Salido & Palmerton

[2021] FCCA 1663

FEDERAL CIRCUIT COURT OF AUSTRALIA

Salido & Palmerton [2021] FCCA 1663

File number:	DNC 199 of 2021
Judgment of:	JUDGE YOUNG
Date of judgment:	16 June 2021
Catchwords:	FAMILY LAW – parenting – concerning two children who are eight and four years old – whether the mother should be permitted to relocate to City B with the children –where the children live with each parent in a week-about arrangement in Darwin – where the mother wishes to return to work as a health care worker – where the mother is required to undertake retraining to recommence work as a health care worker – where the most appropriate place for her to undertake the retraining is in City B – where the father opposes the mother relocating to City B with the children – where the father proposes the mother remain in Darwin working in an alternate area of employment – Court satisfied it is appropriate to permit the mother to relocate to City B with the children until further order.
Legislation:	Family Law Act 1975 (Cth) s 60CC
Number of paragraphs:	27
Date of hearing:	16 June 2021
Place:	Darwin
Solicitor for the Applicant:	Ms Bowen of Bowen Lawyers
Solicitor for the Respondent:	Ms Cooper of Maley Barristers & Solicitors

ORDERS

DNC 199 of 2021

BETWEEN:

MS SALIDO

Applicant

AND:

MR PALMERTON

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	16 JUNE 2021

UPON NOTING:

That at this stage the mother’s longer term plans and whether she proposes to return to Darwin with the children and whether she proposes to resume the shared care arrangements are unknown.

THE COURT ORDERS UNTIL FURTHER ORDER:

Parental Responsibility

1.That the mother and the father have equal shared parental responsibility for the children X born in 2012 and Y born in 2016 (“the children”), and should consult with each other about decisions for long terms care, welfare and development of the children, including but not limited to:

(a)serious medical decisions;

(b)the choice of religion;

(c)changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with each parent; and

(d)changes to the children’s name

2.That in exercising the equal shared parental responsibility for the children the parties shall consult with each other about decisions to be made as follows:

(a)they shall inform each other about the decisions to be made;

(b)they shall consult with each other on terms that they agree; and

(c)they shall make a genuine effort to come to a joint decision.

Relocation

3.That the mother be permitted to relocate the children to City B on 15 July 2021. 

To live with

4.That upon relocation, the children live with the mother.

To spend time and communicate with

5.That the children spend time with the father at times as agreed to between the parties and in the absence of agreement as follows:

(a)from 25 June 2021 until 15 July.2021 with the father;

(b)first half of Christmas holidays in odd numbered years;

Communication

6.That the children may have liberal telephone communication at all reasonable times with the parents they are not in the care of;

7.That the mother and the father shall communicate with one another about the children’s issues by way of telephone, emails, SMS or Messenger at all reasonable times.

Interstate travel

8.That should the time spent with the children be associated with an interstate travel, the following arrangements shall apply, unless otherwise agreed to between the parties in writing:

(a)the travel not include travel to locations where return by the agreed time is likely to be difficult or which places the children in the way of a significant known hazard such as government declared biosecurity areas (eg. COVID-19 hotspots that require quarantine or areas affected by natural disaster);

(b)the parent with whom the children are to travel shall provide to the other no less than 4 weeks’ notice before the departure date, of the intention to travel with the children interstate;

(c)that no less than 2 weeks prior to the departure date, the travelling parent shall provide to the other parent the children’s general travel itinerary, and telephone number on which the children can be contacted during the children’s absence from their usual place of residence and

(d)the parent with whom the children are to travel shall notify other parent of any significant changes to the travel itinerary and returning travel arrangements.

Travel Costs for the children to spend time with the father

9.That the father shall book and pay for the children’s airfares at the commencement of the children’s time with him no later than 4 weeks before the intended travel time, and he shall provide to the  mother the children’s travel itinerary no later than 2 weeks prior to the children’s departure.

10.That the mother shall book and pay for the children’s return travel no less than 4 weeks prior to the children’s travel, and provide to the father the children’s travel itinerary no later than 2 weeks before the children’s departure.

11.That at the conclusion of each school holiday period the parties add together the total cost of the children’s travel and the mother pay to the father a lump sum amount equal to the mother incurring 2/3 of the total travel cost and the father incurring 1/3 of the total travel costs.

Notices

12.That the mother or the father, as the case may be, inform the other as soon as practicable, of any medical and like emergencies concerning the children, that may arise, when the children is in the respective parent’s care, and provide to the other parent  details of any treating practitioners, hospitalisation and medication.

13.That the mother and the father shall keep each other informed of their current residential addresses, email addresses, and telephone numbers, and any changes within 48 hours of the changes occurring.

14.That each parent shall inform the other of any medication prescribed for the children, and any treatment as recommended by a qualified practitioner.

15.That the mother shall keep the father informed of the children’s school enrolment details, and authorise the children’s school to provide to the father all and any information he may request about the children’s progress and attendance at their school.

16.That the father be permitted to spend time with the children in City B upon giving the mother 48 hours’ notice in writing, and at times as agreed to between the parties.

17.That the parties do all such things as are necessary to enrol and complete the post-separation parenting program such as ‘For the Kids’ or a similar program and provide a proof of completion certificate to the other parent.

18.That the matter be adjourned to the on 27 January 2022 at 10.30am for mention NOTING the change of the adjourned date.

During the term 2, 2021 school holidays:

Terms 1, 2 and 3 school holidays with the father, and the father shall return the children to the mother no less than 48 hours prior to commencement of school terms

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Salido & Palmerton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is a parenting matter concerning two children: X, who is eight years old and Y who is four years old. 

2. The parents separated in 2019.  Since that time the children have lived with each parent on a week-about basis.  In the affidavit material there are various remarks by each of the parties about those arrangements, with the parties raising some concerns about difficulties they have had.  However, the fact remains that for approximately two years these children have been in a shared care arrangement and in more recent times that has consisted of a week-about arrangement with the changeover of the children on a Monday from school.

3. X is attending a private primary school. Y is attending kindergarten.  The arrangement is a stable one. There is nothing to suggest that the children are not well cared for within that framework. 

4. The Family Consultant observed that both parents are intelligent and that they are invested in their children’s welfare. It would appear the parties are model parents, except for one thing – they cannot co-operate with each other.  That is a very significant issue.

5. The mother holds a degree in health care, although she has not worked for many years as a health care worker.  Due to this she is required to go through some extensive retraining before she is able to resume work as a health care worker. Despite not working as a health care worker, the mother has in recent times been employed in other work part-time.

6. The father also has a professional background.  I was told from the bar table that he is qualified as a scientist.  I do not, however, see particular information about that in his affidavit.  At paragraph 8 of his affidavit it states he is presently employed with a charitable organisation associated with his family. As such, it would appear he has a great deal of flexibility with his work.  He says that he works both flexible hours and part-time and therefore is able to spend time with the children when they are with him.

7. The mother has gone into considerable detail in her affidavit about her attempts to resume her professional life as a health care worker.  She gave oral evidence about aspects of this and this was not challenged.  She said that her inquiries and search for employment are for the purpose of finding a pathway back to retraining as a health care worker. As such, the location of her future employment has focused on essentially two areas, either:

   (a)remain in Darwin; or

   (b)move to City B (for at least a temporary period).

8. The mother says the difficulty with Darwin, and this was unchallenged, is that the only pathway back to the resumption of work as a health care worker is for her to spend a year at a hospital in Darwin. She would be obliged to work full time and on a variable shift basis.  She said the shifts are 12 hours at the hospital.  She said that she is unwilling to do that because it would mean that she would not be free to care for the children during the week the children spent with her.

9. In response to this, counsel for the father said that if she were to work at the hospital in Darwin over that year he would support her as best he could, though the details of what that support might consist of were unclear.  The parties are at an impasse over this issue. In other words, the parties have come before the Court because they are unable to resolve their differences about the children themselves. Given this is the situation I have no real confidence that these parents would be able to co-operatively parent over such an arrangement.

10. In addition, the mother says that if she were to undertake the retraining at the hospital in Darwin over the next year or so there would be an added component of training stretching over some four years with the Northern Territory Health Care Education program.  She says that she has found that there is a program available in City B through the C Health Care Service which would permit her to work part-time (22.5 hours per week, three days a week). 

11. She also gave evidence that the C Health Care Service have indicated to her that there would be greater flexibility permitted if need be for her to look after the children.  She says that after 12 months there would be a further period of six months in which she would remain employed by the C Health Care Service while she prepared for the practice exams.  She said that after 18 months of part-time work she would be able to return to work as a health care worker, presumably anywhere in Australia or elsewhere.  None of those claims were challenged. 

12. The mother is understandably at a stage in her life where her marriage has broken down, her children are no longer infants, and, not surprisingly, she wishes to return to a career as a health care worker. I expect she would find this work both professionally satisfying and highly remunerative.  It is entirely understandable that she wishes to do what she proposes. 

13. The father proposes that the mother could obtain work in another area.  According to his affidavit, he suggests she could work in “other health care sectors”.  It is notable that none of those roles are as a health care worker.  The lack of any detail about the roles described says something about the practicality of that work.  The mother has been doing some consultancy work, but it is far from obvious that she has made a career of that or that she has any real desire to pursue that as a career.

14. I am not satisfied that the proposal the father makes – namely, that the mother work full-time at the hospital with his support or that the mother follows another career path for the foreseeable future altogether – is reasonable or practical.

15. I am satisfied that the mother’s proposal is a reasonable one.  It is practical. Having regard to the alternative paths open to her to return to work as a health care worker, I am satisfied it is the most desirable one and the easiest.

16. The difficulty is that, if her proposal is accepted, it means that the children are removed from their present arrangement and enrolled in schools in City B.  It means that the children’s present stability is disturbed. Notwithstanding the proposals for the children to spend school holiday time with the father, it means that the relationship between the children and their father is affected deleteriously, particularly in relation to Y who is only four years old.

17. The reason why the matter has been listed for an interim hearing is that the mother gives evidence that the program that she proposes to undertake in City B is only funded until 2023 and by implication, though not expressly stated, such a program may not be available after that date. Having regard to the uncertainty about whether that program would be available at any time in the future, the mother says that she feels that she must act now. That was not challenged. 

18. The mother says that if the children cannot move with her, she will not go to City B.  In other words, she says that if this path to return to health care work is not open to her with the children, she will not take it up.

19. The two options presented to the Court are:

    (1)the father’s – that the present arrangements continue with the mother finding employment in Darwin (that employment would appear to be casual or insecure and certainly not as a health care worker); or

    (2)the mother’s – that the mother relocate to City B with the children to undertake her retraining at the C Health Care Service.

20. The choice is relatively stark.  The advantages and disadvantages are relatively stark.  The advantage in remaining is that the children’s relationship with their father remains unaffected by any significant moves.  They also remain in the same schools and in an arrangement where the children are adequately cared for.  That is a very significant.

21. On the other hand, if the mother goes to City B with the children, she will resume a career path to a satisfying and remunerative profession that has obvious benefits for her. Those benefits would include satisfaction with her life and her profession, and the financial stability for both herself and her children.

22. The Family Consultant also referred to the possibility of the mother going without the children. The Family Consultant, however, seemed to have reservations about whether that would be appropriate, particularly for Y, given the fact that he is four years old. The Family Consultant had doubts about whether that would be in Y’s interests to be separated from his mother at this stage. 

23. Interestingly, the Family Consultant did not make the same observation about separation from the father.  That was not explained and I am not entirely sure what to make of that observation.  It seems to imply that the Family Consultant was satisfied that the child Y was close to his mother and a separation from his mother would be worse for Y than a separation from his father.  However, I do not make any findings about that because I do not believe I have the material on which to make such findings.

24. I am satisfied that the mother’s proposal to move to City B offers a reasonable and practical course for her to return to health care work and that there is no other pathway which is as easy or practical from her point of view.  I am satisfied that, in the long term, it is advantageous for the mother and, indirectly, for the children that she be able to pursue a career as a health care worker.  I consider that if she is unable to do that it is likely to be deleterious to the family constellation as a whole, not simply to her as an individual but to the children as well.

25. After completing the necessary retraining over the 18 month period it might be that the mother will return to Darwin.  It may be after 18 months there will be a trial and she will be obliged to return to Darwin.  I do not accept that any decision I make today is one likely to set the framework for the future.  It is an interim hearing. 

26. In conclusion, I am satisfied, having regard to section 60CC(2)(a) of the Family Law Act 1975 (Cth) (the Act), the benefit to the children of having a meaningful relationship with both parents, that this arrangement is not inconsistent with that, particularly if it is on a temporary basis. Fortunately, section 60CC(2)(b) of the Act is not applicable. I have attempted to address, in general terms in the reasons I have given, the various matters in section 60CC(3) of the Act. I do not propose to go through those criteria, individually, but I do keep each of them in mind.

27. I propose to make an order until further order that the mother be permitted to relocate to City B with the children.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       21 July 2021