Shelton and Bloomfield

FAMILY COURT OF AUSTRALIA

SHELTON & BLOOMFIELD

[2007] FamCA 311

FAMILY LAW – CHILDREN – RELOCATION – Mother primary caregiver – Re-partnered – Child of new relationship – Wishing to relocate 4 hours away – Father seeking significant time – Not viable if mother relocates – Relocation permitted – Significant time with father

APPLICANT:

Mr Shelton

RESPONDENT:

Ms Bloomfield

FILE NUMBER:

BRF

1103

2006

DATE DELIVERED:

20 February 2007

PLACE DELIVERED:

Coffs Harbour

JUDGMENT OF:

Jordan J

HEARING DATE:

20 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Graham

SOLICITOR FOR THE APPLICANT:

Foott, Law & Co

COUNSEL FOR THE RESPONDENT:

Mr Davies

SOLICITOR FOR THE RESPONDENT:

G A Guthrie

Orders

The Children, the elder son, born in September 1999, and younger son, born in March 2002, shall live with the Mother.

The Mother shall be permitted to relocate from W to the M area during the second half of the June 2007 school holiday period.

The Parents shall share responsibility for the major issue decisions in relation to the Children.

The Father shall spend time with the Children as follows:-

(a)    Each first, second and third weekend from 5.00 pm Friday to 5.00 pm Sunday, with such time to be extended to 5.00 pm on any holiday Monday.
(b)    For the entirety of the Easter and September school holiday periods and for half the June and Christmas school holiday periods each year.
(c)    At all other times as agreed between the parents.

For the purpose of school holiday time spent, changeover will occur on the Friday of the last day of school or, in the case of the second half of holidays, on the Friday following the end of school term.

During the Christmas/January school holidays, changeover will occur on the day following breakup in odd numbered years and at the agreed midpoint in even numbered years. Following the time spent in even numbered years, the Children will be returned to the Mother on the Thursday prior to recommencement of the school term at 4.30 pm to enable the Mother to prepare the Children to return to school.

For the purpose of changeover, the parents will meet at B Park, B, at the time nominated herein.

The Father shall have telephone communication with the Children each Tuesday and Wednesday between 6.00 pm and 6.30 pm.

The Mother shall keep the Father informed of a telephone number and address at which the Children may be contacted or reside.

The Mother and Father shall ensure that each is kept informed of:-

(a) Any medical problems or illnesses suffered by the Children while in that parent’s care.
(b) Any medication that has been prescribed for the Child/Children.

The Mother will keep the Father informed of:-

(a) Any social, school or religious functions which the Child/Children is to attend.
(b) Any other matters relevant to the Child/Children’s welfare.

The Mother and Father will make a genuine effort to come to a joint decision about:-

(a) The Children’s education.
(b) The Children’s health.
In the event that the parents cannot come to a joint decision about a major long term issue, they will do all things necessary to participate in family dispute resolution with a person authorised under section 10G of the Family Law Act.

The Mother shall inform the Father as soon as practicable of any specialist medical appointments with any medical practitioner in relation to the children.

The Mother shall do all acts and things to ensure that the Father is provided with all reports by any such medical practitioner.

The Father shall be permitted to attend on such appointments, such attendance or attendances to be at the sole discretion of any such consultant.

Within 14 days of these Orders and within 14 days of the Children’s subsequent enrolment at any school, the Mother shall do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the Children may attend from time to time, that school forward directly to the Father copies of all of each Child’s school reports and merit cards and any written material pertaining to each Child’s academic and extracurricular activities.

The Mother shall furnish to the Father within 7 days of receipt of same copies of all Order forms for school photographs of each Child.

These Orders shall remain in force until the elder child turns 12 years of age, at which stage the Orders should be revised to accommodate changes to the Children’s school, sporting and cultural commitments.

Pursuant to s65DA(2) and s62B, 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.

NOTATION:

Paragraph 4(a) of this Order has been amended pursuant to Rule 17.02 of the Family Law Rules 2004 to substitute the time of “5.00 pm” for the time of “4.30 pm” where it appears.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Jordan delivered this day will, for all publication and reporting purposes, be referred to as Shelton & Bloomfield.

FAMILY COURT OF AUSTRALIA AT COFFS HARBOUR

FILE NUMBER: BRF1103 of 2006

Mr Shelton

Applicant

And

Ms Bloomfield

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(COMMENCEMENT PORTION OF JUDGMENT MISSING FROM TAPE)

...in this matter and the legitimate positions taken by each of their parents. At the core of the matter in issue between the parties is the mother's application to seek orders enabling her to move from the W district and take up residence with her partner in the M area, which orders are inconsistent with the father's application which would see the children spending seven nights, including some school nights, with him, which would of necessity require the children to remain in the W district.
Briefly, the background includes observing that the parties entered into a relationship in or about June 1998 and separated in or about September 2003. There are two children of the relationship, an elder son born in September 1999 and a younger son born in March 2002.
There were clearly difficulties in the relationship leading to the separation and the parties continued to experience some difficulties in their dealings with one another after separation. The younger child was, of course, very young at the time of separation and the parties did experience some difficulties in their contact arrangements.
The parties set out their respective versions in the material before the Court. Wisely, counsel for each of the parties has not seen the need to explore the differences between the parties in relation to this aspect of the history. That is an appropriate approach to the matter, given that the evidence discloses that, from about mid 2005 at the very least, the parties have to their credit managed to put to one side their personal differences to enable their children to have meaningful relations with each of them and, in particular in relation to the father, provide that the children could spend three nights in one fortnight and two nights in the other with their father and the parties have complied with that regime. This is to the credit of the father and demonstrates clearly his commitment to his children and it is reassuring in terms of assessing the mother's capacity to facilitate the relationship between the children and the father in the future.
The father has repartnered with one, Ms C, and they have been in a relationship since February 2004. Ms C has two children, J aged six and E aged four, and I accept the evidence that they have become very attached to the children, the subject of these proceedings. The father and Ms C also have a child S, who is about six months of age.
The mother repartnered with a Mr T in August of 2005 and there is a child of the relationship, K, who is approximately nine months of age. The mother moved to H in the M area in March of 2006 pursuant to an authority to do so incorporated in orders made in the local Court.
The father filed an application in relation to parenting orders. The proceedings were transferred to the Family Court and, in June of 2006, his Honour Bell J made orders which effectively required the mother to return to W, which she did at about the end of June 2006. The mother has remained in the W area pending the determination of these final applications.
Relocation cases have always presented the courts with challenges and those difficulties have, in a sense, been magnified by virtue of changes to the provisions of the Family Law Act which came into effect in July of last year. Those amendments, amongst other things, really demanded of our courts that significant weight be given to the primary objects and principles of the Family Law Act which are designed to ensure that children are given the opportunity to have a meaningful relationship with each of their parents and to enjoy the input of each of their parents in their day to day lives and in relation to major decisions affecting the welfare of the children, and include the need to recognise the rights of children to have regular and meaningful contact and communication with each of their parents.
On their face, those matters can make the prospect of a primary resident parent relocating more problematic. At the same time, it has long been recognised that this Court should be loath to interfere with the rights of parents to freedom of movement and the opportunity to move on in their lives and make reasonable life decisions in terms of their personal lives, their careers and living arrangements and the like for themselves and their children. I take all of those matters into account.
The M area is approximately two and a half hours north of W and the effect of that, amongst other things, would be to render mid-week contact difficult, if not impossible, and any such mid-week contact would interfere with the children's schooling. As a consequence, the mother's proposals, should she be permitted to relocate, focus on weekend contact and school holiday contact.
The father's proposal is that the children should spend four nights in one fortnight and three nights in the other fortnight with him, so that basically the children would spend equal nights with their parents and shared holidays.
One of the first things this Court must address is whether the parties should share parental responsibility, and in this case I cannot see any basis upon which the Court could reject the presumption in favour of that outcome. Indeed, the mother seeks an order that there be shared parental responsibility whether she be permitted to relocate or not. In any event, I find that, despite their differences, these young parents have demonstrated a high degree of responsibility and commitment to their children. Whilst they may have personal differences and differences of approach, they are each well-placed to properly discharge their responsibilities. I can be satisfied that, although there are no doubt strains in the capacity of the parties to communicate, when it comes to major decisions affecting the welfare of their children, they each have something to offer. I conclude that it is in the best interests of the children that they have the benefit of input from each of their parents. I am well-satisfied that this is a case in which I should make an order for shared parental responsibility.
A consequence of that determination is that it obliges the Court to then consider the living arrangements and the amount of time that the children should spend with each parent. I am obliged to firstly consider the option of equal time and, in the alternative, I must focus upon the need to put in place arrangements which would ensure that the children spend substantial and significant time with each of the parents. Of course, the father's application would enable the children to spend equal time with their parents and, as was submitted by his counsel, this is a weighty matter to be taken into account in favour of his client's application.
In determining these matters, I am obliged to take account of those factors set out in s 60CC of the Family Law Act. As I said, each of the parents is able to provide for their children and I am satisfied that each parent has much to offer the children emotionally and intellectually. The more meaningful the input from each of the parents, the more benefit the children are likely to derive from such input.
The children are clearly closely attached to each of their parents. At one level, that adds support to the application brought by the father. Equally, as was argued by counsel for the mother, it addresses one of the potential concerns about the notion of relocation. If the mother were permitted to relocate and the father's contact was limited to weekends and extended school holiday periods, the Court could be confident that his relationship with his children is so sound that that relationship could be sustained, notwithstanding the difference between households and the reduced level of physical contact.
The children are seven and almost five respectively. The most important years at this basic bonding level for children are in their early years, as I understand it, until about age 4. Happily for these children, because of their parents' capacity to focus upon the need for healthy relations with each parent, they have passed through that primary bonding period and have formed the close attachments which are all too evident.
I take account of the logistics of the mother's move, in that she is proposing a relocation to an area which is in the broad vicinity of the area being occupied by the children to this point. Her proposal is not a substantial dislocation. It is within easy reach, in that the father and the extended family live in the W region, which is about a two and a half hours’ drive away.
I take account of the fact that the relocation is to a region which, I gather, offers similar facilities and a similar lifestyle to the W area. I gather they are both semi-rural, semi-regional type towns.
Most importantly, it needs to be acknowledged that a change in the living arrangements would involve a reduction of the children's time with their father and that would be a regrettable consequence.
A change would result in a change of schooling. The significance of that is enhanced in this case by observing that the elder child has some health and learning difficulties, which have required the intervention of a teacher's aide.
On the other hand, if the mother is permitted to relocate, she would be at least enabling the elder child to return to a school with which he has some familiarity, having attended the proposed school during the first half of 2006 when the mother was in H with permission of the Court. The evidence indicates that, on that occasion, he was also assigned a teacher's aide.
I take account of the interests of the parents in this matter and I accept that each of the parties would experience a significant level of loss and disappointment if they are not successful in their application.
Of course, the law no longer, if it ever did, requires of the mother the need to advance any compelling case for a wish to relocate. As long as the wish is bona fide and not for the purpose of interfering with the relationship between the children and their father, she is entitled to have this Court give consideration to her rights.
It is said, with some justification, that there are aspects of the case relating to Mr T's commitment to the M area which might suggest that it is not as deep-rooted as is first said to be the case. Nevertheless, Mr T does manage a family farm, he has managed it for the last six years, he says it is labour intensive and, on the face of it, there is no reason to doubt that. He wishes to remain there. The mother wishes to live with her partner and importantly they wish to be together, not only for the sake of their own relationship, but for the sake of their child, K, who necessarily has had his opportunity to spend significant time with his father compromised by the current living arrangements.
I am entirely satisfied that the mother meets whatever threshold there may be in relation to satisfying the Court that her wish to be able to relocate is bona fide and reasonable.
As I say, in this case, there is nothing by way of middle ground. The interests of the children are compromised to some extent, whatever be the outcome.
The mother has been the primary care-giver to these children and, whilst they are very closely attached to and bonded with their father, it is likely that their primary attachment is to their mother and that she meets their primary needs at this stage. No doubt, in due course as the children get older, there may be some changes to that dynamic.
It is in the children's best interests that their mother be as happy and contended as she can be in her life and in her role as a mother. I accept that a refusal of the application would be likely to compromise her happiness and contentedness and, to some extent, may impact upon her parenting.
I note that the mother proposes that the children spend three weekends out of four with their father and that he have the entirety of the first and third school holidays periods in the year and half of the mid-year and Christmas school holiday periods. The history of the matter satisfies me that the mother will comply with those arrangements. She also proposes regular telephone contact.
In the difficult balance that exists in cases of this type, I am satisfied that I should accede to the mother's application. However, there is one special feature of this case which, in my determination, is going to serve to frustrate and delay the mother's reasonable ambitions for a little time to come. As I say, the elder son is a special child with special needs, suffering from epilepsy and learning difficulties. In my view, it is not in his best interests to be removed from his current schooling mid-term.
I am of the view that a more orderly and child focused way to manage the transition to the mother's living arrangement proposals would be to effect the relocation during the mid-year school holiday break, so that the mother can put in place proper arrangements and the child can be prepared for the move during school holidays rather than mid-term.
I would propose that, until such time as the mother relocates, which she can do in the second half of the June school holiday period, the father's time with the children should be extended so that he has from 12 noon Saturday to 9.30 Wednesday in one week, and 12 noon Sunday to 9.30 am Wednesday in the other week, and because the children will be moving away, he should still have the entire Easter school holiday period and the first half of the June school holiday period.
In so ordering, the mother's reasonable life plans and arrangements will have effectively been put on hold by this Court for a period of 12 months from the earlier orders of June last year. This is a sacrifice the mother has made and will be required to make in the interests of the children. It will afford the children more time with their father, greater opportunity to consolidate and enhance their relationship, and it will give effect to the mother's proposed orders in my view at a more appropriate time. I hope and trust that, now that the mother's future is crystallised and she understands that, in due course, she will be able to take up residence with her partner, that that will relieve the anxiety that may have existed over the last six months or so.
ORDERS DELIVERED
RECORDED : NOT TRANSCRIBED
ORDERS DELIVERED
Five and 6 deal with changeovers and I may need to hear from counsel, as does 7. As to telephone contact, I can see no reason why that should not be twice weekly and, unless there are some submissions specifically on the days, I propose, for example, that it be each Tuesday and Wednesday between 6 pm and 6.30. Otherwise, in terms of par 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 of the mother's application.
RECORDED : NOT TRANSCRIBED
ADJOURNED
RESUMED
RECORDED : NOT TRANSCRIBED
ORDERS DELIVERED
RECORDED : NOT TRANSCRIBED

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate:

Date:

[2007] FamCA 311

20 February 2007

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies

Procedural Fairness