Mundy and Robbins

[2015] FCCA 29

FEDERAL CIRCUIT COURT OF AUSTRALIA

MUNDY & ROBBINS [2015] FCCA 29

Catchwords:
FAMILY LAW – Children – long standing equal shared care arrangement held not to be in child’s best interests – application to relocate the child’s residence successful.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

AMS and AIF (1999) 24 Fam LR 756
Goode v Goode (2007) 36 Fam LR 422
MRR v GR [2010] HCA 4
B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676
Morgan v Miles (2008) 38 Fam LR 275
Taylor v Baker (2008) 37 Fam LR 461
Mazorski v Albright (2008) 37 Fam LR 518

Applicant: MS MUNDY

Respondent: MR ROBBINS

File Number: TVC 903 of 2010

Judgment of: Judge Lapthorn

Hearing date: 29 September 2014

Date of Last Submission: 29 September 2014

Delivered at: Brisbane

Delivered on: 12 January 2015

REPRESENTATION

Counsel for the Applicant: Ms Lyons

Solicitors for the Applicant: Briese Lawyers

Counsel for the Respondent: Nil

Solicitors for the Respondent: In person

ORDERS

1. That the parties have equal shared parental responsibility for the child, X, born (omitted) 2007.

2. That the child live with the Mother.

3. That provided the Mother does so before 31 December 2015, the mother be at liberty to relocate the child’s residence to (omitted).

4. That whilst so ever the Mother and father are living in the same town/city the child spend time with the Father as agreed between the parties and failing agreement:

   (a)Each alternate weekend from after school Thursday to before school Monday; and

   (b)Each alternate week from after school Thursday to before school Friday.

5. That in the event that the Mother is living in (omitted) pursuant to order (3) herein and the Father remains living in (omitted) the child spend time with the Father as agreed between the parties and failing agreement from 5pm Friday to 5pm Sunday three weekends out of every four.

6. That the child spend gazetted school holiday periods with the parents as agreed but failing agreement:

   (a)With the Father for the first half in odd numbered years and the second half in even numbered years;

   (b)With the Mother for the second half in odd numbered years and the first half in even numbered years; and

   (c)That any provision for time in this order that is inconsistent with school holiday time shall be suspended during gazetted school holiday periods.

7. That the child spend special occasions with the parents as agreed but failing agreement as follows:

   (a)For Christmas, with the Father in even numbered years and with the Mother in odd numbered years;

   (b)For Easter, with the Mother in odd numbered years and with the Father in even numbered years;

   (c)For the weekend that includes Father’s Day, with the Father from 5pm on Friday until 5pm on Sunday;

   (d)For the weekend that includes Mother’s Day, with the Mother from 5pm Friday until 5pm Sunday;

   (e)For the child’s birthday, the parent with whom the child is not spending time shall be at liberty to telephone the child at any reasonable time and the parent with whom the child is spending time will facilitate the call; and

   (f)That any provision for time in this order that is inconsistent with these times on special occasions shall be suspended.

8. That unless otherwise agreed, if the Mother is living in (omitted), she is to cause the child to be delivered to the Father or his nominee at the (omitted) in (omitted) at the commencement of the child’s time with the Father and the father is to cause the child to be returned to the Mother or her nominee at the same venue at the conclusion of the period of time.

9. That each party is hereby authorised to obtain, at their own cost if any, from the child’s school all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited.

10. That the parties and child communicate with each other by telephone at all reasonable times.

11. That the parties advise the other of any change of telephone number or residential address within 24 hours of such change occurring.

12. That the parties not criticise or denigrate the other party or the other party’s family in the presence of or within hearing of the child.

13. In the event of any dispute as to the interpretation, implementation or enforcement of these orders (including any claim by a party that they should be varied) the parties must first attend family dispute resolution (FDR) with an FDR practitioner appointed by the parties and make a genuine attempt to resolve the dispute. Failing agreement as to that appointment the party raising the dispute shall nominate three FDR practitioners, one of whom shall be chosen by the other party within 14 days.

IT IS NOTED that publication of this judgment under the pseudonym Mundy & Robbins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

TVC 903 of 2010

MS MUNDY

Applicant

And

MR ROBBINS

Respondent

REASONS FOR JUDGMENT

Introduction

1. X is a seven year old boy who lives in a week about arrangement with his parents in (omitted).  His mother, Ms Mundy, would like to move from (omitted) to (omitted) and have X live primarily with her.  Mr Robbins, X’s father, does not want to see X move away from (omitted) and would like to see the shared care arrangement continue.

2. Throughout this judgment I shall refer to the Applicant as the mother and the Respondent as the father.  I shall also refer to X as the child.  I mean no disrespect in doing so. 

Background

1. The applicant mother is 29 years of age.  The father is 48.  They commenced their relationship in around 2001 and separated in January 2010.  X was born on (omitted) 2007.

2. Both parties have re-partnered.  The father is in a relationship with Ms L who is 21 years old.  They have been in a relationship since 2010 and have a child, Y, who is three years of age.  The mother commenced a relationship with Mr D who is 22, in September 2013 but they did not commence living together until around March 2014.  They have a five month old baby boy, Z.

3. The father owns and operates two businesses in (omitted) and Ms L is a homemaker and parent.  She occasionally assists her sisters in a (omitted) business.  The mother is not currently working outside the home having just given birth to Z.  She has previously worked in (omitted) and hopes to return to that work in the future.  Mr D does (occupation omitted) on a one week on two week off roster.  He hopes to increase his work hours after he regains his driver’s licence.

Competing Applications and Issues

1. When the mother filed her Initiating Application on 14 January 2013 she did not seek to relocate away from (omitted).  She proposed the child live primarily with her and spend time with the father on alternate weekends and half school holidays.  She also sought an order that she be at liberty to enrol the child at the (omitted) School.  Her position has changed significantly since the filing of that application.  During the interviews for the first family report in May 2013 she said she would like to move to a major city and suggested (omitted).  In the second round of interviews in July 2014 the mother indicated she would prefer to move to Brisbane but had been advised that there would be greater prospects of her being able to move to (omitted) and she would be comfortable in settling for this.

2. In his Response filed 17 June 2013 the father sought orders for the child to live with him and spend alternate weekends with the mother.  At the family report interviews in 2013 he was of the view that the equal time arrangement should continue.  He only learned about the mother’s desire to relocate away from (omitted) a few days before the interviews.  He maintained his preference for the equal time arrangement to continue when interviewed in July 2014.

3. At trial the significant issue between the parents remained the future living arrangements for X.  The mother still wanted to move away from (omitted).  Her case was prepared on the basis of her desire to live in (omitted) south of Brisbane where she has some family or in the alternative, (omitted).  However at the commencement of the hearing she pressed only the move to (omitted).  She proposed that X live primarily with her and spend three weekends out of every four with the father from after school on Fridays to Sunday afternoons.  If she was not successful in being permitted to move X’s residence from (omitted) she proposed that X live primarily with her but spend time with the father from after school Friday to before school Monday each alternate weekend.

4. The father maintained his opposition to the mother’s move out of (omitted) and argued that the equal time arrangement should continue.  Initially his alternate position was that if the week about arrangement was not to continue X should live primarily with him.  After hearing evidence from the family report writer he indicated that he would be open to X living primarily with the mother and spending time with him for five nights a fortnight.

5. The mother also wanted to move X from his current school, the (omitted) School to the local State School.  The father opposed such a move.  In the event that the mother was permitted to move X’s residence to (omitted) it would be necessary to change his school in any event but there were no specific orders sought in relation to a school in that area.

6. The parties agreed that they should share equally the parental responsibility for X although given the dispute in relation to the child’s schooling the mother sought an order that she have sole parental responsibility for this issue.

The Evidence

1. In support of her application the mother relied on the following material:

   a)The Initiating Application filed 14 January 2013;

   b)Her Affidavit filed 5 May 2014;

   c)The Affidavit of her partner: Mr D filed 2 July 2014; and

   d)The Affidavit of her mother: Ms T filed 2 July 2014.

2. In support of his case the father relied on:

   a)The Response filed 17 June 2013;

   b)His Affidavit filed 6 May 2014; and

   c)The Affidavit of his partner: Ms L filed 6 May 2014.

3. Tendered into evidence was a certificate of the father’s completion of a Positive Parenting Programme dated 10 September 2014[1] and documents produced from Queensland Police[2] in relation to an incident between the mother and her partner in September 2013.

   [1] Exhibit F1

   [2] Exhibit M1

4. The court was also assisted by the preparation of two family reports by Ms V, a Regulation 7 Family Consultant.  The first report was released on 14 June 2013 and the second report on 4 August 2014.  Ms V was cross-examined.

5. The parents and their partners also gave evidence.  All impressed as honest and forthright witnesses.  Although the parents’ evidence differed in parts I am satisfied that their recollections of events have been affected by the nature of their dispute and the passing of time.

6. Throughout these reasons I will refer to a number of facts.  Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.

7. When the parties commenced their relationship the mother was only 15 years of age and had a casual job (duties omitted) for the father.  He was 35 and had two children from a prior relationship.  They lived in Western Queensland for a few years and worked in (omitted), then moved to (omitted) in about 2005 where the mother obtained work in a (employer omitted) and the father worked as a (omitted) and as a (omitted).

8. After the child was born the mother cared for him for the first five months before returning to work.  Eventually working limited hours due to the cost of child care.  The father cared for the child on Saturdays when the mother was at work.  I am satisfied the mother was the child’s primary carer until around the time the parties separated.  The circumstances surrounding separation are unclear and the recollections of the parties are at odds.  The mother told the family report writer that the father decided they would leave (omitted) and return to (omitted) in about September 2009 and although she did not want to move she did go with him.  She obtained work at a (employer omitted) and worked full time while the father cared for the child.  She decided to leave the father when he was away over the New Year holiday 2010.

9. In her evidence the mother said the parties separated in January 2010 while she and the child were living in (omitted).  She said that initially the parent’s reached an agreement that the child’s care would be shared between them on a month on month off basis.  The father was living in (omitted).  She said that during the first month the child was with the father she received a phone call from him advising that he would not be retaining the child.  After two months of negotiating future parenting arrangements the mother decided to move back to (omitted) to be closer to the child.  She had not seen him for four months.  The father allowed her to have limited supervised time once or twice a week until they reached agreement at mediation for an equal shared care arrangement of a week about nature.  Soon after this agreement was reached the father moved from (omitted) to (omitted), a distance of approximately 80 kilometres.  The shared care arrangement continued.  The father moved back to (omitted) around March 2013.

10. The father in his affidavit said that when they separated he left (omitted) to return to (omitted) and the parties agreed for X to live with him.  He alleged the mother told him she wanted to stay in (omitted).  He then moved to (omitted) before the mother returned to (omitted).  The subsequent agreement at mediation was made in the context of him living in (omitted).  He moved back to (omitted) to enable X to attend the (omitted) School and because his business was getting more work contracts in the (omitted) area.  In his oral evidence however the father said the parties had moved back to (omitted) about four months prior to separation.  He had a job doing (omitted) work in (omitted) for New Year’s Eve and upon his return to Brisbane he received a text message from the mother to say that they had separated.  He travelled back to (omitted) to find the mother had moved out.  She initially went to a friend’s home in (omitted).  He went there to collect the mother and took her to (omitted).  He stayed there with her for about two weeks.  He said there was an agreement for him to take X back to (omitted).  His oral account is largely consistent with what he told the family report writer.

11. It is not necessary for me to determine the precise circumstances as to the separation.  I can be satisfied on the evidence of each party that the mother was the child’s primary carer in his early years but that in early 2010 there was a period of four months when he did not see his mother.  When the mother returned to (omitted) the time was initially limited at the insistence of the father but by June 2010 the week about arrangement was in place and remains so today.

12. There have been a number of difficulties experienced by the parties in implementing the shared care arrangement.  Historically they have had poor communication which has led to conflict at times.  They had significant difficulty reaching any agreement as to where the child should go to school which necessitated the mother filing her application.  Both parties accepted that in recent times the communication has improved but the mother remains less optimistic as to the longevity of this.

13. The mother was of the view that the child had initially coped well with the shared care arrangement but that since he has been at school he had become less settled.  This view was shared by the father’s partner but the father believed the child has coped well throughout.

14. The family report writer proffered the view in her first report that it was not in the child’s longer term welfare for the week about arrangement to continue.  She accepted that he had been managing the arrangement well but in her view this had more to do with the child’s personal resilience rather than the ability of the parents to facilitate it.  She opined that the level of communication between the parents was very poor and that the father operated in a controlling manner.  Although the father would not perceive his personality as such I am inclined, after observing him in the witness box, to agree with the report writer.  The father has strong views as to what should happen and although he can be open to alternatives he presented as dismissive of the mother’s views.  One example of this was his comment that the “mother had no good reason to leave (omitted)”.

15. Ms V was of the view that the child had a stronger emotional attachment to his mother which is understandable given she had been his primary carer in the early years of his life.

16. In her first report the family consultant recommended the mother be permitted to relocate to a place where weekend time with the father could continue.  She opined that the child’s relationship with the father would be maintained by those periods of time.  If the parties were living in close proximity however, it was her view that the child should live primarily with the mother and spend four nights a fortnight with the father was well as half school holidays.

17. In her second report Ms V noted the improved communication between the parents.  She noted that each party had experienced difficulties in their current relationships which was a factor she took into account in maintaining her view that the child should have one primary home.  Because the child’s primary attachment was with the mother she opined that he should live with her.  She maintained her view that should the parties continue to live in (omitted) his time with the father should be four or five nights a fortnight and if the mother is permitted to relocate with the child to (omitted) then the child’s time with the father should be two weekends out of every three.  She did not recommend any move to Brisbane as that would mean the child would spend significantly less time with his father which would have a marked effect upon his ability to maintain the quality of his relationship with him.

Legal Principles

1. All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975.  In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[3] and must consider the best interests of the child as the paramount consideration.[4]  Whilst that is the paramount consideration it is not the only consideration.  In AMS and AIF his Honour Justice Kirby held: [5]

   [144] ……a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents.  If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights.  However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.

   [3] S 60B

   [4] S 60CA

   [5] (1999) 24 Fam LR 756 at page 792

2. The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[6] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:

   a)Children have a right to know and be cared for by both their parents;

   b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;

   c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;

   d)Parents should agree about the future parenting of their children; and

   e)Children have a right to enjoy their culture.

   [6] S 60B lists the objects and principles for Pt VII.

1. The legislative framework which must be followed in all parenting cases,[7] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[8]  This presumption does not apply in cases of child abuse and/or family violence or may be rebutted when the evidence establishes that it is not in the child’s best interests for it to apply.[9]

   [7] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

   [8] S 61DA

   [9] S61DA(2) & (4)

2. In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s 65DAA which provide for a consideration of the child spending equal time with the parents. In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[10]  If the court finds that equal time is not in the child’s best interests or  that it is not reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[11]

   [10] S65DAA(1)(a) & (b), MRR v GR [2010] HCA 4

   [11] S65DAA(2)(c) & (d)

3. This legislative approach must be followed in all parenting cases.[12]  This particular case has as one of its elements the issue of relocation.  Much has been written and said about relocation cases such that there may be a perception that they are a unique type of case to be determined differently from others.  The jurisprudence however is clear that such cases remain to be determined like all parenting matters by considering the best interests of the child in the context of the legislative framework.[13]  In Taylor v Barker[14] their Honours Bryant CJ and Finn J said:

   [53] …… when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible:  see U & U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458. 

   [12] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

   [13] B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755; Morgan v Miles (2008) 38 Fam LR 275, (2007) FLC 93-343

   [14] (2008) 37 Fam LR 461 at page 475

4. Their Honours went on to say:

   [83] However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement.  Not to approach a case involving a relocation proposal  in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a  case to spend “equal time” or substantial and significant time” with each parent.[15]

   [15] ibid at page 480

Determining the best interests of the child – the s.60CC considerations

1. The court is required to determine a child’s best interests by considering a number of factors set out in s.60CC. In order to limit duplication I propose to group together a number of these factors.

The child’s relationships[16]

[16] S60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents.

1. This child has close and positive relationships with both parents although his primary relationship is with his mother.  The family reporter is of the view that he is likely to feel safer emotionally through his relationship with his mother.  The father to his credit took on board the family report writer’s evidence as to the benefit for the child in having one primary home with the mother.

2. Both parties recognise the benefit to the child of maintaining his relationships with each parent.  The father is fearful though that any move away from (omitted) will have an adverse effect on the father/son relationship.  Whilst this is understandable it was not supported by the family report writer provided the distance between them is no so great as to prevent the child from spending two out of three weekends with the father.

3. The child has good relationships with the partners of each party as well as with Y in the father’s household.  Nothing would suggest he will not develop a close relationship with the mother’s new baby over time.  He also has good relationships with the maternal grandmother and extended maternal family living in (omitted). 

4. If the mother moved with the child to (omitted) the parties will live some 165km apart which would mean a two hour drive for the child between the two homes provided there are no delays for road works.  This would mean he would not be able to see his father as regularly as he could if he lived in the same town.

5. In Mazorski v Albright[17] Brown J emphasised the importance of the quality of a parent child relationship rather than the extent of the time spent.  Her Honour said:

   [26] ………I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.  It is a qualitative adjective, not a strictly quantitive one.  Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible in their best interests, substantial and significant.

   [17] (2008) 37 Fam LR 518 at 526 [26]

6. I am satisfied that the child’s relationships with both parents would be maintained to his benefit if he remained living in (omitted).  I am also of the view that his relationship with the father would be maintained if he was to live with the mother in (omitted) provided he spent two out of three or three out of four weekends with his father.  The child is now seven years of age and has a strong relationship with his father.  There is nothing to suggest this could not be maintained by the weekend time as suggested by the family report writer or as proposed by the mother.

Risk of harm[18]

[18] S60CC(2)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. The mother raised the issue of family violence but did not provide evidence as to the extent of it.  I am therefore unable to make any findings in this regard although I am satisfied on the evidence of both parties that there have been times when they have engaged in conflict at handovers in front of the child.  I was not provided with any evidence of protection orders having been made between the parents.

2. The police were called to a dispute between the mother and her current partner in September 2013.  This appeared to be a heated argument between them when the mother became aware that her partner had been charged with a drug related offence.  Mr D presented as an honest witness and I accept his evidence that it was made clear to him in no uncertain terms by the mother that she would not tolerate any drug activity on his part and that he intends to stick to that.  The child was not present during this incident or when the police were in attendance.

3. Although the father and his partner had a separation in 2013 there is no evidence of any family violence between them.

4. I find that this child would not be at risk of physical or psychological harm in either household from being exposed to abuse, neglect or family violence.

The child’s views[19]

[19] S60CC(3)(a): Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.

1. The child is seven years of age and impressed the family report writer as meeting all of his developmental milestones.  In both reports he said he loved both parents deeply but expressed a wish to live more with his mother.  I have no doubt he is seeking out more time with his mother.

2. Although his young age would preclude the court determining the matter solely on his wishes I will take into account his desire for more time with the mother as a factor warranting some weight and suggesting that a continuation of a shared care arrangement would not be in his best interests.

Practical difficulties[20]

[20] S60CC(3)(e): The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

1. Currently the parties live in close proximity in a small town.  The child is able to move between each house in a matter of minutes.  If the mother was to relocate to (omitted) the parties will be some two hours driving time away on a good day.  This will make it more difficult for the child to move as easily between the two homes.  It will also mean his time with the father will have to be relegated to weekends and school holidays and make it very difficult for the father to be involved in the child’s school and extra-curricular activities.  Although the child would be able to enrol in sport in (omitted) the father quite rightly points out he would not be able to attend any mid-week training if he is living so far away.

2. The mother gave evidence of the father not taking an active role in the child’s schooling to date leaving that to his partner.  I accept her evidence.  The father is very busy as a self-employed businessman which, although he would have some flexibility, precludes him from involvement with the school during the working week.  If the child remains living in (omitted) that would continue.

3. I accept the father’s evidence that his business precludes him from relocating to (omitted).

4. A consideration of this factor would suggest the child’s best interests would be met by both parents living in the same town.  Having said that however a move no further than (omitted) would be manageable for the child and parents but not ideal.

5. The mother gave evidence of living in her mother’s home that was on the market at the time of the hearing.  She said the rents for properties in (omitted) were high but did not provide any corroborative evidence.  She was confident of finding cheaper rental properties in (omitted).  I am not able to make any finding as to the accuracy of her belief given the lack of evidence.

Parental capacity and responsibility[21]

[21] S60CC(3)(f): The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs.

1. Both parents are able to meet this child’s day to day needs and are supported in doing so by their partners.

2. The mother did not run a case that her capacity to care for the child would be compromised if she could not relocate.  She clearly hates (omitted).  The mother impressed as a relatively strong woman who although she would be disappointed if she was not able to move to (omitted), would nonetheless be able to continue parenting the child if she was to remain in (omitted).

Parental Responsibility

1. Although there have been allegations raised by the mother that she had been a victim of family violence in her relationship with the father her allegations were not sufficiently particularised for me to make any findings as to the extent of the violence.  The parties have had difficulties in communicating and there has been some conflict at handovers.  Fortunately they both report improvements in recent times.

2. I am satisfied that the presumption of equal shared parental responsibility applies and has not been rebutted.  Both parties seek an order for equal shared parental responsibility with the one exception where the mother seeks an order that she have sole parental responsibility for deciding the child’s school.

3. Ms Lyons in her oral submissions asserted the father had unilaterally enrolled the child in his current school.  This is not correct.  It was the mother who sought orders for the child to be enrolled at that school.  The parties were in disagreement as to where he should be enrolled.  At the time the father was living in (omitted) and the mother in (omitted) and the child of course was living with them week about.  Frustrated by their inability to reach an agreement the mother enrolled the child in the (omitted) School and on 1 March 2013 I made orders for the child to remain enrolled there until further order.

4. The mother now complains the school has not been good for the child alleging that he has been the victim of bullying.  The father said he was open to a change but wanted to try and work closer with the teachers to address any issues before making any move.  It was submitted on the mother’s behalf that the parties cannot resolve the education issues.  I am not so persuaded.  When the mother filed her initiating application she did so as the child’s formal schooling was fast approaching.  The parties were living in different towns some 80km apart at the time.  They each wanted to remain in the town they were in at the time and the mother was right to be concerned that unless the parenting arrangements changed the child would have to travel a lot to attend his school.  The father, despite preferring to live in (omitted), moved towns enabling the week about arrangement to continue and for the child to easily attend school.  The current issue between them is one that many parents face.  I am not satisfied their level of communication is so bad that they cannot work through the issues.

5. For these reasons I will make an order for the parties to have equal shared parental responsibility.

Consideration of Equal Time or Substantial and Significant Time

1. I accept the evidence of the family report writer that it is not in the child’s best interests for the equal time arrangement to continue.  Whilst the parties have been able to improve their level of communication in recent times there remains the risk that they will experience difficulties with day to day issues that arise in shared parenting.  For shared parenting to be successful it is desirable for the parents to have similar parenting styles or the flexibility to accommodate their differences.  Whilst there has been some flexibility by both parents, historically there has been conflict which does not auger well for the future.  When the first family report was prepared the father and his partner presented as not having a good opinion of the mother’s parenting.  Their views seemed to have softened by the time of the second report interviews, but in my view raises the potential for mixed messages for the child and conflict between the adults.

2. The parties had both experienced difficulties in their current relationships.  The report writer was concerned by this.  In her second report she said:

   [109] It is to the parent’s great credit that they have improved their communication. X can only benefit from this.  Nevertheless the presence of turbulence and unpredictability for relationship stability in both homes leads me to the view that X will be best protected emotionally if he lives primarily in one home.  Because his strongest attachment is with his mother, he is likely to feel safer emotionally with her.

3. For these reasons I am satisfied it is not in the child’s best interests for him to live with the parents in an equal time arrangement.  Before I leave that issue, I note that it would be reasonably practical if the parents lived in the same town but that if the mother is to relocate it will not be.

4. If the parties were living in the same town a substantial and significant time order would be reasonably practicable and in my view in the child’s best interests.  He has a close relationship with his father and the members of the father’s household.  Although the father is busy with his work commitments there would be opportunities for the child to spend time with the father during the week of an evening as well as on weekends.  Those work commitments make it difficult for the father to be involved with the child’s schooling and much of this has fallen to the father’s partner.  Should the child live in (omitted) he would not get an opportunity outside of school holidays to spend time with the father on mid-week evenings.  The mother’s proposal of extra weekends would go some way towards addressing this.  In her first report, Ms V said:

   [111]  While the father has had X during the week, there is little indicating that he is involved with midweek aspects of the child’s life outside home.  For example it is Ms L who does his homework with him and who has attended a teacher interview regarding his progress.

   [112]  Provided that the mother moves to a place where weekend access can continue, it is my view that X’s relationship with his father would continue to be maintained at its existing level.

5. This remained the view of the report writer in her oral evidence.

6. Although the relocation to (omitted) would mean some considerable driving for the parties and the child, to ensure he can move between the two homes, I am satisfied that it remains reasonably practicable.  Any further distance however may have been too onerous on all concerned.

Discussion

1. When I take into account all of the above considerations I am satisfied that it is in the child’s best interests to live primarily with the mother.  If the parties remained living in (omitted) he should spend time with the father on an alternate weekend basis from Thursday after school to before school Monday and again from after school Thursday to before school Friday in the other week. This would ensure the child has one primary home but is able to spend substantial and significant time with the father.  This would also help maintain the child’s sibling relationships in each home.  The mother’s move to (omitted) would mean the mid-week time would not be feasible and as I have already discussed above could be compensated by having more weekends in the father’s home.  I am satisfied the mother’s proposal of three out of every four weekends should be preferred.

2. The mother does not have to establish a good reason to move.  She has the right of freedom of movement subject to the child’s best interests.  I am satisfied that his best interests, so far as his relationship with the father is concerned, can be met even if the mother were to live in (omitted).  I propose therefore to make orders for the child to live with the mother and for her to have the liberty to relocate to (omitted).  The mother had not made any definite plans as she quite rightly decided to wait the outcome of these proceedings.  It maybe that she chooses not to move immediately.  To cover such a scenario I propose to also make orders that will apply if the parties remain living in (omitted).  There needs however to be a time limit on when the mother may take up the liberty to relocate as the child’s circumstances will change over time.  Whilst I am satisfied it is in his best interests to live primarily with the mother in (omitted) at this point in time that may not be the case if the mother delayed such a move for a number of years.  Any move should take place by the end of 2015.

1. The father gave evidence that his business interests preclude him moving to (omitted).  If however his circumstances were to change and he was able to move closer to the mother and child his time should revert to that which would have applied if they were both living in (omitted).  I will order accordingly.

2. For these reasons I make the orders set out at the beginning of this judgment.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn

Date:  12 January 2015

S60CC(3)(b): The nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child).
S60CC(3)(c): The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child.
S60CC(3)(d): The likely effect of any changes in the child’s circumstance, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.S60CC(3)(j): Any family violence involving the child or a member of the child’s family.
S60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following: i) The nature of the order; ii) The circumstances in which the order was made; iii) Any evidence admitted in proceedings for the order; iv) Any findings made by the court in, or in proceedings for, the order; v) Any other relevant matter.S60CC(3)(m): Any other fact or circumstance that the court thinks is relevant.S60CC(3)(ca): The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
S60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents