Rollins v Van Hummell

[2016] FamCA 916

FAMILY COURT OF AUSTRALIA

ROLLINS & VAN HUMMELL [2016] FamCA 916

FAMILY LAW – CHILDREN – Interim relocation – Changes in primary carer.

Family Law Act 1975 (Cth) ss 60CC , 61DA(3)

Cowling v Cowling (1998) FLC 92-801
Edgar & Strofield [2016] Fam CAFC 93
Goode & Goode (2006) FLC 92-286
Morgan & Miles (2007) FLC 93-343
MRR v GR (2010) 240 CLR 461

Taylor v Barker (2007) FLC 93-345
U v U [2002] HCA 36

APPLICANT: Mr Rollins

RESPONDENT: Ms Van Hummell

FILE NUMBER: CAC 1915 of 2008

DATE DELIVERED: 1 November 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 24 October 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Bak, Farrar Gesini & Dunn

SOLICITOR FOR THE RESPONDENT: Mrs  Evans,  Evans Family Lawyers

Orders until further order

1. That all previous parenting orders be discharged.

2. The parties have equal shared parental responsibility for the child, S, born … 2006, (“the child”).

3. That in the event that the mother lives in Town A, New South Wales, or close thereby that the child live with the mother and father on a week about basis, handover to occur at the conclusion of school or 3:15 pm each Friday (unless otherwise agreed). 

4. All handovers occur at the child’s school but if the child is not attending at the school at that time then by the parent the child is about to live with collecting her from the home of the other. 

5. In the event that the mother is not living at Town A or close by then:

   (a)       The child shall live with the father.

   (b)The child shall spend time with the mother each weekend from 7:30 pm on Friday until 4 pm on Sunday with the father to deliver the child to the mother’s home in Town B and the mother to deliver the child to the father’s home …, unless otherwise agreed between the parties. 

   (c)In the event that the child is not required to attend school on the Monday immediately following such weekend then the time shall be extended to conclude at 5 pm on Monday.

6. That Orders 3 and 5 be suspended:

   (a)During the Christmas school holiday period each year and the child spend half of that school holiday period with each parent, as agreed between them, but failing agreement the first half with the mother and the second half with the father, subject to the operation of Order 7 of these orders that relates to international travel.

   (b)Until 4 pm Sunday, 6 November 2016, until such time the child shall live with the mother. 

1. The mother is permitted to travel internationally with the child to Europe from 25 December 2016 to 23 January 2017.

2. Unless otherwise agreed in writing by the parties, the child is to be, and remain, enrolled at A Public School.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rollins & Van Hummell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1915 of 2008

Mr Rollins

Applicant

And

Ms Van Hummell

Respondent

REASONS FOR JUDGMENT

Outline

1. This case involves the interim parenting arrangements for S (“the child”), a child aged 10.  Until February 2016 she lived primarily with her mother in Town A.  By this time she was spending substantial and significant time with her father.  From then until August 2016 she lived primarily with her father near Town A while the mother moved to Town B, two and a half hours away, to undertake a probation period for employment.  The parties had not agreed what would happen when the probation was complete.  In August 2016 the mother retained the child at Town B, with the child seeing her father alternate weekends.  The father commenced proceedings almost immediately.  These proceedings concern parenting arrangements pending final hearing and involve a significant issue as to where, geographically, the child will live.

Law in relation to interim proceedings and relocation

1. In Goode and Goode the Full Court noted that in interim proceedings,[1] as in final proceedings, there is an obligation to follow both the structure of, and the process of reasoning set out in the Family Law Act 1975 (Cth) (‘the Act’).[2]  This is a structure that supports a legislative intent in favour of substantial involvement by both parents, subject to the adequate protection of children, subject to the best interests of children, and subject to reasonable practicability. 

   [1]Goode & Goode (2006) FLC 92-286 at [72].

   [2] Family Law Act 1975 (Cth).

2. The Full Court at [82] described the process of reasoning as a legislative pathway.[3]

   [3] Goode & Goode (2006) FLC 92-286 at [82].

3. In cases where an order is made for equal shared parental responsibility, consideration must be given to equal time, such a consideration involving an assessment of best interests, but such an order only being allowable if it is reasonably practicable. 

4. The High Court in MRR & GR found that a Court is obliged to make findings in relation to reasonable practicability before it is open to the Court to make an order for equal time.[4]  In assessing reasonable practicability, the Court is concerned with the reality of the situation faced by the parties.[5] 

   [4]MRR v GR (2010) 240 CLR 461.

   [5] Ibid.

5. If no order as to equal time is to be made, the Court is then obliged to consider substantial and significant time, again in the framework of a consideration of best interests and reasonable practicability. 

6. If an order for substantial and significant time is not to be made, then the orders available to the Court are otherwise at large, subject to the best interests of the child or children. 

7. However, while the pathway remains the same for an interim as a final hearing, the Full Court in Goode recognised that, in interim proceedings, the Court has a limited ability to deal with factual matters.  There the Court cautioned that where findings of fact cannot be made, a court at first instance should not be drawn into the merits of the substantive case but should rather look to matters such as the agreed facts, matters that are not in dispute, prior arrangements, current circumstances, and the proposals of the parties.[6] 

   [6] Goode & Goode (2006) FLC 92-286 at [82].

8. Justice Boland, sitting as the Full Court in Morgan & Miles,[7] specifically applied Goode to an interim contest involving relocation.  Having found that the same pathway is applicable for relocation cases on an interim basis as for other cases, Boland J went on to note that it is highly desirable (save in cases of emergency) that arrangements not be determined in the abridged context of an interim hearing.[8]  Thus, particularly where the issue is relocation, the question of stability “may be extremely relevant on an interim basis”.  The importance of such stability must be assessed on a case specific basis, and does not involve a return to the law as set out in Cowling.[9]

   [7]Morgan & Miles (2007) FLC 93-343.

   [8] Ibid [88].

   [9] Cowling v Cowling (1998) FLC 92-801.

9. As to the process of consideration for relocation cases more generally, the Full Court in Taylor & Barker approved a particular sequence of reasoning.[10]  There the approved process, at least in a case involving equal shared parental responsibility,[11] results in the question of equal time or substantial and significant time to “initially be considered without regard to any relocation proposal”.  After having considered such, “anyrelocation proposal will then be balanced against the option of “equal time” or of “substantial and significant time” if either of those options has been found to be in the child’s best interests”. The consideration must be undertaken in a manner that will not “devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent”. The Full Court acknowledged that “this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter”.

   [10]Taylor v Barker (2007) FLC 93-345.

   [11] Ibid [81].

10. In approving this sequence of reasoning, the Full Court in Taylor & Barker did not assert that this is the only sequence in which such matters may be considered, but approved this sequence as being consistent with the structure and objectives of the Act.

11. Necessarily, any consideration mandates a consideration of the parties’ proposals, noting that it is open to the Court to consider other options as long as the parties are given procedural fairness (U & U).[12]  Similarly, Boland J in Morgan & Miles noted that the Court must carefully weigh and balance the s 60CC factors in respect of the competing proposals put by the parties.[13] 

    [12]U v U [2002] HCA 36.

    [13] Morgan & Miles (2007) FLC 93-343 at [79].

12. In approaching a relocation case, I note the caution given by the Full Court in Edgar & Strofield against a court at first instance being distracted by the issue of relocation. [14] That is, the Full Court was critical of considering that case as a “relocation case” rather than a consideration of the real issue, there being the time that the child would spend with the father. Such caution is a useful reminder that the Act does not create a separate category of cases where relocation is an issue. Relocation is a subset of parenting cases generally.

    [14]Edgar & Strofield [2016] Fam CAFC 93.

Material

1. The father relied on his affidavit filed 29 August 2016 and the accompanying application.  The mother relied on her affidavits of 9 September 2016, with its accompanying response and her further affidavit of 10 October 2016.  There is at this stage no family report available to the Court. 

The parties’ proposals

1. As of February 2016 the mother has moved to Town B which is a distance of approximately two and a half hours’ travel from Town A.  Town A is where she previously lived and close to where the father lives.  Her proposal is that the child will live primarily with her and see her father each second weekend and on school holidays.  In the alternative, if orders will not support her remaining in Town B, she proposes to move back to Town A, presumably with the parties returning to the previous arrangement of the child living primarily with her mother and spending time with her father in accordance with orders made by the Federal Circuit Court.  Such orders provided for an extended weekend each alternate week from Thursday after school until the commencement of school on a Monday. 

2. The father’s proposal is that, should the mother remain in Town B, the child live primarily with him and, presumably, continue the current arrangement of spending time with her mother each weekend.  In the alternative, should the mother return to Town A, he proposes that the child live with each of them on a week about basis.  He further proposes that should the mother return to Town A, then the child should be re-enrolled at the primary school she previously attended within Town A.  Should the mother not return, then the father proposes to enrol the child in another primary school in Town AA, closer to where he lives. 

Key facts

1. The key facts appear as follows:

   a)The parties agree that there should be equal shared parental responsibility. 

   b)The mother was the primary carer for the child until February 2016.  At that stage she moved to Town B in order to obtain employment, having been unable to obtain appropriate employment in the region of Town A.  The child was left in the care of the father for what was initially to be a three month period during which the mother was on probation in her new employment, but which extended out to the six month mark.  At the time that the mother moved, the parties had not come to any agreement as to what would occur at the end of the probation period.  Shortly after moving, the mother asserted her intention to have the child live with her at Town B should she have settled employment there.  This was not the subject of any agreement.  Nor was it agreed that the child would remain in Town A with the father beyond the probation period.  The mother asserts, and it is not challenged, that she has maintained a close relationship with the child, seeing her each weekend with minor exception. 

   c)Between February and August 2016, the child was primarily in the care of her father. 

   d)The mother asserts that the father is a user of cannabis to an extent that may be detrimental upon the child, that he has experienced a violent relationship while caring for the child, and that his home is unhygienic.  Again, these are matters that are not agreed, other than the father concedes that his previous girlfriend kicked a door and raised her voice at the father in the presence of the child.  He asserts that he has brought that relationship to an end.  Further, any concerns raised by the assertions of use of cannabis, a lack of a hygienic home and the relationship with his previous girlfriend are significantly allayed by the mother placing the child into his primary care for an initial three month period, that extended to a six month period. 

   e)In August of 2016 the father, without the consent from the mother, sought to change the child’s school from a primary school at Town A to one at the nearby town, AA.  The AA primary school is closer to where he lives and would mean less travel was required.  The primary school at Town A was the school at which the child had always previously attended.  The parties agree that if the child and the mother return to Town A she should be re-enrolled at the school there. 

   f)Shortly thereafter, the mother retained the child in her care following spending the weekend with the child.  The child has remained in her primary care since mid-August 2016.  The mother has commenced the child in a new school and enrolled her in various extra-curricular activities.  The matter that appears to have prompted the mother’s retention of the child was the father’s attempt to change the school arrangements. 

   g)The mother asserts that she has poor work prospects if she is return to Town A.  Since finding employment at Town B and commencing employment there, she asserts that she has had an improvement in her mental health.  This is supported by Annexure H of her second affidavit, being a report prepared by Dr G.  This reports a reduction in the use of antidepressants by the mother, an improvement in her mental health, and the prospect that she would be better able to parent the child.  The annexed report gives some degree of credence to the assertion made by the mother, although I note that it is as yet untested and there is little description or evidence to set out the degree of benefit that the mother has received.  I am prepared to accept for the purpose of the interim proceedings that the mother has, contemporaneously with her move to Town B, improved in her mental health. 

   h)The mother’s ultimate proposal in these proceedings is that she relocate with the child to a Hague Convention country in Europe.  That country is her home country.  For the father it was asserted that I ought to take this into account, as it would be contrary to the child’s best interests to have a stage one relocation followed by a stage two relocation.  That is, it was asserted that, at this stage of the proceedings I should be wary of allowing a significant disruption to the relationship between the child and her father when it is on the cards that a major disruption by international relocation may occur at the final hearing.  For the mother, it was put that this was an irrelevant consideration.  That is, it was asserted that because of the uncertainty as to what might happen in respect of this relocation, that I should not take any account of it whatsoever. 

   i)It is appropriate to give some, although limited, consideration to the potential impact of the mother’s position in relation to the final proceedings.  That consideration is limited to the understanding that the context is such that, if the child were to move to Town B and then to the European country, she faces multiple changes over an extended period.  Of course, I must acknowledge that the mother may not be successful in her ultimate application, or may not even pursue the ultimate application by the time the matter reaches final hearing.  That is, I accept that this is a matter which is clothed in uncertainty.  To a limited degree, this matter emphasises the need to prioritise stability in the short and medium term.

   j)It is undisputed that the child has a good relationship with each of her parents.  It is also common between the parties that each of them brings a different parenting style to the child.

   k)The mother was born in the European country to which she seeks to return.  The child has taken on the language of that country and been educated in various cultural aspects of that heritage.  The father does not have that same heritage.

Discussion

1. The key matters raised by the parties are as follows.  The mother emphasises that she has been the child’s the primary carer for most of the child’s life.  In moving to Town B, she has seen an improvement in her mental wellbeing which has flow on effects for her ability to care for and nurture the child. A return to Town A would see a return to circumstances in which she struggled in terms of employment, social integration and mental health.

2. The father emphasises that from February to August 2016 he became the primary carer.  He and the child enjoyed particular benefits of a rural lifestyle, including the child having ready access to a horse and pony at his farm.  This period indicates not only that the mother accepts that his parenting benefits the child, but also marks a change in the child’s relationships.  It was put that if the child were to relocate to Town B, the relationship between the child and her father would no longer be meaningful. 

Section 60CC Factors

Primary considerations

The benefit to the child of having a meaningful relationship with both of the child's parents

1. While it is well accepted by the case law that ‘meaningful’ does not mean ‘optimal’, the provision is not simply focused upon the question of whether or not there should be a meaningful relationship, but rather the benefit that a child may derive from it.  The work of the provision is not ended by answering the question “will there be a meaningful relationship under this particular arrangement?”  Rather, the provision requires an assessment of the relationship and a consideration, in the context of how that relationship is to be exercised, of the benefits that will accrue.  I do not accept that a move to Town B would result in the relationship between the father and the child no longer being meaningful.  The father would still spend regular day and overnight time with the child.  I do, however, accept that the benefits that flow from that relationship would be impacted by the child moving to Town B to a degree that is unable to be identified in these interim proceedings.  The mother says that she has been able to maintain a close relationship with the child while she lived in Town B and the child lived in Town A.  She has spent time with the child almost every weekend.  That is, the child appears to have continued to strongly benefit from relationship with her mother under the arrangements that persisted from February to August 2016.  It is reasonable to conclude that if the child once again lives in Town A, her relationship with her mother will be well supported in a manner that appears to have previously been beneficial to her.  It is a tested regime that is the subject of little substantive criticism by the mother.  A move to Town B will have unknown consequences on the benefits that the child receives in the relationship with her father.

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

1. I have previously outlined the criticisms made of the father by the mother in relation to cannabis use, in relation to unhygienic premises, and in relation to his previous girlfriend.  I note firstly that I cannot say that these are uncontroversial facts.  What is uncontroversial is that the mother thought it best in February 2016 to place the child primarily in the father’s care, firstly for a period of three months, then to extend it for a further three months.  This leads me to conclude that at present there is no particular need to protect the child in respect of her father.  No consideration is raised that would lead me to think that it is necessary to protect the child in relation to her mother.

Additional considerations

Views expressed by the child

1. Each party has to a limited extent expressed to the Court views expressed to them by the child.  I am not, in these interim proceedings, in a position to make findings about the child’s views. 

The nature of the relationship of the child with each of the child’s parents

1. As indicated previously, each parent accepts that the child has a good relationship with the other parent. It is accepted by the parties that each brings distinctly different qualities to their parenting of the child.

The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long term issues in relation to the child, to spend time with the child and to communicate with the child.

1. The mother has made some criticism that the father did not take the full opportunity for what was offered to him in respect of school holiday time.  The mother described a limited timeframe within which the father could accept an offer made by her to extend school holiday time.  I am unable to find in these interim proceedings that the father conducted himself in a manner which enables me to say that he has not taken opportunities to spend time with the child.  The mother further notes that she is the one who has initiated time between the father and the child, since she retained the child in Town B.  Again, I am unable to determine whether or not this is a controversial matter and, even if it was so established, that it would constitute the father failing to take opportunities to spend time with the child.  The mother further asserts that she has been responsible for following up on medical and schooling matters.  At this stage of the proceedings I am unable to make findings in respect of this. 

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parents’ obligations to maintain the child.

1. The mother appears to assert in her material that the father has inadequately supported the child.  The father asserts that he has paid in excess of what was required by the Child Support Agency.  I am unable to make findings in respect of this. 

The likely effect of any changes in the child’s circumstances

1. The change of circumstances appears likely to bear upon the child as follows:

   a)If she is to remain in Town B she will have the benefit of the primary care of her mother in the context of her mother having an improved mental health condition. 

   b)She has commenced at a new school, although it is unclear how this may impact upon her. 

   c)The time that she spends with her father will be greatly reduced from what it was immediately before she was retained in Town B. 

   d)Should the child return to Town A, she will have open to her a greater amount of time with her father, including a greater capacity to enjoy the benefits that he describes of the rural lifestyle. 

   e)On the proposals made by the parties (that is, assuming the mother will return to Town A), the child would return to her previous school.

   f)Should the mother return to Town A, it is not unreasonable to expect that the mother’s improvement in mental health may not remain.  I am prepared to accept that there is a reasonable likelihood that the mother will experience a decline in her mental health were she to move back to Town A.  This will have some corresponding impact upon the child, although at this stage it is not possible to predict the degree.  In this context, it is notable that prior to the move to Town B, while struggling with life in Town A, the mother was a capable primary carer for the child.

The practical difficulty and expense of the 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. 

1. This has effectively been dealt with in consideration of the other matters. The two and a half hour travel time between Towns A and B would mean that weekend time would be the only practicable option.  Options beyond that can only be supported by the relocation of the mother to Town A.  This is an option that bears adverse consequences for her, although not to the point of not being reasonably practicable, particularly in light of the fact that the mother has already indicated she would be willing to return to Town A if orders were to be made that the child live in Town A.

The capacity of the parents to provide for the needs of the child, including emotionally and intellectual needs. 

1. The previous care arrangements for the child speaks the most strongly to the capacity of each of the parents to provide for her.  The mother has been the primary carer and is described as having a good relationship with the child.  The father is also described as having a good relationship with the child and has been trusted with her primary care for a period of six months. 

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.

1. Little evidence is available to enable me to make findings about the child’s personal characteristics absent the preparation of a Family Report.  I accept that she has a particular European heritage.  The mother has fostered that in her, has taught her the language, and this appears to be an arrangement that will continue in the short term by the child spending time with her mother. 

If the child is an Aboriginal child or a Torres Strait Islander child.

1. Not applicable.

The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents.

1. This matter is effectively dealt with under the previous headings. 

Any family violence involving the child or a member of the child’s family.

1. I have previously dealt with this under the primary considerations.

The legislative pathway

Equal shared parental responsibility

1. The parties agree that there should be equal shared parental responsibility.  Where previous orders have been made expressing this to be the case, and where the parties are currently in agreement, I see no reason not to apply the presumption that there be equal shared parental responsibility. 

Equal time

1. The history of the child’s care is varied. Firstly, the mother has previously been her primary carer with the father having substantial and significant time.  Secondly, this previous arrangement was altered from February to August 2016 such that the father was the primary carer with the mother having frequent, if not substantial and significant time with the child. In light of each party’s assessment that the other has a good relationship with the child, and with the child deriving different parental qualities from her father and her mother, I consider that an order for equal time is in her best interests.  While this is a departure from both what persisted before February 2016, and from between then and August 2016, it reflects a balance of the overall care arrangements for the child in the recent past.  A return to the pre February arrangements does not reflect the significant change in place between February and August.

2. If the mother is to remain in Town B, this arrangement is not reasonably practicable and in such circumstances such an order would not be open.  Further, an order for substantial and significant time would also not be reasonably practicable, in the sense that, whether the child lived in Town A or Town B, the other parent would not be able to practically have involvement other than on weekends and holidays, and would not be able to be involved in the daily school routine.

3. Under such circumstances, an order reflecting the arrangements that were in place prior to the mother retaining the child in August 2016 are in the child’s best interests.  As indicated in the assessment of the primary considerations, this arrangement sees both a close relationship continuing between the child and her mother, and protects the child from an unknown decrease in the benefit she has in living with her father.

4. The mother has indicated that, should an order be made that would see the child living at Town A, she would then return to the area of Town A.  She has retained her accommodation there.  This would render the making of an order for equal time reasonably practicable.  However, this carries with it some detriments.  The primary detriment is that the mother will lose her employment and, as I have indicated previously, may suffer a decline in her mental wellbeing.  These are matters which will impact upon the child negatively. 

5. The close weighing of the degree to which this might impact upon the child requires a final hearing.  Pending such a final assessment, I place significant weight on maintaining stability for the child.  The best way that this can be facilitated is by maintaining stability of relationships for the child.  Here that is by an order for equal time with each of her parents. 

6. I note that my findings in respect of equal time reflect an arrangement that has not previously been in existence.  However, given that the mother has for many years been the primary carer and the father has of late been the primary carer, it seems an order for equal time best reflects stability of relationship for the child.  While the mother does not support an equal time arrangement with the father should she return to Town A, I regard the six months that passed with the father being the primary carer as being of significance.  This marked a change in the arrangements for the care of the child and, it can be expected, a change in the nature of the relationship between the child and her father.  To simply wind things back to what they were before the mother left Town A does not reflect the changes that have occurred in the child’s life in terms of the care arrangements.

7. Accordingly, I propose to make orders for the child to spend equal time with each of her parents.  Pending the mother relocating to Town A, the child shall live primarily with the father and recommence at her previous school at Town A.

International travel

1. The mother seeks orders that allow her to travel to her country of origin from 25 December 2016 to 23 January 2017.  At the commencement of the proceedings I was advised that this is a matter agreed to by the father.  I will make orders in accordance with the mother’s application in regard to this matter.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 1 November 2016.

Associate: 

Date:  1 November 2016