Reisy & Denton
[2008] FamCA 403
•6 June 2008
FAMILY COURT OF AUSTRALIA
| REISY & DENTON | [2008] FamCA 403 |
| FAMILY LAW – CHILDREN - Substantial and significant time |
| Family Law Act 1975 (Cth) |
| Goode and Goode (2006) FLC 93-286 B and B; Family Law Reform Act 1995 (1997) FLC 92-755 Mazorski v Albright (2007) 37 Fam LR 518 |
| APPLICANT: | Mr Reisy |
| RESPONDENT: | Ms Denton |
| FILE NUMBER: | PAF | 1203 | of | 2005 |
| DATE DELIVERED: | 6 June 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | O'Ryan J |
| HEARING DATE: | 26 February, 4, 5 & 17 April 2007, 4, 5 & 11 February 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Batey |
| SOLICITOR FOR THE APPLICANT: | Sheather Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Givney |
| SOLICITOR FOR THE RESPONDENT: | Goldrick Farrell Mullen |
Orders
Until the first day of the second term of the New South Wales school holidays orders 2(a) and 2(b) made on 15 January 2005 in the Federal Magistrates Court shall continue and otherwise the orders made 15 July 2005 be discharged.
The parties are each restrained subject to these orders from causing the children K born on … August 1999 and M born on … February 2002 to reside permanently outside the Sydney Metropolitan area.
It is noted that it is the intention of the Mother to live in Tasmania on a permanent basis from the commencement of the second school term.
The children shall live with the Mother during each of the New South Wales gazetted school term as follows:-
4.1In the years when the Mother has the first part of the Christmas school holidays, for three consecutive nights in the week in which 8 February falls commencing on the Thursday afternoon to the following Sunday afternoon in Tasmania.
4.2In the years when the Mother has the second part of the Christmas school holidays, for three consecutive nights in the week in which 22 February falls commencing on the Thursday afternoon to the following Sunday afternoon in Sydney.
4.3In the years in which order 4.1 applies for three consecutive nights in the week in which 6 March falls commencing on the Thursday afternoon to the following Sunday afternoon in Sydney.
4.4In the years in which order 4.2 applies for three consecutive nights in the week in which 6 March falls commencing on the Thursday afternoon to the following Sunday afternoon in Tasmania.
4.5For three consecutive nights in the week in which 16 May falls commencing on the Thursday afternoon to the following Sunday afternoon in Sydney.
4.6For three consecutive nights in the week in which 12 June falls commencing on the Thursday afternoon to the following Sunday afternoon in Sydney.
4.7For three consecutive nights in the week in which 21 August falls commencing on the Thursday afternoon to the following Sunday afternoon in Tasmania.
4.8For three consecutive nights in the week in which 31 October falls commencing on the Thursday afternoon to the following Sunday afternoon in Sydney.
4.9For three consecutive nights in the week in which 27 November falls commencing on the Thursday afternoon to the following Sunday afternoon in Tasmania.
4.10Provided the Mother provides 60 days notice the Mother shall have time with the children from one to seven consecutive nights in each school term in Sydney and if such time occurs during school days then the Mother shall be responsible for the children’s attendance and collection to and from school.
4.11For one night when the children’s school classrooms are opened or parent teacher days and the Mother shall attend the school and have the care of the children to before school the next day.
4.12For one night when the children’s school speech day occurs and the Mother shall attend the school and have the care of the children to before school the next day.
The children shall live with the Mother during the New South Wales gazetted school holidays as follows:
5.1For 16 nights in the second term school holidays, commencing on the day the term ends and concluding on the day after the 16th night commencing in 2009 and each alternate year thereafter and for 16 nights concluding on the day before the new term commences [not including pupil free days] commencing in 2008 and each alternate year thereafter.
5.2For 12 nights in the third term school holidays which shall commence and conclude [save for the number of nights] in the same manner as provided for in order 5.1. hereof.
5.3For 24 nights in the fourth term school holidays which shall commence and conclude [save for the number of nights] in the same manner as provided for in order 5.1 hereof.
5.4For five nights in the first school term school holidays which shall commence and conclude [save for the number of nights] in the same manner as provided for in order 5.1 hereof.
To give effect to orders 4 and 5 the following shall apply:-
6.1The Mother is at liberty to change the dates of weekend time during school terms by providing 60 days notice by SMS or email to the Father.
6.2The Mother shall unless specified in order 5 exercise her time with the children in Tasmania.
6.3The Mother shall book the children’s flights and provide the Father with an itinerary.
6.4The Mother, provided the parties enter into a child support agreement shall be responsible for the cost of the children’s airfares and those of an accompanying adult.
6.5Until 12 February 2010 the children are to be accompanied by an adult person well known and related to the children on all flights occurring pursuant to these orders.
6.6The Father shall ensure the children’s attendance at the airport in time for booked flights.
6.7Both parties will use their best endeavours to facilitate the children’s travel arrangements.
6.8The Mother’s time in school terms shall commence on the Thursday or Friday falling closest to the date nominated in the orders.
The children shall subject to orders 4 and 5 hereof live with the Father.
It is noted that the parties have agreed to enter into a child support agreement that for any child support assessment in favour of the parties issued after the first day of the second school term 2008 be reduced to nil and the Mother shall bear the cost of the children’s air travel to and from Tasmania.
The Mother shall have telephone time with the children each second night they are in the Father’s care between 6:30 p.m. and 7:00 p.m. New South Wales time and the Mother shall telephone the Father’s landline number.
The parties are at liberty to send emails to the children at any time and shall respect each others and the children’s privacy with the other.
It is noted that the parties shall utilise such technology as may be available such as video, telephone and web cams.
The parties shall:-
12.1Exchange and keep the other informed of email addresses, telephone numbers and mobile telephone numbers.
12.2As soon as is reasonably practicable inform the children’s present school or any school they attend of those orders and apply for the children to miss a school day each term and [if required] to leave school after 1:00 p.m. to connect to a flight on a Thursday or Friday.
12.3Ensure that each obtains school reports and notices from the school and to give all consents for this to occur.
12.4Advise the other as soon as practicable of illnesses, accidents, and or hospitalisations affecting the children.
Each party shall pay his or her own costs.
Pursuant to s 65DA(2) Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Reisy & Denton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: PAF 1203 of 2005
| Mr Reisy |
Applicant
And
| Ms Denton |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Before me for hearing are applications for final parenting orders. The Applicant is Mr Reisy who I shall refer to as the Father. The Respondent is Ms Denton who I shall refer to as the Mother. The proceedings were commenced by an application filed on behalf of the Father in June 2005.
The Father sought the following:
1.Whilst the mother resides within a radius of 8km from [H Primary School] the following orders shall apply;
1.1. The children of the relationship, namely [K] born […] August 1999 and [M] born […] February 2002 shall live with the mother.
1.2. The children shall spend time with and communicate with the father as follows;
1.2.1.During NSW school terms, for the first 3 out of each 4 weekends from 4 pm Friday until 4 pm Monday each weekend;
1.2.2.For half of the Term1, Term 2 and Term 3 NSW school holiday periods as agreed and failing agreement for the second half in odd numbered years and the first half in even numbered years,
1.2.3.From 4 pm on [M’s birthday] until 21 noon [the following day in] February of each year,
1.2.4.From 2 pm Christmas day to 4 pm on Boxing day each year,
1.2.5.Such other times as agreed between the parties in writing.
1.3. Commencing with the Christmas school holiday period in 2007 and continuing in each odd numbered year thereafter; the children will spend time with the father as follows;
1.3.1.From 2 pm Christmas day until 4 pm boxing Day,
1.3.2.From 12 noon 9 January until 4 pm 26 January,
1.4. Commencing with the Christmas school holiday period in 2008 and continuing in each even numbered year thereafter; the children will spend time with the father as follows
1.4.1.From the close of school in December until 2 pm Christmas day,
1.4.2.From 4 pm boxing day until 12 noon on 9 January,
1.4.3.On 27 and 28 January.
1.5. At all other times the children will live with the mother;
1.6. For the purpose of facilitating orders 1.1, 1.2, 1.3, and 1.4 the father shall collect the children from and return them to the mother’s residence at the commencement and conclusion of the periods the children spend time with him.
2.Neither party shall terminate the attendance of either child at [H] Primary School without either an order of the Court or the written consent of the other party being first had and obtained.
3.If the mother moves her residence outside a radius of 8km from [H] Primary School then, unless otherwise ordered by the Court, the children shall forthwith commence to live with the father.
4.If the children are living with the father, the mother shall spend time and communicate with the children as follows;
4.1. For the whole of the NSW Term1, Term 2, and Term 3 school holidays,
4.2. For the first half of the Christmas holidays in 2007 and in each odd numbered year thereafter,
4.3. For the second half of the Christmas holidays in 2008 and in each even numbered year thereafter,
4.4. For one weekend at approximately the mid-point of each New South Wales school term with the cost of travel to be met in equal shares by the mother and father.
4.5. At such other times as the mother may visit Sydney, providing she gives to the husband 7 days notice in advance of any proposed visit to Sydney.
4.6. The father shall pay the travel expenses for the children to and from the mother’s residence for three of the school holidays and the mother shall pay the travel expenses for the children for the remaining holiday period.
5.Neither party shall denigrate the other in the presence or hearing of the children.
6.Such further or other order as the Court deems appropriate.
The Mother sought the following:
1.Noted the Tasmanian school holidays during 2007 commence on 1 June and conclude on 18 June, commence on 7 September and conclude on 24 September and commence on 20 December and conclude at about 14 February 2008.
2.The children [K] born […] August 1999 and [M] born […] February 2002 shall live with the mother.
3.The children shall spend time with the father and such time shall include;
3..1. During Tasmanian term school holidays
3..1.1.From the afternoon of the last day of the school term to the morning of the Thursday falling prior to the commencement of the new school term of the first and second term school holidays.
3..1.2.For 31 nights commencing on the last day of the school year and concluding on the morning after the 31st consecutive night in years ending in an odd number and from the morning of 27 December of years ending in an even number to the morning of the following 27 January.
3..2. During school terms
3..2.1.For two consecutive nights in the week in which 14 February falls from Friday afternoon to Sunday afternoon.
3..2.2.For four consecutive nights commencing on the Thursday prior to the eight hour day weekend in Tasmania concluding on the afternoon of the holiday Monday.
3..2.3.For three consecutive nights in the week in which 31 March falls commencing on the Thursday afternoon until the Sunday [in 2009 commencing on the Friday].
3..2.4.For three consecutive nights in the week 25 April falls commencing on the afternoon of the Thursday and concluding on the afternoon of the following Sunday subject to if Anzac Day falls on the Thursday or the Monday then the father’s time with the children shall commence on the Monday and/or conclude on the Monday as the case may be.
3..2.5.For three consecutive nights in which 15 May falls commencing on the afternoon of the Thursday until the afternoon of the following Sunday [in 2009 commencing on the Friday].
3..2.6.For three consecutive nights in which 6 July falls commencing on the afternoon of the Thursday until the afternoon of the following Sunday.
3..2.7.For three consecutive nights in which 3 August falls commencing on the afternoon of the Thursday until the afternoon of the following Sunday [in 2009 commencing on the Friday].
3..2.8.For three consecutive nights in which 6 October falls commencing on the afternoon of the Thursday until the afternoon of the following Sunday.
3..2.9.For three consecutive nights in which 1 November falls commencing on the afternoon of the Thursday until the afternoon of the following Sunday [in 2009 commencing on the Friday].
3.1.10 For three consecutive nights in which 20 November falls commencing on the afternoon of the Thursday until the afternoon of the following Sunday [in 2009 commencing on the Friday].
4.The mother shall ensure the children telephone the father each second day during school terms between 6.00 pm and 7.00 pm.
5.To facilitate order 3.1.1, 3.1.2, 3.2.2, 3.2.4, 3.2.5, and 3.2.7 the mother shall book the children’s flights and provide an itinerary to the father for the 11 months following from 1 January of each year and shall pay the cost of such travel.
6.The father shall be responsible for the cost of travel and booking the children in respect of orders 3.2.3, 3.2.6, 3.2.8, 3.2.9 and 3.2.10 or in the alternative the father shall nominate such weekends and times provided 28 days notice is given.
7.Noted the mother shall enter a child Support Agreement in the event she is permitted to live in Tasmania with the children and the mother until execution of such a child Support Agreement is restrained from causing the children to live outside of New South Wales.
The primary proposal of the Father was that the children and the Mother reside in Sydney. If the Mother resided in Tasmania the Father proposed that the children remain living in Sydney with him. The primary proposal of the Mother was that the children reside with her in Tasmania. However if I decided that it was in the best interests of the children that they reside in Sydney then the Mother proposed to remain in Sydney. The Father did not propose as an arrangement that he reside in Tasmania.
On 11 March 2008 I received a minute of proposed orders. I also received a minute of orders sought by the Husband. I have set out in italics is what remains in dispute:
1.Until the first day of the second term of the New South Wales school holidays orders 2(a) and 2(b) made 15 January 2005 in the Federal Magistrates Court shall continue and otherwise the orders made 15 July 2005 be discharged.
2.The parties are each restrained subject to these orders from causing the children [K] born […] August 1999 and [M] born […] February 2002 to reside outside the Sydney Metropolitan area.
3.Noted it is the intention of the mother to live in Tasmania on a permanent basis from the commencement of the second school term.
4.The children shall live with the mother as follows:-
4.1 During school terms
4.1.1In the years when the mother has the first part of the Christmas school holidays, for two consecutive nights in the week in which 8 February falls from Friday afternoon to Sunday afternoon in Sydney
4.1.2In the years when the mother has the second part of the Christmas school holidays, for two consecutive nights in the week in which 22 February falls from Friday afternoon to Sunday afternoon in Sydney.
4.1.3For three consecutive nights in the week in which 6 March falls commencing on the Thursday afternoon until the Sunday afternoon.
4.1.4For two consecutive nights in the week in which 16 May falls commencing on the Friday afternoon until the Sunday afternoon in Sydney.
4.1.5For three consecutive nights in the week in which 12 June falls commencing on the Thursday afternoon until the Sunday afternoon.
4.1.6For three consecutive nights in the week in which 21 August falls commencing on the Thursday afternoon until the Sunday afternoon.
4.1.7For two consecutive nights in the week in which 31 October falls commencing on the Friday afternoon until the Sunday afternoon in Sydney.
4.1.8For three consecutive nights in the week in which 27 November falls commencing on the Thursday afternoon until the Sunday afternoon.
4.1.9Provided the mother provides 60 days notice the mother shall have time with the children from one to seven consecutive nights in each school term in Sydney. If such time occurs during school days than the mother shall be responsible for the children’s attendance and collection to and from school.
4.1.10For one night when the children’s classrooms are opened or parent teacher days. The mother shall attend the school and have the care of the children to before school the next day.
4.1.11For one night when the children speech day occurs. The mother shall attend the school and have the care of the children to before school the next day.
4.2During New South Wales term school holidays
4.2.1For 16 nights in the second term school holidays, commencing on the day the term ends and concluding on the day after the 16th night commencing in 2009.
4.2.2For 12 nights in the third term school holidays, commencing on the day the term ends and concluding on the day after the 12th night commencing in 2009 and each alternate year thereafter and for 12 nights concluding on the day before the new term commences [not including pupil free days] commencing in 2008 and each alternate year thereafter.
4.2.3For 24 nights in the fourth term school holidays which shall commence and conclude [save for the number of nights] in the same manner as provided for in order 4.2.2.
4.2.4For five nights in the first school term school holidays which shall commence and conclude [save for the number of nights] in the same manner as provided for in order 4.2.2.
5.To give effect to order 4 the following shall apply:-
5.1The mother is at liberty to change the dates of weekend time during school terms by providing 60 days notice by SMS or email to the father.
5.2The mother shall unless specified in order 4 exercise her time with the children in Tasmania.
5.3The mother shall book the children’s flights and provide the father with an itinerary.
5.4The mother, provided the parties enter into a child support agreement shall be responsible for the cost of the children’s airfares and those of an accompanying adult.
5.5Until 12 February 2009 or 2015 the children are to be accompanied by an adult person well known and related to the children on all flights occurring pursuant to these orders.
5.6The father shall ensure the children’s attendance at the airport in time for booked flights.
5.7Both parties will use their best endeavours to facilitate the children’s travel arrangements.
5.8The mother’s time in school terms shall commence on the Thursday or Friday falling closest to the date nominated in the orders.
6.The children shall subject to orders 4 and 5.1 live with the father.
7.Noted the parties have agreed to enter into a child support agreement that for any assessment in favour of the parties issued after the first day of the second school term 2008 be reduced to nil and the mother shall bear the cost of the children’s air travel to and from Tasmania.
8.The mother shall have telephone time with the children each second night they are in the father’s care between 6.30 p.m. and 7.00 p.m. New South Wales time. The mother shall telephone the father’s landline number.
9.The parties are at liberty to send emails to the children at any time and shall respect each others and the children’s privacy with the other.
10.Noted the parties shall utilise such technology as may be available such as video, telephone and web cams.
11.The parties shall:-
11.1Exchange and keep the other informed of email addresses, telephone numbers and mobile telephone numbers.
11.2As soon as is reasonably practicable inform the children’s present school or any school they attend of those orders and apply for the children to miss a school day each term and [if required] to leave school after 1.00 p.m. to connect to a flight on a Thursday or Friday. This is opposed by the Father.
11.3 Ensure that each obtains school reports and notices from the school and to give all consents for this to occur.
11.4Advise the other as soon as practicable of illnesses, accidents, and or hospitalisations affecting the children.
12.Each party shall pay his or her own costs.
I was informed that the only issues that remain for determination are whether the children will spend time with the Mother:
·In the years when the Mother has the first part of the Christmas school holidays, for two consecutive nights in the week in which 8 February falls from Friday afternoon to Sunday afternoon.
·In the years when the Mother has the second part of the Christmas school holidays, for two consecutive nights in the week in which 22 February falls from Friday afternoon to Sunday afternoon.
·For two consecutive nights in the week in which 16 May falls commencing on the Friday afternoon until the Sunday afternoon.
·For two consecutive nights in the week in which 31 October falls commencing on the Friday afternoon until the Sunday afternoon.
The Father was born in October 1969 and the Mother was born in November 1979.
The Father and the Mother first met on 16 October 1998 and commenced co-habiting about two weeks later namely on 30 October 1998. They separated on 18 July 2003. They never married. At the commencement of cohabitation the Father was aged 29 years and the Mother was aged 19 years. The relationship lasted for about five years.
There are two children of the relationship namely K born in August 1999 and M born in February 2002.
The Mother has two other children, namely R born in July 1994 from a previous relationship and C born in March 2006 with Mr G.
The Mother has now formed a relationship with Mr G and they intend to marry. Mr G was born in June 1975.
The Father has formed a relationship with Ms T. Ms T was born in July 1961. Ms T is nine years older than the Father. She has a 20 year old daughter who still lives at home.
I had the benefit of two Family Reports and the Family Consultant who prepared the reports was cross-examined. In the first report the Family Consultant recommended.
·That the children to continue to have regular contact with both parents.
·That the best long term interest of the children could be the option of residency with either parent with regular weekend contact or a more share residential arrangement.
In the second report the Family Consultant recommended:
[56.]That the children spend regular weekend and school holiday time with their father in New South Wales which might necessitate that the mother live in proximity to the father.
[57.]That if regular time with their father is not possible then consideration be given for the children to live with their father.
The Father resides in Sydney. Until recently the Mother also resided in Sydney. The children K and M also reside in Sydney. The child R resides in Tasmania as does Mr G. The situation was described by the Family Consultant as follows:
[53.]The current situation for [the mother], [the father] and [Mr G] is difficult and distressing and the outcome for this matter will have profound impact on the relationships with their children, their partners and their extended family. However the long term best interests for the children are paramount in this matter given the disputed issues.
Initially the proceedings arose as a result of the Mother seeking to re-locate to Tasmania and seeking to take the children with her. The Mother’s proposal was that she would re-locate with the children to Tasmania and the children would spend generous time with the Father, comprising the majority of school holidays and a minimum of 10 additional periods on extended weekends. The Father opposed any re-location of the children to Tasmania.
After approximately 3 days hearing, the Mother’s counsel advised the Court that the Mother would no longer seek to re-locate the children to Tasmania. In lieu of the Orders sought, and which were the subject of the hearing, the Mother now seeks Orders that provide, (in abridged form):
·from the commencement of the second New South Wales school term, the Mother will re-locate her residence to Tasmania to be with her partner Mr G.
·from the date of her re-location to Tasmania the Mother consents to the children remaining in New South Wales in the full time care of the father.
·in anticipation of Orders being made reflecting her concession that the children live with the father in NSW, defined Orders facilitating the time the children reside with her.
On behalf of the Mother it is submitted that the outstanding issue between the parties is the question as to whether the children should live with the Mother for three weekends during the first, second and fourth school terms from Friday evening to Sunday evening. These weekends fall in the weeks of 8 February [in alternate years and 22 February in the other years], 16 May and 31 October. Thus there would be one weekend in February of each year, one weekend in May of each year and one weekend in October of each year.
The Mother will meet the cost of all air fares for the children and any accompanying adults. In anticipation of the Orders being made for the cost of all air travel to be met by the Mother, the parties entered into a Child Support Agreement that provides that the Mother’s payment of child support to the Father for the two children will be reduced to “Nil” other than for the payment of all air travel for the children.
The Father opposes any periods sought by the Mother during New South Wales school terms that require two consecutive nights in one visit and one period of three nights, in any one visit to Tasmania. The Father has no objection to the periods in dispute being exercised in New South Wales. Additionally, the Father opposes compromising the children's educational development by the children being required to miss a significant number of whole and half days schooling to facilitate the Orders as sought in the Mother’s proposal. Finally, the Father seeks that the children’s air travel be accompanied by an adult until the year 2015, when the child M attains the age of 12 years.
PARENTING-RELEVANT PRINCIPLES
For a discussion of the relevant provisions of Pt VII of the Family Law Act 1975 (Cth) see Goode and Goode (2006) FLC 93-286.
Section 61C(1) in Pt VII of the Family Law Act provides that each of the parents of a child who has not attained the age of 18 has parental responsibility for that child. The meaning of “parental responsibility” is defined in s 61B of the Act. Parental responsibility means all the duties, powers and authority which by law parents have in relation to a child. It relates to decision-making, not time to be spent with each parent. The presumption relates only to parents, and has no application to orders for parental responsibility in favour of other people. In Goode and Goode (supra) the Full Court said that the parents may still be together or may be separated; there will be no court order and the parents may exercise the responsibility either independently or jointly.
However, by virtue of s 61C(3) the joint parental responsibility is subject to any order I may make. Section 61D(1) provides that a parenting order confers parental responsibility for a child on a person but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
Section 65D(1) provides, subject to a presumption of equal shared parental responsibility in s 61DA, parenting plans and Div 6 of Pt VII, that I may make such parenting order as I think proper. Section 64B(1) defines the term “parenting order” and s 64B(2) specifies the matters that a parenting order may deal with. This includes the person with whom a child is to live, the time a child is to spend with another person and the allocation of parental responsibility for a child. Section 64B(3) provides that an order may deal with allocation of responsibility for making decisions about long-term issues.
In deciding whether to make a particular parenting order in relation to a child s 60CA requires that I regard the best interests of the child as the paramount consideration: see also s 65AA.
In determining what is in the best interests of a child I must consider the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3). There are two primary considerations and 13 additional considerations. I must also have regard to the objects of Pt VII identified in s 60B(1) and the principles expressed in s 60B(2) underlying the objects.
There are four stated objects in s 60B(1) to ensure that the best interests of children are met. These objects are, first, by ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; second, by protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; third by ensuring that children receive adequate and proper parenting to help them achieve their full potential; and fourth, by ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
There are five principles specified in s 60B(2) and they are, except when it is or would be contrary to the best interests of a child. First, that children have a right to know and be cared for by both parents; second, that children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development; third, that parents jointly share duties and responsibilities concerning the care, welfare and development of their children; fourth, that parents should agree about the future parenting of their children; and fifth, that children have a right to enjoy their culture, including the right to enjoy that culture with other people who share that culture. Section 60B(3) deals with the right of an Aboriginal or Torres Strait Islander child to enjoy his or her Aboriginal or Torres Strait Islander culture.
For a discussion of s 60B prior to the significant amendments in July 2006 see B and B; Family Law Reform Act 1995 (1997) FLC 92-755. It has been suggested that the objects section now needs to be “given a central place in the interpretation of Part VII of the Act, and this includes how Court’s should reach conclusions about what would be in the best interests of the children who are the subject of decision making”: see Patrick Parkinson, “Decision Making about the Best Interests of the Child: The Impact of the Two Tiers” (2006) 20 AJFL 179; see also the Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006). Parkinson also suggests that the objects provide much more guidance than previously about how to decide disputes about post separation parenting arrangements.
As to the two primary considerations, the first is the benefit to the child of having a meaningful relationship with both parents. The second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The terms “abuse” and ‘”family violence” are defined in s 4 of the Act.
Without repeating all of the 13 additional considerations they include the views of the child, the nature of the relationship of the child with each of the parents, the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent and the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents.
For a helpful discussion about the interpretation of s 60CC and the relationship between the primary and additional considerations see Butterworths, Australian Family Law, vol 1 at [s 60CC.10] - [s 60CC.27]. Parkinson also comments (supra) at p 181 that consideration of the additional considerations will usually amplify the primary ones at another level of detail or put another way, a detailed examination of the additional considerations may assist in determining the significance of the primary considerations and the orders to make. I observe that in Mazorski v Albright (2007) 37 Fam LR 518 Brown J dealt with the additional considerations (at 543-550) before her Honour dealt with the primary considerations (at 550- 551).
Section 60CG requires that I ensure that any order I make is consistent with any family violence orders and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount.
Section 61DA(1) provides that when making a parenting order I must apply a presumption that it is in the best interests of the child for the parents to have “equal shared parental responsibility” for the child. It is a presumption that relates solely to the allocation of parental responsibility as defined in s 61B. It is not a presumption about the amount of time a child spends with each parent. The presumption does not apply in certain circumstances.
Section 65DAC deals with the effect of a parenting order that provides for shared parental responsibility and specifies that the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child. Section 65DAC(2) provides that the order is taken to require that the decision is to be made jointly by the persons who have shared parental responsibility. The term “major long term issues” is defined in s 4 and includes issues relating to education and religious upbringing. However, s 65DAE makes clear that a shared parental responsibility order does not require consultation about issues that are not major long term issues unless a contrary order was made.
In Goode and Goode (supra) the Full Court said that there is a difference between parental responsibility which exists as a result of s 61C and an order which has the effect set out in s 65DAC.
Section 61DA(2) provides that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in child abuse or family violence. Further, s 61DA(4) provides that the presumption may be rebutted if I was satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility. In summary, if the presumption does not apply or is rebutted then I must determine, without any presumption, what order relating to parental responsibility, if any, would be in the child’s best interests, applying s 60CC and s 60B.
If I am satisfied that the presumption of equal shared parental responsibility does apply then by s 65DAA(1) I have to consider whether it would be in the best interests of the child to spend equal time with each parent and whether it is reasonably practicable for the child to spend equal time with each parent. If both conditions are satisfied I then must consider making an order for the child to spend equal time with each parent. In determining the first matter, namely whether it would be in the best interests of the child to spend equal time with each parent, I have to apply s 60C and s 60B. In determining the second matter, namely whether it is reasonably practicable, I am required to consider the matters in s 65DAA(5).
If I am satisfied that the presumption of equal shared parental responsibility does apply but that an order not be made for the child to spend equal time with each parent then by s 65DAA(2) I have to consider whether it would be in the best interests of the child to spend substantial and significant time with each parent and whether it is reasonably practicable for the child to spend substantial and significant time with each parent. If both conditions are satisfied then I must consider making an order for the child to spend substantial and significant time with each parent. Again, in determining the first matter namely whether it would be in the best interests of the child to spend substantial and significant time with each parent I have to apply s 60C and s 60B In determining the second matter, namely whether it is reasonably practicable I have to consider the matters in s 65DAA(5). Section 65DAA(3) sets out what is meant by substantial and significant time.
In Goode and Goode (supra) the Full Court said that in the event that neither the concept of equal time nor substantial and significant time “delivers an outcome that promotes” the best interests of a child then “the issue is at large and to be determined in accordance with” the best interests of the child. The best interests of a child are determined by consideration of the matters in s 60B and s 60CC.
In conclusion, as Brown J said in Mazorski v Albright (supra) at 523 the Act places far more emphasis on the importance of substantial parental involvement in their children’s lives. Her Honour said, with which I agree, at 524:
15]…There is no doubt that the objects and principles, primary considerations (and a number of the additional considerations) and various statutory provisions relating to the presumption of equal shared responsibility, and the consequences of the presumption’s application, require the court to focus on the importance of maintaining a meaningful relationship between a child and both parents, and on the importance of a child spending substantial and significant time with a parent in order to achieve that aim.
and at 526:
[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 one. Quantitive 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.
BACKGROUND FACTS
In July 1997 the Father commenced employment with L Company.
Mr G spent the majority of his youth in Western Australia with his family and in 1992 completed year 12 at school. Following the completion of his schooling he travelled to Europe where he undertook a diploma at a European University which he completed in about 1997. Upon leaving Europe Mr G returned to Western Australia where in about 1999 he completed an occupational health and safety course.
In October 1998 the parties met and shortly thereafter commenced to live together. The child R lived with the parties.
There was a great deal of evidence about what transpired during the relationship which I am of the view is largely irrelevant to what I now have to decide. For example the Mother gave evidence about drug use by the Father and the Father gave evidence which was critical of the Mother. On one view each tried to establish that the other was a neglectful or unsuitable parent. However, there are some matters which are relevant and in my view beyond controversy.
During the relationship the Father was always in paid employment and he was responsible for the financial support of the family.
Throughout the relationship the Mother was not in paid employment and she was primarily responsible for the care of the children and domestic tasks. The Mother gave evidence about her role. She was responsible for all household duties including cleaning, washing, cooking, and for looking after the children during the day. Her day began at approximately 7:00 am and finished at approximately 10:30 pm. However, she was often required to attend to the children during the middle of the night or whenever they woke to go to the toilet or required their nappy changed. The role of the Mother is reflected in a Termination Agreement the Father and the Mother entered into following separation. In the agreement it was said that the Mother “…[d]id not work during cohabitation but was engaged in fulltime care of the children of the relationship”.
I also have no doubt that there was a great deal of conflict between the parents. During the relationship there were frequent disagreements and arguments about numerous matters including money, the maternal family, paternity, abortion, fidelity, the Father’s relationship with the child R, alcohol, smoking, social activities and so on. In his evidence the Father referred to “a big fight” and “many heated discussions” and “denigrating each other”. The Mother contended that on one occasion the Father threw a “wrench” at her and the Father contended that the Mother threw a beer bottle at him. The Father contended that the Mother is not a “good role model as she has never worked a day in her life” and he also suggested that she was “dishonest”. The Mother suggested that the Father was using and/or selling drugs. However in one part of his evidence the Father also said that the Mother “…was a good Mother” until around late 2002 “…after she started going nightclubbing”.
In March of 2001 the Father purchased a property at S. He still lives in this property.
During 2002 Mr G commenced living in Tasmania. Mr G’s parents also relocated to Tasmania during 2002.
In 2002 Mr G purchased a property in southern Tasmania. Mr G said, and I accept, that the property is an area of 18 acres consisting mainly of pasture. There is a residence on the property comprised currently of 3 bedrooms. Mr G had intended extending the home to add additional rooms and plans were submitted to the relevant council. In his affidavit of February 2007 Mr G said his parents no longer reside in this home. The Mother’s parents and the child R currently live on the property.
The Mother and the children left the father’s S property in mid-July 2003 and a couple of days later the Father telephoned the Mother and said words to the effect “Please forgive me. I want you back.” The Mother did not wish to reconcile.
From the date of separation in July 2003 until January 2005 the Father spent time with the children each fortnight. The duration of the Father’s time with the children would vary from a continuous week to sometimes only a day time visit per week. The Mother agreed to the children living with the Father on a roughly week on/week off basis until the child K commenced school. The Mother said that she understands from discussions with the Father that his mother was mainly responsible for the care of the children during these periods.
Mr G said that in December 2004 he and the Mother commenced “dating”.
Mr G said that in about 2005 he undertook a training course with M Company which is responsible for training all technical employees of Telstra. The headquarters of M Company are in Sydney and Mr G undertook study in telecommunications incorporating a number of courses including installation and maintenance, pit and pipe, pole top rescue, cable jointing and ADSL line work converting standard lines to broadband. He was subsequently employed as a telecommunications officer by a company which subcontracts for maintenance and repair work to Telstra. Initially Mr G sought a position in Sydney however he found that this area of work was highly competitive with limited quality positions available in New South Wales with a minimum rate of pay. As a result of inquiries he resolved that he was able to obtain employment in Tasmania.
The child K commenced school in February 2005.
An agreement was then reached whereby the Father spend time with the children each weekend from 4:00 pm on Friday until 7:00 pm on the following Sunday subject to any plans the Mother had to take the children out over the weekend. In the event that the Mother had plans for the weekend the Father would not see the children that weekend. The Mother estimated the Father was spending time with the children every two out of three weekends during this period. The parents also reached agreement whereby they would each spend half of the school holidays with the children.
On 9 April 2005 the Mother advised the Father that she intended spending a week in Tasmania on a holiday with the children. Mr G may have returned to Tasmania by this time.
In about April 2005 the Mother went to Tasmania for a holiday and to visit her family. Her sister was paying the costs of travel and could only afford tickets for the Mother and the child R. The Father agreed to have the children K and M for the first week of the holidays instead of the second week. The Mother missed her return flight home and could not book tickets until a few days later which were paid for by Mr G. When the Mother rang the Father to explain what happened he said words to the effect “I already done you the favour of taking the kids for the first week, you can’t just do that you stupid bitch. I’ve got plans so you’ll have to get back here now”. After the Mother explained that she was unable to get back any sooner the Father said words to the effect “Drop the kids off to my parents”. The Father then began yelling and saying words to the effect “I’m not leaving them with your parents”. When the Mother asked the Father why he would not he then hung up on her. When the Mother called the Father back she said words to the effect “They are your kids as well, I thought you’d be happy that you’d get to spend more time with them”. However the Father again hung up. The Mother then phoned the Father again and advised him of the time of her flight and what time she would be home to which he said words to the effect “You’d better not miss that one” and hung up on her again. The Mother was upset that she had missed her flight home because she had also missed out on spending more time with the children during the school holidays. On 19 April 2005 the Mother returned from Tasmania.
The Mother received a termination notice dated 21 April 2005 requiring her to vacate the house she was renting by 13 May 2005. The Mother did not decide to move to Tasmania until she had received the termination notice.
The Mother contended that she made no secret of her plans to move to Tasmania and that prior to doing so she advised the Father she was moving. The Mother contended that on a number of occasions prior to moving she raised the issue with the Father, offering for him to stay during visits with the Mother and Mr G and/or to contribute to the costs of airfares between Sydney and Tasmania, only to have him refuse to talk to her about it and/or shout her down. The Mother said that on about 8 May 2005 she raised with the Father the possibility of moving with the children to Tasmania however at this stage she had not made a final decision to move and was still trying to find alternative accommodation in H and the surrounding areas. The Father admits that on 8 May 2005 the Mother told him that she was thinking of moving to Tasmania and that he said “That is fine but you will not be taking the children with you”.
In the Family report the Family Consultant said that:
[3.][The father] commented that the children had spent time with him as Ordered since July 2005. He stressed that he had the shared parenting of the children from the separation in July 2003 till April 2005. He recalled that [the mother] had taken the children to Tasmania in the April 2005 school holidays and the children then only had about two days with him. He believed that [the mother] initially mentioned moving to Tasmania as a joke and he did not respond seriously to her comments. He noted that he was shocked to later find out she had relocated to Tasmania without his consent or further discussion.
The Mother said that on or about 13 May 2005 she made a decision and informed the Father that she was moving to Tasmania and said words to the effect “I have to move, I can no longer afford to pay the rent and have been unable to find another place. The rent is cheaper in Tasmania and it will be easier to find a house”. The Father responded with words to the effect “Whatever”.
The Father gave evidence that on 13 May 2005 the Mother told him that she was moving to Tasmania and taking the children with her. He gave no evidence about what he said in response to what the Mother told him. He returned the children to the care of the Mother after weekend contact on 15 May 2005.
The Father contended that on 16 May 2005 he sought and obtained legal advice.
On 18 May 2005 the Mother discussed with the Father the prospects of her moving to Tasmania with all the children. The Father made clear that he objected to the proposal.
The Father had the children in his care between 20 and 22 May 2005.
On 24 May 2005 the Mother moved with the children from a home in H, which she was renting at $260 per week, to her sister’s home.
On 24 May 2005 the Father delivered a letter to the Mother objecting to any proposal for re-location of the children to Tasmania.
On 25 May 2005 the Mother advised the Father that she would be moving to Tasmania with the children.
On 27 May 2005 the Mother moved with her parents, brother, sister and the children to southern Tasmania. It cost $4,400 to transport furniture and belongings from Sydney. With the exception of some clothes and personal effects, these belongings are still in Tasmania.
On 27 May 2005 an application was filed on behalf of the Father in the Federal Magistrates Court at Parramatta. In this application the Father sought final and interim parenting orders. In summary he was seeking that the children reside with him and in the alternative that he have what he described as continuous contact with the children that the Mother be restrained from causing the usual place of residence of the children to be changed from H, and also that a recovery order be issued.
On 31 May 2005 the Father saw the Mother’s sister in an attempt to locate the Mother and children. The Mother’s sister was unable to advise the Father of the Mother’s whereabouts. On 31 May 2005 the Father ascertained that the Mother’s new address was at … (southern Tasmania).
On 8 June 2005 a Federal Magistrate made a number of orders until further order which provided that the children have continuous contact with the Father until 4:00 pm on 15 July 2005; that upon the children being returned to the Father the child K attend H Public School and that a recovery order be issued for the recovery of the children.
Prior to the 8 June 2005 the Mother was not aware that the matter was before the Court. The Mother had not been served with nor sighted any correspondence from or on behalf of the Father relating to children’s issues.
The first the Mother became aware that proceedings had commenced was on 12 June 2005 when the Federal Police arrived at her home to execute the recovery order made on 8 June 2005. On this occasion the Police handed the Mother a copy of the 8 June 2005 orders and said words to the effect: “We are here to take [K] and [M]”. The Mother received no forewarning telephone call or correspondence despite the Father knowing her new address. The Mother contended that both children became hysterical, crying and said words to the effect “We don’t want to go. Can’t we stay?” The Mother contended that she too became extremely upset but for the sake of the children encouraged them to leave with the Federal Police telling them “I’ll see you soon.”
As 12 June 2005 was the Sunday of a long weekend the Mother had to wait until the following Tuesday to obtain legal advice from a solicitor in Tasmania. The Mother was advised to seek assistance from a solicitor in Sydney and so she flew back to Sydney on 18 June 2005.
The Mother contended that she received a text message from the Father saying that there was a warrant out for her arrest and that she had to be in Court on Friday. The Mother then called the Father and said words to the effect “What was that message about?” The Father replied words to the effect “I’m taking you to Court, you bitch”. The Mother then said “What?” and the Father hung up on her.
After her return to Sydney the Mother resided with her sister at G until January 2006 when she moved into her current address at H.
On 18 June 2005 the Mother and Mr G attended at the Father’s residence to see the children. When the Mother arrived at the Father’s home he said words to the effect “You have to give me warning of when you’re coming over”. The Mother then spent time with the children for a brief period during which the child K said words to the effect “Daddy says we’re not coming back” and “I want to come home”. The Mother contended that when she asked the Father words to the effect “What are you doing? Can’t you see what this has done to the kids? Why aren’t you listening to them?” the Father replied words to the effect “They’re only 5 and 3”. The Mother contended that when the Father went outside to speak with Mr G, the child K whispered to her “When are we going home?” The Mother contended that she kept reassuring the children that everything would be okay. When the Father went outside he said to Mr G and the Mother “Get stuffed. You two are stuffed. Get the fuck out of here” to which the Mother responded “Could you be quiet. The kids are here. Just settle down”. The Father then said “I’m not a charity”.
Mr G gave evidence that on 18 June 2005 he accompanied the Mother to visit the children and waited outside the Father’s home. Mr G said that he could hear the Father yelling at the Mother and that he heard the Father say “Get stuffed. You two are stuffed. Get the fuck out of here” and he heard the Mother say “Could you be quiet. The kids are here. Just settle down”. Mr G said that the Father said “I’m not a charity”.
Mr G also gave evidence that he had very limited contact with the Father however he is aware of what he described as the negative impact the Father’s SMS messages and aggressive tone during telephone conversations have had on the Mother. Mr G contended that the Mother appears shaken and upset following most interactions with the Father
The Mother also tried to visit the children again on 25 June 2005 at which time she was advised by the Father words to the effect “You have to ask to come over. The kids aren’t here” to which she replied “Aren’t you supposed to be looking after them?” The Father shut the door. Later that afternoon the Mother sent a text message asking if she could visit the next day (26 June 2005) at 10:00 am to which the Father responded “too early”. The Mother then sent a second message proposing 11:00 am and suggested she collect the children from the paternal grandparent’s house. The Father responded “I don’t think so.” The Mother then attended at the Father’s home at 10:50 am on 26 June 2005 and at 11:00 am she knocked on the door. There was no answer so she waited until 11:30 am during which time she phoned the Father’s mobile telephone a number of times. There was never an answer. She then drove to the paternal grandparent’s home but the Father’s car was not in the driveway so she did not stop as she presumed the children were with him.
On 27 June 2005 the Mother telephoned the Father’s mobile telephone and was able to speak with the children. The child K said words to the effect “We’ve been staying at Nanny’s. She has a sore arm and neck” and “We love you and miss you.” The child M also said “I miss you” and was repeating everything the Mother was saying to someone in the background including “My mummy says she loves me” and “My mummy says she tried to visit but we weren’t home” and “My mummy says she misses me”.
As a result of the Father’s refusal to allow the Mother to spend time with the children, on 4 July 2005 the Mother instructed her solicitor to have the matter re-listed before the Court as soon as practicable. The matter was listed for 13 July 2005 as the Federal Magistrate was sitting in Newcastle until that date.
On 1 July 2005 Mr G established a business known as T Company and through this business, until recently, he undertook work for his previous employer. His hours of work vary from day to day and he receives payment for each job and not on an hourly basis. He said that consequently some days he may work as little as four hours and some days between eight and ten hours. However on average he has approximately 55 jobs per week being primarily ADSL and installations.
Mr G and his father commenced working together and they later incorporated a company called Z Pty Ltd. They were successful in obtaining contracts for work from a housing builder and the Tasmanian Government. Mr G’s father had worked in telecommunications for approximately 30 years.
Mr G said that his average weekly income is between $1,800 and $2,250 gross per week. Since the business was acquired by a company Mr G receives a salary, bonuses and holiday pay and also has what he describes as income protection. He contended that if he had to work in Sydney he would suffer significant financial loss as a result of losing current and potential contracts in Tasmania and also having to relocate in what he described as a highly competitive telecommunications market.
In his February 2007 affidavit Mr G said that he was working with his father in the northwest region of Tasmania. The subcontracting firm had divided Telstra work into regions and at that time the greatest demand was for a telecommunications specialist in the northwest region. Mr G said that his parents purchased a property in the north of Tasmania.
Mr G and the Mother gave evidence that since the proceedings in July 2005 Mr G travelled to Sydney to visit the Mother and also the children approximately once per fortnight for usually three-five days on each occasion. When Mr G flew to Sydney he travelled with either Jetstar or Virgin Airlines and the price of his airline ticket ranged from $80 to $220 one way. It is approximately a half hour to three quarters of an hour journey to the airport at Hobart from the home in southern Tasmania.
On 5 July 2005 a response was filed on behalf of the Mother in the Federal Magistrates Court and in summary she sought that the orders made on 8 June 2005 be vacated, that the children reside with her, that the parents have joint responsibility for the long term care welfare and development of the children and that the Father have contact with the children each alternate weekend from 4:00 pm Friday to 6:00 pm on the following Sunday, and for half of the New South Wales school holiday period. The Mother also sought that each party be restrained from relocating the children to a place outside the Sydney metropolitan area without the express written permission of the other party. The Mother sought both interim and final orders and by way of final orders she sought that she be permitted to relocate with the children to Tasmania and that the Father have contact with the children for all of the term one and term two Tasmanian school holiday periods, for half of the Tasmanian Christmas school holiday periods and on such occasions as the Father was visiting Tasmania for block periods for up to seven days on up to three separate occasions in each calendar year. The Mother sought other orders which I need not repeat.
On 13 July 2005 a Federal Magistrate made a number of orders by consent. The orders provided that the children have continuous contact with the Mother from midday on 13 July 2005 to 4:00 pm on 15 July 2005; that both parents be restrained from removing the children from the Sydney metropolitan area, and the matter be adjourned to 15 July 2005.
On 15 July 2005 orders were made by consent that pending further order the children live with the Mother and spend time with the Father for the first three weekends out of four weekends from 4:00 pm Friday until 4:00 pm on the following Monday; half of each school holiday period, from 3:00 pm to 5:00 pm on 17 July 2005, from 2:00 pm on Christmas day to 4:00 pm Boxing day 2005, from 4:00pm on K’s birthday in August 2005 until midday on the following day and that the parties be restrained from changing the place of residence of the children outside of the Sydney metropolitan area. The Federal Magistrate also noted the Mother would attempt to obtain the advantage of discount fares so as to enable the child R to travel to Sydney during periods of time the children was living with the Mother.
After 15 July 2005 the Father’s time with the children largely occurred in accordance with the agreed orders, however there was some variation to accommodate the children spending time with the child R when she visited Sydney.
On the weekend of … August 2005 the Mother agreed to extend the Father’s time with the children on his birthday to Monday in exchange for him forgoing his time with them the following weekend when the child R would be visiting. The Father had extended time with the children on that weekend in August 2005 and then sent the Mother an SMS message later in the week stating words to the effect “You can’t have the kids this weekend. I’ve made plans” and they argued over the situation.
Despite the Mother’s return to Sydney, the child R remained in Tasmania and was resident with the Mother’s parents at Mr G’s property in southern Tasmania. The child wished to remain in Tasmania to complete school.
In 2007 the child R attended G High School and was in Year 7. Prior to this the child was attending G Primary School. The Mother annexed to her affidavit copies of the child R’s School Reports for December 2005 and December 2006. The Mother contended that from her conversations with the child the Mother understood that the child was loving it as the class sizes are smaller and therefore the one on one teaching was greater. In addition, the school grounds offered a great variety of play equipment with different areas for the different grades.
The Mother contended that every time she spoke with the child R she said words to the effect “I miss [K] and [M]. When is everyone coming home?” The Mother annexed a copy of a letter written by the child R to the Mother in about June 2005.
After July 2005 the child R visited the Mother a few times in Sydney and the Mother saw the child in Tasmania. The Mother gave evidence that on each occasion the children appeared very happy to see the child R as they gave her many hugs and kisses and followed her around the house. The Mother telephoned the child R and her parents in Tasmania approximately twice per week and the children were always eager to talk to them
On 16 August 2005 an order was made for the preparation of a family report.
The Mother contended that prior to moving to Tasmania she was in receipt of a sole parent pension of approximately $520 per week. She cancelled these payments upon moving to Tasmania and living with Mr G. The Mother later again received Centrelink parenting payments. The Mother was no longer receiving rental assistance. In addition Mr G was assisting to financially support the children and the Mother.
The Father was not paying any Child Support until about September 2005 and was in arrears. After September 2005 he made two child support payments totalling approximately $1,500 which included three months support. This was the maximum period of support the Child Support Agency could collect. The Father’s on going child support liability was $309.58 per month and the Mother was receiving these payments directly from the Child Support Agency.
On 2 September 2005 the Mother advised the Father that the children were not available due to a birthday party and requested that the children be picked up at 2:00 pm on 3 September. The Father agreed.
On 9 September 2005 the Mother again requested that the children not be collected by the Father due to the child R coming to visit from Tasmania. The Father did not agree. However, the Mother did not provide the children to the Father.
On the second occasion the child R travelled to Sydney she came for the Family Report interview on Monday, 12 September 2005. When the Mother requested the parents swap weekends so the children could see the child R the Father sent an SMS and said “You can’t have them this weekend – we have plans and I have to take the children to Court on Monday. I’ve already let you have them one weekend”. The Mother annexed to her affidavit copies of letters dated 6 and 9 September 2005 and 9 September 2005 written by the parties’ solicitors.
Mr G gave evidence that on 12 September 2005 he attended with the Mother, the maternal grandparents and the children at the Family Court at Parramatta. Mr G took time off work to attend the appointment. He introduced himself to the Family Consultant. However the Family Consultant did not interview Mr G despite his presence and willingness to participate in an interview. Mr G also gave evidence about a conversation he had with the Family Consultant. This was not put to the Family Consultant when the Family Consultant was examined in August 2007 and thus I am unable to make any finding as to what Mr G contends. However I would be concerned if there was any truth to what Mr G contended was said by the Family Consultant.
In September/October 2005 the Mother and the children were in Tasmania for the first half of the school holiday period.
The Mother contended that she missed the flight home on account of motor vehicle problems and cutting it too fine following the children not wanting to leave. As a result of staying an extra three days whilst waiting for the next flight the Mother agreed to extend the Father’s period of holiday time to ensure he had the same amount of time with the children as agreed.
The first Family Report was dated 6 October 2005. The Mother gave some evidence in relation to what was said in the report including what she described as the interview process.
Each party made complaints about the behaviour of the other and aspects of their respective care of the children since 15 July 2005. The Mother gave evidence about the Father inappropriately exposing the children to his relationships with other women, the child M’s toilet training, the sleeping arrangements for the children in the Father’s home and other matters. The Father and the paternal grandmother gave evidence critical of aspects of the Mother’s care of the children. The Family Consultant reported that the paternal grandmother:
…[c]ommented that she is concerned about the children’s health as they always have colds and their father takes them to the doctor as their mother does not take them. She noted that [the father] had to take [M] for her immunisations before she attended school as her mother had neglected to take her.
I am concerned about the manner in which the parents communicate with and deal with each other. The Mother contended that on several occasions the Father swore at her and called her names including “slut”, “slag”, “whore”, “idiot”, “bitch” and “lazy” both during telephone conversations and via SMS message. In about September 2005 the Mother received SMS messages from the Father in which he said “We’ll see whose dumb come November 14th you slag” and “[your parents are] trailer trash”. The Mother contended that the Father used the words “fuck” and “shit” in almost all conversations he has with her, often raising his voice and occasionally in the presence of the children. The Mother contended that when the Father speaks to her he is invariably demanding she make arrangements for the children to suit him in the same overbearing and controlling tone he used to talk to her in whilst the parents were together.
The Mother also contended that she noticed that the children [K] and [M] were also swearing on occasion saying “fucking dickhead”, “fucking bitch” and “fucking shut up” and the Mother was concerned they may be learning such language whilst in the care of the Father either from the Father personally or television and movies he was allowing them to watch.
The Family Consultant said:
[15.][The mother] commented she was stressed she cannot communicate with [the father] as he is verbally aggressive to her and she has to turn her mobile off as ‘he starts sending abusive messages or telling me what to do’. She wished that as parents they could discuss the children’s issues because the children know when she is stressed and they know when he telephones or texts her. She stated ‘It would be better with the distance between us. The children now come back from their father and ask me why aren’t I being nice to him and why am I so lazy. The distance would be better as he won’t be able to try to contact me and tell me what to do with my kids. I think I have done a pretty good job and I am proud of them’.
In answer to a question I asked in relation to the tenor of the written communications between the Father and the Mother Ms T described them as sarcastic and not conciliatory or civil.
The Mother contended that on about 16 October 2005, after collecting the children from the Father following his period of holiday time the child K said “Mummy can I have a drink” to which the Mother replied “1 minute, I’m just finishing this” as she was preparing some documents for her solicitor. The child K then said words to the effect “You’re lazy” to which the Mother replied “What did you say?” and the child K said “That’s what Daddy calls you. I hate it when he calls you lazy Mummy.” The Mother also contended that when the children returned from spending time with the Father she observed they “whine” more often and throw tantrums to try to get what they want. The child M in particular refused to listen to anyone and said “shut up” if she did not like what is being said. The Mother said that she did not give in to such behaviour and it usually took the children a day or two following their time with the Father to calm down and settle back into their routine. The Mother described the children as polite and obedient.
On 26 October 2005 on behalf of the Mother an affidavit was sworn by the maternal grandmother. She was not cross-examined.
On 9 November 2005 on behalf of the Father an affidavit was sworn by Ms W. She was a former neighbour of the Mother. She was not cross-examined.
On 9 November 2005 on behalf of the Father an affidavit was sworn by Ms N. Ms N is a store assistant and at one time was a former neighbour of the Mother at H. She was not cross-examined.
On 14 November 2005 on behalf of the Father an affidavit was sworn by Ms F. She is an office manager. At one time she was also a former neighbour of the Mother at H. She was not cross-examined
On 15 November 2005 on behalf of the Father an affidavit was sworn by Mr P. Mr P is employed by the New South Wales Department of Corrective Services as a Senior Correctional Officer and at one time was a neighbour of the Mother. He was not cross-examined
On 19 January 2006 on behalf of the Father an affidavit was sworn by Ms U, who is a property manager. She was not cross-examined. Ms U was the property manager of O Street, H in which the Mother resided prior to commencing to live in premises at M Street, H. Ms U said that when the Mother was living at O Street she always paid the rent on time and the residence was left clean and tidy. Ms U said that in April 2005 the Mother became behind in her rent payments and as a result she received a termination notice requiring her to vacate the property for failing to pay the rent on time. She said that in all her dealings with the Mother she found her to be pleasant, courteous, amicable and easy going. She did however say that the Mother gave no notice when she vacated the property and that it was left dirty both inside and outside.
After various case management orders were made, finally on 6 February 2006 an order was made that the matter be listed for final hearing for five days commencing on 26 February 2007.
In March 2006 the Mother gave birth to the child C.
In the September 2006 school holidays the Mother and the children were in Tasmania for one week.
In October 2006 the Father commenced a relationship with Ms T.
The Mother and the children were in Tasmania from 28 December 2006 until 9 January 2007. The Mother contended that at the conclusion of the holiday to Tasmania in January 2007 both children became upset when they had to leave to return to Sydney saying words to the effect “We don’t want to go” and “Can’t we stay longer?”
On 31 January 2007 the child M commenced to attend H Public School.
On 4 February 2007 the Father sent the Mother a text message asking if she was letting the children stay home for the child M’s birthday in February, which was a school day. The Mother replied to the message: “No they aren’t staying home from school you’ll have to celebrate her birthday on the weekend before her birthday”. The Father then wrote back saying “Are you saying I can’t see my girl on her birthday”. The Mother replied by saying “Well we have plans after school”. The Father then replied “That’s not nice to me or the children”. When the children returned from spending time with the Father they said hello and gave the Mother a kiss and cuddle. They then said words to the effect “You’re not being fair to Daddy, why aren’t you being fair”. The Father and the Mother eventually agreed that the Father could spend time with the children from the afternoon on Friday … February 2007 until before school on M’s birthday so that he could see the child M on the morning of her birthday. The Father was to drop the children off at school that morning and the Mother was then going to pick them up in the afternoon. On the morning of M’s birthday the Mother received a message from the Father saying words to the effect “I got up to take the kids to school but [K] didn’t feel too good and [M] wanted to stay home and play with her presents so what time would you like them back?” The children did not go to school on this day and the Father returned them between 10:30 am and 11:00 am.
On 6 February 2007 the Mother advised that the southern Tasmania residence was no longer the proposed address in Tasmania at which children would reside. On 6 February 2007 the Father’s solicitors requested an inspection of the southern Tasmania property
The Mother swore an extensive affidavit on 20 February 2007.
On 22 February 2007 an affidavit was sworn by Mr G.
The Father swore an extensive affidavit on 23 February 2007. It included a response to the affidavit of the Mother filed on 20 February 2007, the affidavit of the maternal grandmother filed on 28 October 2005 and the affidavit of Mr G filed on 22 February 2007.
I note that in his February 2007 affidavit the Father said that if the Mother decided to relocate back to Sydney and the children remained in the same schools then he “will agree to leave in place the orders that presently apply”. He contended that this way he would be able to keep an eye on the health, education and safety of the children.
On 22 February 2007 and affidavit was sworn by Ms T. Ms T gave evidence that she first met the Father in August 2006 and they began seeing each other regularly in early October 2006. In her affidavit Ms T said that she and the Father spent almost every weekend together and several nights a week. Ms T is employed as a secretary and has a 20 year old daughter from a previous relationship.
On 22 February 2007 on behalf of the Father an affidavit was sworn by his mother. She was born in October 1941. The father’s mother was cross-examined.
On 22 February 2007 on behalf of the Father an affidavit was sworn by Mr V who is the managing director of L Company. Mr V said that in the event that the children reside with the Father then there is no problem with the Father working part-time hours in accordance with the school day. Mr V was cross-examined.
The Mother gave evidence in reply to the affidavit evidence of Ms F, Ms W, Ms U and Mr P.
As it transpired because of the unavailability of a Judge in the Parramatta Registry of the Family Court and the availability of a Judge in the Sydney Registry, the matter was listed before me in the Sydney Registry on 26 February 2007. On 26 February 2007 I commenced the hearing and then made the following orders:
1.The hearing be adjourned part heard.
2.The further hearing be conducted pursuant to Division 12A Part VII Family Law Act 1975 (Cth).
3.Mr [O], Family Consultant, prepare as soon as practicable, an up to date Family Report.
4.It be NOTED that at the further hearing the parties, subject to objection, will rely on the affidavits read today.
5.It be NOTED that Mr [O] anticipates that the further Family Report will be completed within four weeks.
6.Each of the parties file and serve within 14 days an affidavit in which they provide evidence as to their financial circumstances including evidence in relation to the matters in rule 13.04 Family Law Rules and further their capacity to meet the orders which they each seek.
7.The dates for the further hearing will be arranged after the completion of the Family Report and consultation with the parties’ legal representatives.
On 4 April 2007 I made an order in chambers that a copy of the second family report be released to the parties.
On 5 April 2007 arrangements were made for the Family Consultant to be available for oral examination on 17 April 2007. On 17 April 2007 the Family Consultant was orally examined and I then made the following orders:
1.The hearing is adjourned to a date to be arranged by Counsel with my Associate. [1 and 2 August 2007]
2.It be NOTED that the further hearing will occupy no more than two days.
3.Order 6 made on 26 February 2007 be amended to provide that the affidavits therein referred to be filed and served within 21 days of today’s date.
On 28 July 2007 a further affidavit was sworn by the Father.
The matter was then listed for further hearing before me on 1 and 2 August 2007. However 1 August 2007 the hearing was adjourned to a date to be fixed because of the Mother’s ill health. Thereafter I was unable to list the matter before me until 4 February 2008.
The hearing continued on 4 and 5 February 2008. Again there were difficulties. The transcript will reveal precisely what I was told. Then on 11 February 2008 I made the following orders:
1. The hearing is adjourned.
2.It be noted that the balance of this hearing will be conducted by way of written submissions.
3.The Father and the Mother are to lodge with my associate by 4 pm on 25 February 2008 a minute of orders in which there is set out what is agreed and what remains at issue and further a written outline of submissions in relation to the matters that remain in dispute.
4.It be noted that upon receipt of the documents referred to in the preceding order, the hearing will have concluded, unless as the result of anything said in that material I wish to hear further from counsel for each of the Father and the Mother.
5.I note I have been informed and accept that substantial agreement has been reached in relation to where the children will ordinarily reside during the school term on the basis that they will attend school in New South Wales and the Mother will ordinarily reside in Tasmania and that the remaining areas of dispute are largely directed to the amount of time the Mother will spend with the children during the school term and how that will be implemented.
I then received a minute of proposed orders and written submissions.
The Mother and Mr G plan to marry in the future and are hopeful that they may reside with the children in Tasmania.
The Mother and Mr G had intended to reside at Mr G’s property in southern Tasmania with the maternal grandparents, siblings, nieces and nephews and Mr G’s parents living close. The Mother provided a diagram, which included dimensions of the property and a plan of proposed extensions which it was intended would be undertaken to the property. In her February 2007 affidavit the Mother gave evidence that she and Mr G had not undertaken the renovations and intended to live in a home in a suburb of Hobart owned by Mr G’s parents. Mr G was working in the North-West Reigon of Tasmania and it was decided to move to the home of Mr G’s parents in Hobart. Mr G’s parents no longer reside at the house and have moved to northern Tasmania closer to where Mr G and his Father were working. The intention was that the maternal grandparents would reside in the southern Tasmanian property which is approximately half to three quarters of an hour drive away and would still be able to provide support if ever needed. The children would attend the local Public School which is only a short distance away and the Mother would be able to walk the children to and from school each day.
In her February 2007 affidavit the Mother said that it was her and Mr G’s intention to buy a four or five bedroom house on a large property at R or the surrounding suburbs hopefully in about six months time. The Mother said that R is close to the cities of Davenport and Ulverston and the beach and the children will have the benefit of being able to experience country, city and beach life everyday. Once they moved to R, the children would need to travel to and from Sydney via Launceston airport. The Mother said that once they have purchased a property they intend to utilize the land by growing vegetables, apples, strawberries, plums, apricots and peaches. In addition they intend to grow water chestnuts and hazelnuts to be sold to Cadbury’s. They also hope to extend their livestock to include sheep, goats, pigs, geese and some more cows. Mr G gave evidence that he and the Mother have now decided to bring forward the plan to acquire a property near Launceston rather than live for any extended time in the home at Hobart or southern Tasmania. Mr G is going to rent the property in southern Tasmania and the maternal grandparents will have to acquire rented accommodation elsewhere.
The Mother intended to continue to be a homemaker and parent in Tasmania and also undertake the role of bookkeeper for Mr G’s businesses. The Mother anticipated that such work would not take long and when the children are in her care would be done after the children have gone to bed. The Mother also intended enrolling in a small business course.
The Mother contended that she and Mr G had made many offers to contribute financially to the cost of the airfares associated with facilitating the Father’s time with the children if they were to reside in Tasmania. The Mother contended that from her observations of the children they appeared to enjoy travelling by plane from Sydney to Tasmania (and visa versa) which typically takes under two hours. The Mother contended that the cost of the plane tickets has varied from $80 to $220 one way. The Mother annexed to her affidavit a printout her solicitor obtained from the Flight Centre website dated 20 February 2007 of an example fare for return flights between Sydney and Hobart and also Sydney and Launceston.
The Mother had proposed that if she was permitted to move to Tasmania with the children she proposed that the Father have time with children for all of the Term 1 and Term 2 Tasmanian school holidays and half the Christmas school holidays as well as time whenever he visits Tasmania. The Mother would keep the Father informed of all school events via email and to send him photos of the children for any events he is unable to attend.
The Mother had told me that if she was not permitted to move to Tasmania with the children then it was Mr G’s intention to move to Sydney to be with the family. The Mother said that the child R would have also returned to Sydney.
Mr G has his own business and is a telecommunications officer working for a company which subcontracts to Telstra. He has lived in Tasmania for approximately three years and is paying off a property in southern Tasmania, which is an 18 acre property.
The Mother’s parents, three siblings, eight nieces and nephews and Mr G’s parents reside in Tasmania. The Mother contends that the large family offers her and the children significant support.
The Family Consultant interviewed
[28.](Paternal Step-Grandparents) commented that Mr [G] had secured contracts with Telstra and that [the paternal step-grandfather] noted his son is ‘very helpful and I can call on him. If he goes I will be short a person with his skills. If he moves up near us we can arrange a house for them’. They reported that they lived in [northern Tasmania] and they could assist the family to establish themselves in the area. They stressed that ‘[Mr G] and [the mother] were made for each other and [Mr G] treats the children no differently than if they were his own’. They noted they had a son in Western Australia and if [Mr G] moved to New South Wales then they would miss seeing their children and grandchildren.
[29.][Mr G’s parents] recalled that both [the mother] and their son wanted to start to settle down as a family but ‘are being torn apart every two weeks and [Mr G] is very upset that he has to leave [the mother] and the baby’. They stressed ‘[the mother] is a great mother and is extremely loving and protective’.
The Father proposes to continue to reside in the home at S in Sydney.
CONCLUSION
On behalf of the Father it was submitted, and I agree, that the issues for determination do not require an exhaustive dissection and consideration of s 60CC of the Family Law Act, as both parties appear willing to implement a raft of Orders that meet the matters contained in s 65DA and s 65DAA 2 of the Act. Thus in the circumstances I am not going to deal seriatim with each of the statutory considerations. I am also not going to repeat the submissions.
On behalf of the Father it was submitted that the issues remaining are those arising from a consideration of s 60CC(3)(e) namely the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis. This is an important matter but not the only matter.
I am satisfied that both children have a close and loving relationship with both parents and also a strong attachment to both parents. As to Mr G the Family Consultant said:
[38.]Mr [G] was friendly and engaging with all the children and he appeared to add energy and enthusiasm to the children and their play. He was able to respond to the two children and the two children appeared to be excited by his active, open and joyful play with them.
I am also satisfied that the children have a good relationship with Mr G.
On behalf of the Mother it was submitted that if the Mother does not have the time sought then the period between the time that the children see their mother will be some six to eight weeks. In final submissions I was provided with calendars which indicated by way of circle the nights that the children will spend with the Mother each year. Although the dates of the weekends do not change there is some alternating with respect to school holidays. This is reflected in both the documents. The square bracket indicates the disputed periods thus highlighting the extended periods when the children will not be seeing their mother if the Mother’s submission as to those weekends is unsuccessful.
On behalf of the Mother it was submitted that I would seriously consider, within reason, the optimum arrangement to enable the children to see the non-primary caring parent which would necessarily occur by plane travel. It was submitted that there was no real evidence to indicate that the children would not be able to cope with travelling by plane on two occasions during the first, second and third term periods. The Father was challenged as to his view about the issue of the children coping and his view being “it’s too much for them” or similarly worded. It was submitted that there was no expert evidence to indicate the children could not cope.
The children for some years have spent more time with the Mother than with the Father. It was submitted, and I accept, that they have lived with her in circumstances where they would perceive her to be primarily caring for them during school periods. The evidence would indicate that the Mother has been more involved with the children’s schooling in a significant way as compared to that of the Father. Consequently I accept that they need to go through a significant adjustment and seeing far less of their mother than they ever have at any time in their lives. It was submitted that I am then faced with the situation where the Father argues issues of tiredness or difficulties relating to the children leaving school early, which are far outweighed by the children’s need to have face to face time with their mother. The Mother is prepared to meet the cost of travel and organise travel between her premises and Sydney Airport and return.
I am concerned about the adequacy of the time the children spend with the Mother. I am concerned about the relationship of the parents. I am concerned about the attitude of the Father towards the relationship of the Mother and the children. I am concerned the Father appreciates that it is very important that the children have the opportunity to have and maintain a meaningful relationship with the Mother and that if this causes some inconvenience or hardship to the Father then that is a necessary and inevitable consequence.
Submissions were made on behalf of the Father about how he would be required to miss half a day of work on each of the seven occasions. However, I understood the evidence of the Father to be that he can support the children and that his employer is willing to be flexible about hours of work.
Submissions were also made on behalf of the Father about the living arrangements proposed for the disputed visits, and the lack of any evidence as to the distance from where the Mother would propose to exercise the additional time, and the travel time and availability of travel from her residence to the airport. Submissions were also made about the ability of Mr G to meet the cost for the additional four return trips. I do not accept these submissions.
The proposed regime contemplates that during New South Wales term school holidays the children will live with the Mother for 16 nights in the second term school holidays, commencing in 2008; for 12 nights in the third term school holidays commencing in 2008, for 24 nights in the fourth term school holidays and for five nights in the first school term school holidays. This school holiday regime is agreed. As to the school term regime it is agreed that the children will live with the Mother in the months of:
1. February for two nights.
2 March for three nights
3. May for two nights
4. June for three nights
5. August for three nights
6. October for two nights
7. November for three nights
There are other periods that I need not repeat. The Father seeks that the periods in February, March, May, October and November be spent with the children in Sydney. He only proposes that the periods in June and August be spent in Tasmania.
I am of the view that it is in the best interests of the children that they see their mother at least once every month and thus I propose to make orders to ensure that this occurs. However I am concerned about the effect on the children of travel during the school term. I therefore propose that in the months of February, March, August and November the children will spend time with the Mother in Tasmania for three consecutive nights. The Mother will also have the opportunity to spend time with the children in Sydney.
As to the requirement that the children be accompanied by an adult this will apply until the commencement of 2010. As at February 2010 the child K will be aged 11 years and the child M will be aged nearly 8 years.
I certify that the preceding one hundred and sixty seven (167) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan
Associate:
Date: 6 June 2008
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Jurisdiction
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Remedies
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Procedural Fairness
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