Walker and Winwood
[2011] FMCAfam 865
•19 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WALKER & WINWOOD | [2011] FMCAfam 865 |
| FAMILY LAW – Parenting dispute – previous recovery order issued – children returned to the care of the father – both parents not physically available to care for the children due to father’s [employment] and mother’s relocation – interim orders sought in relation to parenting including relocation with mother – consideration of opposing application by stepmother – consideration of legislative intent and wording of section 60B and section 60CC of the Family Law Act – determination on particular facts to allow interim relocation with the children. |
| Family Law Act 1975 (Cth), ss.60B(1) and (2), 60CA, 60CC(2) and (3), 61DA, 65DAA |
| Goode & Goode (2006) FLC 93-286 Morgan & Miles (2007) FLC 93-343 |
| Applicant: | MS WALKER |
| Respondent: | MR WINWOOD |
| File Number: | DNC 58 of 2007 |
| Judgment of: | Coker FM |
| Hearing date: | 15 August 2011 |
| Date of Last Submission: | 15 August 2011 |
| Delivered at: | Townsville |
| Delivered on: | 19 August 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Legal Aid (Queensland) |
| Respondent: | Self- represented |
ORDERS UNTIL FURTHER ORDER
That all previous orders be discharged.
That the Father and the Mother are to have equal shared parental responsibility for decisions relating to the major long term issues of the children, [X] born [in] 2000 and [Y] born [in] 2002, including but not limited to:
(a)a child’s education (both current and future);
(b)a child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
The parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree;
(c)They shall make a genuine effort to come to a joint decision.
That the children, [X] born [in] 2000 and [Y] born [in] 2002, live with the Mother.
That the Mother have leave to relocate with the children to [P], New South Wales.
That the children spend time with the Father at all reasonable times as may be agreed during school holiday periods and at other times that the Father may be in the same locality as the children and, unless otherwise agreed in writing, for a minimum of four weeks during the Christmas school holiday period 2011/2012, commencing, unless otherwise agreed, on the day immediately following the conclusion of the term 4 school term in New South Wales, and for four weeks thereafter.
That the Mother be responsible for booking and paying for the children’s return flights to Townsville to coincide with those times referred to herein.
That the stepmother be able to spend time with the children during the end of term 3 New South Wales gazetted school holiday period for up to seven (7) days, provided however that the Father is to be responsible for the costs associated with any such time to be spent by the children’s stepmother with the children and provided that notification of any such intent is given to the Mother in writing no less than 14 days prior to such time with the stepmother commencing.
That the parent or stepparent not having the children living with them or spending time with them pursuant to these orders, communicate with the said children at all reasonable times as may be agreed and, failing agreement, each Tuesday, Thursday and Sunday at 7.00pm (New South Wales time) and by using all available electronic means of communication, with the parent having the children in their care to be responsible for making the call and to ensure that the children are available to take the call in a quiet and private environment.
That pursuant to Rule 15.09 of the Federal Magistrates Court Rules, a person to be nominated by the Manager, Child Dispute Services is appointed as Court Expert to inquire into and report on parenting issues in relation to the wants, needs and attachments of the children, [X] born [in] 2000 and [Y] born [in] 2002, and that:
(a)The parties co-operate with the report writer and make themselves and the children available for interview and observation;
(b)The parties share equally in the costs of the report.
(c)The report be filed in the court by 27 January 2012.
That the matter be listed for three days hearing on a date to be fixed in Townsville.
That the Applicant file and serve any affidavits of evidence in chief to be relied upon no less than 28 days prior to the date set for hearing.
That the Respondent file and serve any affidavits of evidence in chief to be relied upon no less than 18 days prior to the date set for hearing.
That each party file and serve on each other party 3 days prior to the date set for hearing, a case outline setting out:
(a)the final orders sought;
(b)a chronology;
(c)a list of documents intended to be relied upon at trial; and
(d)statement of evidence which they say supports the principles contained in section 60CC.
That the Applicant pay the setting down for hearing and daily hearing fees or file an application to reduce the hearing fee no less than 7 days prior to the date fixed for hearing.
No party has leave to rely upon any material filed outside the time provided within these directions other than with leave of the Court.
That the application be listed for a compliance check to ensure the matters readiness for trial on a date to be fixed at Townsville.
That each party be granted liberty to apply upon the giving of three days notice in writing to the other side.
IT IS NOTED that publication of this judgment under the pseudonym Walker & Winwood is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT TOWNSVILLE |
DNC 58 of 2007
| MS WALKER |
Applicant
And
| MR WINWOOD |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to orders sought with regard to the parenting of two young children: [X], born [in] 2000 10 years of age, and [Y], born [in] 2002, eight years of age. The children are the children of the relationship between Ms Walker, whom I shall refer to as the mother, and Mr Winwood, whom I shall refer to as the father. The parties were in a relationship for a period of about eight years. Subsequent to their separation, orders were made on 25 February 2009 which provided for the children to live with the parties, on a shared care basis.
That order was made by consent, and included particularly a recognition in order 10 that there would be involvement by the father’s new partner in the care and supervision of the children. Order 10 of the orders of 25 February 2009 are in these terms:
From 18 Febraury 2009 until 18 May 2009 the children, [X] born [in] 2000 and [Y] born [in] 2002 will live with the mother and spend time with the father or the father’s partner each alternate week from:
i. conclusion of school on Wednesday until the commencement of school on Monday with the father or the father’s nominee to deliver and collect the children from school.
The orders specifically were to be effective for a period of three months, from February to May of 2009. And then there was a progression from the father having the children living with him for a period of five nights each fortnight, to an equal time arrangement.
Order 11 provided for that arrangement and for handovers to occur at the conclusion of school each week, on a Monday, and to alternate each week thereafter. School holidays and other special days were then provided for pursuant to the further orders, as was necessary arrangements in relation to communication being affected by each parent with the children, when the children were not in their care. It is noteworthy perhaps, and I will comment upon it a little later in these reasons, that order 11 was not in the same terms as order 10 in that it did not provide for the continued involvement of the father’s new partner directly, in the care of the children. Order 11 is in these terms:
From 18 May 2009 the children will live with each parent for equal time on a week on, week off basis with hand over to occur at the conclusion of school each Monday and with such arrangement to alternate week to week commencing with the father spending time with the children on 18 May 2009.
The parents, however, appear to have acknowledged that that was an appropriate arrangement, because subsequent to the mother’s relocation from Darwin to Townsville, and that was agreed by the father, and the father and his partner’s relocation a little later to Townsville, the parents continued a week-about arrangement, notwithstanding that the father’s own employment as a [omitted] meant that there were a number of occasions when the father was absent from Townsville. During those occasions the children remained alternating on a weekly basis between the two households, with the father’s partner and members of her family intimately involved in the care and supervision of the children.
That appears, clearly, to have continued until the mother relocated from Townsville to [P] in New South Wales. The mother’s move was a unilateral one, though it was not completely unknown to the father, as it had been raised, the mother says, with the father prior to any move, but she acknowledges that they did not reach any agreement in relation to the move. Notwithstanding that there was no agreement reached in relation to the mother’s move, the mother, in or about the latter part of April 2011, relocated from Townsville to [P] in New South Wales, so as to live with her current husband.
The father, notwithstanding that at that time he was [working overseas], occasioned an urgent applicant to be filed in this Court, which application was returnable on 31 May 2011.
In response to the father’s application, the mother filed material which, in part, indicated that she had received advice from a solicitor in Queensland to the effect that she was able, or could, relocate with the children, and could then subsequently file an application to amend the orders, once the move had occurred. The matter was argued on the basis that the move was unilateral, and after hearing and determining the relocation and recovery application, which was brought, I made orders in terms of orders 1 through 6 of the orders of 31 May 2011. The orders were in these terms:
1.That the children, [X] born [in] 2000 and [Y] born [in] 2002, be returned to live in Townsville by 4.00pm 3 July 2011.
2. That pursuant to Section 67Q of the Family Law Act 1975 a recovery order issue authorising and directing the Marshal, all officers or agents of the Australian Federal Police and all officers of the police forces of all states and territories of the Commonwealth of Australia to take possession of the children, [X] born [in] 2000 and [Y] born [in] 2002 and to deliver the children to the care of the Applicant Father forthwith.
3. That such recovery order lie on the Registry file until 9.00am on 4 July 2011 and to be uplifted upon the request in writing by the Applicant Father.
4. That in the event of the Mother not returning to Townsville with the children:
(a)then the orders made on 25 February 2009 be discharged in so far as any arrangements for equal time to be spent with the children, and the children then live with the Father or the Father’s partner in Townsville; and
(b)the Mother spend time with the children at all reasonable times including for the entirety of the school holiday periods at the end of Terms 2 and 3 in 2011.
5. That should the mother seek variation of the orders, then the Mother have leave to file and serve an application with such application to be listed for hearing on the first available date.
6. That the Father file and serve a Response and affidavit/s within 14 days of service of the application upon him.
In particular, it is noteworthy that the recovery order was to lie on the Court file from 31 May until 4 July 2011, which of course accorded with the completion of the New South Wales term 2 gazetted school term, and enabled there to be a clean transition, if I can describe it that way, with the children then returning to North Queensland.
Thereafter, it should be noted that the mother was then to proceed with an application for variation, if she sought to do so, including an application for leave to relocate with the children, and the father was able to then respond to that application. The mother filed her application on the day that the children were to be returned to the father’s care.
The interim orders that were sought by the mother specifically proposed that there should be a discharge of the orders of 25 February 2009 and the orders that were made on 31 May 2011, and thereafter proposed that there should be equal shared parental responsibility, but more specifically, that on an interim basis, the children live with the mother and that the mother have the opportunity to relocate, with the children to [P], in New South Wales. The mother then proposed that the father have the opportunity to spend time with the children during school holiday periods and also proposed that there be arrangements for communication to be affected. The mother also sought the appointment of an independent children’s lawyer.
The father, in his response filed on 8 August 2011, sought orders on a final basis, but one assumes also in response to the interim application, that the orders of 31 May 2011, which were enforcing the orders made on 25 February 2009, remain in force, and that if the mother were not in Townsville, then that the children live with the father and spend time with the mother.
It is interesting that whilst orders were made on 31 May 2011 for the children to be returned to Townsville, it was clearly recognised, pursuant to those orders, that there would need to be some review in relation to the circumstances that existed. The reason for that is clear in that, at the present time, the children are living with their stepmother and interacting with her and members of her family, whilst the children’s biological father is [working overseas] and will be there until at least 17 November 2011, and the mother is living with her husband and their children in [P] in New South Wales.
The children are therefore not living with either parent. From the mother’s perspective, it is understandably argued therefore that this is a fundamentally irregular situation and that it places the children in a position where neither of the biological parents are able to provide for the children’s care and development.
The mother’s position therefore is to say, that in the interim the children should be placed in her care, that the mother should have leave to relocate to [P] with the children, and that following the father’s return, and obviously the father having the opportunity to then spend significant and substantial time with the children, as might be able to be arranged, that a family report be prepared or, that an independent children’s lawyer be appointed. From there, the matter be finally heard when it is clear as to what might be the children’s wishes, there being dispute between the parents as to what the wishes of the children are. Additionally, there will need to be consideration of other factors, including of course the circumstances that might exist if the children were to remain living in North Queensland, and also if the father were to [work elsewhere], such that the children would not be in the care of either parent.
I said earlier that the situation was interesting because, when dealing with the original application by the father, I was mindful of the guidance provided to this Court, exercising jurisdiction under the provisions of the Family Law Act, by Boland J in the decision of Morgan & Miles (2007) FLC 93-343. In fact, the comments made by her Honour in relation to the relevance of a settled and stable environment were clearly relied upon when I made orders with regard to the return of the children to North Queensland.
However, having made such orders, it was clear that there were further proceedings contemplated in relation to the matter, and, in that respect, I am mindful of the comments of the Full Court in Goode & Goode (2006) FLC 93-286 with regard to the course to be followed, in relation to a determination, be it final or interim, when considering arrangements with regard to the parenting of children.
In that decision of the Full Court, reference was made to what might be called the “old law”, as detailed in Cowling & Cowling (1998) FLC 92-801, where the status quo was particularly relied upon. In commenting upon that, the Full Court in Goode & Goode said, at paragraph 68, the following:
The procedure for making interim parenting orders will continue to be an abridged process where the scope of the inquiry 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.
In a commentary prepared shortly after the delivery of the reasons in Goode & Goode, Altobelli FM, on 19 December 2006, said, at paragraph 9 of his commentary, the following:
In other words the Full Court recognises all of the challenges and difficulties confronting judicial officers making decisions in interim application. However, to the extent that Cowling and its predecessor, Cilento & Cilento (1980) FLC 90-847 may have put an emphasis on status-quo or well settled environment, that is clearly no longer applicable under the current law. The Full Court noted the clear legislative intent in favour of substantial and significant involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent.
Altobelli FM then went on to note the comments made by the judges of the Full Court in paragraph 72 of Goode & Goode, where they said:
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 interest 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 of the child.
In other words, it is necessary, whether the determination is on an interim or a final basis, to consider the legislative intent and the relevant parts of the Family Law Act in relation to the determination of parenting arrangements in relation to the care of the children. The starting point is, as it always must be, the provisions of section 60CA. Section 60CA is in these terms:
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
However, there are a number of factors that must be considered in relation to the orders that might properly be made. In that regard I am of course aware particularly of the provisions of section 61DA and of the presumption of equal shared parental responsibility, when making parenting orders. Subsection (1) of section 61DA is in these terms:
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.
That presumption is able to be rebutted in circumstances of particular concern to a court, where there might have been abuse of a child or family violence or, in more general terms, where there are concerns to the Court such that it is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared and parental responsibility.
Such a situation does not arise here, because not only do the parents both propose that there should be equal shared parental responsibility, the mother seeking an order specifically to that effect in her application before the Court and the father simply seeking the continuation of the operation of orders which included equal parental responsibility, but there is not, fortunately, and to the parties’ credit in this matter, much, if anything, that would give rise to a concern to the Court such that it might be considered inappropriate for there to be orders in relation to equal shared parental responsibility.
The parties have been able to work together, although I should note that in the earlier part of 2011, in or around April 2011, there was clearly a lack of agreement in respect of the arrangements that should be put into effect with regard to the children and with whom they might be living, particularly in light of the mother seeking to relocate. Otherwise, however, it appears clear that the parties have been able to work together and that the mother and the father, no doubt with the assistance and support of their new partners and extended family, have been able to ensure that the children’s best interests have been to the fore. There are no suggestions of domestic violence within the relationship and that again augurs well for the future.
In any event, on the material that is before me at this time and particularly being reflective of what each of the parents have sought, I would see no impediment to the presumption of equal shared parental responsibility continuing and I intend to make such an order, in relation to this particular matter.
In that case, of course, it is necessary also to consider the children spending equal time, or substantial and significant time, with each of the parents. That arises pursuant to the direction that is provided legislatively under the provisions of section 65DAA of the Family Law Act. That has been what has existed for some considerable time and, as I noted earlier, notwithstanding that there were times when the father was himself, because of work commitments, absent from the care arrangements in relation to the children, the father’s household and the mother’s household have shared equally in the care and responsibility for the children.
Of course, the presumption of equal shared parental responsibility leads, as I have already indicated, to a requirement for the Court to give consideration to equal time or substantial and significant time, but one of the factors that clearly must be looked at in relation to that is whether it is practicable for that to occur. Section 65DAA(5) sets out specifically what is anticipated by the legislature as reflecting reasonable practicability. Section 65DAA(5) is in these terms:
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.
The father lives generally in Townsville, though of course being employed by [omitted] there is always the possibility of [being transferred] to a place other than Townsville, but the father comments upon that in his material and at the present time there is no reason to believe other than that there would be good prospects of the father and his family remaining well and truly established in Townsville, now and into the future.
The mother, however, has indicated just as clearly in her material that the move occasioned between she and her new husband has been brought about because of family concerns, particularly relating to the health of her new husband’s mother and the need to provide care and assistance for her. The mother understandably wishes to continue in her relationship with her new husband and that is a factor which has led to her currently living in [P] in New South Wales.
The very first of the considerations that need to be looked at, therefore, is how far apart the parents live and in this instance it is some thousands of kilometres. Thereafter it is, of course, impossible to consider orders in relation to equal time or substantial and significant time because of that geographic consideration.
It is that factor which obviously gives rise to the finding that I must make in relation to this matter, that equal time or even substantial and significant time would not be practicable.
Therefore, to determine what might be in the best interests of the children on both an interim but, perhaps in the longer term also upon a final basis, it is necessary to go back to a consideration of the objects of the Act relating to children and to the principles underlying it, as well as then to consider those matters that are specifically referred to in section 60CC(c) relating to how a court determines what is in a child’s best interests.
Section 60B is in these terms:
(1)[Object of Part] 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 interest 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)[Principles underlying object] 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)[Right of Aboriginal child or Torres Strait Islander child to enjoy their culture] 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.
It is noteworthy, and I have commented upon it previously, that the objects of the Act as set out in subsection (1) do not make reference to other persons in a child’s life, other than their biological parents, notwithstanding the significance that they might have in relation to the child. For example, sections 60B(1)(a), (b), (c) and (d) speak of the need to ensure that the best interests of the children are met by ensuring that they have the benefit of both of their parents having a meaningful involvement in their lives, of protecting the children from physical or psychological harm, of ensuring that the children receive adequate and proper parenting and ensuring that the parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
Only in the principles which underlie the objects, as set out in section 60B(2), is there reference to the children’s right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care, welfare and development. It is noteworthy, in particular, that the reference in section 60B(2)(b) with regard to other people being significant in the children’s lives, relates only to the right to spend time on a regular basis with those persons and not, more specifically, the right to have a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child.
In other words, the legislature has specifically drawn a distinction between the role and responsibility of the biological parents of the children, as opposed to the involvement of other persons significant to the children’s care, welfare and development. It is a significant factor, and becomes more important in relation to the determination of this matter when it is noted, as is obviously the case here, that the current situation that exists is one where the children are not having a meaningful relationship on a continuing basis with either of their biological parents because of the fact that the mother is living in New South Wales and the father is [working overseas].
It is a factor which is extremely relevant, certainly in relation to the interim determination of this matter, where for at least the next three months, the father will be specifically absent from the lives of the children other than by way of electronic communication which could be effected from [overseas] to wherever the children might live, be it Townsville, [P], New South Wales, or, in fact, any other place.
I turn then, as I must, to the provisions of section 60CC and in particular, subsections (2) and (3). Section 60CC(2) and (3) are in these terms:
(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.
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 willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(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 parent son 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 of 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)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(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.
The primary considerations are set out in section 60CC(2). They refer to the benefit of the child having a meaningful relationship with both of the child’s parents and the need to protect the children from physical or psychological harm. As I have already indicated, there is not, in my view, any need for steps to be taken with regard to the protection of the children from physical harm, though there may, at least inferentially, be a concern as to psychological harm being effected upon the children if it were to be a continued situation of the children not having the opportunity to live with either of their biological parents.
It is a matter which may need to be further investigated in relation to these proceedings, but certainly it is not a factor which is of great influence, if any, particularly with regard to the interim determination of these proceedings.
The real and overriding primary consideration with regard to the interim determination, at least, is that which is set out in section 60CC(2)(a) which relates to the recognition of the benefit to the child or children of having a meaningful relationship with both of their parents. Here, that is impossible.
At the present time, the father is [overseas] as a result of his [employment]. The mother is in [P] because of the pressures and concerns which arise in relation to the health and wellbeing of her husband’s mother. It is not, I would think, a situation that the mother in any way wished to be forced into but rather is one where, clearly, the circumstances of her life have led to a need to be with her husband in [P] in New South Wales.
She comments in her material about the financial difficulties of trying to maintain two households, and that occurred for a period of about six months from September of 2010 until when the mother finally made a move to New South Wales, in April of 2011. She makes reference to the fact, in particular, that she and her new husband have a young child and of the need also to balance that child’s right to a meaningful relationship with her husband with these children’s right to a meaningful relationship with both of their parents.
But here, of course, and it cannot be avoided and it cannot be emphasised enough, the situation is simply that the father is not available at this time to have anything other than an electronic relationship with the children. It is a matter of great significance, and whilst it is clear that the primary considerations do not usurp or trump the additional considerations that arise pursuant to the provisions of section 60CC(3), it is clear also that the Parliament, in considering the legislative framework for determining what is in a child’s best interests, were of the mind to recognise that the child’s right to a relationship of a meaningful nature with both of the child’s parents, was of a primary nature.
I turn, obviously then, to the provisions of subsection (3) of section 60CC and note that in many respects there is little to differentiate between the abilities of both parents and their capacity to meet the needs of the children. Obviously any views that are expressed by the children may, in fact, be very different when the children are speaking to one parent or the other. It is not an uncommon situation to arise in relation to circumstances of relocation or, in fact, any parenting arrangement, to find that the children will tell one parent what that parent may wish to hear and tell the other parent exactly the opposite thing assessing, as children do, that that is what the parent wants to hear.
At the present time, there is no basis upon which I could properly make findings as to the wishes of the children, other than to generally comment that they would, of course, wish to have the opportunity for as close an interaction as possible with both of their biological parents. The nature of the relationship the children have with each of their parents is clearly strong, and that is reflected in the positive working arrangements that have been in place for a significant period of time.
Relevant in relation to this matter is the consideration that arises pursuant to the provisions of section 60CC(3)(c) in that there needs to be an assessment of the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
Here, there is a concern that I do have in relation to the father’s willingness to foster that relationship, because there seems to be a real determination on the part of the father to place the relationship with his wife, the children’s stepmother, and the geographic locality of Townsville, over and above the importance to the children of continued interaction and involvement with their mother.
It is a matter that does give rise to some concern in relation to these proceedings and the determination of the father, even in the face of him recognising that he will be absent for at least another three-month period, to have the children separate and apart from their mother, is a matter that does give rise to concern in relation to this matter. It may be, of course, that in a final determination, when certainly circumstances have changed, including no doubt the father’s return to Australia and a more specific indication of what his position might be with regard to any further [employment] transfers, that there will be a reconsideration necessary. But at this stage, it is a factor which weighs in favour of the mother.
Similarly, those matters that arise pursuant to the provisions of section 60CC(3)(d) are relevant in that, at the present time, there is a balance to be looked at between the effect on the children of a separation from one or other of their parents but particularly here, their mother, the father, for reasons to which I have already referred not being available, as opposed to the effect on the children of separation from other significant persons, including of course their step-mother and members of her extended family.
Being mindful of the objects to which I have already referred arising pursuant to the provisions of section 60B(1), I must say that in all likelihood, and I would find, that there is a greater prospect of a detrimental effect upon the children from continued separation from their mother than would be the case arising from their separation, from their stepmother and extended family.
There is an expense of the children spending time with and communicating with the other parent, no matter what arrangements are in place, but at the present time there is a real distinction again to be drawn as between the circumstances of the children being in Townsville as opposed to the circumstances of the children being in New South Wales. If they were in [P] in New South Wales, they would be in the care of their mother, able to interact with her on a daily basis and would be able to communicate with their father on exactly the same terms and basis as they currently do.
If, however, they were to remain in Townsville in the care of their stepmother, then the opportunity for a meaningful relationship with their mother would be lost to a very significant degree if not almost entirely, whilst the interaction and relationship with the father would be unchanged. It is a matter, particularly in relation to the interim determination, which in my view is almost an overwhelming factor in favour of the determination of this matter on an interim basis in favour of the mother.
Additional considerations that are necessarily required to be considered in relation to the matter, including references to the attitude to the child and to the responsibilities of parenthood, as well as matters relating to family violence and the like, are not, in my view, relevant in relation to this matter. But there is, arising pursuant to the provisions of section 60CC(3)(m), one other factor that does need to be referred to.
That relates specifically to the fact that the mother and her new husband have another child, and that child is, of course, a sibling to the two children, the subject of these proceedings. When the children have been in the mother’s household, they had continued interaction with their sister, [Z], and the fact that they may only be half-siblings is a matter of little consequence when, to the children, it would no doubt clearly be the case that they were not now having the opportunity to spend time with, and interact with, their young sister, which was the case prior to the orders which were made for their return to Townsville on 31 May 2011.
It is a factor which must be taken into consideration with regard to this matter, because this child is, like the stepmother and other family members, a significant person in these children’s lives, and there is no doubt a consideration that must be looked at with regard to the effect, not only upon these children, of their relationship with their mother and others, but also the flow-on effect upon the child [Z], it being clear that her whole life would have involved her older brother and sister, up until the orders of 31 May 2011.
Suffice it to say, therefore, that in the end, I have come to the decision that at least on an interim basis, the appropriate orders in relation to this matter would be orders that provide for the parties to continue to have equal shared parental responsibility, but for the children to live with the mother. I intend to make such an order at this time, and to then make an order with regard for the preparation of the family report, to be prepared at a time after the father has returned from his [employment overseas], and therefore to enable the interviews to be conducted in Townsville. It may be that the mother will need to make arrangements to involve herself in those interviews also, but it is clear that there will need to be an opportunity to consider the views and wishes of the children, and for there to be an expert assessment in relation to the households and to the capacity of each of the parents in relation to a final determination.
Whilst I am mindful, in particular in that regard, of the fact the mother in her material indicates that she and her husband are not presently in employment, there are hopes for future arrangements in relation to employment, obviously for both she and her husband, and that is a factor be considered, along with the very real understanding that it is the mother’s desire for relocation at this time which gives rise to the proceedings that are now before the Court.
I make those comments, because whilst I intend obviously to order the preparation of a family report, in my assessment it is appropriate that it be a report which is funded by each of the parties jointly, from their own funds, rather than for there to be an order made for the report to be prepared through the auspices of the family consultants attached to the Family Law Courts. It is appropriate that that should occur, and that proper arrangements are made in that respect with the mother to be responsible for the costs associated with that.
Additionally, it is important that there should be orders in place with regard to the father’s opportunity to communicate with the children and, subsequent to 17 November 2011, to spend time with the children. I do not intend, at this stage, to make orders with regard to the end of term 3, September/October 2011, school holiday period, it being clear that the father will not be able to participate in time spent with the children during that school holiday period, but if there is an opportunity to spend time with the children’s stepmother, and that is able to be facilitated, either in New South Wales or in Townsville then, subject to arrangements properly being able to be made by the father and his wife, then there should be an opportunity for a week to be spent during that end of term 3 school holiday with the stepmother.
Otherwise, however, it is appropriate that there should be in place arrangements that are able to be facilitated for the preparation of the family report, and also to coincide with the end of term 4 Christmas/New Year school holiday period. The mother’s proposal is that the father should have time with the children for a period of three weeks, and it is noteworthy that the father’s response suggests that the time to be spent by the children with the mother, if the children were to remain in his care, was for a period of one-half of the Christmas school holidays. In my assessment, particularly in light of the time that will have passed, there should be greater opportunities in that regard.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Coker FM
Date: 19 August 2011
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