STURM & ORLAND
[2021] FCCA 623
•1 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| STURM & ORLAND | [2021] FCCA 623 |
| Catchwords: FAMILY LAW –Parenting dispute about children aged 5 and 3 – mother moving first to Area A and subsequently to B City – father seeking that mother be ordered to return to Suburb C and live in a home he will pay for until the youngest child turns 18 – mother’s home move undoubtedly reactive and not well thought through, but residence in B City is now one and half years – father’s personality somewhat controlling and therefore oppressive to the mother – impracticable to order mother to relocate – orders made as sought by Independent Children’s Lawyer |
| Legislation: Family Law Act 1975 (Cth), s.60CC |
| Cases cited: A & A (2000) FLC 93-035 Goode v Goode [2006] FamCA 1346 Hepburn & Noble [2010] FamCAFC 111 U & U (2002) 211 CLR 238 |
| Applicant: | MR STURM |
| Respondent: | MS ORLANDO |
| File Number: | DGC 3905 of 2019 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 12 March 2021 |
| Date of Last Submission: | 12 March 2021 |
| Delivered at: | Dandenong |
| Delivered on: | 1 April 2021 |
REPRESENTATION
| Counsel for the Applicant: | Mr Cinar |
| Solicitors for the Applicant: | Erol Cinar Lawyers |
| Counsel for the Respondent: | Mr Kanarev |
| Solicitors for the Respondent: | Calder and Battiato Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr Mcleod |
| Solicitors for the Independent Children's Lawyer: | Ebejer And Associates |
ORDERS
The matter be adjourned to this Court for mention before Judge Burchardt on 8 April 2021 at 9.30 am.
IT IS NOTED that publication of this judgment under the pseudonym Sturm & Orlando is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 3905 of 2019
| MR STURM |
Applicant
And
| MS ORLANDO |
Respondent
REASONS FOR JUDGMENT
The applicant father seeks that the children and their mother relocate from B City, where they presently live, to a house in Suburb C, which he proposes to provide for them until the children are 18. He seeks that time spent by the children should progressively increase with him as recommended by the family report writer, Ms D.
The respondent mother seeks to remain in B City and seeks time as sought by the independent children’s lawyer. Clearly, if she remains in B City, the children’s time with their father will be substantially less. The independent children’s lawyer submits that the mother should be permitted to remain in B City, noting that the father may, in fact, relocate there himself. If the father does not relocate, the independent children’s lawyer recommends alternate weekends and a gradual progression of time.
For the reasons that follow, I propose to make the orders sought by the independent children’s lawyer.
Agreed or Uncontroversial Matters
The father was born 1973 in E Country, where he lived until he was in his teens. The mother has asserted that he came to Australia when he was 14. He works as a tradesman in a business controlled by his parents, although I will return to precisely what he does in due course. He lives in a very large seven-bedroom property in Suburb C.
The mother was born 1983. She has two children, F, born 2010, and G, born 2012 by a prior relationship. Those children’s father has not been on the scene for a very long time.
The parties commenced cohabitation in August 2015 and separated in November 2018. As earlier indicated, X was born on 2015 and Y on 2017.
At the time of separation, the mother went to Area A to a rental property she had obtained. Subsequently, in September 2019, she moved to B City, where she continues to reside. The husband pays child support assessed as $1,481 per month, although it is clear this has been a subject of ongoing disputation.
The parties resolved their property issues on the date of trial. The husband is paying the wife $65,000, and otherwise the parties will retain their various possessions and superannuation. The husband’s superannuation is substantially greater than that of the mother.
The Parties’ Affidavits
Much of what the parties have to say about one another is contained in the agreed section above. The parties have of course filed affidavit material. That of the mother makes frequent complaint of the allegedly controlling behaviour of the father and his family. She has deposed to being provided with $1,500 per month to provide for the family of six and being required to provide receipts either to the father’s mother or to him for him to forward to his mother. She complains vividly of the father’s alleged outbursts of temper and frequent occasions on which he told her and the children to get out of the house. Indeed, it is put at paragraph 46 of the wife’s trial affidavit that in November 2018 the father told the mother “to pack up your shit and get out of my house and take the kids with you”, which, she says, she did. The husband’s affidavit material, naturally enough, denies all these matters and asserts that he very much was a father not only to his own two biological children but to F and G as well. On any view of the matter, it would appear that the relationship between the father and F and G has been largely sundered.
I note that despite orders made as long ago as 9 September 2020 that “the parties commence forthwith parental counselling with Ms H”, that has not yet occurred. The wife’s trial affidavit deposes to a preparedness to engage in such counselling and seeks to explain why this has not occurred.
I have, of course, read the parties’ affidavits carefully, but, in the circumstances of this case, it would be more profitable to concentrate on what was said at Court.
The Family Report of Ms D
Ms D’s report is annexed to her affidavit filed 10 March 2021. It noted that the father wanted equal time with the children (paragraph 36) and the father was described as calm, rational and coherent (paragraph 59). At paragraph 65, Ms D, in describing the mother, observed:
Ms Orlando also presented as having relocated from the Suburb C area somewhat reactively – to reduce ‘the impact of Mr Sturm’ – while acknowledging his parenting competence and the positive features of their relationship. - For example, Ms Orlando noted that Mr Sturm ‘is not like the girls’ father’ who she described as abusive with a criminal record; that there were ‘definitely happy times’; and that she wants ‘a good relationship with him because he’s a good dad and he does his best’)….
Ms D was of the view that the mother did not present with cogent reasons for remaining in B City, save that community and resources were available for her (paragraph 69). Ms D noted strong bonds between the children and both parents (paragraph 104). She noted the father did not acknowledge the two older girls when he saw them on the occasion of the interviews (paragraph 133).
At paragraph 191, Ms D observed:
If X and Y continue to spend the time with their father as proposed by Ms Orlando [alternate Saturday to Sunday, alternate Sundays and each Thursday during the day], it is likely that their development will be compromised, particularly as their relationship with Mr Sturm will be so restricted.
At paragraph 193, Ms D observed that the father’s proposal for parental equal shared care would be appropriate to consider when both children are well-established in primary school and if the parenting relationship was settled and functional. The report continued at paragraph 194:
Until then, a gradually introduced arrangement as proposed by Mr Sturm – three overnight times and three days in a fortnight, that is, alternate weekends between Friday and Sunday and alternate Wednesday to Thursday during school time – would be appropriate to consider as meeting the children’s needs for a healthy relationship with him.
The report went on to support the father’s request that the mother return to live in the Suburb C area, paragraph 204, and recommended, at paragraph 221, counselling for the parties with Ms H or Ms K, and that the mother commence individual counselling with a similar professional for at least six sessions before the father and even the children join her in the sessions.
The Submissions and Evidence at Court
What follows is taken from my notes.
The Opening and Evidence of the Father
Counsel opened the case. The relationship commenced in August 2015 and cohabitation took place soon afterwards, with separation in November 2018. The mother moved to Area A. The children are X, aged five, and Y, aged three, and F, 10, and G, eight. The children have a good relationship with both parents and overnight time has been conceded. The question was whether the children should relocate to Suburb C or stay in B City. It was of benefit to the relationship with the father if the children were in Suburb C. The father assumed a stepfather role and was very helpful with the young children. After relocation, he was first granted six hours’ time then overnight. The children could go to a familiar school in Suburb C. Family therapy had been recommended and an order for the same with Ms H had been made in September 2020. A joint letter of instructions was required, but the mother and her solicitor had not signed it. The mother disagrees with therapy and now blames her solicitor, but the authority is still not signed. The mother’s solicitor complained that the father had limited experience of relationships generally, but this was not correct.
The father was called and adopted his affidavits as true and correct.
Under cross-examination, the father confirmed that he wants the children to move to Suburb C. If the mother did not relocate, they should live with him. The children are five and three. Mother is the primary parent, but the children are still developing. He wants to be a hands-on father. It is the mother’s choice if the boys do not see their two sisters. When asked how this might affect them and how they might cope, the father said he did not know and it remains to be seen. If they were distressed, he would acknowledge it. He would see a doctor and access counselling and discuss the matter with the mother. He maybe would return them to the mother. The mother never consulted him either. She is not approachable. He would talk to the mother first.
The father is working but has been on JobSeeker. He is getting back into the workforce. If he works full time, he will make arrangements. He would drop the children at school and kindergarten. He would ask to enrol the children at School L where the sisters went. He had not made any inquiries, however. When asked how the sisters would be affected if there was a long absence, the father said they do not need to be. It is the mother’s choice. When asked if it was the mother’s fault if there was any distress, the father said, of course. The mother has friends in Suburb C and Suburb N and her mother lives in Suburb M.
The father conceded the mother had enrolled at College I and was in a second trimester of a course. He queried whether she was currently studying online so she could do it from anywhere.
The father said that he had opposed the move to Area A and to B City. He did not want the children to leave school where they were happy. He denied having a difficult relationship with F. Their disagreements occur because he was being a father. He did not know if the mother’s parents were visiting in B City. He did not know whether her father had bought a property in B City. He asked how it was different living in B City or in Canberra. He said the maternal grandmother needs caring and is not well. He would not know about the mother’s friendships in B City. Time in transit is one of his complaints. It is a long duration for such little children, being two and a half hours in total. They are tired. He says he did not want to be just a fun dad. He wants to be a hands-on father. He wants the mother to live in Suburb C. He would set her up in a home until the youngest child is 18. Suburb C would be better because they are used to it.
When it was put to him that he has a controlling personality, the father denied this. He said the move to Suburb C was recommended by the family report. The children are comfortable in Suburb C. X knows the way to his home. He just wants the children to be closer to him.
It was put that the father’s sister and mother never had a good relationship with the mother, but the father denied this. He said his mother does not talk a lot. It takes her a long time to get to know people. He had asked for receipts. He would pass them to his mother if they needed to be paid. His parents put money into the children’s accounts and bought them presents. He said his mother never ignored the mother. His sister had not got on well with the mother but he did not know why. He said there would not be any contact between his family and the mother unless the mother engaged in some hostile dispute. His parents have not spoken to the mother since separation. No comments have been made about the girls. When his children were born, he helped with the girls. He helped them with the ABC from kinder and read them books. The maternal grandmother had helped and had done a lot. He had never denied that. No matter how tired he was, he got up and helped, especially X. He was not a heavy sleeper. He would wake up. He has sleep apnoea. He had never complained about being woken up. The majority of the cooking was done by the mother, but he cleaned up and did the dishes. It was put that he spent a lot of time in the shed, but he said he only did this about once a week for two to three hours. He has a number of cars. Some are his and some are his friends’. There are seven at the moment. He worked full-time but took the kids to school most days. He came home from 5.30 to 6 pm if he had taken the children to school. His parents came and looked after the kids quite often. He denied making this up. The mother enjoyed curries, and his mother had made them for her. He wants the four siblings together. The last time that he had time with his two step-kids was in 2018, because the mother stopped him having them. F was challenging at times. This did not make him angry. She had a very inquisitive nature. He was getting to know F. He never insisted they call him dad. It was their decision and he agreed. F said, “You’re not my dad,” later on. He had not called her a little bitch. There were plenty of disagreements between him and F. He had to give her time out. The mother told him to leave when the arguments took place, but he did not like this. It made him look like he was not part of the parenting role. He had not reminded them it was his house. He said, “Get out of the house,” towards the end.
It was put that X had called the mother a dog after spending time with him, but he said this was hard to believe. X has a very nice manner. He never speaks badly about the mother. He had been keeping the children to himself because of COVID. They only see the grandparents and auntie. His parents and sister will never speak ill of the mother, especially to the children.
The father said he gave the mother $1500 to pay the bills. He put plenty in besides this. It was not true he had not permitted the mother to take her furniture. He even offered to help her move everything. She already had the kids’ beds, the washing machine, a TV and a couch, all of which were offered to her.
He denied not greeting the mother at the family report. She had not said hello, but he always says hi. It is from her side and nothing to do with him. In 2019 at Christmas he saw the girls for two and a half hours, which was all he was allowed. It was the last time he saw them. When he picked the boys up he would wave, but the mother said, “Do not talk or wave to my girls.” Since then he had not wanted to get them into trouble. At the family report interview he looked at them and smiled at them. They cannot communicate because of the mother. He helped the mother set up in Area A. She was still in counselling at the time. He gave her money that she asked for. Area A is a one-hour drive and B City is two hours or more. He had earlier sought alternate weekends. He did not tell the mother she could keep the girls and he would keep the boys. He would be happy to see all the kids. He did not accept the time proposed by the mother. He had not undertaken the Tuning in to Kids or post-separation parenting courses.
The Father under Cross-Examination by Counsel for the Independent Children’s Lawyer
Counsel asked the father why he had not undertaken a post-separation parenting course. He said he did not realise he was supposed to. He was happy to do whatever was required.
The father said he is age 47. He works in his parents’ business. His father is 76 and his mother is 75 years old. His father is still in the business and owns it. He is a tradesman. He supervises the business. He himself is a subcontracted employee. They only use subcontractors, of whom there are at least six. None are family members. His mother does the books. They work five to six days per week but have cut down in the last two years. He works, depending upon the jobs available, either from 6 am to 2.30 or 9 am till 5 or 5.30. At the moment there is minimal work. He is a supervisor. It is not his plan to take over the business, which is based in Suburb C.
The father confirmed that when the relationship commenced, the mother was renting a house which his parents had built. Then when his relationship with the mother commenced, F and G moved in with him, but not until August 2015. The relationship lasted just over three years, with separation in November 2018. X was three and they moved in just before X was born. Y was one year, four months at separation. The mother moved to Town O, which is about an hour and a quarter from Suburb C. He gave her money to help. He helped her move in. It was supposed to be a trial and they were still in counselling. He paid $1500 a month child support as a private agreement. 10 months later the mother moved to B City in September 2019. This made it even harder for him to see the children.
Counsel put it to the father that in his application of November 2019 he sought a watchlist order and an equal time arrangement. The father agreed. X was four and Y was two. This was not ambitious, even though there was no overnight time at that time. The mother’s father lives in Canberra. The mother was born in Australia. She had said she wanted overseas employment. The father confirmed when he filed his initiating application he was not at that point seeking the mother return to Suburb C. Counsel took the father to the orders made by consent on 30 January 2020 and the father said he agreed to these simply to get more access to the children. He accepted that a seven-seven arrangement could not work between Suburb C and B City. He would finance her in Suburb C, but only in Suburb C. No other suburb was acceptable. He was paying child support and always paid on time. He had offered to put the children into public school and had offered to pay their schooling and uniforms. He had not mentioned F and G. They would have to move back too. He considered they were settled in school since 2019. He said the children needed to live close to his home so he could take them to school. He was in the process of getting qualified as a registered tradesman, but this could take six months to two years. There was no prospect of him relocating to B City. He has no flexibility in his employment. He intends to work full-time. He would still provide rent in Suburb C. He was happy with Ms D’s recommendations. He had not sought orders in respect of F and G. Currently he has the children each weekend with changeover at 5 pm at Location P on Friday till 5 pm on Sunday. Ms D had recommended equal time from when X is in mid-school. It was put that if the mother did not relocate that he seek the current time, the father said he would try and get as much time with the children as he can. He would want more weekends if possible and half school holidays can start now.
There was no re-examination.
The Case for the Mother
Counsel called the mother, who adopted her affidavits as true and correct.
Under cross-examination by counsel for the father, the mother, whose answers often seemed to involve long pauses, indicated she had read the father’s assertions as to his contributions to parenting. She said the father was not a hands-on father and that his role was minimal. He had plenty of opportunity but chose to be minimal. She had read in the family report that there was a secure bond between the father and the children. She supported X and Y having a relationship with the father. The question as to the father’s secure bond with the children was repeated, but the mother again evaded it.
The mother said she is studying in B City at College I. She hopes to go to College I next year. When it was put that College I has a good off-campus program, the mother said that the College I course was campus only. It was put that there was a Campus J at Suburb Q, but the mother was not sure if it had the same pathway. B City College will finish this year. She has not looked into the Suburb Q campus. It would require a higher score. It was better to be on campus.
The mother’s father lives in Canberra but he intends to relocate to B City, where he has bought a home. She believes the children and she should stay where they are. Her mother lives in Suburb M. She had an established social circle in Suburb C and has school friends in Suburb C, and the girls have friendships in Suburb C, but these have proved difficult to maintain. They used to be at a private school, and the father did not now propose to pay that. F has only ever had one term at a state school in Suburb C. She was not certain who paid the private school fees. The children are her first priority and she would move to Suburb C if the Court so ordered. The children would have a more fulfilling relationship with the father if they lived in Suburb C. He had always said he wanted alternate weekends. The mother went on to say that any increase in time would depend upon the father’s parenting skills, given he got annoyed with F and G.
The mother denied moving to B City to reduce the impact of Mr Sturm. She said he had not said the words “the impact of Mr Sturm”. It was not her intention to reduce Mr Sturm to move to Area A, and nor to B City.
When asked why she had not signed the instructions to enable time to start with Ms H, the mother’s answers were extremely evasive and non-responsive. She said she was informed in late February. She says she is prepared to undertake counselling.
The mother conceded that the situation with the father was not perfect. He had tried to give Christmas presents to the girls. One of them was actually given to the child. She had returned the birthday presents for G at Location P. X and Y are not allowed to give presents to the girls. As their mother, she gives all of them presents equally. She was aware the presents were from the father. She had told the father not to speak to the girls.
The Mother under Cross-Examination by Counsel for the Independent Children’s Lawyer
Counsel asked why she had not handed over the gifts. X’s birthday is on the 5th and G’s is on the 10th. G said, “If he has anything for me, I don’t want it.” She reflects her daughter’s feelings. F is still angry with the father. It needs healing and forgiveness from the girls to Mr Sturm.
The mother conceded the father helped her move to Town O. She conceded it was a good thing for him to do. It was one hour travel. Then they moved to B City. F and G are enrolled in school. She is not sure if the father knows the school. The name of the school is School R. She would move to Suburb C if the boys were there, and F and G would move with her. Mr S, the children’s father, has not seen the children since G was two months old. The father had spent more time with the children.
When asked what time should take place if she was living at Suburb C, the mother said it was what has already been proposed, the same as in B City. The mother is enrolled in a course at B City College and then proposes to study at College I. Y would attend primary school in B City, and X will be in prep in 2022.
Counsel took the mother to paragraph 65 of the family report. Counsel noted that she wants a good relationship with the father because he is a good dad who does his best in as far as he can be. The mother was most reluctant to give the father credit. She eventually conceded he was a good dad and had driven to Location P each alternate weekend. She went on to say, contrary to her earlier denial, that she was not certain that the words “impact of Mr Sturm” had been used by her. She had read the independent children’s lawyer’s proposal and was asked if she would agree to three weekends per month. She said this could work, but she would prefer this to be each alternate month. She said, “It is my preference to remain where the children have started our lives.” If the father was in B City it would be the same time. Week about could be considered eventually when the boys were old enough but not at this age. The mother confirmed that the sisters and brothers adore each other. They go to the park and beach together.
In re-examination the mother said she told the father not to speak to the girls. In April 2019 the father decided not to spend time with the girls and they were devastated. She told the father not to discuss the matter.
The Evidence of Ms I
Ms D adopted her affidavit as true and correct.
Under cross-examination by counsel for the husband, Ms D confirmed that she had observed the children 12 months ago and that 2023 would be an appropriate time at which to consider possible shared care. She was asked if the father’s time started with Friday to Monday and one overnight in the off week, whether that would be appropriate. Ms D opined that this would be too much trouble, but might work if the mother was in Suburb C. Ms D said that between April 2021 to 2023, two nights in the off week might be suitable. The children would manage two block periods well. They are too young to spend half the school holidays with the father. Five days would be more appropriate until the younger child was in mid-school years.
Under cross-examination by counsel for the mother, it was put that it was better that the girls stay in their current school. Ms D agreed this was an important consideration which she had taken into account. The older girls could reconnect with their relationship with their stepfather. Reportedly, it was a very strong relationship. The mother is resilient and could support the children through this. She had not interviewed the girls because it was not part of the family report process. She had observed the girls. Although pressed, she said she would not speak to those two children. She observed the children with the mother and observed the children together.
Ms D confirmed that the phrase “the impact of Mr Sturm” at paragraph 65 of her report was a direct quote. The mother said this in the context of her relationship with the father. In the interview, the mother said the father was psychologically abusive, but not physically - but the affidavits alleged physical abuse. The mother is adopting a more balanced view of the father. Both girls were notably different in stature and emotional presentation from the boys.
She saw the maternal grandfather with the children. She sat and watched while all four children were running up and down the corridor. He had not properly controlled them. Both parents presented as capable, mature and thoughtful. They could work with a professional to improve their relationship. The mother had a level of reactivity and distress and had been taking impulsive steps. Her move to B City was reactive. The mother was not having the focus. The mother is still the primary carer and Ms D expects her to be so for some time. She assessed the father as very focussed on the children. The children are too young for week about. They need a primary relationship with their mother. X has a strong relationship with his father. A new kinder would be managed well.
It was put that the father was found to be hostile to the mother and the girls. Ms D said if this was so it would be stressful for the mother and the older children. Family therapy would address these issues. It was put that the mother agrees for three weekends with the father in alternate months. Ms D said this would certainly assist the quality of time. It would not allow the father to be as actively involved as he could be in the kids lives. The four children are close and supportive and close and clearly bonded with one another.
Under cross-examination by counsel for the Independent Children's Lawyer, Ms D said it would be better if the parents lived nearby one another. Especially when the children are so young. They have family connections in Suburb C. She had not considered the father moving to B City. The mother is the primary carer. There was no information about the mother’s supports in B City. It is very important the four siblings are together. Week about would be a concern because the siblings would be separate. The siblings and half-siblings should be together. A move to equal time could be considered in grade 3 to 4. She confirmed that X had repeated Prep. It would be five to six years away from week about, in any event. The father’s problem is distance. When asked what should happen if the mother did not move, Ms D said alternate weekends and maybe a visit during the school time week would be appropriate. Weekends should be Friday to Monday. Counsel put it that the father only wants the mother to live in Suburb C and put that this might be coercive. Ms D agreed. It concerned her. This fixed view concerned her. Counselling with Ms H was very necessary.
Final Submissions by the Counsel for the Independent Children's Lawyer
Counsel submitted there was no dispute these were good parents, but they did not like each other. There are criticisms because of the breakup of the relationship. The children are spending alternate weekends with the father who now seeks week about. This is unrealistic. There is no need to consider equal time now as it is just too far away. The mother has two other children, G, eight and F, 10. They have no relationship with the father. The sibship is the four. Three are in primary school together and will be for at least two more years. The children have been in B City for about a year and a-half. It is a long way from the father and his driving has to be done, in part, in rush hour. Friday to Monday and midweek is unworkable. The father and the mother worked well together. The father assisted the mother in the initial move, which was commendable and consented to. This was a move one hour and 15 minutes away. This is not a relocation case. The mother moved and the father acquiesced. The mother then moved further away and it was a more difficult drive.
The father brought an application but did not seek the return of the children who were then so young. He had conceded residence. It is not realistic to force the children to move now. The father’s lack of any understanding or any possibility of moving to B City was therefore not thought out. If he moved then there could be a possibility of equal time. Counsel referred to well-known authorities such as A & A (2000) FLC 93-035 (“A & A”), U & U (2002) 211 CLR 238 (“U & U”) and Hepburn & Noble [2010] FamCAFC 111, in this regard.
The children should live with the mother. The mother lives in B City. The children should live with her there. The family report was wrong. This thought that the children should live nearby, but did not consider the father living in B City. The father would probably move to B City, as he is an excellent father. If the father was living near the mother, time should progress according to Ms D’s recommendations. The children should live with the mother in B City, as she was their primary carer. The children could spend alternate weeks with the father, but half school holidays was too soon for Y. This should be brought in over the next couple of years.
Final Submissions of Counsel for the Mother
Counsel adopted the Independent Children's Lawyer’s position. This is not a relocation case. The father seeks to go back to 2018, but the horse has bolted. The mother is the primary carer and lives in B City. The children are at school in B City. The mother is connected to B City and her father has bought a home there. The mother had education in B City and plans through her education to escape her impecuniosity. The mother would receive a cold reception in Suburb C, from the father’s family.
The father lacks insight. He has not undertaken a post-separation parenting course. More time would be possible if the father was in B City. The father’s attitude was controlling. He sought the mother live in Suburb C and nowhere else, rejecting even close by suburbs. The children are too young for shared care and the parents do not get on, in any event. Counsel conceded that it was possible the children might spend three consecutive weeks in each alternate month and possibly long weekends. He sought the orders in the minutes provided.
Final Submissions for the Father
Counsel submitted that the magic of B City is to reduce the impact of Mr Sturm. This was not a rational basis for relocation. The father was offering assistance and was prepared to pay for a property in Suburb C if the mother signed the child support agreement. The father has a home in mind which would be available for a long time. There are family supports in Suburb C. Relocation will improve the father’s time with the children. They would have daily living with the father. The children are distressed at not seeking the father. The mother will relocate to Suburb C or somewhere nearby if relocation is ordered.
Statutory Pathway
I turn now to the statutory pathway which is set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65]:
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”
Parental Responsibility
In this proceeding little has been said about the preliminary and important issue of parental responsibility. The Court is required to apply the presumption that equal shared parental responsibility is in the best interests of the children unless there are reasonable grounds for believing that the children have been the subject of abuse or family violence or the application is rebutted as not being in the best interests of the children. So far as I am aware, notwithstanding there are some allegations of family violence in the mother’s affidavit material (apparently not propounded in an interview with Ms D) all parties seek that there be an order for equal shared parental responsibility and, in my view, the presumption is not rebutted and the order should be made.
The Children’s Best Interests - the Primary Considerations
All parties agree that it is to the benefit of these children to have a meaningful relationship with both of their parents.
As the Independent Children's Lawyer’s case outline asserts, the mother has alleged that the father was verbally abusive and denigrated her two children from a previous relationship and that he is financially controlling. These are significant matters, but they are better addressed in the particular circumstances of this case, under the specific subsections in 60CC(3). This is so because the mother is herself proposing substantial and significant time in any event.
Additional Consideration Section 60CC(3)(a)
The children are presently aged five and three. They have not expressed any views.
Section 60CC(3)(b)
The children clearly have a very close and well developed relationship with their mother who has always been their primary carer. She will continue to be so, for time, at least. Nonetheless, Ms D’s observations suggest that children, and particularly X, have a very strong bond with their father, which, given their age and his relative removal from their lives since separation, speaks volumes for his commitment to the relationship and for its success.
The children also have a very close and bonded relationship with their half-siblings, F and G. That is the uncontradicted oral evidence of the mother and it was entirely consistent with Ms D’s observations. All the children’s relationships with the mother’s father appear to be hard to gauge at the moment. He was apparently not able properly to control them when they were with Ms D. There is no meaningful evidence as to the children’s relationship with other extended family members on either side, although there is no reason to doubt that the grandparents all round would love the children and presumably have some measure of affection in return.
Section 60CC(3)(c)
The mother has undoubtedly taken all appropriate steps to make long term decisions in relation to the children. The father has since relatively shortly after separation and most particularly since the mother’s relocation to B City, with all the practical difficulties that it gave rise to, has pursued his case in in this Court. He plainly passionately desires to be involved in all aspects of the children’s lives and to spend as much time with them as he can.
Section 60CC(3)(ca)
The mother has undoubtedly fulfilled her parent obligations to maintain the children. The father’s position is more nuanced. I will return to this when I deal with the measure of control he has sought to exercise over the mother from time-to-time. It is fair to say, however, that he appears by and large to have met his child support obligations.
Section 60CC(3)(d)
This, in the context of this case, is a particularly important subsection. There are a number of facets to it. The first and most obviously, is, of course, that if the children are living in Suburb C, they will get to spend far more time with their father. If they continue to live in B City his time will be reduced, and as a matter of practical politics, more problematic.
There is, however, a countervailing consideration. All the evidence in this case suggests that the Independent Children's Lawyer’s submission that it is a sibship of four is correct. The four children adore one another. If they spend protracted periods of time with the father then they will obviously find the relationship between the siblings will be disrupted. This is important, but it does not require more to be said.
Section 60CC(3)(e)
Self-evidently, if the mother continues to live in B City and the father does not relocate to B City, there will be significant practical difficulty and expense in the children spending time communicating with the father. I accept that those difficulties will necessarily, to an extent, diminish the quality of the relationship between the children and the father. It should be noted, however, that expense does not appear to be a particularly significant matter from the father’s point of view. I will return to this when I deal with his lifestyle and background.
Subsection 60CC(3)(f)
Everybody seems to agree that each of these children are good parents. For all her lack of charity towards him, the mother concedes in the family report that the father is a good father and there is not much more to be said than that. Both of these parents are able to provide for the needs of the children, including their emotional and intellectual needs subject to some observations I propose to make shortly about the father.
Subsection 60CC(3)(g)
The father was an excellent witness who answered all questions put to him, directly and honestly. What emerged, however, in the most striking way, was his lack of insight. His evidence was wholly about his own perception of his needs and his desire, understandable and laudable, to be a hands on Dad and not just a fun Dad. His insistence that the mother live in Suburb C and nowhere else was striking. In fact, it is quite clear that during the relationship the mother was made to account, it would seem something close to dollar for dollar, for all the household expenditures that she made. Even more humiliatingly, this appears to have been done, in part, either through or for the father’s mother. He struck me as being extremely coercive and controlling and this is an unattractive facet of his personality.
The mother struck me as evasive and non-responsive to questions put that she perceived to be against her interests. Her behaviour in moving to B City was undoubtedly reactive. Contrary to her denials, it is clear that she moved to B City to get away from the father and not for any other reason. Her assertions as to her contacts and the like, in B City, are essentially self-serving, although I accept that in all probability, she will have been able to make a new set of acquaintances where she now lives.
The mother is engaged in tertiary study with a view to becoming qualified as a professional. She cannot remove herself from Colleg I this year. She has an understandable desire to proceed to Campus J in the years to come. While some suggestion was made that this could be done elsewhere, these suggestions are solely designed to meet the father’s desire to have the mother live in Suburb C, where she will be closely at hand for him, and more particularly, where the children will be close at hand to spend more time with him as he desires.
The father comes originally from E Country, and works in the family business. Little has been said about his parents, save that his mother is described as a very reticent personality. The picture that emerges to me from the affidavit material, suggests that she may be somewhat steely, as well. The father’s rigid style of thinking makes it very difficult for him to empathise with the mother’s concerns, of which he is essentially dismissive.
Having said this, however, it should be borne in mind overall and it is worth repeating, they are both good parents.
Subsection 60CCC(3)(h)
This is not relevant.
Subsection 60CCC(3)(i)
The attitude of the mother to the children is essentially that of a loving and concerned mother. The father’s attitude is in many ways entirely laudable. He wants, and passionately so, to be directly and vividly involved in every aspect of the children’s lives. I accept that this is borne out of love and affection, but it has about it elements of the controlling personality that he has demonstrated so clearly in his dealings with the mother.
Subsection 60CCC(3)(j)
Contrary to his denials, I have no doubt that the father screamed at F, from time-to-time, whom he obviously found a difficult child to deal with. Whether he swore at her in the really obnoxious terms suggested by the mother I am not able to say, but I note that there is really no dispute that he told the mother, as she says, “Pack up and take your shit and get out of my house and take the kids with you” at the time of separation. In my view, it is far more probable than otherwise that throughout the relationship he was prone to angry outbursts, which must have been very troubling not only to the mother but to the children, as well.
Subsection 60CCC(3)(k)
This is irrelevant.
Subsection 60CCC(3)(l)
It is entirely appropriate to make final orders now. The father has considerable financial resources as I am persuaded, and will litigate on an ongoing basis if not prevented from doing so. He plainly sees equal time as his right at some point in the future and indeed seeks it now. The fact that he seeks it now, indeed, is not one on which I have commented earlier, but I would observe that the Independent Children's Lawyer is entirely accurate. This is grossly premature, and the fact that it is pressed speaks volumes, once again, about the father’s lack of insight.
It should be noted although it will be open to the father, should he be so advised, to bring an application for equal time in the future, this judgment should not be taken as saying that any such order should or should not be made when and if that occurs. On any view of the matter, any application before the youngest child is at the very least in mid-school is plainly inappropriate. But even then there will be a number of important issues to be considered, not excluding the interpersonal dynamic between the parents. I emphasise, however, again, those are matters for another day. It is plain that this current tranche of litigation should be ended now.
Subsection 60CCC(3)(m)
Bearing all these matters in mind, I come now to the issue that the case has largely been fought out over, should the mother be ordered to relocate back to Suburb C. The short answer is no. She has lived in B City for the better part of a year and a-half and the children, three of whom go the same school and will do so for some years, have been in school there for a complete academic year, and by the time that these reasons for judgment, another term, as well.
It is utterly unrealistic to require the mother to return to Suburb C, where, in any event, she would unquestionably feel controlled by the husband. His proposal that she live in a property paid for by him (it seems to me that this is a property owned by his parents) speaks for itself. The mother has connections in B City and I accept that her father will be moving there. Whether her mother does so is much less clear. In the end, it needs to be borne in mind that there is no onus upon a person to relocate.
Authorities such as A & A and U & U, although taking place prior to the 2006 amendments, make it clear, as do subsequent decisions of the Full Court, that an applicant does not bear any particular onus to discharge to establish that their desire to relocate is appropriate. Indeed “relocation” cases may be a misnomer, as the best interests of the children remain the paramount consideration. In any event, this is not a true relocation case, as counsel for the Independent Children's Lawyer submitted. The relocation to Area A was facilitated and agreed to by the father, notwithstanding his assertions now that he did not understand it to be a permanent move. It should be noted that that his cooperation in that move stands to his credit.
What obviously happened was that the mother was unable to cope with the relative proximity of the father, and moved, no doubt by that and other considerations, decided to go to B City to put distance between them. This was a reactive and not particularly well thought through move, but it has occurred.
There is no question of requiring the mother to allow the two children to go to live with the father. No one has seriously suggested it, although the father did appear to espouse this as a proposition. The four children plainly must stay together as Ms D suggested.
The children should continue to live with the mother and the mother lives in B City. Plainly, she has studies there which are likely in the longer term to be greatly to her benefit, assuming all goes well. It is simply unrealistic to order her to return to Suburb C.
Conclusion
I will make orders as the Independent Children's Lawyers suggested in respect of the spend time regime with the mother living in B City. The mid-week time is likely to be highly problematic. The father works full time, or, at least will do so within the foreseeable future, and the notion that he can travel all the way to B City to Suburb C through rush hour traffic to spend a short time in the evening, is simply not workable. I will order that his time go from Friday afternoon until Sunday evening.
I note that Monday morning return was suggested, but this needs to be looked at in a common sense way. It would be a very long very early morning drive for the children, who are still very young, to get to B City in time for the older child, X, to get to school. It is simply unworkable. I will order that they be returned at 6 o’clock on Sundays, this being a time which would still lead to a fairly late night for the children of this age, but it is important that the father’s time be as significant as it practicably can be.
I note that the mother conceded a third weekend in each alternate month, and I think that is a sensible concession. I also note that it is conceded that on public holidays the time should extend by a day, and likewise, that should occur. Holiday time should be as recommended by Ms D, until the children are older.
I do not share the optimism of the Independent Children's Lawyer that the father will, in truth, relocate to B City. I accept that he is a devoted and very good father and that he might do so. Nonetheless, he works in the family business, which he is taking steps to qualify himself to take over in the fullness of time. I have no doubt he will get himself appropriately qualified as a tradesman and the clear tenor of the father’s evidence is that although it may not happen immediately, he is likely to take over the family business.
Nonetheless, there is no good reason why orders in the alternative are not made as the Independent Children's Lawyer has proposed, and I will make orders that in the event that the father moves to B City, the time regime be that recommended by Ms D.
Thought will need to be given as to the precise orders to be made arising from this judgment, and I will hear from the parties accordingly.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 1 April 2021
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