Details
- AGLC
- Portelli & Wymer [2021] FedCFamC1F 339
- Case
- [2021] FedCFamC1F 339
- Decision Date
-
CaseChat Overview and Summary
In the Family Court of Australia, the case of Portelli v Wymer concerns a dispute between the parents of a child regarding the child's relocation and living arrangements. The mother sought to relocate with the child from Sydney to Melbourne, while the father opposed this move. The legal issues before the court included whether the relocation was in the best interests of the child, and if so, what the appropriate parenting arrangements should be. The court had to consider the child's welfare, the parents' ability to provide for the child's needs, and the impact of the relocation on the child's relationship with both parents. The court examined the evidence presented by both parties, including the child's relationship with each parent, the parents' ability to care for the child, and the potential impact of the relocation on the child's life. The court found that while the mother had a right to freedom of movement, this had to be weighed against the paramount consideration of the child's best interests. The court concluded that the relocation to Melbourne would adversely affect the child's relationship with the father and therefore was not in the child's best interests. Consequently, the court ruled that the mother could not relocate with the child to Melbourne. The court also determined that an equal shared care arrangement in Sydney was not feasible due to the father's work commitments and emotional attunement to the child. Instead, the court ordered that the child would live with the mother in Sydney but would spend four nights every fortnight with the father during school term, progressing to five nights each fortnight in 2023. The court also made provisions for telephone and FaceTime contact between the child and the non-resident parent, and for the child to spend time with both parents on their respective birthdays. These orders aimed to ensure the child maintained a meaningful relationship with both parents while residing primarily with the mother in Sydney.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
For the reasons which follow I have formed the view that the best interests of the child, and in particular the likely impingement of his meaningful relationship with the father were he to relocate to Melbourne, require that the mother not be permitted to relocate with the child. Although I accept her right to freedom of movement, and have weighed carefully the practicability of her relocation proposal, in the particular circumstances of this case I am satisfied that the welfare of the child would be adversely affected were he to relocate to Melbourne with her. The mother’s undoubted right to freedom of movement must therefore defer to the paramount consideration of the children’s best interests. I do not, however, consider that it would be appropriate for the parties to progress towards an equally shared care arrangement in Sydney. Simply put I do not consider that the father has the ability to make himself sufficiently available to the child or the capacity for intuitive empathy and emotional attunement to make this feasible. There will, accordingly, be orders broadly in the terms proposed by the mother in the event that she is not permitted to relocate, together with some additional orders. BACKGROUND The mother was born in 1981 in Melbourne and is 40 years of age. The father was born in 1978 in Sydney and is 43 years of age. The parties met in the United States in or about 2004. As has been mentioned they commenced their relationship in the period 2005-2007, married in 2014, and the child was born the following year. Both parties admit that they experienced marital difficulties for several years before they ultimately separated. The mother asserts the parties separated on two occasions prior to their final separation in March 2019. They disagree about when in March 2019 they separated on a final basis, but nothing turns on this. It seems clear however that the mother travelled with the child from Sydney to Melbourne on 25 March 2019 and telephoned the father on 27 March 2019 to inform him that she would not be returning with the child and that she had engaged lawyers. The parties were divorced on 16 August 2021. The mother says she became aware of the father being involved in a relationship with someone else in February 2017 and that this led to a separation in March 2017, with her travelling to Melbourne with the child. The mother says the parties separated again in or around February 2018, once again with the mother travelling to Melbourne with the child. The father says that marital difficulties occurred for a number of reasons, including his engagement with this other woman in an “on and off” relationship. Whatever be the position, the subject of the father’s affair was the subject of significant attention at trial. The mother continues to live with the child in the former matrimonial home in Suburb K, Sydney. The father resides in a property that he owns in Suburb N, Sydney. The mother is currently employed as a non-executive director of O Pty Ltd (“O Company”) and P Pty Ltd, trading as P Company (“P Company”). She is also an alternate director (to her father) of Q Limited (“Q Company”). O Company is an international company with headquarters in Suburb R, Victoria. P Company operates from S Town, in Victoria, and Q Company’s head office is in Suburb T, Victoria. The mother assumed these roles due to the ill health of her father, Mr A Portelli (“the maternal grandfather”). She says she has had to accept more responsibility in these roles and she seeks to assume further responsibilities should she be permitted to relocate to Melbourne with the child.
Evidence
Evidence Before The Court
I approach the determination of the issues presented by this case by reference to the statutory regime and the relevant principles here set out. THE EVIDENCE It should be observed that pursuant to s 140(1) of the Evidence Act 1995 (Cth) the standard of proof that is to be applied is the balance of probabilities. Section 140(2) provides that in applying that standard the Court must have regard to the nature of the cause of action or defence, the nature of the subject-matter of the proceeding, and the gravity of the matters alleged. As I have indicated, I have had regard to the documents on which the parties have relied and the exhibits tendered. I have also had the benefit of observing the appearance and demeanour of the parties and their witnesses when they gave evidence. The mother gave evidence on the first day of the trial until early afternoon on the second day. Her witnesses then gave evidence as follows:(a)the CEO of O Company, Mr EE; (b)the mother’s friend, Ms AA;(c)the mother’s step-mother, Ms B Portelli;(d)the mother’s half-brother, Mr C Portelli;(e)the mother’s general practitioner, Dr GG (via Microsoft Teams);(f)the mother’s psychologist, Ms HH (via Microsoft Teams);(g)the Chair of O Company, Mr CC;(h)the CEO of P Company, Mr DD;(i)the mother’s friend, Ms BB; and (j)the maternal grandmother, Ms MM. The father gave evidence from the fourth to the sixth day of the trial. His witnesses gave evidence in the balance of day six and were as follows:(a)the father’s treating social worker, Ms PP;(b)the paternal grandmother, Ms D Wymer;(c)the paternal grandfather, Mr E Wymer; and(d)the paternal uncle, Mr F Wymer. The family report writer, Dr NN, gave evidence on day seven of the trial. There is limited utility in setting out, at length, the evidence given by all the witnesses called by the parties over the seven days of the trial. Significant parts of the evidence, particularly that surrounding the father’s affair, aspects of which consumed an inordinate amount of time in cross examination, was more in the nature of largely irrelevant background than expositive of critically relevant disputes about factual matters which must be resolved one way or the other in order to determine what parenting orders are in the best interests of the child. It is, however, desirable to refer to certain aspects of the evidence, and the parties’ competing submissions about them, insofar as this is relevant to the issues which must be determined. Those issues for determination, and hence the evidence in relation to those issues, are as follows. First, and fundamentally having regard to the parties’ agreement that they should share parental responsibility, is the question of whether it is in the child’s best interests and reasonably practicable for him to spend equal time, or alternatively substantial and significant time, with each of the parents. Evidence about how this would work, whether in Sydney or in Melbourne, and in particular whether it would be feasible for the child to have equal time with the parties if the child remains in Sydney bearing in mind the father’s work commitments and his emotional attunement to the child, is relevant in this regard.
Decision
Reasons for decision
Turning finally to s 60CC(3)(m), any other fact or circumstance the Court thinks relevant, the mother submits that her right to freedom of movement and to live her life as she pleases, including with respect to her career and her emotional equilibrium, should be considered under this sub-section. I have addressed these submissions above. Recognising the existence of the mothers right in this respect, and giving them anxious consideration, for the reasons I have expressed I have concluded that these rights must give way to the child’s interests in maintaining his established life in Sydney and spending substantial and significant time with his father in Sydney. CONCLUSION AND ORDERS It follows from the above that the orders to be made will be substantially those proposed by the mother in the event that relocation to Melbourne is not permitted, together with some orders proposed by the father. One of the additional orders proposed by the father is for the parties to be restrained from changing the child’s place of residence. I do not consider such an order to be necessary. The mother will need to remain living proximately to the father for the parenting orders to be properly implemented: see Gordon & Westmead (No. 2) [2012] FamCA 546 at [134]. As has been mentioned, parents have as much freedom as is compatible with their obligations pertaining to the child. The parties agree that they should have equal shared parental responsibility for the child. He should live with the mother, but progress next year to spending four nights in every fortnight with his father in Sydney during school term, and then progress in 2023 to five nights in every fortnight with his father during school term. This gradual movement to five nights each fortnight is appropriate having regard to the age of the child. I consider that it would be too early for the 9:5 arrangements to begin in 2022 given that apparently this year the child has only been spending three nights with the father each fortnight during term. The parties should share school holidays as they have been doing, and there should be orders for special days of the usual kind. In relation to special days, the mother’s orders do not provide for the child to spend time with her and the father on their respective birthdays and I am satisfied that, as the father proposes, allowances should be made for such time. The father proposes that the parties have different amounts of time with the child on their birthdays, but I can see no basis for any difference in this respect. There will be orders providing that each is to have overnight time with the child on their respective birthdays should they wish. There should also be an order, as the mother seeks, to ensure that the child has reasonable telephone and FaceTime contact with the other parent not less than four days each week at 5.30pm, or at such other time as the parties may agree. There have been difficulties around such communications in the past, and it is desirable to make an explicit order. I am not persuaded that, as the father proposes, time needs to be set aside for this every day, or that between 6.00pm and 7.00pm is the appropriate time. The mother has expressed concerns that a call at this time tends to interfere with the child’s night time routine, and I accept that this may well be the case for a six year old. The father will need to be flexible and make an earlier call, which his evidence seems to indicate he will be able to do.
Ratio Decidendi
Legal Principle Established
Although this consideration would be sufficient foundation for the parenting orders to be made in this case, for completeness, and having regard to the parties’ extensive submissions on these further matters, I turn to consider the additional considerations in s 60CC(3) of the Act.Additional Considerations Neither party submits that s60CC(3)(a), (g), (h), (j), (k) or (l) are of relevance. This is correct, and it is unnecessary to consider these matters. As to the additional considerations which may be relevant, none of them cause me to form a different view in relation to the mother’s relocation proposal that I have formed having regard to the primary consideration in s 60CC(2)(a) of the Act. Insofar as s 60CC(3)(b) is concerned, although there was considerable evidence given about the nature of the child’s relationship with both parents, and with the maternal and paternal families, in the end I accept that the child has a healthy and functioning relationship with both sides of his family. This will no doubt continue whether he lives in Sydney or relocates to Melbourne. No doubt the child’s paternal family will have more opportunities on a day to day basis to develop their relationship with the child if he remains in Sydney than if he were to relocate to Melbourne, and the maternal family correspondingly fewer opportunities. But this is true in many family situations where parents live in a different State or country to their own parents. In any event, it is apparent on the evidence that the mother and the child travel frequently to visit the maternal family in Melbourne, and holiday with them elsewhere in Australia and abroad. There is no impediment to them continuing to do so. Having regard to all these matters I am not unduly concerned that the child’s relationships with his parents and other relevant persons will be impeded if he stays in Sydney. However as I have said, my concern about the maintenance of the child’s relationship with his father is critical. It causes me to conclude that relocation to Melbourne would not be in the child’s best interests. Turning then to s 60CC(3)(c), while it may be that the father has not availed himself of the opportunity to be centrally involved in the child’s life in the way that the mother has, it is also clear that the mother has not always provided a level of encouragement that would have facilitated this. Her various moves to Melbourne with the child at times of stress in the relationship are obvious examples of this. Insofar as the father has not availed himself of opportunities to participate fully in the child’s life for reasons unrelated to the actions of the mother, in the overall scheme of things I do not consider that his conduct in this regard would provide a basis to disturb the conclusion I have reached having regard to s 60CC(2)(a) of the Act. Insofar as s 60CC(3)(c)(a) is concerned, it is not apparent that either party has failed to fulfil their obligations to maintain the child. In any event, only the father raises this consideration in his final submissions. He rejects any assertion by the mother that he has not provided her with adequate financial support in relation to the child, outlining that he has to date provided periodic child support as assessed in addition to paying for the child’s school fees, private health insurance and half of extra-curricular costs. Although there had been some controversy about this originally, the mother’s Child Support Departure Application was resolved by consent after the trial. It would seem therefore that whatever historical allegations made by the mother in relation to what she may have said was an inadequate level of financial support provided by the father are no longer in issue. Consideration of this sub-section does not affect the conclusion I have reached about the desirability of the child spending substantial and significant time in Sydney with his father and the undesirability of a relocation to Melbourne.