WILLIAMS & LISLE

[2014] FCCA 1454

FEDERAL CIRCUIT COURT OF AUSTRALIA

WILLIAMS & LISLE [2014] FCCA 1454

Catchwords:
FAMILY LAW – Parenting – relocation – interim determination.

Legislation:  

Family Law Act 1975

Rice & Asplund (1979) FLC 90 – 725

Goode & Goode (2006) FLC 93-286

Morgan & Miles (2007) FLC 93-343

Applicant: MS WILLIAMS

Respondent: MR LISLE

File Number: PAC 1047 of 2011

Judgment of: Judge Dunkley

Hearing date: 6 June 2014

Date of Last Submission: 6 June 2014

Delivered at: Parramatta

Delivered on: 6 June 2014

REPRESENTATION

For the Applicant: In person

Solicitor Advocate for the Respondent: Ms Petkovic

Solicitors for the Respondent: Armstrong Legal

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The orders made 18 May 2012 are suspended.

2. The parties shall have equal shared parental responsibility for the children [X] born [in] 2005 and [Y] born [in] 2006.

3. As and from 28 June 2014 the mother is permitted to disengage the children’s enrolment at [S] School and re-enrol the children at an appropriate school closest to [C], New South Wales, selected in consultation with the father.

4. As and from 28 June 2014 the mother is permitted to relocate the children’s residence to [C], New South Wales.

5. As and from 28 June 2014 the children shall live with the mother in [C] New South Wales.

6. Prior to 28 June 2014 if the mother has moved to [C] the children shall live with their father and remain enrolled at [S] School. 

7. The children are permitted to communicate with the parent with whom they are not living by telephone, email, text message, face time, Skype or Viber not less than 3 times per week or as requested by the children having regard to the activities they are involved in.

8. Both parties are able to be in attendance at any school attended by the children for the purpose of following the progress of the children’s education.

9. Each of the parties are to notify the other of any serious injury, incident or illness suffered by the children as soon as practicable and within 12 hours of such occurring.

10. The children shall spend time with the father from 28 June 2014 as follows:

    (a)During school term time each alternate weekend from 7pm Friday to 7pm Sunday commencing the first weekend of each term;

    (b)The first half of the term two school holidays such half ending at 9am on the middle Sunday;

    (c)For all of the term three school holidays;

    (d)For the weekend of Father’s Day from 7pm the Friday preceding that day to 7pm on Father’s Day;

    (e)On the weekend involving [Y]’s birthday from 7pm on [date omitted] 2014 to 7pm on [date omitted] 2014.

    (f)For one half of the term four school holidays being the first half in 2014 and each alternate year thereafter and the second half in 2015 and each alternate year thereafter; 

    (g)For the first half of term one school holidays; and

    (h)Such other times as agreed between the parties.

THE COURT FURTHER ORDERS:

1. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report.

2. The Family Report to deal with the following matters:

   (a)Any views expressed by the children the subject of parenting orders sought in this case, provided that the children shall not be required to express a view in relation to any matter.

   (b)The nature of the relationships of the children with each of the children’s parents and with significant other persons.

   (c)The willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent.

   (d)The likely effect of any changes in the children’s circumstances, including the likely effect on the child of any separation from:

   (i)either of the parents; or

   (ii)any other child, or significant person, with whom the children have been living.

   (e)The capacity of each parent, or another person, to provide for the needs of the children, including emotional and intellectual needs.

   (f)Each parent’s attitude to the children and to the responsibilities of parenthood;

   (g)Such other issues as the Family Consultant considers relevant.

3. The Family Consultant is requested to complete the report not less than 4 weeks before the directions hearing date, being 28 November 2014.

4. The parties, partners and siblings shall attend all appointments with the Family Consultant and shall ensure the subject children attend all appointments with the Family Consultant, as requested by the Family Consultant.

5. The Family Consultant may inspect the Court file and any documents produced on subpoena to which no objection has been lodged.

6. List the case for further directions at 9.30am on 28 November 2014 consequent upon the release of that family report.

7. 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 under the pseudonym Williams & Lisle is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT PARRAMATTA

PAC 1047 of 2011

MS WILLIAMS

Applicant

And

MR LISLE

Respondent

REASONS FOR JUDGMENT

1. Somewhat counterintuitively, cases involving parents who are capable, involving parents who love their children and are in turn loved by them and cases involving children who have step-parents and half-siblings whom are also loved by the children are the most difficult, or in most circumstances the most difficult, cases to determine for courts exercising jurisdiction under the Family Law Act1975.  This case is no different.

2. [X] and [Y] are indeed lucky, fortunate and blessed children.  They have parents who care for them deeply.  They have parents who provide for them, who nurture them and want the best in life for them.  They have step-parents who love them equally, who care for them and are concerned for their wellbeing into the future.  They have a half-sister and they are shortly to have another half-sibling. 

3. Ms Lisle, the mother, or ‘Ms Williams’, as she is now known, and Mr Lisle, the father, have two children from their relationship:  [X], born [in] 2005, and [Y], born [in] 2006 (“the children”).   

4. On 18 May 2012, Federal Magistrate Harman, as he then was, by consent, made final parenting orders that provided for [X] and [Y] to live with the parties in a three-week rotational period as follows:  nine (9) consecutive nights with the father followed by twelve (12) consecutive nights with the mother, with the periods thereafter repeating. 

5. He ordered that the parents have equal shared parental responsibility for the children. 

6. The children were to spend time with their mother and father on special occasions by agreement, with changeover at the commencement of the father’s time to take place at the home of the father and changeover at the commencement of the mother’s time to take place at her home.

7. The children were to remain enrolled at [S] School. 

8. The mother has, since the making of those orders, re‑partnered.  She married Mr Williams on [date omitted] 2013. Mr Williams is a [occupation omitted].  He has been a [employer omitted] for twelve (12) years, [employed in] both in Australia and overseas.

9. The mother is heavily pregnant with her and Mr Williams’ baby and is due to give birth in August 2014.

10. Mr Williams was recently [transferred] to Darwin and made a request to [employer omitted] for [omitted] on compassionate grounds. 

11. [Employer omitted] acceded to his request and Mr Williams has since been [transferred] to [W] near Newcastle, effective 30 June 2014, with a planned [transfer] date of 1 January 2018. 

12. The mother and Mr Williams have been allocated [omitted] housing at [C] near [N].  That housing is expected to be available from sometime around 17 June 2014. 

13. I accept that Mr Williams is at the present time engaged in the [omitted] necessary for him to be able to commence his [employment] at [W].

14. His orders are promulgated and a copy of those orders is attached to the mother’s most recent Affidavit as an annexure, that Affidavit having been sworn on 23 May 2014.  Also annexed to that Affidavit is a tenancy confirmation from [omitted] Housing.

15. I am therefore comfortable making the findings that I have in respect of Mr Williams’ [employment transfer] and the availability of [omitted] housing.

16. The mother seeks to discharge the orders made on 18 May 2012 and seeks an order that the children be permitted to relocate and change schools so that they can live with her and Mr Williams at [C].  She proposes that the children spend time with the father each alternate weekend from 7pm Friday to 7pm Sunday, with changeover to occur at [W].

17. The mother also proposes that they would spend time with him for half of the Term 2 and Term 4 school holidays and all of the Term 1 and Term 3 school holidays; and that there would be time for the children with each of their parents for birthdays, Mothers Day, Fathers Day and special occasions. 

18. In the alternative, the mother says that if the children are not permitted to relocate, then she herself will be moving to [W] and she would then propose that the children would, in that event, live with their father and spend time with her in virtually the mirror image of what she proposes would be the time they would spend with their father.

19. She has filed two Affidavits that I have read in respect of her relocation application: the first sworn 5 May 2014 and the second 23 May 2014.  She had filed an earlier-dated Affidavit of 29 April 2014.

20. The father opposes the children’s relocation and he makes a number of proposals in the alternative, as is proper having regard to the nature of the case that is being determined. 

21. In the event that the court were to make orders that the children were not permitted to relocate, and in the event that the mother changed her mind and decided to stay, then he proposes a discharge of the existing parenting orders from 18 May 2012, that the parties have equal shared responsibility and that the children live in a week-about arrangement with changeovers on Friday, and that they be enrolled in a school in the midpoint between the mother’s home and the father’s home. 

22. I have no doubt that the mother’s intention is that, if she is unsuccessful for the children to relocate today, that she will in fact herself move to [C], without them.  

23. The father then proposes that, in the event that the mother relocates to [W] and the children are permitted to relocate with her, that orders are made as follows:-

    a)all prior parenting orders be discharged; 

    b)the parties have equal shared parental responsibility; 

    c)the children spend time with the father every second weekend from 7pm Friday to 7pm Sunday, the entire Term 3 school holidays, half of the Term 1 and Term 2 school holidays and the Christmas school holiday; 

    d)the children spend Fathers’ Day weekend with the father and that the children spend time with him on their birthdays and on special days, and at other times as agreed between him and the mother.

24. The father proposes that changeovers would be effected by the mother delivering the children to his residence at the commencement of the children’s time, and that he would return the children to the mother’s residence at the conclusion of his time.

25. Further and in the alternative, the father proposes that the following orders be made:-

    a)all prior parenting orders be discharged;

    b)the parties have equal shared parental responsibility for the children; 

    c)the children live with him and that the children spend time with the mother as agreed between the parties and failing agreement, every third weekend during school term with changeovers in [G] in a mutually agreed location and, failing agreement, at [G] McDonald’s, from 7pm on Friday to 7pm on Sunday;

    d)the mother spend time with the children at any other time that she was in Sydney provided seven (7) days’ notice was given,

    e)the mother spend time with the children during the school holidays for the entire Term 1 and Term 2 school holidays and for half of the Term 4 school holidays in December and January, and on Mothers Day, with differential arrangements he proposes for changeover.

26. The father also proposes electronic communication via telephone, email, text message, FaceTime or Skype on a liberal basis, at least three (3) times per week, during times that the children are with the other parent.

27. The father also proposes both parties be at liberty to travel interstate and overseas during the periods that the children are living or spending time with the parent, provided they give the other party at least fourteen (14) days’ written notice for interstate and overseas travel,  and that the children’s passports be held by the father for safekeeping.

28. The father also proposes an order that the children attend a primary school and a high school near his residence, that the school to be selected by him, and that the parties do all things necessary to authorise that school to provide direct communication with the parents about the children’s attendance and progress at the school, and that the parties and extended members of the children’s families and the parties’ families be entitled to attend at school, at the children’s extracurricular activities, parties, and so forth.

29. None of the evidence before the court has focused in any real or meaningful way with respect to the order that related to the ability of the parties to travel overseas or interstate. That was so primarily because these are interim proceedings and the most urgent and important determination to be made is the parenting and living arrangements for the children. 

30. A determination then of whether the children can travel interstate or overseas and what is to happen to any of their passports is a matter that can be dealt with more properly at a final hearing or by agreement between the parties.

31. Neither party argues that the dicta in Rice & Asplund[1] be applied today, as both parties to seek to change the existing parenting orders.

    [1] Rice & Asplund (1979) FLC 90 – 725.

32. The father lives in [F] with his wife and their young daughter.  He works full-time.  His employer has enabled him some flexibility to attend to his parenting duties. 

33. In his affidavit and through submissions from his legal representative, the father says that if the children live with him, there are two schools in the immediate area where they could be enrolled, either at [F] or at [omitted], and that they would be able to commence at those schools in Term 3. 

34. The mother, in the course of her submissions, says that if she is permitted to relocate with the children, then she will not be having the children finish at their current school until the end of this school term.  The last day of this school term is 27 June 2014.  She has said that she has arrangements in place that, if she moves before that, that she has friends that would care for the children.  That submission was made “towards the heel of the hunt”, as it were. 

35. There would be no reason, given the parties’ current involvement with the children, if the mother moved early to [C] and the children were permitted to relocate, that the children would not be able to stay with the father until such time as the school term ended. Neither party made any submission with respect to this.   

36. Both parties have a demonstrated capacity to co-parent and exercise equal shared parental responsibility.  The father is minimally critical of the mother having made some decisions without information to him, but is not overly critical. 

37. It is submitted by the father that I should draw some adverse inference from the mother not providing an Affidavit from her partner.  Given that she is a self-represented litigant and would not have appreciated the importance of that Affidavit, I am not critical of her. In any event this is such a finely balanced case that any Affidavit from Mr Williams would likely have had little to no impact on the decision-making of this court, it would neither have advanced the evidence that was available to the court in its decision-making process and its absence has not detracted from it. No one disputes the children are not fond of

    
    

    Mr Williams. No one suggests they do not have a relationship with him.

38. Both seek a continuation of the equal shared parental responsibility.  Given their capacity to communicate, their capacity to parent and their focus on the children, a continuation of that order is both in the children’s best interests, and is also, by virtue of their very good communication, appropriate, proper and reasonably practicable. 

39. The principles in deciding interim parenting cases are well settled, that is, the court must make orders that are informed by the objects as set out in section 60B.  The court must make parenting orders that have as their paramount consideration the best interests of the children.  In determining what is in the children’s best interest, factors set out in section 60CC(2), (2A) and (3) are to be considered, weighed and evaluated. 

40. Helpful guidance and binding guidance is provided to me in deciding this case by decisions such as Goode & Goode[2] and Morgan & Miles[3]. 

    [2] Goode & Goode (2006) FLC 93-286.

    [3] Morgan & Miles (2007) FLC 93-343.

41. It is clear from a long line of cases that applications to relocate children’s residences are nothing more than a type of parenting case.

42. Turning then to the factors that the Court must take into consideration, to determine the best interest of each of the children. The primary considerations are the benefit that will attach to the children in having a meaningful relationship with both of the parents. 

43. Since the parties’ separation, the children have spent time with their parents, initially on an equal-time basis, week-about, and more recently on a nine (9) nights with the father and twelve (12) nights rotating basis with the mother. 

44. I am satisfied that these children have attained a considerable benefit from having a meaningful relationship with each of their parents and that they do in fact have a meaningful relationship with each of their parents.  The determination that I must engage in is how to maintain that meaningful relationship in the circumstances that will exist shortly in this case, with the mother living in [C] near [N] and the father living in [F] near the northern beaches of Sydney. 

45. Neither party puts before me any evidence as to the travel time that would be involved transporting the children between these locations. I would be comfortably certain that that travel time, depending upon the time of day and the day of the week, would vary somewhere between three and a half hours (3½) to four and a half hours (4½) and sometimes, if traffic were diabolical, as it often is in Sydney on Fridays and at weekends, might take somewhat longer. 

46. There is, on the evidence, for these children, pleasingly no need to protect them from physical or psychological harm.  As I said at the outset, these children are deeply loved, cared for, respected and parented.  Any decision that I make today will have an impact on them by virtue of the change of circumstances, but I am satisfied that these are resilient children because they have been so well parented.  They have, since their parents’ separation, enjoyed an equal-time arrangement with each parent and, of more recent time, since May 2012, enjoyed spending more time in the care of their mother than their father, albeit by a three-day period, in each 21 days.  

1. The children, it would seem, because of the fact that they have been able to establish relationships with the father’s wife, their new sibling [Z] in that household, and the mother’s new husband, resilient children who are reaping the rewards of the good and exemplary parenting that they have received in their lives to date. 

2. There is no real evidence in either of the parties’ affidavit material as to the views of the children.  I would be comfortable in determining and assuming, I think, because of the nature of the cooperative post-separation parenting arrangement and the time that the children have spent with each of their parents, that these children love their parents deeply and that they may be upset, in the decision that is made today; but, because of their resilience, they are more than likely to be able to cope with a change in their living arrangements and the reduction in time they will spend with one of their parents. 

3. I am satisfied that the children have a deep, important and equal relationship with each of their mother and their father; that they are developing a strong relationship with their father’s wife and are in the process of developing a strong relationship with the mother’s husband; that they are important sibling relationship with [Z] and will, I am certain, in the future, following the birth of the mother’s child, begin the development of that sibling relationship as well. 

4. I am satisfied that the parties have properly and appropriately in nearly all circumstances, made proper decisions in a co-parenting sense about major long-term issues relevant to the child.  They have each spent time with the children and communicated with them.  They have each fulfilled their responsibilities and obligations to maintain the children. 

5. Turning, then, to further analysing the likely effect of change, if the mother is permitted to relocate the children’s residence to [C], then they would spend less than nine days in every three weeks that they have been used to now for the last just over two years with their father.  There would undoubtedly be a change in that relationship. 

6. The change would be that they would not spend as much time with him, that he would not be as intimately involved in all the things that happened in their life, both in school and out of school and in family.  What would not change is the love and affection that they feel for him and what would not change is the love and affection that he feels for them.

7. If the children were not permitted to relocate their residence to [C], then they would cease spending twelve (12) days in each three weeks with their mother and they would experience that loss, as they would experience the loss that they would with their father if they were permitted to relocate. 

8. The loss might be marginally more keenly felt by them, given that they have been used to, for two years, spending slightly more time in her care than they have in the father’s care.  Again, what would not change is the love and affection that she feels for them and the love and affection that they have for her. 

9. Not living with the mother is likely to cause the children to take a longer period of time to be able to build on their relationship with Mr Williams and they would take a longer period of time to be able to establish a relationship with the child that she and Mr Williams are shortly to have. 

10. I am satisfied that the children also have important relationships with their parents’ respective spouses and there would be, if their residence changes, an effect on that relationship for the same reasons, as I have set out above. 

11. If the children are permitted to relocate from the suburb of Sydney, where they now live, to [C], then there are additional practicalities and expenses in the father being able to spend time with the children.  Similarly, if they do not relocate there will also be the same practicalities and expenses in the mother spending time with the children.  I am more than comfortably satisfied that each of these parents, as I have said, are capable, conscientious and have enormous capacity as parents and would therefore be able to adjust to and accommodate these practicalities and expenses.   

12. I am satisfied too that the father’s wife and the mother’s husband are able to exercise capacity as a step-parent, to assist their mother and father in the nurture and development of these children and are able to, provide for the needs of the children, including emotionally and intellectually.  The father’s wife has probably had more experience in doing that by virtue of the length of their relationship than the mother’s husband has.

13. There is nothing in the children’s age, sex, lifestyle or background that really affects any decision in this case.  The children’s parents are from [country omitted].  They have migrated here.  The children do not have any Aboriginal or Torres Strait Islander heritage or culture.  There is no family violence evident in these parties’ relationships.  Each of the parties has a proper attitude to the responsibilities of parenthood that they have demonstrated over a long period of time, to their credit. 

14. Any orders that I make today will be interim orders.  It is likely, given the circumstances of this case, that the parties may be engaged in future and further litigation.  Clearly, at the end of today it is more than likely that a family report would be ordered and the case would begin the preparation for a final hearing.  If that final hearing were run, it is entirely possible that any order made today might be reversed at final hearing, light of further evidence.

15. Much was made in submissions on behalf of the father of the unknown, untested arrangements that will exist for the children if they live in the household of the mother and Mr Williams. Much was made of the stability of the father’s living arrangements but, as I said to the legal representative for the father, at the time that he commenced his relationship with his partner and subsequently married her, he was at that point in time in no different a position to what the mother and Mr Williams find themselves at this time and I am satisfied, given the easy adjustment that the children made to that change in their father’s life, that they will make a similarly easy adjustment to change in their mother’s life. The children have also coped without any reported difficulty with the birth of a sister in the relationship between their father and his wife and I am satisfied and find it highly likely that they will similarly cope with the birth of a child in the mother and
    Mr Williams’ relationship.

16. It is unknown at this point in time whether this will be Mr Williams’ last [employment transfer].  The mother said that in the future he intends to resign and that they would not be moving further.  She says that that is foreseeable within the future.  Whether or not that turns out to be the case, time will tell. In any event his current [employment] is until January 2018.

17. The mother will, in the short-term future, move to a home at [C] and give birth to a child.  She will thereafter be at home for a period of time to enable her to care for that child and the children if they are then living with her. 

18. The father has employment that provides him with flexible work arrangements that enable him to meet the needs of the children.  He has a wife who is able to assist him in that and they have proposals that would provide for the children post-school if either of their parents were engaged in their employment and unable to collect them. 

19. This is an incredibly finely balanced case.  The outcome is of crucial importance for each of the parents and will have a significant impact on each of the children; however, whatever the outcome of this case, these children will continue to love each other and their parents and their step parents and be loved in return.  They will continue to be able to be provided for, cared for, nurtured and grown.  The children would, I am satisfied, do equally as well living with either parent and spending time with the other parent.

20. It seems to me that the only tipping balance in this case is that, since 18 May 2012, the children have been used to spending slightly more time each three (3) weeks with their mother than their father and are therefore likely to suffer somewhat more negatively, probably emotionally, from not living with her than with him.  It is that finely balanced a case.

21. Given the distance between the parties’ households once the mother moves to [C], an equal-time order is neither possible, practicable nor feasible. The travel time and the distance dictates such to be the case. Significant and substantial time is, however, both practicable and in the children’s best interest. Such an order will be, because of the distance, defined to times that are less than is current; nevertheless, it comfortably meets the definition of “significant and substantial time” as set out in the Family Law Act.

22. In the interim, alternate weekend periods commencing at 7pm on a Friday to 7pm on a Sunday are the appropriate orders that would be made that are in the best interests of the children to ensure the continuation of the meaningfulness of the relationship.

23. Changeovers at [W] will be preferable to changeovers at [G], as [W] is not as far off the highway as is [G] and is more easily therefore ascertainable than is [G].  Changeovers outside the railway station at [W] are most practical in that there is ready availability of parking, toilet facilities and shops nearby.  For these reasons I find that changeovers at [W] are more reasonably practicable.  The extra travel time one way or the other, given the greater distance into [G], is hardly significant and does not in any real sense add to the practical difficulty.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Dunkley

Associate: 

Date:  8 July 2014