Neville & Neville
[2007] FamCA 19
•19 January 2007
FAMILY COURT OF AUSTRALIA
| NEVILLE & NEVILLE | [2007] FamCA 19 |
| FAMILY LAW – CHILDREN – Where mother wishes to relocate thirteen year old child from Hunter region to Sydney – child’s views strongly favour mother’s proposal – where father says mother’s proposals will deprive he and the child of meaningful relationship – child’s best interests paramount consideration – child to live with mother and have substantial and significant time with the father |
| Family Law Act 1975 (Cth) s 61C(1), s 61DA(2), s 61DB, s 60B, ss 60(3)(c), (f), (i), s 60CA, s 60C(4), s.60(4)(A), ss 60CC(1), (2)(a), (2)(b), (3), (3)(a), (3)(d), (3)(f), (4), s 60CG, s 64A, s 65AA, s 65DA(2), s 65DAA, s 65DAA(3) |
R v R Children’s Wishes (2000) FLC 93-3000
H v W (1995) FLC 92-598
CW & W [2006] FamCA 387
Goode and Goode [2006] FamCA 136
| APPLICANT: | Mr Neville |
| RESPONDENT: | Mrs Neville |
| FILE NUMBER: | (P)NCF | 500 | of | 2006 |
| DATE DELIVERED: | 19 January 2007 |
| PLACE DELIVERED: | Newcastle |
| JUDGMENT OF: | The Hon Justice Ryan |
| HEARING DATE: | 14 & 15 December 2006 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Tregilgas |
| SOLICITOR FOR THE APPLICANT: | Turnbill Hill Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Levick |
| SOLICITOR FOR THE RESPONDENT: | Attwaters |
Orders
That all prior parenting orders are discharged.
That the parties have equal shared parental responsibility for the child M born in January 1994 (“the child”).
That the child M lives with the mother.
That M spends time with the father:
(a)during school terms commencing on the first weekend of each term from 7.30 pm on Friday until 5.00 pm on Sunday in alternate weeks (extending to 5.00 pm on Monday on pupil free days and public holidays) but excluding the weekend which incorporates Mother’s Day;
(b)in even numbered years for the first half of the holiday period at the end of terms 1, 2 and 3 and in odd numbered years for the second half of those school holiday periods;
(c)in the event the father takes leave order 4(b) is extended so that the father spends time with M for two weeks at the end of terms 1 and 2, commencing in accordance with the provisions in order 4(b);
(d)in odd numbered years from 2.00 pm on Christmas Day until 7.00 pm on Boxing Day;
(e)in even numbered years from 2.00 pm on Christmas Eve until 2.00 pm on Christmas Day;
(f)for 3 weeks or one half, whichever is the greater, in each Christmas school holiday period, as agreed in writing by the parties, and in the absence of agreement commencing at 10.00 am on 7 January;
(g)unless M is away on holidays, for 4 hours on her birthday;
(h)for the weekend which incorporates Father’s Day commencing at 7.30 pm on Friday and concluding at 8.00 am on Monday with the father returning M to school. In the event the father is unable to do, he shall return M to the mother at 5.00 pm Sunday at the usual changeover place.
(i)For the weekend which incorporates the father’s birthday or which is closest to his birthday commencing at 7.30 pm on Friday and concluding at 5.00 pm Sunday;
(j)on one evening per week, in Sydney from after school until the commencement of school the next day. The father shall give the mother not less than 4 days notice by telephone call or email that he will be spending time with M.
(k)At such other times as the parties agree.
School holidays commence on the first Saturday after classes end and finish on the day before classes resume. For school holiday periods the father’s time commences at 12.00 noon. On those occasions when M returns to the mother the day before school resumes the father shall deliver her to the mother at 12.00 noon. On other school holiday occasions he shall return her at 5.00 pm.
Order 4(a) is suspended during school holidays as defined as being from the time classes end until when classes resume.
That unless these orders provide otherwise, M’s time with the father is to be implemented by the mother delivering her to him at the Shopping Centre T at the commencement of each period of time and by the father returning her to the mother at the same place at the end of each period.
On those occasions when the father is spending time with M in Sydney during the school week, he shall collect her from school and return her to school the following morning.
If the father is unable to collect or return M from school he shall collect and/or return her from the mother’s home or such other place as the parties agree.
The mother is authorised to withdraw M from the H School and arrange her attendance at S College.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That the Registry Manager may return any documents produced on subpoena.
That unless an appeal is lodged, at the end of one month, all exhibits excluding the family report shall be returned to their owner.
All outstanding parenting applications are dismissed.
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: (P)NCF500 of 2006
| Mr Neville |
Applicant
And
| Mrs Neville |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings concerning the parties only child, M. Since separation in June 2005, M has lived with her mother and spent significant time with her father. Although consensus was not easily reached, until mid 2006, the parties managed to arrange M’s care without court intervention. In July 2006, the mother advised the father she wished to move with M to Sydney. The father did not agree to M’s relocation and when the mother declined to abandon her proposed move, he commenced these proceedings. Put simply, the father wants M to live with him. In the alternative that her time is divided between her parents equally.
The father regards the mother’s proposed relocation with M as inimicable to their daughter’s interests. With her parent’s separation, the father believes M particularly needs stability. If M lives with him, he is able to ensure she continues to attend H School, resides in the family home and with relative ease, maintains school and neighbourhood friendships. If M lives with him, the father says she is assured of meaningful relationships with each of her parents, an outcome he says is unattainable if the mother succeeds.
The mother points out that prior to separation, she was primarily responsible for M’s care. She says the parties arranged their family along fairly traditional lines, with the father primarily responsible for the family’s financial security and she primarily responsible for running their home and M’s care. Having tried unsuccessfully to re-establish herself in S, where, for approximately the last twelve years the parties lived, in November 2005 the mother and M moved into the families cottage at N. Although living at N, M continued to attend school at the H School in M. This involves approximately 560 kilometres travel each week. Considered from M’s perspective the mother believes the N arrangement has not worked well.
The mother’s closest relatives, to whom she and M and both very close, live in Sydney where, before marrying the father, she also lived. Other than the father she does not have any family in the area where they have been living. Following separation the mother decided M and her situation would be materially improved if they moved to Sydney. Notwithstanding her former husband’s stance, the mother sought employment in Sydney and in late October 2006 she accepted a position as manager at S College. S College is a private girls school at a western Sydney suburb. Not long afterwards the mother moved to Sydney. For the last few weeks of the 2006 school year, M lived with her father at S. The mother makes no adverse comment concerning the father’s care of M during this period.
Short history
The father was born in November 1950 and is thus 56 years old.
The mother was born in May 1959 and is thus 47 years old.
The parties commenced cohabitation in about April 1989.
In July 1991 the parties married.
M was born in January 1994 and is thus 13 years old.
The parties separated in May 2005. Although separated they continued to live in their home at S.
In June 2005 the mother and M left the home. The parties have not resumed cohabitation. After spending two weeks with her mother at the Gold Coast, the mother rented a cottage at S.
In November 2005 the mother and M moved into the parties cottage at N.
On 10 August 2006 the father commenced these proceedings.
On 30 October 2006 the parties entered into interim orders [the orders]. These orders as set out below:
Current interim orders
(1)That until 6.00 pm on Sunday 12 November 2006 the child of the marriage [M] (born [in] January 1994) (“[M]”) reside with the mother. Thereafter [M] shall reside with the father until 6.00 pm on Friday 8 December 2006 when she will then resume residence with the mother.
(2)That [M] spend time with the father:
(a)from 4.00 pm on 3 November until 1.00 pm on 5 November 2006;
(b)from 4.00 pm Wednesday until the commencement of school the following day on 1 and 8 November 2006.
(3)That [M] spend time with the mother:
(a)from 4.00 pm on Friday until 6.00 pm on Sunday on the weekends of 17 to 19 November and 1 to 3 December;
(b)between 6.00 pm and 9.00 pm in [S] on Wednesdays between 15 November and 7 December 2006 if the mother is in [S].
(4)For the purpose of order 3(a) only, order as to handover as per order 3 of the mother’s Form 1A filed 11 October 2006 save that in lieu of “[…] Shopping Centre [T]”, insert “The […] Milk Bar, [F]”.
(5)Until further order the parents will ensure that [M] remains enrolled at the [H] School only.
(6)That the father and the mother have 21 days from today’s date to file any further affidavits.
(7)This matter be set down for final hearing on 14 and 15 December 2006.
Subject only to the father’s concerns that the mother completed enrolment procedures at S College, both parties have complied with their obligations established by these orders. M has spent time with her parents in the manner proscribed by the orders.
The applications
In his counsel’s Case Outline the father submitted a Minute of Final Orders which he seeks. These are set out below:
If [the mother] proposes to continue living in Sydney.
(1)That the child [M] born [in] January 1994 live with the husband.
(2)That unless otherwise agreed between the parties, the wife shall spend time with the child as follows:
(a)every alternate weekend from 6.30 pm Friday to 5.30 pm Sunday and until 5.30 pm Monday when the Monday is a public holiday or a pupil free day;
(b)for one half of each school holiday period as agreed between the parties or, failing agreement, for the first half of school holidays in odd numbered years and the second half of school holidays in even numbered years, the school holidays being deemed to commence at 6.30 pm on the day the school term finishes and to conclude at 5.30 pm on the day before the child is again required to attend school and, for this purpose, a pupil free day is deemed to be part of the school holiday period;
(c)in even numbered years between 4.00 pm 25 December and 4.00 pm 26 December;
(d)for four hours on 3 January (the child’s birthday) if the wife is not otherwise spending time with the child pursuant to Order 2(b), unless the child is away on holidays;
(e)that the wife spending time with the child be suspended as follows:
(i)for four hours on 3 January (the child’s birthday), unless the child is away on holidays;
(ii)in odd numbered years between 4.00 pm 25 December and 4.00 pm 26 December.
(f)that the wife spending time with the child pursuant to Order 2.1 be suspended during school holidays.
(3)That unless otherwise agreed between the parties and apart from the wife spending time with the child pursuant to Order 2(d) the wife spending time with the child pursuant to these Orders be implemented by the wife collecting the child from the husband at [F] at the commencement of the wife spending time with the child and the wife returning the child to the husband at [F] at the conclusion of the wife spending time with the child.
(4)That unless otherwise agreed between the parties the wife spending time with the child pursuant to Order 2(d) be implemented by the wife collecting the child from the husband at the husband’s residence at the commencement of the wife spending time with the child and the wife returning the child to the husband at the husband’s residence at the conclusion of the wife spending time with the child.
(5)That unless otherwise agreed between the parties when the child lives with the husband for four hours on 3 January pursuant to Order 2(f) the husband collect the child from the wife at the wife’s residence at the commencement of the four hours and the husband return the child to the wife at the wife’s residence at the conclusion of the four hours.
(6)That, unless otherwise agreed in writing between the parties, the parties do all acts and things necessary to ensure that the child attends and continues to attend [H] School.
(7)That both parties be restrained from causing the child to live outside of the area being: Newcastle City Council, Wyong City Council, Port Stephens Shire Council, Maitland City Council and Singleton City Council.
(8)That the parties have equal shared parental responsibility for the child.
(9)Costs.
In the alternative, should [the mother’s] situation be such that a shared care arrangement is reasonably practicable then:
(10)That during school term:
(a)The child [M] born [in] January 1994 live with the husband as follows:
(i)during week one from after school Wednesday until the commencement of school the following Monday;
(ii)during week two from after school Wednesday until the commencement of school on Friday.
(b)The child live with the wife at all other times.
(11)That, subject to Order 3, during school holidays the child live with each of the parties for one half of the school holiday period as agreed or, failing agreement, as follows:
(a)In even numbered years with the husband for the first half of the school holiday period and with the wife for the second half of the school holiday period.
(b)In odd numbered years with the husband for the second half of the school holiday period and with the wife for the first half of the school holiday period.
(12)That notwithstanding anything else in these Orders:
(a)That in even numbered years the child live with the wife from 4.00 pm 25 December to 4.00 pm 26 December.
(b)That in odd numbered years the child live with the husband from 4.00 pm 25 December to 4.00 pm 26 December.
(c)That on 3 January (the child’s birthday) the parent who the child is not living with spends four hours with the child (unless the child is away on holidays).
(13)That, unless otherwise agreed in writing between the parties, the parties do all acts and things necessary to ensure that the child attends and continues to attend [H] School.
(14)That both parties be restrained from causing the child to live outside of the area being: Newcastle City Council, Wyong City Council, Port Stephens Shire Council, Maitland City Council and Singleton City Council.
(15)That the parties have equal shared parental responsibility for the child.
(16)Costs.
At the commencement of the hearing the mother also submitted Minutes or Order in her counsel’s Case Outline. These are set out below:
(1)That the child of the marriage [M] born [in] January 1994 (“[M]”) live with the mother.
(2)That [M] spend time with the father:
(a)during school terms commencing first weekend of each term from 7.30 pm on Friday until 5.00 pm on Sunday in alternate weeks (extending to 5.00 pm on Monday on pupil free days) but excluding the weekend which incorporates Mother’s Day;
(b)in even numbered years for the first half of the holiday period at the end of terms 1, 2 and 3 and in odd numbered years for the second half of those school holiday periods;
(c)each year in Sydney from 2.00 pm on Christmas Day until 7.00 pm on Boxing Day:
(d)for a period of 3 weeks in each Christmas school period, as agreed in writing by the parties, and in the absence of agreement commencing at 10.00 am on 7 January;
(e)for a period of 4 hours on [M’s] birthday;
(f)for the weekend which incorporates Father’s Day commencing at 7.30 pm on Friday and concluding at 8.00 am on Monday;
(g)on one evening per week, in Sydney, in the event that the father is required to stay overnight in Sydney midweek in relation to his employment, from 4.30 pm on one school day until the commencement of school the next day providing the father has given the mother not less than 4 days notice by telephone call to the other;
(h)such other times as agreed by the parties.
(3)That [M’s] time with the father be implemented by the mother delivering [her] to him at the […] Shopping Centre [T] at the commencement of each period of time and by the father returned her to the mother at the same location at the conclusion of each period of time provided that in relation to order 2(c) and (e) the father shall collect and return [M] from and to the home of the mother in Sydney and in relation to 2(f), the father shall deliver [M] to school on Monday morning.
(4)Costs.
The evidence
The father relied upon his affidavit sworn 20 November 2006 and his oral testimony.
The mother relied upon:
·her affidavits filed 11 October 2006, 26 October 2006, 20 November 2006 and sworn 11 December 2006 as well as her oral testimony.
·Affidavits of Mr L (her brother) filed 20 November 2006 and 14 December 2006 and his oral testimony.
·Affidavit of Mrs L (her sister-in-law) filed 14 December 2006 and her oral testimony.
·Affidavit of Mr W filed 20 November 2006. Mr W was not cross-examined and I accept his evidence.
·Affidavit of Mrs F (her mother) filed 20 November 2006. Mrs F was not cross-examined and I accept her evidence.
As M was nearly thirteen years old, on 23 October 2006 the Court ordered a family report so as to hear her views concerning her parent’s proposals. The report commenced on the same day it was ordered. Because the parties were at court and M was at school, her maternal uncle and aunt, Mr and Mrs L collected her. Later that day a Family Consultant, Mr C, interviewed the parties and M. Mr C is a psychologist, employed by the Court. He holds a Bachelor of Science, majoring in Psychology, a Graduate Diploma in Health Science majoring in Rehabilitation Counselling and a Masters of Applied Psychology. By reference to Mr C’s qualifications and professional experience, he is well qualified for the task requested of him.
Mr C was cross-examined at some length. At the end of his cross-examination, his recommendations and opinions remained as outlined in his report dated 25 October 2006[1]. Concerning the ultimate issues, Mr C made the following observations and recommendations[2]:
[1] Exhibit “D”
[2] At paragraph 33
“[M’s] expressed views are her own views and have not been unduly influence by any other party.
[M’s] views are reasonable and practical.
[M] is of the view that she wishes to live predominantly with her mother in Sydney, commence year (repeat year 7) at [L] Girls School in 2007 and spend time with her father on alternative weekends and for half of all school holidays.
Given her age and developmental maturity, [M’s] views should be given very considerable weight.
[M] spend a majority of time with [her father] from as soon as [her mother] relocates to Sydney to the end of the 2006 school year along the lines of [M] living predominantly with [her father] and spending time with [her mother] on alternative weekends.”
For reasons discussed later Mr C’s recommendations and opinions attract significant weight.
As well as the Family Report both parties tendered documents.
The father’s circumstances
The father lives in the former matrimonial home at S which has been the family home since about 1997. Other than when M is with him, the father lives alone. He is employed as Manager of an energy outlet, a position he has held since 1995. The father earns $252,686 per annum. His employment is secure and if he wishes to, the father is able to continue in his employment indefinitely.
The father could easily obtain better paid work elsewhere. With reasonable frequency, he receives invitations to apply for other CEO positions. For example, relatively recently he was invited to apply to head Tasmanian Hydro. Similar positions have become available in Western Australia, Victoria and Queensland. The Chief Executive Officer position at another energy outlet is shortly becoming available. This location is closer to Sydney. In his present employment, the father has a position he enjoys and finds rewarding. Presently, he is engaged in high level discussions with government and local authorities concerning water and energy projects in the H region. Although the precise nature of these ventures required his confidentiality, I accept that the father enjoys and contributes significantly to these ventures and that he is keen to remain involved with them.
The father said his employment is not transferable to Sydney, whether with his present employment or elsewhere in the energy industry. He explained that his particular expertise lies in energy generation and managing energy outlets. There are no energy outlets in Sydney. This evidence was teased out and the father agreed he could bring his expertise to other large companies concerned with power generation, directly or via a consultancy, for example KPMG. These and similar opportunities would be available to him in Sydney within the private and public sectors. In any of this style of employment, the father anticipates earning a considerably greater salary than he presently earns. Notwithstanding the financial benefits moving away presents, even before separation the father elected to stay put. In addition to job satisfaction, the father was and is motivated by family considerations.
The father’s place of employment is near U, about a twenty minute drive from S. Most mornings, the father left home at about 7.45 am and returned in the evening at about 7.00 pm. At least one night per fortnight he stayed overnight in Sydney for work. Since separation his employer created an additional executive position, the effect of which has been to give the father greater flexibility with his hours of work. Since January 2006, on Wednesdays and alternate Fridays, he has been able to leave work by 3.30 pm so as to meet M off the school bus at 4.00 pm. However as the evidence reveals the father has not always been able to meet M from the school bus after school. On Thursday mornings he drops M at the school bus at 7.20 am. The father has accrued over 40 weeks long service leave, which when added to his four weeks annual leave and five weeks accumulated annual leave, means he is able to take holidays for most of half of M’s school holidays. It also means that the father had the opportunity to spend almost one additional year with his family on fully paid leave but has not done so. If the father is unable to take leave to which he is entitled, he has made arrangements with a number of H School parents for assistance with M’s care. These parents are identified in his affidavit[3] and include parents of some of M’s closest friends. In the unlikely event all of these arrangements fall through, the father has the option of M spending time in vacation care at S.
[3] At paragraph 98
Through, an employment agency in S, the father has engaged Ms G to assist him with M’s care. Ms G lives in S and is available to collect M from the school bus and supervise her in the family home until the father arrives. If the current parenting arrangements continue, the father does not anticipate requiring Ms G’s assistance with any great frequency. Because of his work commitments, if M lives with him half or fulltime his need for Ms G is greater. As the father’s schedule for the week commencing 13 November 2006 reveals, if M lives with him fulltime, he is able to care for her until she leaves on the school bus at 7.20 am. Other than alternate Fridays when he arrives home at 4.00 pm, M participates in after school activities with the school or is supervised by Ms G until about 5.15 pm.
The father has a 24 year old daughter, L, by his first wife. L lives with her partner in a home her mother owns in Sydney’s southern suburbs. She holds Bachelor degrees in Law and Commerce. The father and his first wife separated when L was five years old and she lived thereafter with her mother. Within an essential structure of alternate weekends and half school holidays, the father maintained a close relationship with his elder daughter. When L was 16 years old, following a contretemps with the mother whilst the family holidayed on Lord Howe Island, L reduced the amount of time she spent with her father. Their relationship has repaired and since separation the father sees her regularly. L’s partner has three children who live at S with their mother. On a majority of weekends, L and her partner are in S. When M is with him, she almost invariably sees her older sister.
The father is Anglican but does not practise any religious faith. When M was born he deferred any decision for her formal adoption of any faith. It was his preference that when she is old enough M decide what faith, if any, she wishes to embrace. He is concerned her present desire to adopt her mother’s Roman Catholicism is motivated by her mother’s pressure rather than his daughter’s own belief.
The father has a sister who lives in Sydney with her husband and their adult children. They are close and indeed his sister accompanied him throughout this hearing.
The mother’s circumstances
In early November 2006 the mother moved to Sydney. She has leased a three bedroom home at J for six months. This is a brick and tile dwelling for which the mother pays $400 per week rent. Other than when M is living with her, the mother lives alone.
In October 2006 the mother resigned from her position as a Manager at a nearby Council where she was earning $72,000 plus superannuation. In November 2006, the mother commenced employment at S College at western Sydney. She commenced her position at S College on a salary of $100,000 per annum, inclusive of superannuation. This comprises $91,000 salary and $9,000 employer superannuation contribution. She will shortly undergo a salary and performance review and anticipates a modest salary increase. The father agrees with the mother’s contention that her career prospects in Sydney are superior to those in the H region.
S College is approximately 10 kilometres from the mother’s home. The mother drives to and from work, with her journey being approximately 15 minutes in each direction. The mother works from 8.30 am until 4.30 pm, Monday to Friday. Although the mother originally proposed M attend L College at northern Sydney or S College, she now proposes M attends S College. This means M will travel to and from school with her mother. After school, M will participate in school based sports and on those afternoons when she is not so engaged, she will be supervised at the school library until 4.30 pm when she and her mother will drive home together.
The mother has four siblings, with her two brothers living in Sydney. She is particularly close to her brother Mr L who is 42 years old. He lives with his wife S and their two children, J aged four and a half years and D aged two and a half years. They live at D, which is nearby to the mother’s home. With his extended family spread across Sydney and in Brisbane, Mr L’s home has tended to be the focal point for family celebrations such as Christmas and birthdays. Apart from seeing the parties and M on these occasions, Mr L regularly saw his sister and M at their late father’s Gold Coast home during Christmas school holidays. Because of work commitments, the father rarely holidayed with them. M is very close to Mr L’s children and delights in their company. M relishes her cousins’ joy on Christmas mornings when they unwrap presents.
Until her grandfather’s death in February 2006, he and M were very close. She is close to her maternal grandmother. Approximately 12 months prior to his death, the mother’s father was diagnosed as suffering a terminal illness. Mr L was a devout Roman Catholic and in the period before his death, the mother recommenced practising her Roman Catholic faith. M saw the comfort her grandfather and mother derived from their faith and became increasingly interested in it. Following her grandfather’s death, M says she wishes to become a Roman Catholic. The mother denies she has inculcated M with her views and says M’s preference is age appropriate and is a logical and reasonable response to her grandfather’s death.
In late December 2005 the mother met Mr W. They commenced going out together in January 2006. Mr W is a 49 year old civil engineer who lives in a home he owns at P. Mr W has three sons whose care he shares with his former wife. They are O aged 18 years, T aged 16 years and A aged 13 years. Mr W’s sons live with him three or four nights each week. M met Mr W in February 2006 and sees him approximately monthly. M gets along well with A, who is the child with whom she has had most contact. Mr W and M enjoy a companionable relationship and she often talks to him about her sporting interests and school activities. The mother and Mr W have no current plans to cohabit and it is unlikely they will do so in the short term.
The relevant law in parenting cases
Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exists reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.
Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective points the way to an optimum outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.
1. The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance.
Having considered the primary considerations, the court must take into account the thirteen additional considerations set out in s 60CC(3). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG. Ultimately the weight attached to each factor is a matter for the court’s discretion.
The sequence of determining parenting orders is important. If the court is satisfied that a child’s parents are to have equal shared parenting responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA). In the context of s 65DAA 'consider' means a consideration tending to a result, or to consider positively the making of an order. Goode and Goode [2006] FamCA 13[4]6.
The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:
(1)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(2)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(3)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The child’s best interests remain the overriding consideration.
Where neither concept delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above. Similarly where the Court has decided against maintaining equal shared parental responsibility s 65DAA considerations do not apply.
Determining the child’s best interests
The parties agree they will have equal shared parental responsibility for M. They also agree that it is important M has a meaningful relationship with both of her parents. What they cannot agree is how this is to be achieved. Concerning school holidays, there is general agreement M should spend half of her holidays with each parent. The mother says that if the father wishes to, she is content that he spends more than half of the school holidays in particular instances. If the mother and M live in Sydney, the father says he will be denied a meaningful relationship with his daughter. This is because he says he is only able to spend time with her each alternate weekend during school term. The existing arrangement whereby M spends Wednesdays with him will no longer be practical and he is thus deprived of a continuing opportunity to participate in her education and other aspects of her day to day life.
This raises for consideration the meaning of the term “meaningful relationship” defined in s 60CC(2)(a). Meaningful is defined in the Concise Oxford Dictionary as ‘1. full of meaning; significant 2. logic, able to be interpreted”. In a family law context the former definition is apt. The words used do not define the amount of time a child spends with a parent. As the notation to the provisions reveals one of the provisions purpose is to promote the importance of s 60B objects. The words are qualitative and indicate different formulations for different situations will constitute meaningful relationships. In this sense they are both contextual and directive. In essence these words identify that a court must give real weight and prioritise the benefits to a child having both of their parents significantly involved in their lives.
Later in these reasons I discuss the nature of each parties relationship with M. At this point it is sufficient to record that she presently enjoys healthy and loving relationships with both parents. Given each parties proposals I am satisfied that within the range of options available to me, M will continue to enjoy meaningful relationships with both of her parents.
There are no allegations of family violence, abuse or neglect. Section 60CC(2)(b) issues thus do not arise.
Both parents agree M’s views are important. Concerning her views favouring relocating to Sydney, for reasons discussed later, the father says the Court should approach these cautiously. By s 60CC(3)(a) where a child expresses views about his or her welfare, the child’s views must be considered together with any factors the Court feels are relevant to the weight given to the child’s views. Previously, the Family Law Act referred to a child’s “wishes”. The new terminology appears to be a response to concerns expressed by academics and others that the word “wishes” potentially trivialises a child’s opinion on mattes concerning the child’s welfare. It some quarters it was perceived as having a narrow rather than broad ambit.
It does not appear that new terminology changes the substantive law concerning the manner in which the Court should treat a child’s statements. The Full Court of the Family Court considered this issue in R v R Children’s Wishes (2000) FLC 93-3000. Their Honours cited with approval the following statement of principle drawn from the joint judgment of Fogarty and Kay JJ in H v W (1995) FLC 92-598. “The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children.” Once a child’s views are established, the next part of the exercise requires analysis of the views, including any factors such as the child’s maturity or level of understanding. This is followed by a balancing exercise measured against other factors relevant to the child’s welfare. The process is described thus:
“There are many factors that may go to the weight that should be given to the wishes of children. These will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately, it is a process of intuitive synthesis on the part of the Trial Judge laying out all of the evidence relevant to the wishes of the child and applying it in a commonsense way as one of the factors in the overall assessment of the child’s best interests.”
See also CW v W [2006] FamCA 387.
From discussion with each of her parents, M understands their respective positions concerning her future care. She knows her mother believes moving to Sydney is desirable and that her mother wants M to live with her. M understands moving to Sydney involves changing schools and possibly repeating year 7. M knows her father does not want her to move to Sydney and wishes her to live with him. She understands her father’s proposal means she can continue at H School, where there is no suggestion she would repeat year 7, and maintain easy contact with her friends. Living with her father means living in the home she has known most of her life. M has told her mother she wants to move with her to Sydney and is excited by the prospect. In her discussions with her father, M has told him she wants to live with her mother in Sydney. M has never told her father she wishes to live with him at S. Even after her mother left for Sydney and M had the chance to live with her father full time, her stance favouring living with her mother in Sydney has not wavered.
On 23 October 2006, the parties attended Court in relation to the mother’s interim parenting application. Although the parties may have anticipated the Court ordering a family report, neither anticipated an order would be made that day or that any interviews would commence immediately. M knew that her parents were going to court on Monday 23 October 2006 and understood a decision was likely that day concerning where and with whom she would live. The weekend immediately preceding 23 October 2006, M spent with her mother and did not see her father. M’s information concerning her parent’s court attendance on 23 October 2006 came from her mother and was limited to the possibility of a decision being given. M went to school on 23 October 2006. To everyone’s surprise, after the family report was ordered, interviews were scheduled that afternoon. Given the potential importance of M’s views, there was a discussion with the presiding judge concerning how M could be brought to the interviews without the process of doing so potentially contaminating her interview. Mr and Mrs L accompanied the mother to court. It was agreed they would collect M from school and bring her to Newcastle. Mr and Mrs L undertook not to speak to M concerning the details of the case or in any way attempt to influence her thinking.
Mr and Mrs L arrived at H School at approximately 12.30 pm. Without giving M any reason for doing so, the administration secretary called M to the office. When M entered and saw her aunt and uncle, she started crying and said something like: “What’s happened, aren’t they going to let me go with mummy?” This is a spontaneous and unequivocal demonstration of M’s genuine desire to live with her mother. Whatever complaints the father raises about events later in the day, M’s distress is obvious even before meeting her mother later in the afternoon. It took Mrs L some time to calm M down. She explained they had been asked to collect M from school so that she could be interviewed by a counsellor. Mr and Mrs L explained to M they were unable to discuss with her what was happening at court. On the way back to Newcastle they stopped at McDonalds for lunch. Upon their arrival in Newcastle, they joined the mother for afternoon tea at a Café. Whilst at the café, the father entered the café. He saw the foursome and observed the mother talking to M in an animated way. The father says he overheard the mother say to M: “You must make sure”. When the mother looked in his direction, the father says she stopped talking. He does not know if she saw him. The father then left.
The mother, Mr and Mrs L all deny having any discussion with M concerning the afternoon interviews. Only Mr L saw the father enter the café. The mother may have glanced in her husband’s direction but she did not see him. The conversation at the table related to a headline in the newspaper Mrs L was reading. M asked a question regarding article, which concerned the death of a Higher School Certificate student, and discussion developed between all four concerning the importance, but not over importance, of the Higher School Certificate. I was impressed by Mr and Mrs L and have no difficulty accepting their evidence concerning the discussion at the Café and that they abided the undertaking given earlier in the day. Their evidence corroborates the mother’s denial that she discussed M’s interview with her. Although none of the three adults present recalls the mother using the words the father says he overheard, it is nonetheless possible she did use these apparently innocuous words and has forgotten doing so. If she did, the context is completely unrelated to M’s interview with Mr C.
By having afternoon tea with M and potentially, even if not actually, discussing the family report interviews with her, the father says the mother tainted the family report process and contaminated M’s views. Accordingly he submits M’s views expressed to Mr C should be discounted. This is irrespective of their discussion. With respect, this is a submission I do not accept. If M was a much younger child there may be more force to the proposition that the parent who brings a child to interview has a more immediate and perhaps pervasive influence over the child during the interview process. At nearly 13, these subtle influences are highly unlikely to have such an impact upon M. The father’s submission does not sit comfortably with his contentions concerning M’s maturity and intelligence.
Before Mr C interviewed M, he spoke with the father. The father explained his concerns that both the mother and Mr and Mrs L “had inappropriately influenced [M] so that [M] would report her mother’s views as if they were [M’s] views”. Forewarned, Mr C gently “grilled” M in order to satisfy himself concerning the integrity and strength of her views. Mr C reports: “[M] indicated that she wanted to live with her mother and see her father on alternative weekends and for half of the school holidays”. He said M was aware of the proceedings and had a good understanding of why she had been asked to attend court. M informed Mr C she had not spoken with anyone about the events of the day or the interviews, “apart from that someone at the Court wanted to speak with her”. M told Mr C she had previously spoken with a court counsellor as part of child inclusive mediation and from this had a reasonable idea about what this process may involve. So as to assist M adjust to her parent’s separation, the mother arranged for M to attend private counselling, which has continued for some time. By all accounts M has found this counselling useful and it has helped her put her feelings into perspective and think through with an independent third party those family matters which have concerned her. With these two apparently reassuring experiences of counselling/mediation M approached her interview with Mr C in a positive frame of mind and in the expectation this afforded her an opportunity to express her thoughts and feelings freely with a person who was likely to treat her respectfully while simultaneously reality checking her statements.
After M expressed a clear preference for living with her mother in Sydney, Mr C questioned her “from a number of angles and on a number of occasions about this. On each and every occasion and irrespective of how the discussion was framed, [M] was totally consistent in her responses and statements”. M explained that after their separation, her parents gave her options “about her living arrangements and how she might see both of her parents”. Both parties agree this is correct. M told Mr C she has always been very close to her mother. He says: “It was not particularly difficult for her to indicate to her parents that she wanted to live with her mother and see her father on alternative weekends and on each Wednesday”. Her reference to Wednesdays related to the period after separation and not if M is living in Sydney. Concerning her rationale Mr C reports M said she is “more comfortably (sic)” with her mother and that her mother is “more friendly” and that she “has spent more time with her mother when growing up”. This later comment is consistent with the mother’s evidence, which I accept, at paragraphs 6 through to 32 of her affidavit filed 11 October 2005.
Concerning the 18 months since her parents separated M says these arrangements have generally worked well and explained that she has seen as much if not more of her father than when the family was intact. Given the father’s working hours and his failure to take leave to which he was entitled this is factually correct. This is a finding which attracts considerable weight.
Concerning the 2006 arrangements involving regular Wednesday nights, Mr C says: “[M] spoke freely and positively about the time she does spend with her father and advised that while she enjoyed the time, she does find the Wednesday to be ‘a bit of a hassle’ because she needed to have double sets of books and clothes”. With further probing by Mr C, M said that if she remains at H School she would be happy to continue Wednesday nights, as well as alternate weekends, with her father.
Partly to glean insight into M’s relationship with each of her parents and also reality checking her views concerning the ultimate issue, Mr C asked her about “what each of her parents would think if [M] stated that she wanted to spend more time with the other parent than she currently does”. M thought quietly for a few seconds and calmly replied that she “would sit down and talk about it with [her mother] and that [the mother] would probably agree to keep living at [N] and nothing much would change”. M told Mr C that the father would become angry. Mr C asked her why she thought her father would become angry. M became teary and Mr C reports “that [the father] had recently talked with her about the proposed move to Sydney and he had become angry and said you’ll regret it”. M told Mr C she felt upset by her father’s discussion with her and that the father’s comments were “rude and disrespectful” to her.
The father denies saying to M that if she moves to Sydney “you’ll regret it”. In a discussion with M before the first mediation session, he said to her: “Be honest and strong and you won’t regret anything in the future”. He says he has not been angry with M about the prospect of her moving to Sydney. This is not the only discussion the father and M have had concerning this issue. In their discussions, the father has fairly pointed out the pros and cons of the various available alternatives. From M’s perspective, her inability to persuade her father to accept her desire to live with her mother wherever that may be and attend school in Sydney is confronting and in all likelihood profoundly upsetting. Having listened carefully to the father’s evidence, it is likely that he presents his arguments in favour of his stance in an implacable, well constructed fashion. Although I accept he is not angry with M, I accept M genuinely feels upset by his stance and his failure to treat her genuine beliefs with respect. M’s concern her father would get angry probably reflects the force and substance of their discussions, rather than any overt displays of anger towards her by her father. Given the power imbalance, favourable to the father, it is understandable that M concludes her father would be angered by a reduction in the amount of time she spends with him.
M’s response to this discussion is revealing. In essence, M believes her mother will respond favourably to her taking a stance different to that which she knows her mother maintains. M’s perception is that, in effect, her mother would give way to her own desires in favour of advancing M’s genuinely held views. This is indicative of the child’s belief that her relationship with her mother strongly centres upon M’s welfare. M perceives their relationship is child focused and that her wishes and interests are respected and advanced. Although she loves her father dearly and knows he loves her, this discussion demonstrates M does not perceive her father treats her interests and wishes with the same respect as her mother. Emotionally, this discussion suggests M is more strongly connected with her mother and that this is a factor which influences her desire to predominantly live with her mother. It also influences her lack of concern about a reduction in the amount of time she spends with her father and satisfaction with an enduring relationship which centres upon alternate weekends and half school holidays.
When Mr C interviewed M, she enthusiastically discussed attending L School at northern Sydney. She repeatedly referred to L School as “my school” and was aware her enrolment application to L School had been accepted. In response to a letter from the Registrar at L School seeking the father’s consent to M’s enrolment, he informed the school he did not agree with M’s enrolment progressing any further. M knew of her father’s letter, the gist of which had been communicated to her, probably by her mother, as being “nasty”. Whilst I am not critical the mother kept M informed of the progress, or lack of it concerning enrolment at L School, giving M a somewhat loaded description of her father’s letter was inappropriate. The father submits here is more evidence of the mother’s undue influence upon M’s ability to form her own views concerning school. Even if it is, it is relatively inconsequential and does not detract from the integrity of M’s views.
M gave Mr C a detailed analysis of why she favoured changing schools. M had visited L School and spoke favourably of an older cousin’s experiences at the school, the advantages she perceives of attending a girl’s only rather than co-educational school and having religious rather than non-denominational focus. M knew of her mother’s desire that she repeats Year 7, partly for educational and partly for social integration reasons. The mother’s plans were all acceptable to M. By the time of this hearing, M had moved away from favouring L School in favour of S College. After the interviews with Mr C, M attended an open day at S College and told her mother this is where she wants to attend high school. In discussion with her mother, M explained that she liked the sporting facilities at S College, in particular a rock climbing wall. In an attempt to trivialise M’s choice of school, there was considerable focus upon her reference to the rock climbing wall. Focusing purely upon this discussion detracts from the totality of M’s reflections and discussions concerning high school. When one stands back and considers the various discussions reported in the parties’ and Mr C’s evidence, it is apparent M wishes to attend a school which enables her to live with her mother, an all girl’s school in preference to a co-educational school, a Catholic school and one which is in Sydney. These are all age appropriate and rational considerations.
That M’s views concerning high school warrant considerable weight is also apparent in her balanced approach concerning H School. M is settled and happy at H School. She is well integrated socially and according to the Head of the Middle School, Ms B, and her school reports, performing satisfactorily academically is most subjects. In advancing L School and S College, M does not criticise H School. In advancing the Sydney educational alternative, M is aware of the many advantages available to her at H School and knows that on a day by day basis, she will leave behind well established friendships. She is not blind to the effort involved in establishing friendships at a new school and appreciates she will have periods of loneliness when settling into a new school. If the mother had embarked upon a course designed to manipulate M in favour of her proposals, I would have expected at least mild criticism by the child of aspects of her present school. The fact that there are none suggests two things. Firstly, whichever alternative is selected, M is likely to enjoy. Secondly, in their discussions with her on this issue, M’s parents have given her the information she needs to make an informed choice without inappropriately undermining the various options.
Not only is M well integrated socially at school, but also in her local community. Her ability to establish many and long lasting friendships in these settings suggests she will also be able to do so at a new high school. M is both thoughtful and gregarious and with the positive attitude she brings to S College, the difficulties inherit in change are not so great they should stand in the way of giving effect to her wishes.
M’s developing interest in Roman Catholicism is considered by the father as further evidence of the mother’s inappropriate influence over their daughter. In forming this opinion, the father does not appear to have considered the impact upon M of observing her grandfather’s spirituality and connection to Roman Catholicism or the child’s reaction to bereavement. Nor that M is at an age when many children are on the cusp of developing interest in religion and spirituality. Although this is more acute when children reach 14 and 15 years, because of M’s experience with her grandfather, her interest has arisen earlier. In her mother’s family, M sees religious expression centred upon Roman Catholicism. M’s only other experience of religion appears to be awareness that her father is Anglican but does not practice his religion. Mr C explored M’s views on religion during her interview. He reports: “[M] was quite assertive and explained that her mother was more religious than her father and that [M’s] view were more like her mother’s views and those of her mother’s family”. With her own developing interest in religion, M’s only experience of religious practise adherence comes from the L’s. Whilst M may have chosen her father’s Anglicanism or another religion, there is no evidence she has any experience of these religions in practise. The extent of her mother and the L family’s influence and M’s interest in religion, is that having seen it, M has been included to the extent she wishes. There is no evidence the mother or members of her family have attempted to inculcate M with their views. They have been accommodating and supportive rather than directional.
As a general proposition, I have no difficulty accepting that parents seek to guide and influence their children. Indeed it is a fundamental aspect of parental responsibility that parents guide their children in standards of citizenship, ethical and social mores. Ideally, children are enriched by exposure to ideas and experiences which eventually enable them to form their own world view and personal values. The parents have fulfilled these parental responsibilities. In doing so each has influenced M and is instrumental in their daughter being the person she is today. The fact that M is a thoughtful, articulate and developmentally mature child is proof positive of the beneficial impact of her parent’s various influences. The father posits that the mother’s influence upon M is so strong that M has not been able to form her own views, or if she has them, has been unable to give them expression to him and the family reporter. Whilst I accept M’s alignment in her expressed views reflects a stronger attachment to her mother than her father, I do not accept M’s views lack integrity. I strongly agree with Mr C that M’s views are genuinely her own and warrant significant weight. This is one of the pivotal findings of this case.
I am required to consider the nature of M’s relationship with her parents, grandparents and other significant people. In her affidavit filed 11 October 2006, under the headings ‘History of Arrangements for Care of [M] Prior to Separation” and “Arrangements once [M] Commenced School” the mother gives a detailed and accurate account of M’s care and routine before the parties separated. The father does not challenge the mother’s contention that prior to separation she was primarily responsible for M’s day to day care. He wishes to emphasise that he too played a valuable role in their daughter’s care and that in a relationship sense, there is little to distinguish his and the mother’s relationship with their daughter. He does not cavil with the mother’s evidence referred to above.
Following six months maternity leave, the mother returned to TAFE teaching. M went into day care one day a week, increasing to two days in January 1995. From January 1996 she attended long day care three days a week and in 1997 commenced day care five days a week. M started full time day care when, in 1997, the mother changed jobs and started full time work with S Council as a Manager. The mother was actively involved in M’s out of home care arrangements and for two years was secretary of the parents committee at the child care centre. She took M to all her violin, netball, jazz ballet and swimming lessons. The father highlights his role in taking M to and from day care but does not cavil with the mother’s evidence that over the three years of 1997, 1998 and 1999, she collected and returned M to C’s Children’s Centre 958 times compared to his 12 times.
In January 1999 M started school at S Public School. This school was three blocks from the mother’s office. This proximity enabled the mother to attend M’s school functions, including concerts, excursions and sports days, events which the father was rarely able to fit into his busy work schedule. In 1999 and 2000 the mother was President of the Parent Committee at C’s Children’s Centre, where M attended before and after school care. Because the father was too tired, she always took M with her to evening meetings at the centre. For four months during 2000 the mother took M to speech therapy in C. So as to cut down on the travel, the mother undertook phonics program accreditation which enabled her to address M’s speech and literacy difficulties at home. Following meetings with the school concerning its ability to assist M’s progress in these areas, the parties accepted their advice M should attend H School. When M started there in 2002, she joined year 3.
Between January 1997 and October 2005 the mother took 21 days carers leave to mind M when she was ill. There is no evidence the father took any and I infer he did not. In January 2002, 2003, 2004, and 2005 the mother took four weeks leave without pay to care for Ma. There is no evidence the father took any similar leave and I infer he did not.
The mother’s role involvement with M primarily occurred on weekdays from 5.30 pm at the earliest and on occasion he took her to the school bus. Nor does he challenge Ms B’s information given to Mr C that the school had much greater contact with the mother than with him.
M confirmed with Mr C her mother’s significantly greater role in her day to day care prior to separation and it was apparent to Mr C that at the time her parents separated “[M] clearly had a strong primary attached to her mother”. The overall effect of the evidence is that day in and day out until separation, the mother was the parent overwhelmingly responsible for M’s care and, more than any other person, the person from whom M derived physical and emotional nurture.
The mother does not seek to diminish the father’s claim that he was an important part in M’s life. She agrees he shares M’s interest in mathematics and where necessary, assisted her with homework. The father attended parent and teacher nights and weekend sports. His work commitments stood in the way of spending as much time with M during school holidays as the mother. The totality of the evidence satisfies me that at separation M had a strong primary attachment with her mother and a loving and healthy relationship with her father. Her relationship with her mother was central to her sense of well-being and pivotal to her overall adjustment.
Since separation M’s attachment with her mother has changed. Mrs B told Mr C that in the six months or so following separation, M was tearful and experienced difficulty leaving her mother. Until approximately ten- months prior to the hearing, M required support and assistance from the school so as to go to her father rather than her mother. Ms B explained M evidenced anticipatory anxiety ahead of weekend or Wednesday evenings scheduled with her father and needing encouragement from school to both manage her anxiety and spend time with him. The mother corroborates Ms B’s report and explains that this was one of the reasons she sought counselling for M. Over the last six months there have been no signs at school of M’s anticipatory anxiety. Mr C opines that this demonstrates “[M’s] attachment to her mother has appeared to weaken over the last 12 months and particularly over the last six months as she has continued to mature and this is expected and is important to her healthy development into and through her fast approaching teenage years”. Although appropriately weakened, M’s relationship with her mother is still her strongest relationship and is likely to remain so in the long term. The gradual lessening and ultimate cessation of M’s anticipatory anxiety at spending weekends and Wednesday evenings with her father indicates greater confidence and comfort in her relationship with him. Since separation the father has made significant efforts to spend more time with M than he did previously. This has been beneficial to their relationship and given it a stronger foundation than may have otherwise been the case.
Mr C said M’s relationship with her father is now sufficiently strong that she will cope living with him and spending alternate weekends and half school holidays with her mother. Whilst I accept M would cope with such an outcome, I do not accept she would be happy with it. Although coping with this outcome, I consider there is a real risk M would resent her father and to an extent, the efforts he has put into their relationship since separation, could be wasted. Basically, that M’s resentment at the outcome may well interfere with her willingness and ability to enjoy her relationship with her father. This is a finding to which I attach considerable weight. On the other hand, if M resides with her mother she will cope and be happy with the outcome. The child’s reaction to such an outcome will not compromise her relationship with either parent. This is a finding to which I attach considerable weight.
If M lives with her mother in Sydney, she has easier access to Mr and Mrs L, their children and her maternal grandmother. Whilst M would enjoy and benefit from increased access with these family members, she has established strong relationships with all of them whilst living at S and N. The benefits are not such that this issue attracts weight.
The mother says she will happily facilitate contact between M and L, as well as with the father’s sister. I accept she will do so. However, it is reasonably likely that the father’s family may prefer to have their dealings with M managed by her father. Whether M lives in Sydney, S or N, there is virtually no difference to the frequency and extent of contact she may enjoy with her father’s family. The only variable arises if M lives with her father, she may see more of L than each second weekend. Whilst M may enjoy seeing more of L, in a relationship sense the impact is likely inconsequential. Whatever the outcome, I am satisfied that M will continue to enjoy a strong relationship with L and good relationships with those members of the father’s family with whom she presently has contact. The issue does not attach any weight.
By s 60CC(3)(b) I must consider the parties’ willingness and ability to facilitate and encourage a close and continuing relationship between M and the other parent. The mother raises no concerns about the father’s willingness and ability to facilitate and encourage her relationship with M. The father, on the other hand, says the mother has been unduly restrictive concerning the amount of time he has been able to spend with M and that on numerous occasions she has allowed M to stay overnight in S with friends without giving him the opportunity to care for or spend time with their daughter.
At separation, the mother moved into a rented home around the corner from and within easy walking distance of the former matrimonial home. She hoped that although separated, she and the father would achieve an easy parental relationship for M and that M could move easily between her parent’s homes. Quite quickly it became clear that the parents had different expectations concerning M’s care. The mother proposed “a shared parenting arrangement”. The father agreed but interpreted shared parenting as meaning equal time for M with each of her parents. Anything less than equal time he says is evidence the mother does not facilitate and encourage his relationship with M. The father says: “For the first few months after separation I had little contact with [M].” This is not correct. With separation commencing in May 2005, the father spent time with M on 20, 22, 28 and 31 May. He saw her on 1, 3, 4, 18, 27, 28, 29 and 30 June 2005. In July 2005, he spent time with M on 1, 2, 16, 26, 28, 29 and 30. The father spent time with M on 10, 14, 16, 18, 21, 22, 23, 24, 25, 26, 27, 28, 29 and 31 August 2005. The mother offered the father the first week of the June 2005 school holidays which his work commitments meant he could not take.
On 29 August 2005, the father sent the mother an email[4] asking for 50/50 distribution of M’s time. He explained he is flexible as to how this was structured. In response, on 9 September 2005, the mother gave the father a calendar setting out the dates M was to spend with her father for the period to 31 December 2005. Pursuant to the calendar the father expected to have 57 of a possible 114 nights with M. He says: “The dates that [M] was due to spend time with me but did not do so were: 18, 23, 24 September, 12 October, 6, 25 November, 2, 3, 4 16, 17, 23, 24, 27, 28, 29, 30 and 31 December, a total of 18 nights”. At paragraph 9 and 10 of her affidavit filed 14 December 2006, the mother gives a detailed response to the reasons M did not stay with her father overnight and points out that in a number of instances the father’s evidence is wrong. The father does not explain that some dates were rearranged by agreement. For example, he did not stand in the mother’s way when she wished to take M to Daydream Island for one week during the October 2005 school holidays. In order to do so, M did not stay with her father on 12 October 2005. The father did not spend time with M on 16 November 2005 because he was in Sydney for work. The mother refused his request for an additional night at another time. 25 November is the mother’s birthday. M was with her father on 23 and 24 November 2005 and returned to her mother after school on 25 November 2005. The father says M should have come to him after school and returned later in the evening, to her mother at N. Having seen M in the morning, it is difficult to understand his insistence that he spend a few hours with M on Friday afternoon when in order to achieve this M had to travel such long distances. Although he complains about not having M for the weekend of 16 and 17 December 2005, the father agrees with the mother’s evidence that he had agreed M could have that weekend with her mother. On a number of the instances the father highlights, although M did not remain overnight, he spent time with her during the day. When M asked to return to her mother he agreed. At a time when Ms B describes M as emotionally upset at separation from her mother, with M’s anxiety about being with her father apparent even at school, it appears the father’s complaints about the mother’s support for his relationship with M do not withstand scrutiny. In a difficult situation the mother facilitated regular and frequent contact between M and her father. Had the mother implemented a strict 50/50 time frame, it is likely M would have found her parent’s separation even more difficult than she did.
[4] Annexure “A” to [the father’s] affidavit
The father agrees that “for most of 2006, [M] has stayed with me every second weekend from after school Friday to Sunday evening and generally one night (Wednesday night) during the week”. He missed out on seeing her on 24 and 25 April 2006. M wanted to attend this particular Anzac Day march with her mother in memory of her grandfather. On 27 April 2006 the father underwent surgery and at his request, the mother took M to visit him in hospital. Before the mother knew about the father’s operation, as an alternative to the Anzac weekend, she suggested M spend Friday 28 April and Saturday 29 April 2006 with him. M did not go to her father after school on 10 March 2006, but spent 11 and 12 March 2006 with him. The father agrees that on 19 April 2006 M attended a surf school at S with the H family. In addition to their regular face to face contact, the father speaks with M daily. When one stands back and considers the amount of time the father has spent with M since separation, I am satisfied his complaint that the mother has failed to facilitate and encourage his relationship with M is erroneous. To the contrary, the nature and extent of his time with M, which involved considerable effort by the mother evidences her strong encouragement and facilitation of their relationship. This is a finding to which I attach significant weight.
Section 60CC(3)(d) is particularly important. This subsection requires the Court to consider the likely effects of any change in a child’s circumstances. Both the parents’ applications involve significant change to M’s life. Ordering M to live with her father enables her to return to the family home, continue her education at H School, increases the amount of time M spends with her father and to continue local friendships and interests. Since separation the father has actively encouraged M’s local and school friendships. He arranged a birthday party in early 2006 attended by a number of M’s girlfriends. On weekends she is with him, M frequently sleeps over at a friends house or has a friend sleep at her father’s house. However these advantages also require M leaves her mother with whom she strongly wishes to live and thwarts her ambitions to live in Sydney and attend S College. As I have earlier explained, M perceives these changes considerably outweigh the advantages involved in her father’s proposals.
It is difficult to see how the father’s alternate scenario of equal shared parenting can be implemented if he remains in S and the mother lives in Sydney. S and the mother’s home are approximately 200 kilometres apart. M could not manage the travel required to attend school at H School from Sydney. Nor is it feasible for her to live week about in S and attend school at Sydney S. If the mother returned to N the distance between the parties’ homes reduces to about 120 kilometres. The distance from N to H School is about 80 kilometres and S to H School is about 50 kilometres. M manages the travel between S and the H School without difficulty. N to H School is longer and more problematic. So as to minimise and manage travel from N to H School, until the mother moved to Sydney, she and M stayed overnight in S at least one, usually two nights during the school week. Their basic arrangements were that they left home at 7.15 am with the mother delivering M at school at 8.15 am. She drove on to work and started work at 9.00 am. After school M caught a bus to Ms S’s home at W from where her mother collected her at 5.15 pm. If they returned to N they arrived home at about 6.15 pm. To lessen the travel, the mother and M stay two nights at Mrs F’s home at Y. On Wednesday M stayed overnight with her father. This is a demanding and somewhat chaotic arrangement for M and her mother. As a long term arrangement it is difficult to see how this promotes stability and provides a reasonably orderly existence. As school becomes more demanding and the amount of time M must devote to homework increases, it is likely she will find 560 kilometres every second week travel and 500 kilometres travel in the other week unreasonably burdensome. The imposition of this amount of travel may well compromise her academic achievements. In any event, the mother has left N and has no plan to return. Even if I was satisfied the mother’s alternate application delivered the best outcome for M, this option is not available.
The advantages to M of her mother’s position is that this enables M to live with the parent with whom she wishes most strongly to reside and gives effect to her desire to attend a girl’s school in Sydney. In her mother’s care, M’s physical and emotional well being is assured and this is the result with which M will be happiest. The key disadvantages are that M must change school, may repeat Year 7, will spend less time with her father during the school week and over time is likely to have less contact with the children with whom she is presently close. M has three school girlfriends to whom she is particularly close, some of whom have already visited her in Sydney. The mother says these friendships will endure and will not be lessened if M lives in Sydney. While both parents will nurture these friendships by giving M every opportunity to see her friends, by changing schools and communities the frequency of contact must lessen. M may well find the strength of these friendships diminishes, a prospect she does not welcome. However, she will form new friendships in Sydney and there is every reason to anticipate these will be as rewarding as those she presently enjoys.
Both parties speak positively about the facilities each school offers and accepts that at both S College and H School, M will receive an excellent, well rounded education. The mother’s opposition to S College is founded in his belief that change is undesirable and unnecessary. The mother’s concern about H School relates solely to her belief that M is not achieving the literacy standard of which she is capable. Compared to other subjects, M’s performance in literacy is lower and unsatisfactory. However, the evidence does not establish that M will achieve higher literacy levels at S College. If M is capable of performing to a higher standard in literacy, whether she attends S College or H School, her results are likely to be the same.
The mother says her concerns about M’s literacy partly explain her desire that M repeats year 7. However, when she completed L School enrolment form[5] the mother made no reference to these concerns. I do not accept this is an oversight on her part. Nor if M remains at H School does the mother suggest M should repeat. I consider it is more likely that although the mother is concerned this is not a motivating factor behind her belief M should repeat year 7. It is far more likely that she believes M will find it easier to establish friends and settle in at a new school if she does so in a large intake year. I have no doubt M will find it easier to make friends in an intake year rather than year 8. This is because children are looking to make friends and new groups are being formed. At year 8 friendship groups are established and it requires more effort from a new student to settle in. With a January birthday, M is young enough to repeat without being stigmatised. However, given her superior communication skills and gregarious personality repeating year 7 for predominately social reasons may well be unnecessary. If the issue remains contentious M and her parents should confer with the school and decide the issue in accordance with their advice. It follows that whichever option is decided upon, it is important M has the chance to commence at any new school at the beginning of the 2007 school term.
[5] Exhibit E
The father wishes to remain involved in M’s education, sports and see her during the school week. If she lives in Sydney he says this is more difficult and probably so difficult it is basically impossible. During the time M lived with her father, the mother drove to S during each school week for an evening meal with M. For three in four weekends she came to S. The mother says the father could see M midweek in Sydney if he chooses to. She points out that during cohabitation, the father stayed overnight in Sydney most weeks and on many occasions two nights. I agree this demonstrates that the effort involved in this travel did not overly bother him and from the perspective of effort is feasible in the future. The difference now, however, is that the father’s work no longer takes him to Sydney so often and he is required to spend more time at his place of work. The issue now is more his availability. Given the father’s evidence concerning arrangements made by his employer to give him greater flexibility at work I do not see why, if the father wishes to continue seeing M during the school week, at least each fortnight he could not drive to Sydney and see her at and after school. If he wished to avail himself of her offer, the mother is content to allow the father to stay at her home overnight, absenting herself whilst he is there. As an alternative, the father could stay overnight with L or with his sister. The distances between S and western Sydney are no so great that the father could not establish and continue an involvement at S College at least consistent with his involvement at H School.
For reasons discussed earlier, I do not accept the father’s contention that by allowing M to live in Sydney, this will have a deleterious effect on M and her relationship with her father. The most likely scenario is that allowing M to reside in Sydney with her mother will not affect M’s relationship with her father. This is a finding to which I attach considerable weight.
The father contends that if M lives in Sydney with her mother the practical difficulty and expense involved in M spending time with and communicating with her father is such that it deleteriously affects M’s right to maintain personal relations and direct contact with her father. I accept the probability that the father will not manage to visit M in Sydney every Wednesday during school term and that the amount of time they spend together on Wednesdays is likely to reduce by at least half. Friday afternoons will start slightly later and weekends must end on Sundays. Daily telephone calls will be more expensive, a factor which given the father’s financial circumstances is inconsequential. Even if M lived at N, the longevity of the Wednesday night arrangement is far from clear. Wednesday evenings have been achieved largely because the father insisted upon it, and in spite of M’s objections, her mother supported the father’s position. In M’s discussions with Mr C, there are signs M still resists Wednesdays with her father and as she gets older, it is likely to become more difficult for her parents to force her compliance. Thus, while I accept that during the school term, living in Sydney involves a reduction in the amount of time M spends with her father, because this accords with M’s wishes, does not damage her relationship with her father and she will still spend a considerable amount of time with him, this is not a factor which carries significant weight.
By s 60CC(3)(f) the Court must consider the parties’ capacity to provide for their daughter’s needs. The father contends he is better able to provide for M’s intellectual and emotional needs. It is his contention that the mother can tend to be self focussed, a fact allegedly apparent in her decision to move to Sydney. Although the mother does not need to establish compelling reasons for her decision to move to Sydney I need to explore her reasons in order to assess whether these reveal a disinclination to promote M’s relationship with her father.
Both parents are obviously intelligent and are strongly motivated to ensure M succeeds academically. The evidence does not support the father’s contention that he is better able than the mother to meet M’s intellectual needs. The mother has tertiary qualifications and to date, she has been far more actively involved in M’s education than the father. Although he may disagree with her stance that M has not performed well in literacy, he has not established that the mother has ineptly managed M’s education. The evidence strongly indicates the contrary and that under the mother’s primary guidance M’s educational and intellectual needs have been met to a very high level. Although the father is interested in M’s educational and intellectual needs, to date he has not demonstrated that he can be as involved with her schooling to the same degree the mother is willing to. I am not persuaded the father is as likely as the mother to continue the degree of involvement in her school M has enjoyed from her mother. This is a finding which weighs in favour of the mother’s proposals and against the father’s.
The mother’s desire to live in Sydney is motivated by three primary considerations. Firstly she wishes to ensure her and M’s financial security. To ensure an appropriate and adequate standard of living she says she needs to maximise her income earning capacity. Secondly she believes M will benefit from attending a girls school in Sydney. Thirdly by working in a school setting the mother is more available to supervise M out of school hours. A lesser consideration is that now that she is separated, she wishes to be closer to family and able to rely on their support. None of these are fanciful or selfish considerations. Even before they separated the mother was seeking to advance her career and pursuing employment in private schools. In 2004 she discussed with the father applying for a position as a manager at a Central Coast School. In May 2005 the mother applied for and was offered a managerial position at A College. At the father’s request she did not take up the offer. Having left S Council for X Council in November 2005, the mother achieved a salary increase according to the father from about $55,000 to $72,000 plus superannuation. This is a middle management position and there is no reason to doubt the mother’s evidence that her prospects of further advancement were remote. At S College the mother joins the executive team and has a modest salary increase. The father accepts her opportunities for advancement are greater in Sydney. In a far larger employment market the mother’s desires for advancement do not appear fanciful. I also accept her evidence that she will have further opportunities to increase her salary and also her financial situation. Living in Sydney, at least until the parties distribute their property, the mother will pay $400 per week rent. She has rented N out for $290 each week, after agents fees and expenses will usefully supplement her income. At N she can live rent free. While this option is cheaper and in dollar terms makes up for her increased salary, as I outlined earlier the travel involved living at N is unsustainable. The mother left S because she could not afford rental and other necessary living expenses on her S Council salary. Her attempts at locating appropriate rental accommodation in M came to nought. In these circumstances I am satisfied the mother’s decision to pursue career advancement in Sydney is both reasonable and financially appropriate.
Concerning her desire that M attends an all girls school, this appears to dove tail with her desire for greater financial security. Although the mother says this is a prime motivator the sense I have from her evidence is that while this is her preference it is a lesser reason. Nonetheless her preference reflects her genuine belief that educationally and socially M will benefit from making this change.
At S College the mother is more able to personally supervise M out of school hours. They will travel to and from school together and until the mother is free at 4.30 pm M will be supervised on the same premises. Having more time with her mother after school is likely to find favour with M and gives her mother the time and opportunity to oversee homework not completed at school as well as guiding M socially.
It is commonplace that following separation parents seek to come closer to close family members. I accept the mother genuinely seeks support and comfort from her Sydney family, which the Ls in particular will happily provide. While this is not a strong factor from the Court’s perspective, the relevance is that the mother’s desire to be closer to her family is not selfish and does not detract from her commitment to the father’s relationship with M.
With respect to the father it is difficult to distinguish between his desires and reasons for remaining at S and the mother’s desires and reasons for moving to Sydney.
M herself identifies a closer emotional connection with her mother than father. This is apparent from her discussions with Mr C and her strong wish to live with her mother. Because M identifies so strongly with her mother and is used to her mother being primarily responsible for her care, it would be most surprising if the situation was otherwise. The mother presented as an emotionally mature person with all the necessary skills required to meet her daughter’s emotional needs. Having done so throughout M’s life, I am satisfied that she is in the best position to do so in the future.
The father is also an emotionally mature person with all the necessary skills to meet his daughter’s emotional needs. A difficulty which arises in terms of his ability to do so comes from M’s preference to continue a lifetime relationship with her mother whereby her mother predominantly meets her emotional needs. If M lives with her father fulltime and sees her mother on alternate weekends, half school holidays and short additional periods, the risk that she will resist her father’s emotional nurture is high. It follows M may well emotionally flounder and to a considerable extent her emotional needs will be unmet. This finding attracts significant weight and weighs in favour of the mother’s position and against the father’s applications.
Both parents are genuinely committed to their daughter’s welfare and each takes their parental responsibilities seriously. At paragraphs 176 to 179 of his affidavit the father deposes that he is paying all expenses for the former matrimonial home and also N. He says he pays all school fees and child support as assessed by the Child Support Agency (CSA). Although the father says he has always paid child support, between June and September 2005 he paid none. Sometime before the CSA assessment issued the father started paying the mother $163 per week. When the CSA issued as assessment of $1,773 per month in October 2005 the father applied for a reduction. He completed his own calculations and paid the mother $652, the amount he believes mandated by the statutory formula. He paid this lower amount until a revised assessment issued for $774 in about February 2006. The father did not pay the earlier assessment at the amount assessed because he says his pre assessment payment mean he was in credit when the first assessment issued. As to school fees, property and related expenses, the father has seized the parties’ acquired saving, about $110,000. He uses these funds to pay joint as well as child related expenses. The later includes his costs of taking M skiing. The first the mother knew of this was during this hearing. The father cavilled with her counsels questions concerning the mother’s access to their joint savings. He pointed out she has withdrawn funds too. Pressed he conceded until he changed her access to the joint account she was able to withdraw $2,000. He retained $108,000. Although he agreed she could draw $25,000 so as to contribute towards her father’s hostel costs, when the mother asked for $10,000 to put towards her expenses he refused. Given his income and the fact that he resides in a home which is unencumbered, I do not understand why the father uses capital rather than income to meet M’s expenses. The father produced a schedule of payments made from the $110,000.[6] On any basis it is difficult to see any justification for his using these funds to pay for a skiing holiday with M, vet fees or computer memory stick. With respect to his evidence-in-chief, the father appears to have attempted to give a misleading picture concerning the extent of M’s financial support. Had the father been more generous in sharing with the mother their financial assets acquired during the course of their marriage, she may have been less concerned about her need to increase her earning capacity so that she could support herself, as well as contribute to M’s care. Given the situation which developed it is easy to understand her desire to improve her financial situation.
[6] Exhibit A
There are no family violence issues and no family violence orders.
There is no risk of exposure to family violence in either parents home.
Parenting proceedings are never final in the sense children and their parent’s circumstances change and consequently arrangements may need to alter. As far as possible courts make parenting orders which minimise the prospect of further litigation. Litigation is costly in emotional and financial terms and has the effect of standing in the way of parents and children moving on in their lives. Whichever outcome is ordered, it appears there is little prospect of further litigation. The father says the Court will be concerned that the mother may not comply with orders and it follows there is a risk of contravention proceedings. Order 5 of the orders required that “the parents will ensure that [M] remains enrolled at the [H] School only”. By completing M’s enrolment at S College, the father says that the mother contravened this order. I do not agree. The purpose of this order is to ensure that until these proceedings are finalised, M continued to attend H School. With the hearing in late December 2006, the mother needed to preserve M’s position at S College so that if she succeeded, the Court’s orders were capable of implementation. The mother’s actions in completing enrolment procedures at S College does not signal that there is a risk she will not comply with orders in the father’s favour. To the extent that there is any risk of future litigation, it is more likely to arise if the orders require M to live with her father. Her resentment at this outcome may result in difficulties in having her return to her father following periods with her mother. Similar issues are not likely if she lives with her mother.
There is considerable overlap between ss 60(3)(c), (f), (i) and s 60(4) and (4A). I have already made findings concerning the extent to which each of the parties have fulfilled or failed to fulfil their parental responsibility. The mother points out that the father has occasionally cancelled arrangements for M to spend time with him and failed to avail himself of opportunities to spend extra time with her. For example, in October 2006 the father’s work commitments meant he was unable to care for M. In April 2006, because of surgery he was unable to spend extra time with M. The mother points out that the father was unable to attend M’s 2005 graduation day. These and the other instances referred to in the mother’s evidence must be assessed in context. A number of opportunities to spend time with M have arisen on short notice and the father’s inability to reschedule surgery or work commitments does not reflect adversely upon his parental responsibility. To the extent he has been able; the father has diligently maintained good communication with M and spent time with her.
The father points out that the mother has made major decisions concerning M without his agreement. For example, enrolling her at S College and attempting to enrol her at L School. Similarly, allowing M’s developing interest in Roman Catholicism. Refusing to allow him to spend time with her when he was available and the mother’s calendar raised an expectation that M would be available. In relation to M’s education, the mother attempted to involve the father, both in writing (by letter in July 2006) and verbally. Disagreement concerning future arrangements for their daughter does not equate to a failure by the mother to facilitate the father’s participation in making major long term decisions for M. I agree with the father that he should have been consulted before the mother engaged a counsellor for M. Having had her obligations to consult the father reinforced during these proceedings, it is highly unlikely similar lapses will arise in the future.
Conclusion
The parties agree they will have equal shared parental responsibility for M. I have no doubt that this is in M’s best interests. This means that the parties must consult each other about major long term issues concerning their daughter and make genuine efforts to agree about the issues. Because the parties will have equal shared parental responsibility, by s 65DAA, I must consider whether M spending equal time with each of her parents is in her best interests.
Although the father could reasonably move to Sydney without harming his career, he does not wish to and in the foreseeable future it is unlikely he will. Although the mother could return to live at N she will not do so. These parties are entitled to live where they choose. As I have already found, with the father living in S and the mother living in Sydney it is impracticable to share M’s time equally between her parents. The distances between the two homes is simply too great. Even if it was practicable, I am not persuaded that this outcome is in M’s best interests. Her wishes carry very significant weight and do not favour increasing the amount of time she spends with her father. For the reasons discussed earlier such an outcome is likely to undermine her relationship with her father and introduce a level of unhappiness which should not be forced on the child. M’s closer relationship with her mother and genuinely strong wish to live with her Sydney together favour the mother’s proposals. Of the available options this is the one which promotes M’s best interests.
I must consider whether an order enabling M to have substantial and significant time with her father is appropriate. A child will taken to spend substantial and significant time with a parent if the time the child spends with the parent includes weekends, holidays and periods during the week. The gravamen of spending substantial and significant time is to ensure both parents are involved in the child’s daily routine and given the opportunity to participate in occasions and events of particular significance to the child and parent. To date, the parties have recognised the desirability of M spending time with both parents during the school week, during school holidays, on special occasions and weekends. This blend enables the parties to exercise parental authority over every aspect of M’s life. Neither parent is compartmentalised in being limited to exercising parental authority merely on weekends or only during the school week. From M’s perspective, the opportunity to engage her parents’ authority and guidance in every aspect of life is the most enriching outcome. In the context of living in Sydney with M whilst the father remains in S, the mother’s proposals fulfil this criterion. Although it involves more effort on his part, the father can spend time with M in Sydney during the school week and on weekends when she is with her mother he can still attend sporting functions in Sydney. The mother’s proposed orders ensure M will spend time with her father on those special occasions each party anticipates. By this I mean the parents specify the same special occasions in their orders. If per chance, events arise which are not covered by the orders but are special to the father, the mother has demonstrated a flexible and positive approach to his reasonable requests in the past and almost certainly will do so in the future.
In addition to the periods proposed in her minutes of order, during her oral evidence, the mother explained she is quite content for M to have additional weeks with her father during the Easter and mid year school holidays. The father has a vast amount of accrued leave and if he wishes to take leave, the orders will provide that he may have the additional time the mother proffers. Thus, although the father will not be as involved in M’s daily routine as he wishes, he will have sufficient time with her on Fridays, mid week, weekends and during school holidays to influence and be involved in her daily routine.
As is apparent, I am satisfied that M should live with her mother. Thus the father’s proposed injunction restraining M’s relocation to Sydney is inconsistent with her best interests and thus fails.
Concerning alternate weekends, the parties proposals are quite similar. I accept the mother’s evidence that leaving Sydney on Friday evening and travelling north in peak hour involves driving in heavier and slower traffic than travelling at the same time between S and F or T. During peak hour traffic Sydney to F involves a two hour journey. From S it is 55 minutes. Sydney to T is approximately 100 minutes and S to T is approximately 70 minutes. Because of the distances between their homes and the bandwidth during which the parties will be travelling, I favour 7.30 pm rather than 6.30 pm for changeovers on Friday. The advantage of the slightly later time is that it gives M time to come home from school without rushing immediately out of the door. She can have an hour within which to snack, change and organise her possessions for the weekend with her father. I favour 5.00 pm Sunday returns as this gives M sufficient time to settle and prepare for school the following morning.
At a minimum M will spend half of each school holidays with her father. If the father uses some of his accrued leave he will be able to spend two of each three weeks in the Easter and end of term 2 school holidays with M. At Christmas time I have taken into account that the father’s employment conditions requires her to take leave between Christmas and early January. As the father does not have similar restrictions, M will be with her mother during this period. Structuring the orders this way ensures M has maximum holiday time with both parents. Because M is at a private fee paying school, she has school holidays for longer than those gazetted by the NSW Department of Education. The father calculates school holidays from the evening upon which classes end until the evening before classes resume. On this formula when M is with her father for the first half of the holidays, she has no time at all to unpack from school and relax at home before she leaves. Starting on the first Saturday after classes have ended is less frenetic. Like many children M may enjoy the opportunity to sleep later in school holidays for which reason changeover time will be 12 noon. On those occasions when M is returning to her mother on the day before school resumes she needs to be home in sufficient time to get ready for a new term. Twelve noon is preferable to either 5.00 pm or 5.30 pm.
The mother proposed that M spends every Christmas morning with her and the Lees. While this accords with the families tradition, the father’s desire to share this special occasion equally is reasonable and appropriate. I see no good reasons to restrict Christmas to Sydney and if the father wants to take M back to S or wherever else he chooses to celebrate Christmas he may do so. The times included in the Christmas celebration orders give both parties a proper opportunity to spend time with M and for her Christmas celebrations not to be totally dominated by travelling.
The mother proposes that on the Father’s Day weekend the father returns M on Monday morning. Provided he is able to return M to school as a rare occasion this arrangement is feasible. If the father is unable to return her on Monday morning, which is quite possible, the usual return arrangements will operate.
Although neither party mentioned it, I consider M should have an opportunity to celebrate her father’s birthday in reasonably close proximity to the day. This is at least as important as Father’s Day and the same provisions will operate.
Concerning overnight’s mid week, I see no reason associated with M’s to limit the father’s entitlement to spend time with her to those occasions when he is in Sydney for work. All that is relevant is that the father is in Sydney and gives the mother adequate notice that he wishes to spend the evening with their daughter. Ideally the father will collect M from school. This will afford him an obvious opportunity to talk with her teachers, meet her school friends and their parents. If he cannot do so, the other logical arrangement is that he collects her from home. Similar considerations apply to return arrangements.
The mother seeks to change the existing changeover point from F to T. I accept the mother’s evidence that F has few facilities, with merely a café and toilets. At changeover times, there are often few people about and the mother feels nervous waiting for the father. T is a more public place with a shopping centre where the parties and M can while away the time if one or other is late or early. The area is well lit, has security and clean and appropriate rest rooms. Plainly, the facilities at T are superior to F. Although the parties do their best to arrive on time, it is likely situations beyond their control, for example unusually heavy or light traffic will arise with reasonable frequency. Although the father is not discomforted by F’s relative isolation, the mother’s understandable discomfort with this location tips the balance in favour of changeovers at T. Simply because the mother has moved to Sydney, does not mean that she must carry a greater travel burden. Changing the changeover location to T does not impose an unreasonable burden upon the father and delivers a sensible outcome.
For these reasons I am satisfied the orders identified at the beginning of this judgment are in M’s best interests.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan
Associate:
Date: 19 January 2007
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as Neville & Neville
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Appeal
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Costs
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