SANDERS & WAITES

[2014] FCCA 885

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDERS & WAITES [2014] FCCA 885

Catchwords:
FAMILY LAW – Parenting – interim – whether relocation is in the child’s best interests.

Legislation:  

Family Law Act 1975, ss.61DA, 65DAA(3)

Goode & Goode (2006) FLC 93-286
Morgan & Miles (2007) FLC 93-343

Applicant: MS SANDERS

Respondent: MR WAITES

File Number: DUC 398 of 2013

Judgment of: Judge Dunkley

Hearing date: 17 April 2014

Date of Last Submission: 17 April 2014

Delivered at: Parramatta

Delivered on: 1 May 2014

REPRESENTATION

Counsel for the Applicant: Mr Hodgson

Solicitors for the Applicant: Booth Brown Legal

Counsel for the Respondent: Mr Kenny

Solicitors for the Respondent: King Cain Solicitors

ORDERS PENDING FURTHER ORDER:

1. The mother is restrained from making the residence of the child, X (“X”), born (omitted) 2006, other than in (omitted), New South Wales.

2. The parties shall have equal shared parental responsibility for X.

3. X shall live with the mother.

4. X shall spend time with the father as follows:

   (a)During school term time, each alternate week from after school on Wednesday to before school on Thursday, commencing the second Wednesday of each school term;

   (b)During school term time, each alternate weekend from after school Friday to before school Monday, commencing the first weekend of each school term;

   (c)On the weekend which includes Father’s Day, from 6pm Saturday to 6pm Sunday;

   (d)For half of each school holiday period being the first half in years ending in an even number or zero, and the second half in years ending in an odd number; and

   (e)At such other times as the parties agree.

5. The father’s time with X shall be suspended as follows:

   (a)On the weekend including Mother’s Day from 6pm on the Saturday preceding Mother’s Day for the remainder of the period provided;

   (b)From 3pm Christmas Day to 6pm Boxing Day in years ending in an even number.

6. Each party shall have reasonable telephone communication with X on days when she is not in their care.

7. Each party is entitled to attend at X’s school on days when she is not in that party’s care for events at which parents are invited to be in attendance.

8. Each party is entitled to receive from X’s school by arrangement with that school any information or reports relevant to X’s school attendance and/or progress, and/or attainments.

9. Each party shall notify the other party of any medical treatment or allied health care received by X whilst in that party’s care, including the name and address of the treatment or care provider and details of the treatment or care provided.

10. Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PARRAMATTA

DUC 398 of 2013

MS SANDERS

Applicant

And

MR WAITES

Respondent

REASONS FOR JUDGMENT

Determination

1. Relocation cases are not a special class of cases, they are simply parenting cases.

2. However when heard as interim proceedings, such cases are difficult to determine, often due to the lack of expert evidence as to the effect that allowing or refusing the relocation will have on the child’s relationships with significant persons in the child’s life, usually their parents.

3. The decisions in Morgan & Miles[1] and Goode & Goode[2] provide binding directions as to how these types of cases are to be decided.

   [1] (2007) FLC 93-343.

   [2] (2006) FLC 93-286.

4. In Goode & Goode[3], the well-known passages in paragraphs 81 and 82 of that judgment are to be applied.

   [3] Ibid.

5. Her Honour Justice Boland in Morgan & Miles[4] at paragraphs 58 to 92 sets out a helpful “road map” for the determination of these types of parenting cases, which involve relocation applications.

   [4] (2007) FLC 93-343.

6. There has been no family violence by or against either party or the child.

7. Section 61DA of the Family Law Act 1975 applies equally in interim proceedings as in final proceedings.

8. It is the mother’s case that the father has abrogated to her the organisation and management of diagnosis and treatment options for X.

9. It is her case, as corroborated by the school principal, that the father is not involved with X’s education or the school that she attends.  

10. Neither of these facts causes a rebuttal of the presumption of equal shared parental responsibility.

11. The parties for a long time were able to consensually make parenting arrangements for X. Their ability to communication with each other about X is functional. The fact that the mother has been more dominant in decision-making does not materially minimise the consensual nature that exists.

12. For these reasons, I am satisfied that an order for equal shared parental responsibility is in X’s best interests, and is also a reasonably practicable order.

13. Such an order also benefits X by enabling both parties, if they choose, to be involved in X’s diagnosis, treatment and education, without the need for either party to give specific consent to doctors, treating professionals or schools, provided the other party be kept informed.

14. Neither party proposes that X should live with each party for equal time periods. This is sensibly so, given that the parties live about thirty (30) minutes from each other – the father on a rural property, and the mother in the township of (omitted).

15. Although an equal time order on superficial examination might seem possible, it is not an arrangement that X has experienced since the parties separated in November 2011.

16. Since November 2011, X has lived in (omitted) with her mother and spent time with her father. In paragraph 22 of her affidavit sworn 10 April 2014, the mother sets out the existing consensual parenting arrangements. In paragraph 10 of his affidavit sworn 20 March 2014, the father sets out the existing consensual parenting arrangements. Their evidence is at odds. It is the mother’s case that X’s time with the father is one overnight period each alternate week and an alternate weekend. It is the father’s case that there is an overnight period each week and alternate weekends. This is a fact in contention about which I can make no findings, applying the principle found in Goode & Goode[5].

    [5] (2006) FLC 93-286

17. As is clear from paragraph 7 of the report of Ms J, a psychologist who has been involved with X,

    “The results of the assessment suggest that X does not manage as well as other children of the same age usually do with changes in routine, novel sensory stimuli, unfamiliar adults or children, or excessive use of interactive language.”

18. It is likely that the routine for X in each of her mother’s home and her father’s home is different.

19. A weekly or more frequent change of such routine to provide for equal time is unlikely to be well managed by X, given what Ms J has said about X.

20. As such, at this interim stage of proceedings, I am, for this reason, unable to find that an order for equal time would be in X’s best interests.

21. There is limited information and evidence about the benefit to X of meaningful relationships with each of her parents.

22. Neither parent asserts or suggests that X does not or should not have a meaningful relationship with each of her parents.

23. The need to protect X relates to her provisional diagnosis of high-functioning autism.

24. The need to protect X relates only to issues of her psychological wellbeing.

25. It is the mother’s case that X’s psychological wellbeing would be assisted by moving to (omitted).

26. It is the father’s case that X’s psychological wellbeing would be assisted by her remaining in (omitted), living with the mother, and spending significant time with the father, as said by him has been the case since separation.

27. Both of these are valid viewpoints.

28. There is little evidence about X’s expressed views. What evidence there is, is contained within the Child Inclusive Conference Memorandum that became Exhibit A in the proceedings.

29. X was able to tell the consultant about characteristics that she liked about both of her parents and activities that she liked doing with both of her parents:

    “X did not indicate any concerns with either of her parents. She was aware that her parents had different views about whether she should live in (omitted). She stated she was happy for the Judge to make the decision as to whether she and her mother would move to (omitted).

    Asked if there was anything that could change to make her life better, X immediately said, “Not going to (omitted)”. X explained that she would miss her friends from school and was nervous about the move.”

30. From the Child Inclusive Memorandum, I conclude that X has an important relationship with each of her mother and father. She has no concerns about either. She enjoys doing activities with both parents.

31. X can, when living with her father, spend time with her grandmother, a person with whom it seems she has spent a lot of time with in the past.

32. The father, to an extent, has allowed the mother to take running in the decision-making that surrounds X’s diagnosis, treatment, and education.

33. Since separation, X has lived with her mother and consistently spent time with her father, that is significant and substantial time as defined in s. 65DAA(3) of the Family Law Act 1975.

34. The mother’s role in decision-making regarding X’s diagnosis, treatment, and education is not of itself so important a factor that it would tip the decision-making in this case.

35. The father has provided some financial support for X, however the majority of her financial support has been provided by her mother.

36. The mother has, since separation, been in paid employment.

37. The father’s farm income is not clear on the evidence. My observation during submissions that “it was not likely to be at a taxable level” brought no demur from either counsel.

38. The effect of change for X, because of her provisional diagnosis, and because of her reduced capacity to deal with change, is one of the important factors in deciding this case.

39. Considering X’s comment to the Family Consultant recorded in Exhibit A, it is likely that a move from (omitted) to (omitted) would not be welcomed by X. The move, for reasons specified by Ms J, is likely to be difficult for X to cope with. I cannot, at this interim stage of the proceedings, assess how long that difficulty would exist.

40. A move to (omitted) would expose X to novel sensory stimuli, unfamiliar adults, and unfamiliar children. She is not likely to cope well with this.

41. It would also require that she attended a new school, and would necessitate a new teacher who would need to become familiar with X’s needs, and not impose upon her an excessive use of interactive language.

42. All of these factors are more likely, rather than less likely, to expose X to psychological upset for a period of time which, at this interim stage of proceedings, I am unable to determine.

43. If X was to live in (omitted) rather than (omitted), it may cause her to feel more separated from her father. Expert opinion of the type contained in a Family Report would assist in making a considered determination with respect to this fact.

44. A move to (omitted) with her mother is unlikely to negatively impact upon X’s relationship with her mother. It may provide for increased time with other members of the material family and her older sister.

45. An order that restrains X from moving to (omitted) in the interim period, and to remain living in (omitted) with her mother is unlikely to negatively impact her relationship with her mother.

46. Such an order would not be welcomed by the mother, who has feelings of isolation and unhappiness about being required to live in (omitted). There is however no evidence that enables me to conclude that those feelings reduce the mother’s capacity as a parent.

47. It is the mother’s case that her financial circumstances in (omitted) would be better than in (omitted). There is however no quantitative financial evidence that enables me to reach that conclusion. A mere assertion by the mother is not of itself reliable evidence.

48. If X moves to (omitted), there will be greater practical difficulty and expense in her spending time with the father. The travel time between (omitted) and the father’s farm would be approximately three (3) hours.

49. It is submitted on the mother’s behalf that she would mitigate these difficulties by undertaking the transportation for X in the interim.

50. The distance between (omitted) and (omitted) would prohibit mid-week periods of time occurring for X with her father. These mid-week periods are on school days and will likely provide opportunities for X and her father to discuss her schooling.

51. I am satisfied that in their own way, each of the mother and the father are capable parents. Each parent likely has different strengths and a different focus in parenting.

52. X is an eight (8) year old girl who, because of her provisional diagnosis, has some special needs. She is likely used to living on farms and in small rural communities. Her capacity to adjust to a larger rural town such as (omitted) is not completely known. It may create some challenges for her.

53. I am satisfied that each parent has a proper attitude to X and properly exercises the responsibilities of parenthood. This is so, notwithstanding the criticisms that the mother makes about the father’s lack of involvement in X’s diagnosis and in her school education.

54. There is no family violence in this case.

55. These are interim proceedings and there is likely to be further litigation in a final hearing.

56. It is the mother’s case that the home that she owns in (omitted) is being rented out. It is also the mother’s case that she has more family support available to her in (omitted).

57. Both of these were assertions made by the mother without providing to the court any proper evidentiary basis. I am therefore unable to make those findings.

58. None of the mother’s family provided affidavits stating what assistance they could provide. There was no documentation provided evidencing the leasing out of the mother’s home in (omitted).

59. There was no evidence provided other than a simple assertion by the mother that the employment that she had previously undertaken on a casual basis in (omitted) was no longer available to her.

60. Any orders made at this time will only be on an interim basis.

61. In balancing the above, a continuation of X living with her mother and spending significant and substantial time with her father remains in X’s best interests.

62. A continuation of the current regime of time that X spends with the father, that is, an overnight period each alternate week, and a weekend period each alternate week, and periods during school holidays, remain in X’s best interests. This is because it is a routine to which she is familiar and one that enables her to spend time weekly with her father. Some of that time is in the school week, thereby giving her an opportunity to discuss school activities

63. The mother asserts that X will need to repeat the school year. She leads no evidence from Ms J or the school principal as to the necessity for this. Clearly, X is educationally at a level behind her chronological peer group.

64. Absent expert consideration, that fact of itself does not mean that X would benefit from repeating a year or from changing school.

65. The educational psychologist who has assessed X, Ms J, seems to have involvement with X’s school at (omitted) and with the school that it is proposed that X would attend if she is permitted to relocate to (omitted).

66. There is no evidence at this stage of the proceedings that enables me to determine that the education at either school is superior to the other.

67. X is well familiar with the school that she attends. It is a school that she has attended since February 2012.

68. Balancing all of the above factors, it is likely in the short term that the psychological impact on X of relocating is more likely to be detrimental, whereas the psychological impact on X remaining in (omitted) in the home owned by her mother, living with her mother, and attending the school that she has long familiarity with, is more likely to have a neutral psychological impact on her, that is, no psychological impact.

69. The lack of expert evidence of the type found in a fulsome Family Report makes findings about long term psychological impact on X impossible.

70. On balance, I cannot therefore determine in the interim that there is a benefit to X in being able to relocate to (omitted). There is a benefit to X in the interim if she remains living in her familiar circumstances in (omitted).

71. Of course, at a final hearing with the availability of additional evidence, especially expert evidence, an opposite conclusion might be reached.

72. However, at this interim stage, I do not reach that opposite conclusion.

73. Accordingly, the application to relocate X’s residence from (omitted) to (omitted) is not granted as it is not in X’s best interests at this time.

74. A continuation of the parenting arrangements for X to live with her mother and spend an overnight period with her father each alternate week, and an alternate weekend period with her father during school term, and for half of the school holidays, remains to be at this interim stage of the proceedings, in X’s best interests.

75. Those orders also remain to be reasonably practicable because the parents’ capacity to communicate about X is functional, the travel time between the homes is approximately thirty (30) minutes, and there is a school bus that X can catch from school to her father’s home at the end of the school day and from his home back to her school at the beginning of a school day. It is also reasonable practicable because in (omitted), the mother has better housing, the mother has potential to earn income from casual employment, and the mother has some friendships in the local area.

76. As a result, I find that orders for X to live with her mother and spend time with her father as set out above are reasonably practicable.

77. Accordingly, because those orders are both in X’s best interests and reasonably practicable, they will be made on an interim basis pending further order.

78. The case already has a directions hearing date in mid-May at which I anticipate orders and directions for the preparation of a Family Report will be made. If the case remains a part of the Central West circuit, and that is not certain, it is likely to get final hearing dates in late 2015. If it were transferred to the Family Court of Australia, it might get earlier hearing dates.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Dunkley.

Associate: 

Date: 1 May 2014