Preston v Preston

[2011] FamCA 618

FAMILY COURT OF AUSTRALIA

PRESTON & PRESTON [2011] FamCA 618

FAMILY  LAW – CHILDREN – With whom a child lives – Relocation – Whether the mother can take the children to live in New Zealand – Where the father does not agree – Where the father seeks that the children spend equal time with the mother and father – The best interests of the children is the paramount consideration – The  determination of parenting orders must be done with obvious regard for the Objects and underlying Principles set out at the commencement of part VII of the Family law Act 1975 (Cth) – Order that the mother and father have equal shared parental responsibility – Order that the children live with the father in the event the mother resides permanently in New Zealand or otherwise out of Australia.

Family Law Act 1975 (Cth) Part VII, s 60CA, s 65AA, s 60CC, s 60B, s 68F(2), s 65DAA, s 61DA, s 65DAC, s 4

Cowley & Mendoza [2010] FamCA 597
MRR v GR (2010) 263 ALR 368
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
Goode v Goode (2006) FLC 93-286
Marsden and Winch (No. 3) [2007] FamCA 1364
Taylor v Barker (2007) FLC 93-345
U v U (2002) 211 CLR 238

APPLICANT: Ms Preston

RESPONDENT: Mr Preston

FILE NUMBER: BRC 1308 of 2009

DATE DELIVERED: 4 August 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 6 and 7 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Selfridge

SOLICITOR FOR THE APPLICANT: Anthony Black Family Law Services

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

Parental Responsibility

(1)The mother and the father have equal shared parental responsibility for the children J born … July 1999 and B born … September 2004 (“the children”) in respect of all “major long-term issues” as defined in the Family Law Act 1975 (as amended).

(2)The parents shall each have, during all such time that the children are in their respective care, parental responsibility in respect of issues that are not “major long-term issues”.

Co-parenting Arrangements

(3)The children shall live with, spend time with and/or communicate with, each of their parents in such manner and for such periods of time as might be agreed between the parents in writing and, failing further or other agreement, in accordance with the succeeding provisions of these orders.

(4)In the event that the mother shall reside permanently in New Zealand or otherwise out of Australia:

(a)       The children shall live with the father;

(b)The mother and father shall do all such things, sign all such documents and pay all such amounts as might reasonably be necessary so as to permit the children to communicate by telephone, ordinary mail, email and Skype (or other such similar forms of communication) with each of the parents at all such reasonable times as the children request and in any event not less than once every two days;

(c)The children shall spend time with the mother:

(i)In either New Zealand or Australia at the mother’s election for the whole of the June/July and September/October Australian school holiday periods, for one half of the end of term one school holiday period and for one half of the December/January school holiday period each year with the mother being responsible for the cost of the children’s flights and/or her own flights and also the cost of the flights of any accompanying adult as might be desired or required by airline policy;

(ii)In Australia upon the giving of not less than 21 days notice in writing in accordance with the succeeding provisions of these orders as if, during such visit by the mother, she was residing in Australia.

(5)In the event that the mother resides in Australia:

(a)The children shall live with the father during school term from after school Friday until the start of school the following Wednesday, each alternate week and they shall live with their mother during school term at all other times;

(b)The children shall live with their father during half of all school holidays and they shall live with their mother during the other half of all school holidays;

(c)The half of the school holidays that the children shall live with the father shall be the first half of all remaining 2011 school holiday periods and for the second half of all 2012 school holiday periods, alternating as such from year to year thereafter;

(d)The periods that the children shall live with the father during school term shall commence for the remainder of 2011 on the first Friday after the commencement of school each term and in 2012 on the second Friday after the commencement of school each term, alternating as such from year to year thereafter;

(e)The mother and the father shall do all such things, sign all such documents and pay all such amounts as might reasonably be necessary so as to permit the children to communicate with the parent with whom they are not living by telephone, ordinary mail, email and Skype (or other such similar forms of communication) at all such reasonable times as the children might request and:

(i)With the father, not less than three times during each of the periods that they live with the mother during school term and not less than two times each week during each of the periods that they live with the mother during school holidays;

(ii)With the mother, not less than two times during each of the periods that they live with the father during school terms and not less than two times each week during each of the periods that they live with the father during school holidays.

(6)Transitions of the children between the households of the mother and the father shall take place as agreed in writing between the parties and, failing further or other agreement:

(a)During school term by way of the father collecting the children from school or after school hours care at the commencement of the period during which they are to live with him and  returning them to school or before school hours care at the conclusion of that period during which they are to live with him and by the mother collecting the children from school or after school hours care at the commencement of the period during which they are to live with her and delivering the children to school or before school hours care at the conclusion of the period during which they are to live with her;

(b)During school holidays the children shall be collected from school or after school hours care at the end of school term by the parent with whom they are living during the first half of the holidays and then delivered to the home of the other parent at the end of the first half of the holidays and they shall be delivered to school or before school hours care on the first day of term at the end of the school holidays by the parent with whom they are living during the second half of those holidays.

(7)Notwithstanding the previous orders, the children shall spend time with the parent with whom they are not living on special occasions as follows:

(a)       On the birthday of each child:

(i)If a school day, from after school until 6.00 pm;

(ii)If a non-school day, from 1.00 pm until 6.00 pm;

(iii)With that parent to be responsible to collect and return the children from and to the other parent;

(b)With the father on Father’s Day from 9.00 am until 5.00 pm if they are not otherwise with him pursuant to these orders with the father to be responsible for collecting and returning the children from and to the mother;

(c)With the mother on Mother’s Day from 9.00 am until 5.00 pm if they are not otherwise with her pursuant to these orders with the mother to be responsible for collecting and returning the children from and to the father.

(8)The mother and father do all such things and sign all such documents as are necessary so as to authorise the schools attended by the children to give each parent information about the children’s educational progress and any other related activities and supply them with copies of reports, photographs, certificate and awards obtained by the children (at each parent’s own costs) and failing provision of such authority this order shall of itself operate as such authority in each case.

(9)The mother and the father shall:

(a)Keep the other parent informed at all times of their residential address, email address and landline telephone contact number;

(b)Keep the other parent informed of the names and addresses of any and all treating, medical and other allied health practitioners who may be treating the children and authorise those practitioners to provide the other parent with all such information in their possession relevant to the child or children and failing the provision of any such authority by either parent, this order of itself shall operate as such an authority;

(c)Inform the other parent as soon as practicable of any medical condition, significant health issue or significant illness suffered by either of the children.

(10)The mother and the father shall be at liberty to attend any and all school based and extracurricular activities undertaken by the children or either of them that parents are welcome to attend and each party shall do all things and sign all documents reasonably necessary to ensure that the attendance of each parent is authorised.

(11)The mother is at liberty to take the children to New Zealand during any of the time that they live with her pursuant to these orders.

Counselling and similar provisions

(12)The mother and the father shall each separately attend and complete a post separation parenting orders program conducted by a s 65LB provider of such programs.

(13)Each the mother and the father shall be personally responsible to access details of such programs through a family relationship centre in their residential proximity and for making contact with a provider of such programs and enrolling in and completing such a program at their own expense, if any.

(14)Each the mother and the father shall complete such a post parenting orders program within six (6) months of the date of these orders and each shall  provide evidence in writing at the completion of such a program to the other party.

(15)The mother shall attend upon a therapist of her choice and obtain such psychological therapy as the mother and her therapist of choice consider appropriate consequent upon the making of these orders.

(16)The father and the mother shall share equally in the net cost to the mother, after any Medicare and private health insurance rebates, of all such psychological therapy undertaken by the wife pursuant to the previous order with the father to pay the wife his share of such cost within fourteen (14) days of receipt of her written request for same, which written request will include copies of necessary invoices and details of any Medicare and/or private health insurance rebates received by the wife in respect thereof.

Dismissal of other parenting applications

(17)All outstanding applications for parenting orders be otherwise dismissed and removed from the list of cases awaiting finalisation.

Other orders

(18)All subpoenaed documents shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

(19)Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym  Preston and Preston is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1308  of 2009

Ms Preston

Applicant

And

Mr Preston

Respondent

REASONS FOR JUDGMENT

Introduction

1.These proceedings concern the two children, J, now aged 12, born in June, 1999, and B, now aged 6 years and 9 months, born in September, 2004. The parents of these two children, who are both devoted to them and love and care for them dearly, are before this Court because they are unable to agree on future parenting arrangements. Disagreement between them persists as the mother wants to take the children to live in New Zealand and the father wants them to stay living in Australia. The mother asks this Court to determine that she can take the children to live in New Zealand although the father does not agree. The father asks the Court to determine that they spend equal time in his care and the mother’s care here in Brisbane.

Some background

2.The mother was born in New Zealand in 1969 and is almost 42 years of age. The father was born in the United Kingdom in 1965 and is 46 years of age.

3.The father came as a child, with his family, to Australia in 1968 and became an Australian citizen in 1983.

4.The mother came to Australia as a travelling, young adult in 1989. She was travelling around Australia when she and the father met in Perth that same year. They began to live together in Brisbane in March, 1990. Soon thereafter, they travelled together to New Zealand for what was only intended to be a temporary visit before a planned return to Australia for more travel around the country, with a plan to ultimately return to Perth.

5.The couple stayed in New Zealand, in the vicinity of the mother’s family home on a dairy cattle farm some distance out of City 1 on the North Island. They stayed a little longer than they initially planned. They returned to Australia in mid-1991, travelling around the country, arriving in Perth in November that year.

6.They settled in Perth, living there for fourteen years from November 1991 until December 2005, marrying in New Zealand in February 1993.

7.Both the mother and the father worked in Perth up until J was born in 1999. The mother took four months maternity leave on his birth to care for the new baby before returning to full-time work. The father then took on the role of providing daily care for baby J whilst working part-time from their family home.

8.Grand-parental ill-health resulted in the father and young J travelling quite a few times to Brisbane, where the father’s parents lived, and to New Zealand, where the mother’s parents lived. The mother was not able to always accompany them because of her employment obligations.

9.The second child, B, was born in September 2004. Again, the mother had some maternity leave after B’s birth and went back to full-time work after six weeks. The father continued to be principally involved in caring for the two young children from that time.

10.In 2005, the couple learned that the maternal grandmother in Brisbane had terminal lung cancer. The paternal grandfather in New Zealand was also ill with emphysema at that time.

11.In March, 2005, the father decided that he wanted to move back to Brisbane to be closer to his mother and father and the rest of his family (three sisters who lived in Brisbane with their families). It appears to be common ground that the couple was experiencing some relationship difficulties at that time and that the mother was reluctant to leave Perth where she was in secure employment and otherwise fairly content. Their son J was happy at school and had many friends.

12.It is also common ground that the father told the mother that he was going to move to Brisbane whether the mother moved with him or not. The father made it clear that he intended taking the children with him. That matter was resolved when the mother chose to terminate her employment and for them all to move to Brisbane as a family. They did that in December 2005.

13.Upon their arrival in Brisbane, the couple agreed to swap their roles as income provider and principal provider of care to the children in the family. The father found full-time employment and the mother began caring full-time for the two children. There is evidence that the child, J, was quite unsettled by the move to Brisbane and the change of schools. He was six and a half years old at that time.

14.The maternal grandmother passed away in mid-2006. In November of that year the couple agreed to separate and a week later the paternal grandfather passed away in New Zealand. The mother had travelled to New Zealand to be with her father just before he died and the father and the two children travelled over for his funeral. Sadly, there was some unpleasantness in the interaction between the father and the mother’s brother and mother at around that time.

15.Upon their return to Australia, the couple continued to live in their family home but the mother and the two children went back to New Zealand to spend holidays with her mother on her family farm after Christmas, 2006. Whilst they were in New Zealand at that time the father, by agreement, moved out of the family home in Brisbane.

16.The father was not able, at first, to find a place to live that appropriately accommodated the two children and they spent time with him on an irregular basis in the first few months after the separation. He then obtained his own place not far from the mother’s place and the couple made arrangements whereby the two children spent alternate weekends with the father from Friday afternoons until Sunday afternoons.

17.In June 2008, the couple reached an agreement in respect of the division of their property and they also entered into a Parenting Plan in respect of their children. That was negotiated and agreed upon the basis of both parents living in Brisbane. The Parenting Plan provided for the children to live with the mother and to spend alternate weekends from after school Friday to Sunday evening with the father, as well as a few hours individually during the week and also to spend time with each parent equally in school holidays.

18.The maternal grandmother visited the mother and the children soon thereafter. The mother noticed that her mother’s health was beginning to deteriorate and she began to start worrying about her and thinking about spending more time with her.

19.In November, 2008, without any consultation with the mother, the father bought a home only nine houses away from the mother’s home (which is the home that the family had bought and lived in on moving to Brisbane from Perth in 2005) in the same street. The mother was not comfortable with that.

20.In the 2008-2009 Summer school holidays, the mother and the children went to New Zealand and stayed with the maternal grandmother on the dairy farm. They all enjoyed that time. In March, 2009, the mother decided that she wanted to move, with the children, back to New Zealand to live. She told the father of her desire. He told her of his opposition to that proposal and he had a solicitor write to her confirming his opposition. The mother then engaged her own solicitor and in May, 2009, the couple participated in formal family dispute resolution processes but were unable to reach an agreement. They agreed though to engage Mr W, a Brisbane psychologist, to see them and the children and to prepare a report for their consideration.

21.Mr W’s first report dated 15 October, 2009 is in evidence. Mr W’s concluding opinions did not support the mother’s proposal to move the children to New Zealand. The parties were not able to reach an agreement that satisfied them both. 

22.Although the mother had not told Mr W during the process of his preparing his report, she had, by that time, already begun to develop a closer emotional relationship with a life-long family friend, Mr C, who lived on a farm not far from her family’s farm in New Zealand. Mr C is a widower, whose wife passed away several years ago and he was an executor of the mother’s late father’s estate. The mother and Mr C became re-acquainted and closer over the course of the finalisation of the estate that took some years.

23.The mother travelled to New Zealand without the children for a short time over the Christmas period in 2009. During that stay, she and Mr C agreed to commit to a closer relationship with each other. The mother’s evidence is that they did this after much consideration of the difficulties surrounding the maintenance of a long-distance relationship and also consideration of their age difference, Mr C being a little over 20 years older than the mother. Clearly, the mother made this commitment knowing that the father opposed her taking the children to live in New Zealand, knowing that the psychologist, Mr W, did not support moving the children away from their father as being in their best interests and knowing that she would, if she was going to be able to move the children to New Zealand with her, need an order of the Court permitting that. The mother said in evidence at the trial that she considered then that the relationship would work even though they were separated by such distance but that she was, in any event at that point in time, seriously considering making an application to the Court to seek parenting orders that permitted her to take the children to live in New Zealand.

24.The mother also took the children to New Zealand again in January 2010 during the Summer school holidays. She said they all enjoyed that time.

25.In May that year, the mother made an application to the Federal Magistrates Court for parenting orders that, principally, permitted her to take the children with her to live in New Zealand. The father responded, opposing the mother’s application, seeking by way of interim orders, amongst others, an order for an updated report from Mr W and orders that the children spend more time with him on the alternate weekends, such that they stay through to Tuesday mornings.

26.On 2 August, 2010, Federal Magistrate Demack made interim orders that did not increase the time that the children spent with the father, but that provided for Mr W to do an updating report and transferred the matter to this Court.

27.In October, 2010, the father filed an Amended Response in which he amended the orders that he sought to ones seeking equal shared parenting arrangements, with the children staying with each parent on a week about basis.

28.On 22 November, 2010, Mr W presented his updating report, having conducted the interviews of the parties, the children and Mr C in late August. Again, I consider it is a reasonable assessment of Mr W’s concluding opinions to describe them as still not supporting the mother’s proposed move of the children to New Zealand, notwithstanding Mr W having now been made aware of the mother’s committed relationship with Mr C.

29.The mother again took the children for some of the 2010-2011 Summer school holidays to New Zealand where they spent time in the company of Mr C as well as other members of the mother’s extended family. They returned to Brisbane around New Year and spent holiday time in January with the father whilst the mother stayed in New Zealand. By agreement, they stayed a week longer with their father, as the mother remained in New Zealand slightly longer than she had originally planned, a consequence of the flooding in Brisbane.

30.The matter then came before me for hearing on 6 and 7 April, 2011. The mother was represented at the trial by Mr Selfridge of counsel and the father represented himself, a solicitor who had been retained to represent him being unable to appear due to health reasons, but with the father insisting the matter proceed to be heard at that time, in any event.

By what principles is this case to be decided?

31.This case, involving as it does an application by one parent seeking the Court’s sanction to change the place of residence of the children to another country, is given the short-hand descriptor of an “international relocation case”.  Much has been said jurisprudentially about relocation cases in recent years in the context of the consideration of applications to relocate the residence of children both within Australia, as well as beyond this country’s national boundaries. Both the Full Court of this Court and the High Court have pronounced authoritatively on the subject many times.

32.In Cowley & Mendoza [2010] FamCA 597, Murphy J at [31], after having considered the High Court’s decision in MRR v GR (2010) 263 ALR 368, reaffirmed his view, previously expressed after a consideration of all of the High Court and Full Court decisions in “relocation cases”, that a “relocation case” is not a specific sub-category of parenting case and that no principles specific to such cases apply. I respectfully agree with his Honour’s assessment of the state of the authorities on that point.  

33.What is before me for decision is a case in which parenting orders are sought in particular factual circumstances, namely, the mother proposing that she continue to be the parent with whom the children live but in New Zealand as opposed to Australia and the father proposing that the children actually start living with him here in Brisbane on an equal shared time basis.  It must be determined, by way of the specific statutory framework of Part VII of the Family Law Act (“the Act”), in the same way as any parenting orders case is determined.

34.The parenting orders that I ultimately make in respect of these two children must be made with regard to the best interests of the children being my paramount consideration (s 60CA and s 65AA). 

35.The Act expressly tells me how I am to determine what is in the best interests of particular children. In determining what is in the best interests of the children in this case, consideration must be given to the expressly stated “primary” and “additional” considerations (see s 60CC(1), (2) and (3)). One of those “additional” considerations, namely s 60CC(3)(m), which lists “any other fact or circumstance that the Court thinks is relevant”, evidences that the enquiry is indeed a broad one.

36.The determination of parenting orders that are in the best interests of children must also be performed against the expressly stated Objects of Part VII of the Act and the Principles underlying them. These Objects and Principles are set out in s 60B. It is, in my view, important to set those out in full at this point, particularly in a case where one parent is seeking orders permitting them to parent the children in another country.

S 60B

(1)The objects of this Part are to ensure that the best interests of children are met by:

(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d)parents should agree about the future parenting of their children; and

(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

37.Just how these Objects and Principles apply, or rather, are to be considered in each individual parenting orders case, was discussed, appositely, in my view, by the Full Court, as far back as 1997 in the decision B and B: Family Law Reform Act 1995 (1997) FLC 92-755. Although the express wording of the Objects and Principles in s 60B then was a little different to the current wording just set out, (that was prior to the Family Law Amendment (Shared Parental Responsibility) Act 2006), in my view, the amendments made in 2006 did not change the import of what the Full Court said back then. 

38.In [9.6] of that decision, in their joint judgment, Nicholson CJ, Fogarty and Lindenmayer JJ, said, after setting out the full text of s 60B:

Section 60B(1) provides an optimum set of values for children of separated parents and is the goal to which the parents, society and the courts should aim…

39.At [9.8] their Honours said:

In relation to sub-s (2) the following matters may be noted:

·It sets out the principles “underlying” the object contained in sub-s (1) and consequently is to be read as directed to effectuating that object.

·It is expressly made subject to the child’s best interests.

·It cannot be regarded as an exhaustive list of principles which underlie the object in s 60B(1) or the child’s best interests. There are a number of other matters which may in particular cases be equally or more important but which are not expressly contained in sub-s (2), such as the wishes of children and their right to be protected from abuse. Those two matters, together with a number or other important considerations are set out in s 68F(2) as matters which the Court must consider in determining the best interests of the child. It is this circumstance which makes the inter-relationship between s 68F(2) and s 60B difficult to precisely define. The matters in the two sections vary but overlap. Neither purports to be exclusive or exhaustive.

(my emphasis)

40.Their Honours went on to say at [9.14 - 9.15]:

It is now well accepted that in most cases meaningful contact by children with both their parents is important to their welfare both in the short and long-term. That principle has been well established in Australia and in comparable overseas countries for many years. …..

But it is equally recognised that there may be cases where the best interests of the children require that contact with one and on some occasions both parents be curtailed or even terminated. If the facts dictate that such an outcome is the appropriate one in the children’s best interests there is nothing in s 60B which suggests or requires any different outcome.

(my emphasis)

41.At [9.18] their Honours said:

Contact generally and in the context of par (b) normally encompasses direct contact but can include indirect contact ….The object in s 60B(1) would not be likely to be achieved in most cases by providing only for contact which was regular but infrequent. Consequently, having regard to the previous approach of this Court and the requirements of the best interests of the children, par (b) should not be narrowly interpreted. Fundamentally it emphasises the desirability of contact, and “regular” carries with it a clear understanding that it should also be as frequent as is appropriate and by the various means which are considered to be in the children’s bests interests.

42.Back then it was s 68F(2) of the Act which included a list of the matters that had to be considered by the Court in determining what was in the best interests of the child or children in each case that was being decided. Many of those same matters, as well as some additional ones, are now included in the “primary” and “additional” considerations listed in s 60CC.

43.In [9.53] of the decision from which I was just quoting, their Honours said of the considerations that were listed in s 68F(2):

The weight which is attached to any one consideration will depend on the circumstances of the individual case and is a discretionary exercise by the trial Judge. ………This simply underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of the particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.

44.In [9.54] their Honours went on to say in respect of s 60B:

Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to s 65E. (The then equivalent of the current s 60CA)  Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub-section (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court’s consideration of the matters in s 68F(2) and to the overall requirement of s 65E. The matters in s 68F(2) are to be considered in the context of the matters in s 60B which are relevant in that case.

(my highlighting)

45.Their Honours concluded their discussion of the effect of the statement of the Objects and underlying Principles in [9.55 – 9.59] with the following remarks:

Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of the children in the particular case. …..

The Court …..is required to determine what is in the best interests of the particular children. .. It will direct attention to both of the other sections [s 60B and s 68F], but the weight to be attached to individual components of those sections may vary significantly from case to case.

As a matter of proper practice ….a judge in the adjudication of such a case would be expected in the judgment to clearly identify s 65E as the paramount consideration, and then identify and go through each of the paragraphs in s 60F(2) which appear to be relevant and discuss their significance and weight, and perform the same task in relation to the matters in s 60B which appear relevant or which may guide that exercise. The trial Judge will then evaluate all the relevant issues in order to reach a conclusion which is in that child’s best interests.

In cases where there are no countervailing factors the s 60B principles may be decisive, not only because they are contained in s 60B but because they accord with what is in the best interests of the particular children. Where there are no countervailing factors, the Court may normally be expected to conclude that it is in the best interests of the children to have as much contact with each parent as is practicable. However, to attempt to impose that approach in cases where the best interests of the children may not indicate that conclusion as appropriate is contrary to the long established views of this and other courts which deal daily with the welfare or best interests of children.

(my emphasis.)

46.Although the wording of the Objects and Principles underlying them, as well as the list of considerations that were set out in s 68F(2), are now a little different, the paramountcy of the best interests of the children remains in place and I consider that the guidance given by the Full Court in that decision to the way in which the relevant sections relate to each other and are to be applied and considered remains authoritatively instructive.

47.As the Full Court clearly said, the determination of the parenting orders to be made in each case must be done with obvious regard for the Objects and the underlying Principles set out at the commencement of Part VII of the Act but with recognition that the paramountcy of the best interests of the children that applies in each individual case means that the orders to be made might not always totally meet those Objects and accord with those Principles. As Murphy J said, when discussing the Objects and Principles in Cowley & Mendoza [2010] FamCA 597, a case that also involved the consideration of parenting orders in circumstances where the mother wanted to take the children to live overseas:

The statutory Objects and Principles are unifying aims, but attempts to meet the Objects, and to accord with the Principles, will vary from parent to parent and child to child. The individual characteristics or idiosyncrasies of parents will invariably mark the parenting relationship. Where parental conflict (particularly significant conflict) intervenes, differences in belief systems, personality, psychopathology, attitude and the like are thrown into sharp focus. The circumstances in which aims – statutory or otherwise – are satisfied, or not, must vary with the individual parents and children and with their particular circumstances.

Respectfully, I accept that as a correct observation.

48.The 2006 amendments to the Act not only changed the wording of the s 60B Objects and Principles and the old s 60F(2) list of matters for consideration when determining the best interests of children, but also introduced the presumption of equal shared parental responsibility and some new steps in the process of determining the parenting orders to be made in each case. The Full Court in the decision of Goode v Goode (2006) FLC 93-286 authoritatively discussed how the amended provisions of Part VII where to be considered and applied.

49.The High Court in MRR v GR (2010) 84 ALJ 296 also, more recently, pronounced authoritatively on the application of some of these provisions, particularly s 65DAA.

50.Accordingly, having regard to the provisions of Part VII and these authoritative decisions, the Court is now required, in my view, to take the steps in the order set out as follows:

·apply the presumption of equal shared parental responsibility (s 61DA (1))

·determine whether there is abuse of a child or family violence, which means that the presumption does not apply( s 61DA(2))

·determine whether the presumption is rebutted by evidence that it is not in the child’s best interests for there to be equal shared parental responsibility (s 61DA(4))

·if the presumption applies:

·determine whether it is in the child’s best interests for there to be an order for equal time with each parent (s 65DAA(1)(a))

·make findings as to the matters set out in section 65DAA(5) which are as follows:

Reasonable practicality: 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:

(a)how far apart the parents live from each other; and

(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

(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

(d)the impact that an arrangement of that kind would have on the child; and

(e)such other matters as the court considers relevant.

·as a result of this enquiry, make findings as to whether an “equal time” order is reasonably practicable(s 65 DAA (1)(b))

·if an equal time order is not reasonably practicable, carry out the same process in respect of a “substantial and significant time” order (s 65DAA(3))

·if neither an equal time order, nor a substantial and significant time order, is to be made, proceed to determine what orders are in a child’s best interests.

51.The s 68F(2) matters that were to be mandatorily considered in determining what is in a child’s best interests in each case, were replaced in the 2006 amendments by those matters set out in s 60CC(2) and (3). As I stated earlier, the considerations listed are divided into “Primary considerations” and “Additional considerations”. The two “primary” considerations set out in s 60CC(2) are to “be accorded particular importance in determining what order will best promote the interests of the child” (Marsden and Winch (No.3)[2007] FamCA 1364 per Warnick and Thackray JJ at [77]). That they are separately listed and described as “primary considerations” demands as much. Those “primary” considerations are:

·The benefit to the child of having a meaningful relationship with both of the child’s parents; and

·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The note to s 60CC(2) in the Act says that making these considerations the primary ones is consistent with the objects of Part VII set out in s 60B(1)(a) and (b).

52.The list of “additional” considerations is long. It varies little from the list that used to be in s 68F(2). As I have already noted, just how broad the actual process of consideration is can be readily understood by observing that s 60CC(3)(m) includes in the list “any other fact or circumstance that the Court thinks is relevant”.

53.At various stages along the pathway set out above the best interests of the subject children have to be determined. This is done by giving weight, in appropriate amounts, to those “primary” and “additional” considerations that are relevant to the particular children in all of the factual circumstances of the case, considered against the backdrop of the Objects and underlying Principles stated in the Act.

Parental Responsibility

54.In this case, I am asked to make parenting orders in respect of the children, J and B. A presumption that it is in their best interests that their parents have equal shared parental responsibility for them therefore must be applied. Both of the parents actually ask me to make such an order. Neither of them presents a case that the presumption does not apply because the other parent has engaged in abuse of either or both children.  There is no evidence of such abuse. Accordingly, I do not find it necessary to consider whether the presumption does not apply for that reason.

55.“Parental responsibility” means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Pursuant to s 65DAC of the Act where parents share parental responsibility by order of the Court, and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child, the order is taken to require the decision to be made jointly by the parents and also to require each of the parents to consult the other person in relation to the decision to be made about that issue and to make a genuine effort to come to a joint decision about that issue.

56.“Major long-term issues” are defined in s 4 of the Act to mean issues about the care, welfare and development of the child of a long-term nature including issues of that nature about the child’s education (current and future), the child’s religious and cultural upbringing, the child’s health, the child’s name and changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

57.There is nothing in s 65DAC or any other part of Part VII that provides how an impasse between parents who share parental responsibility by order is to be resolved other than, of course, by way of further parenting orders made pursuant to all the relevant provisions of Part VII. Clearly then, in my view, when considering whether the presumption in favour of equal shared parental responsibility is rebutted by evidence that it is not in the child’s best interests for there to be equal shared parental responsibility the Court would consider, amongst the many things it is required to consider, the extent to which each of the parents has demonstrated respect for the other party’s parenting role and the parents’ capacity for jointly making decisions about the child without undue conflict.

58.In this case, as I have just remarked, both parties ask for an order providing for equal shared parental responsibility in any event, whatever the other parenting orders might be. Quite apart from that fact, I do not consider that there is evidence that causes me to determine that the presumption is rebutted. I consider the evidence establishes that each parent has, in fact, demonstrated suitable respect for the other parent’s parenting role and that the parties have demonstrated capacity to jointly make decisions about the children without undue conflict. I can see no evidence that would satisfy me that the s 65DA(1) presumption should not apply. That leads me straight to the conclusion that I will be making parenting orders that include, as their foundation, provision for equal shared parental responsibility.

59.I am now required to consider whether it is in the best interests of these two children to make an order for them to spend equal time with each of their parents and whether that is reasonably practicable having regard to the matters that I must  have regard to pursuant to s 65DAA(5). Of course, only if both of those questions are answered in the affirmative can I go on to actually consider making parenting orders that provide for the children to spend equal time with each of the parents. The High Court’s decision in MRR makes that clear.

The children’s best interests and equal time with each parent

60.The father would have me find that the children spending equal time with each parent is both in their best interests and reasonably practicable having regard to the requisite s 65DAA(5) considerations. He seeks parenting orders that the children begin to live week about with each of their parents. He first contended for such a position, I find, in October last year, after the mother had commenced these proceedings seeking orders that let her relocate the children to New Zealand. Until then, he appeared, at least to the extent that he had not applied to court seeking such an order, reasonably content for the children to continue to live for the majority of time with their mother and spend time with him on alternate weekends, as he had agreed to when he and the mother had agreed to parenting arrangements by way of a written Parenting Plan in June. 2008. He had though, as I mentioned at the outset, sought to have the children spend longer weekends with him by Application in a Case filed in July, 2010. That had been considered and rejected in an interim hearing by her Honour FM Demack. He had also earlier, before proceedings were commenced by the mother, sought to have the children spend more time with him than they have been. He was not able to achieve that by agreement at that time. 

61.On the other hand, the mother would have me find that the children’s best interests will be met by them living with her in New Zealand spending time with their father for a weekend during school terms and for substantial periods, in fact most of the time, during their New Zealand school holidays.

62.I must consider these proposals of the parties now simply as part of the process of determining what parenting orders are in the best interests of these two children, which process now begins by a consideration, as mandated by s 65DAA(1), of whether it is in the best interests of these two children to make an order for them to spend equal time with each of their parents and whether that is reasonably practicable.

63.In my respectful view, the High Court’s consideration of s 65DAA(1) in MRR did not address, in any authoritative manner, the order in which the questions whether it is in the best interests of the children to spend equal time with each parent (par (a)) and whether it is reasonably practicable that the child spend equal time with each of them (par (b)) are to be determined. The High Court did make it absolutely clear though that both are statutory conditions which must be fulfilled before the Court has the power to make a parenting order that children spend equal time with each parent. In my respectful view, the High Court’s decision means that if either question, independent of the other, cannot be answered affirmatively the Court cannot go on to make parenting orders that provide for the children to spend equal time with each parent.

64.In Taylor v Barker (2007) FLC 93-345 at [73]-[74], Bryant CJ and Finn J (with whom Faulks DCJ agreed on the point), in their judgment that preceded the High Court’s decision in MRR, said, in respect of the trial FM’s treatment of the two relevant questions:

Having concluded that it would not be in the child’s best interests to spend “equal time” with each parent, it was, in our view, unnecessary that his Honour consider whether such an option was “reasonably practicable”.

In our view, the common sense construction of s 65DAA(1)(c), and also of s 65DAA(2)(d), must be that it is only necessary for a court to consider whether it would be “reasonably practicable” for the child to spend “equal time” with each parent, or “substantial and significant time” as the case may be, if the court has already concluded that it would be in the child’s best interests to spend “equal time” with each parent, or “substantial and significant time” (as the case may be).

65.I do not consider that the High Court’s decision in MRR in any way detracts from the correctness of the Full Court’s remarks just quoted. Accordingly, I turn to considering whether the children spending equal time with each of the parents in this case would be in the best interests of the children. I do so by reference to the matters that I must consider pursuant to s 60CC and with consideration for the s 60B Objects and underlying Principles.

Consideration of the Matters relevant to Determining Best Interests

Primary Considerations

66.There is absolutely no doubt in this case that both of these children will benefit from having a meaningful relationship with each of their parents. Neither parent contended otherwise. It is to be remembered though that the adjective “meaningful” is not quantitatively descriptive but rather is qualitatively descriptive of the noun that follows. However, I must also acknowledge that the Objects of Part VII include ensuring that the best interests of children are met by ensuring that they have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children and that two of the Principles statutorily expressed to underlie the Objects recognise the rights of the children to know and be cared for by and to spend time on a regular basis with both parents.

67.On all of the evidence that was before me in this case, I can only find that both of these children currently have meaningful relationships with each of their parents and that each of them would benefit from a continuation of those meaningful relationships.  Of course, the mother would have me find that their meaningful relationships with their father will continue even if they live in New Zealand and their father lives here in Brisbane by way of the children making regular trips to Brisbane to spend time with him and maintaining communication with him electronically between those trips.

68.Mr W expresses the opinion, I find, in both of his reports, that the fundamental nature of the relationships the children currently have with their father will change quite dramatically if they move to New Zealand and the father remains living in Brisbane. His evidence is that, in his opinion, those changes in their relationships would not be in their best interests. He particularly considered that B’s relationship with her father, because of her young age, would suffer. I will say more of this later.  

69.I do not consider that the evidence supports any finding that the children are being subjected to, or exposed to, abuse, neglect or family violence in any way that requires orders to be fashioned so as to protect them from same. Again, neither parent, as I understood their respective cases, made such a case notwithstanding the fact that each presented some evidence about alleged parenting deficiencies of one form or another in the other parent, a not unexpected feature of any parenting orders case in this Court.

Additional Considerations

70.Although I did not have the assistance of a case presented by an Independent Children’s lawyer in this matter, I did have before me in evidence the two reports prepared by the Psychologist, Mr W. Mr W had interviewed the boy, J, as part of the process of preparing both reports. He spoke to him in late June, 2009, and again in late August, 2010. He chose not to interview the girl, B, in preparing the first report as he considered her too young then to do so. When he undertook interviews in the preparation of the second report he did interview B. She was, at that time, almost six years old. 

71.In his first report, Mr W reported that J stated that he “really” wanted to go New Zealand “to visit [his] nana, to live on a farm, milk the cows, visit [his] cousins every day.” He noted, too, that J explained that he had been to the New Zealand farm “lots. Fifty times. Loads.”. J was reported as being aware that moving to New Zealand would mean leaving friends behind in Brisbane but that he had pointed out that he would be visiting them in the holidays when he comes back here. He was also reported to have described the fact that his parents currently live very close to each other as “good” as “if he forgets something when visiting one … he can easily go to the home of the other parent to retrieve it.”

72.In the concluding remarks of that first report, Mr W opined that what J told him then “indicates that he is naïve to the full impact of the move upon his relationship with his father and of the demands that will be placed upon him in settling into a new community and vastly different school system to the one in which he is currently being educated.”

73.In his second report, Mr W records that when he interviewed J over a year later, ultimately J stated, when asked to talk more about his thoughts concerning New Zealand, that “[he] really want[s] to [move there], and mum really misses Nanna because she is really sick now. And [he] want[s] to work on the farm. It’s fun. There’s nothing to do here.”

74.In the second report, although Mr W reported on interviewing the girl, B, there is no indication that he asked her to tell him whether she wanted to move to New Zealand or not and there is no reporting of her having said anything of a wish or desire to actually move to New Zealand. I assume that Mr W did not consider it appropriate to be asking the 5 year old girl any such questions. I find though that she is reported to have said things of New Zealand that indicated that she had fond feelings about the times she spends there.

75.Mr W appeared to cautiously qualify that which is to be made of the views expressed by the children. He reported [67] in his concluding remarks in the second report:

They have each spoken positively of a move to New Zealand and talked in an idealised manner of life on the farm where they will live. I consider that their impressions of their potential life in New Zealand are somewhat coloured by the fact that their experiences there have always been in the context of holidays.

76.Mr W said in oral evidence at the trial that, even at his current age, J is not old enough to understand the full complexity of the move to New Zealand and its impact upon him and his relationship with his father. I find that there is no reason for me not to accept that opinion. I do accept that J has been to New Zealand several times, is familiar with the place it is proposed they move to and the people who live there and that he says he wants to go there to live. However, notwithstanding J’s age, I am reluctant to place a great deal of weight on the views he has expressed because of my acceptance of Mr W’s opinions that he is not old enough to understand the real impact of the proposed move on all aspects of his life, particularly the nature of his relationship with his father and that the children’s impressions of their potential life in New Zealand are particularly influenced by their holiday experiences.

77.In his first report, Mr W reported [69] that he observed J and B interacting:

…easily and with familiarity with each of their parents. They separated without fuss from each of their parents and greeted tho other parent warmly. Their behaviour and demeanour was consistent between each parent. Likewise, each parent interacted warmly, confidently and appropriately with the children.

He noted that the interactions he observed [69]:

were only remarkable in that they clearly reflected the quality relationships the children have with each of their parents.

He stated [70] that:

[t]hey presented as happy, confident, curious and articulate young individuals who appear to have very good relationships with each of their parents and with each other.

78.In his second report, Mr W reported [60] that he again observed J and B interacting easily and with familiarity with each of their parents. He opined that they experience comfort in the company of each parent. There was no suggestion by Mr W that he considered there to be a more secure attachment to the mother than to the father. It is to be remembered that the father was the parent principally caring for J for the first six years of his life and for B for about a year when she was an infant.

79.At [66] of that second report,  Mr W opined:

Little seems to have changed in the relationship between the children and their father, except that [the father] appears to have developed some insight and general wisdom around how to conduct his relationship with the children. For example, he has recognised that the relationship dynamics between the children have an impact on how he must manage their behaviour, if he is to also be managing well his relationship with both of them. …

The children have once again each spoken positively to me of their relationship with their father.

80.However, that said, I do note that there was evidence before me, both from the mother and the father, that interaction between the boy, J, and the father had, in the period that elapsed between the first report and the second report of Mr W, changed a little, particularly at the commencement of the time that the children spend in the father’s care. The evidence was that on two or three occasions when the children have commenced to spend time with the father J has, within a short period of time of arrival at his father’s home, sent his mother a text message on his mobile telephone seeking her support as a consequence of some disputation with his father.

173.I also intend to include orders requiring both parties to attend a post-separation parenting orders program to assist them in understanding their obligations in respect of their co-parenting of these two children in the light of the orders being made.

174.I make the orders set out.

I certify that the preceding one hundred and seventy four (174) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 4 August 2011.

Associate: 

Date:  4 August 2011