WINSLOW & WINSLOW
[2016] FamCA 1023
•28 November 2016
FAMILY COURT OF AUSTRALIA
| WINSLOW & WINSLOW | [2016] FamCA 1023 |
| FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – Whether the mother should be permitted to relocate with the parties’ four children to New Zealand – Where the mother intends to relocate regardless of whether the children relocate with her – Where the mother has been the primary carer of the children – Where the mother seeks to relocate to receive greater support from her family and friends and improve her financial position – Where the mother has been drawing upon capital to support herself and the children –Where the parties agree it is appropriate for them to have equal shared parental responsibility – Consideration of section 60CC – Where the Court is satisfied it is in the best interests of the children to relocate with the mother to New Zealand. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CD, 61DA, 65DAA Malcolm & Monroe and Anor (2011) FLC 93-460 |
| APPLICANT: | Ms Winslow |
| RESPONDENT: | Mr Winslow |
| FILE NUMBER: | SYC | 5524 | of | 2013 |
| DATE DELIVERED: | 28 November 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 8 - 9 August 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Christie |
| SOLICITOR FOR THE APPLICANT: | Fox & Staniland Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr S. Schonell |
| SOLICITOR FOR THE RESPONDENT: | Sharon Payne Family Lawyers |
Orders
The parties have equal shared parental responsibility for the children B born … 2001, C born … 2003, D born … 2004 and E born … 2006 (“the children”).
The children live with the mother.
The children are permitted to depart and live outside of the Commonwealth of Australia with the mother in New Zealand.
The parties are to do all acts and things and sign all documents necessary to facilitate the children being enrolled to attend the following schools at the commencement of the 2017 school year:
(a)B and C to attend F School in G Town; and
(b)D and E to attend H School in I Town.
Unless otherwise agreed between the parties in writing, after the children’s relocation with the mother to New Zealand, the children are to spend time with the father as follows:
(a)For a period of up to nine (9) nights in each mid-term school holiday period as nominated by the father, and failing agreement between the parties, and subject to Order (5)(c) below, the children’s time with the father is to commence on the first Saturday of all mid-term school holiday periods and is to conclude nine (9) nights later; and,
(b)For a period of up to four (4) weeks during the Christmas school holiday period, being the first four (4) weeks in each even numbered year and the last four (4) weeks in each odd numbered year, such that each Christmas is to be alternated between the parties; and
(c)Upon at least two (2) months’ notice to the father, the mother shall be at liberty to nominate one (1) mid-term school holiday period each year where the children will remain in her care for the entire school holiday period.
After the children’s relocation with the mother to New Zealand, in the event that the children are not already in the father’s care, they are to spend the following additional time with the father:
(a)Upon the father giving the mother seven (7) days’ written notice, on any weekend when the father is in the I Town area in New Zealand.
(b)On the weekend immediately following C’s birthday (…) each year from the conclusion of school on Friday until the commencement of school on Monday;
(c)On the Easter long weekend each year from 5pm Thursday until 5pm Easter Monday (should such long weekend not fall within the mid-term school holiday period);
(d)On the weekend immediately following E’s birthday (…) each year from the conclusion of school on Friday until the commencement of school on Monday;
(e)On the New Zealand June long weekend each year from the conclusion of school on Friday until 5pm on Monday;
(f)On the New Zealand Father’s Day weekend each year from the conclusion of school on Friday until 5pm on Father’s Day;
(g)On the weekend immediately following B’s birthday (…) and the Father’s birthday (…) each year from the conclusion of school on Friday until 5pm on Monday;
(h)On the weekend immediately following D’s birthday (…) each year from the conclusion of school on Friday until 5pm on Monday;
(i)On the New Zealand October long weekend each year from the conclusion of school on Friday until 5pm on Monday; or
(j) Unless otherwise agreed between the parties in writing.
The father is to have the option of spending time with the children as referred to in Order (5) in New Zealand or such other destination that he nominates.
The father is to spend time with the children as referred to in Order (6) in New Zealand or in a country local to New Zealand, including Australia.
For the purposes of changeovers pursuant to Order (5), and unless otherwise agreed between the parties in writing, the parties are to meet at the local international airport in New Zealand.
For the purposes of changeovers pursuant to Order (6), the father is to collect the children from school, or the mother’s place of residence, at the commencement of his time with the children, and is to return the children to the mother’s place of residence at the conclusion of his time.
In the event that the father wishes to spend time with the children outside of New Zealand, the following conditions are to apply:
(a)The father is to provide the mother with a copy of his and the children’s itinerary and e-ticket twenty-eight (28) days in advance of the commencement of his time with the children.
(b)The mother is to pay to the father the sum of $1000 per year for the children’s flights and thereafter the father is to pay for his and the children’s flights.
(c)If either parent is unable to personally collect the children at a changeover, the parties are to agree on another suitable person who may travel with the children on the flights.
(d)The children’s passports and luggage are to be provided to the other parent at the airport when changeover takes place, together with any items the children will need when in the care of the other parent, for example medication, clothing or school work.
(e)If any of the children’s passports are lost, stolen or about to expire, both parties are to sign all relevant forms and share equally in the cost for a new passport to be issued.
After 8 August 2017, the parties may agree in writing that the children travel unaccompanied, in which case:
(a)the parent who they have been spending time with, or their nominee, is to:
(i)prior to the children departing, provide a list of items that the children will have with them when in the care of the other parent, for example medication, clothing or school work; and
(ii)send a text message to the other parent immediately after the children board their flight; and
(b) the parent who the children will be spending time with, or their nominee, is to send a text message to the other parent immediately after the children alight the aircraft upon arriving at their destination.
The parties are to each activate Skype and permit the children to speak to the other parent on a webcam as often as the children wish, and at least once a week, and on all special occasions being each of the children’s birthdays, Father’s Day, Mother’s Day, Easter, Christmas and each parties’ birthday and at such other times as agreed between the parties.
The mother is to ensure that the parties are listed as enrolling parents and emergency contacts at the children’s school(s).
The mother is to authorise the children’s school(s) and other care providers to provide all information and documents about the children to the father, including but not limited to, the children’s progress reports, school newsletters, photographs and details of any school activities.
The parties are at liberty to discuss matters relating to the children with the children’s school, teachers, principal and other care providers.
Each party is at liberty to attend any significant school events and any significant extra-curricular activities or sporting events that the children may be involved in.
Each party is to keep the other informed of their current residential address, mobile and landline numbers and email address and advise the other of any change thereto with twenty-four (24) hours of such change.
Neither parent is to discuss these proceedings within the presence or hearing of the children.
Notations
A.The mother is prepared to deliver the children to City V if requested by the father or at any other place as agreed between the parties.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Winslow & Winslow has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 5524 of 2013
| Ms Winslow |
Applicant
And
| Mr Winslow |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern an application by Ms Winslow (“the mother”) to relocate to New Zealand with the parties’ four children, B born in 2001 currently aged 15 years (“B”), C born in 2003 currently aged 13 years (“C”), D born in 2004 currently aged 12 (“D”) and E born in 2006 currently aged 10 (“E”) (“the children”). The application is opposed by Mr Winslow (“the father”).
This matter is difficult in the sense that the children are loved and well cared for in each of the parent’s households and that fact is acknowledged by each of the parents. The mother wishes to relocate to New Zealand in order to improve her parental capacity and personal wellbeing. This is in the context where the mother has reported suffering from feelings of depression and anxiety which she attributes to the circumstances of her relationship breakdown and undertaking the responsibilities of a single mother, including meeting financial challenges, without the assistance of her family and long-time friends who reside in New Zealand.
The father has understandably expressed concern regarding the impact that such a relocation would have upon his relationship with the children, as well as the relationship the children have with his partner and the children’s half-brother, J, who is currently aged 2. The father has also expressed concern as to whether the children will have the same opportunities available to them in New Zealand as they currently have in Australia.
I accept that the mother has valid reasons for wishing to relocate to New Zealand and, in circumstances where she has been the primary carer of the children since their birth, it is appropriate that she be permitted to relocate with the children to New Zealand.
In arriving at that conclusion, I am satisfied that the mother has thoroughly considered the arrangements she proposes for herself and the children to live in New Zealand and I accept that she will facilitate the children having an ongoing meaningful relationship with the father, his partner and J.
Background
The father was born in New Zealand in 1968 and is currently aged 48. The mother was born in New Zealand in 1973 and is currently aged 43. The father works in management whilst the mother is a health professional.
In 1994 the parties commenced cohabitation.
In 2000 the parties were married in G Town, New Zealand.
In 2001 the parties’ first child, B, was born. She is currently aged 15 and in Year 9.
In 2003 the parties’ second child, C, was born. She is currently aged 13 and in Year 8.
In January 2004 the parties moved from New Zealand to Australia with B and C. This move occurred in order for the father to take up an executive position in Sydney with his then employer.
Between 2004 and 2007, whilst the parties lived in Sydney, the mother did not work and was the primary carer for the children.
In 2004 the parties’ third child, D, was born. He is currently aged 12 and in Year 6.
In 2006 the parties’ purchased a property at K Street, Suburb L (“the Suburb L property”).
In 2006 the parties’ fourth child, E, was born. She is currently aged 10 and in Year 5.
In 2007 the parties relocated to South America in order to enable the father to take up a position.
In March 2009 the parties’ separated with the father moving out of the family home in South America soon after.
In the period shortly prior to separation, the mother visited New Zealand and subsequently returned to South America with a view to repairing the parties’ relationship. In a letter to a woman whom the father was in a relationship with at that time,[1] the father wrote:
At this time [the mother] was in New Zealand and after spending time with the family and friends there she wanted to come back to [South America] and give it another go with me. I never wanted to and so when she returned I moved out.
[1] Mother’s affidavit at Annexure “RW1”.
Between March and May 2009 the father visited the children two to three times per week in the evening and also spent some days with them on weekends. During this period the parties also attended marriage counselling.
In April or May 2009 the father was made redundant. It is not clear whether the redundancy was voluntary or mandatory. After leaving the father secured a role in Brisbane.
In the letter which I have referred to above, the father also stated:
The work in Brisbane didn’t insist that I start work straight away (they said 2 – 3 months because they understood that relocating takes time) but I want to go immediately and take you straight away and end the lies and deceit – it was my way to escape.
It was common ground between the parties that the father did not want the mother and the children to live in Brisbane once he started working there.
In May or June 2009 the father moved to Brisbane whilst the mother and children remained in South America until July 2009 when the school term concluded.
In July 2009 the mother and children flew from South America to Sydney via New Zealand where they stayed with family for a week but arrived in Sydney in time for the children to commence school in term 3.
In October 2009, after initially staying with family friends, the mother and children moved into the Suburb L property.
The mother asserted that, in the period the father lived in Brisbane, his visits to Sydney were “sporadic sometimes every second weekend, then every 3 or 4 weeks and sometimes once every 6 - 7weeks”.[2] The father asserted that his visits were more frequent.
[2] Ibid at paragraph 44.
During the course of 2010 the father endeavoured to develop a business operating out of South America. In an email to the relevant Consulate dated 9 November 2010,[3] the father stated:
I would like to relocate to [South America] from Australia (I am a New Zealand citizen; passport number…) to manage and run my business from in-country.
[3] Ibid at Annexure “RW 2”.
In June 2011 the father obtained new employment and relocated from Brisbane to Sydney. The father moved to Suburb M.
Between June 2011 and August 2013 the children spent time with the father approximately every second weekend usually from 6.00 pm Friday until 6.00 pm Sunday.
In 2012 the father moved to Suburb N and commenced new employment.
In May 2012 the parties listed the Suburb L property for sale and the mother moved with the children to rental accommodation in Suburb O in June 2012.
In June 2012 the father commenced a relationship with his current partner, Ms P.
In November 2012 the father says the children were first introduced to Ms P.
In late 2012 the father ceased paying rent on the rental property where the mother was living with the children. The father asserted this occurred following the sale of the Suburb L property from which the proceeds of sale became held in a controlled monies account. The father also asserted that, as a result, there was accrued interest available to the mother to pay her rent. The mother denies that she was aware that the father intended to cease meeting her rent following the sale of the Suburb L property and as a result, she incurred arrears of $2250 and was served with an eviction notice.
In March 2013 the mother advised the father that she wished to move back to New Zealand and gave him a letter dated 4 March 2013 setting out her reasons for seeking to do so.[4]
[4] Ibid at Annexure “RW 4”.
In April 2013 the father says that he and Ms P commenced living together.
From the first weekend in August 2013 the children spent time with the father and Ms P every second weekend from 6.00 pm on Friday until Tuesday morning. The mother says that the arrangement was for the children to be collected from after school care on Fridays. The children would also spend time in after school care on Monday and Tuesday morning.
On 23 September 2013 the mother commenced these proceedings in the Federal Circuit Court seeking parenting and property orders.
On 18 November 2013 the property proceedings were resolved with final orders made by consent.
In November 2013, the father moved into his current property at Suburb Q. The arrangements for the children to spend time with the father have continued although the two older children now catch a bus to the father’s home after school.
On 3 February 2014 the parenting proceedings were transferred from the Federal Circuit Court to the Family Court.
In 2014 the father and Ms P’s first child, J, was born.
Evidence
The mother relied upon the following material:
a)Affidavit of the mother filed 2 November 2015;
b)Affidavit of Mr R (the maternal grandfather) filed 3 December 2015;
c)Affidavit of Dr S (the mother’s treating doctor) filed 3 December 2015; and
d)Affidavit of Ms T (the mother’s therapist) filed 3 December 2015.
The father relied upon the following material:
a)Affidavit of the father filed 2 November 2015; and
b)Affidavit of Ms P (the father’s partner) filed 9 December 2015.
The Court also had the benefit of a Family Report prepared by Family Consultant, Ms U, dated 26 February 2016 as well as an earlier Child Dispute Conference Memorandum prepared by Ms U dated 20 January 2014.
Ms U, the parties and the maternal grandfather gave oral evidence and were cross-examined at the final hearing. No other witnesses were required for cross-examination.
The Law
As noted, the mother is seeking to relocate with the children to New Zealand. Parenting proceedings involving relocation are to be determined in the same manner in which all parenting proceedings are determined. That is, by following the legislative framework set out in the Family Law Act 1975 (Cth) (“the Act”) with a view to determining what orders, if any, are in the best interests of the children.
Recently, in Zahawi & Rayne,[5] the Full Court noted:
47. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U:
...The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
48. “Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
[5] [2016] FamCAFC 90. Reference to U v U (2002) 211 CLR 238 at [92].
In short, there are no special tests that apply to such cases and each case must therefore be determined on its own facts. While the Full Court noted that, as a result of the consequences of a proposed relocation, the burdens rendered on the parties may be more acute, it is not the case that the party desiring to relocate needs to establish “compelling reasons” for the relocation. [6]
[6] AMS v AIF (1999) 199 CLR 160 at 191.
The Act
Parenting proceedings are to be determined in accordance with Part VII of the Act. The legislative provisions of the Act are to be applied in the context of the objects and principles set out in s 60B. For the purpose of these proceedings, those objects relevantly include:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles are set out in s 60B(2) and relevantly include:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Other sections of the Act which are of relevance include:
·Section 60CA, which provides that, in deciding whether to make a parenting order, the Court must regard the best interests of the child as the paramount consideration.
·Section 64B(2), which provides that a parenting order may include orders about the person or persons with whom a child is to live, the time a child is to spend with another person, the allocation of parental responsibility for a child and the communication a child is to have with another person or persons.
·Section 61DA(1), which provides that the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for him or her. The presumption however may be rebutted if:
othere are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of a child), has engaged in abuse (sub-s (2)(a)) or family violence (sub-s (2)(b)); or
oevidence is presented which satisfies the Court that it would not be in the best interests of the child for the presumption to be applied (sub-s (3)).
·Section 60CC(2), which sets out the primary considerations in determining what is in the child’s best interests. Those primary considerations are:
o“the benefit to the child of having a meaningful relationship with both of the child’s parents” (sub-s (2)(a)); and
o“the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” (sub-s (2)(b)).
·Section 60CC(2A) directs the Court to give greater weight to the second consideration set out in s 60CC(2).
·Section 60CC(3), which sets out additional considerations in determining what is in the child’s best interests. Those considerations include:
oSub-section (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.
oSub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child.
oSub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child.
oSub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
oSub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
oSub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
oSub-section (3)(f) – the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs.
oSub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant.
oSub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
oSub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents;
oSub-section (3)(j) – any family violence involving a child or a member of the child’s family;
oSub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters;
oSub-section (3)(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; and
oSub-section (3)(m) – any other facts or circumstances the Court considers relevant.
·Section 65DAA(1), which requires the Court to consider whether the child spending “equal time” with each of the parents is in their best interests and is reasonably practicable.
·Section 65DAA(2), which provides that, if the Court does not make an order for the child to spend “equal time” with each of the parents, the Court is required to consider whether the child spending “substantial and significant time” with each of the parents is in the child’s best interests and is reasonably practicable.
·Section 65DAA(3), which defines “substantial and significant time” as including days that fall on weekends and holidays, days that do not fall on weekends or holidays, time that allows the parent to be involved in the child’s daily routine and occasions special to the child and/or the parent. It should be noted that “equal time” is not defined.
·Section 65DAA(5), which provides that the determination of reasonable practicality is “not left at large but is circumscribed by a number of statutory factors, including geographic distance, capacity to implement the relevant arrangements; the capacity of the parents to communicate with each other in the future; the impact on the children and any other matters which the court considers relevant”.[7]
[7] Cowley & Mendoza (2010) 43 Fam LR 436 at 441[24].
By their very nature, cases where there is a proposed relocation of a child’s residence away from one parent raise challenges in respect to the time the child is then able to spend with that non-resident parent. Accordingly, should the presumption of equal shared parental responsibility be applied, the concept of reasonable practicability as circumscribed in s 65DAA(5) then becomes a significant consideration.
Case law
In MRR v GR (2010) 240 CLR 461, the High Court considered the interrelationship between ss 61DA and 65DAA in the context of the Court’s obligation to regard the child’s best interests as the paramount consideration pursuant to s 60CA of the Act.
At 465[9], the High Court held that:
Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents”.
At 466[13], the High Court then held that:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
Further, it was held at 467[15]:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
In summary, in addition to considering whether it is in the best interests of the child to spend equal time with each parent, the High Court reiterated that a finding of reasonable practicability is a precondition to making a parenting order for a child to spend equal time with each parent. This means that before such an order can be made, there must be a finding that such an arrangement is reasonably practicable. If the Court cannot make such finding, then the Court must repeat the exercise in relation to the child spending substantial and significant time with a parent.
Legislative pathway
In Starr & Duggan [2009] FamCAFC 115 at [38], the Full Court emphasised that the Act does not require consideration of the relevant provisions of Part VII in any particular order.[8] Rather, the Full Court suggested that:
…“a logical approach” is to:
·first make findings concerning the relevant s 60CC factors;
·then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
·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.[9]
[8] Reference was made to Taylor & Barker (2007) FLC 93-345 and Sealey & Archer [2008] FamCAFC 142.
[9] This approach was endorsed by the Full Court in Sayer & Radcliffe and Anor (2012) 48 Fam LR 298 at 314[53].
In Sayer & Radcliffe and Anor,[10] the Full Court said:
48. A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider thecompeting proposalsof both parents (see Palmer (No 2) at [76]; Morgan at [80] – [81]. It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
[10] (2012) 48 Fam LR 298 at 311.
However, the Court is not bound by those proposals in determining what is in the children’s best interests.[11]
[11] U v U (2002) 211 CLR 238 at 260[80].
In Starr & Duggan (supra), the Full Court suggested that, in considering the parties’ competing proposals:
39. 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.
Finally, in terms of approach, in Malcolm & Monroe and Anor (2011) FLC 93-460, the Full Court said at 85,515:
83. We emphasise that it is not the law that a parent wishing to relocate must establish compelling reasons for this to be permissible: see AMS v AIF (1999) 199 CLR 160, 179; and U v U (2002) 211 CLR 238, 259-260. Equally, there is no onus on a parent who may be “left behind” to demonstrate reasons as to why the other parent should not relocate. But it is properly part of a Court’s inquiry to consider what each parent proposes and to determine the context of those plans and reasons for them in determining what is in the best interests of a child.
The Parties’ Competing Proposals
In a Minute contained within a Case Outline document filed on 3 August 2016, the mother sought the following orders:
1. That the parties have equal shared parental responsibility for the children.
2. That the children live with the Mother.
3. That the children be permitted to depart and live outside of the Commonwealth of Australia with the Mother in New Zealand.
4. That [B] and [C] attend [F School] in [G Town] and [D] and [E] attend [H School], [I Town] in 2016.
5. That after the children’s relocation with the Mother, the children shall spend time with the Father as follows:
5.1 For a period of up to 9 nights in each mid-term school holiday period as nominated by the Father and as agreed between the parties and failing agreement, commencing the first Saturday of all mid-term school holiday periods and concluding 9 nights later subject to Order 5.3; and
5.2 For a period of up to 4 weeks during the Christmas school holiday period being the first 4 weeks in each even numbered year and the last 4 weeks in each odd numbered year and as such each Christmas shall be alternated between the parties.
5.3 Upon at least 2 months’ notice to the Father, the Mother shall be at liberty to nominate one mid-term school holiday period each year where the children will remain in her care for the entire period
6. That after the children’s relocation with the Mother, the children shall spend the following additional time with the Father, if they are in the care of the Mother at that time:
6.1 Upon the Father giving the Mother 7 days’ written notice, on any weekend when the Father is at the place at which the children live with the Mother;
6.2 On the weekend immediately following [C’s] birthday (…) each year from the conclusion of school on Friday until the commencement of school on Monday;
6.3 On the Easter long weekend each year from 5pm Thursday until 5pm Easter Monday (should such long weekend not fall within the mid-term school holiday period);
6.4 On the weekend immediately following [E’s] birthday (…) each year from the conclusion of school on Friday until the commencement of school on Monday;
6.5 On the New Zealand June long weekend each year from the conclusion of school on Friday until 5pm on Monday;
6.6 On the New Zealand Father’s Day weekend each year from the conclusion of school on Friday until 5pm on Father’s Day;
6.7 On the weekend immediately following [B’s] birthday (…) and the Father’s birthday (…) each year from the conclusion of school on Friday until 5pm on Monday;
6.8 On the weekend immediately following [D’s] birthday (…) each year from the conclusion of school on Friday until 5pm on Monday;
6.9 On the New Zealand October long weekend each year from the conclusion of school on Friday until 5pm on Monday; or
6.10 Unless otherwise agreed between the parties in writing.
7. The Father shall have the option of spending time with the children as referred to in Order 5 in New Zealand or such other destination that he nominates.
8. The Father shall spend time with the children as referred to in Order 6 in New Zealand or in a country local to New Zealand, including Australia.
9. That for the purposes of changeovers pursuant to Order 5 the parties shall meet at the local international airport in New Zealand or as otherwise agreed between the parties.
10. That for the purposes of changeovers pursuant to Order 6 the Father shall collect the children from school or the Mother’s place of residence and shall return the children to the Mother’s place of residence.
11. In the event that the Father wishes to spend time with the children outside of New Zealand, the following conditions shall apply:
11.1 The Father shall provide the Mother with a copy of his and the children’s itinerary and e-ticket28 days in advance of his time with the children.
11.2 The Mother shall pay to the Father the sum of $1,000 per year for the children’s flights and thereafter the Father shall pay for his and the children’s flights.
11.3 If either parent is unable to personally collect the children at a changeover, the parties shall agree on another suitable person who may travel with the children on the flights.
11.4 The children’s passports and luggage shall be provided to the other parent at the airport when the changeover takes place, together with any items the children will need when in the care of the other parent, for example medication, clothing or school work.
11.5 If any of the children’s passports are lost, stolen or about to expire, both parties shall sign the relevant forms and equally share the costs for a new passport to be issued.
12. The parties shall activate Skype and permit the children to speak to the other parent on a webcam as often as the children wish, and at least once a week as agreed between the parties and on all special occasions being each of the children’s birthdays, Father’s Day, Mother’s Day, Easter, Christmas and each parties’ birthday.
13. The Mother shall ensure that the parties are listed as enrolling parents and emergency contacts at the children’s school/s.
14. The Mother shall authorise the children’s school/s and other care providers to provide all information and documents about the children to the Father, including but not limited to the children’s progress reports, school newsletters, photographs and details of any school activities.
15. That the parties be at liberty to discuss matters relating to the children with the children’s school, teachers, principal and other care providers.
16. That either party be at liberty to attend any significant school events and any significant extra-curricular activities or sporting events that the children may be involved in.
17. That each party shall keep the other informed of their current residential address, mobile and landline numbers and email address and advise the other party of any change thereto with 24 hours of such change.
18. That neither parent shall discuss these proceedings with the children or within the hearing of the children.
19. Such other Order as this Honourable Court deems appropriate.
Notations
IT IS NOTED that the Mother is prepared to deliver the children to [City V] if requested by the Husband or at any other place as agreed between the parties.
In a Minute annexed to a Case Outline document filed on 4 August 2016, the father sought the following orders:
1. That the parties have equal shared parental responsibility for the children [B] born … 2001, [C] born … 2003, [D] born … 2004 and [E] born … 2006 (“the children”).
2. The children live with each party in each fortnight as follows:
2.1 with the Mother from after school on Friday in the first week until before school on Friday in the second week, such time to be suspended during school holidays;
2.2 with the Father from after school Friday in the second week until before school on Friday in the following week, such time to be suspended during school holidays.
2.3 For half of each school holiday period as agreed between the parties, but failing agreement with the Father in the first half of the school holidays and with the Mother in the second half of the school holidays.
2.4 At other times as agreed between the parties.
3. That notwithstanding Order 2 hereof, the children live with each of the parties as follows:
3.1 for the period Christmas Eve to Boxing Day:
3.1.1 In 2016 and each alternate year thereafter, with the father from 10.00am on 24 December until 3.00pm on 25 December;
3.1.2 In 2017, with the father from 3.00pm on 25 December until 5.00pm on 26 December;
3.1.3 In 2016 with the mother from 3.00pm on 25 December until to 5.00pm Boxing Day; and
3.1.4 In 2017 with the mother from 10.00am on 24 December until 3.00pm on 25 December.
3.2 With the mother on the Mother’s Day from 9.00am until 6.00pm.
3.3 With the father on Father’s Day from 9.00am until 6.00pm.
4. That the parties will inform each other as soon as reasonably practicable of any medical emergency involving any of the children.
5. That the parties keep each other informed of their residential addresses and telephone numbers and notify each other of any change within 7 days of that change.
6. That both parties may attend at any sporting and extra-curricular events that the children may be involved in.
7. That both parties may attend at the children’s schools for any events to which parents are able to attend, including parent and teacher interviews.
8. That each party shall authorise the children’s schools to provide to the other all school reports and notices relating to the children.
9. That neither party will denigrate the other party or a member of that party’s family or household in the children’s presence.
On the first day of the final hearing, the father provided to the Court a proposed Minute of Order in the event that the mother was to relocate to New Zealand without the children (Exhibit 1). It read in full:
1. That the parties have equal shared parental responsibility for the children [B] born … 2001, [C] born … 2003, [D] born … 2004 and [E] born … 2006 (“the children”).
2. That the children live with the Father.
3. That the children spend with the Mother as follows:
3.1 For two of the mid-term school holidays in each year
3.2 For four weeks of the Christmas school holiday period being the first half of the Christmas holidays in years ending in an even number and in the second half of the school holidays in years ending in an odd number.
4. That the Mother shall spend additional time with the children as follows:
4.1 On any weekend when the Mother is in Australia;
4.2 On the weekend immediately following [C’s] birthday (…) each year from the conclusion of school on Friday until the commencement of school on Monday;
4.3 On the Easter long weekend each year from 5pm Thursday until 5pm Easter Monday (should such long weekend not fall within the mid-term school holiday period)
4.4 On the weekend immediately following [E’s] birthday (…) each year from the conclusion of school on Friday until the commencement of school on Monday;
4.5 On the Australian June long weekend each year from the conclusion of school on Friday until 5pm Monday;
4.6 On the Australian Mother’s Day weekend each year from the conclusion of school on Friday until the commencement of school on Monday;
4.7 On the weekend immediately following [B’s] birthday (…) each year from the conclusion of school on Friday until the commencement of school on Monday;
4.8 On the Australian October long weekend each year from the conclusion of school on Friday until 5pm Monday;
5. That for the purpose of spending time with the children pursuant to Orders 3 and 4, the following shall apply:
5.1 The Mother shall notify the Father by 28 February each year which of the holiday periods she intends to spend with the children pursuant to Order 3.1;
5.2 The Mother shall notify the Father of exact dates and times she intends to spend with the children pursuant to Orders 3.1 and 3.2, 28 days prior to the commencement of that time
5.3 The Mother shall notify the Father of her intention to spend time with the children pursuant to Order 4 no later than 28 days prior to the scheduled time.
6. In the event that the Mother wishes to spend time with the children outside of Australia, the following shall apply:
6.1 the Mother shall provide the Father with a copy of the children’s itinerary and plane tickets 14 days in advance of her time with the children
6.2 the Father shall pay half the cost of the children’s international flights for any time they spend with the Mother which exceeds 7 days
6.3 the Father shall ensure that the children have their passports, luggage, medication and clothing accompanying the children and the Mother shall ensure those items accompany the children on their return.
7. That for the purposes of changeover, the Father or his nominee shall deliver the children either to the International Airport in Sydney, or to an address in Sydney as nominated by the Mother.
8. That the Father ensures that the children contact the Mother by telephone, Skype (or similar video conferencing) no less than twice a week while they are in his care and at all other reasonable times as requested by the children.
9. That the Father ensures that the parties are listed as enrolling parents and emergency contacts at the children’s schools.
10. That the parties keep each other informed of their residential addresses and telephone numbers and notify each other of any change within 7 days of that change.
11. That the parties inform each [sic] of any medical emergency that arises in respect of any of the children as soon as reasonably practicable.
12. That the Father shall authorise the children’s schools to provide to the Father all school reports and notices relating to the children, including but not limited to the children’s progress reports, school newsletters, photographs and details of any school activity.
13. That neither party will denigrate the other party or a member of that party’s family or household in the children’s presence.
Reasons advanced for the parties’ competing proposals
The reasons advanced for the mother’s proposal to relocate to New Zealand with the children can be summarised as follows:
a)The mother has no family support system in Sydney or in Australia generally and she has found it increasingly difficult to raise four children who are aged 15 years and under. This difficulty includes taking the children to and from sporting and extra-curricular activities during the week and on weekends. This can be particularly difficult if the children’s various activities clash. The mother also expressed concern that, as result of having to spread her time between the four children, she has been unable to spend sufficient time assisting the two older children with their studies.
b)The mother has also had difficulties in arranging for someone to mind the children if she has a function to attend or wishes to attend a meeting. In that respect the mother asserted that she is on the children’s school P & F Committee and also likes to attend school learning workshops. The problem of finding minders has been exacerbated as result of a neighbour, who had been assisting the mother, moving to Queensland.
c)While the mother has a number of friends who have helped her with taking the children to their various activities, the mother believes that that assistance is provided on a reciprocal basis so ultimately she feels obliged to repay the favour. This would not be the case, the mother believes, in New Zealand where she would be able to call on the unconditional support of family and long-time friends.
d)The mother has been distressed by the circumstances surrounding the marriage breakdown and has become depressed and anxious as result of the pressures of living as a single mother in Sydney away from her family and long-time friends in New Zealand. The mother believes that, in addition to physical support, she would also receive greater emotional support if she were able to relocate to New Zealand with the children.
e)In New Zealand the children would not be required to spend as much time travelling to and from school. The cost of the children’s education would also be cheaper and that would also reduce the financial burden upon the mother.
f)The cost of living in Sydney, including rent in particular, is such that the mother is unable to afford adequate accommodation for herself and the children. The mother believes that she would be able to afford to purchase a four or five bedroom house in New Zealand from the proceeds of the parties’ property settlement. Pending that, the mother believes that she would be able to reside with her parents or alternatively, reside in one of her parents’ three rental properties.
g)As result of the amount of rent that the mother is paying, together with expenses being incurred by her for her and the children, the mother has been forced to draw upon capital to meet weekly expenses. This has resulted in her drawing upon $100 000 over the last few years.
h)The mother’s professional qualifications are recognised in New Zealand and she believes that she would have better employment opportunities there.
i)Although the mother has been entitled to claim family tax benefits in Australia, in circumstances where she is not an Australian citizen, she does not have access to the same social security safety net as she does in New Zealand for herself and the children. This includes the older children not being able to utilise the ‘HECS-HELP’ scheme to fund any future tertiary education they may wish to pursue.
j)Both of the parties’ families reside in New Zealand. The mother believes that the children would benefit from having a relationship with both their maternal and paternal extended families.
k)The fact that the father’s family resides in New Zealand, the mother believes, would also make it easier for the father to visit and spend time with the children in New Zealand.
The reasons advanced by the father for opposing the mother’s proposed relocation to New Zealand with the children can be summarised as follows:
a)The father and Ms P have well-paid executive positions in Australia. The father’s employment is in an industry where there are relatively few opportunities available in New Zealand. Accordingly, it was submitted that relocating to New Zealand is not an option for the father and Ms P.
b)The father and Ms P receive a substantial amount of assistance in caring for J from Ms P’s parents. The father and Ms P would lose that assistance if they were to move to New Zealand.
c)The standard of education that the children would receive in New Zealand is not as high as it is in Australia.
d)The children would not have as many opportunities, for their future, living in New Zealand as they would if they continued to live in Sydney.
e)The property settlement that the mother obtained in the family law proceedings, and the financial assistance that the father has been providing to her, should enable to the mother to financially manage living in Sydney.
f)The mother’s emotional health may not improve if she is to relocate to New Zealand and finds that the support systems that she anticipates are not available to her. This, the father asserts, would present a risk to the children particularly in circumstances where they would be separated from him and Ms P.
g)The mother has underestimated the amount of time and support that the father and Ms P provide to her and the children. That support would not be available if the mother were to move to New Zealand with the children.
h)The father is concerned that if the children move to New Zealand, it will have a significant impact upon their relationship with him. He believes that his personality is such that he can assist in providing guidance to his children when they are stressed about an issue or a relationship.
i)The father also believes that he is an appropriate role model for the children, including an appropriate male role model for D.
j)The father asserts that his alternative proposal for the children to spend equal time with him and Ms P would free up more time for the mother to commit to study and/or increase her hours of employment. This would subsequently have the effect of increasing her income-earning capacity.
k)Further, the fact that the children would be spending less time with the mother would also reduce her weekly expenses making it easier for her to cope financially.
Presumption of Equal Shared Parental Responsibility
The parties are in agreement that it is appropriate for there to be an order made by the Court for equal shared parental responsibility. There are no allegations of family violence or abuse made by either party and I am therefore satisfied that the presumption should apply.
Accordingly, I intend to apply the approach suggested by the Full Court in Starr & Duggan by:
1.Considering the relevant s 60CC factors;
2.Based on findings made in relation to the s 60CC factors, then considering whether equal time or substantial and significant time is in the children’s best interests; and
3.Considering whether such arrangements are reasonably practicable by addressing those matters referred to in s 65DAA(5).
Section 60CC Factors
Primary considerations – s 60CC(2)
In determining what is in a child’s best interests, the Court must consider the primary considerations set out in s 60CC(2) and the additional considerations set out in s 60CC(3). The primary considerations have “particular importance” but are nonetheless to be considered “in conjunction” with the additional considerations.[12]
[12] See Cowley & Mendoza (2010) 43 Fam LR 436 at 440[18].
As noted, the primary considerations are:
·“the benefit to the child of having a meaningful relationship with both of the child’s parents” (sub-s 60CC(2)(a)); and
·“the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” (sub-s 60CC(2)(b)).
Meaningful relationship
In Sigley & Evor (2011) 44 Fam LR 439, the Full Court provided the following guidance in considering the concept of a “meaningful relationship”. By way of summary, the essential principles are as follows:
1.The concept of a meaningful relationship is one which is “important, significant and valuable to the child”.[13]
2.In considering s 60CC(2)(a), the Court “should consider and weigh the evidence as at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”. This was referred to as “the prospective approach”.[14]
3.The Full Court, however, noted that s 60CC(3)(b) requires the Court to “explore existing relationships between a child and his or her parents and other persons” and thus, depending upon the factual circumstances, an “examination of [the] evidence as to the nature of the child’s relationships at the date of hearing”. This was referred to as “the present relationship approach”.[15]
4.The Act “aspires to promote… a meaningful relationship, not an optimal relationship”.[16]
5.The term ‘meaningful relationship’ is “a legal construct, not a psychological one. It is for the court, not an expert, to determine what constitutes a meaningful relationship”.[17]
[13] Citing Mazorski & Albright (2007) 37 Fam LR 518 at [26].
[14] Citing McCall & Clark (2009) FLC 93-405 at 83,476.
[15] Ibid.
[16] Godfrey & Sanders [2007] FamCA 102 at [36] referred to by the Full Court in McCall & Clark (2009) FLC 93-405 at 83,475-6.
[17] Citing Champness & Hanson (2009) FLC 93-407 at 83,513.
There is no doubt that if the children move to New Zealand with the mother, it will result in them spending less time with the father. This will undoubtedly have an impact on their relationship with him. The crucial question in respect to this primary consideration was succinctly described in paragraph 61 of the Family Report in the following terms:
[T]he Court, with all the evidence before it, will need to weigh up whether the loss of the children’s current relationship with their father and his family is more or less critical than [the mother]’s potential struggle away from her family support and the economic realities for her of living in Sydney.
On the other hand, the mother’s evidence is that she intends to relocate to New Zealand even if the Court does not permit the children to relocate with her. If that occurred, it would consequently impact upon the children’s relationship with the mother who has been their primary carer since birth.
The nature of the father’s contact with the children if they move to New Zealand was described in the Family Report[18] in the following terms:
With relocation, the relationships [between the children and the father] would become intermittent and sustained via technology and during face-to-face contact in holidays. The children would not experience their father’s presence is an immediate source of support or affection.
[18] at paragraph 54.
However, in that respect, the Family Consultant observed:[19]
The fact that the children are now at adolescent and prepubescent stages of development is positive and their relationship with [the father] is established to an extent that they would be able to maintain their bond with him during periods of absence.
[19] at paragraph 53.
I accept that the children relocating to New Zealand with the mother would not be optimal in terms of their relationship with the father. However, I note that the children have managed to communicate with the father utilising electronic technology during extended periods when he has been away. The orders proposed by the mother provide for that to continue to occur in the event that she is permitted to relocate with the children to New Zealand.
I also note that the children are at an age where they have established a close bond with their father and while a long distance relationship would be less than optimal, I am satisfied that the children would still be able to maintain a meaningful relationship with him.
Risk of harm
As noted, s 60CC(2)(b) requires the Court to consider “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.
There is no suggestion that the children are at risk of physical harm in the care of either of their parents. The mother argued, however, that as a result of her suffering depression and anxiety she will move to New Zealand even if the Court declines to make the orders that she seeks. In circumstances where the mother has been the primary carer of the four children, it is submitted that her absence would present a risk of harm to the children.
During the course of her oral evidence, the Family Consultant expressed the opinion that it would be emotionally traumatic for the children if the mother moved to New Zealand without them. I accept that would be case.
On the other hand, it was submitted by the father that if the mother relocates to New Zealand and finds that her anticipated support system does not exist, or does not exist to the extent that she believes it will, then she will remain emotionally vulnerable. This, it was submitted, has the potential to impact upon the children particularly where neither the father, nor Ms P, would be available to the children in New Zealand to provide support.
The children are very fortunate in that they are loved and cared for in both families. Inevitably, they will face challenges on any of the potential outcomes of these proceedings. The evidence does not, however, justify a finding that the children would be at risk of “physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” in either of the parents’ competing proposals.
Additional considerations – s 60CC(3)
Section 60CC(3)(a) which requires the Court to consider any views expressed by the child and any other 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.
Section 60CD(2) sets out how the Court may obtain the views of a child or children who are potentially affected by a proposed order and relevantly provides:
(2) The court may inform itself of views expressed by a child:
(a) by having regard to anything contained in a report given to the court under subsection 62G(2); or
(b) by making an order under section 68L for the child’s interests in the proceedings to be independently represented by a lawyer; or
(c) subject to the applicable Rules of Court, by such other means as the court thinks appropriate.
Note 1: Paragraph (a)—subsection 62G(3A) generally requires the person giving the report to ascertain the child’s views and include those views in the report.
Note 2: Paragraph (b)—paragraph 68LA(5)(b) requires the independent children’s lawyer for the child to ensure that the child’s views are fully put before the court.
In these proceedings the Family Consultant, Ms U, prepared a report to the Court pursuant to s 62G of the Act dated 26 February 2016. In the Family Report she set out the views expressed by the children which can be summarised as follows:
a.B, who was aged 14 at the time of the interviews and is currently in Year 9, expressed uncertainty as to whether she wishes to live in I Town, New Zealand. She noted some positive aspects, including the possibility of the family getting a pet dog and a horse. She also stated that she “loves” staying with the maternal grandparents when she is in New Zealand and she would like to see more of them.
b.On the other hand, B stated that she would miss her father, J and Ms P, as well as her school and friends if she were to move to New Zealand.
c.After weighing up the positives and negatives, B expressed the view that “maybe it would be best if we all stay here”.
d.C is currently aged 13 and is in Year 8. C expressed concern about missing her father, friends, Ms P and J if she moved to New Zealand. C said, however, that she loves the rural lifestyle in New Zealand and she feels like a “Kiwi” and “at home” in New Zealand.
e.The Family Consultant reported that C said that she has “mixed feelings about whether to stay in Sydney or to go to New Zealand”. While acknowledging that it would be “hard” going to New Zealand, C expressed the view that she would cope.
f.D was aged 11 at the time of the interviews and is currently in Year 6. The Family Consultant reported that D said that he “would miss his father and [J] but that he wants to live in New Zealand because he has many relatives including his grandparents and uncle who live there”.
g.E was aged 9 at the time of the interviews and is currently in Year 5. The Family Consultant reported that E stated that she “does not want to be apart from either of [her parents] but that, if she had to decide, she would prefer to live in New Zealand”.
The father expressed some concern as to the extent to which the mother had discussed the proposed relocation with the children, and also the fact that the mother may have offered the children inducements in terms of suggesting that they could have a dog and a horse. On balance, however, the Family Consultant believed that the children’s views were consistent with their ages, appropriately considered and genuine.
I note that none of the children expressed views that could be regarded as unequivocal and B, in particular, expressed a preference for remaining in Australia. That fact, together with the Family Consultant’s assessment, satisfies me that the children’s views are genuinely held and were sincerely expressed to the Family Consultant.
All of the children are at an age where their views should be taken into account in deciding what orders are in their best interests in these proceedings.
Section 60CC(3)(b) which requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child.
In the event of the children moving to New Zealand, the children would clearly spend less time with their father, Ms P and their half-brother, J.
On the other hand, the children would be in a position where they could spend a greater amount of time with their maternal and paternal grandparents and extended families who reside in New Zealand.
The father expressed the view that while the children have spent time with both the maternal and paternal grandparents when they have been on holidays in New Zealand, and vice versa in Australia, those relationships will not be able to substitute the relationships the children have with himself, Ms P and J. I accept that to be the case.
Accordingly, similar considerations to those which I have discussed above in respect to the children maintaining a meaningful relationship with the father, are also relevant to my consideration of the ability of the children to maintain an ongoing meaningful relationship with Ms P and J, both of whom are clearly significant people in the children’s lives.
Again, while communication via electronic technology is not a substitute for face-to-face contact, such communication will assist in the children being able to maintain their relationship with Ms P and J.
The fact that the children have both of their maternal and paternal grandparents and extended families in New Zealand is nonetheless significant, and will assist the children to adjust to the orders that I intend to make permitting the mother to relocate with them to New Zealand.
Section 60CC(3)(c) which requires the Court to consider the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child.
It was not in dispute that the mother has been the children’s primary carer other than for a period of three months after the mother returned to work after the birth of B where the father remained at home to look after her.
I am satisfied that the mother has been the parent who has most engaged with the day-to-day lives of the children.
That is not to say however that, particularly in the period subsequent to 2013, the father has not been engaged in the day-to-day lives of the children. He has clearly participated in decision-making concerning major long-term issues in relation to the children and, consistent with his work commitments, he has spent time with the children. The father has also regularly communicated with the children including during those periods where he may be away as result of work.
I note that there have been instances though where the father has not taken every reasonable opportunity available to him to spend time with the children. In that respect, I note the father’s letter (referred to at [18] above) which was sent around the time that the parties separated, in which the father confirmed that when the mother moved back from New Zealand to South America to “give it another go with me”, the father “moved out”. In that same letter the father stated that he was not required to travel to Brisbane to take up new employment for two to three months but that he wanted to go immediately to pursue his relationship. The father described in that letter that “it was my way to escape”.
Further, it was common ground between the parties that the mother had expressed the desire to move to Brisbane with the children when the father relocated there for new employment. It was accepted that the father indicated to the mother that he did not want her to relocate with the children to Brisbane, although each party gave different reasons as to the father’s likely motives in that respect.
Finally, during the course of 2010, the father attempted to establish a business in South America. In his trial affidavit the father deposed that it was his intention to operate that business from Australia. That intention is, however, inconsistent with the father’s email to the relevant South American Consulate dated 9 November 2010 wherein he stated: “I would like to relocate to [South America] from Australia… to manage and run my business from in-country.”[20]
[20] Mother’s affidavit at Annexure “RW2”.
To an extent, the significance of these events must be placed in context. As noted, in the period subsequent to 2013, the father has been far more engaged with the children. Nevertheless, I do not disregard that there have been times where the father has given greater priority to his personal and business interests, rather than taking the opportunity to spend time with the children.
The evidence suggests that the contrary applies in respect to the mother who, despite her emotional challenges, has been quite resilient in placing the interests of the children above her own. In that respect, I cannot ignore the fact that the mother has stated that that situation will change if the Court declines to make the orders that she seeks. In particular the mother states that it is her intention to move to New Zealand irrespective of whether the orders are made by the Court. That intention, however, needs to be seen in the context of events that have occurred in the past and the mother’s current emotional state which I will discuss below.
Section 60CC(3)(ca) which requires the Court to consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
The mother was not challenged on her evidence that in late 2012, the father ceased paying rent on the rental property where she was living with the children. This resulted in the accrual of arrears in the sum of $2250 and the mother being served with an eviction notice. The father’s evidence was that this occurred, with the full knowledge of the mother, in circumstances where the father had indicated that he was prepared for the mother to utilise interest accrued on the proceeds of the sale of the Suburb L property to pay her rent. While the event clearly caused the mother some distress, it is not one that I place significant weight upon in considering the time the children are to spend with each parent. The cessation of the father paying the rent for the property where the mother lives with the children is nonetheless a relevant consideration in my assessment of the reasonableness of the mother’s proposal to relocate to New Zealand. It being noted that one of those reasons is to obtain more affordable accommodation and, specifically, to purchase a property with no or minimal mortgage.
The mother also expressed some concern that the father has sought to have his ongoing child support obligation reduced. I am, however, satisfied that the father has complied with his obligations in that respect. I also acknowledge that the father pays for the children’s health insurance premiums. Accordingly, I do not place significant weight upon this issue in respect to the competing parenting applications.
I note that, by emails dated 8 December 2014, 29 January 2015 and 24 February 2015, the father requested that the mother meet half of the cost of the children’s school fees.[21] The mother objects to this proposal on the basis that the father and Ms P earn a substantially greater income than she does. It is unnecessary for me to determine whether the father’s request for the mother to meet half the children’s school fees is reasonable. The issue is nonetheless relevant to the extent that I accept that one of the reasons for the mother’s proposal to relocate to New Zealand is that the children’s school fees would be less and, therefore, there would be less of a financial burden upon her in the event that she is required to meet half of those fees.
[21] Ibid at Annexure “RW20”.
The father disputes the mother’s assertion that he has failed to pay for extra-curricular activities. Once again, it is unnecessary for me to resolve that issue. I accept, however, that both parents support the children participating in extra-curricular activities and it is reasonable to expect that both parents will incur expenses in respect to the children participating in those activities
The mother also expressed concern that the father has not reimbursed her for the whole or part of the cost of B’s braces, nor has he contributed to the cost of B and E’s glasses.
It is also unnecessary for me to resolve the parties’ competing factual assertions in respect to the reasons why the father has not shared the cost of B’s orthodontic treatment or for the purchase of the children’s glasses. The failure by the father to share in the cost of those items is not something that I place significant weight upon in respect to the amount of time that the children should spend with the father. However, insofar as the mother has in the past incurred those expenses, it is reasonable to assume that similar expenses will be incurred in the future and that she will be responsible for those expenses. That is a factor that I consider to be relevant in respect to the mother’s proposal to relocate to New Zealand with the children with a view to reducing the financial pressure that she is currently under.
Section 60CC(3)(d) which requires the Court to consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child, or other person (including any grandparent or other relative of the child) with whom the child has been living.
If the mother and children relocate to New Zealand, there will obviously be significant changes in the children’s lives. This will most significantly be in respect to their education as well as their time away from their father, Ms P and their half-brother J and their circles of friends.
C and B are currently in Years 8 and 9 respectively at W School, Suburb X. Together, their annual school fees are approximately $4000 per year.
E and D are in Years 5 and 6 respectively at Y School at Suburb O. Together, their annual school fees are approximately $4065 per year.
At those times when the children are living with her, the mother drops the two younger children to school each day and then collects them each afternoon. The two older children, however, have quite a long journey travelling to and from school. The journey involves multiple bus journeys and takes approximately one hour and fifteen minutes to one and a half hours, depending on traffic.
In New Zealand it is proposed that the older children attend F School in G Town, which is approximately thirty minutes from I Town where the mother proposes to live with the children. There is only one bus journey each way and the bus stop would be approximately four hundred metres from the maternal grandparents’ home. The annual school fees for F School are approximately $1041 (NZD) per child per annum.
It is proposed that the two younger children attend H School in I Town. H School is approximately four minutes’ drive from the maternal grandparents’ home. The total fees for the two children to attend H School would be approximately $1582 (NZD) per annum.
It is the mother’s intention to take the two younger children to and from school although the mother indicated that she would be able to arrange for her parents to assist if she was unavailable due to work commitments. This was confirmed in the maternal grandfather’s oral evidence.
The children would have access to a wide range of sporting and extra-curricular activities in New Zealand. The mother was not challenged on her evidence that many of these activities would be conducted through the school and there would be less travelling time involved to and from those events for the children.
Moving to New Zealand would clearly require the children to develop a new circle of friends. However, they are familiar with the I Town area and I accept that the children have developed a number of friendships during those times that they have visited New Zealand.[22]
[22] Mother’s affidavit at paragraph 92.
Further, the children have extended families, both on their maternal and paternal sides, who live within relatively close proximity to I Town. I have previously noted that the children have good relationships with both their maternal and paternal grandparents.
In paragraph 212 of her trial affidavit, the mother refers to a number of people who she identifies as being a relative or close friend or who have children who are friends of the parties’ children. The mother was extensively cross examined as to whether she can reasonably assume that her brother and his wife will reside in or about I Town. The mother was also cross-examined as to the extent to which she can rely upon other persons who she identifies as potentially being available to assist her with the children. The cross examination focused upon the nature of the mother’s relationship with those people as well as the distance that they live from I Town.
Counsel for the father argued that in the absence of evidence from those people, the Court should not assume that they will be available to assist and support the mother in accordance with her expectations.
However, the mother’s evidence explains the nature of her and the children’s relationship with the people she has identified and sets out a reasonable basis for her expectation that she will have those people available to her to provide support and assistance.
Moreover, even if the extent of that support and assistance does not come to fruition, I am satisfied that the mother will be able to obtain day-to-day support from the maternal grandparents and most specifically, the maternal grandfather. In that respect I note that the maternal grandfather swore an affidavit in these proceedings and was cross examined. I am satisfied that the maternal grandfather has flexible work commitments and that he is genuine in his intention to be available to assist the mother and his grandchildren should they relocate to New Zealand.
The assistance provided by, at least, the maternal grandfather will assist the children to adjust to the change associated with their relocation to New Zealand.
It is also necessary to consider the alternative scenario should the mother not be permitted to relocate with the children to New Zealand. As noted, the mother states that it is her intention to relocate to New Zealand even if the Court does not permit the children to relocate with her. If that occurred it would represent a significant change in circumstances for the children. The children would, in those circumstances, live with the father and Ms P. Subject to visiting the mother during school holiday periods and being visited by her, they would be separated from their primary carer.
As previously noted, the Family Consultant indicated that this would be a material change for the children and would be traumatic for them.
In that context I note that both the father and Ms P are employed in executive positions and both currently work approximately fifty hours per week. These relatively long hours are consistent with the fact that, in both cases, their salaries have a significant incentive component. As well intentioned as both the father and Ms P are, it is my view that it would be extremely challenging for them to be responsible for the primary care of the parties’ four children. This additional responsibility would be in circumstances where they have a relatively new relationship of over three years and also have the responsibility for caring for their two year old son, J.
That emotional support will be conducive to the mother’s own psychological health and consequently, her ability to provide for the children’s emotional and intellectual needs. The physical support will also assist her to provide for the children’s physical needs.
As previously noted, it is not necessary for the mother to establish compelling reasons for wishing to relocate with the children to New Zealand. I accept that the reasons she has advanced are based on her genuinely held belief and I accept that her belief is reasonably based.
Section 60CC(3)(g) which requires the Court to consider the maturity, sex, lifestyle and background, including lifestyle, culture and traditions of the child and either of the child’s parents and any other characteristics of the child that the Court thinks are relevant.
As noted, the children are aged 15, 13, 12 and 10 respectively. They are each at an age where their views should be considered.
Leaving aside the culture and traditions of the respective traditional owners of Australia and New Zealand, there is an obvious commonality between the cultures of our two countries. The children’s interest in cricket and rugby and netball reflects that commonality.
The fact that the children’s grandparents and the children’s other relatives live in New Zealand, and that the children have frequently visited New Zealand, is a relevant aspect of their background that can be appropriately considered.
As previously noted, the children’s connection to and familiarity with New Zealand will make it easier for them to adjust to the change of relocating to New Zealand with the mother.
60CC(3)(h) which requires the Court to consider issues pertaining to the culture of the child particularly if the child is Aboriginal or a Torres Strait Islander.
This is not a relevant consideration.
Section 60CC(3)(i) which requires the Court to consider the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.
I have previously noted that the mother has been very devoted to the children despite the challenges faced by her as a single mother. Indeed the qualities of the mother as a parent have appropriately been recognised by both the father and Ms P.
As previously noted, the mother has expressed some criticism of the extent to which the father has engaged with the children. This has included challenging the number of times that the father has attended parent-teacher nights as well as the number of times that he has missed other religious and sporting events. I am satisfied, however, that certainly in the period after 2013, the father has endeavoured to become more engaged in the children’s lives and has made a reasonable effort to become involved in their educational, religious sporting and extra-curricular activities consistent with the time that is available to him given his significant work commitments.
I have previously expressed my concern that in the period immediately following separation, the father travelled from South America to Brisbane approximately two or three months before that move was necessary.
I have also expressed my concern that the father dissuaded the mother from living in Brisbane with the children when he was working there. I recognise that during this period the father made reasonable attempts to visit the children when he was in Sydney and to spend time with them when they travelled to Brisbane. Nonetheless, his decision to dissuade the mother from living in Brisbane with the children clearly limited the amount of time that he was available to spend with the children and participate in their various activities.
I have also noted that, during the course of 2010, the father considered the possibility of moving to South America in order to undertake a business operating “in country”. That plan was not, however, acted upon.
Those matters are not such, however, that I place significant weight upon them in considering the orders that I will make in respect to the time that the children should spend with the father. Nevertheless, the evidence is such that I am satisfied that the mother has consistently been the children’s primary carer and she has been the parent who has primarily been involved in respect to the children’s educational, sporting and extra-curricular activities to the very best of her ability.
Section 60CC(3)(j) which requires the Court to consider any family violence involving the child or a member of the child's family.
This is not a relevant consideration.
Section 60CC(3)(k) which requires the Court to consider any family violence order that applies (or did apply) to the child or a member of the child’s family.
This is not a relevant consideration.
Section 60CC(3)(l) which requires the Court to consider 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.
The father submitted that the mother’s proposed orders create “inherent risks” which make it more likely that proceedings would be reinstituted if the Court was to make the orders as sought by her.
On the other hand, the mother argues that, if she relocates to New Zealand without the children, the father and Ms P would be unable to cope with having the primary care of the parties’ four children and this would be likely to result in further proceedings.
On balance, I am of the view that orders are likely to be more sustainable if the children continue to live with the mother who has been their primary carer and has consistently shown great devotion to their well-being and each of their educational needs and personal development through participation in extra-curricular activities.
The arrangement where the children primarily live with the father has been untested and I agree with the evidence of the Family Consultant that there would be considerable pressure on the father and Ms P if that was to occur. The uncertainty associated with the children living with the father and his partner would present a greater risk of such orders failing and, as a result, leading to the institution of further proceedings between the parties.
Section 60CC(3)(m) which requires the Court to consider any other factors the Court considers relevant.
I am satisfied that the mother has given considerable thought to her plans to relocate to New Zealand. Her evidence detailed proposed arrangements in respect to housing, the children’s education, religious observance and the children’s engagement in extra-curricular activities.
The mother’s evidence also detailed a broad support network that she believes she would have available to her if she relocates to New Zealand. While the father expressed skepticism as to whether that support network will in fact be as available as the mother suggests, I am satisfied that the mother genuinely believes she would have additional support in New Zealand that is not currently available to her living with the children in Sydney. It is reasonable for the mother to expect that that support would be available to her if she moved to New Zealand. Even if that support network is limited to her mother and father, it would still be a significant source of support to her.
I am further satisfied that the mother has undertaken a considerable amount of research in respect to the cost of housing and that she has the capacity to purchase a property with no or minimal mortgage in New Zealand. In circumstances where she and the children have moved three times in the last five years, this will provide her and the children with some financial and environmental stability.
I am also satisfied that the standard of accommodation that the mother would be able to afford in New Zealand would be superior to that which she is currently able to access in Sydney. In particular, I am satisfied that the mother would have the capacity to purchase a property with at least four bedrooms. This would be a far more satisfactory situation for the children given that B will shortly be undertaking her final years of high school and that the parties’ son is at an age where he and his younger sister will shortly require rooms of their own.
I am also satisfied that the mother has taken steps to ensure that she has appropriate skills to obtain employment as a health professional in New Zealand. In that context, I note that the mother has made enquiries regarding potential employment opportunities and rates of remuneration. I am satisfied that the mother’s expectations of obtaining suitable employment as a health professional in New Zealand are realistic.
I am also satisfied that the mother has given consideration to the practicalities of the children maintaining contact with their father by utilising electronic technology, including Skype. I note that the mother has previously agreed for the children to spend additional time with the father and I am satisfied that the relationship between the parties is sufficiently cooperative that the mother will facilitate the father having additional time with the children at times when he is in New Zealand.
I have given consideration to the prospect of the father also relocating to New Zealand. I accept that, given the nature of father’s employment, as well as the fact that Ms P is employed in a senior and well-paid position in Australia, it is impracticable for the father to relocate to New Zealand.
Evaluation of s 60CC factors
Having regard to all of the s 60CC factors, I am of the view that the children should continue to live with the mother who has been their primary carer since birth. The mother has also continued to be the parent who is most engaged in the children’s educational, religious, sporting and extra-curricular activities.
The father has in the past shown a preparedness to put his personal interests ahead of spending time with the children and engaging with them in their activities. In that respect, I refer to the fact that the father travelled to Brisbane in order to take up employment two months prior to it being necessary and that he expressed disapproval of the mother and the children moving to Brisbane to facilitate them spending time with him. The father also demonstrated a preparedness to explore a business opportunity in South America and operate that business “in-country” in circumstances where he would be away from the children.
I accept, however, that since 2013, the father has shown greater responsibility for and a preparedness to spend time with and engage in the children’s educational, sporting and extracurricular activities.
Nonetheless, it remains the case that the father and Ms P have significant employment demands and responsibilities in Australia. The reality is that those demands and responsibilities will impact upon the father’s ability to spend time with the children and to engage with them in their activities. As I will discuss, this makes the father’s proposed orders for equal time unrealistic.
In that context, and with the greatest respect to him, I am not satisfied that the father has adequately thought through the consequences of that outcome or the possibility of the mother moving to New Zealand without the children if the orders sought by the father were to be made.
In particular, it appears that, in the event of orders being made to that effect, the father and Ms P would place considerable reliance upon Ms P’s parents to care for the children at those times when neither the father nor Ms P are available as result of work commitments. Given that Ms P’s parents will also have responsibility for caring for J, it would be a significant imposition to place upon them.
Having formed the view that the children should continue to live with the mother, it is then necessary to look at the mother’s circumstances. The mother has indicated that she intends to relocate to New Zealand even if the Court does not permit the children to relocate with her.
The father expressed doubt that the mother would carry through with that position. That doubt was also expressed by the Family Consultant. However, I am not prepared to make orders based on the assumption that the mother will not follow through with her stated intention to relocate to New Zealand without the children should orders be made preventing the children from relocating with her.
In forming that view, I have had regard to the totality of the evidence including the extent to which the mother has experienced and expressed feelings of frustration, depression and anxiety regarding her current situation. Accordingly, it is my view that it would be inappropriate to assume that the mother will not relocate to New Zealand in the event that the Court declines to permit her to relocate with the children.
In any event, the mother’s reasons for wishing to relocate to New Zealand are, in my view, genuine and reasonable. Further, her proposal to relocate has been properly researched and considered.
In circumstances where I have found that it is in the children’s best interests that they live with the mother and that she be permitted to relocate the children’s residence to New Zealand, it is necessary to consider whether the children spending equal time or substantial and significant time with the father is in their best interests and is reasonably practicable.
Is Equal Time or Substantial and Significant Time in the Children’s Best Interests?
Equal time
For reasons previously discussed, I am of the view that it would not be in the children’s best interests to spend equal time with each of the parents. This would be the case even if the mother was to remain living in Sydney because of the work commitments of the father and Ms P. In that respect, I have noted that both the father and Ms P each currently work an average of fifty hours per week. Those commitments limit the amount of time they have available to spend time with the children.
The father and Ms P have parental responsibilities in respect to their young son, J. Being responsible for the care for another four children, including participating in their school and religious commitments, as well as their sporting and extra-curricular activities, would present a significant challenge to them.
While the father indicated that he and Ms P would be assisted by Ms P’s parents, I have earlier expressed the view that, with the greatest respect to him, the father is perhaps a little naive as to the extent of the challenges that he and Ms P may face if the four children were to live with them on a week about basis.
That challenge would include not only demands in terms of time but demands associated with the challenges faced by the children at their various stages of development. This includes dealing with the children’s emotional needs as well as potential behavioural issues which can arise at times. In that respect, I note that the Family Consultant commented that it is likely that the children would experience a degree of stress if the time that they spend with the mother, who has been their primary carer, is significantly reduced.
Accordingly, for the above reasons, I find that it would be impracticable for the children to spend equal time with each of the parents.
Substantial and significant time
I note that the children already spend substantial and significant time with the father and if the children continued to live in Sydney, this would be in the children’s best interests.
Reasonable Practicability upon Relocation
Equal time
As noted, s 65DAA(5) provides that, in determining whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with the child’s parents, the Court is required to have regard to:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
My consideration can be addressed in respect to the first four criteria which I will discuss below.
How far apart the parents live from each other
The mother’s relocation with the children from Sydney to New Zealand would involve an international flight of several hours and a drive of approximately one and a half hours. That distance and the travel time required make it impracticable for the children to spend equal time with both parents.
The parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents
I have previously held that it would be impracticable for the children to spend equal time with both parents as result of the employment obligations of the father and his current partner.
That situation applies irrespective of whether the children continue to reside in Sydney or in New Zealand.
The parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind
The mother acknowledged that as result of the events associated with the marriage breakdown, she has little trust in the father. There have also been some tensions between the mother and the father since separation. This has included a degree of inflexibility shown by each parent in respect to current arrangements for the children. There has also been a recent dispute in respect to travelling arrangements for the children during the Christmas holidays. On the whole, however, the parents have shown that they are capable of communicating with each other to resolve difficulties that may arise. A good example of that was the mother agreeing to the children spending additional time with the father which resulted in the children now spending from Friday evening until Tuesday morning every second week with the father and Ms P.
I also note the views of the Family Consultant that:
There is strong evidence that [the mother]’s proposal is not an attempt to restrict the children’s relationship with [the father] per se, but rather, an effort on her part to improve her parental capacity and personal well-being. [The mother] has, thus far, supported the children spending time with [the father]. She impressed as understanding that they love him and need a relationship with him.[27]
[27] Family Report at paragraph 56.
For reasons previously discussed, I have found that it would be impractical for the children to spend equal time with the father. However, as will be discussed, this is also relevant to my consideration of whether orders should be made for the children to spend substantial and significant time with the father.
The impact that an arrangement of that kind would have on the child
I have previously referred to the impact of the mother’s proposal to relocate to New Zealand on the children in the context of the significant change that would present to the children’s lives. That impact is also relevant to my consideration of s 65DAA(5)(d).
Most significantly, orders permitting the mother to relocate to New Zealand with the children would potentially require the children to undertake several trips to and from New Zealand each year in order to visit the father in Australia. This would result in some disruption in the sense that they would be away from their home for the period that they are in Australia.
It would also result in the children spending time away from their family, including the mother, and friends in New Zealand.
In considering those additional challenges, I note that the children are now at an age where it could be expected that they cope with international travel. Indeed, they have already undertaken international travel to and from South America and also between Australia and New Zealand.
The impact of being away from the mother, other family members and friends at such times as they are in Australia would also be mitigated by the utilisation of electronic technology to which I have already referred.
Substantial and significant time
For the reasons I have provided in respect to finding that equal time would be impracticable, I also find that it would be impracticable for orders to be made for the children to spend substantial and significant time with the father other than at those times when the father is in New Zealand or when the children are to spend time with him in Australia.
In that respect, I note that the definition of substantial and significant time days that fall on weekends and holidays, days that do not fall on weekends or holidays, time that allows the parent to be involved in the child’s daily routine and occasions special to the child and/or the parent.
As a result of distance and travelling time, it would not be practical for the children to spend time with the father on those days in circumstances where they live in New Zealand and the father lives in Sydney.
During those times that the children and the father are in the same country, however, it would be practicable for the children to spend time with the father on days that fall on weekends and holidays, days that do not fall on weekends or holidays, time that allows the father to be involved in the children’s daily routine and occasions special to the children and/or the father.
Accordingly, I will make orders that provide for the children to spend substantial and significant time with the father in circumstances where the children and the father are in the same country – whether it be New Zealand or Australia.
Orders
For the reasons outlined above, I will make orders which permit the mother to relocate to New Zealand with the children. The orders proposed by the mother best achieve that outcome save insofar as I have amended those proposed orders to facilitate greater flexibility with the children’s travelling arrangements once the eldest child turns 16 years of age.
For all of these reasons, I make the orders as set out at the commencement of these Reasons for Judgment.
I certify that the preceding two hundred and thirty nine (239) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 28 November 2016.
Associate:
Date: 28 November 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Costs
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