Tiegs & Tiegs
[2009] FMCAfam 1322
•18 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TIEGS & TIEGS | [2009] FMCAfam 1322 |
| FAMILY LAW – Parenting – interim hearing – best interests of children – relocation. |
| Family Law Act 1975, Part VII, ss.60CA, 60B, 60B(1)(a), 60CC, 60CC(1), 60CC(2)(b), 60CC(3)(f), (g), (h), (i) (j),(i), (k), (l), (m) 60CC(4), 61DA, 65DAA(1), (2), (4) |
| AMS v AIF (1999) 199 CLR 160 Mazorski v Albright (2007) 37 Fam LR 518 Moose v Moose (2008) FLC ¶93-375 R. Chisholm, “Recent Cases: To what extent can the court make orders that inhibit a parent’s right to relocate?” (2008) 22 Australian Journal of Family Law 154 |
| Applicant: | MS TIEGS |
| Respondent: | MR TIEGS |
| File Number: | CAC 1244 of 2009 |
| Judgment of: | Neville FM |
| Hearing date: | 26 November 2009 |
| Date of Last Submission: | 26 November 2009 |
| Delivered at: | Canberra |
| Delivered on: | 18 December 2009 |
REPRESENTATION
| Advocate for the Applicant: | Mr Howard as agent for Farrell Lusher, Solicitors Wagga Wagga |
| Advocate for the Respondent: | Mr Moore as agent for Friedlieb Byrne, Solicitors Wagga Wagga |
ORDERS
That the parties have equal shared parental responsibility for the children [X], born [in] 2004 and [Y], born [in] 2006 (“the children”).
That the children live in Wagga Wagga.
That the Mother establish the children’s residence in Wagga Wagga.
That the children live in a week about arrangement with the Mother and the Father with the timetable to be agreed between the parties.
That changeover at the commencement and conclusion of each week take place in a public place and or with the assistance of an independent third party as agreed between the parties.
That the children may communicate with the parent with whom they are not otherwise living at all reasonable times.
That the matter be adjourned to 19 May 2010 at 10:30am in Wagga Wagga.
IT IS NOTED that publication of this judgment under the pseudonym Tiegs & Tiegs is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1244 of 2009
| MS TIEGS |
Applicant
And
| MR TIEGS |
Respondent
REASONS FOR JUDGMENT
A. Introduction
This parenting case involves two young children – [X], who is five and who commences school next year, and [Y], who is three – who, since January 2009, have lived in a shared-care (week-about) arrangement with both parents.
For reasons explained later, Ms Tiegs (the Applicant) has been living on a farm outside [G] since approximately January this year. By profession she is [employed in the Education Industry]. Mr Tiegs, who has flexible working hours as a [tradesman], lives in Wagga Wagga.
Although Mr Tiegs seeks, as an alternative order that, in the event that Ms Tiegs does not return to Wagga Wagga, the children live with him, given that the children’s primary attachment has been with their Mother,[1] the reality is, in my view, that there are essentially two matters to resolve: (i) what time the children spend with their Father, and (ii) whether their Mother should be permitted, on an interim basis, to remain in the [G] area or return to the Wagga Wagga area so that the current shared-care arrangement can continue.
[1] See Family Report of Ms Dawson (19th November 2009), para.17.
The following reasons proceed by (i) setting out the orders sought by the parties (ii) considering the historical and factual narrative (agreed and otherwise), and (iii) applying the relevant jurisprudential considerations to the facts and circumstances before the Court.
B. Orders Sought
The Orders sought by the Applicant Mother are:[2]
[2] Minute of Interim Orders Sought by Wife: filed 16th September 2009.
1.That the children [X], born [in] 2004 and [Y], born [in] 2006 (“the children”) live with the Mother.
2. The parties have share parental responsibility of the children.
3. The Father spend time with the children as follows:
3.1. Until the commencement of school 2010;
3.1.1.In week one from 5:00pm Wednesday to 9:00am Saturday and each alternate week thereafter.
3.1.2.In week two from 5:00pm Wednesday to 5:00pm Sunday and each alternate week thereafter.
3.1.3.For a period of not less four hours on the children’s birthdays.
3.1.4.From 3:00pm Christmas Day to 12:00 midday Boxing Day in 2009.
3.2. From the commencement of school in 2010:
3.2.1.The first, second and fourth weekend of each month from 5:00pm Friday to 5:00pm Sunday.
3.2.2.For a period of not less four hours on the children’s birthdays.
3.2.3.Each Father’s day weekend from 5:00pm to 5:00pm Sunday if not the Father’s allocated weekend.
3.2.4.Easter Sunday from 8:00am to 5:00pm in 2011 and each alternate year thereafter, and on one day from 8:00pm to 5:00pm Easter 2010 and each alternate year thereafter, and on one day from 8:00am to 5:00pm in Easter 2010 and each alternate year thereafter.
3.2.5.From 3:00pm Christmas Day to 12:00 midday Boxing Day in 2011 and each alternate year thereafter.
3.2.6.From 12:00 midday Christmas Eve to 3:00pm Christmas Day in 2010 and each alternate year thereafter.
3.2.7.One week of each school holiday period, commencing 5:00pm Friday to 5:00pm the following Sunday.
3.2.8.For half the Christmas School holidays as agreed between the parties, and in the absences of agreement the first half of the child’s first Christmas School holidays and each alternate year thereafter.
4.If the children are spending time with the Father on Mother’s Day weekend, the Mother is to spend time with the children from 5:00pm Saturday to 5:00pm Sunday.
5.For the purpose of handover the Father will collect and deliver the children to the [T] Tavern at the allocated times.
6.That each party facilitate the child communicating with the other party whilst the child is in their care, if the need arises, by telephone, or every Wednesday for a minimum of 15 minutes during the hours of 5:00pm and 6:30pm.
7.That each parent shall authorise any school that the child shall attend to advise the other parent of any information they require, copies of all school reports, examples of school work, school newsletters, notification of all school activities, parent/teacher nights and inform the other parent of any emergency, re. medical or correctional treatment required by either of the children as soon as it is practical.
8.That in the even that either of the children suffer any illness or injury requiring medical attention or hospitalisation whilst in the care of either parent, then the parent shall immediately notify the other parent of such illness and the name of the medical practitioner or hospital to which the child has been taken.
9.That each parent shall advise the other parent of any change of any landline or mobile telephone numbers within 24 hours of that change.
10.Each parent shall notify the other parent of any change of address within seven days.
In the alternate and if the children are to attend school in Wagga Wagga:
1.That the children [X], born [in] 2004 and [Y], born [in] 2006 (“the children”) live with the Mother.
2. The parties share parental responsibility of the children.
3. The Father spend time with the children as follows:
3.1. In week one from 5:00pm Wednesday to 9:00am Saturday and each alternate week thereafter.
3.2. In week two from 5:00pm Wednesday to 5:00pm Sunday and each alternate week thereafter.
3.3. For a period of not less than four hours on the children’s birthdays.
3.4. From 3:00pm Christmas Day to 12:00 midday Boxing Day in 2009.
3.5. For a period of not less four hours on the children’s birthdays.
3.6. Each Father’s Day weekend from 5:00pm Saturday to 5:00pm Sunday if not the Father’s allocated weekend.
3.7. Easter Sunday from 8:00am to 5:00pm in 2011 and each alternate year thereafter, and on one day from 8:00am to 5:00pm Easter 2010 and each alternate year thereafter, and on one day from 8:00am to 5:00pm in Easter 2010 and each alternate year thereafter.
3.8. From 3:00pm Christmas Day to 12:00 midday Boxing Day in 2011.
3.9. From 12:00 midday Christmas Eve to 3:00pm Christmas Day in 2010.
3.10. One week of each school holiday period commencing 5:00pm Friday to 5:00pm the following Sunday.
3.11. For half of the Christmas School holidays as agreed between the parties, and in the absences of agreement the first half of the child’s first Christmas School holidays and each alternate year thereafter.
4.If the children are spending time with the Father on Mother’s day weekend, the Mother is to spend time with the children from 5:00pm on Saturday and 5:00pm Sunday.
5.For the purpose of handover, the Father will collect and deliver the children to the [T] Tavern at the allocated times.
6.That each party facilitate the child communicating with the other party whilst the child is in their care, if the need arises, by telephone, or every Wednesday for a minimum of 15 minutes during the hours of 5:00pm and 6:30pm.
7.That each parent shall authorise any school that the child shall attend to advise the other parent of any information they require, copies of all school reports, examples of school work, school newsletters, notification of all school activities, parent/teacher nights and inform the other parent of any emergency, re. medical or correctional treatment required by the children as soon as possible.
8.That in the event that the child suffers any illness or injury requiring medical attention or hospitalisation whilst in the care of either parent, then the parent shall immediately notify the other parent of such illness and the name of the medical practitioner or hospital to which the child has been taken.
9.That each parent shall advise the other parent of any change of any landline or mobile telephone numbers within 24 hours of that change.
10.Each parent shall notify the other parent of any change of address within seven days.
Orders sought by Respondent Father:[3]
[3] Response: filed 28th August 2009.
1.That the Mother and Father have equal shared parental responsibility for the children [X] born [in] 2004 and [Y] born [in] 2006.
If the mother lives in Wagga Wagga then:
2.The children live with each of the parent on a week about basis as follows:
a) With the Father: Week 1 from 5:30pm Wednesday until 5:30pm Sunday
Week 2 from 5:30pm Wednesday until 9:00am Saturday
b)With the Mother: Week 1 from 5:30pm Sunday until 5:30pm Wednesday
Week 2 from 9:00am Saturday until 5:30pm Wednesday
c) With the Father for four weeks of the 12 weeks of gazetted school holiday periods each year as agreed between the parties and each weekend of the Christmas school holiday from 5:30pm Friday to 5:30pm Sunday.
d) With the Mother for the balance of the school holiday periods in each year.
e) With the Father on the Father’s Day weekend in each year from 5:30pm Friday to 5:30pm Sunday.
f) With the Mother on the Mother’s Day weekend in each year from 5:30pm Friday to 5:30pm Sunday.
g) With the Father from 8:00am Christmas Eve to 5:30pm Boxing day in even numbered years commencing 2010.
h) With the Mother from 8:00am Christmas Eve to 5:30pm Boxing Day in odd numbered years commencing 2009;
i) At such other times as agreed between the parties.
3. That the parent with whom the children are not living may communicate with the children by telephone:
a) Each evening between 6:00pm and 7:00pm with the parent with whom the children are not living to instigate such calls; and
b) At all reasonable times with the children to instigate such calls and the parent with whom the children are living to facilitate such calls to the other parent.
4. That for the purpose of the children’s changeover from the Mother to the Father the Father shall collect the children from the Mother’s residence at the commencement of each period the children are to spend with the Father and the Mother to collect the children from the Father’s residence at the commencement of each period the children are to spend with the Mother.
5.That the Mother:
a) Keep the Father advised at all times of the current residential address and contact telephone number of the children.
b) Advise the Father immediately in the event that the children, or either of them, suffer any serious illness or injury.
c) Authorise any medical practitioner upon which the children, or either of them, may attend from time to time, to communicate with the Father in respect to the children’s medical condition and/or requirements.
d) Authorise all schools at which the children may attend, from time to time, to:
i) Provide the Father, at the expense of the Father copies of all school reports, school notices and school photographs in relation to the children;
ii) Communicate with the Father, either by telephone, in writing or by personal attendance, in respect to the children’s progress at their respective schools;
iii) Permit the Father to attend all school functions to which parents are normally invited.
6. That the Father:
a) Keep the Mother advised at all times of the current residential address and contact telephone number of the children.
b) Advise the Mother immediately in the event that the children, or either of them, suffer any serious illness or injury.
c) Authorise any medical practitioner upon which the children, or either of them, may attend from time to time, to communicate with the Mother in respect to the children’s medical condition and/or requirements.
d) Authorise all schools at which the children may attend, from time to time, to:
i) Provide the Mother, at the expense of the Mother copies of all school reports, school notices and school photographs in relation to the children;
ii) Communicate with the Mother, either by telephone, in writing or by personal attendance, in respect to the children’s progress at their respective schools;
iii) Permit the Mother to attend all school functions to which parents are normally invited.
If the Mother lives in [G] then:
1.That the Mother and Father have equal shared parental responsibility for the children [X] born [in] 2004 and [Y] born [in] 2006.
2.That the children live with the Father.
3.That the children spend time with the Mother as follows:
a) Each alternate weekend from after school Friday to 5:30pm Sunday;
b) During the weekdays of each of the first, second and third gazetted school holiday periods from 5:30pm the first Sunday until 9:00am on the middle Saturday and then from 5:30pm on the middle Sunday to 9:00am to the last Saturday;
c) For four weeks of the Christmas school holiday period commencing the first week in odd numbered years commencing 2009 and commencing the third week in even numbered years commencing 2010;
d) From 8:00am Christmas Eve to 5:30pm Boxing Day in odd numbered years commencing 2009;
e) On the Mother’s Day weekend in each year from 5:30pm Friday to 5:30pm Sunday
f) At such other times as agreed between the parties.
4.That the time the Mother spends with the children pursuant to Order 3 above shall be suspended on the Father’s Day weekend in each year.
5.That the Mother may communicate with the children by telephone:
a) Each evening between 6:00pm and 7:00pm with the Mother to instigate such calls and;
b) At all reasonable time with the children to instigate such calls and the Father to facilitate such calls to the Mother.
6.That the Father may communicate with the children by telephone during the time that the Mother spends with the children:
a) Each evening between 6:00pm and 7:00pm with the Father to instigate such calls: and;
b) At all reasonable times with the children to instigate such calls and the Mother to facilitate such calls to the Father.
7.That for the purpose of the children’s changeover from the Mother to the Father the Mother shall collect the children from the children’s school at the commencement of each period and the children are to spend with the Mother and the Father will collect the children from the Mother’s residence at the conclusion of each period the children are to spend with the Mother.
8.That the Father:
a) Keep the Mother advised at all times of the current residential address and contact telephone number of children;
b) Advise the Mother immediately in the event that the children; or either of them, suffer any serious illness or injury;
c) Authorise any medical practitioner upon which the children, or either of them, may attend from time to time, to communicate with the Mother in respect to the children’s medical condition and/or requirements;
d) Authorise all school at which the children may attend, from time to time, to:
i)Provide the Mother, at the expense of the Mother copies of all school reports, school notices and school photographs in relation to the children;
ii)Communicate with the Mother either by telephone, in writing or by personal attendance, in respect to the children’s progress at their respective schools;
iii)Permit the Mother to attend all school functions to which parents are normally invited.
9. That the Mother:
a) Keep the Father advised at all times of the current residential address and contact telephone number of the children;
b) Advise the Father immediately in the event that the children, or either of them, suffer any serious illness or injury;
c) Authorise any medical practitioner upon which the children, or either of them, may attend from time to time, to communicate with the Father in respect to the children’s medical condition and/or requirements.
C. Historical Narrative
The parties had lived together, off and on, from 1996 to 2002. They married in April 2003 and separated in May 2008.
Surprisingly, and typically, there are some contested issues surrounding some not unimportant matters between the parties. For example there is some significant distinction between what each parent says were the circumstances that gave rise or led to the separation between them. At this stage of the proceedings, not only do I not have to make any findings in relation to such matters, but in any event they are not particularly helpful in resolving the basic issue that is formally before the Court at the present time, namely, what orders should be made that are in the best interests of the children.[4]
[4] Section 60CA Family Law Act1975 (Cth) (“the Act”).
Similar comments might also be made in relation to allegations of domestic violence during the marriage but which, for the most part, it would seem, were not usually reported to the police.
A third area in relation to which no formal findings need to be made at this stage concern a number of documents referred to in the affidavits filed. For example, in paragraph thirty-one (31) of Ms Tiegs’ Affidavit sworn on 22nd of July 2009, she refers to a “parenting plan.” She says that this plan provided for `parenting arrangements to be reviewed before [X] started school.’ Although that time has now arrived, the parenting plan was not annexed to or otherwise provided to the Court. It would have been helpful if the Court had a copy of it. In any event, the existence of such a plan not unreasonably suggests that there has been, at least, a business-like capacity on the part of both parents to agree on matters concerning the care and welfare of the children.
Likewise, in the Father’s Affidavit sworn on the 27th of August (para.25), he refers to a further agreement between the parties but it, too, was not sighted. Indeed, Mr Tiegs says that he has not seen it since it was signed. Like the `parenting plan’, it would have been helpful if both documents had been provided to the Court. The previous remarks concerning co-operation apply similarly here. Hopefully before any further judicial assistance is required, copies of both documents will be provided.
As I have already mentioned, Ms Tiegs is [employed in the Education Industry]. She is on leave for 12 months from a [business] in Wagga Wagga. She advised the Court that although on leave from that [business] she does not have an option of resuming [work] there in 2010. I also understand that her application for a permanent position in [G] has not been successful and therefore she will be seeking to [work] on a part-time basis in [G] in 2010. In such circumstances, the Court might not unreasonably opine that, given that Wagga Wagga is a significantly larger metropolis than [G], her employment prospects (and presumably other things, mutatis mutandis, for the children) may be more advantageous in the former than the latter.
Ms Tiegs maintains and formally submits to the Court that her move to [G] was with the Father’s approval early in 2009. For his part, Mr Tiegs explains the circumstances, and the conditions, upon which that agreement was entered into, obviously or seemingly on an informal basis. According to that explanation there was neither agreement for an indefinite move to [G], nor any indication that it was anything other than an arrangement for this calendar year.[5] Again, I can make little by way of formal finding in relation to this matter.
[5] See Mr Tiegs’s affidavit filed on 28th August 2009, paras.29-39.
In his material, Mr Tiegs does a number of things. First, he maintains his genuine concern about the risk to his relationship with the children if the current shared care arrangement is not able to continue. Secondly, he raises an issue (albeit at a somewhat lower level) of a friend of Ms Tiegs who is staying with her and who, he says (indeed it is confirmed in Ms Tiegs’s more recent affidavit material), suffers from depression. Ms Tiegs says that the depression of her friend is controlled by medication, and more than adequately so. Mr Tiegs suggests that this friend also has an issue in relation to the consumption of alcohol.[6]
[6] Ibid., para.50.
As the Full Court observed in Goode v Goode it is unlikely if not impossible (not to mention unwise) to make many or any findings at an interim hearing of largely untested evidence.[7]
[7] (2007) 36 Fam LR 422 especially at [74] & [82].
Fortunately, the Court has the benefit of the Report from a Family Consultant, Ms Dawson, dated 19th November 2009. For the purposes of these proceedings, on the basis of the principles articulated by Warnick J in SPS & PLS,[8] her Report may be taken to have been admitted into evidence.
[8] (2008) FLC ¶93-363 especially at [7] – [19].
D. The Family Report
I will not traverse the background that Ms Dawson raises in her report concerning the sometimes difficult relationship between the parents. For my part, at this stage of the proceedings, of more moment are
Ms Dawson’s comments regarding her observations of the children and her assessment of the parents in relation to them. Indeed, it is important to set out in full Ms Dawson’s assessment in these respects.
At paragraphs 15-20 of her Report, Ms Dawson said:
15 Ms Tiegs expressed awareness that the situation is going to have the same aspects as relocation for the children, as they will see less of a parent. She has stated that if the Court ordered the children to remain with the father, she would relocate nearer the father even though that is not her wish. She was adamant that she retain strong and positive links with the children. She believes that they are still emotionally dependant on her. They are both young and would retain emotional attachment to her as their primary parent. [X] reinforced this as he sought out his mother during her assessment at the Court.
16 The violence Ms Tiegs has experienced, could exacerbate a lack of well-being for her if she were living closer to Mr Tiegs. Some distance between the parties may create peace for both.
17 Mr Tiegs presented as anxious that he maintain a close relationship with his children as he loves them, and this affection is reciprocated. He believes that they could live mainly with him with minimal negative affects. He appeared to accept that their mother had been their primary attachment, but appeared not to understand that less of her at their ages and stages could be emotionally negative for them. This is because they also have positive and close relations with their father. Mr Tiegs, who is dealing with his anger, appeared to minimize the situation although he appeared to understand that violence for children is negative, as he was adamant that he remains controlled with the children.
18 Once the children start school they are going to see less of both parents. The distance in this case is not so lengthy for frequent informal visits not to be possible, for school events for example. Ms Tiegs offers more frequent weekend time for the children with their father. She did not appear to be undermining his relationship with the children, in spite of her concerns over the family violence that has occurred.
19 At the children’s ages and stages, especially for [Y], ongoing contact with their primary carer is important, especially emotionally. The children and Mr Tiegs are likely to miss their previous times together, however the children will be engaged with school and they will see their father most weekends. Given that Mr Tiegs’s employment demands an early start, seeing the children at weekends is likely to offer quality time for them all.
20 If the children remain with their mother they will need frequent phone calls with their father, and possibly extra time during the holidays, if he is able to support this with his employment.
I emphasise the following matters noted by Ms Dawson (some of which have already been set out in the previous paragraph of these reasons). Firstly, at the outset of her assessment she recorded, at para.15: “She [Ms Tiegs] has stated that if the Court ordered the children to remain with the Father, she would relocate nearer the Father even though that is not her wish.” Next, Ms Dawson stated (para.17): “He [Mr Tiegs] appeared to accept that their Mother had been their primary attachment, but appeared not to understand that less of her at their ages and stages could be emotionally negative for them.”
In the light of these and similar comments in her Report I do not consider it to be in the children’s best interests for them to reside primarily with their Father and spend reduced time with their Mother. Given that primary attachment has been and remains with their Mother, in my view, it is in their best interests for their Mother to remain their primary attachment figure and for the children to reside with her, at the very least, on a shared care (equal time) basis. Obviously, in the light of Ms Dawson’s findings and my emphasis and reliance on her unchallenged opinion, a number of practical consequences flow from them. I will get to them in due course.
E. Jurisprudential Considerations
For this case, the jurisprudential lodestars include, in particular, the following Full Court decisions: Mazorski v Albright, Morgan v Miles and Mulvany v Lane.[9] I hasten to note, too, that the judicial landscape is not completely clear in cases of this kind because we all await the High Court’s reasons in MRR v GR.[10]
[9] Respectively, (2007) 37 Fam LR 518 , (2008) 38 Fam LR 275 & (2009) 41 Fam LR 418.
[10] [2009] HCA Trans 316.
I respectfully adopt what Brown J said in Mazorski v Albright firstly in relation to her increasingly famous ‘twin pillars’ overview of the principles, import and operation of Part VII of the Family Law Act1975 (“the Act”), and secondly, her Honour’s detailed description of what constitutes a ‘meaningful relationship’ for the purposes the Act.
I note that Brown J’s comments in relation to the `twin pillars’ overview, and in relation to a `meaningful relationship’ where endorsed by Boland J (with whom May J agreed) in the Full Court decision of Moose v Moose.[11] I note also that Brown J’s discussion of ‘meaningful relationship’ was endorsed by a separate Full Court in McCall v Clarke.[12]
[11] Moose & Moose (2008) FLC ¶93-375 at [1] – [2] & [67] – [69].
[12] McCall v Clark (2009) 41 Fam LR 483 at [121].
In Mazorski v Albright, Brown J said, at [3] – [6]:
The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
In Mazorski v Albright, Brown J also said, at [20] – [26]:
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA(2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
F. Application of Statutory Pathway to Historical Narrative
This case is finely balanced in a great many respects. So much is evident on the facts as set out above, and I take the same balancing act to be evident in Ms Dawson’s even-handed Report. Indeed, subject to the injunction that requires the Court to consider the various matters in the statutory pathway that pertain specifically to the facts of this case,[13] Kirby J’s comment in AMS v AIF is apposite.
[13] Rather then specify each specific paragraph of the pathway that is being considered, unless otherwise required, or unless otherwise specified, I should be taken to follow the order of matters sequentially as they appear, firstly in section 60B, and secondly, in section 60CC – both in relation to the primary and the additional considerations.
In AMS v AIF, his Honour said, at [150]: “... an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved.”[14] I have added the self-evident emphasis.
[14] AMS v AIF (1999) 199 CLR 160 at p.211.
In my view, to a significant degree, there are two crucial or `tipping’ points in this case. The first is the obvious, meaningful relationship which both, quite young, children have with both parents. I have already noted Ms Dawson’s observation of the positive interaction between the parents with the children.
Given their young ages, notwithstanding the proposal from Ms Tiegs for the children to spend three weekends out of four with their Father, and leaving aside the not insignificant travel involved in such a proposal, in my view, there is a reasonable or not insubstantial risk of the children’s currently good and meaningful relationship with their Father being compromised by Ms Tiegs remaining in [G] and the children going to school in [G].
I am reinforced in this view having regard to Brown J’s observations regarding what constitutes a “meaningful relationship” in Mazorski v Albright to which I have referred earlier in these reasons.
The second reason has two aspects to it: (a) the somewhat contested circumstances under which Ms Tiegs moved to [G], and (b) the significant concession made by Ms Tiegs that she will move back to Wagga Wagga in the event that the children are not permitted to live with her in [G] and go to school in [G]. I take the latter to evidence – and this is very much to her credit – that Ms Tiegs will quite readily put the interests of the children above her own preference to continue to live on the farm.
I have previously noted that I am unable to make any formal findings about the Mother’s move to [G] earlier this year. Each party presents a different version of the circumstances under which that occurred. But on either account, in my view, the move to the farm outside [G] was not, nor could it be, seen to be much more than Ms Tiegs’s wish to move there. She did so at the time still with some not insignificant ties to Wagga Wagga. In particular I note that she had taken leave of absence, as opposed to resigning, from her [occupation] in that city. Thus it may at least be inferred that she had not severed her ties with Wagga Wagga. Indeed, it may also be inferred that she was seeking to `hedge her bets’ in the event that either she returned to work in Wagga and or that she did not secure an appropriate position elsewhere.
I make these remarks not to criticise Ms Tiegs, but essentially to highlight that her living situation on the farm, and her work situation, was and remains somewhat fluid – to some degree at least. Indeed, her action in taking “leave of absence” from her previous employer may be seen as very prudent, notwithstanding that, as I understand the situation, she does not now have that position.
To return to the children and their best interests,[15] it is clear from
Ms Dawson’s report, nor is it denied by either parent, that both children have a good and close relationship with both their parents.
[15] Cf. s.60CA.
Summarily stated, the issue for consideration and determination is what parenting orders will ensure that the occasional conflict between the parents and the propensity of sorts exhibited by Mr Tiegs to express anger, frustration and other things towards Ms Tiegs, which sometimes has resulted in some physical violence directed towards her (presumably, to some degree, related to the breakdown of the relationship), can be obviated, as well as ensuring that the children are not in any way exposed to such conduct.
I note again that, notwithstanding the difficulties in the relationship, the evidence of both parties is that they have nonetheless been able to negotiate arrangements regarding the children, and to do so on a number of occasions.
I note that Mr Tiegs (up to a point) is seeking to prevent any manifestation of frustration and anger by attending an anger management course. That said, it is important to recall Ms Dawson’s observations that he has had a tendency in the past to downplay somewhat his anger issues and the manifestation of them towards
Ms Tiegs. In no shape or form can such conduct be condoned or excused.[16]
[16] See the following sections that relate to the Court’s responsibility to consider such matters: s.60B(1)(b), s.60CC(2)(b) and s.60CC(3)(j).
Ms Dawson’s observation that some physical distance between the parents would be advantageous is important also. In my view that distance can occur in the Wagga Wagga region. Until the necessary therapeutic interventions can be appropriately pursued by the parties, and for time to effect some further measure of healing in relation to the broken relationship, it would also be advantageous for such things like change-overs and the like either to take place in a public location and or with the assistance of a third party.
By having the parents in much closer (but not too close) proximity, and having regard to the increasing demands on the children with [X] due to start school next year, by both parties being in the Wagga Wagga area, in my view, that would facilitate, in accordance with s.60B(1)(a), that the children have the benefit of both of their parents involved in their lives, to the maximum extent consistent with their best interests.
The matter to which I have already referred concerning physical distance, changeovers at a public place and intervention of third parties will, in my view, to a significant degree protect the children from any likelihood of being exposed to any abuse or family violence between their parents.
In my view also, by the parents being in the Wagga Wagga region the children will have a much better chance of adequate and proper parenting from both parents whereby the parents will be able to fulfil their duties and meet their responsibilities concerning the care, welfare and development of the children much more easily than if Ms Tiegs were to remain in [G] or thereabouts.
In this regard I note (again) the concession (but not her desire) that if necessary she would return to the Wagga Wagga area in order to ensure that she maintained more regular contact and the relationship with her children. Curiously, this concession was on the basis that orders were made that the children were to live primarily with their Father. She seems not have considered, at least in her orders, returning to Wagga Wagga and the children living with her. That is certainly what I contemplate happening as a result of the orders made in the current proceedings.
Accepting that there is significant overlap between section 60B and the primary considerations in section 60CC(2), and having already referred to them, I move more specifically to the additional considerations in s.60CC(3).[17]
[17] Unless required, I will not refer to specific sub-paragraphs, but should be taken to follow them sequentially.
Given the ages of the children there are no specific views that have been expressed by them. However Ms Dawson notes that she saw the children who were not only friendly with her but viewed them engaging positively with each parent.[18] These matters and others noted by Ms Dawson are also relevant to confirm the Court’s ability to make a finding that the children have a good relationship with both parents.
[18] See paragraph 14 of the Report.
On the limited evidence available to the Court, notwithstanding the concerns expressed by Ms Tiegs in relation to the occasional outbursts of Mr Tiegs towards her, to the degree that they are able, at the moment (and not insignificantly so) both parties seem to have a reasonable willingness and ability to facilitate and encourage a close and continuing relationship between the children and the other parent. This seems to be especially so in relation to Ms Tiegs.
In the event that Ms Tiegs stayed in [G] and the children were schooled in [G] (as proposed by Ms Tiegs) thereby reducing Mr Tiegs’s time with his children to weekends only (albeit on a regular basis), given the ages of the children, in my view, there would be some prospect of the children having a slightly more fractured and disrupted relationship with their Father. In such circumstances, in my view, it is in their best interests for the parents to live as close as possible to each other while maintaining a respectful and appropriate distance to ensure none of the instances of the past have an opportunity to reappear.
On the basis that the parents do live in relative proximity to each other, matters of practical difficulties and expense do not arise.
In passing I note that Ms Tiegs’s expressed wish to live on a farm and enjoy country life, and to raise the children in such an environment, is not, in my view, significantly hampered by her returning to Wagga Wagga. This is because she will have regular opportunity with the children to return to the family farm which is not so far removed from the Wagga region. This is evidenced by the way the relationship and time with the children, up to this stage, has been conducted with
Mr Tiegs.
In my view, on the evidence available to the Court at the moment, there are no issues that arise under paragraphs (f), (g) and (h) of the additional considerations of section 60CC. In relation to the remaining matters in that section, namely, (i), (j), (k), (l) and (m), in my view, these matters have already been satisfactorily addressed in earlier remarks.
I note that in so far as section 60CC(4) is concerned, again the evidence to which I have referred suggests that the parties have the capacity to deal with making decisions about major long-term issues in relation to the children, to make arrangements for the other to spend time with the children, and (notwithstanding some past issues) to communicate with them as well.
There is no issue also as between the parties as to whether or not an order should be made for equal shared parental responsibility. Both parents seek such an order; in my view, the evidence does not prohibit such an order: it will be made.
In the light of what I propose, namely that there continue to be an equal shared care (equal time) arrangement, the requirements of s.65DAA are, in my view, readily satisfied.
It remains only to consider, if it needs to be, whether or not a formal order should be made for the Mother to return to the Wagga Wagga region in the light of the concession that she has previously made. I raise this because there was no formal discussion in the course of the interim hearing regarding the Court’s powers, pursuant to the Full Court decision in Sampson v Harnett (No 10).[19]
[19] (2008) 38 Fam LR 315.
In his commentary on Sampson v Hartnett (No 10), Professor Chisholm discussed the [usual] three ways in which courts traditionally have dealt with relocation. The learned former Justice of the Family Court said: “The second way an order could inhibit a parent’s choice of residence is by imposing particular obligations that the parent could not comply with unless the parent lived in a particular place.”[20]
[20] R. Chisholm, “Recent Cases: To what extent can the court make orders that inhibit a parent’s right to relocate?” (2008) 22 Australian Journal of Family Law 154 at p.155.
It seems to me that an order in such or similar terms should be made in this case. In my view, it would be in the children’s best interests to have their parents in closer physical proximity to each other than their current abodes allow – but respecting proper boundaries and other matters to which I have referred. In the words of s.60B(1)(a) of the Act, such a course will ensure that `the children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children.’
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: J. Curtis/D-R Gale
Date: 18 December 2009
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