Sampson & Hartnett (No 10)
[2007] FamCA 1365
•22 November 2007
FAMILY COURT OF AUSTRALIA
| SAMPSON & HARTNETT (NO. 10) | [2007] FamCA 1365 |
| FAMILY LAW – CHILDREN - PARENTING – Power of Court to direct, or by effect, order a parent to relocate – s 114(3) Family Law Act 1975 - the effect of s 92 of the Constitution on parenting orders actually or effectively requiring or preventing interstate relocation – the propriety of orders with coercive impact FAMILY LAW – CHILDREN - PARENTING ORDERS - Failure by the trial Judge to consider the reasonable practicability of a party being required to relocate to and live in Sydney – ss 65DAA(1), (2) & (5) |
| Family Law Act 1975 (Cth) ss 60B, 64B, 65D, 65DAA, 68B, 114; Division 12A Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) The Constitution s 92 |
| B and B: Family Law Reform Act 1995 (1997) FLC 92-755 In re the Marriage of Fingert 221 3d 1575 (Cal App, 1990) |
| APPELLANT MOTHER: | SAMPSON |
| RESPONDENT FATHER: | HARTNETT |
| FILE NUMBER: | SYF | 3827 | of | 2004 |
| APPEAL NUMBER: | EA | 54 | of | 2007 |
| DATE DELIVERED: | 22 November 2007 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | BRYANT CJ, KAY and WARNICK JJ |
| HEARING DATE: | 23 August 2007 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 February 2007 & 21 March 2007 |
| LOWER COURT MNC: | [2007] FamCA 202 & [2007] FamCA 241 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Murphy SC with Mr Lloyd |
| SOLICITOR FOR THE APPELLANT: | Paul & Paul Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Richardson SC with Mr Kearney |
| SOLICITOR FOR THE RESPONDENT: | Karras Partners |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Gould |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of NSW |
Orders
That the appeal be allowed.
That orders 15 to 18 inclusive of the orders of Moore J made 21 March 2007 be set aside.
That the application for parenting orders be remitted to Moore J for hearing and determination in accordance with the reasons of this Court.
That the Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal.
That the Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by the respondent father in relation to the appeal.
That the Court grants to the Independent Children’s Lawyer a costs certificate pursuant to s 6 of the Federal Proceedings (Costs)Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of the costs incurred by the Independent Children’s Lawyer in relation to the appeal.
That the appellant mother pay the respondent father the sum of $7,500 towards the respondent father’s costs in relation to the property aspect of the appeal, such sum to be deducted from her share of the sale proceeds of the former matrimonial home.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Sampson & Hartnett.
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA54 of 2007
File Number: SYF3827 of 2004
| SAMPSON |
Appellant Mother
And
| HARTNETT |
Respondent Father
REASONS FOR JUDGMENT
BRYANT CJ and WARNICK J:
In determining parenting orders relating to [A] and [B] Hartnett, both then under four years of age, Moore J made several findings critical to the ultimate orders:
▪[the mother] has not demonstrated an appreciation of [the father’s] role in the children’s lives…there is no particular basis upon which it can be said that her outlook is likely to change in the future. If her demonstrable lack of support in this area were to continue into the future there is the spectre of the children becoming alienated from their father.…
▪…that the children should have the opportunity to spend considerable time in [their father’s] care and that he should have the opportunity to take a proper role in their day to day lives and their upbringing. (emphasis added)
▪By the same token, their mother is obviously of central importance to them and it is essential they continue to have the opportunity to spend time in her care and that she take a proper role in their daily lives and upbringing.… (emphasis added)
▪Unfortunately, with [the father] living in Sydney and [the mother] in Geelong, this presents practical problems.… (emphasis added)
Moore J ordered, in part:
15.The parents are to have equal shared parental responsibility for their children.…
…
17.The children’s residence is to be established in Sydney no later than 1 May 2007.
18.The children are to spend time with each parent as follows…
The balance of order 18 provided incremental increases in the time that the children would spend with the father, leading to an equal shared care arrangement by 1 February 2009.
As seen, the orders did not actually mandate the relocation of the mother herself to Sydney. However, the orders would be unworkable if the mother did not relocate. But in the proceedings before Moore J the mother had made no offer to relocate. Indeed, to the contrary, as her Honour put it:
The other possibility is for Ms Sampson to return to Sydney but I accept she is firm in her resolve not to do so.…
Nonetheless, her Honour recognised as a consequence of her orders:
…It is acknowledged such an obligation impinges Ms Sampson right to live where she chooses, but that has to give way to the children’s best interests.… (emphasis added)
This, the mother’s appeal against the parenting orders made by Moore J, raises significant questions; of the power of the Family Court to directly or effectively order a parent to relocate; of the effect (if any) of s 92 of The Constitution on parenting orders actually or effectively requiring or preventing interstate relocation (and related questions about the form of orders) and of the propriety of orders and the power to make them, that have a coercive impact, that seek to create a situation, rather than orders that derive from findings based upon the evidence and that are responsive to proposals of a party.
Ultimately though, the appeal’s outcome turns not so much on any question of power as whether all findings necessary to support the orders (whether taken in terms or in effect), were made, particularly findings about less intrusive alternatives and about the probability and practicability of the mother relocating to and living in Sydney.
Before moving to discuss these matters, we turn to some observations about the varying circumstances that might arise in “relocation” cases and the form of order which appears most apt to particular “types” of case.
Different orders for different circumstances
In many cases, a primary parent (a reference to the parent with whom a child has primarily lived before the litigation) will wish to relocate, but will say that she/he will not do so if the Court rules that relocation should not occur.
In another “type” of case, the primary parent may indicate an intention to relocate with or without the child, or prevaricate about his or her intention. In either of these type of cases, a court may conclude that a child should stay in a particular location. If the primary parent wishes to also stay, then the child lives with that parent. If the primary parent wishes to leave, the child lives with the other parent. Such rulings will properly include findings that each of the particular proposals is in the best interests of the child, if the circumstances activating the proposal come about. In these two “types” of case, directing an order to the issue of where the primary parent lives serves little or no purpose. The orders are better directed to parental responsibility for arrangements for a child, hence orders that a parent not remove a child from a nominated town; or an order that a parent return a child to a particular location, together with orders that if the parent also returns to that location, the child live with that parent; or if that parent does not return, the child live with the other parent.
While such orders may indirectly affect a parent’s freedom of movement, they do not direct a parent to discharge parental responsibility in a manner or in a location which is not one of the options put forward by one party at least, nor do they deprive a parent of choice about where he or she lives.
Consequently, such orders do not expose a parent to sanction if that parent chooses not to continue the anticipated parental involvement post-judgment. For example, the primary parent restrained from changing the residence of a child from a particular location following a case in which that parent proposed remaining as primary parent in such an event, is nonetheless free to hand over the child to live with the other parent. In other words, the primary parent, who by order will retain that position depending on his or her choice about where he or she lives, will “choose” the degree, if not the location of parental involvement.
Orders so limited in their impact on the freedom of choice of parents about the location, manner and degree of parental involvement are consistent with the law’s approach to family life. For example, leaving aside responsibilities imposed by criminal law, which apply to a parent whether separated or not, when parents separate, each is generally regarded as free to leave a child with the other to discharge the primary parenting role. No court order is necessary. As seen in the example above, even if after a contested hearing, orders establish a primary residence for a child with a particular parent, that parent is “free” to hand the child over to the other parent.
Not surprisingly, orders going further than the types so far discussed in their impact on the choice of a parent about the degree and/or location of his or her parenting have traditionally been avoided. There have probably been many reasons for this; concerns about power, whether intrinsically and/or from the shadow of s 92 of The Constitution; concerns about, even if within power, the extent to which a court ought dictate to parents the manner and place in which they discharge their responsibility; and consequent issues about enforceability.
However, in the instant case, in our view, the true intent, (though not the wording) of the orders of Moore J is to enjoin the mother to live in Sydney and, until the relationship of the children with the father is sufficiently developed to support equally shared parenting, to act as the primary parent to the children. The mother is not meant to have a choice, either as to location or as to acting for the nominated time as primary parent.
We say that the above is the true intent of the orders partly because the trial Judge made no finding that if the children lived in Sydney the mother would more probably than not move there. Moreover, her Honour made no finding that if the mother chose not to relocate, the child would be best living with the father. The orders do not derive from options put forward at trial; Mr Richardson, senior counsel for the father at trial, expressly disavowed an application for an order that compelled the mother to live in Sydney. Rather the orders reflect Moore J’s own assessments of the future parenting arrangements that will be in the children’s best interests.
If the orders made were to directly reflect this judicial intent, they would expressly enjoin the mother to live in Sydney and parent the children on the terms set out in order 18. They would be coercive in nature.
Though we earlier identified separate questions that arise in this appeal, there is considerable overlap between them. For example, as explained, a relocation order directed to a parent is likely only to be appropriate where a coercive effect is required. Similarly, consideration of the operation on “relocation” orders of s 92 of the Constitution indirectly at least involves the question of the power to make such orders, and perhaps, also, the “propriety” of them. Accordingly, we intend to deal with all questions of principle together.
Discussion of principles
There is little doubt that the Family Court has power to “effectively” order a parent not to relocate by ordering that parent, who wishes to act as primary parent, not to change the location of a child. The much less considered question is whether there is power to make an order not to relocate/to relocate directly against a parent. However, the Full Court of this Court has made some comment about the relevant power or powers.
In B and B: Family Law Reform Act 1995 (1997) FLC 92-755 the Full Court said (at p 84,234):
10.62 We consider that there is power to make an order that may have the indirect effect of restricting the movement of a contact parent. That issue would ordinarily arise when a contact parent seeks to relocate and applied to the Court to vary the existing contact order. If the Court refused to do so because it considered that it would be contrary to the children’s best interests to have contact reduced, it may do so by refusing that application, and this may place the contact parent under an obligation to adhere to the existing order. It may also arise in other ways for example, an application by the residence parent for contact orders to be made in particular terms which may be inconsistent with relocation by the contact parent. The use of injunctions is much less clear because it would raise the issue whether the best interest of the children is the paramount consideration in such applications: see s 68B.
10.63 In any of those eventualities it is possible that the failure of the contact parent to comply with those orders may amount to a breach of the orders in respect of which proceedings by way of enforcement could be brought.
10.64. However, we are not aware of any such order ever having been made in Australia and we think it unlikely that in the exercise of its discretion a court would do so. Essentially the reason is that it would be most unlikely that the children’s best interests would be served by requiring the contact parent to have contact which he or she did not wish to have, although it is possible to envisage circumstances where the continuance of contact is so overwhelmingly in the best interests of the children as to nullify that circumstance.
10.65 In our view, the possibility that such orders might be made emphasise the unrealistic and impractical interpretation of s 60B which is involved in Mr Hamwood’s overall submissions. We do not accept an approach which involves parents being “captives of fortune” to their children. Children have rights of a kind referred to in s 60B and otherwise. Parents also have lives to lead and they have the powers and authority referred to in s 61B. The rights to which s 60B(2)(b) refer must be understood and applied in a practical way in the Australian community. To freeze both parents at the location to which they went after separation so that the children may continue to have that contact with each of them is most unlikely to serve the long-term best interest of the children. It would inevitably mean that one or both parents may be forced to forego personal or economic opportunities which are advantageous to all members of that family or to continue to live in circumstances which are no longer suitable or appropriate. The width of the submissions of Mr Hamwood highlights the need to avoid any doctrinaire approach to s 60B. It has to be interpreted in a reasonable way in our society where the relocation of one or both parents for good reason may be important not only to that parent but also to the other members of that family unit.
In H v E (1999) FLC 92-845, the Full Court (Ellis, Kay and Steele JJ) dismissed an appeal against orders that had required the mother to return the children to live in Melbourne after she had removed them from Melbourne in breach of an interim order restraining their movements. The court did however express concern as to the form of order that had been made by the trial judge, when their Honours said (at p 85,887):
18. At the conclusion of the hearing we expressed some concern as to the form of Order 1 in that it purported to directly order the mother to live in Melbourne rather than deal with where the child should live. We were concerned as to the propriety of such an order and the source of power to make it. Counsel quite properly indicated to us that the orders were drafted by counsel rather than his Honour and that any error of form was to be visited upon them rather than upon the trial Judge. It was common ground that the gravamen of his Honour's judgment was that the child should live in Melbourne in order to facilitate regular contact with his father, and that no issue of power to require the mother to live in Melbourne was intended to be canvassed.
19. Without exploring the extent of that power, it would appear that when dealing with a child whose parents have never been married to each other, the power to place a restraint upon movement of the child appears to be found in the Court's power to make a parenting order under s 65D or grant an injunction under s 68B. Whilst an order restraining a parent from changing the child's place of residence may in reality act as a severe impediment upon the freedom of movement of that parent, neither section is likely to be a source of power to directly restrain the freedom of movement of that parent. When dealing with parents who have been previously married to each other, it may be that such a power exists by operation of s 114 of the Family Law Act 1975. It is unnecessary in this case to determine these issues, but it is important that judicial officers and practitioners bear in mind the possible limitations of power when determining the form of orders that are appropriate in any particular case.
In the High Court of Australia the focus has been not so much on the existence of power within the Family Law Act, but the application of s 92 of The Constitution. In this respect, we immediately note that the question of power to order or restrain relocation can readily arise in cases where interstate movement is not a factor. Further, Callinan J observed in AMS v AIF; AIF v AMS (1999) FLC 92-852 that s 92 of The Constitution “did not operate to strike down … orders of a court, but rather the legislative provisions which purport to support or authorise them to the extent necessary to ensure that infringing activities or orders will not be permissible…” (paragraph 274).
In AMS, the child of the parties was born in the Northern Territory while the parents were residing there. Sometime after the separation of the parents, they and the child both moved to Perth, where the child lived primarily with the mother. After the mother informed the father that she intended to return to the Northern Territory with the child, the father commended proceedings in the Family Court of Western Australia. The mother gave an interim undertaking not to remove the child from Perth without the father’s consent. At the final hearing she sought to be released from that undertaking but the court refused, and granted an injunction restraining her from changing the child’s place of residence from Perth. On appeal, the Full Court of the Supreme Court of Western Australia refused to set aside the restraint.
In the High Court, a significant question related to the approach taken at first instance, seen as requiring the mother to demonstrate “compelling reasons” for the move to the Northern Territory. However, each of the seven members of the High Court discussed the effective restriction on the freedom of movement of the mother, arising because she wished to continue as primarily residential parent, mostly in similar terms, of which the statement by Gleeson CJ, McHugh and Gummow JJ is representative (at p 86,026):
45.…subject to the operation of s 109 of the Constitution, the 1975 WA Act empowered the State Family Court to impose a burden or restriction upon movement by orders made in exercise of its discretionary powers with respect to the custody and guardianship of children. In the present case, the order of which the mother complains does not enjoin movement as such from the State to the Northern Territory. However, its practical operation is to hinder or restrict such movement by the mother by reason of the requirement that she not change the principal place of residence of the child. This, of itself, would not be fatal to validity. The question becomes whether the impediment so imposed is greater than that reasonably required to achieve the objects of the 1975 WA Act. …
There is no question that similar considerations apply to the Family Law Act (Cth). In short, power exists to make orders effectively, though indirectly, restraining the movement of a parent.
As to whether such orders may directly restrain movement of a parent, Callinan J may have thought that whether a restraint was direct or indirect made no difference to the constitutionality of legislation authorising the imposition (at p 86,064):
[275] If the respondent's submission that ss 28(3), 28A and 36A of the Family Court Act 1975 (WA) are unconstitutional to the extent that they purport to authorise orders restricting either directly or indirectly personal movement across State borders be correct, it would also require that Pt VII of the Family Law Act 1975 (Cth) be similarly read down so that the Family Court would also be precluded from making orders having a like effect. To mount her submission the respondent was also forced to point to indirect effects, because, in terms, the order does not operate in relation to the respondent personally, and indeed makes no reference to interstate movement. (our emphasis)
[276] The principle which the authorities state is that movement by people between States should be able to take place without regard to State borders. Various formulations have been adopted. Satisfaction of the guarantee of freedom does not require that every form of movement or intercourse must be left unrestricted or unregulated. The freedom of which s 92 speaks must be balanced “against … other interests in an ordered society which must be recognised by the law”. A determination of what (if any) burden might be validly imposed on intercourse or movement depends on the form and circumstances of the intercourse or movement involved. (footnotes omitted)
Gaudron J raised another issue altogether, but did not decide it. She said (at p 86,034):
103.…So far as the case concerns the more stringent test, there is a real question whether a law which operates to permit restriction of movement on the part of a custodial parent, usually the mother, could be said to be non-discriminatory. However, it is not necessary to explore that issue. …
On a general note, which may arguably support a power to directly restrain or require relocation by a parent, Kirby J said (at p 86,050):
[191] …Parents enjoy as much freedom as is compatible with their obligations with regard to the child.…
In A and A (Relocation Approach) (2000) FLC 93-035, Nicholson CJ, Ellis and Coleman JJ considered what had been said by the High Court in AMS (supra). Their Honours in the Full Court said:
54.Two features of the case should be noted at the outset. First, it seems to us that there was a narrow ratio decidendi to the relocation aspect of the case and there are matters in each judgment on which there is no express agreement by other members of the High Court bench, such as to form a clear majority view.
Their Honours went on to develop a number of points about “relocation” cases, one of which was (at p 87,553):
In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congrument with a party;s rights under s 92 of the Constitution, where applicable.
But their Honours may there be saying no more than that care should be taken to frame an order that imposes no greater an inpediment “than that reasonably required to achieve the objects of … the Act” (per Gleeson CJ, McHugh and Gummow JJ in AMS (supra)).
Another comment of a general nature which may support the proposition that a parent might, within power, be directly ordered to relocate, or restrained from doing so, is that of Gummow and Callinan JJ in U and U (2002) FLC 93-112 (at p 89,090):
89. … whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent.
In our view, there is nothing in the authorities that establishes that there is no power within the Family Law Act to directly restrain a parent from relocation or to directly require relocation. To the contrary, while there has been no decision expressly on point, there are some statements that support the existence of such a power.
The Act
By virtue of s 64B, a parenting order is one which may deal with one or more of a number of matters, which are as follows:
(a)the person or persons with whom a child is to live;
(b)the time a child is to spend with another person or other persons;
(c)the allocation of parental responsibility for a child;
(d)if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e)the communication a child is to have with another person or other persons;
(f)maintenance of a child;
(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i)a child to whom the order relates; or
(ii)the parties to the proceedings in which the order is made;
(h)the process to be used for resolving disputes about the terms or operation of the order;
(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
In our view, notwithstanding the breadth of the language in the section, particularly the terms of paragraph (i), an order requiring a parent to live in a particular place is not a parenting order as there defined.
As their Honours in H v E (supra) pointed out in the passage earlier quoted (at p 85,887):
…the power to place a restraint upon movement of the child appears to be found in the Court's power to make a parenting order under s.65D or grant an injunction under s.68B. Whilst an order restraining a parent from changing the child's place of residence may in reality act as a severe impediment upon the freedom of movement of that parent, neither section is likely to be a source of power to directly restrain the freedom of movement of that parent. When dealing with parents who have been previously married to each other, it may be that such a power exists by operation of s 114 of the Family Law Act 1975.
Section 68B provides:
Injunctions
(1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a)an injunction for the personal protection of the child; or
(b)an injunction for the personal protection of:
(i) a parent of the child; or
(ii) a person with whom the child is to live under a parenting order; or
(iii) a person with whom the child is to spend time under a parenting order; or
(iv) a person with whom the child is to communicate under a parenting order; or
(v) a person who has parental responsibility for the child; or
(c)an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of the child; or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i); or
(d)an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of a person referred to in paragraph (b); or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i).
(2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
We agree that s 68B is unlikely to be a source of power to directly restrain the freedom of movement of a parent.
Attention then turns to s 114(3) which provides:
(3)A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.
Perhaps obviously, in a parenting issues case, the justice or convenience of an injunction is likely to be closely connected with the parenting orders made and the findings that underpin those orders. As we will later discuss, even before the enactment of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (“the 2006 Act”), a court in a parenting case was not confined in respect of orders, to the proposals of the parties. The 2006 Act enshrines that proposition, by obliging the court to consider certain arrangements for a child.
Section 65DAA requires the Court, if the parents are to have equal shared parental responsibility, to consider firstly, a child spending equal time with each parent and secondly, if the first consideration is rejected, a child spending substantial and significant time with each parent. After considering whether equal or substantial and significant time would be in the best interests of the child, the court “must” consider whether doing so is reasonably practicable. Subsection (5) deals with reasonable practicality and requires the court to consider:
(a)how far apart the parents live from each other; and
(b)the parents current and future capacity to implement and 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.
The court must meet these obligations irrespective of the proposals of the parties.
As to the court’s power to make coercive orders and the propriety of making such orders, section 65D provides:
(1)In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and section 65DAB (parenting plans) and this division, make such parenting orders as it thinks proper. (emphasis added)
The objects of Part VII and the principles underlying it as set out in s 60B are of some assistance in considering whether there are any fetters on the power granted by s 65D. Those objects and principles are:
(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).
As seen, the sections are replete with references to parental obligations and duties. The first object of s 60B is to ensure “…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…”.
These and other provisions support the notion that, the parties having surrendered the resolution of dispute about parental arrangements to the court, the court has the function of crafting orders that ensure the best parenting arrangement is put in place and that parents “fulfil their duties, and meet their responsibilities…”. It is entirely consistent with that function that parenting orders, and orders that support those orders, such as injunctions, be directed to the parents and place obligations upon them.
As indicated earlier, the purpose of a “coercive” order is more to create a situation, rather than choose between situations that already exist. This distinction raises the basic question of the extent to which orders need to be connected to the evidence in a case. The High Court and some Full Court decisions offer some comment.
The following statements in AMS (supra) seem to recognise the rarity of an order crafted outside the proposals of the parties, but not to exclude the possibility of such an order. In AMS, Hayne J said (at p 86,052):
[205] Further, when considering the reasons given by a judge who has made an order in an application about the guardianship or custody of children, it is necessary to bear steadily in mind that the judge must grapple with the chaotic complexity of real life, make predictions not only of what he or she concludes may happen in future but also of what will be “best” for the child, and do so having regard to what the parties have chosen to contest or emphasise in the course of the hearing.
And Callinan J said:
[284] These submissions do not have regard to the way in which custody cases are usually, and this one was in fact, conducted. It will generally not be possible for a trial judge to construct a framework and environment for the upbringing of a child. What happens in practice is that those competing for the care and custody of a child will present proposals to the court to advance the welfare of the child. Judges frequently will be able to mould or adopt such proposals in making orders but rarely will they be able to invent or construct substantially different arrangements for children from those proposed by the parties.
The proposition was refined in U and U (supra). Gummow and Callinan JJ said (at p 89,089):
80. But the court is not, on any view, bound by the proposals of the parties. The court has to look to the matters stated in s 68F and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child's best interests.
Hayne J said (at pp 89,102 to 89,103):
171. In these circumstances, it would be quite wrong to treat the decision that is to be made as confined to a choice between whatever may be the particular “proposals” that the parents may make for the residence of, and contact with, the child. So to confine the inquiry would, in this case, have required the Family Court to ignore admittedly relevant evidence that was led about what the mother would do if it were decided that the child should live in Australia rather than India. More fundamentally, it would confine the court's inquiry to what the parents suggested would be in the best interests of the child, regardless of whether those suggestions were informed, even wholly dictated, by the selfish interests of one or other of the parents. To confine the inquiry in this way would, therefore, disobey the fundamental requirement of the Act that the court regard the best interests of the child as paramount. Those interests may, or may not, coincide with what one or both of the parents put forward to the Family Court as appropriate arrangements for residence and contact.
172. That is not to say that the Family Court is to embark upon some roving inquiry about the matter, unfettered by any regard for the evidence led and the matters which the parties seek to contest. Due account must be taken of the fact that proceedings in the Family Court are conducted in a framework of adversarial procedure familiar to the common law (I do not stay to consider how or to what extent that adversarial model has been modified by the Act or rules of court made under it).
With regard to the final observation of Hayne J in the passage above, we consider that the introduction of Division 12A by the 2006 Act would at least reinforce if not expand the availability to the court of orders crafted from outside the proposals of the parties. We say this because the division undoubtedly represents some movement away from the “adversarial procedure familiar to the common law”.
In D and SV (2003) FLC 93-139 the Full Court (Nicholson CJ, Kay and Monteith JJ) considered the degree to which, generally, alternatives to restricting freedom of movement ought be explored. Their comments apply equally or more so to an order requiring relocation, contrary to a party’s proposals. Among other authorities, the court discussed passages from AMS (supra) and U v U (supra), including some of those quoted above.
The Court said in D and SV (supra) (at p 78,280):
16. It should be noted that her Honour did not give consideration at all to any alternative contact arrangements that could be made if the children moved to Drysdale. As early as 1976 in Craven v Craven (1976) FLC 90-049; (1976) 1 Fam LR 11,276, in setting aside an order that restrained a mother from moving her children from Geelong to Queensland, the Full Court said at FLC 75,205; Fam LR 11,278-9:
“Our concern in this case is that his Honour did not give adequate consideration to alternative forms of access which could have been arranged. In our view an order restricting the freedom of movement of the custodial parent should be made only if the welfare of the children clearly indicates that the other parent should have regular weekly access rather than less frequent but longer periods of access. In our view as children grow older there can be advantages in the latter form of access. In this case the children have been in regular contact with their father and we agree that it is desirable in the interests of the children that they maintain their relationship with their father. However, when alternatives are considered, there is no preponderance in favour of weekly access provided that it is practical and reasonable to arrange for less frequent but longer periods of access; e.g. 3 or 4 visits each year of one or two weeks duration.”
17. Then, in AMS v AIF (1999) 199 CLR 160; (1999) FLC 92-852; (1999) 24 Fam LR 756, Kirby J, when speaking of relocation within Australia, said at CLR 224; FLC 86,050; Fam LR 806:
“192 …the attention of the decision-maker should ordinarily be to the possibility of formulating different arrangements for access and contact which would meet the child’s welfare…”
18. Recently in U v U (2002) FLC 93-112; (2002) 29 Fam LR 74 Gummow and Callinan JJ, with whom Gleeson CJ, McHugh and Hayne JJ agreed, said at FLC 89,089; Fam LR 92 (emphasis added):
“80. We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. …But the Court is not, on any view, bound by the proposals of the parties. The Court has to look to the matters stated in s 68F and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child's best interests.”
19. Nevertheless as Hayne J said:
“172. That is not to say that the Family Court is to embark upon some roving inquiry about the matter, unfettered by any regard for the evidence led and the matters which the parties seek to contest. Due account must be taken of the fact that proceedings in the Family Court are conducted in a framework of adversarial procedure familiar to the common law. (I do not stay to consider how or to what extent that adversarial model has been modified by the Act or rules of court made under it.)”
20. Even allowing for the caveat in the last sentence cited from Hayne J, the Court cannot manufacture an alternative proposal with respect to residence when one does not exist. (emphasis added)
21. In our view it was as early as this point in her Honour’s reasons for judgment that her Honour fell into error. It was essential that her Honour give consideration to how the best interests of the children could be advanced in this case. This did not confine her Honour to the competing proposals of the parties. Her Honour needed at least to turn her mind to whether alternate arrangements could be made to those being put forward by each of the parties that would meet all the criteria needed to determine what was best for these children. (emphasis added)
The statement in paragraph 20 of the above passage seems not to be essential to the appeal then before the Court. We doubt that their Honours were there addressing the question of power, but rather think their Honours were either saying that the Court could not impose a responsibility for residence on a person who did not seek it, or, importantly for the point we are discussing that the Court could not order a parent to relocate or not to relocate and continue to parent within such a restriction.
As to the meaning last-mentioned, we see some tension between the passages highlighted by us, although to a degree resolution can be derived by a distinction between “manufacturing” a residence proposal as distinct from a “contact” proposal. But in our view the Act does not support that distinction, which particularly in light of the 2006 Act, must surely be one of degree rather than principle.
If it is within power to order a person not to relocate, it would be surprising if it was not within power to order a person to relocate, although one would imagine the exercises of power to the latter effect would be even more rare, because the effect is more drastic. The person being ordered not to move at least has chosen that location as some stage and for reasons which one assumes at leats once existed. This contrasts with a person who may not wish to go some where and therefore the order is much more of an imposition on that person’s freedom.
However, we conclude there is power under s 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare, because:
(i)the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and
(ii)in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent’s choosing.
The prospect of ordering a parent to relocate and in effect “parent” in a situation not of that parent’s choosing, legitimately gives rise to concerns, particularly in respect of enforcement. What if the parent, in response to such an order, simply hands the child to the other parent, perhaps in circumstances such as in the instant case, where for whatever reason, there is not a well-established relationship between the child and the other parent? Will the primary parent be punished? The fact that such vexing questions arise does not mean that the power does not exist and may be rightly exercised at times. Enforcement is discretionary and may be rare in the situation exemplified. On the other hand, enforcement may be appropriate if a primary parent ordered to relocate, simply did not do so.
This appeal
As well as parenting issues the trial before Moore J was as to alteration of property interests, spouse maintenance and departure from child support assessment. Her Honour delivered reasons on 14 February 2007 and outlined the orders she intended to make, though she did not actually make them at that time. She invited the parties to give consideration to the actual terms of orders. On 21 March 2007 her Honour delivered reasons primarily addressed to the financial matters, but which included reference to parenting orders and in particular the impact of those orders on the issue of spousal maintenance. At that time her Honour made orders disposing of all issues before her. In her amended Notice of Appeal, the wife challenged the orders made both in respect of parenting issues and financial issues.
By way of written submissions for the wife, counsel sought leave to amend the grounds of appeal as therein set out. Then, at the hearing of the appeal Mr Murphy SC advised that the wife abandoned all the grounds of appeal relating to financial issues and part of the two grounds that went to the parenting issues. The abandoned part read as follows:
2.That the real of [sic] effect of order 17 was to:
2.1order the relocation of the wife from Geelong to Sydney, being an order beyond the court’s power.
As is obvious from the discussion so far, we have nonetheless felt it necessary to satisfy ourselves as to the question of power.
As amended orally, the grounds of appeal then were:
CHILDREN’S MATTERS
1. Upon,
1.1The learned Trial Judge making a factual finding that each of the parties will remain in different cities for reasons not capable of criticism; and
1.2The learned Trial Judge appreciating the nature of the competing applications;-
2.2.1failed to provide reasons for formulating the Orders she did having regard to there being a progression, moving from substantial and significant to equal time;
2.2.2failed to have regard to and articulate those matters specifically referred to in Section 65DAA(5);
2.2.3failed to follow and articulate the natural progression of matters to be considered conjunctively being Sections 60B; 60C; 60CC and 65DAA, having regard to her findings of fact.
2. That the real of effect of Order 17 was to:
2.1 …[abandoned]
2.2Alternatively if not beyond the Court’s power, the learned Trial Judge failed to articulate the basis upon which it was the Wife who should relocate (as opposed to the husband) in circumstances where;
2.2.1the wife was adjudged to be the appropriate carer for the children for 20 out of 28 nights for the foreseeable future.
2.2.2The wife had resided in Geelong since separation;
2.2.3Geelong is the only home known to [B] for all of his life.
We will return to the central argument in support of these grounds after a short background.
Background
Two or three years before the wife met the husband, the wife had moved to Sydney from Melbourne or Geelong. She had family including a mother and step-father in Geelong and her father lived in Adelaide. The father had his immediate family residing in Sydney.
The trial Judge resolved an issue about when the parties commenced a relationship, finding that cohabitation commenced in July 2000. The husband had a son [K] born in March 1996 from a previous marriage and shared [K]’s care with his former wife “…in ways that changed over time”. The parties married in July 2001. Their first child [A] was born [in April] 2003. The parties resided [in a Sydney suburb].
Final separation of the parties occurred in August 2004. In that same month the husband’s son [K] moved to live fulltime with his father, though seeing his mother at regular intervals.
Upon separation the mother moved to Geelong with [A]. The child [B] was born on [in late] 2004. At the time of trial, the wife was occupying rented premises in Geelong with the two children. The husband remained living in the [Sydney] home.
As Moore J found:
18.The period since separation has been fraught with conflict and continual litigation either related to the children or to property and financial matters.
We earlier set out the findings made by Moore J that were critical to her decision that both parents be involved in the day to day lives of the children and that after a period of increasing contact between the children and the father, the children’s care be shared equally.
The central question:
Whether all findings necessary to support the orders, particularly findings about the probability and practicability of the mother relocating to Sydney were made
While so far our focus has been on the power to make an order requiring relocation directly against the mother, the orders as made, and, even had an order been made directly against the mother, the balance of the orders, are or would have been parenting orders made pursuant to the provisions of Part VII of the Act. Thus, since her Honour’s orders provided for the parties to have equal shared parental responsibility, her Honour was obliged by s 65DAA to consider whether “equal time” (s 65DAA(1)(a)) and, if not making an order to that effect, “substantial and significant time with each of the parents” (s 65DAA(2)(a)) would be in the children’s best interests.
Importantly for this appeal, in each case her Honour was also obliged to consider whether the time to be spent with each parent was “reasonably practicable” (s 65DAA(1)(B) and 2(d)).
In respect of that consideration, s 65DAA(5) provides:
(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.
As preface to this discussion, we make the following observations. A person wishing to relocate will frequently be living in a settled environment awaiting the imprimatur of the court before moving. In other circumstances, where a move has already been made, or is planned, settled arrangements in the new location will be in place or arranged. Where the court may be ordering the return of a parent to a location in which they have lived for some time, but from which they have moved without the consent of the other party and in circumstances in which existing orders or arrangements for the other parent to spend time with the children will be rendered ineffective, there will usually be arrangements in the original location for the practicalities of life, such as accommodation, schooling and employment if relevant, which can readily be identified by the Court. If there are not, that fact would normally be a relevant consideration.
To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move. One would therefore reasonably expect a close analysis of the moving party’s capacity and/or the other parties’ capacity to provide for such practicalities having regard to the orders proposed by the court. It is probably only in the circumstance of significant wealth of both parties that it might reasonably be inferred that the practicalities of life could be met without detailed inquiry.
This was a very difficult case. Had there been a well-developed relationship between the father and children, orders as commonly seen and as discussed at the outset, directed to the location of the children, not the parents, might have been made. The reason for an under-developed relationship between father and children rested with the mother’s attitude. Her Honour concluded (and no challenge has been made to the finding) that both parents ought be involved in the children’s day to day lives. This would only be possible if both lived in the same area. Neither parent offered to move.
We do not say that the true “effect” of her Honour’s orders was a wrong result. However, it was an extreme one and we think required an unusually stringent enquiry. While her Honour’s consideration was thorough and in one aspect of necessary enquiry she received little assistance, there are two respects in which, in our view, the proper level of enquiry was not achieved.
Insufficient scrutiny was given to alternatives to enable the development of the father/children relationship. Insufficient scrutiny was given to the practicality of the mother living in Sydney.
As seen at the outset of these reasons, Order 17 of the orders made by Moore J is:
17.The children’s residence is to be established in Sydney no later than 1 May 2007.
The order is in the passive voice. It does not say by whom the children’s residence is to be established in Sydney, though we think it clearly enough implies that the mother will at least take the child back to Sydney. Had Moore J expressed the order to directly place some obligations on the mother, perhaps simply by ordering the mother to relocate, but even more so, had she ordered the mother to remain in Sydney with the child, the real complexities involved in the course she proposed might have become more apparent.
As to the first aspect of insufficiency, in paragraph 91 of her judgment, her Honour identified a number of factors favouring orders as a result of which the mother could continue to live in Geelong. She said:
91. … Certainly a continuation of the current circumstances would provide for the children continuity and stability of place and people and that is desirable. It would also provide a supportive environment for Ms [Sampson] and her feelings about that is a weighty consideration. Were she compelled to return to Sydney, virtually by the terms of orders, it could be predicted that she would be quite unhappy and resent the imposition of such arrangements. Given that the children would spend significant time with her on either proposal in the scenario presented by the children’s lawyer or by Mr [Hartnett], account has to be taken of the impact, however indirectly, her unhappiness would have on her functioning as a parent. That is also an important consideration to be weighed in the balance.
Her Honour’s approach may have produced a circularity with regard to the question of practicability of the mother moving to live in Sydney. In one sense, that may have seemed an unnecessary consideration, because no order was made requiring the mother to move to Sydney, even though her Honour clearly recognised or hoped that that was the likely result of her orders. In another sense, it was unnecessary to consider the impracticability arising out of the geographical separation of the parties because that was to be overcome by the effect of the orders made. However, in turn that gave rise to other questions of practicability, mainly the financial capacity of the mother to live in Sydney so that by 2009 shared care would be a workable proposition. Her Honour’s judgment does not deal with these matters sufficiently.
The orders that her Honour made were in effect at the extreme end of the discretionary range. Strong and well-defined support for them was necessary. While Moore J made reference to some factors such as the impact on the wife’s parenting, she did not for example explore all avenues of lesser impact on the mother’s freedom of choice. For example, though she thought the father could not move permanently to Geelong, whether contact in Geelong or Sydney would advance the relationship to such that if the mother chose not to live in Sydney the children could move to the father’s primary residential care.
Though other significant factors had to be addressed in favour of the father’s proposal, the strength of factors supporting the mother’s proposal reinforced the need for close scrutiny of alternatives, arising from the extreme nature of the orders effectively requiring the mother’s relocation. Her Honour only addressed two alternatives. One for the father to move to Melbourne/Geelong and the other for the mother to return to Sydney. Her Honour did not fully address the prospect that the father’s relationship with the children might be advanced by contact over a period in the Geelong area and perhaps subsequently, for longer periods in Sydney to a stage where, if the mother chose not to return to Sydney to live, the better order might be that the children live with the father.
As to the second aspect of insufficiency, as earlier described, her Honour delivered reasons for orders which she outlined, but did not then make. In those reasons Moore J did not address the practicality of the mother relocating to and remaining in Sydney. It appears that following publication of the initial set of reasons the mother took the view that she would offer nothing further by way of evidence or assistance to the Court in crafting orders. Mr Richardson argues before us that the mother cannot now raise issues about the practicality of her relocation. However, given that the decision to order relocation had been made, given the obligation on the Court to consider practicality and given that Moore J did not take the approach of warning the mother that inferences about practicality might be drawn against her, we think that the argument for the mother is available.
The trial Judge did turn her mind to the mother’s needs in Sydney in that part of her judgment which dealt with spouse maintenance. She said:
112.… It may be she will receive nothing after paying her debts and her capital will be limited to the chattels and a superannuation entitlement. …Currently Ms [Sampson] is reliant on a government benefit for her income but that has to be ignored in making an assessment of her capacity to adequately support herself.
113.It is accepted, therefore, that while the transitional arrangements under the parenting orders are in progress then she has a need for support. It would be reasonable to see her need for financial support from sources other than her own funds or earnings as limited to a period of months and her situation in the longer term can be reviewed should circumstances warrant that.
…
115.…Given the parenting orders, it is contemplated that Ms [Sampson] will make the move back to Sydney from Geelong so as to ensure the children have the opportunity to develop a proper meaningful relationship with their father and obviously there will be costs involved in that. That also has to be factored into the view taken of her needs in the more immediate future.
116.…A broad view has to be taken here to suit the circumstances and the fundamental circumstance here is that Ms [Sampson] needs financial support in the short term, including assistance to make the move back to Sydney and establish herself and the children while they are spending more time with their father in the earlier part of the transition period. After the move and when the arrangements are in place it can be expected that Ms [Sampson], like Mr [Hartnett], will look for work as they each take responsibility for the care of their children between them.
117.…I have in contemplation a sum of $500 per week for a period of six months [say 25 weeks] to see Ms [Sampson] through the immediate future and to assist her make the transition back to Sydney. That makes a total commitment from Mr [Hartnett] of $12,500 which I am satisfied he has the capacity to pay.
118.It could be paid periodically over the next six months but it is likely to be of more practical assistance if paid as a lump sum which can then be put towards the costs of making the move back to Sydney. … Any future need can be reviewed, if necessary, at a later point having regard to circumstances as they develop. …
There was however no consideration of the cost of such arrangements in Sydney for the mother and children as would permit a shared-care arrangement as proposed, or even until that became operative, the gradual increase in the time that the children would spend with the father. Necessary proximity would clearly affect the cost.
The wife’s capacity to work measured against her care of the children, the costs of child care, the availability of work for the mother, the capacity of the father to meet any need of the mother for support, all in our view had to be addressed before an order having such a drastic and coercive effect could properly be made. A view that “[a]ny future need can be reviewed. …” was in our opinion, insufficient.
Accordingly in our view, the appeal succeeds.
Consequent orders
As to the course to now be taken, obviously because further enquiry should be made, we are not in a position to re-exercise the discretion.
Commonly, remission for rehearing is to a judge other than the trial Judge. However, in this instance we think the remission should be to Moore J for further consideration. This is because her Honour has made many significant findings which were unchallenged. These include findings about the parties’ financial circumstances which are interwoven with the practicalities of relocation. Of course upon reconsideration, her Honour may form the view that what she originally sought to achieve is not achievable. Thus, the parenting orders ought be set aside by us to allow a fresh consideration of all issues, including any arising from the period since trial. The status of her Honour’s findings will then be a matter for the parties and her Honour, but the prospect of relitigating every matter relevant to the issues to be determined is greatly lessened.
Costs
We agree with the orders proposed by Kay J and his reasons for those orders.
KAY J:
This appeal now concerns parenting orders for [A] HARTNETT born [in mid] 2003 and [B] HARTNETT born [in late] 2004.
The children’s mother appeals against orders made by Moore J on 21 March 2007 that provided:
·the children’s parents are to have equal shared parental responsibility;
·the children’s residence is to be established in Sydney no later than 1 May 2007 (this order was stayed pending the outcome of the appeal); and
·that following the relocation of the children’s residence to Sydney the times the children are to spend with their father be gradually increased from two nights per week to alternate weeks with each parent by 1 February 2009.
The mother proposes that the children should continue to live with her in Geelong, Victoria and that they spend time with their father each alternate weekend. On a six week cycle, on two such alternate weekends the father would collect the children in Geelong on a Friday and return them on Monday and on the third weekend the mother would deliver the children to the father in Sydney on Friday evening and collect them on Sunday afternoon. All travel would be at the expense of the father.
The father proposes that in the event the appeal is allowed the matter be remitted for further consideration by the trial judge.
BACKGROUND
The parties met in 1997 when they were both living and working in Sydney. They married in … 2001 and separated in August 2004. Immediately following separation the mother and the child [A] moved to Geelong where the mother’s family, including her mother and stepfather, lived. The child [B] was born in Geelong some three months later.
In September 2004 the father commenced proceedings seeking orders that [A] live with him, and that the child spend roughly equal time with each parent. In an amended application filed 29 September 2005 the father sought orders that both of the children live with him and spend time with their mother until 31 December 2007:
·in alternate fortnights from 3 pm Monday until 10 am Saturday in Sydney; and
·in the other alternate fortnight from 3 pm Friday until 10 am Wednesday in Geelong.
The father would be responsible for the mother’s airfares to and from Sydney and half of the mother’s accommodation expenses in Sydney.
The father further proposed that from January 2008 the mother’s time with the children should take place on a four weekly cycle as follows:
·during the first week, from 3 pm Monday until 10 am Saturday in Sydney;
·during the second and third week, from after school Friday until the commencement of school Tuesday; and
·during the fourth week, from after school Friday until 4 pm Sunday.
He also made proposals for sharing of school holiday contact.
In her amended response filed in September 2005 the mother sought orders that the children live with her and the father spend time with [A] as follows:
·until 1 January 2007, on each alternate weekend from 9 am to 4 pm on Saturday and from 9 am to 4 pm on Sunday; and
·after 1 January 2007, on each alternate weekend from 9 am Saturday until 4 pm Sunday.
The mother sought orders that the father’s time with [B] be for:
·one hour per day on alternate Saturday and Sundays until the child is 15 months old;
·for three hours on each alternate Saturday and Sunday when the child has obtained 15 months of age;
·on alternate Saturdays from 9 am to 4 pm when the child has obtained two years of age; and
·on alternate weekends from 9 am Saturday to 4 pm Sunday as from 1 January 2009.
She also made proposals for contact on special days. She proposed that all changeovers take place [at a location] in Geelong.
THE TRIAL JUDGMENT
At the trial each of the parties maintained their position as to the places they intended to live. The father indicated that he would be living in Sydney with [K], his 11 year old son from a previous relationship. He said in evidence in response to a question from the trial judge:
In my final application, final orders, my understanding is that the wife’s position is that they just live in Geelong and I keep travelling back and forth for the future. And so does [K], their half-brother. In my application for final orders which is before you, it is that they reside with me in Sydney, but it is about a 50/50 parenting with the children up until school age, moving with me to Geelong for extended periods for them to spend time with their mother, and then for their mother to come to Sydney, for me to provide accommodation and for her to have extended periods with the children in Sydney.
In the course of discussion between the trial judge and Mr Richardson, senior counsel for the father at the trial, the following exchange took place:
Her Honour: It may be just me, I am not sure whether I am dealing with a relocation issue or not. I don’t think – your case is that I am not, Mr Richardson. It’s really a matter for Ms [Sampson]. You are not asking that she relocate back here.
Mr Richardson: I am saying to your Honour it would be best for the children to be living here but we don’t seek an order that compels Ms [Sampson] live here, but rather to give her an option if she chooses to.
Her Honour: It’s up to her you say. Unlike some cases which are labelled “relocation” cases, that is not the form of order your client is seeking.
Mr Richardson: No.
Her Honour: He says children here living primarily with him with time spent with [their] mother and if she cuts that out here or in Geelong he has a proposal in his minute but it’s a matter for her as to where she is.
Mr Richardson: No he goes further than that because the minute would see her having less time once the children started school as a consequence of they would be living in New South Wales and be principally living with him and therefore one is looking at weekends and by adding, as we have orally, to say if she chooses to live in Sydney it should be work to a shared arrangement as [the counsellor] proposes, then she would in fact be getting much more, particularly once one hits the stage where the children are of a school age.
In her Honour’s reasons for judgment, the trial judge said:
91. The submissions of the independent children’s representative and of Mr [Hartnett] would mean that the children would return to Sydney where they would spend significant time in their father’s care which would be shared between their parents which would entail Ms [Sampson] either returning to Sydney or spending significant time here. If their circumstances remain as they are, the children will remain living in Geelong with their mother. Ms [Sampson] will continue to have the support of her mother and other family members and friends and there is no reason to doubt that this network of support is very important to her in caring for two young children. Certainly a continuation of the current circumstances would provide for the children continuity and stability of place and people and that is desirable. It would also provide a supportive environment for Ms [Sampson] and her feelings about that is a weighty consideration. Were she compelled to return to Sydney, virtually by the terms of orders, it could be predicted that she would be quite unhappy and resent the imposition of such arrangements. Given that the children would spend significant time with her on either proposal in the scenario presented by the children’s lawyer or by Mr [Hartnett], account has to be taken of the impact, however indirectly, her unhappiness would have on her functioning as a parent. That is also an important consideration to be weighed in the balance.
Her Honour went on to say:
108.I am satisfied that the children should have the opportunity to spend considerable time in [the father’s] care and that he should have the opportunity to take a proper role in their day to day lives and their upbringing. He has a great deal to offer them, he has a very good relationship with each child, and he is a capable and caring parent. This calls for an arrangement that would give the children the benefit of his meaningful involvement which entails them spending time in his home wherever that might be with the ability to spend time with their half brother,[K], and to take advantage of the guidance and direction their father has to offer them. By the same token their mother is obviously of central importance to them and it is essential they continue to have the opportunity to spend time in her care and that she take a proper role in their daily lives and upbringing. She also has much to offer them, notwithstanding the findings about aspects of the decisions she has taken with the children since separation, and they should have the advantages her presence in their lives can give them.
109.Unfortunately, with Mr [Hartnett] living in Sydney and Ms [Sampson] in Geelong this presents practical problems. Ideally, as Dr [P] intimated, they would live in the same city and the children would spend substantial or significant time with each parent. But if their living arrangements remain as they are, that will not be possible and so an alternative solution must be found. One possibility would be for Mr [Hartnett] to move to the Melbourne/Geelong area but I accept that is impracticable because he has responsibilities for [K] who is at school here and who sees his mother who lives in Sydney regularly. The other possibility is for Ms [Sampson] to return to Sydney but I accept she is firm in her resolve not to do so and of course I also accept she sees her family as providing support for her and she has a settled network established in Geelong. Obviously it would be a considerable wrench to return to Sydney after this amount of time not to mention the costs involved.
Earlier, the trial judge had identified the dilemma presented by the case when she said:
92.On the other hand, the continuation of the current circumstances has potentially serious consequences for these children by reason of the deleterious consequences for their relationship with their father and, it follows, their future development. It is important, in my assessment, for the children to be put in the position of having their father participate in their lives more fully than has been possible until now.
Her Honour then concluded:
110.If that is to remain their positions [the father in Sydney and the mother in Geelong], then the children’s best interests require they be returned to live in Sydney where they will have the better opportunity of their father’s involvement in their lives and have time with their mother in Sydney and in Geelong at times. As I see it, that arrangement should be implemented without delay. In particular, there is no reason for supervision of Mr [Hartnett’s] time with the children to continue and it should cease forthwith. It should also move to overnight visits for both children. The relationship both children have with their father, [B] included, is appropriate to that. As I also see it, the parents should have joint parental responsibility for the children, and the children’s time should be spent substantially between their parents leading ultimately to a shared care arrangement or something akin to it when [A] starts school.
111.The drafting of orders to implement this view is not without its difficulties. The children’s lawyer and counsel for each parent helpfully provided draft orders which put their client’s position and certainly there is an alignment between the orders proposed by Mr [Hartnett] and those proposed by Ms Karagiannis. But in my view there are difficulties with the detail of each of those proposals but also some I would accept. While I am reluctant to do so, I have ultimately concluded that it would be helpful and appropriate to defer the drafting of the particulars of the orders to achieve the broad outcome I have indicated until there is the opportunity for some input from the legal representatives after publication of these reasons.
The proceedings before the trial judge included not only parenting issues but property issues. Parenting issues were dealt with in the judgment delivered 14 February 2007 and the property proceedings were dealt with in a judgment delivered 21 March 2007. In the course of the property proceedings the trial judge returned back to the parenting issues saying:
Form of parenting orders
127.I return to the parenting orders. In reasons published earlier there are findings and a broad outline of arrangements assessed as consistent with the best interests of these children. I did not draft orders to implement the conclusions I had drawn from my analysis of the evidence because I thought it helpful to have some input from the parents, more particularly Ms [Sampson] , and the legal representatives in light of the findings, conclusions and the outline of what I considered consistent with the children’s best interests. It was not forthcoming, though Mr [Hartnett] and the independent children’s lawyer were prepared to provide it.
128.It remains to say that I have weighed and considered the evidence related to the various factors the Act requires be taken into account in making parenting orders, including the objects and principles of the Act and the primary and additional considerations relevant to an assessment of children’s best interests. I take the view that notwithstanding the poor state of the parties’ relationship and other findings discussed, neither parent should be put in the position of having parental responsibility to the exclusion of the other. The presumption imposed by the Act of equal shared parental responsibility has not been displaced or rebutted and it is appropriate for that to apply in this case. That in turn requires the consideration of whether equal time spent with each parent is in the children’s best interests and if no such order is made then whether spending substantial and significant time [as defined] with each parent is in their best interests.
129.It follows from what was said in earlier reasons that it is considered consistent with the best interests of these children to spend equal time between their parents. It also follows that can only be possible in any practical way if the children are returned to live in Sydney. The orders provide until 1 May for that to happen. It is a reasonable period in all the circumstances. It is acknowledged such an obligation impinges on Ms [Sampson’s] right to live where she chooses, but that has to give way to the children’s best interests, the assessment of which has been delegated to this court. However, the implementation of an equal time arrangement ought to be deferred, in the children’s interests, to allow a transition period to enable them to move from a situation of supervised time in the day spent with their father, as was the case at the hearing, to a situation where they will be spending their time equally between their parents.
130.The time necessary to implement an equal time arrangement might attract different views, but the time frame set by the orders is less than two years from now, to begin in February 2009. In the meantime, the orders provide for an increase in time spent with their father according to an incremental schedule:
(i) Initially, their time with him will move to one overnight on the weekend visits of Saturday to Sunday and be unsupervised.
(ii) From 1 May 2007, which is the date by which the children are to be returned to live in Sydney, and for a period of six months up to the end of October this year, the overnight visits will increase to two per week. I have selected Friday and Saturday nights with their father in weeks 1 and 3 and Tuesday and Wednesday nights in weeks 3 and 4. This will give the children two weekends with each parent in the four weekly cycle. They will still spend the majority of their time in those months with their mother.
(iii) For the next three months thereafter, from 1 November until the end of January 2008, the time with their father will increase by maintaining the two overnight visits each week but the overall time will be extended to allow for three full days. I have selected from Friday morning to Sunday afternoon in weeks 1 and 3 and from Tuesday morning to Thursday afternoon in weeks 2 and 4 with their father. Again, this allows them to spend time with each parent on two of the weekends in the four weekly cycle. They will still be spending the majority of their time with their mother.
(iv) For the next six months until the end of July 2008 that weekly arrangement will be maintained but be confined to the school terms and the orders introduce block time with their father during school holidays. There will be two holiday periods those months and they will be spent equally between their parents.
(v) For the remainder of 2008 and up to the end of January 2009 when the school year begins, their weekly arrangements in school term time will not change but there will be further block periods through an equal sharing of the term 3 holidays and week about during the 2008/09 the long summer holidays.
(vi) From the end of January 2009 their time will be spent equally between each parent, week about in school terms and half of each school holiday period. The orders select the term time week about to change over at 5pm Sunday to enable the children when they start school later to settle the night before Monday morning.
(vii) The orders also provide for time to be spent with the other parent on special occasions, as set out in the orders. Court orders cannot regulate every minute detail of children’s arrangements. Parents are obliged to take responsibility for decision making in many ways outside the framework of orders and without adjudication in a legal setting. It ought not be necessary to regulate every detail in orders such as this.
Much of the trial judgment in relation to the parenting issues dealt with allegations raised by the mother about matters that the mother asserted ought lead the court to conclude that the father was an inappropriate carer for the children. She raised issues of the father’s use of illegal drugs particularly cocaine, the possible sexual abuse of the child [A] by the father and an asserted history of family violence during the time that the parties had lived together.
The trial judge did not accept the mother’s concerns about these matters and concluded that the children were at no risk of harm in their father’s care.
The trial judge was impressed by the father’s commitment to the children having maintained his relationship with them by constant travel, at his expense, to Geelong in order to spend time with them. Her Honour was critical of the mother’s attempts to marginalise the father’s role in the children’s lives, saying:
97.In many respects Ms [Sampson] can be seen as a capable and loving parent. Many of the observations by Dr [P] of her interactions and responses to the children reflected that capability and sensitivity.
98.But that is undermined by the fact that she has not demonstrated an appreciation of Mr [Hartnett’s] role in the children’s lives as their father and that is of no insignificant consequence for the future of two young children. Her acknowledgement on 6 September that Mr [Hartnett] has a good relationship with the children has been noted earlier not to be reflected in the outcome she seeks, but more apposite to the present discussion is that there is no particular basis upon which it can be said that her outlook is likely to change in the future. If her demonstrable lack of support in this area were to continue into the future there is the spectre of the children becoming alienated from their father as time goes on and that would have serious detrimental consequences for their well being, more particularly having regard to the state of their relationship with him. In this regard, Ms [Sampson’s] parenting capacity is less than is necessary for the children’s needs.
Her Honour concluded that the best result for the children would be for them to have the opportunity to spend considerable time in their father’s care and in order to achieve that result pronounced the orders that she did.
THE APPEAL
The central ground of the appeal, as it was argued before us, was that the trial judge failed to have regard to, and articulate the matters specifically referred to in s 65DAA of the Family Law Act1975 (Cth) (“the Act”).
The legislation
The relevant legislation provides as follows:
Equal time
(1)If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
…
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2)If:
(a) a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
…
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
…
Reasonable practicality
(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.
DISCUSSION
As can be seen from s 65DAA(1)(b) and 2(d), before making an order that the children spend either equal or substantial time with each of their parents the court must consider whether such an order is reasonably practicable.
Subsection 5 specifically sets out matters that the court must have regard to in determining whether it is reasonably practicable for the children to spend either equal or substantial and significant time with their parents. The first of those matters is how far the parents live from each other. In this case one parent lives in Geelong and the other parent lives in Sydney. As long as that situation persists it is clearly impracticable for the children to spend either equal or substantial and significant time with each of their parents.
The second matter required to be given consideration is the parents’ current and future capacity to implement an arrangement that would enable the children to spend equal or substantial and significant time. The finding of the trial judge in this case was that the effect of the litigation would be to leave the mother with no money. Precisely how it was expected that she would be able to establish housing somewhere in Sydney in sufficient proximity to wherever the father was going to establish his housing (the location of which was not yet apparent given the sale of the former matrimonial home), so as to enable an equal shared or substantial and significant time arrangement to be put into place, was never alluded to by the trial judge.
It was also incumbent upon the trial judge to give proper consideration to the parents’ current and future capacity to communicate with each other and to resolve difficulties that might arise. Given her Honour’s findings as to the attitude already displayed by the mother to the father since separation and the attitude displayed by each of the parents in the manner in which they conducted their litigation, it becomes all the more important for her Honour to have regard to this subsection, and specifically articulate how it might be that, given the lack of cooperation demonstrated in the past, the necessary cooperation for a successful shared parenting arrangement might be brought into existence.
Whilst we have not been directly asked to determine the issue of the power of the court to make an order requiring a parent to move from a well established place of residence to a different location so as to place the children in closer proximity to the other parent, I have severe doubts that there is power to make such an order or, if the power exists, it would not be exercised other than in the most exceptional circumstances.
In H v E (1999) FLC 92-845; (1999) 24 Fam LR 542 the Full Court (Ellis, Kay and Steele JJ) dismissed an appeal against orders that had required the mother to return with the child to live in Melbourne after she had removed the child from Melbourne in breach of an interim order restraining their movements. The court did however express concern as to the form of order that had been made by the trial judge when it said:
18.At the conclusion of the hearing we expressed some concern as to the form of order 1 in that it purported to directly order the mother to live in Melbourne rather than deal with where the child should live. We were concerned as to the propriety of such an order and the source of power to make it. Counsel quite properly indicated to us that the orders were drafted by counsel rather than his Honour and that any error of form was to be visited upon them rather than upon the trial judge. It was common ground that the gravamen of his Honour's judgment was that the child should live in Melbourne in order to facilitate regular contact with his father, and that no issue of power to require the mother to live in Melbourne was intended to be canvassed.
19.Without exploring the extent of that power, it would appear that when dealing with a child whose parents have never been married to each other, the power to place a restraint upon movement of the child appears to be found in the Court’s power to make a parenting order under s 65D or grant an injunction under s 68B. Whilst an order restraining a parent from changing the child’s place of residence may in reality act as a severe impediment upon the freedom of movement of that parent, neither section is likely to be a source of power to directly restrain the freedom of movement of that parent. When dealing with parents who have been previously married to each other, it may be that such a power exists by operation of s 114 of the Family Law Act 1975. It is unnecessary in this case to determine these issues, but it is important that judicial officers and practitioners bear in mind the possible limitations of power when determining the form of orders that are appropriate in any particular case.
The issue of making an order to require a primary caregiver to change his or her place of residence was examined by the Full Bench of the Supreme Court of Washington in In re Marriage of Littlefield 940 P 2d 1362 (Wash, 1997). In Littlefield, after separation the mother left the matrimonial home in Seattle and moved to live in California, taking with her the parties’ two year old daughter. A psychologist appointed by the trial court concluded that it would be in the child’s best interest for the father to have an opportunity to visit the child for three or four days each week. The trial court designated the mother as the primary residential parent of the child and ordered her to move back to Washington State. In overturning the orders made by the trial court the Full Bench said (at pages 1370 and 1371):
We appreciate the difficulty faced by trial courts in resolving disputed parenting plan issues and in attempting to fashion plans that are in the “best interests of the child”. However, the structuring of …
…
… the residential schedule contained in a parenting plan must be based on the statutory factors and the circumstances of the parties as they exist at the time of trial. There is nothing in this state’s Parenting Act that gives a trial court the authority to alter the physical circumstances of the parties in order to create an environment that is, in the trial court’s opinion, more desirable for the child than that which exists …
The Parenting Act attempts to afford parents the opportunity to continue parenting their children after dissolution of the marriage. However, the practical result of a marriage dissolution is that parenting and family life will not be the same after dissolution. This is so even though a trial court may believe it is in the “best interests of the child” to continue to live in the same family unit. A child cannot escape the reality that his or her family is no longer the same. The trial court does not have the responsibility or the authority or the ability to create ideal circumstances for the family. Instead, it must make parenting plan decisions which are based on the actual circumstances of the parents and of the children as they exist at the time of trial.
Despite a most robust dissent by Sanders J in which he described some statements by the majority as “poppycock”, he was moved to conclude that (at page 1374):
… the trial court has the statutory authority to restrict a residential parent from relocating the child outside a certain determined area … [b]ut ordering a parent to move from a lawfully established residence is a different matter.
The Californian Court of Appeal in In re the Marriage of Fingert 221 3d 1575 (Cal App, 1990) held that a mother as primary custodial parent could not be required to relocate to an area where the father resided to facilitate his visitation. Stone PJ and Gilbert J concurred with Abbe AJ when his Honour said that although a court mediator had given evidence that it would be best for the child if the mother moved to where the father lived in order to make it easier for the father and the child to spend time together regularly, an order that required the mother to move to where the father lived or else give up custody of her child was beyond its power. The Court said (at pages 1581 and 1582):
Courts cannot order individuals to move to and live in a community not of their choosing. To attempt to do so is inconsistent with both Federal and Californian Constitutions. The United States Supreme Court has inferred a right to travel from various constitutional provisions. This right also protects the right of individuals to “migrate, resettle, find a new job and start a new life”. …
[The mother] cannot be ordered to choose between her right to resettle, find new employment, start a new life and retain custody of her child.
In In re the Matter of the Custody ofDMG and TJG, Minor Children 951 P 2d 1377 (Mont,1998) the Supreme Court of Montana reversed the trial judge’s order that the mother relocate to Montana from Oregon so that the children could be closer to the father, or lose her status as residential custodial parent for a two year period. The Court said:
29.While, as a general proposition, it may be preferable that separated or divorced parents both live in the same community and that their children have frequent and consistent contact with each parent, realistically that ideal cannot always be met. Our courts must deal with the facts that a substantial number of this country’s marriages end in divorce; that a substantial percentage of our children are born out of wedlock; that ours is a mobile society; and that many custodial parents must move to seek or maintain employment, to avoid abusive relationships or to simply start a new life free from the burdens and reminders of the past.
The Court had earlier said
27.Assuming that neither [the mother] nor [the father] is willing to relocate (and that appears to be the situation facing the trial court), the bottom line is that the children are going to have to live primarily either in [Montana] or in [Oregon].
Whilst the Court declined to determine that there was no power to make such an order, it said absent case specific reasons and evidence pertaining to the particular child, there was no compelling state interest justifying a court ordering a custodial parent to live in a state other than the one he or she freely chooses.
Whilst both the legislation and the constitutional framework in which the United States’ courts operate are significantly different to that to be applied in an Australian context, the sentiments expressed in those cases remain apt.
In B and B: Family Law Reform Act 1995 (1997) FLC 92-755; (1997) 21 Fam LR 676 the Full Court (Nicholson CJ, Fogarty and Lindenmayer JJ) touched tangentially on the difficulty in making orders which affect parental choices. Discussing the hypothetical issue of whether a contact parent could be inhibited from relocating, the Full Court concluded at 10.62 that there was power to make an order that may have an indirect effect of restricting the movement of the contact parent. If there was an existing contact order which would not be complied with if the contact parent moved away, it was suggested that in theory an application to vary or discharge that order could be refused. In those circumstances the failure of a contact parent to comply with the order might amount to a breach of the order in respect of which proceedings by way of enforcement could be brought. The Full Court said however:
10.64.We are not aware of any such order ever having been made in Australia and we think it unlikely that in the exercise of its discretion a court would do so.
The Full Court went on to say:
10.65.We do not accept an approach which involves parents being “captives of fortune” to their children … To freeze both parents at the location to which they went after separation so that the children may continue to have that contact with each of them is most unlikely to serve the long term best interests of the children. It would inevitably mean that one or both parents may be forced to forego personal or economic opportunities which are advantageous to all members of that family or to continue to live in circumstances which are no longer suitable or appropriate … [Section 60B] has to be interpreted in a reasonable way in a society where the relocation of one or both parents for good reason may be important not only to that parent but also to other members of that family unit.
In my view, similar sentiments apply to the dilemma identified in this case.
In their present form the orders made by the trial judge are too uncertain and appear to be incapable of enforcement. I am unable to ascertain what the trial judge meant in order 17 where she ordered:
The children’s residence is to be established in Sydney …
If this was intended to be an order that the mother acquire a home in Sydney whether by purchase or rental, then move there with the children and thereafter be restrained from moving away from that home, it would have been necessary for the trial judge, assuming she even had the power to make such an order, to identify the economic means of the mother to achieve such a result.
Simply moving the children to Sydney would not of itself mean that it would become reasonably practicable for the children to spend equal or substantial and significant time with either parent. The Sydney metropolitan boundaries encompass a very large area indeed. As already indicated there is no certainty as to where the father would be living let alone where it was that the mother was required to move to if that was the intent of the order.
The legislative requirement under section 65DAA(5) is mandatory. The obligation of the trial judge is to pay regard to the matters therein contained. In my view the trial judge is also obliged to explain the manner in which she has regard to those matters where she intends to make orders which are not on their face, immediately capable of implementation. The trial judge needs to explain why it is that she is of the view that they are capable of being implemented.
In my view the dilemma in this case is to sculpt orders to meet the realities of the case. Those realities are that the father wants to live in Sydney and the mother wants to live in Geelong and each is free to do so. What needs to be achieved, is an order that in the circumstances maximises the opportunities for the children to develop a relationship with both of their parents. It requires a choice of which parent is to be the primary caregiver, that is, with which parent the children are to live, and then a choice of what opportunities should be provided to the other parent to have the children spend time with them.
OUTCOME
The matter needs to be remitted to the trial judge to enable her to complete her task in accordance with her statutory obligations.
COSTS
At the commencement of theses proceedings we were advised that the property appeal was being abandoned. The mother sought an order that in the event the appeal was allowed that it would be appropriate for a certificate to be granted pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). The father sought an order that the mother pay his costs of and incidental to the abandoned issues and otherwise if the appeal was allowed a costs certificate should be granted to him. The Independent Children’s Lawyer sought an order that if the appeal was allowed that a costs certificate should be granted to her.
I am of the view that each of the parties should be granted a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) certifying that in our opinion it would be appropriate for the Attorney-General to authorise payment to them in respect of the costs incurred in relation to the appeal insofar as it related to parenting issues.
I am further of the view that the appellant mother should contribute to the respondent father’s costs of and incidental to the appeal in relation to the property issues abandoned by her. She has been wholly unsuccessful in relation to them but at the same time there remains a significant disparity in the financial position of each of the parties. The costs thrown away as a result of the abandonment of the appeal relate to the preparation of the appeal and the written submissions in opposition to it. In the circumstances I am of the view that an order should be made that the appellant mother pay $7,500 towards the respondent father’s costs in relation to the property aspect of the appeal, such sum to be deducted from her anticipated share of the sale proceeds of the former matrimonial home.
I certify that the preceding one-hundred and forty (140) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 22 November 2007
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