Reynolds and Webster
[2016] FCCA 1208
•27 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| REYNOLDS & WEBSTER | [2016] FCCA 1208 |
| Catchwords: FAMILY LAW – Relocation to Western Australia – Views expressed by children – Potential separation of siblings – Relocation not permitted – Live with and spend time arrangements – Best interests. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Taylor & Barker [2007] FamCA 1246 Morgan & Miles (2007) FLC 93-343 |
| Applicant: | MS REYNOLDS |
| Respondent: | MR WEBSTER |
| File Number: | HBC 130 of 2015 |
| Judgment of: | Judge Baker |
| Hearing dates: | 19 and 22 April 2016 |
| Date of Last Submission: | 22 April 2016 |
| Delivered at: | Hobart |
| Delivered on: | 27 May 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Trezise |
| Solicitors for the Applicant: | Dobson Mitchell & Allport |
| Counsel for the Respondent: | Ms Jones |
| Solicitors for the Respondent: | Butler, McIntyre & Butler |
ORDERS
Ms Reynolds (“the mother”) and Mr Webster (“the father”) have equal shared parental responsibility for the children, X born (omitted) 2001 (“X”), Y born (omitted) 2004 (“Y”) and Z born (omitted) 2009 (“Z”) (collectively, “the children”).
Each party will keep the other informed concerning the children’s health generally, and contact each other as soon as practicable if any of the children suffers a significant adverse medical condition or injury.
In relation to the aspect of parental responsibility concerning the children’s extra-curricular activities:
(a)Neither parent will enrol a child in an extra-curricular activity which impinges upon the other’s time without the prior agreement of the other parent;
(b)Each parent will facilitate the attendance of the children at agreed extra- curricular activities.
For the purposes of parenting the children, the mother and father will inform each other within 3 days of any change of that parents’ contact address or contact telephone number.
Each party be and is hereby restrained from consuming alcohol to excess twelve hours before or during time with the children or any of them, and “to excess” is defined as exceeding a concentration of 0.05 of a gram of alcohol in 210 litres of breath or a concentration of 0.05 of a gram of alcohol in 100 millilitres of blood.
Each party be and is hereby restrained from denigrating, threatening, harassing or verbally abusing the other in the presence of the children.
The children live with the mother in Tasmania.
Commencing Friday 3 June 2016, the children spend time with the father:
(a)During the school terms, each alternate weekend from the conclusion of school on Friday (or 4:00 pm if not a school day) until the commencement of school on Tuesday (or 10:00 am if not a school day); and
(b)In the mid-term school holiday periods, for one half of the school holiday period, being the first half of the school holidays in 2016 and each alternate year thereafter, and the second half of the school holidays in 2017 and each alternate year thereafter; and
(c)In the summer school holidays, each alternate week commencing on the first Friday of the school holiday period in 2016 and each alternate year thereafter, and commencing on the second Friday of the school holiday period in 2017 and each alternate year thereafter, with changeover to occur each Friday at 5:30 pm.
Notwithstanding paragraph 8, at Christmas the children will spend time:
(a)Unless otherwise agreed, in 2016 and each alternate year thereafter, with the mother from 11:30 am Christmas Eve until 11:30 Christmas Day, and with the father from 11:30 am Christmas Day until 11:30 am Boxing Day;
(b)Unless otherwise agreed, in 2017 and each alternate year thereafter, with the father from 11:30 am Christmas Eve until 11:30 am Christmas Day, and with the mother from 11:30 am Christmas Day until 11:30 am Boxing Day.
Notwithstanding paragraph 8 above, at Easter the children will spend time:
(a)In 2016 and each alternate year thereafter, with the mother from 4:00 pm Easter Saturday until 4:00 pm Easter Sunday, and with the father from 4:00 pm Easter Sunday until 4:00 pm Easter Monday;
(b)In 2017 and each alternate year thereafter, with the father from 4:00 pm Easter Saturday until 4:00 pm Easter Sunday and with the mother from 4:00 pm Easter Sunday until 4:00 pm Easter Monday.
Children’s birthdays:
(a)If on a school day, then the parent who does not have care of the child on that day will have time from the conclusion of school until 7:00 pm with the children;
(b)If on a non-school day, then the parent who does not have the care of the child will have time from 2:00 pm until 7:00 pm with the children.
Father’s birthday: if not otherwise in the care of the father, from the conclusion of school or 3:00 pm on the day of the birthday until the commencement of school, or 10:00 am if a non-school day, on the next day.
Mother’s birthday: if not otherwise in the care of the mother, from the conclusion of school or 3:00 pm on the day of the birthday until the commencement of school, or 10:00 am if a non-school day, on the next day.
If the children are not otherwise in the care of the mother, they will spend time with the mother on Mother’s Day weekend from 5:00 pm on the Saturday before Mother’s Day until the commencement of school on Monday (or 10:00 am if it is not a school day).
If the children are not otherwise in the care of the father, they will spend time with the father on Father’s Day weekend from 5:00 pm on the Saturday before Father’s Day until the commencement of school on Monday (or 10:00 am if it is not a school day).
The parents spend time with the children at such further or other times as agreed.
Each parent have all reasonable telephone and other communication with the children and each parent will facilitate the children calling the other parent at any reasonable time.
The mother be and is hereby restrained from bringing any of the children into contact with Mr D.
Each party be and is hereby restrained from physically disciplining the children.
Changeover will occur as follows:
(a)On school days, at the children’s schools with the children to catch the bus to the home of the parent with whom they are spending time; and
(b)On non-school days at the (omitted) shop unless otherwise agreed between the parties.
IT IS NOTED that publication of this judgment under the pseudonym Reynolds & Webster is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT HOBART |
HBC 130 of 2015
| MS REYNOLDS |
Applicant
And
| MR WEBSTER |
Respondent
REASONS FOR JUDGMENT
This is an application for parenting orders in respect of three children of the parties, X born (omitted) 2001 (“ X”), Y, born (omitted) 2004 (“Y”) and Z born (omitted) 2009 (“Z”). The parties have another son, W, born (omitted) 1999 (“W”). Neither party sought orders for W. The mother also has an adult son, V, from a previous relationship.
The mother of the children is seeking to relocate the children’s residence from Tasmania to Western Australia (“W.A.”). If she is not permitted to do so, the amount of time the children should spend with each parent is in dispute.
Background
The parties commenced a relationship in 1993 and married in (omitted) 1997. They separated on 20 December 2012.
The parties lived in Tasmania until around 2010. They then travelled for an extended holiday. They decided to stay in W.A. so that the father could secure employment in the (omitted) industry. The family lived in a caravan and the father worked in a fly in fly out position two hours from Perth. In December 2012, the mother and the children returned to Tasmania for six weeks and subsequently returned to live in Perth. The mother said she was in a relationship with Mr D between March and September 2013.
In late 2013, the mother and the children returned to live in the former family home in (omitted), Tasmania. The (omitted) house has been sold recently.
The father returned to live in Tasmania in early 2013. In November 2013, he returned to W.A. where he worked for four months. In March 2014, he returned to live permanently in Tasmania with his parents in (omitted).
In March 2015, the father became concerned that the mother was planning to return to live in W.A. with the children. He retained the children in his care for several days until the mother gave an undertaking that she would not leave Tasmania with the children.
Interim orders were made in April 2015 that X, Y and Z live with the mother and spend time with the father each alternate weekend. It was ordered that W live between the parties in accordance with W’s wishes. Since then W has lived with the father in the paternal grandparents’ home and spent time with the mother. He currently lives with his girlfriend’s family.
In July 2015, the mother travelled to W.A. She stayed there for four weeks, leaving the children with their father. The father told the Family Consultant, Ms M, that the mother had not given notice to him about her trip. He did not know when she intended to return, so he moved into the former family home in (omitted) with the children.
When the mother returned to (omitted), there was an incident at the home. The mother obtained a police family violence order against the father.
The children currently live with the mother in (omitted). X attends (omitted) School in (omitted). Z and Y attend (omitted) School in (omitted). The children’s brother, W, attends (omitted) College.
Current circumstances of the mother
The mother works as an (occupation omitted), performing (omitted) work and (omitted). She is employed on a casual basis but works full-time hours. She said she took unpaid leave from her job as a (occupation omitted) because it paid $14 per hour and required a lot of study. She intends to resume her (omitted) training once this litigation has been finalised.
During cross-examination, the mother indicated that she has a new partner who lives in (omitted). She has been in a relationship with him for several months. She said that he is not intending to relocate with her because she has not discussed a move with him. She said the children have met him, like him and spend time with him.
On 16 February 2016, when asked if she would relocate to W.A. without the children, the mother told Ms M that she was undecided about what she would do. She said that relocating to W.A. is her priority but she would not want to live there without the three younger children being in her care.
In her affidavit sworn on 19 April 2016, the mother said that if she is unsuccessful with the relocation, the children should live with her and spend four nights each fortnight with the father. She said this is a similar arrangement to what already occurs and there would be no difficulty in maintaining that routine.
On the same day as she swore her April affidavit, during her examination-in-chief, the mother was asked whether she would relocate to W.A. if she is not permitted to relocate the children. In contrast to her affidavit evidence, her answer was, “I haven’t considered that at this stage”.
Also in her oral evidence, the mother said that she does not know where she will live if she stays in Tasmania but she intends that the children remain at their current schools.
If the mother is permitted to relocate the children to W.A., she proposed that they return to the primary school where they attended from 2010 to 2013. However, X would go to the high school where she “assumes children from his previous primary school attend”.
The mother said that her preference is for all three children to move to Perth with her. She said that if X is adamant that he does not want to go, she will not force the issue. She believes that Y and Z will be able to adjust in Perth.
The mother does not have accommodation in Perth. She does not have employment there. She believes she can find a job. She asserted that there are more opportunities in Perth than in Tasmania. This is notwithstanding that in March 2015, she was employed as a (occupation omitted) and worked five days full-time. In her March 2015 affidavit she said, “I prefer living in Western Australia and am presently investigating job opportunities, housing and schooling in the (omitted) area from which we moved in 2013”.
The Father
The father lives in a caravan on his parents’ property in (omitted). Once he has a clearer understanding of the care arrangements for the children, he intends to obtain private rental accommodation in the area. His parents’ home is a four-bedroom home. The children sleep in the home and he sleeps in the caravan.
The father is employed as a (occupation omitted). He works long hours but does not work when the children are in his care. If the children are to spend more time with him, he intends to find alternative employment so he can be available before and after school to take the children to and from school.
The father has a new partner, Ms R. They do not live together but spend time together with the children.
Proposals
Both parties sought an order for equal shared parental responsibility for the children.
The mother proposed that X, Y and Z live with her in W.A.; they spend time with the father in Tasmania for the Term 1 and Term 3 school holiday periods and for one half of the Christmas school holidays; the parties equally share the costs of the children’s travel; and, the father spend time with the children in W.A. at any time at his own expense. She proposed telephone and Skype communication on a regular basis.
On 10 May 2016, counsel for the mother was asked to clarify her proposals set out in her case outline, in the event that she is not permitted to relocate the children’s residence. A minute of proposed orders dated 11 May 2016 prepared by the mother’s solicitors indicated that, in the event she is not permitted to relocate the children, they live with her in Tasmania and spend time with the father each alternate week from Friday to Tuesday and for half of each school holiday period. She also proposed special day time for each party.
The father opposed the relocation of the children and proposed that they live in a week-about shared care arrangement, with handovers on Friday at the conclusion of school. He also proposed special day time for each party.
Evidence
The mother relied on her affidavits filed 27 March 2015, 29 October 2015 and 19 April 2016.
The father relied on his affidavits filed 4 May 2015 and 14 April 2016, the Child Dispute Conference Memorandum dated 5 May 2015 and the Family Report dated 1 March 2016.
The Family Report
The Family Consultant, Ms M, outlined in detail the background and circumstances of the family. She interviewed the parties, X, Y and Z. She observed the children with each parent and then with their brother W. She then observed the children return to their mother, accompanied by W and a brief meeting between W and his mother. She had a further brief session with the mother and the father and an interview with W.
Ms M recommended that the children continue to live in Tasmania. Should each parent continue to live in Tasmania, she recommended that they live with their mother and spend significant and substantial time with their father (four or five nights each fortnight). If the mother relocates to W.A., the children should spend time with her at least once each year and half or more of each holiday period in Tasmania. If the mother is available in Tasmania during school terms, the children could spend additional time with her on weekends and if she is able to transport them to and from school on school nights.
Ms M was cross-examined by Counsel for both parties. She did not change her recommendations. She is a psychologist and a very experienced Family Consultant. I place weight on her evidence.
Relevant Law
These are parenting proceedings. Section 60CA of the Family Law Act 1975 (“the Act”) provides that when a Court is determining whether to make a particular parenting order in respect of a child, the child’s best interests is the paramount consideration.
The Full Court of the Family Court in Taylor & Barker[1] referred to the logical approach which should be followed in relocation cases and suggested that s.60CC of the Act should be considered first, followed by s.61DA and s.65DAA.
[1] [2007] FamCA 1246.
The Full Court said that the preferred approach in relocation cases is not to deal with the relocation as a separate and discrete issue but rather as just one of the proposals of the child’s future living arrangements.[2]
[2] Ibid, at para 53.
The competing proposals of the parties need to be properly considered against the criteria in s.60CC of the Act, informed by s.60B. If an order for equal shared parental responsibility is made, the court is required by s.65DAA(1) and s.65DAA(2) to consider whether the child spending equal time with each of the parties is in the child’s best interests and is reasonably practicable. If the court does not make an order for equal time, it is then required to consider whether it is in the child’s best interests, and whether it is reasonably practicable for the child to spend substantial and significant time with each of the parties. It must be considered whether such arrangements are reasonably practicable by addressing matters in s.65DAA(5). Section 65DAA provides a framework to consider the advantages and disadvantages of the several time scenarios but also other results which may be in the child’s best interests, including the proposal to relocate.[3]The advantages and disadvantages of that proposal can be balanced against the advantages and disadvantages of an equal time or substantial and significant time arrangement.[4]
[3] Sayer & Radcliffe and Anor [2012] FamCAFC 209, at para 53.
[4] Taylor & Barker [2007] FamCA 1246, Duggan & Duggan [2009] FamCAFC 115, Heaton & Heaton [2012] FamCAFC 139.
The children’s best interests remain the paramount but not the sole consideration.[5] They must be weighed and balanced with the right of the proposed relocating parent’s freedom of movement.[6] The parent wishing to move does not need to demonstrate compelling reasons. He or she does not have an onus of establishing a bona fide reason for the proposed relocation; however, the prospects of better employment opportunities, better housing, and enhanced economic circumstances are relevant matters and may assume significance in the determination of best interests.[7]
[5] Family Law Act 1975 (Cth), s.60CA.
[6] Morgan & Miles (2007) FLC 93-343.
[7] Heath & Hemming (No 2) [2011] FamCA 749, at para 105.
Section 60B sets out the objects of Part VII and the principles which underlie those objects. They are as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The court determines the children’s best interests by considering the primary and additional considerations set out in s.60CC of the Act. I shall now turn to consider these factors.
Primary considerations
Section 60CC(2)(a)
Section 60CC(2)(a) provides that when considering the best interests of a child, the court is required to consider, “the benefit to the child of having a meaningful relationship with both of the child’s parents”. This consideration is informed by s.60B(1)(a) of the Act, which provides that the best interests of a child are to be met 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
The children have close and loving relationships with both parents. Both parents acknowledge that it is of benefit to the children to have a meaningful relationship with each parent in the future.
I consider it is of benefit to the children to have a meaningful relationship with both parents.
Section 60CC(2)(b)
Section 60CC(2)(b) provides that when determining the best interests of a child, the court is required to consider, “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.
Section 60CC(2A)
Pursuant to s.60CC(2A), when applying the considerations set out at ss.60CC(2)(a) and (b) the court is to “give greater weight to the consideration set out in paragraph (2)(b)”. Section 60CC(2A) must be read alongside ss.60CC(2)(a) and (b).
The court is, therefore required by this section to prioritise the protection of children from harm.
The mother alleged that the father physically disciplined the boys by smacking them, although not recently. She does not believe that the children are at risk of abuse, neglect or family violence from the father.
In respect of Mr D, the mother did not deny that he was violent towards her. She said she was in a relationship with him between March 2013 and September 2013. She conceded that he was threatening towards Z in September 2013. She said he went to hit Z, she intervened and he then threatened her. During cross-examination, she conceded that he was threatening towards W, although she had said in her affidavit filed 27 March 2015 that the September incident was a one-off act of aggression.
W told Ms M that he had screamed at him, physically assaulted him and threatened to kill him. Ms M gave evidence that W’s connection with his mother is strained. W is angry and disappointed with her because of her relationship with Mr D. He believes that she has maintained a relationship with him.
During her oral evidence, the mother agreed to an order to restrain her from bringing the children into contact with Mr D. She denied that she is still in a relationship with him. She believes that she last saw him in 2014. She said that she has no intention of resuming a relationship with him. During cross-examination it was suggested to her that there was a photograph of them together on Facebook last year when she travelled to W.A. for her birthday. She said “what was on Facebook I don’t know… not as far as I’m aware”. Her answer that she did not see him last year was unconvincing.
I consider that a restraint order should be made preventing the mother from bringing the children into Mr D’s presence. If she takes the children to W.A. for a holiday, they need to be protected, in the event that she sees him in the presence of the children.
I turn now to a consideration of each of the relevant s.60CC(3) factors.
Section 60CC(3)(a)
any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
X told Ms M that if his mother moves to W.A., he would prefer to remain living in Tasmania. X told his mother that he does not want to move to W.A. She has told him to leave his options open.
X did not volunteer that he wanted equal time with both parents. He was asked by the Family Consultant about the possibility of living week-about and he was favourable about this. Ms M’s oral evidence was that he would probably be fine with equal time.
Y told Ms M that his mother wants to live in W.A. but he does not really want to live in W.A. He has said he has friends and family living in Tasmania, but does not have anyone of significance living in W.A. He said that if his mother moves, he would rather live with his father in Tasmania.
Z has expressed a view that she would like to go to W.A. but she wants to see her father every second weekend. She does not understand the impact of a move and believes that she will continue to spend regular time with her father every second weekend.
Ms M said that all the children impressed as presenting their own thoughts and feelings, without discussions with each other or with their parents.
I place weight on the views of X and Y, having regard to their ages. I do not place weight on Z’s view, given her young age.
Section 60CC(3)(b)
the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The father acknowledged that the mother is “a great mother” and the children have a loving and close relationship with her.
The children also have a close and loving relationship with the father. The mother said that the children love him and enjoy spending time with him. She believes that the boys think of him as the “fun” parent. She said Z loves to spend time with him.
The children have a loving relationship with the maternal grandmother. The mother said that although the children have a good relationship with her, she cannot provide any practical support, due to her age. The mother said that the children have a close relationship with her friend Ms L, who lives in W.A. They refer to her as Aunty Ms L.
The paternal grandmother has a close and loving relationship with the children. They live in her home when they are spending time with the father. She has been involved with the care of the children and the care of their older brother W. She assists the father by driving the children around from time to time. X told Ms M that he enjoyed it when the paternal grandmother assisted with their school routine when his mother was in Perth.
The children have a good relationship with the paternal grandfather. They spend time with the paternal uncle regularly.
The children have a close relationship with each other and with W. They get on well together.
Section 60CC(3)(c)
the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The mother has made major decisions for the children, such as moving states, changing their schools and arranging medical appointments. After she returned to Tasmania with the children, the father returned to W.A. and remained there for several months. The mother made the decisions about enrolling the children at school. The mother has made efforts to keep the father informed about medical issues in relation to the children.
The father did not spend time with the children between around October 2014 and February 2015, when he was in W.A.
Section 60CC(3)(ca)
the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The mother has fulfilled her obligations to maintain the children.
The father did not pay child support for several years between separation and late October 2015. He has a child support debt of $10,000, which he commenced repaying in November 2015. He now pays the assessed amount. The mother is currently receiving $400 per week from him, including payments for the debt.
The father said that he accumulated a child support debt because he did not work for some time and it was his failure to not deal with it each week. He admitted that he was “lazy”. He said that he was disorganised and did not refuse to do anything, he was just busy.
The father’s income is around $1,000 - $1,200 net per week. This varies depending on the hours he works. He intends to make further financial contributions by contributing to school fees. If the children live with him on an equal shared basis, he intends to take them to school and collect them from school. He intends to change employment so that he can be more available to do this.
Section 60CC(3)(d)
the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The mother acknowledged that X does not want to move to W.A. with her. She gave evidence that she would not force him to move. The siblings will be separated, if X stays in Tasmania and Y and Z move with the mother.
It is ordinarily in the best interests of siblings to remain living together if they have a good relationship with one another. This can provide them with a sense of stability and support as they grow up. In the decision of Bennett & Bennett,[8] the Full Court of the Family Court held that the separation of two children close in age, and who have lived together for so long, was a most serious step, which could only be justified in compelling circumstances.
[8] (1991) FLC 92-191.
Ms M was of the view that if the mother takes X to W.A. against his wishes, he may become difficult for her. He has expressed a firm view about wanting to remain in Tasmania. This would be likely to impact, particularly Y, and possibly Z, especially if they share X’s view that relocating was not a desirable outcome for them.
A disadvantage of a move to W.A. for the children is that they will be separated from their father. The children would not be spending regular weekend time with the father. Instead they will be spending only holiday time three times per annum, and any times he visits W.A., on the mother’s proposal.
The mother agreed that the children’s extended family is in Tasmania. Ms M said that if the children relocate and only have the mother as their support, without other family, this places a greater reliance on her. In Tasmania there are other family members to turn to.
Ms M did not agree that it would be a better outcome for Z to move with her mother, than to be left in Tasmania without her mother. The positive aspect of a move for Z is that she would be living with her mother, with whom she has her closest relationship. However, this would be “at the distance” of her close relationship with her father, her brothers and other relatives. She believes that the cost would be too great to her. Z does not understand that if she moves with her mother, she would not see her father and her other relatives regularly. She believes that she will have lots of fun in W.A. with lots of activities and she will be able to see her father and other relatives regularly.
Ms M said that it was difficult to “piece together” the mother’s reasons for wanting to move to W.A. She gave evidence that the mother indicated to her that she wants to move away from the (omitted) area, and preferably away from Tasmania, to re-establish herself. The mother conceded that she could move elsewhere in the greater Hobart region in order to have a fresh start but she had not looked into this and saw it as an undesirable second option.
If the mother relocates the children to W.A., they will need to change schools again. They have had several changes of schools over the years. The mother did not give any details about schools or evidence of whether there are places available for them. She proposed that the children attend the same school they attended when they were in Perth from 2010 to 2013. She “assumed” that children who attended the primary school would now be at the high school where X will attend.
Ms M was of the view that the children have benefited from travelling and being exposed to other places. However, for this stage in their lives, particularly for the older children, she believes there will be greater benefits to them to have future stability for their school and living arrangements. The children would need to make new friendships and adjust to a new school if they have to move. Ms M was of the view that Z, being younger, would be able to adjust more easily.
Section 60CC(3)(e)
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;
Ms M was of the view that if the children move to W.A., they all have the ability to maintain a relationship with the father, although this is dependent on the parents’ financial ability to maintain time.
I consider that the mother had not put any substantial thought into how she will pay for the cost of airfares. There was no affidavit evidence about her financial circumstances. She said in her affidavit filed 19 April 2016, that she will receive a portion of the sale proceeds of the (omitted) property. She said “the amount which I will receive will be sufficient for me to put a deposit on a new home for the children and myself”.
The mother also gave oral evidence that she earns $30,000 per annum “probably”. She receives a family tax benefit of $1,000 per fortnight and a single parent’s pension of $600 per fortnight.
She did not produce any evidence about the cost of flights until I asked her to do so. She then indicated that the cost of a flight per person is around $300 one way and said that she can afford the flights for the children three times each year.[9] She did not state that she would use these funds for the cost of travel for the children. In contrast to her affidavit evidence, in her oral evidence she said that she will be able to use funds from the sale of the matrimonial home for flights.
[9] Exhibit M1.
The mother does not yet have employment in W.A. She asserted that there are more opportunities in Perth than in Tasmania. This is notwithstanding that in March 2015, she was employed as a (occupation omitted) in Tasmania and worked five days full-time. In her March 2015 affidavit she said, “I prefer living in Western Australia and am presently investigating job opportunities, housing and schooling in the (omitted) area from which we moved in 2013”.
In July 2015, she applied for and was offered a job in Perth as a (occupation omitted). She turned it down when she did not obtain the father’s consent to relocate with the children.
The father also did not provide any affidavit evidence about his income and expenses. He said that the cost of flights would put a huge financial burden on him and is not economically feasible for him. Z would not be able to fly unaccompanied. He does not believe that the parties would be in a position to be able to purchase return flights for all three children and an accompanying adult, several times per annum.
The father gave oral evidence that his income is around $1,000 - $1,200 net per week. He is paying a child support debt of $10,000. If he moves to alternative accommodation, he will have rent to pay. He currently lives in a caravan and does not pay rent.
I consider that the financial circumstances of the parties will create a practical difficulty and expense of the children spending time with and communicating with the absent parent.
Section 60CC(3)(f)
the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The mother indicated to Ms M that the father was a good financial provider during their relationship. It was agreed that she would take primary responsibility for the children while he worked long hours to provide for the family.
The mother raised issues about the father’s ability to care for the children on a long-term basis. She believes that he is capable of caring for the children with the assistance of his mother for short periods of time. The father gave evidence that his mother helped him get the children to and from school when they stayed with him for four weeks. He and his mother cooked dinners and she prepared their school lunches. During cross-examination, he agreed that his mother does the cooking and plates up the meals and he helps her.
The mother has concerns that the father consumes too much alcohol. She believes that his parents, particularly his mother, would not tolerate that, so she has some confidence that this is not a problem when he is living with his parents. The father disputed that he consumes alcohol to excess. He said that he has several drinks on a Thursday or a Friday night only.
The father said that he has not had an opportunity to help the children with their homework in the past, apart from when he was caring for them in July 2015. He attended school activities when he was not working and reads their school reports. He has occasionally talked to the children about their results. He takes them to their sporting activities when they are with him.
If the children live on a week-about basis with the father, he will need to obtain alternative accommodation. He will need to obtain alternative employment to be available before and after school. He believes that he can obtain (omitted) work with a late start time and early finish time.
The father indicated that Y and Z will need to catch the bus to school in (omitted) from (omitted), where he intends to live. The father agreed that the bus trip for the children to school takes around 40 minutes from (omitted) to (omitted). The children currently catch the school bus from (omitted) to (omitted). This trip takes about 20 minutes.
It was suggested to the father that 80 minutes on the bus each day may be too much for the younger children. He answered that he could ask his parents to pick them up which should reduce the travel time.
The children provided information to Ms M about their father’s parenting that suggested to her that it is likely he could adequately meet their needs as their primary carer if the mother moves to W.A. without the children. He has the support of his parents in caring for them.
Ms M indicated that the father did not make any criticisms of the mother’s care of the children. She currently has the capacity to provide for the children’s needs. She has employment and lives in the (omitted) home. If she remains in Tasmania, she will need to obtain new accommodation. She gave evidence that she intends for the children to remain in their current schools in (omitted) and (omitted).
The mother has been involved in all the children’s activities and events. She has a good relationship with their teachers and schools. She takes the children to all their medical appointments.
If she moves to W.A. with the children, she will need to obtain accommodation and to obtain employment to support herself and the children.
The mother said in her October 2015 affidavit that she feels very lonely and unsupported in Tasmania and does not have any close friends. She said her job is not permanent and she is stressed about her financial situation. She reported to the Family Consultant in February 2016 that she will be devastated if she cannot move with the children. However, I am not persuaded that her devastation or unhappiness by remaining in Tasmania will impact on her parenting capacity. I accept Ms M’s view that the mother will cope if she stays in Tasmania.
Section 60CC(3)(g)
the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
This sub-paragraph is not relevant.
Section 60CC(3)(h)
if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This sub-paragraph is not relevant.
Section 60CC(3)(i)
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
In 2015, the mother went to W.A. for an extended weekend to make some investigations about employment and accommodation. She made a second trip to W.A. in July 2015 again to make further enquiries about jobs and accommodation and to visit friends. She said that she asked the father to care for the children and he agreed. She did not tell him where she was going. She flew to W.A. on 10 July 2015. She said that when she arrived in Perth, she tried to call X and the father but they did not answer. X also did not answer a text message from her.
The mother said that she was in W.A. for three weeks but conceded during cross-examination that she was there for four weeks. She admitted that she did not buy a return ticket. She was criticised by Ms M for being evasive when she spoke of this trip. She initially told her that she had travelled there for a few days then she said she had been there for over a week and then she said she was away a few weeks.
X reported to Ms M that the children had gone to their father for their usual weekend time and his mother “just left”. He reported that he missed a few days at school because he did not have a school uniform and his father had taken time off work.
I am of the view that the mother was not responsible when she left the children for four weeks in 2015, without them knowing when she was returning. She had not booked a return ticket. I consider that neither the father nor the children knew how long she was to be away. I agree with Ms M’s view that the children would have been confused about her unexpected decision to take an extended trip to W.A. Other than this occasion, I consider the mother has a responsible attitude to the children and the responsibilities of parenthood.
The father was irresponsible when he allowed the children to use dart guns which he assembled for them. The dart guns were made from “PVC pipe” and nails were used for darts. He agreed that he bought supplies to make some more guns.
He justified the children having the guns on the basis that he believed that the mother allowed them to have the guns. He believed this because X had a gun at the (omitted) house when he moved in to care for the children. When he found out that the mother was not happy about them having the guns, they were dismantled. The father was aware that X was bumped in the eye with the pipe. He agreed that the guns can kill small animals. He denied that the boys had killed birds with them when they were with him.
I consider the father should not have allowed the children to have the guns, whatever attitude he believed the mother may have had. It was irresponsible for him to make more guns for the children and allow them to use the guns. The children could have been seriously injured.
I consider that the father was irresponsible by not paying child support to the mother for a period of around three years.
I consider that the mother has a more responsible attitude to the responsibilities of parenting than the father.
Sections 60CC (3)(j) and (k)
(j) any family violence involving the child or a member of the child’s family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
The mother gave evidence that on 6 August 2015, the father broke the deadlock off the door of the (omitted) home by kicking it. The whole door was split. The father slapped her around the face and yelled and screamed abuse at her. She called the police and the father was removed from the property.
The father agreed that he pushed the door in with his knee at the house in August 2015. He denied that he broke the door. He conceded that he was upset at the time. He said he was trying to collect his belongings and broke the latch on the door. He conceded that the mother would have been scared. There is a current family violence order against him in favour of the mother as a result of this incident.
In his affidavit, the father conceded that on one occasion six years ago he punched a hole in the wall. During cross-examination, he said that he made a hole in the wall when he fell into it. He said that he was trying to pull the mother up off the couch to get her to go to bed.
Although the father denied that he had punched a blackwood wardrobe, he agreed that a mirror in the wardrobe broke because he shoved it during an argument.
The mother gave evidence that in 2012, just prior to separation, the father grabbed her by her clothes, ripped her t-shirt off her and pulled her underpants off. She was left standing in her bra. The father tore up her t-shirt and underpants. She was extremely frightened by this. The father denied that he ripped the mother’s t-shirt off and pulled her underpants off. He agreed that they had an argument but he could not recall any torn clothing.
I consider that the father has been violent towards the mother. I prefer her evidence about family violence to that of the father whose evidence was uncertain and unconvincing. The mother’s evidence about family violence did not change during cross-examination. I accept her evidence that the father has been violent towards her. I accept her evidence that the violence did not occur in front of the children.
Section 60CC(3)(l)
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
I consider that the orders I intend to make will least likely lead to the institution of further proceedings. Whilst the mother gave evidence that she does not want to relocate to W.A. without the children, she also said she was “undecided at this stage”. If she decides to move without the children, there may be a need to vary the parenting arrangements.
Section 60CC(3)(m)
any other fact or circumstance that the court thinks is relevant.
There is no other fact or circumstance that I consider is relevant.
Parental responsibility
I consider that the presumption of equal shared parental responsibility does not apply, as there are reasonable grounds to believe that family violence has occurred in this family.
Both parties are seeking an order for equal shared parental responsibility for the children. Whilst Ms M gave evidence that the parental alliance has deteriorated since mid-2015, the parties are able to communicate by text message. They both have close and loving relationships with the children. I accept Ms M’s view that, given the children’s ages and each parent’s ability to put them first and be child focused, they can have a working arrangement to ensure that the needs of the children are met. I consider that it is in the best interests of the children to make this order.
Pursuant to s.65DAA, I am required to consider whether it would be in the best interests of the children to spend equal time with the parties or, substantial and significant time with them and whether it would be reasonably practicable for them to do so, as defined in s.65DAA(5).
Section 65DAA(5) provides as follows:
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
I am not persuaded that it is in the children’s best interests for them to spend equal time with each parent. The mother has always been their primary carer. Since separation she has continued in that role. I accept the evidence of Ms M that the children are more likely to benefit from maintaining a base at their mother’s home. The mother has a more responsible attitude to parenting. She has been more involved than the father in their schooling and health. I consider that she is better able to provide for their needs. Equal time is reasonably practicable, if the parties live in geographic proximity. If the father lives in Tasmania and the mother lives in W.A., such time is not reasonably practicable.
I consider that it is in the children’s best interests to spend substantial and significant time with each party. Substantial and significant time includes time at weekends, during the week, during holidays and special days. Such time allows a parent to be involved in a child’s daily routine and in occasions and events of particular significance to a child. Such time is reasonably practicable, if the parties live in geographic proximity.
Whilst the mother does not have to provide compelling reasons for a move, I consider that she has not considered the best interests of the children in respect of her desire to move for “a fresh start”. I consider that she is placing her needs above those of the children.
I place weight on the views of X and Y about not wanting to move to W.A. If X does not move to W.A., Y and Z will be separated from him and will not be able to grow up with him. They will also not be able to spend regular time with W. If X moves, there is likely to be an impact on the two younger children and the mother, as indicated by Ms M.
I am of the view that it is not in the children’s best interests to relocate to W.A. with the mother. I consider that it is not in the children’s best interests to move away from their father and extended family. I am not persuaded that the parties have the financial resources to pay for regular holiday and term time visits to Tasmania. I consider that the benefits of the children living with the mother in Hobart outweigh the benefits of them living in W.A. with her.
Whilst the mother is likely to be very disappointed about this decision, I accept Ms M’s view that she will cope with living in Tasmania. She is child focused and has given evidence that she will keep the children at their current schools. The father has indicated that he will help her with the school fees.
I consider that it is in the children’s best interests to spend time with the father on four nights per fortnight from Friday until Tuesday before school. This time will enable the father to be actively and consistently engaged in the children’s lives.
I consider that the children should spend half of all holiday periods with each parent. Christmas Day should be shared in accordance with the father’s proposal. Time at Easter, Mother’s Day and Father’s Day and birthdays are agreed. Telephone communication is also agreed.
I will also make an order restraining the mother from bringing the children into contact with Mr D, in the event that she travels to W.A. with the children.
I consider that these parenting arrangements for the children will enable them to have a meaningful relationship with both their parents.
I certify that the preceding one hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of Judge Baker
Date: 27 May 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Remedies
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