Schultz and Westfall

[2013] FCCA 1175

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCHULTZ & WESTFALL [2013] FCCA 1175

Catchwords:
FAMILY LAW – Relocation – children’s views.

Legislation:  

Family Law Act 1975 (Cth), ss.60CA, 60CC, 62B, 65DA(2), 65DAA
Federal Circuit Court Rules 2001(Cth)

Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC93 363

Applicant: MR SCHULTZ

Respondent: MS WESTFALL

File Number: MLC 5360 of 2010

Judgment of: Judge Phipps

Hearing dates: 31 July & 1 August 2013

Date of Last Submission: 1 August 2013

Delivered at: Dandenong

Delivered on: 23 August 2013

REPRESENTATION

The Applicant: Appearing in person

The Respondent: Appearing in person

ORDERS

1. That all extant parenting orders in relation to the children [X] born [in] 2000 (“[X]”), [Y] born [in] 2001 (“[Y]”) and [Z] born [in] 2003 (“[Z]”) be discharged.

2. That the husband and the wife have equal shared parental responsibility for the children.

3. That the children live with the husband.

4. That the husband is permitted to relocate the children’s residence to the [G] area in suburban Melbourne, Victoria.

5. That until the husband relocates the children’s residence to the [G] area the children spend time and communicate with the wife as follows:

   (a)Each alternate weekend from the conclusion of school Thursday until the commencement of school Monday during school terms and in the event Monday is a public holiday until the commencement of school Tuesday;

   (b)From after school Thursday to the commencement of school Friday on alternate weeks during school terms;

   (c)On special days as the parties may agree upon and in default of same from after school until 6.30pm on the children’s birthdays if the birthday falls on a school day or from 10.00am to 3.00pm if the birthday falls on a non school day, from 5.00pm on the day prior to Mother’s Day to the commencement of school Monday and from 3.00pm on Christmas Eve 2014 to 3.00pm Christmas Day 2014 and alternate years thereafter and from 3.00pm Christmas Day 2013 to 3.00pm Boxing Day 2013 and alternate years thereafter;

   (d)For half of all school term holiday periods by agreement but failing agreement the first half;

   (e)By telephone, email, SMS and other forms of non face to face communication as follows:

   (i)Whenever the children wish it;

   (ii)By the Wife telephoning or contacting the children at all reasonable times with the Husband to keep the Wife advised of a telephone number on which the children can be contacted at all times as well as any email address or other communication details;

   (f)As the Husband and the Wife may otherwise agree upon in writing.

6. That upon the Husband relocating the children’s residence to the [G] area the children spend time with the Wife, if the Wife has a residence within 20 kilometres of the children’s school or school, in accordance with paragraph 5.

7. That upon the Husband relocating the children’s residence to the [G] area, if the Wife does not have a residence within 20 kilometres of the children’s school or schools, the children spend time with the Wife:

   (a)During school term times each alternate weekend from 5.00pm Friday to 5.00pm Sunday commencing the first weekend of each school term;

   (b)Otherwise in accordance with paragraphs 5(c),(d), (e) and (f);

   (c)That the Wife’s time with the children be suspended as follows:

   (i)In the event the children’s birthday falls on a weekend when the children are in the Wife’s care from 10.00am until 3.00pm;

   (ii)On Father’s Day from 5.00pm the day prior to Father’s Day until the commencement of school Monday.

8. Notwithstanding any other order the children spend time with the wife from 3.00pm Christmas Eve 2014 until 3.00pm Christmas Day 2014 and from 3.00pm Christmas Day 2013 until 3.00pm Boxing Day 2013 and each alternate year thereafter and with the husband from 3.00pm Christmas Eve 2013 until 3.00pm Christmas Day 2013 and each alternate year thereafter, and from 3.00pm Christmas Day 2014 until 3.00pm Boxing Day 2014 and each alternate year thereafter.

9. Notwithstanding any other orders, the children live or spend time with each parent for half of the long summer holidays by agreement, but failing agreement with the Wife for the first half in odd numbered years and the second half in even numbered years.

10. Changeovers for the purpose of paragraph 5 and 6(a) that do not take place at the children’s school take place out the front of the other parent’s residence with the parent who has the children living with them delivering to the other parent.

11. That changeovers for the purpose of paragraph 6(b) that do such take place at the children’s school shall take place at the front of the other parent’s residence with the wife collecting the children at the commencement of time and the Husband collecting the children at the end of time.

12. That at all times whilst the children are in their respective care the Husband and Wife be retrained by injunction from:

    (a)Consuming alcohol to excess;

    (b)Gambling at any establishment and in any form.

13. 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 the 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.

14. Pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 5360 of 2010

MR SCHULTZ

Applicant

And

MS WESTFALL

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties, Mr Schultz, the husband, and Ms Westfall, the wife have three children [X] born [in] 2000, [Y] born [in] 2001 and [Z] born [in] 2003.  The children live 9 nights each fortnight with their father and 5 nights with their mother in the [B]/[C] area in country Victoria.

2. The husband proposes that he relocate the children's residence to the [G] area in suburban Melbourne.  He proposes that if the wife also relocates the time the children spend with their mother remain as at present and that if she does not they spend alternate weekends from Friday night to Sunday night with her and half school holidays with provision for various special occasions.

3. The wife opposes the husband's application to relocate.  She proposes that the children remain living in the [B]/[C] area and live equal time with each parent.  She proposes that if the husband is permitted to relocate the children's residence and she also relocates, that the children spend equal time with each parent and that if she does not then they spend alternate weekends with her.

4. The husband has an adult daughter; [name omitted] aged 21.  The wife has two adult children; [name omitted] aged 26 and [name omitted] aged 23.

5. The husband was born [in] 1966 and is aged 46.  The wife was born [in] 1970 and is aged 42.  They married [in] 2000.  The husband says that the parties finally separated on 13 May 2010.  The wife says that they separated much earlier in 2003.  She says there were extended periods of reunification which included a resumption of cohabitation between the parties with all the children, but she says that they lived predominantly separate lives from before the time she moved to [C] with the children in 2009.

6. In earlier proceedings between the parties a family report dated 10 January 2011 was completed by Mr S.  Dr T, who prepared the report in this case, read that report and used it for the purpose of obtaining information.  Dr T refers, to "the undoubted ongoing hostility between the parties”.  Mr S said that in more detail about each party's attitude to the other.

7. Mr S says that the husband described the wife as emotionally unstable, volatile towards him and an addicted gambler who had prioritized her addictive behaviour over the children's need for care and nurturance.

8. Mr S says that the wife described the husband as a violent man who had failed to financially support his family on a consistent basis across time while intrusively forcing himself back into her life, often by intimidation.  Mr S says that the wife contended that by behaving in this way the husband had created an unstable and volatile environment for the children.  She said all three children had been exposed to significant aggression and violence predominantly perpetuated by him towards her.

9. Both husband and wife were self represented at the hearing.  Each cross examined the other.  The attitude each party displayed to the other shows that they have not changed their views about each other and that Dr T's observation of "ongoing hostility" is undoubtedly correct.

10. The parties and the children moved to [C] in country Victoria in 2009.  The initiative was that of the wife.  The husband moved later.  The wife wished to bring the children up in a country environment.  Her parents live in the area as does her brother.  The wife rented a property in [C] but in January 2013 the owner’s commenced living in the property and the wife is now living with her parents.  This is where the children would spend week about time with the wife.

11. In May 2010 there was a period of some weeks, 6 to 8 weeks depending on whose version is accepted, where the children lived with their husband in the [G] area.  They stayed at the paternal grandparent’s residence and attended school at [omitted] Primary School.

12. The wife acknowledges that prior to this there was a period of some weeks when she was gambling at Crown Casino and away from [C] and the children were cared for by their husband.  She describes it as "chasing her losses" and says this was for a period of about six weeks.  The husband says it was eight weeks.  The husband also alleges that the wife travelled interstate to gamble, something the wife denies.  She acknowledges travelling interstate to Sydney but says it was to attend a work training course.

13. Earlier proceedings were commenced by the wife on 28 May 2010.  Interim orders made on 9 July 2010 provided for the parties to live with each parent on a week about basis.  The proceedings concluded with final consent orders made on 15 February 2011.  Those orders provide for the parties to have equal shared parental responsibility and for the children to live with the wife during school terms each alternate weekend from the conclusion of school Thursday until the commencement of school Monday and in the other week from after school Thursday to commencement of school Friday.  Otherwise the children to live with the husband.  The orders provide for the children to spend half of each school holidays with each parent and make provision for various special occasions.

14. The husband commenced this proceeding on 30 August 2012.  An interim order made on 9 October 2012 provided for the preparation of a family report and fixed the matter for final hearing.

15. Both parties are self represented.  At the commencement of the hearing the wife stated as one of the reasons for opposing any change in the current orders and any change in the living arrangements that there had been no change in circumstances since the last orders.  She did not develop the argument but having raised the point it means that she is relying on a Rice & Asplund issue so I must consider it.

16. Apart from this the particularly significant issues are:

    a)The views of the children;

    b)The children's relationship with each party;

    c)The husband’s reasons for wanting to move.

17. Since earlier orders were made only 18 months ago there is a need to consider whether the husband should be allowed to reopen the question of where the children should live.

18. Rice & Asplund (1979) FLC 90-725 was decided by the Full Court of the Family Court of Australia. There is an oft quoted statement by Evatt CJ in that report as follows:

    Courts should not lightly entertain an application to reverse an earlier custody order.  To do so would be to invite endless litigation for changes and an ever present factor in human affairs.  Therefore the court would need to be satisfied by the applicant that there is some change in circumstance which will justify such a serious step, some new factor arising, or at any rate, some factor which was not disclosed at the previous hearing which would have been material.

19. Warnick J examined the authorities in SPS & PLS 2008 FLC93 363.  There is a two-step process in considering a Rice & Asplund application.  The court must first determine if, prima facie, there is a change of circumstances.  If there is a prima facie change of circumstances the court must then determine if the change of circumstances is such that the court should engage in a full hearing of the application.

20. The husband relies on two things as change of circumstances, the state of the economy which means he is unable to find work in the [C], [B] area and the wishes of the children to move back to Melbourne.

21. Dr T concluded that all three children wished to move to Melbourne to live and that that is a genuinely held view.  The wife disputes this, but in considering the Rice & Asplund argument I do not have to make a finding one way or the other.

22. The children's views were an issue in the previous proceeding and the family report shows that the three children said they enjoyed their time in [G] and would prefer to live there.  Thus, the children's views about moving from [C] to Melbourne, specifically [G], were an issue in the previous proceedings.

23. The earlier family report shows that the children preferred the husband’s care of them to the wife's care of them.  In the present case, at least in part, the children's views of each parent as the carer are relevant to the preference for where they live.  Which parent the children preferred as carer was an issue in the earlier proceedings.

24. While the final order in the previous proceedings was made 18 months ago the time between the two family reports is 2 1/2 years.  The children were 10, 9 and 7 when the earlier report was prepared now they are nearly 13, nearly 12 and 10.  Dr T's recommendation is that the husband be permitted to relocate the children’s residence to [G].  He concluded that the children have genuine and strongly held views on this point.

25. The difference in the children's ages is significant.  All are at an age and state of development where their views must be taken into account, significantly more so than 2 1/2 years ago.  This change is sufficient to satisfy the requirements for a prima facie change of circumstances.

26. Separately, I must consider whether this change of circumstances is such that there should be a full hearing of the application.  I consider that it is.  If I conclude that Dr T's assessment of the genuineness and strength of the children's views is correct, given the age and state of development of the children, this is a best interest considerations which must be given due weight.

27. The existing order provides for the parties to have equal shared parental responsibility for the children.  The husband's application in this proceeding proposes the same.  The wife's response does not make a specific reference to parental responsibility but proposes a change to equal time.  I conclude that both parties are proposing that there be an order for equal shared parental responsibility.  There is no reason why the order should be changed.  While the relationship between the parties is poor they are able to cooperate to the extent necessary so that they can make joint decisions on major long term matters. 

28. An order for equal shared parental responsibility means that s.65DAA requires that the court consider whether equal time is in the best interests of the children and reasonably practicable or if not equal time whether a substantial and significant time is in the best interests of the children and reasonably practicable.

29. Section 60CA provides that the child’s best interests is the paramount consideration in making parenting orders. Considerations for determining a child's best interests are contained in s.60CC.

30. The first of the primary considerations is the benefit to the children of a meaningful relationship with each parent.  One of the additional considerations is the children's relationship with each parent and with other significant people in their lives.

31. The wife acknowledges some out-of-control gambling and some drinking alcohol to excess, but all in the past.  After moving to [C] she obtained full-time employment and was successful in that endeavour.  To some extent this limited her ability to have the children with her and she was relying on her parents and to a limited extent the husband to collect and look after the children during their time with her which overlapped with work.

32. Since the beginning of this year the wife has been working part-time and so can collect and care for the children herself.  Also since the beginning of this year she has been living with her parents and she acknowledges that there is from time to time friction between the children and the grandparents.  The children told Dr T that they do not like living with the grandparents.  The wife says that she proposes again obtaining her own rental property.  In part she is waiting on the outcome of this case.

33. The wife is actively involved in the children's lives.  They spend five nights a fortnight with her.  All three children are involved in the local sporting clubs.  The boys play [omitted] and [X] plays [omitted].  The games are played in the same sporting complexes, home games one week and away games the next week.  The timing of the boy’s [omitted] and [X]'s [omitted] overlaps to some extent and there was a dispute between the parties over the extent to which each watch the games.  The husband alleges that the wife favours [X].  The wife alleges that the husband spends more time with [boys’ sport omitted].

34. The husband is actively involved in [sport omitted].  He is the manager of the under 12 team and assists the coach.  I am satisfied that each parent is actively involved in Saturday sport.  Since the husband must be at the [boys’ sport] game it is natural for the wife to be at the [X’s sport].  Tensions arise because the boys want to stay and watch the next games of [omitted] for the older age groups while [X] is not interested.  The fact that each parent is critical of the other illustrates the poor relationship.

35. The wife has a partner, one of [occupation omitted].  She is not living with him but says she loves him and does want to have a permanent live with relationship.  The husband disputes the strength of the relationship.  The wife acknowledges that the new partner was still living with his wife and four children when she commenced her relationship with him.  The husband says that the wife is not seen in public with her new partner and that he is still seen in public with his wife.  The wife in this case says this is because the new partner and his wife have agreed to go together to watch their children at sport.

36. The wife has filed a number of affidavits from people who know her in the [C] area but none from her new partner.  For the purpose of this hearing I cannot gauge the strength of the wife's new relationship and the likelihood that it will develop as the wife hopes.

37. Apart from the new relationship it is clear that the wife enjoys living in the [C] area.  She attends regularly at church, the [omitted] Church, and is an active participant in its activities.  She has become a volunteer member of the [omitted].

38. The wife was the instigator of the move to [C] in 2009.  Ever since she was young she has had an attraction to the country.  She says she considers it is a better place to bring up children.  She believes the move has been successful; it has been good for the children, that they are established in the schools and extracurricular activities and should stay there.  The wife says that if the husband is permitted to relocate the children's residence to [G] she has not yet decided whether she will move herself.

1. The husband disputes the extent to which the wife has purchased clothing, shoes and paid other expenses of the children.  A finding on this issue is not necessary to decide the case.

2. The husband lives in a four bedroom home in [omitted] near [B].  He is not employed and so relies on government payments.  When in the Melbourne area he worked as an employee and then as a contract and subcontract [omitted].  He did some [omitted] work after moving to the [B] area.  He says now because of a back problem he cannot do any labouring work.  The wife disputes any injury.  The only medical evidence is reports annexed to the husband's affidavit.

3. The husband says that he wants to move to the Melbourne area because he has contacts there where he can obtain employment in administrative or office work not available in the [B] area.  He wants to be able to have an income so that he can provide better for his children.  The husband's history shows that he is not work shy.  He gives the impression of being an energetic person.  I accept that he is genuine in his desire to obtain employment.

4. While the wife says that the move to [C] was a mutual decision I accept that it was not the husband's preference.  Indeed, in 2010 he moved the children to Melbourne and only returned because of court proceedings.

5. Because the husband is not working he has the time to care for the children.

6. Dr T interviewed all three children and observed them with each parent in both formal observation sessions and informally whilst at the premises where he was conducting the interviews.  He says that the level of ongoing hostility between the parties must have negatively impacted upon the children, yet, superficially at least, the children still appeared relatively balanced and loyal in their attitudes to each party.  He says that while not expressing any desire for any real changes to the current parenting arrangements the children were firmly attached to each party, however another view of the children’s statements suggested the children to be far from happy with their long-term care and support from the wife, and very happy with the care and treatment by the husband.

7. Dr T then sets out in quotations statements by each child, which he had described earlier in the report.  There is no need to set out the statements here but quite clearly if they are each child's views, not unduly influenced by their husband, they support Dr T's conclusions.

8. In particular, Dr T describes [X], 12 1/2, as seemingly quite astute.  She told him she would always love their mother but didn't trust her as much as their father.  She said that they'd been with their father pretty much forever and felt completely safe with him but not with their mother.  She said she did not think their mother “cares for us as much as their father”.

9. Dr T's assessment of [X] is particularly significant because the wife believes that [X] in particular would not want to leave [C] where her mother is living.

10. Dr T concludes that the children have a firm bond with both parents but that they more attached to the husband than the wife.

11. The wife believes that the children have been unduly influenced by the husband. That is not Dr T’s conclusion. He says that after interviewing each of the children and because of the highly contested nature of the husband's relocation and the children's attitude he asked the children when all together whether they had been told by either parent what to say to him. He says that [X] took the lead and quite forcefully commented that the parents had said nothing to them but even if they did the children would say what they want to. She said it is too important just to agree with one of them.  The two brothers said they would say what they wanted to say also.  When asked who the parties might try to get them to agree with what they wanted they almost simultaneously replied "mum".

12. Dr T's assessment is carefully analysed and based upon his discussions with the parties and children and his observations.  I accept his conclusion that the children have a firm bond with each parent but that their relationship with their father was one where they were happy with his care and support by far from happy with the care and support of their mother.  The children have a meaningful relationship with each parent and if the current division of living arrangements remain the same the children will maintain that meaningful relationship.  If the arrangements change so that they were spending only 2 nights each fortnight with their mother that situation will not change.  The children's firm bond with their mother will remain and their preference for their father’s care will not be affected.

13. The second of the primary best interest considerations is the need to protect the children from harm.  Allegations of excessive drinking and family violence are in the past.  Despite a statement by the husband to Dr T, there is no current allegation of any drug abuse by the wife.  There is no evidence relevant to this consideration.

14. The first of the additional considerations is the views of the children bearing in mind their age and stage of development. Each of the children told Dr T that they want to move to Melbourne. They remember their time in Melbourne in 2010 favourably. A cousin of about [X]'s age lives in Melbourne, who, despite what the wife says, I am satisfied has a good relationship with [X] and that [X] enjoys her time with her.

15. Dr T is satisfied that the children's views are their own and that they are soundly based.  The wife is convinced that the children are forced into those views by the husband.  She says they have told her contrary things, in particular that the weekend before the hearing she asked them how they would react if she was successful in keeping them in [C] and they said they would not dislike her for it.

16. Dr T said that it was inappropriate for the wife to be asking the children in this way.  The way in which the wife describes she talked to the children must have put the children in a very difficult position.  The way in which the wife puts the discussion is that one or other parent would win the case.  This may not have been the words used but that is the way the children must have seen it.  The children know their mother wants them to stay in [C].  They love their mother and do not want to upset her.  It would be very difficult, if not impossible, for them to tell her they did want to leave her.

17. I am satisfied by the family report and Dr T's evidence that the children have a strongly held view that they wish to live in Melbourne with their father.  While they are well-established at school and in other activities in [C] they remember their time in Melbourne in 2010.  Both parents acknowledge that the children have a relationship and an attachment to their adult half siblings and are more likely to see them living in [G] then living in [C]. While they are no doubt influenced by the knowledge that their father wants to move and their greater comfort living with him I am satisfied that that is not an undue influence.

18. Under the second of the additional considerations the children's relationship with people other than their parents must be considered.  In [C] his they have the maternal grandparents and the wife's brother and his family.  If they married they will see less of them.  In Melbourne they have paternal grandparents and the husband's family, particularly [name omitted] of the same age as [X].  In Melbourne they have their older half siblings.  The husband travels to Melbourne on a regular basis with the children, and so they are familiar with his side of the family and their older siblings.

19. The additional consideration of the effect on the children of the change is relevant.  If they do move to Melbourne and the wife does not they will see less of their mother but they will maintain their close bond.

20. The ability of each party to provide for the needs of the children including their emotional and intellectual needs is a relevant consideration.  Dr T's conclusions about the children's relationship with each parent and how they see each parent’s care of them shows that each party can provide for the children's needs.  What is of significance under this consideration is that from the point of view of the children their father has a greater capacity to do so.

21. The children's age and sex have been described.

22. The reasonably practicable considerations for equal time are contained in s.65DAA(5) of the Family law Act 1975 (Cth). While the parties remain living in their current residences the first is satisfied because each party’s residences is near to the other. If the husband and the children move to Melbourne and the wife does not distance between the parties residences will make equal time impractical.

23. The second and third considerations are the current and future capacity of the parties to communicate and the ability of the parties to implement the arrangement and communicate with each other to resolve difficulties that might arise in implementing the arrangement.

24. Ongoing hostility is the apt description Dr T has given to the parties’ relationship.  They do not have the capacity to communicate to implement an arrangement and resolve difficulties that might arise in implementing such an arrangement.

25. The fourth of the considerations is the effect on the children.  The children have a clear preference for their father’s care.  An equal time arrangement would have an adverse effect upon them.

26. The children's views, their preference for their father’s care and the husbands greater ability to provide for the children's emotional and intellectual needs, demonstrated by the children's views, are in this case, the significant best interests considerations.  They show that the children's best interests will be served by moving to Melbourne with their father.

27. The case was presented as a relocation case.  If it is, it is only marginally a relocation case.  The travelling time between [C] and [G] was the subject of little evidence.  The husband suggested 1 1/2 hours.  Common knowledge would suggest that in reasonable traffic conditions it is about two hours.

28. The children are returning to the Melbourne area where they lived until 2009, as did their parents.  The wife may, if the children move, move to live near them.  The husband puts the move as in the interests of the children because of his greater opportunity to obtain employment.  I do not need to make a finding on this issue because I am satisfied that apart from this, the children's best interests are served if the husband is permitted to move.

29. The husband said that if permitted to move he would do so in time for the start of the 2014 school year.  The two older children commence high school in 2014.  The order does not need to specify the time at which the husband may move.  It is only necessary for the order to permit the father to relocate the children's residence to the [G] area.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date:  23 August 2013