Adelaide relocation sought

Adelaide relocation sought

Vince & Vince

Issues at Trial

16. Both parties prepared case outline documents and tendered same at the commencement of the trial. The applicant father’s position changed when it became clear that in the event the Court did not permit the mother to relocate the children’s residence to Adelaide she would remain in (omitted).
17. His position at the time of summing up was that sought an order for equal shared parental responsibility but he accepted the children would remain living with the mother. He sought that they remain living in (omitted). He sought an order that the children live with him for five consecutive nights per fortnight commencing at the conclusion of school Wednesday and concluding at the commencement of school the following Monday.
18. He also proposed that the children continue to spend one half of each school holiday period with him and an order that the mother be restrained from changing the children’s residential address from (omitted), as well as what might be described as “usual orders” providing for the children’s time to be shared between their parents on Christmas Eve, Christmas Day and Boxing Day in each year. The father sought an order that the parties communicate regarding the children by email.
19. The father was adamant that he was not prepared to move either to Adelaide or to somewhere near to Adelaide such as the (omitted). It was hard to gain a clear understanding of the father’s position in terms of the time he sought to spend with the children during school term time in the event that the mother was able to relocate with them to Adelaide.
20. In her final submission his counsel noted that Ms M did not see much difference between four and five overnights per fortnight and that the mother had conceded that she would agree to five overnights per fortnight if she and the children moved to Adelaide.
21. In the case outline document tendered on behalf of the father he sought, in the event that the mother relocated to live more than 50 kilometres from (omitted) that the children spend time with him on every third weekend from 8:00pm Friday until 5:00pm Sunday (or Monday in the event that the Monday immediately following such a weekend is a public holiday), and on each alternate long weekend from 8:00pm in the day immediately preceding the commencement of the long weekend until 5:00pm on the final day of the long weekend.
22. Ms Lee, counsel for the Independent Children’s Lawyer, asked the father in cross-examination what his proposal was in the event that the mother was able to relocate with the children to Adelaide. His answer mainly related to the stresses that would be upon him if he moved to Adelaide or nearby and he expressed thoughts of perhaps having a rental property in Adelaide and renting or buying a property in (omitted). He was clearly distressed in even contemplating such a scenario.
23. There was no doubt that from the father’s perspective he found it very difficult to contemplate how time the children spent with him during the school term time would work in the event the children relocated to Adelaide to live with the mother.
24. At the time of trial the mother sought orders for sole parental responsibility and for the children to live with her.
25. She sought leave to relocate to Adelaide with the children and orders that the children spend time with the father during school term time on alternate weekends and for half of the mid-year school holidays and three weeks during the Christmas school holidays. She conceded four overnight periods on each alternate weekend.
26. She sought orders that the parties be restrained from discussing the proceedings with the children and that other than in the event of an emergency they communicate solely by use of a communication book. She sought that the communication book use be limited to issues pertaining to the care of the children and that the father be restrained from taking either of the children to a treating medical practitioner other than in the event of a medical emergency. Ultimately she conceded in cross-examination that communication by email may also be a good idea.
27. It was the mother’s position that it was in the children’s best interests to move with her to the Adelaide metropolitan area in terms of their education and general opportunities, and that such a move would benefit her employment opportunities such that the children would also benefit.
28. It was her case that there was nothing preventing the father from moving either to the Adelaide metropolitan area or to a semi-rural area near to Adelaide such that the children’s time with him was not reduced due to travel. When counsel for the Independent Children’s Lawyer put to her that what she really expected was for the father to fall into line with her proposal she agreed that she thought it was best that he moved.
29. The father was adamant that he was not in a position to move either to Adelaide or to a semi-rural area near to Adelaide for reasons relating to both physical and psychological health.
30. At the time the proceedings commenced it was the father’s position that he could not afford to move to Adelaide or anywhere nearby. The father told Ms M in March of 2015 that he received a disability pension, paid a comparatively low rent in (omitted) and could not afford to make the 700 kilometre round trip from (omitted) to Adelaide every fortnight. He also told Ms M that he had nowhere in Adelaide that he could stay with the children on alternate weekends.
31. When she spoke with Mr Vince again in June of 2015 she reported on page four of her second report
    “…that his financial problems have been difficult. He was travelling 700 kilometres to pick the children up to bring them back, as well as paying for motel stays. Mr Vince said he has borrowed some money from his parents. His dad still works and he has delayed his retirement to help Mr Vince…”
32. Mr Vince swore his trial affidavit, filed 20 October 2015, on that same day. He deposed to his financial circumstances and issues in relation to his Work Cover claim in paragraphs 25 to 34 of that affidavit. He deposed in paragraph 29 to having recently been approved to receive on-going weekly payments from Work Cover Victoria and to the fact that he was to receive back-pay for the payments that were stopped some years previously, as well as being reimbursed for medical and associated expenses.
33. Mr Vince was cross-examined at length as to those financial matters. It was abundantly clear from his evidence that he had deliberately avoided providing details of his Work Cover settlement to the mother or her legal practitioners prior to trial notwithstanding numerous requests for same.
34. He conceded that at the time of trial he was receiving a weekly payment of $1,570, that he had received a settlement of $80,000 in 2011 with respect to a serious injury claim and had received the sum of $760,000 by way of settlement after an agreement in principle on or about 2 June 2015. He said that he had to reimburse Centrelink $140,000 from those funds and that after tax and legal fees he retained something over $400,000 which he received in late July 2015.
35. He conceded in answer to a question from the Court that he did not want to tell the Court or the mother’s legal representatives that information.
36. When asked by the mother’s counsel why he did not tell Ms M that the financial impediment to him moving to Adelaide or its environs had been removed, he said there were other reasons why there were impediments to moving, including his stress levels.
37. When it was put to Mr Vince in cross-examination as to whether it had occurred to him that the information about his financial situation should have been put before the Court, he replied that it did not count for who was the better parent.
38. I am satisfied that the Mr Vince knew in advance of his appointment with Ms M on 12 June 2015 that he was to receive a substantial sum in settlement of his Work Cover claim, as well as receiving on-going weekly payments.
39. I am satisfied that he deliberately withheld that information from Ms M, the mother’s legal representatives and from the Court. I find there is no financial impediment to the father moving to Adelaide or somewhere near Adelaide in the event that the mother is permitted to relocate the children to live with her in Adelaide.
40. The mother was clear in her evidence that in the event that the Court decided against the relocation of the children to Adelaide she would remain in (omitted). In those circumstances the father did not pursue the question of the children living with him because whatever the Court determined the children would be living with the mother either in (omitted) or in Adelaide and continuing to spend time with him either in Adelaide or in (omitted) or both.

Conclusion

219. This is not an easy matter. The Court needs to give paramount importance to the best interests of the children but not ignore the circumstances of the parties and the need for them to each have the best opportunity to provide for the physical, intellectual and emotional needs of the children.
220. Y will finish his primary school years at the conclusion of the 2017 school year. At that time X will have completed year 10 at high school. I find that it is in the best interests of the children for the mother to be able to relocate to Adelaide with the children at the conclusion of the 2017 school year.
221. Such an order will mean that Y will commence high school in Adelaide in 2018 and X will be able to undertake his two “senior years” of high school in Adelaide in 2018 and 2019.
222. It may have the effect of delaying the ability of the mother to finalise her qualifications but in my opinion not unreasonably so, and she will of course not be prevented from continuing to travel to Adelaide for employment during that period of time. It may be in the alternative she could undertake employment in the south east pending that move.
223. It will also give the father an opportunity to reconsider his position in relation to the place of his residence.
224. The children will have the benefit of spending substantial and significant time with their father in (omitted) during that time and continuing to attend at schools in (omitted) which they both enjoy. They will be moving to the city at a time when many children from the country move for the purposes of educational opportunities.
225. Pending the children moving to Adelaide with the mother, I am satisfied that it is in their best interests to spend five overnight periods per fortnight with their father such that the existing 2010 order should commence at the conclusion of school on a Wednesday rather than at the conclusion of school on a Thursday.
226. The mother sought to vary the orders of 16 June 2010 such that the school term time holidays and the Christmas school holiday periods were equal but less defined. She was also concerned that the existing order made no provision for the children’s time with her over Easter and sought that there be no specific orders in favour of either party for Easter.
227. The father sought a continuation of the existing Easter holiday order that provides for the children to spend half of that time with each of their parents.
228. Although I did not canvas this issue with counsel for either party, I am of the view that the children’s time with each parent at Easter should be shared equally in 2017 but thereafter when the children are living in Adelaide they should spend time with each of their parents for the whole of the Easter period in alternate years to enable holiday opportunities and to minimise travelling.
229. The current orders with respect to Christmas holiday time provide for the children to spend seven day periods week-about with each of their parents, with specific orders for time on Christmas Eve, Christmas Day and Boxing Day prevailing in the Christmas week.
230. Again this is not a matter that I canvased with counsel but I find that the children’s best interests would be met as and from the time they move to Adelaide to live with an order as proposed by the father which divides the children’s time between the end of fourth term each year and the three day Christmas period equally between each parent and then the period between Boxing Day and the commencement of the new school term again equally between each parent. This would enable the children to enjoy the expectation of Christmas with both parents and then share equally in the relaxing January holiday time with each parent. In cross-examination the mother said she preferred her proposal for Christmas holiday time.
231. Other than the variation to the number of nights the children spend with the father in each fortnight pending the children moving to Adelaide, I am not satisfied that there is any need to otherwise vary the order of 16 June 2010, save as to discharging paragraphs 19 and 22 thereof which orders are intrusive of the father and not sought by the mother and to delete those paragraphs that are not applicable.
232. I find that it would be in the children’s best interest for most of those orders to remain in place when the children and the mother move to Adelaide metropolitan area, save as to variations to term time and school holiday time to which I have referred.
233. I find however there will need to be new orders made as to the place of handover if it is not at the children’s school. The only handover that will not occur at the children’s schools are those that fall on non-school days during Christmas and school term time school holidays.
234. In circumstances where all of the handovers otherwise are to occur in Adelaide and require the father therefore to travel either from (omitted) or such other place as he may have determined to reside, I find that it is reasonable and equitable for the mother to deliver the children and collect them from the maternal grandparents home in the event that the father remains resident in (omitted), or otherwise outside of a business or café in the town closet to which the father may reside.
235. That order is made in circumstances where the father’s evidence is that he has no intention of moving from (omitted) and where on the facts of this matter if he did move it is expected that he would move closer to Adelaide.
236. There also needs to be an additional order added as to the parties being at liberty to communicate by email with respect to the children.
237. I find that it is in the children’s best interests for current orders relating to the father attending upon medical practitioners and taking prescription medication as prescribed to remain in place.