TEASDALE & HILKER

[2020] FCCA 2695

FEDERAL CIRCUIT COURT OF AUSTRALIA

TEASDALE & HILKER [2020] FCCA 2695

Catchwords:
FAMILY LAW – Parenting – Application to discharge consent orders – Consideration of reasonable practicability in the context of Rice and Asplund Considerations – Consent orders made provision for the child’s attendance at a particular school notwithstanding the parties were living in different cities – Child living in three households to accommodate the mother’s wish to live in a different city to where the child attends school – Application proposes change of child’s residence and school and a reduction in child’s time with the father – Application dismissed.  

Legislation:

Evidence Act 1995 (Cth), s.140

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

Rice & Asplund (1979) FLC 90-725
AMS and AIF (1999) 199 CLR 160; 24 Fam LR 756
Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
MRR v GR [2010] HCA 4
B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92‑755
Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343
Taylor v Barker (2008) 37 Fam LR 461

Applicant: MS TEASDALE

Respondent: MR HILKER

File Number: BRC 9682 of 2019

Judgment of: Judge Lapthorn

Hearing date: 14 May 2020

Date of Last Submission: 14 May 2020

Delivered at: Brisbane

Delivered on: 30 September 2020

REPRESENTATION

Solicitors for the Applicant: Cooper Family Law

Counsel for the Respondent: Ms Fraser

Solicitors for the Respondent: Trianon Law

ORDERS

1. That the Initiating Application filed 16 August 2019 be dismissed.

2. That the Applicant and Respondent comply with the Orders made by consent on 2 September 2015.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 9682 of 2019

MS TEASDALE

Applicant

And

MR HILKER

Respondent

REASONS FOR JUDGMENT

Introduction

1. I am asked to determine an application to set aside final consent parenting orders (“the consent orders”) made on 2 September 2015 with respect to X born 2013.  X is now seven and a half years of age.  The child’s mother, Ms Teasdale is the applicant in these proceedings and her father, Mr Hilker, the respondent.  Throughout this judgment I will refer to the parties as the mother and the father, rather than referring to them by name and X as the child.  I mean no disrespect in doing so.

2. The consent orders provided for the parties to have equal shared parental responsibility, the child to live with the mother and spend time with the father from Wednesday to Tuesday each alternate week.  These orders also provided for the child to attend School A in Town B.  In 2018 the parties agreed for the father’s time to be reduced by one night such that the child spent time with him from Thursday to Tuesday.  This was to accommodate a change in his work roster as he is employed on a fly-in-fly-out basis (“FIFO”). Earlier this year when the father’s roster returned to the previous arrangement the mother would not agree to the father’s request to revert to the Wednesday commencement of the child’s time with him. The mother wishes to have the consent orders set aside to enable her to change the child’s residence to a suburb of Brisbane.  If successful, she proposed orders for the child to live primarily with her and spend alternate weekends with the father from Friday afternoon to Sunday afternoon.  The father opposed any change to the orders and simply sought an order that the mother’s application be dismissed.  He argued for a resumption of the consent orders.

3. The trial was heard by way of Microsoft Teams videoconferencing as it was heard during the COVID-19 pandemic restrictions.  The parties consented to this approach.        

Material relied on 

1. The mother relied on:

   a)Her Case Outline filed 8 May 2020;

   b)Her Initiating Application filed 16 August 2019;

   c)Her Notice of Risk filed 16 August 2019;

   d)Her affidavit filed 4 May 2020; and

   e)The affidavit of the maternal grandmother, Ms C Teasdale filed 16 August 2019.

2. The father relied on:

   a)His Case Outline filed 11 May 2020;

   b)His Response filed 25 October 2019; and

   c)His affidavit filed 1 May 2020.

3. The court had the benefit of a family report by Family Consultant Ms D dated 29 April 2020.

The Evidence

1. In determining this matter I have had regard to all of the written evidence referred to above along with the oral evidence given.  In order to avoid repetition and limit the length of this judgment, apart from setting an informative background, I will not repeat the evidence save that which is necessary for me to determine disputed issues and carry out my assessments in accordance with the legislative framework. Therefore throughout these reasons I will refer to a number of facts.  Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.  In determining disputed questions of fact the court is required to assess the evidence on the balance of probabilities.[1]    

   [1] Section 140 Evidence Act 1995 (Cth)

2. In assessing the credit of the parties I found they both strived to give their evidence honestly.  However at times I found the mother answered questions in a way designed to best present her case such that I was left with the impression that some of her answers were coloured by that aim.  I found the father to be a more forthright witness and where their evidence differed I preferred his version of events.

3. The mother is 30 years of age, a lawyer by profession, and is employed as a manager for a business based in Brisbane.  She rents a house in a suburb south of the Brisbane River.  The father who is 33 lives in a southern suburb of the Sunshine Coast and is a labourer by occupation.  He continues his employment on a FIFO basis.  Neither party has re-partnered. 

4. The parties first met in June 2010 on the Sunshine Coast and commenced a causal relationship.  In early 2011 the mother moved to Town E for employment.  The father would visit her in Town E on weekends before moving there to live with her in August 2011.  Their relationship was marked by periods of living together and periods of separation.  They both described this period of their lives as being marred by arguments and disagreements.  They were not living together when the mother became pregnant with the child and despite attempts at reconciliation they separated on a final basis in September 2013 when the child was only six months old.

5. The mother gave evidence that following separation the child lived with her and spent irregular time with the father.  He however gave evidence of the mother making it difficult for him to spend any unsupervised time with the child. Given the child was only a baby at the time it is not surprising the mother was reluctant to allow any significant periods of time for the child with the father unsupervised.  Eventually the parties agreed to a parenting plan although the date on which that agreement was reached was not clear on the evidence.  After a dispute resolution conference in 2014 the mother would not allow the child to spend regular time with the father.  The mother was at this time often travelling to the Sunshine Coast with the child.  

6. In November 2014 the mother filed an Application for a Domestic Violence Protection Order naming the father as the respondent.  A temporary order has made on 24 November 2014 but revoked on 16 December 2014.  The application was set down for trial in April of 2015 however the mother withdrew her application in February 2015.   

7. The father became aware that the mother had unilaterally relocated with the child to Brisbane in January 2015 and he promptly filed an Initiating Application in the Town F registry of this court seeking orders to have the child returned to Town E.  Interim orders were made on 28 July 2015 for the child to be returned but were stayed on the mother’s filing of a Notice of Appeal.                  

8. Prior to the determination of the mother’s appeal the parties reached final consent orders which were made on 2 September 2015.  The appeal was subsequently discontinued.  The consent orders can be summarised as follows:

   a)The parties to have equal shared parental responsibility;

   b)The child to live with the mother;

   c)The child to spend time with the father:

   i)Until the child commenced prep schooling from Wednesday to Monday each alternate week; and

   ii)Upon the child commencing prep from Wednesday to Tuesday each alternate week. 

   d)For changeover to occur at Town G;

   e)For the child to attend primary school at School A in Town B.

9. Both parties were legally represented when they entered into the consent orders and the mother had qualified as a lawyer by this stage.

10. Underlying the consent orders was the father agreeing to relocate back to the Sunshine Coast and the mother moving to Brisbane for employment.  Thereafter the child would live with the mother in Brisbane and spend time with the father on the Sunshine Coast.  Upon the child attending formal schooling she would live primarily on the Sunshine Coast and attend School A in Town B as noted above.  The mother told the family report writer that the child’s attendance at School A was her decision to which the father agreed.

11. Shortly after the mother moved to Brisbane she purchased a property in Suburb H.  The child commenced day-care in a nearby suburb but also spent time on the Sunshine Coast being cared for by the maternal grandmother.  The father, whilst living on the Sunshine Coast continued FIFO work based out of Town E when the child was not in his care.  This arrangement continued between 2015 and 2018.  In order to facilitate the child’s future attendance at the School A the child began spending school nights with the maternal grandmother on the Sunshine Coast at the commencement of prep in 2018.  The maternal grandmother has taken on a significant role in caring for the child when the mother is living in Brisbane.

12. In April of 2018 the father approached the mother and sought a change to the child’s time with him to accommodate a roster change in his employment.  An agreement was reached for the child to spend time with the father from after school Thursday to before school Tuesday.  This new arrangement effectively reduced the child’s time with the father by one night per fortnight and commenced in June of 2018.   In January of this year the father asked the mother to return to the arrangements set out in the consent orders but the mother refused.

13. The mother filed her Initiating Application on 16 August 2019.  On the first return date, 4 November 2019 orders were made by consent to vary the consent orders for the 2019 / 2020 school holiday period.  The matter was adjourned to 17 December 2019 for a preliminary hearing in relation to a Rice & Asplund[2] argument and/or a change of school however the parties agreed to obtain a family report and have the matter listed for trial.  The issue of Rice & Asplund remains a consideration in this judgment. 

    [2] (1979) FLC 90-725

14. The family report interviews were conducted in March and April of this year.  Initially the parents were interviewed by telephone as a consequence of the COVID-19 arrangements but the report writer was able to interview the child and observe the parties with her at an office in Brisbane.  No issue was taken in relation to the conduct of the family report.  I will address the report writer’s observations later in this judgment but at this point note that Ms D made clear recommendations that the child live with the parents in accordance with the consent orders and that she remained enrolled at School A.  She did not change her position in cross-examination. 

15. If her recommendations were accepted by the court the child’s time with the father would return to six nights a fortnight, up from the current five, and the child would remain living primarily on the Sunshine Coast. The current arrangement can best be understood by the child’s description to the report writer at paragraph 68 of the report:

    It is X’s narrative that she lives in three houses, her mother, father and maternal grandmother’s (Nana).  Most of the time, she is at her Nan’s house.  During the school term, X spends one full week at Nana’s from after school Tuesday until Friday.  She spends those weekends with Ms Teasdale.  The following week she is with her Nana again until Mr Hilker picks her up from school on Thursday and she stays with him until Tuesday.

16. The evidence of the mother was that sometimes she is at her mother’s place during the week the child is with her.

Legal Principles

1. All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act 1975. In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[3] and must consider the best interests of the child as the paramount consideration.[4]  Whilst that is the paramount consideration it is not the only consideration.  In AMS and AIF his Honour Justice Kirby held: [5]

   [144] ……a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents.  If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights.  However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.

   [3] Section 60B

   [4] Section 60CA

   [5] (1999) 199 CLR 160 at page 207; 24 Fam LR 756 at page 792

2. The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[6] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:

   a)Children have a right to know and be cared for by both their parents;

   b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;

   c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;

   d)Parents should agree about the future parenting of their children; and

   e)Children have a right to enjoy their culture.

   [6] Section 60B lists the objects and principles for Pt VII

3. In determining what is in a child’s best interests the court must consider the matters set out in s.60CC.

4. The legislative framework which must be followed in all parenting cases,[7] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[8]  This presumption does not apply in cases of child abuse and/or family violence or may be rebutted when the evidence establishes that it is not in the child’s best interests for it to apply.[9]

   [7] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

   [8] Section 61DA

   [9] Section 61DA(2) & (4)

5. The parties agreed that they should equally share parental responsibility for their child. There was no evidence to suggest that it would not be in her best interests to apply the presumption or to make such an order. Consequently I am required to apply the provisions of s.65DAA which provides for a consideration of the child spending equal time with the parents. Before making such an order I must be satisfied that it is both in the child’s best interests and reasonably practicable.[10]  If I conclude that an equal time arrangement is not in the child’s best interests or that it is not reasonably practicable then I must consider whether the child spending substantial and significant time with the parents is in her best interests and reasonably practicable.[11] Substantial and significant time is defined in s 65DAA(3) as time that includes days that both fall on weekends and holidays and days that do not fall on weekends or holidays. The time should allow the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child as well as allowing the child to be involved in occasions and events that are of special significance to the parent.

   [10] Section 65DAA(1)(a) & (b), MRR v GR [2010] HCA 4

   [11] Section 65DAA(2)(c) & (d)

6. This legislative approach must be followed in all parenting cases.[12]  Although this case has as one of its elements the issue of the mother’s proposed relocation of the child’s primary residence to Brisbane, it is important to note that that is only one element of the case and the parental dispute remains to be determined like all parenting matters by considering the best interests of this child in the context of the legislative framework.[13]  In Taylor v Barker[14] their Honours Bryant CJ and Finn J said:

   [53] …… when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible:  see U & U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458. 

   [12] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

   [13] B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755; Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343

   [14] (2008) 37 Fam LR 461 at page 475

7. Their Honours went on to say:

   [83] However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement.  Not to approach a case involving a relocation proposal  in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a  case to spend “equal time” or substantial and significant time” with each parent.[15]

   [15] ibid at page 480

8. As part of that consideration however I am required to consider the father’s case that there has been no significant change of circumstances warranting a change in the orders.  I was invited to apply the principles laid out in Rice & Asplund and to dismiss the mother’s application.  A Court is usually reluctant to entertain a fresh application for parenting arrangements because it is rarely in a child’s best interest to have ongoing litigation about his or her care and wellbeing.  The Full Court of the Family Court in Rice v Asplund held:

   “The court should not lightly entertain an application to reverse an earlier custody order.  It would need to be satisfied by the Applicant that there was some changed circumstance which would justify such a serious step, some new factor arising, or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.  These are not necessarily matters for preliminary submission, but they are matters that the judge should consider in his reasons for decisions.”

Determining the best interests of the children – the s.60CC considerations

1. The court is required to determine a child’s best interests by considering a number of factors set out in s.60CC. In order to limit duplication I propose to group together a number of these factors and address those which are relevant to this determination.

The child’s relationships[16]

[16] Section 60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents.

1. There is no dispute that this child has a close and loving relationship with both parents as well as close relationships with extended family on both sides, particularly the maternal grandmother with whom the child lives when the mother is working in Brisbane.  The report writer observed the child to be happy, confident and relaxed in her demeanour with the father.  The father was observed to be responsive to the child and the report writer concluded that their interactions were consistent with a positive, strong and secure relationship.  After observing the child with the mother the report writer came to the same conclusion about their relationship.

2. Although the child was not observed with the maternal grandmother, from her interviews with both parents, the report writer was able to conclude that the child has enjoyed quality and safe experiences with the significant care providers in her life which would include her maternal grandmother.

3. The mother’s proposal will see the child move to Brisbane to live primarily with her.  As a consequence the child’s time with the father would be reduced from five nights a fortnight to two nights a fortnight.  Her time with him was reduced in June of 2018 from six nights to five nights to accommodate his roster but when he sought to return to the consent order arrangements the mother refused.  She told the father that as they were already in court they should leave things as they are pending a determination.  It is not surprising the father viewed the mother’s decision as another example of her trying to diminish the child’s time with him.  I find the mother was disingenuous in her answer to the father’s request and was motivated by a desire not to return to the earlier orders.

4. When the parties’ relationship concluded the child was only a baby and the mother was cautious about allowing her to spend significant time with the father.  She should not be criticised for that, however I accept the father’s version of events that over time the mother was reluctant to increase that time and would make it more difficult for him to spend time with her.  In 2014 she had clearly formed the view to move from Town E to the Sunshine Coast without telling the father and acted on it in early 2015.  Her decision to move had significant consequences for this child’s relationship with her father in that facilitating time between them at an important stage in her development would be problematic.  Although the mother was ordered back with the child to Town E the father agreed to relocate to the Sunshine Coast when the mother lodged an appeal.  He was concerned about the financial costs of fighting an appeal and then still a final hearing.  In agreeing to move he was being child focused putting the child’s needs ahead of his own.  The implications for him was that he needed to travel greater distances for his work each fortnight.

5. Nothing in the mother’s evidence gave me any confidence that she took into account the child’s relationship with the father when she decided to move to the Sunshine Coast in 2014/2015.  By the time they entered into the consent orders the mother intended to live in Brisbane but to her credit she agreed to orders that would see the child spend six nights a fortnight with the father on the Sunshine Coast.  I accept that by this stage she took into account the need for the child to spend regular and frequent time with the father.  In that context I found her decision not to revert to the consent order arrangements when the father’s roster changed again to be disappointing.  The mother also withheld the child at the start of the COVID-19 issues because she was concerned about the father flying to and from Town E.  To reassure the mother the father decided to drive the long distances instead.  An initial reaction to the COVID-19 situation is understandable but I found the mother’s actions to be controlling.  Rather than discussing it with the father she expected him to accept her decision.  The family report writer opined that the mother maintained a sense of priority for herself in the child’s life and viewed the father as being of lesser competence to her in certain areas. I arrived at the same conclusion after hearing her evidence and have concluded that the mother does not value the child’s relationship with the father to be of the same importance as the child’s relationship with her.

6. The father expressed the concern that if he moved to Brisbane to be close to the child the mother would, at some stage, up and move again further distancing him from their daughter.  Given the mother clearly considered the consent orders to be a long term arrangement by requesting the child attend School A on the coast when she was living in Brisbane at the time but now wishes to change the child’s school, home and time with the father, the father is right to be concerned.

7. The mother held the view that the child’s relationship with the father was now well established and could withstand a reduction in time.  Although the report writer did not address that point specifically she stressed the importance of stability in her living arrangements opining that the child’s ongoing mental health would be promoted by a continuation of her current arrangements.  Ms D said that neurological research strongly evidences that the most significant contributor to a child’s emotional wellbeing as they age, is a coherent life-story.

8. The mother’s proposal would see not only a reduction in the child’s time with the father but also with extended family.  Even accepting the father’s position that he would move to Brisbane if the mother was successful in this application, the change in location would make it more difficult for the child to see extended family as regularly as she has been.  Of course this does not mean she would not see them at all as the father and child would still be able to visit on weekends but there would be a reduction in frequency. 

9. On a positive side, under the mother’s proposal the child would see her mother more than she does now.  The mother does have the option to work from home subject to her employer’s approval and needs.  She conceded that they were flexible.  Notwithstanding this the mother has chosen to have a home in Brisbane and does not always return to her mother’s home to be with her daughter during her time as provided for under the consent orders.  The mother appeared to discount commuting from the Sunshine Coast to Brisbane for work on the days that she was required to be in the office although she conceded many people from the Sunshine Coast do just that.  She said this would add at least three hours to her day.  By being in Brisbane she would be able to be more available to the child before and after work and if there is a need for her to attend the child’s school during a work day it would be easier for her without having to rely on her mother.  These are valid considerations on her part.  The effect of them however is that unless the father also moves, his availability for the child and her schooling is diminished.  Whilst there would be benefits for the child’s relationship with the mother there would be a negative impact on the child’s relationship with her father.

10. On balance I find that the father’s proposal is to be preferred under this consideration.

Risk of harm[17]

[17] Section 60CC(2)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. It is pleasing to see that there are no risk of harm issues that would impact this child having a relationship with either of her parents.  Although the mother obtained a temporary protection order in November 2014 it was revoked by the court three weeks later and the mother subsequently withdrew her application. 

The child’s views[18]

[18] Section 60CC(3)(a): Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.

1. The report writer observed X to present as an engaging, personable and confident child who readily engaged in the interview process. 

2. The child said that she enjoys school and there was nothing she did not like about her school.  She said she had many friends.  The evidence suggests that she is doing well at school and is currently in year two.

3. X said she was aware of the dispute between the parents and knows what each parent is seeking.  In relation to her current living arrangements she said she didn’t initially like it as the father would infrequently make negative comments about the mother.  This does not appear to be a current concern for her and she was unable to particularise what was said.  She said she enjoyed being in the father’s company and told the report writer that she enjoyed playing games with him and sitting by the fire at his property.  They have a shared interest in cars.  She is pleased he has given up smoking and would only change his use of swear words when he is talking to his housemate, Mr I.  She enjoys Mr I’s company too.  She did say that she doesn’t always feel safe in the father’s home because he uses time out as a behaviour management strategy which she dislikes.  I am satisfied that the child is not fearful of the father but that she simply dislikes being disciplined in the manner he uses.

4. She said her grandmother was a kind woman and if she misbehaves her Nana tells her she can go elsewhere to calm down.  She enjoyed having cats in her Nana’s home.  The child feels safe in her mother’s home and there were no behaviours or attributes that she could think of that she would like to see her mother change.  The mother has told X that if she moved to Brisbane she could get a kitten.  This promise has clearly influenced the child.  When the report writer asked her about her feelings if the judge made a decision that she would continue to live on the Sunshine Coast the child said: ‘tell them (the judge) I want a kitten, a Siamese.  I can only get that if I live with mum.” When asked about what her parents should consider in their decision-making she said that she would miss them if she couldn’t see them – ‘I want to see mum more but not dad less’.  If she could not have the kitten she would not move to Brisbane and she would like the current arrangement to continue.  She said in that case: ‘we keep it all as it is.  I’d just like mum to visit me more at Nana’s.’ 

5. The report writer said:

   [83]  In considering the weight and interpretation of X’s views and wishes, it is assessed that her enduring wishes are to spend more time with her mother within the existing time provisions that already exist for her between her parents.  X articulates a desire to not reduce her time with her father, and observations of X with each parent on the day of interviews were consistent with X having a positive and secure relationship with both parents respectively.  Self-admissions confirm that X’s agreement to relocate to Brisbane only occurs in the context of Ms Teasdale’s promise for her to have a kitten.  It is not assessed that X has a genuine desire to relocate nor the insight and maturity required to hold substantial decision-making associated with a relocation.

6. I accept the opinion of the report writer in this regard.  Although the child is still young and not yet possessing a level of maturity to understand the implications of her views I am satisfied that she does not want to spend any less time with her father but is seeking more time with her mother.  She has no real desire to change schools or the current arrangement and was only influenced in her thought processes by the mother’s mention of having a kitten in Brisbane.  Although I propose to give some weight to her views, given her young age they will not be solely determinative of the dispute.

Practical difficulties[19]

[19] S.60CC(3)(e): The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

1. In presenting her case the mother explained that it is not practicable for her to spend time with the child during her weeks under the consent orders because of her work in Brisbane.  For this reason her mother has taken on a significant role in the care of the child.  As a consequence the child does not get to see her mother as much as she would like.  Under the mother’s proposal she would be able to care for the child before and after work rather than have to rely on her mother.  She would be able to attend the child’s school for special occasions or if needed. Her travel time would also be reduced as she would not have to travel to the Sunshine Coast for the weekends the child is with her.  The child’s time with the mother would also be increased as the mother’s proposal is to reduce the father’s time to alternate weekends.

2. Whilst it is easy to see why the mother is seeking the orders she does, the consequences to the child/father relationship are significant.  The move would make it more difficult for the father to continue to parent the child in the way he has unless he too moved again to follow the mother.  If he was to stay on the Sunshine Coast and the child is living in Brisbane their time would be considerably reduced.

3. If the orders remain as they are the mother would continue to experience the frustrations of balancing her chosen career and employment with her parenting of the child.  This balancing act was contemplated by the mother when she entered into the consent orders in 2015 as by then she was living and working in Brisbane but made provision for the child to attend school on the Sunshine Coast. 

4. In no way would I wish to down play the significant inconveniences experienced by the mother in juggling her parenting role, her work life and her personal life but I am not satisfied that her proposal achieves a practical outcome from the child’s perspective.  The mother is able to work from home as she is not required to be in the office every day.  She conceded that many people commute daily from the Sunshine Coast to Brisbane for work.  On the days she would be commuting she would not be readily available to attend at the child’s school if that became necessary but she does have the assistance of her mother.  From the child’s perspective she would experience a significant change in her father’s parenting unless he was to move to Brisbane as well.  She would also have to change her extra-curricular activities.  The father would not be able to engage with her in any of these if he was to remain living on the Sunshine Coast.

5. Whilst this is not a case whereby an intended move would remove a parent entirely from a child’s life there are implications for the child’s relationship with the father if the mother’s proposal is accepted.  On balance the father’s case is to be preferred under this consideration.

Parental capacity and responsibility[20]

[20] Section 60CC(3)(f): The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs.

1. Both parents have the capacity to meet the child’s day to day needs in all aspects.  This includes her intellectual and emotional needs along with the basics of life such as ensuring she is properly housed, fed and clothed.  This would not be impacted by either proposal.

2. I am satisfied that both parents have exercised their responsibilities for the child appropriately throughout her life although I am not satisfied that the mother has always been able to prioritise the child’s needs over her own.  This should not be seen as a strong criticism but her decision to not revert to the consent order arrangements at the beginning of this year is an example of the mother not looking at the implications for the child especially in the context that she was proposing to reduce the child’s time with the father even further if successful in her application.

3. The father’s decision to relocate to the Sunshine Coast by entering into the consent orders is an example of him placing the child’s needs over his own given he then had to undertake his employment on a FIFO basis from further afield.  His decision to drive to Town E rather than fly consequent upon the mother’s concern over Covid-19 is another example of his responsible approach to parenting.

Consideration of Equal Time or Substantial and Significant Time

1. Earlier in this judgment I indicated that I would apply the presumption of equal shared parental responsibility and make and order for such.  This was sought by each of the parties.  As a consequence I am required to commence my consideration of the appropriate parenting arrangements by determining if an equal time arrangement is both in the child’s best interests and reasonably practicable.

2. I am satisfied that as the child has a strong, secure and happy relationship with each parent and they have both been able to meet her needs appropriately, despite differences in approaches to parenting such as forms of discipline, this child has benefited from the consent order arrangements.  For three years she lived with the father for six nights a fortnight and with either the mother or the maternal grandmother for the remaining eight nights.  For the last two years she has been living in a nine/five arrangement.  There is a clear history of shared care albeit not an equal time arrangement.  To move to an equal time arrangement would see a reduction in the time the child could be cared for by the mother or maternal grandmother.  The family consultant cautioned against destabilising the child’s arrangements.

3. In any event, it would not be reasonably practicable if the child was to live primarily in Brisbane as proposed by the mother and the father remained living on the Sunshine Coast.  The distance between the two homes would make it impossible for the child to attend a school in Brisbane whilst living with the father.  Therefore I find that an equal time arrangement would not be in the child’s best interests nor reasonably practicable if the mother’s proposal was to be adopted.  As neither party sought such an order regardless of where the child is to live I will not make such an order.

4. I turn then to a consideration of whether a substantial and significant time order is in the child’s best interests.  Under the current arrangement the father, the grandmother and on occasion the mother are able to be involved in the child’s extra-curricular activities, take her to and from school and to attend upon special events at her school.  The mother’s proposal would reduce the opportunity for the father to be as involved in the child’s day to day activities, in effect reducing his role to that of a weekend dad.  That is unless the father was to follow the mother to Brisbane. 

5. I am satisfied that it is in the child’s best interests to spend significant and substantial time with each of her parents and for them to be involved in her day to day activities as much as possible.  This would not be reasonably practicable under the mother’s proposal without a commitment by the father to move to Brisbane.  He indicated he would, but is reluctant to do so, afraid the mother would only move again.  This is a legitimate concern on his part. 

1. A continuation of the current arrangement or a return to the consent orders would see the child spend significant and substantial time with each of the parents although the mother would not always be available unless she did more work from home.  The family report writer stressed the importance of providing stability for this child and opined the best way to achieve that was to continue as close as possible her lived experiences.  She recommended a return to the arrangements under the consent orders.

Discussion

1. The father argued that there has been no significant change of circumstance since the parties signed the consent orders in 2015 and therefore I should not set them aside.  His counsel went further to say that there had not been any change of circumstance.  At the time the parties entered into the consent orders the father was living in Town E and intended to move to the Sunshine Coast so that the orders could be implemented.  He did that and continues to live there.  The mother was living and working in Brisbane.  She continues to do so.  It was agreed between the parties that the child would attend School A.  This was at the mother’s request notwithstanding she was living in Brisbane at the time.  The child was enrolled there in accordance with the consent orders and continues to attend that school. 

2. It could not be said that the parties did not understand the implications of the orders when they entered into them.  They were both legally represented and the mother was a qualified lawyer.

3. It was argued on behalf of the mother that a consideration of reasonable practicality needs to be undertaken in the context of the Rice & Asplund argument.  It was submitted that in order to make the orders work the mother has had to rely on the assistance of her mother.  The child lives in three households and the father conceded in cross-examination that for all intents and purposes the maternal grandmother has become the child’s primary carer.  I am satisfied though that the mother contemplated this scenario by entering into the consent orders making provision for the child’s schooling on the Sunshine Coast even though she was living in Brisbane at the time.  I accept the argument that it is necessary to assess whether the court orders are reasonably practicable in the context of the Rice & Asplund considerations.  Whilst parties may enter into parenting arrangements believing they can make it work, sometimes they will find that despite their best endeavours the orders are not workable or reasonably practicable.  In such circumstances it is appropriate to reconsider parenting arrangements. Reasonable practicality however should not be equated with ‘ease of convenience’.

4. The mother said that by living and working in Brisbane she is not easily able to attend to the child’s school when needed or to be there for her after school.  Not only does she rely on her mother to attend to those needs, the child lives with the maternal grandmother on school days whilst the mother remains in Brisbane.  If the mother works from home she stays in her mother’ home and is more available for the child.  It would be more convenient for the mother if the child was living in Brisbane so that she could more easily attend to her daughter’s needs and to be with her more.  The maternal grandmother would like to be free of some of this responsibility so that she could spend more time with her aging father in Victoria but was clear that if the child was to remain on the Sunshine Coast and the mother in Brisbane she would continue to fulfil the caring role she has undertaken since the child started school.  The arrangements put in place by the mother and maternal grandmother are practical in the sense that the child’s needs are readily met however they are not ideal from either of their personal perspectives.  The desires of the mother and the maternal grandmother are quite valid and understandable.  Whilst I will be giving them some weight these desires are only part of the consideration.

5. The mother gave evidence that in 2016 she applied for two positions on the Sunshine Coast but was not successful.  She holds the belief that jobs on the Sunshine Coast do not offer her the same career prospects and income earning potential as jobs in Brisbane do.  Whilst I readily accept that the larger city would have more job prospects there was insufficient evidence to enable me to make a finding as to the mother’s career prospects or comparable earnings. 

6. The evidence was clear that the mother is able to work from home subject to her employer’s needs.   Some weeks she has stayed on the Sunshine Coast for a couple of working days but has otherwise attended the office in Brisbane.  She told the family report writer that her employer was very flexible.  I formed the impression the mother was minimising the extent of that flexibility when giving her oral evidence.  I find that the mother does have flexibility in her employment and is able to work from home and be more available for her daughter in doing so.  That does not mean however that she can do all of her work from home.  There would clearly be times when she would be needed in Brisbane by her employer.  The mother conceded that many people who live on the Sunshine Coast commute daily to work in Brisbane but she would prefer not to as it would take too much time out of her day. 

7. On balance, I am not satisfied that the mother having a job in Brisbane and the child living and going to school on the Sunshine Coast in the circumstances of this case warrant a finding that the arrangements are not reasonably practicable.  The mother has the assistance of her mother which will continue if the child is to remain on the Sunshine Coast.  The mother can work from home at least some days of the week and it is possible to commute to work in Brisbane albeit not something the mother desires.  I readily accept the arrangement is not easily convenient for the mother but it is reasonably practicable when the overall context of the arrangements are considered.

8. The father has created a home on the Sunshine Coast and his extended family also live close by enabling the child to spend time with them.  The father is able to be there for the child when she is to be with him in accordance with the consent orders.  The child is settled at her current school.  She can think of nothing she doesn’t like there.  The child is enrolled in extra-curricular activities that take place on the Sunshine Coast.  Her friends are on the Sunshine Coast.  All of this has been happening without incident.  The maternal grandmother is able to care for the child when the mother remains in Brisbane.  Although I do not discount the sincerely held desire of the mother to live in Brisbane, there is nothing preventing her moving to the Sunshine Coast to be more available for the child.   If she was to do so she would be able to work from home limiting the commute to those days where she is required to be in the Brisbane office.   On those days she would be able to call on her mother to help with the child’s care or as conceded by the mother utilise the before and after school care provided by the child’s school.  However, even if the mother remained living in Brisbane the current arrangements could continue given the maternal grandmother’s support.  There was no evidence to suggest that the current arrangements had broken down or were unworkable.  There was no evidence the child has been suffering by the arrangements or that her care has been compromised by them.  She does however wish she could see her mother more but not her father less.

9. When I consider all of the above I am not satisfied that the applicant mother has established any significant change of circumstances that would warrant a re-consideration of the parenting arrangements in line with Rice & Asplund.  Even extending the principles of that authority to include a test of whether the consent orders are reasonably practicable, which I hold is appropriate, I am not satisfied the applicant has established a case for setting aside the consent orders.  For these reasons I would dismiss her application.

10. Notwithstanding my findings above, in case I am wrong in my determination as to the Rice & Asplund argument, and given the matter proceeded to a full hearing after obtaining a family report, I have considered the substantive application on its merits. 

11. Having regard to my findings above when considering the s60CC factors I have concluded that the child’s best interests would be met by the parties adhering to the consent orders. The mother’s proposal risks the child’s stability which the current orders provide as it would see a reduction in the child’s time with the father, a change of school and changes in her extra-curricular activities.

12. The father’s concern that the mother did not value his relationship with the child to the same extent as her own relationship with her was supported by the family report writer.  I also share that concern when I take into account the mother’s actions throughout the child’s life.  The mother was appropriately conservative in arranging the child’s time with the father when she was a baby but as she grew older the mother was restrictive and moved to the Sunshine Coast without initially telling the father.  That decision would have had significant implications for the child’s relationship with the father given her young age at the time.  Despite an order for the mother to return to Town E the father agreed to move to the Sunshine Coast in order to maximise the father/daughter relationship.  To her credit the mother implemented the consent orders even though she was living in Brisbane.  The parties were able to reach an agreement to vary the orders when the father’s roster changed.  This saw a reduction in the child’s time with him.  However the mother was not agreeable to return to the consent orders when the father resumed his previous roster.  There does not appear to be any reason for her position other than the matter was currently before the court.  I do not consider her decision to be a child focused one.  She was also restrictive when the Covid-19 pandemic arose, suspending the child’s time with the father because of her concerns about him flying to and from work.  I make no criticism of her having those concerns but her decision was a unilateral one without proper consultation with the father suggestive of an attitude of superiority in making decisions for the child.  The father went to great lengths in driving to Town E in order to address the mother’s concerns.  It is no wonder the father is fearful that if he moved to Brisbane to accommodate the mother’s current desire he will be met with some other change down the track.  His concerns are legitimate.

13. Although the child would like to spend more time with the mother she does not want to spend less time with her father and would not want any change in the arrangements if she was not to get a kitten.  Whilst her views are not determinative of the dispute given her age, they are not to be dismissed entirely.  They form part of the overall balancing of the considerations albeit at less weight than the other factors. 

14. Whilst the mother has a Brisbane based job there will be some logistical inconveniences for her in being available for the child.  This is an important consideration but I am satisfied that to date she has managed them with the assistance of her mother and will be able to do so in the future.  She also has the option of working more from home than she currently does.  I have much sympathy for the mother’s desire to live and work in Brisbane and to have her daughter with her.  These wishes are legitimate and understandable but must give way when her daughter’s best interests are met otherwise. 

15. When I weigh up all of the considerations I have addressed throughout this judgment I have assessed that the child’s best interests would be met by a return to the arrangements provided for in the consent orders.  These orders have provided stability for the child and have enabled her to have a relationship with both her parents as well as extended family members.  Whilst the mother has not taken up the opportunity to spend as much time with the child as the orders provide, given her living and working arrangements, any change as contemplated by the mother risk that stability and the child’s relationships with the father and extended family to such an extent that her best interests will not be met. 

16. I will therefore dismiss the mother’s application.  The only other order I will make is one requiring the parties to comply with the consent orders given the disagreement about returning to them.

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

Associate:

Date: 30 September 2020

Section 60CC(3)(b): The nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child).
Section 60CC(3)(c): The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child.
Section 60CC(3)(d): The likely effect of any changes in the child’s circumstance, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.Section 60CC(3)(j): Any family violence involving the child or a member of the child’s family.
Section 60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following: i) The nature of the order; ii) The circumstances in which the order was made; iii) Any evidence admitted in proceedings for the order; iv) Any findings made by the court in, or in proceedings for, the order; v) Any other relevant matter.S.60CC(3)(m): Any other fact or circumstance that the court thinks is relevant.Section 60CC(3)(ca): The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
Section 60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents