Watson and Smallridge
[2010] FamCA 36
•28 January 2010
FAMILY COURT OF AUSTRALIA
| WATSON & SMALLRIDGE | [2010] FamCA 36 |
| FAMILY LAW – CHILDREN – Equal shared parental responsibility – With whom a child lives – With whom a child spends time – With whom a child communicates – Child’s view – Relocation |
| Family Law Act 1975 (CthI ss 60B(1), 60B(2), 60CC, 60CA, 61C, 61DA and 68B |
| Marsden & Winch [2009] FamCAFC 152 Rice & Asplund (1979) FLC 90-725 Starr & Duggan [2009] FamCAFC Taylor & Barker [2007] FamCA 1246 U v U (2002) 211 CLR 238; (2002) FLC 93 Bolitho & Cohen (2005) FLC 93-224 |
| APPLICANT: | Ms Watson |
| RESPONDENT: | Mr Smallridge |
| FILE NUMBER: | HBC | 825 | of | 2008 |
| DATE DELIVERED: | 28 January 2010 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 20 & 21 January 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mrs Di Giovanni |
| SOLICITOR FOR THE APPLICANT: | Wallace Wilkinson & Webster |
| COUNSEL FOR THE RESPONDENT: | Mr Dixon S.C with Ms Leary |
| SOLICITOR FOR THE RESPONDENT: | Abetz Curtis Lawyers |
Orders
Prior parenting orders in relation to L (born …/4/2001) and J (born …/08/2005) (“the children”) be discharged.
Mr Smallridge (“the father”) and Ms Watson (“the mother”) have equal shared parental responsibility for the children.
The children live with the mother, and she is permitted to reside in Brisbane, Queensland.
If the children are not otherwise spending time with the Father, the children shall communicate with the him as follows:
(a)by telephone, Webcam or similar visual technology on no less than two days per week, at times and particular days to be agreed.
(b)by Webcam or similar visual technology or telephone on the morning of the children’s birthday, the Father’s birthday and Fathers Day if the children are not otherwise with the Father on those days.
If the children are not otherwise living with the Mother, the children shall communicate with the her as follows:
(a)by telephone, webcam or similar visual technology on no less than two days per week at times and particular days to be agreed.
(b)by Webcam or similar visual technology or telephone on the morning of the children’s birthday and the Mother’s birthday.
The parties do all things reasonable to promote communication as set out in these orders including, but not limited to, ensuring that the children are available to communicate at the designated times, by maintaining an internet connection of such speed so as to ensure that the Webcam/Skype communication is working at optimum level and by encouraging the children to participate and ensuring there are no disruptions or distractions during the communication and or interference by the other parent.
The children spend time with the Father:
(a)for one half of all three mid-term school holidays (including Easter) but not including the Christmas/New Year school holidays. These times being the first half of school mid-term holidays in 2010 and each alternate year thereafter and the second half of school mid-term holidays in 2011 and each alternate year thereafter;
(b)for the Christmas/New Year school holiday periods for December 2010/January 2011 and then each alternate year thereafter from 3.00 pm on Christmas Day for a period of three weeks.
(c)for the December 2011/January 2012 school holidays and each alternate year thereafter from the first day of those school holiday periods until 3.00 pm on Christmas Day and then two weeks from 3.00pm on 5 January in each such alternate year as agreed (2012, 2014, 2016 etc)
(d)in Brisbane (during each of the 4 annual school terms) for 2 one week periods or 1 two week period from 9.00 am Saturday to 9.00 am the following Saturday or if two weeks, 9.00 am the following Saturday fortnight provided that;
(i)the father provide the mother six (6) weeks notice of each planned visit;
(ii)such weekends shall not include the first or last week of school term; and
(iii)such weekends shall not include the mother’s day weekend.
(e)Such other times as the parties may agree in writing.
For the purposes of the children spending time with the father during the mid-term school holidays the father shall be responsible for the children’s air travel from Brisbane to Hobart at the commencement of such holiday periods and the mother shall be responsible for the children’s air travel from Hobart to Brisbane at the end of such holiday periods.
In terms of the Christmas/New Year holidays, the mother shall be responsible for any airfares of the children returning to Brisbane in the January of each school holiday period AND the father shall be otherwise responsible for the collection and return of the children over those Christmas school holiday periods and in the school term periods.
For the purpose of these orders if the children, or either of them, are required by airline policy to have a parent travel with them, the parent responsible for the particular air travel shall be responsible for his/her own costs associated with travelling to collect the children and returning the children in accordance with these orders.
(a)The Father and the Mother shall correspond by email and for the purposes of these orders the parties are to inform the other and keep the other informed of a current, working email address at all times.
At all times the parties will each ensure the other has:
(a)a telephone contact number available for the other party to speak with the children while the children are in the care of the other party.
(b)details of where the children will live when the children are in the care of the other party; and
(c)each party shall keep the other informed of any changes throughout the duration of these orders.
Each party shall keep the other party informed of any significant health issues affecting the children, or either of them, including the name of any treating health care professional and keep the other party informed of any educational issues affecting the children.
Neither party shall denigrate the other party or members of the other party’s family to the children or in the presence of the children or at all.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered the same.
All outstanding applications be dismissed.
This matter be removed from the list of cases requiring determination.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend
IT IS NOTED that publication of this judgment under the pseudonym Watson & Smallridge is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBC 825 of 2008
| MS WATSON |
Applicant
and
| MR SMALLRIDGE |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Mr Smallridge (“the father”) and Ms Watson (“the mother”) have two children, L aged eight (soon to be nine) and J aged four and a half.
In November 2008 orders were made allowing the mother to temporarily relocate the residence of the children from Hobart to Brisbane. These orders were made after a contested hearing. The mother now seeks orders that she and the children be permanently permitted to reside in Brisbane. The father opposes the application.
The father says the ‘rule’ in Rice & Asplund[1] should apply and the mother’s application should be summarily dismissed. Further he submits that if the application is not dealt with summarily, then it would be in the children’s best interests for them to return with the mother and live in Hobart, Tasmania.
[1] (1979) FLC 90-725
The mother wishes to live in Brisbane but says that if the children are not permitted to relocate their home to that city she will return with them to live in Hobart. The father lives in Tasmania and is unwilling to move his residence from the Hobart area to Brisbane.
The mother says that since the Order were made by me in 2008, enabling the children and her to temporarily live in Brisbane, there have been a number of significant changes in terms of her circumstances. These changes include the mother finding full time work in Brisbane which she says meet her needs and those of the children, that she and the children have become settled and happy in Brisbane. The mother says she is greatly assisted and supported by her parents and sister and that her parents are committed to moving to Brisbane in the immediate future. The mother’s sister BL (“the mother’s sister”) lives in Brisbane. The mother says that if she is required to live in Hobart she would be isolated from her parents and sister and that she will suffer emotionally in having to remain living in Hobart and this will impact upon the children. The mother says that with the move to Brisbane she has developed greater self confidence. The mother also says she provides the primary financial support for the children. She is concerned that the father’s financial support of the children is tenuous.
The father says that the mother’s motives for moving to Brisbane are designed to restrict his time with the children rather than any genuine attempt for her to move on. He is concerned that the children’s relationship with him will deteriorate and that the children need him as a male role model. The father wants to develop and extend his parenting role in relation to the children and says he is better able to do so if they live in Hobart.
BACKGROUND
The mother is aged 42. The father is aged 41. They commenced living together in about 2000 and separated in October 2005. There is no issue that the mother has been, and is, the primary carer for the children, both before and after separation. I repeat the findings of fact I made in my reasons of 18 November 2008.
After the mother moved the children to Brisbane in 2008, she continued her role as primary carer, she worked full time and was assisted by her parents and to a much lesser degree her sister.
The mother’s sister lives about a twenty minutes drive away from the mother’s home by car. The mother’s sister is married with a 2½ year old son. She is also a teacher at L’s school. I find she provides emotional and practical support for the mother.
The mother’s sister has had health difficulties over the last 12 months. The mother’s sister has been diagnosed with and has been treated for melanomas. She has recently been advised of indicators of further melanotic growth.
The mother was offered and has accepted, subject to the outcome of these proceedings, a role as a teacher in the Brisbane area. She has a salary of $75,850 per year and I accept her evidence that if allowed to remain in Brisbane she will be working about a five minute drive from L’s school. The job involves working teaching hours, which enable the mother to continue in her role as primary carer for the children.
The mother has complied with the orders made by me in 2008 and has returned the children to Hobart pending the outcome of these proceedings. If she is unsuccessful she will leave her job and return to live and work in Hobart.
The father had married his wife, Mrs Smallridge, prior to the 2008 hearing and that relationship continues.
The father suffers from ongoing depression, which is treated by medication. There is no issue that he is able to look after the children when they are in his care. I accept the mother’s evidence that she is more comfortable knowing that the stepmother is with the father at the times the children are with him.
In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary appears from the context of the statement.
EVIDENCE
In the 2009/2010 proceedings I ordered a Family Report. The family consultant issued her report on 23 December 2009. The family consultant observed that the mother is the primary carer of the children and said:[2]
… Both children appear to be very close to their mother and her family. The mother and the maternal family all present as being particularly skilled and child focused in their family interactions.
[2] Family report paragraph 29.
Of the father the family consultant noted the following[3]:
… She [L] may not readily accept her father taking on a more evident ‘parental role’. The challenge for [the father] might be to develop a unique relationship with the children that will permit him to have a loving and intimate relationship with them while being supportive of their other close established bonds and commitments within the maternal family. This would not necessarily require the children to live in Tasmania. [emphasis added]
[3] Ibid.
The family consultant goes on to say:[4]
There is no compromise outcome … It is likely that the father will suffer emotional distress if the children are permitted to relocate to Brisbane.
She goes on to say of the mother:
It is highly likely the mother would suffer emotionally from having to remain living in Hobart.
[4] Ibid at paragraphs 30 and 31.
I accept the evidence of the mother and the family consultant that the mother would be emotionally upset and sad if she was forced to move to Hobart. In this case I am satisfied that the mother’s parents will move permanently to Brisbane and as such the mother’s primary family network will be in that city. Whilst it is possible for the maternal grandparents to visit Tasmania on a regular basis, I find that it has some limitations in terms of their financial circumstances, the illness of their other daughter and the health of the maternal grandfather.
I accept that L has a close relationship with her maternal grandfather. The family consultant said:[5]
… [L] presents as a poised young lady … who expressed views that “I like living in Queensland, I have got friends, I like my school, I like my tennis coach”. She spoke about doing dancing and swimming and hoped that they would live in a house with a pool in the future. She described various events within the maternal family: her aunt’s building project, being a flower girl at their wedding, her cousins from WA and that the older one is getting her learner’s licence, the holiday plans for after Christmas Day. [L] impressed as being well informed and having excellent comprehension about many aspects of her life.
[5] Ibid at paragraph 26.
The family consultant said that L was not as forthcoming in terms of her paternal cousins and the stepmother’s family.
The family consultant views in relation to the children living in Brisbane with the mother must be seen in the context of the children’s ages and their emotional closeness to the mother.
The family consultant observed:
In the previous report done by Mrs [D] there was concern that the younger child [J] would have difficulty maintaining a relationship with his father. This appears not to have been the case and the relationship between the father and [J] has been maintained and perhaps prospered over the twelve months.
Ms D in her earlier report[6] was concerned about the father’s ability to manage J. In paragraph 25 of her report the Family Consultant observed a similar interaction between the father and J when he became aware that their time was coming to an end. This has some significance although must be seen in the context that the children had been travelling all day and this had been a very long and difficult day for them. In addition I am satisfied that J was upset that his mother needed to travel back to Brisbane that day and although he knew his father was available the child was primarily emotionally attached to his mother.
[6] Children and Parents Issues Assessment dated 17 September 2008.
The family consultant noted that J was soothed by his mother more than by his father. From the Family Report it seems that the relationship between the children and their father has not deteriorated over the time they have lived in Brisbane. The relationship was at least maintained and probably improved.
When cross-examined about the mother suffering emotionally from having to remain in Hobart the family consultant said and I accept:
The mother had been to Queensland. Since she had been to Queensland the mother had achieved employment, had a strong relationship with her sister, had a strong relationship with the community, had felt much better and had appeared to have moved on. She was emotionally settled and happy.
She noted the mother felt much better in herself when living in Brisbane. Whilst the mother had community ties in Tasmania, the Family Consultant believed the mother would have great difficulty returning to that community particularly in the absence of her parents. I accept that evidence.
The family consultant noted, and I accept, that the children’s happiness is, at quite some levels, dependent on the mother’s happiness.
The mother gave evidence in accordance with her affidavit[7] and her evidence was not significantly shaken by cross-examination. There were some issues of mis-communication between the parties but nothing of any significance.
[7] Filed 10 December 2009.
The father complained that the mother had not informed him of the difficulties which J had encountered when first attending pre-school at the beginning of 2009. This was at a time when the mother and children had just moved to Brisbane and J was recovering from the time when he had been living with his maternal grandparents and his mother had been working in Queensland during 2008. The mother had concerns about the pre-school J was attending, changed it and put in place plans to deal with the issues.
I accept the mother’s evidence that J has thrived since that time. It is unfortunate that the mother did not inform the father of the pre-school problems. However, I am satisfied that it was an oversight on the part of the mother and that it was not done with any desire to exclude the father from the child’s life.
Similarly the father complained that the mother had not informed him of L receiving an award from her school in the middle of 2009. The mother’s evidence, which I accept, was that she only found out about the award on the Monday afternoon when the mother was flying out to M the next day. The child received the award on the Wednesday and the mother encouraged the child to inform her father of that award.
The father made complaints about the mother being fixed in terms of the orders and being difficult in terms of their negotiations. It is clear that there were negotiations and there were changes to the arrangements.
It is the fundamental question of where the children are to live, which the parties have been unable to resolve, which has led to some levels of poor communication between the parents.
The parties had otherwise been communicating relatively effectively by email and I accept the evidence of the mother that, at some levels, their communication had improved since the earlier trial.
The mother was cross-examined about L’s dance concert which the father did not attend. The mother said, and I accept, that she offered her ticket to the father but he was unable to attend.
The mother informed the father in mid 2009 that she was hoping to remain in Brisbane. The parties were unable to agree or mediate on this issue and adopted fixed positions and it was not surprising that they did not reach a compromise
The mother was cross-examined about not informing the father that a change had been made to J’s birthday in August 2009. The father had sought extra time and the mother agreed. The extra time with the father was likely to impact on J’s birthday celebrations with the family and as a consequence, a few days before his birthday, that time was changed. I see no poor behaviour in that. It was simply the mother adjusting to the changed circumstances.
The parties had negotiations in May 2009 with regard to changing the time the father was to spend with the children at Christmas, so that the father saw the children before Christmas and not after Christmas. The father was upset because the mother seemed to resile from this arrangement in correspondence later in the year. The mother said that when she was pressed to remain in Brisbane there were a number of issues which arose which made her think that the arrangements were not fixed. She assumed the arrangements had gone back to the Court orders. However, after negotiation and further communication, the father spent time with the children at Christmas as had been previously arranged in May 2009.
The mother says she is not secure in terms of the financial support she receives from the father, because of his reduction of child support prior to the earlier hearing. To his credit the father has paid child support notwithstanding that he is not in full time employment. The father says he has assured the mother that he will continue to pay child support for the children. The mother says, having regard to the history (set out in my previous reasons) that she still has concerns in that regard.
I can be critical of neither party in respect of this aspect. The mother has concerns about the father’s willingness to pay child support which will no doubt be ameliorated as the years continue. The father is concerned that his payment of child support (beyond that which he is required to pay) does not satisfy the mother. This simply reflects some level of the underlying miscommunication and distrust that exists between the parties.
I am satisfied that the mother will be unhappy and feel isolated if required to return to Tasmania.
The father complained that the mother did not allow him to have extra time when she brought the children to Hobart in May of 2009. The mother flew to Hobart on a Tuesday and flew out on a Sunday. The mother had informed the father of this trip for business purposes and offered to bring the children with her, if the father paid the children’s airfares. The children spent time with the father from the Wednesday to the Friday. The mother had the children with her on the Saturday so she could see some friends and then returned to Queensland on the Sunday. The father wanted extra time with the children on the Saturday and the mother did not agree. This is neither here nor there. The mother made the children available to the father for a significant part of the time that the children were in Tasmania. The father complained that the mother sought to set this off against other times. It is of concern that the father sees every approach by the mother as endeavouring to limit his contact with the children and I do not find that to be a fact.
The mother gave evidence that there is a new electronic program in terms of computer based communication called the “Illuminate Program” which would improve the electronic communication between the father and the children. I accept that the mother has looked for ways to improve and encourage the relationship and the communication between the father and the children.
L’s teacher, Ms G (“the teacher”), gave evidence in accordance with her affidavit.[8] I am satisfied that L is doing well at her school and is socialising well. She is a good student (as she was in Tasmania before she left). The father met the teacher at school in 2009. I prefer the version of the teacher in relation to that meeting. The teacher is willing and able to provide information direct to the father should he require it.
[8] Filed 13 January 2010.
The mother’s sister gave evidence in accordance with her affidavit[9] and I accept her evidence as being truthful and direct. Similarly I also accept the evidence of the mother’s father, the maternal grandfather, who gave evidence in accordance with his affidavits filed 10 December 2009.
[9] Filed 10 December 2010.
The father gave evidence in accordance with his affidavits filed 11 November 2009 and 15 December 2009. The issues of fact between the parties are relatively narrow. The factual issues are as to perceptions but the complaints the father has were of a minor nature and I am satisfied that the mother does not endeavour to undermine the relationship between the father and the children.
The father complained that the mother was not encouraging the relationship between himself and the children. He also complained that although he had been given information by the mother he said it was not given it in a timely manner. His perception in this respect did not reflect the reality.
In a series of emails commencing 3 July 2009, between the parents,[10] the mother was checking to see whether the father had received L’s school report and was assisting him in that process (albeit that the father says he did not receive the first of these emails he acknowledged receipt of the remainder). The mother was trying to facilitate the provision of information to the father.
[10] Exhibit M1
The father complained that he received only a few photographs of the children from the mother, and that the photographs which had been sent were only recent ones. The father received photographs in February 2009[11] and the mother organised school photographs for the father in the middle of the year. The father’s evidence in this area was not accurate.
[11] Exhibit M2
The father’s sister-in-law came to Brisbane and the mother arranged for the children to see her. The mother kept the father informed about the children’s activities. I accept the mother’s evidence in that regard.[12]
[12] Exhibit M4
The father complained about not getting any additional time with the children. In relation to J’s birthday he sought an extra half hour and that was readily made available to him. I have already dealt with the May 2009 Hobart visit where the children spent the bulk of the time with the father elsewhere in my reasons and do not intend to repeat them again.
I am satisfied that the mother has promoted the relationship between the father and the children.
The father has ceased his employment in December 2008 and received a settlement from his former employer. He now works as a consultant for his wife and members of his wife’s family in what he calls a “consultancy business to deal with business and financial recording”.
He spends about twelve hours a week in this job and says that he is endeavouring to build it up. He has a rented home unit and has used the equity in that property to purchase a share portfolio. He also has an interest in a yacht.
The father is able to afford the cost of regular travel to Brisbane and back, he normally travels with his wife. There are no significant economic restraints imposed upon the father’s travel to Brisbane, including the cost of airfares and accommodation whilst he is in Brisbane. He has the time to do this travel.
There was some debate about whether the father was on a yacht on the Sydney to Hobart Yacht Race. I accept that whilst he was a member of the crew he was not planning to travel to Hobart on that yacht in 2009.
Evidence was given by Ms B from J’s pre-school. She gave evidence in accordance with her affidavit[13] and was cross-examined. J had difficulties settling into the pre-school and exhibited behavioural problems. The pre-school discussed those issues with the mother and put in place a plan to deal with those difficulties.
[13] Filed 10 December 2010.
Whilst there are still some behavioural issues with J they have been substantially addressed. Ms B says that if the mother is away or if a teacher is away J tends to be aggressive and unsettled, she observes that change bothers him.
Ms B was cross-examined by senior counsel for the father as to why she had not contacted the father about J’s behaviour problems and the remedial plan. She explained that the father had not attended the pre-school, he had not contacted her and he had not been engaged with the pre-school in any way. Ms B said, and I accept, that the mother had instructed Ms B that she [the mother] was happy for any information to be sent to the father.
The father knew J was going to the pre-school and it was open for him to make his own enquiries of the pre-school when he went to Brisbane. He could have seen the teachers and his complaints in this area have a shallow ring to them, particularly in the light of his failure to engage with that pre-school.
The father’s present wife, the children’s stepmother, gave evidence in accordance with her affidavit filed 15 December 2009. She confirmed she attended a school event in Brisbane in 2009 and that they were at L’s classroom at about 3.00 pm. She said the father had spent about ten to fifteen minutes with the teacher.
The father relied upon an affidavit[14] from Ms R as to the mother’s employment capacity. Ms R was challenged as to her knowledge of this industry in cross-examination. She conceded one of the jobs was not really available to the mother as it related to a health background rather than a background in education.
[14] Filed 11 December 2009.
The evidence of Ms R was that the mother could obtain employment in Tasmania for a salary of up to $70,000 or more. On her evidence and having regard to the gaps in her knowledge in the industry, I am satisfied that the mother could obtain work in Tasmania in her chosen industry with an annual salary of between $36,000 and $48,000 per year. It is possible the mother could earn higher sums but that it would involve her working longer hours which may impact on her ability to parent the children.
Rice & Asplund
The father argued that there has not been a change such as would entitle the court to re-determine the parenting issues.
In Marsden & Winch [2009] Fam CAFC 152 the Full Court considered the test arising from Rice & Asplund (1979) FLC 90-725 and at paragraphs 40 to 50 of those reasons (being the second paragraphs 40 to 50 the judgment having been double numbered at parts) sets out the law in Rice & Asplund in a clear way which approach I have adopted. It provides;
40.We now turn to the substantive grounds of appeal and propose to deal with Grounds 3 and 6 together, together with Ground 1, which asserts that the decision was contrary to the best interests of the child and overlays the grounds referred to. Grounds 3 and 6, in summary, are that his Honour erred in dismissing the father’s application because he misapplied the “threshold test” arising from Rice & Asplund, and in doing so denied the father procedural fairness.[15]
[15] The full text of Grounds 1, 3 and 6 is as follows:
41. Warnick J in SPS & PLS (2008) FLC 93-363 said at [1]:
The “rule” in In the Marriage of Rice and Asplund…that, where there has already been a final order in respect of parenting issues, before the court embarks on a rehearing of those issues, the applicant must establish a significant change of circumstance – is certainly useful, if not essential. But it is not the primary principle in applications for parenting orders. Nor is its utility or weight uniform across cases in which it might be applied. In particular, those attributes vary, according to whether the rule is applied at the outset of or at the end of a hearing.
42.The application of the rule was again described by Warnick J in [45] – [49] inclusive. Before turning to what Warnick J said of it, it is useful to recall that Rice & Asplund involved an appeal from custody orders which reversed an order made nine months beforehand. In her reasons for judgment (at 78,905), Evatt CJ said of the position of a court confronted with an application to change an earlier order that:
It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material
43.Evatt CJ went on to say that the threshold question was not necessarily one for preliminary determination.
44.As Warnick J discussed, the purpose of the “rule” is to discourage “endless litigation” In addition, as Nygh J said in McEnearney (1980) FLC 90-866 at 75,499:
…the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
45. Warnick J opined in SPS & PLS (supra) that:
58. Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This "evil" is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.
46. Warnick J had earlier said at [48]:
In my view, reflection on the rule shows that:
(i) What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
(ii) In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
(iii) At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the "best interests principle".
(iv) Discussion in terms that the rule may be applied as a "preliminary matter" or the primary application be first heard "on the merits" may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with "on the merits".
(v) The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
(vi) "Shorthand" statements of the rule may contribute to its misapplication.
(vii) Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.
47.We agree with those observations. Warnick J went on to consider each of these observations, recognising (at [74]) that once a court refrains from applying the rule as a preliminary matter and embarks upon a hearing the rule should not necessarily be cast aside although its force might be diminished. Importantly, Warnick J made the point that the implication should be avoided that if the rule is applied as a preliminary matter the parenting application is not dealt with on the merits. In particular, he noted that the “paramountcy principle” still applies to the decision to dismiss an application to vary (s 60CA of the Family Law Act 1975 (Cth); see also Newling & Mole (1987) FLC 91-856; F & N (1987) FLC 91-813; McEnearny (supra)). We agree with the conclusion reached by Warnick J (at [81]) that:
…when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
48.In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
49.However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice & Asplund and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.[16]
50.Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
1. The past circumstances, including the reasons for the decision and the evidence upon which it was based.
2. Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
3. If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
[16] See for example Jennifer McIntosh ‘Enduring conflict in parental separation: Pathways of impact on child development’ (2003) 9 Journal of Family Studies 63 and Jennifer McIntosh and Richard Chisholm ‘Cautionary notes on the shared care of children in conflicted parental separation’ (2008) 14 Journal of Family Studies 37.
The hearing and subsequent determination that the mother be entitled to temporarily relocate the children to Brisbane in 2008 was, in part, based upon the mother obtaining work in Queensland on a limited contract and in circumstances where she proposed to return to Tasmania and obtain employment in that State. She was clearly expecting her parents to assist her temporarily in Queensland and then be available to continue their assistance and support in Tasmania from December 2009 onwards. The mother also had concerns in relation to the reliability of the father’s child support payments and there were underlying problems with regard to trust and communication between the parents.
Since that time there have been significant factors impacting upon the mother and consequently the children. The first is the illness of her father. This was not known nor was it anticipated. The second is the illness of the mother’s sister who has needed treatment for melanomas and these tumours may represent a continuing issue for her. The consequence of these unforseen events have been that the children’s maternal grandparents are committed to moving to Queensland. I accept the evidence of the maternal grandfather that his own health (including the consequential need to escape the cold weather in Tasmania) is his first priority and being of assistance to his daughter BL as being his second priority. This change means that the mother will not have the degree of support in Tasmania that she had hoped for and anticipated in 2008.
The mother’s move to Queensland provided her with a sense of purpose and satisfaction to her both in terms of her employment and in terms of her values in herself. I am satisfied that the mother would be sad (although she would cope) if she was required to move back to Tasmania. The mother is settled in Brisbane and has a job which meets her needs financially, professionally and in terms of working hours that allow her to better parent the children.
Having regard to these facts I am satisfied that there are changed circumstances and new factors arising which are such as would overcome the Court’s general reluctance to entertain an application to reverse earlier orders
THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED
The factors which the Court must then consider are those set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”). From 1 July 2006, those best interests are determined under a two tiered approach pursuant to s 60CC, that lists “primary considerations” and “additional considerations”. A Court must consider the matters set out in s 60CC unless considering a consent order, in which case the Court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act. Part of s 60CC reads as follows:-
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
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 parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)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.
A Court must consider the s 60CC(2) considerations as “primary considerations”. This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A Court must consider each of the additional considerations separately. A Court should have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests.
A Court also needs to evaluate the nature and quality of the parent child relationship.
The Full Court in Starr & Duggan [2009] FamCAFC 115 set out the following approach to applications involving relocation of a child;
1.The core principle consistently referred to in all appellate decisions involving challenges to parenting orders (including where an order for relocation is sought) is the “paramountcy principle” found in s 60CA. That is, a court must regard the best interests of the child as the paramount, but not sole, consideration.
2.The interplay between the paramountcy principle, the objects of the Act and the principles underpinning those objects is described in Goode & Goode (2006) FLC 93-286.
3.In McCall & Clark the Full Court referred (at paragraphs 58 to 60) to explanations given in other relocation cases of the order in which relevant provisions in Part VII may be applied when determining a parenting application. Their Honours (Bryant CJ, Faulks DCJ and Boland J) went on to explain (at paragraphs 61 and 62) that it will often not be an academic exercise to consider whether a child should spend equal time with both parents, as such an order is likely to be sought by a non-relocating parent.
4.The Full Court also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be “dual consideration” of some matters. This is so because consideration of the s 60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals. Some of the matters to be considered under s 60CC(3), for example the likely effect of any change in the child’s circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s 65DAA, especially s 65DAA(5).
5.Thus the appellate decisions determined after the commencement of the Family Law Amendment (Shared Parental Responsibility)Act 2006 (Cth) have set out a framework which a judicial officer may follow when determining applications for parenting orders, including an order that a child be permitted to relocate.
6.However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
a.first make findings concerning the relevant s 60CC factors;
b.then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
c.then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
7.Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.
Section 60CC(2)(a)-the benefit of the children having a meaningful relationship with both of the children’s parents
The first factor I need to consider is the primary consideration of the benefit of the children having a meaningful relationship with both of the children’s parents. The mother is the primary carer of the children and the father recognises that role. Under either proposal the children will have a meaningful relationship with the father. It is to the credit of both parties (particularly the mother) that the relationship between the children and the father has flourished since the children moved to Brisbane in late 2008.
There were concerns that the father’s relationship with the children, particularly J, may have suffered as a consequence of the move. That concern was not founded and J’s love of his father and his anxiety to see him is reflected in the Family Report, as is his particular closeness to his mother. I am satisfied that the relationship between the children and their father could be marginally better if the children resided in Hobart rather than in Brisbane. I am equally satisfied that if the mother was forced to return to Hobart she would be sad and unhappy but would manage.
The father complains that if the children live in Queensland his role is limited to short blocks of time and unsatisfactory communication. Senior Counsel for the father submits that as a consequence the father’s relationship with the children has suffered and will suffer in the future. I do not accept the submission that the father’s relationship has suffered, in fact, it is clear that the communication between the parties (although not optimal) has improved. The thoughtful proposals of the mother will mean that the father will have an opportunity to do those normal things with the children which is in their best interests and which he desires.
There have been no allegations of abuse, neglect or family violence and as a result the factors pursuant to s 60CC(2)(b) are not relevant.
Section 60CC(3)(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;
I accept the submission of counsel for the mother that J is too young to have his views taken into account. L has expressed views that she would prefer to live in Queensland. She is 8½ years old and I am satisfied that her views, as expressed to the family consultant, are not as a result of any coaching by her mother. L is course anxious to please her mother and L’s views of wanting to stay in Brisbane are in part reflective of her mother’s views. L has settled into Brisbane and is thriving at school and in that environment. This is contextualised in that she was also performing well at school in Tasmania.
I have had some regard to the views of the children but I attach limited weight to them.
(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);
The children are closely attached to their mother. I accept the evidence of the mother, the family consultant and Ms B in relation to this aspect.
The children have a close relationship with their father. Senior counsel for the father submits that the father’s relationship with the children has been hampered by limited means of communication and by only being able to spend time with the children during holidays and on weekends. I do not accept that submission.
If there has been any limitation of their relationship (which I am not satisfied that there has been) it was open for the father to spend more time with the children particularly in the first half of 2009, he had the resources and time to do so. I accept the evidence of the family consultant that the relationship between the father and the children can strengthen and improve whether the children are in Hobart or in Brisbane. The mother has applied herself to enabling the retention and development of the children’s relationship with their father.
The mother is primarily responsible for the financial support of the children and she is assisted by funds from the father on a regular basis. In Brisbane the mother’s employment is such that she will be able to work the same hours that the children attend school and be home when the children are not at school. If she were to earn the same income in Tasmania, I am satisfied she would need to work longer hours.
The children have a good relationship with the mother’s sister (including her husband and their son). The children have a close relationship with their maternal grandparents who will be living primarily in Brisbane. There was some implicit criticism on behalf of the father that the grandparents had not moved to Queensland as was anticipated in 2008. Having regard to the maternal grandfather’s health I find that such implicit criticism is unwarranted.
The mother’s life and well-being is made easier by having the support of her family which is or soon will be living in the Brisbane area.
The children have a warm relationship with the husband’s wife, the stepmother, and she reciprocates in that relationship. I am satisfied that that relationship will continue and flourish irrespective of whether the children are living in Hobart or Brisbane.
(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;
The father was critical of the mother in terms of her willingness and ability to facilitate and encourage a close and continuing relationship between himself and the children. The mother engaged in mediation with the father in 2009, she kept him apprised of events and was pro-active in terms of a number of aspects of the children’s lives which I have referred to earlier.
The complaints by the father seem to fall into a number of areas. The first is the mother did not inform him about the difficulties J was having at the pre-school in early 2009. The mother regarded this as a school issue and dealt with it through the school. She could be mildly criticised for not informing the father. However, the father knew the child was at the school and with his regular travels to Brisbane there was no reason why he could not have attended at the pre-school and made his own enquiries. In some respects he sat on his hands and blamed others. The mother expressed her consent to the pre-school to enable information to be provided to the father, but he did not seek it. I do not regard this as being any active step by the mother to exclude the father from the children’s lives.
The second issue in this respect was that the mother would not allow the father to have the children for an extra day when they were in Tasmania in May 2009. This is a somewhat peevish complaint on the part of the father. The mother informed the father she was coming to Tasmania and offered to bring the children with her (provided the father paid for the children’s fares). The mother arrived at Hobart on the Tuesday and left on the Sunday. Of the full days, that were available in Hobart, vis Wednesday, Thursday, Friday and Saturday the father had the children for three out of those four days.
The mother was brought up in Tasmania and has friends in Tasmania (a factor to which I have had regard in the broader context of this determination) and chose to spend some time on a Saturday with the children and those friends. This is an example of the mother supporting the relationship between the children and the father.
The father complained that the mother did not inform him of L receiving a student of the month award. I accept the mother’s evidence that she found out about this on the Monday when the award was being given on the following Wednesday and in the rush of the mother leaving to go to M for her work the next day she did not inform the father. I accept the evidence of the mother that she encouraged the child to speak to the father about that award. Again it was open for the father to make his own contact with the school and the teachers (which he did in August 2009).
It is clear that it was the mother who was required to provide details to the school as was set out in the exhibited material regarding the school reports. In that regard I note Exhibits M1, M2 and M3.
The father complained that the mother only sent him two photographs. The mother says she sent him far more and there is evidence that more were sent than asserted by the father.
After mediation the parties agreed to change the arrangements for Christmas. The father complains that the mother intended to repudiate that agreement. I have read the emails and understand the context of what was happening in the second half of 2009. I am not satisfied that the mother repudiated the agreement. Having regard to the lack of trust and the entrenched positions, which both parties adopted, when the question of the parties remaining in Brisbane was raised, the mother was unsure whether the agreement remained in place. As it happened the agreement was allegedly adopted and applied.
I have not identified all of the parts to this although I rely on all of the findings set out earlier in these reasons. I am satisfied that the mother encourages and facilitates a close and continuing relationship between the children and the father.
The father has engaged in mediation and has improved his communication with the mother since the first hearing in 2008. I am satisfied that the father encourages and facilitates a close and continuing relationship between the children and the mother.
(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;
The underlying effect of what the mother proposes is that the children will be geographically distanced from the father and that will have an impact. I do not accept that the impact is at the level asserted by the father but it will create some challenges for him in terms of his relationship with the children.
The effect of the changes on the mother, if she moves to Hobart will be great. Her sense of value in herself will be diminished, she will not be as happy and will not have the job which she has at the moment which she says, and I accept, she is satisfied with.
The mother and consequently the children would be unsettled by the permanent move back to Hobart. This would in part be ameliorated by reason of their established contacts in the community and at the schools. The mother would be isolated from her parents and her sister and her family.
The mother’s parents are a significant support for her and the children. The mother and children are settled in Brisbane. Her present employment is remunerative and structured to allow her to meet the needs of the children.
Senior counsel for the father was critical of the mother for taking this employment and presenting what he suggested was a “fait accompli”. It was an opportunity taken by the mother but at all times subject to either the consent of the father or approval of this Court.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
If the mother and children return to Tasmania there is no practical difficulty in the father spending time with the children. If the children remain in Brisbane there will be a practical difficulty in terms of the father spending time with the children. However, the father has managed to spend time with the children, particularly in the second half of 2009 and has the capacity to continue doing so.
If there is a difficulty with funding the visits it is possible for the father to obtain some further employment to pay for airfares to Brisbane and accommodation in Brisbane. At present he is working twelve hours per week.
To facilitate the father’s time with the children I am proposing that for the school holidays the parties each pay half of the air transportation costs between Brisbane and Hobart. However, it will be a matter for the father to fund his travel to Brisbane to spend time with the children during school terms. Having regard to the father’s financial circumstances, working circumstances and domestic circumstances I am satisfied he can manage the geographic distance.
(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;
I reiterate the matters set out earlier in these reasons and particularly the mother’s role in parenting the children. The mother is able to meet the needs of the children and has done so since their birth of each of them. She has encouraged a relationship with the father and he is able to care for the children whilst they are in his care.
The father from time to time suffers from depression however it is not a factor in terms of his care for the children as proposed by him and as proposed by the mother.
(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;
J is still relatively young. He has had some difficulty in relation to his mother’s move to Queensland. However, this has been managed with the assistance of the pre-school. I accept the evidence of Ms B that he needs stability and that the mother is an integral part of that. It makes little difference to J whether the mother lives in Hobart or in Brisbane as long as she is nearby.
Similarly with L if the mother is happy and content L will be happy and content. The children very much identify with their mother.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration in these proceedings.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The mother has demonstrated a loving, intuitive, constructive and responsible attitude to the children in terms of her role as a parent. When she took the job in 2008 she did not arbitrarily relocate the children, she left them in Tasmania so that their relationship could continue with their father pending the outcome of those earlier proceedings.
In terms of the current proceedings the mother sought expedition of the proceedings but returned the children to live with her parents pending the outcome of this hearing. She is generally child focused and in a way which is practical in terms of earning income sufficient to provide them with a lifestyle.
The mother provides for the children over the broad spectrum in terms of their physical and emotional needs. She arranges school and pre-school for them, attends at those places, she deals with their medical needs and provides a home and support. She encourages and facilitates their relationship with the father and members of his family.
The father dearly loves his children. From time to time he leaves the practical tasks to the mother. The father has demonstrated a determination to continue, maintain and improve his relationship with the children and to meet his obligations as a parent. He pays child support above that which he is required to pay.
(j) any family violence involving the child or a member of the child’s family;
There are no issues of family violence.
(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;
There are no family violence orders.
(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;
I am concerned that if the mother were forced to return to live full time in Tasmania, with her parents and sister living in Brisbane, it would invariably mean another application to a Court in years to come. The mother would feel isolated and alone in Tasmania and would not be able to have the comfort and support of her broader family, including her parents if that occurred.
The parties have moved a great distance in terms of their communication over 2009 and it was this issue of the mother’s return to Tasmania which has impacted on their ability to communicate. I am satisfied that both parties will engage in negotiated communication, at least at some levels, after this decision.
Section 60CC(4) of the Act
(a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
Both parents have taken the opportunity to be involved with the children since separation including spending time and communicating. It is always possible to find small areas of criticism but generally it is a credit to both parties, in particular the mother, in terms of the approach that she has adopted to parenting, especially in the last fifteen months or so.
Both parents have fulfilled their obligation to maintain the children.
I have had regard to the particular circumstances in this case which have occurred since separation including the preceding hearing.
As this is a matter where there will be an order for equal shared parental responsibility I am required to consider, and I have considered equal time. It is neither feasible nor sought in this case. This is a case where the father will spend significant and substantial time with the children irrespective of the outcome.
CONCLUSION
The father was critical of the mother in terms of not setting out the questions of her unhappiness in her affidavit. This matter was pushed on to a quick hearing and I am satisfied with the evidence of the family consultant as to the mother’s unhappiness and the mother’s general evidence in that regard.
Senior counsel for the father complained that the outcome of this case is exactly what had been predicted in the earlier hearing that is, that it was the “thin end of the wedge” which would lead to a permanent relocation.
What the father does not acknowledge, and which has occurred, is the significant change of circumstances which I have referred to earlier.
I am aware that in making the decision that I am proposing to make it will cause great anguish to the father.
It was submitted by senior counsel for the father that the children do not enjoy the time with the father in Brisbane, they are “bored” and do not lead a normal existence. Now that this matter has been determined there is no reason why the father cannot put in place other arrangements including taking the children to parks, activities, beaches etc in south east Queensland so that he can maintain and develop his relationship with the children.
There is no doubt the mother has accommodation in Hobart and could get some work in Hobart. Senior counsel for the father submits that J’s anxiety to see the father, when there was a mistake about the time the children were to be collected in December 2009, should be part of a basis upon which the children should be required to live in Tasmania.
The circumstances of that event were that there was a communication breakdown about the time the children were to be collected. The children, including J, were anxious to see their father. When the communication breakdown was discovered the maternal grandparents arranged for the children to be taken to the father. The children’s maternal grandparents expressed some need for J to see his father because he was distressed that he had not arrived. That is entirely natural and the fact that the maternal grandparents endeavoured to sooth the child by arranging to take the child to the father reflects positively on their approach to parenting and the acknowledgement of the significant role of the father.
Senior counsel for the father argued that J would not have a male role model if he were to live in Queensland with the mother. I do not accept that argument. If the father takes up the eight weeks during school term, a year, which is available to him, plus half of the mid year school holidays and a significant proportion of the Christmas school holidays the children will have their father in their lives on a constant and regular basis. He will be able to be a male role model for them.
Senior counsel for the father was critical of the mother taking on employment in Brisbane. The mother has made it clear that she will leave that employment if this Court orders that she has to return to Tasmania and as such the criticism was not warranted.
During submissions the mother amended the orders that she was seeking and, for these reasons, I intend to adopt that approach in terms of the mid-term time the children spend with the father.
Senior counsel for the father submitted, appropriately, that the father wished to spend “normal time” with the children such as kicking a ball, taking them to school and being involved in those activities. He also submitted, quite correctly, that the interaction with the children via electronic means is not as satisfying for the children as direct personal interaction. I accept that submission.
However, the proposal that the children spend two weeks each term in the care of the father provides for significant and substantial time for the children to interact with him. The father works twelve hours per week and the nature of his work is such that I am satisfied his time is available to spend with children notwithstanding his desire to increase his working hours.
The father has the assets and resources available to enable him to travel to Queensland on regular occasions. I will be making an order that he can spend up to two weeks per term with the children. That can be either two one week occasions each term or for one two week occasion.
It is clear that it is not feasible for the father to spend equal time with the children in Queensland. If the children were residing in Tasmania in the circumstances of this case it would not be in the bests interests of the children to spend equal time with the father. The father recognises this and in his application seeks orders the children spend each alternate weekend with him during school term from after school Thursday until 4.30 pm Sunday and on the other week from after school Thursday until 7.30 pm.
Either proposal means that the children will be spending significant and substantial time with the father. In terms of the time the father spends with the children there is little difference in the time measured by hours although there is a difference in terms of the distance the children are from the father.
In Taylor & Barker [2007] FamCA 1246 the Full Court considered the application of s 60CC and s 65DAA of the Act.
While giving an express direction the Full Court suggested that the logical approach was to consider the best interests of the children having regard to the primary considerations and additional considerations under s 60CC before attempting to apply any other provisions of Pt VII in which the determinative factors of the child’s best interests.
It follows then that the Court would consider the best interests of the children in terms of equal or substantial time and then evaluate the proposals of the parties.
In dealing with the future living arrangements of these children particularly this one which will continue a significant change in the geographic place where the children reside, the relocation is one of the proposals for the children’s future living arrangements, at least so far as that approach is possible (see U v U (2002) 211 CLR 238; (2002) FLC 93-112 and Bolitho & Cohen (2005) FLC 93-224).
Having regard to all of the facts and circumstances of this matter it is clear that the children should remain primarily in the care of their mother. I am satisfied in all of the circumstances that it is in the best interests of the children that the mother is allowed to remain living in the Brisbane area and continue with her employment which she established in 2009.
I will make an order that the father spend regular time with the children and communicate with them regularly. I am satisfied in all of the circumstances of this case that this meets the best interests of the children and I am satisfied that the father will spend significant and substantial time with the children.
I certify that the preceding one hundred and forty three (143) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin
Associate:
Date: 28 January 2010
1. His Honours decision is contrary to the best interests of the child.
3. His Honour was in error in that he has misapplied the “threshold test” (Rice and Asplund “rule”) and in finding the fathers circumstances were not sufficient [sic] to justify a hearing of the application filed 28 July 2008.
6. His Honour was in error in dismissing the fathers application in the children’s matter filed on 28 July 2008 in the Family Court of Australia. This action has denied the father procedural fairness, natural justice, and both the father and daughter their legislated and basic human right to a meaningful relationship with each other.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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