Nieves and Macy
[2017] FCCA 3194
•22 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NIEVES & MACY | [2017] FCCA 3194 |
| Catchwords: FAMILY LAW – Parenting – Child living with parents on a week about basis for over two years – parties living considerable distance apart – competing live with applications – child has strong relationships with both parents – finely balanced case – child to live with father and spend time with mother. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Bondelmonte v Bondelmonte & Another [2017] HCA 8 Slater & Light [2011] FamCAFC 1 |
| Applicant: | MS NIEVES |
| Respondent: | MR MACY |
| File Number: | PAC 4755 of 2016 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 11 – 12 December 2017 |
| Date of Last Submission: | 12 December 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 22 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Crosslands |
| Solicitors for the Applicant: | Watson Law Pty Ltd |
| Counsel for the Respondent: | Ms Druitt |
| Solicitors for the Respondent: | Caldwell Martin Cox |
ORDERS
All previous parenting orders are discharged.
The child [X] born (omitted) 2013 shall live with the father, during which he shall have sole parental responsibility for making the non-major decisions about his day to day care, welfare and development.
The father shall be permitted to relocate the child’s residence to (location omitted).
The child shall be enrolled in the School A at (location omitted).
The parties shall have equal shared parental responsibility for making decisions about the major long term issues concerning the child, including his current and future education, his religious and cultural upbringing, health issues, his name and any changes to the prospective living arrangements of the child that make it significantly more difficult for him to spend time with either parent, and the parties shall consult with each other, either verbally or in writing, on these issues and shall make a genuine effort to come to a joint decision about them.
All consultations in accordance with Order 5 above shall be conducted in good faith, in a child focused and non-derogatory manner.
The child shall spend time with the mother as follows, during which she shall have the sole parental responsibility for making the non-major decisions about his day to day care, welfare and development:
(a)During school term:
(i)Each alternate weekend from the conclusion of school on the Friday until commencement of school on the Monday (or until the commencement of school on the Tuesday if it is a long weekend), commencing on the first weekend after the commencement of the school term in 2018.
(b)During school holidays at the conclusion of Terms 1, 2 and 3 for the first half in odd numbered years and the second half in even numbered years.
(c)For the Christmas school holidays:
(i)For 2017 and each alternate year thereafter, from the conclusion of school on the final day of the school term until 10am on 27 December and then for the final two weeks of the school holiday period, concluding on the Friday before the first day of Term 1;
(ii)For 2018 and each alternate year thereafter, from 10am on 27 December until 10pm on 14 January.
(d)Each Mother’s Day weekend from 6pm on the Friday until the commencement of school on the Monday in the event that the child is not already spending time with the mother that weekend in accordance with these Orders;
(e)At other such times as the parties may mutually agree in writing.
For the avoidance of doubt, the child shall live with the father as follows:
(a)Each Father’s Day weekend in the event that the child is otherwise scheduled to be with the mother that weekend pursuant to these Orders;
(b)For 2017 and each alternate year thereafter, from 10am on 27 December 10pm on 14 January;
(c)For 2018 and each alternate year thereafter, from the conclusion of school on the final day of the school term until 10am on 27 December and then from 10pm on 14 January.
The child shall communicate by telephone on a liberal and flexible basis with each parent when in the other parent’s care, however the child shall communicate with the mother at least each Sunday, Tuesday and Thursday that the child is not in the mother’s care, by Skype or other video conferencing application between the hours of 6pm – 6.30pm.
For the purpose of changeovers the father is to deliver the child to the mother’s residence at the commencement of the child’s time with the mother and the mother is to deliver the child to the father’s residence at the conclusion of the child’s time with the mother.
Whilst the child is in each parents respective care, both parents shall advise each other as soon as reasonably practicable of any major medical issues involving the child and each parent shall keep the other properly informed of any required treatment or medication in relation to the child and the parties shall ensure that the proper administration of such treatment or medication is performed by them.
Both parents are restrained from denigrating, belittling or insulting the other parent, the person who the other parent is in a domestic relationship with, or members of the other parent’s family in the presence or hearing of the child and each parent must use their best endeavours to ensure that no other person denigrates, belittles or insults the other parent, the person who the other parent is in a domestic relationship with or members of the other parent’s family in the presence or hearing of the child.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Nieves & Macy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4755 of 2016
| MS NIEVES |
Applicant
And
| MR MACY |
Respondent
REASONS FOR JUDGMENT
Introduction
These are finely balanced parenting proceedings between the Applicant mother and the Respondent father in respect of the living arrangements for their four year old son [X].
[X] has been living week about with his parents since 2 July 2014. He is about to turn five. The parents live some 3 ½ to 4 hours’ drive apart. The mother wants [X] to commence primary school in 2018. If that is to happen, he cannot continue living week about with his parents because of the physical distance between [X]’s two homes. He must have a primary residence.
The Relevant Legal Principles
The central enquiry is for the Court to determine the outcome that will be best for the child.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations, the Court is to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both of the child’s parents. A meaningful relationship “is one which is important, significant and valuable to the child”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]
[2] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121]
[3] McCall & Clark [2009] FamCAFC 92 at [122]
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[4]
[4] MRR v GR [2010] HCA 4 at [15]
The Full Court in Goode v Goode[5] mandated that this legislative approach must be followed in all parenting cases. The High Court in MRR v GR[6] affirmed the legislative pathway.
[5] (2007) 36 Fam LR 422, (2006) FLC 93-286
[6] [2010] HCA 4
As stated by Justice Murphy[7]:
... both the Act and the practices of courts with jurisdiction and power to make parenting orders recognise the particular nature of parenting proceedings and the fact that parents differ in talents, beliefs and practices they bring individually to the onerous task of parenting. The Act and the practices of the courts also recognise that, as Kirby J famously said, parenting cases are as much about values as they are about facts and perhaps, as a reflection of all those matters, agreement and co-operation between separated parents should be encouraged actively. (citation omitted)
[7] Sitting as the Full Court in Jopson & Lilwall (No 2) [2016] FamCAFC 262 at [35]
Furthermore, the High Court[8] has recently stated, being a reminder of the discretionary nature of parenting decisions, that[9]:
A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child. (references omitted)
[8] Bondelmonte v Bondelmonte and Another [2017] HCA 8 at [32]
[9] These were obiter comments in the context of an appeal with considerations different to the present case
The Relevant Facts
The father was born on (omitted) 1990. At time of final hearing he was 27 years old.
The mother was born on (omitted) 1993. At time of final hearing she was 24 years old.
The parties commenced a romantic relationship in late 2008, and started living together in 2009. They separated in 2010 for a period of about two months, and again in 2014 for some months, between May and late 2014. They separated on a final basis in July 2015.
Their only child [X] was born on (omitted) 2013. At the time of final hearing he was four years and eight months old.
During the parties’ separation in 2014, they came to an agreement in relation to [X]’s living arrangements and consequently final orders were made by the Local Court at (omitted) on (omitted) 2014. As noted, the parties reconciled after the making of these orders.
Upon final separation, the parties considered themselves bound by the terms of the final orders made on 7 July 2014, and continued to share the care of [X] on a week about basis.
Both parties have since separation re-partnered.
The mother lives with Mr E. She has been in a relationship with him since September 2015. Mr E was not a witness in the mother’s case.
The father lives with Ms A. They have been cohabiting since July 2016. Ms A has two daughters from her previous relationship, [C] who is six years old and [D] who is four years old. Ms A and the father have a child together, [E], who was born in October 2017.
The parties had lived together at a home in (location omitted).
After separation, the father moved out of the former matrimonial home. For a period of about twelve months, the father lived in (location omitted), although he also stayed between (locations omitted), where Ms A and his mother lived respectively. In July 2016, the father moved with Ms A, her children and [X] to (location omitted), New South Wales.
The mother after separation remained living in the former matrimonial home with [X], until it was sold in May 2016. In December 2016, the mother purchased a property with Mr E in Town B, New South Wales where she, [X] and Mr E have been living since.
The parties now live some 3 ½ to 4 hours’ drive apart.
In October 2016, the mother commenced these proceedings. As part of her application, she also sought orders in respect of adjustment of property interests. Both property and parenting were set down for final hearing on 11 and 12 December 2017, with the property aspect of the dispute settling on the morning of the first day of hearing. Terms were handed up and orders made by consent, adjusting the parties’ interests in their property. The parenting dispute could not be resolved, for the simple reason that each of the parents wants for [X] to live with them. The parties live too far apart for any shared care arrangement to continue once [X] commences school.
Parental Responsibility
Both parties invite the Court to make an order for equal shared parental responsibility. This is despite some difficulties which both parties depose to in respect of their ability to communicate and co-parent effectively.
The father described the circumstances of the parties’ co-parenting relationship at the time of the hearing akin to a “war zone”. It is clear to the Court that the war zone exists because they cannot agree what is best for [X] in the long run; that is whether he should live with the mother or the father. There is also a great deal of resentment of the father by the mother because of what she considers was a “unilateral” move by the father of his residence, and consequently [X]’s residence, to Town A which has had a significant impact on the amount of time which [X] needs to spend travelling between the two homes.
Ultimately, and in the absence of any specific submissions, the presumption of equal shared parental responsibility stands. The Court, in all of the circumstances, particularly noting the parties’ applications, finds that an order for the parents to have equal shared parental responsibility for [X] is in his best interest, and therefore such an order will be made.
The making of an order for equal shared parental responsibility of course triggers the operation of s65DAA Family Law Act.
An order for the child to spend equal time with his parents, given the distance between their homes is not an order which is reasonably practicable.
For reasons explained below[10] an order for the child to spend significant and substantial time[11] with each of the parents is an order that is in the child’s best interest, however it is not an order which is reasonably practicable because [X] will not be able to spend time with the non-resident parent such that it wold allow that parent the opportunity to be involved in the child’s daily routine outside of weekends and school holidays.
[10] But see also the discussion under “Best Interest Considerations”
[11] Within the meaning of s65DAA(3)
Best Interests Considerations
[X]’s views are not known.
[X] has strong and loving relationships with both of his parents. Although he moves between his two homes with ease, the parental conflict appears to be so significant that it is inhibiting his ability to communicate with his parents about his experiences when he is living with the other parent. Both the father and the mother have reported that [X] will not openly have such discussions, although he will answer questions when asked of him. Both the father and the mother would like for [X] to be able to speak freely about his experiences in the other’s house and appreciate that the level of parental conflict is negatively impacting on [X].
In the father’s household, [X] has strong, established relationships with Ms A, [C] and [D]. He is developing a relationship with his half-brother [E]. He has strong established relationships with his paternal grandmother and his paternal step-grandfather. He also has established relationships with the extended paternal family.
There was little evidence in the mother’s case about the strength of [X]’s relationships with Mr E, and the maternal extended family. However, there is no evidence to suggest that [X]’s relationships with such people are anything but positive.
The Court was asked to draw a Jones v Dunkel[12] inference in respect of the lack of evidence in the mother’s case from Mr E. It was submitted on behalf of the mother that in essence by not hearing from Mr E, the Court can infer that anything which Mr E would had to say would not have assisted the mother’s case. Such an inference as contended for by the father, is not an inference available to the Court pursuant to the principles in Jones & Dunkel. The ‘rule’ in Jones & Dunkel can be explained as follows[13], as far as relevant to these proceedings:
a)The unexplained failure by a party to give evidence or call witnesses, tender documents or other evidence, may, in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted that party’s case;
b)The rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule cannot be employed to fill gaps in the evidence or to convert conjecture and suspicion into inference;
c)The rule only applies when a party is required to explain or contradict something. No inference can be drawn unless evidence is given of facts requiring an answer. If there is no issue between the parties, there is nothing to answer; and
d)The evidence of the missing witness must be such as would have elucidated a matter.
[12] (1959) 101 CLR 298
[13] See generally Byrne & Heydon, Cross on Evidence , Butterworths, 3rd edition at [1.42]-[1.44] and also online Cross on Evidence accessed via at [1215]
Therefore, if there is no issue, for example as the child’s relationship with Mr E not being positive, then the failure to call Mr E of itself does not permit the Court to draw an inference that his evidence would not have assisted the mother’s case.
While it was further submitted that in circumstances such as the present, in the absence of an important witness such as Mr E, the Court would act cautiously about placing a child with a parent whose partner is not on affidavit, the Court was not taken to any authority in support of such a proposition. One could understand such a submission to be made in circumstances where there were allegations of violence or risk of harm issues, but of its own, the absence of any evidence from Mr E where there is no issue identified, is not a matter in respect of which the Court would act cautiously or otherwise.
The parties are relatively young. They have from time to time made parenting decisions which reflect poorly on their capacity to foster a relationship between the child and the other parent, and they have both from time to time made parenting decisions which have placed their personal needs ahead of those of [X]. For example, the lack of communication by the parties when each of them moved their residence post separation and their failure to inform the other party of their living arrangements in circumstances where [X] was living with them on a week about basis, shows a certain level of immaturity and lack of child focus. However, they are both by and large, responsible and loving parents.
The Court accepts that both parties will foster and encourage a relationship between the child and the other party, however, it is the Court’s assessment that the mother is less likely to do so if the child was to live with her, despite submissions made on her behalf to the contrary.
The attitude which has been demonstrated through the running of her case indicates to the Court that the mother is overly and unnecessarily critical of the father and does not use her best endeavours to communicate her concerns to the father, but rather lets them fester to such an extent that they create conflict.
The father is not without blame for the state of the parties’ co-parenting relationship. He has from time to time taken on an attitude of “tit for tat” to [X]’s detriment. Hopefully, both parties would have taken on board what the Court has said not only in these Reasons, but also during the hearing in respect of placing [X]’s needs above their own.
The father has, since moving to Town A, ensured that the child can continue to live with him on a week about basis by facilitating such time and returning him to live with the mother in the alternate weeks. The father has undertaken all of the travelling with the child by picking him up and delivering him from day care on the day of changeover. He has maintained the child’s enrolment in the day care where [X] has been attending for a number of years and he has met part of the fees for such day care.
It was submitted on behalf of the mother that the Court would find the father’s credibility lacking, due to the father’s asserted non-compliance with the 2014 orders. Those orders provided, inter alia:
That the parties shall do all acts and things as may be necessary to continue the said child’s enrolment in and attendance at (omitted day care centre) (location omitted), NSW or such other centre as the parties may agree in writing…
After the parties’ separation, the father did not ensure that [X] attended day care on each of the days that he was with him. Instead, the father would care for [X] personally, or would be assisted by his mother. After the father moved to Town A, he would pick [X] up at the start of the week on a Monday afternoon, and deliver [X] to day care at the conclusion of the week that [X] was living with him, on the following Monday morning. The effect of this is that [X] would only spend the Monday in day care during the weeks he was living with the father in Town A.
There was much cross-examination of the father about his “breaches” of the orders for not ensuring that [X] attended day care each day he was with him. There were also lengthy submissions made in this regard. Such tactic is in the Court’s view, demonstrative of the mother’s poor attitude to the father. The mother has known[14] since July 2016 that the father has been living in Town A. There is no evidence of any complaint by the mother during the period July 2016 to the date of final hearing, of any negative impact on [X] for not attending day care for four days while living with the father or similar. Indeed, in circumstances where the father lives some 3 ½ to 4 hours away from the child’s day care, insistence by the mother for the child’s attendance at day care on the days he is living with the father would not be in the child’s best interest. It is difficult to see how criticism of the father for the child not attending day care in these circumstances is anything but a poor reflection on the mother.
[14] Albeit she was not told directly by the father
The Court does not accept the submission that the father’s credibility is wanting for reasons associated with the alleged breaches of the 2014 orders.
There have been difficulties between the parties in respect of the child communicating with the other parent during the off week. The mother says that the father has not answered many a phone call from her when she has called to speak to [X] at days and times when the parties agreed there would be such phone calls. The father admits that he did not always answer such calls, indeed it appears that there were indeed many that were not so answered.
The father said that essentially, “it’s not a problem…” If he calls to speak to [X] and the mother does not answer, he does not take the view that it is because she will not let him talk to [X], but rather that there must have been a reason she could not take the call when he made it. He says that he would simply call the next day and speak to [X].
While the father’s approach might be more pragmatic, the Court finds that his lack of adhering to the agreement reached between the parties as to set phone calls was clearly a matter which was frustrating to the mother and resulted in part, in at least some of the conflict between the parties and feelings of animosity. However, the Court was not taken in submissions to any evidence of the mother communicating to the father her disappointment or frustration at the father not answering the phone calls, or any proposal as to how such matters could be resolved. It is in the Court’s view, imperative for the parties to learn to discuss any similar hurdles in the future, and not simply just laying blame at the feet of the other party in respect of such hurdles.
Since about May/June 2017, that is, for at least six months, the parties have had an arrangement whereby [X] communicates with them via Skype. Both parties report that such an arrangement is working well, and that [X] enjoys the Skype conversations.
There was little evidence about the parties’ obligations towards maintenance of the child. It was submitted on behalf of the mother that the father does not have the financial means to meet the child’s needs. Such a submission is rejected. It is not supported by any evidence, specifically, there is no evidence that the father has in any way failed to meet his financial obligations towards the child. What the mother has relied upon is the father’s taxable income, which is relatively small, and a suggestion to the father that his business is a failure because his taxable income from the business is currently $200 per week.
The evidence shows that the father’s business has a turnover of over $100,000 per annum and that the father is still in the process of establishing the business, including purchasing tools and equipment. The Court accepts the father’s evidence that his business is on the up and up, and that he earns sufficient income to support himself and his growing family. Furthermore, the father receives support from his extended family, both in terms of financial assistance if and as required, and also by the continuing offer of work from his step-father.
A major issue in the case is the effect of any changes which will be brought about by the final orders which will be made as both parties ask the Court to make an order for the child to live with them. Next year, as [X] commences formal schooling, he will be facing many changes and challenges. He is a child who on the parties’ reports is very intelligent and capable, and mature enough to attend primary school albeit he still has his day sleeps. It is something which the parties will need to manage as he commences school in 2018. There is no evidence before the Court as to any expert opinion about what might be best for [X], namely whether he should start school in 2018 or 2019. Certainly, it is the Court’s view that the child’s schooling should not be delayed simply by reason of him continuing his day sleeps. He will no doubt adapt. If he was to live with his mother and commence school in 2018, [X] would be cared for by Mr E’ father in the afternoons after school or he would attend after school care. Without a day sleep, such a routine would be somewhat more arduous on the child at least in the first few months of school, than the routine he would have if he was to live with the father. In the father’s home, he would come straight home from school and be able to relax and/or play in the usual manner. However, as was rightly submitted on behalf of the mother, it is not just a matter of what might be in [X]’s interest in the short term. But in this instance, where the case is so finely balanced, it may well be such distinctions that tip the scales in favour of one party’s proposal over the other party’s proposal.
At present, [X] attends day care five days per week during the weeks he lives with the mother. She normally picks him up from day care or has him picked up from day care late in the afternoon, and they are home by about 5.30-5.45pm. [X] goes to bed at 8pm. Clearly, the child benefits from the interactions with the mother during his usual evening and morning routine. However, his face to face time with the mother is fairly limited during the week; it is only about two and a half hours per day. On the weekends, he spends time with the mother as she does not work. Despite the limited time he spends with the mother because of her work commitments, [X] nevertheless appears to have a strong attachment to her[15]. It is therefore inferred that the strength of this relationship will not necessarily be adversely affected by an order for the child to live with the father.
[15] There was no evidence to the contrary, however, there was no expert evidence of the child’s attachments. The parties both agree that the child loves them both and has great relationships with both of them.
The mother has a strong support network of family and friends who assist her in [X]’s care, particularly in picking him up from day care if she is not available for some reason.
On the other hand, at present, [X] spends the majority of the time he is in the father’s care with the father. This is because the father is self-employed and has chosen a career path which makes him available to personally care for the child for most of the time. When [X] commences school the father proposes to change his working hours such that he will be essentially taking on work during school hours. In any event, the father is supported by Ms A who is able to take care of [X] if the father has to work.
As such, any change in [X]’s living arrangements are likely to have an impact on his relationships:
a)If [X] lives with the mother and spend alternate weekends and school holidays with the father, he will spend significantly less time with the father than he does at present. This will also impact on his time with his step-siblings and his new half-sibling.
b)Once he starts school, he would not be spending any less time with the mother on school days than he does at present (if he lived with the mother);
c)Once he starts school he would be spending less time with the father during the school days than he does at present, however, he would be spending each afternoon from after school with the father (if he lived with the father).
d)If [X] lives with the father and spends alternate weekends and school holidays with the mother, he will not spend significantly less face to face time with the mother than he does at present, it might only be about 10-15 hours less per working week (excluding the time he sleeps).
e)Overall, the impact upon [X] when he commences school in terms of time with his parents (considered if he was to live in each of their households respectively) would still mean that the change to the time he spends with each of the parents would be greater if he lived with the mother.
While the above analysis might at first blush appear to be a purely mathematical approach, it is not. The Court has taken into consideration all of the activities that the child is engaged in, and the quality of the time he spends with each of his parents during the weeks he lives with them. The Court has also taken into consideration [X]’s relationships with his half-sibling and his step-siblings, which would be curtailed if he was to live with the mother.
There is significant practical difficulty with [X] traveling between the parties’ homes. As noted a number of times earlier, the parties live about 3 ½ to 4 hours apart, which means that a round trip for [X] is between 7 to 8 hours. Both parties propose for [X] to spend alternate weekends with the other parent.
While initially the mother was asking the Court for an order that the father be restrained from living outside of a 100km radius of (omitted), it was ultimately conceded that such a restraint would not be appropriate given that the mother’s proposal for time is the same whether or not the father lives within that 100km radius. The mother, during submissions, also proposed an order in the alternative, to the effect that [X] continue to live week about with the parents if the father returns to reside in the Sydney metropolitan area. Such a proposal was not the subject of any evidence in the mother’s case. In the father’s case the evidence was that such a move would not be something he was prepared to make for a number of family focused reasons. The Court does not consider that an injunction as sought by the mother in her Amended Initiating Application is an injunction that would in the circumstances be appropriate.
The father proposes for the parties to meet at a half-way point for changeover. He says to the Court, and the Court accepts his evidence, that [X] is a good traveller who has done the trip between the parties’ homes on many an occasion without trouble. The father says he usually times such trips such that [X] can sleep. Obviously, moving forward years into the future, a teenage [X] might not enjoy the travel to and from the parties’ residences in a similar manner. However, this is something the parties will need to manage. The father’s view is that when [X] is about 12 or 13, he can decide where he wants to live, whether in Town A or in Sydney. The mother was not asked any questions about this issue. There was no evidence which would suggest that the parties’ meeting approximately half-way between their respective residences for changeover was economically prohibitive to them or in any other way impractical. The only issue is the mother’s work commitments and what times she might be available to meet at changeover on a Friday afternoon. Given that the mother works until 5pm, an order for the parties to meet half-way for changeover would see [X] going to the other parent’s care of a Friday late in the evening and for that reason will not be made. Instead, the parties will each have to make the whole trip one way.
While post separation, there were issues between the parties relating to allegations of family violence, those matters were no longer pressed nor was any submission made that those historical allegations would impact on future parenting arrangements for [X].
The mother asks the Court to make orders concerning defined time for half of the school holidays with each of the parents whereas the father asks the Court to make orders for the mother to provide the father with 28 days’ notice of her intention to spend time with the child in school holidays in the event that she is able to take leave from work to do so.
The Court is of the view that the father’s proposal is overly prohibitive, and appears to be based on the fact that the mother works full time.
The mother has worked full time throughout [X]’s life, except for a short period of parental leave after his birth. She is a hard worker, and motivated to financially provide for her family. The Court considers her an excellent role model for her son. Whatever her work arrangements may be during school holidays even if she is not able to take leave on all days [X] should still have the opportunity of spending time in her household during school holidays. The mother will no doubt make appropriate arrangements for his care if she has to work during some of the days he is with her.
In Summary
As indicated earlier, this is a finely balanced case. There are only a few matters which tip the balance in the favour of an order that [X] live with the father, which have already been referred to.
Conclusion
Overall, the orders which the father proposes will see [X] maintaining his relationship with both parents while having the effect of least reducing his time with each of the parents respectively.
For all of these reasons, orders as set out at the forefront will be made.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 22 December 2017
Key Legal Topics
Areas of Law
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Family Law
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