WEST & WEST

[2012] FamCA 35

FAMILY COURT OF AUSTRALIA

WEST & WEST [2012] FamCA 35

FAMILY LAW - CHILDREN – Relocation – Interim orders – Application by the father for interim parenting orders –  The mother wishes to relocate the children from Sydney to Newcastle – Where the mother’s new partner lives and works in Newcastle – Where the mother is pregnant to her new partner – Where the mother is primary carer to the children – Where the mother is not in paid employment and her partner is unable to move to Sydney – Best interests of the children considered – Where unless the mother moves away from Sydney, the parties agree it is in the children’s best interest to continue to reside with the mother – Where children have maintained regular contact with the father even when he temporarily lived abroad – Where interim relocation would not adversely affect the children’s good relationship with the father - Ordered that the parties have equal shared parental responsibility, that children live with the mother and spend three out of four weekends and half school holidays with the father – Ordered that the mother is permitted to relocate the children to Newcastle – Ordered that the proceedings are transferred to the Family Court at Newcastle.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr West

RESPONDENT: Ms West

FILE NUMBER: SYC 7492 of 2011

DATE DELIVERED: 6 February 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 30 January 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Harper

SOLICITOR FOR THE APPLICANT: Barkus Doolan Kelly

COUNSEL FOR THE RESPONDENT: Mr Othen

SOLICITOR FOR THE RESPONDENT: Uther Webster & Evans

Pending further order

1. That Mr West (“the father”) and Ms West (“the mother”) have equal shared parental responsibility for T West born … October 2000 and S West born … April 2003 (“the children”).

2. That the children live with the mother.

3. That the children spend time with the father as follows:

   (a)until the mother and children move to Newcastle, each alternate weekend from after school Friday until the commencement of school Monday and at other times by agreement;

   (b)after the mother and children move to Newcastle, from 6.30 pm Friday until 6.30 pm Sunday as follows:

   (i)on the weekend commencing 17 February 2012;

   (ii)on the weekends commencing 2, 9 and 16 March 2012; and

   (iii)thereafter for the first three weekends each calendar month;

   (c)excluding Easter public holidays, whenever a public holiday coincides with a weekend the children are to be in the father’s care, his time with the children is extended by 24 hours to incorporate the public holiday;

   (d)for one half of each school holiday period;

   (e)on the weekend that includes Father’s Day;

   (f)on Christmas Day and the children’s birthday as agreed; and

   (g)at such other times as the parties agree.

4. That the father’s time with the children is suspended on the weekend after the mother brings her baby home and the Mother’s Day weekend.

5. That the mother is permitted to relocate the children’s residence to the Newcastle region.

6. That the mother is permitted to enrol the children at J School at Newcastle Suburb 1.

7. Subject to Order 8, changeover shall take place at the maternal grandfather’s home at … H Street, Sydney Suburb 1.

8. Commencing from March 2012 on each third weekend during school term, the father shall return the children to the mother’s home.

9. These proceedings are transferred to the Family Court of Australia at Newcastle.

10. 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym West & West has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7492 of 2011

Mr West

Applicant

And

Ms West

Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr West (“the father”) for interim parenting orders in relation to the parties’ children.  They are T who is 11 and S who is nearly 9 (“the children”).  The children live with the respondent mother, Ms West (“the mother”).

2. Notwithstanding that she lacks the father’s consent, the mother has reasonably well advanced arrangements to relocate the children from Sydney to Newcastle.  Curiously she, in effect, left it to the father to commence parenting proceedings rather than herself approach the Court for orders which would facilitate her unilateral decision.

3. From late 2010 the mother has been in an intimate relationship with Mr M.  In about November 2011 the mother learned that she is pregnant to Mr M and that their baby will be born in July 2012.  News of the pregnancy crystallised for the mother and Mr M their desire to live together in Newcastle, which is where Mr M lives.  He and his wife separated approximately two years ago, following which they have cared for their three children Monday to Monday week-about.  Mr M and his wife continue to operate as partners of W Business, in Newcastle.  The business has 110 employees and several hospitality establishments.  As a consequence of his personal and professional commitments in Newcastle, Mr M cannot relocate to Sydney.  It follows, that if the mother and her partner are to cohabit, she must move to Newcastle.

4. It is the father’s unchallenged evidence that the children are settled and happy in Sydney which is where they have always lived.  Both children perform well academically and have strong friendship circles at and away from school.  They regularly spend time with the father, at least each alternate weekend from Friday afternoon until Monday morning, as well as adhoc nights during the week.  The extent of midweek contact is an issue which, given the nature of interim hearings, cannot be resolved in this application. That said, attached to the father’s affidavit is a calendar which he says sets out his 2011 time with the children.  Excluding alternate weekends, this shows that from August through to December 2011 he cared for the children midweek as follows:

   ·Tuesday, 2 August 2011;

   ·Thursday, 4 August 2011 which was an extra day to the routine three day weekend;

   ·22 & 23 August 2011 which were extra days to the routine three day weekend;

   ·15 September 2011 which was an extra day to the routine three day weekend;

   ·Wednesday, 12 October 2011;

   ·Tuesday, 1 November 2011; and

   ·possibly also Tuesday, 17 December 2011.

5. From the calendar it is apparent there are regular 10-11 day periods during which the children did not spend time with the father.  However, their time together is supplemented by the father’s participation in the children’s activities.  During 2011 these included:

   ·two of T’s … competitions;

   ·Interschool Sport’s Day (the mother did not attend);

   ·Swimming Carnival;

   ·Christmas Carols;

   ·Parent/Teacher evenings;

   ·School disco (the mother did not attend); and

   ·Halloween Trick or Treating (the mother did not attend).

6. In relation to school holidays in 2011, the father’s calendar reveals the children were with him for six nights during April 2011, plus one week in the recent school holidays.  Otherwise, during school holidays it would appear that he has added an extra day or two to his routine alternate weekends.

7. In addition, the father regularly talks to the children by telephone and they use SMS, email, video conference and instant messenger to keep in touch. 

8. The father works in Sydney as an executive in the finance industry.  He is entitled to 20 days per year annual leave which means that if the children live in Newcastle, he would need to use recreation leave in order to participate in school and extra curricular activities.  With the children living and attending school in Sydney he is able to take a few hours here and there and not need a full day to share these types of activities.  I accept counsel for the father’s contention that this loss of flexibility and erosion of recreation leave is a significant matter which weighs against the mother’s Newcastle proposal.  It is the mother’s case that the children’s relationship with the father will not be adversely affected if they move to Newcastle.

Background facts

1. In October 1999 the father moved from the United Kingdom to Sydney on a two year work contract. 

2. The parties commenced cohabitation in late 1999 and were married in March 2001.

3. T was born in October 2000. 

4. Following T’s birth the father continued in full-time employment and the mother became a full-time homemaker and parent.  There is no issue, in relation to both children, that other than a period between 2003 and 2006 when the mother worked in the family business one day per week in school hours, that at all other times she cared for the children outside school hours.

5. S was born in April 2003.

6. Although it is not entirely clear when the parties moved into their home at Sydney Suburb 2, it appears that this is where the children predominantly resided until mid-late 2010.  In any event, the children commenced school at B School in Sydney Suburb 3 which is the only school they have attended. 

7. In 2007 work commitments took the father to Europe for three months.  The mother and children went with him. 

8. Separation occurred on 9 April 2010.  Considerable evidence was adduced in the mother’s case about events leading up to and at separation.  This includes allegations of family violence, alcohol and drug misuse by the father.  These allegations are denied by him.  As was mentioned earlier, the Court is not in a position to determine where the truth of the allegations and denials probably lies.  While in some cases, this can be troubling, that is not the situation here.  This is because in the almost two years following separation there is no evidence of family violence or substance abuse.  Rather, the evidence indicates co-operative and constructive post-separation parenting with, on its face, frequent face to face contact between the parents in public and private places without concerning behaviour or remarks by the father.  Thus, whatever the situation may have been at separation, it is appropriate to attach significant weight to the post-separation period.  In short, the position now is that there is no risk that the children will be exposed to family violence in either party’s care or to the mother by the father.

9. About a week after separation, the father moved into a hotel and then a rented unit in Sydney Suburb 3.  The mother and children returned to the marital home where they remained until mid-late 2010.  This was a very difficult time for the mother and she temporarily stopped working.  She was uncomfortable residing in the family home and, by mid-late 2010, she and the children had moved into a rented unit at Sydney Suburb 3.

10. In mid 2010 the father’s employer asked him to temporarily fill a vacancy in Asia.  This was in addition to him continuing his Sydney position.  He agreed and between July and Christmas Eve 2010, he lived and worked primarily in Asia.  He was in Asia between:

    ·13 July 2010 – 30 July 2010;

    ·15 August 2010 – 6 September 2010;

    ·13 September 2010 – 8 October 2010;

    ·14 October 2010 – 19 November 2010; and

    ·7 December 2010 – 24 December 2010.

11. Each time the father returned to Australia the children spent time with him and he otherwise remained in contact by telephone and electronically. 

12. Towards the end of his stint in Asia, at his employer’s expense, the mother and children visited Asia for one week.  They stayed with her brother and his family and the children spent time with the father, including a few nights overnight.  It is the mother’s evidence that the children were anxious that the father might remain overseas and, by implication at least, they missed him.  Thus, she encouraged him to return to Australia.

13. There would appear to be no doubt that the father’s stint in Asia involved a significant change to the parties’ and children’s circumstances to which all needed to adapt.  Considered exclusively from the children’s perspective it could be argued that during this period the father’s career had greater emphasis than the children’s ability to maintain easy and regular contact with him.  This is not a criticism about the father’s decision to accommodate his employer’s request, but rather to point out that the reality of family life is that it can be difficult to balance the interests and needs of all family members.

14. After the father returned to Australia the parties trialled an almost equal time arrangement for the children.  Within a short period, this was abandoned in favour of essentially three night alternate weekends and adhoc additional midweek contact with the father. 

15. Since about February 2011 the mother and children have spent each alternate weekend with her partner at his home in Newcastle.  These weekends have coincided with his children, C (aged 12), L (aged 9) and N (aged 8) being with him.  The five girls have formed a companionable relationship and get along well.  The children and the mother’s partner have a friendly relationship.

16. After she discovered she was pregnant, the mother spoke with the children and separately with the father about her desire to move to Newcastle.  After some hesitation, the children became enthusiastic about the move.  They were more circumspect with the father and he is probably correct in his assessment that they lack the maturity to fully appreciate its significance. 

17. Nonetheless, and notwithstanding that the father informed the mother on 15 December 2011 that he did not agree that the children move to Newcastle, she commenced arrangements to move.  Thus, she informed the school principal that the children would not be returning in January 2012 and the children farewelled their school friends at the end of term.

18. It would appear that when her 12 month contract of employment expired in December 2011 she did not renew.  In this respect, the mother was employed as an office manager for an allied healthcare provider where she also undertook physical assistance for patients.  It is her evidence that, as a consequence of her pregnancy, she was unable to continue the physically demanding assistance work involved in her job.

19. Consent property settlement orders were made in this Court on 15 December 2011 by reason of which, the assets were divided equally.  Basically, the father retained a unit at Sydney Suburb 3 subject to a mortgage, superannuation and savings.  The mother retained a car, furniture and personalty and is to receive $165,000.00.  Although the $165,000.00 was due a couple of days prior to the hearing, payment had not been made.  Given that a submission was made on the father’s behalf that the mother could use her property settlement to, for example, pay rent and meet her necessary expenses, I infer the money has now been paid.

20. The mother’s lease expires on 19 February 2012 which she has not sought to extend.  It is her contention that being out of work she could not, in any event, afford $690.00 per week rent and, even if she is unable to relocate with the children to Newcastle, she will need to move to her parents at Sydney Suburb 1.  It follows, in the mother’s case, the children must change schools.  However, this could be avoided if she applied her property settlement in the manner suggested by the father.

21. These proceedings were commenced by the father on 19 January 2012.  He was granted leave to proceed on short notice and the competing applications were heard by me on 30 January 2012.

Discussion

1. In deciding whether to make a particular parenting order, the best interests of the child are the paramount consideration. In determining what is in the child or children’s best interests, the Court must consider the matters set out in ss 60CC(2) and (3) of the Family Law Act 1975 (Cth). These provisions comprise a suite of primary and additional considerations which, in turn, relevantly, are supplemented by ss 60CC(4) and (4A).

2. If a parenting order provides, or is to provide, that a child’s parents are to have equal shared parental responsibility then in accordance with s 65DAA the Court must consider, in the circumstances set out in that section, whether to order equal or substantial and significant time with each parent.  Because it is agreed that an order that the parties have equal shared parental responsibility should be made, s 65DAA is enlivened.

3. According to the father, the mother is an exemplary parent who has, from the children’s birth, been their primary carer.  Although until separation he was a daily part of the children’s lives and contributed to their care, his work commitments meant that the mother was overwhelmingly responsible for the children’s care.  There would appear no reason to doubt the notion that he would not have left the children in her primary care and left the country for extended periods in 2010 if he had reservations about her parenting capacity.  Nor would he have done so if he was concerned about the strength of the children’s attachment to her and her willingness and ability to facilitate, and encourage, a close and continuing relationship between the children and him.

4. Post separation events have shown that in these respects his judgement was sound.  Not only were the children well cared for in his absence (with him providing appropriate financial support), importantly there were no difficulties in him maintaining regular contact with them, which included the mother taking the children to see him in Asia.  Her commitment to the children’s relationship with the father and belief that it is beneficial for them to have a meaningful relationship with him, is further evidenced by her agreement to trial an almost equal time arrangement after he returned to Australia. Although this did not continue, and at times in the latter part of 2011, she rejected his not unreasonable requests to have more time with the children, the preponderance of evidence persuades me that whether the children live in Sydney or Newcastle, she remains committed to ensuring that the children benefit from an ongoing meaningful relationship with the father.

5. Notwithstanding these remarks, I respectfully agree with the submission made by counsel for the father that, in effect, the mother presented her relocation proposal as a fait accompli to the father and children.  For her to persuade the children to look favourably upon her proposal and withdraw them from school, notwithstanding the father’s opposition, warrants adverse comment.  Was it not for clear evidence about her willingness and ability to facilitate and encourage the children’s close and continuing relationship with the father, her actions in this regard may have raised concern about this issue. 

6. As has already been alluded to, the father undoubtedly values the benefits to the children of continuing their meaningful relationships with the mother.  Indeed, it is only if she decides, as she is entitled to do, to move to Newcastle that he proposes that the children live with him.  Implicit in this approach is his recognition that it is in the children’s best interests to continue to reside primarily with the mother and that separating them from her is not a step which he or the Court should take lightly.  On balance, at least on an interim basis, when the history of the mother’s primary care of the children from birth is taken into account it is highly likely that she is the parent to whom the children are primarily attached and whilst the children have a good and strong relationship with the father, on a day by day basis, the strength of the children’s relationship with the mother means it is in their interests to primarily live with her and to continue their good and strong relationship with the father through direct contact on a regular basis.  These are significant matters which weigh in favour of the mother’s application.

1. This raises for consideration the likely effect, including separation from their parents of the parties’ proposals. 

2. Newcastle is about two hours north of Sydney.  Distance would thus impose practical difficulties in how often and how the children spend time with the father.  As has been mentioned earlier, the flexibility available with the parties and children living in the same suburb would be lost.  This, in turn, would impede his ability to be involved in the children’s school routine and occasions and events that are of particular significance to him and them. 

3. During closing addresses I raised the notion that in lieu of the mother’s proposed two night alternate weekend proposal, on the Newcastle application, it was feasible that the children could spend three weekends each month with the father in Sydney.  With changeover at Sydney Suburb 1 most of the time the parties agree that this is feasible.  Of course, this means that the father is unable to continue his current practice of collecting and returning the children from school and some of his time with the children would be taken up with travel.  Nonetheless there would be few gaps longer than 10-11 days and none as long as when he worked in Asia.

4. It needs to be borne in mind that this is an interim application; albeit it is the mother’s desire to permanently live with the children in Newcastle.  During the hearing, I asked whether the parties would agree that the proceedings be transferred to Newcastle.  The point being, a final hearing with a family report would take place much sooner in Newcastle than in Sydney.  The parties agree that the proceedings be transferred.  Thus, the changes in the children’s circumstances proposed by the mother would be addressed on a final basis, some time this year.  It is difficult to see how with regular weekend and school holiday time with the father, the children’s relationship with him or his influence in their lives might be adversely affected.  So that it is clear, the preponderance of evidence would indicate that the children’s relationship with the father would be unaffected.  This is a matter to which I attach significant weight.

5. It is common ground that the mother has a real and understandable desire to be with her partner for the remainder of her pregnancy and settle in Newcastle.  Although she does not need to establish a good reason for wanting to relocate, it is difficult to contemplate a stronger set of circumstances which might motivate an application such as this.  With the father able to continue in full time employment and live on income, not capital, it would be somewhat unreasonable to require the mother to live on capital (plus child support) which the evidence suggests that in the short to medium term she is unlikely to replenish.  Of course, if it was in the children’s best interests that she does so, she might have to.  In a similar vein, for the Court to, in effect, make it extremely difficult for prospective parents to share their pregnancy and bring their family together for their baby’s birth, is also a step which would only be taken if it was in the subject children’s best interests. 

6. The father is understandably concerned about the effect on the children of changing schools and friendship circles.  T is an exceptional student who, in her final year at primary school, would almost certainly relish being a senior student at the school she has always attended.  As a new student elsewhere this would be lost.  However, both girls have many friends and do well socially and academically.  Although changing schools involves some loss, they are likely to quickly adapt.  It is the mother’s proposal that the children attend J School at Newcastle Suburb 1 which, in many respects, is similar to B School.  In short, changing schools might involve a temporary setback academically and socially, however, quite quickly these losses will be regained.  Of course, the children know Newcastle well and would move to Mr M’s home, which is where they stay when visiting him.  Their familiarity will make the transition relatively easy.

7. Whichever outcome is ordered, one of the parties will be unhappy.  Because of the nature of the children’s relationship with the mother her happiness has a nexus to their wellbeing.  It is preferable that the mother’s personal and emotional wellbeing is assured so as to avoid the potential that her consequential unhappiness might lessen her capacity to continue to parent the children in the exemplary manner to which they are accustomed.  Because the children are less reliant upon the father his unhappiness, if they move temporarily to Newcastle, is highly unlikely to impact upon them.  These findings weigh significantly in favour of the mother’s relocation application.

8. None of the proposals involves a risk of exposure to family violence.

9. On balance, in this difficult and finely balanced case, I am satisfied that it is in the children’s best interests to reside with the mother in a setting which does not run the risk of compromising her parenting capacity.

10. Because the parties agree that they will have equal shared parental responsibility, consideration must be given to an equal time or substantial and significant time with each parent outcome.  It is immediately apparent, that neither outcome is reasonably practicable if the children live with the mother in Newcastle.  In short, the parties will live too far apart from each other to make these outcomes work.  Although the parties are able to communicate effectively about the children it is distance which would make equal time and, failing that, substantial and significant time impracticable. 

11. Of the various proposals presented by the parties, the outcome which, on an interim basis, delivers a best interests outcome, is the mother’s application that the children relocate with her to Newcastle which will be ordered.  As a consequence, orders will be made which facilitate two night weekends with the father during school term.  Because the third night is impracticable, both in relation to the father’s employment and travel involved for school, during term, the children will spend the first three weekends of each month in Sydney with the father.  Thus, in addition to maintaining good contact between the children and him they are also able to maintain their Sydney friendship circle.  For obvious reasons, adjustment is appropriate for Mother’s Day and the first weekend they can be at home with their new sibling.

12. The mother proposes and, in the circumstances it is appropriate, that she will undertake the majority, but not all, of the effort associated with travel.  Although the father does not have a car, he has a significant income and is able to collect and return the children from the maternal grandfather’s home at Sydney Suburb 1 and, during term, return the children to Newcastle once every three weeks.

13. It is anticipated that the mother will immediately move to Newcastle.  To assist the children to settle into the mother’s partner’s comfortable home, the weekend following their move, they will remain in Newcastle.  Otherwise, the orders provide for the children to share holidays between their parents and for them to be able to change arrangements as they, from time to time, agree.  Neither party considered that orders were necessary in relation to the children’s communication with the father because each is confident this will occur without difficulty.  I agree.

1. For these reasons, I make the orders identified at the start of this judgment.

I certify that the preceding forty nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 6 February 2012.

Associate:                 

Date:    6 February 2012