Nappert and Pagel
[2020] FCCA 1238
•19 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NAPPERT & PAGEL | [2020] FCCA 1238 |
| Catchwords: FAMILY LAW – Parenting – interim application – where the mother moved from Brisbane to Sydney with the child post separation – where the father remained living in Brisbane – where the parties had planned to relocate to Sydney before separation – where the parties had agreed in writing, post separation that they would both relocate to Sydney with the child – where the father subsequently decided that he did not wish to relocate to Sydney and sought an order that the child return to Brisbane – where both parents were originally from Sydney – where the parents had lived in Sydney and Brisbane during the course of their relationship – cross applications – best interests – reasonable practicability – interim parenting order – short form reasons provided pursuant to section 69ZL of the Family Law Act 1975 (Cth). |
| Legislation: Family Law Act 1975, ss.60, 60CC, 61DA, 65DAA, 69ZL |
| Cases cited: Hall & Hall (1979) FLC 90-713 MRR v GR (2010) 240 CLR 46 Edgar & Strofield (2016) FLC 93-711 Parks & Farmer [2012] FamCAFC 12 |
| Applicant: | MR NAPPERT |
| Respondent: | MS PAGEL |
| File Number: | BRC 1340 of 2020 |
| Judgment of: | Judge Howard |
| Hearing date: | 20 April 2020 |
| Date of Last Submission: | 20 April 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 19 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Dr Sayers |
| Solicitors for the Applicant: | Damien Greer Lawyers |
| Counsel for the Respondent: | Mr Drysdale |
| Solicitors for the Respondent: | Cooper Grace Ward Lawyers |
ORDERS
THE COURT ORDERS UNTIL FURTHER ORDER:
The parties have equal shared parental responsibility for the child, X born in 2017 (“the child”).
That the child shall live with the mother.
That the mother is permitted to live with the child in Sydney, New South Wales.
That if the father remains living in Brisbane, Queensland:
(a)the child will spend time with the father for no less than two (2) consecutive nights each fortnight at all times as may be agreed and failing agreement commencing on 1 May 2020 from 4.00pm Friday to 4.00pm Sunday each alternate week in Sydney; and
(b)the mother will be responsible for reimbursing the father within forty-eight (48) hours of receiving proof of purchase from the father of his of economy airfares (cheapest airfares within a three (3) – hour window of changeover to a maximum of $400 return) to and from Sydney for the purpose of spending time with the child.
That each parent is at liberty to call or FaceTime the child between 5.30pm to 6.30pm every day (or any other time agreed) when the child is not in their care, with the other parent to facilitate the child taking the call or FaceTime.
That if the father is living or staying for a period of one (1) week or more in Sydney, New South Wales the child will spend time with the father at all times as may be agreed and failing agreement:
(a)from 9.00am on Tuesday to 4.00pm on Wednesday each week; and
(b)from 4.00pm Friday to 4.00pm on Sunday each alternate week
with the Father at liberty to put the child into day care at B Child Care.
That this matter be adjourned for Mention at 9:30am on 17 November 2020 in the Federal Circuit Court of Australia at Brisbane.
IT IS NOTED
(A)If either party’s work or living circumstances significantly change or if COVID-19 related travel and quarantine restrictions are increased or downgraded, the parties will attend family dispute resolution to discuss re-negotiating the terms of these interim parenting orders.
(B)That pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the document attached to these Orders titled “Parenting orders – obligations, consequences and who can help”.
IT IS NOTED that publication of this judgment under the pseudonym Nappert & Pagel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 1340 of 2020
| MR NAPPERT |
Applicant
And
| MS PAGEL |
Respondent
REASONS FOR JUDGMENT
A.The Court commenced delivering these reasons for judgment ex-tempore on 20 April 2020 and indicated that it would conclude delivering these Reasons for Judgment subsequently and publish them in writing to the parties. On 20 April 2020 the Court explained this process to the parties and the Court expressly reserved the right to vary the reasons and/or add to the reasons but the Court indicated that the outcome would remain the same. These are now the published and settled Reasons for Judgment. These reasons are provided in short form pursuant to section 69ZL of the Family Law Act 1975 (Cth).
The matter before the Court is a parenting case relating to one child, X, who was born in 2017. The parties are the applicant father, Mr Nappert and the respondent mother, Ms Pagel. The father was born in 1974. The mother was born in 1977.
The parties started living together in 2007 and they were married in 2009. The parties separated on a final basis in May 2019. The father is a professional and the mother is a health care worker. Both of the parents in this case grew up in Sydney and most of their extended families remain living in Sydney. The mother currently is residing in Sydney with the child and has been there since late January 2020. The father currently resides in Brisbane.
In essence, the father’s proposal is that the child return to Brisbane. If the mother decided not to return to Brisbane, the father says he is available to care full-time for the child. If the mother does return with the child to Queensland, then undoubtedly there would be orders in place for the child to spend time with both parents in Brisbane. The mother, on the other hand, seeks the permission of the Court so that X can continue to reside with her in Sydney.
The mother says, if the father decides to remain living in Brisbane, that she, the mother, will pay an economy class airfare for the father to travel to Sydney each fortnight to spend time with the child. In addition, without there being a detailed proposal, the mother says that if the father were to decide that he would move to Sydney, that in addition to alternate weekend time, there would, it seems to me, undoubtedly be additional time during each week that the child could spend time with the father.
There is a family report from Ms C. It is annexed to an affidavit filed 7 April 2020. I note paragraph 137. The content of that paragraph makes perfect sense. It talks about the parents living in the same city. That paragraph states:-
“137. If both parents are living in the same city, then I recommend that X's care arrangements revert to a similar pattern that was in place up until 26th January 2020, and that his time with his Father steadly increases towards an equal shared care arrangement. For example, I suggest that his overnight time with his Father increases, with the view to gradually moving to an equal shared care arrangement by- the time his commences Prep.”
Unfortunately, the parents are unable to agree at this stage whether X should be living in Sydney or Brisbane. It is necessary for the Court to provide a decision for these parents. This is an unusual case. When the parties were together it is the case that they were planning to return to live in Sydney with X. During their relationship – the parties had lived in both Brisbane and Sydney.
In pursuance of the plan to return to live in Sydney with X the parties had jointly enrolled X at the D Early Learning Centre in Sydney and enrolments were also made for X at the father’s old school in Sydney at E School and the F School was the subject of another enrolment application.
The parties unfortunately came to the conclusion they could no longer live together. They separated in 2019. They entered into a written parenting plan and the parenting plan is annexed to the mother’s affidavit filed on 25 February 2020. This agreement was signed by the parties less than one year ago on 26 June 2019.
By entering into the parenting plan the mother agreed to pay the costs of a bond for the father who was moving into another apartment in the same block at Suburb G, Brisbane. The mother also agreed to pay for six months’ rent for the father, leaving the father, in the words of the agreement, “to be at liberty to use his money however he pleases”. The mother also paid a sum of $5000 to cover furniture costs for the father. The parties also agreed as follows:-
“8. The intention is for Ms Pagel to move to Sydney with X by February 2020 (unless it is agree that will move earlier) and for Mr Nappert to relocate as soon as possible after that.
9. While Ms Pagel and X are in Sydney and Mr Nappert is in Brisbane, the parents will facilitate X spending time with Mr Nappert no less than every second weekend. The parents will alternate which one of them flies to the other to facilitate this arrangement. Each will be responsible for their own costs of travel. In the event points cannot be used to cover X’s travel, the parents will share the costs of this travel.
10. The intention is for X to be educated in Sydney starting on 2021 at D Early Learning Centre.
11. X will be put on the waiting list for E School and F School Early Learning Centres. Both parents will do all necessary things to complete applications by 7 July 2019.”
Of particular note is paragraph 8, where the parents said that it was the intention of the mother to move to Sydney with X by February 2020 and for Mr Nappert to relocate as soon as possible after that.
It is unusual in that respect. As Dr Sayers, Counsel on behalf of the father pointed out, it is often the case that parents, when they are together, may contemplate a particular move of the family as a single unit but it is not very often the case that even after separation you see in writing the clear intentions of the parties to carry out a particular interstate move. The mother swears in her affidavit of February 2020 that it was not until August of 2019 that she became aware that the father had changed his mind about the idea of moving to Sydney.
The mother underwent surgery in Queensland in early 2020. I apprehend it was for a form of surgery in order to assist with neck and back pain. Post-operatively she needed a good deal of care. She went to Sydney to get assistance from her father and others. That may have actually been after her own father had come to Queensland to help her. In any event, the mother was down in Sydney. The mother decided not to return to Queensland.
The mother filed proceedings in the Federal Circuit Court of Australia in the Sydney registry but just a few hours prior to that the father had filed proceedings in the Brisbane registry of this Court. The Court has to consider the case, obviously in terms of the competing proposals of the parents as they exist at the time of the interim hearing. And as the proposals exist right now at the time of this interim hearing, the father is in Brisbane and wants the child to return to live primarily in Brisbane. And the mother lives in Sydney and wants the child to remain living primarily with her in Sydney.
Much has been said about the mother’s unilateral decision to remain in Sydney and certain other unilateral actions have been referred to, including enrolment of the child as a casual day-care attendee late in 2019 but prior to the mother going down to Sydney in January of 2020.
The submission made by Mr Drysdale, Counsel on behalf of the mother, is worth noting. In terms of unilateral actions on the part of the parents, it can be said that the father made a unilateral decision to change his mind about the family’s proposal to move to Sydney, in the context where that had been the plan for at least two years based on the enrolment notice evidence dated 2017. It is not the sort of case where the Court would say that there was any particular criticism of the mother in relation to the mother going to Sydney and changing her mind and staying there.
Both of the parents have, it seems to me in the course of the past six – nine months, changed their minds in relation to very important issues relating to X. In relation to the evidence of unilateral decision making, it seems to have been referred to on behalf of the father as evidence of the mother minimising the father’s involvement in the child’s life but it does seem to be the case that, from the report of Ms C, even after a lapse of some time – the child immediately recognised the father and was delighted to see him.
The case does not have, to my mind, the kinds of indicators or the type of evidence that would begin to start the Court worrying that one parent, in this case the mother, is trying to close out another parent, in this case the father. I note the comment by the family report writer that the mother’s actions in moving to Sydney with the child indicated a willingness by the mother to take matters into her own hands and to disregard the father’s views. It remains to be seen at a final hearing whether that is in fact correct. One important piece of evidence that would likely lead to a finding that the mother does support the father’s relationship with the child is the fact that when separation occurred the mother agreed to and did in fact facilitate the leasing of another apartment in the same apartment building for the father to move into – obviously so that the father could remain close to X. In addition, I do note that the parents had a joint view and a joint intention – even post separation – to both relocate with X to Sydney. There is no dispute that both parents cared for X when they were living together as a family unit in Brisbane. It is also apparent to the Court (this is at least available by inference from the evidence and the actions of the mother) that the mother wants the father to move to Sydney and be involved in the life of X. Of particular note also to the Court is the comment by Ms C that, by the time X reaches the age of prep, these parents should be giving serious consideration to – or indeed there is a recommendation that – he be living in a shared care arrangement. As to the structure of such a shared care arrangement, that would have to be pursuant to some sort of agreement. Of course, it can only be achieved if they are living in the same city and generally in the same area of the city.
The mother is living with the child in Suburb H in Sydney. I note that her own father and step-mother live nearby. Her other family members live in reasonably close proximity. She has the support of other family members but in particular, I note the support of the maternal grandfather. The paternal aunt lives approximately three kilometres from where the mother lives and the paternal grandparents ordinarily live approximately three kilometres from where the mother is living with the child in Suburb H.
Dr Sayers informed the Court on 20 April 2020 that the paternal grandparents were then currently living at Town J in New South Wales. The Court was told this is a four hour drive from Sydney. Renovation work is being conducted at the primary residence of the paternal grandparents – which is in or near the suburb of Suburb H.
I note paragraph 82 of the decision of the Full Court of the Family Court in Goode v Goode (2006) 206 FLR 212. The decision in Goode v Goode (supra) was prior to the enactment of section 69ZL. Section 69ZL only became operative on 1 September 2018 and permits the Court when making an interim parenting order to give reasons "in short form" (section 69ZL(1)).
In any event, the Court has already identified the proposals of the parties in this case. The issues have also been identified, including the evidence relating to the so-called "unilateral decisions" by the mother and the father. In addition, I will, later in these reasons refer to the relevant legislation contained in Part VII of the Act.
One of the most important matters in this case is the question of the parents’ work. Their professional careers and their current work status are crucial in this case. Like so much of Australia at the moment, the work of these parents has been significantly interrupted by the current coronavirus pandemic.
The mother is a health care worker and had been working in Queensland, including at Employer K and in Town L as well as other work in Brisbane in the past. The mother has suffered some significant discrimination in the course of her career. I do not understand that to be in dispute. Indeed, much of the evidence in relation to it, can really only come from the mother and her perceptions of the way she has been treated by professional colleagues, including very senior professional colleagues – health care workers with the same speciality in Queensland.
The reason I am making particular mention of the evidence in that regard, namely the discrimination that the mother has been subjected to by her professional colleagues in Queensland, is because that seems to me to underpin the mother's desire to move from Queensland and New South Wales. My interpretation of the situation in this family is that – prior to separation – the mother had the father’s support concerning that issue. That is, her desire to move interstate because she considered that she was never going to fully realise her potential as a health care worker in Queensland given that she has been discriminated against.
It is not necessary for the Court at this stage to conclude one way or the other, whether in fact Ms Pagel was discriminated against and if so, to what extent. But what I do note is the unchallenged evidence of the mother that her perception is that that is exactly what occurred. The mother took steps then to establish a career as health care worker in Sydney, including by obtaining the support of a colleague who appears to be well regarded in the profession, namely Mr M (a health care worker in Sydney).
Mr M has agreed to act as the mentor for the mother, to assist her to establish herself as a health care worker in Sydney. What is apparent to the Court is – that in the years leading up to late 2019, the wheels were in motion for this family to return to Sydney. The mother began to plan her professional career move to Sydney. The mother began to plan the professional advancement of her career in Sydney.
It is quite difficult for any professional person to move cities or to move States. It takes time undoubtedly to establish one’s self. I am sure the same would be the case if a barrister were moving from Brisbane to Sydney. At the moment because of the pandemic, the mother is working, doing Skype consultations on at least three days a week.
Whether that is personally by attendance or by video link, I am not certain but it involves a clinic at N Street, Suburb O, Sydney. Also it involves a clinic at P Street, Town Q. The letter from the Town Q Family Medical Centre (Sydney), signed by Ms R, addressed “To Whom It May Concern” – notes that Ms R anticipates an ongoing clinical relationship with Ms Pagel.
In addition to the evidence concerning the N Street, Suburb O clinic (Sydney) and Town Q (Sydney) – there is also evidence from the mother of steps taken by her to secure work as a health care worker – in particular, work as a visiting health care worker at the Employer S. The process concerning the Employer S is continuing – in terms of the mother commencing that role.
Because of the pandemic, the mother’s work in Queensland has dried up. There are no more lists to be done at Employer K or Town L or anywhere else the mother may have been doing work in Queensland. It appears to be uncontested that elective surgery is on hold because of the need of the country to concentrate its resources for the COVID-19 patients. So there is that background so far at the mother is concerned.
The father has worked in a professional role. Unfortunately, he was recently stood down from his position. That is confirmed in his latest affidavit that was filed on 17 April. A letter was sent to him by his employer, Employer T, noting that he has been stood down because of the change in the economy as a result of the pandemic. There is actually no evidence to specifically confirm the father’s current income. Dr Sayers gave the Court some information concerning the father’s applications for Centrelink and the father is receiving his holiday entitlements at a reduced amount in the vicinity of $500 per week.
The Court was also told that the mother is being paid on an hourly rate for the patients she sees through Skype – somewhere between $150 and $250 an hour. Neither Counsel took objection to the other Counsel passing that income information to the Court. What we do know is that the mother currently has work and the father does not currently have work. The parents still own an apartment in a block at Street U, Suburb G. That was the former matrimonial home. They lease another apartment in the same block.
I understood from Dr Sayers that the lease on the apartment where the father lives runs out in June 2020. The mother is leasing a house in Suburb H in Sydney. It is apparent enough to the Court that the mother is at least confident enough that she has the resources to pay for economy class airfares for the father to travel to Sydney every second weekend if necessary.
It seems clear enough to the Court also that if the father decides to remain living primarily in Brisbane and the Court were to grant the mother permission to remain with the child in Sydney, there does not appear to be any evidence to the effect that the father would not be able to utilise accommodation with one of his family members for weekend visits. As Dr Sayers rightly points out, a weekend visit is something entirely different to a person moving in to stay or live for an extended period of time.
The Court has considered the steps that have occurred in the lead up to the separation. The Court has considered decisions taken by the father and the mother in terms of their view concerning where they would live and where they will not live. If I have not already said so, I should point out that the mother has said that if the Court decides that the child should return to Queensland, that she will return to Queensland.
I know that both parents have cared for X, but the evidence suggests that the mother has been the primary carer. I point in particular to the fact that in the parenting plan the anticipation was (in June 2019) that the mother would move to Sydney with the child and the father would move to Sydney as soon as possible after that. This indicates to the Court that the parents themselves probably did regard the mother as the primary carer. In any event, the question of "primary carer" is not decisive of the outcome. It is one factor. If my view about this issue at this interim stage is not correct, it will make no difference to the outcome of this interim hearing.
One matter that is in dispute between the parties, relates to the question of risk and the father’s consumption of alcohol. In the most recent affidavit, provided to the Court, under cover of a GP letter from the V Medical Centre, Dr W (dated 15 April 2020) says:
“Re: Mr Nappert
DOB: 1974
…
Enclosed is a series of blood tests performed on Mr Nappert over the last 10 years. During this time, I can see no evidence of liver disease associated with alcohol use.
Your sincerely,
Dr W”
In addition, there is another letter from Dr W dated 9 April 2020 that encloses or says:
“Re: Mr Nappert
DOB: 1974
…
The above named (the father) has completed a carbohydrate deficient transfer and tests on 2 March and the result is within normal limits
Your sincerely,
Dr W”
(parenthesis added)
One point I would make about annexure “N4” is that when it comes to testing (alcohol consumption or drug testing) – it is often the random nature of the testing which would normally be more persuasive. Having said that, I do note that the type of testing done, being the CDT, does have the benefit of covering a period of months in terms of a review of a person’s alcohol consumption.
Annexure “N4” states that the reference range is effective to 4 October 2019. That is noted on the very last page of the affidavit of Mr Nappert filed17 April 2020. In that regard though, that is talking about elevated levels in most individuals. That is, CDT levels become elevated in most individuals if they are consuming at least 60 grams of alcohol on more than 14 consecutive days. Consumption of alcohol in those amounts, on each of 14 consecutive days or on more than 14 consecutive days, that is one thing. The occasional consumption of alcohol to excess is a different issue.
What the Court does have is the father’s own admissions, as well as observations by his own employer, in relation to excessive consumption of alcohol. In particular, I note the subpoenaed material from the father’s employer, Employer T, in relation to the items referred to in argument and in particular the items to which I am going to refer now. That is, the pages referred to by Counsel in argument.
I will be including those as exhibits for the purpose of this interim hearing. In the annual employee review 2019 in respect of the father, the manager/reviewer’s comments state:-
“…Serious consideration needs to [be] given to capping the amount of alcohol consumed. Your current behaviour is affecting the reputation of Employer T and it needs to be addressed with immediate effect. There needs to be a balance between fun and professionalism.”
There is a reference to the fact that the company does understand the father’s personal circumstances over the previous 12 months. Undoubtedly a reference to the marriage breakdown. But it is a reference to the consumption of alcohol, which is noted by the Court. On Thursday, 26 September 2019, the father wrote an email to the directors of the company (or the business) in Queensland. The father has insight into the fact – at least he says he does.
His action plan in dot point number 1 is essentially his own instructions to himself as to how to improve his work performance. Dot point number 1 is to “stay sober”. Then, at paragraph number 1, he details how this is to occur. He says in paragraph number 1 (of exhibit 2):
“1. No booze for two months (I started this on Friday and already feel better. It’s not just my behaviour when I get drunk, it’s also my ability to be effective the day after, to stay healthy and make better choices about everything and anything).”
That is his own assessment of himself, as late as 26 September 2019. In addition, there is, in the employment records, an email from 27 February 2019, from Mr Y at Employer T to the directors of the company (exhibit 3). The reference line is “Mr Nappert Probation Tomorrow”. The observation made by Mr Y, who appears to be the director of a division of the company, was that the father was, in this man’s opinion:
“Getting too pissed and acting like a knob, Clients want to know that under any circumstance you can conduct yourself properly.”
The import of the evidence to which I have referred, in particular, the father’s own email from late September 2019, it must be said adds weight to the mother’s evidence that she has concerns in relation to the father’s consumption of alcohol.
There is another bundle of subpoenaed material relating to an incident that occurred on 21 December at the father’s residence at Street U, Suburb G. The father had written quite a long reply to the allegations that had been made by, it seems the body corporate manager or the building manager. I am not going to place any weight or make any further reference to that evidence because, for instance, there are references to witnesses and it is not immediately apparent who the witnesses might be. Also some first names might be given, like somebody called Mr Z, for instance. I think it would probably be unfairly prejudicial to the father for the Court to have regard to that evidence.
The father’s own email from September 2019 is relevant when the Court considers the evidence of Ms C at paragraph 116. Ms C’s report is annexed to her affidavit filed 7 April. Paragraph 116 states:-
“116. Mr Nappert denies drinking alcohol to the point that it impacts his ability to care for X, however, if Ms Pagel's account of his drinking habits is accurate, then it is very concerning in my opinion . Ms Pagel has reported anecedotal evidence of Mr Nappert's alcohol intake having increased significantly since the separation, although I am not aware of any independent information to support this.”
I note from the September 2019 email that the father wrote – that he admits he was consuming alcohol to such an extent that it was not only impacting him on the day of the consumption but impeding his ability to work as productively as he might on the following day. If the father was drinking alcohol to that extent, then it seems to me to lead to a conclusion that, certainly on those occasions, the father’s consumption of alcohol was likely to impede his ability to care for X. I consider that this inference is certainly open, having regard to the father’s own admissions.
It is difficult for the Court to make findings in relation to many of the section 60CC factors at this interim stage and in the manner this hearing has been conducted by video link. I might even start with a reference to some matters I have already touched on, which are 60CC matters. I have of course considered the question of the benefits of a meaningful relationship between the child and the parents. This has been identified by Ms C. The evidence is that both parents currently do have a good and a positive relationship with the child. There already exits a meaningful relationship. I note what was said by Kay J in Godfrey v Sanders (2007) 208 FLR 287 at 298 (paragraph 36) when considering a relocation case, “even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship."
These comments from Justice Kay in Godfrey v Sanders (supra) were endorsed subsequently by the Full Court of the Family Court of Australia in Sigley & Evor (2011) 44 FamLR 439 at 182.
I have made reference to the risk issue identified in this evidence, which is the father’s consumption of alcohol. Whilst the mother does have concerns about the father’s consumption of alcohol, it does seem to be the case that she seems reasonably satisfied at present that he does have the ability to control his drinking when he needs to because she has left the child in his care. That augurs well for the future and the father’s relationship with the child.
In terms of 60CC(3)(a) – the child is obviously too young to express a view. I have already touched on the nature of the relationship of the child with the parents. It appears to be close and loving. The parents, certainly the mother, has taken every opportunity to spend time with the child. The mother maintains the father has not taken every opportunity, but I am not sure that is an agreed fact. I am going to steer clear of that. There was a particular reference made in the mother’s affidavit, to the father not taking up an opportunity around Christmas time but I am uncertain whether there was a particular reason provided by the father in that regard.
It is not going to make too much of a difference because it is clear enough to the Court that both of the parents in this case desperately want to be involved in the life of the child. The parents have fulfilled their obligations to maintain the child. As to the effect of separation – that would be difficult (section 60CC(3)(d)) if the parents remain living in different cities. Subsection 60CCC(3)(e) becomes relevant also – concerning practical difficulties and expenses of maintaining contact with both parents. That is obvious if they remain living in different cities. All of those issues melt away if they are in the same city.
I am satisfied both of these parents have the capacity to provide for the needs of the child, including his emotional and intellectual needs (60CC(3)(f)). None of the other paragraphs in section 60CC(3) are particularly relevant. Ms C was concerned (about the young age of X). Ms C specifically noted the undesirability of there being extended periods of time between X spending time with either of his parents. The overall import of the report is, as one would expect, to the effect that it is better if the time between meetings between a parent and a child is lessened.
The evidence of Dr AA – is contained in an affidavit that was filed on 11 March 2020. It has been referred to in the evidence and has been referred to in some submissions. But there is no submission by the father to the extent that there is any evidence from Dr AA to suggest that if the child was to remain living in Sydney that there would be some adverse impact on the father’s health.
The references by Ms C to Dr AA’s evidence are noted by the Court, as is her comment in paragraph 130 that it is beyond her own professional expertise to comment upon the likely psychological impact of a move by Mr Nappert to return to live in Sydney.
What is not presently apparent to the Court but which may become apparent to the Court, if the case ever goes to a final hearing, is what happened in the several years leading up to August 2019? Why is it that the father only informed the mother in August 2019 that he did not want to move to Sydney? Why is it that the father waited until August 2019 until he told the mother that he did not want X to move to Sydney? These are matters that will become relevant at a final hearing. This is particularly so because I note that in the years leading up to August 2019 both of the parents of X had planned to return to Sydney.
The Court notes what has been said in paragraph 135 by the family report writer to the effect that if the Court permits X to remain living in Sydney with Ms Pagel, it is the view of the family report writer that that arrangement would likely negatively impact on the development of the father/son relationship, especially given the child’s young age. Reducing X’s contact with his father to fortnightly face to face visits amounts to a dramatic change in the child’s usual routine even if regular Skype contact can be maintained.
That is one piece of evidence. As has been noted in many cases – including the decision Hall & Hall (1979) FLC 90-713, there is no magic in a family report. In particular, I note what was stated by Evatt CJ in Hall & Hall (supra) at page 615. On that page the Chief Justice stated, inter alia, in relation to the weight to be given to a family report:-
“(d) Hence, the counsellor’s assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character than that which the counsellor has accepted.”
The Full Court made it clear in Hall & Hall (supra) that in the event that the facts upon which an expert's opinion are based are altered – this is a factor which may impact upon the weight to be given to the expert opinion. When Ms C saw the father and the mother she noted in paragraph 116 of her report that there was no “independent information” to support the mother’s account of the father’s drinking habits – including the mother’s account that the father’s alcohol intake had increased significantly since the separation. Indeed, Ms C said that if the mother’s account was accurate – “it is very concerning in my opinion". The Court does have evidence of the father’s excessive consumption of alcohol. The Court has already made reference to the evidence in that regard, including the father’s own admissions by way of email. In those circumstances, the opinion of the family report writer as it currently stands in her written report may need to be reviewed by the family report writer once she has been updated in respect of the evidence.
The matters of principle and general observations made by the Full Court in Hall & Hall (supra) were more recently confirmed by the Full Court Klein & Klein (2010) FamCAFC 150 at paragraph 241.
There seems to be no dispute that there will be an order for equal share parental responsibility (s.61DA). This requires the Court to have regard to section 65DAA of the Act. In MRR v GR (2010) 240 CLR 46 the High Court noted, inter alia, from paragraph 13:-
“13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (small a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (small B)). It is only where both questions are answered in the affirmative that consideration may be given, under paragraph (small c) to the making of an order….
…
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”
In terms of the practical realities of this situation, I have referred to the mother’s difficulties in the past in progressing her career as a health care worker in Queensland. I note the evidence of the mother that if she were to return to Queensland because the Court ordered the return of X, at this stage, that she would not work as a health care worker. The mother seems so entrenched in her view that she has been significantly discriminated against by the senior ranks of the profession in Queensland that she sees no prospect, I infer from her evidence, of changing that situation in terms of her ability to build her career in Queensland.
That background of evidence was one of the primary reasons (if not the primary reason) which (in my view) underpinned the decision of the parents to move from Brisbane back to Sydney.
The practical realities of this family at the moment also include that the father currently is not working. He has been stood down. It is unclear as to whether he will become eligible for any form of Centrelink payment. The practical realities of this family also include the evidence that the mother is working and is taking what steps she can, in the context of the pandemic, to continue to work and build a career in Sydney.
The other matters that deal with “the reality of the situation" include – the fact that both parents originated from Sydney and their extended families (of origin) live in the general vicinity of Suburb H, Sydney – where the mother currently lives with the child. Members of the maternal family and members of the paternal family live nearby to Suburb H.
Every second weekend for the child with the father, as has been noted by Ms C, is sub-optimal. That is essentially the import of her evidence. The relationship between the child and the father will be impeded. As the Full Court has pointed out – optimal outcomes are not always achievable. Those comments by the Full Court relate to the question of a "meaningful relationship" referred to in section 60CC(2)(a). I have already made other references in these reasons to the Full Court's interpretation of the relevant legislation.
Another reality of the situation is that the mother has said she will pay economy class return airfares for the father to continue visit every second weekend.
I agree with the submission made by Mr Drysdale of Counsel on behalf of the mother. If the Court were to order that the child be returned to Queensland – this would effectively amount to a coercive order requiring the mother to return to Queensland. This is so because the mother has said that if the Court orders that the child return to Queensland, then the mother will also return to Queensland. I infer from the evidence that the mother would feel compelled to return to Queensland. It is apparent that the mother has lost the drive and determination to build a career as a health care worker in Queensland. The reasons for that have already been noted. What we would then see is the mother and the father both back in Queensland and neither of them with an immediately apparent career path.
Given that both of the parents have extended family members living in Sydney, there is some strength in the argument outlined by the mother, in particular at paragraphs 13 and 14 of the mother’s affidavit filed on 17 April 2020. The two relevant Public Health Acts (Queensland and New South Wales) do permit the movement of people between States – if there is a Court order permitting, for instance, a parent to travel interstate to spend time with a child. I am uncertain of what quarantine requirements may be in place for upon arrival in another state. This seems to vary.
Extra family members – such as those in Sydney – can provide support for the parents. In the event that either parent became unwell because of the pandemic – the benefit of having extra family members nearby is apparent. Indeed, the same could be said in any circumstances – but it is even more so in the circumstances of the pandemic because of the need to isolate. The need to isolate comes about even in the absence of an individual suffering symptoms. If that individual has come into contact with a person who subsequently tests positive for COVID-19 – there is a need for the non-symptomatic individual to self-isolate.
I have referred to risk issues in terms of practicalities – in particular the father’s alcohol consumption. As noted earlier – the documentary evidence (namely, the father’s own email from September 2019) does tend to support the mother’s evidence in relation to the father’s excessive consumption of alcohol.
In relation to a current weighing of the evidence – in terms of “the reality of the situation of the parents and the child" (note MRR V GR (supra) at paragraph 15) – I have concluded that the evidence weighs in favour of the mother being permitted to retain the child to live in Sydney at this interim stage. It is an interim relocation case unlike any other. I note the following matters have been considered:-
a)That the existence of the current COVID-19 pandemic and the restrictions on travel which are in place as a result of the pandemic;
b)The parent’s joint plan to relocate from Brisbane back to Sydney has been in existence even before X was born. The parents were planning which school in Sydney to enrol X;
c)Indeed, the parents had enrolled X at one (or more) schools in Sydney including the D Early Learning Centre;
d)The evidence is that until August 2019 the father had expressly agreed that the entire family would be relocating to Sydney;
e)Even post separation the father agreed that the family would be relocating to Sydney. The father's agreement concerning the relocation to Sydney was put into writing and contained in a parenting plan which is in evidence;
f)The mother has been bullied and discriminated against by senior health care colleagues in Queensland. The mother has had extensive problems with her professional career as a health care worker in Queensland;
g)The mother is the only parent currently employed. The move to Sydney by the mother, it seems to me, is inextricably linked with the mother’s legitimate desire to establish her career as a health care worker away from the Queensland profession, and this must be looked at in the light of the fact that the mother has been the primary breadwinner;
h)The father – who of course does not want to move to Sydney – does, however, have opportunities in Sydney to access help, assistance and support from his family members – including paternal family members who live close to where the mother is living with the child in Suburb H, Sydney;
i)Both parents are from Sydney and it does not seem to be contested that they do have friendship networks in Sydney; and
j)Both the maternal family in the paternal family appear to be based in Sydney.
Balancing all of these matters referred to – and indeed all the other evidence referred to in these reasons and taking note of the considerations and section 60CC and the other relevant sections of the Act – in particular, section 65DAA – the conclusion of the Court is that the best interests of X are served by staying in Sydney at this stage with his mother.
If the father decides to move to Sydney – obviously there will be more time with the father. Indeed, I would expect that the parties could agree on substantial and significant time between X and the father if the father is in Sydney – leading, I anticipate, to an equal time arrangement.
If the father decides to stay in Brisbane then he will be permitted to travel to Sydney – as often as he wants and at the very least every second weekend in order to spend time with X.
I have had close regard – not only to the oral submissions made by Counsel on behalf of the father and mother – but also the written submissions provided on behalf of the father by his Counsel, Dr Sayers. I have had regard to all of the cases referred to. I note the decision of Parks & Farmer [2012] FamCAFC 12 – in particular where the Full Court stated at paragraph 87 – "that whilst the Court does not condone ‘unilateral relocations’, such actions are but one of the factors which, by reference to the provisions of Part VII, are relevant to determining the child's best interests on an interim basis after a circumscribed hearing". The question of "unilateral" decisions by the parents in this case remains open. The point from Parks & Farmer (supra) is that – whether or not the Court concluded that the mother had unilaterally relocated with the child – that is only one factor for the Court to consider. As was pointed out by the Full Court in one of the other cases cited on behalf of the father – (Browne v Keith (2015) 55 Fam LR 208 at paragraph 29) – the law in relation to relocation cases (including interim relocation cases) in the context of section 65DAA is “as espoused by the High Court in MRR v GR (supra)”.
I am particularly mindful of something that was stated by Kent J sitting as the Full Court of the Family Court in a case called Edgar & Strofield (2016) FLC 93-711 – especially at paragraph 29 where his Honour stated:-
“As it seems to me, those critical findings and observations in the Reasons for Judgment for the stay order, which do not assume any kind of significance in the primary Judgment, demonstrate that his Honour was there distracted by the issue of “relocation”; rather than focusing upon the competing proposals of the parents in the circumstances as they existed at the time of the interim hearing, in the context of the undisputed history, so far as the appropriate interim care arrangements for the children were concerned.”
Kent J. said that the trial judge had been distracted by the issue of “relocation”, rather than focusing upon the “competing proposals of the parents, in the circumstances as they existed at the time of the interim hearing”. The words used by Justice Kent hark back to or are reflective of the wording used by the High Court in MRR V GR (supra) (at paragraph 15, page 467) – where the High Court noted when considering section 65DAA(1) in the context of a relocation case – the Court is obliged to consider "the reality of the situation of the parents and the child". The same considerations apply in relation to section 65DAA(2) relating to substantial and significant time. Those comments of the High Court follow-on from the Court's reference in paragraph 13 on page 466 in the decision of MRR V GR – where the Court reiterated that there is more than one limb to be taken into account when considering section 65DAA(1).
At the conclusion of the interim hearing on 20 April 2020, the Court (which had commenced delivering its Reasons for Judgment ex tempore) – informed the parties of the outcome. The parties were then invited to send to the Court a draft order to reflect the outcome – whereby the mother was permitted to remain with the child in Sydney. The parties did forward to the Court a draft order which they agreed reflected the outcome. I varied the wording of the draft order in paragraph 3 – utilising more conventional wording. It now reads:-
“(3). That the mother is permitted to live with the child in Sydney, New South Wales.”
The balance of the wording of the interim order included at the front of these Reasons for Judgment has been agreed by the parties.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 19 May 2020
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