WARNER & WARNER

[2016] FCCA 1887

FEDERAL CIRCUIT COURT OF AUSTRALIA

WARNER & WARNER [2016] FCCA 1887

Catchwords:

FAMILY LAW – Children – with whom a child lives – relocation – mother seeking to relocate with the children from Sydney to Perth – father opposes the relocation – mother has been primary carer – father travels frequently for work – children allowed to relocate to Perth on an Interim basis.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR WARNER

Respondent: MS WARNER

File Number: SYC 5470 of 2015

Judgment of: Judge Henderson

Hearing dates: 27-29 January 2016

Date of Last Submission: 29 January 2016

Delivered at: Sydney

Delivered on: 29 January 2016

REPRESENTATION

Counsel for the Applicant: Mr Reeve

Solicitors for the Applicant: Marsdens Law Group

Counsel for the Respondent: Mr D. Dura

Solicitors for the Respondent: Johnsons Solicitors and Attorneys

Counsel for the Independent Children’s Lawyer: Ms Breeze

Solicitors for the Independent Children’s Lawyer: Stephen W Bell & Associates

ORDERS PENDING FURTHER ORDER

1. That the children live with the Mother at all times other than when they are spending time with the Father pursuant to these Orders.

2. That the Mother be permitted to relocate with the children to Perth, Western Australia.

3. That the children spend time with the Father as follows;

   (a)During school terms 1 and 3 holidays:

   (i)Commencing from 9:00am on the first day of the school holiday period to 6:00pm on the last Friday of the school holiday period; and

   (ii)Such further times as agreed between the parties.

   (b)During the school term 2 holidays;

   (i)For a period of one (1) week commencing from 9:00am on the first Monday of the school holiday period to 6:00pm the following Sunday; and

   (ii)Such further times as agreed to between the parties

   (c)Such other times as agreed to between the parties during periods where the Father has travelled to Perth either to visit the children or for work related reasons.

4. That for the purposes of Order 3:

   (a)The Mother provide to the Father a travel itinerary by email at least 14 days before the start of every school holiday period referred to in that Order;

   (b)When the children are to spend time with the Father in Sydney

   (i)The Mother or her nominee is to take the children to the nominated airport in Perth and ensure that the children are placed on the aircraft for travel to Sydney and shall send the Father an SMS message confirming that the children have boarded their flight.  The Father or his nominee shall ensure that he or his nominee is at the airport in Sydney to collect the children and shall send the Mother an SMS message confirming that he has collected the children;

   (ii)The Father or his nominee is to take the children to the Sydney airport at the conclusion of all visits and ensure that the children are placed on the aircraft for travel to Perth and shall send the Mother an SMS message confirming that the children have boarded their flight.  The Mother or her nominee shall ensure that she or her nominee is at the airport to collect the children and shall send the Father an SMS message confirming that she has collected the children;

   (iii)That if either party is not personally transporting the children to or from the airport, they are to tell the other in advance who will be doing so;

   (iv)Both parties are to equally share the cost of the airfares required to facilitate the children’s contact with the Father;

   (v)If the Father is planning to travel to Perth and wishes to spend time with the children under Order 3(d), the Father is to provide the Mother with notice of his intention to spend time with children by email at least 21 days prior to his arrival in Perth.

5. That while the children and the Mother live in Perth, the children communicate with the Father by telephone or Skype three times weekly;

   (a)On Monday, Wednesday and Friday between 8:00pm and 9:00pm Australian Eastern Standard Time during the summer daylight savings period, the Father to initiate the call;

   (b)On Monday, Wednesday and Friday between 7:00pm and 8:00pm Australian Eastern Standard Time outside the summer daylight savings period, the Father to initiate the call;

   (c)At any other time when the children wish to ring the Father;

   (d)The Mother will ensure that the Father is informed of the number on which the children can be reached, and ensure she is available to receive the call;

   (e)The Mother will let the children take such calls in private, and in without interruption; and

   (f)The Mother arrange for the children to ring the Father on a landline or mobile phone number provided by the Father, unless the Father notifies the Mother of his preference to communicate using Skype, in which case the Mother will ensure that communication by that means occurs at the time specified.

6. That when the children spend time with the Father during holidays under these Order the Mother may communicate with the children at the same times as the Father does when the children are with the Mother, the Father to let the child have privacy during such calls, without interruption.

7. The Father communicates with the children by email freely, the Mother to maintain an email address for the children and inform the Father forthwith of any interruption to that service.

8. That with a denial of the necessity for the same the Mother be and is hereby restrained from using any surname for the children but Warner when enrolling the children in any school or otherwise.

9. That the Mother:

   (a)Authorises the children’s school to provide the Father with copies of school reports, notices, other publications and any information he may request about the children; and

   (b)Will keep the Father informed of the children’s significant school and extracurricular activities.

10. That each party inform the other as soon as practicable of any medical emergency involving the children.

11. That the Mother authorizes any medical practitioner, psychologist or other health care processional seen by the children to contact the Father so as to provide him at his experience with any information about the children that he should seek.

12. That the parties keep each other informed of their current residential addresses, home and mobile telephone numbers, and email addresses

13. That neither party is to denigrate the other whilst the children are in their care.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5470 of 2015

MR WARNER

Applicant

And

MS WARNER

Respondent

REASONS FOR JUDGMENT

1. In the matter of Warner & Warner, I am tasked, ultimately, to make a decision about whether the children should live with their mother in Perth, with her new partner or remain in Sydney, living with their father and his parents and other family.  This is a relocation and Australia is a huge country.  We really do not get much further from Sydney than Perth perhaps (omitted) but Perth is a long way.

2. This is a case where the parties have clearly stated their position.  The father is clearly of the view or his preference is that the children remain in Sydney, living with their mother.  That tells me many things, which is that the children will always live with their mother that he is content for the children to live with their mother and he is satisfied with the children living with their mother. That is a sensible, proper and realistic approach the father has taken, because that is the reality.  These children have always lived with their mum. 

3. The children have always been cared for by their mother whilst their father pursued his career and earnt the majority of the income for the family. The father is engaged in (omitted) work with (employer omitted). We as a nation must be grateful for his dedication. He described this job as his dream job. I accept he can only pursue this job in Sydney .

4. However, the mother is not remaining living in Sydney.  She and her new partner, Mr B, are going to go to Perth.  He is also in the (employer omitted) and he like the father is pursuing his career. In Perth he will be doing something he has always wanted to do work with the (employer omitted). In Perth Mr B has an opportunity to pursue his dream job as the father is doing in working with (employer omitted). 

5. I have no option available to make the mother remain in Sydney as the father wishes. I cannot cause her to do that as she is entitled to live where she wants to live. The mother has told me, the family consultant in the family report, in her affidavits and in her oral evidence, she cannot live in Sydney. The mother has given her reasons for that and I could not say that those reasons are not cogent.  The mother is not being malicious or vexatious. Nor is she seeking to go to Perth on a mere whim.  The mother’s reasons are sound and reasonable and are accepted by me, not the mother needs to have cogent reasons.

6. The evidence I have read has been, mercilessly, not voluminous.

7. I have read updated affidavits of each of the mother and the father filed January 2016

8. The paternal grandparents’ affidavits filed

9. Affidavit of Mr A, the mother’s new partner filed

10. I have read the family report that was prepared in January 2016.

11. The mother, the father, the paternal grandmother and the family consultant have been cross-examined.  The only evidence I have not finalised is Mr A, the mother’s partner. 

12. The matter is to be completed in September 2016 and I  will make an interim decision on the evidence thus far which is more evidence than I would usually have in an interim decision albeit one of profound consequences for not only the parents but particularly the children.

The family consultant’s report: 

1. I formed the view the report was deficient, for a relocation matter in that I saw very little analysis by the report writer of options and consequences for the children of not living with their mother or the children’s perceptions of not living with their mother.  The reason for this deficiency became clear in cross-examination of the family consultant.  It was because the children had never contemplated not living with their mother.  In cross examination the family consultant agreed that that was exactly the position that she had taken in her recommendations and in her report that the children would be living with their mother no matter where.

2. The family consultant perhaps, did not accept that the mother would go to Perth in the absence of the children, and perhaps, formed a view that the mother would change her mind if the Court said the children cannot relocate with their mother.  However the mother has made her position clear she is going to Perth.  The family consultant was very clear in her oral evidence that the children living in Sydney with their father would be a shock to them.  It is not something they have contemplated or they have thought about.  They have thought they would be living with their mother and told the family consultant this was their view and she commented on that in her report.  The children were of a view they were going to live with their mother, and they were going to live with their mother in Perth and for the children this is what they believed was going to happen.

3. The mother in her oral evidence was clear. Never for a moment did she think the father would challenge her taking the children to live with her in Perth because, as she said, she has been their primary carer.  She has been the one on the ground.  He has worked and been deployed on three occasions for lengthy periods of time during their marriage.  I accept one deployment in 2009 may not now be so relevant.  The two more recent deployments in 2014 and late 2011/2012 were on the father’s own evidence for a minimum of two to three months a year. 

4. Thus the mother has been the children’s constant.  The parent doing those necessary things for children and has always there with them.  They know their mother is there to assist and care for them, and she has done a good job.  When their father is at home there is nothing other to find than that he does all he can and bogs in and helps. The mother agreed this was the case and said so in her affidavit.  When he was at home he went straight back into parenting and caring for his children.  However this is different to the concept or idea of the children living with their father in the absence of their mother. The children have not contemplated living in Sydney in the absence of their mother. This is what the family consultant said and this is clear throughout the report.  Once the family consultant explained this clear contemplation or understanding of the children to me I could, perhaps, understand why this report did not canvass what normally it should have canvassed – the children’s concept of living primarily without their mother and the consequences for them of that option. 

5. The children talked of the concept of not living with their father in the same city and seeing him weekly as they do now and what that would mean.  They will miss their father.  They love their father.  X wants to spend a week about with their father, whether she lives in Perth or Sydney.  She does not understand that this cannot be the case but this wish indicates the strength of her relationship and attachment to her father.

6. Mr Reeve quite properly says this is an interim decision and as an interim decision – I should not be, as it were, second guessing a final hearing, and making a decision where children should live twice. There is no doubt me permitting the mother to take the children to Perth, during the adjourned period will be a significant and substantial change to their usual care arrangements, which is living in Sydney with their mum and dad sharing their care whether that be equal or not is not the salient issue to the children it would appear. 

7. The change to Perth is a significant change.  They will attend a different school.  They will change their usual activities of dancing, miss their friends, their parties and the usual things they do.  So Mr Reeve’s point that this was a factor I have to consider, and a very important factor, is correct and it looms large.

8. However, Ms Breeze for the children, who with Mr Dura for the mother, supports the children moving to Perth on the interim basis with their mother. 

9. Ms Breeze, perhaps, summed the gravamen of the matter clearly which is that if now we know the mother is going to move to Perth with Mr A with or without the children and they remain in Sydney these children will be in a situation they have never been in before, that is, they would be living in Sydney with their father without their mother, cared for by their father with the assistance of his parents, because and with no criticism, he cannot do it on his own, given the nature of his work.

10. They have never been cared for by their father full-time.  They have never been cared for by their grandparents full-time.  The longest they’ve been with their dad was 10 days.  I accept they can spend longer than 10 days with their father but their father has never done the doctor’s appointments, the school uniforms on his own, as the mother has done.  He has always been there to help when he can but he has worked.

11. As I see it on the evidence the most significant change for these children is that they remain in Sydney in the absence of their mother’s full-time care, which they have always been used to and which has been the reality and their life.  That is how they were cared for before these proceedings happened.  To live in Sydney without their mother would be a fundamental significant change, which the family consultant said would come as a shock to them.  The family consultant said that the children would suffer far more from that change, not living with their mother than what they will suffer namely grief and loss in not seeing their father weekly, as they are used to doing if they are living in Perth.

12. This is an interim hearing.  I must  have regard to the factors under the Family Law Act[1]. 

    [1] Family Law Act 1975 (Cth)

13. The parents agree on equal shared parental responsibility. That is an appropriate order in the children’s best interests

14. With the mother in Perth and the father in Sydney there cannot be equal time or significant and substantial time.  It is neither practical nor realistic.  Thus I must determine the order for time.

15. The parents have agreed fundamentally on the order for time which will be a mirror image whether the children are in Sydney or in Perth. 

16. There is a significant cost to the children living in Perth or living in Sydney.  The cost is the same no matter which state the children live in.  There is a significant cost of them spending time with the other parent.  Either way there is equity in that sense.  The parents have agreed to share half those costs, and the mother’s orders provide for that.

17. Looking at the matters I must under the Act, these children benefit from a meaningful relationship with both of their parents and they have a meaningful relationship with both of their parents.

18. The children’s relationship with their father has strengthened and blossomed since separation in, as Mr Dura says, difficult circumstances.  AVOs, the mother having a relationship with the father’s best friend, her best friend’s rude Facebook posts, very hurtful Facebook posts from family members which have done nothing to assist the parents to deal with this difficult situation and yet the children’s relationship with their father has strengthened and grown.  That is a testament to the mother’s capacity as a parent and their secure attachment to her and a testament to their father’s understanding and capacity to deal with his children’s hurt and demonstrates that he understands the different children they are and takes every opportunity to spend time with them .

19. So these children are lucky.  They have parents who know them well, are able to parent them well, care for them well and even in such difficult circumstances as these parents have been put under, are still able to co-parent their children.  It really is a remarkable thing, which I do not often see.

20. I do not see that the children have been subjected to physical or psychological harm, abuse or neglect or violence directly from the parent.  There are reports in the mother’s material of the father throwing a plate of food at her, demeaning her, yelling at her in the presence of the children.  That is a matter I will deal with at the final hearing and will not make a particular finding on that today.

21. Insofar as the way the parents treat the children I do not see the children are at risk of harm in either parents' house or from either parent. 

22. The views of the children they want them to live with their mother and father as they are used to.  With a seven year old child, such as X, clearly the weight I can attach to her views is limited as she wants to spend a week about with her mum and dad but live with her mum in Perth. 

23. The children are excited about going to Perth.  All kids are excited about something new.  As their father said, the beach is a big pool.  However, the weight I attach to the children’s views of living in Perth in a matter like this is somewhat minimal, because the assumption of these children was they were going to live with their mum in Perth.  That is what the children believed.  That is clear from the family report.

24. The nature of the children’s relationship with each of their parents and any other people.  The children have a strong and close attachment to each their mum and dad, but their mother has been their primary carer.  That is clear and it is just a factual matter that no one could cavil with, as I see it on the evidence.

1. Grandparents. The children have a relationship with the maternal grandparents who they spend holidays with and who live in (omitted).  They have developed a growing relationship with the paternal grandparents who have come to Sydney to support their son and have been instrumental in caring for the children in the last year. This is a relationship that is developing and the children have gained much from those relationships.

2. Both parents have always taken an opportunity to spend time with their children.  They are involved in their social activities, their education and their sporting activities. These parents parent their children to a high standard.  Neither parent has failed to fulfil any obligation that they have to their children.

3. The likely effect of changes in the child circumstances. As I see the evidence, the greatest and most detrimental impact upon these children is that they remain in Sydney and their mother lives in Perth.

4. I accept that going to Perth is a new environment for them, new schools, new home to live in, new rules, new ways of living.  They will miss their father, their grandparents, their school and their usual activities.

5. However on the evidence from the family consultant, the mother’s evidence and the children’s views, the impact on not living with their mother, their primary carer, will as I see it have the most negative and potentially detrimental impact upon the children

6. I have addressed the practical difficulty of time which is equal whether they stay in Sydney or go to Perth and the parents have agreed to share costs.

The capacity of the parents 

1. The mother has an impressive capacity to parent her children, both on her own at times for lengthy periods of times while their father was away but, in particular, to promote a positive attitude towards the children’s relationship with their dad and extended family in very difficult circumstances.  Their father’s capacity to promote that same attitude about the mother in the children is not tested and there is some concern.

2. Mr Dura asked the father about what were the positives for the children moving to Perth.  The father said in his oral evidence “they will have their mother with them, but I’m not sure if that’s a positive”.  That is a comment that caused me some concern.  That is clearly a positive for the children.  This is not a competition for children’s affections it is just the way things have worked out with these children and how it has been. Having said that, the father has a high capacity to care for his children, parent them, understand them and provide for their emotional and psychological needs. 

3. Each parent takes their attitude to responsibilities of parenthood and attitude to their child seriously and will always protect and promote their child’s interests above their own.

4. On an interim basis, I find that it is a significant risk to these children’s psychological and emotional functioning if they are separated from their mother at this point in time.  Ultimately, after all the evidence is in and I have concluded the final hearing, I may come to a different decision as Mr A’s evidence is yet to be tested or final  submissions made and I will review all the evidence heard.  On an interim basis and given the consequences for the children in suddenly living in an environment they have never been in namely their mother being  absent from their care and the negative consequences that may flow I find that the children should be permitted to live in Perth with their mother pending the final determination of this Court.

5. Unless there is any objection, Mr Reeve, I propose to make on an interim basis orders 2, 3, 4A, B, D, 5, 6 and 7 to 14 of the mother’s response with the following additions that the father will return the children to the mother two hours prior to their flight from Sydney to Perth, and the mother will text message the father with those times and details as soon as she possibly can.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Henderson.

Date: 22 July 2016