RAY & SANCHEZ
[2011] FMCAfam 1395
•20 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAY & SANCHEZ | [2011] FMCAfam 1395 |
| FAMILY LAW – Parenting – principles to be applied to parenting matters including proposed relocation – intrastate relocation – issues of practicality – best interest considerations – relevant evidence in relation to Mother’s isolation and lack of support. FAMILY LAW – Property – modest length relationship – weight to initial contributions – young child to live with Mother – s.75(2) factors. |
| Evidence Act 1995 (Cth), ss.131(2)(d), (g), (i) Family Law Act1975 (Cth) ss.60B, 60CA, 60CC(1)-(3), 61DA, 65DAA(1)-(5), 75(2), 79(2) |
| Ahcraft v Haber [2010] FamCA 6 B. Fehlberg & J. Behrens, Australian Family Law: The Contemporary Context, (Melbourne: Oxford University Press, 2008) J. Behrens, “U v U: The High Court on Relocation,” (2003) 27 Melbourne University Law Review 572 |
| Applicant: | MR RAY |
| Respondent: | MS SANCHEZ |
| File Number: | CAC 491 of 2011 |
| Judgment of: | Neville FM |
| Hearing dates: | 19 & 20 October 2011 |
| Date of Last Submission: | 25 November 2011 |
| Delivered at: | Canberra |
| Delivered on: | 20 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Tonkin |
| Solicitors for the Applicant: | Evans Family Lawyers |
| Counsel for the Respondent: | Self-represented Litigant |
| Solicitors for the Respondent: | N/A |
ORDERS
The parties have equal shared parental responsibility for the child [X] born [in] 2009 (‘the child’).
The child live with the Mother.
The Mother be permitted to relocate to Sydney, New South Wales. The Mother is not permitted to relocate before 1st July 2012.
Both parties enrol in and attend upon a parenting course with a focus on communication. The Mother is to complete such a course prior to relocation.
Prior to relocation, parenting arrangements will be as follows:
(a)For the next three months, there should be no change in arrangements.
(b)For the following three months (and until the Mother and the child relocate to Sydney), the child should move to a 5/9 arrangement in favour of the Mother. During the time that the child is with her Mother, in the absence of agreement, there should be one ‘Skype session’ with the Father per week, the times for which are to be negotiated between the parties.
Upon relocation, the child spend time with the Father as follows:
(a)Each alternate weekend from Friday until Monday, at times to be agreed between the parties and failing agreement, from 4:00pm on Friday until 9:00am on Monday.
(b)Such additional and alternative times as agreed between the parties;
(c)Once the child commences school, for one half of all school holidays except for the Christmas holidays, when the child will spend a pattern of time with each of the parents as agreed which will constitute one half of the holidays.
(d)In the absence of agreement, there should be one ‘Skype session’ with the Father per week, the times for which are to be negotiated between the parties.
For the purpose of Order 6 above, the Mother and Father will meet at a mutually agreed time and location.
Within 60 days of the date of these Orders, the Wife pay the Husband the sum of $95,321.00.
Within 60 days of the date of these Orders, the parties join and do all acts and things and sign all documents necessary in order to effect the transfer of the property situated at and known as Property D, [D], in the Australian Capital Territory being all the piece or parcel of land contained in certificate of title [omitted], to the Wife.
Simultaneous with Order 9, the Wife will transfer into her name or discharge the mortgage registered against the [D] property and indemnify the Husband and keep him indemnified with respect to that liability.
In the event that the [D] property is not kept pursuant to these orders, it is to be sold and the net proceeds are to be divided 54% to the Husband and 46% to the Wife.
Simultaneous with the settlement of the transfer of the [D] property pursuant to Order 9, both parties will join and do all acts and sign all documents as may be necessary in order to effect the transfer of the property situated at Property G, [G], New South Wales being all of the piece and parcel of land contained in certificate of title [omitted], to the Husband.
Simultaneous with Order 12, the Husband will transfer into his name or discharge the mortgage registered against the [G] property and indemnify the Wife and keep her indemnified with respect to that liability.
Within 7 days of the date of these Orders, the Wife make available for collection by the Husband his personal items and contents in the matrimonial home.
That unless otherwise provided in these Orders, each party be declared the sole and absolute owner to all items of personal property, furniture and effects in the name of that party or in the possession of that party at that date of these Orders, including but not limited to bank accounts, shares, life insurance policies, motor vehicles and entitlements to superannuation.
Subject to these Orders, each party be solely responsible for all liabilities in their name as at the date of these Orders and indemnify the other party and keep them indemnified with respect to those liabilities.
As provided by section 106(A) of the Family Law Act1975, if either party refuses to or neglects to comply with the direction to execute any deed, documents, instrument or writing to give effect to these orders within 14 days of being called upon to do so, that a Registrar of the Federal Magistrates Court of Australia is appointed to execute the deed, document instrument or writing in the name on the person to whom the direction was given and to do all acts and things as necessary to give validity to the deed, document, instrument or writing.
These Orders are binding upon the executors, administrators, beneficiaries, heirs and assigns of the parties.
IT IS NOTED that publication of this judgment under the pseudonym Ray & Sanchez is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 491 of 2011
| MR RAY |
Applicant
And
| MS SANCHEZ |
Respondent
REASONS FOR JUDGMENT
Introduction
This is, primarily, a parenting case that involves a relatively young child, [X], who is aged approximately 2½.[1] The parenting matter has the added dimension that [X]’s Mother, the Respondent to the proceedings, wishes to relocate from Canberra to Sydney.
[1] [X] date of birth is [omitted] 2009.
For the reasons that follow, in my view, she should be able to do so (a) to provide the full-time care of her daughter, and (b) to live with and marry her partner, Mr C, who is employed in a well paid and somewhat unique, indeed quite specialised, job that involves [omitted] in Sydney.[2] Ms Sanchez confirmed in evidence her intention to have a child (or children) with him. Mr C confirmed this to be his intention also. Both Ms Sanchez and Mr C confirmed that she would be a ‘stay at home’ Mother to [X], and to the future children of the relationship.
[2] Generally, see Transcript (19th October 2011) pp.77 ff. Hereafter, unless otherwise required, transcript references will be in the following form: “T followed by the relevant page number.” Both parties have re-partnered, and both have been in a relationship with their respective partners for approximately 12 months.
Mr Ray has also re-partnered. His partner, Ms M, like Mr C with
Ms Sanchez, confirmed that she intended to have children with
Mr Ray.[3] Currently she works full-time in the same government department as Mr Ray – on which more later. She has two daughters from a previous relationship, aged 14 and 8.
[3] Mr Ray confirmed the same intention. See T 41.
Stated briefly if not summarily, and I hope not too bluntly, the decision comes down to a choice between (a) [X] living with her Mother in Sydney where she will be able to be a ‘full-time, stay-at-home Mum’ because of her relationship with Mr C who is able to support her financially as well as emotionally, and spending regular time in Canberra with her Father, or (b) [X] continuing to live with her Mother, and spending time with her Father but with her Mother residing in Canberra, where her Mother is required to work full-time, but where she feels totally isolated and unsupported. It is also not disputed that, if Ms Sanchez is required to remain in Canberra, because both parents are, and would be, working full-time (on Ms Sanchez’s evidence, it would not be her choice to work full-time), on the evidence of both parties, [X] would be in full-time care.[4]
[4] See, for example, the evidence of Mr Ray at T 23 & 29.
In the light of the evidence before the Court, I am confident that
Ms Sanchez will continue to facilitate and promote [X]’s relationship with the Applicant Father. Contrary to suggestions that she has not done so (and will not do so), Ms Sanchez has facilitated and promoted [X]’s relationship with her Father in circumstances – outlined briefly later in these reasons – that have been trying, if not genuinely arduous on many fronts, not least being her emotional frailty and fragility. Indeed, there is no dispute that [X] has a good and close relationship with both her parents.
The parties also seek various property orders that arise from their relationship of approximately 6 years. The primary focus at trial, however, was on parenting matters.
I have already mentioned that there is an application to relocate. It is convenient if I deal with some of the basic principles in such applications at the outset, before dealing with the brief evidence of the parties.
A. Relocation (& Evidence): preliminary observations
I have discussed previously the vagaries of descriptors such as “relocation cases”. I note the following general comments, which are taken from the relatively recent decision of McAuliffe & Davies. [5] In that case, I said, at [2] – [10]:
[5] McAuliffe & Davies [2010] FMCAfam 1481.
[2] Superior courts insistently proclaim that there are no such things as ‘relocation cases.’ Rather, such courts maintain that ‘relocation cases’ are merely or simply (but of course importantly) a species of the genus known as ‘parenting cases’ and that there are no particular or unique principles that apply to them other than those set out in Part VII of the Family Law Act 1975 (“the Act”).[6]
[6] See, for example, as but one very recent statement in this regard, Cowley v Mendoza (2010) 43 Fam LR 436 at p.443 [31] (Murphy J). More recently still, Kent J took a decidedly different approach in Heath & Hemming [2011] FamCA 749, and noted, at [81], his divergence from that adopted by Murphy J in Mendoza. For recent appellate discussion, see the Full Court decisions in Starr & Duggan (2009) FamCAFC 115 (Boland, Thackray & Watts JJ) at [33] ff., and McCall v Clark (2009) 41 Fam LR 483 at [57] – [62] & [69] cf. Kirby J’s elaboration of nine principles that apply to “relocation of a child’s residence – general principles” in AMS v AIF (1999) 199 CLR 160 at pp.206-211 [141] – [150], admittedly in a different legislative context to that in which the decisions of the Family Court of Australia to which I have referred have been made.
[3] Accepting, unquestioningly, the correctness of this direction/ admonition, nonetheless, learned text writers and those responsible for various ‘practice text-books’ continue to deal with ‘relocation cases’ as a discrete field of inquiry, often, but not always, in the context of parenting cases and the jurisprudential principles applicable thereto.[7]
[7] See, for example, the following representative sample of leading texts: P. Parkinson, Australian Family Law In Context: Commentary & Materials, (Fourth Edition) (Sydney: Lawbook Co., 2009) “Relocation Disputes” [23.140] – [23.170]; B. Fehlberg & J. Behrens, Australian Family Law: The Contemporary Context, (Melbourne: Oxford University Press, 2008) “Relocation Disputes” [6.9.4]; L. Young & G. Monahan, Family Law in Australia, (Sydney: LexisNexis Butterworths, 2009) “Relocation Cases” [8.120] – [8.129].
[4] It is also not inapt to suggest that relocation cases have spawned, and continue to provide, a fertile field of academic inquiry such that one might be tempted to suggest that something of a cottage industry has developed in attempts to divine and analyse how and why decisions are made (and the facts, factors and principles that led to the particular result) in such cases.[8] This is so, notwithstanding many (respectfully) unequivocal, straight-forward and otherwise pellucid observations as to what happens in such trials. Thus, for example, in AMS v AIF, Kirby J simply observed that there is, in such cases, a “large element of judgment, discretion and intuition.”[9]
[8] The following is but a small sample of important studies: J. Behrens, “U v U: The High Court on Relocation,” (2003) 27 Melbourne University Law Review 572; P. Parkinson, “Freedom of Movement in an Era of Shared Parenting: The Differences in Judicial Approaches to Relocation,” (2008) 36 Federal Law Review 145; P. Parkinson, “The Realities of Relocation: Messages from Judicial Decisions,” (2008) 22 Australian Journal of Family Law 35; P. Easteal & K. Harkins, “Are We There Yet? An Analysis of Relocation Judgments in Light of Changes to the Family Law Act,” (2008) 22 Australian Journal of Family Law 259. Indeed, studies continue apace – thus: B. Horsfall & R. Kaspiew, “Relocation in separated and non-separated families: Equivocal evidence from the social science literature,” (2010) 24 Australian Journal of Family Law 34; J. Behrens, B. Smyth & R. Kaspiew, “Outcomes in relocation decisions: Some new data,” (2010) 24 Australian Journal of Family Law 97; R. Chisholm, “Unacceptable risk and relocation issues: Partington v Cade,” (2010) 24 Australian Journal of Family Law 115.
[9] AMS v AIF (1999) 199 CLR 160 at p.211 [150].
[5] In the same case, Hayne J said (internal citations omitted):[10]
[10] AMS v AIF 199 CLR at p.228 [204] & [205]. Of course, the comments by both Kirby & Hayne JJ are in a legislative context different to that which operates today. Accepting that qualification, respectfully, their Honours’ comments, in my view, are nonetheless important.
[204] The problems that family law legislation deals with are human problems: with all their attendant variety and complexity. And at the end of a court proceeding under such legislation, a judge must make an order - usually an order that says yes or no to some application. "[A] complicated mass of human experience has to be reduced to the simplest possible terms." Because the problems are human problems, because they are as varied and complicated as they are, the legislature speaks in terms more often found in statements of aspiration than legal prescription. It is, then, hardly surprising that the guiding principles prescribed by the legislation for application in cases concerning the guardianship or custody of children or related issues, are principles that seldom, if ever, permit syllogistic reasoning.
[205] Further, when considering the reasons given by a judge who has made an order in an application about the guardianship or custody of children, it is necessary to bear steadily in mind that the judge must grapple with the chaotic complexity of real life, make predictions not only of what he or she concludes may happen in future but also of what will be "best" for the child, and do so having regard to what the parties have chosen to contest or emphasise in the course of the hearing.
[6] Somewhat more recently, Warnick J said:[11]
In most cases about parenting orders under the Family Law Act there is no conceptual difficulty in the court applying the principle that the best interests of the child are the paramount consideration. However, that is not so when deciding upon orders in what have become known as “relocation cases”. That is because, when in relocation cases regard is also had to another consideration, namely the right to freedom of movement of a parent, a delicate interplay of concepts arises. That is on the most favourable view of it. On another view, that to which I incline, the result is an imbroglio of principles.
[7] Respectfully, I agree with his Honour, and the earlier statements of the High Court to which I have referred.
[8] In a number of respects, it seems to me that the concerns and observations that I have noted reflect the varied interplay of facts, circumstances, legal principle and discretion which are the warp and woof of all trials. Such matters were more elegantly and fulsomely put by the High Court in the joint judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy in that Court’s consideration of appellate intervention. Their Honours said (internal citations omitted):[12]
On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
[9] Two other preliminary comments are important to record here also. First, the Full Court observed in Wiley & Wiley (a “relocation case”):[13]
... it has to be remembered that no two cases which involve the possibility of children being moved from their established residence and from one of their parents will ever present in an exactly identical way to the judge or Federal Magistrate who has to determine such cases. In every such case, issues peculiar to that case will arise. Moreover, no two judicial officers will necessarily see the issues arising in any particular case as capable of treatment (for example within the framework of the provisions of s 65DAA) in exactly the same way.
[10] Secondly, in U v U, Kirby J emphasised the importance to consider the long-term interests of the child rather than just focusing on the short term.[14]
[11] B & B (2006) FamCA 1207 at [1]. Warnick J was sitting as the Full Court, pursuant to s.94AAA of the Act.
[12] Fox v Percy (2003) 214 CLR 118 at pp.125-126 [23]. See also the extensive discussion by McHugh J in the same case at [65] – [93].
[13] Wiley & Wiley (2008) FamCAFC 153 at [70].
[14] U v U (2002) 211 CLR 238 at p.283 [164]. His Honour said: “It is also highly desirable that courts, such as this Court and the Family Court of Australia, should consider such [relocation] cases in accordance with principles that are consistent, conformable to like legislation and attentive to the paramount consideration of the best interests of the child, viewed in the long term and not just the short term.”
Later in these reasons I consider these principles in the light of recent Full Court decisions, notably Sigley v Evor, which involved an “intrastate relocation”, which may be an apt description of the proposed relocation in this case from Canberra to Sydney.[15]
[15] Sigley v Evor (2011) 44 Fam LR 439. See also Edelman & Ziu (No.2) [2010] FamCAFC 236.
I move to the ‘orders sought’, followed by a consideration of the parties’ evidence.
B. Orders Sought
The parties’ respective ‘orders sought’ are as follows.
Orders sought by the Father
Parenting Orders
1.That the child namely, [X], live in a shared equal time arrangement as follows:
a.In week one from after preschool Wednesday to the commencement of preschool Monday with the Father;
b.In week two from after preschool Wednesday to the commencement of preschool Friday with the Father;
c.At all other times with the Mother.
2.That the parties have equal shared parental responsibility of the child.
3.That the parties spend time with the child at such other times as may be agreed.
4.Both parties be restrained from relocating the child’s permanent residence outside of the ACT region.
Property Orders
5.Within 60 days of the date of these Orders, the parties join and do all acts and things and sign all documents necessary in order to effect the transfer of the property situated at and known as Property D, [D], in the Australian Capital Territory being all the piece or parcel of land contained in certificate of title [omitted], to the wife.
6.Simultaneous with Order 5, the wife will discharge the mortgage registered against the [D] property and indemnify the husband and keep him indemnified with respect to that liability.
7.Simultaneous with the settlement of the transfer of the [D] property pursuant to Order 5, both parties will join and do all acts and sign all documents as may be necessary in order to effect the transfer of the property situated at Property G, [G], New South Wales being all of the piece and parcel of land contained in certificate of title [omitted], to the Husband.
8.Simultaneous with Order 7, the husband will discharge the mortgage registered against the [G] property and indemnify the wife and keep her indemnified with respect to that liability.
9.That simultaneous with Order 5, the wife is to pay the husband the sum of $126,000.
10.Within 7 days of the date of these Orders, the wife make available for collection by the husband his personal items and contents in the matrimonial home.
11.That unless otherwise provided in these Orders, each party be declared the sole and absolute owner to all items of personal property, furniture and effects in the name of that party or in the possession of that party at that date of these Orders, including but not limited to bank accounts, shares, life insurance policies, motor vehicles and entitlements to superannuation.
12.Subject to these Orders, each party be solely responsible for all liabilities in their name as at the date of these Orders and indemnify the other party and keep them indemnified with respect to those liabilities.
13.As provided by section 106(A) of the Family Law Act 1975 if either party refuses to or neglects to comply with the direction to execute any deed, documents, instrument or writing to give effect to these orders within 14 days of being called upon to do so, that a Registrar of the Federal Magistrates Court of Australia is appointed to execute the deed, document instrument or writing in the name on the person to whom the direction was given and to do all acts and things as necessary to give validity to the deed, document, instrument or writing.
14.These Orders are binding upon the executors, administrators, beneficiaries, heirs and assigns of the parties.
Orders sought by the Mother
Parenting Orders
1.That the parents have equal shared parental responsibility for the child, [X] born [in] 2009.
2.That the child live with the Mother.
3.That the Mother be permitted to relocate to Sydney, NSW.
4.That the child spend time with the Father as follows:
4.1Each alternative weekend from Friday until Monday, at times to be agreed between the parties and failing agreement, from 4pm on Friday until 9am on Monday.
4.2Such additional and alternative times as agreed between the parties;
4.3Once the child commences school, for one half of all school holidays except for the Christmas holidays, when the child will spend a pattern of time with each of the parents as agreed which will constitute one half of the holidays.
5.For the purpose of Order 4 above, the Mother and Father will meet at a mutually agreed time and location.
Property Orders
6.That the property of the parties, including superannuation, be divided such that the wife receives 60% and the husband receives 40%.
C. Evidence of the Parties
It should be noted at the outset that the evidence given by both parties was very limited. I do not say this critically. Nor was the brevity of the evidence simply or solely because Ms Sanchez was a self-represented litigant, and thus she did not cross-examine her former husband at any great length. The experienced Counsel for Mr Ray was even more succinct than usual.
In dealing with the evidence of each party, I will traverse both parenting and property matters, noting (as I have previously said) that the decided emphasis at trial was on parenting.
Also by way of introduction, the following factual matters are not controversial.
The Applicant, Mr Ray, is 33 years old; the Respondent, Ms Sanchez is 30 years old. They were in a relationship between 2004 and 2010. They married in 2008. The only child of the relationship is [X], who is now aged approximately 2½ years. I do not understand there to be any health issues for either of the parties.
Mr Ray works in the public service and earns approximately $84,000 per annum. Ms Sanchez works as a [omitted] and earns $77,472. One of her recent payslips became Exhibit A. Mr Ray’s partner also works in the public service and is on a similar pay level as Mr Ray. Ms Sanchez’s partner, Mr C, earns just on $155,000 per annum, exclusive of bonuses, which can range between 17.5 – 25% depending on his Employer’s Performance rating.
But for a very small number of matters, noted below, the asset pool is agreed between the parties. A table of assets and liabilities is also set out later in these reasons.
Evidence of Mr Ray (Parenting): The overall gravamen of the Father’s evidence was that, if Ms Sanchez was permitted to move to Sydney, and if the Court acceded to the Mother’s proposed orders of a four day week-end, each alternate week, it would not be sufficient to sustain his acknowledged good relationship with [X].[16] He also contended that he doubted that Ms Sanchez would maintain or adhere to the regime that she proposed.[17] For reasons noted below, I do not accept Mr Ray’s contention in this regard.
[16] T 20. Mr Ray maintained that [X] was not developmentally ready or equipped to use media such a Skype to communicate with him. See T 20. On the contrary, Ms Sanchez gave evidence that [X] uses Skype three times per week with her parents, who live in the [omitted] region, as well as using Skype to communicate with Mr C once per week. At the same time, Ms Sanchez acknowledged that [X]’s attention span, on Skype or even face-to-face, is somewhat limited, given her age. See T 70.
[17] T 20.
One of the issues canvassed briefly with Mr Ray was that there were significant communication difficulties between the parties. That said, Mr Ray acknowledged that Ms Sanchez had not denied him any time with [X], and had, in fact facilitated or accommodated a situation where [X] stayed with her Mother while Mr Ray had a work commitment off-shore.[18]
[18] T 22-23, 25 & 73. Mr Ray works with [omitted].
The communication difficulties need to be seen from two other perspectives. First, whenever there has been a genuinely significant issue involving [X] (e.g. a significant injury), both parties agree that they have been and are able to communicate, and do so thoroughly and well.
The second perspective is important and needs to be considered at a little length. It is relevant to other issues also.
Mr Ray testified that Ms Sanchez had long had issues in relation to anger as well as significant anxiety.[19] He also confirmed that he and Ms Sanchez had different parenting styles. And, he said, [X] was a settled and untroubled child when she was in his care.[20] The evidence of Ms Sanchez, which seemed relatively unchallenged, was that [X] had much greater difficulties settling whilst in her care.[21]
[19] T 25.
[20] T 28.
[21] See, for example, T 64 & 65.
Another important, albeit somewhat reluctant or qualified, acknowledgement by Mr Ray was that if Ms Sanchez was not permitted to relocate she would likely be even more distressed than she currently is, which would impact adversely on her parenting.[22] In my view, this was a very fair and proper acknowledgement by Mr Ray, even if given with some diffidence, or essentially as a “possibility.”
[22] T 24.
In his trial affidavit, filed on 6th September 2011, he confirmed, among other things, that he had been notified by Ms Sanchez that she wished to discuss with him that she wished to move to Sydney, and that this was because she ‘was not coping in Canberra on her own.’[23] In the same affidavit, Mr Ray said (at paras.21 & 22) that the “combination of a new baby, new job and the additional stress led to many arguments in the home, including when [X] was present. Rather than letting the situation become intolerable for both [Ms Sanchez] and I, I chose to leave the home and moved to my parent’s home in April 2010. … In July 2010 I commenced a relationship with Ms M, whom I had known from work and had met several years earlier.”[24]
[23] See the Father’s trial affidavit at para.39.
[24] In his later evidence at trial, Mr Ray confirmed that he and his new partner work in the same government department, and that they are both on the same public service pay level.
Mr Ray’s description of events is at a significant level of generality. Indeed, there was significant economy in his affidavit material in certain respects; he was also quite discreet. In fact, in the light of what follows, it could be said that it conceals (but with no mala fides) more than it reveals. It certainly masks or hides a number of significant matters. In my view, they are important matters and are best explained as follows.
Towards the end of Ms Sanchez’s cross-examination she said, with very significant force, that she loved her husband (Mr Ray), that he had left her in the predicament that she is currently in (of being in Canberra, largely unsupported and being a single Mother having to work full-time), and that she is angry towards Mr Ray and remains so.[25]
[25] See T 77.
In the light of her evidence, and the benign description in his affidavit of the commencement of Mr Ray’s relationship with his current partner, Ms M, I requested Mr Ray to return to the witness box. In the light of questions I put to him, to his credit, Mr Ray readily acknowledged that he had had an intimate relationship with Ms M prior to the end of his relationship with Ms Sanchez. This piece of the various ‘relationship puzzles’ explained a number of things, not least being the anguish and anger of Ms Sanchez towards Mr Ray. The parenting tensions between the parties are also put into better and more complete context by this historical revelation.[26] It certainly put
Mr Ray’s contention that Ms Sanchez has long had issues of anger and anxiety into a rather better perspective.
[26] The extra-marital affair of Mr Ray had been noted in the family consultant’s second report, Exhibit B2, at para.4.8.
In this regard, I note the following. According to the second family report (at para.4.1), Mr Ray contended that his relationship with
Ms Sanchez was volatile and conflictual from its beginning in 2004 and throughout the marriage, that the marriage was a mistake, which he had known prior to the marriage in 2008, and that he was a dutiful and placatory husband.
From my observation of him during the trial, I would not have regarded Mr Ray as placatory. This is to say that I do not see him as a deprecating, submissive person. He would be, in my view, much more likely to be an assertive person. I do not say this in any critical way. Moreover, there is no such observation in either of the two reports of the family consultant that would tend to support the contention regarding the mien and demeanour he describes. But there are statements recorded by the family consultant very much the other way. Further, Mr Ray did not strike me as a person who would, on his claim to the family consultant, somewhat meekly endure what he described as a volatile, if not oppressive, relationship, for nigh on four years, then decide, against his better judgment, to marry Ms Sanchez, and later still, to have a child with her. In my view, his claims to the family consultant do not ring true.
Similarly, it seemed not disputed by anyone that Ms Sanchez had a good relationship, at least with Mr Ray’s Mother. Indeed, it was strongly argued by his Counsel that Ms Sanchez was not isolated in Canberra as she claimed and that she could call upon the maternal Grandmother for assistance. Yet, to the family consultant, in her second report, at para.4.1, Mr Ray contended that “Ms Sanchez has huge issues with my family.”
Respectfully, Mr Ray cannot claim, on the one hand, that Ms Sanchez has ‘huge issues with his family’, and on the other, contend that
Ms Sanchez is not isolated in Canberra because she can call upon his family (especially his Mother) to assist. He cannot argue both ways. The inconsistency of his evidence in this regard was patent.
Of very great significance in my view, against this background of betrayal and anger – I say this in no formal, or other, condemnation of Mr Ray, but rather to capture in part Ms Sanchez’s disposition –
Ms Sanchez has, on Mr Ray’s own evidence, promoted [X]’s relationship with her Father, and makes no complaint about [X]’s care when with her Father (or his family). Indeed, she lauds the support of Mr Ray’s family to him and their affection for [X].[27] I accept unreservedly (for reasons noted further below) Ms Sanchez’s evidence that she acknowledges the importance and closeness of [X]’s relationship with her Father, and her intention to continue to promote it.[28]
[27] T 61, 61 & 69.
[28] Among other places, see T 58.
It is also clear to me that, notwithstanding her patent sense of betrayal and ongoing anger, Ms Sanchez has properly not allowed those sentiments and emotions to intrude, or to do so unduly, on [X]’s relationship with her Father. I have already indicated that, in my view, Ms Sanchez will continue to properly promote and facilitate [X]’s relationship with her Father even after her move to Sydney. However, as I note below, the impact of the breakdown of her marriage with
Mr Ray and the circumstances that gave rise to it clearly have had an on-going effect on Ms Sanchez, and which has also affected (to a degree) her parenting of [X]. The Family Consultant’s evidence is relevant in this regard, which I consider later in these reasons.
One matter that was canvassed with Mr Ray (and later with
Ms Sanchez) at not a little length, in my view, was something of a storm in a tea-cup, but which, nonetheless, could be taken as a cameo of the parenting issues on display. It concerned “chewing gum.”
Mr Ray contended that Ms Sanchez, who is a [occupation omitted], used chewing gum as a means to suppress or otherwise ameliorate [X]’s tantrums.[29] As it turned out, this evidence was solely on the basis that, in the course of the meeting with the Family Consultant, [X] had rummaged in her Mother’s handbag and found some chewing gum. Ms Sanchez confirmed that, both as a [occupation omitted] and as a Mother, she does not routinely give [X] chewing gum.[30]
[29] T 22.
[30] T 60 & 61.
In my view, the ‘chewing gum’ issue was disproportionately stressed by Mr Ray. I accept his concern. I accept however the circumstances under which it occurred. I accept Ms Sanchez’s explanation. In no way disparagingly, unless otherwise stated on a specific matter, I prefer the evidence of Ms Sanchez to that of Mr Ray on this and other issues pertaining, in particular, to parenting.
The final matter to note relates to a matter of evidence. It arose this way.
In Ms Sanchez’s trial affidavit, filed on 7th September 2011, she referred to what she described (using my term) as Mr Ray’s unpredictability.[31] She said that he often changes his mind. She also said (at para.93) that she had learnt from members of Mr Ray’s family that he had separated recently from his current partner at least twice. This latter contention (i.e. the separation) was not formally challenged. Matters relating to the former aspect noted (i.e. the unpredictability of Mr Ray) were.
[31] See para.86 of Ms Sanchez’s affidavit filed 7th September 2011.
Annexure H to Ms Sanchez’s affidavit is email correspondence from Mr Ray to Ms Sanchez dated 31st August 2011. At the time of sending it, Ms Sanchez confirmed that she was no longer legally represented; Mr Ray has always been legally represented in the proceedings. The correspondence deals with an “offer” by Mr Ray to permit Ms Sanchez move to Sydney with [X]. It deals with some other matters also, which I need not address.
Mr Ray was asked a number of questions by Ms Sanchez in relation to this email and his ‘offer’ to allow her to relocate with [X] to Sydney.[32] There was no objection to any of those questions. Mr Ray indicated that he had sent the email at a time of heightened distress on his part following a disagreement with his partner and a [brief] separation from her.
[32] See T 25 – 26.
Curiously, this attachment was not in Mr Ray’s Counsel’s brief. Objection to the Court having any regard to Annexure H (and Annexure I, which are draft terms of settlement) was raised only after Mr Ray had answered the questions to which I have referred.
In the event, Counsel for Mr Ray made an application that both annexures be excluded from the evidence before the Court pursuant to s.131 of the Evidence Act1995 (Cth).[33] While nice, legal questions arise as to whether any (or all) communication between parties themselves, but at least one of whom is legally represented, necessarily and ineluctably fall into the same category as formal settlement discourse between lawyers in relation to settlement, and whether the correspondence between the parties might otherwise be admissible under one or more of the exceptions in s.131 (e.g. s.131(2)(d), (g) or (i)), it was not apposite in the circumstances of the matter to proceed with a consideration of any of those exceptions.[34] This was so primarily because Ms Sanchez was a self-represented litigant and the capacity to argue any of those exceptions was necessarily severely constrained.
[33] T 34 – 35.
[34] A further ground for admission of the documents might have been on the basis of whether Mr Ray, in fact, had waived any claim for ‘privilege’ by communicating with Ms Sanchez directly when he was legally represented.
As it happened, one of the Duty Lawyers from the ACT Legal Aid office was in the Court precisely at the time when this matter arose. I requested the Duty Lawyer to provide Ms Sanchez with advice in relation to the matters of evidence that had been raised concerning the annexures to her affidavit. I briefly adjourned to allow that advice to be provided. Upon the Court resuming, Ms Sanchez did not press reliance upon the annexures.
On one level, Ms Sanchez recognised and readily accepted the problem, which clearly was not of her making (nor of anyone else in the Court). She agreed to those annexures being excluded from the evidence. At the same time, understandably she was genuinely puzzled how and why Mr Ray’s comments, which she took to be genuinely made, could not be used to assist her in her case.
I should also note that there was no application by Counsel for Mr Ray that I disqualify myself from continuing to hear the matter.
Following further discussion, formally I ruled that the annexures in question be excluded. For the record, in relation to these reasons and the orders made consequent on them, I have had no regard to those annexures, or the questions and answers that surrounded them at trial.
Mr Ray & Property: The only matters traversed in relation to property were as follows.
First, there was brief discussion over the value of a Honda car now in Ms Sanchez’s possession. It was originally suggested that its value was $4200. In the light of the discussion with Counsel, and the competing value proposed by Ms Sanchez, in my view, the Court is entitled (as Counsel agreed) to split the difference in the competing values sought. Thus, the value of the vehicle will be taken to be $2500.
The second issue related to the status of certain funds and gifts provided to the parties by Mr Ray’s parents. Those gifts included a motor bike (originally) worth $9000, and a boat (originally) worth $4900. Further, a sum of $20,000 was provided to the parties by
Mr Ray’s parents for a holiday taken by the parties.
In his trial affidavit, at para.77, Mr Ray said that to the best of his knowledge approximately $8000 had been repaid to his parents. He said: “I cannot recall the amount of any other sums that may have been applied to the discharge of the loans.” Again, the brevity or economy of the statement belies the reality of the situation.
Helpfully, Counsel for Mr Ray clarified the situation in relation to the $20,000. Through questions to Mr Ray, he confirmed that his Father forgave this “loan.”[35]
[35] See T 17.
The final property-related evidence concerned the former marital residence in the Canberra suburb of [D]. Again in his trial affidavit, at para.79, Mr Ray swore that that purchase was funded (in part) by a ‘loan’ from his parents for the deposit in the sum of $38,500. Again, it is unfortunately not clear in his affidavit whether that sum was by way of a loan or a gift from his parents. All his affidavit says is: “… The purchase was funded by a $38,500 cash amount from my parents who paid the deposit. …”
In Ms Sanchez’s trial affidavit, at para.112, she contended that the purchase price of the [D] property was $357,500 and that Mr Ray’s parents “gifted” the deposit of $35,000 for it. Without ascribing figures to it, she also contended (and was not cross-examined on it) that she, together with borrowings from her parents, paid the stamp duty on the [D] property. She said that she has since paid back her parents, but again without giving details.
Ms Sanchez also said, at para.114 of her trial affidavit, that the motor bike to which reference has been made was in fact purchased via a
re-draw facility from the parties’ joint home loan. Ms Sanchez was not cross-examined on this contention. I understand that the motor-bike (or its replacement) and the boat remain in Mr Ray’s possession.
Ms Sanchez's Evidence (Parenting): Ms Sanchez confirmed that she did not intend to move to Sydney immediately.[36] That said, she would prefer to be able to do so sooner rather than later. Among other things, in the light of the Court orders, it is going to be necessary for a little time at least for her partner, Mr C, to purchase a larger residence. He currently resides in a single bedroom apartment.
[36] Mother’s trial affidavit, para.94.
Given the nature of and grounds for her application to relocate, much of Ms Sanchez’s cross-examination focussed on those matters, namely her claims of isolation and lack of support in Canberra, her intention to live in Sydney, marry Mr C and have more children, and be a ‘stay-at-home’ Mother for [X] (and any future children).
Contrary to suggestions by Counsel for Mr Ray that she had many friends in Canberra, Ms Sanchez maintained that in fact she had few friends in the national capital. She had a not insignificant number of what she described as “[work] colleagues” and acquaintances. Indeed, at her 30th birthday party, she confirmed that of the 40 or so people who were present, only about six guests were from Canberra. The rest were from Sydney.[37] I have no reason not to accept her evidence in this regard.
[37] T 46 – 47.
I have already noted that Ms Sanchez confirmed that, to a degree, [X] remains rather unsettled in her care, whereas Mr Ray maintains that she is quiet and co-operative when she is in his care.[38]
[38] T 52 & 63.
Ms Sanchez confirmed that, very occasionally, she had sought baby-sitting assistance from the paternal Grandmother. However, her evidence was that the last time this occurred in July 2011, she
(Ms Sanchez) suffered quite some ‘back-lash’ from Mr Ray who, she said, called her repeatedly saying words to the effect of “how dare you ask my Mother to intervene.’[39]
[39]After confirming that one of her reasons for seeking to relocate was because she was “extremely unsupported” in Canberra, Ms Sanchez confirmed that, while she would prefer to move to Sydney sooner rather than later, she wished to work on her relationship with Mr Ray before doing so.[40] Neither parent has yet done a parenting course.
Ms Sanchez also volunteered that she wished to ‘sit down with
Mr Ray’s partner’ to work out appropriate communication between the two households.
[40] T 55 – 56.
In my view, both parties need to attend a parenting course, particularly one that has a focus on communication. Ms Sanchez must attend such a course prior to her move with [X] to Sydney. Moreover, it is also essential that arrangements be in place regarding appropriate accommodation before [X] and her Mother move. To this end, the order permitting Ms Sanchez to move to Sydney with her daughter is not to occur until at least six months have lapsed following the date of these orders. The object of such a restraint is to ensure that Mr C and Ms Sanchez have secured appropriate accommodation, other than
Mr C’s current, single-bedroom residence. Perhaps it is best simply to frame the order so that Ms Sanchez is not permitted to relocate to Sydney with [X] before 1st July 2012. Such an order will be made.
I have already noted Ms Sanchez’s confirmation that she intends being a full-time, stay-at-home-Mother for [X], and her intention to have more children.[41] I accept her evidence in this regard. It should be taken also that I also accept the converse, namely, that if Ms Sanchez is not permitted to relocate with [X], her isolation in Canberra is more likely than not to increase and, most relevantly, the negative impact on her parenting relationship with [X] will also most likely grow. None of these risks or adverse consequences of Ms Sanchez being required to remain in Canberra is in [X]’s best interests.[42] Indeed, in my view, it is in [X]’s best interests for her Mother to relocate.[43]
[41] See T 57, 71 & 82 (the latter reference is to Mr C’s evidence).
[42] See s.60CA of the Act.
[43] In this regard, I note the following comments from the joint judgment of Gummow & Callinan JJ (with which Gleeson CJ agreed, at [1]) in U v U (2002) 211 CLR 238 at p.262 [89]: “… whatever weight should be accorded a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration of the welfare of the child if that were to be adversely affected by a movement of a parent.”
Partly in relation to such matters, Ms Sanchez said that she went back to full-time work in Canberra because she was financially compelled to do so (a) because of the parties’ then financial position (they owned two properties – one residential in Canberra, the other an investment property in [G]), and later, (b) in the wake of her marriage break-up with Mr Ray.[44]
[44] T 58-59 & 68. In addition to her lack of family and emotional support, Ms Sanchez also contended that she is financially isolated in Canberra in the sense that she cannot survive financially in Canberra. See T 72.
Of central significance in this matter are the contentions that (a) Ms Sanchez is isolated and essentially unsupported in Canberra,[45] and (b) [X] is somewhat (or rather) unsettled in her Mother’s care. I have already briefly considered the first aspect regarding “isolation”, from the perspective that she has few friends in Canberra, and that her limited use of Mr Ray’s family for baby-sitting led to a tirade of sorts being directed at her by him. It might also be inferred, to some degree at least, that in most parenting matters where there has been a break-down of the parenting relationship, it would be quite unrealistic to expect one parent, readily or automatically, to call upon the other parent’s family for assistance. The ‘flow-on effects’ of the relationship break-down typically impact on the wider family members.
[45] This aspect of her isolation and lack of support was further explored in her cross-examination at T 66.
In my view, it is unsustainable for the Father to argue that Ms Sanchez could or should reasonably be expected to rely upon her ex-husband’s family for support, and in consequence to argue further that, because of that support, she is not able to contend that she is isolated and without support in Canberra.
In relation to the state or degree, or causative factors concerning, [X]’s unsettled behaviour when with her Mother, Ms Sanchez said it could be traced to when she commenced full-time in child-care, and, she said (although this was not set out in her affidavit material), because of the regularly changing care arrangements between the parties.[46]
Ms Sanchez also maintained that [X]’s disquiet related very much to her Mother’s emotions. She contended that “my emotions stem from circumstances, not deep-seated emotions.”[47] I took this comment to refer to the reasons for, and circumstances of, her marriage break-up with Mr Ray and his extra-marital affair with Ms M.
[46] See T 65, 66 & 67.
[47] T 64.
Ms Sanchez contended that, rather than continue with a regime that had [X] change residence with each parent every couple of days, which resulted, she said, in adding to her disruption, it was important for [X] to have a primary residence.[48] She maintained that she tried, and not infrequently, to discuss changes to [X]’s routine with Mr Ray but, she said, she was rebuffed or met with resistance from him.[49]
[48] T 68.
[49] T 68.
Ms Sanchez confirmed that, because of Mr C’s income, she will not need to work.[50] She said that she grew up and went to school in Sydney.[51]
[50] T 71.
[51] T 72.
There was a small dispute in relation to property, in particular what amount was in Ms Sanchez’s savings account at the time of separation. While she promised during the trial to provide bank statements, which would also deal with, she said, various payments to Mr Ray’s parents, in the result she was not able to, or did not, provide them. I took this simply to be a logistical matter of a self-represented litigant who was endeavouring to conduct her own case under significant stress. I accept of course that it was a time of stress for both parties. However, in the circumstances where there is no countervailing evidence, the figure for the said savings account of $10,000, will be added back to the asset pool.
In my view, it serves little purpose to deal with various contentions, made primarily by Ms Sanchez, in relation to what she says is
Mr Ray’s belittling of her parenting, and other difficulties between the parties. In my view, they are matters that go to the undisputed claims by both parties to the effect that, from time to time, and with varying degrees of discord (but also with times or occasions of agreement), the parties have had a testy relationship (before and after separation), and that communication between them, at times, has been difficult.
The final matter to note relates to my general assessment of the parties’ evidence. I consider both parties to be truthful. I also consider neither of them to have any intention, nor in any way, to deceive or otherwise not to put all relevant evidence before the Court. However, as I have already mentioned, (a) there were some few instances where Mr Ray’s account of events was not quite as fulsome as it should have been, and (b) Ms Sanchez was, in my view, an especially candid witness. She readily gave Mr Ray credit for his parenting, and his family for support of Mr Ray. I accept her evidence regarding her emotional isolation in Canberra, the financial and parental burden in being a single Mother working full-time in Canberra, and the emotional and financial security that her relationship with Mr C will provide in Sydney. In this regard, I note Kirby J’s comments in AMS v AIF, where his Honour said, at [144] and [145] (internal citations omitted):
[144] … a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child's welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule.
[145] … the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected
Other Witnesses: I should also at least note that the evidence from each of the partners of the parties does not, in my view, warrant much discussion. Both Ms M and Mr C are in somewhat similar circumstances, in the sense that they have been in a relationship with the respective parties for approximately one year, and that each of them plans on having children with their new partner.
Ms M confirmed, as I have already noted, that she wished (and intended) to have children with Mr Ray. She said that [X] has a good relationship with both of her girls, especially her youngest daughter. Those girls are not in her full-time care. There was no cross-examination of her, notably in relation to Ms Sanchez’s contention, also previously referred to from her trial affidavit, that Mr Ray’s Mother had informed her that Ms M and Mr Ray had separated a couple of times.
There was slightly more cross-examination of Mr C, primarily about the possibility of him securing a similar-paying job in Canberra to that which he has in Sydney. I accept his evidence that, given the nature and degree of his specialisation, his financial security and increasing job prospects (including even greater financial gain) remains with the [company] with which he is currently employed in Sydney.[52]
[52] See T 79 – 85.
He confirmed that his preference would be for Ms Sanchez to move to Sydney in approximately 3-6 months’ time.
D. Evidence of the Family Consultant
Two family reports, dated 12th July 2011, and 13th September 2011, were admitted into evidence and became, respectively, exhibits B1 and B2. The author of both reports was Ms W, a family consultant of long experience attached to the Court in Canberra.
The First Family Report: The recommendations from the first report were, among other things, that [X] live with her Mother and spend time with her Father each alternate weekend, and if possible, for a few hours in the off-week. In full, those recommendations were:[53]
[53] See p.6, para.7 of the Report.
That [X] live with her mother.
That [X] spend time with her father alternate weekends and if possible for a few hours during the week.
That in the event that the mother is permitted to re-locate to Sydney, [X] spend alternate weekends with the father and the mother facilitates [X] speaking to the father via skype once each week.
That the Court makes prescribed orders for [X]’s living arrangements to initially minimise the need for parental negotiation and potential disagreement.
That the parents consider how they are to improve their communication so that they are able to make arrangements together for [X] into the future.
In addition to noting the acrimony between the parents, but also the apparent comfort of [X] with them both, Ms W commented in her summary as follows (I note that the numbering does not formally follow sequentially because there was no paragraph 6.2):[54]
[54] The academic references given by the family consultant are set out at the end of the family report, but are not listed here.
6.1 [X] is at a critical developmental age.
6.3 Equal shared care is not recommended for children of [X]’s age. McIntosh et al, (2010) found looking at a national random sample that “Regardless of socio-economic background, parenting or inter-parental cooperation, shared overnight care of children under four years of age had an independent and deleterious impact…”.
6.4 We also know that children do best when they have a meaningful relationship with both parents. To maintain/develop this relationship between a child and a parent the child requires an experience of the parent as being predictably available to them across a range of normal everyday occurrences and practices. There is, however no empirical evidence that “shared” time equates with better parent – child relationships. “The idea that a linear relationship exists between the amount of time that a child spends with their parents and the child’s emotional, psychological and intellectual wellbeing is not empirically supported. The meaningfulness of a child’s relationship with a parent is predicated on the quality of the parent/child relationship not the amount of time that a child spends with a parent”. (Smythe, 2009). Poor parental relationships affects the quality of the child’s relationship with the parents and make transitions for children between parents difficult.
6.5 Disruptions to significant relationships for children as young as [X] are to be avoided if possible. Significant disruption to the relationship between a child and the primary attachment relationship is most devastating and is likely to have serious and far reaching consequences for a child. It is also important for young children to continue regular time with their other parent to maintain this relationship. Usually for young children frequent time rather than for long periods is considered most appropriate.
6.6 Recently a study has been published (Tarasuik et al 2011) looking at the significance of video communication between parents and children living a distance apart. This study looked at children aged 17 months to 5 years and it concluded. “For young children a video connection can have many of the same effects as a physical presence. This is a significant finding as it is the first such empirical demonstration and indicates considerable promise in video communication as a tool to maintain family relationships when physical presence is not possible”. In the United States there are laws in 4 states which recognize “Virtual visitation”. This “refers to the use of email, instant messaging, webcams and other internet tools to provide regular communication between a noncustodial parent and his or her child”. (Welsh 2010) This technology may be a good option in this matter to compliment face to face time.
The Second Family Report: Among other things noted in this report, at para.4.3, is that Mr Ray said, disputing that the then in place shared care arrangement was disruptive for [X], that Ms Sanchez cared for [X] 60% of the time, he did so for 40% of the time, and his Mother 10%. Nothing turns on the percentages totalling a somewhat curious 110%.
In fact, in the light of the totality of all the evidence, I took this statement of Mr Ray, recorded by the family consultant, to mean that the maternal Grandmother’s time could well be (and most likely was) exercised when [X] was [is] formally in her Father’s care. Certainly, on Ms Sanchez’s evidence, [X] spends little or no time with the wider paternal family while she is in her Mother’s care.
The report also noted, at para.4.5, that Mr Ray had “numerous complaints regarding the previous report.” Those complaints were then listed, including a claim that the family consultant was biased against him. In the course of her cross-examination by Counsel for
Mr Ray, she confirmed that such claims of bias were [unfortunately] quite common against consultants.[55]
[55] See T 99 – 100.
Indeed, in the paragraph of the report noted, Ms W recorded that she offered to Mr Ray to have a further report prepared regarding the relationships between [X] and her parents, and that this would be done by a [named] specialised service that was unrelated to the Court. Ms W noted that Mr Ray replied to this offer, thus: “I don’t know what that will turn up. Why would I do that?” There was no challenge to these matters in cross-examination.
Ms W confirmed in her report, at para.4.8, that Mr Ray contended that the relationship with Ms Sanchez was always conflictual, whereas
Ms Sanchez said that she was “very happily married” until she became aware that he was having an affair. Earlier, it was recorded, at para.4.7, that Mr Ray said that he would consider reverting to a regime where [X] spent five nights per fortnight with him, and the remainder with
Ms Sanchez.
Ms W confirmed, which was in conformity with the parties’ evidence, that Ms Sanchez noted [X]’s strong relationship with her Father.
The report also recorded, at para.5.1, that when the family consultant broached Ms Sanchez’s proposal of a four day period each alternate week-end, in the event that relocation to Sydney was permitted,
… the Father was outraged and told the Consultant that she showed “bias” by “taking the Mother’s side” and presenting the proposal to him. He stated that “I’m not agreeing to anything … I don’t agree with her crap. What’s in Sydney?” The Father remonstrated that he would be at work on the Friday and Monday, making such an arrangement such as this impractical.
The conclusion of the report was very brief. I set it out below (paras.8.1 & 8.2):
The summary in the previous report reviews the current empirical evidence regarding shared care for young children and attachment relationships for children of [X]’s age. The mother’s proposals have the benefit of addressing the maintenance of a regular relationship between [X] and her father during the critical attachment period.
[X]’s parents’ relationship is highly conflictual. They are unable to parent [X] co-operatively and therefore a “shared arrangement” will be stressful and emotionally destabilising for [X]. In the event that the mother is not permitted to re-locate with [X] to Sydney a shared arrangement would be adverse to [X]’s optimal development.
The only other thing to record about the second report concerns the episode involving [X] and the “chewing gum”, to which I have previously referred. I simply note the family consultant’s observation, at para.7.2, of [X]’s significant upset and that the “father was not seen to address [X]’s emotional state.” In the totality of the evidence, I do not consider such remarks as being determinative of the issues before the Court.
Cross-Examination of the Family Consultant: The following matters, in my view, were the salient aspects of Ms W evidence from her cross-examination.
First, Ms W commented that, although her report indicated that there was not [necessarily] any primary attachment to either parent, using my words, from birth there would have been some form of primary attachment, which she took to be between [X] and her Mother.[56]
[56] T 93 – 94 & 98.
Secondly, the family consultant seemed to emphasise two things: (a) on the Mother’s evidence, [X] was emotionally “disregulated”. This means, according to Ms W, that “their level of disregulation is such that when they are in the care of the parent – who they do feel can help them to regulate those emotions, then they – they do show their level of emotional distress, and that’s what Ms Sanchez was showing to me.”[57] (b) The converse of this is that, simply because [X] does not show any emotional or other distress in the Father’s care, does not mean that she is more secure with him.[58]
[57] T 94.
[58] T 95.
In my terms, I understood Ms W to say that precisely because [X] was emotionally “disregulated”, she felt most secure in her Mother’s care and therefore able to show her distressed response to her parent’s separation and discordant relationship essentially only when in her Mother’s care. Indeed, Ms W went on to say that [X]’s experience of her Father is that he does not meet her needs in this area of emotional disregulation.[59]
[59] See the discussion at T 95 – 96. The family consultant confirmed that her comments were based on standard studies in “attachment theory”.
Ms W also confirmed that it would be the case that [X]’s emotional distress, to some degree, would be related to her Mother’s anxiety and distress.[60]
[60] T 96 & 102.
Thirdly, the family consultant considered that a 4/10 regime would be best in the circumstances of this matter, with, I infer, primary residence with Ms Sanchez.[61]
[61] T 103.
Fourthly, Ms W did not agree that the Mother’s distress was only, or merely “situational”, that is her distress was a function only of her being a single and first time mother. Rather, she also considered the breakdown of her marriage, the litigation, and the ongoing distress of [X] as part of Ms Sanchez’s anxiety. At the same time, she said that she did not detect any hostility towards Mr Ray from Ms Sanchez.[62]
[62] T 97.
Fifthly, the family consultant confirmed that it would not be ideal for young children to travel large distances to maintain contact with the non-resident parent.[63]
[63] T 98.
Sixthly, Ms W confirmed that a block of one week per month for [X] to spend with her Father would also be a reasonable alternative, in the event that Ms Sanchez was permitted to relocate to Sydney with her daughter. This would be supplemented, or complemented, by the use of Skype and other means of communication, accepting certain limitations given [X]’s age, but which, presumably, would necessarily lessen as [X] got older.[64]
[64] T 102. In her first report, at para.6.1, Ms W referred to a number of helpful recent studies that deal with the benefits of communication via Skype, even for very young children, indeed younger than [X].
Finally, Ms W confirmed that (a) if Ms Sanchez was not permitted to move to Sydney with [X], it would likely impact adversely on the parental relationship between [X] and her Mother (as well as on the relationship between Ms Sanchez and Mr Ray); (b) it is usually, or generally, not desirable for children of [X]’s age to relocate; and (c) there can be circumstances where such a course is beneficial to a child.[65]
[65] See T 104, 105 & 107.
E. Legal Principles
The following principles, which (as will be readily seen) I have drawn from a wide range of cases (including other decisions of my own), may be taken as the jurisprudential framework for the current matter, but also having regard to what has been earlier set out in relation to parenting matters that involve relocation.
In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Act. Respectfully and gratefully I adopt her Honour’s comments. Brown J said:[66]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))
[66] Mazorski v Albright (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” Beginning at [20], through to [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[67]
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[67] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks, as did the Full Court in Sigley v Evor (2011) 44 Fam LR 439 at [131] – [136].
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
This summary of principle must, of course, be seen and understood in the light, and context, of the ‘prescribed legislative pathway’ in Part VII of the Act. Thus, as Bryant CJ and Finn J said in Taylor v Barker, at [53] (internal citations omitted):
We agree that when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible.
To this instruction, I note too the similar, and slightly more fulsome, remarks by the Full Court in McCall v Clark, where their Honours’ said, at [60]:[68]
In Sealey & Archer [2008] FamCAFC 142 the Full Court (Bryant CJ, Finn and Thackray JJ) said at paragraph 63:
While it has been recognised that the Act does not provide any express direction or guidance as to the overall order in which the provisions of Part VII must be applied (Taylor v Barker (2007) FLC 93-345 at [62]), the legislation does require in s 61DA that when a court makes a parenting order, it must apply the presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility for the child (unless there are circumstances in which the presumption does not apply, or in which it would be inappropriate to apply it, or it is rebutted), and it further requires in s 65DAA that if there is to be equal shared parental responsibility for the child, consideration must be given to the child spending equal time (or if not, substantial and significant time) with each parent.
[68] McCall & Clark (2009) 41 Fam LR 483. See also the Full Court’s discussion in Starr & Duggan [2009] FamCAFC 115 at [38] & [39], and by Ryan J in Sheldon & Weir (No.3) at [242] – [243]. Her Honour’s judgment was upheld on appeal, Sheldon & Weir [2011] FamCAFC 212. There is also detailed discussion of relevant matters by the Full Court in Sigley v Evor (2011) 44 Fam LR 439 at [142], [176] – [177], [182] – [183], [186] – [188].
And at paragraphs 66 and 67:
Again as was recognised in Taylor v Barker (supra, see in particular paragraphs 58 and 77-83), in a case which involves a proposal that there be a significant change in the place where a child lives, it is appropriate for a court in its application of s 65DAA, and particularly s 65DAA(5), to canvass the advantages and disadvantages of a proposal “to re-locate” the child. We would also expect that the court would have addressed the matters arising under s 65DAA(5) in the context of its consideration of relevant s 60CC matters.
In making the latter observation, we should say that we do not see anything said in Taylor v Barker as suggesting that a trial judge would ignore the relocation proposal when making the necessary s 60CC findings…
To the above, I simply note the following from the recent judgment of Kent J in Heath & Hemming.[69] After outlining, at [87] – [98], what his Honour considered to be the appropriate approach to parenting cases, Kent J turned to a consideration of the appropriate approach to parenting cases that involve relocation. For my part, three aspects are particularly relevant to these proceedings from his Honour’s remarks.
[69] [2011] FamCA 749.
The first matter of significance is Kent J’s [further] endorsement, at [104], from earlier decisions, of the court’s requirement to attend to ensuring a “meaningful relationship” rather than necessarily an “optimal relationship” between the child and the non-resident parent.[70] In the circumstances of this case, such a distinction is important. While, I a sure, that Mr Ray would argue that he is entitled to an ‘optimal relationship’ with his daughter, according to the Act and the authorities to which I have referred, the only standard that is necessary is that there be, and orders made that ensure that, a meaningful relationship is able to be maintained between Father and daughter. In my view, the orders proposed here comply with this requirement.
[70] The classic descriptions of such a distinction are by Dessau J in M v S (2007) FLC ¶93-313 at [38] – [39], and by Kay J in Godfrey & Sanders [2007] FamCA 102 at [33] – [36]. His Honour also noted, from Champness v Hanson, at [103], that it is for the court to determine what is a “meaningful relationship”; it is not for an expert to make such a determination. See also Sigley v Evor, at [136].
Secondly, at [104(c)], Kent J said:
If the parent who proposes to relocate has a poor history of promoting the child’s relationship with the other parent that may, weighed in the balance with other factors, (including the “meaningful relationship” assessment referred to above) have determinative significance. Conversely, if the child has a meaningful relationship with the non-relocating parent despite the historical experience of little care by and time with that parent, Orders might readily be framed to promote the meaningful relationship even if relocation is permitted.
Thirdly, his Honour said, at [104(d)]:
The additional consideration expressed in s 60CC(3)(f), referring to the capacity of parents to provide for the needs of the child can assume prominence where a parent adduces evidence of potentially adverse affects upon that parent’s capacity to provide adequate parenting if the relocation is not permitted where that parent is to be the primary carer either because the parties propose that, or the preponderance of s 60CC considerations point that way. However, such evidence must be examined from the perspective of best interests of the child and whether the evidence is sufficient to support a finding of adverse affect upon parenting capacity, not simply a finding of “unhappiness” or “disappointment”. In Hepburn v Noble (2010) FLC 93-438 and Sigley v Evor (supra) differently constituted Full Courts of this Court have recently considered and provided guidance to trial judges as to the sufficiency of the evidence that will be required to support findings to the effect that the capacity of a primary carer to parent a child may be compromised if the wish of that parent to relocate is not granted.
The final observation of relevance to the current matter is from his Honour’s judgment, at [105] in Heath & Hemming:
… whilst it is not the law that a relocating parent has any onus of establishing a bona fide reason for the proposed relocation, plainly the economic prospects of better employment opportunities; better housing or other facilities; enhanced economic circumstances by reason of a provident re-partnership or re-marriage are relevant matters and may, in a given case, assume decisive significance in the determination of best interests. Conversely, limited employment prospects or other financial circumstances of the parties in the place of origin may be relevant to the assessment of the prospect of the party opposing the relocation being able to move if the children move.
Respectfully, Kent J’s summary, which in a number of respects echoes the earlier discussion of principle by Kirby J in AMS v AIF and U v U to which I have referred, as well as the remarks of Gummow and Callinan JJ in U v U also noted, is a most helpful summary and analysis, and introduction to the following consideration of the legislative pathway.
F. Legislative Pathway
In what follows, unless specifically required, in the first instance I should be taken to follow sequentially, but without formally naming or identifying, each of the sub-paragraphs in s.60CC(3).
Given [X]’s age, there are no expressed views of the child to consider.
Throughout the course of the evidence, from the parties and from the family consultant, I have noted that there is no question of [X]’s good relationship with both of her parents. There was no formal challenge to the soundness of her relationship with each of their partners. Ms Sanchez readily acknowledged [X]’s good relationship with members of her paternal family. There was no challenge to Ms Sanchez’s sworn evidence that [X] ‘Skypes’ her maternal grandparents each week, as she does Mr C. Presumably she would not do so if there was any problem with either relationship.
In relation to sub-paragraphs (c) and (i), I have already indicated that I have no doubt that Ms Sanchez has promoted and facilitated, and will continue to do so, [X]’s relationship with her Father. From the evidence before the Court, I detected – but nothing higher – that
Mr Ray could be, at times, something of a “stickler” in insisting what he would see to be his parenting “rights” in relation to [X]. If this be the case, I would not be as confident as I am with Ms Sanchez’s capacities, that he would facilitate [X]’s relationship with her Mother. This is not to question his genuine and whole-hearted love for his daughter, nor that he has anything other than her best interests at heart.
As to s.60CC(3)(d), the issue here, in my view, is the secure relationship that [X] has with both parents. In the light of (a) the evidence of the family consultant in particular, (b) my certainty in
Ms Sanchez’s capacity to facilitate [X]’s relationship with her Father, and (c) the regular regime of “contact” or “time with” between Father and daughter both face-to-face, and via electronic means, in my view, the effect on that relationship of [X]’s move to Sydney with her Mother is more likely than not to be relatively modest. To these factors must also be added (d) the undoubted diminution in Ms Sanchez’s anxiety and isolation because of her being able to have a secure and stable environment with Mr C (and its positive flow-on effects for [X]), and (e) that, unlike being in Sydney where she would be living at home with her Mother full-time, if she stayed in Canberra, [X] would be in full-time care. Respectfully, in the usual course of things, full-time parenting is to be preferred to full-time paid care.
There is no doubt that a move between Canberra and Sydney and the approximately 2½ hour drive between those cities is less than ideal, and does pose a logistical issue for both parties and their families. However, it is not the kind of relocation where, for example, regular face-to-face time is impossible, such as in Sheldon & Weir, where the Full Court did not disturb the first instance decision of Ryan J to allow a child of a roughly similar age to [X] to relocate to Ireland.[71] Accepting that every case is unique, here we are dealing with a young child but not an insuperable, indeed what might be called a “workable”, distance between the cities where [X]’s parents will live. The “practical difficulty and expense” will be off-set, to some degree, by the regular Skype times between [X] and her Father. And I repeat my confidence in Ms Sanchez’s capacity, supported by Mr C, to ensure that the regularity of face-to-face time between Father and daughter occurs, including time with the paternal family.
[71] Sheldon & Weir [2011] FamCAFC 212. Cf. the Full Court decision in Edelman & Ziu (No.2) [2010] FamCAFC 236 where the Full Court did not disturb a decision to allow an intra-state relocation, where the distances between the parental homes was approximately two hours.
I do not understand there to have been raised by either parent that there are concerns about the capacity of either of them to provide adequately for [X]’s needs, as contemplated by s.60CC(3)(f).
For my part, I also do not understand there to be any relevant issue in this matter that arises out of or relates to family violence.
In my view, the orders proposed are the least likely to result in further litigation.
In a similar vein, in my view, the orders proposed satisfy the Court’s responsibilities in relation to s.60CA regarding the making of orders that are in [X]’s best interests, and no less importantly, they also satisfy the objects and principles of s.60B, and the primary considerations in s.60CC(2). The orders will ensure that [X] continues to have a meaningful relationship with both of her parents, that she receives (as she has done) adequate and proper parenting, that she is cared for by both of her parents, and that she will communicate regularly with them.
There is no evidence that would militate against the Court making an order for equal shared parental responsibility, pursuant to s.61DA. Such an order is in [X]’s best interests, and will be made. Moreover, both parties sought such an order.
Such an order then leads to a consideration of s.65DAA. Two things must be said about that section. First, its consideration must take place in the context of the High Court’s instruction in MRR v GR.
At [13], the High Court said (internal citations omitted):
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
The Court further observed (if not declared), at [15]:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
In my view, having regard to “the reality of the situation” as directed by the High Court, and in addition to the evidence of the family consultant against such an order, the distance between Sydney and Canberra militates, on its own, against an order for equal time. The same logistical consideration also militates against an order for substantial and significant time.
G. Conclusion: Parenting Orders
In Taylor v Barker, the unhappiness of the Mother in those proceedings was linked to her intention to marry. That is, to a significant degree, the case here. In addition, Ms Sanchez’s application is couched, and her evidence presented strongly, also of her isolation and lack of support in Canberra. Mr Ray’s comments to, and recorded by, the Family Consultant, in my view, corroborates this concern. Thus, to use the words of the distinguished majority judges of the Full Court in Taylor v Barker, at [109]: “Happiness is a state of mind to be inferred from evidence.” In my view, the evidence before the Court supports the Mother’s contentions.
For the reasons given above, and in the light of the authorities to which I have referred, in my view, it is in [X]’s best interests that parenting orders be made as sought by Ms Sanchez, but as qualified by these reasons in relation to (a) both parties attending a parenting course, and (b) Ms Sanchez not being permitted to relocate with [X] prior to 1st July 2012.
In addition to the orders just confirmed, between the date of these orders and Ms Sanchez’s move to Sydney next year, (a) in the light of Mr Ray’s confirmation to the family consultant that he would be content with a 5/9 arrangement (that is, [X] would spend five nights per fortnight with him, and the remainder of the fortnightly time with Ms Sanchez), and (b) as well as the evidence from Ms W that a 4/10 arrangement is indicated to be in [X]’s best interests, in my view there should be the following transition parenting arrangements:
(i)for the next three months, there should be no change in arrangements;
(ii)for the following three months (and until Ms Sanchez and [X] move to Sydney), [X] should move to a 5/9 arrangement. In addition, during the time that [X] is with her Mother, there should be at least one ‘Skype session’ with her Father, the times for which are to be negotiated between the parties.
H. Conclusion: Property Orders
I have already referred to the brief evidence before the Court in relation to property, and the limited areas of dispute. In the light of that limited evidence, I note the following, which (in the absence of a particular matter that is corroborated by independent evidence) necessarily can only be observations and comments in the most general terms.
First, in relation to the property pool, the table of assets and liabilities may be stated as follows:
| ASSETS | OWNERSHIP | VALUE | ||
| Property D | Joint | $510,000.00 | ||
| Property G | Joint | $260,000.00 | ||
| Motor Vehicle - Honda | Joint, wife’s possession | $2,500.00 | ||
| Motor Bike | Husband | $15,100.00 | ||
| Motor Vehicle | Joint, husband’s possession | $1,000.00 | ||
| Savings – Add back | Wife | $10,000.00 | ||
| Contents | Joint | $10,000.00 | ||
| Boat | Husband | $2,500.00 | ||
| Shares (as at 11 Oct 2011) | Husband [A] – 500 @ 0.36 [B] - 105 @ 4.89 [C] – 20 @ 24.56 | $180.00 $491.20 | ||
| TOTAL ASSETS | $813,984.65 | |||
| SUPERANNUATION | OWNERSHIP | VALUE | ||
| PSS | Husband | $65,734.28 | ||
| PSS | Wife | $59,186.89 | ||
| TOTAL SUPER | $124,921.17 | |||
| LIABILITIES | OWNERSHIP | VALUE | ||
| Property D Mortgage | Joint | $306,000.00 | ||
| Property G Mortgage | Joint | $230,000.00 | ||
| TOTAL LIABILITIES | $536,000.00 | |||
| NET ASSETS | $277,984.65 | |||
| $402,905.82 (incl. super) | ||||
Secondly, in terms of financial contributions, it was submitted by
Mr Ray that they significantly favoured him because of the funds that were provided by his parents. In general terms, I have difficulty in disagreeing with such a submission. The evidence is clear that the paternal Grandparents assisted the parties to a significant degree. It was unfortunate that Ms Sanchez did not, or was not able to, provide details of the borrowings from her parents in relation to the payment of stamp duty. I have already noted, however, Ms Sanchez’s unchallenged evidence that the motor bike was purchased via a re-draw facility from the parties’ joint home loan. In the light of this summary of circumstances, the only issue is to assign a relevant and appropriate percentage to those contributions based upon the “weight” to be ascribed to them in the light of the length of the relationship.
In the light of the limited evidence before the Court, in my view, an allowance in favour of Mr Ray in relation to financial contributions – in relation to the acquisition of the [D] property, other purchases and gifts, and in relation to the mortgage payments since separation - should be made in the order of 15%.
Given the competing contentions of the parties, I can do little more than assign an equal contribution in relation to non-financial contributions during the relationship.
In relation to superannuation, I note the following. First, I accept that both parties currently have not dissimilar superannuation interests with PSS. Secondly, on the basis (which I have accepted) that Ms Sanchez ceases paid employment with her move to Sydney, and that she remains a full-time, stay-at-home Mother to [X], she will not have the same opportunity to accrue superannuation that will attend Mr Ray and his full-time employment, whether or not he and his partner have more children. True it is that she will have the financial (and other) support of Mr C, as will Mr Ray of Ms M. But specifically, Mr Ray will have a greater opportunity to increase his superannuation in a way that
Ms Sanchez will not. In this respect, in my view, a small allowance should be made in favour of Ms Sanchez. That allowance should be in the order of 4%.
In relation to s.75(2) factors, I have already noted that there are no issues in relation to the health of either party, and they are of a similar, [young] age. Their current earning capacity is approximately equal. However, I would expect, but do not necessarily take it into account, that in the usual course of employment in the public service, it is more likely than not that Mr Ray will have on-going opportunities to advance in his employment prospects, with attendant increases in remuneration. As I say, I simply note this, and do not formally factor it into the Court’s determination.
Counsel for Mr Ray contended that there was, in fact, no need for any adjustment under s.75(2) on the facts of the case. However, this is to ignore that, under the orders of the Court, Ms Sanchez will have the full-time care of a young child, and will do so for many years to come. Thus, s.75(2)(c) comes in to play. On this basis, an allowance in
Ms Sanchez’s favour should be made in the order of 12%.
On the basis of the adjustments or allowances mentioned, this would result in a percentage split, in Ms Sanchez’s favour, of the net non-superannuation pool of 51/49%.
But this is not the end of the matter. This is because the Court is required, ultimately, to make orders, pursuant to s.79(2), [only] that are “just and equitable” in all the circumstances of the case. In the light of this final consideration, in my view, a just and equitable percentage distribution of the net non-superannuation assets of the parties is one of 54% in favour of Mr Ray, and 46% in favour of Ms Sanchez. Of that pool, which totals $277,984.65, 54% equates to $150,111.71.
The effect of such a division, and having regard to the assets each party would retain, this would require Ms Sanchez to make a payment to
Mr Ray of $95,321. That sum is to be paid within 60 days of the date of these orders.
In my view, the orders proposed by Mr Ray, with some adjustment, better accommodate both the intention of the parties, and the orders of the Court. This is to say that, Mr Ray will keep the [G] property (and be solely responsible for the mortgage over it), as well as, among other things, the motor bike, boat, shares and other personalty in his possession. Ms Sanchez will keep the [D] property (and be solely responsible for the mortgage over it), and keep the personalty in her possession. In the event that the [D] property is not kept pursuant to these orders, it is then to be sold and the net proceeds are to be divided in the ratio indicated, namely 54% to Mr Ray, and 46% to Ms Sanchez. Each party will keep their current motor vehicle, and their respective superannuation.
The Court so orders.
I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 20 December 2011
T 51. Ms Sanchez candidly and forthrightly confirmed that [X] had a good relationship with her paternal family, and that “they love her [X] dearly.” She also said that the paternal family support
Mr Ray significantly. T 49.
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