WELKE & HOLFORD

[2021] FCCA 255

FEDERAL CIRCUIT COURT OF AUSTRALIA

WELKE & HOLFORD [2021] FCCA 255

Catchwords:
FAMILY LAW – Interim parenting

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC

Cases cited:

Goode v Goode (2006) FLC 93-286

Eaby v Speelman (2015) FLC 93-654

McCall & Clark [2009] FamCAFC 92

Applicant: MS WELKE

Respondent: MR HOLFORD

File Number: HBC 1098 of 2020

Judgment of: Judge McGuire

Hearing date: 12 February 2021

Date of Last Submission: 12 February 2021

Delivered at: Launceston

Delivered on: 17 February 2021

REPRESENTATION

Counsel for the Applicant: Mr Dixon SC

Solicitors for the Applicant: PWB Lawyers

Counsel for the Respondent: Ms Mooney SC

Solicitors for the Respondent: Jacqui Ion Lawyers

ORDERS UNTIL FURTHER ORDER:

1. That the parties have equal shared parental responsibility for the children X born 2014 and Y born 2016 (“the children”).

2. That the children live with the mother.

3. That the children spend time with the father in Hobart, Australia as follows (unless otherwise agreed between the parties in writing):

   During school term:

   (a)From 8.00 a.m. on Wednesday until the commencement of school/care on Thursday each week;

   (b)From the conclusion of school/care on Friday until 5.00 p.m. on Sunday each alternate weekend extending to Monday at the commencement of school or 5.00 p.m. if a long weekend or student free day as and from the commencement of Term 2; and

   (c)At all other times or variations of the above as may be agreed between the parents from time to time.

4. During term holidays:

   (a)For the Term holidays in 2021 the children spend time with both parties as follows, noting that the holiday is to commence at 5.00 p.m. on the first Sunday of each holiday and conclude at 5.00 p.m. on the last Sunday of the holiday:

   (i)During the Term 1 holiday/Easter 2021 with the father from 8.00 a.m. on 2 April to 5.00 p.m. on 11 April, and with the mother from 5.00 p.m. on 11 April until 5.00 p.m. on 18 April;

   (ii)During the Term 2 holiday with the mother from 5.00 p.m. on 4 July until 5.00 p.m. on 11 July, and with the father from 5.00 p.m. on 11 July until the commencement of school on 20 July;

   (iii)During the Term 3 holiday with the mother from 5.00 p.m. on 26 September until 5.00 p.m. on 3 October, and with the father from 5.00 p.m. on 3 October to 5.00 p.m. on 10 October.

5. That all handovers that do not occur at school or childcare take place at location A, Hobart unless otherwise agreed between the parents in writing.

6. That in the event that either parent is not able to care for the children for a period of 24 hours or more, the other parent is to be offered the first option to care for the children by the parent who is not available.

7. That the parent with the care of the children facilitate the children communicating with the other parent at all reasonable times and as requested by the children.

THE COURT FURTHER ORDERS:

1. That the matter is listed for trial in the Federal Circuit Court at Hobart commencing on Monday 21 June 2021 at 10.00 a.m. on that day (noting a time allocation of 2 days).

2. That the parties make, file and serve all affidavit material upon which they intend to rely not later than 21 days prior to the trial date and unless the Court otherwise grants leave, the parties are to each rely upon only one trial affidavit and only one affidavit from each witness.

3. That the party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

4. That within 7 days prior to the trial the solicitor for the parties each file and serve a document setting out:

   (a)the orders being sought

   (b)a list of documents to be relied upon; and

   (c)a brief summary of argument.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HOBART

HBC 1098 of 2020

MS WELKE

Applicant

And

MR HOLFORD

Respondent

REASONS FOR JUDGMENT

Applications

1. These are interim proceedings in respect of the parties’ two children X born 2014 (aged six years) and Y born 2016 (aged 4 years). 

2. There are substantive parenting proceedings whereby the mother wishes to relocate with the children from Tasmania to New Zealand.  I am asked to list that matter for trial as soon as possible.

3. The current circumstances are that the children live with the mother for 10 nights each fortnight and with the father for 4 nights being from Friday until Sunday and each Wednesday overnight.  This has continued since the father moved to Hobart in about October 2020.

4. The father now wishes to progress his time with the children to 5 nights per fortnight immediately by extending the weekends to Monday at the commencement of school (or 3.00 p.m. if not a school day). Then from 18 April 2021 he asks to further extend the children's time with him to 6 nights per fortnight being:

   In week one:

   (i)from the conclusion of school/care on Wednesday (or 8.00 a.m. if a non-school/care day) until the commencement of school/care on Friday (or 3.00 pm if a non-school/care day);

   In week two:

   (ii)from the conclusion of school/care on Wednesdays ( or 8.00 am if a non-school/care day) until the commencement of school/care on Thursday (or 3.00 pm of a non-school/care day). 

5. The mother says that she would agree to an extension for the children from 4 to 5 nights per fortnight but as from the beginning of term 2 of 2020 which would be I expect from mid April 2021.  She does not agree to any further extension.

Background

1. The father was born in the UK in 1975.  He is 45 years of age.  The mother was born in New Zealand in 1977.  She is 44 years of age.

2. The parties met in Country B in 2009.  In 2011 the father moved to be with the mother in New Zealand.  The parties commenced their relationship in December 2011.

3. That older child X was born in New Zealand in 2014. 

4. In March 2016 the father obtained employment in Country C in primary industries constituting six – eight weeks on/two weeks off.

5. In October 2017 the father received a job offer with employer D situated in E City.

6. The parties separated in New Zealand in December 2017.  The parties have not married.

7. The father took up his position in E City in January 2018.  He spent time with the children in mid 2018 in New Zealand, in October 2018 in Country F, and in November 2018 in New Zealand.

8. As of January 2019 the father seems to have been working in Country C in six-week blocks with two weeks back in Australia in each eight week period. 

9. In April 2019 the mother and the children moved to Hobart for the mother to undertake healthcare training.  The father spent time with the children in April, June and July 2019.

10. In August 2019 the father was diagnosed with cancer and was then resident in Adelaide where he received treatment.

11. The children spent time with the father in Adelaide on three separate occasions in late 2019.

12. In March 2019 the mother advised of considerations as to relocating with the children back to New Zealand.  In 2020 the father variously spend time with the children in Hobart.

13. In September or October 2020 the father relocated to Hobart.  He advised of a further four year contract with employer D but was apparently able to work from home or remotely due to the Covid situation.

14. In October 2020 the father commenced spending time with the children each alternative weekend from Friday to Sunday and on Wednesdays in the off week.

15. On 17th of November 2020 the father's time was increased to include each Wednesday overnight.

16. In January 2021 the parties agreed that school holiday time for the children would be shared.

17. The older child commenced the grade one in 2021 and the younger child commenced kindergarten.

18. The application in this matter was filed on 4 November 2020.

The Father's Case – Interim Arrangements

1. The father says through his Counsel that he has always attempted to maximise his relationship with his children but where he has had commitments to his employment and health issues.  He emphasises his move to Hobart as evidence of his commitment to that relationship.

2. That the father does not attempt to hide his ambition for an equal time parenting arrangement with the mother for the two children and to this extent he suggests that he may relocate himself to New Zealand if the Court were to permit the mother's substantive application.

3. The father says that he is settled in Hobart and that he works from home and is therefore available to care for the children.  He says that this offers as an option for the mother using her own mother and/or childcare facilities where the mother herself has employment commitments.

4. The father says that the parents live in close proximity in Hobart and changeovers and schooling arrangements are not prohibitive of his proposals. 

5. The father says that the mother has previously 'permitted' the children to spend lengthy block periods of time with him up to a period of 32 consecutive days.  He says that he does not criticise the mother's parenting capacity but similarly she must concede his capacity by reason of previous block periods of time and the current arrangements.

6. The father says in response to the mother's assertion that he may again be required to relocate for his employment or travel consistently overseas that he would consider relinquishing his employment but, in any event, the strongest indication from global circumstances and from his employer is that he will be continuing to work from home and in Hobart until the Court is able to accommodate the substantive final hearing. 

The Mother's Case

1. Counsel for the mother argues that she has been the primary carer for the children for the majority of their lives and including periods when the father prioritised his employment overseas over and above any shared care arrangement for the children.

2. The mother says that the evidence is clear that she has always facilitated the children's time with the father.

3. The mother says that the children are settled in the current arrangement consistent with understanding her as the primary parent and in circumstances where each of these children are young and traversing their introduction to school then the status quo should not be disturbed and in circumstances where the children are already currently spending substantial and significant time with the father on a high degree of frequency.

4. The mother says that her previous use of her own mother and/or childcare has now been alleviated to a large degree due to the both the children being in school/kindergarten.

5. Whilst the mother accepts that the father is currently working from home, she says that global circumstances and his employment may change such that he again be required to travel overseas for his employment and that the children's regime would be further disturbed and essentially that the mother would be left 'holding the baby' in that she would be expected to adapt her circumstances accordingly.

The Evidence

1. Both the parties provided affidavits.  Submissions were taken from Counsel.  There was no testing of the evidence by cross-examination.

2. The husband caused to be tendered into evidence a letter from his solicitors to the mother solicitors of 12 February 2021 annexing an email letter from his employer of the same date with the solicitor’s letter stating the following:

   I am instructed that my client is committed to being available to care for the children and maintains that the children are his absolute priority.  If, and when my client is required to return to regular international travel as a result of his employment which interferes with his care of the children in any way, my client has committed to resigning from that role.  My client is well aware that significant international travel is not conducive to the children spending equal (or close to equal) time with him.

3. And the emailed letter from his employer confirms his employment with employer D Headquarters and that there is no current set date for reopening.  The last paragraph of that letter provides:

   Return to work will be done gradually and incrementally in 4 stages over several months, with a minimum of between 28 – 42 days between stages.  Managers are being asked to show flexibility to staff members’ individual needs and concerns.  Vulnerable staff, whether through age or the existence of chronic medical conditions, will be advised to continue home- based work until the offices reach the New Normal N (Tier 0).  Employer D allows COVID based telecommuting and you are authorised to work from Australia due to COVID conditions.  Once we reach Tier 1, or in your case Tier 0, Telecommuters will still be given up to four weeks to report to their designated Duty Station.

4. The Court has the benefit of a memorandum from a family consultant following interviews of the parents pursuant to s.11F of the Act on 22 December 2020.  The author of the report says:

   It is widely considered that it is not in a child’s best interest under the age of 5 years old, to spend significant or substantial time away from their primary carer. For the benefit of the children’s emotional and psychological development, and for the best chance of success for a move towards a more equal shared care arrangement, it would be beneficial for the children time with Mr Holford to progress slowly.

Relevant Law

1. The orders that I am asked to make are parenting orders in respect of two young children just six and four years of age. I am to have the best interests of X and Y as my paramount consideration pursuant to s.60CA of the family Law Act (1975) (‘the Act’). In determining those best interests I am mandated to reference the parties’ proposals and the probative evidence to the numerous considerations set out in s.60CC(2) and (3) against a background of the Objects and Principles of the legislation set out in s.60B.

2. It is important to emphasise that the evidence of the parties and their proposals is not subject to challenge or cross-examination.  Rather, the hearing here is conducted by submissions from Counsel on the papers.  As such, there may be controversial or disputed issues of fact and credit on which the Court is unable to determine at this stage although, of course, there will relatively soon be a full trial on the substantive issues during which the parties will be called to give evidence and be cross-examined.  However, at this stage, the Court is often left with only non-controversial or agreed facts to assist in a determination as to the children's best interest.  Despite these limitations, the Court is still obliged to conduct the hearing on the statutory and intellectual process set out in the well-known decision of the Full Court in Goode v Goode[1].

   [1] (2006) FLC 93-286

3. Importantly, however, and as observed by a different Full Court in Eaby & Speelman[2]  in respect of difficulties of making findings of fact in interim hearings:

   … That does not mean that merely because the facts are in dispute, the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.

   [2] (2015) FLC 93-654

4. In respect of the relevant s.60CC(2) and (3) factors I am able to find:

   B.On the evidence before me, X and Y have established and beneficial relationships with each of their parents;

   C.That issues of family violence fortunately do not feature in this matter;

   D.That X and Y are not of ages where they could be expected to rationalise their own best interests as to their living and parenting arrangements;

   E.That the capacity of each of the parents is essentially unimpeached by reason of the current arrangements and a lack of mutual criticism in respect of the ability of the parents to provide for the physical and emotional needs of their children.

5. Not unusually in such matters, the mother who claims to have been the primary carer of the children with whom the children currently spend the greater percentage of time, takes the more conservative and cautious view to the children's time with the father whereas the father, who makes no secret of his ambition for ultimate equal shared time for the children, takes a more adventurous or ambitious position. Neither Counsel made any submissions to me that the objects of this interim hearing are in any way to secure a more beneficial position for the other party at the ultimate hearing which will be listed as soon as about June of this year.

6. The arguments for each of the parents have merit. Firstly, the father argues for a quicker and greater incremental increase of time for the children with him. The Family Law Act itself, of course, requires a Court to 'consider' the children's best interests and reasonable practicability being served by children living in an equal time arrangement between their parents. The father has demonstrated skills, facilities and accommodation to care for the children if only by reason of the current arrangements. He says that the parties live in close proximity and that there are no geographical limitations to him spending time, or increased time, with the children. The indications are that the children enjoy a happy and meaningful relationship with him. These are all weighty and meritorious arguments.

7. However, the mother's argument also has merits.  Although the term ‘primary' is often clichéd and misused in these Courts, these are young children who have lived primarily with their mother.  This has been the case in the children's formative years when the father was absent for lengthy periods due to his employment.  The mother argues, at least by implication, that it is her altruism, objectivity, facilitation, and encouragement that has caused or contributed to the children having such current good relationships with their father and that the quality of those relationships is established without any need to tinker with the issue of 'quantity'.  Further, the mother argues that there is a possibility that an increase in the children's time with the father now could cause some difficulties if he is required to resume overseas travel for his employment.  I see some merit in this argument despite the obvious current global situation and the substantive trial being listed as soon as about four months hence.  By way of comment in this regard, I find the husband's position in respect of relinquishing his employment to be rather odd.  I assume that the father is in relatively comfortable remunerative employment which in turn contributes to the support of the children.  He offers a role model of model of a parent engaged in the workforce.  Whilst similar often spontaneous statements of intent are not uncommon before these Courts, I was somewhat taken aback by such being forthcoming from this particular father.  Nevertheless, it is the position put by him and I expect such will be the source of some interest at the trial.

Conclusion

1. In a finely balanced determination whereas I must say it is something of a relief and relatively pleasant experience not to have to meander the 'usual suspects' brought before these Courts of family violence, mental illness and/or substance abuse, I prefer the more conservative position taken by the mother.

2. Essentially, I turn to the considerations of various Full Courts and now established principles in parenting matters where the Court should concentrate on the 'quality' of relationships between children and parents rather than simply a distribution of the 'quantity' of time.  On the evidence before me I can assume that these children by reason of their historical residence have an understanding of the roles taken by each of their parents.  The mother has been a constant for their care.  The father's more frequent involvement has come relatively later and I do not say this as any form of criticism.  The quality of the children's relationship with their father does not seem to be at issue and I note the mother's historical and current willingness to move forward in 'quantity' of time for the children with their father.  There is no evidence before me which suggests that the 'quality' of the children's relationship with their father would be enhanced in any way by the more ambitious orders sought by the father although equally I accept that such ‘quality’ would not be diminished.

1. I accept that the children are each negotiating their early years of school and that any other changes in their lives should be discrete, if at all.  The children are young at just 6 and 4 years of age.  As mentioned above, I am of the view that there is at least the possibility of some further changes in the children's arrangements depending upon the father's employment choices although, of course, there was no facility for cross-examination of his statement made only on the day of the hearing that he might relinquish employment.  Interestingly, this was not a decision that he apparently was willing to make or contemplated in the more formative years for these children.

2. On balance, therefore, I am satisfied that the children's best interests are better served by the proposal put by the mother and I will order accordingly. 

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Associate:

Date: 17 February 2021