Slater and Slater
[2008] FMCAfam 1230
•14 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SLATER & SLATER | [2008] FMCAfam 1230 |
| FAMILY LAW – Children aged 9 and 6 – interim arrangements for care – final orders made in August 2008 – orders provide for children to live with mother and spend time with father on weekends during term time and for half of school holidays – orders also provide for mid-week time during school terms – mother wishes to move with children to [W] 226 kilometres from Adelaide CBD – father currently lives in Murray Bridge but had intended to relocate to Adelaide metropolitan area – whether relocation principles apply given distance of move – matters to be considered – best interests. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA |
| Goode & Goode (2006) FLC 92-286 B & B: Family Law Reform Act 1975 (1997) FLC 92-755 D and S V (2003) FLC 93-137 Godfrey v Saunders 208 FLR 287 U v U (2002) FLC 93-112 D & SV (2003) FLC 93-137 Campbell & Spalding (unreported) Full Court of Family Court delivered 15 May 1998 Fragomeli & Fragomeli (1993) FLC 92-393 Rice & Asplund (1979) FLC 90-725 SPS & PLS [2008] FamCAFC 16 |
| Applicant: | MR SLATER |
| Respondent: | MS SLATER |
| File Number: | ADC 3050 of 2007 |
| Judgment of: | Brown FM |
| Hearing date: | 7 November 2008 |
| Date of Last Submission: | 7 November 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 14 November 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Boehm |
| Solicitors for the Applicant: | Von Doussas Legal Pty Ltd |
| Counsel for the Respondent: | Mr D Childs |
| Solicitors for the Respondent: | Ouwens Lawyers |
ORDERS
The parties competing applications be fixed for final hearing on 30 January 2009 at 10:00am.
Pursuant to section 62G(2) of the Family Law Act (1975) a family report, in short form, be prepared to address the issue of the relocation of the children herein [A] born in 1999 and [C] born in 2002 to [W] and their views, if any about it, together with any matters which the report writer considers are relevant to the best interests of the children concerned.
UNTIL FURTHER OR OTHER ORDER:
Order 3.2 of the orders made on 1 August 2007 and amended on 21 December 2007 is suspended.
Order 3.5 of the orders of 1 August 2007 as amended on 21 December 2007 is varied so that in the forthcoming Christmas school holiday period the father spends four weeks with the children.
All necessary handovers of the children required to implement these orders are to take place at a location to be agreed between their respective homes closest to the mid-way point thereto and failing agreement to be at the Dublin [omitted].
The mother is permitted to enrol the children at the [W] Primary School.
IT IS NOTED that publication of this judgment under the pseudonym Slater & Slater is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 3050 of 2007
| MR SLATER |
Applicant
And
| MS SLATER |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings are Mr Slater (“the father”) and
Ms Slater (“the mother”). They are the parents of [A] born in 1999 and [C] born in2002.
In August 2007, the parties agreed on final orders in respect of final arrangements for the care of [A] and [C] and orders were made accordingly in this court. It was agreed between the parties that the children would live predominantly with their mother and spend regular periods of time with their father.
In particular, [A] and [C] were to spend time with their father on alternate weekends from 4.30pm Friday until 5.00pm the following Sunday, during school terms and for one half of each school holiday period. Arrangements were also made for the children to spend time, with their father, on nominated special occasions such as Christmas, birthdays and Easter.
In addition, orders were made that the children should spend time with their father on each Tuesday, during term time, from after school until 7.30pm. However, once [C] reached seven years of age, this period was to be increased to a full overnight period concluding at the commencement of school the following Wednesday.
The parties agreed, in the orders of 1 August 2007, that they should have equal shared parental responsibility for the two children concerned. No doubt it was the father’s intention that he should spend substantial and significant periods of time with the two children concerned and the orders which were made reflected both this and the ethos of the Family Law Amendment (Shared Parental Responsibility) Act 2006.
Prior to the making of these orders, the parties had been in bitter dispute with one another about the appropriate arrangements for [A] and [C]’s care. As a result, orders had been made that the two children concerned should be independently represented in the proceedings. Their representative, Mr Winter, consented to the orders which were made on 1 August 2007.
At the time the orders were made, the father was living at Mt Barker and the mother and children were living in the northern area of Adelaide. [A] and [C] were attending school at [X] College, which is in Gawler.
In November 2007, the mother and children moved to Andrews Farm. The children continued at [X] College. Although the orders do not specify as such, the parties exchanged the children between them at Munno Para. In December 2007, the father moved to live in Murray Bridge, where his business was based at the time. It is his position that he and the mother were able to exchange the children at Marden.
The father complains that the mother changed the children’s place of education from [X] College to [N] Primary School, in August 2008, without consulting him. The mother asserts that the father had failed to comply with an earlier agreement that he would contribute one half of the children’s school fees.
The father also complains that the mother changed the children’s address again in August 2008 when she moved into a property at Gilles Plain with her new partner. It is the flavour of the father’s case that the mother has been unreliable in respect of arrangements for the two children concerned.
On the other hand, it is the mother’s position that the father has been disinterested in spending time with [A] and [C], particularly on Tuesday afternoons whilst he has been based in Murray Bridge. It is also her case that Mr Slater has not availed himself of the opportunity to take part in the children’s extracurricular and sporting activities.
As this brief opening indicates, the parenting relationship between the parties is currently strained and marked by mutual mistrust. Against this conflicted background, a difficult and controversial issue has recently arisen between the parties, rendering their already difficult relationship even more compromised.
As a consequence of her new relationship, the mother wishes to move the residence of the two children concerned from Gilles Plain to [W], a small township on the Yorke Peninsula. The father is bitterly opposed to this move, which he believes will compromise his ability to have a meaningful relationship with the two children concerned, particularly because it will prevent him spending time with [A] and [C] on Tuesdays.
As such, he seeks orders preventing the mother from changing the children’s place of residence from outside the metropolitan area of Adelaide without his written permission. For her part, the mother sees the father’s application as an unwarranted imposition on her entitlement to live how and where she choses, particularly as she is the parent charged with principal responsibility for providing a place of residence for [A] and [C] pursuant to the consent orders.
In particular, she points to the fact that the orders of August 2007 only prevent her from moving with the children outside of the State of South Australia but do not specifically proscribe a movement within the State. It is the mother’s position that the children will be able to continue to have a meaningful relationship with their father notwithstanding that they live in [W].
In this eventuality she proposes that the children continue to spend alternate weekends with their father and that in lieu of the current Tuesday arrangement, the father spend more time with the children on either weekends or during school holidays. The mother proposes, if this occurs, that the children be exchanged at Dublin, north of Adelaide or at Port Wakefield, at the head of St Vincent Gulf, if the father moves into Adelaide.
From the father’s perspective, the mother’s proposed move is ill considered and contrary to the spirit of the August 2007 orders. He fears that if the court meekly submits to the mother’s position, it will inevitably mean that his relationship with the children will be diminished and he himself will be relegated to the role of a “contact Dad”, which will be contrary both to the orders of 2007 and the spirit of the recent amendments to the Family Law Act.
There is an added dimension to the level of difficulty in this case. The parties seek a determination on an interim basis. From the mother’s point of view, there is extreme urgency in the case as she and her current partner have purchased a house in [W], settlement of which occurred on 24 October 2008. The father shares this sense of urgency, wishing at this stage to restrain the children from living outside of Adelaide.
At the interim stage, the court has limited time to determine the issues which come before it. Interim applications are usually determined, after a consideration of affidavit material only, without cross examination occurring. Accordingly, where there is a divergence in the affidavit material of the parties concerned, regarding what has previously occurred, the court is not able to resolve these evidentiary issues, at the interim stage.
However, given the urgency of the situation, from both parties’ points of view, particularly the mother’s, it is necessary for the court to make a decision as to whether or not the mother will be “permitted” to move the children to [W], in the face of the father’s stringent opposition to such a move.
The applications
The father commenced these proceedings on 3 October 2008. They were given a first return date of 24 October 2008. On a final basis, he seeks orders that would see both children living with him.
On an interim basis, he seeks an order that the mother be restrained from both changing the children’s place of residence and schooling from outside of the metropolitan area of Adelaide.
In the event of the mother having so moved, he sought orders that would require the mother to deliver the children to him so that they could live with him forthwith. In order to ensure such an outcome, he also sought that a Recovery Order issue in respect of both children.
In support of his application, the father relied on an affidavit of himself filed 3 October 2008. He has not filed any further material to date. The father’s application came before Terry FM on 24 October 2007. At that stage, the mother had not filed any responding material.
Her Honour made an order restraining the mother from relocating the children outside of Adelaide or changing their place of schooling from [N] Primary School in Gilles Plain. This order was made during the period of the adjournment, which was until 7 November 2008.
The mother filed her response and an affidavit of herself in support on 31 October 2008. She seeks the discharge of the orders made on 24 October 2008 and the variation of the orders of August 2007 to discharge the requirement that the children spend time with their father on Tuesdays. On a final basis, she proposes that [A] and [C] spend an extra two days, with their father, during each school holiday period.
Legal principles to be applied
The service of [A] and [C]’s best interests is the most important consideration in this case. [Family Law Act s.60CA] The same principles apply at both the interim and the final stage. The distinction being that interim hearings do not determine long term arrangements for the care of a child, whereas final proceedings do.
It is frequently the case that the court is called upon to make interim determinations against a background of urgency in circumstances where the parties concerned have diametrically opposing views as to what arrangements will serve their child’s best interests.
The aims and principles of the part of the Family Law Act [section 60B] which deals with children, emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm from being subjected to abuse, neglect or family violence.
Accordingly, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child. [section 61DA]
The presumption of equal shared parental responsibility is rebutted, if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence. [section 61DA(2)]
The court has a discretion not to apply the presumption, at the interim stage, if circumstances exist which make it inappropriate for it to be applied. [section 61DA (3)] The sub-section is likely to be pivotal, in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
However, the court must not utilise this discretion in an arbitrary fashion. Rather it is to be applied, at the interim stage, in cases where the limited evidence available to the court necessarily makes it problematic to either apply or rebut the presumption. [see Goode & Goode (2006) FLC 93-286 at 80,903]
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned. [section 61DA(4)]
It should also be noted that, if the presumption is applied at the interim stage, it must be specifically disregarded, by the court, at the final stage, when a more exhaustive hearing is possible. [section 61DB]
The presumption itself does not determine the extent of time the child concerned spends with each of his or her parents. This is determined by section 65DAA.
If the presumption applies, the court is required to consider firstly whether the child should live with his or her parents for equal periods of time and if this is considered to be neither to be in the child’s best interest nor reasonably practical, the court is then required to consider the child living with each of his or her parents “substantial and significant” periods of time.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the children concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.
In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the children have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous. [section 60CC(3)] Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
The Full Court has directed that it is necessary for the court to consider all of the section 60CC factors applicable and, if possible, make findings about them. [see Goode & Goode (supra) at 80,903]
Issues of practicality are dealt with by section 65DAA(5). The Court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the children concerned.
If, for whatever reason, the court reaches the conclusion that the presumption of equal shared parental responsibility does not apply and so there is no need for it to actively consider either an equal time or substantial and significant time arrangement, the court is still required to put into place the outcome which it considers will best serve the best interests of the children concerned, according to the various criteria set out in section 60CC and subject to the objects and principles contained in section 60B. Pursuant to section 65D, the court is empowered to make whatever parenting order it thinks proper.[1]
[1] See Goode & Goode (2006) FLC 92-286 at 80,899 [paragraph 65]
In Goode & Goode the Full Court directed that in determining interim hearings, after identifying the competing proposals of the parties; the issues in dispute; and any agreed issues; the court should:
·Consider the section 60CC matters relevant and, if possible make any relevant findings of fact;
·Decide whether the presumption in section 61DA should be applied or if it is rebutted because:
ØThere are reasonable grounds to believe child abuse or family violence has occurred;
ØOr, in interim proceedings only, it would not be appropriate to apply the presumption;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child’s best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent, unless it is contrary to the children’s best interests as result of the consideration of any relevant section 60CC matter or is impracticable in the terms of section 65DAA(5);
·If neither equal time or substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child, when considering applicable matters in section 60CC;
·If the presumption is rebutted or found not to apply then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.
Given the structure of Part VII of the Family Law Act, cases involving one parent wishing to move a significant distance away from the other parent concerned pose significant problems for the court. Such cases throw up competing principles, which are difficult to reconcile.
On the one hand, one of the purposes of the Family Law legislation is to provide former spouses with mechanisms to enable them to lead separate lives from one another in future and make arrangements for the care of their children, in the now changed circumstances following the end of the marital relationship between them. There is no principle of law that requires separated parents to live indefinitely in close proximity to one another.
On the other hand, pursuant to the principles contained in the Family Law Act, it is the entitlement of a child to have a meaningful relationship with both his or her parents, regardless of the fact that the parents concerned chose not to live together. It has been said that relocation cases need careful analysis.
Accordingly, it is usually considered preferable that issues of relocation not be decided at the interim stage, particularly as decisions regarding relocations may have potential serious ramifications for the children concerned, especially when those children are young in terms of the ongoing parental relationships.
In addition, necessarily, each case involving a proposal to remove a child from the particular location in which he or she lives is different and, as such, requires an individual analysis and response. The tyranny of distance develops by degrees.[2] For obvious reasons, it is likely to be more difficult for a child to maintain a meaningful relationship with a parent, if an international relocation is involved or the move involved is to a far distant part of Australia – say from Cairns to Hobart or Broome to Bairnsdale.
[2] See B & B: Family Law Reform Act 1975 (1997) FLC92-755 at 84, 196
This case is not in that category. The move envisaged is within South Australia. It is 216 kilometres between Gawler and [W] (2 hours 40 minutes). It is 226 kilometres between the Adelaide CBD and [W] (2 hours 51 minutes). Finally, it is 300 kilometres between Murray Bridge and [W] (3 hours 43 minutes)[3].
[3] These mileages and times were obtained from
The distances involved are large but not excessively so, when the size of continental Australia is considered. The distance is not so great that with modern motor vehicles it would be impossible for the children concerned to spend time with their father on weekends during school terms and certainly during the school holidays.
It is a common occurrence, in contemporary Australia, for a parent to move voluntarily away, from a child or children concerned, after a relationship breakdown. In addition, children are often relocated away from one of their parents, as a result of a consensual decision made by the parents concerned. Often financial imperatives are involved.
These types of situation come about because of the high level of mobility in Australian society and the reality that many parents which to pursue career and personal opportunities, in a different place to that in which they lived whilst in a relationship with the other of their child’s parents. High rates of divorce are also an incident of modern Australian life.
For obvious reasons, one of the frequent consequences of marital breakdown is that the parties concerned form new relationships. Accordingly, the interests of new partners become involved in the “mix” following marriage or relationship breakdown. Parents frequently wish to pursue a new life with a new partner in a new location.
In this case both the mother and the father have re-partnered. In addition, Ms Slater has moved frequently, within Adelaide, in the period since the parties separated. So has Mr Slater. Previously he worked in Roxby Downs. He then lived in Gawler with his new partner and then moved to Murray Bridge. The mother has not sought to restrain any of these moves and nor is it appropriate that she should.
Not every move of a child must be regarded per se as a relocation case. Separated parents frequently move from suburb to suburb, within the metropolitan areas of Australia’s large cities. In addition, they may move from one provincial town, within a state, to another location within that state. The possible permutations are, for obvious reasons, endless.
In such circumstances, children are frequently able to maintain their relationships with significant people, including a parent, by less frequent periods of quality time spent in school holidays, which is supplemented by other forms of communication, such as telephone, webcam or letters.[4] As Kay J pointed out in Godfrey v Saunders[5] “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”.
[4] See D and S V (2003) FLC 93-137 at 78, 280
[5] See Godfrey v Saunders 208 FLR 287 at 298
Although the shared parenting legislation has added emphasis to the principle that children benefit, in their emotional and social development, by having as extensive a relationship as possible, with both their parents, there is no principle of law that the parents of children are required to live indefinitely close to one another, in order to ensure that such an optimal outcome is achieved. The recent legislative amendments have not changed this situation.
Pursuant to rights read into the Australian Constitution, Australians have a right to live how and where they choose. Australia is a free and democratic society, which prizes the freedoms of its citizens. Accordingly, the court cannot ignore the legitimate expectations of parties who come before it regarding these personal freedoms.
However, the best interests of any child concerned remain the paramount consideration in the outcome of these types of cases. Accordingly, it may be incumbent upon the court to investigate the possibility of the other parent moving to be closer to the child concerned, rather than first considering restraining the parent who wishes to relocate from being able to move with the children concerned.[6]
[6] U v U FLC 93-112
As the child’s best interests remain the paramount consideration, in the outcome of any relocation proposal, and as one of the components of a child’s best interests is the right to have a meaningful relationship with both of his or her parents, I must consider the adequacy of the arrangements proposed by the relocating parent for the child to spend time with the other parent concerned. Such considerations may be crucial in determining whether a particular relocation is likely to be in a child’s best interests and so should occur.
The provisions of the Family Law Amendment (Shared Parental Responsibilities) Act have added emphasis to the importance of a child maintaining a meaningful level of relationship with both of his or her parents. However, they have not specifically prohibited the movement of a child away from one of his or her parents or placed some specific evidentiary onus upon the parent wishing to relocate. If the legislature had intended to prohibit such relocations, it would have specifically done so.
Rather, what the court is required to do is to weigh and balance the primary considerations and the additional considerations in respect of the parties’ competing proposals, to determine the best outcome for the child concerned. In so doing, it cannot ignore a parent’s entitlement to freedom of movement. In my view, it is incumbent upon the court to consider these various principles at both the interim and final stage. I think this follows from the directions provided by the Full Court in Goode.
However, given the more limited evidence usually available at the interim stage, the court must exercise considerable caution, in respect of such relocation issues, when the evidence before it is necessarily provisional and untested.
Accordingly, the Full Court of the Family Court has indicated that it is preferable that issues relating to relocation should not be determined against a background of recent development, which significantly alters the relationship of the child concerned in regard to one or other of his or her parents, particularly if that recent development has been created by the actions of one parent alone.[7]
[7] see Campbell & Spalding (unreported) Lindenmayer, Warnick and Ellis JJ delivered on 15 May 1998
In D & SV,[8] the Full Court of the Family Court queried whether a relatively short proposed move should invoke the relocation principles. Invariably, where one parent wished to categorise a case as a relocation one it involved some attempt on the part of that parent to restrict the other parent’s freedom of movement. Accordingly, in such cases, the court urged caution about applying the relocation principles, particularly where there was not any greater dispute as to who of the parents concerned should be the residence providing parent.
[8] D & SV (2003) FLC93-137
In these types of cases, the Full Court indicated that it was usually preferable to consider how the children concerned might maintain their relationship with the other of their parents, rather than conduct an enquiry directed to determining whether the “residence” parent’s freedom of movement should be restricted.
The age of the child concerned may also be a relevant consideration, as is the state of development of the child/parent relationship involved and the parties’ financial capacity to maintain such a relationship, over distance [section 60CC(3)(e)].
In addition, the court needs to consider what are the implications for the child’s best interests, particularly in terms of the parenting relationship between the parties concerned, of either allowing or disallowing any particular relocation.
Of itself, a parent’s freedom of movement may have implications for the welfare of the child concerned, particularly if that parent has principle responsibility for the care of the child, who is subject to the relocation. For obvious reasons, a parent’s ability to function effectively, as a parent, is likely to be important to the child’s welfare.
It is often said to be axiomatic that a happy parent is likely to be a more competent parent. Essentially, if the court unduly interferes with the way of life which a “custodial” parent legitimately wishes to adopt, the resulting frustration and bitterness may adversely affect the child concerned.[9]
[9] See Fragomeli & Fragomeli (1993) FLC 92-393 at 80,023
The ultimate issue in this case, both at the interim and the final stage, is the best interest of [A] and [C]. In this regard, the parties’ competing proposals and any other outcomes which are reasonably open to the court must be weighed and assessed, against the yard stick provided by the factors in s.60CC and the principles which underpin it.
A little over 12 months ago, final orders were made in respect of arrangements for [A] and [C]’s care. It is usually not in the best interest of a child for there to be repeated applications regarding arrangements for that child’s care. This is the basis of the so-called “rule” derived from the case of Rice & Asplund.[10]
[10] Rice & Asplund (1979) FLC 90-725
In its simplest formulations, the rule indicates that where there has already been a final order in respect of parenting issues, before the court should embark on a rehearing of those issues, the applicant concerned must establish a significant change of circumstances.[11]
[11] See SPS & PLS [2008] FamCAFC 16 at paragraph 1 per Warnick J
One of the issues in this case is whether the mother’s preference to live in [W] constitutes such a significant change of circumstances that all arrangements for the care of [A] and [C] must be revisited. Neither party raised this issue in their submissions to me on 7 November 2008 but I am concerned at the potential for the children to be adversely affected by further litigation between their parents, which will do little to improve their already compromised parenting relationships.
The parties’ respective positions
a) The father’s position
The father deposes that [W] is a three and a half hour drive from Adelaide. It is his position that he is only temporarily living in the Murray Bridge area and will be moving to live in the Adelaide metropolitan district in the New Year. In part, he plans to move because of the orders of August 2007, which allow him mid-week time with the children.
Mr Slater contends that the mother’s move of the children to [W] will inevitably result in the reduction of the time they are able to spend with him. It is also his position that it will be onerous for the children to have to spend extended periods of time driving between his home and the mother’s proposed home at [W].
He fears that, as time goes on, they will become increasingly resistant to these types of arrangement and, as such, there is a strong possibility that the weekend term periods, which the children spend with him, will fall by the wayside.
The father is critical of what he sees has been the mother’s unstable accommodation arrangements for the children and her unilateral actions regarding which school they should attend. From his point of view, the proposed move to [W] is further evidence of her lack of regard for the children’s entitlement to maintain a relationship with him and her poor level of insight into the responsibilities of being a parent.
It is the father’ position that he was closely involved in the children’s schooling, when they attended [X] College. He is critical of the mother for not consulting him regarding their enrolment at [N] Primary School. It is his position that the mother is intent on reducing the level of his involvement with the children and does not take seriously her obligation to share parental responsibility with him regarding [A] and [C].
b) The mother’s position
It is the mother’s position that the father’s time with the children on Tuesdays has been irregular. Contrary to the father’s position, it is her perception that Mr Slater is not greatly interested in the children’s educational issues or of attending at extra-mural activities.
The mother defends her decision to move the children from [X] College to [N] Primary School. Firstly, she says that the change of school was unavoidable because the end of her lease meant that she had to move. Secondly, she is critical of the father for not contributing one-half of the necessary fees for the children to attend [X] College.
It is the mother’s position that the orders of August 2007 do not specially prevent her from moving the children’s place of residence within the State of South Australia. As such, she contends that there was no obligation on her to seek the consent of the husband to any move of the children within South Australia.
She deposes that, as it was her perception that the father rarely saw the children on Tuesdays, she assumed that he would have no objection to the children moving to [W], provided that he was able to see them on alternate weekends and for a longer period during either school holidays or at some other convenient time.
The mother deposes that she informed the father of her wish to move to the Yorke Peninsula on 26 September 2008. She asserts that she told him that “basically nothing” would change except for Tuesdays and she would make arrangements which ensured the children saw their father for longer periods of time during school holidays.
The mother concedes that the father ended this particular discussion with the statement “yeah, well, we’ll see about that!” Notwithstanding this lack of formal assent, on Mr Slater’s part, the mother and her partner purchased a house in [W] on 2 October 2008. Settlement of the purchase occurred on 24 October 2008. The mother’s partner had apparently sold his Adelaide home.
It is the mother’s position that she has strong connections in the [W] area, where she was born and lived until she was 19 years of age. Her partner has obtained employment, in the [W] area, from November onwards. It is the mother’s position that both [A] and [C] are enthusiastic about the prospect of living in [W], particularly that they will be close to both their paternal and maternal grandparents. The mother has made arrangements for the children to be enrolled at the [W] Primary School.
The mother has deposed that, prior to 24 October 2008 and the making of the interim injunction, she had resigned from her employment in Adelaide. Her partner had sold his home in Adelaide and, as a consequence, she and the children had nowhere to live in Adelaide. As such, in order to comply with the injunction, she has had to find temporary accommodation for herself and the children in Adelaide. It is her case that this has caused her great expense and the children emotional turmoil.
In addition, the mother is critical of the father for being unreliable in respect of the provision of financial support for the children. As such, it is her position that she struggles to support the children financially, and would be better off economically in [W]. For all these reasons, the mother contends that it would be extremely inconvenient and deleterious to the children if they are compelled to remain living in Adelaide. She has deposed that she is not prepared to consider the children living with their father, so she alone could move to [W]. She says as follows:
“If orders were made for the children to remain in Adelaide I would also remain in Adelaide. This would cause huge heart break for me and the children. My partner [name omitted] and his three children would be living alone in [W] and I would be in Adelaide with my two children. We would have a long distance relationship. This would place a great strain on our relationship and on the children. I would have no immediate accommodation and no employment in Adelaide. I would be in an extremely difficult financial situation as we bought the house in [W] in joint names and jointly share the mortgage repayments. I would therefore have to pay for rent in Adelaide and my half share mortgage in [W]. This would in turn cause financial hardship on the children especially considering as the father is paying none to irregular child support payments.[12]
[12] see mother’s affidavit filed 31 October 2008 at paragraph 34
In support of her position, the mother points to the fact that, since the parties separated, the father has lived in Roxby Downs, Mt Barker and Murray Bridge. The implication being that he has been free to move around South Australia and it would be oppressive to require her to have to seek the father’s permission to do the same.
Conclusions
Although the evidence before me, at this stage, is untested by cross-examination and is likely to have been hurriedly prepared, I think I am in a position to conclude that the parenting relationship between the parties is difficult and conflicted. The father asserts that the mother has consistently acted unilaterally of him in respect of important decisions regarding the children. The mother asserts that the father is not really interested in promoting the best interests of the children.
In all these circumstances, it seems to me that the mother was fool-hardy to finalise her affairs in Adelaide and purchase a new property for herself, in [W], without the father’s firm consent to the move, particularly as his parting comment to her, following the raising of the issue, was at best ambivalent and at worst a refusal of consent. As such, it seems to me that the mother progressed with her plans to move the children at her peril.
I think that the mother is either naive or possible disingenuous to consider that Mr Slater would not object to the removal of the children to [W], particularly as the move had implications for the time the children were able to spend with him and the direct application of the orders of August 2007.
Clearly, the move was likely to render the father’s entitlement to spend time with [A] and [C] on Tuesday evenings, and in the future on Tuesday overnight, redundant. I am left with the uncomfortable feeling that the mother wished to present the father with a fait accompli, so far as the relocation of the children from Adelaide to [W] was concerned and was well aware that this outcome would irk the father to a considerable degree. Her conduct was precipitate and ill considered.
However, the mother’s proposed removal of the children to [W] will not inevitably mean that the children’s level of relationship with their father will be leached of all meaning. [A] and [C] will be able to see their father on weekends, during term times and during school holidays.
At the ages of nine and six respectively, they will not forget their father between alternative weekends. This may not be the optimal arrangement, which flows from the presumption of equal shared parental responsibility, but it will still ensure that there is a viable and meaningful relationship maintained between the children and their father.
The distance between the father’s home and the mother’s proposed home poses many practical difficulties. If the children relocate to [W], they will be driving for a significant period of time on alternate weekends. I accept that this is likely to be an onerous commitment, not only for the children but also for their parents. However, the children can be occupied during the journey. They can read books, play electronic devices, converse with their parents and each other, perhaps even watch DVDs, a popular diversion for the young. Travel by motor vehicle is not as onerous as it once was.
The mother has said that if she cannot relocate the children immediately to [W] she would not consider renouncing their care to the father, in the interim, as she believes his work commitments and other responsibilities render him unable to discharge the responsibilities of properly parenting them.
Rather she would remain in Adelaide to parent them. Amongst the consequences of this eventuality are that the mother would be put to considerable inconvenience and, quite possibly expense. She no longer has any accommodation in Adelaide. She has resigned from her employment.
This combination of circumstances – the mother perceiving that she is compelled to live in Adelaide away from her current partner; her lack of employment and permanent accommodation in Adelaide; and her generally straitened financial circumstances; - are hardly likely to make the mother feel well disposed towards the father, either for the next few months or for the indefinite future. Inevitably, she will feel that she has to be beholden to him, although the two now live separately and apart.
Similarly, if the mother is allowed to move to [W], at this stage, it will deepen the sense of injustice, under which the father currently labours. He will think that the mother has once again got away with “blue murder”, so far as her unilateral dealings with the children are concerned. For obvious reasons, this state of affairs is not likely to lead to any improvement in the parties’ already severely compromised parenting relationship.
[A] and [C] are nine and six years of age respectively. They have already had a recent change of school. I am not aware whether they will be able to return to [N] Primary School, if the mother is restrained from removing them from the Adelaide metropolitan area, at this juncture.
It is the mother’s case that both children are enthusiastic about moving to [W] and starting at the Primary school there. At this stage, I have no independent assessment of the children’s views about this matter but would anticipate this being available at final hearing.
Although, the father has many criticism of the mother, he does not currently assert that she does not take appropriate care of [A] and [C]. It also seems to be the case that Ms Slater has provided more of the children’s recurrent care than Mr Slater, certainly since the orders of August 2007 were made.
In the past, issues relating to family violence have been raised between the parties. However, no such allegations exist in the current proceedings. Accordingly, of the two primary considerations arising under section 60CC, the court must give pre-eminence to the benefits the children are likely to derive from having a meaningful relationship with both their parents.
This is a difficult and finely balanced case, particularly at the interim stage. A little over twelve months ago, the father agreed that the mother should be the principal residence providing parent for [A] and [C]. At the time, due to his employment commitments, it seems to be the case that Mr Slater was unable to offer himself to take up this role.
In the period which has followed, the husband has become increasingly critical of what he sees as the mother’s poor parenting, particularly that she has moved house and changed the children’s schooling. It may ultimately prove to be the case that these factors alone, disputed as they are by the mother, do not amount to a sufficient change of circumstances to justify the revisiting of the orders which were made on 1 August 2007.
In these circumstances, the father seeks to restrain the mother, from moving to where she wishes to live, for quite legitimate reasons, to be with her partner at [W].
The distance involved between her proposed home and the father’s home is significant but will not inevitably confine the time the children spend with their father to holidays alone. As such, caution needs to be exercised in restricting the mother’s entitlement to live how and where she chooses, when up to this stage, she has been the children’s undisputed primary carer.
The various positives and negatives of either allowing or disallowing the move must be weighed against the applicable section 60CC factors to arrive at the outcome which will best serve the children. Again this is a difficult task to perform, particularly at the interim stage and caution needs to be taken with it.
At this stage, the placement of the children, in their father’s care, does not seem to be a viable option, given that Ms Slater has provided the vast majority of their care up to this stage. It seems to me that it would be precipitate to upset this longstanding arrangement in the interim and would be an outcome contrary to the children’s best interests [section 60CC(3)(b) & (d)].
Accordingly, the other options open to the court are either to restrict the entitlement of the mother, in the interim, to move with the children to [W] or permit the relocation pending a more exhaustive hearing.
The deficits of the first course are that the mother and children will be living in a state of uncertainty. The mother is unlikely to give up her ambitions to move to [W] and, as such, until the final hearing, will be living in a state of limbo. She will have temporary accommodation and may struggle financially.
Undoubtedly, such a situation is likely to leave the mother more bitterly disposed towards the husband and is not likely to produce a stable and settled environment for the parenting of the two children concerned. They, like their mother, will be living in a state of flux. As already indicated, I do not know whether it is open to the children to return to their previous primary school, given the uncertainty surrounding the mother’s accommodation in Adelaide.
The major deficit of the other possible outcome is that the children will be able to spend less time with their father. However, the reduction will be one evening per week, during school terms. Such an outcome is not likely to result in the extinction of a meaningful relationship between the father and the children concerned, although it might not be seen to be the optimal state of affairs for the extension of the children’s paternal relationship.
It seems clear to me that the mother acted high-handedly and dismissively of the father, when she decided to move to [W]. Undoubtedly, she was foolish to purchase a house there, without the father’s imprimatur to the children moving. In this action, she shows a flawed capacity to facilitate and encourage a close and continuing relationship between [A] and [C] and their father [section 60CC(3)(c)].
However, is the fact that the mother’s move was poorly thought through and quite possibly designed to thwart the father sufficient reason to keep the mother and children in unhappy and uncertain circumstances in Adelaide, when their relationship with their father is likely to be able to be maintained over the distance between [W] and Adelaide. On balance, I do not think so. Even at this interim stage.
The practical difficulties of the children maintaining their relationship with their father between [W] and possibly either Murray Bridge or somewhere in Adelaide are great indeed [section 60CC(3)(e)]. However, it does not seem to me that they are insurmountable. Certainly, I do not think that they are sufficient to demonstrate incontrovertibly that the children concerned will not be able to maintain a meaningful relationship with their father.
For all these reasons, I propose making orders that will allow the children concerned to live with their mother in [W] pending the final hearing of the matter. I will allocate the earliest possible hearing date and will order that a family report be prepared to ascertain the views of the two children concerned and to examine any other relevant issue. Given that the affidavit material in this case is recently prepared in order to save expense I will not make a direction requiring further material to be filed.
It must follow from this decision that the mother be free to enrol the children at the [W] Primary School. During the period of the adjournment the pre-existing arrangements regarding ultimate weekend contact will continue. In my view, it is appropriate that the parties exchange the children to facilitate this contact at a convenient mid-way point between their homes. I live to them to determine this location but failing agreement direct that it should be at the Dublin [omitted].
The parties have previously agreed that they should have equal shared parental responsibility for [A] and [C]. Given the decision I have reached, it is not reasonably practicable for the children to spend either equal periods of time or substantial and significant time with their father. I am however satisfied that, in the interim, the arrangements which I propose will allow the children to have a meaningful relationship with their father.
The end of the school year is approaching. In these circumstances, I propose making orders that will see the children spending a longer period with their father, at the end of year holiday, than the current orders envisage. Otherwise, I will suspend the aspect of the orders dealing with Tuesday evenings.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P. Smith
Date: 14 November 2008
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