Sables and Edmondson (No.2)
[2018] FCCA 1800
•6 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SABLES & EDMONDSON (No.2) | [2018] FCCA 1800 |
| Catchwords: FAMILY LAW – Parenting – additional Orders sought following final Orders made in 2015 following Mother’s limited-term posting to the (country omitted) – limited issues regarding “additional” time with sought by the Father and issues regarding the child’s travel to and from Australia. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC(3)(e) |
| Cases cited: Edmondson & Sables [2015] FCCA 3367 |
| Applicant: | MS SABLES |
| First Respondent: | MR EDMONDSON |
| File Number: | PAC 457 of 2013 |
| Judgment of: | Judge Neville |
| Hearing date: | 10 November 2017 |
| Date of Last Submission: | 22 December 2017 |
| Delivered at: | Canberra |
| Delivered on: | 6 July 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Barker & Barker, Canberra | |
| Solicitors for the Respondents: | G & D Lawyers, Surry Hills, NSW | |
THE COURT ORDERS THAT:
The Mother be permitted to take the child [X] (born: 2009) outside of Australia to reside in (country omitted) from January 2018 for the period of the Mother's posting.
During the period of the Mother's posting to (country omitted) the father and the child communicate by skype or other telecommunication methods at two agreed times per week and failing agreement at 6.00pm Honiara time each Tuesday and Sunday.
The child be at liberty to contact the father by skype or other telecommunications at any reasonable time the child wishes and that the Mother do all things necessary to facilitate such communications.
The child spend time with the father three times per year for periods of 12 days with two of those occasions being in Sydney.
The child travel to Sydney by accompanied travel, the cost of which shall be borne by the Mother.
The third time the child spends with the Father shall take place in a location to which there are direct flights from (country omitted), for which purpose the child will travel by way of unaccompanied travel at the cost of the Mother.
If the Father proposes to travel to (country omitted) he provide the Mother with not less than 21 days' notice of such travel.
During the period of the Mother's posting the Mother is permitted to cause the child to travel to countries other than (country omitted) upon the Mother giving prior written notice to the Father, such notice to be provided not less than 21 days, or such other agreed period of time, prior to the date of travel, unless such period of notice is not possible for reasons outside the control of the Mother.
If the Father travels to (country omitted), the Father and the child shall spend such time together as is agreed, but failing agreement for periods of up to 7 days, provided that no more than 5 of such days be days on which the child is scheduled to attend school.
The parties are to bear their own costs.
IT IS NOTED that publication of this judgment under the pseudonym Sables & Edmondson (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
PAC 457 of 2013
| MS SABLES |
Applicant
And
| MR EDMONDSON |
Respondent
REASONS FOR JUDGMENT
Introduction
On 18th December 2015, I made final parenting Orders in relation to [X], who is now 8½ years old. Pursuant to those Orders, [X] lives with his Mother in Canberra and spends regular time with his Father in Sydney.
Also pursuant to the 2015 Final Orders, the Mother has sole parental responsibility in relation to health and medical matters (among other things, [X] has some hearing difficulties). The Mother works for the (employer omitted).
On 30th August 2017, the Mother filed an Initiating Application seeking certain further parenting Orders in the light of her receiving a posting, for a limited period of time (3 years), to the (country omitted). She had notified the Father of this posting in May 2017 and sought his approval to take [X] with her. The Father sought further information about the posting, which was provided. He still did not assent to the posting with [X]. Consequently, the Mother made the Application that is presently before the Court.
The Mother has a younger daughter, [Y] (now aged 2 years), who will accompany her, and her partner, to the (country omitted).
The Father has a younger son, [A], now aged 4½ or thereabouts. He has since separated from [A]’s Mother but says that he spends regular time with [A], and says further that he seeks to ensure that whenever he has [X] with him [A] is there also.
Initially, the Father was somewhat pernickety in his Response regarding any alteration to the “time with” arrangements between him and [X], pursuant to the 2015 Orders. He took the same approach during the trial in 2015 where his regular focus was the quantity of his time with [X] above all else. As best she could in the circumstances of her posting, the Mother tried to accommodate the various concerns and demands of the Father.
Fortunately, at the hearing of the quite constrained contest, with some assistance, the parties were able to agree on quite a number of matters. Those matters became Consent Orders, dated 10th November 2017.
There now remain only two issues for the Court to determine, namely:
(a)The Father’s Application to have two additional blocks of time with [X];[1] and
(b)The payment of travel costs and related accompaniment expenses associated with [X] spending time with the Father while the Mother is on this limited posting to the (country omitted).
[1] This issue was later refined further in submissions with the Father seeking only one additional period of time.
Following the resolution of almost all issues then in dispute, it was agreed (and Ordered) that the remaining two issues would be dealt with “on the papers”. Both parties have filed written submissions, which are set out below in their entirety, except the number of annexures to the Father’s submissions (which exceed the prescribed length in any event). It will be seen from those submissions that there are a couple of other matters that have arisen since the matter was last before the Court, including the general issue of the costs of the Mother’s Application.
I will not be referring to the principal judgment but simply note its citation to the degree that any findings or history are relevant for context or otherwise.[2]
[2] See Edmondson & Sables [2015] FCCA 3367.
For the reasons that follow, the Orders sought by the Mother should be made. Summarily, this is because (a) the extra time sought by the Father is more likely than not to require the child to miss some periods of school which, in my view, is not ideal; (b) the Father and [X], on all available evidence, have a good and close relationship which will not be adversely affected by the Mother’s relatively short posting; and (c) the Orders proposed by the Mother, in my view, are more child-focussed than those of the Father. The Father’s Orders sought appear (I do not make it as any formal finding) to focus very much on the quantity of the child’s time with the Father, rather more so than the quality of it.
Finally, although it may seem a long time to be posted overseas, in the larger scheme of things, the period is quite short, and there are a range of likely benefits to the child of being able to enjoy his time in the (country omitted). It will very likely be a wonderful opportunity for him. These benefits and opportunities should not be unreasonably circumscribed by travelling back and forward to Australia to a greater degree than necessary. Such an approach does not diminish, in any relevant way, the importance of the child’s relationship with the Father.
The Applicant Mother’s Submissions
The Mother’s succinct submissions were as follows:
1) The Court has identified 3 issues on which written submissions are sought being:
a) Two blocks of time sought by the Father that are additional to the time the Mother proposes;
i. Who is to meet the cost of travel for time between the Father and the child;
ii. What travel by the child should be on an accompanied basis; and
b) Costs
2) An additional issue has been identified since this matter was before the Court on 10 November 2017 which also requires determination by the Court. The additional issue is the removal of the child from school during mid-term attendances by the Father in (country omitted) (reference order 4f) of the Orders sought by the Father in his Response). This is not agreed by the Mother. The Mother agrees to an amended form of the words used by the Father, which delete the reference to the child being scheduled to attend school, but not attending school. The Mother agrees to wording as follows:
One mid-term period of up to seven days in (country omitted) at a time to be agreed and in default of agreement during the third term of the year.
Additional time
3) There is agreement to the child spending time with the Father for periods of 12 nights during each of the Autumn, Winter and Spring holidays, and for up to 7 nights in (country omitted) as agreed (but by default in third term).
4) The Father also seeks time as follows:
4a) One mid-term period of 10 nights at a time to be agreed with appropriate notice and in default of an agreement, it will be the fifth week of the longest term of the year.
4e) Summer holidays: for 25 nights at a time to be agreed but is to include the father having time with [X] on his (ie [X]’s) birthday and Christmas (in alternate years commencing in 2017).
5) Order 5 sought by the Father indicates that the times sought in 4a) and e) are to occur in Sydney.
6) The Mother seeks orders that provide for time of 12 days 3 times per year (away from (country omitted)) and once for up to 7 days in (country omitted). The dispute is as to the additional time the Father seeks.
7) The Mother submits that the child should not be absent from school to spend time with the Father. The reasons for this are dealt with below. Order 4a) sought by the Father is opposed insofar as it takes the child out of school.
8) The Mother submits that the time in total that is provided for by the orders she seeks is appropriate. The Father and the child have a strongly established relationship. They will spend less time together during the Mother’s posting under the Mother’s proposal, but that reduction in time will not diminish the strength of the relationship between the Father and the child.
9) The Mother submits that the time she proposes is appropriate given the distance and travel that will be involved, and that it is the child who will do most of the travelling.
10) The Father’s proposal makes little (if any) allowance for the reality that the distance between where the Father lives (in Sydney) and where the child will be living (in (country omitted)) is greater than current (when the child lives in Canberra) and involves international travel where direct flights are unavailable.
11) The Father’s proposal also leaves little time for the Mother to use school holiday time for the multiple things she and the child would schedule to do during holidays. These include attendances at medical appointments for the child and having the opportunity to see the extended maternal father (grandparents and cousins etc) during school holiday time in Australia. As detailed below, the Mother wishes to minimise the time the child is absent from school. It is appropriate that the Mother be able to have time with the child during school holidays for these purposes, but also to enable them to have holiday time together.
12) The Father is explicit that his proposal is for the child to spend 81 nights per annum with the Father, as against 82 nights under the orders that are in place when the child is living in Canberra. The Mother’s proposal involves 43 nights. It is hard to avoid the conclusion that the Father is focussed on the number of nights that are involved and is not child-focussed with his proposal.
13) The Mother’s proposal is detailed and thoughtful as to how time can be facilitated, including appropriate compromise in respect of facilitation of accompanied and unaccompanied travel. The Court will find the Mother’s proposed orders to be child-focussed and appropriate.
The child attending school when the Father spends time in (country omitted)
14) This issue became apparent when the form of typed orders to be submitted to the Court was made available to the Mother through her lawyer on 16 November 2017. The Father was advised that the Mother sought the amended wording (as appears above) on 21 November 2017. The Court should note that Order 9 sought by the Father relates to notice of intended time to be spent in (country omitted).
15) The Mother says that the Father can spend time with the child in (country omitted), but that the time should not interfere with the child’s schooling.
16) The Father gives evidence that the school informs him that there is a tolerance of children being absent (see Father’s affidavit of 5 October 2017 paragraph 61). The Mother submits that the Father should not take advantage of that tolerance for spending time with the child. The tolerance is intended to cover unavoidable absences through illness etc.
17) The child has a hearing impairment and an associated medical condition. This was the subject of specific enquiry by the Father (see annexure B to the Mother’s affidavit of 30 August 2017). This has the potential to impact on the child’s education, particularly if the child needs to be absent for treatment/review of the condition. The Mother submits that the child should not be absent from school only so as to spend time with the Father. The Father’s time in (country omitted) should not result in the child being absent from school.
Cost of travel and accompanied travel
18) The Mother proposes that she meet the cost of travel for the child and an accompanying adult between (country omitted) and Sydney on 2 of the 3 occasions she proposes time take place in Australia. The Father does not oppose that order.
19) The Mother further proposes that the third time that takes place each year take place at a destination where there is a direct flight from (country omitted), effectively Brisbane or (country omitted),. The Mother proposes that she pay for unaccompanied travel to such a destination once per year. The Father agrees to this proposal for one trip each year (paragraph 64 affidavit filed 5 October 2017).
20) A dispute as to the cost of travel and whether the child should be accompanied arises only if the Court orders that the child travel to spend time on more than 3 occasions per year.
21) The Father seeks time on 2 additional occasions with the cost borne by the Mother. The Father does not propose meeting any of the travel costs of the child on any occasion. The Father is silent as to who bears the cost of his travel whether to (country omitted) and/or Brisbane. At paragraph 34 of his affidavit filed 5 October 2017 the Father indicates that he will meet the cost of his travel to (country omitted) and Brisbane himself.
22) Both parties are in employment. At paragraph 35 of his affidavit filed 5 October 2017 the Father asserts that he cannot afford the cost of the child travelling. It is unclear why the Father so asserts. There is no evidence of the ‘savings’ the Father will incur in not having the costs associated with the time he currently spends with the child when the child lives in Canberra.
23) Ultimately the issue of who bears the travel costs beyond the 3 agreed times per year is a matter about which the parties disagree and one on which the Court needs to determine on the basis of what is seen by the Court as being appropriate taking all the known circumstances into account.
Costs
24) The Mother filed her Application on 30 August 2017. She had advised the Father of her posting by letter received by the Father on 25 May 2017. Subsequently additional information sought by the Father was supplied. The Father refused to give consent to the child accompanying the Mother without all issues of time between the Father and the child being resolved to the Father’s satisfaction. That remained the Father’s position before this Court until 10 November 2017.
25) The Mother required certainty as to whether the Father would consent to the child accompanying the Mother on the posting. That certainty was not present when she filed her Application. The Father then continued to withhold his consent well past the time when it was actually an issue. The Father’s consent was used as a bargaining point to try to secure the time the Father sought.
26) It is submitted that the Father’s conduct is the same conduct that was the subject of adverse comment by Your Honour in the Reasons for Judgment delivered on 18 December 2015 in the earlier proceedings.
27) The Father’s conduct made necessary the filing of an Application.
28) On the first return date of 5 September 2017 Your Honour referred the parties and their representatives to Your Honour’s judgment in McAuliffe & Davies [2010] FMCAfam 1481. The reference to McAuliffe did not change the Father’s position as to consenting to the child accompanying the Mother on the posting, when the Father first filed his documents on 5 October 2017. The Father had ample opportunity to give that consent before proceedings were commenced, and then after proceedings were commenced. He did not do so until 10 November 2017 faced with the inevitable, being that the Court was not prepared to leave the issue of whether the Mother and child could travel unresolved for any more time.
29) Likewise the Father’s consent to the agreed arrangements was conditional on the disputed issues also being resolved. The unconditional consent of the Father was given only when he was faced with the inevitable, and in any event much later than was proper if the Father was motivated by what was in the child’s best interests rather than a desire to hold out on consent with the aim of getting his own way on issues of time.
30) During the proceedings the Mother has always proposed a process that would minimise the costs of the parties and the time and resources that the Court should devote to dealing with this matter. The Father has proposed more time consuming and costly processes. The Mother has displayed insight into what level of resources the Court should appropriately devote to the relatively few issues where there is actual dispute.
31) Whether the Father is entirely unsuccessful in opposing the orders the Mother seeks cannot be known until Your Honour rules on the unresolved issues.
32) If Your Honour orders that the number of occasions that the child and Father spend together is that sought by the Mother then the Mother should receive the benefit of a costs order, as that resolves all disputed issues.
33) If Your Honour orders that there be time in addition to that the Mother proposes, then depending on the extent to which the orders go beyond what the Mother proposes the Mother may still be entitled to the benefit of a costs order taking into account the conduct of the Father. Otherwise no order as to costs should be made.
34) There are no circumstances that warrant a costs order in favour of the Father.
Other matters
35) On behalf of the Mother it is submitted that the precise wording sought by the Father in respect of who accompanies the child is unnecessarily prescriptive. At Order 7 proposed by the Father it is prescribed that the Mother accompany the child. The Mother seeks that the prescription of her as the accompanying adult not be made. There may be circumstances when either the Mother is not available to accompany the child, or when the Mother can make alternative and appropriate arrangements for the child to be accompanied, for instance by her partner (Peter – referred to in the affidavit material eg paragraph 65 of the Father’s affidavit filed 5 October 2017). There is no suggestion that the Mother would not make proper arrangements for the child to be accompanied if she were not personally available to do so.
The Respondent Father’s Submissions
The Father’s submissions were as follows (some extra formatting has been provided to the submissions by the Court simply to make the differentiation between parts of the submissions more easily followed; some typographical and spelling corrections have also been addressed):
1) The remaining issues to be decided by the Court in relations to the mother' s application to take the child [X] born on the 2009 to the (country omitted) so that the mother here inafter can take up an offer of a 3 year work posting as identified by the court in orders made on the 11 November 2017 are as follows
· The fathers seeks 2 additional blocks of time with the child and Travel costs and related accompaniment expenses accordingly.
· In the course of correspondence with the mother's solicitor a further issue was identified namely whether or not [X] could be taken out of school during the time he spent with his father in the (country omitted).
In addition the mother raises the question of legal costs.
2) It is submitted that one other matter needs possible clarification. The writer submit s that this has been assumed by the parties and is uncontroversial and relate s to what happens at the end of the posting. It is understood by the father that on the child' s return to Australia then the existing orders will continue to apply and the father requests this be reflected in the orders made, if it is not clear.
3) By consent agreement was reached to allow [X] who is nearly 8 years old to travel with the mother to the (country omitted) for the duration of her posting.
4) In addition the parties have agreed that [X] spend time with his father on 3 occasions in which [X] travels to Australia and another occasion when the father travels to the (country omitted) so that they can spend time together there. At that time the father will have an opportunity to better understand [X]’s life on the island including the physical surroundings, his day to day activities and be able to meet his friends.
Additional time
5) In the fathers response he sought two additional blocks of time apart from those that have been agreed to.
6) After further careful consideration weighing up several factors including the practicality of two blocks of extra time and the cost involved, the father now seeks only one additional period of time.
7) That time is set out in 4 e of his response and reads
Summer holidays for 25 nights at a time to be agreed but is to include the father having time with [X] on his birthday and Christmas in alternative years.
8) On further consideration such an order would need to go on to set out a default position with the following sought.
In the event the parties are unable to agree in even years (Christmas 2018 and 2020) the time is to start within 3 days of the end of [X]’s school term ending and in odd years Christmas 2018 within 3 days of the 2 January 2019.
9) As your Honour is well aware in considering this matter further the court will have regard to the best interest of the child as the paramount consideration.
10) In making that judgment regard is to be had to the matters set out in Section 60 cc.
11) The two primary issues are to protect the child from harm and to allow the child to have a meaningful relationship with both parents.
12) Currently [X] spends time with his father frequently. It is 3 weekends per term and half of each of the school holidays. That is about 14 times a year.
13) The father accepts that spending time together that often is not practical but wants to ensure that [X] continues to have time with his father as frequently as is practical to ensure their attachment remains strong.
14) He also wants the amount of time they spend together to remain sufficient to allow them to comfortably settle into a routine. If the court grants the orders he seeks in this submission their time together will be for a total of 68 nights in 5 blocks of time. He currently has about 82 nights in 14 blocks of time.
During these blocks of time the father can ensure [X] sees his brother [A] who is 4 years old. In addition there will be enough time for [X] to be able to spend time with his father's extended family including his grandmother who lives on the Region A. In her affidavit the grandmother describes [X]'s visit to her home with his father. A trip to Canberra to see old school friends is also envisaged by the father in his affidavit.
15) The effect of the orders sought is that [X] will have time with his father for each of the school holiday periods and one other period where they are together in the (country omitted). The gap between each visit will be fairly even and be about every 8 to 10 weeks. Fewer visits will increase this gap potentially straining their relationship.
16) When [X] is not with his father he will spend all of the other time with the mother. This includes holiday time each term.
17) The mother [sic] available holiday time with [X] having regard to the 2018 calendar for school a copy of which is attached and marked A I submit will total about 50 nights as follows:
· Term 1 ends on the Thursday 29 March 2018. Under the interim orders [X] will spend time with his father for 12 nights from 30 March to 11 April 2018. He is back at school on Tuesday the 17 April 2018. He will spend 5 nights of holiday time with his mother.
· Term 2 ends on the Friday 22 June 2018. Under the interim orders [X] will spend time with his father for 12 nights from 23 June to 5 July 2018. He is back at school on Wednesday the 18 July 2018. He will spend 12 nights of holiday time with his mother.
· Term 3 ends on the Friday 14 September 2018. Under the interim orders [X] will spend time with his father for 12 nights from 15 September to 27 September 2018. He is back at school on Tuesday the 2 October 2018. He will spend 4 nights of holiday time with his mother.
· Term 4 ends on the Thursday 6 December 2018. Under Mr Edmondon’s proposal [X] will spend time with his father for 25 nights. The holiday period assuming school returns about the same day namely Tuesday on a similar date then it will most likely be the 29 January in 2019. He will spend 29 nights of that holiday period with his mother.
18) [X]'s time with his father is in my submission is practical and child focused and the court can readily find it is in his best interests.
Flights
19) If the court was to make the orders sought by the father then there will be 4 occasions on which [X] will need to fly to and from Australia.
20) The mother’s employer will pay for two return flights to Sydney per year.
21) It is submitted that as there is no cost to the mother on those two occasions and as it is her wish to locate with the likely positive impact that this posting will have on her career and a likely increase in her future earnings salary that she should pay the cost of the return airfare tor [X] to travel between the (country omitted) and Brisbane on the other two occasions.
22) The mother gives no details of her salary but it is submitted that she is ab le to afford the cost of these 2 flights for [X] to travel unaccompanied to Brisbane.
23) The father consents to an order that he will be responsible for the cost of having [X] travel between Brisbane and Sydney either with him or unaccompanied if he can arrange a responsible adult known to [X] to be present at the Brisbane International Airport. This will have the father fund 2 return airfare s for [X] between these cities and potentially 2 return airfares for himself. This contribution to the cost of flights is already reflected in orders 6 which relates to the winter and spring holidays. The father submits in relation to both order 5 and orders 6 the words "unless otherwise agreed" could be added at the start of the current order. This would allow the parties to have greater flexibility as to where the time for a particular holiday occurs.
24) In considering this matter regard should be had to the fact that the father will be paying his return airfare to the (country omitted), the cost of accommodation transport and entertainment when he spends time with [X] there.
The length of travel
25) The flight times are as follows
· (country omitted) to Brisbane is 3 hours 15 minutes
· Brisbane to Sydney is 1 hour 35 minutes.
26) In evidence the father says the travel time will be about 6 hours.
27) Currently the travel done by [X] is car trips of about 3.5 hours. It is submitted that although the travel is longer the frequency will be much less and the days between trips greater. Also on the flight there is food available, more entertainment options and space to move around in.
28) The travel is not further complicated by there being a time difference between the Sydney and the (country omitted).
29) It is submitted that [X] can travel unaccompanied on both legs of the flight but would have to be met by an adult in Brisbane before being able to travel unaccompanied on the flight to Sydney. He could also be met by his father.
30) It is submitted by the father that [X] should be accompanied by his mother all the way to Sydney on the first occasion he does this trip which will be on the 30 March 2018.
[X]'s time with the father in the (country omitted)
31) In the course of the court appearance on the l 0 November 2017 the father on an interim basis agreed to [X]'s time with him when he visits the (country omitted) being for 7 nights. This was to facilitate the mother’s agreement. His response asked that the time be 10 nights. He seeks the court order the time be this longer period. For this time to occur the father will have to pay the costs of his airfare and undertake the travel with a longer time making it more worthwhile. It will only happen 3 times over the 3 year posting. It is submitted that a 10 day period will have [X] able to spend 2 weekends with his father and allow the father to get a greater picture of [X]'s life there.
32) The father in his application noting his evidence is that he will take any necessary steps to ensure they are safe, asks that he have the flexibility to remove [X] from school for up to 5 days.
33) There is evidence that the school accepts that children can miss some time and that work can be provided. Email from the school being part of Annexure F of the fathers affidavit filed on 5 October 2017.
34) It is submitted that it would be positive for [X] that there is flexibility for him to go exploring the 34.local area with his father. [X] will be able to share places he has been to which are further afield.
35) As noted above this time will occur on three occasions during the posting. The father wants to be part of the school routine as has been the case with [X]'s schooling in Canberra and will not necessarily take the child out of school on each occasion and if he did it will not necessarily be for the number of days allowed in the order.
36) In fact the father would consent to that number of days being reduced to 3 days if that provided the mother additional comfort. The father requests the court make order 4g of the interim orders so that the number of days are increased from 7 to 10 nights with the number of days [X] can miss school being reduced from 5 to 3 as a final order.
Legal Costs
37) The father opposes costs being awarded against him and seeks cost be awarded in his favour.
38) The relevant section is 117 of the FAMILY LAW ACT 1975. I address each of the matter in 2 A
(a) the financial circumstances of each of the parties to the proceedings;
39) Each party is employed.
40) The father works 4 days per week and is paid $88 000 pa. Para 26 and 27 of his affidavit filed on 5 October 2017.
41) The mother works full time but gives no detail s of her income and the package she will receive for this posting. Her income is likely to be greater than the fathers and some of her expense will be paid by her employer during the posting.
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
42) Neither party is in receipt of legal aid
(c) the conduct of the parties to the proceedings in relation to the proceeding s including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
43) The father bas previously set out a chronology of events that led up to the filing of these proceeding - a copy of which is attached and marked B for the courts convenience. This correspondence referred to is included in the fathers affidavit filed on the 5 October 2017 as annexures A to F.
44) Of relevance in the first letter dated 25 May 2017 from her solicitor to the father the mother proposed ''Our client wishes to vary the Orders as follows [X] will continue to reside with out [sic] client noting that your time with [X] would be as follows: once per annum for a duration of 2 weeks.
45) The father engaged seeking more information.
46) The father having advised the mother through the irrespective lawyers that the father was agreeable to her taking the child with her on the posting put a proposal about the time he sought in a letter dated 26 July 20 l 7. It is conceded he linked her going to arriving at a [sic] agreement about the time [X] would spend with him. It is argued that this is a reasonable approach to the issue.
47) The father believed the y were still negotiating and was waiting for a response from the mother when instead on or about the 30 August 2018 he was served without any notice that this was to be her next step with the mothers Initiating Application.
48) In his response the father formally consented to the mother taking the child with her on the posting. Order 1 of that document reads
That the mother be permitted to take the child [X] born 2009 outside of Australia to reside in the (country omitted) from January 2018 to the earlier of the period of the mothers posting or 31 January 2021.
In it the father also set out his proposal for [X] to spend time with him. It was for longer periods and more often than the mother was offering in her application. It submitted that is was reasonable and practical.
49) It is submitted the cost of proceedings was kept to a minimum with two appearances with a number of matters agreed to by the parties on the second date.
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
50) Not applicable.
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings:
51) The exact outcome is unknown, but it is submitted that neither party is likely to be wholly unsuccessful.
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
52) Of some relevance on this point and accepting the main matter in dispute was the amount of time [X] spends with his father on the 3 November 2017 leading up to the appearance on the 10 November 2017 the father expressed a willingness to agree to less time than was sought in his response. The mother in her reply was vague whether she would move from her position. The relevant correspondence is attached and marked C.
(g) such other matters as the court considers relevant.
53) The father who lives in Sydney has needed to deal with this matter in Canberra as a result of which his legal costs have been greater.
54) The father’s legal Costs [sic] are sought at scale.
55) In the event the court is not persuaded to order legal costs in his favour the father submits each party should bear their own legal costs.
Consideration & Disposition
Even quite confined issues that involve the well-being of a child, and that child’s relationship with both parents, require, above all else, that the Court place that child’s best interests as the paramount consideration, pursuant to s.60CA of the Family Law Act1975 (“the Act”).
Of course, context also often plays a very significant role in the Court’s determination of what Orders are in the child’s best interests.
The “considerations” that are most immediately relevant here from those set out in s.60CC(3) of the Act, obviously are those that relate to “practical difficulty and expense.”
And as earlier noted there is no question that [X] has an established, good and close relationship with his Father. Presumably this also applies to his younger brother, [A]. Curiously, none of the Orders sought or submissions by the Father seem to have addressed directly the relationship between the siblings.
For my part, the main issues are the following:
(a)The relatively limited duration of the Mother’s posting;
(b)The need for a degree of stability in the arrangements for [X] in a new and exciting environment;
(c)The need also for a degree of certainty for the Mother in managing the extra arrangements needed to ensure that [X] spends as regular time as possible with his Father, while balancing his school and other time in the (country omitted).
In my view, there is almost a sense of pleading, but also entitlement on the Father’s part in seeking the allocation of specific amounts of time, as if the amount of time is essential to maintain the quality of the relationship between Father and son. As earlier stated, the quantity of the time between Father and son, while important, is not determinative of the quality of the relationship. The emphasis here must be on “quality” rather than “quantity.” And remember: the posting is for a very, finite time. It should be a very special time for [X] and not one of extra tension between his Mother and his Father. There has been enough of that in years past.
Whatever the reason(s) for the amount of time sought by the Father, in my view, the stability and the consideration of the extra “parental management impost” required of the Mother, in making appropriate travel and other arrangements, for [X] whilst in the (country omitted), and recalling (a) his age of 8½ years, and (b) his hearing and medical issues (set out in the Mother’s Affidavit, filed 30th August 2017, Annexure B). In my view, these considerations render the Orders as sought by the Mother as those that are most appropriately in [X]’s best interests.
As a further general observation, which applies in all parenting Orders: parenting is difficult enough without over-complicating matters with too many or too detailed Orders. The more complicated the Orders, the greater the likelihood of them acting, even regularly so, as “trip-wires” for one or other parent. Simplicity and clarity of Orders, if at all possible, should invariably be preferred. In my view, the Mother’s Orders strike the appropriate balance between [X] spending regular time with his Father in a way that provides certainty and clarity in circumstances that are, of themselves, awkward enough already without extra burdens being placed on her in organising [X]’s interesting and exciting life overseas.
For completeness, I simply observe, without the need for any further or additional Order, that upon the completion of the Mother’s posting, the 2015 Orders will resume as before.
Finally, although there were elements that perhaps warranted that a costs Order be made in the Mother’s favour, it was not possible or appropriate in the way the matter was ultimately determined (primarily on written submissions) to make any formal findings, having regard to the usual terms and practice in parenting matters, including very circumscribed ones such as the present. In all of the circumstances, the only Order regarding costs will be that each party bear their own costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 6 July 2018
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