Pyne and Pyne
[2017] FCCA 3335
•2 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PYNE & PYNE | [2017] FCCA 3335 |
| Catchwords: FAMILY LAW – Parenting – interim relocation – mother in the (employer omitted) – father in the (employer omitted) – interim relocation not permitted. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 65DAA, 61DA |
| Goode & Goode [2006] FamCA 1346 Morgan & Miles [2007] FamCA 1230 U v U (2002) 211 CLR 238 |
| Applicant: | MR PYNE |
| Respondent: | MS PYNE |
| File Number: | NCC 1404 of 2015 |
| Judgment of: | Judge Middleton |
| Hearing date: | 1 November 2017 |
| Date of Last Submission: | 2 November 2017 |
| Delivered at: | Newcastle |
| Delivered on: | 2 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Boyd |
| Solicitors for the Applicant: | Kilpatrick Hatton |
| Counsel for the Respondent: | Mr Mooney |
| Solicitors for the Respondent: | Jennifer Blundell And Associates |
ORDERS
The mother and father have equal shared parental responsibility for the child X born (omitted) 2013 (“the child”).
The mother is restrained and an injunction is granted restraining the mother from relocating the child outside of the (omitted) or (omitted) area.
That pending further order the child shall live with the mother and spend time with the father for three (3) nights in each eight (8) day block, from the conclusion of pre-school (or 3.00pm if a non-pre-school day) on day one (1) of the father’s four (4) day block off work until the commencement of pre-school (or 3.00pm if a non-pre-school day) on day four (4) of the father’s off work period.
That notwithstanding the above order the child shall spend time with each parent for special occasions as follows:
Mother’s Day
(a)If not already in the care of the mother the child shall spend time with the mother for Mother’s Day from 5.30pm on the Saturday prior to Mother’s Day until the commencement of pre-school for school on the Monday after Mother’s Day.
Father’s Day
(b)If not already in the care of the father the child shall spend time with the father for Father’s Day from 5.30pm on the Saturday prior to Father’s Day until the commencement of pre-school for school on the Monday after Father’s Day.
Child’s Birthday
(c)The child spend time with the parent they are not staying with overnight on the child’s birthday as follows:
(i)If a weekday, from the conclusion of pre-school or school until 6.30pm;
(ii)If a weekend, from 9.00am until 2.00pm.
Christmas
(d)For Christmas in odd numbered years:
(i)With the father from 3.00pm Christmas Eve until 3.00pm Christmas Day.
(ii)With the mother from 3.00pm Christmas Day until 3.00pm Boxing Day.
(e)For Christmas in even numbered years:
(i)With the mother from 3.00pm Christmas Eve until 3.00pm Christmas Day.
(ii)With the father from 3.00pm Christmas Day until 3.00pm Boxing Day.
That all changeovers that do not occur by way of the child being picked up from and returned to pre-school or school shall occur by the father or his nominee collecting the child at the commencement of his time from the mother’s residence, and the mother or her nominee collecting the child from the paternal grandparents residence at the commencement of her time.
In the event the mother relocates away from the (omitted) or (omitted) area:
That the child live with the father in the (omitted) / (omitted) area.
The child shall spend time with the mother:
(a)Prior to the child commencing Kindergarten, in the locality where the mother is living:
(i)On four occasions per year for up to two weeks at a time with the mother to provide at least 6 weeks’ notice to the father of the dates upon which the mother will be spending time with the child pursuant to this order.
(b)At additional times in which the mother chooses to travel to the (omitted) or (omitted) area, upon the mother giving notice to the father at least 14 days in advance that she will be in the area.
(c)At other times as agreed between the parties.
That for the purposes of implementing the Mother’s time with the child in the locality where the mother is living pursuant to order 7:
(a)The mother shall six (6) weeks prior to the child spending time with her provide the father with notice of the flight booked for the child to travel to spend time with the mother;
(b)The father shall within a further three (3) weeks provide the mother with notice of the return flight for the child;
(c)The father or his nominee shall deliver the child to the mother or her nominee at (omitted) Airport ((omitted)) at the commencement time;
(d)The father or his nominee shall collect the child from the mother or her nominee at the airport closest to where the mother is living at the conclusion of time.
Orders regardless of whether the mother relocates or not:
The child have skype or telephone contact with the parent they are not spending time with at all reasonable times and at any time as requested by the child and the parent whom the child is in the care of shall facilitate such contact.
Each party is to keep the other informed of their residential address, email address, mobile and landline telephone numbers for the purpose of communicating about the child’s care, welfare and development, and is to advise the other party in writing of any changes within 48 hours.
Each party is to promptly notify the other party upon:
(a)The child becoming seriously ill;
(b)The child being hospitalised;
(c)The child being involved in an accident.
Each party is at liberty to obtain all information in relation to the child’s health from any of the child’s doctors, dentists or other medical practitioners and this order is authority for the child’s doctors, dentists or other medical practitioners to provide such information to any of the parties.
That each parent is to keep the other informed as to all medical, dental or other health related treatment being undertaken by the child and provide details of any such appointments the child has had by the time of any changeover and also provide any medication and appropriate instructions as to dosage by the time of any changeover.
In the event that the child is unwell and unable to attend pre-school or school for three (3) days or more the parent whom she is in the care of shall ensure that the child is seen by a GP or other treating medical professional.
Each party is permitted and is hereby authorised to receive all information regarding the child’s education including school reports, school notes, school notices, school photographs and any other documents relating to the child.
Each party is at liberty to attend any of the child’s pre-school or school functions or extra-curricular activities, regardless of whether the child is spending time with them.
Each party is restrained from denigrating the other party or a member of the child’s family in the presence or of hearing of the child, or causing or permitting any other person to do so.
Pursuant to s.62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Senior Family Consultant, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and in particular:
(a)To consider the factors in S60CC & S65DAA of the Family Law Act 1975.
(b)To assess the parents (and other significant adults)
(c)To assess the parents interactions (and those of other significant adults)
(d)To assess the children’s developmental and emotional state.
(e)To assess the relationship of the children to the parents (and other significant persons) and the wishes of the children.
(f)To assess the proposed and actual home environments.
(g)To assess the proposals of each party as to the children’s future.
The Court requests the said report be released by 2 February 2018.
Pursuant to Regulation 1.06 of the Federal Circuit Court Rules 2001 the court dispenses with the requirement of Division 15A.2 of the said Rules and the family consultant is granted leave to inspect all documents produced in response to subpoena whether such documents have or have not been released for inspection.
If the Family Consultant is unable to inspect documents produced in response to subpoena at the Newcastle Registry of the Commonwealth Law Courts, the Registry Manager upon receiving a request from the Family Consultant, is to forward such documents to the Registry nominated by such consultant to permit such inspection.
The matter is adjourned to 10.00am on 28 May 2018 for a final hearing, 4 days allowed with priority.
Both parties to file and serve one consolidated trial affidavit on which they intend to rely by 4.00pm on 27 April 2018.
Both parties are to file and serve an affidavit of any witnesses upon which they intend to rely by 4.00pm on 27 April 2018.
Any subpoenas are to issue not later than 4.00pm on 5 January 2018.
Each party is to file and serve upon the other parties and the Court not later than 4.00pm on 21 May 2018:
(a)A case outline setting out the precise minutes of the orders sought;
(b)A relevant chronology;
(c)A statement of evidence supporting the principles contained in Section 60CC of the Family Law Act 1975;
(d)A list of affidavits to be read.
Unless a fee waiver has been obtained the applicant is to pay to the family law courts at Newcastle the setting down for hearing fee of $605 at least fourteen (14) days prior to the final hearing date.
The applicant is also required to pay the daily hearing fee of $605 for each additional hearing day after the first day of hearing, payment to be made not less than four (4) working days prior to the hearing date.
No party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court first had and obtained.
In the event that either party wishes to cross examine the Family Report writer at the final hearing, that party shall provide written notice to the Family Report writer of such intention no later than 4.00pm on 28 February 2018.
In the event that no such notice is given to the Family Report writer or the Family Report Writer is unavailable, the Family Report will be admitted into evidence without cross examination, subject to any objection.
Any documents produced in response to subpoena are to be inspected prior to the final hearing date. Inspection on the day of the hearing is not permitted.
IT IS NOTED that publication of this judgment under the pseudonym Pyne & Pyne is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1404 of 2015
| MR PYNE |
Applicant
And
| MS PYNE |
Respondent
REASONS FOR JUDGMENT
This is the judgment in the matter of Pyne & Pyne. It is a parenting matter on an interim basis involving parenting arrangements for a child, X, born on (omitted) 2013.
The father relied upon the following documents:
a) His Application filed on 21 July 2017;
b) His Affidavits filed 21 July 2017 and 13 October 2017; and
c) The Application of the paternal grandparents filed 13 October 2017.
The mother relied upon the following documents:
a) Her Response filed 1 August 2017;
b) Affidavit of her mother and Affidavit of Mr C, her partner filed 1 August 2017;
c) Two further Affidavits of herself filed 17 August 2017 and 27 October 2017; and
d) Her Notice of Risk.
The real issue before me is whether the child should relocate on an interim basis with her mother to (omitted).
Guided by the objects and principles contained in section 60B of the Family Law Act 1975 and noting, pursuant to section 60CA, that the child’s best interests are my paramount consideration, I must make orders that are in the best interests of X.
In determining what is in the best interests of X, I must have regard to section 60CC, as it sets out the matters that I must consider.
In Goode & Goode[1], the Full Court set out a pathway to follow, at paragraph 82. There are no separate provisions in the Act dealing with relocation issues. This is an abridged hearing. There is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives.
[1] [2006] FamCA 1346
The circumstances of the child at the time of the application and immediately beforehand, absent issues such as abuse or violence, are extremely relevant, in my view, that view supported by authorities such as Morgan & Miles[2] and Goode & Goode[3].
[2] [2007] FamCA 1230
[3] [2006] FamCA 1346
Cases involving relocation demonstrate that these are very difficult cases with far-reaching consequences that require the full investigation which can only occur at a final hearing. Boland J in Morgan & Miles[4] at paragraph 88 said:
‘It appears to me that the very difficult issues in cases involving a relocation make it highly desirable that, excepting cases of emergency, the arrangements that will be in the child’s best interests should not be determined in an abridged hearing, and these are the kind of cases in which the child’s present stability may be extremely relevant on an interim basis.’
[4] [2007] FamCA 1230
I concur. What are the child’s present circumstances? The child lives with her mother and her de facto partner Mr C.
The parties were together from 2011, marrying in (omitted) 2011 and separating on a final basis in approximately May of 2014. They lived under the one roof for a short time thereafter.
The child sees her father as often as possible, taking into account his shifts. The parties have been able to work time out amicably for the benefit of the child. It is regular and it is often.
There has been some difficulty in making arrangements with the father wanting to spend more time and the mother not permitting this, rather placing the child in day care.
The mother sets out the father’s overnight time only in her affidavit and makes no mention of the afternoon time, and this is, in my view, a little disingenuous.
In November 2015 to April of 2016, the child lived with the father while the mother was deployed overseas. The father and the child lived at the paternal grandparents’ home. The mother spent time, during that time, with the child via Skype and via phone.
Between 2 May 2016 and 9 December 2016, the child lived with the mother while the father was undergoing (occupation omitted) training in (omitted), New South Wales. The child spent time with her father every second weekend, again at the paternal grandparents’ home.
The father now works as a (occupation omitted) at (omitted), working a four day on, four day off rotating shift generally. The mother has annexed a roster which shows some variance to that, but I say generally four day on, four day off.
The father has been approved, it seems, for a transfer to (omitted). The mother works at (employer omitted) and remains in the full-time employment of (employer omitted).
Since December 2016, the child has lived with the mother and spent overnight time with her father on the weekends that he is not working. The father stays at the paternal grandparents’ home when he has the child, so as to avoid travelling the extra distance to (omitted).
The father requests to spend time with the child on weekdays that he does not work; however, the mother prefers that the child attends day care. When the father is not working weekdays, he stays at his parents’ and spends time with the child from 4 pm until 7.30 pm, often at the mother’s home.
What is the emergency here? The mother has been posted to (omitted). The father argues that it is not urgent. He says the mother has known about this situation since 16 August 2017. That is a fact supported by exhibit.
Both he and the mother agree that the father did not want the mother to move the child away from this area. He says there was an agreement between the parents that they would both leave the (omitted). Whether that is so or not is immaterial. The mother is silent on that aspect.
As I have to deal with the factual matrix as it currently sits, the mother says there are circumstances of emergency because she has to move. Her current position is at an end in January. She either moves or potentially loses her job.
Whether the mother should have commenced early or not is, again, immaterial at this stage. An urgent decision is needed. The fact that the case is heard in circumstances of emergency, however, does not automatically mean that a relocation should be allowed. I must still follow the legislative pathway informed by the objects and principles contained within section 60B.
The orders sought by the father are set out in his Initiating Application. They are these:
(1) that the mother and father have equal shared responsibility for the child X born (omitted) 2013;
(2) that the mother is restrained and an injunction is granted restraining the child outside of the (omitted) or (omitted) area;
(3) that, pending further order, the child live with the mother and spend time with the father for three nights in each in each eight-day block from the conclusion of preschool, or 3 pm if a non-preschool day, on day 1 of the father’s four-day block off work until the commencement of preschool, or 3 pm if a non-preschool day, on day 4 of the father’s off-work period;
(4) that, notwithstanding the above order, the child spend time with each of the parents on special occasions as follows:
(a)if not already in the care of the mother, the child shall spend time with the mother for Mother’s Day on the Saturday prior to Mother’s Day until the commencement of preschool or school on the Monday after Mother’s Day;
(b)Father’s Day – if not already in the care of the father, the child shall spend time with the father for Father’s Day from 5.30 pm on the Saturday prior to Father’s Day until the commencement of preschool or school on the Monday after Father’s Day;
(c)for the child’s birthday, the child spend time with the parent they are not staying with overnight on the child’s birthday as follows:
(i)if a weekday, from the conclusion of preschool or school until 6.30 pm;
(ii)if a weekend, from 9 am until 2 pm;
(d)Christmas time – for Christmas in odd-numbered years:
(i)with the father from 3 pm Christmas Eve until 3 pm Christmas Day;
(ii)with the mother from 3 pm Christmas Day until 3 pm Boxing Day;
(e)for Christmas in even-numbered years:
(i)with the mother from 3 pm Christmas Eve until 3 pm Christmas Day; and
(ii)with the father from 3 pm Christmas Day until 3 pm Boxing Day;
(5) that all changeovers that do not occur via the child being picked up from and returned to preschool or school shall occur by the father or his nominee collecting the child at the commencement of his time from the mother’s residence and the mother or her nominee collecting the child from the paternal grandparents’ residence at the commencement of her time.
(6) In the event the mother relocates away from the (omitted) or (omitted) area, the father seeks that the child live with the father in the (omitted)/(omitted) area;
(7) the child spend time with the mother:
(a)prior to the child commencing kindergarten, in the locality where the mother is living:
(i)on four occasions per year up to two weeks at a time with the mother to provide at least six weeks’ notice to the father of the dates upon which the mother will be spending time with the child pursuant to the order.
(b)at additional times in which the mother chooses to travel to the (omitted) or (omitted) area upon the mother giving notice to the father at least 14 days in advance that she will be in the area;
(c)at other times, as agreed between the parties;
(8) that for the purpose of implementing the mother time with the child in the locality where the mother is living, pursuant to order 7:
(a)the mother shall, six weeks prior to the child spending time with her, provide the child with notice of the flight booked for the child to travel to spend time with the mother;
(b)the father shall, within a further three weeks, provide the mother with a notice of return flight for the child;
(c)the father or his nominee shall deliver the child to the mother or her nominee at (omitted) Airport, (omitted), at the commencement time;
(d)the father or his nominee shall collect the child from the mother or nominee at the airport closest to where the mother is living at the conclusion of time.
The father seeks other orders regardless as to whether the mother relocates or not, as set out in his Initiating Application. The mother, in her Initiating Application, which is to be treated as a Response, noting that both parties attempted to file almost at the same time, seeks these orders:
1)that the child X born (omitted) 2013 live with the mother;
2)parties have equal shared responsibility for the child;
3)that from the date of the order until 31 December 2017, the father spend with the child as follows:
(a)each weekend from the conclusion of swimming lessons on Saturday until the commencement of preschool on Monday morning, which time shall be no later than 9 am;
(b)one weeknight (Monday to Friday inclusive) in each week from 3 pm until 9 am the following day, provided that:
(ii)the father gives the mother 28 days notice electing a night he intends to spend with the child; and
(iii)the father is personally available to care for the child during that time;
(iv)the father collects the child from day care on the specified day at 3 pm and returns the child to day care by 9 am the following day;
(c)on the weekend of Father’s Day from the conclusion of swimming Saturday until 9 am Monday morning, with the father to deliver the child to preschool;
(d) at Christmas from 3 pm Christmas Day until 3 pm Boxing Day;
(e) at other times, as agreed between the parties.
The mother seeks orders that from 31 September 2017 until the child commences school in 2019, the father shall spend time as follows:
(a)every eight weeks for a period of three nights, as agreed at agreement, from Friday morning on the first Friday in each alternate month until Monday morning;
(b)for the purposes of order 6(a), the father must provide 28 days notice to the mother of whether he elects to spend the time in (omitted) area or the (omitted) area, so as to enable the mother to arrange and pay for flights. If the father fails to give notice as set out in this order, the father shall be responsible for arranging and paying for any necessary flights.
(c)If the father elects to spend time with the child in (omitted), then the following shall apply:
(i) The mother shall return airline tickets for herself and the child and provide proof of purchase to the father.
(ii) The mother shall deliver the child to the father at (omitted) Airport, and the father shall return the child to the mother at (omitted) Airport at the conclusion of the time with the child.
(d)If the father elects to spend time with the child in (omitted), then the following shall apply:
(i) The mother shall purchase return airline tickets for the father to travel between (omitted) Airport and (omitted) Airport and shall provide proof of purchase to the father.
(ii) The mother shall book and pay for three nights accommodation for both the father and the child at a motel or hotel in the (omitted) area and:
1.The mother may specify a motel/hotel at the same time as he provides notice to the mother, pursuant to order 6B above, to a maximum value of $100 per night.
2.If the father fails to specify a motel or hotel or accommodation at the hotel specified by the father is not available, and no agreement as to an alternative reached, the mother shall select a hotel or motel.
(e)In addition to the time set out in order 6(d)(i) and (ii), the father may spend additional time with the child, conditional upon such time occurring in (omitted), and on those occasions:
(i) The father must give the mother no less than two weeks written notice informing her as to which weekend he intends to spend with the child.
(ii) The father’s time with the child shall commence at 5 pm Friday and conclude at 9 am Monday.
(iii) The father shall be responsible for the costs of his own flights and accommodation.
(iv)The parties shall affect changeover in an agreed location, but failing agreement, the mother shall deliver the child to the father at (omitted) Airport at the commencement of the child he spends with the child, and the father shall deliver the child to the mother at (omitted) Airport at the conclusion of the time he spends with the child;
(f)at any other times agreed between the parties.
The mother then seeks further orders in relation to authorities and other matters as set out in her Response.
The evidence
As is often the case, there are many facts in dispute, but the agreed facts are that the parties commenced living together in 2011, married on (omitted) 2011, separated in May 2014 and became divorced on 22 August 2015.
At the time the parties met, and until shortly after the birth of the child, both parents were members of the (employer omitted).
I have set out the child’s current circumstances previously. This too is an agreed fact. The mother has been in a relationship with her current partner Mr C, also a member of the (employer omitted), since (omitted) 2015, that is, those parties have been in a relationship since 2015.
Mr C has a 12 year old daughter who lives in (omitted) with her mother. Mr C has been posted to (omitted) effective 15 January 2018.
Mr C resides with the mother and, as a result, has a relationship with the child.
The mother must move to (omitted) or potentially risk her employment. Her posting and promotion take effect on 1 January 2018.
Most of the father’s family reside in (omitted). The child has a relationship with the paternal grandparents, sees a lot of them and other external paternal family members.
The maternal grandmother lives in (omitted), New South Wales. She has indicated an intention to move.
The facts in dispute
The father says the mother can seek another transfer or extension. The mother says she cannot.
The mother says the father has a history of mental health issues. The mother does not assert that the mental health issues are currently impacting the care of the child in the father’s care.
The mother alleges acts of family violence in 2012, 2013 and 2014. The father denies any family violence. The allegations relating to family violence relate to swearing and threats of harm if the mother took the child from the father and a controlling nature with regards to the father, and the mother says the father cannot financially support the child. The father says he can.
Turning to the section 60CC matters, the primary consideration, section 60CC(2)(a), the nature of both parents’ orders sought and the nature of their evidence satisfies me that both parents see a benefit to the child in having a meaningful relationship with each of them.
I am also satisfied that there is a benefit to the child of having a meaningful relationship with both of her parents. I am satisfied that the child has a secure loving relationship with both parents and that her relationship has real meaning.
In McCall & Clark[5], the Full Court came to the conclusion that I should adopt the prospective approach when interpreting section 60CC(2)(a), that is, I should consider and weigh the evidence at the date of the hearing and determine how, if it is in the child’s best interests, orders can be framed to ensure the child has a meaningful relationship with both parents. I will do that.
[5] [2009] FamCAFC 92
There is nothing contained within the mother’s evidence that would satisfy me that she would leave the child in the event I restrained her from relocating the child’s residence to (omitted). Indeed, submissions made by her counsel suggested that she would lose her career if I so restrained her and that it would put a strain on her relationship with her current partner Mr C.
The mother’s career and her relationship with Mr C are matters I must turn my mind to; however, section 60CA makes it clear that the best interests of the child is my paramount concern.
I cannot make a finding about the likely consequences in relation to the mother’s career in circumstances where there is a disputed fact about the mother’s ability to request alternate posting or to seek an extension.
There is so little evidence about the flow-on consequences to the mother’s relationship that I could not be satisfied that the relationship would end; indeed, both the mother and her partner provide evidence that they are committed to one another and have discussed marriage.
Section 60CC(2)(b)
With regards to the allegations concerning the father’s mental health, it should first be noted that:
(1) the mother left the child in his care for a period of six months, albeit at a time he lived with his parents, knowing of his past; and
(2) the mother conceded through counsel that she did not believe his mental health affected his ability to care for the child.
Furthermore, Exhibit 1 is an Assessment Report dated 27 October 2015 from Mr K, a registered psychologist with full membership to the Australian Psychological Society. That report satisfies me that the father was, at that time:
‘…a psychologically stable individual who is devoid of any significant psychopathology.’
Furthermore, Mr K was of the opinion that the father:
‘…bears the necessary psychological makeup to effectively and safely carry out the responsibilities expected of an officer of the law.’
In circumstances where there is no evidence submitted that could suggest the father has had episodes of mental health issues since that date, I am not satisfied that the child requires protection from him due to any mental health issues.
With regards to family violence, whilst it is alleged that there were historical incidents of family violence which are denied, the mother’s own orders being sought do not suggest that there is a need to protect the child from exposure to family violence in the father’s home.
There is no evidence that the child has been exposed to family violence in the father’s home post separation, and again it should be noted that the child lived with the father for six months, with the consent of the mother, when she was deployed to the (omitted), and after all of the alleged incidents.
In those circumstances, I am not satisfied that there is a need to protect the child from exposure to family violence in the father’s care.
The relevant section 60CC(3) matters –
(a)
the child has not been asked her views, and having regard to her young age, that is appropriate; as a result, nothing turns on this consideration at this time;
(b)
The child has a secure loving relationship with both parents.
She clearly would have a significant relationship with her paternal grandparents who she has spent a great deal of time with and lived with and who, on the evidence of both parents, have provided a good deal of support to the child.
It is not in dispute that the child spends time with other members of the paternal family who reside in (omitted) and accordingly, she would have a relationship with them.
The child would have a secure relationship with Mr C. She has lived with him for some considerable period of time.
The child has a relationship with the maternal grandmother.
The strengths of all of the child’s relationships and her primary attachment are all matters that require further assessment. I cannot make a finding as to who the child’s primary attachment is at this interim stage.
Submissions of the mother’s counsel were that the child has shown an ability to have a gap in her relationship with her father. That gap occurred at the time her father was in (omitted) undergoing (occupation omitted) training and in circumstances where the father spent time with the child almost each alternate weekend.
The same can be said with regards to the mother. The child was totally absent the mother for a period of six months and the mother provides no evidence to suggest that the child was adversely affected by that break in the relationship. Indeed, the only evidence is that after the mother returned home, the child became clingy with the father and was, for a while, unsettled in the mother’s care such that the father would attend on the mother’s home to assist in the nightly routine.
I am satisfied that this child can adapt to change, as was submitted.
(c)
The evidence establishes that both parents have taken every opportunity to participate in making decisions to spend time with the child and to communicate with the child.
(c)(a)
The mother says the father has met his obligations to maintain the child but says that this has been minimal maintenance due to his employment history. The evidence, however, satisfies me that both parents have fulfilled their obligations to maintain the child.
(d)
The likely effect of change. If the mother is remains living in the (omitted) area at this interim stage, this would provide the least impact on the child. That change would see a change in her housing and a change in her family unit, assuming Mr C will take up his posting.
If the mother moves to (omitted) without the child, this will see more of a change for the child. The child would live with her father and spend much less time with her mother. However, the mother’s evidence reveals that she can regularly travel to (omitted) to spend time with the child.
The mother says she can afford both her and the child’s airfares every two months, if the father elects to spend time with the child in (omitted); and she can afford to pay for the father’s airfare and accommodation, up to $100 per night for three nights, should he elect to spend time in (omitted).
The mother complains that the father does not have the financial capacity to maintain the child. It follows, by inference, that if I was to accept that argument, the father would not have the same ability to have a relationship with his daughter should she live in (omitted). He simply, on the mother’s case, could not afford it.
It follows, in my view, that if the mother is travelling alone to see the child, she could see the child at least as often as she is proposing the father does, and perhaps more often, given that she will only be paying for one airfare and her own accommodation.
The child would still be spending time with her paternal grandparents. In fact, living with them and seeing her paternal relatives. Her relationship with the paternal members would only strengthen and there is no evidence to suggest that this would be other than in her best interests.
The child would also be remaining in an area she is very familiar with, as opposed to a completely new area in (omitted).
If the child was to move to (omitted), this would see a significant change to many aspects of her life.
It would mean a new area, limited time with her father and paternal members of her family, a change in housing, and spending more time with Mr C’s daughter, a relationship that I know nothing about.
In my view, the child’s best interests are met by bringing about as little change as possible at this interim stage.
(e)
If the mother remains in (omitted) there will be no practical difficulty or expense involved with the child spending time and communicating with the father.
If the mother moves to (omitted), there will be an obvious practical difficulty and expense involved in the child spending time with either her father or mother. However, the mother provides evidence that she can meet that expense.
(f)
The mother says that she can meet all of the child’s needs. She says the father does not have capacity to meet the child’s financial needs. She does not dispute that the father is currently in paid employment as a probationary constable. Exhibit 4 satisfies me that he will shortly complete the requirements of his probationary period and that he is expected to be confirmed to the rank of (occupation omitted).
There is no evidence to suggest that the father has large financial commitments.
The evidence supports a finding that he has no other familial commitments or other children to support.
In those circumstances, I am of the view that it is more probable than not that the father has the capacity to meet the financial needs of the child and I am otherwise satisfied that both parents can meet the child’s emotional and intellectual needs at this stage.
(g),(h) and (i)
With regards to section 60CC(3)(g) and (h), nothing turns on this. With regards to section 60CC(3)(i), I am satisfied that both parents have an excellent attitude toward the child and to their responsibilities of parenthood.
Both have demonstrated a capacity to remain amicable and reasonably flexible for the benefit of the child.
(j) and (k)
In relation to the family violence, I have already discussed this. I cannot make any findings of fact as to whether there was family violence until all of the facts are tested.
(l),
This matter will of course continue. There will be a need for further orders.
(m)
Other facts or circumstances. As to the relocation itself, apart from the evidence of the mother that she is being posted and that she has secured housing, there is no real evidence provided about the area in which the mother proposes to move.
I do not know where the housing is. I do not know whether the child will attend daycare and, if so, whether she has a placement. I know nothing about any daycare facilities or preschool. I know nothing about Mr C’s daughter, as to how much time, if any, the child would spend with her.
In short, there is little to nothing provided that would help me, even at this interim stage, consider whether such a move could possibly be in the child’s best interest.
The thrust of the mother’s case, as I understand it, is she may lose her job and her relationship if she is restrained from relocating the child’s residence and that this is not in the best interests of the child.
Section 61DA, parental responsibility.
Both parents seek an order for equal shared parental responsibility. Section 61DA(3) provides:
‘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.’
In light of the evidence currently before me, and having assessed that the parents have good levels of communication and a reasonably amicable and flexible relationship concerning the child, I am not satisfied that there are circumstances which make an order for equal shared parental responsibility inappropriate.
I will make an order for equal shared parental responsibility. In those circumstances, the provisions of section 65DAA are triggered.
The High Court in MRR & GR[6] made it clear that it is imperative that I consider both the questions - whether it is in the best interests and reasonably practicable for the child to spend equal time with her parents and if so satisfied, consider making such an order and that if I am not so satisfied, then consider both whether it is in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with both parents, and if I am so satisfied, consider making such an order.
[6] [2010] HCA 4
These considerations must be made in circumstances where there is clear legislative intent in favour of substantial involvement of both parents in their children’s lives, subject to the need to protect children from harm, abuse or family violence.
From the outset, it should be noted that in the event the mother moves to (omitted) with or without the child, the distance this would create between the parents would make it not reasonably practicable for the child to spend equal time or substantial time with both of her parents, particularly having regard to the matters, as I must, pursuant to section 65DAA(5).
In the event the mother remains, there is no evidence other than to be satisfied that the child should remain living predominantly with the mother. There are no risks raised in the mother’s home.
In those circumstances, I must consider whether it is in the child’s best interests for her to live equally between her parents.
There are sufficient factual issues in dispute such that I could not make findings in relation to those until final hearing. Furthermore, the nature of the child’s relationship with her father and mother, and all of the other relevant adults, needs to be considered, tested and weighed.
In the event the mother remains in the area – and again, noting that this is an interim hearing only – I cannot make findings that would support such an order.
Furthermore, whilst I have made an interim finding based upon intuition and whether it is more probable than not, with reference to SS & AH[7], in relation to the co-parenting relationship, this too needs further exploration before final findings can be made.
[7] [2010] FamCAFC 13
As to whether substantial and significant time is in the child’s best interests and reasonably practicable, I note both the mother and father seek orders for substantial and significant time as defined within section 65DAA(3), at least until 31 December 2017.
The father seeks three nights in each eight-day block. The mother seeks four nights each fortnight.
The mother seeks an order for the child’s time with the father to be only weekends after (hobby omitted) lessons and on night each week overnight, provided the father gives notice in writing and is available personally to care for the child.
There is insufficient evidence at this stage to satisfy me that the father is incapable of ensuring the child attends her (hobby omitted) lessons or daycare and, in those circumstances, I do not see why the child should not spend time in accordance with the order the father seeks, as I consider those orders to be both in the child’s best interests and reasonably practicable.
Having considered and weighed all of the evidence, I am satisfied that a restraint on the movement of the child at this stage, bearing in mind the interim nature of the hearing, is most likely to facilitate the making of orders that can ensure that the child has a meaningful relationship with both parents.
Of course, I cannot order the mother to remain living here, see U v U,[8] and also section 92 of the Australian Constitution regarding freedom of movement. I cannot order the mother to live anywhere.
[8] (2002) 211 CLR 238
If she chooses to relocate on an interim basis, then it will be her choice to interfere with her relationship with her child, not mine.
In the event the mother does relocate, I have made orders providing as much time with the child as is reasonably practicable, having regard to the mother’s own evidence regarding her financial capability and noting the distance between the parents’ homes should she move. However, as I said earlier, it seems the mother will stay here. The child’s best interests are met in those circumstances.
Even if the mother decides to relocate, I have found it is in the child’s best interests to remain in this area at this interim stage until all of the relevant evidence can be put before the Court, tested, considered and weighed.
Again, I must defer to the child’s best interests and it is her interests that are my paramount concern. I have outlined in my judgment why I consider it in the child’s best interests for a restraint to be made at this interim stage.
I am satisfied that for the reasons set out, the following orders are in the child’s best interests.
I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Judge Middleton
Date: 30 January 2018
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Jurisdiction
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Procedural Fairness
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Remedies
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Standing
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