McAdam and McAdam
[2008] FMCAfam 365
•13 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| McADAM & McADAM | [2008] FMCAfam 365 |
| FAMILY LAW – Property orders – relocation –whether equal time. |
| Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA, 65DAA(5) |
| AMS v AIF (1999) 199 CLR 413 U v U (2002) 211 CLR 238 H and L (2000) FLC 93-036 A v A; Relocation approach (2000) FLC 93-005 Godfrey & Sanders (2007) FamCA 102 M v S (2006) FCA 1408 |
| Applicant: | MR MCADAM |
| Respondent: | MS MCADAM |
| File Number: | BRC 11899 of 2007 |
| Judgment of: | Phipps FM |
| Hearing dates: | 12 & 13 February 2008 |
| Date of Last Submission: | 13 February 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 13 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Frizelle |
| Solicitors for the Applicant: | Legal Aid Queensland |
| Counsel for the Respondent: | Mr Edwards |
| Solicitors for the Respondent: | Neil O’Brien & Associates |
ORDERS
The parties have equal shared parental responsibility for the child and the child spend time with the father at all times as may be mutually agreed but not less than:
(a)Every alternate weekend from 6.00pm Friday to 5.00pm Sundays during school term with changeovers to take place at [X] (the changeover point) or such other point as may be agreed from time to time.
(b)
The mother is to have the child in the first two weeks of the Christmas holidays (including Christmas Day) in even numbered years. The father is to have the child for the remainder of the Christmas school holidays in even years concluding before the children return to school concluding at 12pm on second last day of the holidays. The mother is to have the child in the last two weeks of Christmas school holidays in odd numbered years with father have the child commencing the first day of the school holidays including Christmas Day returning the child for last
14 days of school holidays
The father is to have the child every Easter commencing after school Thursday and child be returned to the mother on Easter Monday unless Easter falls in the school holidays.
(c)For half of all gazetted Queensland term school holidays with the father to have the child in the first half in odd numbered years and alternating; and the mother to have the first half in even numbered years and alternating thereafter.
(d)Changeover for the purposes of time in 1.2 be that when the father has the child for the first half of the school holidays he collects the child from the changeover point at 6.00pm on the last Friday of term and delivers the child to the changeover point by 12 midday on the midpoint date.
(e)By telephone on a Tuesday and Thursday between 7.00pm and 7.30pm in any week that the child is not in the care of the father, and the mother likewise, with the call to be initiated on the Tuesday by the child, with the facilitation of the parent who has her care and on the Thursday by the parent who does not have the child.
(f)The child be at liberty to telephone either parent at any reasonable time and the parent who has the care of the child at that time is to facilitate that request.
(g)Notwithstanding paragraph 1.4, on Christmas Day the parent who does not have the child in his or her care shall telephone the child at noon and the parent in whose care the child is at the time shall ensure that the child is available to receive that call.
Specific issues
The child shall not be baby sat by any step siblings, half siblings or any other person under the age of 16 years of age.
If either parent is engaged in employment away from their residences such parent will ensure that the child is properly supervised whilst he or she is engaged in that employment.
When the child is the care of a parent in terms of paragraph 1.2 that parent be at liberty to take the child interstate for the purposes of a holiday providing that the travelling party provide the other with 2 weeks’ notice in writing of such journey including proposed itinerary and contact details for the relevant time; and paragraph 1.5 continues to apply save that the travelling parent shall facilitate the child’s initiating the call on both Tuesday and Thursday.
Both parties shall advise the other of details of schools, or treating medical practitioners, natural therapy practitioners or other therapists and this order shall be authority for either parent to contact the aforementioned to obtain information, advice and documentation relevant to the child’s education, health, welfare or development.
Both parties are to ensure the child attends on an appropriately qualified medical practitioner for any medical condition when appropriate and both parties are to comply with the treatment regime prescribed by that medical practitioner.
Both parties are to immediately notify the other of any serious illness or emergency involving the child whilst the child is in their care.
Both parties are to notify the other within 24 hours of any change of address or telephone number.
Neither party is to denigrate the other, their partners or their family in the presence or hearing of the child nor allow another person to do so.
Neither party shall refer the chid to attend on a natural therapy practitioner, counsellor or other health professional other than a duly qualified medical practitioner without written consent of the other parent.
The mother shall not remove the child or relocate the child form the [K] district or [K] State Primary School without the written consent of the father or further court order.
That the mother notify the child’s school of the father’s name, address and telephone number and request the school to include these details in its records.
That forthwith the mother notify the father of the child’s residential address and the landline telephone number at that address.
THE COURT NOTES:
In the event the mother and child are at the mother’s parents home, the mother will notify the father and the child may be collected on Christmas Day at 2pm by the father and returned by the father at 5pm Boxing Day and changeover to occur at [X].
IT IS NOTED that publication of this judgment under the pseudonym McAdam & McAdam is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 11899 of 2007
| MR MCADAM |
Applicant
And
| MS MCADAM |
Respondent
REASONS FOR JUDGMENT
(Revised from the transcript)
The parties in this application, Mr McAdam and Ms McAdam have one child S born in 2001. She is six years old, nearly seven. They disagree on the living arrangements for S and the geographical location where S should be living.
At present S lives with her mother and three older half-siblings at [K], which is near Gympie. Up until early June of last year they lived at [W], which is west of Ipswich. The father lives at [R], which is about 30 minutes drive from [W]; about three hours drive from [K].
Issues
The issues in the case are that Mr McAdam applies for shared care week and week about, which is resisted by Ms McAdam. She wants to maintain the current arrangements, which are every second weekend and half school holidays. In addition, as a necessary part of his shared care proposal, Mr McAdam also applies for an order that Ms McAdam move S's residence back to the Ipswich area. Although he says the Ipswich area, it is clear that he means the area west or south-west of Ipswich near or in the vicinity of [W] and [R].
Background
The three older half-siblings who S lives with are Z, who is 17 nearly 18 and twins E and C, who are 15. They will be 16 in June this year.
Mr McAdam has repartnered and now lives with his partner Ms W, and her three children, three boys, M 15, H 13 and K 8.
Mr McAdam was born in 1966, Ms McAdam in 1969. They met in May of 1999, they married in January 2000 and they separated in March 2006. While they were married the family consisted of Mr and Mrs McAdam, the three children Z, E and C and then S once she was born in April of 2001.
Risk of abuse
An incident occurred on the long weekend of 8 May 2007. S spent the weekend with her father. Her residence was still [W] close by to [R].
S returned from that weekend and told her sister C, when her sister asked her what the weekend had been like, about a game she had been playing with M, the 15 year old. He was playing a game on a computer. According to C, S told her that to play the game M said they should play together, that he lay down on top of her on the bed and that she had her legs up. C's reaction was that it was sexualised behaviour, C told her mother. The mother then spoke to S and received a similar description.
A family report has been prepared by Ms Lyn Clark dated 30 January 2008. She interviewed both Mr and Mrs McAdam and Ms W and all of the children, S, and the other six children, three on each side – S's description to Ms Clark was similar to the one that I have referred to from C. I quote what Ms Clark says S told her:
Just M and me were playing it, it was a bad game. I didn't know it was a bad game. I had to play that game so I could go on his computer. I like to play games on his computer. She remembered the game being one in which she had her legs up "and M lay on top of me and I lay on top of him."
Ms McAdam, S's mother, telephoned the father and there was some correspondence. She notified the police on 31 May 2007, possibly she telephoned earlier, but the police report records the notification as
31 May 2007. Subsequently she has taken S to a sexual abuse counselling service, and S has received teaching about protective behaviours.
So far as M is concerned he was spoken to by his mother. He acknowledges that he was playing the computer game, but he denies anything inappropriate happened.
Ms Clark's assessment is that S was not upset by that incident.
I accept that an incident as described did occur. I accept Ms Clark’s assessment that S was not upset by it and that she did not appreciate that it was sexualised behaviour and that she is not upset or affected by it now.
Shortly, in June 2007, Ms McAdam moved to [K]. She did not tell
Mr McAdam. She did not give a telephone number and Mr McAdam's time with S ceased.
From separation up until the weekend of 8 May 2007 S had been spending every second weekend with her father and had frequent telephone contact and holiday time. All had proceeded well. The parents had cooperated. S had maintained a good relationship with her father.
It all ceased until a Legal Aid conference was arranged on 20 August 2007. Agreement was reached to reinstate the alternate weekends. The first weekend was to take place on the Sunshine Coast and then S was to spend time at her father's house with a changeover point at Caboolture. The first weekend had to be postponed because of floods, but the time has proceeded since, plus telephone contact twice a week. It is agreed all round, including in Ms Clark's report, that it has proceeded well.
What was done so far as M was concerned was that up until Christmas he was never present at the house when S was there, he went to his father. That has now stopped. There was a falling out with his father. He is now back at Mr McAdam’s house.
I am quite satisfied that Mr McAdam and his partner monitor any contact between S and M and whatever protective measures are necessary are in place.
I am satisfied that if I was to order equal time that there would be more than adequate protective measures in place so far as M and S were concerned.
Relocation principles
Principles concerning relocation from the High Court decisions of
AMS v AIF(1999) 199 CLR 413 and U v U (2002) 211 CLR 238 have been established in subsequent Full Court of the Family Court decisions, H and L (2000) FLC 93-036 and A v A; Relocation approach (2000) FLC 93-005. Relevant here are these of the guiding principles:
·A person wishing to relocate or who has relocated is not required to demonstrate compelling reasons.
·The Court must evaluate each of the proposals, but it is not bound by those proposals.
·The Court cannot decide the issues in a way which separates the issue of relocation in the best interests of the child. The case cannot be dissected into discrete issues, namely a primary issue as to residence and a further or separate issue as to whether the relocation should be permitted. The Court must evaluate each proposal and weigh the evidence of submissions in relation to each.
Subsequent to the amendments of the Family Law Act 1975 (Cth) which commenced in July of 2006, Kay J in Godfrey & Sanders (2007) FamCA 102 considered the effect of those amendments on the principles I have just referred to. The case was an appeal from a Federal Magistrate. Dessau J in M v S (2006) FCA 1408 had concluded after extensive examination of the new provisions and explanatory memorandum that it did not alter the position that there was no presumption against or for relocation and no onus on a person wishing to relocate. Kay J came to the same conclusion. The paramount consideration remains the best interests of the child.
Equal time
The presumption of equal shared parental responsibility contained in s.61DA of the Family Law Act 1975 (Cth) applies in this case. There is no suggestion that it is rebutted. That then requires me to consider the provisions of s.65DAA. I must consider whether spending equal time with each of the parents is in the best interests of the child and I must consider whether it is reasonably practicable and if I consider that is the case, I must consider making such an order.
Subsection 5 of that section sets out things that I must consider in deciding whether it is reasonably practicable. They are how far apart the parents live from each other, the parents' current and future capacity to implement the arrangement, the parents' current and future capacity to communicate with each other and the impact that an arrangement of that kind would have on the child. The considerations for determining the best interests of the child are contained in s.60CC of the Act.
Significant in this case are two s.60CC factors, the willingness of
Ms McAdam to promote the relationship between S and her father and allied to that the attitude and responsibilities to parenthood demonstrated by the mother. In this case the responsibilities are promoting a relationship with the father.
I infer from Mr McAdam’s evidence that until the relocation he was happy with the arrangements, that is the alternate weekends. Then he concluded that what occurred after that time was an attempt by the mother to damage that relationship. Ms McAdam relocated without telling him and his time with S ceased until August.
I infer from what he says that his reaction to the relocation is that he considers that in order to maintain his relationship with S, and to improve and promote that relationship, that the shared care arrangement is necessary and that S's home be moved back to near where he lives.
The conclusion by Ms Clark in her report is first of all as to equal time. S has lived all her life with her mother and her older siblings. She has lived in a house where she is the youngest of three girls and she has an older half-brother. If she was to be spending equal time she would have to transfer from that household as described to one where there is the known carer figure, her father, and the three young males, 15, 13 and 7. Ms Clark describes it in her report as an adjustment challenge. She elaborated in her oral evidence. She referred to literature which shows that children being in two households was challenging. Her view was that here S is happy and adjusted in the current arrangements and she may find it unsettling if those arrangements were changed.
The evidence about S currently is that she is happy and well-adjusted, she is doing well at the school which she is attending, and she is enjoying her time with her father. There is a significant issue about the amount of time she has to spend travelling, but subject to that caveat she is thriving.
I return to the issue of the mother's willingness to facilitate the relationship between S and her father. S commenced school in prep in 2006. She attended [S] Primary School. She was there only three weeks. Her mother says the reason she moved her was that there were prayers in the morning, at lunchtime and before coming home from school. That was far more than she appreciated and she said S complained so she moved her to the [A] State School. She did not consult Mr McAdam. Then, when she moved to [K] there was another move of school, to the [K] school. She did not consult the father because she did not tell him they were moving.
Of the three older children, only one of them sees their father.
Ms McAdam was cross-examined about her move to Toowoomba away from where the father of those children was living. That coincided with a cessation or close to cessation of those children seeing their father. She says he was not interested in seeing them, he was working in New Guinea, so he was away more weeks than he was home. These matters are put as a propensity by Ms McAdam not to encourage a relationship between her children and their father.
Ms McAdam says her decision to move to [K] was because of the incident which occurred in May 2007, the need to protect S. I do not accept that. It may have had some influence, but she acknowledged that a close friend of hers, who had been in that [R] area, had moved shortly prior to her move to [K]. She still remains a close friend, and Ms McAdam spends much time with her. Where she was staying she could give two weeks notice, she said, and that is what she did. It seems likely that she was contemplating a move to [K] prior to 8 May 2007. She says that the older children were not getting on so well at the secondary school they were attending and that was part of her motivation. I do not accept that the primary reason for her move was the incident in May.
She believes that incident was quite serious and no doubt believes that it was dangerous to S. I now accept Ms Clarke's evidence that it has not affected S. What has been more likely to S adversely, if anything, has been the reaction to it. Ms Clarke's opinion is that it would have been better for S if there had been a low key reaction, some communication between the parents and immediate steps put in place to make sure that M was counselled as necessary and steps taken to make sure that S was not at risk. She did not think it was in S's interest to be taken to a sexual assault service.
While there may be some doubts about Ms McAdam’s motives in moving, and a need to consider her willingness to promote the relationship, the issue is what is in S's best interests in terms of where she is living at the moment, where she should live in the future, and what those arrangements should be.
I acknowledge that the High Court has said that the question of residence cannot be separated from the question of relocation. In this case, as well as the issue of relocation, there is the issue of equal time. I consider, in this case, that an appropriate way to approach this is to consider first the issue of equal time, assuming that the parents are living close enough together for that to be the case. Equal care cannot occur if the living arrangements remain as they are at the moment. The parties live too far apart.
I have given Ms Clarke's opinion as the expert in the case. The statutory considerations relevant are the impact that the arrangement would have on the child, that is a s.65DAA(5) consideration, and the s.60CC considerations, the likely effect of the change in the child's circumstances, the nature of the relationship with the child with each of the child's parents and other persons, in this case her half siblings; the nature of her relationship with her father and then the primary consideration of the benefit to S of having a meaningful relationship with both of her parents.
S currently has a very good relationship with both of her parents. She has a very good relationship with her half siblings. They are important in her life. The living arrangements at [K] are that there are effectively four bedrooms, although two, or possibly three of them are the result of the partitioning up of a large sunroom, so not with normal walls but partitioned off so there are separate bedrooms. S shares a bedroom with C. Ms McAdam's evidence is that that is because S is scared of sleeping on her own. There was some evidence and discussion in cross-examination about nightmares and some bedwetting but I think none of any significance. It was debated more in the context of the incident in May, which I have dealt with. S's relationships with her half siblings are important. She has known Ms W's three boys for 18 months, but Ms Clarke points out that she has not lived with them all her life and they are not her siblings.
I accept Ms Clarke's opinion, for the reasons she gives, that it would not be in S's best interests for there to be an equal time arrangement. That is, it could have an adverse impact on S's emotional well being. It may well affect her relationship with her father if she becomes distressed to some extent or her current happy state is affected. If her mother's emotional state is affected, that could affect S. Her mother is her primary carer. Ms Clarke considers it could affect her current happy relationship with her father. Ms Clark’s evidence is that it is not so much the time, but the quality of the relationship with him which is important and the quality of S's relationship with her father currently is excellent.
Two other considerations in s.65DAA(5), I might summarise, as the capacity to cooperate. Ms Clarke gave evidence of the need for cooperation. There has obviously been suspicion in the recent past between the parents. I have described what I consider to be
Mr McAdam's motivation in making this application and the criticisms that have been made of Ms McAdam about her willingness to promote the relationship with the father. There is some merit in those criticisms and some merit in Mr McAdam's suspicion about what was done.
Ms Clark observed a cooperative and respectful attitude between the parents, but there must be some lingering doubt about the ability for them to cooperate about the myriad of day-to-day details where there needs to be cooperation if a seven year old is spending equal time with each parent.
The principal considerations are the ones I have referred to, which may be summarised as the effect on S of any change, but I do take into account what I think are some lingering concerns about the ability of the parents to cooperate effectively in terms of the two cooperation considerations. Even if there was a relocation I conclude it would not be in S's best interests for there to be equal time.
Relocation
That does not decide the relocation question. Ms Clarke's opinion is that it was not necessary for Ms McAdam to move. It would be better if she had stayed. After the move the alternate weekend time can continue and half the school holidays can continue. There are two disadvantages. One is the travel. It is the effect on S which is the important consideration. There is some debate about the amount of time involved. It involves travelling through metropolitan Brisbane so that traffic conditions, and on some occasions, weather will have an effect on the time. It is about three hours. Ms Clarke said that when she wrote her report she thought it was about two. When told it was three or more she expressed concern about the effect on S. The other aspect is that while the alternate weekends and school holiday time can continue, the opportunity for additional time and more flexible arrangements is limited because of the distance the parties will be apart if there is not a relocation.
While it would have been better if Ms McAdam had not relocated, the Court is required to look at the situation as it exists now. The three older siblings are important in S's life. I accept that if their mother has to move back to the west of the Ipswich area, that the three older children will have to move with her. They have got nowhere else to live; they will have to come back. The oldest boy, Z, has now left school. He is working with [X] and he sees a potential career there, although he has some interest in taking up naturopathy study. He is working at [X] in Gympie or in the Gympie area. He has a girlfriend in the area. He does not want to move.
E and C initially did not want to move from [W] to [K], but having moved they do not want to move back. They like the school better. They are doing better at that school than they were. They have part-time jobs in Gympie. They have friends back in their old school and they still have contact with them. They could, of course, obtain part-time jobs in Ipswich or in the Ipswich area but they do not want to move back. Their mother does not want to move back.
Ms Clark's opinion and recommendation is, with some hesitation because of the amount of time involved in travelling, that there should not be a move back. S potentially would be in a house with an unhappy mother and unhappy siblings. I have already described
Ms Clark's assessment of the importance of that family relationship to S. Ms Clarke said that she prefers certainty to uncertainty. As things stand at the moment S is thriving in the family home and with family members with whom she is familiar. She has an excellent thriving relationship with her father. If she then was in a house with an unhappy mother and unhappy siblings, that would effect her well being. That is a disadvantage in itself and if her happiness and well-being is affected, it may affect the excellent relationship she has with her father.
The considerations are the benefit to S of a meaningful relationship with her parents and the nature of the relationship of S with her parents and the other people in her life. I consider that S's best interests lie in her remaining with her mother where she is in [K].
I add two comments. In the High Court decisions, the right of people to decide their place of living is a consideration. There are three older children involved. They are not parties to the proceeding and they are not represented other than by their mother. If I was to order relocation, I would have to give some consideration to the effect on them independently of the affect on S.
The other comment I make is that the father's partner, Ms W, did not give evidence. Ms Clarke spoke to her and gathered from her that she enjoyed having S stay. I infer from that that she supports
Mr McAdam in his application. The Court has not had evidence from Ms W where she states specifically that she supports the father's application.
She would obviously be an important figure in S's life. She is an important figure in S's life now but would be even more so if S went to live half the time with her father.
Mr McAdam's working and living arrangements are that he manages a farm. He lives on the premises. It is a farming family where all live together on the farm. Although he works six days out of seven, and sometimes seven days out of seven and sometimes longer hours, his normal working day is 8.00 to 4.00, so he would be leaving after the children have caught the bus to school and back before they return from school. Even bearing that in mind, Ms W would be a figure in S's life. The Court has not had an opportunity to hear what she has to say about it, what she thinks about what life would be like for S living in the home with her three boys.
I consider, independently of these comments, the evidence is clearly in favour of a decision that it is in S’s best interests that she remain in [K] and that the arrangements should be as they are at the moment.
(Discussion and adjournment with further discussion)
Orders are made in accordance with the minutes.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate: Jan Smith
Date: 16 April 2008
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