Timms and Payton

[2015] FCCA 3324

FEDERAL CIRCUIT COURT OF AUSTRALIA

TIMMS & PAYTON [2015] FCCA 3324

Catchwords:
FAMILY LAW – Parenting – whether the mother should be permitted to relocate with the child on an interim basis – where the alternative of the child remaining in the father’s care is not in child’s best interests – interim relocation allowed.

Legislation:

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

Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4

Applicant: MR TIMMS

Respondent: MS PAYTON

File Number: WOC 533 of 2014

Judgment of: Judge Altobelli

Hearing date: 9 November 2015

Date of Last Submission: 9 November 2015

Delivered at: Wollongong

Delivered on: 18 December 2015

REPRESENTATION

Solicitors for the Applicant: Hansons Lawyers

The Respondent appeared in person

Solicitors for the Independent Children's Lawyer: Verekers Lawyers

ORDERS PENDING FURTHER ORDER

1. The Child, X born (omitted) 2004 (“the Child”), live with the Mother.

2. The parents have equal shared parental responsibility of the Child.

3. The Mother be permitted to relocate with the Child to (omitted), New South Wales.

4. The Child spend time with the Father, subject to his availability having regard to his roster, as follows:

   (a)each alternate weekend from after school on Friday to 4:00pm Sunday; and

   (b)half of each school holiday period.

5. For the purposes of implementing Order (4) above, changeover is to occur at McDonald’s Restaurant in (omitted).

FURTHER ORDERS

1. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and in particular:

   (a)to consider the factors in sections 60CC and 65DAA of the Family Law Act1975;

   (b)to consider issues raised in the Family Consultant’s Memorandum to Court;

   (c)to profile of the parents (and other significant adults);

   (d)to assess the parents interactions (and those of other significant adults);

   (e)to assess the children’s developmental and emotional state;

   (f)to assess the relationship of the children to the parents (and other significant persons);

   (g)to ascertain the wishes of the children unless inappropriate by reason of age or other special circumstance;

   (h)to assess the proposed and actual home environments; and

   (i)to assess the proposals of each party as to the children’s future.

2. The Family Consultant is granted leave to inspect all documents produced in response to Subpoena.

3. If the Family Consultant is unable to inspect documents produced in response to Subpoena at the Wollongong Registry of the Commonwealth Law Courts, the Registry Manager upon receiving a request from the Family Consultant, is to forward such documents to the Registry nominated by such consultant to permit such inspection.

4. The report be released by 20 October 2016, if practicable, and unless otherwise arranged with Chambers.

5. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

6. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the Child/ren to whom these proceedings relate:

   (a)a Children’s Court;

   (b)a child protection authority;

   (c)a State or Territory legal aid authority; and

   (d)a convener of any legal dispute resolution conference.

7. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

8. Following release of the Family Report and prior to the adjourned date, the parties file and serve a minute of final order sought by each of them as to parenting.

9. The matter be adjourned to 10 November 2016 at 9:30am for Mention.  The parents must attend in person with their legal representatives if the Report is available prior to the adjourned date.

10. The matter be listed for a 2 day Final Hearing commencing 15 December 2016 at 10:00am in the Wollongong Registry.

11. Both parties file and serve any Amended Application / Response upon which they intend to rely by no later than 1 December 2016.

12. Each party is to file and serve one consolidated Affidavit in support of the orders sought by them, together with any other witness’s affidavits by no later than 1 December 2016.

13. Neither party may rely on any documents filed after 1 December 2016 without leave of the Court, and in the event of non-compliance with these filing directions the Court will at its discretion either vacate the trial dates or list other matters with priority.

14. Each party is to file and serve a Case Outline document by no later than 4:00pm on 8 December 2015, setting out:

    (a)a list of documents to be read in their case;

    (b)a precise Minute of Orders Sought;

    (c)a list of objections to evidence and the basis for such objection;

    (d)a brief summary of argument touching upon the matters set out s.60CC of the Family Law Act 1975, with reference to the relevant evidence relied upon;

15. The Applicant is to comply with the payment of any setting down and/or daily hearing fee in accordance with Rules 24.03 and 24.04 of the Federal Circuit Court Rules 2001 or as otherwise directed by the Registry Manager by the date of filing of further material.

16. In the event that either party wishes to cross examine the Family Report Writer at the final hearing, that party shall provide written notice to the Family Report Writer within 14 days from this date or in the event that the Family Report is not yet released then within 7 days from the date of receipt of the report and in the event that no notice is given to the Family Report Writer and the Family Report Writer is unavailable the Family Report will be admitted into evidence without cross-examination subject only to evidentiary objection.

17. Both parties and the Independent Children’s Lawyer are granted leave to issue such Subpoena as they consider relevant to the issues before the Court.

NOTATIONS

(A)At the date on which a copy of the Report is to provide to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

(B)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

(C)In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 11 herein, they shall write to the Chambers of Judge Altobelli seeking that the matter be listed on short notice for their objection to be heard.

(D)A party’s trial Affidavits will not be read until the Case Outline document has been filed and served in accordance with these directions, which may result in the Final Hearing dates being vacated, other matters being listed with priority, or the matter becoming part-heard.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 533 of 2014

MR TIMMS

Applicant

And

MS PAYTON

First Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment explain the interim orders that the Court has made in relation to a child, X, born (omitted) 2004.  X is 11 years old.  The Applicant in the substantive proceedings is her father, and the Respondent her mother.  On an interim basis, the Mother seeks orders that would enable her to relocate with X to (omitted), which is on the (omitted) of New South Wales.  At the moment, X and both of her parents live in the (omitted) region of New South Wales.

Background

1. This case was originally set down for final hearing commencing on 10 September 2015.  At that time the only issue was about how much time X should be spending with her father.  However, the Mother announced that she wanted to relocate to (omitted) and to take X with her.  Accordingly the final hearing had to be vacated, a Child Inclusive Conference was ordered and an Independent Children’s Lawyer appointed.  The interim orders proposed by the Mother in her Amended Response filed 28 August 2015 was heard by this Court on 9 November 2015.  At this interim hearing, the Mother continued to represent herself, the Father was represented by his solicitor, Mr David, and X had her own lawyer, Mr Williamson. 

2. X’s father is 50 years old, her mother is 44 years old, and X has a stepsister, Y, on her mother’s side, who is 17 years old.  X’s parents married in 2003 and commenced living in a suburb of (omitted).  The relationship ended in 2013 with X and her mother, and Y, moving to live to another home in (omitted).  Between October 2013 and early 2014 X spent regular time with both her parents.  Parenting and property proceedings were commenced by her father in June 2014 and then on 21 August 2014 the parents entered into consent orders providing for equal shared parental responsibility, for X to live with her mother, but to spend time with her father from after school on Friday until 5:00pm on the following Sunday two weekends in each calendar months, and each Wednesday from after school to the commencement of school the next day, together with school holidays, in each case to work around her father’s roster commitments.  These orders appear to have worked reasonably well. 

3. By way of further consent orders on 25 November 2014, X’s parents entered into final orders about property settlement. 

4. The Father opposes the move to (omitted), as does the Independent Children’s Lawyer on X’s behalf. However, there are some uncontested facts. For example, and significantly, the Father has indicated that he is prepared to spend time with X each alternate weekend and during school holidays, subject to his work roster. This is the proposal that is advanced by the Mother, should she be allowed to relocate. The Father has indicated he is prepared to do the necessary travelling. Moreover, the Mother has indicated to the Court, in the clearest possible terms, that whatever order the Court makes in relation to X, she will move with Y to (omitted) in December 2015.

5. Another uncontested fact relates to X’s views which were contained in a Child Inclusive Conference Memorandum produced following a conference on 4 November 2015.  X would prefer not to move.  She is in fact “sad” that her mother has purchased away from the area in which she has always lived.  X wants to complete her primary education at the primary school where she currently attends.  It is the only school she has ever attended.  X really wants to attend a local performing arts high school, which, of course, is only possible if she doesn’t relocate with her mother.

6. Moreover, the uncontested observation of the Family Consultant is that X is settled in her current parenting arrangements and enjoys school, and prefers there be no significant change to her living arrangements, at this stage.  She loves and is loyal to each off her parents.  There are no indicators that she is aligned with either parent.

7. This is a difficult decision to make.  X clearly doesn’t want to go.  Her mother is committed to moving, in any event.  The Father is committed to spending time with X, should relocation be permitted.  However, his preference is that the mother not move with X, but that if she does, X should live with him and spend time with her mother. 

The Evidence

1. The Applicant Father relied on the following documents:

   ·Amended Initiating Application filed 30 September 2015;

   ·Affidavit of Mr Timms filed 9 September 2015; and

   ·Affidavit of Mr Timms filed 23 June 2014.

2. The Respondent Mother relied on the following documents:

   ·Amended Response filed 28 August 2015;

   ·Affidavit of Ms Payton filed 28 August 2015; and

   ·Affidavit of Ms R filed 3 November 2015.

3. The Court also had the benefit of exhibit ICL1, being the Child Inclusive Conference Memorandum of 4 November 2015.

The Applicable Law

1. In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’) the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)     The objects of this Part are to ensure that the best interests of children are met by:

   (a)     ensuring that 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 child; and

   (b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

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

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

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)     to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)     When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)     family violence.

   (3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)     If:

   (a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends or holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)     how far apart the parents live from each other; and

   (b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)     the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

5. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

   (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;

   (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);

   (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;

   (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;

   (d)  the likely effect of any changes in the child's circumstances, 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;

   (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;

   (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;

   (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)  any family violence involving the child or a member of the child's family;

   (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;

   (l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)  any other fact or circumstance that the court thinks is relevant.

1. In MRR v GR [2010] HCA 4, the High Court said

   8.  Sub-section (1) of s 65DAA is headed "Equal time" and provides:

   "If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents."  (emphasis added)

   Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

   "(c)    consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."

   Sub-section (3) explains what is meant by the phrase "substantial and significant time".

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

3. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

Discussion

1. The Independent Children’s Lawyer, Mr Williamson, quite properly identified the dilemma that the Court faced, that is, in the circumstances the question was not so much what was in X’s best interests, but where was the least of her worst options. The Mother was committed to relocating anyway, notwithstanding X’s wishes. The Father’s candidature to become the primary carer for X was not a strong one.

2. In reality, this is not a case where the meaningful relationship that X has with either of her parents would be affected by any order that the Court makes. Whether X lives with her mother on (omitted), or with her father in (omitted), she will always enjoy a meaningful relationship with both of her parents, both of whom, it would seem, are ready, willing and able to continue to facilitate that relationship. This is not an issue that determines the present Application.

3. Whilst in earlier affidavits in these proceedings both parents raised issues about risk of harm directed to the other parent, those issues barely rated a mention in terms of the present Application.  If there were issues about risk of harm, certainly neither party sought to adduce independent evidence corroborative of their assertions.  Doing the best the Court can, on the evidence available to it, there are no issues about protecting X from harm in the care of either of her parents.

4. The strength of X’s views, as articulated to the Family Consultant, and reflected in the Child Inclusive Conference Memorandum, is a strong factor contraindicating the making of an order that would allow her mother to relocate X.  She doesn’t wish to move or to change schools.  She is of an age where her views need to be listened to and, if possible, respected.  However, all parties recognise that whilst X’s views are certainly relevant, and probably an important consideration, it is not the only consideration that the Court must take into account.

5. X appears to have a good relationship with both of her parents, but the evidence leaves the Court in no doubt that the Mother has historically been X’s primary carer. There have been times when the Father has cared for X for extended periods, including times when Y has been ill and her mother has had to attend to her. The reality is, however, that hitherto the Father’s time with X has been very much dependent on a coincidence of X’s availability and his being rostered off. He is an (occupation omitted) at (employer omitted) in (omitted). The Father’s own evidence is that, if X came into his care, he would be dependent on the assistance of others to get her up each morning and off to school and care for her after school. He deposes to his present roster involving being on day shift for five school days a month and then on night shift for seven nights a month. He would be dependent on his nephew, aged 18, and a neighbour. The nature of X’s relationships with these people is unknown, but the reality of the Father’s proposal is that much of her day‑to‑day care would, in fact, be delegated to others.

6. The Mother’s proposal would bring about significant, and unwanted, change in X’s life, but at least she remains living with the person who has been her main carer.  In reality, the alternative proposal of not permitting X to relocate with her mother presents significant change, albeit not necessarily change as to her environment.  The impact of change for X if her father’s proposals to care for her were implemented, must not be underestimated.  The reality is that, whatever the Court’s decision, X will face significant changes in her life.

7. The impression formed from the evidence is that the Mother’s new home at (omitted) is in excess of two hours’ drive south of where the family presently lives.  The Mother has suggested, and the Father has agreed, that they meet halfway in (omitted) on a Friday and Sunday for changeovers to take place.  The issues of practical difficulty and expense therefore do not appear to be insurmountable, particularly in circumstances where the Father has signalled to the Court a willingness to do just this, even if it is not his main proposal. 

8. If one were to place weight on the earlier allegations that each parent made against the other pertaining to risk of harm issues, the Court would be concerned about issues of parental capacity for both of X’s parents.  In an earlier Child Inclusive Conference on 5 November 2014, both made admissions about excessive alcohol consumption, leading to aggression during their relationship. There is no evidence before the Court, however, to suggest that issues of parenting capacity continue to exist. Neither of the proposals advanced by the parents reflect any concern by the other in relation to this. The impression formed from the evidence, albeit untested, is that both parents are able to provide all of X’s needs.

9. Of real concern to the Court is the attitude of the Mother in suggesting that she will move, irrespective of whether X comes with her. This is a worrying attitude. It prioritises her needs over those of X. The reasons that she gives for the move are primarily financial and lifestyle, but have not been carefully scrutinised and, quite frankly, sound hollow. Nonetheless, the Court has to make a decision that is in the best interests of X, and not allow itself to be distracted by issues of parental culpability.

10. When all these considerations are weighed in the balance, it must be recognised that the decision could go either way.  However, a decision needs to be made before the end of school term so that X can move during the school holidays and be enrolled and commence in a school closer to her home, should relocation be allowed.  Whilst the case is finally balanced, the Court believes that the least of the worst options is, in fact, X relocating with her mother. 

11. X’s father is an unknown quantity in terms of being a primary carer, and the proposals that he advances for caring for X whilst he is at work are highly problematic, to say the least. X’s views are, of course, important but in the circumstances of this case the Court decides that it is more important for her to continue to have the benefit of her mother as her primary carer, even if that means she cannot have what she wants. The important relationship that she has with her father will not be lost because of the frequency of the time that she will spend with her father.

12. The risk, of course, is that by making this interim decision, the order becomes irreversible at a final hearing.  In reality, that is not the case.  A final two day hearing can be appointed before the end of 2016 to decide where X will live in 2017, which is the year she starts high school.  The weight that might need to be afforded to her view could be considerably greater, as she will be older and more articulate.  There will be opportunity, in the meanwhile, to see whether the Mother’s commitment to support X’s relationship with her father is, in fact, carried out and implemented.  In short, this interim decision is not irreversible on a final basis, and both parents need to recognise this. 

Orders

1. The orders that are described by the Mother were, in effect, for her to be allowed to relocate with X to (omitted), but for X to spend time with her father each alternate weekend, and during school holidays, subject to the Father’s roster. In her Affidavit, she deposed to being prepared to meet halfway at (omitted). Orders will be made to reflect this. There is no evidence before the Court to suggest that the existing order for equal shared parental responsibility should be changed in any way.

2. Accordingly, the orders will provide for there to be equal shared parental responsibility, for X to live with her mother, and spend time with her father each alternate weekend from after school on Friday through to late Sunday afternoon, together with half the school holidays, in each case subject to her father’s availability having regard to his roster, and on the basis that changeover takes place in (omitted).  The Mother did not actually set out detailed orders, so the orders proposed by the Father will become the template for the present orders.  The matter will be set down for final hearing in late 2016, as a two-day matter.  A Family Report will need to be ordered. 

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:  18 December 2015