The 34 yr old Mother who wished to relocate for a new relationship, had 2 children (10 yrs and 6.5 yrs) to two different Fathers and so the matters were consolidated to be heard together.
Neither of the two Fathers agreed to the Mother relocating.
Orders for the older Child (10 yrs old when matter heard) had initially been in place for that older Child to spend equal time with both parents on a week about basis, changeover being each Friday, however about 4 years prior to the relocation application the parties had reached consent orders changing that to that older child living with the Mother and spending time with the Father each alternate weekend.
Parenting arrangements came before the court a third time and Interim Orders were made for the older 10 yr old Child pursuant to which:
- The parties Equal Shared Parental Responsibility Order continued;
- Restraining the Mother from moving from the metropolitan area of Adelaide;
- That older Child to live with the Mother and spend time with the Father, Mr Smithers:
- each alternate weekend from 6.30pm Friday until 6.30pm Sunday, extended to 6.30pm Monday if a long weekend;
- on a week about basis during school holidays with changeover on a Friday.
Interim Orders had also previously been made in relation to the younger 6.5 yr old Child of the second Father, Mr Cowling, which included:
- That younger child to live with the Mother and spend time with the Father, Mr Cowling:
- each alternate weekend from 3.30pm Friday until 4.00pm Sunday;
- 12 noon to 5.00pm each alternate Thursday.
By this stage of litigation with both fathers, it was also clear the mother wished to move to a regional area some distance away to further the new relationship she had formed with a new man, Mr T of about 3 years, given he lived in that regional area.
Family Reports were obtained from which is was clear both fathers had good relationships with their children.
The matter went to a final hearing where the Mother represented and both Fathers were unrepresented by Lawyers although one Father was able to engage a Barrister to appear. Neither father wanted equal time.
The first Father Mr Smithers had been an alcoholic during his relationship with the Mother.
The second Father Mr Cowling acknowledged that he had serious mental health issues and drug abuse. He also had a younger Child from a later relationship who lived primarily with him and who went to school with the 2 children in this matter.
It was alleged the Mother has serious anger, mental health and alcohol issues.
The Judge found the Fathers might not be the most perfect parents but they both had genuine love and concern for their children.
The older 10 yr old Child told the Family Report Writer he did not want to move and wanted to spend half his time with each of his parents, the Judge noting this but saying he was too young to make his own decision. The younger Child was not interviewed alone, being too young.
The Mother was almost sole financial responsibility for the children, neither Fathers having much financial resources to contribute. She proposed to move 9 hours drive away and pay for the children to fly to visit their fathers for one weekend per term, as well as spend school holiday time.
The Judge found that the best interests of each of the children could not be met by curtailing their time with their fathers, which is what would have to occur if the Mother was allowed to relocate with them. The Mother was permanently restrained from relocating the Children away from Adelaide where their fathers lived.
NOTE: This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties.
Smithers & Maher & Anor  FCCA 3637 (12 June 2015)
Last Updated: 3 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
SMITHERS & MAHER & ANOR
FAMILY LAW – Parenting orders – relocation – consolidated matters – one mother – two children – two different fathers.
ADC 457 of 2010
Date of Last Submission:
11 June 2015
12 June 2015
Counsel for the Applicant:
Ms Adele Du Barry
Solicitors for the Applicant:
Peter Fischer Lawyers
Counsel for the First Respondent:
Solicitors for the First Respondent:
Counsel for the Second Respondent:
Solicitors for the Second Respondent:
Ms Judith Cocks
Combes & Co
FEDERAL CIRCUIT COURT
ADC 457 of 2010
REASONS FOR JUDGMENT
- The matter of Smithers and Maher and Cowling comes before me this morning for judgment. I make it perfectly plain to everybody that I am delivering judgment on an ex tempore basis. It will not be as detailed as if it were a written judgment, but I am sure that everybody would rather have an answer now than possibly several months’ time. We have very limited judicial resource in the registry this year. I have of course, considered all of the matters that each of the parties have put before the Court.
- Because it is being delivered on an ex tempore basis counsel I reserve the right to edit the reasons if required, although of course, not change them. I would simply attend to expression and punctuation.
- The matter is slightly unusual in that the parties are Ms Maher, who has two children: X and Y; Mr Smithers, who is the father of X; and Mr Cowling, who is the father of Y. Ms Maher was engaged in litigation with both of her children’s fathers separately, but on 27 October 2014 I consolidated the files so that the matter could be heard as one matter. The issues in the two matters were inextricably intertwined. In very simple terms, the mother wanted to move to (omitted) and neither X nor Y’s father wanted her to.
- In 2008, when Ms Maher and Mr Smithers were first engaged in litigation, final orders were made with respect to X’ care in the Family Court of Australia by Burr J. At that stage, X was only just over three years old. Orders were made for Mr Smithers and Ms Maher to have equal shared parental responsibility for X and for each of the parties to have sole parental responsibility for X while he was in the care of each of them. Orders were made for X to live with the mother and father as follows on a week-about basis from a Friday to the following Friday.
- The remainder of the orders were unremarkable and dealt with the normal exchange of information between the parties and specific issues orders relating to attendance at school, keeping each other informed about health issues, and providing for specific times for X to spend with each of his parents on Christmas Eve, Christmas Day and Boxing Day each year and on Father’s Day, Mother’s Day and birthdays. That order was an order made by consent.
- On 10 February, the mother filed an originating application seeking further parenting orders for X. On 3 June 2010 Mr Smithers filed a response to the mother’s application. On 13 December 2010, by consent, a second set of final orders were made with respect to X’s parenting arrangements. That order provided for Ms Maher and Mr Smithers to have equal shared parental responsibility for X and for X to live with his mother and spend time with his father on alternate weekends from the conclusion of school Friday until the commencement of school Monday, for a week during each of the school holiday periods from 10:00am on the first Saturday to 10:00am on the following Saturday, and if during Christmas holidays, for that cycle to continue in alternate weeks during the Christmas holiday period.
- There were specific orders made in relation to time spending on Christmas Eve, Christmas Day and Boxing Day, Easter, Mother’s and Father’s Day and X’s birthday. There were orders for handover, and an order that should the father fail to present the child at school on time on any more than two occasions per term the father’s time would thereafter conclude at 5:00pm on Sunday rather than on the Monday morning.
- There was provision for telephone communication between X and his father. There were also what I might describe as the usual exchange of information orders, restrictions on the parties with respect to consuming illicit drugs while X was living with them and from consuming excess alcohol while they had the care of X. There was also provision for each party to be able to go to all school and kindergarten functions and the like and provision for a communication book.
- The mother and Mr Smithers were in a relationship for about four years from early 2002 to about (omitted) 2006. In about early 2007, the mother began a relationship with Mr Cowling. That relationship subsisted until about November of 2012. In September of 2013, the mother filed further proceedings in relation to X’s care, seeking from the Court a delivery up order with respect to X and for X to live with her and to spend time with his father as agreed.
- On 25 October 2013, the Court ordered that the father return X to the mother’s care at 6 o’clock that day. It made orders that during the period of the adjournment the handover arrangements that had been ordered in December of 2010 be varied such that the mother deliver X to the father inside the (omitted) Police Station at 6:00pm Friday and the father deliver X to the home of the paternal grandmother by 5:45pm Sunday. There were also certain orders made in relation to the ongoing operation of the December 2010 order. Mr Smithers was ordered to file responding documents.
- On 3 December 2013, further orders were made by the Court. By consent, the previous order of 25 September was varied so that the father was to return the child to the mother at the conclusion of his time inside the (omitted) Police Station. The mother was restrained, by consent and during the period of the adjournment, from changing the child’s principal place of residence from the metropolitan area of Adelaide. There was an order for the mother to file and serve such further amended application as she may be advised and the father to file a response. By then it was clear that the issue of the mother’s desire to move to (omitted) was looming large.
- On 20 February 2014, there was an interim consent order made in the proceedings between the mother and Mr Smithers. That order provided that, until further order, the mother be restrained from changing the principal place of residence of X from the metropolitan area of Adelaide. The orders of December 2010 were suspended, with X then to spend time with his father during school term times each alternate weekend from 6:30pm Friday to 6:30pm Sunday. The father was to collect X from the mother’s home at the commencement of the time and the mother was to collect X from the father’s home at the conclusion of the time. The time was to extend to 6:30pm on Monday if it was a long weekend.
- In school holidays, X’s time with his father was to coincide with the existing term time alternate weekends and occur from a Friday at 6:30pm to the following Friday at 6:30pm. An order was made for a family report and the matter was listed for trial in November 2014. Orders were also made about the Kids First program and the (omitted) program.
- By that time, the mother was also engaged in proceedings in this Court as between herself and Mr Cowling in relation to parenting arrangements for Y. Mr Cowling had filed a parenting application wherein he sought that Y live with him and that the mother not remove Y more than 50 kilometres from her residence. The first order that was made in those proceedings was dated 21 October 2013.
- That order provided that, until further order, Y, who was born on (omitted) 2008 and who by then was not quite five years old, live with her mother and spend time with her father on alternate weekends from 3:30pm Friday to 4:00pm Sunday and also from 12 noon to 5:00pm each alternate Thursday. Handovers were either at the (omitted) Learning Centre, (omitted) Kindergarten or the (omitted) Service Station at (omitted).
- The parties were restrained from using illicit drugs or prescription drugs other than in accordance with a prescription or consuming alcohol to excess for a period of 24 hours prior to and during any time they had the care of Y. The father was to undergo a supervised drug test. He was to provide proof of his accommodation at (omitted) in South Australia.
- An order pursuant to section 11F was made for the parties to speak with a family consultant. On 19 December 2013 a further order was made, including an order for a family report, slightly varying the order for Y’s time with her father during the period between 24 December 2013 and 31 January 2014 and providing specific times.
- As a result of the ongoing proceedings in both matters, two family reports ultimately came to hand. One of those was prepared by Ms K, then a family consultant under Regulation 7. She prepared a report dated 2 May 2014 in relation to the child Y and the parties’ competing proposals. The mother proposed to move with Y to (omitted), with the father being opposed to that and seeking that Y live with him.
- The second report was prepared by Ms A, and was dated June 2014. That was concerned with X’s parenting arrangements and, again, the mother’s proposal to take X to live with her in (omitted) and the father being opposed to that course.
- On 15 September 2014 when both of those reports were to hand, the Court ordered an informal conference in relation to both matters. That was unsuccessful. On 27 October 2014, the Court consolidated the files, the matter was listed for trial on 26 November 2014 and commenced on that date. The father, Mr Cowling, was represented. Ms Maher was represented. Mr Smithers by then had lost his employment in the latter part of 2014 and was left in the difficult position of being without representation and also, as I understand it, not having access to his file. It is for that reason that little material was on the file from Mr Smithers.
- By way of background, Ms Maher is 34 years old. She is in a relationship with Mr T and has been so since the latter part of 2012. She lives in (omitted) and works at (omitted). Mr T lives and works in (omitted). The mother wants to move to live in (omitted), firstly, she says on her own, but with the intention then of cohabiting and forming a family unit with Mr T, her proposal being that that family unit would include Y and X. She plans to get a job in (omitted) and have the support of her family and expressed in her trial affidavit the wish to be able to make a new start.
- I make it clear at this time that her position at trial was quite clear, and that is, if the Court was of the view that it was not in the best interests of the children to move to (omitted), she would not contemplate moving there without the children but would remain living in the Adelaide area with the children.
- Mr Smithers, the father of X, who is 10 years old, is unemployed and lives with a Ms N. She has a son, A, aged about 11 now, and they live at (omitted).
- Mr Cowling is the father of Y, who is now six and a half years old. He is a student and looking for part-time work, and lives at (omitted). Living in his household is his daughter, B, of whom he has the primary care pursuant to orders of this Court. B stays with her mother on alternate weekends and during some school holidays. Mr Smithers is currently unemployed and has not worked since late 2014.
- The mother wants to take the children X and Y to live in (omitted). Her proposals are contained in two affidavits that she has prepared: One in relation to the Smithers matter and the other in relation to the Cowling matter. If I turn to her affidavit in relation to the Smithers matter and turn in particular to paragraph 17, the mother proposes that X see his father for half of all school holidays being the first week of the holidays. She has certain proposals for 2015.
- She proposes X spend eight nights from 4 to 12 July during the July holidays and from 26 September to 4 October, being eight nights during the October holidays. She proposes that X have two week blocks with the parents during the Christmas holidays, which she said are eight weeks long. It was her proposal that in 2015 and each alternate year X stay with his father for the first two weeks of the Christmas holidays, in the following year, he stays with her for the first two weeks and then alternate that arrangement.
- She proposes that X stay with each of his parents on an alternating basis for Easter in each year and that he spend time with his father on one weekend in the middle of each term. She proposes that X could fly from (omitted) to Adelaide accompanied by the flight attendant. That would have him arrive in Adelaide at 6:30pm on the Friday and leave Adelaide at 4:00pm on the Sunday. She is prepared to cover those costs. And it was also her proposal that X communicate with the father using landline, webcam and email.
- In paragraph 16 of her affidavit in relation to her dispute with Mr Cowling, she sets out her proposals. Provided, she said, Y was safe with her father, that Y spend time with her father for half of all school holidays. She then set out the same times during July and October of this year and the same Christmas holiday arrangements as well as Easter and one weekend in the middle of each term. Her proposals both for personal and telephone communication and the like are the same for both children.
- Ms Du Barry of counsel for the mother also tendered to the Court at the commencement of the proceedings the mother’s proposals for the children’s time with her if she remained in (omitted). And her proposal was that X spend alternate weekends with his father from 3:15pm Friday to the commencement of school Monday, for half of all school holidays, with each party to be able to have X for a two week block during the Christmas holiday period.
- The mother proposed blocks of time at Christmas time both for X and for Y with each of their fathers and with her. They have slightly different times, but the effect of it is that the children would be not with one parent or the other for several days prior to and/or after Christmas each year.
- For the fathers’ parts, Mr Cowling seeks orders as set out in the case outline provided by Ms Cocks of counsel, that is that there be an order for equal shared parental responsibility, for Y to spend time with him each alternate weekend from after school or 3:00pm if a non-school day Thursday until the commencement of school Monday or Tuesday if a long weekend, half of all school holidays and for half of the Christmas school holidays upon an alternating week basis. He also seeks specific orders in what I might call the usual terms for Christmas Eve, Christmas Day and Boxing Day, which is that those times be shared each year and specific orders in relation to Mother’s and Father’s Day in what I might call the usual terms.
- He also seeks orders in relation to handovers either at school or at the (omitted) service station at (omitted), that the mother be restrained from changing Y’s school from (omitted) Primary School without his prior written consent or changing her residence more than 50 kilometres from his without his prior written consent and that both parties be restrained from using illicit substances or alcohol to excess for 24 hours prior to and during the time that they have the care of Y.
- He seeks that the parties keep each other informed of their mobile telephone numbers and notify each other in relation to medical issues. It is abundantly clear that Mr Cowling is not consenting to a move on the part of the mother and the children to (omitted).
- Neither is Mr Smithers, who handwrote the orders that he proposes, which were equal shared parental responsibility with each party to have the sole responsibility while X is in their respective care.
- He wants handovers on alternate weekends at 4:00pm or no later than 6:00pm, with him to collect X on a Friday each alternate week and the mother to collect X at 6:30pm Sunday on alternate weeks with an extension to Monday if a long weekend. He seeks fairly standard orders except in relation to Mother’s Day and Father’s Day time and the exchange of information. He seeks agreement about extra-curricular activities between the parties and for X to remain at (omitted) Primary School until completion of Year 7 unless he and the mother agree.
- Mr Smithers is seeking a specific order in relation to X being further assessed, in relation to his belief that X suffers from ADD, for parents to be able to attend at school, that he be able to telephone X on any day before bedtime and that X only travel to (omitted) once every month and not on a school day. He seeks that handovers continue at the (omitted) petrol station and that he be permitted to know the mother’s address while X is living with her.
- Neither of the fathers put proposals to the Court about what they would seek if the mother relocated to (omitted), and neither of them proposed travelling to (omitted) to spend time with either of the children in (omitted). That is the background of the matter and each of the parties’ proposals.
- It is important for the parties to understand that when Courts determine orders in relation to parenting issues, it is not just a matter of listening to each party and deciding which argument the Court likes best.
- The Court is bound to consider the matter against the backdrop of the legislation that relates to parenting orders.
- The first relevant section that is important for the parties to understand is section 60B of the Family Law Act. That section sets out the objects and principles that the Parliament have considered are what should underpin parenting orders. First of all, the Parliament was of the view that the Act should ensure 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.
- The Court should also ensure that children are protected from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The Court should make orders to its best ability to ensure that children receive adequate and proper parenting to help them achieve their full potential and orders that ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
- The principles that underlie those objects, that is, why they are the objects, are these: That children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together. Children have a right to spend time on a regular basis with and communicate on a regular basis with both their parents and other people significant to their care, welfare and development, such as grandparents and other relatives.
- Parents jointly share duties and responsibilities concerning the care, welfare and development of their children. Parents should agree about the future parenting of their children. The Act then goes on in section 60CA to tell the community and the Court that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
- This means that it is a consideration that must ultimately take precedence over everything else, but that is not to say other considerations, such as a person’s right to be able to live where they wish and live the life they want are to be ignored.
- In section 60CC, the court is guided in determining the best interests of a child. The court must consider the matters set out in subsections (2) and (3) that are relevant, because not everything that is set out in subsection (3) is relevant to every matter. The matters set out in subsection (2) of section 60CC of the Act are relevant to every matter, they are described in the legislation as the primary considerations, and they are (a):
The benefit to the child of having a meaningful relationship with both of the child’s parents.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The second of those factors, namely that is the protection issue, is deemed by the parliament to be more important than the first, although they are both primary considerations. After the court has considered those two aspects, there are a whole range of further considerations set out in subsection 60CC(3), called additional considerations. The court must take those factors contained in subsection (3) that are relevant to a particular matter into account. And the aspects of section 60CC(3) that are relevant to this matter are firstly:
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
The nature of the relationship of the child with each of the child’s parents and other persons including grandparents or other relatives.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child spending time with and communicating with the child.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
The likely effect of any changes on the child’s circumstances, including the likely effect on the child of any separation either of his or her parents or any other child, or other person (including grandparents or other relatives of the child), with whom he or she has been living.
The next subparagraph that is relevant is:
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect a child’s right to maintain personal relations and direct contact with both parents on a regular basis.
The next subparagraph that is relevant is:
The capacity of the parents (and any other person involved with the care of the child) to provide for the needs of the child, including the child’s emotional and intellectual needs.
The next subparagraph that is relevant is:
The maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
The next relevant subparagraph is:
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
- The next two subparagraphs relate to family violence issues and are relevant, although they are also dealt with under the primary considerations.
- Section 61DA of the Family Law Act provides that when courts make a parenting order in relation to a child:
The court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence.
- Section 61DA(4) provides that:
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
- Section 65DAA provides that if the court makes an order for equal shared parental responsibility, first of all the court must consider whether the child should spend equal time with each parent, and secondly, if not equal time, whether the child should spend substantial or significant time with each parent. Subsection 65DAA(3) defines “substantial and significant time”, and says that it will be taken only to be substantial and significant time if:
The time the child spends with the parent includes both days that fall on weekends and holidays, days that do not fall on weekends or holidays, and that the time that the child spends with the parent allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child, and that the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
- Section 65DAA(5) provides that in determining whether equal or substantial and significant time should be spent, the court must also determine whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the parents. In that regard, the court has to take into account:
How far apart the parents live from each other, the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents, the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of the kind, the impact that an arrangement of that kind would have on the child and such other matters as the court considers relevant.
- Equal time spending is not proposed by either of Mr Smithers or Mr Cowling, and I do not consider that this is a matter where the court should then consider equal time where neither of the fathers seek that time.
- The first of the primary considerations, is the benefit to the child of having a meaningful relationship with both of the child’s parents. The proposals of all of the parties, that is the mother and both fathers, support ongoing relationships between Y and her father and X and his father to some extent, with of course the mother’s proposals making that somewhat more difficult because of her proposal to move to a rural and remote area.
- I find that the proposals by all of the parties are indicative of an acceptance that the children have a good relationship with each of their parents. The mother is proposing extended holiday time for Y and X with each of their fathers. The fathers are proposing that the children spend the majority of their time living with their mother. That includes holiday time as well.
- I find on her evidence that the mother is more reluctant than either of the fathers to accept the benefits to the children of a meaningful relationship, but I accept that her proposals would facilitate that to a significant degree. Accordingly I find that the issue of the benefit to the child of having meaningful relationships with each parent is effectively conceded by all of the parents.
- As to protection from violence, the mother based a lot of her case on being concerned about ongoing violence and harassment from both Mr Cowling and Mr Smithers. It appears to be her firmly held belief that they are effectively colluding to stop her getting on with her life and moving to (omitted) with the children.
- There is no doubt at all that both Mr Smithers and Mr Cowling have admitted to unacceptable behaviours when under the influence of drugs and/or alcohol during the period of their relationships with Ms Maher. Mr Smithers was an alcoholic. He also alleged that the mother had serious anger issues and that she abused alcohol.
- There have been longstanding orders in place by consent that both parties refrain from using illicit drugs and/or alcohol to excess while X is in either of their care. There have been no allegations of any significance in recent time that X has been prejudiced in any way by any violent behaviour on the part of either of his parents.
- The majority of the allegations of both parties are historical. I am satisfied that X’s best interests can be met by a continuation of injunctive orders, whatever the outcome might be in terms of where he is to live.
- Mr Cowling acknowledged in cross-examination that he had suffered at some stage from serious mental health issues and drug abuse. He also alleged that the mother had serious anger, mental health and alcohol issues. In late 2013, an intervention order was obtained by the mother in relation to Mr Cowling. There is no doubt at all that these issues have arisen, but again with respect to Y, I am not satisfied on anyone’s evidence that the behaviour of either of Y’s parents has been such in recent times that she has suffered from abuse, neglect or family violence or exposure to same. There is no doubt she was very frightened when her father burst into her mother’s house, for which he was suitably and sensibly punished.
- I am however satisfied that whatever might have happened in the relationship between Ms Maher and Mr Cowling was very unfortunate indeed. It must have been very difficult for both of them, and I have no doubt at all that the mother on occasions was frightened. There is no doubt that in Mr Cowling’s affidavit material he seriously downplayed the behaviour to which he exposed the mother, and himself for that matter. Again, I find that Y’s best interests can be met by the same sorts of injunctive orders that have been in place in the Smithers and Maher orders. I find that both parties love Y and will do everything necessary to keep her safe.
- Both relationships have been finished for a significant period of time. I do not accept that Mr Cowling and Mr Smithers are colluding to prevent the mother from moving to (omitted) and getting on with her life.
- I find on the evidence that these are two men who might not be faultless and who might not be the most perfect parents, but I find they have a genuine love and concern for their children and are genuinely concerned about the long-term impacts on X and Y if they are living in a situation where the personal contact is very difficult as a result of the tyranny of distance.
- Moving on to the additional considerations, the first of those that is relevant in this matter are the views of the children. I find that Y is too young to have her views considered by the court, and indeed, Ms K did not interview Y because she was too young.
- X, however is 10, and he clearly expressed to Ms A on page 25 of her report that he loved both of his parents, that his ideal situation would be to spend half of his time with each of his parents, that he got nurturing from each of his parents, that he really liked his school and that he didn’t want to move to (omitted).
- It should not be the case that a 10 year old is the arbiter of his or her fate. For example, if a 10 year old says to you, “I don’t want to go to the dentist,” you don’t then say to a 10 year old, “Well, that’s all right, you don’t have to go, nobody likes dentists.”
- X however was described by Ms A as a thoughtful child. She considered that he clearly thought through his answers, that he loves both of his parents very much, that he is settled in his current environment (the only thing that he would like was some more time with his father, but that’s not something that I need to address at this time) and, being a 10 year old boy who now is very much enjoying his time with his father, and in circumstances where his father seems to have at least had the sense to take on a bit of a recommendation of Ms A and start to see things a little more from X’s point of view, I do not find that his wishes should be completely ignored. From my perspective they are an important factor. They are not the defining factor, but they are an important factor.
- As to the nature of the relationship of each of the children with their parents, again, the observations of both Ms K and Ms A were that X and Y each had excellent relationships with all of the adults with whom they were observed, namely their mother, their respective fathers and with other extended members of the family. X in particular expressed appreciation for his contact with extended family members.
- I am satisfied from what X had to say to Ms A that he perceives himself as very attached, equally probably, to each of his parents. He is 10 years old now, and has clearly thought through these issues quite carefully.
- The reality of Y’s life is that she is primarily attached to her mother at this stage, and that is understandable as that is who has had the primary care of the child. It was however instructive to note Ms K’s comment about Y cuddling into her father and being very happy to see him. It was clear that she had a very positive relationship with her father as well.
- In Mr Cowling’s household there is also his daughter B, who now lives primarily with him and spends weekend time and holiday time with her mother. I am mindful that Y would also have a relationship with B. There is no evidence before the Court as to the depth of that relationship, but nothing to suggest that it is other than appropriate.
- As to the issue of the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the children, spend time with the children and communicate with them, there is no doubt that in the matter of Ms Maher and Mr Smithers, there have been hiccups from time to time in relation to X’s time with his father. I think Mr Smithers might be the first to agree that he has been less than diligent on occasions and has tended to blame the mother when there has been disputes about handover times and the like.
- Nevertheless, the orders were first made in respect of X when he was three years old. He is now 10. He has spent very regular time with his father. He has got an excellent relationship with his father, and Mr Smithers has, for the most, taken time in accordance with orders. He says he has had trouble with telephone communication, and I accept that while that may or may not be true, I do not think it is a significant determinate of what should happen in this matter.
- It would have to be said that the most major long-term issue that has arisen for either X or Y is the issue of whether or not they go to live in (omitted) with their mother. It is abundantly clear that all three parties are here doing their best to make decisions for the children in relation to that very major long-term issue. They have not been able to agree the issue, but I am satisfied that none of them are here with any malice, including the mother, and that the positions of all of the parties have merit.
- As to the extent to which each of the parties have fulfilled or failed to fulfil the obligation to maintain the child, there is no doubt that the mother has had almost sole financial responsibility for both of these children. Neither of the fathers have paid significant child support, and certainly at the moment I think Mr Smithers and Mr Cowling would not be paying any or some out of Centrelink benefits.
- Mr Cowling is a student and looking for part-time work. Mr Smithers has not worked since November of 2014. The amount of child support being paid is minimal. However, at this stage, there cannot be criticism of the circumstances of both of the fathers. I am mindful that Mr Cowling has the primary responsibility for the care of B, and is undertaking a course of study that may significantly change his circumstances in the future.
- I now come to subparagraph (d), which I consider is a very important element in this matter. That is the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents or any other child or other person, including any grandparent or other relative with whom he or she has been living.
- Both children see their respective fathers regularly. They both have an excellent relationship with each of their fathers, and, it would appear, with the paternal families on each side, as well as their maternal family, and, in the case of Y, with her sibling B. Both children appear to be doing well at school. They both seem very happy children, and happy in their current circumstances.
- It is the mother’s proposal that the children move from the (omitted) to (omitted). As I have already said, it is quite right that the mother should not be fettered unreasonably in relation to her wish to move to (omitted), and the court would never prevent the mother from moving to (omitted). That is entirely a matter for her. What the court has to consider is the issue of the impact on the children of a move to (omitted).
- There is a very long distance between (omitted) and Adelaide. The mother is to be complimented for having maintained the relationship with Mr T in trying long-distance difficult circumstances since the end of 2012. That shows great strength of character on the part of the mother and Mr T, and there is nothing unreasonable in the mother’s proposal from her own perspective in terms of wanting to cement her relationship with Mr T, hopefully live with him in due course, look for some employment and have the support of her family.
- She has family in (omitted) and Mr T has regular ongoing, well paid work it would appear in (omitted). There is nothing to suggest that after having committed to this relationship now for the last three years long distance and managed to maintain that, that she and Mr T would not be successful in setting up a family unit in (omitted). On the face of it, there is nothing to say that she would be any less able to provide as well as she already has for the children for all these years, in (omitted).
- But, as I say, (omitted) is a remote and rural area. It is about nine hours drive from Adelaide. If the children were to move to (omitted), their personal time with each of their fathers, with B in the case of Y and with their extended paternal families and friends would be severely curtailed. Both of the children are already starting to spend holiday time with each of their fathers.
- That could continue if they were in (omitted), but weekend time would be almost impossible in terms of the mother’s own limited finances – she may be able to get financial assistance from her family or Mr T in that regard – but both of the fathers have very limited financial resources. Plane travel is expensive. I note that the mother’s proposal is that she would pay for the children to come down on one weekend per term, but that is a vastly different face-to-face arrangement than the current alternate weekend time that each of the children enjoy with their fathers.
- If the fathers were to travel to (omitted) they would have their own flight costs or driving costs to (omitted). If it is driving, it is a nine-hour trip. It would almost inevitably involve overnight stays, which would mean that it would probably be just as cheap to fly up and back rather than drive. Either way, it is an expensive exercise. My view is that during term time, if the children were to live in (omitted), the reality of the time that the children would spend with each of their fathers would be little more than perhaps one weekend in the middle of term with other communication by telephone, Skype and FaceTime. This is not easy to maintain, particularly for children of the age of six and a half although it might be slightly different from X’s point of view.
- The children would not be able to enjoy the physical presence of their fathers, and in Y’s case B, with whom not only does she spend the alternate weekends, but also, goes to school with. X is also at the same school. The relationship of Y with Mr Cowling and X with Mr Smithers are relationships that are very important to those two children.
- That, I might add, is to the credit of the mother, because whatever else might have gone on in the lives of these parties and these two respective relationships and the angst that followed thereafter in the case of both of the relationships for some considerable period of time, these are children who have clearly got the confidence to love each of their fathers. Children rarely have that confidence unless their primary caregiver helps them achieve it, and so that is something that is significantly to the credit of the mother.
- Mr Smithers and X now very much enjoy football together. That may have been a somewhat late epiphany on the part of Mr Smithers, but he now seems very committed to X’s football interest, and enjoys that with him, as does the mother. That is something for a 10 year old boy to be able to do with his father on a regular basis that could only be very beneficial for him. As I said, he is 10 years old. He is a boy. He needs his father as much as possible. He is heading into adolescence, and that will be even more important for him during that period of time. X clearly wants both parents in his life to the maximum extent that that is possible. I am unable to find that his best interests would be met by curtailing time with his father at such an important time in his life.
- Y also loves Mr Cowling, and she would see little of him if she was to live in (omitted). She is still at the age of cementing her relationship with her father. Her primary relationship, as I said, is with her mother. She is only six and a half. The way to cement that relationship with her father is to see him regularly. He is a very important part of her life, albeit that her primary attachment at this time is to her mother. To my mind it would not be in her best interests to curtail her physical time with her father, which is clearly something that she enjoys. This would in reality occur if she were to live in (omitted) other than during school holiday time.
- The move to (omitted) I am sure would be something that would be possible, but I do not consider it something that would be in the children’s best interests, albeit that I am perfectly satisfied that they would manage it. It would mean, for example, that neither of the children’s fathers was able to attend regularly at sporting commitments, which seems to be Mr Smithers’ forte, or school commitments and activities, which are certainly regularly attended by Mr Cowling.
- Mr Smithers explained when he was talking to Ms A that he has some reluctance to go to the school; that it perhaps relates back to his own school time. It is very important for him to acknowledge, and to use a colloquial expression, Mr Smithers, “build a bridge and get over it”, because it is important for X that he sees you at school. I am sure you are interested in his school. You expressed that by raising the issues about assessment for attention deficit disorder. But he needs to see that you are actually actively involved in his schooling.
- If there was a move to (omitted), it would also involve another change for the children, because initially it is the mother’s plan that she live on her own with the children, maintain her relationship with Mr T, who of course the children know and I have no doubt get on perfectly well with, and then ultimately live with Mr T if everything goes to plan, but the word “if” comes to mind. Much as this relationship is clearly solid because of the length of time it has subsisted, Ms Maher and Mr T have not lived together and have not attempted to form a family unit involving themselves and X and Y.
- These are all significant changes for both children which again, I am sure are perfectly manageable, but not so manageable when coupled with children having been moved to a place where their normal fortnightly time is not spent with their fathers who are very important to them.
- What I mean by this is that if the mother and Mr T were to set up house together, having not lived together before, in (omitted) or (omitted) or somewhere else of that area, that is not something that would cause me concern because that’s just one of the normal exigencies of day to day life. This however is a very different scenario.
- True it is that Ms Du Barry obtained a concession from Ms K during cross-examination that by the time Y got to the age of seven, she would probably be able to maintain the relationship she has with her father by Skype and other forms of communication during term time and spending time with him during the holidays. I do not however accept that is ideal for Y, and it certainly is not ideal for X. He is coming to the more important time in his life with his father, not the less, and has already expressed a wish to spend more time with his father. In addition it certainly would not be in the interests of these children to be separated.
- As to the importance of any practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis, the only possible answer in this matter is that it is very important. A remote area nine hours away, long car travel or plane travel, none of the parties having significant finances at their disposal, and the reality being that it will involve the children really only spending holiday time or, perhaps, holiday time and one weekend during school time with their fathers will I find substantially affect both X and Y’s right to maintain personal relations and direct contact with their fathers.
- As to the capacity of each of the child’s parents and other persons to provide for the needs of the child including emotional and intellectual needs, I have no doubt that the mother, who is the primary caregiver for both of these children, has the capacity to provide for their needs in terms of their physical needs and, their intellectual needs.
- I have some level of concern about her ability to provide for their emotional needs in terms of her pursuing an application to relocate to (omitted), understanding that the inevitable consequence of that would be that the time the children currently spend with their fathers would be significantly curtailed in circumstances where these are children who have excellent relationships with each of their fathers.
- I’ve already referred to the issue of the maturity, sex, lifestyle and background of the children. This factor relates to X more so than Y. Having said that, children all benefit from time with each of their parents. Parents each have different things to offer children. They see life through a different set of eyeglasses. They have different perspectives on life. In the main, that is why children who can grow up with a significant relationship with both parents are going to get a more balanced view of life because they get an opportunity to see things through both perspectives.
- I stress though in this matter in particular that it is X’s relationship with his father, where he is a 10 year old boy, he is starting to enjoy activities with his father, where he feels a deep love for each of his parents and expressed a wish to spend more time with his father, read together with the fact that to separate these children would simply not be in their best interests makes this factor particularly important.
- As to the attitude to the children and the responsibilities of parenthood demonstrated by each of the child’s parents, the mother has done nothing other than a very good job providing for all of the needs of these children, particularly the financial needs of the children which have fallen almost solely to her.
- Mr Cowling is to be congratulated for the significant interest that he has shown in Y’s education, his commitment to her education, his regular attendance at school, at functions that are important to her and Mr Smithers perhaps more lately, is at least now starting to understand the importance of not just having X with him on alternate weekends, but really actively becoming involved in X’s life. I find that orders that provide for the children to spend regular time and substantial and significant time with each of their parents are orders that are in these children’s best interests.
- As to equal shared parental responsibility, notwithstanding the various allegations made by the mother over the years in relation to Mr Smithers, there are already orders for equal shared parental responsibility that have been in place since 2008 as varied in 2010. I don’t think there is an order in relation to shared parental responsibility yet with respect to Y. That has just been left in abeyance. It is clear from the mother’s evidence and submissions that the mother is less than enthusiastic about an order for shared parental responsibility for Y with Mr Cowling. She had the very unpleasant experience with Mr Cowling in the latter part of 2013 leading to the intervention order, and it is clear that she has felt pressured in that regard, and there is no doubt that domestic violence occurred. You cannot break into your ex-partner’s house to collect your belongings and think that you are going to get away with it unscathed. It was entirely inappropriate.
- Nevertheless, Mr Cowling has a very big role to play in Y’s life. He attends at school, at functions. He’s interested in her education. He facilitates B attending at the same school. He is committed to Y achieving her best potential, as is the mother. I see no basis for other than an order for equal shared parental responsibility for Y as well as a continuation of that long-standing order with respect to X.
- In those circumstances, the court has to consider the equal time which I’ve already said is unnecessary as it is not promoted by either of the fathers. I do have to consider substantial and significant time, and it becomes of particular relevance to look at the definition of substantial and significant time being days that fall on weekends and holidays, days that do not fall on weekends and holidays, orders that enable the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child and enables the child to be involved in significant events for the parent. That will cover things like Mother’s Day and Father’s Day which would be almost impossible from (omitted). It includes attendance at school functions and the like which would be almost impossible from (omitted). It includes sharing time over Christmas and Easter and the like which are very important occasions. I do not consider that the sort of order that could be made if the children were to live in (omitted) which would inevitably be school holidays and, at the most, a weekend during school term, are orders that could qualify as substantial and significant time.
- The parties do live a long way away from each other, and they have not had, in the past, and may not have in the future, a significant capacity to implement the arrangement for substantial and significant time. Having said that, there have been no significant issues with the current orders that provide substantial and significant time.
- The problems that have occurred have been, to my mind, mostly capable of being described as power play which have not been to the credit of anyone. I find that if specific orders are in place that make it very clear as to what will happen at what time, all of the parties could support that type of order, and there would be no negative impact on either of the children. Orders have worked well for X to date, and there is no evidence that they have not worked and will not continue to work well for Y.
- For all of those reasons, I intend to make orders.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge Mead
Date: 2 November 2017
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