OTTO & BRINDLE (No.2)
[2015] FCCA 2979
•16 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OTTO & BRINDLE (No.2) | [2015] FCCA 2979 |
| Catchwords: FAMILY LAW – Interim parenting – where the mother unilaterally relocated with the children to Melbourne – where the mother failed to exercise joint and consensual decision making with the father – where the father seeks the return of the children – where the mother appeals an order requiring her return with the children – where the Appeal is allowed – where the matter is remitted for rehearing – court’s lack of resources – delay. |
| Legislation: Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 60CC(2A), 61DA, 65DAA, 65DAA(5) |
| Goode & Goode (2006) FLC 93-286 Cowling & Cowling [1998] FamCA 19 Griffiths & Griffiths (1981) FLC 91-064 Rainer & Rainer (1982) FLC 91-239 U & U [2002] HCA 36 Other Articles Cited: R Chisholm, Family Courts Violence Review (2009) The State of the Australian Judicature (2010) 84 Aust Law Journal 310 Family Violence – ‘A National Legal Response’, Australian Law Reform Commission Report, 114 The National Plan to Reduce Violence against Women and their Children 2010‐2022 (the National Plan) 2010 COAG Jo Blanden and Lindsey Macmillan “Education and Intergenerational Mobility: Help or Hindrance?” Department of Qualitative Social Science, Institute of Education, University of London January 2014 Dennis Glover, “An Economy Is Not A Society: Winners and Losers in the New Australia”, Dennis Glover Black Books 2015 |
| Applicant: | MR OTTO |
| Respondent: | MS BRINDLE |
| File Number: | PAC 5320 of 2013 |
| Judgment of: | Judge Harman |
| Hearing date: | 16 October 2015 |
| Date of Last Submission: | 16 October 2015 |
| Delivered at: | Parramatta |
| Delivered on: | 16 October 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Jurd of Peter Jurd Lawyer |
| Solicitors for the Respondent: | Mr Raihani of AC Law Group |
ORDERS
Discharge the Orders made 11 May 2015.
Pending further Order, the parents Mr Otto and Ms Brindle, shall have equal shared parental responsibility for their children, U born (omitted) 2002, V born (omitted) 2005, W born (omitted) 2007, X born (omitted) 2009, Y born (omitted) 2012 and Z born (omitted) 2012.
Pending further Order, U, V, W, X, Y and Z shall live with their mother in Melbourne.
Pending further Order, the mother shall be restrained from relocating the children’s place of residence from the general locality in which they presently live without giving the father not less than 42 days’ notice of her intention to do so.
Pending further Order, the father shall be entitled to spend time and communicate with the children at all times and by such means as are agreed between the parties, including, but not limited to:
(a)For periods of not less than 10:00am until 6:00pm on any occasion that the father is present in Melbourne and upon him giving to the mother not less than 7 days’ notice of his intention to be there and provided that such time shall occur during school holidays each day for one half of those holidays and during school terms for all days of any weekend that the father is present;
(b)By telephone at all reasonable times and each party shall ensure that they keep the other advised at all times of a telephone number by which contact can occur between them.
Transfer these proceedings to the Federal Circuit Court of Australia sitting at Melbourne.
The matter is listed for further mention and directions before Judge Bender at 9:45am on 1 February 2016.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Otto & Brindle (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5320 of 2013
| MR OTTO |
Applicant
And
| MS BRINDLE |
Respondent
REASONS FOR JUDGMENT
Parties and children
These proceedings involve contested interim parenting arrangements for six children of a relationship.
The parties to the proceedings are the children’s parents, being the children’s father, Mr Otto, who is the Applicant and their mother, Ms Brindle, who is the Respondent.
The six children of the relationship are as follows
U, born (omitted) 2002, accordingly, aged 13 years;
V, born (omitted) 2005, accordingly, aged 10 years;
W, born (omitted) 2007, aged eight years;
X, born (omitted) 2009, aged six years; and
Z and Y, twins, born (omitted) 2012.
Material considered
In dealing with the proceedings today, I have read and considered each of the documents identified by the parties.
In the father’s case, that has comprised an Amended Initiating Application, filed 19 November 2014, and two Affidavits, filed by him on each of 11 June 2014 and 19 November 2014, respectively. A document is also tendered in the father’s case, Exhibit A, being a rental receipt history with respect to the mother’s accommodation in Melbourne.
In the mother’s case I have read and considered her Response, filed 31 July 2014, together with three Affidavits filed respectively, 31 July 2014, 16 April 2015 and 16 October 2015.
In the father’s case, I have also had regard to an Affidavit of Service, filed 14 July 2014. The Affidavit of Service deposes to service upon the mother, 14 June 2014, some 16 months ago now. The Affidavit of Service clearly establishes that the mother was served on the very day prior to her departure from her then accommodation in Sydney to then move with the six children to Melbourne where she has since resided.
I have also had some regard (for limited purposes which I will endeavour to make clear) to the father’s original Initiating Application filed in these proceedings, 11 June 2014, together with an Initiating Application which had been filed by him 6 December 2013.
Finally, I have had regard to reasons delivered by Ryan J, sitting as a single Judge constituting a Full Court hearing an Appeal against Orders made by Judge Dunkley on 20 February 2015. Her Honour heard the Appeal on 9 July 2015 and delivered short reasons 21 August 2015. I have had regard to paragraphs 8 to 30 of those reasons which are set out under the heading “Background facts”. That which is set out thereunder would appear to be, as her Honour described, “largely uncontroversial facts.” I will, in due course, adopt that portion of her Honour’s reasons.
I make clear in doing so that I concur with her Honour’s view that those facts are largely uncontroversial. I do not adopt them as findings made by another Judicial Officer. I have come to the same albeit independent views as Her Honour and accept that Her Honour accurately summarises the uncontroversial evidence and it is thus preferable to highlight consistency in findings.
Findings of fact are available at an interim level, notwithstanding the absence of testing, and the limited nature of the evidence which the parties have produced. The Court is urged (see paragraph 68 of Goode & Goode (2006) FLC 93-286) to be appropriately cautious in arriving at any finding of fact or, indeed, making a finding at interim hearing unless it is necessary. However, that which is set out under the heading “Background Facts” is, as her Honour has described, “largely uncontroversial” and sets out the chronology of the relationship between the parties rather than anything of controversy or contention.
The proceedings are an interim determination of the children’s arrangements. The proceedings are to that extent, and as the Full Court has been clear in both Goode & Goode and Marvel [2010] FamCAFC 101, a “prospective determination” of the children’s best interests. Past arrangements are relevant, indeed, as is submitted on the father’s behalf and by reference to Boland J’s dicta at paragraph 87 of McCall & Clarke [2009] FamCAFC 92, “potentially highly relevant”, although not necessarily dispositive.
As the Full Court was clear in each of Goode & Goode and Marvel, that portion of prior case law, constituted by authorities such as Cowling [1998] FamCA 19, Griffiths (1981) FLC 91-064, Cilento (1980) FLC 90-847 and Rainer & Rainer (1982) FLC 91-239, which directed the determination of interim proceedings by seeking to ascertain a past established status quo, if one could be ascertained, and restoring it, if it had been changed unilaterally, is no longer good law.
The Court must have regard to the facts and circumstances of the case, the application of the relevant provisions of Part VII of the Family Law Act 1975 to those facts and thereby make a prospective, (i.e. future focused) determination of that which will best meet the children’s interests.
Before proceeding further with the evidence and a consideration of the legislative pathway, it must be observed, as was commented by Kirby J in U v U [2002] HCA 36, at paragraph 137), that cases such as this involving a determination of whether the intended or prospective relocation or the actual relocation of a parent involves:
…hard decisions which have to be made.
This is, for these parties, the second such decision with respect to the same issue this year. As was also observed in U v U, by Hayne J, (at paragraph 170):
What have come to be known as “relocation cases” present difficult questions. Much of that difficulty stems from the fact that to take a child from the place where one of the parents lives (and, in some cases, works) to some distant place will, if the other parent does not move, necessarily affect the way in which the child’s relationship with that other parent can be maintained and allowed to develop. It follows that the needs and wishes of each parent and the needs of the child (and, if of sufficient age, the child’s wishes) all bear upon the question to be considered by the Family Court [or, in this case, the Federal Circuit Court of Australia].
In this case there is relative agreement with respect to factual history. That, sadly, includes relative agreement as to that which has occurred with respect to the proceedings since their commencement.
History of Proceedings
This matter is infected by delay, (as was observed by Judge Dunkley when he had dealt with the matter, and as is commented upon by Ryan J in the portion of the Full Court’s reasoning referred to above).
In this case delay is real and apparent. Delay is prejudicial to one or both of the parties and, potentially, if not in reality, the best interests of these children. It is not delay occasioned by the parties. In this case delay is most accurately described, in most aspects, as delay which has arisen as a consequence of judicial movements and lack of resources within the Registry.
The proceedings were commenced by the father, as indicated, by an Initiating Application filed 11 June 2014. Whilst the father has amended his Application, the only amendment of substance is to include an additional plea for interim relief seeking, rather than a restraint upon the mother relocating the children away from Sydney, a positive injunctive plea that the mother return the children to Sydney and to thereafter live with them within 25 kilometres of the (omitted) Post Office.
The father had, prior to these proceedings, commenced proceedings by an Initiating Application filed 6 December 2013. Therein, the father had sought similar, although slightly different relief to that sought in this present tranche of proceedings. The father gives clear evidence in the Affidavit material considered that he had commenced those proceedings on the basis that he was concerned and had heard what might be best described as “rumours” that the mother was intending to leave Sydney and depart with the children to live in Melbourne. Thus, the father commenced proceedings and sought an Order restraining such relocation on both an interim and final basis.
Curiously, although, ultimately, not a great deal if anything turns upon it, by his earlier Application the father sought far more extensive time with the children, being periods from 11am until 8pm each Saturday and each Sunday whilst the father, as it is described in his Application “…does not have accommodation for the children to spend overnight time with him” and, upon obtaining appropriate overnight accommodation, to then spend time with the children “as agreed” and, presumably, including overnight time.
In this tranche of proceedings the father seeks that he spend time with the children from 10am Saturday until 1pm Saturday or, otherwise, for time to occur for not less than weekly intervals for a period of “not less than two hours”. The same Order is sought on both an interim and final basis. Thus, as her Honour observed in the background facts contained within the Full Court’s decision, the father’s Application before the Court is to spend time with the children for no more than three hours per week. That is in no way a criticism of the father. For reasons that will become apparent, it is, however, the reality of his Application.
The initial Application was not proceeded with. The father did not attend on the first return date, 18 February 2014, and in circumstances described and explained in his Affidavit material. As a consequence of non-appearance an Order was made dismissing the father’s Application for want of prosecution.
Upon these proceedings being commenced, the father had attended, it would seem, upon a Registrar to obtain an abridgment of time.
Regrettably, the abridgment of time granted by the Registrar, accepting for one moment that an abridgement was granted, although a bench sheet cannot be located upon the file, was far from substantial. The father’s Application was filed on 11 June and was listed on 15 July 2014. The delays within this Registry have increased substantially since that time. The Application is not endorsed as having been subject to an Application for abridgment and it may or may not be that it was so. In any event, the father cannot be criticised for failing to bring his Application promptly upon his becoming aware of the mother’s proposed or intended relocation.
The father’s evidence in that regard is that shortly prior to the swearing of his Affidavit – the father is somewhat non-specific in that regard, simply referring to something having been said to him “recently”, but, clearly, before the Affidavit was sworn on 10 June 2014, that he had been told by a close and mutual friend of the parties:
I saw Ms Brindle a couple of days ago and she said to me that she is moving to Melbourne on (omitted) 2014. She already has started to rent a place in Melbourne.
The conversation continued with respect to other elements of the suggested move. The father also indicates that:
Over the last couple of weeks [being the weeks preceding the swearing of his Affidavit and commencement of these proceedings] that a number of people had advised [him] that they had spoken to the mother and told [him] the same thing, [being that the mother intended to move on 15 June 2014].
The mother was served promptly with the father’s process as the Federal Circuit Court Rules 2001 require [see rule 6.03]. Notwithstanding that service occurred before the mother’s proposed move the mother acted upon that which, on the father’s own evidence, was a plan that had been put into place prior to the commencement of the proceedings and relocated herself and the children to Melbourne.
It would appear common ground that there has been no face-to-face time between the children and their father since these proceedings were instituted. That is now for a period of 16 months.
There is some little dispute as to whether the father has had any communication with the children. The mother suggests none whatsoever. The father suggests very little. As a point of commonality there has been, at the very least, very little communication that has happened.
The Initiating Application first came before a Judge of this Court, now retired, on 15 July 2014. On or by that date the mother had not filed a Response. That is regrettable. Not only has it created the first of many delays in the proceedings but the Federal Circuit Court Rules 2001, [rule 4.03], provide a period of 14 days from the date of service until the date that a Response is to be filed and served. Certainly, the mother had plausible explanation for why there may have been delay, which was, in reality, only a week or so. She was, at the time that she was served with process, commencing her move to Melbourne.
The proceedings were adjourned for a relatively brief period, a period far shorter than can be accommodated with current lists, to 22 September 2014. On that date, both parties were legally represented and further directions were made for the father to file and serve an Amended Initiating Application, his Application having sought restraint upon the mother relocating rather than having sought injunctive relief for her to return. It is unclear from the bench sheet, no Order having been engrossed or issued, as to whether that was an Order that was sought or whether it was an Order that was made by the Court. Either way it may have been preferable in hindsight for leave to have been granted to orally amend the Application to seek the injunctive relief now sought. The matter may not have been capable of address on the day, it may have been. That will never be known. However, the adjournment certainly created yet more delay.
The proceedings were then adjourned to 20 November 2014. On that date the proceedings, no doubt in part as a consequence of the then imminent completion of sitting duties by the Judge before whom the matter was then listed, were further adjourned to a date before Judge Dunkley. The date allocated, 4 December 2014, ultimately became unsuitable or unavailable and a minor amendment to that date, involving an adjournment of less than a week to 12 December, was directed by an Order made in chambers.
On 12 December, both parties were legally represented and it would appear that both parties were before the Court, the bench sheet noting that it was so. On that date, a number of Orders were made by consent and pending further Order. Those Orders provided for the children to spend time with their father in Melbourne from 10am until 6pm on nominated dates, namely 22 and 23 December 2014, 7 and 8 January 2015 and 7 and 8 February 2015, as well as other times as might be agreed. The matter was put over for interim hearing with a direction that each party file and serve a Minute of Orders setting out their primary and alternate positions. I have not sought to ascertain whether that direction was complied with nor the basis upon which the matter was further adjourned and I accept as a consequence of pressure of work.
An interim hearing proceeded on the allocated date, namely 20 February 2015. On that date his Honour heard the case and delivered an Extempore Judgment, which has ultimately been engrossed and issued to the parties. His Honour made Orders compelling that the mother, by 17 April 2015, relocate the children’s residence to a place in metropolitan Sydney or the surrounding areas of metropolitan Sydney, including the (omitted), (omitted) or (omitted).
Orders were made for the parents to have equal shared parental responsibility. That is indeed an Order that the parents each continue to seek.
An Order was made for the children to live with their mother and, upon the mother’s relocation to Sydney, to spend time, as had been sought by the father, for a period of three hours each Saturday from 10am until 1pm.
The mother subsequently filed and diligently so a Notice of Appeal. That Notice of Appeal was dealt with expeditiously by the Full Court and heard, as I have already indicated, on 9 July 2015. In the intervening period, an Application in a Case was filed seeking a Stay of Orders. That Application was dealt with by his Honour on 11 May 2015 and a stay was granted, the mother, by that point, having ascertained a date for hearing of her expedited Appeal.
An Order had also been made for the preparation of a Family Report and that the proceedings be adjourned to a date which has subsequently been amended by Orders in Chambers, (the date allocated inadvertently having been Good Friday, a public holiday) for further mention.
The Appeal having been successfully heard and determined and Judgment delivered, 21 August 2015, the matter has been remitted to this Court for rehearing. The matter was listed at the first available opportunity, being today. The matter is dealt with in a duty list and is concluded well after normal Court sitting hours. However, it would be a travesty to expect that the parties would be “not reached” in the hearing of their interim Application in the above circumstances and, thus, the accommodation is made.
What is clear and apparent from the above is that from the time that the father’s Initiating Application was filed, which included a plea for interim injunctive relief, the Application was not heard and could not be heard due to a number of difficulties, principally resourcing, for a period approaching nine months.
That delay I make clear, without being critical of any of my colleagues who have previously been involved with the matter, is unacceptable. No community should expect or tolerate such a delay in the determination of their children’s best interests. It is, however, the delay which parties can, in 2015 and beyond, expect routinely as dates are simply not available as there is far too much work for the Judges available. It is for that reason that the matter has been heard until nearly 7pm on a Friday evening as, if adjourned, this matter could not be accommodated until April, 2016 some 6 months hence or 8 months after remittal.
What is also apparent from the above is that on each occasion that the matter was adjourned, it was a relatively brief adjournment, albeit that there were quite so many of them. The adjournments were for periods of four to eight weeks each. Such brief adjournments are no longer possible. The reason the matter is completed today in the duty list and sitting beyond usual sitting hours is that any adjournment of the matter for interim hearing would delay the proceedings until April, 2016. Such is the volume of work before the Court that there are simply no available dates earlier than that.
If the Family Report that was ordered in February, 2015 were to be completed, it would not be available until April next year (2016). Then there would be the problem that there are no hearing dates available as the 2016 calendar is already filled and at an overlisting ratio of 300-400%. As a consequence, by the time a Family Report were completed, the matter would need to be adjourned to a callover and, realistically, absent dramatic and significant allocation of further resources to this Registry, which resources are simply not available within the Court and cannot be made available without fresh appointments to the Court both replacing retired Judges and adding additional Judges, these proceedings would not likely reach hearing before late 2017/early 2018 at the earliest.
That delay has some relevance ultimately, although I make clear and concede, as I have during submissions put by the father, that it should not be so. It is oft quoted and explicably so that “justice delayed is justice denied”. If ever a litigant would be entitled to take hold of that phrase and adopt it as their own, it would be Mr Otto.
These proceedings have today had their eighth Court event in a period of 16 months. Proceedings of this nature, dealing with a determination of children’s best interests, should be able to be heard and determined not on an interim but final basis in a period significantly less than that. Proceedings such as this, an Application dealing with a family and the best interests of children warrant and deserve expeditious attention. This family deserves better.
The family is the fundamental unit of society so international law, commencing with the 1948 Universal Declaration of Human Rights, dictates. Australia is a signatory to that convention. It has an obligation to thus treat the family as the fundamental unit of society.
The child’s best interests are the paramount consideration in all decisions affecting children. So much is made clear by the International Convention on the Rights of the Child. Australia is a signatory to that Convention. Indeed, the convention is incorporated in its totality into the Family Law Act 1975 by section 60B(4). The child’s best interests are expressly made paramount by section 60CA of the Act.
How one can expect that litigants before the Court, delayed for 16 months in seeking the determination of an interim Application, would see that the best interests of their child have been treated as paramount is difficult to comprehend. How they could expect to be satisfied that their children’s best interests are paramount when the final hearing of these proceedings, if it remains in the Parramatta registry, from today will take at least another two years to reach a conclusion, thus three and a half approaching four years in total, is equally inexplicable. The resourcing of the Court does not permit these proceedings to be determined any more quickly.
Thankfully, as is observed by Counsel for the father, in this case there are no allegations of abuse, family violence or risk thereof raised by either party. Imagine if there were? Imagine if litigants from a family, fractured and now separated, with issues of live and active controversy as to the safety of their children were expected to wait 14 months for an urgent interim determination of their children’s interests and nearly four years for a final determination? In such circumstances it could not be suggested that the obligation to treat the child’s best interests as paramount was fulfilled. And yet that is the very circumstance that through resourcing and structural family law is created.
Some few weeks ago Victorian Coroner Judge Gray released his report concluding the Luke Batty inquest and in which Judge Gray commented (para 124) “...delays such as these, particularly when combined with other delays in the system, can lead to an increasing risk of escalating problematic behaviours...”. The delays of which Judge Gray spoke (and I respectfully wholeheartedly concur with and adopt His Honour’s comments) were nothing of the magnitude that cases before this Court face in awaiting determination.
In 2009 a substantial review of the treatment of family violence by Federal Courts was undertaken by Justice Chisholm (retired)[1]. The Chisholm review called for more resources to the entire family law system including Judges, family consultants (report writers), contact centres and dispute resolution services.
[1] R Chisholm, Family Courts Violence Review (2009), 53.
It is to be noted that at the time of Chisholm’s review, consistent with a review of the 2006 amendments to the Family Law Act 1975 undertaken by the Australian Institute of Family Studies (AIFS), a 20% reduction in filings in parenting cases was described (as a consequence of the establishment of Family Relationship Centres and the use of “compulsory” Family Dispute Resolution not only before but as an alternative to proceedings). That “honeymoon period” as observed by AIFS has passed and filings have substantially increased such that the 20% reduction in filings has evaporated. It was, however, in that environment of reduced filings that Chisholm had called for more resources.
In real terms, taking into account resources, the number of cases filed and the complexity of those cases, this Court now has considerably fewer resources than it did in 2009 when Chisholm called for increases. As a consequence, the ability of this Court and its Judges to deliver justice, as demonstrated by this case is, whether in reality or in its perception by litigants, eroded. That is all the more so when serious controversies regarding children’s well being are dealt with in busy lists of 30 or more matters with Judges sitting 10 hours or more into the evening to attempt to finish the work load.
As was commented by Justice Rares of the Federal Court of Australia in a 2010 paper “What is a quality judiciary?” (FCA) [2010] FedJSchol 24 (see para.3):
Courts are not sausage factories. Cases are not mere statistics. The real work of the courts in society cannot be totalled up, and measured by, arbitrary business tools, such as key performance indicators, as some commentators, accountants, economists and politicians may believe. Each case before a court of law involves a controversy that the Court must resolve as the institution in which every member of the community must have confidence
His Honour Justice Rares went on to comment (paras.11, 13, 23 and 24):
Judges and courts are institutions of government. In the Westminster system the judiciary is known as the third arm of government...The consequence of the separation of powers is that the legislative branch enacts the law, the executive branch administers and carries the law into effect, and the judicial branch interprets and enforces it by authoritatively declaring what the law is and the parties’ rights are[2]...
Recently the Chief Justice of Australia, the Hon Robert French AC, re-endorsed remarks of his predecessor, Sir Gerard Brennan AC, on this topic[3]. Both warned that courts could not trim their functions and were bound to hear and determine all cases brought within their jurisdiction. They emphasised that if the Courts could not hear cases because of lack of resources, the rule of law would be immediately imperilled [emphasis added].
Thus, it is a fundamental obligation of the legislative branch to provide adequate fiscal support for the judicial branch; both in terms of judicial remuneration and resources for the Courts as functioning institutions.
[2] cp: James v The Commonwealth (1939) 62 CLR 339 at 373 per Dixon J.
[3] The State of the Australian Judicature (2010) 84 Aust Law Journal 310 at 317-318 quoting the Hon Sir Gerard Brennan AC: The State of the Judicature (1997) 72 Aust Law Journal at 35.
It is difficult for this Court to be a “functioning institution” when the workload of its individual members is crushing. Workloads have tripled in the last 18 months and with the consequence of fatigue and ill health for some.
With such a workload, case management is realistically all that can occur and representing little more than, as the cliché describes, “reorganising the deckchairs on the Titanic”. That is a somewhat apt albeit clichéd analogy (and without intending any disrespect to the many tragic and largely working class victims of that disaster) in light of the fate that potentially awaits litigants trapped on the deck of this ship, struck by an iceberg of under resourcing and with no lifeboats as internal reserves nor promises of rescuing ships, bringing increased resources, on the horizon. All this Court can do is play on as the deck tilts and, perhaps, pray that something better may come for those that follow[4].
[4] As indeed did occur following the English and American enquiries into the sinking of the RMS Titanic both finding that the disaster was entirely avoidable, the owners and financiers being held culpable for the disaster and myriad recommendations being made and implemented including the requirement that any passenger ship have sufficient lifeboat seats for all on board. The English enquiry did observe “the importance of this Enquiry has to do with the future. No Enquiry can repair the past”.
If the perception of litigants in this case as to the delivery of justice to them is tarnished that is both regrettable and explicable. I cannot help but wonder what dire consequence would flow to individual litigants, their children and ultimately the community and society, when cases involving abuse and violence are subjected to the same delays as they are.
In 2010 the Australian Law Reform Commission released its report Family Violence – “A National Legal Response”, Australian Law Reform Commission Report, 114 (the ALRC report). Also in 2010 COAG released The National Plan to Reduce Violence against Women and their Children 2010‐2022 (the National Plan). A key element of the National Plan (National Outcome 5) is a call for action to ensure that “justice responses are effective”.
Significant delay in the determination of cases due to inadequate resources are not effective “justice responses”. Nor are they remotely protective of the victims of violence. It is all very good and very welcome to raise awareness of family violence. But those fleeing family violence are entitled to be made aware that they will then, in attempting to deal with their parenting and financial issues with their former partner, join a chronically log jammed Federal Court system that will not, at least at this Registry, be able to hear their case for some years.
These issues I have dwelt upon for some brief moment so that Mr Otto might have some understanding that he is not criticised for any delay in these proceedings. Equally, Ms Brindle is not criticised for delay. Certainly delay has arisen in the address of the proceedings as a consequence of the Appeal but that is Ms Brindle’s right and, indeed, she has been successful in prosecution of her Appeal.
The delay which has arisen is largely as a consequence of a lack of resources allocated to this Court and the difficulty in dealing with proceedings when Judicial Officers depart and are not replaced. That is what has caused the majority of delay. That delay will, as I have conceded to Counsel for the father, no doubt be perceived as, if not in reality, constituting some significant degree of injustice at least from the father’s perspective if not that of both parties.
The evidence
I do not propose to canvas the evidence in any great detail. The evidence is largely uncontroversial.
The parties had filed their material in the latter part of 2014 in anticipation of interim hearing. The most recent evidence I have is that of the wife, contained in her Affidavit filed in April 2015 in support of an Application for a Stay, pending hearing of the Appeal and her brief Affidavit filed in Court today. The Affidavit is brief deliberately as it is intended purely to update certain arrangements with respect to the mother’s household.
I adopt at this point and incorporate herein paragraphs 8 to 30 of Ryan J’s reasons, including the heading “Background Facts”.
8. So as to provide context to the appeal, reference needs to be made to some key and largely uncontroversial facts.
9. The father was born in 1976 in (country omitted).
10. The mother was born in 1984 in (country omitted).
11. The parties married in 2001 and their first child, V was born in 2002.
12. In (omitted) 2004, the family fled (country omitted) and sought refuge from the UNHCR. They eventually entered a refugee camp which is where, in 2005, their daughter W was born.
13. The family was granted refugee status and arrived as refugees in Australia in (omitted) 2006. They were sponsored through their church.
14. The family established their home in suburb T in greater western Sydney, which is where until separation, they remained.
15. The child Y was born in 2007. The child X was born in 2009 and twins, U and Z were born in 2012. The children have generally enjoyed good health though the child Y will require surgery to address a longstanding condition.
16. Because the parties could not speak English, as soon as they arrived in Australia, they started English language classes. Thus, the children were placed in childcare and all children went on to attend preschool at suburb T. As the children reached school age, they started school at a nearby (omitted) school where they attended until they moved to Melbourne.
17. Both parties sought to obtain work and qualifications. The father was able to obtain some (omitted) work and employment as a (omitted). He last had paid employment in either 2010 or 2011. The mother commenced study to be an (occupation omitted) but it is not clear whether she graduated.
18. In any event, with the father unemployed and the family living in rental accommodation and reliant on Centrelink benefits, the parties came under financial stress. There is a dispute about whether the father contributed his Centrelink benefits to the family albeit resolution of that issue is for present purposes irrelevant. There is no dispute that the parties fell behind in necessary day to day expenses and that the mother remains liable for comparatively significant utility debts incurred prior to separation.
19. In an attempt to improve the family’s financial circumstances, the mother became a (occupation omitted) and (employment omitted) from the family home. By then the parties’ relationship was under pressure and there were arguments about their parlous financial circumstances. Some of the arguments were sufficiently serious that on a number of occasions one or the other of them called police to their home and mutual apprehended violence orders were made for the protection of one or the other. It would seem common ground that although interim orders were made, most, if not all, apprehended violence order applications were dismissed.
20. The mother asked the father to leave the home in 2012 but he declined. It would seem the parties’ relationship continued to deteriorate and by agreement, in July 2013, he moved out.
21. Having separated, the father was eligible for a Newstart allowance of about $260 per week which was his sole source of income. He was unable to afford to establish a home for himself, and moved into a hostel at suburb M. Since then, he has been able to stay with different friends and at the time of hearing was living in shared accommodation in suburb T. Constrained by his accommodation the father was unable to have the children overnight and he has only seen them in public places; for example shopping centres and parks. There was an issue at trial as to whether X stayed with the father overnight “on some occasions”; and whether the father last saw the children on 17 February 2014 (according to the mother) or 7 June 2014 (according to the father).
22. After separation the mother and children continued to live in the family home at suburb T where she paid about $400 per week rent. Her income comprised Centrelink benefits and approximately $15 per week child support.
23. Not long after the parties separated, the mother wanted to move to Melbourne where she has a cousin who lives with his wife and five children. In late 2013, the father commenced proceedings to restrain her from going. Agreement was reached early in these proceedings that the mother would not move, albeit no orders were made to stop her. The mother and children then moved to suburb S where she paid $450 per week rent.
24. Notwithstanding their agreement and without discussing her proposal with the father, in mid 2014, the mother made arrangements to move with the children to Melbourne. The father heard about her plans from friends and confirmed with the children’s school that the school understood the mother and children would shortly move to Melbourne. He did not raise the issue with the mother or children.
25. In any event, the father commenced proceedings in the Federal Circuit Court to restrain the mother from removing the children. His application was filed on 11 June 2014 and served on the mother on 14 June 2014.
26. The mother and children moved to Melbourne on 18 June 2014. The father has not seen the children since.
27. By consent, interim orders were made on 12 December 2014 which enabled the father to spend time on nominated dates in Melbourne with the children. It is common ground he did not avail himself of this opportunity.
28. Without descending into detail, it is necessary to record that the matter was repeatedly adjourned before it was ultimately listed for hearing before the primary judge, some eight months after it was filed. As his Honour explained at [39] of his reasons “[i]t is not through the fault of the parties that until now, a decision had not been made in respect of that very urgent and important issue”.
29. In any event, the matter came before his Honour and he heard and determined the competing applications on 20 February 2015 for which he gave oral reasons the same day.
30. On the application of the mother, on 11 May 2015, his Honour stayed the relocation order.
I am satisfied that I can safely adopt Her Honour’s description of these matters as “uncontroversial facts”. These are matters which are, indeed, uncontroversial and agreed or conceded.
Since the proceedings commenced and particularly since interim Orders were made by consent on 12 December 2014, it is clear that there has been either no or very little communication between these children and the father. There has most assuredly been no face to face time between the father and the children. The evidence does not permit any understanding of how or why that is so.
By her Affidavit filed 16 April 2015, (paragraph 7), the mother opines that the father has refused to talk to the children over the telephone and has thus had minimal contact. Indeed, that is a somewhat euphemistic description on the mother’s part, in light of paragraph 10 of her most recent Affidavit filed this morning:
Since I have moved to Melbourne, the applicant has not seen our children and has not called or spoken to them.
If that evidence were taken on its face, and the father does not significantly cavil with it, other to indicate that there has been some unspecified telephone communication, there has been a complete breakdown in time and communication between the father and the children since mid-June 2014 – now 16 months – and the entire period that the matter has been before the Court.
From the father’s perspective that is, no doubt, unacceptable. It would appear, in fairness to the mother, also unacceptable to her. She is clear that she has made the children available for the periods when the father has been entitled to see them pursuant to the consent Orders, albeit that was for limited periods. The mother is clear that she has made the father fully aware of all of her details, so that contact can be instigated by him. The mother goes so far as to indicate that she has contributed towards the cost of accommodation and the like for the father for the period he was to travel to Melbourne, but that he did not do so.
The evidence in the case is, as observed above, entirely absent any significant concern or allegation raised by the parties, or either of them, as to family violence or abuse. Each concedes that their relationship had, prior to their final physical separation in July 2013, deteriorated significantly, and had been doing so for at least months, if not longer.
Matters came to a head for these parties in July 2013, when, however it may have been, the Police attended. And as a consequence of that which was observed or related to them, the Police commenced Apprehended Domestic Violence proceedings against each party, such that at one point in time interim Orders were in force. Each parent was both a defendant and person in need of protection.
There are no Orders in place at present. The parties determined that they did not require such Orders and did not desire them, and thus those proceedings ultimately were discontinued by the Police at the request of the parties.
The absence of family violence in this matter is a great credit to the parents. It is perhaps a testament to the Christian principles which both parents adhere to. In any event, it is of benefit to these children that they have not been exposed by their parents to such behaviours, and that the worst that these children have been required to witness has been the squabbles and verbal disputes between their parents in the period leading up to physical separation.
I do not propose to canvas the evidence in any more detail. Each of the documents enumerated above has been read and considered in its totality and each of those documents sets out the evidence which has been considered by me. I will refer to some aspects of the evidence in an address of the legislative pathway. That is not to suggest that the evidence that is thereby referred to is the only evidence that I have considered, simply that it is that which is relevant to each of the factors which I will touch upon.
One aspect of the evidence that must be touched upon finally before turning to the legislative pathway, however, is the absence of any real evidence by either party which would address the countervailing propositions which the High Court has discussed in a number of authorities, which I will set out hereafter.
The mother’s case asserts that she is unable to return to the Sydney area and would find it “disastrous”. She does not, however, set out any proposal or give any evidence as to what would occur if, ultimately, she were ordered to return the children to Sydney, the Court having no real jurisdiction to compel the mother’s return on any other basis than her seeking to accompany the children and secure the benefit of an Order that they continue to live with her.
The mother does not, for example, set out what real impediment she would have, although she does allude to perceived disadvantages. She certainly does not set out any alternate proposal as to what the children’s time arrangements might be.
Similarly, the father does not address those issues in any detail. He comments that he does not wish to move to Melbourne and that it would require him to leave the study that he is undertaking, being study for a (omitted) course, and leave the few supports that he has.
What must be observed in that regard, particularly in relation to Mr Otto, but with respect to both parties generally, is the tragedy of their circumstances prior to coming to Australia. Each of these parents is from a (nationality omitted) background. Mr Otto gives evidence that he was raised in the (religion omitted) faith but converted to (religion omitted). As a consequence of the conflagrations occurring within (country omitted) and between (country omitted) and neighbours, particularly between (omitted) and (omitted) at the time of their separation and the independence of each as a separate State, the father and mother, both practicing the same faith, experienced significant persecution.
Thus, they left (country omitted), and as they describe it – particularly Mr Otto – “fled to avoid persecution and death”. They arrived in (country omitted). They made Application for refugee status, which was readily granted. They then lived in a camp in (country omitted) for some little time, in which camp their daughter V was born.
The parties, having been granted refugee status, then came to Australia sponsored by their church, arriving in 2006. Thankfully for these parties, they avoided the consequences of their persecution, death.
Those circumstances make this litigation between them, and the circumstances which is the precipitating substratum of the proceedings, all the more tragic. These parties have already experienced significant trauma and hardship in their lives and this is yet another infliction of such trauma upon them.
The absence of evidence by the father, however, which specifically addresses his ability or inability to move to Melbourne causes some little difficulty for the Court. As was observed by Hayne J in U v U paragraph 176:
It is recognised as self-evidently true that apart from some cases of abusive relationships, children benefit from the development of good relationships with both parents, the right to know and be cared for by both parents, and the right to contact on a regular basis with both parents is said to be principles underlying the objects of part VII of the Act.
If effect is to be given to those principles, it must not be assumed that one parent – the father in this case – cannot move, and that the mother must, in every case, subordinate her ambitions and wishes to not only the needs of the child but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount. Not the interests or needs of the parents, let alone the interests of one.
That has some connection with that which was opined by Boland J in Morgan & Miles (2007) FLC 93-343, to which I have been taken, wherein at paragraph 87 her Honour stated as explained in Goode & 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.
It is urged upon me in the father’s case that the circumstances immediately prior to the mother’s removal in June 2014 are “extremely relevant”. Indeed, they are. However, it cannot be escaped that irrespective of the bases for delay that there is now a very different circumstance to that faced by the parties in October 2015.
Before turning to the legislative pathway I propose to incorporate herein and rely upon paragraphs 159 to 192 of my previous decision in Beaumond & Hardiman [2013] FCCA 1173, summarising, as I understand it, the present state of High Court and Full Court authority in relation to relocation:
159. I do not, for one moment, take the alternate proposal as to time arrangements that would occur if Ms Beaumond were living in Australia as being a concession by her or a proposal, on her part, as to that which should occur. That is consistent with the observations of Gaudron J in U & U wherein she opined at paragraph 30:
It may well be that the conversion of the mother’s acceptance that she would stay in Australia if the child were not permitted to live with her in India into a separate proposal for the child to live with her in Australia would give rise to a question whether there had been a denial of procedural fairness if there had been no other basis for that proposal.
160. That is also touched upon in paragraph 37 by her Honour:
It must be acknowledged that it is likely that in very many relocation cases the mother will concede that if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that in relocation cases each competing proposal be separately evaluated, that is so whether it is the mother or the father who wishes to relocate. So much was made clear in AMS & AIF.
161. The issue was also touched upon by Kirby J in the same case in paragraphs 138 and 139 thereof which I adopt and incorporate herein as follows:
It is not as if the issue presented by the wife's complaint to the Full Court was unusual. In fact, it is a common issue in cases such as this. In Payne v Payne, Thorpe LJ described the frequent tactic that arises in such cases:
"In very many cases the mother's application to relocate provokes a cross-application by the father for a variation of the residence order in his favour. Such cross-applications may be largely tactical to enable the strategist to cross-examine along the lines of: what will you do if your application is refused? If the mother responds by saying that she will remain with the child then the cross-examiner feels that he has demonstrated that the impact of refusal upon the mother would not be that significant. If on the other hand she says that she herself will go nevertheless then the cross-examiner feels that he has demonstrated that the mother is shallow or uncaring or self-centred. But experienced family judges are well used to tactics and will readily distinguish between the cross-application that has some pre-existing foundation and one that is purely tactical."
In Payne, Thorpe LJ stated what, in my view, is the correct approach. It is the approach that the Full Court should have required in the present case:
"The judge in the end must evaluate comparatively each option for the child, one against another. Often that will mean evaluating a home with mother in this jurisdiction, against a home with mother wherever she seeks to go, against a home in this jurisdiction with father. Then in explaining his first choice the judge will inevitably be delivering judgment on both applications."
162. The same issues were also addressed by the majority judgment in U & U delivered by Gummow and Callinan JJ and with whom Gleeson CJ and Hayne and McHugh JJ agreed. Thus I cannot accept and do not elevate to the position of a genuine proposal by the mother that she would consent to remain in Australia. It is simply her position as must be addressed; so much was made clear by U & U and AMS & AIF (1999) 199 CLR 160 and a number of other authorities of the High Court and Full Court.
163. It is a proposal and a position which will be considered separately by me but I do not accept it as a proposal advanced by Ms Beaumond.
164. The proposals that are raised in Mr Hardiman’s case, if one has regard to the response, are based upon an acceptance that X would, if Ms Beaumond continues to live in Australia, have his needs best served by continuing to live with his mother and to then have substantial time with his father. That time is somewhat tempered by work arrangements but I accept it is in no way a suggestion by Mr Hardiman that he does not desire greater time and would not readily and willingly have his child in his care full time if it could be so. Indeed this child’s needs would be perfectly well met by Mr Hardiman if that arose. Mr Hardiman made that much clear in his evidence by indicating that he is devoted to his children, each of them, and desires to spend every moment with them if it were possible.
165. However, the proposal also became clear, inferentially if not directly during Mr Hardiman’s evidence, that if Ms Beaumond were to relocate he would not simply seek a restraint but would, in those circumstances, seek that X remain in Australia, live with him and spend time with his mother for half of each school holidays, as reflected in the minute proposed in case outline document.
Case Law regarding relocation
166. The specific matters which relate to a relocation case, which in any event are otherwise parenting proceedings to be dealt with under Part VII, are addressed at some length by Kirby J in his decision in AMS & AIF. Specifically, his Honour commencing at paragraph 136 set out nine specific factors which one might consider, I incorporate paragraphs 136 to 149 of that decision herein and as follows:
136. At least until the second half of the eighteenth century, a child born to unmarried parents, called "illegitimate", was regarded by the common law as filius nullius. Consequently such a child was under the legal guardianship of nobody. The applicable law was so strict that even until the end of the nineteenth century an illegitimate child was not regarded as being in the custody of anyone, even of its mother. However, in Barnardo v McHugh, the House of Lords recognised the mother's legal right to the custody of her illegitimate child. The change of direction in the law was the result of an inference drawn from the Poor Law Acts imposing statutory duties on the mother in relation to the maintenance of such a child.
137. Before and after the enactment of FLA 1975 and FCA 1975, developments occurred in Australia to occasion further quite radical changes to the applicable law. The first was an alteration in community attitudes to the status of illegitimacy and the growth of the number of relationships between couples outside marriage to whom children are born. These developments led to many legislative changes. Relevant to the present appeals was the reference to the Federal Parliament by the Parliaments of all States except Western Australia of their legislative powers in respect of children. This led, in turn, to the amendment of FLA 1975 to cover all children in those affected jurisdictions: those born to married parents (nuptial) and those born to parents who were not married (ex-nuptial).
138. The second development arose out of the significant increase in the number of divorces granted annually affecting large numbers of children. This fact occasioned inquiries aimed at reducing the "win/lose mentality in which parents may appear to be pitted against each other to the detriment of the children". Reports by the Family Law Council and by a Joint Select Committee of the Parliament proposed changes to FLA 1975, addressed to applicable nomenclature, principles and procedures. Many of these proposals were adopted by the Family Law Reform Act 1995 (Cth). Those reforms were not immediately copied in the Western Australian law. However, many of them were introduced into the law of that State by FCA 1997.
139. The third development of relevance arises from the growing influence in recent years, including in this area of the law, of international law to which reference will later be made.
140. Relocation cases have long presented special problems for judicial decisions concerning the custody of children. But a fourth development has added to the number, variety and urgency of decisions concerning the relocation of parents having custody of a child. Two particular features of Australian society may be noted. The first is that, overwhelmingly, women constitute the residence parent to whom, in the old nomenclature, "custody" is granted. Of single parent families, the mother is reportedly the residence parent in approximately 84% of cases. Accordingly, in practical terms, court orders restraining movement of a custodial (or residence) parent ordinarily exert inhibitions on the freedom of movement of women, not men. Another feature of the Australian scene, not necessarily reflected to the same degree in other jurisdictions, is the very large proportion of the population born overseas, with family links to which a party to a marriage or relationship which has broken down may return with their child.
Relocation of a child's residence - general principles
141. This Court comes to the consideration of the arguments in these appeals with the benefit of at least thirty years of consideration of like problems by appellate courts in Australia and other common law jurisdictions. I derive the following general propositions from the authorities.
142. First, each case depends on the application of the governing legislation which, in turn, is in a constant state of amendment and re-expression. Care must therefore be observed in applying propositions advanced in particular jurisdictions where the legislative duties of the courts are relevantly different. Necessarily, the facts of each case are unique. Those facts call forth a "careful and delicate analysis", which renders previous decisions of limited assistance, except in so far as they offer illustrations which may tend to promote a general consistency of approach.
143. Secondly, unless legislation provides otherwise, no single factor is dispositive of decisions governing the residence of a child in a context of the proposed relocation of the parent with whom the child resides. It is necessary for a court, making decisions affecting the child's place of residence, to attempt a resolution of often irreconcilable considerations. Statute may, and commonly does, instruct that the "welfare" (or "best interests") of the child should be the paramount consideration. It may provide a list of considerations or "principles" to be applied in the exercise of the court's powers. However, the "paramount" consideration is not the same as the "sole" or "only" consideration. The relevance of enumerated statutory principles will depend upon the circumstances of the particular case. Preconceived notions as to the weight which must be given to particular factors are incompatible with the exercise of an individualised judicial discretion such as is mandated by Australian legislation.
144. Thirdly, a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child's welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule.
145. Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.
146. Fifthly, whilst legislative reform sometimes reflecting international law, has laid increased emphasis upon the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with each of them on a regular basis, the rule is not an absolute one. Courts recognise the implications of the application of that right for the custodial (or residence) parent, and particularly because most of them are women. To avoid unnecessary derogations from women's equality or the "feminisation of poverty" resulting from the effective immobilisation of a custodial (or residence) parent, some Canadian judges have lately proposed a presumptive deference in favour of the right of the custodial (or residence) parent to reside where she or he decides unless good reason, relevant to the welfare or best interests of the child, is demonstrated to the contrary. Although this presumption was supported by a minority in the Supreme Court of Canada in Gordon v Goertz, it was rejected by the majority as incompatible with the individualised assessment required by the statute, addressed as it is to the best interests of the child. The objective of the minority was understandable. However, the reasoning of the majority is preferable, at least so far as the applicable Australian legislation is concerned.
147. Sixthly, in evaluating disputes concerning an expressed desire of a custodial (or residence) parent to relocate the residence at which the child will reside in circumstances which necessarily diminish the opportunities of the other parent to have access to, and contact with, the child, courts have suggested, rightly in my view, that a more relaxed attitude should be adopted to relocation within Australia than relocation overseas. This approach is connected with the ready availability of reliable transport and telecommunications, social and cultural factors, the absence of many dangers which exist in other parts of the world and notions of national community. But even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent. Proof that the custodial (or residence) parent has remarried and wishes to join a new spouse overseas; wishes to return to a supportive family in the land of origin, or has a well thought out and reasonable plan of migration may suffice to convince the court having jurisdiction over the child, that the best interests of the child favour continuance of the custodial (or residence) arrangement in another jurisdiction but with different orders as to access and contact.
148. Seventhly, just as, depending upon the legislation, conditions may be placed upon a custodial (or residence) parent as to where the child may reside according to its best interests, when it is proposed that residence arrangements change, the very fact of disturbing them (particularly if likely in practice to alter access to, and contact with, the other parent) will present a consideration that must be taken into account in judging whether new arrangements should be approved. If a parent seeks to change arrangements affecting the residence of, access to or contact with the child, he or she must demonstrate that the proposed new arrangement is for the welfare of, or in the best interests of, the child. Because the child's access to, and contact with, the other parent will necessarily be diminished to the extent that relocation of its residence disturbs a physical proximity which has hitherto existed, it will often be necessary to adjust orders as to access. This will be done to offer new and different facilities of access and contact such as longer periods of residence with the other parent during school holidays and at other times.
149. Eighthly, although at common law the concept of custody was indivisible, statute has altered this position. Joint custody and guardianship became increasingly common even before recent legislation made shared parental responsibility for a child the modern norm. Yet even now, courts necessarily retain the power to order otherwise. Under the legislation, before it was changed, the determination of whether joint or sole guardianship should be ordered was within the discretion of the court. Departure from the norm of shared parental responsibility is also within the court's discretion
167. The above principles were also discussed by his Honour in some detail in U & U. I have also been referred by Counsel for Ms Beaumond to an excellent discussion of the relevant principles (not only as espoused within U & U but Morgan & Miles (2007) FLC 93-343 and Palmer & Hammer (No 2) [2011] FamCAFC 196, Taylor & Barker (2007) 37 FAM LR 461 and MRR v GR (2010) 240 CLR 461 and various other authorities) by the decision of the Full Court in Sayer & Radcliffe and Anor [2012] FamCAFC 209. I thus incorporate herein from that discussion portions thereof which more than abundantly sets out those principles, being paragraphs 46 to 51 thereof together with that incorporated and expressed with approval within that judgement from Starr & Duggan [2009] FamCAFC 115 and under the heading: “Approach to Applications involving a Relocation of the Child” (paragraphs 33 to 39 thereof):
33. The core principle consistently referred to in all appellate decisions involving challenges to parenting orders (including where an order for relocation is sought) is the “paramountcy principle” found in s 60CA. That is, a court must regard the best interests of the child as the paramount, but not sole, consideration.
34. The interplay between the paramountcy principle, the objects of the Act and the principles underpinning those objects is described in Goode & Goode (2006) FLC 93-286.
35. In McCall & Clark the Full Court referred (at paragraphs 58 to 60) to explanations given in other relocation cases of the order in which relevant provisions in Part VII may be applied when determining a parenting application. Their Honours (Bryant CJ, Faulks DCJ and Boland J) went on to explain (at paragraphs 61 and 62) that it will often not be an academic exercise to consider whether a child should spend equal time with both parents, as such an order is likely to be sought by a non-relocating parent.
36. The Full Court also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be “dual consideration” of some matters. This is so because consideration of the s 60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals. Some of the matters to be considered under s 60CC(3), for example the likely effect of any change in the child’s circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s 65DAA, especially s 65DAA(5).
37. Thus the appellate decisions determined after the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) have set out a framework which a judicial officer may follow when determining applications for parenting orders, including an order that a child be permitted to relocate.
38. However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
· first make findings concerning the relevant s 60CC factors;
· then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
· then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
39. Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.
Relevant Principles
168. While it is apparent that the mother’s primary complaint in the appeal is the Federal Magistrate’s denial of permission to relocate to South East Queensland, it is important to recall that the application before her Honour was that of the father for parenting orders. The consideration of relocation arose later, in the mother’s response to the father’s application, as an order sought by her, and then more urgently when the mother had in fact moved to South East Queensland with the children.
169. It is a now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders (see Morgan & Miles (2007) FLC 93-343 at paragraphs 72 to 73, Palmer & Hammer (No 2) [2011] FamCAFC 196 at paragraph 28).
170. A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents (see Palmer & Hammer (No 2) paragraph 76; Morgan & Miles paragraphs 80 to 81). It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
171. The provisions of the Act which form that legislative pathway have been reproduced at length by this Court many times (Taylor v Barker (2007) 37 Fam LR 461, Morgan & Miles (supra), Adams & Randall (2011) FLC 93-482). It is sufficient for current purposes to identify and summarise those sections contained in Part VII of the Act which govern decisions about children, and consider statements of the High Court and of this Court which guide their application in the context of relocation cases:
· Section 60B – Objects of Part and principles underlying it
· Section 60CA – Child’s best interests paramount consideration in making a parenting order
· Section 60CC – How a court determines what is in a child’s best interests
· Considerations relevant to relocation include:
o Primary considerations: meaningful relationship with both parents
· Additional considerations:
o Nature of child’s relationship with parents and other persons
o Extent to which parent has taken or failed to take opportunity to participate in decision-making, spend time and communicate
o Likely effect of changes in child’s circumstances including effect on child of any separation from either parent, other child or other person with whom they have been living
o Practical difficulty and expense of a child spending time and communication with a parent and whether that will substantially affect child’s right to maintain personal relations with both parents on a regular basis
o Capacity of each parent and any other person to provide for the needs of the child
· Section 61DA – Presumption of equal shared parental responsibility when making parenting orders
· Section 65DAA – Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances (where an order for equal shared parental responsibility has been made, and such time is in the best interests of the child and reasonably practicable)
· Subsection 65DAA (5) – Factors the Court must have regard to in determining reasonable practicability:
o How far apart parents live
o Parents’ current and future capacity to implement an arrangement for equal or substantial and significant time
o Parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing arrangements
o Impact arrangements would have on the child
o Such other matters the Court considers relevant.
172. The legislation therefore requires multiple layers of consideration, but does not provide express guidance as to the order in which such matters are to be considered, or what weight is to be attached, other than to commence with the presumption of equal shared parental responsibility and what follows from that decision.
173. The operation of the legislation in relocation cases has been expressly considered by the High Court in MRR v GR [2010] HCA 4 (3 March 2010), an appeal from an order of a Federal Magistrate refusing to allow relocation. In joint reasons for judgment, the Court (French CJ, Gummow, Hayne, Kiefel and Bell JJ) summarised the effect of the legislation and concluded that orders for equal or substantial and significant time are to be guided by the practical feasibility of such time, not merely its desirability. Their Honours said:
6. Part VII of the Act (ss 60A-70Q) concerns children. It was substantially amended in 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Section 60B(1) of the Act provides that it is an object of the Part to ensure that the best interests of children are met, inter alia, by “ensuring that [they] have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”. Section 60CA requires that a court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations necessary to be taken into account in determining what is in a child’s best interests are listed in s 60CC.
7. Section 65D(1) provides that the Court may make such a parenting order as it thinks proper, subject to the provisions of ss 61DA and 65DAB. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child. […] Section 65DAB requires the Court to have regard to any parenting plans entered into between the parties and is not relevant in this case.
8. Sub-section (1) of s 65DAA is headed “Equal time” and provides:
“If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”(Emphasis added.)
Sub-section (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”
Sub-section (3) explains what is meant by the phrase “substantial and significant time”.
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”,“[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.
…
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
Approach to Applications Involving Relocation of A Child
174. The core principle consistently referred to in all appellate decisions involving challenges to parenting orders (including where an order for relocation is sought) is the “paramouncy principle” found in s.60CA. That is, a court must regard the best interests of the child as the paramount, but not sole, consideration.
175. The interplay between the paramouncy principle, the objects of the Act and the principles underpinning those objects is described in Goode & Goode (2006) FLC 93-286.
176. In McCall & Clarke the Full Court referred (at paragraphs 58 to 60) to explanations given in other relocation cases of the order in which relevant provisions in Part VII may be applied when determining a parenting application. Their Honours (Bryant CJ, Faulks DCJ and Boland J) went on to explain (at paragraphs 61 and 62) that it will often not be an academic exercise to consider whether a child should spend equal time with both parents, as such an order is likely to be sought by a non-relocating parent.
177. The Full Court also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be “dual consideration” of some matters. This is so because consideration of the s.60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals. Some of the matters to be considered under s.60CC(3), for example the likely effect of any change in the child’s circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s.65DAA, especially s.65DAA(5).
178. Thus the appellate decisions determined after the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) have set out a framework which a judicial officer may follow when determining applications for parenting orders, including an order that a child be permitted to relocate.
179. However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
a) first make findings concerning the relevant s 60CC factors;
b) then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
c) then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s. 65DAA(5) – which may be done by referring back to the earlier s. 60CC findings.
180. Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.
181. What is made clear by that discussion and the cases addressed therein is that the legislative pathway must be followed and with a specific focus upon considering each of the proposals that arise.
Legislative Pathway
182. I must commence with a consideration of the objects and principles in s.60B.
183. I am reminded by s. 60CA that the child best interests are paramount at all times.
184. I must address the presumption of equal shared parental responsibility in s.61DA if it applies.
185. I must then consider equal and substantial and significant time before considering other time arrangements as set out in s.65DAA.
186. Specifically, however, one is reminded and enjoined by the High Court’s decision in MRR & GR that:
13. Section 65DAA(1) is expressed in imperative terms that obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents and the question whether it is reasonably practicable that the child spend equal time with each of them. It is only where both questions are answered in the affirmative that consideration may be given to the making of the order being an order for equal, substantial and significant time. The determination is a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which a power is conditioned much as it were a jurisdictional fact must be proved to exist.
187. What is also made clear by their Honours is that the court does not commence from the position of determining that equal time would be desirable or perhaps, in the terminology of such cases, optimal and thus seeking to make it occur. It is a matter of considering practical reality.
188. In the context of this relocation case I must consider each of the relevant proposals, their respective advantages and disadvantages and, thus, select the proposal which best advances (accepting that there may be detriments arising from each of the proposals) the child’s best interests.
189. Having considered such matters the factors which the court must then view are set out in s.60CC and incorporated therein through, s.60CC(3)(m), s.65DAA(5).
190. The areas for determination in this case thus are not defined by the relocation proposal. The issues are and they remain:
a) What arrangements, of those available proposed and supported by the evidence, best meet and promote the best interests of X, (and again accepting that each may have collateral disadvantage);
b) How can the relationship between X and each of his parents and specifically the time that he spends with each parent and how he communicates with each parent, be encourages and continued.
191. In dealing with those matters I now turn to the legislation.
192. The objects and principles in s.60B, which I incorporate herein, provide a philosophical framework which are designed to indicate to the court the most desirable outcome subject to those outcomes meeting the child’s best interests. Those objects and principles are:
Section 60B
1. The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2. The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The above statement of principle will guide the application of the legislative pathway to which I now more fully turn.
As is observed above, section 60CA of the Act directs that the child’s best interests are the paramount consideration. As is observed in the above discussion, particularly by Kirby J, the legitimate interests of parents are not irrelevant, simply subservient. Further, the legitimate interests of parents cannot be taken to be separate, completely distinct or isolated, from the best interests of children. They are fundamentally, and often inextricably, connected.
The objects and principles do not form part of the substantive law but guide the interpretation and application of the legislative provisions in each case. I will, however, spend some little time considering the objects and principles as they have some relevance, and detailed submissions have been put to me with respect to them.
The Court is required by the objects to ensure that the best interests of children are met by ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests. The Court is also required to ensure that children are protected from physical or psychological harm occasioned through exposure to abuse, neglect or family violence. In this case, refreshingly, and as a complete credit to these parents, the evidence is absent such allegations.
The Court must also ensure that parents fulfil their duties and meet their responsibilities and agree about future parenting. It is difficult for the objects to be achieved in their entirety, at least on their face. When parents do not agree that right cannot be achieved.
I must also be conscious of the High Court’s dicta in MRR & GR [2010] HCA 4 as regards the application of any of the legislative pathway to the facts and circumstances of the case. I cannot, to paraphrase the High Court’s decision in MRR v GR, seek to manufacture a particular outcome which is not practical. I cannot consider the object of the children’s benefit from a meaningful involvement with both parents, to the maximum extent consistent with their best interests, in isolation from practical reality, the proposals of the parties and that which can realistically be brought to be upon those proposals.
The mother’s proposal is that she remain resident in Melbourne with all six children and that the father spend time with the children and communicate with them. The father’s proposal is that the mother relocate the children to Sydney, that she travel with them, (and the father does not seek any Order in the alternative that if the mother fails to do so, that the children would pass to live with him) and that upon returning to Sydney, that he would spend three hours per week with them.
I am not critical of the father for his proposal. He is clear that he is insightful as to his children’s needs, mindful of the physical limitations of that which he can offer to the children, and is thus child-focused in the proposal that he puts. He simply does not have the capacity or the facilities to accommodate these children overnight.
It is regrettable that he does not. He is a parent of the children and one would think that “structural family law” (as discussed by authors such as Huntington) would ensure that any parent of any child, if the family is the fundamental unit of society and the best interests of children are paramount, would have that which is necessary to ensure that they could practice their relationship with their children, maintain them, support them, interact with them and house them.
However, the maximum extent of involvement that these parents can have with their children is, by and large, a practical issue to be determined by reference to the facts, particularly having regard to that which fell from the High Court of Australia in MRR & GR.
Ensuring the children receive adequate and proper parenting is not problematic. The mother’s evidence is clear, that the children are well-parented, and have been so at all times since their birth, and particularly since the physical separation of the parties. The father does not cavil with this evidence. The mother is clear that her ability to support the children adequately and properly is enhanced remaining in Melbourne rather than returning to Sydney. I will deal with that evidence shortly.
As regards the parents fulfilling their duties and meeting their responsibilities concerning the care, welfare and development of their children those responsibilities are not purely physical and financial. They also include meeting the children’s emotional needs and fulfilling and ensuring that the rights of the children are enlivened and practiced as set out in the section 60B(2) principles of the Act.
Those principles provide that children have certain rights. They are not absolute rights. They are subject to the caveat that the Court must be satisfied that it would not be contrary to their interests for those rights to be practiced and enjoyed. That aside, children have the right to know and be cared for by both of their parents, to spent time and communicate on a regular basis with both of their parents and to have their parents agree about future parenting. Children also have a right to enjoy their culture, including to enjoy and share that culture with people who share culture with them. That is further articulated throughout the legislation, particularly and specifically with respect to Aboriginal and Torres Strait Islander children but analogously providing some guidance to the Court as to what might be considered.
In this case culture is not raised as a specific issue. I do not say that to be dismissive of the importance to these children of their (nationality omitted) culture and heritage but simply as the parents have not led evidence which suggests that their culture would be better maintained by one proposal or the other. I do not assume that there is homogeneity in the practice of culture by these parents. The evidence simply does not speak to the issue.
The objects and principles could be taken to support the proposals of each of the parties. It is purely a matter of degree as to which might be supported more fully. In addressing that issue I will shortly deal with section 60CC of the Act. First, however, I must have regard to section 61DA of the Act and determine whether the presumption of equal shared parental responsibility applies or does not.
I turn to it at this point and before considering section 60CC of the Act not to suggest that the consideration of those factors is not relevant to application of the presumption or determination of an allocation of parental responsibility between the parents. I will consider those factors. However, the consideration of the presumption and whether it applies or not is particularly germane to a consideration of time arrangements. If the presumption applies and is not rebutted then the Court is obliged, by section 65DAA of the Act to consider equal and substantial and significant time before any other time arrangements. Thus, determination of application of the presumption must occur at least simultaneously with consideration of section 60CC of the Act.
In this case each parent seeks an Order for equal shared parental responsibility. Whilst the Court is not bound by that which the party submits (see U v U) I am satisfied that it would be unjust, a denial of due process, to consider any other proposal when those are the parameters of the dispute the parties have set (i.e. they are unified in their plea to the Court that they retain and continue to practice equal shared parental responsibility).
There is no basis on the evidence to depart from that which the parties seek. They both acknowledge that the other is a good parent, albeit perhaps more so fulsomely Mr Otto’s concession than the mother’s. Accordingly, I am satisfied that the presumption should apply. There is no evidence of abuse or family violence which would cause it not to apply. There is no evidence upon which I could be satisfied that it would be contrary to the children’s best interests for it to apply. Accordingly, the presumption will apply.
That does not dictate that an Order for equal shared parental responsibility is made, although I do propose to accede to the parties’ joint plea that it be so. It does dictate a consideration of equal and substantial and significant time. That is so notwithstanding that neither party seeks it. I do not propose to make an Order for equal or substantial and significant time but I must be conscious to turn my mind to its consideration.
Certainly, substantial or equal time can be readily addressed if the parties continue to reside as they presently do, in Sydney and Melbourne respectively, on the basis of practicality. It would seem conceded, on the father’s evidence, that it is impractical even if the parties live in the same locality. It is to be remembered that the father seeks an Order that the mother should live within 25 kilometres of the (omitted) Post Office (within which radius the father presently lives). Once can infer that the father proposes to continue to live within the same radius. If that is so the father’s Application to the Court is that he would spend three hours per week with the children.
The evidence of the parties as to that which occurred between physical separation and June 2014, when the children departed for Melbourne is also remarkably agreed. There is some difference in how the parties express the arrangement but they both agree that it is an arrangement whereby the father spent, at best, limited periods of non-overnight time with the children. Those arrangements are described in the father’s first Affidavit in the following terms, paragraph 17:
Following separation I used to spend time with all the children for a couple of times each week. The respondent and I had no particular arrangement in relation to my time with the children and instead, Ms Brindle, the mother, used to call me on the telephone from time to time and I used to see them – the children – at their school, preschool, and at other times at a park, at a shopping centre, at the showground or participating in other activities.
At paragraph 18 the father continues:
Unfortunately my difficulties with accommodation have not allowed me to spend time with the children overnight as it is difficult to accommodate all the children together although X has stayed with me overnight on some occasions.
The mother’s evidence does not go so far as to concede particularly X spending overnight time. The mother suggests, at paragraph 22 of her first Affidavit that following physical separation:
Mr Otto, [the father], did not see the children a couple of times a week as he said in his affidavit. X has not stayed with Mr Otto overnight as he states. He did not spend time with the children on (omitted) 2014 as he states. The last time I recall Mr Otto seeing the children was on (omitted) 2014 when I moved from (omitted), (omitted) to (omitted). Prior to that, following our separation, he would have hardly ever seen the children or even tried to.
Thus, at best, there is some fairly frugal time spent by the children with their father for the purpose of practicing their relationship for the 12 months or so post separation and prior to the move to Melbourne.
The father’s time and the practice of his relationship with the children is not one and the same as and should not be conflated with the meaningful nature of his relationship with them. A child’s relationship with a parent and the time that they spend or spend communicating with them are separate things. They are connected, they are important, each to the other, but they are not mutually defining. It is entirely possible for a child, particularly the elder of these children, to spend significant periods without face-to-face contact with either parent or even without communication and still hold within their heart and soul, a meaningful relationship with that parent.
I do not go so far as to suggest that the phrase, “absence makes the heart grow fonder” would come into play, although there is some indication in the evidence, brief as the evidence may be, that the children, or at least one of them, and I accept in all probability, all of them, do miss and desire to see, spend time with and interact with their father. The father has annexed to his material a print-out of the Facebook page of the mother in which it would seem a male is depicted holding one of the children and on (omitted), presumably, 2014, a post is made:
Is my son Birthday, him crying. He said “Mummy it is my Birthday, put me and daddy in Facebook”.
In those circumstances, it is tragic that these children have not seen or communicated, either at all or very infrequently, with their father. It is entirely unclear from the evidence how that has come to be but the mother’s evidence would appear to accurately reflect the circumstance that certainly there has been no face-to-face time, notwithstanding an Order which provides for it.
I make clear these are not parties who are well off. The mother makes clear that she is a home-maker and dependent upon Centrelink benefits. The father is a student, whether part-time or full-time, and that is how he describes himself in his material. The evidence suggests that at different points in time the father has had some employment. However, both of these parties are in a parlous financial position and largely indigent.
Indigent status is something of a two edged sword. It certainly adds some basis to suggest that the father’s relationship with the children will not be practised unless they are living in the same locality as both of their parents. However, it also lends some real support to the mother’s position especially her complaint that her financial circumstances were so disadvantaged whilst living in Sydney, with high rental costs, no support, no family and, on the mother’s evidence, no financial assistance or Child Support at any time. That evidence would be readily accepted on its face as more probably correct as regards the impact on the mother and her care of these six children of being left even further financially disadvantaged.
As regards equal time and substantial and significant time and the consideration I am not urged by either party to make any such Order. Again, accepting that these parents know their availability, that which is practical and available to them and that which, from their perspectives, would meet their children’s needs combined with the reality that I am not urged to make such an Order my consideration of those possibilities, even leaving aside the possibility of the parties living in separate States, is brief.
Neither equal nor substantial time are not urged upon me. It is not suggested as practical or in the children’s best interests. I concur with the parties and the positions they advance.
In turning to section 60CC of the Act I must commence with the primary considerations, being:
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and,
b)The need to protect the child from physical or psychological harm.
While the latter of the above is prioritised over the former by section 60CC(2A) of the Act it is simply not in play in this case there being no such allegations. These are two parents who have not visited violence on their children or each other.
Thus, I am left to consider the benefit to the children of having a meaningful relationship with both parents. What I must consider, as is at least inferentially so by reference to the comments of Hayne J in U v U quoted above, is the duality of relationships. I must consider the impact and effect of any proposal upon the children’s relationship with each parent [emphasis added] not simply one. The case is not a consideration of how these children might best maintain a relationship with their father, irrespective of how that might impact upon the mother, her care of the children, or importantly, her relationship with them, but the benefit to the children of a meaningful relationship with both parents.
The mother’s evidence is that she is better able to meet her needs, the children’s needs and thus, better able to practice and maintain and develop her meaningful relationship with the children in Melbourne. Her expenses are suggested to be less and she describes that she has far more abundant support.
The father in his material suggests that he is not aware of any close family members of the mother in Melbourne. He describes that the mother has a number of distant relatives in Sydney. The father, on his evidence, does not have any close relatives in either Sydney or Melbourne, although possibly some more distant relatives in one place or the other.
The mother describes that she has a brother who lives in Melbourne together with his family. The mother also had seven cousins and she describes on oath how they help and support her when she needs their help and support, that they visit her and the children and they all visit each other and celebrate events together.
The mother describes that she is in stable employment in Melbourne, that she meets rent of $350 per week and that she can afford with that expenditure, a very big four bedroom home with a big backyard which the children enjoy very much having within it their own space. The home also has, on the mother’s evidence, a double garage, two bathrooms and open spaces for the children.
The mother describes importantly, that she has support from relatives who help her, not only physically, but emotionally and financially and that she is thus able to provide for her children far better in Melbourne with those supports and her improved financial position, both through employment and lower costs of living, than she possibly could in Sydney. That is of some significance if one is to engage in a prospective determination of what will best meet these children’s interests.
Set against that, the mother’s evidence, both prospectively, if she were required to return, and by reference to the past, before she departed Sydney, suggests that her circumstances in life were not as good. The mother, as I have indicated, described that she does not and has not received since separation any financial assistance from the father. I do not raise that to be critical of the father. In all probability he is not in a position to provide any substantial support, if any support. The mother, however, would be financially disadvantaged if she returned to Sydney. The mother describes that when in Sydney that she was paying $900 per fortnight in rent, $450 per week.
Certainly, as is observed by Counsel for the father and submitted on the father’s behalf, the mother would appear to exaggerate her evidence a little in the comparison between rent in Sydney and Melbourne, asserting in her Affidavit that her rent in Melbourne was $600 per fortnight, when clearly, from the rental receipt history and the mother’s more recent Affidavit, it is $700 per fortnight.
$200 per fortnight or $100 per week (the difference between the mother’s rent in Sydney and Melbourne respectively) is, however, a significant amount for parties who live in such indigent circumstances. The mother, even with her employment, has the care of six children.
The mother’s income is not specifically disclosed. But the mother’s employment is in the (omitted) industry, an industry which sadly is traditionally and chronically underpaid. It would appear that as a society we place far less value upon (omitted) responsibilities, an industry coincidentally largely filled and staffed by women, than we do upon many other pursuits which are much better paid and more highly respected. The mother’s financial circumstances are dire. Whilst $100 a week would not mean much to a high income or even middle income earner I am satisfied that the loss of that sum would impact the mother and potentially significantly so.
The mother also gives evidence that prior to her departure from Sydney that she was meeting a number of expenses, including expenses which had been incurred by the parties prior to their separation. She described that her family was under financial stress and that this financial stress has been ameliorated, possibly significantly so, since the move to Melbourne.
The mother describes that in Sydney from her Centrelink payment she met rent, utilities, child care and groceries. It is difficult to understand how the money, earning as she deposed in her Affidavit of 31 July 2014, an income of $550 per week or $1100 per week, could possibly make ends meet, even if paying the lesser rent she pays in Melbourne, $350 per week or $700 per fortnight. If in Sydney the mother would pay not less than $900 per fortnight in rent. As regards the ability to put food on the table it would give the mother, an extra $100 a week. That would be substantial.
How any family of one adult and six children could live on that amount of money is difficult to comprehend. Certainly, that is perhaps a first world judgment. The vast majority of families in the world live on far less, but they do not by and large live on far less in Australia - one of the wealthiest countries in the world and a country with high expenses of living especially in Sydney.
The mother must be an extraordinary budgeter and extraordinary at locating bargains and discounts to be able to even house, clothe, feed and provide light and water for these children, let alone put food on the table and have the children educated on such an amount. In those circumstances and whilst I am not critical of the father, who is in no better position, the absence of Child Support would be somewhat telling as regards the family’s weekly budget.
Even the very modest improvement in financial circumstances which a reduction of $100 per week in rent would provide to the mother would be substantial and significant as regards the benefit to these children. That would be $100 per week, for example, to purchase fresh food which simply would not be possible otherwise.
The benefit to the children of their relationship with their mother is accentuated by the mother’s available employment and consequent ability to meet their needs, her own needs and to do so with support from her family. It does come however, at the cost, potentially of the children’s meaningful relationship with their father and its practice. I must have regard, however, to what had been occurring prior to the mother’s departure and indeed, post-separation of these parties, as well as that which would occur if the father were successful in the relief that he seeks.
I certainly accept the submission put by the father’s Counsel that the Court must, as Boland J at paragraph 87 of Morgan & Miles opined, place significant weight upon circumstances which existed prior to what is described in Morgan & Miles as an “unauthorised removal” of a child from the area in which they have been living.
The father’s relationship from July 2013 until June 2014 was practised through brief periods of non-overnight time, although there is the factual issue as to whether there had been overnight time with one of the children. That time would appear to have maintained the relationship as best as the parties could manage.
Since the mother’s move there has been no time at all. That is, as I have already observed, highly regrettable. However, when one has regard to the facts and circumstances of these children and the arrangements made for their care, I cannot ignore the reality that it is relational, rather than by reference to external factors. As the Full Court has observed in the 1980s in cases such as Archbold & Archbold (1984) FLC 91-532, the stability of an arrangement and the importance of settled arrangements for children was largely relationship based, not connected to, for example, as was discussed in Archbold & Archbold, to residence within a particular property.
It is certainly correct, as is submitted in the father’s case, that from the time that these parties first came to Australia and until June 2014, the children lived in Sydney. Indeed, it is correct, as is submitted, that from the time of arrival in Australia until the separation of the parties in July 2013, the children lived with both of their parents in the same accommodation. Certainly, all of that changed with the separation of the parties.
The maintenance of the children’s residence in Sydney would potentially have some benefits to them. They no doubt have maintained connections with friends, “social capital” as it were, attended schools in which they were settled and familiar, although the evidence does not speak a great deal, if at all, about such matters.
However, I cannot ignore the reality that irrespective of how it has come to be so, and largely it is because of a lack of resources of the Court which has disadvantaged the parties, the children have now been living in Melbourne with their mother for 16 months and with various extended maternal family members as a regular feature of their life.
As the mother’s most recent Affidavit, filed today, suggests and accepting it on its face for present purposes, the school-age children are all at school which they have attended for 5 terms. They are described as doing well at school and enjoying the schools that they are enrolled in. They have made friends that they are close to. They see their friends after school and on weekends. They have their friends come to their home and they visit their friends’ homes. They are enrolled in extracurricular activities such as dance classes. They are described by the mother as “well settled and very happily living in Melbourne”.
Attending school, having made friends and with the mother able to provide them with everything they need, albeit on the tightest of budgets, particularly in the context of an absence of financial support from the father (who, in all probability, simply could not afford it, or could not afford it if he was to make any attempt at travelling to Melbourne to spend time with the children) is also “extremely important”.
In all of those circumstances, and whilst on its face it is attractive that the potential for the children’s meaningful relationship with the father would be accentuated by requiring the mother to return them to Sydney, I simply cannot see that the benefit is other than illusory. The best that would be achieved is for the children to spend three hours a week with their father. That is three hours better than they are presently receiving the benefit of. However, the children’s benefits in terms of their meaningful relationship with their mother, their better care and support (at least financially), albeit absent their father and his desire to have involvement in their life, is better met through their remaining where they are, particularly when, even though not the father’s fault, not through his acquiescence or inaction, the children have become very well settled in those arrangements.
I am also conscious of the lack of time and communication which, whilst tragic, is unexplained in the father’s case. The father is certainly in a parlous financial circumstance, but he does not address in his evidence at all why it is that no time or communication has happened, (although the father suggests there has been some very limited telephone communication), in circumstances whereby the mother’s evidence is clear and unchallenged that the children have been available and that she has, in fact, endeavoured to assist financially to enable it to be so.
The primary considerations or at least the primary consideration that is in play would support the mother’s position.
Additional considerations
Views
I do not have any evidence of the children’s views and that is concerning in the circumstances.
The elder of these children at 13, 10 and 8 have a right, as the International Convention on the Rights of the Child provides, to have their voice heard in the proceedings. In fact, all of the children have that right. The weight which might be attached to the views of the younger children may be less.
I would be loath to make any Order with respect to a child, for example, of the age of 13 and clearly described by his parents as being an intelligent, articulate young person, without evidence of their views. I would be loath to make Orders absent particular evidence which spoke to their attitude towards the Application the father makes for the children to be taken from the arrangements to which, there is no doubt, they were unilaterally moved by their mother but in which, there is equally no doubt, they are now well settled. It is not possible to obtain that evidence prior to this determination.
The mother’s Counsel has submitted that it might be preferable to adjourn the proceedings to enable the Family Report to be completed and, thus, return once completed in April next year, a delay of another seven months. That would, in reality, have the effect if not of determining the issue, strongly influencing it. The eldest child would by then be approaching 14. Any view which they expressed would, in all probability, have significant weight. But finally, and perhaps most importantly, the arrangements unilaterally brought about by the mother would then have been in place for two years with little or no time or communication between the children and their father. That must also be considered as regards any views expressed especially as regards the impact of the father’s absence from these children’s lives.
An adjournment, on that basis, is less preferred than to proceed on the basis that I simply have no evidence from the children. I would remain unprepared to make the Order the father seeks compelling their return without evidence suggesting that the children are aware of the proposal and supportive of it. That is not to infer that they would object to the proposal, but I simply have no evidence that would safely permit such an Order to be made.
Nature of the children’s relationship with each of the children’s parents and other persons
The mother suggests that these children now have well established relationships with her brother and various other maternal family members. There is no evidence the children had any significant familiar relationships outside of their parents whilst in Sydney nor that they would if they returned.
The children have, I am satisfied, a strong relationship with each other. No one proposes that the children be separated from each other nor would it be countenanced by the Court.
The relationships that the children have with their mother and each other are well maintained and achieved by the mother’s proposals.
The children’s relationship with their father is not well maintained nor achieved by either the father’s proposals or the mother’s, perhaps less so by the mother’s.
What is concerning is that there has been no active step taken by the father, possibly through frustration, possibly through financial circumstances or a combination of the two, to pursue a relationship, even to the extent of even telephone communication with the children.
The father does not complain that the mother has impeded his access. The mother makes clear that the children are available to speak with the father and that he has their details. Accordingly, the only inference that can be drawn is that the father has not pursued the relationship with any real vigour. Why that is so is not known but it is detrimental to these children.
The nature of the children’s relationships, however, with the mother and others, and with their father, and balancing those relationships would support the mother’s position.
The extent to which each parent has taken or failed to take the opportunity to participate in decision-making, spend time or communicate with the child or children
The mother can be criticised for the countervailing proposition that she has acted in clear knowledge, as the father submits, that he opposed the move. However, there is nothing in the evidence to suggest that the father had communicated his opposition to the mother as to her move in June 2014.
There is nothing in reality which suggests the mother ever spoke to the father about her proposal. The father’s evidence at that time is that he had commenced the earlier set of proceedings but had abandoned those proceedings as the mother had advised him that she no longer wished to go to Melbourne.
He then gives evidence that he spoke to various other people who told him that the mother was intending to move and to do so on a specific date. The father does not suggest that he contacted the mother to discuss it with her or to disabuse her of any notion she may have had that he desired or supported the move. The highest the evidence comes is paragraph 28 of his Affidavit, 10 June 2014, whereby the father suggests that “…over the last couple of weeks, [preceding the Affidavit]”, that he had asked the mother directly about the possibility of her moving but she had refused to speak with him, and he had not been able to confirm with her directly that she intended to move, although it is suggested that she had denied those intentions to him.
It may be that the father had not felt compelled thus to communicate his objection, if he was disingenuously led to believe that it was not intended. However, the father, having acted promptly upon receiving those advices, has been frustrated by circumstances.
The Court cannot make a decision that treats the child’s best interests as paramount by seeking to punish a parent, by seeking to cause their return because they moved unilaterally, even if there had been clear and strident objection made known to that parent by the other parent. What the Court must have regard to is the child’s best interests as paramount and prospectively determined and in the circumstances as they played out. The decision must be made by reference to circumstances as they present themselves today. The children’s best interest would not, by reference to the balance of considerations, support their return to Sydney with the coercive compulsion of the Court by injunction.
The mother may well have failed to participate with the father in an exercise of joint and consensual decision-making regarding the major issue decision of a change to the children’s living arrangements, which would significantly impact upon the children’s capacity to maintain a relationship with the other parent, such a move being a major issue decision as defined in section 4 of the Act. However, that is a consideration of the countervailing proposition which, whilst not specifically incorporated within section 60CC(3)(c) of the Act, I am satisfied remains relevant. It was part of the legislation prior to the June 2012 amendments as part of section 60CC(4).
If I have regard, however, to the failure of a parent to participate in decision-making or spend time or communicate with the children during the currency of the proceedings, that is a criticism of the father. I do not make a criticism of Mr Otto lightly because he would have some basis for perceiving that he has, through circumstances beyond his control, being those of the mother and the Court’s parlous resources and inability to hear his case in a timely fashion, been disadvantaged.
However, the father has had the benefit of an Order, an Order made by consent, that he spend time with the children and he has not availed himself of it. The father has the benefit of being able to telephone and speak with the children, and he does not avail himself of that right either at all or, at best, very infrequently. That is a failure which again supports the mother’s position. It begs the question of what purpose is served in causing the mother to uproot herself and the arrangements that have now become settled and established, (albeit with these proceedings on foot the entire time but which would, inherently I am satisfied, impose disadvantage on the children contrary to their best interests), if the father has not seen fit to take the opportunities that have been available to interact with the children and when the father seeks, upon the children’s return, to have very little time with them. Indeed, the mother’s evidence is that when time was available when both parties lived in the same locality it was still not taken up with any great regularity or frequency.
I am satisfied that I can also consider that which subsection (c) had previously provided, the capacity of each parent to acknowledge, recognise and facilitate the importance of the relationship between the children and the other parent.
I am not satisfied that there is anything on the evidence which would warrant a criticism of the mother for failing to do so. She acknowledges that the father is important to the children, that they have a good and strong relationship that is important both to the father and the children. But she makes clear that the children have always been available and the father has been the one who has not taken up that on offer.
On its face, the mother could be criticised for moving to Melbourne, knowing full well it would interfere in the children’s capacity to maintain a relationship with their father. However, on her proposals, indeed, by reference to her evidence of what was occurring previously and by reference to the father’s proposal in his Application, it is possible, albeit more difficult, for the father to maintain a relationship with these children that is perhaps not equal as regards frequency but certainly which is abundant and approaching a quality of that which the father would practise on his own proposals if the children were in the same locality as him.
I am also conscious that there is very little on the father’s evidence which would provide a cogent basis for why he could not, should he desire to exercise regular weekly time with the children, also relocate to Melbourne. He gives evidence that he has some relatives, albeit distant, there. There is nothing to suggest his studies could not be completed there, and certainly if he is of parlous financial means and not presently employed, he might well accept the mother’s evidence that the cost of living is generally a little lower and, thus, he would have more funds for himself, possibly better accommodation to overcome the concerns he has had to date of not being able to accommodate the children or any of them overnight, as well as the ability to provide for them.
The extent to which a parent has failed or failed to fulfil their obligation to maintain the child or children
The mother complains that the father does not pay Child Support. The father does not speak to the issue and, thus, I am satisfied that the mother’s evidence can be accepted on its face for present purposes. Thus, the father has failed to contribute to the maintenance of the children, although it must be viewed within the context of his own poor financial position.
The mother does maintain the children and her evidence is clear that she is better able to do so in Melbourne with the employment that she has, the support that she has from family and friends, and the lower cost of living. That supports the mother’s Application.
Likely effect of change including separation from either parent or any other child or person with whom the child or children has been living
The children live with their mother and have lived with their mother since separation. There is no Application that this would change. The father does not seek, as he might be entitled to, relief in the alternative that if the mother does not relocate the children to Sydney, that the children should still return and pass to live with him. It is to his credit and his child-focus that it is so.
The father’s proposal would not separate the mother from the children. Whilst she does not say as much in her Affidavit, I accept that her position would be that she would not leave them. She has devoted herself to their care since their birth, including in the difficult and trying circumstances these parties have experienced from the conception of the first child in (country omitted) to their present placement in Australia, and, accordingly, that is a reasonable inference to draw.
If a return to Sydney were ordered the children would be separated, not from people with whom they have been living, but from people with whom they have now developed relationships. Although, the evidence would not suggest they previously had such relationships, they have now developed to be strong and close relationships, including with family members and social capital, school friends, peers and the like. That factor supports the mother’s position.
Practical difficulty and expense
The parents are presently living some significant distance apart.
Practical difficulty would not necessarily be improved or ameliorated by requiring the mother to return the children to Sydney. The parents would certainly live closer together, but their capacity to implement an arrangement for equal time or substantial time is still non-existent. The father does not seek it, and I can infer, does not see it as practical or in the children’s best interests that it be sought.
Accordingly, the mother’s return would be to facilitate the children spending, at best, three hours a week with their father. That is time which cannot occur as regularly or as frequently if the mother remains in Melbourne. But the mother does not oppose the father having more significant time than he, in fact, seeks.
The mother proposed and agreed to, as reflected by the consent Orders of 12 December 2014, greater periods of time than the father wishes to practice if the parties both live in Sydney. The mother had proposed 10am until 6pm, an eight hour period on each occasion the father was to travel to Melbourne but failed to do so.
Accordingly, there is no capacity of the parents, irrespective of which proposal is favoured, to implement equal or substantial and significant time.
The parents’ capacity to communicate would appear problematic, although the reasons for that are inexplicable. The mother indicates she is more than happy for and supportive of the children having a relationship with the father, the children speaking with the father regularly by telephone and seeing him if he comes to Melbourne.
Clearly, the mother is in Melbourne, as she was at the time that interim consent Orders were entered. The father travelling to Melbourne is the only practical and financially achievable means for a relationship between the children and their father if the mother remains with the children in Melbourne. It is, put bluntly, much easier for the father to travel to Melbourne than it is for the mother and six children to travel to Sydney and then accommodate themselves.
The impact on the arrangement is already addressed. I am satisfied practicality would support the mother’s position. That is also relevant as regards the High Court’s decision in MRR & GR. The only means by which greater time for the practice of a relationship could be procured would be for the father to substantially change his Application.
If I were to Order the mother to return to live in proximity with the father he would still, on his Application, spend only 3 hours a week with these children. It begs the rhetorical question “How could such disruption to the children’s settled arrangements, however they have come about, be justified for that?” Simply the answer must be “it cannot”.
Something not dissimilar, indeed, possibly greater and more beneficial to the practice of the relationship, could be achieved by the mother remaining where she is and the father availing himself of time, including time previously ordered and abandoned by him.
Capacity of the parents to meet the children’s needs, including emotional needs
There is nothing which would significantly impact on either parent as regards this factor, although if one accepts for one moment that the father has failed to avail himself of time and has not instigated communication which is readily available, it would demonstrate poor insight into the children’s emotional needs. Indeed, it would be contrary to the father’s assertion both as to his desire to pursue a relationship and the strength of his relationship. He would be aware how important it would be for the children to hear his voice.
As is submitted in the mother’s case, what is extraordinary is that the father annexes to his material the Facebook page suggesting at least one of the children has asked the mother to connect them with the father on Facebook, as they miss him, and yet the father’s evidence is totally absent any action taken by him to act upon that which he read, which must have stirred his heart that his child missed him, as he missed the child.
There is nothing that the father leads in his evidence that suggests that he then made any inquiry of the mother or attempted to contact the child. That factor favours the mother’s position.
Maturity, sex, lifestyle and background of the children
These children have two parents who have come from a war-torn country and fled possible death. That would be a significant factor for these parents in their reaction to these proceedings. They no doubt both desire the best for the children and I have no doubt they love them equally. I have no doubt the children love their parents.
The background of the parents and the children, however, is such that the children do need stability. They need the best that they can achieve, as children of refugees to Australia struggling to get by on an income which, on the mother’s evidence, without even taking account of the expenditure she would incur, whether living in Sydney or Melbourne, would place her well below the poverty line.
Anything that can be done to maximise the chances for these children in their future life should be done. It is well-established through research, including a recent report by Jo Blanden and Lindsey Macmillan [5] and in recent writing by authors such as Dennis Glover[6], that disadvantage, particularly poverty, is generational and it is, to some extent at least, “inherited”.
[5] “Education and Intergenerational Mobility: Help or Hindrance?” Department of Qualitative Social Science, Institute of Education, University of London January 2014.
[6] Dennis Glover, “An Economy Is Not A Society: Winners and Losers in the New Australia”, Dennis Glover Black Books 2015.
To require these children to return to even greater financial poverty and disadvantage would be disadvantageous to them. It would more greatly predispose if not guarantee these children to future, lifelong disadvantage as to income, education and the like. That factor favours the mother’s Application.
Aboriginality
Neither parent nor the children identify as Aboriginal or Torres Strait Islander. They are from a (nationality omitted) background.
Attitude of the children and the responsibilities of parenthood demonstrated by each of the children’s parents
Each is critical of the other; the father for the mother’s unilateral removal; the mother for the father’s failure to avail himself of time and communication which was clearly available to him. Each criticism has some validity, although I am satisfied the mother’s criticism more so.
The mother made no particular secret, save the suggestion by the father that she was, at worst, evasive if not misleading, as to her intention to relocate to Melbourne. However, it is the mother’s legitimate expectation and interest that she would be permitted to move where she desires, particularly as she is clear as she perceived it to be, and has found it to deliver, greater advantage to her through family support, employment and a lower cost of living.
That is not, for one moment, to suggest that those factors are dispositive of this issue, nor that the mother is required to show compelling reasons for her relocation. However, the benefits that are derived for this family, disadvantaged and living in poverty, of the move outweigh the disadvantages. The benefits certainly provide clear explanation for what is otherwise criticised as the mother’s attitude.
The mother suggests that at the time that she moved, indeed, at all times since separation and having formulated the desire to move, the father was somewhat disinterested in pursuing a relationship with the children. The father, inferentially, at least, would appear to disagree with that assertion. However, there is nothing in the evidence to explain, other than the father’s clear basis for not taking the children on an overnight basis, why arrangements were not more frequent and more abundant, and why they were not pursued by the father whilst the parties were in Sydney, let alone why he has taken no step to engage with the children since they have been in Melbourne.
Family violence
There is none alleged.
Family violence orders
There are none.
Whilst there were previously Orders those proceedings were discontinued or dismissed.
Whether it is preferable to avoid future proceedings
That is difficult to address in this case. The proceedings will continue. This is an interim determination only. Accordingly, the Court cannot really take active steps to achieve that outcome.
I am satisfied that the best that can be achieved to avoid future proceedings is to put into place Orders that are clear and specific, that will advance the matter to a conclusion as soon as can be achieved and which allows all resources that are required to be allocated to the proceedings.
Conclusion
Ultimately, I am satisfied by reference to the above that the mother’s proposals are to be preferred being that the children would remain living with the mother, (there being no issue that the children will live with their mother), in Melbourne. This is where they are well established and settled, albeit that this is a circumstance that has come into being immediately after the commencement of proceedings, the mother aware that the proceedings were on foot, and the significant delay which has arisen which has allowed this to be so, has been entirely beyond the control of the Applicant.
The children are well settled. They are well cared for. The mother is better able to care for them financially and emotionally if she stays where she is. Those factors all relate and speak directly to the children’s best interests.
To require them to return would impose disadvantages which would not be offset by advantage. The children would have a significant advantage of being in the same locality as their father. However, they would still see very little of him and in circumstances where the father has failed to provide any explanation for why they have not seen him at all, even though Orders have been in place permitting it to be so, and he does not and thus cannot be heard to complain that he has been impeded in any fashion from exercising that time.
The greatest benefit to these children is achieved and thus the best interests of these children more fulsomely met by their remaining in Melbourne and seeing and communicating with their father when he should desire to avail himself of that opportunity.
I certify that the preceding two hundred and ten (210) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 5 November 2015
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Remedies
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Jurisdiction
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Procedural Fairness
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Costs
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