WABLE & WABLE
[2011] FamCA 995
FAMILY COURT OF AUSTRALIA
| WABLE & WABLE | [2011] FamCA 995 |
| FAMILY LAW – JURISDICTION – parties and child are Australian Citizens – live & work in Country C prior to and since separation – section 69E Family Law Act – mother submitted to jurisdiction – neither party takes issue with the entitlement of Family Court to determine the dispute or enforceability of its orders FAMILY LAW – CHILDREN – parental responsibility – child enjoys meaningful relationships with both parents and would benefit from maintaining those relationships – child not in need of protection from physical or psychological harm whilst in either party’s care – orders parents to have equal shared parental responsibility for the child FAMILY LAW – PARENTING ORDERS – relocation of child - with whom a child shall live – where a child should live - father sought orders for child to live in Sydney in order to commence primary education – mother sought orders for current parenting arrangement to continue – child live in Country C with mother and spend substantial and significant time with father – section 64B Family Law Act – an order compelling child to live in certain geographical location is not a parenting order – father’s view that child suffered more health problems overseas and would receive a better education in Australia - no proper basis for the court to find the child’s best interests warrant his return to live in Australia FAMILY LAW – CHILDREN – with whom a child shall spend time –Family Consultant proposed the continuation of current regime – current regime has proven over the years to be reasonably practicable to implement - serves best interests of child – orders stipulating a parenting regime depending on the proximity of the parties permanent residence – orders if parents live within 50 kilometres of each other child to live with mother and spend substantial and significant time with father. |
| Evidence Act 1995 (Cth) s 140 |
| AMS v AIF (1999) 199 CLR 160 |
| APPLICANT: | Mr Wable |
| RESPONDENT: | Ms Wable |
| FILE NUMBER: | SYC | 1406 | of | 2010 |
| DATE DELIVERED: | 21 December 2011 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 28 and 29 November 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms De Vere |
| SOLICITOR FOR THE APPLICANT: | Barkus Doolan Kelly |
| COUNSEL FOR THE RESPONDENT: | Mr Schonell SC |
| SOLICITOR FOR THE RESPONDENT: | Paul & Paul Lawyers |
Orders
The parties shall have equal shared parental responsibility for the child B, born … 2006 (“the child”).
The child shall live with the mother.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the child spends time with the father as follows:
(a)Whilst ever the father lives within 50 kilometres of the mother and child:
(i)During school terms:
(A)From 6.00 pm each Monday until the commencement of school on the following Wednesday;
(B)Each alternate week from 6.00 pm Thursday until 6.00 pm on the following Saturday, commencing on the second Thursday of each school term.
(ii)During school holidays, for one-half of all school holiday periods, being the first half in holidays falling or commencing in odd numbered years and the second half in holidays falling or commencing in even numbered years.
(b)Whilst ever the father lives more than 50 kilometres from, but within 250 kilometres of, the mother and child:
(i)During school terms, each alternate week from 6.00 pm Friday until 6.00 pm on the following Sunday, commencing on the first Friday of each school term.
(ii)During school holidays, for one-half of all school holiday periods, being the first half in holidays falling or commencing in odd numbered years and the second half in holidays falling or commencing in even numbered years.
(c)Whilst ever the father lives more than 250 kilometres from the mother and child:
(i)During school terms, for one weekend falling closest to the middle of each term, from 6.00 pm on Thursday until 6.00 pm on the following Sunday.
(ii)During school holidays, for an aggregate two-thirds of the annual school holidays of the child, on the following conditions:
(A)The time spent by the child with the father during school holidays will be at the election of the father, with not less than six months notice in writing to the mother;
(B)The holidays are to be nominated by the father in no less than two and no more than four separate periods annually;
(C)The periods nominated by the father shall not include the period comprising 24-26 December inclusive in consecutive years;
(D)The periods nominated by the father shall not include the child’s birthday in consecutive years; and
(E)The periods nominated by the father shall not include the period comprising 24-26 December inclusive and the child’s birthday in the same year.
Orders 3(a) and 3(b) are suspended during the following periods:
(a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the Mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in odd numbered years, with the same arrangements in reverse in even numbered years.
(b)Between 10.00 am and 5.00 pm on each Mother’s Day and Father’s Day, during which periods the child shall spend time with the mother on Mother’s Day and with the father on Father’s Day.
For the purposes of implementation of Order 3, the school holidays are deemed to commence on the first day following the last day of school term in the State (foreign or Australian) where the child is then living, the holidays are deemed to end on the last day preceding the day upon which the child is due to return to school in the State (foreign or Australian) where the child is then living, and the mid point is the day halfway between those first and last days.
Unless otherwise agreed, for the purposes of implementing the time spent by the child with the father pursuant to Orders 3(a), 3(b) and 4 the father shall cause the collection of the child at the commencement of the time to be spent with him at the mother’s residence and the mother shall cause the collection of the child at the conclusion of the time spent with the father at the father’s residence.
Unless otherwise agreed, for the purposes of implementing the time spent by the child with the father pursuant to Order 3(c)(i) the father shall cause the collection of the child from, and the return of the child to, the mother’s residence at the commencement and conclusion of the child’s time with the father.
Unless otherwise agreed, for the purposes of implementing the time spent by the child with the father pursuant to Order 3(c)(ii) the mother shall cause the delivery of the child to the international airport nearest the father’s residence at the commencement of the child’s time with the father and the father shall cause the delivery of the child to the international airport nearest the mother’s residence at the conclusion of the child’s time with the father.
Unless otherwise agreed, when Orders 3(b) and 3(c) apply, the parties shall take all reasonable steps to ensure that the child communicates privately by Skype, voice-over-internet protocol, or telephone with:
(a)The father each Tuesday and Thursday when the child is living with the mother, between 6.00 pm and 6.30 pm, and for that purpose the father shall telephone the child on the telephone number provided to him by the mother, and the mother shall ensure that the child is able to receive the father’s calls on that number at that time.
(b)The mother each Saturday and Wednesday when the child is spending time with the father, between 6.00 pm and 6.30 pm, and for that purpose the mother shall telephone the child on the telephone number provided to her by the father, and the father shall ensure that the child is able to receive the mother’s calls on that number at that time.
(c)The parent with whom the child is not then staying, on the child’s birthday, between 6.00 pm and 6.30 pm, and for that purpose the parent with whom the child is not staying shall telephone the child on the telephone number provided by the other parent for that purpose, and the parent with whom the child is staying shall ensure that the child is able to receive the other parent’s calls on that number at that time.
Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the child.
Each party, in so far as it is respectively known to them, shall keep the other informed of all educational, sporting, cultural, and extra-curricular events in which the child is to participate.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
Costs are reserved for 28 days.
Any and all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Wable & Wable is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 1406 of 2010
| Mr Wable |
Applicant
And
| Ms Wable |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to this litigation and their only child are all Australian citizens, but they all live in the Country C and have done so since August 2007.
It is the desire of the applicant father for the child to be returned to live in Sydney, Australia in order to commence his primary education in 2012, where he proposes the child would live with each party for equal time. Conversely, the mother wishes the current arrangement to continue, with the child living in the Country C, residing for marginally more time with the mother than with the father.
Despite the parties and child still living overseas, the father commenced the proceedings in this Court in April 2010, no doubt in reliance upon s 69E(1) of the Family Law Act1975 (Cth) (“the Act”). The mother submitted to the jurisdiction and neither party takes issue with the entitlement of the Court to determine the dispute or the enforceability of its orders.
Background facts
The child who is the subject of these proceedings, B (“the child”), was born in 2006 and is now five years of age.
When the child was born the parties were living in Sydney, Australia.
In June 2007 the father was approached with an employment opportunity that would require his relocation to City D in the Country C (“C”). The father accepted the offer and the parties and the child relocated to the Country C in August 2007.[1]
[1] Father’s affidavit, pars 19, 38; Mother’s affidavit, pars 17, 21-23
There is an underlying tension between the parties about the circumstances surrounding their decision to relocate to the Country C at that time. The father alleged the parties reached agreement they would stay in the Country C for a maximum of five years and would return to Australia in order for the child to begin his primary education in Australia.[2] The mother contended that no concluded agreement was reached,[3] but she did concede in cross-examination the parties had a formative plan to stay in the Country C for up to five years with their position to be reviewed annually.
[2] Father’s affidavit, pars 35-37
[3] Mother’s affidavit, pars 17-20
In all likelihood the parties each gave truthful evidence about their perception of the circumstances under which they relocated to the Country C, but it is really quite unnecessary to determine the factual dispute on that issue. Even if there was a concluded agreement to return to Australia, as the father alleged, the existence and breach of such an agreement would not determine the outcome of the litigation. The prospect of a change of mind by either party in ensuing years was always present. It is a fact of life that people change their plans from time to time. The Court’s discretion is not fettered by any past agreement between the parties.
The parties separated in February 2009.[4]
[4] Father’s affidavit, pars 8, 49; Mother’s affidavit, par 5; Exhibit M1, par 47
The parties each subsequently acquired separate accommodation[5] and they reached agreement about the parenting regime for the child without the need for court orders.
[5] Father’s affidavit, pars 51, 52, 57; Exhibit M1, par 48
The parenting regime was amended slightly in January 2011, but the parties have always generally arranged their affairs on the basis that the child lived with the mother for eight days per fortnight and with the father for the other six days of the fortnight.[6] The time during which the child lives with the father is currently broken into separate periods each fortnightly cycle.
[6] Father’s affidavit, pars 9, 53, 66, 67, 68; Exhibit M1, par 49; Mother’s affidavit, pars 79-84
The father commenced these proceedings in April 2010.[7] Since then the parties have continued to make consensual decisions about parenting arrangements for the child and have not needed any interim order from the Court to regulate such arrangements, other than as to the parties’ international travel with the child. Such orders have been made on several occasions.[8]
[7] Mother’s affidavit, par 7
[8] Father’s affidavit, pars 114, 134; Mother’s affidavit, pars 62-63
Each party has continued to live and work in the Country C since separation.
The trial commenced on Monday 28 November 2011 and judgment was reserved at its conclusion.
Proposal and primary evidence of the father
The father abandoned the orders proposed in his Amended Initiating Application filed on 27 May 2011 and instead proposed the orders set out in a minute of orders which was tendered.[9]
[9] Exhibit F1
The father proposed that the parties have equal shared parental responsibility for the child.[10]
[10] Exhibit F1, Order 1
The father also proposed that the parties be compelled to return the child to live in Sydney and to enrol him at particular schools in Sydney,[11] but the child’s living arrangements were posited on several alternative outcomes, which may be conveniently summarised as follows:
a)Whilst both parties continue to live in City D, the child live with the mother for eight nights and with the father for six nights per fortnight,[12] as is currently the consensual arrangement struck between the parties;
b)In the event the parties both live in Sydney, the child live with the parties for equal time;[13]
c)In the event the father lives in Sydney and the mother lives in the Country C or some country other than Australia, the child live with the father and spend time with the mother, the amount of such time depending upon the mother’s location;[14] and
d)In the event the child lives with the mother in City D and the father lives in some country other than the Country C, the child spend time with the father, the amount of such time depending upon the father’s location.[15]
[11] Exhibit F1, Orders 2, 3
[12] Exhibit F1, Orders 4, 6
[13] Exhibit F1, Orders 5, 6
[14] Exhibit F1, Order 7
[15] Exhibit F1, Order 8
During final submissions the father refined, in one respect, his proposal about the parenting orders that should prevail in the event that the parties and child continue to live within the same city. Instead of the father collecting the child from the mother at either 5.00 pm or 6.00 pm, as the parties’ respective minutes of orders provided,[16] the father contended he should collect the child directly from school when changeovers occur on school days.
[16] Exhibit F1, Order 4.1; Exhibit M2, Order 2.2
In support of his application the father relied upon:
a)His affidavit filed on 4 November 2011; and
b)The affidavit of the Family Consultant affirmed on 14 September 2011.
Proposal and primary evidence of the mother
The mother also tendered a minute of orders,[17] which made relatively minor adjustments to the orders set out within her Amended Response filed on 11 July 2011. Those orders generally provide for the child to live with the mother[18] and spend time with the father.
[17] Exhibit M2
[18] Exhibit M2, Order 1
The amount of time spent by the child with the father was contended to be dependent upon whether or not the father lived in the same city.[19] In the event the father lives in the same city, it was proposed the child would spend “substantial and significant” time with the father, as that term is defined within the Act. Conversely, the amount of that time would be considerably curtailed in the event of the parties living in geographically distant locations.
[19] Exhibit M2, Orders 2-7
Curiously, the mother made no specific proposal about allocation of parental responsibility for the child, but during final submissions her senior counsel admitted the mother embraced the allocation of equal shared parental responsibility for the child.
In support of her proposal the mother relied upon:
a)Her affidavit filed on 15 November 2011;
b)The affidavit of Mr E filed on 4 November 2011;
c)The affidavit of Ms F filed on 4 November 2011; and
d)The affidavit of the Family Consultant affirmed on 14 September 2011.
There were some anomalies about the mother’s affidavit, which were explained at the commencement of the trial and during the mother’s evidence-in-chief. The page of her affidavit comprising paragraphs 78-84 was erroneously inserted as page 123 rather than page 13 of the affidavit, which affected the pagination of the affidavit, and the page of her affidavit comprising paragraphs 47-54 was omitted from the affidavit entirely and was later adopted by the mother and tendered as an exhibit.[20]
[20] Exhibit M1
Summary of parenting law
Orders in respect of children are regulated under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.
Best interests of the child – primary considerations
It is common ground the child currently enjoys meaningful relationships with both parties and would benefit from maintaining those relationships. It is the desire of both parties to continue living within sufficient proximity to one another to ensure their loving relationships with the child are promoted, although both have different views as to where their residences should be located.
Of relevance to the provisions of s 60CC(2)(a), the father contended the Court could not be satisfied the child would be able to maintain his meaningful relationships with both parties unless an order was made requiring the child to live in Sydney, Australia. That conclusion followed from two assumptions – firstly, the prospect that one or either of the parties will lose their employment in the Country C thereby triggering expiration of their visa and compelling their departure from the Country C, and secondly, parenting orders could not then be fashioned to ensure the child could spend sufficient time with an internationally relocated parent in order to maintain a meaningful relationship with that parent.
The evidence does not support the validity of either of those assumptions.
Both parties are Australian citizens and enjoy a right to live in Australia. Their present choice to live in the Country C is conditional upon them each holding a valid visa. In each case, their visa is dependent upon the continuity of their employment.[21] Termination of employment causes the visa to expire, ordinarily requiring departure from the Country C within 30 days, unless an extension can be negotiated.
[21] Father’s affidavit, par 215
The father has successfully demonstrated the potential to negotiate a visa extension. He lost his former employment in the Country C in June 2009[22] and negotiated his entitlement to remain resident in the Country C until he secured substitute employment several months later in November 2009.[23]
[22] Father’s affidavit, par 63
[23] Father’s affidavit, pars 64, 69
The father was concerned his current employment will be terminated at some point in the future in order to enable his employer to replace him with a Country C national.[24] However, that possibility presently seems remote. The father has been promoted within his employment,[25] from which I impute he is highly esteemed by his employer. Moreover, the father conceded in cross-examination he had no knowledge of any imminent plans for the termination of his employment and, so far as it was within his control, he could and would retain his Country C employment so as not to frustrate the operation of any parenting orders that maintained the current parenting regime.
[24] Father’s affidavit, pars 216-219
[25] Father’s affidavit, par 64
The mother acquired her Country C employment in July 2008.[26] She is similarly apparently held in high regard by her employer[27] and she wishes to retain her employment. Despite the father’s fears about the security of her employment,[28] it seems quite stable in the circumstances.
[26] Mother’s affidavit, pars 36, 68-69
[27] Affidavit of Mr E
[28] Father’s affidavit, par 220
Of course, there are no guarantees about the continuity of the parties’ respective employment in the Country C, as the father’s counsel correctly submitted. But that is hardly the test. There are no guarantees in life about anything. The Court should not react impulsively to mere possibilities, no matter how genuinely a party apprehends the occurrence of such possibilities. Parenting orders should be made following calm and rational appraisal of the evidence by reference to the civil standard of proof imported by s 140 of the Evidence Act 1995 (Cth). On the balance of probabilities, the parties will each retain their employment in the Country C for the foreseeable future.
The mother recently acquired ownership of a residence in the Country C,[29] which she said was leased to a tenant. The mother contended such ownership entitled her to obtain a different form of visa permitting her residence in the Country C, unrelated to the continuity of her employment. However, such visas endure for only six months and numerous conditions are appurtenant to them. They are capable of renewal, but departures from the Country C are seemingly a condition of renewal.[30] The mother’s likely entitlement to such a visa is a consideration, but I accept it is not a consideration in which much extra weight is reposed.
[29] Mother’s affidavit, par 87
[30] Mother’s affidavit, par 88
The father also contended that if he was compelled to depart the Country C and return to Sydney because of the termination of his employment and the mother and child remained resident in the Country C then the parenting orders proposed by the mother to apply in those circumstances would not allow the child to spend sufficient time with him to maintain the quality of their relationship.
The orders proposed by the mother in those circumstances would entail the child spending about six or seven weeks of the year with the father during school holiday periods, together with any extra time that could be arranged if the father was prepared to travel to the Country C during the child’s school terms.[31]
[31] Mother’s affidavit, pars 91-92; Exhibit M2, Orders 2.3, 4-7
The Family Consultant was confronted in cross-examination with the proposition that such a regime would be insufficient for the child to retain his meaningful relationship with the father, but she did not agree with the proposition. The Family Consultant contended there were too many variables to permit a definitive answer. Those variables were stated to be the residential locations of the parties, the age of the child, and the developmental stage of the child. The Family Consultant conceded only that, at his present age, the child should not experience “long block periods” away from either parent.
It should be observed that not even the father seems to subscribe to the efficacy of the proposition put to the Family Consultant, because he proposed similar orders to the mother’s, albeit in reverse. In circumstances where the mother lived in the Country C and the father in Sydney, he proposed the child live with him and spend time with the mother for several weeks of the year during school holiday periods, together with extra time during school terms if the mother travels to Sydney.[32]
[32] Exhibit F1, Orders 7.2, 7.3
The child has an exceedingly strong relationship with each party,[33] and he is securely attached to both of them.[34] He is now old enough to not require especially frequent interaction with each party to ensure maintenance of his attachment to them. That conclusion is amply exemplified by the interviews conducted by the Family Consultant in September 2011, at which time the child had not seen the mother for two weeks. The duration of such separation made no difference to the child’s bond with the mother because they were observed to interact with excitement, warmth and affection.[35] The same would no doubt be true for the father.
[33] Family Report, pars 24, 26
[34] Family Report, par 29
[35] Family Report, par 21
The child’s bond with both parents would likely survive any abatement in the frequency with which he sees each of them. That is not to say the child accrues advantage through less frequent interaction with the parties, but the evidence does not demand a conclusion that less frequent interaction than he currently experiences will compromise the quality of the relationships he enjoys with the parties. The objective should remain the child spending “significant time” with each party, as the Family Consultant opined.[36] That will likely occur because each party conceded they would choose to continue living in close proximity to the child.
[36] Family Report, par 28
The written submissions of the father’s counsel pronounced “parenting of children in the Country C is considered under Sharia Law, which sits in contrast to the provisions of the Family Law Act”, but the relevance of the submission remained obscure. The submission was not developed orally. Even though one might logically expect parenting disputes in the Country C to be resolved by reference to different law than that which is applicable in Australia, there was no evidence at all about the nature of the difference. In any event, the parties decided to litigate their dispute in Australia and submit to the jurisdiction of this Court, meaning they both want the orders of this Court to govern the parenting arrangements for the child.
Happily, it was agreed this was not a case in which the provisions of s 60CC(2)(b) of the Act were influential in, let alone determinative of, the outcome.
At the commencement of the trial, both parties represented through their counsel that they were satisfied the other was a capable and loving parent and neither offered criticism of the other’s parenting capacity. No suggestion was made by either party that the Court needed to take steps to ensure the child was protected from physical or psychological harm through subjection or exposure to abuse, neglect, or family violence whilst in the other party’s care.
There was an oblique reference in the father’s affidavit to an isolated episode which was suggestive of the child having been exposed to threats of physical violence by the mother,[37] but I pay that evidence no heed for several reasons. Firstly, the evidence is inconsistent with the concession made by the father’s counsel about the unimpaired parenting capacity of the mother. Secondly, the parties both told the Family Consultant they had no concerns for the welfare of the child in the care of the other.[38] Thirdly, the orders primarily proposed by the father for the child to live with the parties for equal time without any injunction directed towards prohibition of physical punishment of the child are inimical to him being fearful the child is exposed to the risk of violence at the hands of the mother. Fourthly, the father’s counsel’s written submissions stated “there is no issue, allegation or evidence to suggest the child will be exposed or subjected to physical or psychological harm”.
[37] Father’s affidavit, par 253
[38] Family Report, par 17
Best interests of the child – additional considerations
The child is undoubtedly now emotionally secure living with his loving parents in the Country C. The mother wants that arrangement to continue. The father also wants that arrangement to continue, but in Sydney rather than the Country C.
It became evident throughout the trial that the father sought to solve the parties’ dispute by advocating for an order dictating where the child should live rather than with whom the child should live. The Family Consultant was correct to identify the dispute between the parties as one concerned with their country of residence rather than “parenting issues”,[39] because the written submissions of the father’s counsel plainly asserted “the primary issue in this matter is where [the child] will live”.
[39] Family Report, par 28
The father’s approach is difficult, if not impossible, to reconcile with both the provisions of the Act and authority which has fallen from the High Court and the Full Court of the Family Court.
The parties sought from the Court competing suites of orders under Part VII of the Act. The meaning of a “parenting order” is defined in Part VII of the Act. The definition includes an order dealing with “the person or persons with whom a child is to live” (s 64B(2)(a)). An order compelling the child or the parties to live in a certain geographical place, for which order the father primarily advocated,[40] is not a parenting order as defined (see Cales & Cales (2010) FLC 93-459 at [63]-[73]).
[40] Exhibit F1, Order 2
Although the Court has power to make injunctive orders in respect of a child (s 68B), including as to the place where the child must live, the Court should only make such an order cautiously (see Cales & Cales at [74]-[91]). That is because a child must live with one or more persons – usually parents – and parents enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for a child (see AMS v AIF (1999) 199 CLR 160 at 196, 206, 207-208, 210). Parents have as much residential freedom as is compatible with their obligations pertaining to the child (see AMS v AIF at 223-224, 231-232; Sampson v Harnett (No.10) (2007) FLC 93-350).
The orders framed by the father comprised a primary order dictating the place where the child should live. The orders he thereafter proposed, about with whom the child should live and spend time, were consequentially dependent upon the alternate places of residence of the parties.
It was contended for the father such an outcome was demanded by various considerations under s 60CC(3) of the Act, but reasoned analysis of the evidence reveals that is not so.
The father maintained the primary reason for his desire for the family to return to Sydney was the child’s commencement of primary education in Australia.[41] Although not articulated clearly, it must necessarily follow from the father’s belief in the inferiority of the education system in the Country C that he considers the child’s best interests are served by him being educated in Australia.[42] There was no other way in which to reasonably interpret the father’s case, given his counsel conceded the alleged former agreement between the parties to return the child to Australia for that purpose was not binding.
[41] Family Report, par 6
[42] Father’s affidavit, pars 179-181, 232-233
The evidence falls far short of vindicating the father’s conclusion about the child’s best interests. The father’s uncorroborated opinion is an insufficient foundation for such a finding. So is the newspaper or magazine article annexed to the father’s affidavit.[43] Although no more probative than the father’s opinion, the mother asserted in cross-examination the British curriculum in the child’s current school in the Country C is comparable to that applicable in Australian schools. The parties’ opinions on the issue were irreconcilable.
[43] Father’s affidavit, par 233
There is no proper basis for the Court to find the child’s best interests warrant his return to live in Australia so as to enjoy an Australian education.
The father asserted the child had suffered from more ill health in the Country C than in Sydney,[44] but his counsel conceded in final submissions the state of the evidence did not support such a conclusion and no weight could be attributed to such a consideration.
[44] Father’s affidavit, par 182-213
The father also contended more family support was available to both parties in Sydney than in the Country C,[45] but the mother disagreed.[46]
[45] Father’s affidavit, pars 221-229
[46] Mother’s affidavit, pars 95-96
The paternal grandparents live on the south coast of NSW. Although their home is within a reasonable distance of Sydney, it is still too far for them to be of any real daily assistance to the father’s proposed care of the child in the eastern suburbs of Sydney.
The father’s brother lives in the southern suburbs of Sydney, but he and the father have not spoken for some years. The father cannot rely upon him for support.
The maternal grandparents presently live in Sydney, but they will shortly begin the process of transition to residence in Tasmania. They could assist the mother in the short term but no longer.[47]
[47] Affidavit of Ms F, pars 20-29
The mother’s brother lives in the northern suburbs of Sydney. There is no evidence he could assist the mother care for the child with any degree of regularity.
In the circumstances, while each party could expect some degree of support from their extended family members if living in Sydney, it is illusory to assert or imply that they each have a network of regular and reliable support on which to rely.
The father’s counsel submitted that in the event of refusal by the Court to order the child’s return to live in Sydney there was a real risk of the institution of further litigation over the child. It was contended the mother had no settled plan about the location of her future residence, so if she moved from the Country C to a place other than Sydney, fresh litigation would probably ensue. I am far from satisfied about such a prospect. I accept the mother has no present desire or plan to move away from the Country C. She said so to the Family Consultant[48] and also in evidence. Even if she did, since she is an Australian citizen, Australia would likely be a prominent destination in any array of options.[49] Even if the mother did relocate to another foreign nation, there is no basis for any present conclusion the father would regard that destination as any more inconvenient to reach than the inconvenience he perceives in travelling between the Country C and Australia.
[48] Family Report, par 7
[49] Mother’s affidavit, pars 85-87
The father’s counsel conceded that none of the features addressed above were individually compelling. Rather, it was asserted such considerations in aggregation would persuade the Court to his view. I reject that submission.
The father also made mention in his evidence of geo-political instability, differing cultures, differing legal systems, and differing climates as reasons why Sydney was a better place than the Country C for the child to be raised.[50] However, none of that evidence is persuasive. Those considerations applied when the parties voluntarily decided to take the child to live in the Country C in 2007 and none of those issues were addressed by either party as significant in the trial.
[50] Father’s affidavit, pars 231, 234-239
As was submitted by the mother’s senior counsel, the parties each have stable employment in the Country C. Neither has employment immediately available in Australia, or any other place for that matter. Compelling their return to Sydney would inevitably induce some degree of uncertainty about their capacity to continue living in sufficiently close proximity to ensure continuation of the current parenting regime under which the child lives with them for equivalent time. It would also probably cause some financial strain which does not presently exist because neither party envisages being able to find suitable employment in Sydney with the comparably high salaries they currently receive. Additionally, the flexibility they each enjoy in their current employment would likely be difficult to replicate.
No other factors under s 60CC(3) of the Act were asserted by either party to influence the Court’s determination of the proceedings.
Parenting orders
Parental Responsibility
When making parenting orders the Court must first consider the allocation of parental responsibility for the child (s 61DA(1)).
In the absence of any abuse and family violence, the presumption of equal shared parental responsibility applies in this case (s 61DA(2)), but the presumption is capable of rebuttal on the evidence (s 61DA(4)).
The parties agree their communication is presently problematic.[51] Nevertheless, the Family Consultant recommended the parties have equal shared parental responsibility for the child.[52] That was also the proposal of the father, adopted by the mother.
[51] Family Report, par 14
[52] Family Report, pars 36-37
I am satisfied the parties are able to sensibly discuss and ultimately compromise on issues of importance to the child. Each party contended they had that capacity, which history has proven to be true. For example, the parties debated arrangements about their overseas travel with the child and despite their disagreement they reached consensus, reflected in consent orders.[53] The parties also debated the child’s school enrolment in the Country C and despite their tribulations each party was ultimately satisfied the child is now enrolled at the best school in the Country C.[54]
[53] Father’s affidavit, pars 102-140
[54] Father’s affidavit, pars 141-178, 233
Accordingly, the orders provide for the parties to have equal shared parental responsibility for the child, consistently with their wish and the preponderance of evidence.
Living Arrangements
The conclusion about the allocation of equal shared parental responsibility necessitates the Court’s consideration of an arrangement under which the child lives for equal time with each party, or alternatively lives with one party and spends substantial and significant time with the other. The alternatives must be successively considered by reference to the best interests of the child and reasonable practicability (s 65DAA(1),(2),(5)).
Since separation, the parties have consensually employed an arrangement under which the child lives with the mother for eight days of each fortnight and with the father for the other six days of the fortnight. Self-evidently, that is not an equal time arrangement, but it is close to it.
The mother has steadfastly advocated for continuation of the existing parenting arrangement,[55] with which the child is apparently perfectly content.
[55] Family Report, par 8; Exhibit M2, Order 2.2
The father is also broadly content with the continuation of such an arrangement, although his proposal has vacillated slightly over time. Importantly, the only reason for this litigation is the father’s desire for the family to move to Sydney,[56] not because of any dissatisfaction with the underlying parenting regime pursuant to which the child lives with him for slightly less time.
[56] Family Report, pars 9, 12
The father began the proceedings in April 2010 proposing an equal time living arrangement for the child in Sydney[57] and during the trial in November 2011 he proposed the same outcome.[58] But that was not his proposal between times. When he saw the Family Consultant initially in July 2010, and again in September 2011, he proposed continuation of the current regime under which the child spent six days of each fortnight with him.[59] That was also the father’s proposal when he filed his Parenting Questionnaire in May 2011, but the orders proposed in his Amended Initiating Application filed in May 2011 were somewhat different.[60] Pending any change in accordance with his final proposal, the father still desires continuation of the existing arrangements.[61]
[57] Initiating Application filed 15 April 2010, Order 6
[58] Exhibit F1, Order 5
[59] Family Report, par 9
[60] Amended Initiating Application filed 27 May 2011, Orders 3.1, 6
[61] Exhibit F1, Order 4.1
There can be no argument that an equal time parenting arrangement is reasonably practicable whilst ever the parties and child all continue to live reasonably close to one another in the Country C. Such an arrangement would also serve the interests of the child. But I am not satisfied an equal time regime is the arrangement which would optimally serve the child’s best interests. The arrangement that does so is the one which currently exists. That is evident from the long-standing consensual nature of the arrangement between the parties, the mother’s desire for its continuation, the father’s admission in cross-examination that it serves the child’s best interests, the state of contentment it has induced in the child, and its consistency with the opinion of the Family Consultant.[62]
[62] Family Report, pars 29, 38
The existing regime is one under which the child spends substantial and significant time with the father. It has proven over the years to be reasonably practicable to implement and to serve the best interests of the child. That is the regime which should prevail and the orders therefore provide for the child to live with the mother and spend substantial and significant time with the father.
The father is correct to conclude that it would be destabilising for the child’s parenting arrangements to be reviewed on an annual basis,[63] depending upon the changing circumstances of the family. Consequently, there is a need to fashion orders which account for contingencies such as the parties’ relocation away from the Country C, whether to Sydney or elsewhere, having regard to the evidence currently before the Court. Although never immutable, the alternative orders are intended to finally resolve parenting arrangements for the child and avoid the need for further disagreement.
[63] Father’s affidavit, par 256
The orders stipulate a parenting regime that depends upon how closely the father lives to the mother. The orders import distances which are designed to differentiate when parenting regimes under which the child may spend more time with the father cease being reasonably practicable to implement. The distances were not the subject of evidence or debate, but neither party could reasonably complain of deprivation of procedural fairness as a consequence. The parties expressly petitioned the Court to make orders that catered to various possibilities about the locations of their residences,[64] which desire is sated by the orders. The Court is obliged to make orders it perceives meet the best interests of the child, not just choose between the options propounded by the parties (see U & U (2002) 211 CLR 238 at 284-285).
[64] Exhibit F1, Orders 5, 7, 8; Exhibit M2, Orders 2.2, 2.3, 3, 4, 6
Consequently, whilst the father lives within 50 kilometres of the mother, a parenting regime much like the existing regime of equivalent time will continue.
There is a slight change to the proposals mutually submitted by the parties.[65] Instead of the time spent by the child with the father each week on Monday and Tuesday nights being interrupted by a period of a few hours after school on Tuesday afternoons, his time with the father continues uninterrupted over that period. The orders permit the parties to agree otherwise if they are dissatisfied.
[65] Exhibit F1, Order 4.1; Exhibit M2, Order 2.2
If for some reason the parties live further apart than 50 kilometres, but still within 250 kilometres of one another, the time spent by the child with the father is constricted somewhat. It abates to alternate weekends and half of school holidays. That is an arrangement that can operate in circumstances where, for example, both parties return to live in Australia but not particularly close together. The mother is not particularly attracted to Sydney even if she does return to Australia.[66]
[66] Mother’s affidavit, par 85
When the parties’ residences are separated by more than 250 kilometres then it would likely be impracticable for the child to spend time with the father at times other than during school holidays, unless the father can arrange to see the child over an extended weekend during school terms and stay in the area where the child lives with the mother. That is a regime that could apply when the parties live in different countries or a long distance apart in the same country.
In the latter situation, the orders provide for the child to spend two-thirds of his school holidays with the father. That is broadly consistent with the mother’s proposal. She suggested a proportion of 60 per cent in her proposed orders,[67] but conceded 70 per cent when speaking with the Family Consultant.[68]
[67] Exhibit M2, Order 4
[68] Family Report, par 9
The quantum and timing of time spent by the child with the father during school holidays is difficult to specify with precision because there is no evidence of future school holiday periods in the Country C and the school holiday periods obviously differ from country to country. Accordingly, self-explanatory conditions attach to the child spending school holiday time with the father. The conditions seek to balance competing interests, being the father’s need for flexibility and the mother’s need for adequate notice, and to ensure the child spends special events equitably between the parties on an annual basis.
The orders also permit the child to spend one extended weekend with the father during school terms when the parties live more than 250 kilometres apart, which will obviously only occur if the father is able to make the necessary financial and employment arrangements to avail himself of that time.
I am not attracted to the mother’s proposal that, should the father avail of such opportunity, it should trigger a decrease in the amount of time spent by the child with him during school holidays. Even though the mother explained her motive in cross-examination to simply be the provision of an incentive to the father to spend time more frequently with the child, the father may not be able to do so for reasons beyond his control. If the father is able to avail himself of that order, the longest period the child will endure without physical interaction with the father will likely be less than some six weeks.
I accept the mother’s evidence that the child should not be required to undertake international travel during school terms.[69] The father must also accept the veracity of that evidence because, like the mother, he did not propose any order requiring the child to do so.
[69] Mother’s affidavit, par 94
While the parties are living within 250 kilometres of one another, exchanges of the child will occur between them at their homes at 6.00 pm, as the mother proposed. The father originally proposed the collection time be 5.00 pm, but then amended his proposal in final submissions to one requiring collection of the child at the conclusion of school on school days, apparently in reliance on the evidence given by the Family Consultant in cross-examination.
The Family Consultant did generally recommend collections of children from school, but I desist from making such an order in the context of this case. The parties have capably managed to exchange the child at their homes without incident since separation and changeovers at the parties’ homes avoid the need for the child to travel to and from school with toys, clothes and other accoutrement unrelated to their education.
If the father lives more than 250 kilometres from the mother and travels to visit the child during school terms then he is required to collect the child from and return the child to the mother. That is because the father will need to stay within reasonable proximity of the mother’s residence for the days the child is with him and the venue of his stay is presently unknown and may change from time to time anyway.
When the parties live more than 250 kilometres apart it will likely only be because one or other is required to move away from the Country C. In such circumstances the child will likely need to travel internationally to spend time with the father during school holiday periods. The orders require the parties to share responsibility for the child’s travel, both as to its inconvenience and expense, as the mother generally proposed.[70] There is no proper basis to foist that expense entirely upon the mother, as the father proposed.[71] Presumably the child’s age and airline policy will dictate whether the child is able to travel unaccompanied. No evidence was adduced on that issue.
[70] Exhibit M2, Order 5
[71] Exhibit F1, Orders 7.2, 8.1
The orders are therefore as prescriptive as the evidence allows.
Other Orders
The child should obviously be able to communicate liberally with both parties. That can always occur by telephone, and perhaps also by Skype or some similar form of internet communication tool. Skype or its equivalent is a superior form of communication than telephone in the event of the parties being geographically separated by such distance that the amount of time spent by the child with the father is diminished.
The father asserted Skype is illegal in the Country C,[72] but the mother and maternal grandmother gave evidence of a similar internet communication tool, called “voice-over-internet protocol”, being successfully used between the Country C and Australia. The orders therefore make provision for use of both it and the telephone to enable the child to communicate with the parties.
[72] Father’s affidavit, par 259
Given the orders, which enable the child to continue living with the mother in the Country C, the father’s application for an order about the identity of the schools to be attended by the child in Sydney is superfluous and is dismissed.[73]
[73] Exhibit F1, Order 3
In the event of the Court’s refusal to order the child’s return to live in Sydney, the father’s counsel orally submitted for imposition of an order precluding the parties from relocating their residence to any place other than the Country C or Sydney. I decline to make an injunction to that effect. There is no evidence either party intends to live anywhere other than the Country C or Australia and it is anathema to the principles of parental freedom to impose such prohibitions without proper justification.
The father proposed an order compelling each party to authorise provision to the other of information about the child’s academic progress by the child’s childcare centre or school.[74] There is no need for such an order. The parties have equal shared parental responsibility for the child and each is therefore entitled to demand and receive such information.
[74] Exhibit F1, Order 13
Both parties proposed an order that they each inform the other of the place where the child will spend holidays, if spent away from home.[75] There seems little point in an order when that is what they both want and they have equal shared parental responsibility. They will ensure it happens if it is jointly desired.
[75] Exhibit F1, Order 12; Exhibit M2, Order 13
The parties sought specific orders in respect of the child’s passport.[76] I decline to make any such order. There was no evidence adduced about the issue at all and not a single question was posed to either party about the issue in cross-examination. The Court cannot be expected to make orders in an evidential vacuum. The parties have equal shared parental responsibility for the child at their mutual request. They should exercise that responsibility to decide what is done with the child’s passport.
[76] Exhibit F1, Order 14; Exhibit M2, Orders 14-15
The mother also sought an order pursuant to s 65Y(2) of the Act permitting each party to travel overseas with the child during school holiday periods.[77] There is no need for such an order. That provision of the Act only applies to a child being taken from Australia to a place outside Australia, and the mother said she intended to remain living with him in the Country C, in which case s 65Y would not apply. The orders make express provision for the child to travel internationally between the parties if their residences are in different countries. If the mother does later return with the child to live in Australia the parties can utilise their intelligence to make consensual arrangements pursuant to s 65Y(1) of the Act about overseas travel undertaken by the child. It is too difficult to make predictions about such future arrangements on the evidence adduced.
[77] Exhibit M2, Orders 11-12
I decline to make the procedural orders sought by the father granting leave to re-list the matter and permitting resort to s 106A of the Act.[78] The orders are intended to finally determine the proceedings and are sufficiently comprehensive.
[78] Exhibit F1, Orders 15-16
The remaining orders generally reflect the residual proposals of the parties,[79] about which there could be no sensible disagreement.
[79] Exhibit F1, Orders 9, 10, 11, 13; Exhibit M2, Orders 9, 10, 13
Costs are reserved for 28 days in accordance with the time allowed under the Family Law Rules 2004 (Cth) for such applications. No submissions were made about costs orders.
I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 21 December 2011
Associate:
Date: 21 December 2011
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Statutory Interpretation
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