FEDERAL CIRCUIT COURT OF AUSTRALIA
| PLATER & PLATER | [2017] FCCA 1447 |
| Catchwords: FAMILY LAW – Parenting – interim hearing – whether mother should be permitted to relocate with the children on interim basis – where alternative is not in children’s best interests – evidence of family consultant – position of Independent Children’s Lawyer – interim relocation allowed. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA |
| Cases cited: Rollins & Van Hummell [2016] FamCA 916 Goode & Goode(2006) FLC 92-286 Morgan & Miles[2007] FamCA 1230; (2007) FLC 93-343 Cowling v Cowling [1998] FamCA 19; (1998) FLC 92-801 Taylor v Barker [2007] Fam CA 1236; (2007) FLC 93-345 Timms & Payton [2015] FCCA 3324 |
| Applicant: | MS PLATER |
| Respondent: | MR PLATER |
| File Number: | DGC 1110 of 2017 |
| Judgment of: | Judge O'Sullivan |
| Hearing dates: | 31 May & 14 June 2017 |
| Date of Last Submission: | 14 June 2017 |
| Delivered at: | Dandenong |
| Delivered on: | 21 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gates |
| Solicitors for the Applicant: | Annette Wolfe Barrister & Solicitor |
| Counsel for the Respondent: | Mr Willee |
| Solicitors for the Respondent: | McGowan Family Law |
| Solicitors for the Independent Children’s Lawyer: | McCormack & Co |
ORDERS
UNTIL FURTHER ORDER
The children [X] born (omitted) 2008 and [Y] born (omitted) 2011 live with the mother.
The mother be permitted to relocate with the children to (omitted).
The children continue to be enrolled at their current school, (omitted) Primary School.
The children spend time with and communicate with the father:
(i)From Friday 23/6/17 at 6 p.m. until Sunday 25/6/17 at 3 p.m.
(ii)During the July school term holidays from Sunday 2/7/17 at 12 p.m. until Sunday 16/7/17 at 3 p.m.
(iii)From Friday 4/8/17 at 6 p.m. until Sunday 6/8/17 at 3 p.m.
(iv)From Friday 25/8/17 at 6 p.m. until Sunday 27/8/17 at 3 p.m.
(v)From Friday 15/9/17 at 6 p.m. until Sunday 17/9/17 at 3 p.m.
(vi)During the September/October school term holidays from Sunday 24/9/17 at 12 p.m. until Sunday 8/10/17 at 3 p.m.
(vii)From Friday 27/10/17 at 6 p.m. until Sunday 29/10/17 at 3 p.m.
(viii)From Friday 17/11/17 at 6 p.m. until Sunday 19/11/17 at 3 p.m.
(ix)For one-half the Christmas school holiday period by agreement between the parties, in default of agreement from 12 p.m. 26/12/17 until 3 p.m. 16/1/18.
(x)From Friday 9/2/18 at 6 p.m. until Sunday 11/2/18 at 3 p.m.
(xi)From Friday 9/3/18 at 6 p.m. until Monday (Labor Day) 12/3/18 at 3 p.m.
(xii)During the Easter/April school holiday period from Sunday 1/4/18 at 12 p.m. until Sunday 9/4/18 at 3 p.m.
(xiii)At such other time on a face-to-face basis as agreed between the parties.
(xiv)By Skype and/or telephone during times the children are not otherwise in the care of the father on Monday, Wednesday and Friday at 6.30 p.m.
(xv)Changeover at the commencement and conclusion of the children’s time with the father be at McDonalds (omitted).
The father shall provide the mother with no less than 72 hours notice if he is unable to exercise time with the children.
In the event of a medical emergency concerning the children, the father and mother shall immediately notify the other parent of same.
Both the father and the mother provide the other party with a current telephone contact number and such other information as to enable conversations and communications by telephone and Skype.
The father be permitted to attend the children’s school and any function concerning the children’s school normally attended by parents of a child at the school and the parties shall do all things necessary to ensure the father receives copies of all reports, letters, invitations and the like usually forwarded by the school to the parents of a child at that school.
At the election of the father, the time-with arrangements set out in paragraph 4 herein be exercised in the (omitted) area and upon giving the mother 72 hours notice of his intention to do so, the father shall pick up the children after school on Friday and return them to the mother at McDonalds (omitted) at 3 p.m.
IT IS NOTED that publication of this judgment under the pseudonym Plater & Plater is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 1110 of 2017
| MS PLATER |
Applicant
And
| MR PLATER |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
On 11 April 2017 Ms Plater (“the mother”) filed an application for parenting orders and property settlement under the Family Law Act 1975 (“the Act”), naming Mr Plater (“the father”) as the respondent. The mother is 34 years of age and gave her address as (omitted), Victoria. The father is also 34 years of age and is currently living in (omitted), near (omitted) in Victoria.
The parties commenced a relationship in 2005, were married in 2007 and physically separated in March 2017. There are two children of the marriage, [X], born (omitted) 2008, and [Y], born (omitted) 2011 (“the children”).
The mother’s initiating application, filed 11 April 2017, was supported by an affidavit sworn 10 April 2017, a financial statement and a notice of risk. On an interim basis, the mother sought, amongst other things, a recovery order. The mother’s solicitor had requested her application for interim parenting orders be abridged. However, this was refused and the application was given a first Court date of 30 May 2017.
The father filed a response on 17 May 2017, also seeking interim parenting and property orders, accompanied by an affidavit sworn 16 May 2017, a financial statement and a notice of risk. In that response, the father also sought, amongst other things, a recovery order.
Before the first Court date, and on 23 May 2017, the mother filed an amended initiating application, which on an interim basis sought, amongst other things, an order permitting her to relocate the children’s residence to (omitted).
On 30 May 2017 both parties appeared represented at Court. The Court made an order under s.11F of the Act for the parties and the children to attend upon a family consultant and the matter was adjourned to 31 May 2017.
The parties returned to Court that day, at the conclusion of the s.11F child inclusive conference. The family consultant gave evidence and Counsel for each of the parties had an opportunity to cross-examine him. At the close of the evidence, the Court made an order under s.68L of the Act for the appointment of an Independent Children’s Lawyer, and adjourned the matter to 14 June 2017 to hear submissions on the interim parenting dispute.
On 14 June 2017, both parties were again represented and the Independent Children’s Lawyer also appeared. After each of the parties and the Independent Children’s Lawyer had prepared a minute of interim orders they sought, the Court heard submissions and then reserved its decision.
Background
Before turning to the evidence of the family consultant, the submissions made on 14 June 2017, and the approach to the resolution of this interim parenting dispute, it is convenient to set out some of the agreed or uncontested background facts.
During their relationship, the parties and the children lived in the (omitted) area. The mother had worked part time, whilst the father was employed full time. The father gave his occupation as an (occupation omitted). The children had, until March 2017, attended the local primary school. In late March 2017, the mother left the former matrimonial home in (omitted) with the children and, without telling the father, travelled to (omitted), where she has remained ever since. The mother is now in a new relationship, with a partner who has children himself. The mother also says she has a new job.
Following the mother’s move to (omitted), there was subsequent communication between the mother and the father about their relationship and what would become of it. The children spoke with the father between late March and early April 2017. A meeting was arranged in early April 2017 between the mother, the father and the children in (omitted). The maternal grandmother also attended.
Shortly after that meeting, arrangements were made for the children to spend time with the maternal grandmother, who was not happy with her daughter’s decision to remove herself and the children to (omitted). Whatever those involved said or agreed to is disputed. However, following arrangements being made between the mother and the maternal grandmother for them to spend time with her, the children were not returned to the mother. It appears the children were then placed into the care of the father.
There were then disputes between the parties about whether the children should live with the mother in (omitted) or with the father in (omitted). Whilst the children remained in the (omitted) area, with the father and/or the maternal family, the dispute between the parties escalated, with the police becoming involved. Shortly after, the mother sought intervention orders against her own mother and then the father. The children were included in these application/s.
As a result of an order made in the Magistrates Court of Victoria, following the intervention order applications, the children were removed from the father with the involvement of the police, and returned to the mother on 27 April 2017.
There were then subsequent hearings in the Magistrates Court of Victoria as a result of the interim intervention orders. Following this, and up and until the proceedings first came before the Court, the children had not seen the father. Between 31 May 2017 and 14 June 2017 arrangements were made between the parties for the children to spend time with the father on one weekend from Friday to Sunday.
Material
For the purposes of the interim hearing on 14 June 2017, the material that the parties relied on has been referred to earlier in these reasons.
Evidence of Family Consultant
On 31 May 2017 the parties and the children attended upon a family consultant as a result of an order made under s.11F of the Act. The family consultant’s transcript of evidence (omitting formalities) is as follows:
“Your Honour, the parents differed in terms of the dates that they say the separation under one roof arrangement commenced. The mother said that they – that that arrangement commenced in July 2015; the father indicated to me this morning that it was his view that that commenced early 2016. Nevertheless, it seems evident that the parties had chosen separate sleeping arrangements and in addition to that he indicated to me this morning that in his view the relationship did not formally end until the mother left the home on 29 March this year. So he indicated to me that as far as he was concerned prior to that date in March this year they remained in a relationship.
He agreed that they had not been intimate for the past year and that the mother’s attitude towards him had changed during that time and that she was not responding to him or engaging with him as she had previously in the marriage. He indicated to me that as far as he was concerned when she moved out with the children that was a shock and a surprise to him. Your Honour, he also indicated that it was his view that the mother had planned her decision to leave with the children and moved to (omitted), he said, on the pretext of a holiday to (omitted) but it is his belief, he said, that she did in fact go to (omitted). The mother denied that it was premeditated and planned. She said that the father’s attitude to her over quite a period of time through their marriage was quite abusive.
She denied that there was any physical violence although she said he raised his hand to her once and – but he did not strike her and he did not raise his hand to her again during the time that they were together. She said he was emotionally abusive and he humiliated her in front of the children but he did not engage in that sort of behaviour publicly because he sought to portray a more appropriate image to other people. She said that after [X] was born and she became sick he threw a box of Nurofen at her and said, “Deal with it” when she sought support from him.
She also said that her family as well as his family took the attitude that even if she was unhappy in the marriage that it was her responsibility to raise the children and even though she was unsupported by him that nevertheless she was the mother and she needed to care for the children and manage them and he was simply the provider financially for them as a family. She said that she had been unhappy for a long period of time and had been afraid to tell him that she intended moving out of the home. She said the father was often in the shed and left the children unattended and if the children or one of them – usually [X] – called her at work and said that something had happened and daddy was out in the shed, then she would have to deal with that from a distance.
Your Honour, clearly, the relationship had significantly deteriorated prior to separation and, for whatever reason, the father was unaware of the extent of that, and the mother said she felt unable to indicate that to him, and so she left. Your Honour, it is evident that in this particular case the distance is a major factor, given that there’s probably four and a half hours of driving time between the parents’ respective homes. The mother has repartnered and is now living with that partner, Mr W. Mr W is a (occupation omitted) at (omitted), and they are presently living in a home together with the children. The mother indicated to me that it was her desire that the children be able to maintain a relationship with the father, but she said it was not her desire nor intention to return to (omitted), where the former family home is situated and in which the father lives. The father indicated that he would vacate that home and make it available to the mother if she were to return to (omitted).
However, the parties each confirmed that that property will be on the market for sale by the end of this week, and so that would only be available, presumably, for a short period of time until it was sold. The children are being enrolled in (omitted) Primary School, (omitted), and [X] is in grade 3 and [Y] is in grade 1. The mother said both children have made striking improvements in their schooling since that change in school. She stated to me that she was agreeable for the children to spend time with the father every third weekend, although I understand that she would contemplate every second weekend. The frequency of such travel is obviously going to have an impact on the children, and that is something that no doubt the court will consider in determining what that frequency should be. Your Honour, the parents both indicate that the children love each of their parents. The children confirm that. And the mother confirmed that the children have been missing their father over this last month since they were returned to her care pursuant to the intervention order that was granted to her, and they have only been having telephone time with him, I think, twice a week.
The mother stated that she encourages the children to draw pictures for the father. She said she reminds them to tell him that they love him on the phone if they have forgotten to do so. She indicated to me that she has facilitated their time with him and done all that she could to maintain a relationship with him. The father during interview was quite teary at times, and it was evident that he loves the children a great deal and has missed them and that his withholding of them in April was because – perhaps largely – that he had been missing them for the week or so that – since the mother had moved. He said that although he has not specified the parenting arrangements in his response and not outlined live-with or spend-time arrangements there at all, he said this morning that his first option or proposal would be for the mother to return to (omitted) with the children.
As I indicated earlier, he told me that he would move out and enable her to move into the former family home. He said distance is his primary issue. He said, however, that if the mother remains in (omitted), that he would seek for the children to be placed in his care and for them to spend time with their mother. He said that he’s well supported by various family members, both on his side of the family and the mother’s side of the family. He said the maternal grandmother would be the first option to assist, because his mother has a (omitted) business. Perhaps that’s the maternal grandmother. But he said that the maternal grandmother would be the first person that he would call on to assist. He also said that his work hours could be changed by arrangement with his employer, and he would be able to get the children to – either to school or to before school care each day, and he would continue to collect them from school on the Friday afternoon, as has been his practice. All other delivery and collections would need to be by another family member.
Both the parents indicated that in terms of travel arrangements, that the halfway point between their two current homes is (omitted). In speaking with the children, your Honour, I spoke with [X] in the first instance, and she spoke very positively about her current school and her teacher. She said the distance between the parents’ homes is – causes her sadness, and she misses her dad. She talked about family life at home as being good, and she denied hearing any arguments between them, although her younger sister disagreed in that respect. She described Mr W as fun and had no complaints about him. When asked how she would feel if the judge said that she was to continue to live at (omitted), she said she would be happy. When asked how she would feel if the order was that she live at (omitted) with her father, there was a pause and she said that she was not sure.
I asked her then how she would feel if the order was made that she live with her mother at (omitted), then she said that would be okay. She indicated to me that she would like to see her father at the conclusion of the interviews, and when I asked her the three wishes question, her first and only wish was that she would be able to live with both of her parents together and be reunited as a family. She had no particular worries at this present time, she said, and if an order was made for her to live with her father and spend time with her mother, she said this would cause her sadness. She said she wanted to live with her mother at (omitted) if they couldn’t live at (omitted). [Y] is six years of age and she talked about her new school, which she said she likes, but she had no complaints about her former school at (omitted). She said that her parents sometimes argued and this caused her sadness. She loves both her parents and she described the separation as something that caused her sadness.
She spoke positively about living at (omitted) and like her sister, she spoke positively about Mr W. She said that she wants to see her father more. A lot, if possible, because she missed him. She indicated, like [X], that she wants the family to be reunited and the first of here three wishes was to be able to stay home at (omitted) with mum and dad. Her second wish was to go to school every morning, which I think she does, in any event, and she had no third wish. When I asked her if she worried about anything at the present time, she said she worries about her daddy.
Your Honour, I saw the children informally as their mother signed them into and out of the child care room, and the children certainly appeared to have a loving relationship with her. [Y] was noted to be sitting on Mr W’s knee. When I walked into the waiting area this morning, prior to signing them into the childcare room. They appeared to relate with him quite well. When the father was taken into the child care room, both the children hugged him and gave him a very affectionate welcome. The father managed to compose himself emotionally quite well. There were tears on his cheeks at various times and it was very evident this was an emotional moment for him.
Both children were very comfortable with him and there was clear affection between the children and their father. There were no concerns identified. Your Honour, it’s evident that the children love both their parents and it’s unfortunate there is such a great distance between them. The mother made it very clear at interview that she has no intention of returning to (omitted). She has no employment there, having resigned from her earlier position, whereas she has now just recently obtained employment at (omitted). It’s clear that her relationship with her own family seems distant and it is understood that her mother and other members of her family are supporting the father in these proceedings.
It seems that it would be a challenge for her to return to the former family home, which I understand is in close proximity to her mother, and that would be a particularly difficult expectation of her. It also seems unreasonable and probably not consistent with the children’s needs for them to return to (omitted), given that the home is to be sold. The father indicated that once the home is sold, he will stay with a friend and perhaps with his own family for a time, but he didn’t indicate any intention of remaining or purchasing a home in (omitted) once the property matter is concluded and he’s in a position to finance the purchase of a home.
So to ask the mother to move back there would only be a temporary fix and it would also create an additional change of schools for them, and that being a temporary arrangement, in any event. The father clearly wants the mother to move closer to where his residence presently is and she has no intention of moving from (omitted). It’s acknowledged that her relationship with Mr W is in its infancy and obviously, it’s impossible to predict the future of that relationship, but clearly, it’s their intention to remain together, if possible. The children’s time with their father needs to be maximised, but the travelling time to be expected of the children needs to be taken into account.
And it’s clear that they not only are grieving the separation of their parents, but they’re also incredibly distressed that they’re not able to spend sufficient time with their father at this present time. So any arrangements that are put into place need to maximise that to the extent that it’s possible, your Honour.
HIS HONOUR: All right. Nothing else, Mr M?
MR M I don’t think so, your Honour.
HIS HONOUR Just one thing. Did you explore with either of the parties – I note your report indicated that they advised the property was being sold, whether it was possible to withdraw the property from sale?
MR M: I didn’t – I didn’t pursue that. No.
HIS HONOUR: Did you ask them, if the property was to be sold in any event, whether it was possible to have an elongated settlement process?
MR M: No, I didn’t. No.
HIS HONOUR: Your report would indicate that up and until the end of March this year, the children had spent the entire period of their lives in (omitted)?
MR M: I understand that. Yes.
HIS HONOUR: And they have gone to school there from when they began?
MR M: Yes.
HIS HONOUR: And before then, they had been to kindergarten?
MR M: Yes, yes.
HIS HONOUR: Save for the fact that their mother is now in the (omitted) area, all of their family and friends are in the (omitted) area?
MR M: Yes.
HIS HONOUR: Questions, Mr Gates.
MR GATES: What’s the parameters of this process, your Honour?
HIS HONOUR: Well, you’re able to ask questions of Mr M.
MR GATES: Okay. Mr M, the ‑ ‑ ‑
HIS HONOUR: If I need to put you on the clock, I will give you notice that I will be.
MR GATES: More the scope, your Honour, rather than the duration.
HIS HONOUR: Well, the parties, Mr Gates, have, in a sense, set the parameters by their behaviour. Their court material would suggest they haven’t thought properly about that before they did it.
MR GATES: In relation to the mother’s proposal, if it was to be fortnightly from a Friday to a Sunday, half holidays, Skype or telephone three times
HIS HONOUR: Well, aren’t you missing something, Mr Gates?
MR GATES: Probably.
HIS HONOUR: Yes. Which is the first order sought in the amended initiating application. That’s this case.
MR GATES: During the relationship was your understanding that the wife spent a lot more time with the children given the husband’s employment in terms of being a primary carer?
MR M: I would have to agree with that. Yes.
MR GATES: And in terms of the things that the children didn’t say but the nuances in terms of whether that be sad or otherwise did you get a feel for whether there was a primary attachment to the wife over the husband in terms of a primary carer for the six and eight-year old girls?
MR M: Yes. It’s not our practice to ask children who they prefer to live with.
MR GATES: Sure?‑‑‑However, a range of other questions were put to them and my understanding of their responses was that they would prefer to live with their mother albeit they want to spend more time with their father.
And in terms of if his Honour was to go down the path of potentially saying that the children live predominantly with the father and spend time with the mother, I’m going to put to you that the girls simply – it’s not what they have grown up with and they probably wouldn’t cope with that emotionally?
MR M: No. I – I don’t – I think their primary connection and relationship was – is with mum as their primary carer. However, if they could have their way they would have their parents together
MR GATES: Sure? and they would be reunited as a family.
And this is a little unusual with the dynamics between the mother and the maternal grandma in that the maternal grandmother has an intervention order against her taken out by police on 13 April?
MR M: Yes. And it’s my understanding that matter returns to court tomorrow.
And so the – this is the one that was attached to the husband’s material, not the other one.
HIS HONOUR: Can you imagine how much extra work is created for this court by what goes on in those courts. Well, you probably do a bit of it.
MR GATES: I do a bit of it. This is one where it was a ‑ ‑ ‑
HIS HONOUR: I’m sorry. I’m distracting you. That was an observation.
MR GATES: Sometimes there are cases where they are absolutely necessary
HIS HONOUR: You don’t need to explain.
MR GATES: One thing to clarify, when you were talking about [X] and [Y] they were talking about arguments in the home
HIS HONOUR: No. That wasn’t his evidence.
MR GATES: The first bit about
HIS HONOUR: It was [Y], not [X].
MR GATES: Yes. I know. [X] said there wasn’t
HIS HONOUR: But you said they were
MR GATES: Yes. [X] said there wasn’t and [Y] said there was and what I want to clarify – that as the home between – pre-separation between the father and the mother, not Mr W and the mother?
MR M: No. That’s correct. Yes.
MR GATES: It was probably evident, your Honour, but I wanted to make sure that that was – if his Honour was inclined to allow the children in the care of the mother and they were to remain in (omitted), do you have a view about the proposal, given the limitations of distance, of a Friday to a Sunday on alternate basis half holidays and three times a week in Skype being enough time, given the circumstances, to continue the relationship to flourish between the children and the father?‑‑‑I – look, whatever arrangement here is obviously less than ideal ‑ ‑ ‑
Yes? but that’s what we’ve got to deal with. The parties are separated and we can’t change that. The distance here is unfortunate in that there’s four and a half hours of travelling. That then has implications for the children and if – if they are asked to travel nine hours every weekend in a vehicle in total then – and that’s every – every second weekend – over time they will find that tedious. In terms of the frequency of time with – with the father in that scenario, I guess that would maximise their time but – but the question is how will that play out over time. Would every third weekend be more – a reasonable expectation of them ‑ ‑ ‑
What about on an interim basis until trial? That’s probably how I’m putting it, rather than a long-term order?
MR M: Look, I think that would probably be more doable especially if the parties meet at (omitted) as each of them said was halfway because they could – that would be a big enough centre where they can spend some time in a park, have a meal and so on before they get back in a car travel the rest of the distance.
MR GATES: Just finally ‑ ‑ ‑
HIS HONOUR: You’re aware, Mr M, a trial wouldn’t be until at least May of next year?
MR M: Yes. I – I wasn’t sure what the timeframe would be, your Honour, but we’re looking at a year, virtually, so that’s – that’s a lot of – a lot of time at that frequency. If we’re looking at a year then I think maybe every – every third weekend would be a bit more reasonable to expect of them.
MR GATES: Okay. And just finally in relation to if the mother was required to live in (omitted) there’s an animosity between her family and herself. Do you have a view on whether the children would pick up on the mother’s general lack of happiness in terms of if she was in an environment where she wasn’t thriving, whether they would pick up on that?
MR M: I think there’s a fair chance of that.
HIS HONOUR: Of course, I can’t order the mother to live anywhere but I can order that the children live somewhere.
MR GATES: Correct. Exactly right. It’s not her living there. It’s – and she goes where the children go is her case but if she’s in a place where she has a hostile maternal family then that’s obviously going to impact on how she can flourish in that town.
HIS HONOUR: Well, that’s a matter for her. And I can make injunctive orders to deal with the Hatfields and the McCoys.
MR GATES: Yes, your Honour. I mean, there’s obviously – there’s evidence now about the employment that wasn’t previously there now available.
HIS HONOUR: It hasn’t even started, Mr Gates.
MR GATES: But I’m told it’s an opportunity to begin ‑ ‑ ‑
HIS HONOUR: And there’s no evidence of it as such. There’s a claim that it is.
MR GATES: Yes. There was – I suppose, your Honour, I could put submissions to your Honour. I’ve probably not got anything further for Mr M.
HIS HONOUR: Thank you. Mr Willee.
MR WILLEE: Yes. Thank you, your Honour.
MR WILLEE: Just on that previous point with regards to Ms Plater’s employment, could you clarify for the court whether or not she advised the father that she intended to resign from her position in (omitted) at the (employer omitted)?
MR M: I can’t answer that except to say that I understand that she probably didn’t but – but I’m not sure. I didn’t ask what notice she gave either to the (employer omitted) or – or to the father. She indicated to me that she was too fearful to tell him that she was leaving him so it seems reasonable to believe that she didn’t tell him that either.
MR WILLEE: Could you clarify please, Mr M, with regard to whether or not the mother agrees that she left a note on the bench when she left and gave him notice whatsoever in relation to her departure and that he returned from work with no children there?
MR M: I don’t believe – I don’t believe she mentioned to me in the interview that she left a note but certainly the father confirmed that she did.
MR WILLEE And could you please clarify for his Honour’s benefit when you say that she said that he was emotionally abusive and humiliated her in front of the children, did she provide you with any examples of that emotional abuse or humiliation?
MR M: She told me that he yelled at her, he complained about her having the television too loud, that she coughed too loud, that the lights were on and that was disturbing him, because he had to start early the next morning and he wasn’t a good sleeper. He said the children – she said the children were too loud, and because [Y] was a poor sleeper with reflux and she was at times unwell, that the children – [Y] and sometimes [X] made a noise that disturbed him, and he would yell and abuse her for not keeping the noise down. Look, there may have been other examples that she gave, but they are a few.
MR WILLEE So when his Honour asked you at the commencement of your evidence whether or not you perused the pleadings and affidavit material provided by the parties and you said you had, when did you peruse that material?
MR M: I read through the material this morning.
MR WILLEE And this – these notions of the father – or these examples that the mother gave of him requesting that she didn’t cough too loud and the TV was too loud and the lights were on because he was a poor sleeper and [X] was a poor sleeper, is that something that you gleaned from the materials, or is that something that she told you in ‑ ‑ ‑?
MR M:: That’s what she told me in the interview.
MR WILLEE: In the interview. And did she give any examples of the types of language that he used? For example, was he sort of saying, “Honey, would you mind turning the TV down?” or “Could you turn those lights off in the hallway? They’re keeping me awake. I have to get up at 5.30 am”?
MR M: It was more the latter, yes. She said he was emotionally abusive and that he spoke critically, he spoke in a complaining way, loud and a denigrating manner that caused her humiliation and embarrassment in the presence of the children.
MR WILLEE Okay. Could you clarify for the court whether or not you asked him about that?
MR M: I don’t believe I asked him that, no.
MR WILLEE: Did you speak to – or did you explore with [Y] her attitude towards being in the car for that long and driving, and driving generally?
MR M: No, I didn’t. I think – I don’t know whether it was [X] or [Y], I spoke to about being in the car for quite a long period of time. The father indicated that the children are not accustomed to travelling in the car for long distances and that half an hour or more is quite a strain at times for them. So – but I didn’t specifically raise that with the children.
MR WILLEE: In relation to the alleged withholding by the father, could you clarify for the court, please – you said that that was largely due to a circumstance where he missed the children enormously. Did the father provide you with any other reasons as to why the children were withheld on that occasion?
MR M: He told me he was – he feared for the children at (omitted), being so distant. He said that he was concerned for them if something happened to the mother. I asked him what he meant by that, and he said that if she had a fall or became unconscious or something, that the children would then have no one to care for them, and I said, “Is that something that has happened previously?” and he said “No” and he said she would say that he’s a worrier, but he’s just – he said, “You’ve got to think about these things.” So it seemed that he was anxious for the children if something happened to their mother and she became unable to care for them for some reason, but there may also – I’m not sure that he said this, but he may also have had some anxieties about the fact that the mother had a new relationship and he knew little about that person.
MR WILLEE: And did he say anything else with regard to the reasons why he withheld the children at that time?
MR M: I don’t believe so. Certainly I’ve not got anything else recorded, except that the distance, obviously, between the parents’ homes was something that caused him great consternation.
MR WILLEE So you indicated to the court that you had read the materials this morning. Did you read the part where he received legal advice with regard to retaining the children in his care?
MR M: He didn’t mention that at interview, but I recall reading that, that there were no orders and he – there was no legal constraint on him to return them.
MR WILLEE: Thank you. And with regards to the allegation that he was often in the shed whilst the children were inside and that they had to frequently telephone their mother at work, did you see the exhibits that he provided attached to his affidavit in relation to those allegations that the mother made in her affidavit?
MR M: I’m not sure that I saw that specifically, no.
MR WILLEE: Did the mother say which dates that she was referring to her being contacted whilst at work because the father was in the shed and the children had had to call her?
MR M: She didn’t give me dates, no, and to be honest, I wasn’t – it wasn’t the focus of mine this morning, what had transpired back then. I knew that the maternal grandmother had, I think, on 5 April collected the children, and the arrangement was for her to have them for a couple of days. Following that, they went into the father’s care ‑ ‑ ‑
MR WILLEE: Yes. No, sir, I’ve moved on from that issue, sir. What I’m asking you about now, if you could please clarify for the court for his Honour’s benefit – the allegation with regard to the shed, that the children had to call the mother on a frequent basis because the father was out in the shed and wasn’t paying, probably, what the mother refers to as the requisite attention to them or to their health.
HIS HONOUR: Did you understand those concerns to be historical, Mr M?
MR M: Yes, and they are in dispute, your Honour.
HIS HONOUR: Thank you.
MR WILLEE: With regard to the relationship prior to separation being significantly strained and the mother being unable to indicate that to the father, did he indicate to you what it was that – sorry, let me rephrase that. Did he indicate to you exactly when it was that they started sleeping in separate rooms?
MR M: Yes, I mentioned earlier that that was early in 2016.
MR WILLEE And did he mention ‑ ‑ ‑?‑‑‑In his view.
MR M: Yes
MR WILLEE and could you clarify to the court what his view was with regard to that fact, in essence? I’m asking you did he necessarily see that as an indication that the relationship was over?
MR M: And I think I answered that question earlier as well.
HIS HONOUR: You did?
MR M: He said that he did not regard that as indicating a separation. He told me this morning that that arrangement was convenience, rather than an indicator of separation, because he needed to sleep and he found it more peaceful and quiet if he slept in a separate room.
MR WILLEE: Thank you. Your Honour, I heard crystal clear your views with regard to the questions that my learned friend Mr Gates put in relation to the intervention order obtained by the maternal grandmother. Could I seek your leave to ask one question in relation to that?
HIS HONOUR: Yes.
MR WILLEE: Did you ask the mother whether or not she had taken advice from her new partner, Mr W, or what his involvement was in relation to obtaining that intervention order by the State Police?
MR M: I did not ask that question.
MR WILLEE Thank you, your Honour.
HIS HONOUR: Nothing arising?
MR GATES: No, your Honour.
HIS HONOUR: Thanks, Mr M?
MR M: Thank you, your Honour”
The transcript of the family consultant’s evidence speaks for itself. However, it is notable that the mother and father couldn’t agree on when their relationship ended, let alone where the children should live.
Importantly, the family consultant’s evidence made clear the parties each indicated the children love the other parent and that the children themselves, whilst presenting as having no complaints about their current arrangements, miss their father. The family consultant’s evidence also made clear he understood the positions of each of the parties. The mother’s relationship with her own family, who now support the father in these proceedings, was described as “distant” and it was “difficult” and “unreasonable” for the mother to return to the former matrimonial home, as it was being sold, and/or the (omitted) area.
Whilst saying whatever arrangement was arrived at was “less than ideal” and his view was the children’s time with the father should be maximised. The family consultant agreed with the suggestion put to him by Counsel for the mother, that this time could be regular and, having regard to the distance, every third weekend until further order.
The parties’ proposals
At the interim hearing on 14 June 2017, each of the parties prepared a series of proposals.
The applicant’s primary proposal was as follows:
“UNTIL FURTHER ORDER:
1. The children [X] born (omitted), 2008 and [Y] born (omitted), 2011 live with the wife
2. The wife be permitted to relocate with the children to (omitted).
3. The children continue to be enrolled at their current school, (omitted) Primary School.
4. The children spend time with and communicate with the husband:
(i) From Friday 23/6/17 at 6 p.m. until Sunday 25/6/17 at 3 p.m.
(ii) During the July school term holidays from Sunday 2/7/17 at 12 p.m. until 12/7/17 at 3 p.m.
(iii) From Friday 4/8/17 at 6 p.m. until Sunday 6/8/17 at 3 p.m.
(iv) From Friday 25/8/17 at 6 p.m. until Sunday 27/8/17 at 3 p.m.
(v) From Friday 15/9/17 at 6 p.m. until Sunday 17/9/17 at 3 p.m.
(vi) During the September/October school term holidays from Sunday 24/9/17 at 12 p.m. until 4/10/17 at 3 p.m.
(vii) From Friday 27/10/17 at 6 p.m. until Sunday 29/10/17 at 3 p.m.
(viii) From Friday 17/11/17 at 6 p.m. until Sunday 19/11/17 at 3 p.m.
(ix) For one-half the Christmas school holiday period by agreement between the parties, in default of agreement from 12 p.m. 26/12/17 until 3 p.m. 16/1/18.
(x) From Friday 9/2/18 at 6 p.m. until Sunday 11/2/18 at 3 p.m.
(xi) From Friday 9/3/18 at 6 p.m. until Monday (Labor Day) 12/3/18 at 3 p.m.
(xii) During the Easter/April school holiday period from Sunday 1/4/18 at 12 p.m. until Sunday 9/4/18 at 3 p.m.
(xiii) At such other time on a face-to-face basis as agreed between the parties in writing.
(xiv) By Skype and/or telephone during times the children are not otherwise in the care of the husband on Monday, Wednesday and Friday at 6.30 p.m.
(xv) Changeover at the commencement and conclusion of the children’s time with the husband be at McDonalds (omitted).
5. The husband shall provide the wife with no less than 72 hours notice if he is unable to exercise time with the children.
6. In the event of a medical emergency concerning the children, the husband and wife shall immediately notify the other parent of same in writing.
7. Both the husband and wife provide the other party with a current telephone contact number and such other information as to enable conversations and communications by telephone and Skype and to enable the parties to communicate about the children by text message.
8. The husband be permitted to attend the children’s school and any function concerning the children’s school normally attended by parents of a child at the school and the parties shall do all things necessary to ensure the husband receives copies of all reports, letters, invitations and the like usually forwarded by the school to the parents of a child at that school.
9. At the election of the husband, the time-with arrangements set out in paragraph 4 herein be exercised in the (omitted) area and upon giving the wife 72 hours notice of his intention to do so, the husband shall pick up the children after school on Friday and return them to the wife at McDonalds (omitted) at 3 p.m.
…
13. That the children communicate with the wife each Tuesday and Thursday between 6-6.30pm by telephone/skype/facetime at all times the children are with the husband during school holidays.”
In the alternative the applicant’s proposal was as follows:
“That in the event the Court requires the children to live in the (omitted) area:
1. The children live with the wife.
2. The children spend time with the husband:
o a) each alternate weekend from 6pm Friday until commencement of school the following Monday during all school terms;
o b) by telephone each Tuesday and Thursday between 6-6.30pm;
o c) as otherwise agreed between the parties in writing;
o d) for the first week of each school term holiday;
o e) for 3 weeks from 5pm Boxing Day;
o f) that the husband be in substantial attendance during all times;
o g) that the wife communicate with the children twice weekly during all holiday times in the husband’s care.
3. That pending the sale of the former matrimonial home the wife have sole use and occupancy of the said home and the husband continue to pay the mortgage and all outgoings.
4. That the husband vacate the former matrimonial home and be restrained from removing any chattels other than his clothing and personal effects.
5. That upon sale of the former matrimonial home the wife and children obtain rental accommodation at the husband’s expense with the costs of same to be characterised at trial.”
The respondent’s primary proposal was as follows:
“UNTIL FURTHER ORDER:
1. The children [X] born (omitted), 2008 and [Y] born (omitted), 2011 be returned by the wife to (omitted).
2. Upon such return, the husband vacate the former matrimonial home at (omitted).
3. The said children live with the wife at (omitted) until such time as the father obtains rental accommodation within 20 minutes of the (omitted) area.
4. The said children be re-enrolled at their former primary school in (omitted).
5. The said children spend time with and communicate with the husband:
(i) During school term, each alternate weekend from after school on Friday until 9 a.m. or before school on Monday morning.
(ii) For one-half of the short school term holidays, in default of agreement the first half.
(iii) For one-half of the long Christmas vacation by agreement between the parties, in default of agreement from 12 p.m. 26/12/17 until 3 p.m. 16/1/2018.
(iv) By Skype and/or telephone during the times the children are not otherwise in the care of the husband, on Monday, Wednesday and Friday at 6.30 p.m.
(v) Changeover at the commencement and conclusion of the children’s time with the husband be outside the (omitted) Police Station.
6. In the event the wife elects not to live with the children at (omitted) as referred to in paragraph 3 herein, then the children live with the husband and spend time with and communicate with the wife:
o (i) From Friday 23/6/17 at 6 p.m. until Sunday 25/6/17 at 3 p.m.
o (ii) During the July school term holidays from Sunday 2/7/17 at 12 p.m. until Sunday 16/7/17 at 3 p.m.
o (iii) From Friday 4/8/17 at 6 p.m. until Sunday 6/8/17 at 3 p.m.
o (iv) From Friday 25/8/17 at 6 p.m. until Sunday 27/8/17 at 3 p.m.
o (v) From Friday 15/9/17 at 6 p.m. until Sunday 17/9/17 at 3 p.m.
o (vi) During the September/October school term holidays from Sunday 24/9/17 at 12 p.m. until Sunday 8/10/17 at 3 p.m.
o (vii) From Friday 27/10/17 at 6 p.m. until Sunday 29/10/17 at 3 p.m.
o (viii) From Friday 17/11/17 at 6 p.m. until Sunday 19/11/17 at 3 p.m.
o (ix) For one-half the Christmas school holiday period by agreement between the parties, in default of agreement from 12 p.m. 26/12/17 until 3 p.m. 16/1/19.
o (x) From Friday 9/2/18 at 6 p.m. until Sunday 11/2/18 at 3 p.m.
o (xi) From Friday 9/3/18 at 6 p.m. until Monday (Labor Day) 12/3/18 at 3 p.m.
o (xii) During the Easter/April school holiday period from Sunday 1/4/18 at 12 p.m. until Sunday 9/4/18 at 3 p.m.
o (xiii) At such other time on a face-to- face basis as agreed between the parties.
o (xiv) By Skype and/or telephone during times the children are not otherwise in the care of the wife on Monday, Wednesday and Friday at 6.30 p.m.
o (xv) Changeover at the commencement and conclusion of the children’s time with the wife be at McDonalds (omitted).
7. The wife shall provide the husband with no less than 72 hours notice if she is unable to exercise time with the children.
8. In the event of a medical emergency concerning the children, the husband and wife shall immediately notify the other parent of same.
9. Both the husband and wife provide the other party with a current telephone contact number and such other information as to enable conversations and communications by telephone and Skype.
10. The wife be permitted to attend the children’s school and any function concerning the children’s school normally attended by parents of a child at the school and the parties shall do all things necessary to ensure the wife receives copies of all report, letters, invitations and the like usually forwarded by the school to the parents of a child at that school.
11. At the election of the wife, the time-with arrangements set out in paragraph 6 herein be exercised in the (omitted) area and upon giving the husband 72 hours notice of her intention to do so, the wife shall pick up the children after school on Friday and return them to the husband at the (omitted) Police Station at 3 p.m.
12. In the event settlement of the sale of the former matrimonial home is effected prior to the listing of this matter for final hearing, then failing agreement as to the children’s living arrangements thereafter, there be liberty to apply on short notice.
That the parties be permitted to an early release of the deposit in the amount of $30K, as partial property settlement.
…”
In the alternative the respondent’s proposal was as follows:
“UNTIL FURTHER ORDER:
1. The children [X] born (omitted), 2008 and [Y] born (omitted), 2011 live with the wife.
2. The wife be permitted to relocate with the children to (omitted).
3. The children continue to be enrolled at their current school, (omitted) Primary School.
4. The children spend time with and communicate with the husband:
(i) From Friday 23/6/17 at 6 p.m. until Sunday 25/6/17 at 3 p.m.
(ii) During the July school term holidays from Sunday 2/7/17 at 12 p.m. until Sunday 16/7/17 at 3 p.m.
(iii) From Friday 4/8/17 at 6 p.m. until Sunday 6/8/17 at 3 p.m.
(iv) From Friday 25/8/17 at 6 p.m. until Sunday 27/8/17 at 3 p.m.
(v) From Friday 15/9/17 at 6 p.m. until Sunday 17/9/17 at 3 p.m.
(vi) During the September/October school term holidays from Sunday 24/9/17 at 12 p.m. until Sunday 8/10/17 at 3 p.m.
(vii) From Friday 27/10/17 at 6 p.m. until Sunday 29/10/17 at 3 p.m.
(viii) From Friday 17/11/17 at 6 p.m. until Sunday 19/11/17 at 3 p.m.
(ix) For one-half the Christmas school holiday period by agreement between the parties, in default of agreement from 12 p.m. until 26/12/17 until 3 p.m. 16/1/18.
(x) From Friday 9/2/18 at 6 p.m. until Sunday 11/2/18 at 3 p.m.
(xi) From Friday 9/3/18 at 6 p.m. until Monday (Labor Day) 12/3/18 at 3 p.m.
(xii) During the Easter/April school holiday period from Sunday 1/4/18 at 12 p.m. until Sunday 9/4/18 at 3 p.m.
(xiii) At such other time on a face-to-face basis as agreed between the parties in writing.
(xiv) By Skype and/or telephone during times the children are not otherwise in the care of the husband on Monday, Wednesday and Friday at 6.30 p.m.
(xv) Changeover at the commencement and conclusion of the children’s time with the husband be at McDonalds (omitted).
5. The husband shall provide the wife with no less than 72 hours notice if he is unable to exercise time with the children.
6. In the event of a medical emergency concerning the children, the husband and wife shall immediately notify the other parent of same.
7. Both the husband and wife provide the other party with a current telephone contact number and such other information as to enable conversations and communications by telephone and Skype.
8. The husband be permitted to attend the children’s school and any function concerning the children’s school normally attended by parents of a child at the school and the parties shall do all things necessary to ensure the husband receives copies of all reports, letters, invitations and the like usually forwarded by the school to the parents of a child at that school.
9. At the election of the husband, the time-with arrangements set out in paragraph 4 herein be exercised in the (omitted) area and upon giving the wife 72 hours notice of his intention to do so, the husband shall pick up the children after school on Friday and return them to the wife at McDonalds (omitted) at 3 p.m.
…”
The Independent Children’s Lawyer’s primary proposal was as follows:
“UNTIL FURTHER ORDER:
1. The children [X] born (omitted) 2008 and [Y] born (omitted), 2011 live with the wife.
2. The wife be permitted to relocate with the children to (omitted).
3. The children continue to be enrolled at their current school, (omitted) Primary School.
4. The children spend time with and communicate with the husband:
o (i) From Friday 23/6/17 at 6 p.m. until Sunday 25/6/17 at 3 p.m.
o (ii) During the July school term holidays from Sunday 2/7/17 at 12 p.m. until Sunday 16/7/17 at 3 p.m.
o (iii) From Friday 4/8/17 at 6 p.m. until Sunday 6/8/17 at 3 p.m.
o (iv) From Friday 25/8/17 at 6 p.m. until Sunday 27/8/17 at 3 p.m.
o (v) From Friday 15/9/17 at 6 p.m. until Sunday 17/9/17 at 3 p.m.
o (vi) During the September/October school term holidays from Sunday 24/9/17 at 12 p.m. until Sunday 8/10/17 at 3 p.m.
o (vii) From Friday 27/10/17 at 6 p.m. until Sunday 29/10/17 at 3 p.m.
o (viii) From Friday 17/11/17 at 6 p.m. until Sunday 19/11/17 at 3 p.m.
o (ix) For one-half the Christmas school holiday period by agreement between the parties, in default of agreement from 12 p.m. 26/12/17 until 3 p.m. 16/1/18.
o (x) From Friday 9/2/18 at 6 p.m. until Sunday 11/2/18 at 3 p.m.
o (xi) From Friday 9/3/18 at 6 p.m. until Monday (Labor Day) 12/3/18 at 3 p.m.
o (xii) During the Easter/April school holiday period from Sunday 1/4/18 at 12 p.m. until Sunday 9/4/18 at 3 p.m.
o (xiii) At such other time on a face-to-face basis as agreed between the parties.
o (xiv) By Skype and/or telephone during times the children are not otherwise in the care of the husband on Monday, Wednesday and Friday at 6.30 p.m.
o (xv) Changeover at the commencement and conclusion of the children’s time with the husband be at McDonalds (omitted).
5. The husband shall provide the wife with no less than 72 hours notice if he is unable to exercise time with the children.
6. In the event of a medical emergency concerning the children, the husband and wife shall immediately notify the other parent of same.
7. Both the husband and wife provide the other party with a current telephone contact number and such other information as to enable conversations and communications by telephone and Skype.
8. The husband be permitted to attend the children’s school and any function concerning the children’s school normally attended by parents of a child at the school and the parties shall do all things necessary to ensure the husband receives copies of all reports, letters, invitations and the like usually forwarded by the school to the parents of a child at that school.
9. At the election of the husband, the time-with arrangements set out in paragraph 4 herein be exercised in the (omitted) area and upon giving the wife 72 hours notice of his intention to do so, the husband shall pick up the children after school on Friday and return them to the wife at McDonalds (omitted) at 3 p.m.
…”
The Independent Children’s Lawyers proposal in the alternative was:
“UNTIL FURTHER ORDER:
1. The children [X] born (omitted) 2008 and [Y] born (omitted), 2011 be returned by the wife to (omitted).
2. Upon such return, the husband vacate the former matrimonial home at (omitted).
3. The said children live with the wife at (omitted).
4. The said children be re-enrolled at their former primary school in (omitted).
5. The said children spend time with and communicate with the husband:
o (i) During school term, each alternate weekend from after school on Friday until 9 a.m. or before school on Monday morning.
o (ii) For one-half of the short school term holidays, in default of agreement the first half.
o (iii) For one-half of the long Christmas vacation by agreement between the parties, in default of agreement from 12 p.m. 26/12/17 until 3 p.m. 16/1/2018.
o (iv) By Skype and/or telephone during the times the children are not otherwise in the care of the husband, on Monday, Wednesday and Friday at 6.30 p.m.
o (v) Changeover at the commencement and conclusion of the children’s time with the husband be outside the (omitted) Police Station.
6. In the event the wife elects not to live with the children at (omitted) as referred to in paragraph 3 herein, then the children live with the husband and spend time with and communicate with the wife:
o (i) From Friday 23/6/17 at 6 p.m. until Sunday 25/6/17 at 3 p.m.
o (ii) During the July school term holidays from Sunday 2/7/17 at 12 p.m. until Sunday 16/7/17 at 3 p.m.
o (iii) From Friday 4/8/17 at 6 p.m. until Sunday 6/8/17 at 3 p.m.
o (iv) From Friday 25/8/17 at 6 p.m. until Sunday 27/8/17 at 3 p.m.
o (v) From Friday 15/9/17 at 6 p.m. until Sunday 17/9/17 at 3 p.m.
o (vi) During the September/October school term holidays from Sunday 24/9/17 at 12 p.m. until Sunday 8/10/17 at 3 p.m.
o (vii) From Friday 27/10/17 at 6 p.m. until Sunday 29/10/17 at 3 p.m.
o (viii) From Friday 17/11/17 at 6 p.m. until Sunday 19/11/17 at 3 p.m.
o (ix) For one-half the Christmas school holiday period by agreement between the parties, in default of agreement from 12 p.m. 26/12/17 until 3 p.m. 16/1/18.
o (x) From Friday 9/2/18 at 6 p.m. until Sunday 11/2/18 at 3 p.m.
o (xi) From Friday 9/3/18 at 6 p.m. until Monday (Labor Day) 12/3/18 at 3 p.m.
o (xii) During the Easter/April school holiday period from Sunday 1/4/18 at 12 p.m. until Sunday 9/4/18 at 3 p.m.
o (xiii) At such other time on a face-to-face basis as agreed between the parties.
o (xiv) By Skype and/or telephone during times the children are not otherwise in the care of the wife on Monday, Wednesday and Friday at 6.30 p.m.
o (xv) Changeover at the commencement and conclusion of the children’s time with the wife be at McDonalds (omitted).
7. The wife shall provide the husband with no less than 72 hours notice if she is unable to exercise time with the children.
8. In the event of a medical emergency concerning the children, the husband and wife shall immediately notify the other parent of same.
9. Both the husband and wife provide the other party with a current telephone contact number and such other information as to enable conversations and communications by telephone and Skype.
10. The wife be permitted to attend the children’s school and any function concerning the children’s school normally attended by parents of a child at the school and the parties shall do all things necessary to ensure the wife receives copies of all reports, letters, invitations and the like usually forwarded by the school to the parents of a child at that school.
11. At the election of the wife, the time-with arrangements set out in paragraph 6 herein be exercised in the (omitted) area and upon giving the husband 72 hours notice of her intention to do so, the wife shall pick up the children after school on Friday and return them to the husband at the (omitted) Police Station at 3p.m.
12. In the event settlement of the sale of the former matrimonial home is effected prior to the listing of this matter for final hearing, then failing agreement as to the children’s living arrangements thereafter, there be liberty to apply on short notice.
…”.
Submissions
At the interim hearing on 14 June 2017, Counsel for the mother submitted the children’s best interests were not determined in a vacuum, that the mother’s legitimate interests as primary carer could not be ignored, nor could the Court be satisfied a return for the children to the (omitted) area was either going to put them in a more stable or better position, or be in their best interests. Counsel for the mother submitted that if his client were to return to the (omitted) area, she would have no job, no family support, she would be returning to a hostile environment (given the antipathy of the maternal grandmother to her) and there would be no certainty or stability as to living arrangements there, regardless of who they live with. It was also submitted that inevitably, this would see a further move or moves for the children, depending upon the above and the outcome of any trial. In the circumstances, it was submitted the stability the children have in the (omitted) area was more likely to promote their best interests until further order.
Counsel for the mother submitted his client should not be required to return the children’s residence to the (omitted) area. It was submitted neither party “desires” to be there long term, and the father’s family are some 45 minutes away. In the circumstances where it was submitted the evidence supported the Court being persuaded the mother had been the children’s primary carer, it would be a “major upheaval” for the children if they were not with the mother.
It was submitted any order for the children to be returned to the (omitted) area would, until further order, be less likely to promote their best interests, than were they to be allowed to remain in the (omitted) area, as to do so would only place the children back in a position of instability.
Counsel for the father submitted the agreed facts demonstrated that until late March 2017, the children had lived their entire lives in the (omitted) area, had all their family and friends there, and then the mother had unilaterally relocated their residence to the (omitted) area. Counsel for the father acknowledged the issues in this case were about the arrangements more likely to promote the children’s best interests until further order, rather than to punitively punish the mother for her actions.
Counsel for the father submitted it was the mother who had decided to relocate “a very, very long way away” and the Court should “restore” the stability to the children’s lives that they had before the mother’s actions, which were taken with no insight into the impact this would have on the children. It was submitted by Counsel for the father the mother should not receive “curial” approval for her behaviour.
Counsel for the father submitted his client desperately misses the children and the Court should prefer the option that maximises the children’s time with him. Whilst it is his case the former matrimonial home in (omitted) needed to be sold, he and the children, if the mother refused to live the (omitted) area, could stay with friends until he got rental accommodation. Counsel for the father submitted the mother’s proposal lacked “real insight” and there should be orders for the children to be returned to the (omitted) area so they can stabilise and thrive and be supported by family members.
In submissions before the Court on 14 June 2017, in support of the primary position he sought, the Independent Children’s Lawyer summarised what were contended to be the agreed facts. The Independent Children’s Lawyer submitted these were:
· it was obvious the parties viewed their relationship differently;
· save for arguments, there was no family violence during the relationship;
· the mother moved to (omitted) without the father’s consent;
· the mother is now in a new relationship;
· the father, on his proposal, was untried;
· the father’s proposal that the children live with him in share housing was also untried; and
· it was easy to be critical of the mother, her motives and level of culpability for the move.
However, it was the submission of the Independent Children’s Lawyer that no matter what could be made of the mother’s actions, the best interests of the children were not served by “pulling” them out of (omitted). The Independent Children’s Lawyer observed the mother’s relationship with the maternal family was “toxic”. Given the above, it was submitted it was “fraught with danger” to order that the children be returned to an area where there were unresolved proceedings in the Magistrates’ Court of Victoria, which he was concerned they would be drawn into.
The Independent Children’s Lawyer submitted the children appear settled in their new school and they appear to be happy, albeit are missing their father. The father’s proposal is “untested”. It was open to conclude the mother had been the primary carer and the children “will not lose” the loving and meaningful relationship they have with both parents if they remain in the (omitted) area until further order.
The Independent Children’s Lawyer pressed the Court to make orders in terms of his primary position[1] as neither party had a realistic view of what would happen when the former matrimonial home sells. The Independent Children’s Lawyer submitted interim arrangements he sought for the children pending a final hearing in or around May 2018 were “the least worst option”.
[1] Exhibit ICL 1.
Finally, in reply, Counsel for the mother submitted the Court should not entertain an order for the children to be returned to the (omitted) area. Counsel for the mother noted the father had not indicated he had the intention of staying there and given this matter was about an arrangement more likely to promote the children’s best interests, such an order would not return the children to stability.
Approach to interim dispute
In relation to the approach to this interim parenting dispute I adopt with respect the summary of the “Law in relation to Interim Proceedings and Relocation” from the decision of Rollins v Van Hummell [2016] FamCA 916 at paragraphs [2] to [13] inclusive, which was as follows:
“2. In Goode and Goode the Full Court noted that in interim proceedings, as in final proceedings, there is an obligation to follow both the structure of, and the process of reasoning set out in the Family Law Act 1975 (Cth) (‘the Act’). This is a structure that supports a legislative intent in favour of substantial involvement by both parents, subject to the adequate protection of children, subject to the best interests of children, and subject to reasonable practicability.
3. The Full Court at [82] described the process of reasoning as a legislative pathway. -
4. In cases where an order is made for equal shared parental responsibility, consideration must be given to equal time, such a consideration involving an assessment of best interests, but such an order only being allowable if it is reasonably practicable.
5. The High Court in MRR & GR found that a Court is obliged to make findings in relation to reasonable practicability before it is open to the Court to make an order for equal time. In assessing reasonable practicability, the Court is concerned with the reality of the situation faced by the parties.
6. If no order as to equal time is to be made, the Court is then obliged to consider substantial and significant time, again in the framework of a consideration of best interests and reasonable practicability.
7. If an order for substantial and significant time is not to be made, then the orders available to the Court are otherwise at large, subject to the best interests of the child or children.
8. However, while the pathway remains the same for an interim as a final hearing, the Full Court in Goode recognised that, in interim proceedings, the Court has a limited ability to deal with factual matters. There the Court cautioned that where findings of fact cannot be made, a Court at first instance should not be drawn into the merits of the substantive case but should rather look to matters such as the agreed facts, matters that are not in dispute, prior arrangements, current circumstances, and the proposals of the parties.
9. Justice Boland, sitting as the Full Court in Morgan & Miles, specifically applied Goode to an interim contest involving relocation. Having found that the same pathway is applicable for relocation cases on an interim basis as for other cases, Boland J went on to note that it is highly desirable (save in cases of emergency) that arrangements not be determined in the abridged context of an interim hearing. Thus, particularly where the issue is relocation, the question of stability “may be extremely relevant on an interim basis”. The importance of such stability must be assessed on a case specific basis, and does not involve a return to the law as set out in Cowling.
10. As to the process of consideration for relocation cases more generally, the Full Court in Taylor & Barker approved a particular sequence of reasoning. There the approved process, at least in a case involving equal shared parental responsibility, results in the question of equal time or substantial and significant time to “initially be considered without regard to any relocation proposal”. After having considered such, “any relocation proposal will then be balanced against the option of “equal time” or of “substantial and significant time” if either of those options has been found to be in the child’s best interests”. The consideration must be undertaken in a manner that will not “devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent”. The Full Court acknowledged that “this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter”.
11. In approving this sequence of reasoning, the Full Court in Taylor & Barker did not assert that this is the only sequence in which such matters may be considered, but approved this sequence as being consistent with the structure and objectives of the Act.
12. Necessarily, any consideration mandates a consideration of the parties’ proposals, noting that it is open to the Court to consider other options as long as the parties are given procedural fairness (U & U). Similarly, Boland J in Morgan & Miles noted that the Court must carefully weigh and balance the s 60CC factors in respect of the competing proposals put by the parties.
13. In approaching a relocation case, I note the caution given by the Full Court in Edgar & Strofield against a Court at first instance being distracted by the issue of relocation. That is, the Full Court was critical of considering that case as a “relocation case” rather than a consideration of the real issue, there being the time that the child would spend with the father. Such caution is a useful reminder that the Act does not create a separate category of cases where relocation is an issue. Relocation is a subset of parenting cases generally.”
Finally, in submissions on 14 June 2017 the parties referred to the decision of Timms & Payton [2015] FCCA 3324 whilst noting the position of the parties (at least the mother) was different to that in this case. In that case Judge Altobelli referred to the “Applicable Law” at paragraphs [12] to [19] inclusive, as follows:
“12. In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’) the Court must regard the best interests of the child as the paramount consideration: s.60CA.
13. The objects and principles of Part VII are set out at s.60B:
o 60B Objects of Part and principles underlying it
o (1) The objects of this Part are to ensure that the best interests of children are met by:
o (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
o (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
o (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
o (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
o (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
o (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
o (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
o (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
o (d) parents should agree about the future parenting of their children; and
o (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
o (3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
o (a) to maintain a connection with that culture; and
o (b) to have the support, opportunity and encouragement necessary:
o (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
o (ii) to develop a positive appreciation of that culture.
14. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
o 61DA Presumption of equal shared parental responsibility when making parenting orders
o (1) When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
o (2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
o (a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
o (b) family violence.
o (3) When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
o (4) The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
15. If the presumption applies, the Court is required to consider certain things:
o 65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
o Equal time
o (1) 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:
o (a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
o (b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
o (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.
o Substantial and significant time
o (2) If:
o (a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
o (b) the Court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
o the Court must:
o (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
o (d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
o (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.
o (3) will be taken to spend substantial and significant time with a parent only if:
o (a) the time the child spends with the parent includes both:
o (i) days that fall on weekends and holidays; and
o (ii) days that do not fall on weekends or holidays; and
o (b) the time the child spends with the parent allows the parent to be involved in:
o (i) the child’s daily routine; and
o (ii) occasions and events that are of particular significance to the child; and
o (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
o (4) Subsection (3) does not limit the other matters to which a Court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
o Reasonable practicality
o (5) In 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, the Court must have regard to:
o (a) how far apart the parents live from each other; and
o (b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
o (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
o (d) the impact that an arrangement of that kind would have on the child; and
o (e) such other matters as the Court considers relevant.
16. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
o Determining child's best interests
o (1) Subject to subsection (5), in determining what is in the child's best interests, the Court must consider the matters set out in subsections (2) and (3).
o Primary considerations
o (2) The primary considerations are:
o (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
o (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
o Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
o (2A) In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (2)(b).
o Additional considerations
o (3) Additional considerations are:
o (a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views;
o (b) the nature of the relationship of the child with:
o (i) each of the child's parents; and
o (ii) other persons (including any grandparent or other relative of the child);
o (c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
o (i) to participate in making decisions about major long-term issues in relation to the child; and
o (ii) to spend time with the child; and
o (iii) to communicate with the child;
o (ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
o (d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
o (i) either of his or her parents; or
o (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
o (e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
o (f) the capacity of:
o (i) each of the child's parents; and
o (ii) any other person (including any grandparent or other relative of the child);
o to provide for the needs of the child, including emotional and intellectual needs;
o (g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant;
o (h) if the child is an Aboriginal child or a Torres Strait Islander child:
o (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
o (ii) the likely impact any proposed parenting order under this Part will have on that right;
o (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
o (j) any family violence involving the child or a member of the child's family;
o (k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
o (i) the nature of the order;
o (ii) the circumstances in which the order was made;
o (iii) any evidence admitted in proceedings for the order;
o (iv) any findings made by the Court in, or in proceedings for, the order;
o (v) any other relevant matter;
o (l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
o (m) any other fact or circumstance that the Court thinks is relevant.
17. In MRR v GR [2010] HCA 4, the High Court said
o 8. Sub-section (1) of s 65DAA is headed "”Equal Time” and provides:
o “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:
o (a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
o (b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
o (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)
o 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:
o “consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
o (d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
o (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."
o Sub-section (3) explains what is meant by the phrase “substantial and significant time”.
o 9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require 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".
18. A little later in the judgment the High Court said:
o 13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
19. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
o 68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
o ...
o 72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
...
o 82. In an interim case that would involve the following:
o (a) identifying the competing proposals of the parties;
o (b) identifying the issues in dispute in the interim hearing;
o (c) identifying any agreed or uncontested relevant facts;
o (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
o (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
o (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
o (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
o (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
o (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
o (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
o (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”
Consideration
The Independent Children’s Lawyer quite properly identified the dilemma that faced the Court. That is, that in the circumstances the question was not what was the optional outcome for the children but what was the least worst option. Putting the matter in the context of the parties’ proposals, what order was more likely to promote the children’s best interests until further order.
The key matters raised by the parties are as follows.
The mother emphasises that she has been the children’s primary carer for most of their lives. The mother says in moving to (omitted) she has seen an improvement in their wellbeing. A return to (omitted) would not see a return to stability and would be contrary to their best interests.
The father emphasises that if the children were permitted to remain in (omitted), the relationship between the children and the father would no longer be meaningful and they should be returned to (omitted), where it was submitted they had thrived and where they could be close to their family, friends and the school they had attended.
This is not a case where if the children were to be ordered to return to the (omitted) area, until further order, that the mother would refuse to move back. Moreover, all of the parties’ proposals contemplated that the children would, on an interim basis, live with the mother and spend time with the father.
SECTION 60CC FACTORS
Primary considerations
The benefit to the children of having a meaningful relationship with both of the children's parents
While it is well accepted by the case law that ‘meaningful’ does not mean ‘optimal’, the provision is not simply focused upon the question of whether or not there should be a meaningful relationship, but rather the benefit that the children may derive from it. The work of the provision is not ended by answering the question “will there be a meaningful relationship under this particular arrangement?” Rather, the provision requires an assessment of the relationship and a consideration, in the context of how that relationship is to be exercised, of the benefits that will accrue.
The resolution of this particular interim dispute does not turn on whether one party is more likely to continue to facilitate or provide the children with an opportunity to enjoy a meaningful relationship with the other. If not only for the position of each of the parties in the interim orders they sought at the hearing on 14 June 2017, the history since March 2017 shows the parties have tried to arrange time between the children and the other party. Yes, they have tried and failed, but they have tried. I am satisfied they would continue to do so.
I do not accept that a move to (omitted) would result in the relationship between the father and the children no longer being meaningful. The father would still spend regular day and overnight time with the children. I do not accept that the benefits that flow from that relationship would be impacted by the children moving to (omitted) to a degree that is unable to be identified in these interim proceedings. This is not a case where the opportunity for the children to have a meaningful relationship with the father will be affected by any order the Court makes.
The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The parties outlined the criticisms made of the father by the mother and of the mother by the father in their affidavit material.
There is no particular need to protect the children in respect of their father. No consideration is raised that would lead me to think that it is necessary to protect the children in relation to their mother.
Additional considerations
Views expressed by the children
Each party has to a limited extent expressed to the Court views expressed to them by the children.
The strength of the children’s views was referred to in the evidence of the family consultant.
The nature of the relationship of the children with each of the children’s parents
As indicated previously, each parent accepts that the children have a good relationship with the other parent.
The extent to which each of the children’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long term issues in relation to the children, to spend time with the children and to communicate with the children.
The mother has made some criticism of the father relevant to this factor.
I am unable to find in these interim proceedings that the father conducted himself in a manner which enables me to say that he has not taken opportunities to spend time with the children.
The mother further notes that she is the one who has initiated time between the father and the children, since she retained the children in (omitted). Again, I am unable to determine whether or not this is a controversial matter.
At this stage of the proceedings I am unable to make findings in respect of this.
The extent to which each of the children’s parents has fulfilled or failed to fulfil the parents’ obligations to maintain the children.
The mother appears to assert in her material that the father has inadequately supported the children. The father asserts that he has paid what was required by the Child Support Agency. I am unable to make findings in respect of this.
The likely effect of any changes in the children’s circumstances
The change of circumstances which appear likely to bear upon the children are as follows:
(a)if they remain in (omitted) they will have the benefit of the primary care of their mother in the context of her having improved conditions;
(b)they have commenced at a new school.
(c)the time that they spend with their father will be greatly reduced from what it was immediately before they were relocated to (omitted);
(d)should the children return to (omitted), they will have open to them a greater amount of time with their father, possibly return to their previous school, but live either with friends or in rental accommodation;
(e)should the mother return to (omitted), it is not unreasonable to expect that claims the mother makes about the lack of stability will exist. This will have some corresponding impact upon the children, although at this stage it is not possible to predict the degree. In this context, it is notable that prior to the move to (omitted), while struggling with life in (omitted), the mother was a capable primary carer for the children.
The father’s proposal is an unknown quantity, and in the circumstances it is more important the children have the stability of the mother as their primary carer and the certainty of what arrangement they have in place in (omitted).
The practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
This has effectively been dealt with in consideration of the other matters. The three and a half hour travel time between (omitted) and (omitted) would mean that limited weekend and holiday time would be the only practicable option. Options beyond that can only be supported by the return of the children and the mother to (omitted).
The mother has indicated she would be willing to return to (omitted) if orders were to be made that the children live there.
The capacity of the parents to provide for the needs of the children, including emotionally and intellectual needs.
The previous care arrangements for the children speaks the most strongly to the capacity of each of the parents. The mother has been the primary carer and is described as having a good relationship with the children.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the Court thinks are relevant.
Whilst I note the evidence of the family consultant, there is little other evidence that is available to enable the Court to make findings about the children’s personal characteristics absent the preparation of a Family Report.
If the children are Aboriginal children or Torres Strait Islander children.
Not applicable.
The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents.
This matter is effectively dealt with under the previous headings.
Any family violence involving the children or a member of the children’s family.
As noted in the family consultant’s evidence, there is no evidence of family violence during cohabitation other than arguments. There have been intervention order proceedings since separation.
Parental responsibility
In their proposals before the Court none of the parties sought an order on an interim basis for equal shared parental responsibility.
Given this, the disputes between the parties, and the inability of the Court to make findings on an interim basis about matters (including in relation to the application of such matters necessary for it to operate in the children’s best interests), I am satisfied the provisions of s.61DA(3) should be invoked and this provision should not be applied.
In any event, I am not satisfied such an order could work on an interim basis at least such that the orders would not adversely affect the children.
Equal time, substantial and significant time or time with each parent
The history of the children’s care was referred to earlier.
Each party’s assessment is that the other has a good relationship with the children and neither party sought an order for equal time.
If the mother is to remain in (omitted) with the children, such an arrangement is not either in the children’s best interest or reasonably practicable, and in such circumstances such an order would not be open. Further, an order for substantial and significant time would also not be reasonably practicable, in the sense that, if the children lived in (omitted), the other parent would not be able to practically have involvement other than on weekends and holidays, and would not necessarily be able to be involved in the daily school routine.
The mother has indicated that, should an order be made that would see the children return to living in (omitted), she would then return to the (omitted) area. However, whilst such an order could work then as indicated in the submissions made by the Independent Children’s Lawyer this is untested and untried and carries with it potential detriments for the children. These are matters which will impact upon the children negatively.
I have considered the material the parties relied on, the competing proposals in the context of the relevant s.60cc factors and the submissions that have been made in light of the evidence.
The weighing of the degree to which the children living in (omitted) might impact upon them requires a final hearing. Pending such a final assessment, I place significant weight on maintaining stability for the children. In light of the considerations of the relevant s.60CC factors, the best way that this can be facilitated is by maintaining stability of their current arrangements.
Moreover, the father’s proposal is not a strong one. To simply wind things back to what they were before the mother left (omitted) will not deal with the changes that have occurred in the parties lives and carries with it too many unknowns.
Accordingly, I propose to make interim orders in terms of the primary minute of orders proposed by the Independent Children’s Lawyer which I am satisfied is the least worst option.
Finally, as was made clear in submissions before the Court, it appears the sale of the former matrimonial home is a foregone conclusion. The Court was told the parties had agreed it should be sold. Counsel for the mother estimated there was only $220,000 in equity. Whilst the father had sought an order for the interim distribution of part of the proceeds of the sale, there were no submissions made on the issue of under which section of the Act such an order could be made, the principles referred to in, inter alia, Strahan & Strahan (Interim property orders) [2009] FamCAFC 166, or whether if such an order was made it could be adjusted at any final hearing. There has not been a conciliation conference or confirmation that the parties have complied with their obligations to make full and frank disclosure. Absent agreement from the mother at this stage which was not forthcoming, I am not satisfied it is appropriate to make that order. However, in the event the father wishes to prosecute any application for interim property orders, a date for the hearing of same can be provided within 60 days.
Conclusion
For these reasons, I will make orders as set out at the beginning of these reasons for decision as I am satisfied in light of all of the evidence and having considered the submissions made by the parties, that they are until further order in the children’s best interests.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Date: 27 June 2017
- AGLC
- Plater and Plater [2017] FCCA 1447
- Case
- [2017] FCCA 1447
- Decision Date
CaseChat Overview and Summary
The court was required to determine the primary issue of whether the mother should be permitted to relocate with the children to a specified location, and to make orders regarding the children's living arrangements and the father's time with them.
The court made orders that the children live with the mother and that she be permitted to relocate with them. The children were to remain enrolled at their current school. The father was granted specific periods of time with the children, including during school holidays and on weekends, and was to have regular communication with them via Skype and telephone. The orders also stipulated notification requirements for medical emergencies and the provision of contact details, and ensured the father's continued involvement in the children's schooling. The father was also given the option to exercise his time with the children in the specified relocation area, with notice to the mother.
Orders
Orders of the court
UNTIL FURTHER ORDER
1.
The children [X] born (omitted) 2008 and [Y] born (omitted) 2011 live with the mother.
2.
The mother be permitted to relocate with the children to (omitted).
3.
The children continue to be enrolled at their current school, (omitted) Primary School.
4.
The children spend time with and communicate with the father:
(i) From Friday 23/6/17 at 6 p.m. until Sunday 25/6/17 at 3 p.m.
(ii) During the July school term holidays from Sunday 2/7/17 at 12 p.m. until Sunday 16/7/17 at 3 p.m.
(iii) From Friday 4/8/17 at 6 p.m. until Sunday 6/8/17 at 3 p.m.
(iv) From Friday 25/8/17 at 6 p.m. until Sunday 27/8/17 at 3 p.m.
(v) From Friday 15/9/17 at 6 p.m. until Sunday 17/9/17 at 3 p.m.
(vi) During the September/October school term holidays from Sunday 24/9/17 at 12 p.m. until Sunday 8/10/17 at 3 p.m.
(vii) From Friday 27/10/17 at 6 p.m. until Sunday 29/10/17 at 3 p.m.
(viii) From Friday 17/11/17 at 6 p.m. until Sunday 19/11/17 at 3 p.m.
(ix) For one-half the Christmas school holiday period by agreement between the parties, in default of agreement from 12 p.m. 26/12/17 until 3 p.m. 16/1/18.
(x) From Friday 9/2/18 at 6 p.m. until Sunday 11/2/18 at 3 p.m.
(xi) From Friday 9/3/18 at 6 p.m. until Monday (Labor Day) 12/3/18 at 3 p.m.
(xii) During the Easter/April school holiday period from Sunday 1/4/18 at 12 p.m. until Sunday 9/4/18 at 3 p.m.
(xiii) At such other time on a face-to-face basis as agreed between the parties.
(xiv) By Skype and/or telephone during times the children are not otherwise in the care of the father on Monday, Wednesday and Friday at 6.30 p.m.
(xv) Changeover at the commencement and conclusion of the children’s time with the father be at McDonalds (omitted).
5.
The father shall provide the mother with no less than 72 hours notice if he is unable to exercise time with the children.
6.
In the event of a medical emergency concerning the children, the father and mother shall immediately notify the other parent of same.
7.
Both the father and the mother provide the other party with a current telephone contact number and such other information as to enable conversations and communications by telephone and Skype.
8.
The father be permitted to attend the children’s school and any function concerning the children’s school normally attended by parents of a child at the school and the parties shall do all things necessary to ensure the father receives copies of all reports, letters, invitations and the like usually forwarded by the school to the parents of a child at that school.
9.
At the election of the father, the time-with arrangements set out in paragraph 4 herein be exercised in the (omitted) area and upon giving the mother 72 hours notice of his intention to do so, the father shall pick up the children after school on Friday and return them to the mother at McDonalds (omitted) at 3 p.m.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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