FEDERAL CIRCUIT COURT OF AUSTRALIA
| MEREDITH & MEREDITH | [2015] FCCA 2152 |
| Catchwords: FAMILY LAW – Parenting – where the mother seeks to relocate with the children – where the father opposes relocation – benefit to the child of having a meaningful relationship with both parents – where relationship with each parent already well developed and meaningful – where no allegations of family violence or abuse and the presumption of equal shared parental responsibility applies – where communication between the parents fraught but largely cordial – where meaningful relationship with each parent is achievable on any of the various proposals – where both parents have repartnered and the mother’s relationship has, for some years, been practiced over distance – where father’s time with the children since separation has been limited by his work commitments rather than any other intervention. |
| Legislation: Family Law Act 1975, ss.13C, 60B, 60CA, 60CC, 60CC(2A), 61DA, 65D, 65DAA, 65DAA(5), 65DAB, 69ZN |
| Yuill v. Yuill (1945) 1 All ER 183 (CA) Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46 Makita & Sprowles (2001) 52 NSWLR 705 Barnardo & McHugh [1891] AC 388 Gordon v Goertz (1996) 134 DLR (4th) 321 Morgan & Miles (2007) FLC 93-343 AMS & AIF (1999) CLR 160 Stevenson & Hughes (1993) FLC 92-363 |
| Applicant: | MR MEREDITH |
| Respondent: | MS MEREDITH |
| File Number: | AYC 85 of 2014 |
| Judgment of: | Judge Harman |
| Hearing dates: | 2, 3 July 2015 |
| Date of Last Submission: | 3 July 2015 |
| Delivered at: | Parramatta |
| Delivered on: | 13 August 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schonell S.C |
| Solicitors for the Applicant: | Yeend & Associates |
| Counsel for the Respondent: | Ms Barnett |
| Solicitors for the Respondent: | Farrell Lusher Solicitors |
ORDERS
The parents Mr Meredith and Ms Meredith shall have equal shared parental responsibility for their children:
[X] born [omitted] 2004;
[Y] born [omitted] 2006; and
[Z] born [omitted] 2009.
[X], [Y] and [Z] shall live with their mother.
Ms Meredith shall, no earlier than 2 January 2016, be permitted to relocate the children’s place of residence from [W] to Canberra.
Mr Meredith shall spend time with [X], [Y] and [Z] as follows:
(a)Until 2 January 2016 or such time as Ms Meredith should relocate with the children to Canberra:
(i)Each alternate weekend during school terms from the conclusion of school Friday until the commencement of school the following Monday (extending to Tuesday in the event of a long weekend or pupil free day);
(ii)Each Wednesday during school terms from the conclusion of school until 7:30pm;
(iii)Each Father’s Day weekend from the conclusion of school Friday until the commencement of school the following Monday (and provided that in the event that Mother’s Day should fall on a weekend when the children are otherwise scheduled to be in their father’s care that the father’s time shall, for that weekend, be suspended);
(iv)For one half of each short New South Wales school holiday period as agreed between the parents or failing agreement for the first half of that holiday period and being from 10:00am on the first Saturday of the school holiday period until 6:00pm on the middle Saturday;
(v)The Christmas 2015/2016 school holiday period:
1. From 10:00am 19 December 2015 until 5:00pm Christmas Day 2015; and
2. For a further block of 10 days during that holiday period as agreed between the parents or failing agreement from 10:00am 9 January 2016 until 5:00pm 18 January 2016.
(b)From 2 January 2016 or upon the mother’s relocation to Canberra whichever occurs last:
(i)Each third weekend during ACT school terms and from 5:00pm Friday until 5:00pm Sunday together with the Father’s Day weekend in each year (and provided that in the event Mother’s Day falls on a weekend when the children are scheduled, pursuant to this Order, to be in their father’s care, the father’s time shall, for that weekend, be suspended and shall, instead, occur on the preceding or subsequent weekend instead);
(ii)For up to 3 additional weekends per ACT school term from the conclusion of school Friday until no later than the commencement of school Monday, such periods to be exercised in the Canberra/ACT area and provided that the father shall give to the mother not less than 14 days’ notice (by email) of his intention to spend such time with the children on any specific occasion;
(iii)One half of each short ACT school holiday period as agreed between the parents or failing agreement for the first half of each holiday period and from 10:00am on the first Saturday until 6:00pm on the middle Saturday;
(iv)For one half of the ACT Christmas school holiday period in each year as agreed between the parents and failing agreement for the second half of each school holiday commencing 2016/2017 and each alternate year thereafter and for the first half of all such holidays in all other years.
For the purpose of changeover:
(a)Whilstsoever the parents are both residing within the [W] area the father shall collect the children from and return the children to their school at the commencement and conclusion of each period or if not a school day the father shall collect the children from or return the children to the mother’s home;
(b)Upon the mother’s relocation to Canberra changeovers, save for any period when the father is spending time with the children in Canberra, shall occur by the parties meeting at [J] and if the father is spending time with the children in Canberra the father shall collect the children from and return the children to their school or the mother’s home.
Each parent shall be entitled to telephone, whether by voice call, FaceTime or Skype, and speak with the children each Tuesday, Thursday and Sunday when the children are not and have not been in their care and with respect to same:
(a)The father shall purchase, provide and maintain for the use of the children a mobile phone capable of receiving FaceTime or Skype calls as well as voice calls and texts;
(b)The telephone shall travel with the children and each parent shall ensure that it is charged, switched on and able to receive calls between 6:30pm and 7:00pm each Tuesday, Thursday and Sunday and at all other reasonable times;
(c)Each parent shall ensure that the children are available to speak with the other parent without interruption or distraction and with privacy at the above times and on the above days.
Pursuant to section 13C of the Family Law Act1975, the parties and each of them shall forthwith and within seven (7) days contact the intake officer of Relationships Australia [W] for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the provision of Family Counselling services specifically designed to assist them in developing a better strategy for post separation parenting, communication and cooperation and, subject to the assessment of suitability, each party shall then:
(a)Attend at such times, dates and places as may be advised; and
(b)Pay such fees as may be charged;
to participate in and complete such sessions of Family Counselling as are assessed as suitable and offered.
Each parent shall keep the other advised at all times of their current residential address, email address and any separate email address for the children or any of them together with their contact telephone number and shall advise the other party within 48 hours of any change to any of those details.
Each parent shall, to the extent that they have not already done so, do all things, sign all documents and give all consents, authorities and instructions as may be necessary to ensure that each parent is recorded with any school attended by the children as both a parent and emergency contact person and so as to ensure that each parent can receive advice of any events at the school to which parents are invited or encouraged to attend, to attend such events and to obtain directly from the school all information or reports (whether oral or written) as they may desire.
Each party shall forthwith and contemporaneous with the event, advise the other of any significant illness, injury, specialist medical appointment or hospitalisation relevant to the children and shall do all things, sign all documents and give all consents, authorities and instructions as may be necessary to allow and permit each parent to be fully advised and consulted with respect to any treatment provided to the children and to visit the children if hospitalised.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.
IT IS NOTED that publication of this judgment under the pseudonym Meredith & Meredith is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
AYC 85 of 2014
| MR MEREDITH |
Applicant
And
| MS MEREDITH |
Respondent
REASONS FOR JUDGMENT
These proceedings involve competing Applications for parenting Orders with respect to three children:
[X] born [omitted] 2004;
[Y] born [omitted] 2006; and
[Z] born [omitted] 2009.
The parties to the proceedings are the children’s parents being their father Mr Meredith, who is the Applicant, and their mother Ms Meredith who is the Respondent.
History of proceedings
These proceedings were commenced by an Application Initiating Proceedings filed by Mr Meredith 23 May 2014.
The proceedings first came before the Court on 13 August, 2014 as part of the then combined Albury/Wagga Wagga circuit.
It is common ground between the parties that one of the motivations for the Application by Mr Meredith, the first such Application by either parent for any Order under the Family Law Act 1975, was a desire to restrain Ms Meredith from relocating the children from [W] to Canberra. That is so notwithstanding that a restraint (seeking to restrain Ms Meredith from removing the children beyond a radius of 20km from the [W] Post Office without the knowledge and written consent of the father) was only sought as an interim or interlocutory Order.
There is no issue raised that Ms Meredith was unaware that, at hearing, an enduring restraint would be sought by Mr Meredith and, accordingly, I am satisfied that due process has been afforded to Ms Meredith.
By her Response filed 5 August 2014, Ms Meredith sought an Order specifically permitting the children’s relocation from [W] to Canberra.
On the first return date of the proceedings 13 August 2014 a number of interim parenting Orders were made by consent. Those interim Orders are in the same terms as the interim relief sought in the Response filed by Ms Meredith.
The Orders 13 August 2014 also included provision for the preparation of a Family Report to be prepared by the Canberra Registry of the Federal Circuit Court of Australia. The Family Report was duly completed and released to the parties by Order made 2 February 2015.
The proceedings next came before the Court 22 May 2015. On that date the proceedings were listed for hearing 2 and 3 July 2015 to occur at the Parramatta Registry. This arose as no trial dates were available on either the Albury or Wagga Wagga circuits.
The trial of the matter proceeded on the allocated dates and the hearing was contained within those dates.
The parties, their attorneys and Counsel are to be commended for the manner in which the proceedings have been prepared, the hearing conducted and the matter expeditiously determined.
Whilst it should not be remarkable nor the cause of comment, it must be observed that both attorneys and Counsel for these parties have conducted the case to the highest standards of the profession. The material prepared on behalf of the parties has been concise, erudite and confined to issues of relevance. There have been few objections taken and those taken have been consensually resolved.
Whilst section 55 of the Evidence Act 1995 (Cth) makes clear the fundamental rule of evidence by which all cases should be prepared and conducted it is, sadly, all too often ignored. Section 55 of the Act provides that evidence is admissible if it is relevant. As a corollary evidence is not admissible if it is not relevant. Yet it is material of this kind, the irrelevant, inflammatory and potentially, if not in reality, embarrassing and distressing material (whether to one party or the other or both or to the Court), that is routinely included within that filed in proceedings.
The conduct of the hearing invoked a nostalgia for days all too often considered passed when the presiding Judge can listen and take notes with minimal intervention leaving the conduct of the case to competent Counsel who deal with all witnesses and each other with grace, good humour and courtesy. Indeed, the only significant interaction between bench and Counsel has been, as it should be, during closing submissions when considerable assistance was provided by Counsel for each party through interaction with the bench, discourse and dialogue regarding the case and, ultimately, in placing the case of each parent clearly before the Court with appropriate force.
The above not only fulfils the most proud tradition of the Bar, that upon which the trial process has been constructed and dependent for some centuries (albeit a foundation oft eroded in the present day through the absence of legal representation or inadequate representation), but meets and fulfils the principles for the conduct of parenting proceedings as set out in section 69ZN of the Family Law Act 1975.
The parents involved in these proceedings have similarly demonstrated their decency, humanity and competence as parents. It is, for example, refreshing to hear a parent readily concede of the other that the children love them, that the children are loved by that parent and that they are a “good parent”. All too often the best that can be grudgingly conceded by one parent of the other is to the effect “I suppose they love them”.
The above matters I record briefly primarily for the benefit of these parents and so that they might realise how fortunate they have been to choose competent attorneys and Counsel who have conducted their affairs in a fashion that will allow and permit them to continue to jointly parent their children and without the damage all too often wrought to parents, parental alliances and relationships and, thereby, their children. Whatever money they have each spent has been well spent and they can each be assured that their interests have been competently represented to the highest standard and that the interests of their children have been fundamentally identified and explored.
As I observed at the outset, such matters should not be remarkable. They should be the daily experience of the Court and litigants who come before the Court. Regrettably, that is not so and for that reason I have taken these few moments to make comment.
All too often the conduct of a trial requires significant judicial intervention to referee squabbles and disputes between attorneys, the bench required to engage in significant questioning to make up for the absence of appropriate evidence or testing thereof and, as a consequence, the Court is left with either imperfect or insufficient evidence upon which to base a serious determination (for what could be a more serious determination than the future best interests of a child) or with a perception by one or both parties, dependent upon whether they are represented or self represented and, if represented, the competence of that representation, that the Judge has, as it were and to adopt the language of Lord Greene MR in Yuill v. Yuill (1945) 1 All ER 183 (CA) at 189b, “…descend[ed] into the arena and is liable to have his[or her] vision clouded by the dust of the conflict”.
Competent conduct of a case by Counsel also allows the Judge to assume their proper role as was eloquently expressed by Lord Denning in Jones v. National Coal Board [1957] 2 All E.R. 155 at 159f-g:
A judge's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies.
I cannot help but wonder when such representation and advocacy ceased to be the reasonable expectation of the Court and the community. Certainly, the advent of “case management”, judicial control of the conduct of litigation, is a relatively recent phenomenon, born in the 1970’s. Such case management has now matured and is to be found in Codes of Conduct and Practice Rules of both solicitors and the Bar Associations as well as in rules of Court and Uniform Civil Procedure Acts. All of these document that which was previously intuitive and expected – courtesy, efficient use of Court resources, not commencing or maintaining proceedings lacking merit, and taking “genuine steps” to resolve or limit issues.
Certainly the judicial role is now reframed by authority such as Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75 quoted with approval by the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46, wherein the English Court of Appeal stated:
It is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice.
I am in wholehearted agreement with respect to both the above statement and the comment of Judge Neville in Watts & Lorreck (No.3) [2015] FCCA 1653 (unreported) with respect to that statement, namely that:
...such comments [regarding case management] need diligent application, otherwise all too scarce public resources are consumed by cases and controversies that should be quelled by much less taxing (for parties and the Court) processes.
The Judge’s role and the litigant’s experience of litigation are made all the more enjoyable when the matter is conducted by competent, focused, courteous and erudite attorneys and Counsel. In those circumstances there is no need for strident case management. From Court event to Court event (and this matter has had but 3) the matter is prepared and advanced expeditiously without any need for a Judge as “referee” (to continue the Court of Appeal’s sporting analogy) to “blow the whistle”.
Just as a game of football is an engaging spectacle when the referee keeps the whistle out of their mouth and the players are able to freely display their skills without interruption, so too a Court case. As a means by which evidence can be presented and tested, assumptions can be challenged and justice done and seen to be done, a circumstance whereby the Judge need not directly engage in the process is to be preferred. To achieve that position the Court needs a manageable workload and adequate resources to deal with that workload as well as competent legal representation.
Since the 1970’s the workload of Courts has dramatically increased and the available resources, both within the Court and without, have decreased. It is perhaps no coincidence that the advent of case management has corresponded with increased workloads and reduced resources. It is highly probable that case management has been reactive to those twin disadvantages.
Ultimately, however, for the Judge to remain “out of the game” and “his whistle out of his mouth”, the case needs all parties represented by competent Counsel. It is that reality in this case which has made the matter a pleasure to deal with and has allowed this matter, notwithstanding the investment of these parties in the outcome of the case, to conclude well within the allocated 2 days.
The evidence
In the father’s case I have read and considered each of the following documents:
a)The Application Initiating Proceedings filed 23 May 2014;
b)The father’s Affidavit sworn or affirmed 22 May 2015 and filed the same day;
c)The father’s Affidavit in reply sworn or affirmed 1 July 2015 and filed the same day;
d)The Affidavit of the father’s partner Ms M sworn or affirmed 22 May 2015 and filed the same day;
e)An Outline of Case document and Minute of Final Orders sought by the father.
In the mother’s case I have read and considered each of the following documents:
a)The Response filed 5 August 2014;
b)The Affidavit of Ms Meredith sworn or affirmed 10 June 2015 and filed 11 June 2015;
c)The Affidavit of the maternal grandmother Ms R sworn or affirmed 11 June 2015 and filed 15 June 2015;
d)The Affidavit of the mother’s partner Mr C sworn or affirmed 20 June 2015 and filed 22 June 2015;
e)An Outline of Case document filed on behalf of the mother.
In addition to the above I have also received into evidence a number of Exhibits comprising:
a)Exhibit A - a Family Report dated 29 January 2015 and prepared by Dr S;
b)Exhibit A1 – an Application for Divorce completed by or on behalf of Ms Meredith and filed 21 February 2014;
c)Exhibit R1 – a bundle of email correspondence between the parties regarding the children’s time arrangements with their father;
d)Exhibit R2 – a letter from Ms Meredith’s attorneys to the solicitors for Mr Meredith dated 29 September 2014 and regarding school holiday time;
e)Exhibit R3 – a further bundle of email communication between the parties regarding children’s arrangements.
Each of the parties was required for cross examination as were their partners and the Family Report writer. I have also had the benefit of the evidence arising from their cross examination.
There are few areas of controversy arising from the evidence. To the extent that there is divergence it largely arises from interpretation, each viewing agreed events from a different perspective or ascribing a different motivation or applying a different interpretation to events, rather than any significant factual controversy.
Following the cross examination of each parent and their partners, I have no difficulty in accepting each of those people, together with the maternal grandmother who was not required for cross examination and thus her evidence is entirely unchallenged, as witnesses of truth.
In this case there are no issues of credit. The parties (and their witnesses) are all equally credible. All have given their evidence frankly, directly, truthfully and to the best of their ability.
Similarly, and partially in reliance upon the above finding as to credit, I am satisfied that the evidence of the Family Report writer can be accepted (which evidence I will deal with in due course). No Makita & Sprowles (2001) 52 NSWLR 705 issues arise with respect to the Report and all assumptions of fact that the Family Report writer has based any expressed opinion upon are valid and accurate and largely the agreed or conceded evidence of these parties.
I incorporate herein the brief chronology of events outlined in the Case Outline document filed by Ms Meredith’s Counsel. The relevant foundational evidence underpinning the case, as regards dates of birth and the like, is contained therein.
[date omitted] 1977
Mother born (now aged 38)
[date omitted] 1975
Father born (now 39)
May 2003
Parties commence cohabitation
M[4]
2004
Father commences his own business - [B]
M[15]
[date omitted] 2004
[X] born – now 10 years
M[8]
2005-2006
Maternal Grandmother moves from [W] to Canberra. The maternal grandmother would return to [W] on a monthly basis to assist the mother.
M[18]
[date omitted] 2006
[Y] born – now 8 years
M[8]
[date omitted] 2009
Parties marry
M[5]
[date omitted] 2009
[Z] born – now 5
M[8]
August 2009
Mother resigns from her position at [omitted] to be the homemaker and to do the book work for the [B] business
M[23]
February 2013
The parties separate with the father moving out of the former matrimonial home but returning daily due to the workshop and home office located on the property.
M[34]
1 May 2013
The mother moves out of the former matrimonial home.
M[35]
2013
Father spends time with the children each alternate weekend from 5:00pm Friday to 5:00pm Sunday and holiday time.
M[36]
November 2013
The mother commences a relationship with Mr C
M[78]
January 2014
Father commences a relationship with Ms M
F[48]
March 2014
The father approaches the mother to move to a week about care arrangement. The mother refuses, the father repeatedly makes the demand and discusses an increase in time with the children.
M[50]-[52]
March 2014
The mother tells the father she wishes to move to Canberra.
M[80]
May 2014
Proceedings are commences by the father.
M[56]
June 2014
Ms M and her two children ([S] and [T]) move in with the father.
F[48]
13/8/2014
Parties Agree to interim Consent Orders providing for the father to spend time with the children each alternate weekend from Friday until Monday, each Wednesday and half of the short school holidays and two weeks in the Summer School holidays.
12 October 2014
The mother speaks with the children about her desire to relocate with them to Canberra. She tells the father she has told the children.
M[60]
M[61]
October 2014
The mother experiences significant back pain
M[74]
January 2015
Father becomes the sole director of the company [R]
F[5]
These children have the great advantage in life of having two parents who care for them and love them a great deal. That advantage is augmented by each parent having chosen well as regards their new partners. The children express clear love for each of Mr C and Ms M and they are clearly people of significance to these children. In addition, the children have extended family members, perhaps more numerous in the case of Ms Meredith than Mr Meredith, who are of great importance and significance to them also.
The children’s paternal grandmother (Mr Meredith’s mother) is clearly a person with a close relationship with these children and from which relationship the children derive benefit and joy. The paternal grandmother lives in the township of [D] some 2 ½ to 3 hours travel south west of [W]. The children visit their paternal grandmother with their father up to half a dozen times per year (by travelling to [D]) and at other times when she visits them in [W].
The children have a number of maternal family members of importance to them who reside in Canberra or adjoining Queanbeyan. These include:
a)The children’s maternal grandmother, Ms R, who lives in a suburb of Canberra;
b)Ms Meredith’s sister, the children’s aunt (and her husband) who also live in Canberra; and
c)Ms Meredith’s father and his partner who live in Queanbeyan.
Ms Meredith also has two sisters who live in Melbourne and whom Ms Meredith suggests travel regularly to Canberra as well as a brother who predominantly lives in Wollongong, where he attends University, and who returns to Canberra on a regular basis.
Ms Meredith was born and grew up predominantly in Canberra. Mr Meredith predominantly grew up in [D]. It was in [D] that the parents met when they were both attending high school.
In 2002 Ms Meredith’s mother “ran into” Mr Meredith in [W] where she was then living. At that time Ms Meredith was living on the Gold Coast but, through her mother, she was reintroduced to Mr Meredith whom she had known at school. A short time thereafter Ms Meredith returned to [W], she and Mr Meredith began dating and a relationship developed between them. Since that time and to the present, both pre-dating, during and post-dating their marriage, both Mr Meredith and Ms Meredith have lived and worked in [W].
The work history of these parties is largely agreed and far from remarkable. Mr Meredith is clearly a committed and driven worker. He has always worked hard and has, since early in the relationship and since shortly before the birth of the eldest child [X], been self employed in his business [B].
Ms Meredith accepts the evidence of Mr Meredith (paragraph 15 of his Affidavit 22 May 2015):
I was the sole income earner in our household during the marriage. I worked as a [omitted]. Ms Meredith stayed at home and look after our household and the children as well as assisting me in the administration of my business.
And (paragraph 19 of his Affidavit 22 May 2015):
Ms Meredith was the primary carer during our relationship. While we were together I thought as long as the kids had one parent at home with them they would be all right and I needed to be a good provider. I now know that I have missed out on so much with the children that I can’t get back.
This theme is also taken up at paragraph 10 of the Family Report:
Mr Meredith acknowledges that he was unavailable as a father and not reliably supportive of Ms Meredith during the children’s younger years.
The above portions of the evidence are not quoted to be critical of Mr Meredith. They are a direct quotation of his evidence or that reported of him by Dr S. It was not suggested to the good Doctor that his reportage was other than accurate.
The concessions made by Mr Meredith are frank, candid and appropriate. What is clear from those concessions is that:
a)Firstly, Mr Meredith worked hard in the relationship and ensured that, through his efforts, the best possible financial provision could be made for this family. That has continued since separation and with these children receiving great benefit from their father as a financial provider, Mr Meredith pays Child Support as assessed and without question as well. That should not be extraordinary yet, sadly, it is with a well published debt of over $1.6 billion outstanding to the Child Support agency and calls for action at Government level. Mr Meredith also contributes to other expenses of the children such as school fees and extracurricular costs. Additionally, this reflects Mr Meredith’s significant importance as a role model for the future development of these children;
b)Secondly, Mr Meredith is fully aware, (at least following separation from Ms Meredith), of what he has missed out on through that very hard work and thus absence, physically and possibly at times, emotionally, from these children in their early and formative years.
As I have already indicated, I am not at all critical of Mr Meredith for his evidence as above. Mr Meredith’s evidence is truthful and poignant. It is the dilemma that many parents, more often than not male parents, face in parenting their children. To devote time and effort to establishing a business, successful as it now is, limits the ability of that parent to partake of the joy and delight that parenting young children can be. However, I accept that Mr Meredith has been selfless in his hard work and no doubt looks back upon those years, having worked hard and away from his children for significant periods of time each day and, on limited occasions for blocks of time, with some regret.
Ms Meredith is somewhat more critical of Mr Meredith. This is, again, explicable and I am not critical of Ms Meredith for the views she expresses on the topic. The corollary of Mr Meredith’s hard work and endeavour has been that which Mr Meredith concedes – that Ms Meredith has been the children’s “primary parent” and has been so in a very real sense at times, during the marriage, verging upon having been a sole parent.
The phrase “primary parent” is all too often primarily meaningless. Ordinarily the phrase, at best, denotes a mathematising of past care without reference to its quality or consequence. In this case the concession is appropriately made by Mr Meredith that Ms Meredith has been the children’s primary carer in every sense – physically and emotionally – and has done an excellent job in parenting these children.
The Court is required to make a prospective determination as to that which will best serve the needs and interests of children and a determination of past primacy of care, status quo if you will, is far from determinative of any issue. The Full Court has been clear (see for example Goode & Goode (2006) FLC 93-286 rejecting past reliance upon status quo as a determinative issue in interim parenting proceedings and expressly rejecting the approach espoused by cases such as Cowling [1998] FamCA 19, Griffiths (1981) FLC 91-064, Cilento (1980) FLC 90-847 and Rainer & Rainer (1982) FLC 91-239) that past care arrangements or “status quo” might be useful to gauge what may or may not have worked in the children’s past care arrangements (and thus being of some value in predicting what might work in future) but should not assume any greater importance.
It is entirely explicable that Ms Meredith would have a harsher view of past arrangements, during this period when Mr Meredith was devoted to significant employment and working long hours, than that advanced by Mr Meredith. Both viewpoints are equally valid and equally real. However, in acknowledging the authenticity of Ms Meredith’s view I do not adopt the criticism of Mr Meredith. It is simply how these parents, when together, arranged affairs within their household.
Ms Meredith is reported (paragraph 11 of the Family Report) in the following terms:
Ms Meredith claims that Mr Meredith was uninterested in participating in the upbringing of the children prior to their separation and for some time after that. She claims he had been constantly unreliable in keeping commitments he made to care for the children and support her in that role, and that their relationship is acrimonious. Ms Meredith acknowledges the Mr Meredith has only recently shown greater interest in the children. She claims this interest coincides with the beginning of his relationship with Ms M. However, she believes the children have learned to rely on her as their principal carer and that the present arrangement allows sufficient time for Mr Meredith to maintain a significant relationship with the children.
Whilst I accept that the above is an accurate reflection of
Ms Meredith’s view of past arrangements, there are portions of that view which I do not accept as accurate in reflecting either the attitude or involvement of Mr Meredith.
Mr Meredith describes (for example paragraph 16 of his Affidavit 22 May 2015) the tasks that he would perform or assist in performing outside of his hours of work. I accept that these duties were “shared” by these parents albeit with a significant preponderance of care provided by Ms Meredith. So much is conceded and is thus an irresistible and largely uncontested finding.
Through whatever time arrangements applied and whatever level of involvement Mr Meredith was engaged in with respect to the children’s care prior to separation, he has clearly built a relationship with these children and each of them that is sound and which is variously described by the parties and the Family Report writer as “reasonable” (Mr Meredith’s evidence during his cross examination particularly with respect to his relationship with [X]), “good” (Ms Meredith’s evidence during cross examination) or “significant” (see paragraph 54 of the Family Report).
Overall I am satisfied that the above evidence is given its clearest context at paragraph 53 of the Family Report and in the following terms:
Mr Meredith acknowledged that he made very little contribution to his children’s early care and development. His practical interest in the children appears to be a recent phenomenon. He identifies that his previous attitudes reproduced his experiences as a child and claims to be seeking to change and to demonstrate his genuine interest in his children. This realisation is commendable (emphasis added).
Mr Meredith has parented as he was parented. Whilst I have little sympathy for the oft offered caution that one should not view past events from a present perspective (especially when that caution is offered with respect to child abuse as such abuse has always been morally and legally wrong and accepted as so) this is one instance when I am satisfied such caution is entirely warranted.
As was submitted by his Counsel Mr Meredith is not “a new age man”. That does not make him any less decent nor any less competent, caring or loving as a parent. He has not been as “hands on” as one is often encouraged to expect from a parent irrespective of their gender. But that is no criticism. He has, as indicated above and irrespective of the nomenclature used, developed a relationship of importance to him and these children and he provides these children with the very great benefit of a father who models for them an attitude towards his place and responsibilities within society that is commendable and to be wholly encouraged.
The children’s relationship with their mother is strong and important. That much is not an issue in these proceedings. Whilst it is not specifically addressed by the Family Report, focused as it is upon the children’s relationship with their father and the potential impact of the mother’s proposed relocation with the children to Canberra (there being no issue that the children will continue to live with their mother and there being no challenge to that situation as the mother is clear that she would not part from the children even if that meant her acceptance of restraint), the mother’s strong relationship with the children is accepted as a fundamental assumption by the Family Report writer and, perhaps more importantly, conceded by Mr Meredith.
At the commencement of his cross examination a series of propositions were put to Mr Meredith and with which he readily agreed. These were to the following effect:
Q You agree the children love their mother?
A Yes.
Q And she loves them?
A Yes.
Q You said to the Family Report writer that the mother is a good mother?
A Yes.
Q That’s true?
A Yes.
Q The mother is a good carer for these children?
A Yes.
Q You mean she looks after them well?
A Yes.
Q Physically?
A Yes.
Q Emotionally?
A Yes.
Q Psychologically?
A Yes.
Q The mother was the primary carer in your relationship?
A Yes.
Q The reason was that you were the main breadwinner?
A Yes.
Q Your business took up significant time?
A Yes.
Q The mother worked part-time during the marriage?
A Yes.
Q At paragraph 25 of your Affidavit you say that post separation your business was financially in trouble?
A Yes.
Q And after separation you still had to put lots of time into the business?
A Yes.
Q It was a difficult financial position, a difficult situation?
A Yes.
Q And you were spending alternate weekend time with the children post separation?
A Yes.
Q And arrangements were made between you and the mother without the need for Orders?
A Yes.
Q You agree the mother continues to be the children’s primary carer?
A Yes.
Q And the mother’s emotional well-being is important to the children’s well-being isn’t it?
A Yes.
Q And the mother being happy is a positive for the kids?
A Yes.
Q And practical support for the mother is beneficial for the children?
A Yes.
Q The mother has no family in [W] does she?
A Yes.
Q The mother has family in Canberra?
A Yes.
Q And her mother lives in Canberra?
A Yes.
Q And the grandmother was in [W] when the two of you got together?
A Yes.
Q And the grandmother moved to Canberra during your marriage?
A Yes.
Q And she came back to [W] to help out once a month?
A Yes.
Q And she provided practical support to the mother?
A Yes.
Q And the children developed a good relationship with the grandmother?
A Yes.
Q The wife’s mother lives in Canberra?
A Yes.
Q So does her sister?
A Yes.
The above line of questioning is somewhat significant in the context of these proceedings. A fundamental tenet of the mother’s case is that she desires to move to Canberra so that she will have the benefit, support and assistance of her partner and various extended family members. Whilst the mother’s case has not been prefaced upon the assertion that she would be so disadvantaged or rendered so unhappy that her parenting would be impacted if she were not permitted to relocate, the benefits to the mother and, through her to the children, of these supports and supportive relationships is not in issue as a consequence of Mr Meredith’s frank and candid concessions.
Fundamentally, I accept that the children’s primary and most important relationship is with their mother. The children also have a strong and important relationship with their father. The evidence would suggest, however, that the relationship between the eldest child, [X], and her father is subject to some difficulty at present. That relationship warrants some brief discussion.
Mr Meredith has consistently described [X] as “a daddy’s girl”. During his cross examination and when questioned regarding this proposition Mr Meredith added the caution that this was so, in his view, “when she was younger”. When asked more directly whether he believed that he enjoyed a good relationship with [X] at present Mr Meredith responded, again frankly and candidly, “I think it’s reasonable”. A good relationship with [Y] and [Z] was a proposition that Mr Meredith readily accepted (and all of the evidence would support that proposition without qualification).
[X]’s relationship with her father is described in Ms Meredith’s evidence as typified by a “reluctance” on her part (and possibly the two younger children also) to go to the father’s home. Ms Meredith referred to specific periods when she believes such “reluctance” has been manifested, namely, the period from separation until early 2014 and a second period from January 2015 to the present. Connected therewith is the assertion by Ms Meredith that the relationship between the children and their father (and Mr Meredith’s “attitude towards his engagement with the children”) changed and changed for the better corresponding with Mr Meredith commencing his relationship with
Ms M (see paragraph 49 of Ms Meredith's Affidavit).
In the period from separation to early 2014 as well as the period since January 2015 Ms Meredith asserts that the children and, in particular, [X] (and to a lesser but significant extent the youngest child [Z] albeit on a different basis) regularly contact Ms Meredith from the father’s home whilst they are spending time with him. Ms Meredith asserts that the children raise complaints with respect to their father on these occasions and that she is required to “mediate their relationships with their father from a distance”. That particular description by
Ms Meredith became a specific focus of submissions in closing
Mr Meredith’s case and which I will touch upon in due course.
With respect to [X] in the Family Report and the evidence given by the Family Report writer suggested, at the very least, some tensions in the relationship between she and her father. This included, at paragraph 41, [X] being reported as:
“Not a big fan” of staying with her father on Sunday evenings. She said it would be “easier” if she went back her mother on Sunday evenings because “Mum is a lot better getting us ready for school”.
And, at paragraph 42 and as regards her relationship with her father:
“… Her father is “nice” but is “a bit annoying”. She said this was because “he swears and yells at me a lot”. She also said, “He can be a bit frightening when he gets angry”.
In his oral evidence the Family Report writer went further and by reference to his notes taken of his interaction with [X] (and noting the Report writer’s evidence that the Report was prepared on the same day as the interviews and was prepared by reference to both his notes and that which he had kept within his memory) suggested that similar tension was reported by [X] and with the added comment “dad can be scary, he yells and swears a lot”.
It is important to place the above comments within context. [X] is clear in her expressed love and affection for both of her parents as well as their partners and their partner’s children. Both Ms M and Mr C have been a reality in these children’s lives for some little time (as have the children of those partners) and good relationships have developed with them.
[X] is also a child who is clearly conscious of her parent’s lack of communication and their disdain each for the other. This is particularly clear from that reported of [X] at paragraph 42 of the Report wherein she is reported to have stated “that her parents “don’t really talk to each other” and “don’t look at each other””.
When discussing the suggested move to Canberra and the travel this would necessitate two elements of that reported of [X] are significant, namely:
a)[X] is described within the body of the Family Report (paragraph 45) as saying “she did not want to relocate to Canberra. She said she did not want to leave her school and established friends and “would not like to have to travel for two and a half hours regularly”. After some consideration, she said, “Well, we go to Canberra a fair bit anyway””.
b)Secondly [X] is suggested, by the Family Report writer’s oral testimony, to have commented (as taken from the Report writer’s notes which were read out at the request of Counsel for the father) “I wouldn’t like to travel so much [between Canberra and [W]] but we do”.
What is also clear as regards the children’s relationship with their father is that:
a)Notwithstanding the suggested difficulties particularly with [X]’s relationship with her father and her “reluctance” to go to the father’s home, there is no suggestion that the children have ever failed to attend, have not been presented or, having attended with their father and even when having contacted their mother to raise complaints, that they have not stayed or ever been uplifted by their mother; and
b)Mr Meredith concedes of Ms Meredith that she is supportive of his relationship with the children and that this has included and extended to the mother providing support and comfort to the children and particularly the youngest child [Z] when she has been upset and distressed whilst in her father’s care. It is agreed between the parents that [Z] has, at times, missed her mother and having contacted Ms Meredith has been soothed, settled and encouraged to remain and has in fact remained with her father.
A proposition was raised in the father’s case, put to the mother during her cross examination and the subject of vigorous submission by Counsel in closing the father’s case. The proposition was that the mother, in her expressed desire and consequent proposal to relocate the children and herself to Canberra, was “motivated” by or reactive to the father’s desire or request for more time with the children. The clear proposition was raised that the mother had only formulated her proposal for the children’s relocation in reaction to the father’s expressed desire to spend more time with the children and purposive of seeking to frustrate the father’s desire and, further, interfere with his relationship with these children.
Essential to the father’s proposition is the submission that there was more than a casual or chronological coincidence between the mother’s proposal for relocation and the father’s request of the mother for more time. The father urges the Court to find that the mother formulated a proposal for relocation in reaction to the father’s proposal for greater time.
I do not accept that proposition. Whilst it is submitted that the mother has failed to produce any evidence which would counter such a finding I am satisfied that:
a)The burden of establishing the proposition rests with the father. The evidence relied upon by the father in seeking to establish that proposition is, at best, circumstantial and can be readily addressed by a consideration of the totality of evidence within its context; and
b)The totality of evidence establishes, to my satisfaction, that the mother, far from being disingenuous, reactive or purposive in frustrating the father’s relationship, has, over a significant period of time, fully contemplated her position, formed an intent and desire to relocate herself and the children both independent of the father’s proposal for further time and having given due consideration to the children’s time and relationship with their father (including the impact of her proposed relocation upon each) and the mother has then expressed her desire and clearly formulated proposals to the father.
I certainly accept that there is casual coincidence between the desire which each parent expressed to the other in March 2014 (being in the case of the father to increase the time that he was spending with the children and, in the case of the mother, to relocate to Canberra). I do not accept that there is a causal coincidence between the two. I will explore the evidence relating to those issues more fully hereafter.
The father’s propositions were put to the mother during cross examination and denied by her. I have no basis to reject her denial on oath. She is a witness of truth and her position was clearly explained and reasoned.
Ms Meredith’s evidence (paragraph 69 of her Affidavit 11 June 2015) is as follows:
Since separation, I have spent considerable time thinking about the children and my future. Initially after separation, I was focused on finalising the financial issues between Mr Meredith and I and establishing set routine with the children and their time with Mr Meredith and getting myself back into work and set up financially. The reality is however is (sic) that I was born in Canberra and my main form of support in my family are based in Canberra.
At paragraph 71 Ms Meredith offers:
Post separation, I wanted to move to Canberra immediately as I really needed my family and was feeling isolated. Mr Meredith however made it clear to me that I was to have nothing to do with his family and they had been forbidden from contacting me [the latter allegation being denied by Mr Meredith]. This was extremely difficult for me as I had been close to his mum however I decided to give Mr Meredith and his family the space that was needed [the paternal grandmother was not called to give evidence and thus Ms Meredith’s assertion could not be tested].
At paragraph 72 Ms Meredith deposes:
In July 2013 I started discussing with my family a possible move to Canberra with the children but I wanted to be thorough in my decision making. As the months wore on, I felt increasingly unhappy and felt trapped in [W] both practically and emotionally. Though I have a few close friends, my core support comes from my family in Canberra. I understood that by wanting to move, I would be moving the children away from Mr Meredith, their school, their friends and everything that they knew. It took me a consideration (sic) amount of time to become certain that this was in their best interest and I could make their relationship with Mr Meredith work in a meaningful way even if we were living in Canberra.
The mother then details, in the following paragraphs of her Affidavit, her increasing ruminations upon a proposed move to Canberra.
Ms Meredith deposes further that in October 2014 she experienced a significant back injury (as to which she was not challenged) which imposed “… severe impact on my physical ability” (paragraph 75). Whilst this post dates Ms Meredith’s proposals to relocate to Canberra it is suggested to add to the strength of her desire to relocate and the need for support.
During the course of her contemplations as to a move to Canberra and in October 2013, Ms Meredith met her partner Mr C and in November 2013 they commenced a relationship together.
Ms Meredith deposes that on 14 March 2014 a changeover of the children occurred between the parents and at that time a conversation occurred, instigated by Mr Meredith, regarding an increase in his time. On Ms Meredith’s version of the conversation this involved a request by Mr Meredith to move to a week about arrangement. Ms Meredith deposes that she then obtained legal advice and having obtained that advice wrote to Mr Meredith on 20 March 2014 (annexure ARK 15 to Ms Meredith's Affidavit) both rejecting the request of Mr Meredith to move to a week about arrangement and raising her desire to relocate with the children to Canberra.
The letter written by Ms Meredith commences with the following:
With regard to your change in care arrangements request, I feel it only fair that I voice what has been my thoughts for a significant period of time. I would like to relocate to Canberra with the kids. This has been a desire of mine since mid-2013 and I have taken time to give it intensive consideration with respect to the kids, myself and you.
There is then a page or so of detail provided by Ms Meredith as to the facts that she had taken into account in formulating her proposal to move.
This is not inconsistent with Mr Meredith’s evidence. Mr Meredith, commencing at paragraph 27 of his trial Affidavit, refers to the children making requests of him, and he desiring to, spend more time together. Mr Meredith then deposes “On one occasion when I was returning the children to Ms Meredith, I asked her words to the effect of “Can I spend more time with the children? I could pick them up on a Thursday afternoon instead of Friday?” She immediately replied “No”. I asked her to think about it and She replied “I will think about it then””.
On 12 March 2014 Ms Meredith had sent an email to Mr Meredith regarding a “seasons program” at the children’s school that she desired the children or some of them to participate in. In his response to
Ms Meredith’s email (an email dated 17 March 2014) Mr Meredith responded (in part):
The last 12 months have not been easy on any of us, the kids especially. I would like to spend more time with the kids as only getting them for 2 day every fortnight I believe is not enough for me to help them develop into adults. I would like to help them more with their homework and education and that is not possible when I don’t have them during the week… I would like to suggest that I could have the children on a Wednesday, Thursday, Friday and Saturday night every fortnight to help strengthen our relationship and help them with their development… This would be better for the kids having a block of days with their father in a row opposed to having them during the week on my off week which would probably at this stage be disruptive to their development …
Following this email chain Ms Meredith’s email 20 March 2014 was forwarded as discussed above. Mr Meredith makes clear (paragraph 30), “I advised Ms Meredith by email that I did not consent to the children relocating” although that email would not appear to form part of the annexures to either parent’s Affidavit.
The parties then attended Family Dispute Resolution. Although they were unable to resolve all issues they were able to reach agreement as to time arrangements on an interim basis and a parenting plan was completed. The interim Orders made on the first return date of the proceedings by and large reflected the parenting plan. Those Orders were made by consent.
The above evidence does not persuade me nor give me any basis to find that Ms Meredith formulated, in March 2014 and in response to and reactive to Mr Meredith’s requests for more time, her proposal to relocate to Canberra. I accept that she had spent significant time considering her position. I accept Ms Meredith’s evidence that she had, since separation, given thought and long and serious thought, to relocating herself and the children to Canberra. That the timing of Ms Meredith’s proposal to relocate corresponded with Mr Meredith raising the issue of time I accept was coincidental rather than reactive. I do accept that Mr Meredith may have perceived reaction rather than coincidence.
Added to the above was Ms Meredith’s ready acceptance, consistent with her Affidavit evidence that she is, as both a person and a parent, a “planner” who gives serious thought to arrangements before acting. I accept this as an accurate description of Ms Meredith. Ms Meredith’s agreed approach to matters, substantial and ponderous deliberation before acting, would be entirely inconsistent with that suggested in
Mr Meredith’s case, seeking to impute to Ms Meredith a hurried, reactive consideration of her position and, in the space of a few days, determining that she wished to move herself and the children from [W] to Canberra with the purpose, affect and intent of frustrating the children’s further relationship with their father and rendering nugatory his request for additional time. I do not accept that occurred.
I am given further confidence that the above assessment is accurate, as both a reflection of Ms Meredith’s general character and specific considerations with respect to the issue of relocation and in rejection of the proposition that Ms Meredith’s proposal to relocate first came into being or was first contemplated by her in March 2014 and in reaction to Mr Meredith’s desire to spend more time with the children, from her actions in facilitating the children’s relationship with their father since separation and including during the course of these proceedings.
Ms Meredith is criticised for having opposed the children and, in particular, the youngest child [Z], having significant block periods with Mr Meredith. Ms Meredith was clear in her evidence that she was not opposed to block periods occurring, especially during school holidays, and certainly not opposed to such periods occurring with the two elder children [X] and [Y]. Ms Meredith was clear that her principal concern, in withholding her consent to Mr Meredith’s proposal for more substantial block periods was a concern on her part that [Z] was simply not ready for that length of time away from her and based upon that which she had experienced of the children contacting her from their father’s home during his periods of time with them.
I am not critical of Ms Meredith for the position that she took, especially with respect to the Christmas 2014/2015 school holidays. The position that she adopted, having formed the view that a significant block of time would be distressing for [Z] and ultimately unhelpful for her relationship with the father, was well explained, well thought through and, in light of the totality of evidence, entirely appropriate.
Ms Meredith is also criticised for being “inflexible” with respect to variation or extension of time arrangements, especially since interim Orders were made between the parties. I am not satisfied that
Ms Meredith has, in fact, been “inflexible”. A number of specific examples are raised by Ms Meredith of occasions when she has instigated additional time or agreed to it when it has been sought. This had included the provision of time for Father’s Day 2014, time on the father’s birthday, time in November 2014 to take [Z] to an art show through her preschool and one other occasion.
Whilst Ms Meredith was criticised for being somewhat niggardly in the additional time provided on these occasions it was, in reality, additional time. Ms Meredith did not simply reply to Mr Meredith, when he has sought extra time or variation of arrangements, with “stick to the Orders”.
Ms Meredith was clear in her evidence that two matters had particularly exercised her mind in considering and responding to requests by Mr Meredith for additional time or variations. The first of these was a complaint that Mr Meredith could be slow to respond to her and, on one occasion that was the subject of cross examination,
Mr Meredith conceded that there had been a delay of some months in his responding to particular requests for information. Accordingly, the criticism would appear to have some basis, although it is far from the worst criticism that any parent might make of the other.
More germanely, Ms Meredith was clear that she felt some restriction in readily acceding to all requests for extra or additional time made of her by Mr Meredith due to her well planned arrangements and the need for those arrangements to take into account her work (and limited leave therefrom), the other persons involved that would be affected by change of arrangements (such as her partner Mr C or her extended family) and pre-planned arrangements which were not always easy to change especially on short notice.
Ms Meredith conceded that one factor which had influenced her mind in dealing with at least some requests made by Mr Meredith for additional or varied time had been the reality that these parents were involved in Court proceedings and she wished arrangements to stay as had been ordered by consent rather than being seen or perceived to change arrangements. That is unfortunate as the Court would wholeheartedly encourage parents to adopt and extend as much flexibility as possible each to the other as they might.
Additionally, Ms Meredith indicated that on at least one occasion she had already made plans to meet up with friends and could not change arrangements to accommodate Mr Meredith’s requests. Whilst
Ms Meredith was criticised for this, it being suggested that she prioritised the arrangements with her friends above the children’s relationship with their father, I do not accept that the criticism is valid.
In rejecting the above criticisms of Ms Meredith I do not, correspondingly, make any criticism of Mr Meredith. He is entitled to make requests, as is Ms Meredith. But each must be aware that the Orders (or previously their parenting plan) set out the arrangements that would apply absent agreement between them to the contrary.
What is curious, although it was not explored in any detail in the evidence, is the acceptance by Mr Meredith of Ms Meredith’s evidence that whilst she was working during school holidays that it was necessary for her to engage vacation care and similar services to care for the children and why, on those occasions, Mr Meredith had not offered his services to assist Ms Meredith and to have additional time with the children. As the matter was not explored in any detail in the evidence I do not pursue it further, although it might well be construed to be inconsistent with the suggested flexibility which Mr Meredith’s self employment lends.
Mr Meredith conceded during cross examination that Ms Meredith had offered him additional time, had approached him with respect to events such as [Z]’s preschool art show and had, at least on the specific occasions to which he was taken, been accommodating, whether in whole or in part, to his requests. Mr Meredith also conceded that
Ms Meredith was an organised person and who planned arrangements in advance and, accordingly, might well have good reason for declining other requests or entreaties for flexibility when those proposals clashed with pre-planned arrangements which Ms Meredith might find difficult to reschedule in light of her work commitments. It is agreed that
Ms Meredith is an employee with limited leave entitlements.
Mr Meredith also conceded that the children and especially [Z] had, at times, become upset when away from Ms Meredith and particularly, in the case of [Z], during block periods which had occurred in the past. What is perhaps more important than the concession that the calls were made by the children to their mother when the children missed their mother and were upset, is the concession by Mr Meredith, fairly and appropriately made, that Ms Meredith had, on the occasions when she was contacted by the children (or put on the phone by their father), soothed them and calmed them so that their distress and unhappiness would be alleviated and they would continue their time in their father’s care.
Mr Meredith also conceded that communication between he and Ms Meredith had not always been ideal and that his failing to respond to questions or requests for information or failure to do so in a relatively prompt fashion might well have caused difficulties for Ms Meredith in making plans and arrangements for herself and the children whilst the children were in or to be in her care. One particular example that was given in this regard involved a delay of some months in Mr Meredith responding to requests for the clarification of school holiday arrangements that were proposed and which saw Ms Meredith sending various “chase up” emails to Mr Meredith so that she could plan her own holidays and arrangements.
There is criticism raised by the parents and either of them of the other’s parenting or the other’s attitude towards parenting arrangements. However, those criticisms are far from substantial and are, by and large, somewhat trifling. One such example was what might be described as a “kafuffle” over [Y]'s haircut. Why that event had assumed such importance, particularly in the mind of Ms Meredith, is unclear. However, it did generate a volume of emails and resulted in the child having his haircut twice, quite short on both occasions, within a short space of time.
I am not satisfied that the criticisms levelled by each parent towards the other and as demonstrated, for instance, by the haircut kafuffle represents anything of significance in relation to these parents. I certainly do not accept that it suggests an unwillingness or inability by either to support and encourage the relationship between the children and the other or to understand, accept and appreciate the importance of the children’s relationship with the other. Further, such minor criticisms and the escalation of such minor events as one parent having the child’s haircut without forewarning to the other parent, would appear to represent nothing more than less than ideal communication between these parents. There was nothing malicious about either parent’s actions.
At the conclusion of his cross examination Mr Meredith reaffirmed his position that Orders for equal shared parental responsibility and equal time (which would of necessity involve the parents living within close geographical proximity of each other) should be made. When, within the context of those proposals, it was suggested to Mr Meredith that communication between the parents needed to be good for such arrangements to work and work with benefit to the children,
Mr Meredith readily and appropriately conceded that it was so.
It was then put to Mr Meredith, with respect to communication, that:
Q Currently communication is not great is it?
A No it’s not.
Q Communication is not open flowing between you?
A No.
Q The communication you presently have would not support equal time would it?
A At the moment no.
The above line of questioning was consistent with the final portions of the Family Report which had opined, with respect to equal time, (paragraph 58):
Communication between Mr Meredith and Ms Meredith is presently dysfunctional. Improvement of this situation is vital if the best interests of the children are to be met.
Recommendations were made by the Family Report writer that the parties might participate in some form of Family Counselling and a specific proposal for such assistance provided by Relationships Australia was offered.
Otherwise, with respect to the equal time arrangement sought by Mr Meredith the Family Report writer had offered (paragraph 55):
Given the poor communication and level of distrust between Mr Meredith and Ms Meredith and children’s identification of the mother as their primary source of care and stability, it would seem unlikely that an arrangement where the children spend equal time with each parent would be either desirable or practical in the near future. For children to transition and develop optimally, it requires parents to be able to communicate and cooperate effectively.
In his cross examination the Family Report writer was clear that in his view equal time was contraindicated and would not likely work successfully for these children.
The Family Report writer did not specifically address or advance recommendations as to what time arrangements might best meet the children’s interests if both parents were living within the same geographical area. Certainly it would seem that both parents were desirous and supportive of the children spending greater time with their father than the present alternate weekend structure together with some few hours one evening in the intervening week.
Mr Meredith saw that the children’s needs would, as is clear from the above, be met through an equal time arrangement or, at the least, a substantial and significant time arrangement such as that which was advanced by him in March 2014 (a block from Wednesday to Monday each alternate week). Ms Meredith was more frugal in her view and in essence proposed arrangements not dissimilar to those presently in place though open to entertaining the possibility that a mid week period might be overnight or perhaps even extending to an arrangement of alternate weekend time with a three to four night block and one overnight in the other week. That would, of course, be dependent upon the parents living in the same area.
In submissions a number of specific bases were advanced on behalf of the father as to why the Court would accept that the mother’s proposal to relocate with the children to Canberra, in March 2014, should be accepted as either a “knee-jerk reaction” or deliberate action by her to frustrate both the father’s relationship with the children and/or his requests for more time with the children.
In support of this proposition it was submitted that the mother had conceded (paragraph 49 of her Affidavit) that the children’s time arrangements with their father and, indeed, their relationship with their father, has begun to show signs of improvement (particularly the children’s suggested reluctance to attend with their father dissipating) around the time that the father commenced his relationship with his partner Ms M. That relationship commenced “…in around January 2014” (paragraph 5 of the Affidavit of Ms M). Ms Meredith refers to a “change” at that time as:
…I noticed a change in Mr Meredith’s attitude towards his engagement with the children. Suddenly he started turning up to gymnastics with Ms M and her children. He started also responding to my emails and telephoning the children every night. This was in stark contrast to any behaviour he had shown towards the children prior.
It was shortly after this attitudinal change, as observed and expressed by Ms Meredith, that the request for more time was by Mr Meredith (14 March 2014). Mr Meredith indicates in his evidence that shortly prior to his request that the children had begun to request more time (paragraph 27 of the father’s trial Affidavit). This is entirely consistent with the mother’s evidence.
Prior to March 2014 there is little controversy between Ms Meredith and Mr Meredith that Mr Meredith’s engagement with the children, his interaction with them, his interaction with Ms Meredith and his availability (due to significant work demands) were somewhat different to the present. It would seem entirely plausible that the children’s reluctance to attend with their father (which I will address shortly) and the children’s attitude towards their relationship with their father (including expressing to their father a desire to be more engaged with him and spend more time with him) would correspond with a “change in attitude” as perceived and described by Ms Meredith;
Significant reliance is placed upon the “reaction” of Ms Meredith demonstrated to the requests for more time made by Mr Meredith. At paragraph 50 of her Affidavit Ms Meredith describes, upon receipt of Mr Meredith’s request for equal time, that “… to say that I was shocked is an understatement”. It is submitted that Ms Meredith’s “shock” upon receiving the request then motivated her, within a matter of days, to formulate and express to Mr Meredith her proposal to relocate the children to Canberra. It is suggested that the mother’s actions at and about this time were consistent with a concerted plan to remove the children from [W] to Canberra as a consequence of her “shock” at and reaction to Mr Meredith’s request for further time and that these actions included:
a)The children’s extracurricular activities “petering out”. Certainly the number and frequency of activities in which the children were engaged reduced at about and following the time of Mr Meredith’s request for further time. However, Ms Meredith gave plausible explanation for this based upon the children’s expressed tiredness from the number of extracurricular activities and desire to be engaged in less activities (to that point in time the children were engaged in activities a number of days and evenings per week) as well as, particularly in the case of [X], injury. Even if it was correct that Ms Meredith cut back on the children’s activities to create an impression that the children had less connection to the area and were less embedded in the [W] community I am not satisfied that this would assist Ms Meredith in her Application to relocate and I do not take it into account;
b)The mother began to complain of difficulties attached to the children’s time with their father on a Wednesday evening. Those difficulties, as expressed by Ms Meredith, were largely on the basis that the children were routinely “returned late”. The children were due to be returned at 7:30pm and would not be returned until 7:45pm – 8:00pm. Whilst that is not significant lateness it is, in the context of Ms Meredith being suggested to be and conceding that she is, a structured and organised woman, a single parent running a household of three school aged children, as well as the difficulties that had been long-standing (and conceded by Mr Meredith to be frustrating) of his delay or absence of response to communication from Ms Meredith, a valid complaint on her part, albeit not the most significant complaint one parent might make with respect to another;
c)Ms Meredith, notwithstanding her tentative agreement during cross examination that overnight time on Wednesday might have ameliorated her concern with respect to the children’s late return on Wednesday evening, had not put that proposal forward. It is clear that it was not a request made of her either;
d)Ms Meredith had not, since March 2014, made any significant concession of further or additional time between the children and Mr Meredith. The requests for additional time are addressed above. They are certainly not significant concessions but they are, however, concessions. Further, there is no evidence that Mr Meredith had, beyond the context of the evidence discussed above, made any request for additional time or variation of arrangements of significance and to the extent that such requests were made;
i)Mr Meredith conceded that on at least one occasion, with respect to school holiday arrangements, that Ms Meredith would appear to have already made “other plans” which clashed with his request and, accordingly, her refusal was conceded as reasonable;
ii)Mr Meredith concedes, with respect to the negotiation for one period of school holiday time, that the dialogue regarding that period was instigated by Ms Meredith and that it took him some months to respond which, again, Ms Meredith would, no doubt, have found that “frustrating”;
iii)Ms Meredith, as a person acknowledged as structured and well planned in future arrangements, as well as accommodating her regular travel to Canberra to visit her partner and family, would have found it difficult to accommodate requests for change on short notice. Again, this was conceded by Mr Meredith during cross examination. Certainly, on one occasion discussed above, Ms Meredith had declined a variation of time as she had already made plans with friends and did not wish to cancel those plans lest she be seen by her friends as “rude”. Whilst that would demonstrate an instance of Ms Meredith being less than accommodating it is to be recognised, as conceded by Mr Meredith, that Ms Meredith plans her life well in advance, has limited leave from employment and, not irrelevantly, that these parents separated and the degree to which one might expect them to be significantly accommodating might be reduced in those circumstances;
e)Ms Meredith was criticised for describing requests by Mr Meredith for additional time as “bullying” when the emails by which he made such requests were “entirely polite”. I accept that the email communication between these parties, by and large and perhaps absent that which surrounded or erupted over [Y]’s haircut, is cordial and polite. The concern raised by Ms Meredith, which may, objectively fall short of “bullying”, was that Mr Meredith did not take “no” for an answer from her. Having made a request and Ms Meredith having responded to the same request, (which was to partially but not fully agree to the request), the request was then repeated several times. It is that which Ms Meredith indicated she found “bullying”. I need not be concerned that objectively it may not be so. It is Ms Meredith’s perception which is relevant for present purposes and I am not critical of her for the view that she expressed. Nor am I critical of Mr Meredith for repeating his requests, although in the context of his concession that he often did not respond to Ms Meredith’s emails there is, perhaps, some added basis to Ms Meredith’s perception;
f)Ms Meredith was criticised for being somewhat pernickety about a request for time made by Mr Meredith with respect to Father’s Day. No provision was included in the consent Orders entered into between the parties for Father’s Day. Ms Meredith did, however, readily agree to the children spending Father’s Day with Mr Meredith, although not to their spending the entire weekend with him (as they had spent with their mother for the Mother’s Day weekend). Further, Ms Meredith was criticised for raising the issue of “make up time” for that which the children did not spend with her whilst enjoying Father’s Day with their father. There is some validity to this criticism. The children spending Father’s Day with their father (and Mother’s Day with their mother) is important for the children as well as the parent whose role is celebrated by the day. The context of the request has some relevance, however, noting that these proceedings had, at that time, been only recently commenced by Mr Meredith, consent Orders having been made on the first return date 13 August 2014 and substantially in accordance with Ms Meredith’s response, and Mr Meredith not having raised that issue at that time;
g)
Ms Meredith was also criticised for her attitude towards the children’s relationship with their father generally (suggested to thus be supportive of her “knee-jerk reaction” to Mr Meredith’s request for an equal time arrangement and her “shock” at the request) and as demonstrated at paragraph 73 of Ms Meredith's Affidavit wherein she referred to Mr Meredith having had [Y]’s haircut as, “…using the children as weapons… as a form of punishment to me which is how I view Mr Meredith’s actions”. That is certainly an extreme statement to be made by Ms Meredith in response to [Y] having had his haircut at his father’s instigation, whether in a style which “displeased” his mother or not. I make clear that I am not satisfied that the father has even engaged in such behaviour or would. Clearly, Mr Meredith was responding to the child’s request to have his haircut. However, that view as expressed by Ms Meredith in her material does not, to my mind, support, whether individually or in combination with the above matters, the conclusion that I am asked to draw that
Ms Meredith has reacted to the request made by Mr Meredith for more time and has, in the space of some few days, determined that she will seek to relocate herself and the children to Canberra to frustrate it.
By and large the communication between these parents is polite but ineffective and rarely attempted other than by email or text
I would have some concern that the ability of these parents to communicate would not be enhanced by restraining Ms Meredith from relocating as she desires. That is not to suggest that the displeasure which a parent may feel if restrained would be sufficient to obviate against a restraint being imposed if it were in the best interests of the children that it be so imposed. However, in circumstances whereby I am not satisfied that the children’s best interests would positively require such a restraint nor that such a restraint would bring benefits to these children outweighing the detriments, any step as might further weaken or undermine the future potential for communication and its improvement through Family Counselling services, which I propose to Order as recommended by the Family Report writer, would be unnecessary and undesirable.
The impact of the above matters upon these children is somewhat limited. Decisions have been made for these children predominantly by Ms Meredith and with the tacit agreement or acquiescence of
Mr Meredith and it is only when the decision made by Ms Meredith is contrary to Mr Meredith’s desire that there has been anything resembling an active conflict. The most important and significant example is demonstrated by these proceedings. Mr Meredith formed a desire to spend more time with the children at the same point in time that Ms Meredith formed a desire to relocate with them to Canberra. They have not been able to broker any resolution of that issue notwithstanding that there is very little factual controversy between them including, importantly, Mr Meredith’s relative lack of engagement and involvement in the children’s past care.
Practical difficulty is a manifest issue should the mother relocate to Canberra with these children. However, the move in itself will not impact negatively upon the children and, for the reasons expressed above and which I will continue to elucidate, I am satisfied it would, on balance, be beneficial to them.
Whilst practical difficulty arises from Ms Meredith’s proposed relocation it will not impact upon the children’s meaningful relationship with their father or its practice and will deliver benefits to these children, as acknowledged by Mr Meredith, through their primary carer being better supported.
The level of practical difficulty that will arise from relocation is not such as to be insurmountable. There will be burden both upon the children, through regular travel between Canberra and [W] and upon Mr Meredith in travelling to Canberra should he wish to be engaged and involved in events that would require his attendance such as events at the children’s school. Those burdens would not arise if Ms Meredith remained resident in the [W] area. However, the burdens are far from onerous and would not be such as to impact either upon the children’s health, happiness or well-being or the relationship with their father.
For the reasons expressed above, I am not satisfied that there would be corresponding benefit to the children of being constrained with their mother to live in the [W] area.
Capacity of each parent and others to provide for the children’s intellectual and emotional needs
The evidence would suggest and I accept demonstrates that
Ms Meredith is better able to recognise and meet the children’s emotional needs. This is demonstrated in a number of ways including:
a)Ms Meredith supports the children and their relationship with their father, including through speaking with them predominantly by telephone but, as occurred in January 2015 in person, to calm, sooth and placate them whilst in their father’s care;
b)Ms Meredith has, at all times since the birth of these children and each of them, been the primary carer for them and in a substantial sense. The vast majority of care for these children has been provided by their mother and to a high standard. The children’s present emotional functioning, including their capacity to form and maintain a relationship with their father, is a significant reflection of Ms Meredith’s parenting of these children including her atunement to their emotional needs and reactions;
c)Ms Meredith has been thoughtful and insightful in relation to [Z]’s developmental needs post separation and particularly focused around the negotiation between these parents regarding block periods of time. This has allowed [Z] to spend block periods with her father, primarily through negotiated arrangement rather than Court Order, which has assisted her in continuing to develop a relationship with the father;
d)Ms Meredith has been insightful as to her need for support and assistance both from her family and her partner and has formulated proposals, over a significant period since separation and taking into account all aspects of the children’s care and well-being, including their relationship with their father, in arriving at the position that she now advances.
The above reflections upon Ms Meredith’s capacity to meet the children’s emotional needs are not intended to suggest a deficit on the part of Mr Meredith. However, the inability of Mr Meredith to recognise that Ms Meredith might well benefit from the very support and assistance he has been able to put in place or obtain since separation, (i.e. a close interaction with his extended family and forming a loving relationship on the bona fides domestic basis with his partner), might, in combination with his concession that the provision of such support to Ms Meredith would be a real benefit to these children, reflect at least a prioritisation of self-interest ahead of the children’s best interests.
Each of these parents is able to meet the children’s educational needs. That is so notwithstanding that all past arrangements for the children’s education have been made and implemented by Ms Meredith.
Ms Meredith has been involved in the children’s schooling from preschool to the present and actively so. Mr Meredith has recently come to that involvement.
I do not criticise Mr Meredith for being less involved in the children’s education. It is, however, a reality that these tasks have devolved to
Ms Meredith and, until the separation of the parents, without criticism or concern by Mr Meredith. There is no basis upon which to believe that Ms Meredith would not continue to make appropriate and committed arrangements for the children’s education and
Mr Meredith’s engagement with the children’s education. This is reflected, for example, in one of the few proposals for additional time that have passed between the parents since these proceedings commenced and being the proposal by Ms Meredith that Mr Meredith attend [Z]’s preschool art show.
Both parents have been actively involved in the children’s extracurricular activities although, again, these have largely been arranged and facilitated by Ms Meredith. Ms Meredith has, at all times and especially since separation ensured that Mr Meredith has been aware of these activities and arrangements and able to participate as well.
Maturity sex, lifestyle and background of the children and parties
Whilst it is a far from dispositive issue, Ms Meredith was born in Canberra and spent a significant period of her childhood living there. She wishes to return to that arrangement, less so because of that history as because of the simple reality that most of her extended family live there and can offer her support. Similarly, Ms Meredith’s partner, Mr C, lives in Canberra and, with equally compelling basis to that advanced by Mr Meredith, is unable to relocate himself.
The children are of relatively tender years. [Z], in particular, was a young child at the time that these parents separated barely 3 years of age. For [Z] the majority of her lived and remembered experience is of her parents separated.
Since separation both of these parents have re-partnered. Mr Meredith lives in a full-time de facto relationship with his partner Ms M.
Ms Meredith wishes to similarly live on a full-time basis with her partner Mr C which would, on the evidence as it stands, compel her to move to Canberra if the relationship is to continue. This would afford significant support and emotional nurturing to Ms Meredith.
There is also collateral benefit to these children of Ms Meredith, their mother, being able to reside with her partner and within close proximity to her family. As is conceded by Mr Meredith this will provide greater happiness and enhanced emotional well-being for
Ms Meredith and, as the children’s predominant carer, provide the opportunity for these children to benefit from that circumstance together with the additional relationships which they can better pursue with extended family and Mr C. If it were only that opportunity that arose from the evidence it would not be compelling. However, the circumstances of these children’s upbringing and the reality reflected thereby, (the overwhelming majority of their care having been provided by the mother and largely physically absent the father), make those benefits all the more significant. It is also of some importance that those benefits are available without any significant risk to the continued significant relationship between the children and their father and members of the father’s household.
Aboriginality
Neither parent identifies as Aboriginal or Torres Strait Islander and thus nor do the children.
The attitude demonstrated by each parent to their responsibilities and duties as parents
I am urged to be critical of the mother by accepting that her proposal to relocate to Canberra, something that she has now agitated for over 15 months, is a position formulated in reaction to the father’s proposal for additional time with the children and with the intent and purpose of frustrating both those proposals and the father’s relationship the children.
For the reasons above I do not accept that Ms Meredith has been reactive to Mr Meredith’s requests for further time with the children in formulating her proposal to relocate. I accept that Ms Meredith gave detailed and significant consideration to her proposal to relocate before advancing it to Mr Meredith in response, sadly as events have transpired as it has clearly engendered further distrust between these parents, to Mr Meredith’s proposal for increased and week about time.
To the extent that Mr Meredith had formed the view in March 2014 that the children’s best interests would be best served by a move to or towards an equal time arrangement I am not satisfied that he had duly considered the impact that this would have both upon the children and upon Ms Meredith. On the basis of the concessions made by
Mr Meredith as to his relative lack of involvement in the children’s care and upbringing since birth his proposals as raised March 2014 were perhaps, at best, indelicate if not inappropriate.
Ultimately, I am not satisfied that I need be critical of either parent as regards their attitude towards their responsibilities and duties as parents. I could, if it were necessary, further pursue criticisms that each parent raises of the other seeking to apportion culpability for poor communication, misunderstandings between them in the past or, most relevantly, the present difficulties, modest as they are, in the relationship between [X] and her father. That is perhaps the only issue of attitude which is relevant and significant.
As I have indicated above I am satisfied that Ms Meredith has been supportive of [X]’s relationship with her father and has, both prior to and post separation, done all within her power to support that relationship. To the extent that there are now difficulties they are, indeed, modest and they are difficulties which can be addressed between Mr Meredith and [X]. They clearly relate, accepting that which [X] states to the Family Report writer as accurately reflected in the Family Report and the Report writer’s notes, to the way in which Mr Meredith deals with [X] and how they interact with each other.
To the extent that those difficulties have arisen it is important for
Mr Meredith to address them as they are problems in his relationship with [X] created by their dynamic rather than created or impacted by any external stimuli. It is also important that they are addressed as they have the real potential to arise in Mr Meredith’s relationship with the two younger children.
I am not satisfied that either parent has demonstrated an inappropriate attitude towards their responsibilities and duties as parents. They have each supported these children, assisted them as best as they can in negotiating arrangements post separation and have, but for these proceedings, arising from Mr Meredith’s fear and concern that
Ms Meredith would relocate the children to Canberra and that this would severely impact upon his relationship with the children, been able to resolve matters relatively consensually and without active conflict.
Family violence and family violence orders
There are no allegations of family violence and there are not now nor have their ever been family violence Orders or steps taken towards obtaining such Orders
Making orders that will least likely lead to future proceedings
This factor, if Ms Meredith relocates to Canberra with the children, has some meaning.
I am conscious that the parties are, on their alternate proposals, no significant distance apart as regards the children’s time and relationship with the father.
Mr Meredith proposes that if the children are living with their mother in Canberra that he would spend time with them each alternate weekend with changeovers at a point between Canberra and [W], albeit favouring Mr Meredith. Mr Meredith proposes that he would have the majority of school holiday periods.
Ms Meredith proposes, in the alternative, that the children spend each third weekend during school terms with their father and would spend one half of each school holiday period with their father.
If there is any substance to that opined by [X], that she does not wish to regularly travel the distance between Canberra and [W] and, if this were so and an attitude that [X] presently held or formed, to impose such regular travel upon her may be a basis for her to form or express some further resistance or reluctance to attending periods with her father. That would not be desirable and would be the arrangement that would most likely lead to future proceedings, instigated by one parent of the other, for variation or enforcement of Orders.
Frequency of time may also impact upon considerations of reasonable practicality. The more frequent travel was to be the more likely it is that difficulties might develop either on the basis of cost or the children or one or other parent becoming weary of the travel.
Other considerations
In light of the above matters I am conscious that the children’s relationship with their father is presently significant and meaningful (subject again to the matters raised by [X] with the Family Report writer and as suggested by Mr Meredith, especially since earlier this year and post-dating the Family Report interviews, those events cause him to believe that his relationship with [X] is “reasonable” rather than “good”). That relationship should be maintained and can readily be maintained with the parents living in Canberra and [W] respectively.
The presumption of equal shared parental responsibility
I am satisfied that the presumption of equal shared parental responsibility contained in section 61DA of the Act should apply.
Neither party raises any allegation of family violence or abuse such as would cause non application of the presumption.
Neither party agitates that the presumption would be rebutted as contrary to the children’s best interests. Whilst the parents have some tension and difficulty in the discussion and resolution of issues regarding their children they are far from significant disputes. These parents have, by and large, been able to negotiate arrangements for their children since separation without the need to involve the Court or any other significant third-party facilitation. This has included a resolution of their financial affairs without Court intervention, (although ably assisted through lawyer assisted negotiation) and, until the issue of relocation arose, the ability to negotiate parenting arrangements without litigation or any other significant intervention.
Since the proceedings have been on foot the parents have continued to conduct themselves with decorum and have negotiated both interim parenting Orders and, albeit modest and minor, variations thereto. There is no reason to believe, from the available evidence that this would not continue.
As the presumption of equal shared parental responsibility applies and as each parent seeks an Order for equal shared parental responsibility I propose to proceed to make that Order.
There are neither allegations of family violence nor any suggestion of any conduct by either parent towards the other which would make the ongoing exercise of equal shared parental responsibility other than appropriate.
To the extent that the parents may not have the most resplendent communication, (although it is far better than many who come before the Court), I propose to make Orders, as the Family Consultant has urged, for ongoing Family Counselling assistance. That may well aid these parties in developing improved communication and an improved capacity to make joint and mutual decisions. That is not to suggest that their capacity is significantly impacted and, as indicated, they have, by and large, resolved parenting arrangements without significant conflict and effectively. Family Counselling services may assist these parents in being able to engage with each other on a face-to-face basis or by means other than text or email without the difficulties which have been alluded to in the evidence.
As I propose to make an Order for equal shared parental responsibility I am obliged to consider equal and substantial and significant time before any other time arrangement.
As I have made clear above I am not satisfied that an Order for equal time has been demonstrated as meeting the needs and interests of these children. Indeed, I am satisfied from the totality of evidence before the Court that it would be contrary to their best interests for such an Order to be made at this time and for the reasons set out above.
There is no issue that these children will continue to live with their mother. The only issue that arises is whether the children will live with their mother in Canberra or in [W] and subject to that determination the time that they will spend with their father.
In considering the proposals of each parent and for the reasons that are set out above in the consideration of section 60CC of the Act, I am satisfied that the children’s best interests will be met by their living with their mother in Canberra. This will provide Ms Meredith with the additional support and assistance which she craves and which is clearly available to her. It will not impact upon or erode the children’s meaningful relationship with their father. It will allow that relationship to continue as it is at present.
The benefit to these children of relocating to Canberra with their mother is that it will, as Mr Meredith has conceded, allow Ms Meredith to be better supported and enhance her emotional well-being and thereby provide at least an indirect if not direct benefit to these children. The emotional well-being of Ms Meredith, without suggesting that
Ms Meredith would be unable to cope or properly meet the children’s parenting needs if residing within [W], will be a positive benefit to these children as well as their relationship with their mother and extended family and Ms Meredith’s partner.
It is not necessary to ensure the children’s ongoing relationship with Mr Meredith for Ms Meredith and the children to reside in the [W] area. The children have well formed and significant relationships with their father which will be largely replicated through time arrangements that can be put in place should Ms Meredith relocate to Canberra and without practical difficulty and expense that is so onerous or burdensome as to cause concern as to those relationships being impacted or Mr Meredith being unable to participate in the children’s lives beyond the periods that might be ordered to occur in [W].
Having regard to all of the above matters the alternate proposal of
Ms Meredith for time to occur each third weekend during school terms and with changeover at a midway point is, to my mind, preferable and that which would best meet and promote the children’s best interests. This would allow a frequency of time that would see the children with their father in his home in [W] that would be sustainable and least likely to tire the children or overly tax the parents. It would be a period of time and a frequency of time that would allow the children to continue their present relationship with their father and to maintain it.
I propose, in addition to the periods of time that the children will spend with their father in [W], to make Orders that will facilitate Mr Meredith spending time with the children in Canberra, as additional time and without interference in the time that the children will spend in [W]. This would allow and permit Mr Meredith and, if possible, his partner Ms M and her children to travel to Canberra and spend additional time with these children. This will, to some extent, be an impost upon
Ms Meredith. However, if it is possible for additional time to occur and without obviating against Ms Meredith having any weekend time with the children, then this is a benefit to these children.
On the basis that Orders will be made for weekend time during school terms as sought by Ms Meredith in the alternative the children would, in reality, spend three weekends per school term with their father in [W]. I propose, accordingly, to provide that Mr Meredith may spend time with the children up to 3 additional weekends per school term by travelling to Canberra and upon giving to Ms Meredith 14 days notice of his intention to do so.
I propose to also make Orders which would see the parent’s respectively spending the Mother’s Day or Father’s Day weekend with the children.
In light of the distance that will exist between the home of these parents Christmas and Easter would fall where they fall and, to the extent that they fall within school holidays, would be shared on an alternate year basis.
The parties are agreed that the children should spend block periods of time with each parent during school holidays. I am satisfied that this would best be accommodated by the children spending one half of each short school holiday period with each parent.
If the children are relocated to Canberra then they will, of necessity, attend new schools, make new friends and form new peer groups. They may way well also be engaged in other activities outside of school. Their ability to engage in their relationship with their mother during school holidays, it being remembered that Ms Meredith will be depended upon obtaining employment and maintaining that employment with, no doubt, a continuation of the present limitations that she faces in arranging leave and the like, is equally important to their ability to engage in a relationship with their father during school holiday periods. The same considerations would apply to the partner of each of the parents and their children.
It will be important for the children to be able to maintain a connection both to their father’s household and extended family (such as travelling with their father to [D] to spend time with their grandmother) as well as their mother’s household and their peer group, their “social capital” in Canberra.
For the above reasons I am satisfied that one half of each school holiday period should be spent with each parent rather than a predominance of time with one parent or the other.
During the Christmas school holidays, particularly those at the end of 2015 beginning of 2016 there will likely be a significant transition for these children as I propose to preface the Orders that I will make upon the mother not relocating the children to Canberra until the conclusion of the 2015 school year. On this basis and having regard to [Z]’s age, I am satisfied that Orders would best be made for the 2015/2016 school holiday period which will see the children spend one week with each parent at the beginning of those holidays and then a further block of two weeks with each parent. This will break up the period that the children will be absent from one parent or the other as well as allowing an opportunity for greater transition and the sharing of Christmas.
In relation to telephone communication and interaction between the father and the children by other electronic means the parties are agreed that it is preferable that this occur relatively frequently and ideally at relatively fixed times or at least with times and days nominated when there will be an expectation, of both Mr Meredith and the children, that they will speak.
Clearly, there have been problems in the past when telephone and electronic communication has simply been the expectation of
Mr Meredith. This has meant that whenever Mr Meredith has telephoned and the call has not been answered or the children have been engaged in some other activity, which Ms Meredith has suggested has kept them from the phone, that tension or frustration has arisen.
Mr Meredith conceded that there may be some benefit to times and days being nominated for each parent to call. I propose to make an Order for electronic communication to apply mutually to each parent and particularly as Ms Meredith had complained that during school holiday periods in the past that she had been unable to communicate with the children.
Ms Meredith proposed that electronic communication be two days per week. I see no reason for it to be so limited. Indeed, quite the contrary. Whilst electronic communication with children whilst they are in the care of the other is potentially disruptive of that parent’s household it is an important disruption allowing the children to maintain an important connection with an absent parent. That is all the more readily beneficial with the forms of electronic communication now available such as Skype and FaceTime.
The father seeks an Order in accordance with the Minute tendered in his case being that he purchase a mobile telephone for the children and the parties equally share the ongoing costs of that phone. I propose to accede, in part, to that request in that I propose to make an Order for the phone to be provided to the children and capable of then receiving FaceTime calls. The cost of the phone will, however, be a matter for the father as he will principally benefit from being able to contact the children using that phone. The cost of maintaining telecommunication services, especially with Wi-Fi available in an ever-increasing array of places, is relatively modest. I do not have any details of the financial circumstances of either of the parties beyond the fact that they have resolved their financial issues on a final basis and as evidenced by a Binding Financial Agreement dated 12 September 2013 annexed to
Mr Meredith’s Initiating Application.
Ms Meredith has proposed that electronic communication be limited to two occasions per week. I am not satisfied that this is necessary or appropriate, although provision for daily telephone communication with a legally binding obligation that the children be available would also be onerous.
I propose to make an Order that would require that the children be available each Tuesday, Thursday and Sunday evening to speak with a parent in whose care they are not or have not been. As indicated the Order would apply equally and mutually between the parents. The obligation for the children to be available would not limit the communication which might occur and such that each parent would be at liberty to telephone each day should they wish to do so, although not necessarily with the mandated obligation for the children to be available.
I propose to make the Orders which would appear either mutually sought or largely unchallenged such that each parent would be obliged to keep the other advised at all times of their residential address and contact details, obliged to do all things necessary to ensure that each parent is recorded with the children’s school or schools as a parent and emergency contact person (and thus able to obtain directly from the school such information or reports as they desire and participate in all events at any of this children’s schools which parents are invited and encouraged to attend) as well as to ensure that each is advised promptly and contemporaneously of any significant illness or injury experienced by the children or any of them.
Finally, as indicated, I propose to make Orders for the parents to participate in Family Counselling services as the Family Report writer has recommended. The parties have already had some assistance through Family Counselling services, although anything which might assist them and support them in the transitions which will now follow from the Orders that I will make would be in the best interests of these children and desirable.
I certify that the preceding three hundred and seventy-eight (378) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 13 August 2015
- AGLC
- Meredith and Meredith [2015] FCCA 2152
- Case
- [2015] FCCA 2152
- Decision Date
CaseChat Overview and Summary
The court was required to determine the most appropriate orders for the children's welfare, specifically addressing issues of equal shared parental responsibility, the children's primary residence, and the practicalities of the father's time with the children, including the impact of the proposed relocation. The court also considered the need for ongoing communication and cooperation between the parents regarding the children's upbringing and well-being.
In reaching its decision, the court applied the principles of the *Family Law Act 1975* (Cth), focusing on the best interests of the children. The court ordered equal shared parental responsibility, acknowledging the importance of both parents' involvement in the children's lives. The children were ordered to live with their mother, and she was permitted to relocate them to Canberra. The court then detailed specific arrangements for the father's time with the children, both before and after the relocation, including provisions for school holidays and communication. Further orders were made regarding communication, counselling, and the exchange of information between the parents to facilitate co-parenting.
The court dismissed all outstanding applications and responses, removing the matter from the hearing list. The orders also included provisions for the return of exhibits and subpoenaed material upon the expiration of the appeal period, provided no appeal was lodged.
Orders
Orders of the court
1.
The parents Mr Meredith and Ms Meredith shall have equal shared parental responsibility for their children:
[X] born [omitted] 2004;
[Y] born [omitted] 2006; and
[Z] born [omitted] 2009.
2.
[X], [Y] and [Z] shall live with their mother.
3.
Ms Meredith shall, no earlier than 2 January 2016, be permitted to relocate the children’s place of residence from [W] to Canberra.
4.
Mr Meredith shall spend time with [X], [Y] and [Z] as follows:
(a) Until 2 January 2016 or such time as Ms Meredith should relocate with the children to Canberra:
(i) Each alternate weekend during school terms from the conclusion of school Friday until the commencement of school the following Monday (extending to Tuesday in the event of a long weekend or pupil free day);
(ii) Each Wednesday during school terms from the conclusion of school until 7:30pm;
(iii) Each Father’s Day weekend from the conclusion of school Friday until the commencement of school the following Monday (and provided that in the event that Mother’s Day should fall on a weekend when the children are otherwise scheduled to be in their father’s care that the father’s time shall, for that weekend, be suspended);
(iv) For one half of each short New South Wales school holiday period as agreed between the parents or failing agreement for the first half of that holiday period and being from 10:00am on the first Saturday of the school holiday period until 6:00pm on the middle Saturday;
(v) The Christmas 2015/2016 school holiday period:
1. From 10:00am 19 December 2015 until 5:00pm Christmas Day 2015; and
2. For a further block of 10 days during that holiday period as agreed between the parents or failing agreement from 10:00am 9 January 2016 until 5:00pm 18 January 2016.
(b) From 2 January 2016 or upon the mother’s relocation to Canberra whichever occurs last:
(i) Each third weekend during ACT school terms and from 5:00pm Friday until 5:00pm Sunday together with the Father’s Day weekend in each year (and provided that in the event Mother’s Day falls on a weekend when the children are scheduled, pursuant to this Order, to be in their father’s care, the father’s time shall, for that weekend, be suspended and shall, instead, occur on the preceding or subsequent weekend instead);
(ii) For up to 3 additional weekends per ACT school term from the conclusion of school Friday until no later than the commencement of school Monday, such periods to be exercised in the Canberra/ACT area and provided that the father shall give to the mother not less than 14 days’ notice (by email) of his intention to spend such time with the children on any specific occasion;
(iii) One half of each short ACT school holiday period as agreed between the parents or failing agreement for the first half of each holiday period and from 10:00am on the first Saturday until 6:00pm on the middle Saturday;
(iv) For one half of the ACT Christmas school holiday period in each year as agreed between the parents and failing agreement for the second half of each school holiday commencing 2016/2017 and each alternate year thereafter and for the first half of all such holidays in all other years.
5.
For the purpose of changeover:
(a) Whilstsoever the parents are both residing within the [W] area the father shall collect the children from and return the children to their school at the commencement and conclusion of each period or if not a school day the father shall collect the children from or return the children to the mother’s home;
(b) Upon the mother’s relocation to Canberra changeovers, save for any period when the father is spending time with the children in Canberra, shall occur by the parties meeting at [J] and if the father is spending time with the children in Canberra the father shall collect the children from and return the children to their school or the mother’s home.
6.
Each parent shall be entitled to telephone, whether by voice call, FaceTime or Skype, and speak with the children each Tuesday, Thursday and Sunday when the children are not and have not been in their care and with respect to same:
(a) The father shall purchase, provide and maintain for the use of the children a mobile phone capable of receiving FaceTime or Skype calls as well as voice calls and texts;
(b) The telephone shall travel with the children and each parent shall ensure that it is charged, switched on and able to receive calls between 6:30pm and 7:00pm each Tuesday, Thursday and Sunday and at all other reasonable times;
(c) Each parent shall ensure that the children are available to speak with the other parent without interruption or distraction and with privacy at the above times and on the above days.
7.
Pursuant to section 13C of the Family Law Act 1975, the parties and each of them shall forthwith and within seven (7) days contact the intake officer of Relationships Australia [W] for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the provision of Family Counselling services specifically designed to assist them in developing a better strategy for post separation parenting, communication and cooperation and, subject to the assessment of suitability, each party shall then:
(a) Attend at such times, dates and places as may be advised; and
(b) Pay such fees as may be charged;
to participate in and complete such sessions of Family Counselling as are assessed as suitable and offered.
8.
Each parent shall keep the other advised at all times of their current residential address, email address and any separate email address for the children or any of them together with their contact telephone number and shall advise the other party within 48 hours of any change to any of those details.
9.
Each parent shall, to the extent that they have not already done so, do all things, sign all documents and give all consents, authorities and instructions as may be necessary to ensure that each parent is recorded with any school attended by the children as both a parent and emergency contact person and so as to ensure that each parent can receive advice of any events at the school to which parents are invited or encouraged to attend, to attend such events and to obtain directly from the school all information or reports (whether oral or written) as they may desire.
10.
Each party shall forthwith and contemporaneous with the event, advise the other of any significant illness, injury, specialist medical appointment or hospitalisation relevant to the children and shall do all things, sign all documents and give all consents, authorities and instructions as may be necessary to allow and permit each parent to be fully advised and consulted with respect to any treatment provided to the children and to visit the children if hospitalised.
11.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
12.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
13.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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