ABRAHAMS & RATHBONE
[2013] FMCAfam 1
•9 January 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ABRAHAMS & RATHBONE | [2013] FMCAfam 1 |
| FAMILY LAW – Children – relocation – competent and committed parents – father’s ability to communicate by telephone and/or Skype. |
| Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 61DA, 65DAA |
| KB & TC (2005) FLC 93-224 Carpenter and Lunn (2008) FLC 93-382 MRR v GR (2010) FLC 93-424 Wainder & Wainder (2011) FLC 93-473 |
| Applicant: | MR ABRAHAMS |
| Respondent: | MS RATHBONE |
| File Number: | LNC 465 0f 2011 |
| Judgment of: | Roberts FM |
| Hearing dates: | 2, 3 and 4 October 2012 |
| Date of Last Submission: | 26 November 2012 |
| Delivered at: | Launceston |
| Delivered on: | 9 January 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Lewis |
| Solicitors for the Applicant: | Levis Stace & Cooper |
| Counsel for the Respondent: | Mr M Turnbull |
| Solicitors for the Respondent: | Bishops |
ORDERS
That MS RATHBONE (“the mother”) and MR ABRAHAMS (“the father”) are to have equal shared parental responsibility for [X] born [in] 2008 (“the child”).
That the child is to live with the mother.
That the mother is permitted to relocate to Melbourne, Victoria with the child.
That if the father continues to reside in Tasmania the child is to spend time and communicate with him as follows:
(a)in Tasmania for half of the child’s Victorian school holiday periods at the end of Term 1 on the basis that the four day Easter period is included in 2013 and in alternate years thereafter;
(b)in Tasmania for the entirety of the child’s Victorian school holiday periods at the end of Terms 2, and 3 from the Saturday immediately after the conclusion of the term until the Saturday immediately prior to the start of the next term;
(c)during the Victorian school term for a minimum of three weekends as agreed between the mother and the father, but failing agreement:
(i)the first such weekend is to be the second weekend after the last weekend in the preceding school holiday period and is to occur in Tasmania;
(ii)the second such weekend is to be the fourth weekend and is to occur in Victoria; and
(iii)the third weekend is to be the sixth weekend and is to occur in Victoria.
(d)in each odd numbered year in Tasmania from 12 noon on Christmas Eve until 12 noon on Christmas Day;
(e)in each even numbered year in Tasmania from 12 noon on Christmas Day until 12 noon on Boxing Day;
(f)in odd numbered years for the first half of the long summer school holiday period in Tasmania;
(g)in even numbered years for the second half of the long summer school holiday period in Tasmania; and
(h)by telephone or Skype at least three times per week, and on the child’s birthday, Easter Sunday and on Father’s Day if those days occur when the child is with the mother.
That for the purposes of the child spending time with the father in Tasmania in accordance with Order No. 4 hereof, the mother is to be responsible for the payment of 75% of any necessary airfares and the father is to be responsible for the payment of 25% of those fares.
That if the father resides in Melbourne, Victoria the child is to spend time and communicate with him as follows:
(a)during school terms on a two weekly rotation as follows;
(i)in week 1 from after school on Thursday to the commencement of school on Monday;
(ii)in week 2 from after school on Thursday to the commencement of school the following Friday; and
(iii)for the purposes of such time the father shall collect and return the child to and from school at the commencement and conclusion of his time;
(b)for half of the child’s Victorian school holiday periods at the end of Term 1 on the basis that the four day Easter period is included in odd numbered years;
(c)for one half of child’s Victorian school holiday periods at the end of Terms 2 and 3 at times agreed between the parties but failing agreement for the first half in odd numbered years and the second half in even numbered years;
(d)for one half of the child’s summer school holidays in alternating fortnightly blocks as follows:
(i)in those holidays commencing in even numbered years the father is to have the first fortnight; and
(ii)in those holidays commencing in odd numbered years the father is to have the second fortnight;
(e)at Christmas in accordance with Order No. 4(d) and (e) hereof;
(f)if the child is not otherwise spending time with the father on Father’s Day, then from 10.00 am until 6.00 pm on Father’s Day; and
(g)if the child is spending time with the father on Mother’s Day in accordance with these Orders, then that time will be suspended from 10.00 am until 6.00 pm on Mother’s Day and the father shall otherwise return the child to the mother’s care.
That the child is to spend time with the father at such further or other times as may be agreed between the father and the mother from time to time.
IT IS NOTED that publication of this judgment under the pseudonym Abrahams & Rathbone is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
LNC 465 0f 2011
| MR ABRAHAMS |
Applicant
And
| MS RATHBONE |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is MR ABRAHAMS (“the father”) and the respondent is MS RATHBONE (“the mother”). The matter involves their competing applications for parenting orders, but it is essentially about whether or not their child, [X], born [in] 2008 (“the child”) should be permitted to relocate to Melbourne with the mother.
In his application the father sought orders that if the mother was to relocate to Melbourne then the child should live with him, but if the mother was not to relocate to Melbourne, then he should have the child with him from Friday evening until Monday morning in one week and then from after school on Monday until the start of school on Wednesday in the next week. In other words, he was seeking orders that would provide for the child to spend time with him for five nights per fortnight. In addition, he was also seeking orders in relation to special occasions.
In his application, the father put forward no proposal in relation to how he should spend time or communicate with the child in the event that the court was to permit her relocation to Melbourne with the mother. However, that omission was rectified during the hearing and I will refer to that further below.
At the start of the hearing the mother was seeking orders that would permit her to relocate to Melbourne with the child on the basis that the father spend time and communicate with the child as follows:
a)for half of the Easter break;
b)for the entirety of the child’s school holidays at the end of terms 2 and 3;
c)for half of the long summer school holiday;
d)for two weekends during each school term;
e)from noon on Christmas Eve until noon on Christmas Day in odd years;
f)from noon on Christmas Day until 6.00 pm Boxing Day in even years: and
g)regular telephone communication (at least three times per week and on certain special occasions).
She also sought an order that she be responsible for the payment of three quarters of the airfares in relation to the child’s travel to and from Tasmania (with the father being responsible for paying the other quarter).
During cross-examination of the father on the second day the matter was adjourned for a short time to enable him to formulate a proposal in the event that I do permit the child to relocate with her mother. After the adjournment, his counsel advised that the father had abandoned his proposal that the child live with him in the event of the mother relocating to Melbourne and instead sought very similar orders to those being sought by the mother, save that:
·he should have the child with him for the entirety of the Easter break; and
·that the child spend an additional weekend with him per school term.
He agreed that airfare costs should be shared on a 75/25 basis for time spent with the child in Tasmania but he would pay his own airfares for time that he would spend with the child in Victoria.
It appeared to me that the father’s variations to the mother’s proposals were generally accepted by her.
On the third day of the hearing, the father’s counsel handed up a minute of the orders sought by the father in the event that the child’s relocation is permitted. That is Exhibit “H7”. The orders he sought are:
A. That whilst the father resides in Tasmania and upon the child commencing full time school, the father shall spend time and communicate with the child as follows:
(a) In Tasmania during every Easter holiday period.
(b) In Tasmania for the entirety of the child's Victorian school holiday periods at the end of Term 1, 2, and 3 from the Saturday immediately after the conclusion of the term until the Saturday immediately prior to the start of the next term.
(c) During the Victorian school term for a minimum of three weekends as agreed between the mother and the father, but failing agreement:
(i) The first such weekend is to be the second weekend after the last weekend in the preceding school holiday period and is to occur in Tasmania.
(ii) The second such weekend is to be the fourth weekend and shall occur in Victoria.
(iii) And the third weekend is to be the sixth weekend and occur in Victoria.
(d) In each odd numbered year in Tasmania from 12 noon on Christmas Eve until 12 noon on Christmas Day.
(e) In each even numbered year in Tasmania from 12 noon on Christmas Day until 12 noon on Boxing Day.
(f) In odd numbered years for the first half of the long summer school holiday period in Tasmania.
(g) In even numbered years for the second half of the long summer school holiday period in Tasmania.
B. That in the event the father moves to and resides in Melbourne Victoria and upon the child commencing full time school, the child, shall spend time and communicate with the father as follows:
(a) On a two weekly rotation;
(i) In week 1 from after school on Thursday to the commencement of school on Monday; and
(ii) In week 2 from after school on Thursday to the commencement of school the following Friday.
(b) For the purposes of such time the father shall collect and return the child to and from school at the commencement and conclusion of his time.
(c) For one half of all the Term 1, 2 and 3 school holiday term breaks at times agreed between the parties but failing agreement for the first half commencing after school on the last day of the school term and concluding at 5.00 pm on the second occurring Saturday.
(d) For one half of the Christmas holiday breaks being shared in fortnightly blocks as follows:
(i) In those holidays commencing in even calendar years the father have the first fortnight
(ii) In those holidays commencing in odd calendar years the mother has the first fortnight.
(e) At Easter as follows:
(i) In even calendar years from after school on the Thursday before Good Friday until 5.00 pm Easter Saturday;
(ii) From 5.00 pm on Easter Saturday until commencement of school the following Tuesday.
(f) At Christmas in accordance with Order 7A (d) and (e).
(g) In the event that Father’s Day does not fall during a spend time with period, then from 10.00 am until 6.00 pm on Father's Day.
(h) In the event that Mother’s Day falls within the father’s time spent with the child pursuant to these Orders such time shall be suspended from 10.00 am on Mother’s Day and the child shall otherwise return to the mother's care.
C. That the child spend time with the father at such further and/or other times as may be agreed between the parties.
I note that orders sought by the father as set out at paragraph 9 above were clearly not what he wanted; essentially they represented his “worst case scenario”. Throughout the hearing, he remained opposed to the child relocating at all.
The evidence
The father initially relied upon two affidavits of his own, one from his sister and one from his general medical practitioner. However, on the third day of the hearing, he submitted a third affidavit about the difficulties that he has with his stammer and using telephones. The father was cross-examined, but his sister and his GP were not.
The mother relied upon two affidavits of her own and one from her husband-to-be, Mr N. The mother was cross-examined but Mr N was not.
Oral evidence was also given by the Family Consultant, Ms B. She had provided a Family Report dated 15 December 2011 (“the Family Report”).
Background
The parties started living together in 2001 and were married in 2004. They separated in January 2011 and were divorced in mid-2012. The child who is the subject of these proceedings is their only child. She will be five years old later this month.
The father is an [occupation omitted] employed by a family business, in which his cousin is the managing partner. He is involved in [activity omitted].
The mother has formed a relationship with a Mr N and they wish to get married. Mr N has good employment in Melbourne and the mother appears likely to be able to transfer her employment to Melbourne. She works for a [omitted] company that has transferred some of its employment positions from Tasmania to Melbourne and some of the work that she does now involves her travelling to Melbourne.
The child currently lives predominantly with the mother but spends time with the father in accordance with consent orders made last February. Those orders provide for the child to spend three nights with her father in one week and one night with him in the next week, but the evidence is that the child has spent even more time with her father than is provided for in the orders.
Legal principles to be applied
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration.[1]
[1] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met 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; and
·protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [2]
[2] See subsection 60B(1)
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
·children have the right to know and be cared for by both their parents; and
·children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children.[3]
[3] See subsection 60B(2)
In determining what is in a child’s best interests I must consider the matters set out in section 60CC. It refers to “primary considerations” and “additional considerations”.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and 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.[4]
[4] Subsection 60CC(2)
The court must also take into account those of the “additional considerations” that are relevant.[5]
[5] Subsection 60CC(3)
The court must apply a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child, or in family violence. [6] 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.[7]
[6] Section 61DA
[7] Subsection 61DA(4)
If a parenting order is to provide that the parents are to have equal shared parental responsibility for the child, the court must:
·consider whether spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable; and
·if it is, consider making an order to provide for the child to spend equal time with each of the parents.[8]
[8] Subsection 65DAA(1)
However, if an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that is reasonably practicable.[9]
[9] See subsections 65DAA(2) and (3)
The High Court decision of MRR v GR[10] has clearly stressed the importance of what is “reasonably practicable”. Their Honours[11] made it clear that if it is not open to a Court to find that it is reasonably practicable, within the meaning of s.65DAA(1)(b) of the Act for a child to spend equal time or substantial and significant time with each parent, then it is not open to a Court to consider making an order as described in s.65DAA(1)(c). [12]
[10] MRR v GR (2010) FLC 93-424
[11] French CJ, Gummow, Hayne, Kiefel And Bell JJ
[12] Also see Wainder & Wainder (2011) FLC 93-473
The law in relation to relocation of children was very fully set out by Boland J (sitting as the Full Court on an appeal from a decision of a Federal Magistrate) in Morgan & Miles[13] and I think that it is worth repeating what she said at paragraphs 80 and 81:
80. It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount but not sole consideration;
- that a parent wishing to move does not need to demonstrate “compelling” reasons;
- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
[13] Morgan & Miles (2007) FLC 93-343
remain valid.
81. What the legislation now requires is:
- consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
- if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
It is not surprising that relocation cases often cause significant anguish for the litigating parents and are difficult for courts to decide. The difficulties were succinctly put by FM Brown in P & P as follows:[14]
Relocation cases are invariably very difficult for all concerned, involving as they do two competing and irreconcilable claims of right. These claims of right arise when the parents of a child have separated and for legitimate reasons wish to take different directions as to where they will live in future. On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees fit, both as a parent and as an individual, separate from the other parent concerned. On the other hand, it is the right of a child to maintain a meaningful relationship with both his or her parents, in the now changed circumstances of his or her parents’ separation.
[14] P & P [2006] FMCAfam 518 at paragraph 25
Earlier in his decision in P & P FM Brown had also said this:
There is no satisfactory outcome in this case. The various options available cannot be manipulated like the surface of a Rubik’s Cube to reach a perfect result.
It is clear that the court is not necessarily bound to accept either of the parents’ proposals for parenting orders. The court must craft orders that it considers to be in the best interests of the child. See KB & TC.[16]
[16] KB & TC (2005) FLC 93-224
Terminology
In a 2008 decision,[17] FM Walters (as he then was) said:
Although the law now refers to a child “spending time” with a person (usually a parent) with whom the child does not live, I shall use – from time to time in these Reasons – the obsolete term “contact”. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.
[17] Mills & Watson [2008] FMCAfam 2
In both Carpenter and Lunn [18] and Chappell and Chappell [19] slightly differently constituted Full Courts of the Family Court had expressed similar views when they said:
… … The new legislation replaced the legal concept previously known as “contact” with the concept of a child “spending time” with someone. The legislation, however, does not prohibit the use of the noun “contact” in its everyday sense. In these reasons, we propose to use “contact” interchangeably with expressions such as “spend time with”. In doing so, we have not ignored the legislative intent, but rather have avoided the linguistic gymnastics that would otherwise have been necessary.
[18] Carpenter and Lunn (2008) FLC 93-382 (Finn, Boland & Thackray JJ -19 August 2008)
[19] Chappell and Chappell (2008) FLC 93-377 (Warnick, Boland and Thackray JJ -15 September 2008)
In my view, those comments make grammatical and legal common sense, so from time to time in these Reasons I will use the word “contact” interchangeably with terms such as “spend time with” and “communicate with”.
General comment
Before turning to consider the evidence in the light of the relevant legal principles, I wish to say a few words of thanks and congratulations to the parties. In this jurisdiction, one is very often faced with allegations of violence, drug abuse, alcohol abuse, gambling and even abuse of children. It is therefore a pleasant change to hear a matter where no such allegations are made and where the dispute is between two very competent and committed parents. However, while I can say that it is a pleasant change, it does not necessarily make the decision an easy one. Indeed, decision making can be made more difficult when both parties are competent and committed parents.
Indeed, I note that Ms B conceded in her oral evidence that this matter is finely balanced and the outcome is not obvious.[20]
Primary considerations
[20] See page 42 of the Transcript
The benefit to the child of having meaningful relationships with both parents
The term “meaningful relationship” in relation to section 60CC has been considered by the Family Law Courts in Australia in a number of cases. For example, in Mazorski and Albright,[21] Brown J said this at paragraph 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 quantitative one. Quantitative 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.
[21] Mazorski and Albright (2007) 37 Fam LR 518
The Oxford Dictionary of English[22] defines “meaningful” as “serious, important or worthwhile”, and I consider that “worthwhile relationship” is synonymous with “meaningful relationship” for the purposes of section 60CC.
[22] 2nd Edition revised
In M & S,[23] Dessau J said at paragraph 45:
I am conscious that a long-distance relationship, with longer but less frequent times spent together, is inevitably different from a relationship where people live closer together with regular face to face contact. But it does not in itself mean it cannot be meaningful.
[23] M & S (2007) FLC 93-313
In the relocation case of Godfrey & Sanders,[24] Kay J (sitting as the Full Court) said:
The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child's best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child's parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case. [25]
[24] Godfrey & Sanders [2007] FamCA 102 (23 February 2007)
[25] At paragraph 33
He went on to say:
Even 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. [26]
[26] At paragraph 36
Although there has been some criticism of those last comments by Kay J in Godfrey & Sanders by a well respected former judge of the Family Court of Australia,[27] I note that their Honours of the Full Court of the Family Court of Australia have three times referred to those comments by Kay J without apparent criticism.[28]
[27] See the article by Prof. Richard Chisholm: “The meaning of ‘meaningful’: Exploring a key term in the Family Law Act amendments of 2006” in (2008) 22 Australian Journal of Family Law, commencing at page 193.
[28] See Moose & Moose (2008) FLC 93-375 at paragraph 70 (May, Boland and O'Reilly JJ), McCall & Clark (2009) FLC 93-405 at paragraph 116 (Bryant CJ, Faulks DCJ and Boland J) and Sigley & Evor [2011] FamCAFC 22 at paragraph 135 (O’Ryan, Strickland and Benjamin JJ)
Clearly, the benefit to a child of having a meaningful relationship with both parents is one of a number of factors to be considered under section 60CC, but nowhere in the Act does it state or imply that having a meaningful relationship with both parents “trumps” all of the other considerations under section 60CC. It is a matter of the weight to be attributed to each relevant factor in the specific circumstances of the particular case. I repeat that Kay J said in Godfrey & Sanders that section 60CC “does not seek to mandate that any one or other matter becomes determinative in any particular case”.
In relocation cases any potential diminution in the quality of the relationship with the non-relocating parent needs to be seriously considered. Naturally, such a qualitative diminution could come about simply as a result of a quantitative diminution in contact between that parent and the child.
In this case it is quite clear, not only from the parties’ own evidence, but also from the Family Report and the oral evidence of Ms B that the child has a warm and loving relationship with both of her parents. In the Family Report, Ms B said that the child “has a secure emotional attachment to both parents”.[29] I will refer further to the child’s relationships with her parents below, but it is my view that the word “secure” is very significant in those that I have quoted.
[29] Family Report at paragraph 54
In his written submissions, counsel for the mother said that the proposal put forward by the mother for contact between the child and the father is “generous when compared with cases of a like type”. I accept that to be so, both in relation to the time offered and her willingness to contribute significantly more than the father towards the cost of airfares for face-to face contact. Not only will it mean that the child and the father will be able to spend time together for three weekends in each of the four school terms, they will also be able to spend significant proportions of the child’s school holidays together.
Because of the “generosity” of both parties’ proposals for the father’s face-to-face contact with the child in Tasmania and Victoria, I am satisfied that there will be no significant diminution in the meaningfulness of his relationship with the child. In other words, his relationship with her will continue to be worthwhile.
I am aware of the father’s stated difficulties in relation to communication by telephone and Skype, but I do not consider those to be so significant that they will result in a diminution in the quality of his contact with the child. However, I will refer to his stated difficulties in greater detail below.
The need to protect the child from harm from abuse, neglect or family violence
Thankfully, this is not a relevant factor in this matter.
Relevant additional considerations
The child’s views
Clearly, at nearly five years old, the child is not sufficiently mature to have a meaningful view about the issues before the court.
The child’s relationships with the parents and other people
As I have already said, the evidence is clear that the child has secure emotional attachments to both of her parents. In cross-examination, the father conceded that the child loves both of her parents, and that he has a special bond with the child.[30]
[30] See transcript at page 83
Ms B said this at paragraph 49 of the Family Report:
When observed firstly with her mother in the children’s assessment room, [the child] was very wary and continued to stay close to her mother who quietly and gently engaged in [the child]’s game. They were very comfortable together. It was arranged for Mr N to enter after a while and he came in smiling with a cheery greeting to which [the child] responded positively. Mr N asserted an interactive role with [the child] and spoke affectionately with her. The interaction between [the child], her mother and Mr N was all very relaxed and positive. [The child] seemed familiar and emotionally secure with both of them.
It is logical to assume that the child’s relationship with Mr N had become even closer by the time of the hearing because she had been to Melbourne at least three times since March 2012 and Mr N had visited Tasmania on at least five occasions over the same period.
Clearly, the child’s relationship with her father is warm and loving. Although Ms B observed that the father “tended to hover rather intrusively around [the child] and obviously tried to elicit what he thought would be useful responses from her”, she went on to say that he “was probably very keen to create a positive impression, which was not necessary, as there was obviously a mutually warm and responsive relationship between them”.[31]
[31] Family Report at paragraph 50
Ms B noted that the paternal grandparents engaged wonderfully with the child in their individual ways. She also noted that the child’s relationship with her paternal grandparents is a great asset to the child.[32]
[32] Also at paragraph 50
I also accept that the child has warm relationships with the father’s sister, her husband and their young child. They spend time with the father and the child every time that the child is in the father’s care; they only live approximately two kilometres from the father’s home. The evidence of the father’s sister about these matters was not challenged.
I also infer that the child has a warm relationship with her maternal grandmother. The evidence is that she looks after the child quite regularly.
The willingness and ability of the parents to facilitate and encourage the child’s relationships with the other parent
At the time of his interview for the Family Report, the father was clearly concerned that the mother would not promote his relationship with the child.[33] However, matters have moved on since that time and I note that in February 2012 the parties agreed to consent orders extending the father’s time with the child, and further, since then the mother has initiated the child spending additional time with the father in excess of that provided for in those consent orders. Those times have usually been when the mother has gone to Melbourne. Certainly, there have been other times when the mother has arranged for her own mother to look after the child when she has gone to Melbourne, but I do not find that to be unusual.
[33] See paragraph 23 of the Family Report
In the Family Report, Ms B had said:
Although undoubtedly [the mother] supports [the child]’s relationship with her father in principle, it was difficult to be confident that [the mother] has supported [the child]’s relationship with her father to the fullest extent of the opportunities available.
However, when she was cross-examined in October 2012, Ms B conceded that she no longer held the concerns “about the mother promoting time with the father” that she had held in November 2011.[34]
[34] See page 39 of the Transcript
In his written submissions, counsel for the father said:
… in this case it is significant that the application commenced, as evidenced, with the father seeking to gain time with the child which had been agreed in a parenting plan between the parties, but which the mother refused to apply. The mother’s response was essentially an application to relocate to Melbourne.
That is factually incorrect. The court record clearly reveals that the father was well aware of the mother’s desire to relocate to Melbourne when he filed his Initiating Application in August 2011, because he annexed to his first affidavit a letter from the mother’s former solicitor’s dated 4 July 2011 which stated:
My client has a new relationship and her partner lives and works in Victoria. She wishes to join him and live in Melbourne with [the child]. She believes that there would be long term benefits for both [the child] and herself in such a relocation. She is conscious however of the need to promote a meaningful relationship between [the child] and her father.
I note that, in the orders sought in her Response filed 19 September 2011, the mother included much of the “generosity” that I have referred to above in relation to both time to be spent with the father and payment of airfares. In the orders now sought by the father as referred to at paragraph 9 above, he has adopted and expanded upon that generosity slightly. The mother generally accepted that expansion, which gives me confidence that the mother will promote the child’s relationship with her father if relocation to Melbourne is permitted.
The likely effect of any change in the child’s circumstances
The mother and the father currently reside on the North West Coast of Tasmania. However, I accept the evidence of the mother and Mr N that:
·job opportunities for Mr N are much better in Melbourne than in Tasmania generally;
·there are no job opportunities for Mr N on the North West Coast of Tasmania;
·if relocation to Melbourne is not permitted, Mr N would return to live in Tasmania, but he would probably have to look for jobs in either Launceston or Hobart.
I note that the father could accept a move by the mother with the child to Launceston, because that is relatively close to where the father currently lives and he could still collect the child after school. His words were:
That would be very easy still. It’s only an hour or so drive, so yes, it wouldn’t be a problem.
Although the father was opposed to a move by the child to Hobart, he appeared to see it as a marginally better option than a move to Melbourne.[35]
[35] See page 76 of the Transcript
With all this in mind, it is clear that changes in the child’s circumstances are inevitable, irrespective of whether relocation to Melbourne is permitted or not.
For reasons that I do not understand, the father appears to believe that living in Melbourne has little to offer the child. Ms B reported:
In any case, [the father’s] view that Melbourne offers no compelling lifestyle benefits to [the child] was very firm.
I think that I can take judicial notice of the fact that living in a big city can have some benefits that are not available in smaller cities, and that for different reasons, the converse also applies.
Although at the start of the hearing the father’s position was clearly that he would not move to Melbourne himself if I permitted the child to move, it is very much to his credit that by the third day of the hearing he was willing to contemplate such a move. That simply confirms to me his deep love for, and his commitment to his daughter.
Clearly, whatever I decide in relation to relocation will inevitably result in one parent being unhappy with the decision.
At paragraph 18 of his written submissions, counsel for the father said:
Moreover, it is suggested that in considering and weighing all of the evidence, the court would conclude that if relocation were permitted the father and his family would be devastated, and the child would lose significant benefit.
I accept that the father would be very unhappy if the court was to approve the child’s relocation with the mother to Melbourne. However, the word “devastated” is somewhat subjective and I do not see in the evidence any causal connection between the father being very unhappy and any loss by the child of significant benefit.
The mother did not use the word “devastated” about her feelings but she did say in cross-examination that she would not be able to cope with not being allowed to relocate to Melbourne with the child. [36] That clearly suggests that she would be very unhappy with such a decision.
[36] Transcript: Day 3 at page 147
In Taylor & Barker,[37] the majority of the Full Court said:
[37] Taylor & Barker (2007) FLC 93-345
109. Happiness is a state of mind to be inferred from evidence. The terms "happiness" and "contentment" were his Honour's conclusions as to the mother's state of mind, being reasonable inferences which could be drawn from the findings which he made in paragraph 50 of his reasons for judgment :
· She is in love with Mr B and wants to marry him.
· She wants to share her life with him.
· She has a child by him and wants to share the joys of parenthood with him.
In this case, the mother is in love with Mr N and wants to marry him. She wants to share her life with him. Although she does not yet have a child to him (as was the case in Taylor & Barker), I can infer that her happiness and contentment will be enhanced by living with Mr N in Melbourne. Conversely, I can also infer that her happiness and contentment will be reduced if she is not permitted to live with him in Melbourne.
In relation to the mother’s happiness, this exchange took place between counsel for the mother and Ms B:
Mr Turnbull: One issue, or one factor that I can’t see in your report and perhaps its something that you considered or maybe I’ve missed it, but isn’t it also a very – very relevant factor when considering issues like a relocation, isn’t the happiness of the primary carer also a very relevant matter when considering these issues?
Ms B: Yes.
Mr Turnbull: And so, because – so, if the general happiness and quality of life of the primary carer can be improved by virtue of a relocation, that’s – if the relocation is then allowed – can have positive, in itself, have positive things for the child, can it not?
Ms B: On balance, yes.
Mr Turnbull: Positive consequences for the child because the child then has a happier parent, a more fulfilled parent and that leads to a better outcome, generally, for the child. That’s true?
Ms B: Yes.
Counsel for the father attempted to portray the mother’s relationship with Mr N as being a potential negative change in circumstances for the child. At paragraph 20 of his written submissions, he said:
It is respectfully submitted that the court will also have pause (sic) to consider the unknown quality of the mother’s relationship with Mr N. The family reporter gave evidence about that in her report and in evidence. Ms B had concerns that they had formed a relationship in the context of their corporate life, but had not yet experienced how that might be different from living together. The family reporter concluded that there is an element of the unknown about that transition.
However, that submission ignores the evidence given by Ms B when she was cross-examined by the mother’s counsel. During that cross-examination, this exchange took place: [38]
Mr Turnbull: Now, first of all, if I can deal with the relationship with Mr N. What we do know, and I think you can accept it as an objective fact, is that not only is the relationship continuing, Mr N is here to give evidence for the mother, that what we can say about Mr N – well, what we can interpret about Mr N is that he’s still on the scene, living through what has to be one of the hardest things to actually be part of; that is, someone’s court case involving their children. Given the fact that he is still on the scene and still actively involved in this process, giving evidence in these proceedings and clearly still in a relationship with the mother. That must give you confidence that, in fact, this is a relationship that – and we can never say anything about any relationship, of course, but we must now be more confident about the fact that that relationship is an enduring one?
Ms B: Yes.
Mr Turnbull: So perhaps that unknown is a little more known?
Ms B: Yes, a little more. Yes. I didn’t have such great doubt about their relationship lasting.
[38] See pages 23 and 24 of the Transcript
I note that in his unchallenged affidavit evidence Mr N said that:
·He and the mother were engaged to marry;
·They would like to have children together; and
·The mother is his “number one priority”.
I am satisfied on the evidence before me that the relationship between the mother and Mr N is strong.
The practical difficulty and expense of the child spending time with and/or communicating with a parent
I do not have any concerns in relation to difficulty and expense of the child spending time with the father if the child is to move to Melbourne. That is because the parties appear to have agreed the basics of how the child will spend time with the father and how it will be funded.
However, only late in the hearing the father raised some difficulties in relation to him having telephone or Skype communication with the child. As mentioned above he filed a third affidavit to deal specifically with this matter on the third day of the hearing. In that affidavit he said the following:
I speak with a stammer. This means that I commonly experience fluency blocks when speaking. I have to lean forward to properly articulate my words and cannot make long and expansive answers.
I have developed a phobia about speaking to other people, on the telephone and in public. I still have difficulty in conducting telephone calls, and experienced panic attacks in anticipating telephone calls. I have sought counselling for this.
He went on to say that he had been embarrassed to raise or discuss that with his lawyers.
In his earlier evidence given on the second day of the hearing the father had said that it was the child who would have difficulty communicating by telephone and Skype. I then asked him why he had said in one of his affidavits that he would do everything to encourage the child to speak to the mother on the telephone or by Skype.[39] He then disingenuously responded that it was something that his lawyers had put in his affidavit as something to help his case and that he “didn't really mean for that to be in there”.[40]
[39] At that time he was seeking an order that the child live with him if the mother was to move to Melbourne.
[40] Pages 97 and 98 of the Transcript
I note from the unchallenged evidence of Mr N that the child is already familiar with the use of Skype.[41] Further, I note also that the father is familiar with Skype because he has used that medium to communicate with his sister on a number of occasions when she was overseas.[42]
[41] Paragraph 21 of his affidavit
[42] Page 120 of the Transcript
Having heard the evidence of the father, and being fully aware of his love for his child, I am satisfied that he will make every effort to be able to communicate with her by telephone and/or Skype if she is living in Melbourne.
The capacity of the parents to provide for the child’s needs
There is nothing in the evidence to suggest to me that either parent is unable to provide for the child’s needs. In this regard, I do not accept that either the father’s cross-country running or his health has any adverse effect upon his capacity to care for the child.
The attitudes of the parents to the child and to parental responsibilities
I have already said that both parties are competent and committed parents, so I need say no more about this section 60CC consideration.
Whether it is preferable to make an order that is least likely to lead to further litigation in relation to the child
There is no evidence to suggest that, if I make orders that the mother wants, it will be more likely to lead to further litigation. However, there is the possibility that if I refuse the mother permission to take the child to live in Melbourne, she may need to make an application to move to Hobart if that is where Mr N obtains employment. I will therefore take this into account in my decision.
Should relocation to Melbourne be permitted?
At paragraph 17 of his written submissions, counsel for the father said:
The mother has offered what has been described as generous time with the father if she relocates, but it is not the time that is mandated by s65DAA(3).[43]
[43] My emphasis
Subsection 65DAA(3) reads as follows:
For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) 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.
If the use of the words “mandated by s65DAA(3)” by the father’s counsel was intended to suggest that the court cannot permit a relocation in this case because it will not be possible for the father to spend time with the child on “days that do not fall on weekends or holidays”, or for him “to be involved in the child’s daily routine”, then I do not accept that to be legally correct. That is because it would logically follow that courts could never permit a child to relocate to any place that is a significant distance from one of the parents. Clearly, that cannot be the case and it would be inconsistent with the High Court decision in MRR v GR.[44]
[44] MRR v GR (2010) FLC 93-424
Further, subsection 65DAA(2)(d) requires the court to “consider whether the child spending substantial and significant time with each of the parents is reasonably practicable”[45] and subsection (5) sets out the matters to which the court must have regard in determining what is reasonably practicable. They include “how far apart the parents live from each other”.[46]
[45] My emphasis
[46] Subsection 65DAA(5)(a)
When she wrote the Family Report, Ms B recommended that the child “live with her mother in northern Tasmania”. However, with the passage of time between the writing of that report and with the provision of more information to her in the witness box, Ms B appeared to be more equivocal. When Mr Turnbull put it to her that, given what she had read, heard and had been put to her, relocation could be an outcome that is in the child’s best interests, she responded: “It could be.” Immediately before that, she had observed that the outcome in relation to relocation is not obvious and that the matter is finely balanced. [47]
[47] See page 42 of the Transcript
In cases that are finely balanced, it may be just one criterion that becomes decisive in determining the outcome. In Taylor & Barker [48] the decisive criterion was the happiness and contentment of the child’s primary carer. The majority said this at paragraph 113:
It will be seen from the passages from his Honour’s judgment which we have set out throughout these reasons, that this was a difficult and finely balanced decision. In such a case one factor will usually become decisive. In this case his Honour determined that that factor was the mother’s happiness and contentment. In such a case where, as his Honour noted, the mother wanted to marry and be with the father of her second child, it could not, in our view, be said that his Honour was wrong in elevating this factor together with the impact on the mother and on the subject child of her not being permitted to relocate to join the man whom she wanted to marry, to be the decisive factor or factors in this case.
[48] Taylor & Barker (2007) FLC 93-345
In this case, the situation is very similar. The mother wishes to live with the man she loves in Melbourne and I conclude that she will be very unhappy if she is not allowed to do so. In that regard, I do not accept the submission made by the father’s counsel “that if the relocation were not permitted the mother would be inconvenienced”.[49] The effect on her will be significantly greater than mere inconvenience. That much is clear from her evidence that she would not cope but would “do her best to work around it”.[50]
[49] Paragraph 18 of the written submissions
[50] See page 147 of the Transcript
The parties are in agreement that the child should continue to live predominantly with the mother, so any decision that makes the mother very unhappy about where she lives is likely to have a negative impact upon the child. This is a logical corollary to the evidence of Ms B about the mother’s happiness as set out at paragraph 77 above.
In Morgan & Miles, Boland J also said this:[51]
This leads me to conclude that it is not distance per se which should be the determinative criteria (sic). In many cases what is relevant is the consequence of the move or proposed move. The issues to be determined may be quite different for example, for an infant or toddler developing attachments, to those of older children; or for economically impoverished families where fuel costs may be unaffordable thus impeding maintenance of a meaningful relationship. Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non relocating parent particularly if the child has a history of living predominantly with the relocating parent, and spending time with the other parent where, with alternate arrangements, the child’s relationship with the non relocating parent can be maintained and fostered.
[51] Morgan & Miles (2007) FLC 93-343 at paragraph 91
When I weigh up the relevant criteria in this matter, I conclude that it is in the child’s best interests to permit her to live in Melbourne with her mother on the basis that her meaningful relationship with her father is maintained by regular and frequent contact.
Equal shared parental responsibility
Both parties seek an order for equal shared parental responsibility and that is clearly appropriate, because:
·the presumption under section 61DA applies; and
·both parties are competent and committed parents.
Because I propose to make an order that the parents are to have equal shared parental responsibility for the child, I must consider whether spending equal time with each of the parents would be in the best interests of the child and be reasonably practicable. It is perfectly clear that it is not reasonably practicable if one parent lives in Tasmania and the other lives in Victoria.
Exactly the same impracticability applies to the child spending “substantial and significant time” with each of the parents.
Contact orders
As I have said above, the parties are in broad agreement about the type of contact orders that I should make if the mother is permitted to take the child to live in Victoria. That said, however, there is one area of disagreement that I need to resolve.
The mother initially sought orders that would provide for the child to spend time with the father for half of each school holiday at Easter (with the particular half alternating annually) and for the entirety of the child’s Victorian school holidays periods at the end of Terms 2 and 3. The father sought time with the child during “every Easter holiday period” and “for the entirety of the child’s Victorian school holiday periods at the end of Term 1, 2 and 3”.
Although the dates for the Easter period can vary quite significantly from year to year,[52] Easter generally occurs during the school holiday at the end of Term 1 in Victoria. Consequently, the major difference between the parties is whether the child should spend every Easter with her father or only each alternate Easter.
[52] That is because Easter Sunday is the Sunday immediately following the paschal full moon.
In my opinion, it is not appropriate for her to spend every Easter with only one parent. To deprive a child of the enjoyment of ever spending an Easter period with one of the two parents that she loves is just not in her interests. I therefore propose to make an order that provides for the holiday at the end of Term 1 to be “shared” on an alternating yearly basis. Although, the mother appeared through her counsel to be prepared to limit her time with the child to only two days of the Easter period, I consider it more appropriate for the whole Easter period to be spent with one parent or the other. In my view, that is best achieved by dividing the school holiday at the end of Term 1 equally but with the Easter period alternating yearly.
The father may decide to move to Melbourne (although that appears to me to be unlikely at this stage). He therefore sought orders to provide for that eventuality. His counsel described the orders he sought in relation to that as a “back stop order” to avoid another application to the court if he decides to move. That fits with section 60CC(3)(l) and the orders sought by him provide for “substantial and significant time”. I therefore propose to make such orders.
The orders
The orders that I make are set out at the start of these Reasons.
Having determined that the mother should be permitted to relocate to Melbourne, the orders that I make in relation to the father spending time with the child are in large part in accordance with those sought by the father in Exhibit “H7”. However, I have modified them to some extent to suit my personal drafting style.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
Date: 9 January 2013
[15] At paragraph 21
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