Zanderlake & Long
[2007] FamCA 1630
•21 December 2007
FAMILY COURT OF AUSTRALIA
| ZANDERLAKE & LONG | [2007] FamCA 1630 |
| FAMILY LAW – CHILDREN – Child related proceedings – Relocation FAMILY LAW – SPOUSAL MAINTENANCE |
| Family Law Act 1975 (Cth) Family Law (Shared Parental Responsibility) Act 2006 (Cth) |
| Goode & Goode (2006) FLC 93-277 B & B; Family Law Reform Act 1995 (1997) FLC 92-775 Mazorski & Albright (2007) 37 Fam LR 518 Godfrey & Sanders [2007] FamCA 102 Bale & Jenkins [2007] FamCA 809 Taylor & Barker (2007) 37 Fam LR 461 In the Marriage of Mitchell (1995) 19 Fam LR 44 |
| APPLICANT: | Mr Zanderlake |
| RESPONDENT: | Ms Long |
| FILE NUMBER: | SYF | 2410 | of | 2006 |
| DATE DELIVERED: | 21 December 2007 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Justice O'Ryan |
| HEARING DATE: | 24 and 25 May 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lloyd |
| SOLICITOR FOR THE APPLICANT: | Musgrave Peach |
| COUNSEL FOR THE RESPONDENT: | Mr Price |
| SOLICITOR FOR THE RESPONDENT: | Price & Company |
Orders
Until 1 February 2008 the Father pay or cause to be paid to the Mother the sum of $400 per week from the date of these Orders, such payment to be made by way of electronic funds transfer every Monday into such bank account as the Mother may nominate in writing from time to time, the first such payment to be made on the first Monday following the date of this order.
All previous parenting orders related to the children J born on … March 2003 and L born on … October 2004 are discharged as and from 18 January 2008.
The Mother Ms Long and the Father Mr Zanderlake have equal shared parental responsibility for each of the children.
As from 19 January 2008 the Mother be permitted to relocate the children to reside in Melbourne, Victoria.
In the event the Mother and children reside in Victoria and the Father does not also reside in Victoria, the children spend time with the Father during the following periods:
5.1Excluding the periods set forth in Orders 5.2, 5.3, 5.4 and 5.5 below, the first weekend of every month from 9.00 am on Saturday until 5.00 pm on the following Sunday;
5.2For one week of the first gazetted Victorian public school holiday period in each year, being for the first week in each odd numbered year commencing at the beginning of the said school vacation, and for the second week in each even numbered year, commencing one week prior to the conclusion of such first public school holiday in Victoria each year and concluding at 3.00 pm on the day before the second public school term resumes in Victoria; and
5.3For the entirety of the second gazetted public school holidays in Victoria each year, commencing from the beginning of such school holiday period until 3.00 pm on the day before the third public school term resumes in Victoria; and
5.4For the entirety of the third gazetted public school holidays in Victoria each year, commencing from the beginning of such school holiday period until 3.00 pm the day before the fourth public school term resumes in Victoria; and
5.5For one half of the Christmas/New Year gazetted Victorian public school holiday period in each year, as follows:
5.5.1 For the Christmas/New Year holiday period for 2008/2009, and every second year thereafter, from the beginning of the said school vacation,
5.5.2 For the Christmas/New Year holiday period for 2009/2010, and every second year thereafter from the mid point of the said holiday period and concluding at 3.00 pm on the day before the first public school term resumes in Victoria.
5.6For such other times and periods as the parties herein may in writing agree.
5.7For the purposes of all occasions where the Father shall spend time with the children, the Father shall be liable for and shall bear the expense of all travel and accommodation arrangements.
If the Father resides in Melbourne, Victoria then, unless otherwise agreed between the parties, the children spend time with the Father during the following periods:
6.1During each gazetted Victorian public school term each alternate weekend from 9.00 am Saturday until 5.00 pm the following Sunday and each other week from after school Wednesday until before school on the following Thursday morning;
6.2One half of each of the first three gazetted Victorian public school holiday periods being the first half in odd numbered years and the second half in even numbered years.
6.3One half of the Christmas/New Year gazetted Victorian school holiday period in each year, as follows:
6.3.1 For the Christmas/New Year holiday period for 2008/2009, and every second year thereafter, from the beginning of the said school vacation,
6.3.2 For the Christmas/New Year holiday period for 2009/2010, and every second year thereafter from the mid point of the said holiday period and concluding at 3.00 pm on the day before the first public school term resumes in Victoria.
6.4On Father’s Day if it falls on a day that the children are living with the Mother from 9.00 am until 5.00 pm on Father’s Day.
6.5In the event the children are not spending time with the Father on their birthday, the Father shall spend time with both children on each of their birthdays for a period of two hours on a school day or on other days for a period of three hours.
6.6In the event that the Father is spending time with the children on Sunday which is Mother’s Day, then on that day the Father shall return the children to the Mother by no later than 9.00 am on Mother’s Day.
6.7In the event the children are not living with the Mother on their birthday and such birthday falls on a weekend when the children are with the Father, the Mother shall spend time with both children on either of their respective birthdays for a period of three hours on that day, and in this regard the Mother shall collect the children from the Father’s residence and return them at the conclusion of that three hour period.
6.8For the purposes of this Order 6, the Mother shall deliver the children to the Father’s residence in Melbourne at the commencement of the Father spending time with the children, and the Father shall return the children to the Mother’s residence in Melbourne at the conclusion of him spending time with the children.
6.9For such other periods or at such other times as the parties herein may agree in writing.
Unless otherwise specified in Orders 5 and 6 above, the children shall live with the Mother at all other times.
Each of the Mother and Father will:
8.1Notify the other as soon as possible and, in any event, within twenty-four hours of any serious illness or injury suffered by the children or either of them, whilst in the care of that parent;
8.2Notify the other not less than seven days prior to any change of his or her residential address and/or telephone number;
8.3Notify the other and keep the other notified of a telephone number where the other and the children may be contacted in the event of an emergency;
8.4Notify the other of the name, address and telephone number of the children’s treating doctor(s) and authorise that doctor(s) in writing to release to the other particulars of any of the children’s health or treatment at any time requested by the other.
8.5Authorise the school/pre school attended by each of the children to allow for each of the parties to obtain particulars of each child’s welfare, progress at school, school reports, school photographs, details of upcoming functions and activities and any other information distributed by the school.
Pursuant to s 65DA(2) and s 62B of the Family Law Act1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Zanderlake & Long is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 2410 of 2006
| MR ZANDERLAKE |
Applicant
And
| MS LONG |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Before me for hearing are applications for final parenting orders and spousal maintenance.
The Father is Mr Zanderlake and he seeks the following:
1. The Mother and Father have equal shared parental responsibility for the children of the marriage, namely [J] born […] March 2003 (“[J]”) and [L] born […] October 2004 (“[L]”) (collectively known as “the children”).
2. Provided the Mother continues to live in Sydney, the children shall live with the Father as follows and during all such periods of time he shall have responsibility for making the day-to-day decisions about the care, welfare and development of the children:
Until [J] commences school:
2.1 From 5.00pm Monday until before preschool/kindergarten on Tuesday in each week;
2.2 From 5.00pm Wednesday until before preschool/kindergarten on Thursday in each week;
2.3 From 5.00pm Saturday to 5.00pm Sunday in each week, save and except on Mother’s Day when the children shall live with the Mother from 9.00am on Mother’s Day to 5.00pm on Mother’s Day;
2.4 To give effect to Orders 2.1 and 2.2 the Father shall collect the children from the Mother’s residence at the commencement of the period of time the children are to live with the Father and the Father shall deliver the children to their respective preschool and/or kindergarten at the cessation of the period;
2.5 To give effect to Order 2.3 the Father shall collect the children at the commencement of any period of time the children are to live with him and the Mother shall collect the children from the Father in any period of time the children are to live with her.
3. The children shall live with the Mother at all other times and she shall have the sole responsibility for making decisions about the day-to-day care, welfare and development of the children during the periods when the children are residing with her.
4.Upon [J] commencing school:
During school term:
4.1 From after school on Wednesday until 5.00pm on Saturday;
4.2 On Father’s Day from 9.00am until 6.00pm;
4.3 On each of the children’s birthdays at times agreed between the parties and failing agreement from 4.00pm to 7.00pm on each birthday on the proviso the children shall also spend a minimum of three (3) hours on each of their birthdays with the Mother;
4.4 On the Father’s birthday at times to be agreed between the parties and failing agreement from 4.00pm to 7.00pm on each birthday provided the children shall spend a period of not less than three (3) hours with the Mother on her birthday each year and failing agreement between 4.00pm and 7.00pm on those days;
4.5 To give effect to this order the Father shall collect the children at the commencement of any period of time the children are to live with him and the Mother shall collect the children from the Father at any period of time the children are to live with her;
During school holiday periods from the time [J] commences school as follows:
4.6 Half of all school holiday periods by agreement between the parties and failing agreement the children shall live with the Father during the first half of all school holidays in odd numbered years and in the second half in all school holidays in even numbered years save and except for the periods set out in 4.7 to 4.9 inclusive;
4.7 From 9.00am on Good Friday until 9.00am on Easter Sunday in odd numbered years and from 9.00am on Easter Sunday until 5.00pm on Easter Monday in even numbered years;
4.8 From 12.00pm on Boxing Day to 5.00pm the following day in odd numbered years and from 12.00pm on Christmas Day to 5.00pm on Boxing Day in even numbered years;
4.9 From 9.00am until 4.00pm on the Monday of the June long weekend each year;
4.10 At such other times as may be agreed between the parties;
4.11 The children shall live with the Mother at all other times during the school holiday period;
4.12 For the purpose of this order the Father shall collect the children at the commencement of any period of time the children are to live with him and the Mother shall collect the children from the Father at any period of time the children are to live with her;
5.Each of the Mother and Father will:
(a) Notify the other as soon as possible and, in any event, within twenty-four hours of any serious illness or injury suffered by the children or either of them, whilst in the care of that parent;
(b) Notify the other not less than seven days prior to any change of his or her residential address and/or telephone number;
(c) Notify the other and keep the other notified of a telephone number where the other and the children may be contacted in the event of an emergency;
(d) Notify the other of the name, address and telephone number of the children’s treating doctor(s) and authorise that doctor(s) in writing to release to the other particulars of any of the children’s health or treatment at any time requested by the other.
(e) Authorise the school/pre school attended by each of the children to allow for each of the parties to obtain particulars of each child’s welfare, progress at school, school reports, school photographs, details of upcoming functions and activities and any other information distributed by the school.
In the alternative to Orders 1 to 4:
6.In the event the Mother relocates to Victoria:
6.1 Then the children shall live with the Father and he shall have the day-to-day responsibility for making the day-to-day decisions about the care, welfare and development of the children; and
6.2 The children shall spend time with the Mother by agreement between the parties and subsequent to [J] commencing school for half of the school holiday period as set out in Order 4.6.
7.In the event the Orders are made in accordance with Orders 1 to 4, then the Father shall pay to the Mother the sum of $400 per week by way of spousal maintenance until 1 February 2008 or the Mother commencing employment, whichever event shall first occur.
8.The Mother to pay the costs of and incidental to the Father’s Application.
The Mother seeks the following:
Spousal Maintenance
1. That the husband pay or cause to be paid to the wife the sum of $400.00 per week from the date of these Orders until 1 February 2010, such payment to be made by way of electronic funds transfer every Monday into such bank account as the wife may nominate in writing from time to time, the first such payment to be made on the first Monday following the date of this order.
2. In the event that the wife obtains full time employment as a teacher, then in that event and that event only order 1 hereinabove shall be suspended for the duration of such full time employment, but shall recommence immediately upon the wife ceasing such full time employment as a teacher.
Childrens Orders
3. The children [J] born […] March 2003, [L] born […] October 2004 (the children) live with the wife.
4. That the wife be permitted to relocate the children to reside in Melbourne, Victoria.
In the event the wife and children relocate to reside in Melbourne, Victoria
5. That in the event the wife and children relocate to reside in Victoria and the husband does not also move to reside in Victoria, the children spend time with the husband during the following periods:
(i)Excluding the periods set forth in paragraphs 5(ii), 5(iii) 5(iv) and 5(v) below, the first weekend of every month from 9.00am Saturday until 5.00pm Sunday;
(ii)For one (1) week of the first gazetted Victorian public school holiday period in each year, being for the first week in each odd numbered year commencing at the beginning of the said school vacation, and for the second week in each even numbered year, commencing one week prior to the conclusion of such first public school holiday in Victoria each year and concluding at 3.00pm the day before the second public school term resumes in Victoria; and
(iii)For the entirety of the second gazetted public school holidays in Victoria each year, commencing from the beginning of such school holiday period until 3.00pm the day before the third public school term resumes in Victoria; and
(iv)For the entirety of the third gazetted public school holidays in Victoria each year, commencing from the beginning of such school holiday period until 3.00pm the day before the fourth public school term resumes in Victoria; and
(v)For a period of two (2) weeks during the Christmas/New Year gazetted Victorian school holiday period in each year, as follows:
(a)For Christmas/New Year holiday period for 2007/2008, and every second year thereafter, from 22 December in that odd numbered year until 5 January immediately following;
(b)For Christmas/New Year holiday period for 2008/2009, and every second year thereafter, from 2 January to 15 January inclusive.
(vi)For such other times and periods as the parties herein may in writing agree.
(vii)For the purposes of all occasions where the husband shall spend time with the children, the husband shall be liable for and shall bear the expense of all travel and accommodation arrangements.
6. Unless otherwise specified in order 5 above, the children shall live with the wife at all other times.
In the event that the children are permitted to relocate to reside in Melbourne, Victoria and the husband also relocates to reside in Melbourne, Victoria
7. That if the husband relocates to reside in Melbourne, Victoria then, unless otherwise agreed between the parties, the children spend time with the husband during the following periods:
(i)During each gazetted Victorian public school term each alternate weekend from 9.00am Saturday until 5.00pm the following Sunday and each other week from after school Wednesday until before school Thursday morning;
(ii)One half of each of the first three gazetted Victorian public school holiday periods being the first half in odd numbered years and the second half in even numbered years.
(iii)For a period of two (2) weeks during the Christmas/New Year gazetted Victorian school holiday period in each year, as follows:
(a)For Christmas/New Year holiday period for 2007/2008, and every second year thereafter, from 22 December in that odd numbered year until 5 January immediately following;
(b)For Christmas/New Year holiday period for 2008/2009, and every second year thereafter, from 2 January to 15 January inclusive.
(iv)On Father’s Day if it falls on a day that the children are living with the wife from 9.00am until 5.00pm on Father’s Day.
(v)In the event the children are not spending time with the husband on their birthday, the husband shall spend time with both children on each of their birthdays for a period of 2 hours on a school day or on other days for a period of 3 hours.
(vi)In the event that the husband is spending time with the children on Sunday which is Mother’s Day, then on that day the husband shall return the children to the wife by no later than 9.00am on Mother’s Day.
(vii)In the event the children are not living with the wife on their birthday and such birthday falls on a weekend when the children are with the husband, the wife shall spend time with both children on either of their respective birthdays for a period of 3 hours on that day, and in this regard the wife shall collect the children from the husband’s residence and return them at the conclusion of that 3 hour period.
(viii)For the purposes of this order 6, the wife shall deliver the children to the husband’s residence in Melbourne at the commencement of the husband spending time with the children, and the husband shall return the children to the wife’s residence in Melbourne at the conclusion of him spending time with the children.
(ix)For such other periods or at such other times as the parties herein may agree in writing.
8. Unless otherwise specified in order 7 above, the children shall live with the wife at all other times.
In the event the wife is not permitted to relocate the children to Melbourne, Victoria
9. Unless otherwise agreed between the parties, the children spend time with the husband during the following periods:
(i)During each gazetted New South Wales public school term each alternate weekend from 9.00am Saturday until 5.00pm the following Sunday and each other week from after school Wednesday until before school Thursday morning;
(ii)One half of each of the first three gazetted New South Wales public school holiday periods being the first half in odd numbered years and the second half in even numbered years.
(iii)For a period of two (2) weeks during the Christmas/New Year gazetted New South Wales school holiday period in each year, as follows:
1.For Christmas/New Year for 2007/2008, and every second year thereafter, from 22 December in that odd numbered year until 5 January immediately following;
2.For Christmas/New Year for 2008/2009, and every second year thereafter, from 2 January to 15 January inclusive.
(iv)On Father’s Day if it falls on a day that the children are living with the wife from 9.00am until 5.00pm on Father’s Day.
(v)In the event the children are not spending time with the husband on their birthday, the husband shall spend time with both children on each of their birthdays for a period of 2 hours on a school day or on other days for a period of 3 hours.
(vi)In the event that the husband is spending time with the children on Sunday which is Mother’s Day, then on that day the husband shall return the children to the wife by no later than 9.00am on Mother’s Day.
(vii)In the event the children are not living with the wife on their birthday and such birthday falls on a weekend when the children are with the husband, the wife shall spend time with both children on either of their respective birthdays for a period of 3 hours on that day, and in this regard the wife shall collect the children from the husband’s residence and return them at the conclusion of that 3 hour period.
(viii)For the purposes of this order 6, the wife shall deliver the children to the husband’s residence in Sydney at the commencement of the husband spending time with the children, and the husband shall return the children to the wife’s residence in Sydney at the conclusion of him spending time with the children.
(ix)For such other periods or at such other times as the parties herein may agree in writing.
10. Unless otherwise specified in order 9 above, the children shall live with the wife at all other times.
11. That each the wife and the husband have equal shared parental responsibility in consultation with each other, for the children.
12. That the husband be and is hereby restrained from taking or allowing the children or either of them to go sailing until such time as both children have commenced school and upon doing so, the children are to wear personal flotation devices to a standard equivalent to PFD1 and that a minimum of 2 adults shall be available to supervise both children at all times and in this regard the husband shall ensure the children do not stay overnight on any vessel (provide that this order shall not apply to the husband accompanying the children on a commercial cruise ship);
13. That the husband be restrained from causing or permitting the children to travel on any aircraft unless by licensed commercial airlines being either Qantas or Virgin Blue (or any similar commercial airline).
14. That the husband maintain the children in a registered private health fund at the top level of cover at the husband’s expense until the children reach the age of 18 years, and shall provide the wife with the children’s policy and membership details of such health fund.
15. That the husband pay the wife’s costs of and incidental to these proceedings.
16. Such further or other order as this Honourable Court deems fit.
The Mother was born in July 1972 and the Father was born in April 1975. The parties commenced cohabitation in early 1999 and were married in April 2001. The parties separated on 23 March 2005. The parties are now divorced.
There are two children of the marriage J born in March 2003 and L born in October 2004.
PARENTING-RELEVANT PRINCIPLES
General
For a discussion of the relevant provisions of Pt VII of the Family Law Act 1975 (Cth) see Goode & Goode (2006) FLC 93-277.
Section 61C(1) in Pt VII of the Family Law Act provides that each of the parents of a child who has not attained the age of 18 has parental responsibility for that child. The meaning of “parental responsibility” is defined in s 61B of the Act. Parental responsibility means all the duties, powers and authority which by law parents have in relation to a child. It relates to decision-making, not time to be spent with each parent. The presumption relates only to parents, and has no application to orders for parental responsibility in favour of other people. In Good & Goode (supra) the Full Court said that the parents may still be together or may be separated; there will be no court order and the parents may exercise the responsibility either independently or jointly.
However, by virtue of s 61C(3) the joint parental responsibility is subject to any order I may make. Section 61D(1) provides that a parenting order confers parental responsibility for a child on a person but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
Section 65D(1) provides, subject to a presumption of equal shared parental responsibility in s 61DA, parenting plans and Div 6 of Pt VII, that I may make such parenting order as I think proper. Section 64B(1) defines the term “parenting order” and s 64B(2) specifies the matters that a parenting order may deal with. This includes the person with whom a child is to live, the time a child is to spend with another person and the allocation of parental responsibility for a child. Section 64B(3) provides that an order may deal with allocation of responsibility for making decisions about long-term issues.
In deciding whether to make a particular parenting order in relation to a child s 60CA requires that I regard the best interests of the child as the paramount consideration: see also s 65AA.
In determining what is in the best interests of a child I must consider the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3). There are two primary considerations and 13 additional considerations. I must also have regard to the objects of Pt VII identified in s 60B(1) and the principles expressed in s 60B(2) underlying the objects.
There are four stated objects in s 60B(1) to ensure that the best interests of children are met. These objects are, first, by 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; second, by protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; third by ensuring that children receive adequate and proper parenting to help them achieve their full potential; and fourth, by ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
There are five principles specified in s 60B(2) and they are, except when it is or would be contrary to the best interests of a child. First, that children have a right to know and be cared for by both parents; second, that 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; third, that parents jointly share duties and responsibilities concerning the care, welfare and development of their children; fourth, that parents should agree about the future parenting of their children; and fifth, that children have a right to enjoy their culture, including the right to enjoy that culture with other people who share that culture. Section 60B(3) deals with the right of an Aboriginal or Torres Strait Islander child to enjoy his or her Aboriginal or Torres Strait Islander culture.
For a discussion of s 60B prior to the significant amendments in July 2006 see B & B; Family Law Reform Act 1995 (1997) FLC 92-775. It has been suggested that the objects section now needs to be “given a central place in the interpretation of Part VII of the Act, and this includes how Court’s should reach conclusions about what would be in the best interests of the children who are the subject of decision making”: see Patrick Parkinson, “Decision Making about the Best Interests of the Child: The Impact of the Two Tiers” (2006) 20 AJFL 179; see also the Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006). Parkinson also suggests that the objects provide much more guidance than previously about how to decide disputes about post separation parenting arrangements.
As to the two primary considerations, the first is the benefit to the child of having a meaningful relationship with both parents. The second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The terms “abuse” and ‘”family violence” are defined in s 4 of the Act.
Without repeating all of the 13 additional considerations they include the views of the child, the nature of the relationship of the child with each of the parents, the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent and the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents.
For a helpful discussion about the interpretation of s 60CC and the relationship between the primary and additional considerations see Butterworths, Australian Family Law, vol 1 at [s 60CC.10] - [s 60CC.27]. Parkinson also comments (supra) at p 181 that consideration of the additional considerations will usually amplify the primary ones at another level of detail or put another way, a detailed examination of the additional considerations may assist in determining the significance of the primary considerations and the orders to make. I observe that in Mazorski & Albright (2007) 37 Fam LR 518 Brown J dealt with the additional considerations (at 543-550) before her Honour dealt with the primary considerations (at 550- 551).
Section 60CG requires that I ensure that any order I make is consistent with any family violence orders and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount.
Section 61DA(1) provides that when making a parenting order I must apply a presumption that it is in the best interests of the child for the parents to have “equal shared parental responsibility” for the child. It is a presumption that relates solely to the allocation of parental responsibility as defined in s 61B. It is not a presumption about the amount of time a child spends with each parent. The presumption does not apply in certain circumstances.
Section 65DAC deals with the effect of a parenting order that provides for shared parental responsibility and specifies that the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child. Section 65DAC(2) provides that the order is taken to require that the decision is to be made jointly by the persons who have shared parental responsibility. The term “major long term issues” is defined in s 4 and includes issues relating to education and religious upbringing. However, s 65DAE makes clear that a shared parental responsibility order does not require consultation about issues that are not major long term issues unless a contrary order was made.
In Goode & Goode (supra) the Full Court said that there is a difference between parental responsibility which exists as a result of s 61C and an order which has the effect set out in s 65DAC.
Section 61DA(2) provides that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in child abuse or family violence. Further, s 61DA(4) provides that the presumption may be rebutted if I was satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility. In summary, if the presumption does not apply or is rebutted then I must determine, without any presumption, what order relating to parental responsibility, if any, would be in the child’s best interests, applying s 60CC and s 60B.
If I am satisfied that the presumption of equal shared parental responsibility does apply then by s 65DAA(1) I have to consider whether it would be in the best interests of the child to spend equal time with each parent and whether it is reasonably practicable for the child to spend equal time with each parent. If both conditions are satisfied I then must consider making an order for the child to spend equal time with each parent. In determining the first matter, namely whether it would be in the best interests of the child to spend equal time with each parent, I have to apply s 60C and s 60B. In determining the second matter, namely whether it is reasonably practicable, I am required to consider the matters in s 65DAA(5).
If I am satisfied that the presumption of equal shared parental responsibility does apply but that an order not be made for the child to spend equal time with each parent then by s 65DAA(2) I have to consider whether it would be in the best interests of the child to spend substantial and significant time with each parent and whether it is reasonably practicable for the child to spend substantial and significant time with each parent. If both conditions are satisfied then I must consider making an order for the child to spend substantial and significant time with each parent. Again, in determining the first matter namely whether it would be in the best interests of the child to spend substantial and significant time with each parent I have to apply s 60C and s 60B In determining the second matter, namely whether it is reasonably practicable I have to consider the matters in s 65DAA(5). Section 65DAA(3) sets out what is meant by substantial and significant time.
In Goode & Goode (supra) the Full Court said that in the event that neither the concept of equal time nor substantial and significant time “delivers an outcome that promotes” the best interests of a child then “the issue is at large and to be determined in accordance with” the best interests of the child. The best interests of a child are determined by consideration of the matters in s 60B and s 60CC.
In conclusion, as Brown J said in Mazorski & Albright (supra) at 523 the Act places far more emphasis on the importance of substantial parental involvement in their children’s lives. Her Honour said, with which I agree, at 524:
[15]…There is no doubt that the objects and principles, primary considerations (and a number of the additional considerations) and various statutory provisions relating to the presumption of equal shared responsibility, and the consequences of the presumption’s application, require the court to focus on the importance of maintaining a meaningful relationship between a child and both parents, and on the importance of a child spending substantial and significant time with a parent in order to achieve that aim.
and at 526:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Relocation
There is a great deal of case law dealing with the approach to be taken in cases when one of the proposals for the parenting of children is that the primary residence of the children be changed: AMS & AIF (1999) FLC 92-858; A & A: Relocation Approach (2000) FLC 92-035; H & L (2000) FLC 93-036; U & U (2002) FLC 93-112 and Bolitho & Cohen (2005) FLC 93-224. These are called relocation cases and have proven to be very difficult to deal with. The change of residence proposed may be intrastate, interstate or overseas.
One commentator has suggested that since the commencement of the Family Law (Shared Parental Responsibility) Act 2006 (Cth) the approach to such cases may have to be updated because of the changes made to the legislation: see CCH Australian Family Law and Practice Vol 3 at [80-300].
The issue was dealt with by Dessau J in M & S (2007) FLC 93-313 and her Honour concluded that it was appropriate to follow the pathway as outlined in Goode & Goode (supra) and that there is nothing in the legislation which explicitly alters the previous approach except that there is a legislative intent in favour of substantial involvement of both parents. In Godfrey & Sanders [2007] FamCA 102 Kay J adopted what was said by Dessau J in M & S.
In Bale & Jenkins [2007] FamCA 809, which was a relocation case where the relevant orders were made after the commencement of the amendments made by the Family Law (Shared Parental Responsibility) Act, Finn J said that the appeal was not a suitable vehicle for any significant statement of principle from the Full Court. More recently in Taylor & Barker (2007) 37 Fam LR 461 (Full Court) Bryant CJ and Finn J said that there was considerable discussion as to the appropriate order in which the relevant provisions of Pt VII namely s 60CC and s 65DAA should be considered in determining a case where there was a relocation proposal. However for my part I cannot discern from my reading of the judgment any significant statement of principle.
In my opinion the principles that I should continue to apply are set out in CCH Australian Family Law and Practice at [16-595] as follows:
31.1The best interests of the child are the paramount but not sole consideration.
31.2The party seeking to move the residence of the child is not required to demonstrate compelling reasons for the proposed relocation.
31.3I must evaluate the competing proposals of the parties.
31.4I am not bound by the proposals of the parties.
31.4I cannot determine the issues in a way that separates the issue of relocation from that of the best interests of the child. There is not a separate issue as to whether the relocation should be permitted.
31.5In evaluating the proposals I must weigh the evidence and submissions as to how each proposal would be in the best interests of the child.
31.6I must follow the legislative directions in s 60CA and 60CC.
31.7The object and principles of s 60B provide guidance to my obligation to consider the matters in s 60CC.
31.8I should also take into account a parent’s right of freedom of movement, but that right must defer if the welfare of a child would be adversely affected.
There may then be issues as to the appropriate order in which the relevant provisions of Pt VII are considered in determining a case where there is a relocation proposal. As the majority pointed out in Taylor & Barker (supra) the legislation gives no express direction or guidance. In that case the learned magistrate whose decision was the subject of the appeal appears to have dealt with the advantages and disadvantages of the various proposals when considering the matters in s 65DAA and the majority suggested that this was an “entirely appropriate approach”. For my part I have some difficulty with this.
In any event, obviously the various proposals should be considered when dealing with each of the primary and additional considerations set out in s 60CC having regard to the objects of Pt VII and principles underlying the objects. Then having dealt with the relevant considerations in s 60CC a determination is made as to which proposal is in the best interests of the child. It is at this point that it may be determined that the relocation proposal is in the best interests of the child. Then it is necessary to consider what parenting order to make and it is at this point that consideration has to be given to whether the presumption of equal shared parental responsibility applies or has been rebutted. If the presumption of equal shared parental responsibility does apply then consideration has to be given to the equal or substantial and significant time provisions in s 65DAA. In other words it is at the point of dealing with the matters in s 60CC that the advantages and disadvantages of the various proposals are dealt with and a decision then made as to what is in the best interests of the child.
However it may be that there is another approach. In Taylor & Barker (supra) Bryant CJ and Finn J said at pa 62:
[60] …It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the relevant s 60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s 65DAA.
…
[62] …However, given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subs (2) (“primary consideration”) and subs (3) (“additional considerations”) of that section it would seem only logical that the Court make findings regarding the matters contained in those sub sections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.
It may be that what is being suggested is that the Court must consider the primary and additional considerations and make findings regarding those matters in the context of consideration and evaluation of the proposals including the relocation proposal. However the Court should not then make a finding as to what proposal is in the best interests of the child until after consideration of the presumption of equal shared parental responsibility and depending on this finding until after consideration of the equal or substantial and significant time provisions.
BACKGROUND
The Mother was born in Victoria. She was educated in Victoria and lived with her parents until she was 23 years old. The Mother is the youngest of three children having two older brothers.
After completing school the Mother undertook a Bachelor of Education degree course at University which she completed in 1994. The Mother was then qualified to teach primary school children.
The Mother remained residing with her parents in their home in Victoria until 1995 at which time she travelled to the United Kingdom.
Between 1995 and 1997 the Mother worked as a primary school teacher in England in various schools in London gaining experience in the field of primary school education.
In 1997 the Mother returned to Australia and commenced to reside in her brother’s home in Victoria.
In 1997, after she returned to Australia, the Mother obtained employment as a primary school teacher in rural Victoria. The Mother remained in this employment until December 1998.
The parties first met in September 1998 while they were both on holidays in Queensland. Shortly thereafter they started “dating”.
The Mother contended, and I accept, that early in the parties’ relationship the Father would either travel to Melbourne every second weekend or she would travel to Sydney approximately once a month until the beginning of 1999.
The Mother applied for and was successful in obtaining a position as a teacher at H Primary School in the eastern suburbs of Melbourne. In late 1998 the Mother informed the Father that she had successfully obtained a position at H Primary School and the Father said that he would cease employment in Sydney and would move to Melbourne.
In January 1999 the Mother commenced to reside in accommodation in central Melbourne.
The Mother taught at H Primary School from late January 1999 until mid November 2000. She was earning approximately $50,000 per annum plus employer superannuation. The Mother was a level 4 primary school teacher which she described as a relatively senior position within the Victorian Department of Education and Training. She said, and I accept, that there was only one level above her as an “accomplished” teacher which is a category of teachers within the Victorian educational system.
In about early February 1999 the parties commenced to live together in rented accommodation in Melbourne.
Shortly after the Father commenced to reside in Melbourne he obtained employment with a leading airline company. The Mother said, which I accept, that the Father obtained this employment prior to leaving Sydney.
Approximately six months after he arrived in Melbourne the Father ceased employment with the airline company and then applied for and obtained a position in Melbourne with X Corporation. The Mother said, and I accept, that the Father commenced employment with X Corporation in approximately August/September 1999.
Throughout 1999 and 2000 both parties remained in paid employment and continued to live in rented accommodation in central Melbourne.
In about July 2000 the parties become engaged to marry.
In mid 2000 the parties had a conversation during which the Father said that he had been offered a position with X Corporation in Sydney which would be a promotion and “better money for us”. He said that it would be necessary to live in Sydney. The Mother said that at the time, being recently engaged and wanting to support the Father, she agreed that she would support the Father’s career and relocate with him to Sydney.
In mid November 2000 the Mother resigned her employment at H Primary School so as to accompany the Father to Sydney.
In November/December 2000 the parties commenced to reside in rented accommodation in Sydney.
After commencing to live in Sydney the Mother applied for registration as a primary school teacher with the New South Wales Department of Education.
The Mother contended, and I accept, that after arriving in Sydney she could not obtain employment as a primary school teacher for some time. She did however, seek and obtained what she described as a couple of brief casual postings at primary schools along the northern beaches of Sydney but could not obtain a permanent position.
The parties were married in April 2001.
In about July 2001 the Mother was successful in obtaining employment at V Public School as a grade 6 teacher for six months and thereafter as a grade 1 and grade 2 teacher for the following 12 months. The position was a “temporary” position.
In the later part of 2002 the Mother ceased employment at V Public School because she was pregnant.
In March 2003 the child J was born. At this time the Mother was not in paid employment.
The Mother contended that the Father worked long hours commonly leaving home at approximately 6:00 am and not returning home until approximately 7:00 pm. As well, after the Father resumed living in Sydney he continued his studies for a Masters degree at University. The Mother contended that in the final year of his course the Father often did not return home until 10:00 at night at least two evenings per week and as well, devoted much of his weekend time studying for his final year examinations. As well, during his final year the Father had to attend “residentials” and he lived on the university campus for up to a week at a time for approximately four to five times during that year.
The Mother contended that following the birth of the child J and during the final year of the Father’s degree course the marriage started deteriorating. She contended that the Father was rarely at home on an increasing basis and that communication between the parties deteriorated.
When the child J was approximately ten months old the Mother again fell pregnant. She said that it was an unplanned and unexpected pregnancy. The Mother gave evidence of a conversation she had with the Father when she informed him that she was pregnant. I will not repeat what she contended the Father said. The Father denies that he was not happy about the pregnancy. The Mother however contended that the parties had conversations about the Mother’s weight and this was admitted by the Father although he contended that the discussion was in the context of concern about the Mother’s health.
The Mother also contended that during the pregnancy the Father pressured her about financial matters and she gave evidence as to what she contended he said. She contended that, among other things, the Father said that she would have to get “a job” and that the parties would have to sell the home.
In about mid 2004 the parties and the child J went for a holiday to North Queensland for approximately one week. After they returned to Sydney the Father immediately left for a skiing holiday accompanied by persons who were also undertaking the Masters course. The Mother gave evidence about a conversation the parties had in relation to the Father’s skiing trip. The Mother contended that after the Father returned he continued to show little interest in her or the child J.
The child L was born in October 2004.
The Mother contended, and I accept, that the marriage continued to deteriorate after the birth of the child L.
The Mother contended that the Father continued to apply pressure on her to obtain employment and she gave evidence of what he used to say to her.
The Mother also contended that the Father appeared disinterested in the child L and that he did not participate in tasks in relation to the care of the child.
The Mother also contended that after the birth of the child L she observed that the Father continued to come home “later and later and spending less and less time at home”.
As well, the Father commenced leaving for work earlier and sometimes at 5:30 am to 5:45 am. The parties had a discussion about the time the Father left in the morning and he said that he had to go the gym. In cross examination the Father said that he would leave early in order to go to a gym.
The Mother also contended that the Father spent less and less time at the home on weekends. She gave evidence of conversations the parties had about the Father’s absence from the home.
In late 2004 until July 2005 the paternal grandmother cared for the child J at her home, on Thursdays of each week from 9.30 am until Thursday afternoon.
In February 2005 the Mother was offered a casual teaching position at W Primary School for one day per week. The parties had a conversation about the Mother accepting this position and the Father said that it was a great idea and that he would stay at home one day a week and work from home and care for the child L. The Mother said she would try it although she did not think it was best for the child.
The Mother contended that by this stage, with the repeated threats of selling the home unless the Mother retained employment, and what she described as relentless pressure by the Father for her to obtain paid employment, she decided to accept the position at W Primary School. To enable her to undertake this employment she had to express milk on a daily basis first thing in the morning and feed the child prior to leaving home and feed the child immediately on returning home.
In early 2005 the Mother resumed part-time employment as a teacher working one day a week. The Father cared for J and L at home initially and thereafter cared for L and took J to and from preschool.
The child J commenced preschool in early 2005.
The Mother also gave evidence about what she observed when she returned home and she contended that the Father was giving little attention to the health and welfare of the child L.
In February 2005 the Mother accepted a position working two days per week as a Teacher.
The Mother contended that approximately five weeks after commencing the position she formed the view that it was not working and that it was in the best interests of the child L if she ceased employment. The parties had a conversation and the Mother contended that during the conversation the Father told the Mother she would have to keep working.
The Mother also contended that after this initial four/five week period working once a week she formed the opinion that the Father had formed a relationship with another woman who was also a student in the Masters course. She gave evidence of conversations the parties had which I need not repeat in this judgment. The Mother contended that ultimately the Father admitted that he was having an affair, that he was having a relationship and that he did not love the Mother. The Mother contended that she said that she did not want to lose the Father or the marriage and that they had two very young children and she wanted to work it out and the Father said that he did not love her and that he was sorry. The Father was cross examined at some length about these conversations.
In late March 2005 the parties separated on a final basis. The Mother resigned from her employment.
From late March 2005 to the end of April 2005 the Father attended at the Mother’s residence two evenings per week to care for the children including bathing, reading and putting them to bed. The Father also has the children on either a Saturday or a Sunday in each week.
In March 2005 the parties agreed not to introduce the children to any new partner for 12 months.
In May 2005 the parties attended mediation and resolved property matters. It was agreed that the Mother receive 65 per cent of the net proceeds of sale of the matrimonial home. Thereafter the Mother received 65 per cent of the Father’s interest in his superannuation fund.
The Mother contended that in the year ended 30 June 2004 the Father earned about $178,000. The Mother contended that in year ended 30 June 2005 the Father earned about $188,000.
In July 2005 the parties sold the former matrimonial home and thereafter the Mother moved with the children to rented accommodation at C.
In September 2005 the Mother declined to allow the children to stay with the Father on Saturday nights.
The Father contended that in September 2005 he commenced a relationship with Ms S. I note however that there was put in evidence a copy of an e-mail the Husband sent on 31 October 2004 to “[…]” in which he said “I miss you”.
In December 2005 the Mother informed the Father of her intention to resume paid employment two days per week.
Throughout 2006 the Father sought to spend more time with the children but the Mother at all times declined to provide the Father with additional time.
In early 2006 the child L commenced preschool. Thereafter the Mother removed the child L from preschool.
In January 2006 the Mother indicated her desire to relocate to Victoria. The Father contended that thereafter the Mother declined to allow the children to spend time with the Father and the paternal grandmother as previously agreed.
The Mother contended that upon being promoted to a professional position the Father structured his income so that he receives a reduced base salary of $105,000 with the balance of his income being by way of bonuses and commissions.
In February 2006 the Father purchased a Monaro motor vehicle for approximately $55,000.
On 2 February 2006 the parties attended further mediation to discuss the Mother’s wish to relocate to Victoria.
The Father contended that on 7 February 2006 he tried to reach an agreement with the Mother in relation to taking the children on a holiday to Queensland for four days. The Mother did not agree.
On 13 February 2006 the Mother ceased to make the children available to spend Monday overnight with the Father as previously agreed. Thereafter the Father sought for the children to spend more time with him.
On 15 February 2006 the Mother declined to allow the child L to spend time with the paternal grandmother on Thursdays as previously agreed.
On 3 March 2006 an application was filed by the Father seeking both interim and final orders.
On 7 April 2006 the Mother filed a response and also sought orders for spousal maintenance.
On 7 April 2006 the Mother confirmed her intention to resume paid employment on a full-time basis.
On 11 April 2006 orders were made providing for the children to reside with the Father from 5.00 pm on Wednesday to 8.00 am on Thursday and 5.00 pm on Saturday to 5.00 pm on Sunday. The children have spent time with the Father in accordance with these orders. The Father contended that he has a good relationship with both children, that he has exercised regular contact with them to the present time consistent with the orders and has bonded to the children.
The matter was then transferred to the Federal Magistrates Court.
On 5 June 2006 the Mother withdrew the child L from childcare.
On 9 August 2006 an order was made that the Father pay spousal maintenance in the sum of $400 per week.
In August 2006 the Mother moved from the C property. The Mother and the children currently reside in rented accommodation at M.
In October 2006 a written request for further time with the children was made by the Father. There was no response from the Mother.
On 15 November 2006 the matter was transferred from Federal Magistrates Court to the Family Court. Directions were then made for the hearing of the children’s matter in the Less Adversarial Trial program. The application for spousal maintenance was stood over for a Pre-Trial Conference on 24 July 2007.
In December 2006 the Father sought to discuss schooling for the children with the Mother. The Mother expressed her desire for the child J to attend R Public School or failing that M Public School. The Father preferred that the children attend a private school.
In January 2007 the Mother agreed to the child L commencing preschool when he is aged three years.
On 10 January 2007 the matters were consolidated and the Pre-Trial Conference vacated.
On 12 March 2007 the hearing before me commenced.
In April 2007 the Father requested that the Mother provide him with a copy of the Birth Certificates and Certificate of Baptism for the child J to allow him to enrol the child in schools for February 2008. The Mother declined to provide the necessary documents.
On 8 April 2007 the Mother alleged she has been unsuccessful in obtaining casual employment in New South Wales as a Teacher.
On 21 December 2007 the Mother made an application to reopen her case and rely upon certain paragraphs of an affidavit she swore on 19 December 2007. I granted such leave and neither party sought to call any further evidence or cross-examine the other.
The Mother gave evidence that on 18 December 2007 she became aware that she had successfully secured an appointment as a full-time primary teacher at H Primary School in Melbourne for the 2008 calendar year. The employment is scheduled to commence on 29 January 2008 and would result in the Mother being able to earn in excess of $60,000 per annum.
The Mother said that the employment will mean that she would no longer seek spousal maintenance from the Husband.
The Mother said that it is her expectation that the position would be long term and that she could not foresee any reason why it would not be renewed at the end of 2008.
CIRCUMSTANCES OF THE PARENTS
I have already identified the orders sought by each parent and it is apparent where the parties are at issue.
The Father put forward a regime for the care of the children if the Mother resided in Sydney namely:
·Sunday night with the Mother;
·Monday night with the Father;
·Tuesday night with the Mother;
·Wednesday night with the Father;
·Thursday and Friday nights with the Mother;
·Saturday night with the Father.
The proposals would see the children changing households almost every second night.
Then when the child J attends school the Father proposes that during the school term the children live with him from after school on Wednesday until 5.00 pm on Saturday or six nights in each fourteen day period and during school holidays. The Father sought other periods that I need not repeat.
The Father also put forward a regime for the care of the children if the Mother resided in Melbourne namely, that the children reside with him in Sydney and spend time with the Mother as agreed and then when the child J attends school for one half of the school holidays.
The Father put no proposal as to the arrangements for the care of the children on the basis that both parents resided in Melbourne. The Father put no proposal as to the arrangements for the care of the children on the basis that Mother resided in Melbourne with the children and he remained in Sydney.
The Mother put forward a proposal as to what should occur if:
·she and the children resided in Melbourne and the Father resided in Sydney; or
·both parents resided in Melbourne; or
·both parents resided in Sydney on the basis that the Mother was “not permitted” to live in Melbourne.
As to the Mother’s third proposal, in my opinion it is not a question of whether she should be “permitted” to live in Melbourne. The Mother is free to live in Melbourne if she chooses to do so. At issue is whether it is in the best interests of the children that they ordinarily reside with the Mother in Melbourne. However the effect of this proposal is that the Mother contemplates that if I decided that it was in the best interests of the children to reside in Sydney then she would remain in Sydney and thus it could be argued that I need not consider the proposal of the Father whereby the children would ordinarily reside with him. The Mother proposes that in the event the children ordinarily reside in Sydney and she also resides in Sydney then the children reside with the Father during the school term for three nights in each 14 day period. However, as the Father has not put forward any proposal as to what should happen if I decided that it was in the best interests of the children to reside with the Mother in Melbourne, I conclude that the Father does not put forward as a possible outcome that both parents would reside in Melbourne.
The Mother put forward the following as the reasons for why the relocation would be in the best interests of the children:
·The children and the Mother shall all enjoy a higher standard of living, due to the cheaper costs of living in Melbourne which will enable the Mother, for the same money she is currently expending, to house the children in superior accommodation in Melbourne.
·The lower costs of living in Melbourne will enable the Mother to have less financial restriction (than that which she currently suffers from) and hence will have a greater ability to facilitate additional expenditure relating to the care, education and advancement of the children.
·The ability of the Mother to obtain employment as a school teacher in Melbourne optimises the Mother’s ability to care for the children whilst working, as effectively she will only be working when the children are at school, and in an ideal scenario, will otherwise be available to care for and raise the children. Unlike many other working mothers, whose employment precludes them from spending school holiday time and after school time with the children, the Mother’s ability to obtain gainful employment as a school teacher in Melbourne not only reduces the burden of supporting the Mother, (whether that burden is shouldered by the Father by way of spousal maintenance or otherwise) whilst at the same time optimising the Mother’s ability to continue caring for the children as she has done since they were born.
·The Mother has a social and support network in Melbourne which she does not enjoy in Sydney.
·The Mother’s extended family are all in Victoria, just over one hour from Melbourne, thereby facilitating greater opportunity for the children to spend time with this extended family, socialise with cousins of the same or similar age, whilst giving the Mother a practical and substantial support network which the current geographical disparity precludes to the same extent.
·The Father and his family shall be only an hour’s flight away from the children.
The Mother had also relied upon the probability of her obtaining gainful employment in Melbourne in her chosen career, as opposed to her current inability to obtain such employment whilst living in Sydney, and that this would enable her to generate further income towards the maintenance, advancement and betterment of the children. As it transpired the Mother succeeded in obtaining such employment.
In summary, the Mother submitted that her proposals will still enable the children to have a meaningful relationship with both of their parents. The Mother proposes that should she be permitted to relocate the children to Melbourne, and the children spend time with the Father once per month during school term, one half of the first school holiday, the entirety of the second school holiday, the entirety of the third school holiday, and a further two weeks or so over alternate Christmas/New years. The Mother submitted that this proposal is preferable to that of the Father as despite the relocation, it gives the Father quality time in substantial blocks which will make his time with the children more settled and meaningful.
In August 2006 the Mother moved from the C property which was a three bedroom home costing her $540 per week in rent. The Mother and the children currently reside in rented accommodation at M. It is a small two bedroom townhouse with one bathroom and a small courtyard at the rear. The Mother occupies one of the bedrooms and the two boys occupy the other bedroom. The Mother currently pays rent of $450 per week. The rent exceeds the amount of spousal maintenance. The Mother said that the move from C to M was out of financial necessity as she needed to save the $90 per week. She contended that it is only a matter of time before she may have to relocate again to cheaper accommodation.
The Mother is currently in receipt of a total income of $1,265 per week which comprises $400 per week spousal maintenance, $470 per week child support, $370 per week government pensions and assistance and $24 per week interest income. She contended that her current weekly expenses are approximately $1,307.
The Mother has approximately $20,067 remaining capital in her bank account which is the residue of her property settlement. She additionally has approximately $2,390 in a bank savings account. Between approximately July 2005 and August 2006 the Mother spent approximately $25,000 in meeting the shortfall between her income and outgoings and was relying upon dwindling capital to survive and make up the shortfall in her income.
If the Mother is able to accept the position at H Primary School in Melbourne for the 2008 calendar year she will be able to earn in excess of $60,000 per annum.
The Mother had attempted to obtain casual employment as a primary school teacher. At the end of the 2005 school year and in preparation for the 2006 school year she sent her curriculum vitae to several primary schools in Sydney. She made follow up telephone calls in about January 2006 to each of the schools to which she had sent her curriculum vitae. She was informed on each occasion that there were no available positions.
Since separation the Mother also updated her details on “casual direct” which is a New South Wales Department of Education internet based teacher recruitment resource which is used by schools to source casual teachers.
In February 2006 the Mother also spoke to the proprietor of a pre school regarding work availability and was unsuccessful in obtaining a position.
The Mother said that all of her efforts since separation to obtain casual work have largely been unsuccessful. She obtained a half day at a north Sydney School in March 2006 and a full day at R Primary School in April 2006. She received approximately four or five other calls for casual work but they were on days when the children were not in childcare and there was insufficient time for her to arrange care for the children.
Until now the Mother has been limited to the amount of employment she can have due to the age of the child J and in particular, the child L who she cares for on a full time basis. However, by 2008 the children will turn five and three years of age respectively and the Mother believes that as the children get older it will be easier for her to obtain employment as well as care for the children.
On 5 June 2006 the Mother withdrew the child L from childcare. Before she made this decision she observed that the child was restless on return from childcare and at the time was only 19 months of age. However, she kept the child J in childcare for two days per week as she believed it benefits his social skills.
The Mother also said that since approximately 2006 the Father ceased making any direct payment or contribution towards childcare expenses which prior to that date had been made by way of the Father paying one half of the childcare fees by a payment into the Mother’s bank account.
The Mother gave evidence of her proposals for the care of the children in the event that she was residing in Melbourne.
If the Mother is permitted to relocate the children to Victoria she intends to reside in Melbourne and from 2008 onwards work as a primary school teacher. The Mother said that following various telephone enquiries she made to the Victorian Department of Education and Training and schools in the H region in Melbourne she was confident that she could easily obtain satisfactory and adequate casual employment as a primary school teacher and eventually full time employment. The Mother said that she would initially attempt to obtain a casual position in H and reside in that area with a view to seeking a full time position in 2009. As it transpired the Mother has a full time position available to her as from the beginning of the 2008 school year.
The Mother had re-registered with the Victorian Institute of Teaching and recently updated her profile and regime with “Recruitment Online” which schools in Victoria use to advertise jobs and to search for teachers looking for employment. The Mother contended that based upon her research she understood that whilst her employment prospects were strong she would have little difficulty obtaining casual employment in 2008 and full time employment as a primary school teacher in 2009 onwards.
The Mother also gave evidence to support her contention that she would be paid a higher salary in Victoria than in New South Wales with the same level of experience. She contended that she can earn more money in a full time position as a primary school teacher in Victoria than she can in New South Wales.
As I have already said the Mother gave evidence that on 18 December 2007 she became aware that she had successfully secured an appointment as a full-time primary teacher at H Primary School in Melbourne for the 2008 calendar year.
The Mother also gave evidence about the availability of accommodation in H in Melbourne. She annexed to her affidavit a copy of an internet search which she undertook on 23 April 2007 in respect of rental properties. She believes that she could rent a comfortable two to three bedroom home in H for approximately $380 to $400 per week.
The Mother also contended that childcare costs are less in Melbourne and again she gave evidence to support this contention. Among other things she annexed to her affidavit copies of information booklets from childcare centres.
In summary, the Mother contended, and I accept, that she and the children would be better off financially by her living in Melbourne because of the lesser costs of childcare on a daily basis, a higher full time salary and the savings she could make from either cheaper or superior accommodation for the same amount of rent she is currently paying.
The Mother also contended, and I accept, that she does not have any close social friends in Sydney and she gave evidence to support this contention.
The Father presently resides in a two bedroom rented accommodation. When the children spend time with him they share the same bedroom. The Father said that in his view his current accommodation is adequate because when the children are with him they spend a lot of time away from the flat.
The Father’s partner is a employed on a full time basis. The Father’s partner gave no evidence before me and on the last day of the hearing I was simply told that she was in Melbourne. The Father told me that his current partner is unable to move to Melbourne.
The Father contended that there are no available positions in Victoria with his current employer that are anything similar to what he has now.
During the relationship the parties at various times were in financial difficulties. The Father said that in 2004 the parties were struggling financially. Subsequent to separation the Father sold a motor vehicle for about $21,000 and used part of the funds to meet his “financial commitments” to the Mother and the children. The Father has only had his current employment position since January 2006. He is in management and was appointed to this role on a permanent basis in January 2006.
The Father swore a Financial Statement on 26 April 2006 and he disclosed a total average weekly income of $2,307 and total weekly personal expenditure of $3,490 being a difference of $1,183. His expenses included an amount of $143 for child minding. The Father disclosed total property of $92,578 and liabilities of $67,186. At the time he may have had $22,710 in bank accounts.
The Father swore a Financial Statement on 20 June 2006 and he disclosed a total average weekly income of $3,304 and total personal expenditure of $3,800 being a difference of $504.
The Father swore a Financial Statement on 17 April 2007 in which he disclosed an income of $3,595 per week or $186,940 per annum. The income includes pre tax income from employment of $3,271.45, interest income of $10 and a superannuation contribution by his employer of $324. The Father therefore has a pre tax disposable income of $3,281.45 per week or $170,635.40 per annum. The Father’s expenses are $4,230 per week. The expenses include superannuation of $324, rent of $485, loan repayments of $384 and spousal maintenance of $400. Thus, at present the Father has a deficiency of $948.55 per week. As to his assets including superannuation interests the Father has $61,645.51 which includes a motor vehicle of a value of $43,000. The Father’s liabilities, including legal fees, total $105,342. The Father has anticipated total costs of $46,464.11. He has paid $46,431.14 and the amount came from a loan he received from his parents.
The evidence of the Father establishes that he may be in financial difficulties even if he no longer had to pay spousal maintenance of $400 per week. According to his financial statement of 17 April 2007 his weekly income would be $3,281.45 and his weekly expenses reduced to $3,830. There is a history of financial difficulties even when the parties were together and I refer to the Mother’s evidence about the Father requesting that she obtain paid employment.
EVIDENCE OF FAMILY CONSULTANT
On 12 March 2007 evidence was given by a family consultant and she said:
I have had several discussions with the parents really about the ages of the children in this matter and whether there was any possibility of the parents being able to work together to gradually build up the relationship with the children with both parents. Now from talking with the parents about how the children, both children, [J] and [L], are with both parents it would seem that on one level the parents have actually done it extremely well because from my descriptions of the children with the parents it would seem that the children have actually developed quite a good attachment with each parent - it would seem to appropriately seek comfort from each parent, that each parent is quite appropriately able to soothe and calm each of the children when they are distressed, and I was particularly concerned about the younger child but both parents actually really confirm that the child is probably actually in some ways has done better than [J]. Because of their ages, your Honour, I have had a discussion with both parents about perhaps more needing to look at a gradually progressing arrangement should any changes occur, and we did have a discussion. In the last appointment I had with them we did have a discussion about some changes that could possibly occur that the parents agreed to, I would have to say somewhat reluctantly, your Honour, both parents. But they did agree that they would consider, for example, when [J] commences school, him having a Monday night with his father as well as the current arrangement and there was also a discussion about him starting to have dinner with his father on the Monday night. This is all in the context of the issue of relocation which is obviously I think, given the ages of these children, quite an issue. And I did have a discussion with the parents about - and the mother obviously feels that she has much more family support in [Victoria] which does, from my impression, seem to be her genuine reason for wanting to move. But from the father's point of view he impressed as feeling that that would marginalize him in terms of the children which he already feels - he feels that anyway. And that his family are here and that he was wanting the children to remain here.
I discussed with both parents the ages of the children. Really ideally children of this age to really maintain quite a solid relationship with both parents, because they need more frequency of contact than older children and can't sustain distance relationships as well as older children, I discussed with both parents the possibility of whether they could - either of them could move. And the reason for my second appointment, your Honour, was the father was going to explore the possibility of whether he could move to Melbourne because of his work. And the mother also - if that was an option, the mother seemed willing to move to Melbourne instead of [rural Victoria] or even if she did go to [rural Victoria] the practicalities of contact wouldn't have been much of a problem future but it was an option possibly in five years time. That is where we got to, your Honour, and I think that is the - my impression was if the both parents were remaining in the one place there was probably a highlight because within time they could probably both work together to reach a mutually agreed arrangement.
The Family Consultant also said:
Another question, your Honour, here is just to put to the parents in terms of compromise - is there a compromise about when - if it is impossible for both parents, for example, to remain in Sydney or both parents to move to Melbourne. I don't think it matters which from the children's point of view. I don't think that really matters. From the children's point of view it's having both their parents in the same location. If that is not possible, another question I think that needs to be put to the parents is, is there a compromise about when that happens. For example, is that something that is looked at in a certain amount of time. Like, for example, two years or something because then the children would be older and you have a little bit more time to have helped establish the children's relationship with both parents. If they are both older they could both handle longer separations, they would both be able to, you know, have their parent present in other ways, like phone calls and things like that. I mean, that is just another compromise area I think is necessary to put on the table, your Honour, because I see it's a no win situation really for the children unless the parents can reach some compromise.
It's not impossible as they are older and in terms of geographical distance. That is why I put is there a compromise about when, if relocation has to happen, a compromise about when that happens because if the children are a bit older it's not an impossible distance. We have much greater - it's not an impossible distance. But it is much more difficult the younger the children are.
BEST INTERESTS
I propose to first deal with each of the two primary considerations in s 60CC and then the 13 additional considerations in that section, having regard to the objects of Pt VII and the principles underlying the objects. I will then consider whether the presumption of equal shared parental responsibility does not apply or if it would not be appropriate in the circumstances for the presumption to be applied or if it is rebutted. If the presumption does apply and it is appropriate that it be applied and it has not been rebutted then pursuant to s 65DAA I will consider whether each child is to spend equal time or substantial and significant time with each parent.
Primary considerations
I am required to consider the benefits to each child of having a meaningful relationship with both of the parents. This is an important matter. It is important that the children have a meaningful relationship with both parents and this is agreed. I will return to this matter.
I am required to consider the need to protect each child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. This matter is not relevant in this case.
Secondary considerations
I am required to consider any views expressed by each child and any factors, such as the maturity or level of understanding of each child, that I think are relevant to the weight I should give to the views of each child. Section 60CD sets out how I may inform myself of views expressed by a child. However, I am not permitted to require a child to express views in relation to any matter: see s 60CE.
The Mother did say that the child J has expressed the view that he wishes to live in Melbourne and to “spend all my time with my cousins” which the Mother submits underscores the closeness of the relationship between the children and the Mother’s family and her nieces and nephews. The child J has also repeatedly requested to travel to Victoria to spend time with the Mother’s parents and with his cousins whom he wishes to play with.
Having regard to the age of the children I do not consider this matter to be particularly relevant.
The Family Consultant was of the opinion that she did not think that from the children's point of view it mattered whether the parents were in Sydney or both parents moved to Melbourne. She said that from the children's point of view it is having both parents in the same location.
I am required to consider the nature of the relationship of each child with each of the parents and other persons including any grandparent or other relative of each child.
This is an important matter. The Family Consultant said that the children have developed quite a good attachment with each parent; they appropriately seek comfort from each parent and each parent is quite appropriately able to soothe and calm each of the children when they are distressed.
I accept that the children have a close and loving relationship with both parents.
The Father contended that presently the children enjoy a good relationship with their extended family in Sydney in that the Mother concedes that her parents come to Sydney at least two or three times per year to see the children. The Father contended that there is nothing to prevent the Mother from travelling to Melbourne from time to time as she has done in the past to spend time with her extended family.
I accept that the children have very good relationship with members of the respective paternal and maternal families.
Although evidence was given by the Father and his mother about it I am unable to form any view about the relationship of the children with Father’s current partner.
I am required to consider the willingness and ability of each of the parents to facilitate, and encourage, a close and continuing relationship between each child and the other parent. In this context, I must also consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and in particular, the extent to which each of the parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to each child and to spend time with each child and to communicate with each child. I also have to consider the extent to which each of the parents has facilitated or failed to facilitate the other parent participating in making decisions about major long term issues in relation to each child and spending time with each child and communicating with each child. I am also required to consider the extent to which each of the parents has fulfilled or failed to fulfil his or her obligation to maintain each child. If the parents have separated I must also have regard in particular to events that have happened and circumstances that have existed since the parties separated.
This is an important matter. Both parties have made allegations against the other in relation to what has happened and I refer to what I have already said about the requests by the Father, prior to the current interim orders, to spend more time with the children.
I am of the view that the Mother would facilitate and encourage a close and continuing relationship between the children and the other parent if both parents lived in Sydney. I am the view that the Mother would facilitate and encourage a close and continuing relationship between the children and the other parent if both parents lived in Melbourne. I am the view that the Mother would facilitate and encourage a close and continuing relationship between the children and the other parent if the Mother and the children lived in Melbourne and the Father lived in Sydney.
The Mother contended that the Father says that provided the Mother remains in Sydney, the Father is willing to facilitate a continuing relationship between the children and the Mother, however, should the Mother be permitted to re-locate to Victoria, then the Father seeks to restrict the children’s ability to spend time with the Mother, initially by agreement only and thereafter to only one half of the school holiday periods. The Mother submitted that the Father shows a lack of willingness to meaningfully facilitate and encourage a close and continuing relationship between the children and the Mother except of terms satisfactory to the Father.
I do have some concerns about whether the Father would facilitate and encourage a close and continuing relationship between the children and the Mother and I refer to what was said if the Father and the children lived in Sydney and the Mother lived in Melbourne. I do not have as much confidence in the Father as I do in the Mother. I infer that the Father contends that this is not relevant because the Mother would remain in Sydney if I resolved that it was in the best interests of the children to remain in Sydney.
I am required to consider the likely effect of any changes in the circumstances of each child including the likely effect on each child of any separation from either parent or any other child or other person including any grandparent or other relative of each child, with whom each child has been living.
This is a very significant matter and having regard to the ages of the children was of concern to the Family Consultant. I understand Family Consultant to say that ideally children of this age in order to maintain quite a solid relationship with both parents need more frequency of contact than older children and can not sustain distance relationships as well as older children. Put another way, for children of tender years to develop a relationship with the non primary attachment parent the need is not so much the amount of time with the non primary attachment parent but the amount of the time or delay between when they spend time with the non primary attachment parent. I may have misinterpreted what she said but the effect is clear.
The Father contended that the continuity of contact would not be available for him in the event of the Mother relocating with the children to Melbourne. Effectively it would eliminate the Father’s availability during the working week and would confine such contact times to weekends which of itself would be limiting in terms of a number of days per week.
The Father also contended that the children’s relationship with his current partner may suffer as a consequence of the children being in Melbourne in that, if she were to see them regularly it would add to the burden of expense of her having to travel to Melbourne on a regular basis as well. The proposition of the children flying to Sydney for contact would be too exhausting given their ages.
I am not so concerned about the children’s relationship with the Father’s current partner because, among other things, I did not see or hear from her. However I do accept what the Father submitted as to the continuity of his relationship with the children and the difficulties if the proposal that the Mother and the children reside in Melbourne was adopted and the Father remained in Sydney. It is a matter to which I must attach significant weight.
The Father contended that the parents currently are located in Sydney within a reasonable distance of each other and the logistics of contact and continuity of contact in Sydney certainly outweigh any arrangements that might be put in place between Sydney and Melbourne.
This matter would not be important if both parents lived in Sydney or Melbourne. There may be an effect on the children however, if they lived in Melbourne with the Mother and the Father remained living in Sydney. The children would spend less regular time with the Father and this is of some concern given the ages of the children. Obviously there would also be an effect on the children if they lived with the Father in Sydney and the Mother lived in Melbourne. If this happened the children would spend less regular time with the Mother and this would again be of concern given the ages of the children. However again I infer that the Father contends that this is not relevant because the Mother would remain in Sydney if I resolved that it was in the best interests of the children that they remain in Sydney.
I am required to consider the practical difficulty and expense of each child spending time with and communicating with a parent and whether that difficulty or expense will substantially effect the right of each child to maintain personal relations and direct contact with both parents on a regular basis. This is an important matter.
The Father contended that the frequency of time he could spend with the children if they relocated to Melbourne would be confined principally to weekends. A continuity of weekend contact could not always be guaranteed having regard to the cost of travel, the need to house himself and the children in Melbourne and dealing otherwise with the realities of life such as late arrivals, late departures by airlines, cancellations and so on.
The Father contended that he would necessarily be required to acquire accommodation in the Melbourne to have the children for any meaningful period of time on weekends and that of itself would logistically cause difficulties and unnecessary expense. It would impact on his relationship with his present partner and would limit the number of occasions the children would see, in a reasonable way, their paternal grandparents.
The Father would need to obtain return tickets, Sydney/Melbourne/Sydney, on a regular basis and even if bought on discounted fares would be a significant cost to him. In terms of a location for contact overnight in Melbourne there would be further substantial costs and no doubt cost of hiring a motor vehicle, parking in Sydney and so on.
The Father contended that the quality of time would be significantly different in that the children would be forced to see him in an environment not known to them and which presumably would vary from time to time, for example, in the case of a motel, or in a house which would need to be rented by the Father on a full-time basis in Melbourne and would need to be furnished etc. The cost of that proposal would be prohibitive.
If both parents lived in Sydney or Melbourne this matter would not be particularly relevant subject to the amount of time the children spent with each parent. If the Mother lived with the children in Melbourne and the Father remained in Sydney then there would be practical difficulties and expense of the type outlined by the Father for the children spending time with the Father during the school term. If the Father lived with the children in Sydney and the Mother lived in Melbourne then again there would be practical difficulties and expense of the children spending time with the Mother.
I am required to consider the capacity of each of the parents and any other person including any grandparent or other relative to provide for the needs of each child, including emotional and intellectual needs.
I am satisfied that the Mother has the capacity to provide for the needs of each child including their emotional and intellectual needs wherever the Mother and the children lived. The Mother has been the primary carer of the children and I have no doubt given, among other things, the Father’s obligations to his studies and employment that the Mother played a far greater role in the care of the children. In my view, this has continued since the parents separated.
I also have no doubt that the Mother’s capacity to care for the children would be enhanced if she ordinarily resided in Melbourne with the children. Overall I accept the Mother’s evidence about the advantages to her of living in Melbourne in relation to paid employment, accommodation, support and so on. This is a matter to which, in the circumstances of this case, I attach significant weight. It is of concern that the Mother has had difficulty with accommodation since the parties separated. It is also of concern that she has had difficulty in obtaining secure employment. The Mother has been the primary carer and she has not had the support of her family.
So far as the Father is concerned I am satisfied that he has the capacity to provide for the needs of the children including their emotional and intellectual needs. However, I also have no doubt that from time to time he has relied upon, and will continue in the future to rely upon, the assistance of others such as his mother with the care of the children. The Father’s mother, the paternal grandmother, and his father, the paternal grandfather, gave evidence. I assume that the Father would change his pattern of work hours as contended by the Mother namely leave home at 6.00 am and return at 7.00 pm
I am required to consider the maturity, sex, lifestyle and background including lifestyle, culture and traditions of each child and of either of the parents and any other characteristics of each child that I think are relevant. This is not an important matter in this case.
I am required to consider the attitude to each child and to the responsibilities of parenthood demonstrated by each of the parents. In this context, I must also consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and in particular, the extent to which each of the parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to each child and to spend time with each child and to communicate with each child. I also have to consider the extent to which each of the parents has facilitated or failed to facilitate the other parent participating in making decisions about major long term issues in relation to each child and spending time with each child and communicating with each child. I am also required to consider the extent to which each of the parents has fulfilled or failed to fulfil his or her obligation to maintain each child. If the parents have separated I must also have regard in particular to events that have happened and circumstances that have existed since the parties separated.
I am satisfied that the Mother has an appropriate attitude to each child and to the responsibilities of parenthood. I have confidence that this will remain so wherever the children may ordinarily reside.
I am also satisfied that the Father has an appropriate attitude to each of the children and to the responsibilities of parenthood. I also have confidence that this will remain so wherever the children may ordinarily reside.
I am required to consider any family violence involving each child or a member of each child's family. I am also required to consider any family violence order that applies to each child or a member of each child's family if the order is a final order or the making of the order was contested by a person. The term "family violence order" is defined in s 4 of the Act to mean an order including an interim order made under a prescribed law of a State or Territory to protect a person from family violence. The parties to the proceedings must inform me of any family violence order if they are aware that a family violence order applies to the child or a member of the child's family. In considering what order to make I must to the extent that it is possible to do so consistently with the best interests of each child being the paramount consideration ensure that any parenting order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence: s 60CG(1). I may also include in any order any safeguards that I consider necessary for the safety of those affected by the order; s 60CG(2). This matter is not relevant in this case.
I am required 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 each child.
It is very difficult to predict what proposal would be least likely to lead to the institution of further proceedings in relation to each child. It may be that the proposal which may least likely lead to the institution of further proceedings would be if both parents resided in the same city whether in Sydney or Melbourne. On the other hand given the level of conflict and the difficulties the Mother has experienced living in Sydney there may be further proceedings whatever I do.
I am required to consider any other fact or circumstance that I think is relevant. There is nothing further I wish to say at this point.
In Taylor & Barker (supra) it was suggested that it is at this point that I consider the possibility of relocation by the Father to Melbourne. I express no view about the correctness of this. However as I have said the Father does not propose to relocate to Melbourne because of his prior residence in Sydney, his employment, his family and his relationship with his current partner. In any event I have considered the impact of this possibility in the context of dealing with each of the considerations.
I accept that the position adopted by the Father that he not move to Victoria could not be described as unreasonable. However so far as the Mother is concerned it may also be relevant to consider again at this point that the position adopted by her could not be described as unreasonable given, among other things, her prior residence in Victoria, her proposed employment and her family support.
Conclusion-best interests
In my opinion, in the circumstances of this case there are four possible outcomes. There are advantages and disadvantages of each of the proposals. I am also of the opinion that there will be an impact on the children whatever I do.
Now at this point if I adopted the first approach that I have outlined above I would make a finding as to which proposal was in the best interests of the children. However the second approach would suggest that I not do so until after consideration of the presumption of equal shared parental responsibility in s 61DA(1) and if the presumption does apply then considered pursuant to s 65DAA the issues of equal time with each parent or substantial and significant time with each parent. The first approach may make the task easier and more understandable. However it may not matter which approach is adopted. I will adopt the second approach.
PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY
In all the circumstances of this case, I am satisfied that there are no reasonable grounds to believe that a parent or a person who lives with a parent has engaged in child abuse or family violence and thus the presumption of equal shared parental responsibility does apply. Further, I am satisfied that the presumption has not been rebutted as it has not been established that it would not be in the best interests of each child for the parents to have equal shared parental responsibility.
TIME SPENT WITH EACH PARENT
As I am satisfied that the presumption of equal shared parental responsibility does apply I have to consider whether it would be in the best interests of each child to spend equal time with each parent and whether it is reasonably practicable for each child to spend equal time with each parent. If I do not propose to make an order for the children to spend equal time with each parent then I have to consider whether it would be in the best interests of each child to spend substantial and significant time with each parent and whether it is reasonably practicable for each child to spend substantial and significant time with each parent.
If the Mother and the children resided in Sydney then on the basis that the Father remained in Sydney the children would be able to spend more regular time with the Father during the school term. As well, the children would be able to spend more regular time with the members of the paternal family and perhaps the Father’s current partner. Further, the practical difficulties and expense identified above would be avoided.
The disadvantages of the proposal include that the Mother would not be able to have the benefit of the support of her family nor the accommodation and employment advantages available to her in Victoria. Again I repeat that the Mother has successfully secured an appointment as a full-time primary teacher in Melbourne for the 2008 calendar year. In other words I accept that the Mother would be able to more effectively parent the children if she resided in Victoria with the children.
The Mother has been the primary carer and I am satisfied that even if I made the orders as sought by the Father this is likely to continue in the future. In other words if I made orders that had the effect that the children would ordinarily reside in Sydney and the Mother remained in Sydney I am of the opinion that it would not be in the best interests of the children that they spend equal time with each parent. The Mother has been the primary carer. The children are more closely bonded to the Mother. I have concerns that the Father could care for the children without the assistance of others. I have concerns about the financial arrangements. I have concerns about the relationship of the parties. I do not accept that the Husband and the Wife are able to communicate with each other sufficiently well enough and make decisions such that it could be said they have an appropriate working arrangement. Finally, I have no evidence from the Father’s current partner.
If the Mother and the children resided in Sydney then on the basis that the Father remained in Sydney the children would be able to spend substantial and significant time with the Father during the school term. The current orders provide for substantial and significant time.
If the Mother and the children resided in Melbourne on the basis that the Father remained in Sydney the advantages are that the Mother would be able to have the benefit of the support of her family and the accommodation and employment advantages available to her in Victoria. The Mother would be able to more effectively parent the children. The children would also be able to spend more regular time with the members of the maternal family.
However, without being too repetitive, the disadvantages are that the children would not be able to spend more regular time with the Father during the school term. Further they would not be able to spend more regular time with the members of the paternal family and perhaps the Father’s current partner. Further there would be practical difficulties and expense for the Father to spend time with the children during the school term.
However unlike the Father the Mother does propose that the Father have the opportunity to spend time with the children during the school term and also more extensive time during the school holidays. I accept that this would enable the children to have a meaningful relationship with the Father. I adopt what Kay J said in Godfrey & Sanders (supra) namely that “… [e]ven if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”. It would enable the parents having a meaningful involvement in the lives of the children to the maximum extent consistent with their best interests.
It would not however be reasonably practicable for the children to spend equal or substantial and significant time with the Father during the school term.
If the Father and the children resided in Sydney on the basis that the Mother resided in Melbourne then the disadvantages are obvious and clearly outweigh any advantages, among other things, given that the Mother is and has been the primary carer.
If the Mother and the children resided in Melbourne on the basis that the Father moved to Melbourne then the advantages include those I have already identified in relation to the benefits to the children of the Mother residing in Melbourne. Further the children would be able to spend more regular time with the Father during the school term. Further the practical difficulties and expense identified above would be avoided.
However as I have already said, I am of the opinion, for reasons given, that it would not be in the best interests of the children that they spend equal time with each parent even if the Father resided in Melbourne. The children would be able to spend substantial and significant time with the Father during the school term and I am satisfied that this would be in there best interests.
The disadvantages are the Father would have to change his employment. Further the children would not be able to spend as much regular time with the members of the paternal family and perhaps the Father’s current partner.
CONCLUSION
I am satisfied, as I have already found, that the children have a close and loving relationship with both parents. I am satisfied that it is important that these relationships be maintained and fostered. It is in the best interests of the children that they have a significant relationship with both parents.
I accept, particularly having regard to the ages of the children, there are concerns that in the event that the Mother resided with the children in Melbourne and the Father remained residing in Sydney then this may have an effect on the relationship of the children and the Father and again I refer to what was said by the Family Consultant. I am mindful of the opinion of the Family Consultant. However the children are now four and three years of age. Of course it follows that there are matters of concern if the children ordinarily resided with the Father in Sydney and the Mother resided in Melbourne.
I have already found that I accept the evidence of the Mother as to the advantages to her of residing in Melbourne and in my opinion these matters are very material. The Mother had always lived and worked in Victoria and she only moved to New South Wales because the Father obtained in the course of his employment a transfer and I assume an opportunity to enhance his employment prospects. However, the parties have now separated and in my view there are very good and genuine reasons why the Mother seeks, and should have, the opportunity to return to Victoria. The Mother has now successfully secured an appointment as a full-time primary teacher at H Primary School in Melbourne for the 2008 calendar year.
I note that on behalf of the Father it was submitted that even if the Mother were correct in her assumptions as to availability of accommodation and employment in Melbourne those factors alone should not significantly impact upon a determination of what is in the best interests of the children and that it would seem to be more in line with what is in the best interests of the Mother. This submission is not very encouraging of the future relationship of the parents. The same could be said about the Father not moving to Melbourne.
Taking into account all factors, in my opinion, the proposal which would best advance the interests of each child would be that the children ordinarily reside with the Mother in Melbourne and the Father relocated to Melbourne. If however, the Father chooses not to relocate to Melbourne I am of the opinion that the proposal which is in the best interests of each child is that the children ordinarily reside with the Mother in Melbourne and spend time with the Father during the school term and what is cumulatively more than equal time during school holiday periods. I accept that there may be practical difficulties in relation to the children spending time with the Father during the school term. However it will enable the Mother to more effectively parent the children and enable the children and the Father to have a meaningful relationship. I am confident the Mother will do all things necessary to facilitate and foster the relationship. As well I would expect that the Father would do all that he can to maintain and enhance his relationship with the children.
I propose to make the orders sought by the Mother. However they will not come into effect until the beginning of 2008. The intention is that the arrangements will effectively commence in mid January 2008 and enable the Mother to be in Victoria as from the beginning of the 2008 school year. I am also going to put in place an arrangement to deal with the possibility that the Father may relocate to Victoria. However I accept that if this happened, depending on the circumstances at that time of each parent and the children, the arrangement may have to be reviewed.
SPOUSE MAINTENANCE
Section 74 of the Family Law Act, which has been described as the basal provision in the Act in relation to spousal maintenance provides that in proceedings with respect of the maintenance of the party I may make such order as I consider proper for the provision of maintenance in accordance with Part VIII. Section 72 provides that a party to the marriage is liable to maintain the other party to the extent that the first mentioned party is reasonably able to do so if, and only if, that other party is unable to support her or himself adequately whether by reason of having the care and control of the child of the marriage who has not attained the age of 18 years, by reason of age or physical or mental incapacity for appropriate gainful employment, or for any other adequate reason, having regard to any relevant matter referred to in s 75(2).
In the Marriage ofMitchell (1995) 19 Fam LR 44 at p 59, the Full Court said that the question of whether the applicant can support herself or himself adequately is not to be determined by reference to any fixed or absolute standard but having regard to the matters referred to in s 75(2) and more specifically the paragraphs of that sub-section.
Spouse maintenance-conclusion
The Mother currently receives $400 per week spousal maintenance from the Father pursuant to orders dated 9 August 2007, which were made after a contested hearing and from which the Father did not appeal against the decision. On behalf of the Mother it was submitted that nothing has changed to warrant a departure from that existing order.
The Mother’s Financial Statement sworn 26 April 2007 details her ongoing need and evidences her ongoing inability to support herself adequately, without ongoing spousal maintenance of $400 per week.
The Mother had sought spousal maintenance only until 1 February 2010, excluding any period during which she has full time employment. It was submitted that her application evinced her bona fides in seeking spousal maintenance only until such time as the children are old enough to enable her to cope with both paid employment and raising the children, rather than seeking an open-ended order. The application effectively acknowledged that such spousal maintenance should be available whilst the children’s young ages require her full or near full–time attention for the near future, but that there is a responsibility on the part of the Mother to mitigate her position, and the orders sought by the wife reflect that responsibility.
I accept that the Mother is presently unable to support herself adequately by reason of her having the care and control of the children of the marriage and also by reason of her current incapacity for appropriate gainful employment. However this will change and in 2008 the Mother will have a full-time position as a primary teacher at H Primary School in Melbourne for the 2008 calendar year and earn in excess of $60,000 per annum.
The Father is currently paying to the Mother an amount of $400 per week and the issue was whether an order for spousal maintenance should continue until the Mother’s employment or February 2008 as contended for by the Father or should it continue irrespective until 2010 as contended for by the Mother. The situation has significantly changed and any order will only continue until the beginning of February 2008.
On behalf of the Father it was submitted that his preparedness to continue to pay spousal maintenance in the current circumstances eliminates any argument the Mother has available to her at the present time about any financial hardship. I have grave doubts about the financial position of the Father for reasons I have given. However there was very little cross examination and I accept that this was largely because the Father is prepared to pay maintenance until the Mother obtains employment.
In the result I was satisfied that the Mother had a need for the amount of $400 per week and the Father had the capacity to pay this amount. However the order will only be until the commencement of the 2008 school year.
I am also going to make an order that for the purposes of all occasions where the Father shall spend time with the children, the Father shall be liable for and shall bear the expense of all travel and accommodation arrangements. However this order may also have to be reviewed now that the Mother has obtained paid employment.
I certify that the preceding two hundred and thirty five (235) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan.
Associate
Date: 21 December 2007
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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