Adair and Adair
[2018] FCCA 2097
•23 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADAIR & ADAIR | [2018] FCCA 2097 |
| Catchwords: FAMILY LAW – Parenting – relocation. |
| Legislation: Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC,61DA, 65DAA |
| Cases cited: Paskandy v Paskandy (1999) FLC 92-878 Taylor v Barker (2007) 237 Fam LR 461 MRR & GRR [2010] 240 CLR 461 |
| Applicant: | MS ADAIR |
| Respondent: | MR ADAIR |
| File Number: | LNC490 of 2017 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 31 July 2018 & 1 August 2018 |
| Date of Last Submission: | 1 August 2018 |
| Delivered at: | Launceston |
| Delivered on: | 23 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Sawyer |
| Solicitors for the Applicant: | Womens Legal Service Tasmania |
| Counsel for the Respondent: | Mr Kaehne |
| Solicitors for the Respondent: | Tasmanian Aboriginal Community Legal Service |
ORDERS
That all extant Orders in respect of the children [X] born 2010 and [Y] born 2012 (“the children”) be discharged.
That the parents have equal shared parental responsibility for the children.
That the children live with the mother.
That the children spend time and communicate with the father as follows:
(a)On one week end each calendar month as agreed between the parties but failing agreement then for the last weekend of the month from Friday afternoon until Sunday evening at times to be agreed between the parties and with the changeovers to occur at Launceston or such other venue as may be agreed between the parties from time to time;
(b)For one half of the Tasmanian gazetted term school holidays as agreed between the parties but failing agreement then for the first half of term school holidays in 2018 and each alternate year thereafter and the second half of term school holidays in 2019 and each alternate year thereafter;
(c)For one half of the Tasmanian gazetted summer school holidays in each year as agreed between the parties but failing agreement then for the second half in 2018/19 summer holidays and each alternate year thereafter and the first half in the 2019/20 summer holidays and each alternate year thereafter;
(d)At such other times or variations of the above as may be agreed between the parties from time to time; and
(e)By Skype, Face Time, telephone, email or any other media on a reasonable basis and for these purposes the parties each permit the children reasonable contact with the other parent.
IT IS NOTED that publication of this judgment under the pseudonym Adair & Adair is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
LNC 490 of 2017
| MS ADAIR |
Applicant
And
| MR ADAIR |
Respondent
REASONS FOR JUDGMENT
Applications
These proceedings are in respect of the parties’ two children, [X] born 2010 (aged 7 years) and [Y] born 2012 (aged 6 years).
The mother is an applicant seeking orders that the children live with her in Suburb A, Tasmania which is in Hobart. The father proposes for the children to remain living with him in Town 1 being in Town 1 in far north-west Tasmania. The travel distance between the parties’ homes approximates 4.5 hours. Given that the parties previously lived together with the children in Town 2, the mother’s Application is what is colloquially known as a ‘relocation’ application, although the task for the Court is more generally to consider the best interests of the children in respect of their living and parenting arrangements.
Each of the parties proposes similar orders for the children to spend some weekend time and half of school holidays with the other parent.
Despite allegations of family violence and the mother relying on that issue in part in support of her Application to relocate, both parties advocate an order for equal shared parental responsibility.
The mother says that should the Court order that the children remain living in Town 2 then she will not return but will remain living at Suburb A.
Background
The father is 39 years of age. The mother is 33 years old. They commenced a relationship in 2007 and when both were working as (occupations omitted).
The parents relocated to live in north western Tasmania in 2009. The mother is originally from Western Australia. The father is from the Town 2 region and his extended family continue to live there.
[X] was born in 2010 and [Y] in 2012. For just over a year in 2015 and 2016 the parties operated a business. The mother is a qualified (occupation omitted) and has worked variously in the (omitted) industry in Town 2. The father works as a (occupation omitted).
The parties separated on 5 May 2017 when the mother and the children left the former matrimonial home.
On or about 29 June 2017 the father entered the mother’s home and assaulted her now partner. He was charged with assault on a Mr E and assault on the mother by reason of “pushing her aside”. The matter was dealt with by pleas of guilty in the Magistrates’ Court involving the following charges:
(a)Assaulting the mother on 29 June 2017;
(b)Assaulting Mr E on 29 June 2017;
(c)Damage to the mother’s front door on 29 June 2017; and
(d)Trespass for entering the property on 29 June 2017.
The father received fines with no convictions recorded.
The father was further charged with breaching a Police Family Violence order on 17 August 2017 by sending numerous text messages to the mother.
The father has no other prior convictions for matters of violence. The mother, however, deposes in her affidavit to a propensity in the father for family violence within the broad definition in the Family Law Act 1975 (“the Act”) during the course of the marriage.
On 11 May 2018 the mother unilaterally relocated with the children from Town 2 to Suburb A, although apparently giving the father some notice of her intentions in the preceding months.
The father brought an Application to this Court filed 15 May 2018. The matter was listed for a first mention and interim hearing on 28 May 2018. The parties on that day entered into interim orders by consent that the children be returned to live with the father in Town 1 pending the hearing of the mother’s Application to relocate the children to Suburb A.
The matter was allocated an expedited hearing given the relocation issue and listed with appropriate priority for trial in this Court in the sittings of the week of 30 July 2018.
The mother remains living in Suburb A. She works as a (occupation omitted) in Suburb B. The father remains working as a (occupation omitted) at Town 2.
Both parties say that they have re-partnered although, perhaps surprisingly, neither party adduced evidence by affidavit or otherwise from their respective partners. The mother says that her partner, the above mentioned Mr E, intends to relocate himself from Town 2 to southern Tasmania later this year. Mr E works as a (occupation omitted) at a Town 2 employer. The father does not even refer to his partner by name in his material but simply says that they do not yet live together.
The Mother’s Case
The mother offers many reasons in support of her application to relocate the children from Town 2 to Suburb A. She says that she has experienced family violence and is fearful of repeat violence at the hands of the father should she remain living in close proximity to him. She says that she is not from Town 2 which she says is a small community and that she has been ostracised within that community since separating from Mr Adair whose family are prevalent within that community and have long historical links to that area of Tasmania. The mother says that to remain in Town 2 would impact negatively on her employment prospects and social interactions. She also says that she has improved employment opportunities in her chosen field in southern Tasmania. The mother says that she has been the primary parent of the children when the father was preoccupied with his employment. The mother says that the children’s education and social prospects are better in southern Tasmania than at Town 2. The mother raises various aspects of the father’s capacity including:
(a)That he does not feed the children;
(b)That he delegates his care of the children to family members; and
(c)That he inappropriately physically disciplines the children.
The mother says that she can provide a more stable life for the children where the father has, of late, introduced many prospective partners into the children’s lives.
The Father’s Case
The father also argues that he can provide more stability for the children. He offers the children continuity of schools, extracurricular activities and peer group relationships where they have habitually lived in Town 2. He says that he can offer them proximate and frequent relationships with their paternal extended family in circumstances where the extended maternal family live in Western Australia. He argues impliedly (or even expressly) that the mother is not secure in her own personal life and references numerous infidelities on her part during their relationship. He says that the children are thriving academically and socially and have established relationships within the community, their church, and with their family. He references the mother’s unilateral relocation of the children in May 2018 as evidence of her lack of insight into the children’s needs to have a relationship with both parents. To this end, he proposes that the children live in an equal time arrangement between the parents should the mother decide to return to Town 2.
The Evidence
Both parents provided affidavits and were cross-examined. Having had the benefit of seeing and hearing both parties give evidence, and not surprisingly, each of their evidence was imbued with some degree of self-interest and I observed each to find it difficult to differentiate between their own “wants” and objectivity in respect of their children’s needs. My observations and the sense of their evidence was that the mother was resigned to the relationship with the father having ended and wishing to pursue her own life ambitions, socially and in her employment. The father, to the contrary, appeared to be still dealing with the grief of the relationship breakdown and perhaps its circumstances. This is not a criticism but merely an observation.
Within these contexts, both parents were fundamentally honest in their evidence, although understandably keen to shore up their own cases and, as is common in such matters, were generally negative in their affidavit and viva voce evidence in respect of the other parent. Closer enquiries and challenges of each parent, however, elicited that each generally respected the other parent and thought them to be fundamentally loving and skilful parents.
As mentioned above, neither party adduced evidence from their partners. This creates some difficulty for the Court where each asks the Court to place the children with them and each proposes another important adult in the children’s lives. No explanation was forthcoming for the failure to bring such evidence to the Court.
The mother adduced evidence from the following:
(a)Ms B – Affidavit filed 13 July 2018;
(b)Ms E – Affidavit filed 13 July 2018;
(c)Ms S – Affidavit filed 13 July 2018; and
(d)Mr K – Affidavit filed 13 July 2018.
Counsel for the father did not seek to cross-examine or challenge the evidence of the deponents of any of those affidavits.
Ms S is the maternal grandmother. She deposes to observations of corporal punishment inflicted by the father on the children and is generally critical of the father and praising of her daughter. She asserts some coercion by Mr Adair on the mother within the relationship. Cross-examination of the mother, however, elicited that the maternal grandmother was an infrequent visitor to the family home and her evidence is partisan and of little assistance.
Mr K is the maternal grandmother’s partner. His evidence is unremarkable over and above that of Ms S and takes a similarly critical tone in respect of the father.
Ms E is a former employer of the mother at a (employer omitted) in Town 3. She alludes to the mother being upset around the time of separation and also to suggestion of inappropriate comment by the father to the children as follows at [10] of her affidavit:
On one occasion approximately 12 months ago, I ran into Mr Adair in the Woolworths car park and he said to me in words to the effect, “Ms Adair left the kids with Ms K on the weekend and when she picked them up [X] asked her in front of everyone, “how many men did you sleep with last night, mummy?”
Ms E also gives some corroboration to the mother’s claim of being isolated within the small community following her separation from the father.
Ms B is an acquaintance of both parents of approximately 4 years duration. She deposes that the father ‘seemed to try and isolate’ the mother from friends that were not from his church or part of his family. She says that she has seen the father physically discipline the children ‘in an excessive way’. Ms B deposes to observing the mother to be the primary hands-on parent during the relationship. She is generally complimentary of the mother’s parenting and critical of the father. She also gives evidence as to the ‘small town environment’ impact on the mother following separation.
Relevant law
It is proper to emphasise that s.60CA of the Family Law Act 1975 (“the Act”) provides fundamentally that the best interests of the children are to be the paramount consideration in Courts determinations of children’s parenting and living arrangements.
Although there is much reference in matters such as these as to them being ‘relocation cases’, notably, the Act itself is silent as to the notion of ‘relocation’. It follows that relocation of children is neither expressly prohibited nor is there a presumption against it at law. That is, a proposal by a parent to relocate children is just one of numerous factors to be considered, given weight, and balanced by trial judges in arriving at orders which, on that balance, meet the children’s overall best interests. The Full Court of the Family Court in Paskandy v Paskandy[1] and later, following significant amendments to the Act in 2006, in Taylor v Barker[2] confirm that a consideration of parenting orders for children should not dissect the matter into discrete issues of, firstly, who the children shall live with and then, secondly, a further or separate issue as to whether a relocation should be ‘permitted’. The Court in Taylor v Barker (supra) noted:
60.In our view, his Honour dealt with the relocation proposed in the context of his consideration of s60CC and s65DAA, at least in so far as it was possible to do so. It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, so far as is possible, in the context of the making of necessary findings in relation to s60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s65DAA.
[1] (1999) FLC 92-878
[2] (2007) 237 Fam LR 461
Section 61DA of the Act offers a presumption that parents have equal shared parental responsibility for their children. “Parental responsibility” is defined in the Act as “…all the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” For all practical purposes, such responsibility usually involves the making of long-term and important decisions for children in respect of issues such as education, religion, medical procedure and similar and is distinct from the more mundane day-to-day decisions that parents would usually be required to make in respect of their children.
The presumption flowing from s.61DA does not apply if the Court is satisfied that there has been family violence or abuse of children. Further, the presumption can be rebutted by evidence satisfying the Court that it would not be in the best interests of the children for the parents to exercise equal shared parental responsibility. Nevertheless, and despite the mother’s revelations and reliance, at least in part, on what she says is a history of family violence, both parents here ask me to make orders for equal shared parental responsibility. Importantly, should the presumption apply and not be rebutted or the Court, in any event, make an order for equal shared parental responsibility then a course of statutory and intellectual consideration follows in respect of the children’s living and parenting arrangements. Specifically, the Court is then required, firstly, to consider whether it is both in the children’s best interests and reasonably practicable for the children to live in an equal time arrangement between their parents. In the matter now before me, the father proposes such a regime as a preferred option on the basis that the mother return to live proximate to he and the children in Town 2.
If, however, the Court is not satisfied as to both the children’s best interests and reasonable practicality of an equal time arrangement, then the Court must move on to consider whether the children living in a regime of ‘substantial and significant time’ between their parents is both in the children’s best interests and reasonably practicable. ‘Substantial and significant time’ is defined in the Act as time which includes both weekend and weekday time for children with their parents and time which allows the children and the parents to enjoy mutual involvement with each other’s activities.
The father’s preferred proposal sits squarely within the consideration of equal time. The mother’s proposal that the children live with her in Suburb A, some 4.5 hours travel from Town 2, fits neither the considerations of equal time or ‘substantial and significant time’. That is, and obviously, the geographical constraints presented by most relocation proposals prevent any practical operation of either an equal time or substantial or significant time arrangement for children between their parents. In this respect the High Court in MRR & GRR[3] observed at [15]:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, and not whether it is deemed that there be equal time spent by the child with each parent. The presumption in s61DA(1) is not determinative of the questions arising under s65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in X, (the trial judge) was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
[3] [2010] 240 CLR 461
At the commencement of the trial, the Court enquired of the mother whether she would consider returning herself to Town 2 if the Court was of the view that the children’s best interests rested with them remaining in Town 2. The mother answered emphatically that she would not be returning.
Given the lack of statutory reference in respect of the concept of 'relocation', it is significant that superior Courts have, over time, extracted a set of 'principles' to assist trial judges in dealing with parenting matters involving a proposed relocation of children. Those principles can be summarised as follows:
(a)Relocation matters are to be determined generally in accordance with Part VII of the Family Law Act and within the context of making findings relevant to the children's best interests with reference to the factors in s.60CC and of the Act and within the context of s.65DAA considerations of 'equal time' and/or 'substantial and significant time' together with considerations of 'reasonable practicability';
(b)The children's best interests remain the paramount but not the sole consideration for the Court;
(c)Neither party bears an onus to establish that either the relocation or a continuation of the status quo will best promote the interests of the children;
(d)The Court is to consider each of the parents’ proposals including the advantages and disadvantages of the proposed relocation but may be required to formulate proposals itself in the best interests of the child;
(e)An applicant for relocation need not show 'compelling reasons' in support of the relocation but must, in my view, give and adduce probative evidence that permits the Court on balance to find that a parenting order involving a relocation of children is ultimately in the best interests of those children; and
(f)The children's best interests must be weighed and balanced with the 'right' of the proposed relocating parent’s freedom of movement but such an adult 'right' must ultimately defer to the children's best interests.
The legislative framework for determining the children's best interests is provided for at s.60B of the of the Act and also at ss.60CC(2) and (3).
Section 60B is directly instructive of and relevant to the matters currently before the Court in that it sets out the objects and principles of the legislation in the following terms:
1.The objects of this Part is to ensure that the best interests of children are met by:
(a) ensuring the children have the benefit of both of their parents having a meaningful involvement in their live to the maximum extent consistent with the best interests of the children; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2. The principles underlying these objects are that (except when it would be contrary to a child's best interest):
(a)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; and
(b)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); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
On a more practical level, the Court is mandated to reference each of the statutory considerations set out in ss.60CC(2) and (3) of the Act. Those considerations are divided into categories of 'primary' and 'additional' but without any hierarchy of importance and each to be more or less relevant in respect of the particular probative evidence and the proposals of the parties.
Section 60CC Considerations
Section 60CC(a) - the benefit to the children of having a meaningful relationship with both their parents.
Despite the tendency in the affidavits of each parent to understate the children's relationship with the other parent and to be generally negative in respect of the other parent, I am satisfied on the evidence before me that [X] and [Y] have been fortunate in their young lives to have established close, loving, dependent and attached relationships with both their mother and their father. In particular, the father was forthcoming in his evidence in the witness box as to the strength of the bond between he and his children. I am comfortably satisfied that the bond between the children and mother is equally established and strong.
These children are seven and six years of age. By reason of their mother’s relocation to southern Tasmania, their relationships with one or other of their parents will be tested by the very change in its frequency and nature. The mother describes the children as 'adaptable'. All the evidence before me suggests that [X] and [Y] are of relative maturity and, as mentioned above, have established and secure relationships with both their parents such that would be tested by but will, in my view, endure the change in nature by reason of the orders that I must inevitably make. Of course, the success or otherwise of the children maintaining relationships with the other parent will rely to a large degree on the insight and capacity of the parent with whom they live in facilitating and encouraging the relationship with the other parent. Again, and despite the negativity in their evidence, I am confident that these parents now are understanding of the children's needs to maintain relationships with both their mother and their father.
Section 60CC(2) (b) - the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Recent amendments to the Family Law Act require me to place 'greater weight' on this factor in my balancing process.
The mother couches her argument for relocation of the children with some emphasis on family violence and her asserted fears of a repetition. Certainly, the father concedes an instance of physical family violence at around the time of the separation. He has pleaded guilty to an assault on the mother and the gentleman who is now her partner. I am satisfied that the 'assault' on the mother was relatively innocuous but his attack on Mr E was brazen and violent and, importantly, occurred in a home where the children, [X] and [Y] were apparently asleep.
The mother in her affidavit material also asserts violence in various other forms including apparent coersion and stalking.
The father pleaded guilty in the Magistrates’ Court and was fined without conviction. This indicates his previous clean record of offences for violence of any type. There is no evidence that he has shown a propensity for further such acts. I accept that his plea of guilty represents a form of remorse. I accept that the circumstances of this event were 'situational' within the context of his marriage breakdown and he becoming aware of another man in his wife's life. This is certainly no excuse or reason for such behaviour but I am satisfied on the evidence before me that he is not generally a person of violent disposition and that there is unlikely to be any repetition.
The mother also alleges that the father physically disciplines the children and suggests that he does so in an overly harsh manner. There is no evidence of the mother herself taking any action during the course of their marriage to moderate the father's mode of disciplining the children. Whether or not she acquiesced to that behaviour, I am content that her concerns have now been brought to the father's attention and he presents as a parent who can adapt his discipline methods accordingly.
Section 60CC(3(a) - the views of the children if any as to their living and parenting arrangements and the weight to be afforded those views given the childrens maturity and level of understanding
These children are just six and seven years of age. There is no evidence of any probity as to any preferences in either of these children as to where they live and their relationships between their parents.
Section 60CC(3)(b) - the nature of the relationship of the children with each of the children's parents and any other relatives.
The mother in the matter now before me claims that she has been the 'primary' parent for these children. This seems to be a clichéd term that has become popular in almost every parenting case that is brought before me but is, in my view, misused in the sense that it is intended to indicate some superiority of parenting capacity and/or criticism of the other parent’s capacity or involvement. From my experience in these Courts, parenting of children involves a plethora of responsibilities and skills and, also from that experience, it is not uncommon for a separation of tasks to develop naturally within family units. It is, therefore, disingenuous, in my view, to simply throw out the term ‘primary' with an expectation of advantage. Nevertheless, the evidence given and adduced in this matter satisfies me that there was such a delegation of roles within this family unit but by necessity only. It is clear that both parties were employed for much of the relationship where the father worked hard and long hours as a (occupation omitted) in order to support his family, as well as assisting in the running of their business. He should be applauded accordingly and should not be subjected to implied criticism. The mother also worked but not to the same hours as the father. It therefore fell naturally for her to take on a greater role in the more mundane day-to-day care of the children as evidenced by her perhaps more frequent duties with their schooling and extracurricular activities such as (hobbies). Fundamentally, however, I am of the view that these children have benefited substantially by the responsibilities taken by each of their parents in their young lives, and that neither role should be seen as suffering as against the other. The nature of the children's relationships have, of course, changed by the advent of the mother's relocation. Initially, she unilaterally relocated the children thereby denying them the frequency of direct contact with their father. My interim orders of June 2018 reversed that situation. Consequently, these children have gone from having both their parents ‘on tap’ within the small Town 2 community to a situation where there is considerable distance between the parents’ homes. Inevitably, this sees one or other of the parents taking on a more dominant role in the care of the children and the nature of the relationship of the children with the other parent takes on a different form accordingly. These circumstances and the nature of the children's relationship will undoubtedly be impacted and entrenched by the determinations I am required to make as to their place of residence.
Section 60CC(3)(c) – the extent to which each of the children's parents has taken, or failed to take, the opportunity to participate and make decisions about major long-term issues in relation to the children or to spend time with the children or to communicate with the children or the extent to which each of the children's parents has fulfilled, or failed to fulfil, the parents’ obligations to maintain them
The relevance of this consideration is the mother’s unilateral decision in May 2018 to relocate these children from Town 2 to Suburb A and the impact on their relationships with their father and other relationships. Her actions, however subjectively justified, show a lack of insight in respect of the emotional needs of her young children. The question for the Court is whether this action is demonstrative of a propensity in her or simply a circumstantial aberration?
In all other respects, and again despite their mutual criticisms, I am satisfied that these two parents have responsibly carried out their obligations as parents and that [X] and [Y] have benefited substantially from having two loving and devoted parents.
Section 60CC(3)(d) – the likely effect of any changes in the children's circumstances, and the likely effect on the children of any separation from either of their parents, or of any other person with whom they have been living
The very nature of the dispute before me will cause these children some impact and changes in the lives they experienced before May 2018. The father lives in Town 2. The mother lives in Suburb A. She says that she will not return to Town 2 to live and offers reasons for that position. Similarly, it was put to the father in cross-examination that he has the experience and work skills to enable him to move to southern Tasmania and obtain employment and essentially resume a regular and frequent relationship with his children. He also offered cogent reasons why he would not to do so.
Consequently, whatever orders I make, these children will be required to travel on weekends between their parents’ homes during school term. Each parent proposes a sharing of school holidays which will provide quality block periods for [X] and [Y] to settle into each parent's home during those holidays. Each parent suggests that the children spend one weekend per month with the other parent during school terms. On the face of it, this will be onerous but not prohibitive travel for the children and, to their credit, each of the parents has volunteered that they would share the efforts of travelling in order to meet on Fridays and Sundays at a half-way location.
It is trite to say that the children would not be subjected to onerous weekend and holiday travel if the parents were to live more proximate to each other. Nevertheless, in modern times it is common for children and parents to spend the start and ends of their weekends transporting children. The effect on children is mitigated to degree that the children enjoy time with one or other of the parents during travel and experience in this jurisdiction suggests that children are generally rigorous and adaptable accordingly. Further, any longer gaps in direct time between children and the non-residential parent are eased by improvements in technology such as Skype, FaceTime, and similar media.
However, other future changes are often not contemplated or neglected in consideration of short term solutions. For example, children will inevitably develop friendships and undertake sports and other extracurricular interests which will challenge the commitment of both parent and children to even the most well-intentioned of Court orders.
Section 60CC(3)(e) – the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children's right to maintain personal relationships and direct contact with both parents on a regular basis
Undoubtedly, the proposals of each of the parties will require a substantial commitment by each of the mother and the father to the children maintaining their relationship. After seeing and hearing the parents give evidence, however, I am satisfied that they will each accept that commitment.
Section 60CC(3)(f) – the capacity of each of the parents to provide for the children's needs including physical, emotional and intellectual needs
Again, the mother portrays herself as the ‘primary parent'. Unfortunately, her affidavit material is replete with criticism of the father's capacity to care for his children. She says that he cannot cook. She says that he delegates the actual care of the children. She says that he works long hours. She says that he is 'untidy and unhygienic'. She accuses him of leaving the children to fend for themselves . She implies that the children are not fed during their time with the father and that upon their return to her 'they would … raid the cupboards for food and eat'. She complains that the father does not interact with the children and does not assist them in socialising. She accuses the father of leaving the children unsupervised. She accuses the father of not being involved in the children's care during the marriage. Nevertheless, and despite these criticisms, strangely this mother proposes that the children spend block times with the father during school holidays. I repeat that it is unfortunate that parties to parenting litigation often believe that their success hinges on them being able to be the most critical of the other parent. This is not the case. The tenor of the father's affidavit material is similarly critical of the mother. However, after seeing and hearing these two parents give their evidence, I expect that their mutual criticism of the other in affidavits was overstated and certainly unnecessary and probably arises from a misconception that ‘he who throws the most mud wins’.
The mother is a demonstrated successful parent for these children on a day-to- day basis. I am satisfied that she understates the father's involvement with the children during the relationship. I am satisfied that, in any event, the father has the dedication, intelligence, skills and support network in order to care for the children's physical needs.
The children's emotional needs will be attended to by a commitment by each of the parents to an understanding of the need for [X] and [Y] have peaceful, successful and non-critical relationships with the other parent. In this respect, the father is justifiably criticised for comments that he has made to the children which can only be interpreted as a form of denigration of the mother. Those comments are immature and show a lack of insight into the vulnerability of young children's emotions particularly whilst they attempt to negotiate the breakdown of their parents’ relationship.
I am satisfied that with the advent of some mutual respect and objectivity then each of these parents will be able to co-operatively contribute to their children's emotional and intellectual needs.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and either of the children's parents and any other characteristics of the children that the Court thinks are relevant
[X] and [Y] are still young. The issue for the Court, therefore, is whether their important relationships with parents and other family members will be able to endure the orders sought by each of the parents. Both parents claim close and successful relationships with the children. I accept the mother's evidence generally that these are resilient and adaptable children. Their relationships with their extended families are obviously important and in this matter the relevance sits with the father's family in Town 2. I am satisfied, however, that these relationships will also endure whatever orders I make as to the children's living arrangements. Again, these children are old enough to supplement their direct time with the non-resident parent and others by use of various media.
Section 60C(3)(h) – whether the children are Aboriginal or Torres Strait Islander
No evidence was adduced in this respect.
Section 60CC(3)(i) – the attitude to the children and the responsibilities of parenthood demonstrated by each of the children's parents.
Not unusually in matters such as this, my observations of each of the parents was that their evidence was couched on a degree of self-interest. I accept that the father is aggrieved by the fact of and circumstances of his marriage breakdown within his small home community of Town 2. I observed him, however, to be somewhat naïve in his application and less able than the mother to compartmentalise his own ‘wants’ from the children's best interests. Significantly, however, it is the mother’s self-interest that ignited these proceedings in the first place. Her unilateral removal of the children was an act which profoundly misunderstands the importance for children of their relationship with both their parents. The Court, of course, considers the interests of both these parents generally, but subject always to a paramount consideration of the children's best interests. Suffice to say that each of these parents seem yet unable to differentiate between their own wants and the interests of the children, where they are in conflict.
Section 60CC(3)(j) – (k) issues of family violence or family violence orders.
The one significant issue of direct physical family violence has been dealt with above. The mother obtained a family violence order. The father has apparently breached that order by the sending of text messages. Whilst those breaches may seem relatively minor to him, the father must understand that this mother experienced a serious violent episode perpetrated by him. It is reasonable that she both have some fear of repetition by him and that she obtain a family violence order to alleviate those concerns. As such, the breach of such an order, however apparently innocuous will always be important if only in its impact on the mother.
Section 60CC(3)(l) – the orders that would be least likely to lead to the institution of further proceedings in relation to the children
The father suggests that the mother is unsettled in her personal life. He correctly notes that her own extended family live in Western Australia. Although she attempts to emphasise the nature of her support network in Hobart, I expect that it is yet minimal and tenuous. He suggests, therefore, that the mother may again decide to unilaterally relocate the children and perhaps to Western Australia. Frankly, there is no evidence to support this speculation and, indeed, these children's arrangements will now carry the sanction of Court orders.
Significantly in this regard, the Court was not given the benefit of affidavit material from either of the parents’ new partners. The mother says candidly that Mr E has been her partner for more than a year. She says that he is moving to Hobart to live with her and the children and yet the Court (and Mr Adair) are not given the benefit of an affidavit. No explanation of any probity was offered to the Court for this omission. Similarly, however, the father professes to be in a relationship albeit one of only seven weeks duration but one where the father and the children visit his partner and her children and that they mutually visit. Again, no explanation was offered to the Court for the omission of evidence that would normally be of assistance to a Court.
The orders that Courts make are prospective by nature and expected to work into the future. As such, it is inevitable that there will be changes in the circumstances of the parents and the children according to the vagaries of life. Court’s make orders to assist parties with a 'template' with which to move forward and parent their children. It beholds parents then to accept the responsibilities of parenthood as set out in the parenting orders and to then move forward and parent their children co-operatively.
Findings and Conclusions
I am able to find on the evidence that [X] and [Y] have established comfortable, successful and meaningful relationships with each of their parents.
I am satisfied that Mr Adair perpetrated an instance of family violence and that the nature of that event would have been traumatic to the mother and reasonably caused her some subjective fear of propensity in the father for repeat behaviour. I am satisfied, however, that Mr Adair has demonstrated no such propensity and that this instance was mitigated by being situational and circumstantial.
I am satisfied that the mother unilaterally relocated [X] and [Y] from Town 2 to Suburb A. I find that she showed then a lack of insight into the emotional needs of her children. I am satisfied that she essentially acted out of self- interest.
I am satisfied on the evidence that these children are not of sufficient age to be able to rationalise their own preferences and wishes in respect of their parenting and living arrangements. I am comfortably satisfied, however, that they desire to maintain and have flourished their relationships with both their mother and their father.
I am satisfied generally as to the capacity of each of these parents to attend to their children's needs. In this respect, however, the mother offers a greater demonstrated capacity in respect of attending to those day-to-day needs. This is not a criticism of the father but simply an observation of the historical separation and delegation of tasks within the family unit. Put simply, it was the mother who more actively involved herself in the children's care in the home, their socialising, their schooling, and their extracurricular activities. This evidence was most demonstrated in respect of [X]’s (hobbies). There is no doubt that this young girl enjoyed the pastime. The mother enrolled her in the activity at the commencement of 2018. It was her mother who took her to and from (hobby). She enrolled her in (hobby) in Suburb A during the short period that the children lived there. On return to her Town 2, the father did not re-enrol [X]. His excuse in evidence was that the mother on the telephone had said to him that it would be 'a waste of money' with the implication being that the children might be returning to live with her in Hobart. Frankly, it seems more likely that the father found practical arrangements too difficult because of his work commitments. Perhaps further, this simple example is an indication of the delegated roles played during their relationship and, more importantly, the children's understanding of each parent's role. Again, this is not a criticism of the father but simply an observation.
I am satisfied that both of these parents in their own ways prosecute their Applications out of the sense of self-interest. However, I observed the father to be more naïve in his Application and less able than the mother to separate an objective viewing of the children's best interests from his own perceived wants and desires. This is an understandable human reaction and response, and yet again I am not critical of him but simply make an observation. It is, of course, the mother who ended this relationship and she has perhaps moved further forward in pursuing her personal and life ambitions than has the father.
On a practical basis, the mother seems more available than the father to care for the children. The father asserts that he has the assistance of various family members or acquaintances. Unfortunately, I have not had the benefit of affidavits from any of them. I do know that the father works long hours. I know that he starts early. I know that during harvesting he can work up to 16 or so hours a day. The nature of the mother's employment as a (occupation omitted) is perhaps more flexible although, of course, she currently starts work at 6.30 a.m. and also offers that her boss will give some 'flexibility' in her workplace but alas not with any affidavit from the 'boss'.
I am satisfied that each of these parents offers good and sound reasons why they cannot live in the locality of the other. The father concedes that Town 2 is a small rural locality and that the mother might justifiably feel ostracised in its streets and social venues. She has few long-term and developed historical relationships in Town 2. The father, on the other hand, has a historical family connection. He went to school in the area. His friends still lives there. It is a sad but not unexpected fact that these people will 'take sides' and that it would be uncomfortable, at the very least, for the mother to remain in Town 2. In any event, it is well-established in this country that adults have a fundamental right of freedom of movement and this mother chooses not to return to Town 2.
Conclusion
In dealing with this matter it may be fortunate (or unfortunate depending on one's perspective) that I have considerable experience in this jurisdiction hearing parenting matters involving a proposed relocation of children. I have the benefit and experience in participating in a pilot project in the Melbourne Registry of this Court whereby matters involving relocation were closely case-managed and prioritised as to hearing and then allocated before myself or a colleague. As such, I have had the opportunity to frequently consider the tenor and rationale of the numerous learned judgments of my colleagues in this and the Family Court, and in superior Courts, that have established helpful authority over many years. Suffice for me to say that matters involving the anticipated relocation of children are extremely difficult in that they often involve a dispute between two excellent parents with a simple geographical issue and where except for this empirical and practical issue I doubt whether the parents would ever see the inside of a court room where judges more commonly deal with families with more serious dysfunctions. As I observed in Parker & Parker[4] 110]:
109.It is trite to observe that matters involving the proposed relocation of a child are among the more difficult ones coming before this court. Ideally, children should continue to have frequent, easy and spontaneous access to each of their parents despite the separation of those parents. The relocation of a child brings into play all the geographical negatives such as the loss of flexibility and spontaneity in parent/child relationships. Opportunities are lost for parental involvement in school and extracurricular activities and the mutual enjoyments contemplated by the concept of ‘substantial and significant time’ in the Act. Relationships are tested by logistical considerations including travel and associated costs. A high degree of commitment is required by each parent to maintain important relationships. Children’s relationships themselves are often tested and conflicted with peer group relationships and extracurricular activities in their new location.
110. Matters involving the relocation of a child will almost inevitably leave the remaining parent aggrieved and with a strong sense of loss. Alternatively, the refusal of relocation can cause a parent a loss of life, career or relationship ambitions. As in most matters involving the relocation of a child and where each of the parents has established, attached and loving relationships with the child and where each parent has a strong demonstrated capacity, the decision for the court here is a finely balanced one.
[4] [2017] FCCA 1455 at [109] – [110]
The matter now for my determination is most certainly difficult and finely balanced. Unlike the majority of parenting cases coming before these Courts where the determination for the Court is discreet such as whether the children might spend five or six or seven nights with either parent over a fortnight, the orders that I make here will inevitably impact and change the relationships of the these children with each of their parents. The parent with whom they live will be required to take on greater responsibilities in both time and commitment. The remaining parent will see their relationship with their children be less frequent and take on different forms. The children’s attachments and dependencies will form accordingly. Certainly, these two parents seem insightful enough to understand that the children should spend their quality time in school holidays equally between their parents and frequent school term time.
I found that each of these parents to be capable, good and loving parents. In isolation, I would be comfortable with the children living with either of them. In a finely balanced consideration, however, I am of the view that the children's best interests are served by living with their mother in southern Tasmania. I emphasise that the arguments put before me, on either version, would result in these children having equally onus travel between their parents for the purposes of maintaining those relationships where there is no option involving the parents living in close proximity.
Whilst this mother stands criticised for her unilateral action in relocating these children in May 2018, it is not for me to 'punish' either her or the children accordingly. Rather, my focus must be objectively on the ‘best interest' in a balancing process of the considerations under section 60CC(2) and (3) of the Act. I am satisfied that these children's understanding of their parents historical roles differs, importantly, whereby they have experienced their mother to be the person who deals mainly with their day-to-day issues involving getting them to and from school; events at school; feeding; clothing them and extracurricular activities. Secondly, I detected in the mother a sense that she has moved forward further than the father in dealing with the separation (which, of course, she instigated) but more likely to be able to parent the children objectively rather than a enmeshing of her own issues in respect of the marriage breakdown with the care of the children. The father's unfortunate involvement of the children in indiscreet comments in respect of their mother is an example of his inability yet to differentiate between his own issues and those of the children. Whilst I am confident that this tendency will diminish completely over time, it is an indication of the difficulties that the father himself is enduring. Put simply, I am satisfied that the mother is more able at this stage to focus on the job of parenting. Thirdly, and on a fine balance, I am satisfied that the mother is more able to negotiate the responsibilities of parenting with those of earning an income. The father has historically worked long hours. I have no evidence of any probity that it will change. His evidence in Court that he had contemplated giving up work to presumably to parent the children full time again demonstrates a degree of naivety or to the responsibilities of parenting. Whilst he undoubtedly has the assistance of some family support, I have no affidavit evidence.
I am satisfied that the mother has good reason for wanting to remain living in southern Tasmania. It is a fact that these parents will now live at opposite ends of Tasmania and the impost on the children is obvious. Nevertheless, the mother has a prima face right of freedom of movement. She is entitled to pursue her career and personal ambitions. I accept that these would be made difficult in the uncomfortable environs of Town 2 following her separation from Mr Adair.
The advantages of the father's proposal rested in the main with the fact that he could retain a form of status quo for the children and offer them a more frequent relationship with him and his extended family. It is true that the children have attended the Town 2 school and have relatives in Town 1. They are, however, in primary school and I am satisfied that they will be able to adapt to any difficulties of change in school and the indications from the parents are that they are the types of children who will readily make new relationships (and hopefully retain their former relationships). The children will undoubtedly maintain close relationships with their paternal family whilst spending time with their father.
I am satisfied that the mother presents as more able to attend to these children’s day to day needs than does the father. She offers a more practical hands-on option if only by reason of employment responsibilities and practicalities. She assumed this role during the marriage and the children have this understanding and experience of their mother accordingly.
Consequently, and on a fine balance, I am of the view that the best interests of [X] and [Y] are served by living with their mother. There will be orders for equal shared parental responsibility and for the children to spend time with the father in accordance with the mirrored proposals of each of the parents.
I certify that the preceding eighty five ( 85 ) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 23 August 2018
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