Marsden and Marsden
[2010] FMCAfam 1408
•29 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARSDEN & MARSDEN | [2010] FMCAfam 1408 |
| FAMILY LAW – Parenting – relocation on interim basis – restraint from relocating – restraint from changing school – parental responsibility –settlement agreement without legal advice – interim hearing – equal time or substantial and significant time. |
| Family Law Act 1975, ss.13C, 60CA, 60CC, 61C, 61DA, 62B, 64B, 65DA, 65DAA, 68B, 68L |
| Bennett & Bennett (2001) 28 Fam LR 231 Flanagan & Hancock (2000) 27 Fam LR 615 Goode & Goode (2006) FLC 93-286 Illidge & Norton (2008) FMCAFam 1255 Morgan & Miles (2008) 38 Fam LR 275 U v U (2002) 211 CLR 238 |
| Applicant: | MR MARSDEN |
| Respondent: | MS MARSDEN |
| File Number: | SYC 5940 of 2010 |
| Judgment of: | Monahan FM |
| Hearing date: | 22 November 2010 |
| Date of Last Submission: | 29 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 29 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | None |
| Solicitors for the Applicant: | Armstrong Legal |
| Counsel for the Respondent: | Mr Blackah |
| Solicitors for the Respondent: | Dom Velcic & Co. |
ORDERS
All extant applications be adjourned to this Court on 21 December 2010 at 9:30am for mention.
The parties attend a Conciliation Conference with a Registrar of the Family Court of Australia at the Sydney Registry on 21 February 2011 at 2:15pm AND the solicitors for each party send to the other and the Registrar at least seven (7) days before the Conciliation Conference copies of:
(a)a completed Conciliation Conference document;
(b)a market appraisal or valuation of any asset or financial resource, the value of which is in dispute and valuations of any superannuation interests;
(c)the actual terms of orders required to give effect to their settlement proposal;
(d)if applicable, a copy of any apprehended violence order or restraining order that is currently in force; and
(e)a written confirmation by each party or their solicitor that:
(i)All relevant documents have been exchanged between the parties; and
(ii)The superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness
AND IN THE EVENT that the matter does not settle at the Conciliation Conference the matter be listed for further directions and where a party has not complied with subparagraphs (a) to (e) herein the Court may consider submissions with respect to costs.
Pursuant to s.68L(2) of the Family Law Act1975 (“the Act”), [W], born [in] 1994 (“[W]”), [X], born [in] 1996 (“[X]”), [Y], born [in] 1997 (“[Y]”) and [Z], born [in] 2001 (“[Z]”) (collectively “the children”), be independently represented AND IT IS REQUESTED that Legal Aid Commission of New South Wales, PO Box K847 HAYMARKET, arrange such separate representation and:
(a)Upon appointment, the Independent Children’s Lawyer file a Notice of Address for Service;
(b)Within 48 hours of notification of such appointment the solicitors for the respective parties provide to the Independent Children’s Lawyer copies of all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports; and
(c)The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.
The Applicant make, file and serve an amended Application and an Affidavit in support on which he intends to rely by no later than 4:00pm on 17 December 2010.
Paragraphs 3 to 5 of the Orders made 22 November 2010 be discharged.
AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:
The parties have equal shared parental responsibility for the children.
The Respondent be restrained from changing the residence of [X], [Y] and/or [Z] to a residence located more than 50 kilometres from their current schools.
The Respondent be restrained from removing [X], [Y] and/or [Z] from their current schools.
[W] live with the Applicant and spend time with the Respondent in accordance with his wishes.
[X], [Y] and [Z] live with the Respondent.
[X], [Y] and [Z] spend time with the Applicant as follows:
(a)During all school terms:
(i)Commencing 3 December 2010, each alternate week from the conclusion of school Friday until the commencement of school Monday; and
(ii)Commencing 8 December 2010, each alternate week from the conclusion of school Wednesday until the commencement of school Thursday;
and
(b)For half of all school holiday periods as agreed or, failing agreement:
(i)For the second half of each school holiday period commencing in 2010 and each alternate year thereafter; and
(ii)For the first half of each school holiday period commencing in 2011 and each alternate year thereafter;
(c)Where not otherwise provided for by these orders:
(i)On Father’s Day each year as agreed between the parties or, failing agreement, from 9:00am until 5:00pm
(ii)On each of the children’s birthdays as agreed between the parties or, failing agreement, from after school until 7:00pm on school days, or from 3:00pm until 7:00pm on non-school days;
(iii)From 3:00pm on 25 December until 5:00pm 26 December in 2010 and each alternate year thereafter;
(iv)From 3:00pm on 24 December until 5:00pm 25 December in 2011 and each alternate year thereafter; and
(v)At such other time and dates as agreed.
Paragraph 11 herein be suspended as necessary for [X], [Y] and [Z] to spend time with the Respondent from 10:00am each Mother’s Day.
Paragraph 11(a) herein be suspended from the commencement of all school holiday periods until the first Friday of each school term.
Paragraph 11(b) herein be suspended from the commencement of all school holiday periods until the second Wednesday of each school term.
For the purposes of paragraph 11 herein, all changeovers will occur at a location as agreed between the parties or, failing agreement:
(a)the Applicant will collect [X], [Y] and [Z] from school or a Sydney address at the commencement of their time with him; and
(b)the Respondent will collect [X], [Y] and [Z] from the Applicant’s residence at the conclusion of their time with the Applicant.
When [X], [Y] and [Z] are living with the Respondent, they will communicate with the Applicant as agreed between the parties or, failing agreement, three (3) evenings per week for no more than
30 minutes by telephone, or similar electronic communication medium, at such times as agreed between the parties or, failing agreement, the Applicant nominate three (3) evenings per week for this communication time to occur between 6:00pm and 9:00pm.
When [X], [Y] and [Z] are spending time with the Applicant, they will communicate with the Respondent as agreed between the parties or, failing agreement, every second evening for no more than 30 minutes by telephone, or similar electronic communication medium, at such times as agreed between the parties or, failing agreement, the Respondent nominate a maximum 30 minute period for this communication time to occur between 6:00pm and 9:00pm.
For the purposes of paragraphs 16 and 17 herein, each party provide the other with their nominated communication times in writing within 72 hours of the date of these orders and thereafter if either party wishes to change their nominated times, they shall provide the other party with at least seven (7) days written notice.
The Respondent forthwith purchase a book to be used for essential communication between the parties about [X], [Y] and [Z]’s needs, including but not limited to information about their extra-curricular activities, with the book to be exchanged between the parties or carried by the [X], [Y] and [Z] each time they move from the care of one party to the other.
Each party be permitted to attend at all extra-curricular activities engaged in by [X], [Y] and/or [Z] and all school events and activities to which parents are ordinarily invited.
Each party notify the other of any change to his or her:
(a)residential address
(b)telephone number; and/or
(c)email address
within 48 hours of any such change taking place.
Each party notify the other as soon as practicable of any serious illness, injury or medical emergency in respect of the children.
Each party be restrained from denigrating, or permitting any other person to denigrate:
(a)the other party;
(b)any partner of the other party; or
(c)any family member of the other party
in the presence or hearing of the children.
Each party be restrained from discussing, or permitting any other person to discuss, these proceedings with the children or within their hearing.
Except for in emergency situations, each party be restrained from taking, or permitting any other person to take, the children to any medical practitioner, psychological or psychiatric assessment, examination or treatment without the express written consent of the other party.
The Applicant and the Respondent attend and complete, as soon as practicable, a Parenting Apart post-separation parenting program (“the program”) at an organisation as agreed by the parties or, in default of agreement within seven (7) days, an organisation nominated by Relationships Australia (“the organisation”) and:
(a)Do everything reasonably necessary to enrol in, undertake and successfully complete the program;
(b)Pay all costs associated with their participation in the program;
(c)Attend and complete, as soon as practicable, any further course or program recommended by the organisation; and
(d)Provide a copy of the certificate of completion of the program to the other party or their solicitors, and to the Independent Children’s Lawyer.
AND THE COURT FURTHER ORDERS, BY CONSENT, THAT:
Within the next 72 hours each party provide written authority to Peter Williams, Solicitor to release $50,000 to each party, by way of interim property distribution, from the proceeds of sale of the property situated at Property C currently held in trust.
AND THE COURT NOTES THAT:
(A)It is the Respondent’s intention to spend time with [X], [Y] and [Z] during the first half of the December school holiday period in [C].
(B)While the Applicant does not object to the Respondent spending time with [X], [Y] and [Z] for holiday purposes, such travel in no way constitutes the Applicant’s consent to any proposed relocation.
(C)For purposes of Christmas Day 2010, the Applicant and Respondent intend to share the costs of return flights for [X], [Y] and [Z] from [C] to Sydney to spend part of the Christmas period with each party.
(D)Pursuant to ss.65DA(2) and 62B of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Marsden & Marsden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5940 of 2010
| MR MARSDEN |
Applicant
And
| MS MARSDEN |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 20 September 2010 (“the Application”) by MR MARSDEN (“the Father”) against MS MARSDEN (“the Mother”) seeking various parenting and property orders. The parenting orders relate to the children: [W], born [in] 1994 (“[W]”), [X], born [in] 1996 (“[X]”), [Y], born [in] 1997 (“[Y]”), and [Z], born [in] 2001 (“[Z]”) (or collectively “the children”). In respect of parenting matters, the Father is seeking orders including orders:
·
restraining the Mother from relocating the children more than
50 kilometres from their current schools; and
·further restraining the Mother from removing the children from their current schools.
The Application is supported by the Father’s affidavit sworn on 16 September 2010 and filed on 20 September 2010 (“the Father’s affidavit”). The Father also relies on the affidavit of his solicitor sworn and filed on 20 September 2010. The Father was legally represented by Ms Randle at the interim hearing of parenting matters which took place in the duty list on Monday, 22 November 2010 (“the interim hearing”).
The Mother in her response filed on 19 November 2010 (“the Response”), being the business day prior to the interim hearing, opposes the orders sought by the Father and is seeking different parenting and property orders. More specifically, in respect of parenting matters, the Mother is seeking orders that would enable [X], [Y] and [Z] (“the three younger children”) to live with her in [C] and otherwise spend time with the Father for certain defined periods. The Mother is agreeable for the eldest child, [W], to remain living with the Father in Sydney.
The Mother relies on her affidavit sworn and filed on 19 November 2010 (“the Mother’s affidavit”) and was legally represented by Mr Blackah of Counsel at the interim hearing.
Background
The parties commenced cohabitation upon their marriage [in] 1993 and separated on 7 March 2010. It appears there are no Court orders in place in respect of the children and certainly there were none at the time of the interim hearing.
According to the Father, [W] lives with him and spends time with the Mother two nights per week, usually Sunday overnight to Monday or Monday overnight to Tuesday. The three younger children live with the Mother and spend time with the Father every week from Friday after school to Sunday afternoon or early evening. This does not appear to be disputed by the Mother.
The Father asserts that following separation the Mother advised him around 27 May 2010 that she had accepted a [omitted] position in [C] and would be relocating there with the three younger children.
The Mother asserts that the Father previously consented to her proposed relocation with the children to [C]. Indeed, it is asserted in paragraph 12 of the Mother’s affidavit:
“[Mr Marsden] has actively encouraged and supported me in my move to [C]. I have acted on his consent, confirmed my appointment, confirmed to give up my job in Sydney, enrolled the children in a new school in [C], taken out a lease for six months in [C], relocated old furniture to [C], and bought new furniture.”
The Mother further asserts that there was an agreement reached between the parties on 10 October 2010. Indeed, Annexure “P” to the Mother’s affidavit is a one-page handwritten document signed by the parties styled as a “settlement agreement” (“the settlement agreement”). It would appear that the settlement agreement was prepared by the parties without the input of their legal representatives.
Agreed and Disagreed Facts
The parties agree, or are not in significant disagreement, in respect of the following points:
·Firstly, there are no formal Court orders or parenting plans in place as at the date of the interim hearing;
·Secondly, the parties have been negotiating to resolve the parenting and property dispute between them for some months now;
·Thirdly, the Father caused his solicitors to send a letter to the Mother’s solicitor on or about 3 September 2010 seeking her written confirmation that she would not relocate with the three younger children to [C];
·Fourthly, the Mother withdrew sums totalling some $67,000 from the parties’ home loan offset account on or about 30 to 31 August 2010, presumably to assist her with relocation expenses;
·Fifthly, the Father commenced these proceedings on 20 September 2010 and the Mother’s solicitors filed a notice of address for service on 24 September 2010; and
·Lastly, the settlement agreement which was allegedly signed without legal advice. However, the Father asserts that some aspects of the settlement agreement relevant to the Mother’s proposed relocation were added after signature.
The parties sought an interim hearing by the Court of these interim issues at the first return date of the Application which went ahead during a particularly busy pre‑Christmas duty list. Given the late filing of the Response, the Court was not inclined to allow such an interim hearing to proceed, however the Mother pressed the Court to do so because she was due to start her new employment in [C] on
29 November 2010. Consequently, the Court reluctantly agreed, despite receiving no adequate explanation as to why the Response and the Mother’s affidavit were filed the day before the interim hearing despite service being effected some two months earlier.
It is clear that the Mother had legal representation on or before
24 September 2010. That said, the Court was advised that the parties had engaged in numerous exchanges of correspondence over the last two months. This was evidenced by the letters which were admitted into evidence and marked as Exhibit “AH1”. Various “without prejudice” letters were included in the Mother’s affidavit upon which the Court did not allow the Mother to rely at the interim hearing given the reality that they were written without prejudice except as to costs in an attempt to resolve the dispute.
Of course, the Mother always had the option of filing an Application in a Case seeking urgent orders with respect to the relocation rather than waiting nearly two months for the first return date.
Issues
The interim hearing related to parenting matters only. More specifically, the dispute to be resolved was limited to:
·the Father’s request for an injunction to stop the Mother relocating with the three younger children more than 50 kilometres from their current schools;
·the Father’s request for an injunction to stop the Mother removing them from their current schools; and
·the Mother’s request to relocate with the three younger children, as both an interim and final order sought in the Response.
Parties’ submissions
Both parties’ legal representatives provided the Court with lengthy oral submissions in support of their respective clients’ positions with respect to these interim issues.
Father’s submissions
Ms Randle, for the Father, submitted that the proposed relocation would seriously affect, “the meaningful relationship enjoyed by the three younger children with the Father.” Ms Randle asked the Court to note that the three younger children currently spend time with the Father each week, including two overnight periods each week. [W] lives with the Father and hence all four children spend each weekend together.
Ms Randle questioned what financial benefit the Mother would receive from her proposed new employment given that she is moving sideways in her career and not accepting a promotion.
Ms Randle also asked the Court to accept that the three younger children are now established in their current Catholic private schools.
The Court was also asked to take into account the three younger children’s circumstances, in particular, [X]’s past history of anxiety and [Z]’s difficulties in his educational learning.
Ms Randle submitted that the factual setting of the “alleged” settlement agreement should be taken into consideration and asserted that the Father would be able to give evidence that he was “pressured” into signing the settlement agreement. It was submitted that the Father was unable to put that particular evidence on affidavit due to the late filing and service of the Mother’s affidavit. That said, Ms Randle asked the Court to accept that the settlement agreement was “part of a package” that incorporated apparent concessions to resolve both the property and parenting matters between the parties. Moreover, had the parties come to an agreement regarding their property dispute, it would have freed up considerable funds that may have assisted the Father to traverse the financial tyranny of distance that any relocation by any of the children would present.
In that respect, Ms Randle also submitted that it was curious that the Mother had only sought to have the parties act upon the part of the settlement agreement related to parenting, but that the Mother was not seeking to press the agreements as to property that the settlement agreement contemplated.
Ms Randle also asked the Court to see the emails sent directly between the parties during August 2010 as exchanges between parties prior to the benefit of legal advice.
Ms Randle otherwise relied on her written case outline document in respect of specific submissions regarding the relevant factors under ss.60CC(2) and (3) of the Family Law Act 1975 (“the Act”).
Mother’s submissions
Mr Blackah, for the Mother, asked the Court to find that the Father had, over the last six months, “green lighted” the Mother’s proposed move to [C]. He submitted that the Father had been aware of the Mother’s intentions and had, in fact, been encouraging her. The Mother had acted upon his encouragement by resigning from her former employment, taking a lease on rented property in [C], and moving her furniture and belongings. Mr Blackah submitted that the Mother had also organised new schools for the three younger children and the Father had provided the relevant consents. The Mother had also booked various airline tickets for various times in 2011 to enable the three younger children to travel from [C] in order to spend time with the Father in Sydney. Essentially, Mr Blackah submitted that “After the wagons were rolling, he withdrew his consent.”
Mr Blackah referred to the numerous annexures to the Mother’s affidavit, in particular, those annexures which tend to indicate that the children are looking forward to their relocation to [C].
In that respect, Mr Blackah referred to a report from clinical psychologist, Ms D, dated 19 November 2010 and is attached to the Mother’s affidavit as Annexure “U” (“Ms D’s Report”). In particular, Ms D refers to [X] and meeting with the three younger children on 21 September 2010. Paragraph 3 to 5 of Ms D’s Report read as follows:
“On assessment more recently in July 2010, [X] presented as a much calmer and happy young lady. I was informed that her parents had separated early this year, while Ms Marsden and her three children were living, temporarily, in her parent’s home. Both Ms Marsden and [X] said they felt less tense than they had been previously.
Ms Marsden informed me of her plans to relocate to the north coast with her children, due to her employment opportunity she has obtained there. Ms Marsden consulted me about supporting the children’s adjustment to this change.
In a session I had with the family on 21 September 2010, I met with Ms Marsden, [X], [Y], 12 years, and [Z], 9 years. The children said they were looking forward to a new home and to their new school. All three children expressed their eagerness to settle into a home of their own.”
Ms D then goes on to provide the following comments in the penultimate paragraph of which curiously, she bolds:
“On my assessment, Ms Marsden and her children would benefit from any support in helping them to settle into a stable home environment where they can establish financial security and form new friendships through school. [X], in particular, would benefit from an environment with minimal stress and negative emotion. I believe that [X] is likely to benefit from and adjust well to her new home with her Mother and her brothers.”
It is not clear from the evidence whether the Father was made aware that the Mother and the three younger children had been attending upon Ms D about issues including their proposed relocation. The Father asserts that he did not consent and the first time that he was aware of the three younger children consulting with Ms D was when he read
Ms D’s Report as attached to the Mother’s affidavit. On the other hand, the Mother asserts that the Father had indeed been invited to make an appointment with Ms D.
Mr Blackah also referred the Court to the report of Dr K dated 13 September 2010 as attached to the Mother’s affidavit as Annexure “R” (“Dr K’s Report”). It was submitted that Dr K’s Report is evidence that the concerns over [X]’s anxiety as asserted by the Father, were overstated and indeed, there has been a considerable and positive improvement in [X]’s previous disruptive behaviours.
Mr Blackah further submitted that to some extent, Ms D’s Report echoes that view.
Law and discussion
All parenting proceedings are governed by the provisions of Part VII of the Act. Parenting orders are defined in s.64B of the Act which provides inter alia, that:
“(1) A parenting order is:
(a) an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or
(b) an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).
(2) A parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b) the time a child is to spend with another person or other persons;
(c) the allocation of parental responsibility for a child;
(d) if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e) the communication a child is to have with another person or other persons;
(f) maintenance of a child;
(g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates; or
(ii) the parties to the proceedings in which the order is made;
(h) the process to be used for resolving disputes about the terms or operation of the order;
(i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
Section 60CA of the Act makes it clear that:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
What is considered to be in the best interests of a child in parenting disputes depends on the particular circumstances of each case and different circumstances require different solutions. That said, to determine the best interests of a child, the Court must consider the primary and secondary considerations under s.60CC of the Act which will be canvassed in light of the evidence shortly.
Interim Hearings
The Full Court of the Family Court decision of Goode & Goode (2006) FLC 93-286 (“Goode”) guides the Court’s approach in making interim decisions and interim orders in respect of parenting disputes. At paragraph 81 of Goode the Full Court notes:
“In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between parents as to what constitutes the best interests of the child.”
Clearly this is such a case. Interim hearings highlight the reality that the Court cannot fully determine issues of credit at that stage as the evidence being presented by the parties has not been tested by cross-examination. That said, the Full Court made it very clear at paragraph 81 of Goode that “the legislative pathway must be followed”. In other words, the relevant provisions of the Act post the 2006 shared parenting amendments must be followed at an interim hearing.
At paragraph 82 the Full Court in Goode set out the approach that this Court must take in determining these interim cases. It must identify:
·the competing proposals of the parties;
·the dispute; and
·the agreed and uncontested relevant facts.
It would appear that there is considerable difference of opinion between the parties and no doubt the history of the matter will be the subject of evidence in cross-examination at a final hearing, should such be needed.
Injunctions and restraining orders
The Father is seeking various injunctions against the Mother. In this respect, the power of the Court to grant injunctive relief in areas relating to children arises from s.68B of the Act. This section is directed at children however it includes adults when in a situation associated with children.
There is an overlap between ss.68B(1) and 68B(2), in that similar orders may be made under either provision. That said, s.68B(1) is a stand-alone or independent power, meaning there is no necessity for the existence of other proceedings. In contrast, s.68B(2) is ancillary and it only operates in the context of existing proceedings and would be in aid of those proceedings. Clearly, that is relevant here.
It appears that, in the exercise of these injunctive powers, the best interests of a child is an important but not paramount consideration unless the order or injunction is a parenting order (see cases such as Flanagan & Hancock (2000) 27 Fam LR 615 and Bennett & Bennett (2001) 28 Fam LR 231). Clearly, an order requiring a child to live in a particular area and, consequently restraining a parent from relocating a child away from that area is a parenting order.
Relocation
The Mother is seeking orders that would allow her to relocate with the three younger children. The Act does not contain any presumption against a relocation order, nor is there a presumption that favours the parent with whom a child had been primarily residing (see Boland J’s comments in Morgan & Miles (2007) 38 Fam LR 275 at page 289 (“Morgan & Miles”)). In other words, relocation cases are not a special category of parenting order. What the Act does is provide the Court with a structured discretion to determine what order is appropriate in the circumstances.
The impact of the 2006 amendments to the Act in relation to relocation cases were well described by Boland J in Morgan & Miles at paragraphs 79 through to 81. Her Honour concludes at paragraph 81 of her decision:
“What the legislation now requires is:
· consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
· if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility.
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.”
Another relevant case is that of Illidge & Norton (2008) FMCAFam 1255 (“Illidge & Norton”), a decision of Neville FM. In that case his Honour acknowledged that while, “freedom of movement of parents is a significant priority” in parenting disputes, the outcome must be to ensure that any parenting order is in the best interests of the child and “freedom of movement” takes second place to the paramount interests of the child. At paragraph 13 his Honour states:
“While a parent seeking to relocate is not under an obligation to establish compelling reasons, to support the move any relocation must advance the welfare or best interests of the child.”
Given the High Court’s decision of U v U (2002) 211 CLR 238 Neville FM also observed the following at paragraph 13 of Illidge & Norton:
“In determining a relocation case that involves changed circumstance, the Court must evaluate each of the proposals advance by the parties without necessarily being bound by them. Put another way, without embarking on some roving inquiry and subject to the evidence led and affording procedural fairness to all, a Court must not necessarily be constrained solely by the proposals of the parties in determining what is in the best interests of the child.”
The Court ascertained from the Mother that, in the event that the Court declines her relocation request on an interim basis, she would nevertheless propose to remain with the children in Sydney until the matter can be resolved.
The Court also ascertained from the Father that, in the event that the Mother still wished to relocate with the children in the interim period, then the children could live with him and spend time with the Mother in [C].
Parental Responsibility
Section 64B(2) of the Act stipulates that a parenting order may include the allocation of parental responsibility for a child. That order may deal with the allocation of responsibility for making decisions about the major long term issues in relation to a child. In the absence of a parenting order s.61C of the Act makes it clear that each parent of a child under the age of 18 has parental responsibility for that child.
Section 61DA(1) of the Act requires the Court to presume that it is in the best interests of a child for their parents to have equal shared parental responsibility. Section 61DA(2) of the Act makes it clear the presumption does not apply if there are reasonable grounds to believe there has been abuse of the children or family violence, however that is not relevant in these proceedings.
Of some potential relevance in this case is s.61DA(3) of the Act which states that, when the Court is making an interim order, the presumption of equal shared parental responsibility applies unless the Court considers that it would not be appropriate in the circumstances for such a presumption to be applied in making the order.
In addition, s.61DA(4) states that the presumption may be rebutted if its application could be contrary to a child’s best interests. Those interests are determined by reference to the matters in s.60CC of the Act in light of the evidence. If the presumption is not applied or is rebutted then the Court must still make an order which is in the best interests of the child, again taking into account the considerations of s.60CC of the Act.
Equal time or substantial and significant time
If a parenting order is to provide for a child’s parents to have equal shared parental responsibility, then the Court is required under s.65DAA of the Act to consider whether a child’s best interests would be served by making an order that they spend equal time or, alternatively, substantial and significant time with each of that child’s parents. It is noteworthy that s.65DAA(3) of the Act stipulates that a child will only be taken to spend substantial and significant time with a parent when certain things occur.
Nevertheless, either outcome requires the Court to consider whether a child spending equal time, or substantial and significant time in lieu, with each parent would be in the best interests of a child and “reasonably practicable” given the circumstances.
This consideration is a major issue in this case due to the fact that the Mother is seeking an order that would significantly limit the three younger children’s time with the Father compared with the arrangements that have been in place until recently.
In considering the reasonable practicality issue, s.65DAA(5) requires the Court to have regard to various factors including:
·how far apart the parents live from each other;
·the parents current and future capacity to implement an arrangement for a child spending equal time or substantial and significant time with each of the parents;
·the parents current and future capacity to communicate with each other and resolve difficulties that might arise in implementing such an arrangement of that kind;
·the impact of an arrangement of that kind on a child; and
·any other matters the Court thinks is relevant.
The relocation order sought by the Mother would be reasonably practicable in the event that the Father relocates to [C]. This is unlikely to occur because firstly, the Father’s employment is based in Sydney and secondly, he indicated that he does not intend to relocate to [C].
It is noteworthy that the Mother’s proposal to relocate is for work-related reasons, although her decision does not involve accepting a promotion as such. Nevertheless, Mr Blackah submitted that the new position was at a much larger [workplace] in a geographical area where there is some potential for promotion to occur and, if so the Mother would benefit financially in the long term.
Best interests of the children
Section 60CA of the Act provides:
“In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.”
To determine what is in a child’s, or in this case the children’s, best interests the Court must consider the primary and additional factors set out in ss.60CC(2) and (3).
Primary considerations: s.60CC(2)
Firstly, the Court is required under s.60CC(2)(a) to consider:
“…the benefit of the child having a meaningful relationship with both of the child’s parents.”
At this point let me note that “meaningful” does not mean equal, however, it clearly signifies that each parent should be involved with their child and, consequently, signifies an expectation of time to be spent. The right of a child to spend time with each parent and extended family is clearly a right of a child. Consequently, the Court will, in all likelihood, need to give some considerable weight to this factor in a final hearing, should it be needed.
Secondly, the Court is required, under s.60CC(2)(b), to consider the need to protect a child from physical and/or psychological harm and the like. This is not a specific factor of relevance in the case before the Court on the available evidence presented to date.
Additional considerations: s.60CC(3)
With respect to the additional considerations in s.60CC(3), the Court notes that issues such as any “views expressed by the child”, the “nature of the relationship between the child and each of the child’s parents”, and “the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent” will be canvassed in full at final hearing, should such be necessary. A family report will be crucial to the Court reaching a decision which will finally determine these matters for the parties.
At this stage the Court currently does not have before it the independent views of the children via a Court-related method, although, Ms D’s Report as well as some documents in [Y]’s handwriting apparently indicating a desire to relocate found at Annexure “Q” to the Mother’s affidavit.
There is an issue about each party’s “willingness and ability to facilitate and encourage a close and continuing relationship between the child and the other parent”. That said, clearly the children have been spending regular time with each party prior to the matter coming before the Court.
The Court also has to consider such issues as the “capacity of each parent to provide for the needs of the children”, and the “extent to which each of the children’s parents have fulfilled, or failed to fulfil, their responsibilities of parent”. These are also issues that will be determined at the final hearing of the matter.
The Court is also required to consider the “likely effect of any changes on the child”. It goes without saying that there will be a considerable change if the relocation is permitted by an interim order.
As to “any other factor or circumstance”, the Court cannot overlook that the proposed relocation will put considerable distance between the three younger children and [W], as well as other extended family in Sydney. There is also some considerable evidence before the Court at this stage that may suggest that the Father was not opposing the move as late the end of August 2010. He did, of course, oppose it by early September 2010 as evidenced by his solicitor’s correspondence and the Application before this Court.
Lastly, the Court also has some concerns about the three younger children leaving their current schools in advance of the end of the school year and, it would appear, attending upon a psychologist without the knowledge of one of the parties.
Conclusion
Having considered the available evidence in light of the submissions and the legislation, the Court is not satisfied that the children’s best interests will be served by authorising the significant relocation on an interim basis.
Consequently, the interim orders sought by the Father in this respect in paragraphs 4 and 5 of the Application will be made. The Court is satisfied that they are reasonable in the circumstances.
As to the other interim parenting orders, the Court is satisfied that an order for equal shared parental responsibility is appropriate at this stage of the proceedings and that such an order would benefit the children.
That said, there will be orders today for both parties to be assessed for a suitable program, pursuant to s.13C of the Act, to assist them with their parenting obligations.
The three younger children will also spend time with the Father from after school Friday until Sunday morning each weekend, and at all other times as agreed. The three younger children will live with the Mother at all other times, subject to the provisions made in the Orders for holiday time.
[W] will live with the Father and spend time with the Mother as he desires.
The Court will stand this matter down in order for the parties to have some negotiations for holiday time, but in the absence of agreement there will be an equal-time arrangement for the forthcoming holidays. If there is disagreement over Christmas Day, arrangements that would produce an outcome that would let the children spend part of that day with the parent that they are not otherwise living with or spending time with, should be part of the outcome.
As to other special days, for example, Mother’s Day or Father’s Day, the Court hopes that the parties can come to an agreement. However, in default of agreement, an order will be made that would result in the children being with the Mother on Mothers’ Day and with the Father on Fathers’ Day.
Reasonable telephone time should also be facilitated.
There will be orders today for non-denigration between the parties.
There will also be orders today restraining either party from taking any of the children to any health professional, except in medical emergencies, without the consent of the other party.
The Court will also make orders for the parties to attend a conciliation conference in respect of property matters today, as well as a mention hearing after that date.
The right to settle the reasons for this interim decision is reserved.
Postscript
Earlier today the Court delivered judgment arising from the interim hearing heard in the duty list on 22 November 2010. At the conclusion of delivery of that decision the matter was stood down and the parties’ legal representatives were requested to confer and draft an agreed Minute of Orders that reflected that decision. The Court also indicated to the parties that if there were other matters of agreement then the Court would consider making those orders by consent in addition those indicated in this decision.
Unfortunately, the parties’ legal representatives were unable to present to the Court any agreed Minute of Orders arising from this decision. This is the first time in my experience that two legal representatives have been unable to do so in respect of all orders to be made. The Father’s solicitor did, however, present a typed Minute of Order which the Father’s solicitor believed reflects the Court’s decision.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 20 December 2010
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