Withers and Withers
[2017] FCCA 3318
•1 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WITHERS & WITHERS | [2017] FCCA 3318 |
| Catchwords: FAMILY LAW – Parenting – one child aged 9 – interim proceeding – relocation application – primary attachment – no meaningful communications and cooperation between parents – presumption of equal shared parental responsibility rebutted – half sibling resides in relocation region – family violence. |
| Legislation: Family Law Act 1975 (Cth), Pt VII |
| Cases cited: Browne & Keith [2015] FamCAFC 143 C & S [1998] FamCA 66 |
| Applicant: | MR WITHERS |
| Respondent: | MS WITHERS |
| File Number: | NCC 2721 of 2013 |
| Judgment of: | Judge Middleton |
| Hearing date: | 21 July 2017 |
| Date of Last Submission: | 21 July 2017 |
| (omitted)Delivered at: | Newcastle |
| Delivered on: | 1 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Betts |
| Solicitors for the Applicant: | Eddelbuttel Law |
| Counsel for the Respondent: | N/A |
| Solicitors for the Respondent: | Walker Legal Taree |
ORDERS
The Mother and the child, X born (omitted) 2008 (“the child”), be permitted to relocate and change their residence from (omitted), NSW, to an address in the greater (omitted) geographical area.
Upon such relocation, the Mother shall notify the Father in writing of the new address of the Mother and child within 24 hours of such relocation occurring.
The child live with the Mother.
The child spend time with the Father as follows:
(a)Each alternate weekend, from 6.00pm Friday to 4.00pm Sunday.
(b)For a 4 night block during all Term 1, 2 and 3 NSW gazetted school holidays:
(i)In 2018 and each even numbered year, from 10.00am on the first Saturday day of each of these holidays, to 4.00pm on the immediately following Wednesday; and
(ii)In 2017 and each odd numbered year, from 10.00am on the middle Saturday of the holidays, to 4.00pm on the immediately following Wednesday of the holidays.
(c)For two separate 4 night blocks in the Term 4 NSW gazetted school holidays:
(i)In 2018 and each even numbered year, from 4.00pm on 25 December until 4.00pm on 29 December; and
(ii)In 2017 and each odd numbered year, from 10.00am on the second Sunday in January to 4.00pm on the immediately following Thursday; and;
(iii)With the second block to occur by agreement, with the Father to submit his requested days to the Mother at least 14 days prior to the commencement of the second block, such time not to coincide with the existing holiday time, or the Mother’s birthday and is not to be unreasonably refused.
(d)For the special days of Christmas as agreed, but failing agreement:
(i)In 2017 and each odd numbered year, from 4.00pm Christmas Day to 4.00pm Boxing Day; and
(ii)In 2018 and each even numbered year, from 4.00pm Christmas Eve to 4.00pm Christmas Day.
(e)For Father’s day weekend, regardless of whether the time falls on the Father’s weekend time in Order 4(a), from 6.00pm Friday to 4.00pm Sunday;
(f)On the child’s birthday, for 2 hours as agreed, but failing agreement, from 4.00pm to 6.00pm, such time to take place in the (omitted) area, save and except for the occasions where the child’s birthday falls on the Father’s weekend pursuant to Order 4(a), or the holiday time in Order 4(b).
The Father’s time in Order 4 be facilitated by the Mother delivering the child to the Father at “(omitted)” service station on the (omitted) at (omitted) at the commencement of the time, and the Father returning the child to the Mother at “(omitted)” at the conclusion of the time.
The Father’s time pursuant to Order 4 be suspended as follows:
(a)In the Term 1, 2 and 3 NSW gazetted school holidays, at all times not set out in Order 4(b);
(b)For the Term 4 NSW gazetted school holidays, at all times not set out in Order 4(c); and
(c)On Mother’s Day weekend, from 6.00pm Friday to 4.00pm Sunday.
The Father have telephone communication each Wednesday and Sunday evening between 7.00pm and 7.30pm, where the child is not spending time with him, and that the Father place the call to the Mother’s mobile phone.
The parents shall ensure they keep each other informed of:
(a)Any medical problems or illnesses suffered by the child while in their care;
(b)Any medication that has been prescribed for the child;
(c)Any social, school or religious functions which the child is to attend; and
(d)Any other matter relevant to the child’s welfare.
For the purposes of communicating information between the parties the Mother and the Father shall communicate by text for matters of an urgent nature an otherwise;
Each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each party do all things necessary to ensure that the child does not remain in the presence of any third party making critical comments about the other party.
Each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advise the other party of any changes to these details within 48 hours of such change occurring.
Both parents be entitled to attend all events involving the child including
(a)Sporting fixtures;
(b)Extra-curricular activities that allow for parental attendance;
(c)School function and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions
and the parent who has the child in their care on the day of such activity will be responsible for their day to day care at such event and the child’s transportation to and from that event.
These Orders are sufficient authority for both parties to receive all relevant information relating to the child from all schools, medical practitioners and other health care providers, all sporting clubs and all extra circular activities attended to by the child.
The matter is transferred to the Newcastle Federal Circuit Court.
The matter is adjourned to 9.30am on 5 April 2018 at Newcastle for directions hearing.
IT IS NOTED that publication of this judgment under the pseudonym Withers & Withers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2721 of 2013
| MR WITHERS |
Applicant
And
| MS WITHERS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an interim parenting application. The applicant is Mr Withers. The respondent is Ms Withers (aka Withers).
The application involves parenting arrangements for a child X, born (omitted) 2008.
Documents relied upon
The father relied upon:
a)His second Amended Initiating Application filed 16 July 2017;
b)His Affidavit filed 11 July 2017;
c)His Affidavit filed on 4 April 2017, and
d)A case outline.
The mother relied upon:
a)Her Amended Response filed 19 July 2017, and
b)Her Affidavit filed 19 July 2017.
A Child Inclusive Memorandum dated 23 June 2017 was also available at the time of the hearing.
The issues
The issues for determination were:
(1)With whom the child should live; and
(2)Whether the mother can relocate to (omitted) with the child.
Background
The mother is 40 years old and has worked as an (occupation omitted) in the (omitted) area for the last 10 years. The mother has another child, A, who is 14 years old and who lived with the mother and X for a considerable period of time.
The parties commenced a relationship in (omitted) 2006. They separated in July 2008. They renewed their relationship in (omitted) 2009, and separated again on a final basis in March 2012. The child has lived with his mother since separation.
The parties entered into a parenting plan in June 2012. By July 2012, the parenting plan was not being followed and the father’s time was reduced to two nights per fortnight.
The mother entered into a relationship with Mr S in (omitted) 2014. The mother ultimately evicted Mr S in (omitted) 2015, and then partnered with Mr K. In May 2016, the father partnered with Ms J. This relationship is now at an end.
In December 2016, X told the father that he was moving to (omitted). The father invited the mother to mediation. In February 2017, the mother sent A to (omitted) to live with his father.
The mother had finished a (omitted) degree at time of hearing. By consent, after hearing, the Court was advised that the mother had graduated and had been offered a (occupation omitted) position at (omitted) to commence on (omitted) 2018. That position had to be accepted by 29 October 2017. It is in this context that the matter came before the Court.
The Law
Informed and guided by the objects and principles in section 60B of the Act, I must make orders that are in the best interests of the child. As outlined in section 60CA, the child’s best interests are my paramount concern and when considering those best interests, I must consider the matters set out in section 60CC. Neither party seeks an order for parental responsibility; however I will give consideration to section 61DA.
The orders sought
The father
The father sets out the orders he seeks in his second Amended Initiating Application.
In summary, he seeks to restrain the mother by way of injunction from relocating to (omitted). Should she remain in (omitted), he seeks orders for the child to live with the mother and spend alternate weekend time, Friday to Monday, and holiday time with the father. Should the mother move to (omitted), he seeks an order for the child to live with him and spend time with the mother each alternate weekend from 6.00pm Friday to 4.00 pm Sunday.
The mother
The mother seeks orders as set out in her Amended Response.
In summary, she seeks an order that she and the child be permitted to relocate to (omitted). Whether she lives in (omitted) or not, the mother seeks orders for the child to spend time with the father each alternate weekend from 6.00pm Friday to 4.00pm Sunday, and for four nights during holiday time.
The evidence
The father
The father is an (occupation omitted). At the time of hearing, he was living with Ms J and her two children. That relationship has now ended. The father’s brother also lives within one kilometre in (omitted).
The father says the child is well-settled at school with good friends and he is concerned a move to (omitted) would cause disruption. The father says all of the paternal and maternal family live in the (omitted) area. The father gives a history of a difficult relationship between he and the mother, which has caused difficulties in the amount of time he spends with the child.
Currently, the father spends time with the child from Friday 5.00pm until Sunday 5.00pm each alternate weekend. The father gives evidence that the mother has made unilateral decisions regarding the child’s schooling and extra-curricular activities. He says she did not include him on the enrolment form for the child’s current school. The father says he is not listed as an emergency contact either. The father says he no longer attends the child’s (hobby omitted) after he attended with his then-partner in May 2016 and the mother reacted badly, causing the child distress.
The father denies drug and alcohol abuse. He denies the allegations of family violence. He makes allegations of serious family violence against the mother, including that she threatened to stab him. The father alleges that the mother has a violent past and that she has been arrested for carrying a knife. He also alleges that she “broke the jaw” of another student while she was attending school.
The father makes allegations about the mother’s child, A. He says that A used to spy on his daughters in the bedroom and bathroom. He says that A was constantly in trouble at school and has been expelled from many schools. The father says there is no urgency in the application.
The mother
The mother gives evidence that during the first separation, the father refused to have X as he was not welcome at the paternal grandmother’s house. Her evidence is that the paternal family did not approve of the marriage and that, as a result, the family was estranged.
Her evidence is the father’s alcoholic intake increased throughout the marriage and that he smoked marijuana daily. Her evidence is that the family violence continued throughout the marriage. The mother says the father was not interested in spending time with X post-separation. The mother says family violence arose as a result of her studying (omitted) full time as well.
The father acknowledges that they argued about her study, as he did not think it was financially viable. The mother says the father has involved himself in her relationships post-separation, including engaging in drive-bys.
It is the mother’s evidence that she offered more time with X, however the father was not interested. It is the mother’s evidence that she and the father do not talk at all now because he is too aggressive. It is conceded that the child has not spent more than four days away from the mother. The mother proposes to continue the time the child spends with the father if she moves to (omitted).
The mother says that the child misses his sibling, A, and that (omitted) will afford him better opportunities, particularly with his (hobby omitted).
The mother admits to one low-range drink driving offence and to being arrested for carrying a knife when she was 20. She denies having the police called due to her behaviour at a Christmas party or that she broke another student’s jaw when she was at school.
The mother denies that A spied on the father’s daughters or that he was expelled from school. The mother says she is currently boarding with a friend in (omitted).
She says the father has always tried to control her and she makes the point that the father amended the orders he sought from Friday to Sunday, to Friday to Monday, only after reading the Child Inclusive Memorandum where it is recommended that the mother be permitted to move, so as to prevent the mother from moving. The mother denies that the father has tried to spend more time with the child since separation and says he is only doing so now to control her.
Family Consultant
The Family Consultant, Ms C, provided a memorandum to the Court dated 23 June 2017. She notes that the father concedes that there is no current viable cooperation and communication between the parents.
The Family Consultant notes that both parents described family violence occurring in the relationship in the presence and hearing of the child. Both parents accepted, however, that there was no current safety risk of exposure to family violence for the child in either home.
The Family Consultant was of the view that there was no information available to support the notion of alienation, however was of the view that the child’s exposure to the conflict may result in loyalty demands being placed on him.
The father conceded marijuana use daily during the relationship and said the mother did too.
The Family Consultant was of the view that the issues raised by both parents did not place the child at an unacceptable risk of harm in the care of either parent. She opined that there is no current meaningful communication or cooperation between the parents.
Ms C opined that X loved both his parents, although he was definitely closer to his mother. The child reported missing his mother when he is at the father’s. The child is aware of the conflict and said his father was sometimes rude to his mother. He recalled the telephone conversation in which he cried because he was upset at what the father had said.
The child told the Family Consultant that he wanted to move to (omitted) and for his time to remain the same with his father. The child said he feels quite sad that he is not living with A anymore and that he misses him. He said one of the main reasons he wants to move to (omitted) is so that he can be reunited with his brother and go to the same school as him.
The Family Consultant did not believe that an extension in time was in the best interests of the child. The Family Consultant was of the opinion that the child has a meaningful relationship with his father and that this will continue if he moves to (omitted). In her view, a primary beneficial factor of the child relocating would be reunification with A and a primary detrimental factor would be that his father would be unable to attend or be involved in the extra-curricular activities of the child with as much ease as is current.
Application of the law
Relocation application
Assessing that evidence, this is a relocation application heard in the abridged interim hearing format. None of the evidence has been tested. There is no rule of law to the effect that a court should not readily grant interim relocation, except in cases of emergency.[1] Warnick J in C & S[2]said:
“…it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a re-location, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents, from what it or they had been immediately beforehand.”
[1] See Browne & Keith (2015) FamCAFC 143.
[2] [1998] FamCA 66.
The evidence establishes that the child has been spending each alternate weekend with his father from Friday until Sunday, and that he has a meaningful relationship with his father. This situation will not be significantly altered if the mother is permitted to relocate to (omitted) with the child.
In Morgan & Miles[3] (2007), after the amendments of 2006, Boland J said at paragraph 84:
“The cases demonstrate that sensibly Judges recognised that these very difficult cases, often with far reaching consequences for the child, required the full investigation which can only occur at a final hearing…”
[3] [2007] FamCA 1230.
This observation is apt, particularly in circumstances where a proposed relocation would place considerable difficulty in the child maintaining a meaningful relationship with the non-live with parent.
This proposed relocation will not significantly affect the meaningful relationship the child currently has with his father in my view. I make a finding that the child has a meaningful relationship with his father based upon the agreed facts, namely, both parents say the child has a good relationship with his father. Both parties agree that the father has tried to involve himself in extra-curricular activities and school despite the difficulty. And, of course, the child says he loves both parents.
The legislative pathway
Section 60CC(2) considerations
There is a real benefit to the child maintaining a meaningful relationship with both parents.[4] This has occurred and can continue to occur into the future.
[4] Family Law Act 1975 (Cth) s 60CC(2)(a).
A meaningful relationship is determined on qualitative grounds, not quantitative grounds.[5]
[5] See Mazorski & Albright [2007] FamCA 520 per Brown J.
The evidence does not support a finding that either parent poses an unacceptable risk of harm or that there is a need to protect the child from either parent.[6]
[6] Family Law Act 1975 (Cth) s 60CC(2)(b).
Section 60CC(3) considerations
Section 60CC(3)(a)
The child has expressed a clear view that he wants to move to (omitted), that he wants the current time to remain and that he wants to be reunited with A.
Section 60CC(3)(b)
The evidence establishes a finding that the child is primarily attached to the mother and that he has a meaningful relationship with the father. The child indicated to the Family Consultant that he loved both of his parents, however clearly indicated that he felt closest to his mother, missing her when he sleeps over at his father’s.
The child also told the Family Consultant that he loves all of his siblings, but that he felt closest to A. There is very little evidence in relation to the child’s relationship with other maternal and paternal family members.
Section 60CC(3)(c)
The mother says the father is not interested in spending further time with the child, nor is he interested in making decisions, but is now only saying he is so as to control her and prevent her from moving. The father says the mother has, over a long period of time, been preventing the father from making decisions and from spending additional time with the child.
A determination of fact cannot be made at this time and will need to be made at final hearing. The mother has, on any view of the evidence, been one hundred percent involved in making decisions for the child and has been spending as much time as possible with the child.
Section 60CC(3)(ca)
There is no evidence provided in relation to this consideration.
Section 60CC(3)(d)
The father seeks an order for the child to live with him should the mother move to (omitted). The evidence does not support a change of residence. The child has always lived with his mother and he is closest to her. The child says he misses his mum when he is away from her for one night. In those circumstances, I am satisfied that such a change would be disadvantageous for the child.
The father seeks further time. The Family Consultant does not support this change at this time. I cannot support such a change based upon the evidence either.
The mother wants to move to (omitted). The evidence is that she has been offered a position in (omitted) at (employer omitted) as a (occupation omitted). She will receive more income as a result which will bring more disposable income into the mother’s home. That would be advantageous.
The child would be reunited with A, whom he misses and feels closest to. That would be advantageous. He will leave his current school and school friends. There is no evidence that could support a finding as to whether this will be advantageous or disadvantageous but there clearly will be a change and some instability.
His father would not be able to be involved in extracurricular activities and this, in the opinion of the Family Consultant, would be disadvantageous and I agree.
Weighing up those advantages and disadvantages, I am of the view that there is greater advantage in the move to (omitted) then there are disadvantages.
Section 60CC(3)(e)
A move to (omitted) or order that the child live with the father if the mother moves to (omitted) will increase the practical difficulty and expense involved with the child spending time with either parent. The distance between (omitted) and (omitted) is approximately 170 kilometres, or two hours. This distance does not preclude alternate weekend time being maintained, however.
Section 60CC(3)(f)
I am satisfied on the evidence that both parents can adequately provide for and meet the needs of the child.
Section 60CC(3)(g) and (h)
These considerations are not determinative.
Section 60CC(3)(i)
There is much in dispute about the parents’ attitude towards their responsibilities to parenthood. Each accuses the other of not being child-focused. This will need to be determined at final hearing.
Section 60CC(3)(j)
Both parents complain that there was family violence in the relationship with both blaming the other. I cannot make a finding as to who was responsible. I am, however, satisfied on balance that there was interpersonal family violence within the relationship.
Section 60CC(3)(k)
There are no Apprehended Domestic Violence Orders currently in place, nor has there ever been.
Section 60CC(m)
The mother says if she does not accept the position offered as a (occupation omitted) she will not be offered another graduate position and this will affect her career. It is for this reason that there is some urgency in her application because she must take up the position in (omitted) 2018.
I accept that the mother has now been offered a position and that she must take up the position in (omitted). I cannot determine whether she will be offered another graduate position in the event she does not take up the offer. I am satisfied, however, that if she takes up the position offered she would have a positive start to her career as a (occupation omitted). This career has the potential for positive outcomes for the child.
The father’s relationship with Ms J which commenced in (omitted) 2016 is now ended. This is a change in the father’s home. It is a relevant additional matter as Ms J has two daughters, aged 8 and 7 who also resided with the father. It is unknown at this stage whether this change will affect the child’s relationship with the father or otherwise.
Section 61DA
Section 61DA(3) provides that in interim hearings the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to apply.
The evidence establishes that there is a great deal of mistrust between the parents. Allegation and counter-allegation are rife. They both agree that there is no effective communication between them. They both allege family violence.
Submissions on behalf of the father acknowledge the family violence, that it rebuts the presumption within section 61DA and that communication is poor between the parties but nevertheless submits that equal shared parental responsibility should be trialled in the best interests of the child.
The parties have been separated six years. In that time their communication, it seems, has never been good. There is no evidence that the decisions that the mother has made for the child have been disadvantageous. The evidence of the family consultant is that:
“There is no current meaningful communication and cooperation between the parents.”
And:
“Sadly, on the history of the relationship I am not optimistic that it is likely to improve in the near future.”
That evidence satisfies me that it is not appropriate in the circumstances for the presumption to apply.
Similarly, for the same reasons, I am satisfied that it is not in the best interests of the child for an order to be made for equal shared parental responsibility as this would lead to further conflict between the parents and the child is already well aware of the parental conflict and this needs to be reduced in his best interests.
For those reasons I am satisfied that the orders that I make are in the best interests of the child.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Middleton
Date: 30 January 2018
Key Legal Topics
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Family Law
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