Olson and Spindler
[2014] FCCA 1055
•21 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OLSON & SPINDLER | [2014] FCCA 1055 |
| Catchwords: FAMILY LAW – Child – parenting orders – urgent application – where mother unilaterally relocates with the child to Melbourne from Sydney after the father clearly communicated he did not consent to such a relocation – mother ordered to relocate the child’s residence to Sydney – orders made until further order. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 65C, 61DA, 64B, 65DA |
| Cases cited: C and S [1998] FamCA 66 Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 McCall & Clark [2009] FamCAFC 92 Morgan v Miles (2007) 38 Fam LR 275; [2007] FamCA 1230 MRR v GR (2010) 240 CLR 461 |
| Applicant: | MR OLSON |
| Respondent: | MS SPINDLER |
| File Number: | SYC 621 of 2014 |
| Judgment of: | Judge Monahan |
| Hearing date: | 20 February 2014 |
| Date of Last Submission: | 20 February 2014 |
| Delivered at: | Sydney |
| Delivered on: | 21 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Messner |
| Solicitors for the Applicant: | Dianna Perla & Associates |
| Counsel for the Respondent: | Mr Schonell |
| Solicitors for the Respondent: | Swaab Attorneys |
ORDERS
THE COURT ORDERS THAT:
All extant applications be adjourned to this Court on 23 May 2014 at 10:00 am for mention (“the mention hearing”).
THE COURT ORDERS, UNTIL FURTHER ORDER THAT:
The Mother cause the child’s residence to be re-established in Sydney on or before 13 April 2014.
Until 13 April 2014 the child live with the Mother in Melbourne.
Commencing 22 February 2014 and continuing until 13 April 2014 the child spend time with the Father, in Sydney each alternate weekend from 10:00 am Saturday until 4:00 pm Sunday.
Pursuant to Paragraph 4 herein, the Mother is to cause the child to be bought to Sydney on the relevant weekends at her expense.
Changeover during the period 22 February to 13 April 2014 is to be as agreed and failing agreement the Mother is to deliver the child to and collect the child from the Father’s residence at the beginning and end of the child’s time with the Father.
On and from 14 April 2014 the child live with the Mother in Sydney and the mother be hereby restrained from further relocating the child’s residence outside the Sydney metropolitan area.
On and from 14 April 2014 until 27 April 2014 the child spend time with the father as follows:
(a)From 10:00 am on 14 April 2014 until 4:00 pm on 16 April 2013;
(b)From 10:00 am on 18 April 2014 until 10:00 am on 20 April 2014; and
(c)From 10:00 am on 25 April 2014 until 4:00 pm on 27 April 2014.
On and from 28 April 2014, during school term times the child is to spend time with the Father as follows:
(a)Commencing 2 May 2014 each alternate weekend thereafter from after school Friday or 3:00 pm if a non-school day to 6:00 pm Sunday;
(b)Commencing 7 May 2014 each alternate Wednesday thereafter from after school or 3:00 pm if a non-school day to before school Thursday or 9:00 am if a non-school day; and
(c)During further school holidays as agreed between the parties.
Subject to paragraph 8 herein, the child spend time with the Father during school holidays as agreed.
Each party be and is hereby restrained from the following:
(a)Denigrating the other party, or any member of the other party’s family, to or in the presence or hearing of the child, or allowing any other person to do so;
(b)Using profanity or swearing in the presence or hearing of the child, or allowing any other person to do so; and
(c)While spending time with the child or while the child is otherwise in either parties care, the parties each be restrained from consuming alcohol to excess, that is, to the point where his blood alcohol level exceeds the concentration of 0.05 grammes of alcohol in 100 millilitres of blood.
THE COURT NOTES THAT:
A.The Court expects the Mother to organise for the child’s school in (omitted), Victoria to liaise with the school the child attends in Sydney to ensure the educational needs of the child are appropriately provided for.
B.The purpose of the mention hearing is to:
a.consider if the matter would benefit from the preparation of a family report on an expedited basis;
b.consider whether the parties have reached agreement with relation to the time for the child to spend with each of them during the future school holiday periods;
c.determine whether the matter requires any order providing for the children to be able to communicate with the parent that they are not living with or spending time with; and
d.in the event that the parties remain in dispute, make further directions.
C.Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Olson & Spindler is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 621 of 2014
| MR OLSON |
Applicant
And
| MS SPINDLER |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons are being delivered orally and can be settled when time allows or as specifically requested.
This is a parenting application by MR OLSON (“the father”) against MS SPINDLER (“the mother”). The relevant child of the relationship is X, born (omitted) 2008 (“X” or “the child”).
This decision only concerns interim parenting arrangements and in particular and until further order, whether the mother should cause X to return to live in Sydney, either with the mother or the father, or whether the child be allowed to remain living with the mother in Melbourne.
The issue of the child spending time with the parent that she does not ordinarily reside with, or will be residing with, will also be considered as part of this decision.
Both parties were legally represented by counsel when the matter came before me yesterday for interim hearing, the mother by Ms Messner and the father by Mr Schonell.
Any statutory references I make, unless otherwise advised, will be to the Family Law Act 1975 (“the Act”).
Background
The father is currently aged 43 years and the mother 42 years. Their child, X, is currently aged five years and will turn six next month. The father has children from previous relationships, including A, aged 12.
The parties agree that they commenced cohabitation in early 2006, although they disagree on the exact date. The parties agree that their relationship soured during 2009, particularly towards the end of 2009.
The mother asserts that in mid-2009, there was an incidence of family violence at the former relationship home that they shared, that occurred in the child’s presence.
There is evidence that a final apprehended violence order (“AVO”) was made in favour of the mother and against the father at Hornsby Local Court on 2 June 2009. The AVO was for a period of 12 months.
It would appear that the father was also charged with common assault and that he pleaded guilty, although no conviction was recorded conditional upon him entering into a bond to be of good behaviour for 12 months. It is not asserted that either the AVO or the bond was breached.
The mother asserts that separation occurred in December 2009, although the father asserts it occurred in January 2010.
Regardless, there is evidence that the parties entered into a parenting plan on 1 August 2011 (“the parenting plan”). A copy of that parenting plan was annexed to the father’s first affidavit.
The parenting plan is both elegant in its drafting and extensive in its operation and effect. In summary, the parenting plan provides for the following:
a)That the parties discuss decisions involving the child’s long-term care, welfare and development but with the mother having primary responsibility for making decisions involving the child’s health, wellbeing and education.
b)That the parties, in consultation with one another, have responsibility for the daily care, health and welfare and development of the child during the times that the child is in that party’s care.
c)That the child live with the mother.
d)That the child spend time on a fortnightly basis with the father by agreement, including unsupervised overnight periods, plus other special or defined days.
e)That the child continue to attend (omitted) Early Learning Centre and (omitted) School until the completion of year 2 in 2015.
f)That neither party relocate their residence outside the Sydney metropolitan area or a distance greater than 30 kilometres or 30 minutes travelling time “in typical weekday, non-peak hour traffic” without providing the other with three months notice.
g)That each party advise the other of any change in their residential address or telephone number within 48 hours of such a change occurring.
h)That neither party take the child out of Australia without the prior consultation and written agreement of the other parent.
i)That each party will speak respectively of one another with and around the child.
j)That “liberty be granted to either party to apply for a variation of the parenting plan order”.[1]
[1] Affidavit of the Respondent affirmed 5 February 2014 and filed 6 February 2014, Annexure I, “Parenting Plan” dated 7 March 2008.
The parenting plan also stated that there was “scope for variation of X’s time residing with either parent following an agreement”.
It would appear that the parenting relationship between the parties became strained last year when the father became unemployed for an extended period (10 months according to the mother).
Both the parenting plan and the reality of the father’s prolonged unemployment would suggest that the mother has shouldered the greater financial responsibility for the costs of raising X. In particular, the mother asserts that she invested some $35,000 into the child’s education with (omitted).
There is evidence to suggest that the parties frequently communicated with each other by text message. The tendered and exhibited text messages would suggest the following:
·the child spent overnight periods with the father, although there is a factual dispute between the parties as to whether X has ever spent three consecutive nights with the father;
·the father made requests for additional overnight periods to be spent;
·the parties have ongoing child support issues; and
·both parties contemplated moving interstate to pursue potential employment opportunities, and in the case of the father, this extended to destinations in the (country omitted) or (country omitted) in particular.
That said, the text messages do not shed any specific light on their more recent dispute, namely the mother’s decision to relocate the child’s residence to Melbourne late last month.
The evidence also suggests that the mother was successful in gaining employment with (omitted) and received a contract guaranteeing her 12 months full-time employment. That contract was made on 17 October 2013 and stipulated the period of time for the employment, being from 24 October 2013 to 24 October 2014.
The evidence would further suggest that the mother negotiated to obtain a lease of a residence in (omitted) in Melbourne on or before 17 December last year.
While I note that the lease is dated 20 December 2013, the application for the child to attend (omitted) Public School is dated 17 December 2013 and that particular application indicates that the mother will be moving into the leased (omitted) property on 24 January 2014.
It is clear that the mother caused a letter to be sent to the father on 27 December last year by email. That letter set out the mother’s intention to relocate with the child to Melbourne.[2]
[2] Exhibit “RM1”, letter from the mother to the father dated 19 February 2014.
In the letter, the mother asserts that her employment with (omitted) had been made permanent and that it required her to relocate to Melbourne. The mother also cited cost of living reasons to support her proposed move.
It is also clear in the subsequent exchange of correspondence between the father and the mother and thereafter, the father and the mother’s solicitors that indicated that the proposed relocation to Melbourne by the child was opposed by the father.[3]
[3] Affidavit of the Respondent affirmed 5 February 2014 and filed 6 February 2014, Annexure “E” letter from Diana Perla & Associates to Swaab Attorneys dated 22 January 2014 and Annexure “F” letter from Swaab Attorneys to Diana Perla & Associates dated 24 January 2014.
The evidence would also suggest that the child flew to Melbourne in the company of a friend of the mother on a Qantas flight on January 25 this year.[4]
[4] Exhibit “AF4”, Qantas Ticket Itinerary, Recept and Tax Invoice for Ms L and X, issued 20 January 2014.
I note that the father’s lawyer’s letter to the mother’s lawyers is dated 22 January 2014 and it requested confirmation that the child would not be relocated to Melbourne and clearly indicated the father’s intention to immediately commence proceedings for parenting orders, including a recovery order presumably, if no undertaking or reassurance was received.[5]
[5] Affidavit of the Respondent affirmed 5 February 2014 and filed 6 February 2014, Annexure “E” letter from Diana Perla & Associates to Swaab Attorneys dated 22 January 2014.
As stated, the mother did cause the child to relocate or otherwise travel to Melbourne on 25 January 2014 last and the father filed his application on 6 February 2014.
Leave was granted by the Court to list the matter before me on Tuesday this week, 18 February 2014, and it came before me that day. I could not reach the matter because it was one of a number of over-listed urgent applications I had to consider that day (interestingly, all alleging unilateral relocations by a parent).
The Court was able to organise, however, a Child Dispute Conference (“CDC”) for the parties the following day, Wednesday, 19 February 2014, and I found capacity to hear the interim application yesterday and I otherwise reserved my decision to today.
Issues and proposals
Father’s proposal
The father, as the applicant, proposed the following interim outcome in a minute of orders he provided to the Court. In summary, he proposed as follows:
a)That the mother immediately cause the child’s residence to be returned to Sydney.
b)That in the event that the mother also relocates back to Sydney with the child, the child live with the mother and spend time with the father as follows:
i)alternate weekends after school Friday, extending to before school Monday during school terms;
ii)each Wednesday during school terms from after school until before school Thursday;
iii)one-half of all school holidays; and
iv)such other times as agreed between the parties.
The father also proposes an order for equal shared parental responsibility.
The father did not pursue or press his application for a recovery order, given the mother’s indication that she would return the child’s residence to Sydney if ordered to do so.
Although not indicated in the proposed minute of orders handed to the court, it was also clear that the father proposed, that in the event the mother chose to remain living in Melbourne, the child should live with him in Sydney and spend time with the mother.
Mother’s proposal
The mother’s primary interim proposal was set out in her Response filed on 17 February 2014. In summary, she proposed that:
a)The child live with her in Melbourne.
b)That during school terms, the child spend time with the father on alternate weekends, commencing tomorrow, from 10 am Saturday to 4 pm Sunday.
c)That during the April and July school holidays, she proposed defined periods, for example, in April she proposed three occasions, each involving two overnight periods and in July, two occasions of two overnight periods and one day period, and any other time that they could agree to.
d)In respect of changeovers occurring in Sydney, the mother be responsible for delivering the child to and collecting the child from the father’s residence and in respect of changeovers occurring in Melbourne, the father be responsible for collecting the child and returning the child to the mother’s residence.
I would note at this point that this aspect of the mother’s proposal was not pressed at the interim hearing, as the Court was left with the impression that until further order, the mother would cause the child to spend the alternate weekends in Sydney.
The mother also sought restraints upon the father as follows: consuming alcohol to excess while the child is in his care, and I clarified this with the mother’s counsel, that in the Court’s view, drinking alcohol to excess would be drinking alcohol to the point that the blood alcohol level would exceed the legal driving limit; and using profanity in the presence or within the hearing of the child.
The mother also sought her legal costs from the father.
Although not contained in her Response or in any minute, the Court was advised by the mother’s counsel that should the Court order the mother to return the child’s residence to Sydney, then the mother would also return her residence to Sydney until further order.
The Court was also advised that the mother could secure temporary accommodation in (omitted) with a friend and would enrol the child in the closest school to that accommodation which would be perhaps (omitted) Public School.
The mother also proposed that her return to Sydney with the child be delayed, if that be the Court’s decision, until the end of the Term 1 school year this year - that is early April 2014 – and there be interim orders as she proposes in her Response, except for that alternate weekend time to occur, which would obviously require her to bring the child to Sydney.
Once she had relocated back to Sydney, the interim orders she proposed in response as to alternate weekend time would occur.
At this stage, I note that whilst the mother sought final orders for the parties to have equal shared parental responsibility, she did not seek that outcome on an interim basis.
Evidence
The father relies on his affidavit affirmed on 5 February 2014 and filed the following day and his subsequent affidavit affirmed and filed on 18 February 2014 He also provided the court with a written case outline document and a minute of orders sought.
The mother similarly relies on her affidavit sworn and filed on 17 February 2014 and she also provided the court with a brief case outline document.
I note that no subpoenas have been issued by the parties at this point which is not surprising, given the proceedings have only recently commenced.
In addition, I note that the parties tendered a large number of documents for the Court to consider.
Child Dispute Conference memorandum
As stated, when the matter came before me on 18 February 2014, I determined that there would be merit in referring the parties to an urgent Child Dispute Conference (“CDC”); however, as the matter had been listed before a defended hearing and not into a duty list, I did not have that resource available to me (ie to provide a CDC on that day). However, as I have indicated, the Court was able to organise an urgent CDC for the parties on Wednesday and that indeed proceeded.
The Family Consultant who saw the parties for the CDC was Ms M, and following the conference, she provided the parties and the Court with a comprehensive memorandum. Ms M, stated in the memorandum, the following:
“Summary of agreement(s) reached
·Equal shared parental responsibility – the mother seeks this in her response; in his interview, the father reported that he would also be seeking such an order
Issues remaining in dispute
·Relocation – the mother seeks to remain with the child in Melbourne; the father seeks for the child to be returned to Sydney
·Spend time with – In his interview the father indicated that he seeks to have X spend time with him on each alternate weekend from Friday until Monday and every Wednesday until Thursday; the mother proposes that X spend alternate weekends from Saturday until Sunday with her father and that there be a gradual building up of overnight time during school holidays to enable her to spend more significant amounts of time with him during holidays
Family safety factors
·The mother alleges escalating family violence perpetrated against her by the father during the course of their relationship, the details of which are outlined in her affidavit material but which she further alleges included financial abuse and attempts to distance her from friends. She alleges that the father is a “frightening person” who has a “well-established pattern of violent abusive relationships”, in that he allegedly behaved in abusive ways towards his previous wives. The mother alleges that X witnessed some of her father’s outbursts of anger, which included slamming doors and gates. Her stated view was that, when going to her father’s home, X was “not going into a safe and loving household”.
·The father described himself and the mother having had “horrible arguments” towards the end of their relationship and he “put his hand up to” having pushed her (which led to a charge of common assault and an AVO against him). He also agrees that there have been arguments between him and the mother post separation but disagrees that they have involved violence.
·The mother expressed the view that the father, although never diagnosed, possibly has mental health issues, specifically narcissistic personality disorder. She claims that alcohol brings out “psychotic behaviour” in the father, which he subsequently either does not remember or does not take responsibility for. She further alleges that, when he was younger, he used to use a lot of cocaine and marijuana and that this may have affected his mental health.
·The father disputes that there is a problem with his alcohol use and counterclaims that the mother is the drinker between the two of them and is a heavy drinker.
Issues relating to the child
·The nature of X’s relationship with her father, brother (A) and stepmother – it is noted that the parents give differing accounts as to how much time X has spent with her father until now. (It is possible that the mother is minimising the amount of time whilst the father is maximising it.)
·The issues raised by the father regarding relocation are as follows:
i.X has been removed from her familiar environment and friendships
ii.The impact on X in the long term of the amount of travel involved for her in her mother’s proposals if she were to live in Melbourne
iii.The impact on the ways in which he could be involved in X’s life if she were to live in Melbourne, while he lived in Sydney, and the potential impact of this on the father- daughter relationship
iv.The potential impact of relocation on X’s sibling relationship with A
v.The secretive way in which the mother, in the end, relocated to Melbourne with X and that X may not have been adequately prepared for the move or been given a chance to say goodbye to important people prior to relocation
·The issues raised by the mother are as follows:
i.The father’s alleged history of perpetrating family violence in his intimate relationships and the potential for X to be exposed to it if it were to occur in his current marriage
ii.The father’s parenting capacity, in so far as it relates to his ability to engage with X’s emotional needs, as for example his allegedly having wanted to take her to the (country omitted), without the mother ,whilst she was being breastfed
iii.The mother’s capacity to provide better housing and more opportunities for X to engage in extra-curricular activities by living in Melbourne – related to the difference between Sydney and Melbourne in relation to cost of living and because she has employment in Melbourne
iv.The maternal grandfather lives in Melbourne, which gives X the opportunity to develop a relationship with him, in addition to his being able to provide some support when needed
v.From the mother’s expressed point of view, X’s time with her father if she were to live in Melbourne would differ little from the time she currently spends with him. The mother also indicated that her intention would be to come to Sydney on Friday, which would allow X to have a play date with one of her friends prior to spending time with her father from Saturday to Sunday. She does not anticipate any difficulty for X in making the flight between Melbourne and Sydney. X is said to enjoy the flights
vi.X’s views - according to the mother, X has indicated that she wants to live with her and to visit the father for only one night at a time
vii.The mother expressed concern that, if she is made to return X to Sydney from Melbourne, this would entail another change of school and a second relocation for X, who she views as having settled in her new environment. She also indicated that she would not know what her employment situation would be in returning to Sydney and that her contract may be rescinded and she may be made to repay relocation costs.
·The fact that the relocation was enacted unilaterally and notwithstanding the father’s lack of consent is not only likely to have had a negative impact on the parenting relationship but has also potentially further complicated X’s situation, in that, if the Court were to decide that it is not in her interests to relocate to Melbourne, she faces yet further disruption to most aspects of her life.
·It is noted that the mother’s stated that, in hindsight, she ought not to have moved in the way that she did but that she felt she had to do it in a “sneaky” way because she was afraid of what the father would do in that he could “nick off with X or come and abuse me”. She also stated that she had not expected that the father would fight her as hard as he has on the relocation, as he had previously left his daughter in the (country omitted) and had allowed his son to go to the (country omitted) for two years.
Issues impeding resolution
·The fact that this is a relocation matter in which both parents are invested, for apparently good reasons, in the positions they have taken.”
As to recommendations, Ms M recommended a further assessment by way of a Family Report.
Submissions
Each of the parties’ counsel presented lengthy oral submissions to the Court yesterday during the interim hearing. The transcript will, of course, reflect those reasons.
I don’t propose to summarise those reasons at this point but I will refer to those submissions where relevant during the course of these reasons.
Law and discussion
All parenting proceedings, of course, are governed by the provisions of Part VII of the Act. Parenting orders are defined in section 64B of the Act and deal with where a child lives and relevant to this dispute, the time that a child spends with another person. Parenting orders also deal with the allocation of parental responsibility.
Section 60CA of the Act provides as follows:
“In deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration.”
Section 60CA through s.60CC deals with how the Court determines the best interests of a child. This is sometimes referred to as the ‘legislative pathway’. The most relevant to these proceedings that are before me presently are the primary considerations in s.60CC(2) and the additional considerations in s.60CC(3) where relevant, and I will consider those briefly in a moment, in light of the evidence.
Before doing so, however, I will consider the Court’s power to make a recovery order in respect of children, make some general comments about the process of how the Court determines interim parent disputes, the law relevant to parental responsibility and its allocation, the issue relocation and the relevance of parenting plans.
Recovery
This application commenced with a recovery order request. Under s.67U of the Act, the Court does have the power to make a recovery order in respect of child “as it thinks proper”. Given that recovery orders involve the intervention of state and federal police, it can be quite traumatic for children as well as for the parties themselves.
In deciding whether or not to make such an order, the Court, pursuant to s.67V, must regard the best interests of the child as the paramount consideration, using the legislation pathway already identified. In other words, the test for making parenting orders is exactly the same test for making recovery orders.
I note that the recovery order in this case was not pressed during the interim hearing, given that both parties will presumably respect the Court’s decision in respect of where X should reside until further order.
Interim parenting proceedings
In relation to the relevant statutory criteria, the Court, of course, is guided by relevant case law, including the Full Court’s decision in Goode v Goode (2006) FLC 93-286 (“Goode”). At this point I note the following observation of the Full Court at paragraph 81 of that decision:
“In making interim decisions, the court will still often be faced with conflicting facts, little helpful evidence and disputes between parents as to what constitutes the best interests of the child.”
This matter is such a case. More specifically, it raises the reality that the Court cannot determine issues of credit at an interim hearing as the hearing is truncated, proceeds by way of submissions only and the evidence being presented by the parties is often still being assembled and has not been tested by cross-examination.
However, the Full Court made it clear that the legislative pathway must still be followed. In other words, the relevant provisions of the Act post the 2006 and 2012 amendments must be followed.
Parental responsibility
By making a parenting order, the Court notes that s.61DA of the Act incorporates a presumption that the Court is required to consider when it makes a parenting order, namely that the Court must apply a presumption that it is in the best interests of the child concerned for the child’s parents to have equal shared parental responsibility.
However, s.61DA(2) makes it clear that the presumption doesn’t apply if there are reasonable grounds to believe there has been abuse of the child or family violence.
Perhaps of more direct relevance to this proceeding, being an interim proceeding, is s.61DA(3) which states:
“When a court is considering an interim order, the presumption applies unless the court considers it would not be appropriate in the circumstances for the presumption to be applied when making the order.”
This provision was discussed by the Full Court in Goode.
In this case, I have determined that it would not be appropriate to apply the presumption or consider that issue at this very early stage of the proceedings. Consequently, as the issue of parental responsibility will not be considered as a part of this decision, there will be no order for parental responsibility made today.
That said, the Court reminds the parties and in particular, the mother, that until this issue is determined, decision-making relevant to parental responsibility should be consultative, particularly given that both parties are legally represented.
If there remains disagreement between the parties as to the need for the allocation of parental responsibility, when the matter next comes before me, it may be necessary for the Court to determine that issue sooner rather than later.
Given that there will be no order for equal shared parental responsibility made today as a result of this decision, s.65DAA is not triggered and will thus not be considered as part of the decision.
Relocation
I will now move to the relevant issues of relocation, including unilateral relocation.
The Act does not contain any presumption against a relocation order and nor is there any presumption that favours the parent that the child has been primarily residing with. In other words, relocation cases are not a special category of parenting orders.
What the Act does is provide the Court, as I’ve said, with a structured discretion to determine what order is appropriate in the circumstances of the case.
The impact of the 2006 amendments to the Act in relation to relocation cases was described clearly in paragraphs 79 to 81 of the decision of Boland J, sitting as the Full Court, in the case of Morgan v Miles (2007) 38 Fam LR 275; [2007] FamCA 1230, at paragraphs 79 to 81:
“79. In considering whether the child should live with the parent who proposes to relocate a Court:
· Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
· Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
· Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
· If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
· In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
· When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
· Will careful [sic] weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
- that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
- that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
- that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
- the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
·Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
80.It follows from my exposition of the legislation, that earlier core principles:
·that the child’s best interests remain the paramount but not sole consideration;
·that a parent wishing to move does not need to demonstrate “compelling” reasons;
·that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
·the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement, remain valid.
81. What the legislation now requires is:
·consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
·if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility.
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.” [6]
[6] Ibid, pp 290-291.
I note that the case of Morgan & Miles was raised during the course of submissions.
The High Court’s opportunity, of course, to consider relocation post the 2006 amendments came in the case of MRR v GR (2010) 240 CLR 461; [2010] HCA 4 (“MRR”). Of course, that decision reviewed a relocation flowing from a final decision. Nevertheless, despite that factual difference, the comments of the High Court are useful.
The High Court’s interpretation of the mechanics of Part VII does not change the triggering effect of s.65DAA if the presumption for equal shared parental responsibility arises pursuant to s.61DA.
While s.61DA requires consideration of the s.60CC factors, it is clear s.65DAA and the issue of reasonable practicability is not solely determined by consideration of the section 60CC factors. Some of these factors may, of course, be relevant - the capacity of the parents to encourage a meaningful relationship between the child and the other parent would be one example. That said, there are a number of other factors that are not specified in s.60CC, such as opportunities for accommodation, employment and extended family support, which would arguably be relevant to issues of reasonable practicability.
Consequently, these reasonable practicability factors must be considered separately according to the High Court, and clearly in this case, would be further ventilated and considered during any final hearing if needed.
Of course, the case before me is a very recent unilateral relocation that has been considered in a truncated interim hearing.
This context was also the subject of comment by Boland J in Morgan & Miles. At paragraphs 86 to 88 of her decision, Boland J made the following comments in the context of what she describes in her words as unauthorised removal of a child, that is, a unilateral relocation:
“86. I conclude the legislation, including the matters referred to above in Goode, does require consideration of section 60CC, 61D, and 65DAA (with reference to section 4(1)) in dealing with all interim applications for parenting orders including applications involving a relocation, or where an unauthorised relocation has occurred.
87. As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.
88. It appears to me that the very difficult issues in cases involving relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report, “make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the types of cases in which the child’s present stability may be extremely relevant on an interim basis.”
Her Honour then said:
“It further appears to me the comments of Warnick J in C & S remain apt and relevant to determination of these cases.”
C & S, the case Boland J referred to, was a Full Court decision decided in 1998 (C and S [1998] FamCA 66). In that case, Warnick J, with Ellis and Lindermayer JJ agreeing, considered inter alia the appropriateness of the following comments made by the trial judge (Barry J) in ordering the return of the child back on an interim basis. In that case, the trial judge said:
“… I believe the standard to be applied on an interim decision as even more stringent than on a final basis that where a relationship ends it is not for one party to re-locate thousands of kilometres away from the other party on a unilateral basis without any consultation whatsoever.”
In reviewing those comments, Warnick J said the following:
“In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a re-location, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents, from what it or they had been immediately beforehand.
His Honour [Barry J] in referring to the standard to be applied on an interim decision, in my view, was recognising, albeit perhaps in a shorthand way, the proposition which I have just enunciated and given what I have said of the proposition, it is clear that, in my view, I do not consider his Honour to have been expressing any wrong principle in the statement he made.”
Parenting plan
The Act specifically encourages parents to enter into parenting plans.
Parenting plans are intended to provide a simple informal process for formalising agreements about parenting between parents. Nevertheless, formally, parenting plans are defined in the Act as an agreement that is in writing, signed and dated and is/was made between parents and deals with certain matters.
I won’t read the relevant provisions into the transcript today that are relevant.
Parenting plans can include child support provisions, although to be effective for child support purposes, the plan must be combined with a child support agreement.
Changes introduced to the Act that commenced on 7 June 2012 require or impose an obligation on lawyers, family dispute resolution practitioners, family consultants and counsellors to advise parents that they can consider a parenting plan.
If they advise on such a plan, there is a long list of compulsory information that must be given to the parents which includes obligations to explain in simple language the availability of programs designed to help parents if they experience difficulties in complying with their obligations under a plan.
I note that in the case before me, the relevant parenting plan was dated 1 August 2011. Clearly, that was before the recent amendments and consequently, those requirements were not applicable at the time that plan was entered into. However, I’ve already said for the purposes of the reasons today that the six page parenting plan that the parties entered into in the case before me was both elegantly drafted and comprehensive in its terms and effects.
Parenting plans, of course, can be varied or revoked by a further agreement between the parties.
Unlike ‘child agreements’ that existed under the pre-Family Law Act Reform Act period and parenting plans that could be registered prior to 2004, parenting plans can no longer be registered by a Court or with a Court. Consequently, they are not enforceable by a Court like a Court order is.
I note again that the parenting plan before me was entered into in the year 2011, consequently it couldn’t have been registered in any event.
Nevertheless, it is important to note that under s.65DAB of the Act, if a Court is considering making a parenting order in relation to a child, the Court is to have regard to the terms of the most recent parenting plan, if any, that has been entered into between the child’s parents to the extent to which it relates to the child, if doing so would be in the best interests of the child.
For completeness, I would also note s.64D of the Act has the effect of making parenting orders subject to the terms of a later parenting plan, unless the parenting order specifically provides for this not to be the case. That, of course, is not relevant in the case before me today.
Primary considerations under section 60CC(2)
Section 60CC(2)(a)of the Act requires the Court to consider the benefit of a child having a meaningful relationship with both of the child’s parents.
The Full Court, of course, considered this provision and the concept of meaningful relationship in McCall & Clark [2009] FamCAFC 92. In summary, what the Court is required to do is to consider and weigh the available evidence and determine, assuming the Court is satisfied, that it is in the child’s best interests how and what orders can be framed in order to ensure the child or the children have a meaningful relationship with both of the child’s parents and by implication, extended family.
Generally speaking, it is beneficial for a child to have a meaningful relationship with each of the child’s parents and extended family. In other words, it would be in X’s best interests to develop a meaningful relationship not just with her mother, but also with her father.
That said, the Court must also consider section 60CC(2)(b), the need to protect the child from physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence.
With this case, I note that the mother makes allegations of family violence. I will consider that evidence shortly. That said, I note there has been no Form 4 (Notice of Risk) filed in these proceedings and that no AVO is in operation, to my knowledge, at present, relevant to the child.
I also note that pursuant to amendments that commenced in 2012, I am required to give greater weight to s.60CC(2)(b) as against s.60CC(2)(a).
Additional consideration under section 60CC(3)
Section 60CC(3)(a) – views of the child
In relation to s.60CC(3)(a), I would note that the views of the child, while significant, would be difficult to determine in this case, given the child is now currently only five and will shortly turn six. Nevertheless, it may be something the family consultant can assist the Court on, with observations perhaps of the child with each of the child’s parents.
Section 60CC(3)(b) - the nature of the relationship between the child and each of the child’s parents
We have in this case, not uncommonly in these types of disputes, different stories being presented to the Court at this stage. That evidence will, of course, require testing.
Nevertheless, it would appear that the child has always been in the mother’s primary care but that said, the child has spent regular time with the father, including overnight time.
There is a factual dispute, however, between the parties as to whether the child has spent three consecutive nights with the father. Certainly there seems to be an agreement that it is at least two consecutive nights.
Section 60CC(3)(c) - the extent to which each of the parents provide an opportunity to participate…
This is a crucial factor in the case before me. The mother made a unilateral decision to relocate with the child, knowing that that relocation was opposed by the father.
Indeed, there is independent evidence to suggest that the mother had made more than just plans to relocate when she advised the father of her intentions on 27 December last year.
The reasons why such has occurred, of course, will require formal testing. That said, the mother was candid in her acknowledgment that she clearly did not allow the father to participate in the decision she made to relocate the child to Melbourne.
That said, I acknowledge that there is evidence that the parties discussed relocation generally by either parent during 2013 and I will refer to that more in a moment.
Section 60CC(2)(ca) - the extent to which each of the child’s parents have fulfilled their obligations to maintain the child
In this case, both parties make allegations against the other. The mother, as I said, asserts that the child has consistently been in her care since birth and that is not the subject of challenge by the father, although, as stated, there is that factual dispute about how many overnights may have been spent in a row.
There is evidence that the father made himself available to the child for example, during the July school holidays last but I note that he insisted on a child support deduction for that period.
The mother, of course, asked the Court to accept that the father is unknown as a full-time carer of the child and she also disputes the father’s criticisms that her actions involved perfidy or deceitfulness as the parties had engaged in conversations during 2013 about the mother possibly relocating to Queensland and the father possibly relocating to the Northern Territory or perhaps the (country omitted) for work related purposes.
The mother also refutes the assertions of the father that he was opposed to the child attending (omitted) School.
The father’s assertions do seem somewhat inconsistent with the parenting plan.
Section 60CC(3)(d) - the likely effect of any changes…
The father advocates, of course, for the return of the child to New South Wales, and to some extent, there is a need for change acknowledged by the mother. The parties disagree, however, on the circumstances for that change to occur.
The mother, I note, proposes funding the child’s travel to and from Sydney every fortnight to spend time with the father.
While the Court is not in a position today to assess the financial viability of that proposal, the Court has concerns about the potential impact on the child of such proposed travel. There is no evidence before the Court that the child would be able to travel as an unaccompanied minor by air. Even if such were permitted by a relevant airline, the Court is not in a position today to assess whether that travel would be appropriate for the particular child.
There is also likely to be some loss or potential for some loss in the time that the child spends with extended family in Sydney, including a half-sibling, A. That said, the mother asserts that there should be no impact on the child’s relationship with, for example, the maternal grandmother who does reside in Sydney, because of the maternal grandmother proposing to travel to Melbourne to visit. And, of course, the move to Melbourne would promote the child’s relationship with the maternal grandfather who lives there.
Any change, of course, needs to be handled appropriately. That said, prolonged delay in the time that a child spends with a parent may cause problems or difficulties when the child’s time is ultimately resumed.
Section 60CC(3)(e) - the practical difficulty issues
The geographical divide or dare I say, the tyranny of distance that now exists between the parties in this case cannot be ignored by the Court.
While the Court acknowledges the problems that the mother would face, for example, if she was required to return the child’s residence and her own to Sydney, the problems presented by the mother’s proposal are also obvious. Any financial saving that her relocation to Melbourne may have achieved will be somewhat offset by the cost of regular air travel, taxi fares and/or hire cars that may be required.
Section 60CC(3)(f) - the capacity of each of the child’s parents
In this case, of course, each party makes criticism of the other and that evidence will require testing and I have already indicated that the mother asked the Court to question the father’s capacity to care for the needs of the child.
Section 60CC(3)(g) - maturity, sex, lifestyle and background issues
There are no issues specifically in this case to assist the Court.
Section 60CC(3)(h) - if the child is an Aboriginal child or a Torres Strait Islander child
I am not aware that the child is or identifies as Aboriginal or Torres Strait Islander
Section 60CC(3)(i) - the attitude issues
Whilst I reiterate earlier comments, I note a particular submission of the mother in relation to the father lacking some insight into his application for a recovery order.
I had previously referred to the potential impact of such an order upon a child, particularly a very young child. However, to be fair, there may be little option for an applicant if a parent refuses to comply with Court orders. That order, of course, is not sought in this decision and I will make no further comment about it because I have confidence that the parties would comply with the directions and orders in the Court and have no reasons to think they wouldn’t.
Section 60CC(3)(j) and (k) - family violence and family violence order provisions
As indicated, there are allegations the mother makes against the father in respect of family violence.
Although these allegations are untested in these proceedings, I note that the father pleaded guilty to the common assault of the mother in 2009 and an AVO was imposed in 2009 also, for 12 months.
The allegations of the mother are unsettling and if established, reflect poorly upon the father and his ability to deal and resolve disputes.
That said, I note that there is no current AVO in place and the previous AVO expired in 2010. And I’m not aware that there’s any assertion that the father has failed to meet or was charged in any way with breaching his AVO or bond.
Moreover, I note that the parenting plan was made after the alleged family violence and after the expiration of the AVO.
Section 60CC(3)(l) - whether it would be preferable to make an order, that would be least likely to lead to the institution of further proceedings
This is an interim hearing and, of course, that particular provision is not immediately applicable.
Section 60CC(3)(m) - any other fact or circumstance
The mother’s relocation appears to be influenced by work related and lifestyle reasons.
Her departure was planned prior to specifically raising the issue with the father.
The mother’s decision, for example, to unilaterally enrol the child in (omitted) Public School is concerning for a number of reasons. While it clearly demonstrates her taking responsibility for ensuring the child was enrolled in a school, the decision lacked any input from the father.
Although I note that the parenting plan arguably provided the mother with responsibility for decisions about X’s school, the parenting plan was clear in its effect that the parties should discuss long-term welfare and development matters. This was lacking in the unilateral relocation.
The mother’s decision not to list the father as an emergency contact for the school but to otherwise list firstly, one of her friends who also resides in Sydney, does suggest a lack of respect for the agreement contained in the parenting plan.
Conclusion
In regard to the respective applications and submissions in light of the available evidence and in the relevant statutory provisions, the Court is satisfied and determines as follows.
Firstly, of course, the matter will need to return before me for directions and I note that I’ve already indicated the Court can have capacity for that to occur at 10:00 am on 23 May next.
Secondly, in relation to parenting orders, I am satisfied and determined as follows:
a)I am not persuaded, as I’ve indicated today, to make an order for parental responsibility. The Court can reconsider that issue at the appropriate time.
b)I am satisfied, however, that until further order, the child’s best interests require that her residence be returned to Sydney.
c)There will be orders directing the mother to cause the child’s residence to be re-established in Sydney by the commencement of the New South Wales gazetted school term holidays for term 1; in other words, by Monday, 14 April 2014. As I stated in Court, the Victorian gazetted school term holidays for term 1 commence on Monday, 7 April 2014, that is the week before that of New South Wales. The additional week or that week provides, in my view, an appropriate opportunity for the mother to make and complete the necessary move back to Sydney. I acknowledge and understand the submissions of both parties as to the benefits or otherwise of the child remaining in her new Melbourne-based school in the very short term or starting in the school that she is likely to stay in until the Court can resolve this issue on a final basis. Nevertheless, the child has experienced disruption, clearly. As stated the change needs to be managed carefully and must be child-focused. A child starting a new school at the commencement of a new year, for example, or a new school term, provides some normality, in the Court’s view. I would expect the mother to organise the child’s current school to liaise with the new Sydney school to ensure that the child’s educational needs are appropriately catered for. There will be a notation included in the Orders I make today to that effect. I will also allow the mother to provide a copy of these Orders should she so wish, to the current school to explain that.
d)For the remainder of the New South Wales gazetted school term, that is until Monday, 14 April, the child can live with the mother in Melbourne and spend time with the father each alternate weekend, commencing tomorrow, Saturday, 22 February, from 10:00 am Saturday until 4:00 pm Sunday. I note that that had already been organised when the matter was before me yesterday. The mother is to cause the child to be brought to Sydney on the relevant following alternate weekends at her expense. Changeovers can occur at a place that the parties can agree to, but if they’re unable to do so, outside the residence of the father.
e)The child will spend time with each of the parties during the New South Wales gazetted school term holidays as follows:
i)With the father from 10:00 am Monday, 14 April until 4:00 pm, Wednesday, 16 April, and again from 10:00 am Friday, 18 April until 10:00 am, Sunday, 20 April, noting that I’ve made it 10 am because Sunday, 24 April is Easter Sunday. In addition, from 10:00 am Friday, 25 April until 4:00 pm, Sunday, 27 April; and
ii)With the mother at all other times during the school holiday period.
f)The mother will also be restrained from that point onwards from further relocating the child’s residence from the Sydney metropolitan area.
g)Upon the commencement of Term 2 of the New South Wales gazetted school terms (or in other words, 28 April 2014), the child will live with the mother and spend time with the father during the school terms as follows:
i)Each alternate weekend commencing Friday, 2 May 2014 from after school or 3:00 pm on a non-school day, until 6:00 pm Sunday; and,
ii)Each alternate Wednesday overnight, commencing 7 May 2014 from after school or 3:00 pm of a non-school day, until before school Thursday or 9:00 am of a non-school day.
h)The Court does not propose to pronounce defined orders for further school term holidays for 2014 and beyond as part of this decision. The orders will simply say in respect of further school term and long summer school holidays at such times as the parties can agree. I will allow the parties to have those discussions. That said, I am satisfied that some increasing transition should be considered by the parties. Let me give them an example. Perhaps during the July school holidays, the child could spend between three or four continuous nights with the father. September/October school holidays, the child could perhaps spend between five and six continuous nights with the father. And over the long summer school holidays at the end of this year, perhaps week about may be appropriate in the circumstances. And, of course, the parties could thereafter consider or the Court can consider transitioning the child to equal time during school holidays in 2015 and beyond. When the matter returns before me on the next occasion, the parties can advise if there is any agreement in relation to holiday time. Of course, if there is not, the Court may be required to consider that issue for the parties.
i)Should the parties remain in dispute about parenting matters, when the matter next comes before me, I will consider Ms M’s recommendation to obtain a family report and on that occasion, the mother’s request for expedition both of the family report and perhaps of the final hearing itself.
j)I note that neither party sought specific orders about communication time. I assume that is because that is not an area of dispute between the parties. Of course, if it is, the parties can advise the Court on the next occasion and the Court can consider the matter.
k)I am satisfied that until further order, both parties should be subject to the following restraints:
i)Firstly, non-denigration or denigrating each other in the presence of the child or allowing a third party to do so;
ii)Next, swearing or using inappropriate language in the child’s presence or allowing any third party to do so; and
iii)Next, drinking alcohol to excess which will be defined as where their blood alcohol level would exceed the legal limit to drive a motor vehicle in New South Wales, at all times that the child is in their respective care.
I am satisfied that such restraints on an interim basis protects the best interests of the child and does not unfairly intrude into the civil liberties of either parent.
l)Lastly, in the event that the parties cannot reach agreement as to the location of any changeovers arising from these Orders that has not already been dealt with or that doesn’t occur at the child’s school, then the mother can cause the child to be delivered to the father’s residence at the commencement of all such times that she spends with the father, and the father can cause the child to be delivered to the mother’s residence at the conclusion of all such times that the child spends with the father.
I will now pronounce the Orders and Notations of the Court consistent with these reasons, being satisfied that they are in the best interests of the child.
I certify that the preceding one hundred and thirty nine (139) paragraphs are a true copy of the reasons for judgment of Judge Monahan
Associate:
Date: 23 May 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Remedies
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Procedural Fairness
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