4.1.1) for the second half of the School Holidays at the end of Term 1 of the New South Wales School Year;
(4.1.2) from after school on Friday until the commencement of school on Monday morning each alternate week commencing the second Friday after [X] commences school in the [P] area;
(4.1.3) from after school on Wednesday until the commencement of school on Thursday each Wednesday, commencing from the first Wednesday after [X] commences school in [P];
(4.1.4) for one half of each School Holidays other than the Christmas School Holidays in 2008;
(4.1.5) from 12:00 noon on Christmas Day for a period equivalent to one half of the Christmas School Holidays;
(4.1.6) provided that if the father is not otherwise spending time with the children pursuant to order 4.1.2 above on Father’s Day, he shall spend from 9:00am until 6:00pm with the children on that day with the mother to deliver the children to the father at 9:00am at [P] and the father to return the children to the mother at [P] at 6:00pm;
(4.1.7) in the event that pursuant to orders 4.1.2 or 4.1.4 the father would be spending time with the children on Mother’s Day, such time spent shall be suspended and the mother shall instead spend time with the children from 9:00am until 6:00pm on such day with the father to deliver the children to the mother at McDonalds at 9:00am on that day and the mother to return the children to the father at McDonalds at 6:00pm on that day;
(4.2) live with the mother at all other times.
From the beginning of 2009 until the end of the School Holidays at the end of Term 1 of the 2010 New South Wales School Year the children shall:
(5.1) spend time with the father as follows:
(5.1.1) from after school Thursday until the commencement of school on Tuesday each alternate week commencing on the second Thursday after the commencement of the school Term;
(5.1.2) from after school on Monday until the commencement of school on Tuesday each alternate week commencing on the first Monday after the commencement of the School Year;
(5.1.3) for one half of each School Holidays other than the Christmas School Holidays in 2009;
(5.1.4) for the first half of the 2009 Christmas School Holidays provided such time spent shall be suspended from 12:00 noon on Christmas Day until 12:00 noon on Boxing Day and the children shall spend time with the mother instead;
(5.1.5) provided that if the father is not otherwise spending time with the children pursuant to order 5.1.1 above on Father’s Day he shall spend from 9:00am until 6:00pm with the children on that day with the mother to deliver the children to the father at 9:00am at [P] and the father to return the children to the mother at [P] at 6:00pm;
(5.1.6) in the event that pursuant to orders 5.1.1 or 5.1.3 the father would be spending time with the children on Mother’s Day, such time spent shall be suspended and the mother shall instead spend time with the children from 9:00am until 6:00pm on such day with the father to deliver the children to the mother at McDonalds at 9:00am on that day and the mother to return the children to the father at McDonalds at 6:00pm on that day;
(5.2) live with the mother at all other times.
From the commencement of Term 2 of the 2010 School Year the children shall:
(6.1) live with equally the father and the mother on a “week about” basis except as set out below, commencing from the conclusion of school on Fridays, with the parent with whom the children did not spend time in the last one half of the Term 1 School Holidays to have the children live with them from the conclusion of those School Holidays until the next Friday with the week about arrangement to be implemented thereafter;
(6.2) provided that if the father is not otherwise spending time with the children pursuant to order 6.1 above on Father’s Day he shall spend from 9:00am until 6:00pm with the children on that day with the mother to deliver the children to the father at 9:00am at [P] and the father to return the children to the mother at [P] at 6:00pm;
(6.3) provided that if the mother is not otherwise spending time with the children pursuant to order 6.1 above on Mother’s Day she shall spend from 9:00am until 6:00pm with the children on that day with the father to deliver the children to the mother at 9:00am at [P] and the mother to return the children to the father at [P] at 6:00pm;
(6.4) the week about arrangement shall be suspended during each Christmas School Holiday and instead the children shall live with the mother for the first half of the 2010 School Holidays and each alternate year thereafter and with the father for the second half in such years and with the father for the first half of the 2011 School Holidays and each alternate year thereafter and with the mother for the second half in such years;
(6.5) the parent with whom the children are not living with in the first half of such Christmas School Holidays shall spend time from 12:00 noon on Christmas Day until 12:00 noon on Boxing Day with the children;
In the event of the father failing to make the payments referred to in order 3 above then:
(7.1) in the event of him relocating to [Y] the provisions of orders 4, 5 and 6 above shall apply (save and except for the reference in [P] in order 4 being deleted and replaced with “[Y]”);
(7.2) in the event of him not relocating to [Y]:
(7.2.1) the children shall live with the mother;
(7.2.2) the father shall spend time with the children as follows:
(7.2.2.1) all of the School Holidays at the end of the New South Wales School Terms 1 and 3;
(7.2.2.2) for one half of the School Holidays at the end of Terms 2 and 4 alternating between the first half in odd numbered years and the second half in even numbered years;
(7.2.2.3) for one weekend each School Term from 3:00pm Friday until 6:00pm Sunday;
(7.2.2.4) as otherwise agreed.
If pursuant to these orders the mother relocates to [P] or the father relocates to [Y], both parties are restrained from living more than
30 kilometres from the [P] or [Y] Post Office (as the case may be) without the written consent of the other party or the leave of the Court.
The parties are to have liberal telephone communication with the children whenever the children are in the other party’s care. The children are to be afforded privacy during each of their telephone calls.
Both parties keep the other informed of a telephone contact number and residential address at all times and where there is any change of such number and/or address the party whose number and/or address is changed is to notify the other as soon as reasonably practicable and not later than 48 hours of the change of number and/or address.
Each party is to telephone the other as soon as practicable upon the happening of any of the following:
(11.1) either child becoming seriously ill;
(11.2) either child becoming hospitalised; or
(11.3) either child being involved in an accident.
Each party be and is hereby required to use all reasonable endeavours to ensure the children maintain their social educational and sporting commitments during each period the children are with that party.
Each party be and is hereby restrained from denigrating the other in the presence of the children or knowingly permitting any other person to do so.
Neither party is to smoke indoors or in a motor vehicle in the presence of the children and either party is to remove the children from the presence of any other person smoking indoors or in a motor vehicle in the presence of the children.
The parties are restrained from permitting the children to call any other persons by the title “Mum” or “Dad”.
The parties are restrained from permitting the children to use any other surname other than their given birth surname.
Where any time spent with the children commences or concludes at school the drop off and collection point shall be such school. Where no specific reference to a drop off or collection point is given such point shall be:
(17.1) McDonalds in [P];
(17.2) McDonalds, [Y].
The children shall attend a school appropriate to the zone in which they are living with the mother provided such school shall be within
30 kilometres of the [P] Post Office and shall not be [T] or [B] Primary School.
The mother will do all acts and provide all information reasonably requested by the father to enable him to comply with order 3.2 above.
IT IS NOTED that publication of this judgment under the pseudonym Manzer & Almy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2614 of 2007
| MR MANZER |
Applicant
And
| MS ALMY |
Respondent
REASONS FOR JUDGMENT
Introduction
On 6 February I made the orders set out at the commencement of this judgment after hearing an application for parenting orders. The reasons for the decision are set out below.
Mr Manzer and Ms Almy are the parents of two young children, [X] and [Z]. [X] is 5 years of age and [Z] is 3. The parents asked the court to make orders as they were unable to agree as to the future parenting of the children.
The father sought orders that would provide for the children to live in the [P] area with each parent on an equal shared care basis, or in the alternative, primarily with him and spend time with the mother. The mother proposed that the children live primarily with her in [Y] and spend time with the father one weekend a month, half school holidays and on other special occasions.
Issues
Whilst the ultimate issue for determination is where the children should live the significant issue in the case is the mother’s desire to live with the children in [Y]. Such an arrangement would make it impossible for the children to see their father as often as they otherwise would have if they remained living in the [P] area unless the father was able to move to the [Y] area. [Y] is about a 10 hour journey from [P].
The mother was prepared to live in the [P] area with the children in the event the court held that it was in their best interests to live in that area near the father.
Background
At the hearing the father, 37, was a [educational professional] and lived in [H]. The mother, 32, lived in [Y] with her brother. She had an offer of part time work as a casual [omitted] assistant.
[X] was born in 2002 and [Z] was born in 2004.
The parties commenced a relationship in 1995 and began living together in 1996. Later that year the father moved from [T] to [P]. The father says the parties separated until the mother joined him in 1997. The mother says the relationship continued. I do not need to determine this disputed fact. They separated on a final basis in June 2007.
The parties lived in [W] for about 4 years between 1999 and 2003 when they returned to [P]. They remained living in that area until separation.
After the parties separated the mother decided she wanted to move to [Y] to live near her family. The father filed an application for parenting orders in the Local Court at [P] seeking to prevent the mother from relocating with the children. The mother gave an undertaking to take the children to [Y] only for an agreed period of time then return the children to their father. However she ultimately decided she wished to permanently relocate to [Y].
On 16 October 2007 I made interim orders that if the mother continued to reside in [Y] the children live with the father and spend one week every month with her but that if she returned to the [P] area the children live with each parent on a week about arrangement. By the time of the hearing the mother had remained living in [Y] and saw the children in accordance with the interim orders.
This move to [Y] has had a significant impact on the parties and the children.
The Evidence
The father relied on his affidavits filed:
1.23 July 2007;
2.12 October 2007;
3.10 January 2008; and
4.6 February 2008.
The mother relied on her affidavits filed:
1.17 January 2008; and
2.5 February 2008.
A Family Report was prepared by Annette Jones, Regulation 7 Family Consultant on 29 December 2007. In her report the writer recommended the children live with the mother in [Y], that the Director-General, Department of Community Services be requested to intervene in the proceedings and subject to any adverse finding by the Department against the father he spend time with the children in [Y] one weekend per month and for half school holidays in [P]. The report writer also recommended the father’s time with the children be supervised if he was unable to refrain from denigrating the mother.
The reason for requesting the Director-General to intervene was as a result of concerns raised in the report as to the father’s alcohol consumption and allegations of sexualised behaviour from [X].
During cross examination, Ms Jones indicated that the primary reason for her supporting the mother’s relocation with the children to [Y] was that she had family support in the area. She said that she was also influenced by the issues of child safety that had been raised. After reading the documents produced under subpoena from the Joint Investigation Response Team (JIRT) Ms Jones no longer held the view that those child safety concerns had any currency. This issue was not pursued by either party and therefore I will not cover it further.
Ms Jones conceded that the potential child safety issues influenced her decision about the relocation aspect of the case and she withdrew her support for the mother’s relocation position. With the child safety concerns allayed, Ms Jones expressed the view that both parents could play a significant and positive role for these children and that it would be in the best interests of the children if the parents lived in close proximity to each other so that they could be involved together with their schooling, sport and religious upbringing.
Ms Jones gave evidence under cross examination from Mr Davies, for the mother, that the children have been primarily cared for by the mother for the majority of their life and that that was a positive factor leading to a decision that the children reside with her however she went on to note that they have had a significant involvement with their father notwithstanding that there was a period where he was unwell and the relationship difficulties would have had an effect.
Ms Jones said that the difficulty in this case is the young ages of the children. She said that older children can manage more block periods of time away from a parent such as school holidays but these children were far too young for that sort of arrangement for them to constructively develop their relationship with the non primary carer. The report writer suggested that they would need to reside with one parent and have regular time with the other but a ten hour travel distance is not good for the children. She noted that the primary attachment for the children was with their mother and therefore that should continue provided that they spend time with their father. She conceded that given [Z] was only three relocation was not indicative of his best interests. She was of the view that there would be a danger to [Z] of losing his attachment to his mother if he lived primarily with the father and ten hours away from the mother.
It became clear from reading the family report and the answers given under cross examination that Ms Jones, who was relatively new at the time to the preparation of regulation 7 reports, misunderstood the legislative framework which the Court was required to follow. The Court put to Ms Jones that her report and evidence indicated that she saw only two options: the children either living full time with the mother; or full time with the father because they were the proposals that each party indicated to her that they were seeking. Ms Jones said that she did not appreciate that the Court was not bound by the parties’ respective proposals. Whilst this approach may have impacted the written conclusions of her report I am satisfied that when cross-examined by both counsel and questioned by the Court the witness was able to properly adjust her approach. I am confident that I am able to rely on the evidence of the report writer as it remained after cross examination. During the hearing I indicated to counsel that I was excluding part of the written report that related to opinion evidence beyond the witness’s professional capacity.
I had an opportunity to observe both parties in the witness box. They each gave their evidence to the best of their ability in an honest and forthright way. Although their evidence differed in parts I did not find either party to be deliberately misleading. Some people recall history differently and given the emotional issues associated with the dispute between these parties it is not surprising their recollections differed. Where it is necessary for the court to make any finding as to a disputed fact I will indicate whose evidence I prefer.
The mother was very concerned as to the father’s alcohol consumption giving evidence that from the very beginning of their relationship he drank to excess. He was cross examined at length about this and denied that it was excessive in the early years. He specifically denied regularly vomiting or blacking out. I find that whilst the father has no doubt minimised the extent of his alcohol consumption there is insufficient evidence to make any finding that throughout the relationship he regularly consumed alcohol to such an extent that it could be deemed excessive. Many young men in their late teens and early twenties consume alcohol excessively especially with their football mates. The father was a secretary of the local football club and conceded that there were times that he would drink with his mates. No doubt there were times when he had too much to drink.
The mother has a clear dislike for alcohol. She has never drunk it. The mother would not allow the father to store any alcohol inside the house. He was to keep it in the garage where there was a fridge set aside for his beer. Scotch was kept in the filing cabinet in the garage. The mother also required the father to disguise the consumption of alcohol in the house and the father gave evidence that he would put a can or bottle of beer in a stubbie holder and would keep it below the bench top in the kitchen so that the children would not see it. The father conceded that in the later part of the relationship, when he was having difficulties at home and at work he drank more than otherwise during the relationship. The father’s evidence is that during this period he was having significant difficulties with his employment and did not feel supported by the mother.
The father admitted himself to the [P] Hospital on 20 February 2007 after taking 13 Vallium tablets and consuming about 5 stubbies of beer. The father drove himself to the Emergency Department. Mr Davies put to the father that on 20 February 2007 he was attempting to commit suicide. The father was reluctant to concede that but he did say that he remembered saying to his psychologist, Ms N, “that it felt like a suicide attempt and I was seeking help”. At this time the father was experiencing major relationship problems with the mother and was also having difficulties with his employment. The father does not recall the conversation he had or the conversations he had with the hospital staff. This is not surprising given the emotional state in which he was in.
Documents from the Hospital were tendered as exhibit “M1” and clearly indicate the father having a serious alcohol and gambling problem in February 2007 and for at least 6 months prior. The notes also indicate that he wanted help to overcome his difficulties.
The father’s evidence is that after February 2007 he sought help to find ways to handle the high levels of stress that he was experiencing without resorting to the drinking of alcohol. In June 2007 he relapsed whilst attending a union meeting in Sydney. The father said that he now has a maximum of three beers a week when the children are not with him and does not drink alcohol at all when they are there. He conceded that the last couple of years have been very stressful for him not only in his relationship but also his employment and this has exacerbated his reliance on alcohol and gambling. He said that he has learnt a lot in the six or so months prior to the hearing and that he knew that he had to make a conscious decision between the alcohol and his children. He said that he has chosen his children and is determined not to fall back on the difficulties that he has faced previously. I accept his evidence.
The mother alleged that the father controlled all of the finances in the family and purchased their home in his sole name. There is no doubt that the he took on the greater role in this regard. He indicated that he would rather describe the role as “managing” rather than controlling. The mother conceded that she held quite traditional views in the role of the family preferring to care for the children whilst the father became the prime financial provider. I am satisfied that he took it upon himself to organise the finances but there is insufficient evidence that he did so in a way that was controlling of the mother.
Whilst the father alleged the mother suffers from obsessive compulsive disorder there was no evidence to support this. The mother conceded that until she obtained counselling after separation she cleaned house excessively but that this did not amount to being obsessive. I accept the mother’s evidence in this regard.
Legal Principles
Parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975. In determining the outcome of parenting matters the Court must consider the best interests of the child as the paramount consideration.[1] That is the overriding principle.
[1] Section 60CA
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[2]
[2] Section 60B lists the objects and principles for Pt VII.
In determining what is in a child’s best interests I must consider the matters set out in s.60CC.
When making a parenting order the court must apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility for the child.[3] This presumption may not apply or may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the children’s best interests for it to apply.[4] In this case the parties both sought an equal shared parental responsibility order and I am satisfied that it is appropriate to make such an order.
[3] Section 61DA
[4] Section 61DA(2) & (4)
In the event that the Court orders the parties to have equal shared parental responsibility the Court must apply the provisions of s.65DAA which provide for a consideration of the children spending equal time with the parents. If the court finds that is not in the children’s best interests or reasonably practicable then the court must consider the children spending substantial and significant time with the parents.
The primary considerations: s.60CC(2)
The benefit to the child of having a meaningful relationship with both of the child’s parents
The mother has been the primary carer for the children until the interim orders were made in October 2007. The father did not concede this. Although he did not suggest that the mother was not at home caring for the children he was keen to stress his own involvement with the children. He worked full time as a [educational professional] often for long hours, and was involved in attending meetings with the union and community organisations. On the evidence the mother was more available for the day to day care of the children and therefore their primary carer. I am however satisfied that the father has played a significant role in the care of the children and that prior to the mother’s move to [Y] the children enjoyed a close and loving relationship with both parents.
A geographical distance between the parties would have a significant impact on this relationship given the young ages of the children. Young children need to spend frequent periods of time with both parents, especially their non primary carer, in order to develop a meaningful relationship with their parents. Older children who have already established a meaningful relationship with both parents may be able to maintain that relationship at a geographical distance from one of them but that is unlikely to happen for children as young as these two.
The mother’s proposal has the potential to compromise the children’s relationship with the father unless the father is able to live closer to [Y]. Although there was suggestions in the evidence that the father would be able to transfer his employment there was no evidence that he could actually secure a placement in or near [Y].
The father’s proposal would see both parties living in the [P] area which would ensure they saw both parents regularly. The mother would have financial difficulties in such a move back however for reasons I will explain later I find that she would be able to do so.
I find that the father’s proposal is more likely to provide the means to develop and maintain a meaningful relationship between the children and both parents.
The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
The mother alleges the father has been verbally abusive of her in the relationship. This was even more evident during the period the father was experiencing work and relationship difficulties. The mother never accused the father of being physically violent. There is no evidence that the children have been detrimentally affected by the father’s treatment of the mother. I am satisfied that the father has had the benefit of counselling and I am unable to find that there is any evidence that the children are at risk of harm in his care.
The additional considerations: s.60CC (3)
Any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give to the child’s views
The court did not have the benefit of any independent evidence of the children’s views. Given their young age however, any views expressed would not be determinative of the matter.
The nature of the relationship of the child with each of the child’s parents
The children have a good relationship with both parents. The period from separation to the hearing was only about 7 months. There was no evidence to suggest that the children’s relationships with their parents had been compromised in that time notwithstanding the relocation and the reduced time the children had been with their mother since October. That would have been unlikely to continue however over time and I find that it would not be in their best interests for that to continue.
The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent
Whilst the father was concerned that the mother and/or her family were motivated to diminish his relationship with the children I find there is no evidence to support that. Although the mother’s move to [Y] may compromise that father/child relationship I find that she was not motivated out of a desire to sever this relationship but for her own needs to re-establish herself with familial support.
The mother expressed pride in the father’s attempt to overcome his emotional difficulties by following medical and psychological advice and is supportive of the children having a relationship with him.
The family report writer was concerned about the father’s ability to promote the mother to the children. She was particularly concerned that the father considered himself to be intellectually superior to the mother.
The father rejected the notion that he considered himself to be superior but maintained that he had greater cognitive ability to the mother. The father conceded that in his interview with the family report writer he referred to the mother using expressions such as “lack of intellect”, “dumb”, “the children are better with me because [Ms Almy] doesn’t have the intelligence to help them with their schooling”. The father informed the Court that he was not in any way trying to denigrate the mother by using those terms. He regretted using the term “dumb” and said that he was attempting to explain, in the context of the family report interview where he felt that he was constantly defending himself, that he would be in a better position to help the children with their schooling.
I formed the view that the father was passionate about the children’s education and that he holds the view that because of his tertiary education and the fact that he is a [educational professional] that he is in a better position than the mother, intellectually, to help them in their schooling. That may very well be the case, a point conceded by the mother herself, however such comments would have a negative impact on the mother’s self esteem and there can be no doubt that she would have felt hurt by such comments. There is no evidence however that the father has at any time used those expressions in front of the children. I am persuaded, notwithstanding the family report writer’s doubts, that the father is in fact supportive of the children’s relationship with their mother and that he would not seek to undermine that relationship.
The likely effect of any changes to the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other child or other person with whom he or she has been living
This is the significant issue in this case. For reasons I have already expressed, the children being still young, need to have the benefit of both parents regularly in their lives. A geographical distance of some 10 hours driving time compromises this.
If the children live primarily with their mother in [Y] they will benefit from living with their primary care giver to date and may receive support from some of the maternal family. Regrettably I was not able to assess the extent of that familial support as no evidence was given by any of the mother’s family. Their relationship with the father however would be diminished as they would not be able to spend regular periods of time with him. Whilst holiday time would be available and of benefit to the children that is not the same as being in the father’s household whilst he goes about his normal daily routine.
The mother indicated that she would move back to the [P] area if the children were required to live there. This would enable the children to live and spend time with both parents regularly.
A consideration of this issue would favour the father’s proposal.
The capacity of each of the child’s parents and 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
Both parties would be able to provide for the children’s day to day needs.
The mother has been able to care for the children all their lives.
The father’s emotional difficulties in recent years would have compromised his capacity to parent the children however I am satisfied that he has attended to addressing these issues sufficiently to enable him to care for the children and provide for their emotional and physical needs.
The father may be in a better position than the mother to assist the children in their intellectual needs however this finding would not in any way disqualify the mother from being able to provide all the care and support the children need.
The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents
Whilst the mother’s move to [Y] may have been self focused it is understandable in the context of the break up of the relationship. The mother’s evidence that she would return “like that” (showing a click of the fingers) shows a commitment to the children over her own desires to live in [Y].
The father in addressing his emotional difficulties, drinking and gambling also shows that he has been able to put the past behind him and focus on the future needs of the children.
Any family violence involving the child or a member of the child’s family and any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested by a person
Although the mother presented her case as being a victim of domestic violence she stressed that she was not alleging any physical violence by the father on her. However the mother gave evidence of being controlled, belittled, denigrated and abused emotionally by the father.
The family report writer gave evidence that because she interviewed the mother before the father she initially formed the view that the mother was a “victim of domestic violence” however after interviewing the father and gaining a better understanding of the background of the father’s difficulties in the work place she saw the family dynamic in a different light. She conceded that the mother certainly perceived to have been emotionally abused in the relationship but that the mother came from that not from an accusatory point of view but out of compassion and understanding of the father’s extenuating circumstances.
Family violence is not always physical but always damaging to the victim and often the whole family. I accept the mother, in light of her new found circumstances of being a single mother, looks back on her time with the father and perceives the imbalance in their relationship. The mother presented in her evidence as a traditional woman believing it was her role to care for the children and for the father to be the main financial provider. This would go some way towards how the dynamic arose for this family in the father controlling the finances.
I am satisfied that the father would have been insensitive to the mother and at times denigrating of her, especially when he was unable to handle the other stressors in his life however I am unable to find that there was a level or pattern of behaviour sufficient to be categorised as family violence.
I am further satisfied the children were not exposed to family violence.
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
If the parties remain living so far apart there is the potential for the arrangements for the children spending time with their non primary carer to break down as practical difficulties arise from time to time.
The extent to which each of the parents has fulfilled or failed to fulfil, his or her responsibilities as a parent
I am satisfied that both parties have fulfilled their responsibilities as parents and are likely to do so in the future.
Discussion
Consideration of s.65DAA: Equal Shared Care or Substantial and Significant Time
Having found that the parties should share equally the parental responsibility for the children the court is required to consider whether the children should spend equal time with both parents.
Both parents have played a significant role in the children’s lives. I have not found in my consideration of the s.60CC factors any concerns as to the ability of the parents to appropriately care for the children in the future. Whilst the parents have had a difficult period leading up to and after separation their commitment to the children exhibited in court and respect for each other despite their differences give me confidence they will be able to work together to co-parent the children. I have come to the conclusion that it would be in the children’s best interests to eventually spend equal time with both parents. However given the young age of [Z] and the time he has spent away from his mother in the interim period I am of view that it would be in their best interests to spend primary time with one parent now leading up to shared care over time.
Whilst this might be in their best interests, if the parties remain living so far apart it will not be practicable. For the same reasons it would not be practicable for a significant and substantial time order.
In deciding relocation cases the court should have regard to the s.65DAA factors in light of the s.60CC considerations and then after determining whether the children should spend equal or significant and substantial time with the parents consider the issue of relocation.[5]
[5] Taylor and Barker (2007) 37 FamLR 461; Sampson and Hartnett (No 10) (2008) 38 FamLR 315
Effects of Relocation
Regrettably the mother did not file any supporting affidavits from her family evidencing the level of support they are able to provide her. Without that evidence I am unable to determine what practical assistance would be provided for the mother and children or assess the level of emotional support. I accept the mother’s evidence that she does not have any family in the [P] area but does have a group of friends there.
The father does not have any family or friends in the [Y] area. His sister lives on the Central Coast but he has friends in the [P] area.
The mother has an offer of work as a part time [omitted] assistant and while she was confident of taking up that position she qualified her evidence to some extent by indicating it may be dependent on the number of enrolments at the [omitted]. I am not satisfied there is sufficient evidence to find the mother is guaranteed employment in this position. The mother has been out of the work force, caring for the children, for a number of years. She has qualifications in aged care and home based child care however may need to upgrade these qualifications to better her chances of gaining employment in either [Y] or [P]. The mother gave evidence that she may be able to do some cleaning work in the [P] area.
The husband is a [educational professional] in the [P] area. He gave evidence of having made enquiries as to positions available in [Y] and told the court that there weren’t any current positions. His evidence is that he would be entitled to transfer if a job was available but he does not wish to live in that area. He conceded that he would move there or closer if the court was to order the children live in [Y]. Without any evidence of a position being available for the father I am not satisfied that he would be able to easily move to [Y]. He is currently a head [educational professional] and if a position became available he may not receive the same income thereby reducing his ability to support the children.
The mother lives in a house with her brother. It is a rental property and the lease is in her brother’s name only. I have no evidence from him as to his intentions in relation to how long he intends to remain there. I accept though that at the time of the hearing the mother was assisted by reduced rent by sharing with her brother. I am satisfied from the affidavit evidence that the cost of accommodation for the mother would be cheaper in [Y] than the [P] area if she had to find accommodation for herself and the children. The father agreed to assist in the removal costs of the mother if she was to return to [P] and given her financial circumstances any order for return would have to be dependent on the father’s assistance in that regard.
The mother does not want to return to the former family home and given her perception of the father as being controlling of her I understand her reasons. Whilst it would be difficult, at least initially, for the mother to afford accommodation in the [P] area I am not satisfied on the affidavit evidence that was filed that she would not be in a position to live there. There will no doubt be negotiations as to a property settlement between the parties that will lead to some further assistance to the mother in the future.
When I weigh all of the above considerations, along with the fact that the mother has moved away from the area where the children’s father has paid employment, I find that although it would be difficult for the mother to return to the [P] area such a return would not place too heavy a burden on her such that her parenting would be compromised. The move by the father to [Y] is doubtful if he is to remain in his position and may have financial consequences for the family.
I am satisfied that the children should live in the [P] area with both parents sharing the care. For the reasons I have previously outlined that care should not be equal at this stage. Given the father’s work commitments and the benefit to [Z] in particular of spending more time with his mother they should live primarily with the mother and spend time with the father gradually increasing that time until they live in a shared care arrangement. I indicated this finding to the parties at the hearing and stood the matter down for them to draft a minute of orders in accordance with my findings. I made orders in accordance with that minute and the terms appear at the commencement of this judgment.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Lapthorn FM
Associate: Helen Drysdale
Date: 21 August 2008
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