Ahcraft v Haber
[2010] FamCA 6
•15 JANUARY 2010
FAMILY COURT OF AUSTRALIA
| AHCRAFT & HABER | [2010] FamCA 6 |
| FAMILY LAW – CHILDREN – Relocation of mother – Father’s opposition to move – Equal shared parental responsibility – Substantial and significant time – Electronic communication – Parenting proposals of both parties – Issues of conflict and communication – Mother’s emotional health – Surname – Circumstances of mother’s fiancé – Examination of all competing residential and travel circumstances – Best interests of child – Observation of witnesses – Standard of proof – Relevant legal principles for parenting cases and relocation issues – Specific issues – Costs – Venue |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 65DAA, 117 Family Law Rules 2004 (Cth) Rules 19.04, 19.50 Evidence Act 1995 (Cth) s 140 |
| A v A: Relocation approach (2000) FLC 93-035 AMS v AIF; AIF v AMS (1999) FLC 92-852 Briginshaw v Briginshaw (1938) 60 CLR 336 Fitzroy & Fitzroy & Ors [2009] FamCA 954 H & E (1999) FLC 92-845 In re J (a child) (FC) [2005] UKHL 40 Lamereaux and Noirnot [2008] FLC 93-364 McCall and Clark (2009) FLC 93-405 Minagall v Ayres (1966) SASR 151 MRR v GR [2009] HCATranscript 316 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 62 ALJR 70 Pitken and Hendry [2008] FamCA 186 Rosa and Rosa [2009] FamCAFC 81 Sampson v Hartnett (No. 10) (2007) FLC 93-350 Starr and Duggan [2009] FamCAFC 115 Taylor and Barker (2007) FLC 93-345 U v U (2002) FLC 93-112 Vetter v Lake Macquarie City Council (2001) 202 CLR 439 Wiley and Wiley [2008] FamCAFC 153 |
| APPLICANT: | MR AHCRAFT |
| RESPONDENT: | MS HABER |
| FILE NUMBER: | MLC | 1744 | of | 2009 |
| DATE DELIVERED: | 15 JANUARY 2010 |
| PLACE DELIVERED: | MELBOURNE |
| PLACE HEARD: | MELBOURNE |
| JUDGMENT OF: | YOUNG J |
| HEARING DATE: | 5, 6, 7 & 8 JANUARY 2010 |
REPRESENTATION
| COUNSEL FOR THE 1ST APPLICANT: | MS MACMILLAN SC |
| SOLICITOR FOR THE APPLICANT: | HOGG & REID |
| COUNSEL FOR THE RESPONDENT: | MS SMALLWOOD |
| SOLICITOR FOR THE RESPONDENT: | PEARSONS BARRISTERS & SOLICITORS |
TABLE OF CONTENTS
ORDERS
Orders
MR AHCRAFT
REASONS FOR JUDGMENT
ISSUES
APPLICATION
AFFIDAVITS RELIED UPON BY PARTIES
PREVIOUS COURT ORDERS
BACKGROUND FACTS
RESIDENTIAL OPTIONS
OBSERVATION OF WITNESSES
STANDARD OF PROOF
RELEVANT LEGAL PRINCIPLES
FAMILY LAW ACT 1975 (CTH)
FATHER’S PARENTING AND RESIDENTIAL PROPOSAL
MOTHER’S PARENTING AND RESIDENTIAL PROPOSAL
FATHER
THE CHILD’S SURNAME
MOTHER
MOTHER’S EMOTIONAL HEALTH
PARTIES’ COMMUNICATION ISSUES
THE CHILD
MR P
FAMILY REPORTS
THE ACT – RELEVANT SECTIONS EVALUATED
SECTION 60CC CONSIDERATIONS
SECTION 65DAA
SPECIFIC ISSUES
COSTS
DELAY IN RELOCATION
VENUE
Orders
IT IS ORDERED BY CONSENT:
THAT the mother and father (“the parties”) have the equal shared parental responsibility of the child N (“N”) born … April 2004.
IT IS FURTHER ORDERED – NOT BY CONSENT:
THAT the orders pronounced in the Federal Magistrates Court on 3 December 2007 be discharged.
THAT the child live with her mother.
THAT the mother be permitted to relocate the child to live in Cairns, North Queensland, from Tuesday 6 April 2010.
THAT until the child is relocated to Cairns the father spend time with her:
(a)on each alternate weekend from after school on Friday until the commencement of her school the following Monday morning (and this is a continuation of the current timetable pursuant to the now discharged orders);
(b)in each other week from after school on Wednesday until the commencement of her school on Friday morning;
(c)for nine (9) days of the first term Victorian school holidays in this year to conclude on Easter Monday 5 April 2010;
(d)by telephone on three (3) occasions in each week.
THAT for the balance of 2010, and from the commencement of the Queensland second school term, the father spend time with the child as follows:
(a)for nine (9) consecutive days, including her travel days, in the second and third Queensland school term holidays (and the father is to have arranged leave from his employment during these periods);
(b)for the first half of the December / January long school holidays (to include Christmas Day and New Year’s Day) in 2010 / 2011;
(c)by telephone, or other form of electronic communication including Skype on three (3) occasions in each week when the child is in Cairns for up to thirty (30) minutes on each occasion with the father to be responsible to telephone or make contact;
(d)on a further two (2) weekends (but for not more than three (3) days on each visit) during the balance of this calendar year when the child is in Cairns and at the father’s expense and upon him giving twenty-eight (28) days prior written notice (and any absence by the child from her school is to be kept to a minimum).
THAT in calendar year 2011 and each year thereafter the father spend time with the child as follows:
(a)for the whole of the first term Queensland school holidays;
(b)for the first half of each of the second and third term Queensland school holidays, at dates and times to be agreed between the parties;
(c)for one half of the December / January long school holiday periods (and to be the second half in 2011 / 2012) and in alternate years thereafter and to be the first half in 2012 / 2013 and each alternate year thereafter;
(d)by telephone, or electronic communication including Skype on three (3) occasions in each week when the child is in Cairns for up to thirty (30) minutes on each occasion with the father to be responsible to telephone or make contact;
(d)on a further three (3) weekends in Cairns (but for not more than three (3) days on each visit) during the period of a calendar year and at the father’s expense and upon him giving twenty-eight (28) days prior written notice (and any absence by the child from her school is to be kept to a minimum).
THAT the mother is to purchase in each calendar year for the school holidays, commencing this year, three (3) and thereafter four (4) return air fares for the child from Melbourne to Cairns (direct), as an unaccompanied minor and with payment of any additional fee or costs, and those air fares are to be on dates agreed to between the parties and previously arranged on no less than twenty-eight (28) days prior written notice and additionally the mother is to deliver and collect the child punctually to and from Cairns Airport.
THAT the father is to pay all of his air fare and travel costs, if and when applicable, to visit the child in Cairns pursuant to Orders 6(d) and 7(e) hereof and if for any reason the child is to spend any other time with the father, in Melbourne or elsewhere, by agreement with the mother, then any such travel is to be at the expense of the father.
THAT the mother is to immediately acquire, upon her relocation to Cairns, a computer and all necessary electronic equipment and programmes to operate Skype or other telecommunication services reasonably required to ensure the father’s electronic communication and it is to be properly maintained by her with all of her monthly telecommunication fees paid punctually.
THAT when the child is spending time with her father in Melbourne, the mother be entitled to telephone her or have electronic communication including Skype on three (3) occasions in each week for up to thirty (30) minutes duration on each occasion and the mother to be responsible to telephone or make such contact.
THAT the mother and father are to keep each other immediately informed of any medical, health, personal or education issue of and concerning the child.
THAT the mother and father are at all times to keep each other informed at all times of their residential address, telephone number and e-mail address.
THAT the mother, on behalf of the child is to accept her enrolment and attend at PA Primary School (in the eastern Melbourne area) for first school term 2010 and at the expense of the mother and prior to her then relocation to Cairns.
THAT the child retain the surname of and be known as Ahcraft, and at all times to be enrolled at school and in all of her activities under that surname.
THAT the mother, when living in Cairns is to reasonably co-operate with other members of the father’s extended family and is to make available the child to spend reasonable time with them (and in particular the father’s adult children O and E).
THAT the mother forthwith give her written permission and authorisation to any school at which the child may attend in Cairns that they are to facilitate the punctual release to the father of school reports and other relevant school documents and information.
THAT all subpoenaed documents be forthwith returned by the Subpoenas Clerk, Family Court, Melbourne Registry to the person or organisation who produced the documents to the Court.
THAT there be no order as to costs with each of the mother and father paying all of their own costs of and incidental to these proceedings.
THAT all extant applications be otherwise dismissed and the proceedings be removed from the docket of Young J.
Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.
IT IS CERTIFIED
THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel including Senior Counsel for each of the mother and father.
IT IS NOTED
A.THAT there was agreement reached between the mother and father, during the hearing, that the mother would pay and consent to the four (4) return air fares, Melbourne to Cairns, for the child and that has been accepted and relied upon by the Court.
B.THAT the mother has emphasised to the Court, as has Mr P, that they will at all times do all that is possible to ensure that the father and the child maintain a close and loving relationship.
IT IS NOTED that publication of this judgment under the pseudonym Ahcraft & Haber is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 1744 of 2009
| MR AHCRAFT |
Applicant
And
| MS HABER |
Respondent
REASONS FOR JUDGMENT
ISSUES
Mr Ahcraft (“the father”) and Ms Haber (“the mother”) are the parents of N born in April 2004 now five and a half years of age (“N”). As parents they have in place and have agreed to continue a Court order made by consent to share equal parental responsibility for their daughter. The mother proposes to relocate the child to Cairns there to marry her fiancé in August of this year. She would then propose that the father spend substantial and significant time with his daughter on school holidays in Melbourne and other extended weekends in Cairns and by telephone and electronic means on a regular and meaningful basis. The father has proposed that the child remain living within the Melbourne metropolitan area and for her to there live on an equal time sharing basis with her parents. These parenting applications of the parents have been known to each other and the Court for several years and were recorded as a notation to previous final consent orders pronounced 3 December 2007. It is agreed by both parties that, with the child commencing at school in February of this year, it is now time for the Court to finally decide all parenting and child issues as the parties are wholly unable to reach any agreement.
APPLICATION
FATHER
By his amended initiating application filed 19 June 2009 the father, in summary, sought orders that:
§the parents retain equal shared parental responsibility;
§the child live with each of her parents on a week about basis during school term and otherwise for half of all holidays;
§the child attend a local primary school in Melbourne’s eastern suburbs, near to where the mother has been living and remain at that school for the duration of her primary education;
§that the mother, by herself, her servants or agents be restrained from removing or attempting to remove or causing or permitting the removal of the child from the Commonwealth of Australia. (At the conclusion of the evidence and during final submissions the father instructed his legal practitioners not to pursue this restraining order).
In the event that the mother elected to move to Cairns, but without the child, then the father proposed that she spend time with her daughter as follows:
§for ten (10) days in each school holiday period in Queensland;
§for four (4) weeks in the long summer vacation in Queensland;
§during school terms in Melbourne for up to three (3) occasions per school term for three (3) consecutive nights;
and that the costs of the mother in spending such time with the child be fully paid by her. (At all times the mother’s case was that she would not be separated from her daughter and that there was no possibility that she would relocate to Cairns alone).
The father did not provide to the Court in that amended application what time periods he proposed that he spend with the child in the event that she and the mother be permitted to relocate together to Cairns and these matters were dealt with by submissions during the hearing.
At the conclusion of the evidence, and in the final address by Ms MacMillan, Senior Counsel appearing for the father, he withdrew his application for an equal sharing of time with the child, on a week about basis, and substituted therefore a continuation of the current five nights in a fortnight situation and school holidays which is now in place pursuant to the current terms of the existing Court order. It is proper to record that this variation of his application arose after hearing all of the evidence, in particular that of the Family Consultant Ms L, and upon preliminary indications which I gave on certain issues at the conclusion of the case, but prior to the commencement of final addresses.
Given then that very significant but proper variation of his orders sought I have not been required to consider and evaluate all of the evidence relevant to an equal time division, as otherwise would be required by s.65DAA(1) of the Family Law Act1975 (Cth) (“the Act”). I have of course given due and proper consideration to the substantial and significant time issues and their requirements as identified in the Act.
MOTHER
The orders sought by the mother are detailed in her Outline of Case document provided to the Court at the commencement of the hearing and these are by way of an update to her response to the Initiating Application of the father, that document being filed on behalf of the mother on 8 April 2009.
In her orders now sought, and the basis upon which her case was opened to the Court by her Counsel Ms Smallwood, the mother, in summary, proposed that:
§the amended application of the father be dismissed;
§that the child be permitted to relocate with the mother to Cairns and thereafter the father spend time and communicate with her:
(a)on three (3) weekends during each of the school terms on dates to be agreed but generally from Friday after school until the following Monday;
(b)for each of the first term and third term school holidays in Melbourne;
(c)for half of the December / January school holiday periods, alternating on a yearly basis;
(d)at all other times as agreed.
The mother had made substantial inquiries and had confirmed that flights are readily available and affordable between Cairns and Melbourne with fares for an unaccompanied minor between the ages of five years and twelve years commencing at $69, one way, upwards. On behalf of the mother exhibit “M3” was tendered which supported this low fare being available during what is described in the document as a “fare frenzy” offer. It was agreed between the parents that the child was permitted to fly unaccompanied by the three major airlines servicing that route, though at a likely additional cost of $20 per flight. The mother initially proposed to pay the air fares for the child to travel to and from Melbourne on three (3) occasions each year, being two term holidays and the long vacation period and that the father would be at liberty to arrange and pay for other time to be spent with the child in Melbourne, subject to his work schedules.
In the event that the child was required by Court order to remain in Melbourne and the mother was successful in a move from the suburbs to an outlying or rural location she proposed a variation of the existing consent order so that the father would spend time with the child on each alternate weekend from Friday to Monday inclusive and otherwise for half of all school holidays and on other special occasions. The effect of that proposal would be to vary the current order in each alternate week where the child spends time with the father from Wednesday until Friday inclusive and that would reduce the father’s time spent from five nights to three nights per fortnight, other than in holiday periods.
The reason, as will be more substantially considered hereunder for that proposed variation in the current order of the Court, is that the mother, if the child is not permitted to relocate to Cairns, would instead intend to relocate with the child from the eastern suburbs to reside in or around the Mornington Peninsula, approximately one and a half hours in off peak travelling time from the father’s residence in the inner suburbs where he owns a two bedroom unit, subject to an interest only bank mortgage.
Those time spent with orders as filed on behalf of the mother were confusing, poorly considered, did not distinguish between Queensland and Victoria as to the venue and were not properly accommodating of such a young child given the distance and all practical issues.
On the commencement of the second day of hearing the parties and their legal practitioners conferred and reached an agreement on the substantial and significant time to be spent by the father with the child should it be decided that she live with her mother in Cairns. Their position, which I have determined to slightly modify, is that the mother would pay the unaccompanied return air fare for the child to travel directly to Melbourne for:
§the whole of the first term Queensland school holiday period;
§for half of the second and third terms of the Queensland school holiday period, at times and dates to be agreed;
§for one half of the December / January school holiday period, and with the father to have the first half of such holidays in 2010 and alternate years thereafter;
It has been established by the High Court in U v U (2002) FLC 93-112 where Gummow and Callinan JJ, with whom Gleeson CJ, McHugh and Hayne JJ agreed, said:
“80.We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties … but the Court is not, on any view, bound by the proposals of the party”.
This right of the Court to modify an agreed proposal was further endorsed in the recent Full Court decision of Sampson v Hartnett (No. 10) (2007) FLC 93-350, at p93,350 where it was said by (Bryant CJ and Warnick J) that:
“46.These and other provisions support the notion that, the parties having surrendered the resolution of the dispute about paternal arrangements to the Court, the Court has the function of crafting orders that ensure the best parenting arrangement is put in place and that the parents “fulfill their duties and meet their responsibilities”. It is entirely consistent with that function that parenting orders, and orders that support those orders, such as injunctions, be directed to the parents and place obligations upon them”.
Additionally the parties agreed that the father was free to travel, at his expense, to Cairns on up to three occasions in each school term, on weekends or other days as may be agreed for reasonable periods subject to the child continuing to attend school. The father is to provide twenty-eight days written notice of any such intended travel.
Initially the father requested one additional period in Melbourne in each school term with the child, at the expense of the mother, but he ultimately acknowledged the obvious fact that it was far too much travel, on an unaccompanied basis, for such a young child.
There remained no agreement as to time to be spent if the mother and the child were to remain in Melbourne or the Mornington Peninsula. As to what substantial and significant time the father would spend with his daughter in school holiday periods was always agreed and the issue in dispute if the child was in Melbourne became only an alternate weekend or otherwise the continuing five nights per fortnight.
AFFIDAVITS RELIED UPON BY PARTIES
FATHER
The father relied upon his affidavits filed 19 June 2009 and 18 December 2009 and his financial statement filed 18 December 2009 and I have carefully read and evaluated each of those documents and the various annexures thereto.
Additionally the father caused to be filed an affidavit of Dr B, filed 18 December 2009, which had annexed thereto a very brief medical report(s) dated 30 November 2009 and by way of an update of an earlier medical report which confirmed that, to the best of the knowledge and belief of that medical practitioner, there was no available history that the father had suffered from any mental health problem, nor had he been prescribed or taken any anti-depressant medication. That witness was not required for cross examination though it is recorded in his report that he had personally consulted with the father only since March of last year and there are various admissions made by the father in his affidavit material of past anti-depressant medication use and emotional health issues. The lack of knowledge of the previous medical history of the father by that medical practitioner is somewhat surprising given the disclosure by the father of that medical history and medication in paragraph 30 of his first filed affidavit and clearly the father has provided a very selective and limited medical history background to his own medical practitioner. Ultimately, given the evidence and knowledge of the mother of the admitted past issues of the father I find that nothing turns on this selective and inaccurate disclosure by him, particularly as my finding on all of the evidence is that there is no obvious mental health issue, or medication dependency of the father.
The solicitors for the father had prepared an Outline of Case document which provided a very brief and limited summary of argument which was of minimal assistance to the Court.
MOTHER
The mother filed and relied upon her earlier affidavit sworn 8 April 2009 together with the affidavit of her fiancé filed 25 November 2009. The financial statement of the mother was recently prepared and filed 18 December 2009 and I have likewise read and evaluated each of the affidavits upon which she relied.
Her solicitors prepared and filed an Outline of Case document which highlighted the various additional (but not primary) considerations relied upon by the mother and thereafter very briefly analysed the practical circumstances of the parents given the proposed geographical distance and other considerations in the context of s.65DAA(4) and (5) of the Act. Again this document was of only limited assistance to the Court.
PREVIOUS COURT ORDERS
There have been numerous orders made in the Federal Magistrates Court but the most recent order is that made by consent on 3 December 2007 and that order discharged earlier orders made 21 February 2007 and 19 April 2007.
Those consent orders, pronounced by Federal Magistrate O’Sullivan, were agreed to when an Independent Children’s Lawyer had been appointed and at that time Mrs Hooper of Counsel, instructed by Mr Mulvany appeared for the child. The appointment of that children’s lawyer was discharged by those orders and there has not been a re-appointment of any legal representative for the child thereafter.
By the consent orders the parents shared equal parental responsibility. The child, on and after 1 January 2009, lived with her father each alternate weekend from mid / late on Friday afternoon until the commencement of day care on Monday morning and otherwise, and in each other week, from mid / late on Wednesday afternoon until the commencement of child care on the Friday morning.
The order provided for the hcild to spend shared holidays and be with each of her parents on birthdays and special occasion days and otherwise to live with her mother at all other times in the Melbourne metropolitan area. This order was the subject of comment, in final addresses, by Ms Smallwood on the basis that it was coercive of the mother and jurisdictionally should not have been pronounced, notwithstanding that it was made by consent, as it was submitted, these parties were not married and that it purportedly was beyond the jurisdictional basis provided for within the Act. I do not agree and refer to the reported Full Court decision of Sampson & Hartnett (No. 10) (supra) but in this case, and on the construction of paragraph 4 of those previous orders there is now no need for any further consideration or debate as that order is drafted to ensure, by consent, that the child continued to live within the Melbourne metropolitan area and with her mother. Arising out of that discussion with Counsel I made very clear that my focus and direction in this case was the welfare and best interests of the child and any order that I pronounced would be directed to the child and the circumstances and location of her upbringing.
In Sampson & Hartnett (No. 10) (supra) and following on from the paragraph of the Judgment which I have earlier quoted herein, Bryant CJ and Warnick J continued and said:
“47.As indicated earlier, the purpose of a “coercive” order is more to create a situation rather than chose between situations that already exist. This distinction raises the basic question of the extent to which orders need to be connected to the evidence in the case … as discussed by the High Court … in AMS v AIF; AIF v AMS (1999) FLC 92-852”.
The majority of the Full Court continued:
“57.If it is within power to order a person not to relocate, it would be surprising if it was not within power to order a person to relocate, although one would imagine the exercises of power to the latter effect would be even more rare, because the effect is more drastic. The person being ordered not to move at least has chosen that location as some stage and for reasons which one assumes at leats once existed. This contrasts with a person who may not wish to go some where and therefore the order is much more of an imposition on that person’s freedom.
58.However, we conclude there is power under s 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare, because:
(i)the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and
(ii)in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent’s choosing.
59.The prospect of ordering a parent to relocate and in effect “parent” in a situation not of that parent’s choosing, legitimately gives rise to concerns, particularly in respect of enforcement. What if the parent, in response to such an order, simply hands the child to the other parent, perhaps in circumstances such as in the instant case, where for whatever reason, there is not a well-established relationship between the child and the other parent? Will the primary parent be punished? The fact that such vexing questions arise does not mean that the power does not exist and may be rightly exercised at times. Enforcement is discretionary and may be rare in the situation exemplified. On the other hand, enforcement may be appropriate if a primary parent ordered to relocate, simply did not do so”.
The final December 2007 consent orders were consented to in the framework of a defended hearing and following upon the receipt by the parties of two Family Reports prepared by an experienced psychologist, Ms S. There were other specific issues dealt with in the orders, including the facility for the mother to holiday with the child in Queensland once every three months for a period of up to ten days. A communication book was to be established between the parents and, in the light of previous concerns of the mother, the father was required to undertake random urine drug testing on limited occasions over the four months following the pronouncement of the orders and thereafter not to consumed any illicit substance in the immediate period prior to spending time with his daughter. It was noted that the father denied the necessity for any supervision or restraining order and his consent was given without admission. What became apparent from the cross examination of the mother by Ms MacMillan, Senior Counsel appearing for the father, was that his marijuana habit was limited to two past occasions, one in or about the year 2000 and following a serious motor vehicle collision where he sustained substantial injuries and the other following separation in 2006. The mother had no knowledge of any continued marijuana smoking in the year(s) leading up to those consent orders and, in many ways, and on all of the evidence now known to the Court these issues inappropriately flavoured those consent orders against the father.
What was a significant notation to the order was recorded in Note B as follows:
“That the parents consent to these orders on the basis that neither party shall make application in the case of the father for equal time with [the child] and in the case of the mother for relocation before 1 March 2009 and that such application or applications shall, if practicable, be listed for final hearing in but not before October 2009”.
There was a subsequent application and Court hearing before Senior Registrar FitzGibbon on 26 June 2009 where the Court made orders varying those earlier consent orders of 3 December 2007. The issues then before the Senior Registrar were extremely limited and, in my view, did not warrant the father’s application being filed or the rigid approach then adopted by him. In summary there was a determination of a specific commencement time for the father’s periods on the Friday and the other Wednesday and otherwise a modest re-wording of the period that the mother could spend with the child in Queensland, this being necessitated by the mother spending eleven days and not ten days on one occasion interstate.
Of more relevance to this hearing was the fact that the Senior Registrar adjourned the proceedings to Cronin J to determine whether to expedite the final hearing and it was as a result of the direction of His Honour that the matter came to be listed before me for final hearing on relatively short notice.
I have read the succinct reasons for judgment delivered by the Senior Registrar but they are of no meaningful assistance to me in determining the substantial and difficult parenting and relocation issues now before the Court.
BACKGROUND FACTS
The father was born in 1950 in Sweden and is now 59 years of age. He arrived in Australia in 1952 and since approximately 1980 has lived in the metropolitan area of Melbourne in the eastern suburbs and then in a home jointly owned with the mother, also in an eastern suburb. He has no current relationship.
The mother was born in 1969 and is 39 years of age.
The mother had lived all of her life in and around the eastern suburbs of Melbourne and had been schooled in a south-eastern suburb. She had never lived on or around the Mornington Peninsula or interstate. Some of her extended family and many of her friends remain within those eastern suburbs.
The parties commenced residing together in a permanent domestic relationship in about 1996 (according to the mother) and in 2000 (according to the father), but at least it is agreed by each of them that they separated in June 2006. The decision to separate was made solely by the mother and it occurred within the framework that she had met, when on a family holiday in Cairns and then commenced a serious and developing friendship with Mr P, her now fiancé.
The child was born in April 2004 and is now five and a half years of age and enjoys good health.
The parties jointly purchased a home in the eastern suburbs which was sold post separation (in November 2008) with the net proceeds divided as to 54% to the mother and 46% to the father. That division of assets was sanctioned by a consent order pronounced in the Victorian Civil and Administrative Tribunal in July 2008 pursuant to proceedings for a partition of that property instituted by the father. He had elected not to institute any form of de facto property proceedings, and nor had the mother, notwithstanding that the father retained the assets of a property sold by him to a value of approximately $150,000 and otherwise retained significant superannuation investments to a value of approximately $100,000. In his affidavit the father had proclaimed that he agreed to this favourable property settlement to the mother but in reality, with all of his other assets excluded that was a somewhat meaningless and inaccurate comment of the father upon which he was properly cross examined.
The father used the proceeds of the eastern suburbs home received by him to purchase a new motor vehicle, to have a six week overseas Asian holiday by way of recuperation from the breakdown of the relationship and otherwise placed a deposit upon and purchased his current inner suburbs unit with the assistance of a bank mortgage.
The mother is engaged to Mr P, a resident of Cairns and a person employed in the hospitality industry. They now plan to marry in August of this year, but only if the mother is then in Cairns, at a time when his son from his first marriage would be able to travel from England and be Best Man at the wedding. In his affidavit Mr P said he hoped they would then have more children, if possible.
RESIDENTIAL OPTIONS
In summary there are many and varied options available both to the parents and to the Court. These include:
(a)the mother and the child could live in C or its surrounding eastern suburbs in Melbourne, on the Mornington Peninsula thereabouts, or in Cairns;
(b)the father could live in his inner suburbs unit or otherwise relocate to the Peninsula area, or midway to suburbs in and around the Peninsula area or otherwise relocate to Cairns;
(c)Mr P could relocate to the eastern suburbs or elsewhere in Melbourne, or the Mornington Peninsula if the mother was not permitted to remove the child from Victoria, or otherwise, remain in Cairns;
(d)the mother and the child could live near to the mother’s sister home in th eastern suburbs and facilitate the child attending the local school in which the father has enrolled her. The father says this would provide the mother and the child an excellent support network.
All of the above residential and lifestyle options must be carefully examined and evaluated with a practical understanding of the cost, travel and personal issues that would confront both the parents and the child, but always having primary regard to the best interests and welfare of the child, both in the immediate and long term.
OBSERVATION OF WITNESSES
I have had the very real benefit of observing the father, mother and Mr P in giving their evidence on oath and in observing them in the courtroom. Those observations have been of very real assistance to me in formulating appropriate orders and are acutely available to a trial judge and the legal authority for such a position is that part of the Judgment of Kirby J in Minagall v Ayres (1966) SASR 151 at 154 per Hogarth J; see also Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 at 313:
“By conventional theory, the observations made by a trial judge of the appearance and demeanour of a witness giving evidence are not only available to be used in the determination of a dispute but amount to important ingredients of the decision-making process. They normally provide the primary decision-maker a distinct advance which controls, and even limits, the exercise by the appellate court of its statutory functions in an appeal by way of re-hearing: see Owners of Steamship Honestroom v Owners of Steamship Sagaporack [1927] AC 37 at 47; Jones v Hyde (1989) 63 ALJR 349 at 351; 85 ALR 23 at 27; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178ff.”.
I have had the significant benefit of hearing all of the evidence in its entirety, of reading carefully all of the affidavits, the exhibits to the affidavits and the other documents in the proceedings. I have reflected upon and have weighed all parts of the individual testimony against the balance of all evidence prior to delivering these reasons for judgment.
The unique role and observations of a trial Judge has been highlighted by the House of Lords, Appellate Committee, in the case of In re J (a child) (FC) [2005] UKHL 40 and I refer to this opinion to support my observations in this case.
In paragraph 4 and paragraphs 10-12 (inclusive) of the Judgment of Baroness Hale of Richmond the role of the trial Judge in the evaluation of oral evidence was considered and it was there stated that:
“10. The Court of Appeal appears to have intervened on the basis, first, that the judge’s conclusion on the risk was not justified by the evidence and second, that he had given it too much weight in his overall conclusion. Yet the assessment of the risk depended entirely on the judge’s evaluation of the father’s present intentions and likely future behaviour and its impact upon the child. There was objective evidence of the risk in the fact that the father had made the allegations in writing and then withdrawn them when he saw that they were damaging rather than helping his case. Whether he might do so again depended crucially on the judge’s evaluation of his oral evidence. The judge was the only person who could do this. He concluded that, while the father was sincere in his current intention not to raise such allegations again, there was a serious risk that if disputes arose in future, as they might easily do, he would resurrect them. These were findings of credibility and primary fact with which, for all the reasons explained by Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360, at pp 1372-3, an appeal court is not entitled to interfere”.
I take this opportunity emphasise the importance in this case that I have received by observing the parents and Mr P in giving their evidence. It has afforded me a very real and meaningful opportunity to assess their character, behaviour and personality. In such a case where relocation is sought and where the future domestic circumstances, lifestyle and possible remarriage of the mother are matters in issue then I consider that those opportunities afforded to me as the trial Judge were of very particular significance. Specifically they have assisted me in formulating the orders made for the future welfare and best interests of the child.
STANDARD OF PROOF
The appropriate standard of proof that I have applied is the civil standard, namely the balance of probabilities. The more serious that the matter was, or its importance in this case, then I have more strictly examined the level of proof required.
Section 140(1) of the Evidence Act 1995 (Cth) provides that a Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. Sub-paragraph (2) further provides that, without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject – matter of the proceeding; and
(c) the gravity of the matters alleged.
In Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2, Dixon, J. said:
“Except upon criminal issues to be proved by the Prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal.”
Subsequently the High Court said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 62 ALJR 70 at 170 – 172:
“The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct”.
The civil proof therefore requires “a reasonable satisfaction” following a search for the truth and an evaluation of evidence adduced having regard to both statute and case law and in the context of the respective power or capacity of a party to produce or counter such evidence (Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 454).
The law requires that satisfaction be on a level of probability not certainty. I approached the determination of issues of proof on the basis that I can be fairly and properly satisfied of any alleged fact before accepting same. Conjecture or suspicion is not sufficient as the proof of the fact must be both rational and reasonably open and likely.
RELEVANT LEGAL PRINCIPLES
In A v A: Relocation approach (2000) FLC 93-035, the Full Court (Nicholson CJ, Ellis and Coleman JJ) summarised the relevant principles which they then said applied to relocation cases (at 87,551-2):
§ the welfare or best interests of the child, as the case may be under the relevant legislation, remains the paramount consideration but it is not the sole consideration;
§ a court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances;
§ it is necessary for a court to evaluate each of the proposals advanced by the parties;
§ a court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be 'permitted';
§ the evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests;
§ it is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act1975 (Cth). The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (l) of that subsection;
§ the object and principles of s60B provide guidance to a court's obligation to consider the matters in s68F(2) that arise in the context of the particular case.
Counsel for the wife primarily relied in her submissions upon the reported decision of the High Court in AMS v AIF; AIF v AMS (1999) FLC 92-852, and in particular that part of the Judgment of Kirby J at paragraphs 141 – 150 (inclusive). In the course of her submissions emphasis was placed on his Honour’s third and fourth propositions therein which read as follows:
“thirdly a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child's welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule.
Fourthly the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. - 05-00662fn145#05-00662fn145 This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents”.
Although each of these reported decisions were delivered prior to the legislative amendments of 2006, the guiding principles remain relevant and applicable. The effect of those legislative amendments, which placed a more substantial emphasis on both parties having a meaningful relationship with the child and a substantial and significant involvement in their life, have been discussed in numerous relocation authorities, of this Court and also of the High Court in its earlier decision of U & U (2002) HCA 36 where their Honours said:
“89. “Whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent.”
Those more recent reported decisions of this Court include Taylor and Barker (2007) FLC 93-345, Sampson and Hartnett (No. 10) (2007) FLC 93-350, Starr and Duggan [2009] FamCAFC 115, McCall and Clark (2009) FLC 93-405 and Rosa and Rosa [2009] FamCAFC 81.
I have accepted that I should deal with the proposed relocation of the child to Cairns as one of the specific proposals for her future living arrangements. I have therefore not separately considered relocation as a discrete issue but it is wholly intertwined with the welfare and best interests of the child and with which parent she should reside (see Taylor and Barker (supra).
In Starr and Duggan (supra), the Full Court (Boland, Thackray and Watts JJ) identified a “logical approach” to the determination of parenting cases involving a proposed relocation. Their Honours said:
“38. It is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
§ first make findings concerning the relevant s 60CC factors;
§then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
§then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.”
I have accordingly, within the overall consideration and evaluation of the evidence made those necessary findings though it was inevitable that there would be a dual consideration of many matters when assessing the competing proposals of the parents.
I endorse the summary of relevant principals recently enunciated by Murphy J in Pitken and Hendry [2008] FamCA 186, and as thereafter endorsed by him in Fitzroy & Fitzroy & Ors (2009) FamCA 954 where his Honour said at paragraph 43:
“A “relocation case” is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances;
A relocation case falls to be determined like any other parenting case: the fact-finding (or value-finding) exercise required by s 60CC is directed toward ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time;
Relocation cases, like all parenting cases, involve a determination of best interests as the measure by which legitimate rights and freedoms of the parties must give way to the rights and interests of the children;
In that way, best interests is the paramount, but not the sole, consideration whatever be the nature of the order informed by findings as to best interests. That includes orders relating to parental responsibility and the rebuttal of the presumption in favour of equal shared parental responsibility in particular;
All parenting cases require precise proposals by the parties (including, if thought appropriate, alternative proposals). The proposals are (or should be) the expression of each party’s assessment of their children’s best interests. “Relocation cases” are no different;
The issue of relocation (and, necessarily, the parties’ proposals in respect of same) should not be considered separately from the issue of best interests. In truth, the proposals, including potential relocation, form part of the factual permutations within which best interests must be considered and findings made;
The court is not bound by the parties’ proposals. Where the evidence points to an alternative being in the best interests of the children, orders should be crafted by the court accordingly;
Findings in respect of the relevant s 60CC considerations, and an ultimate analysis and balancing of those findings should, when applicable, take account of the prospect of equal or substantial and significant time, whether because s 65DAA mandates it or because either is a proposal of the parties or looms as a potential order;
Findings relevant to s 65DAA, if applicable, can and often more appropriately should be made as part of the s 60CC exercise, because, although requiring a specific process, any s 65DAA considerations are founded ultimately in findings as to best interests;
Findings necessary to underpin an ultimate finding of “reasonable practicability” (s 65DAA(5)) can be, and often more appropriately are, conducted as part of the s 60CC exercise. Any specificity inherent in those s 65DAA(5) factors which do not overlap with s 60CC considerations can often readily be accommodated within the s 60CC exercise (s 60CC(3)(m)). As best interests governs the s 65DAA exercise, it is often convenient and appropriate to consider any matters directly relevant to s 65DAA(5) within the overall assessment of best interests. Of course, those findings, must be applied as the s 65DAA process requires;
The abrogation or curtailment of parental responsibility with respect to long term issues involves a serious interference with fundamental rights and that is a factor which ought often be taken into account in assessing whether the best interests require the rebuttal of the presumption. Obviously, that right must give way where the best interests of the children require it. Equally, the court may need to craft orders for parental responsibility where the children’s best interests require it.
My approach has been to evaluate and conclude findings on each and all of those relevant legislative requirements and therefore my analysis of the evidence and the competing proposals is somewhat substantial and exhaustive.
In my approach to the application of the Act and Court reported decisions I have acknowledged that it is not sufficient for the mother simply to rely upon the material benefits in Cairns and the presence of her husband-to-be and the opportunities that would there be afforded to the child. The support of family and friends is of importance but ultimately it is a balancing of all of the benefits, including the sharing of day to day care of a child that must be considered. In that context I have had specific regard to the comments of the Full Court in McCall and Clark (Bryant CJ, Faulks DCJ and Boland J) where at paragraph 135 they said:
“We accept that the availability of family support including such things as reliable quality child care, financial assistance, and emotional support for a parent and a child, can be very important considerations in any parenting case particularly one involving relocation, and are all matters to be balanced and weighed when considering competing proposals. But those factors, or a lack of them, do not automatically support a finding that a party’s parenting capacity will be compromised particularly when they may be counterbalanced, at least in part, by other benefits, including the sharing of day to day care of a child.”
Ultimately it remains a matter of priority for the Court, having determined the best interests of the child to then assess the reasonable practicality of each party’s proposals. Their Honours also highlighted that it is inevitable that there will be a dual consideration of some matters when assessing the competing proposals of the parties.
In Rosa and Rosa (supra) the Full Court upheld the decision of the Magistrate to make orders for a shared care arrangement in North West Queensland in circumstances where the mother proposed to live in Sydney. The mother was ultimately successful in obtaining a re-hearing of her case by appeal to the High Court of Australia. I have read the transcript of those proceedings (MRR v GR [2009] HCATrans 316) as that judgment has yet to be delivered but the importance and necessity of a Court to fully assess all issues of reasonable practicality of each proposal within s.65DAA has been highlighted. I have endeavoured to similarly assess all practical issues and outcomes in my approach to the evaluation of the evidence.
FAMILY LAW ACT 1975 (CTH)
The focus required by the Act when determining parenting orders and children’s cases is to have regard to the best interest of the child as the paramount consideration (s.60CA). The best interest of the child is determined by an examination of the primary and additional matters identified within s.60CC (2) and (3) and throughout my analysis of the evidence this has been the objective. Thereafter the considerations of the appropriate parenting order and the basis and quantum of time to be spent with the child, and the reasonable practicality and impact of such orders (s.65DAA) have been further closely scrutinised.
I provide that summarised overview of the applicable sections of the Act at the outset, though I have hereafter specifically identified each of those statutory requirements and my evaluation and outcome thereof.
FATHER’S PARENTING AND RESIDENTIAL PROPOSAL
The father’s proposal, as clearly detailed in his affidavits, is that he vehemently opposes the child’s relocation to Cairns. Since her birth he said that he had been an extremely “hands on” father and has and continues to be integrally involved in her life. He deposed to a very special bond and attachment having grown between he and his daughter and he said that he had much to offer the child in this critical period of her life. If he were unable to be involved in her day to day activities, as he currently is with his time spent on five days in each fortnight plus holidays he asserted that he would be alienated from the child. It was his strongly expressed preference that the child remain in and around the eastern suburbs of Melbourne, or otherwise within a reasonable daily driving distance of where she has lived all of her life and where a majority of her friends and extended family remain located.
The father has predominantly lived in and around the suburbs of Melbourne since his migration from Sweden as a very young child and he proposed that the child remain living in this city.
On the day prior to this hearing commencing the mother, in her Outline of Case document, first disclosed her preference, if the child is required to remain in Victoria to live in the Mornington Peninsula area. Clearly that is not her first preference, which remains Cairns, but she had proposed to give her landlord notice on her rented home in the eastern suburbs at C. She now understands that she cannot afford to live in the more affluent suburb in the bayside area, to which her father and his partner have recently located. Other members of the mother’s family and many of her friends remain living in and around C and surrounding areas. A brother of the mother is now said by her to live in Mornington.
The father, by way of a response given in his evidence under cross examination, said that he could not relocate his residence to the Mornington Peninsula as it would be then impossible for him to commute to his employment in the inner city area. All of his family and friends live in and around the southern or eastern suburbs of Melbourne. I find that to be both a reasonable and understandable position.
The father was prepared to sell his inner suburbs unit and use those monies to relocate to another residential property within the suburbs of Melbourne if it ensured him being closer to any future home of the child’s. There was no agreement as to any area to which he would or could relocate given the substantial uncertainty of and related to the mother’s varying and changing proposals and her primary proposal to live in Cairns.
There was some level of cross examination and discussion during the hearing about the father purchasing a home in or around Frankston on the basis that if the mother was permanently living in the Mornington Peninsula then Frankston would afford him the opportunity to commute to his employment and otherwise spend substantial and significant time with the child, including an involvement with her at a school in the Peninsula area. That issue was not further explored and in the circumstances of the case and the mother’s lack of research into and knowledge of the Peninsula area that was appropriate. As further discussed hereunder the mother’s last minute consideration of the Mornington Peninsula and lack of any specific detail or information about her accommodation, employment or lifestyle in that suburb, or any schooling information largely made that ill prepared option not an alternative for the Court.
I find that the father was genuine in his preparedness to sell and relocate closer to his daughter’s future home. Frankston, or surrounding areas, were in many ways unrealistic and any expensive relocation by the father to that area may have been of short term duration if the child’s residence continued to move within Melbourne, or surrounding areas. I do not criticise the father but rather accept his response to the hastily prepared proposal of the mother as both genuine and underlying his love of his daughter and the way in which he treasured their relationship.
Ultimately, and for reasons explained herein, neither the Mornington Peninsula or Frankston are of any long term relevance to my decision or to the best interests and upbringing of the child. Those suburbs are not reasonably practicable within a consideration of s.65DAA(2) and (5).
The reasons given by the father for his refusal, or inability, to relocate to Cairns if the child were permitted to live in that city are that:
§he has all of his family and friends in Melbourne;
§he has no family or friends in Cairns;
§he has a secure job in Melbourne city to which he is guaranteed employment to age 70;
§he has no employment prospects in Cairns and he is now 59 years of age having spent the majority of his life in and around Melbourne.
The father had many years ago spent a period of time living in Queensland, but not in Cairns. There was a period during their relationship, after the birth of the child, where the parents discussed the possibility of relocating from Melbourne and Cairns was then a city under discussion. They did not seriously develop that option and did not travel to or experience any time in that city until in or about November 2005, and it was at that time and during a family holiday, together with the mother’s sister and her child, that the mother first met and commenced a friendship with Mr P.
The father’s decision not to relocate to Cairns, and the reasons given by him, found support from the Family Consultant Ms L who gave evidence that any such move was highly impracticable and unsuitable, and not in the best interests of the child and also from the mother’s fiancé who stated that he did not see that as a reasonable option and would not expect the father to be required to relocate to Cairns.
Upon a consideration and evaluation of all of the evidence, and in the best interests of the child I would not have required the father to relocate to Cairns and that would not be a reason to allow a move of mother and daughter to that distant city. It is not reasonably practical, in all of the father’s circumstances to require him to uproot his life and employment in Melbourne and commence afresh, at his age, in Cairns. I accept his reasons for his inability to relocate to Cairns and I find they are genuine, reasonable and practical. I am specifically supported by the recommendation of the Family Consultant and the common sense approach of Mr P.
Further I gave specific and careful consideration to the fact that the father would be alone, uncomfortable and very much out of his environment in Cairns. He would not likely adjust to life in that city with a very different climate and work environment. He would have no friends or contacts and would find employment very difficult to obtain. He would be unsettled, perhaps prone to a recommencement of past emotional issues and likely an unhappy father, thus at odds with what the child would need and the very positive image that she holds of him at this time. For all of those reasons, and my observations and assessment of the father in his giving evidence and within the precincts of the Court, such a required relocation of him to Cairns would, within an assessment of the s.65DAA(5) factors, be inappropriate, impractical and not in his daughter’s best interests.
MOTHER’S PARENTING AND RESIDENTIAL PROPOSAL
The strong preference of the mother is for the child to be permitted to relocate to Cairns. Her case is wholly founded on the basis that she will not be separated from her daughter and, if required, she will remain with the child within Victoria. The mother’s case is based upon the fact that she has been and would continue as the primary parent and caregiver to the child and she asserted that she has demonstrated a consistent and responsible attitude to parenthood and to her daughter’s overall welfare, including encouraging and promoting the father’s time spent with her. The mother further asserted that a relocation to Cairns would be in the best interests of the child and her welfare and thus would be least likely to lead to further court proceedings. These are specific additional considerations within s.60CC(3) to which I have given substantial weight.
Her evidence is that C, and the surrounding eastern suburbs of Melbourne are no longer an option and she and her fiancé must find a more affordable location and in somewhat of a rural environment. It is in that circumstance that she belatedly proposed the Mornington Peninsula as her alternate future location in Victoria. That option was ill-conceived, poorly prepared and clearly unsuitable to Mr P. The mother had made no inquiries of accommodation, employment, schooling or general lifestyle and it was both a last minute decision and somewhat of a move in desperation to avoid continuing living in and around the eastern suburbs. I find that this option reflected poorly upon the mother in the context that there was little or no thought given to the welfare and best interests of the child. It was more about an alternate, and a very inferior relocation option, to purportedly benefit Mr P and his requirements. As the evidence of his fiancé subsequently demonstrated, I find that he has no intention or inclination to ever relocate south of Cairns and this Mornington Peninsula option was largely window dressing for the Court.
The mother’s case is substantially put on the basis that she would benefit economically from living in North Queensland. Her fiancé has a secure job and very clearly has shown no inclination to relocate to Melbourne. It is said by the mother, in her Outline of Argument that she and her fiancé:
“Intend to purchase the home in which [Mr P] has resided for ten years, in the immediate future. The home has been valued at $425,000 and the mother and her partner are able to purchase it for $300,000. It is a luxury property most familiar to [the child]. In [the Mornington Peninsula] a similar sum of money would purchase a basic home in need of work. The mother shall have the economic support of her husband in Queensland and no longer be reliant on the public purse. [Mr P] has secure employment in Queensland. [Mr P] has no formal qualifications and no work contacts at all in Victoria. His employment prospects in Victoria are completely uncertain. The mother’s prospects of part-time employment in Queensland are enhanced by the proximity of […] University and Council offices local to her proposed residence. She will seek employment in administration similar to her employment in Melbourne. The mother wishes to reside in Queensland as a lifestyle choice, in addition to all practical and economic benefits”.
The mother did not, in her documents filed with the Court, address the live issue of Mr P, as a single person with no children living in Australia, relocating to Melbourne. From both her affidavit and the affidavit of Mr P there is no disclosure or any analysis of any efforts made by him or on his behalf to secure employment or accommodation in or around Melbourne.
The Family Consultant, Ms L, in her most recent report dated 11 December 2009 observed that Mr P quite obviously has an investment in the mother being able to relocate and he is keen for their relationship to progress and for them to be able to commence their life together. In paragraph 22 of her report she recorded that:
“Mr [P] presents as an affable man with an easy going nature. Rapport was developed with ease and he appeared amenable to participating in the assessment process. Mr [P] lives in Cairns and is employed full-time. His employment involves [hospitality work] and this work is not directly transferrable to Melbourne. He does not pay rent or mortgage as he is currently residing in a home owned by an overseas businessman and he manages this and other homes in exchange for living there rent free. Mr [P] has a son, [A], 16 years, to a previous relationship, who lives in England. [A] visits one each year. Mr [P’s] mother and uncle, who both live nearby, suffer from dementia and he plays a role in their care. He reports a strong relationship with his family. There has been discussion regarding Mr [P’s] ability to relocate to Melbourne. Mr [P] states in response that he is settled in his life in Cairns, has never lived in a city and has significant concerns about leaving his mother and uncle. There is a sense however that if [the mother] is unable to relocate, the couple may further explore the issue of Mr [P] relocating however he is clear that he would feel unable to live in an urban environment such as Melbourne and would need to explore other options such as a rural setting”.
I have therefore considered the future residential proposals which the mother puts forward for the child. I have carefully evaluated these proposals within the context of the specific requirements of the Act and the evidence of the parties and Mr P. It is very clearly a viable option for the child to remain living in and around the eastern suburbs of Melbourne. She has extended family and close friends in that area. She is enrolled at a local school to commence within the next few weeks. She is described as a bubbly, happy and age appropriate child.
There is a level of self interest and personal choice in the mother’s proposed relocation. She very strongly sees her future lifestyle in Cairns. I accept that she will most likely marry Mr P if permitted to relocate, but otherwise and if living in Melbourne I am more than uncertain of that outcome. My evaluation of the evidence is not based upon the mother’s self interest and personal satisfaction and desire of a lifestyle change. It is and must be focused upon the best interests and welfare of the child and in that regard her meaningful relationship with both of her parents. I have particularly reflected upon the primary consideration of the benefit to the child of having an ongoing and meaningful relationship with both parents as identified in s.60CC(2)(a) and the further additional considerations of sub-section (3) thereof.
I wholly discard the Mornington Peninsula as a viable option. I have no evidence, or suggestion from the mother of any other location within rural or provincial Victoria. In any event, and for the detailed reasons provided, I have concluded that Mr P will not relocate to Victoria.
I do accept that the mother is the primary parent of the child and that she is a very good, caring and loving mother who can and should be proud of her upbringing and support of her daughter. That is and remains a very significant factor to which I have given significant weight in evaluating all future options for the child and her upbringing. The mother’s relationship with the child and her capacity as a parent, as identified in sub-paragraphs (e) and (f) of the additional considerations within s.60CC(3) are strongly supportive of the mother.
FATHER
The father impressed as a caring and loving parent. He gave his evidence carefully and truthfully. He displayed understandable emotion and upset. On an observation of him, and thereafter the mother, what became immediately apparent was the difference in age and personality between each of them and the likely impact that would have upon the future lifestyle and upbringing of the child. These are matters upon which I have given some weight and influence.
The father is primarily employed as a building supervisor in Melbourne City. He is both comfortable and secure in that employment and has a very flexible and reliable long term relationship with his employer. He works five days per week, from approximately 1.00 p.m. – 9.30 p.m. but with the ability to reduce his employment hours to facilitate changeover for and time spent with the child. His current salary is $46,000 per annum, a reduction of approximately $5,000 per annum from that which he would earn if he worked full-time without reduced hours. Additionally the father works every other week as a truck driver from 6.00 a.m. – 12.30 p.m. and for which he earns approximately $15,000 per annum.
The father pays child support as assessed in a sum of approximately $65 per week and those payments are deducted regularly by his employer and paid to the Agency. He does not pay or financially assist the mother with other expenses for the child though he does have his daughter with him and meets her upkeep on five days in each fortnight and other holidays. Given his combined income and the fact that he has no other personal obligations to support any other person, his financial contribution to the child is modest and his finances are clearly a matter of some real importance to him.
The father has had health issues arising both from a motor vehicle accident, some ten years ago and from the separation event from the mother. After his motor vehicle accident he was off work for approximately two years and received compensation payments. It was at that stage that he was referred to counselling and a psychiatrist and he was diagnosed with Bipolar Disorder and treated with anti-depressant medication. He has however had no cause nor need to have any psychiatric assistance for the past eight years and has not been on any form of medication. I accept his evidence, but largely without historical support from his current medical practitioner. He was somewhat emotional and tearful in his evidence but that is understandable in the context of what he properly understood to be the consequences of any relocation of the child to Cairns. I concluded that the father has a very proper outlook to and understanding of his daughter and his case has in no way been impacted upon by his past emotional and medication events.
He does suffer from a chronic lumbar back condition as a result of lumbar disc bulges and degeneration and that is recorded in a report from his treating doctor and is not a fact in dispute.
Those health issues, both physical and emotional, do lend support to the very real benefit of the father retaining his current employment and therefore living and working in Melbourne.
In support of his proposal for substantial and significant time the father said he would not work in either of his jobs when the child was with him in Melbourne and, notwithstanding any consequential reduction in salary, his evidence, which I accept, was that he would retain his primary job in Melbourne and could earn sufficient monies in that employment or other additional after-hours employment and with his savings and superannuation could and would be able to support himself and contribute to the child’s upbringing on a long term basis.
In exploring his various residential options the father said that he was prepared to sell his inner suburbs unit and relocate elsewhere within the suburbs of Melbourne, perhaps as far south as Frankston but not beyond that suburb. He dismissed any option of relocating to the Mornington Peninsular as it negated his ability to continue in his current employment. Quite amazingly he had not been informed about the Mornington Peninsula option until immediately prior to the commencement of this hearing. He therefore had no time to make any inquiry. I have accepted that to reside in or around the Mornington Peninsula would render it highly impracticable for the father to continue in his employment and, at his age and with his back problems I accept that he could find it very difficult to obtain appropriate alternative employment.
The father has his extended family in and around Melbourne. He has two daughters from his previous marriage (O and E) now aged 20 and 19 years respectively and he deposed to each of them having a very loving relationship with the child N. Additionally there are uncles and other extended family from which the child has and would continue to benefit. These issues are of importance and I have carefully weighed up the benefit to the child of her current extended family, relationships and their ongoing benefit were she to remain in and around the eastern suburbs of Melbourne. These are important additional considerations in determining the best interests of the child and practical issues which I have balanced in determining the proper substantial and significant time spent with orders.
The father highlighted the family of the mother in Victoria, in particular the mother’s sister who lives nearby and has a son, aged 3 and daughter, who is around the same age as N. It is said they are like sisters. The mother has also three half brothers (one in the Mornington area) and her father is now living in a bayside suburb, having recently relocated there.
In cross examination the mother confirmed that she had always lived, and attended school within the eastern suburbs of Melbourne, in particular the areas of …. Her friends, her employment and her family largely live in and around that area. Again this is a matter of very real significance to which I have given careful weight and balance. The mother could live and remain in her rented C home, or elsewhere in the area and Mr P, as her fiancé, could relocate to that home or make a financial contribution to the mother’s outgoings. The fact that the mother was intending to give notice to cease her residential occupation of the C property was, I regard, somewhat of a tactic which I have disregarded. The child could or would benefit from continuing to reside with her mother in and around C and attend the local school and these are significant factors which I have carefully balanced in my outcome and orders. These matters are again relevant both to the best interests of the child and to the practical circumstances of time to be spent by the parents with the child.
With that family background the father says that there is an extensive and strong network on both sides from which the child has and will enjoy and benefit and that would be severed if relocation to Cairns was permitted.
The father recently enrolled the child at a local primary school in C. That is the same school which her cousin attends as do many of her local friends. It is the feeder primary school for her local kindergarten and both parents have separately attended an enrolment orientation day for that primary school. The child has visited that school and has some familiarity with its environment. The enrolment confirmation certificate is annexed by the father to his affidavit, dated 2 December 2009. It again is a matter of significance that, notwithstanding her long time residence within the eastern suburbs of Melbourne the mother did not prepare for the eventuality of the child being required to commence school in that area. In the best interests of her daughter the mother should have enrolled the child in a local school, to await the outcome of this defended hearing. Again that lack of positive action by the mother is another specific indication of her being wholly focused upon relocation and a future lifestyle in Cairns with Mr P. I find that her focus was self interested and personal, though I do not in any way mean that to diminish her obvious love for her daughter.
The recommendations of Ms S in this updated report were very clear and concise as is the fact that they were not accepted by the mother and thus significant sums of money were spent by the family to ultimately resolve at the door of the court in accordance with these report recommendations.
MS L
On 11 June 2009 Ms L, Family Consultant prepared a children and parents issue assessment which was released to the parties. For that purposes of that assessment there was an interview with the parents and observations and an interview with the child.
The key issues identified by the Family Consultant were:
§the mother’s proposal to relocate with the child to Cairns;
§the impact this relocation would have upon the child’s relationship with her father;
§the amount of time the child spends with the father, whether in Melbourne or Cairns;
§the ongoing nature of the parents conflict and the impact of a decision upon relocation on the future parenting relationship.
The mother was identified as a woman somewhat weighed down by the ongoing nature of the dispute with the father and focused upon her goal of relocating with the child to Cairns to start a new life. The mother conveyed the difficulties in the relationship with the father and held little confidence of positive future change.
The father presented as being highly distressed about the possibility of his daughter being removed to Cairns and had difficulty in containing that distress. It is reported that he had become significantly embroiled in the litigation process and was looking for strategic advantages, which the Family Consultant concluded over-rode his ability to remain child focussed. He expresses a lack of trust in the mother and held the view that she had no regard for court orders, nor for his relationship with his daughter. When interviewed with the mother he adopted a dismissive and at times over-powering approach to any joint discussion. Those observations and conclusions are important and are intertwined with various of the additional considerations that I have considered in determining the best interests of the child, and in particular sub-paragraphs (b), (f) and (i) of s.60CC(3). They are consistent with the precise attitude of the father to Court orders and his need and determination to conduct this Court hearing, as is his legal right. He has become embroiled within the Court process and unfortunately that has now seen him involve the child in conveying comments and issues to those whom he thought might listen and be of assistance to his case. That is both unfortunate and not in the child’s best interests and I have previously addressed this issue.
The summary provided by Ms L highlighted that the child’s primary attachment is with the mother and that should be supported when the Court considered the issue of relocation. If that relocation were to occur it would be at “some cost to [the child’s] relationship with her father”. It would place significant strain upon her both in terms of domestic travel and in managing her father’s distress around her absence. I have balanced these influences upon the child but must record the need and obligation of the father to contain any future distress to himself and not involve his daughter. That is a requirement of a parent, with proper attitude and capacity, acting in the best interests of their child.
In reviewing the past two years (approximately) since the earlier reports of Ms S, this Family Consultant reported that the child is now far better placed to be able to manage the length of time between seeing her father should she move to Cairns. The report otherwise traversed the difficult parental issues and conflict, the lack of trust one in the other and the likely resentment which may arise from either a relocation to Cairns or being denied that opportunity.
Within that summary and the issues raised by Ms L, and in response to the primary application of the father she expressed her professional opinion that a week about living arrangement for the child with her parents would not then be in the child’s best interests. It was no doubt partly in reliance upon that very clear recommendation, and in part on preliminary comments which I offered at the conclusion of the case, that the father gave instructions to his legal practitioners to withdraw that equal time, week about option and rely upon a substantial and significant time to be spent by him with the child in Melbourne as the ongoing and realistic option.
As to the future directions, the effective recommendation of Ms L was that a decision is required of a Court to resolve the conflict, ideally prior to the child commencing at school in 2010.
The second and more substantial Family Report of Ms L is dated 11 December 2009 and that was specifically prepared for the purposes of this defended hearing. Ms L had the opportunity to interview both the mother and Mr P, the father and the child and observe the child in her interaction with each of the relevant adults. Additionally all of the relevant affidavits and Court documents, then filed, were available and were read.
The report provides a detailed background to the matters in dispute and again identified the key issues in dispute but this time including the child’s increasing awareness of and involvement in the dispute between her parents and the impact that this would have upon her emotional wellbeing.
The father presented as more emotionally contained, than on the earlier interview occasion. He was then more acutely aware of the need to lessen conflict in the adult relationships. The father however did, in paragraph 13, offer up in discussion with the report writer his knowledge that the child “was looking forward to speaking with the writer as she wanted to communicate her desire to remain in Melbourne”. In the context of paragraph 28 that is a very important observation as it highlighted the open discussion that the father, and perhaps other members of his family had with the child prior to this interview. I was troubled by the statements and questions of the child to Ms L, as I accept are accurately identified in paragraph 28 of the report, and they highlight an inappropriate involvement and use of the child “as a messenger” on the difficult and central issues in dispute between her parents.
The father maintained that he would be devastated if relocation occurs and his view was that the father / daughter relationship could not be maintained other than on the current basis – or at least on a five day in a fortnight and extensive holiday basis as now occurs. The father was “unable to move from his current position and essentially feels he has been forced into a position of being uncompromising”. He described as having become a “bloody wall because he has been pushed this far”.
Of significance he acknowledged to the writer that the child had a large emotional investment and bond with Mr P and he therefore wanted to see that relationship continue, but not with the consequence that he became a holiday father to the child. The mother clearly again expressed her position that she would not want to remain living in her current local (eastern suburbs) area. Her strong preference remained in relocation to Cairns but otherwise she would relocate somewhere within the rural or provincial areas of Victoria. She expressed frustration at the continual Court hearings and process and was of the very firm belief that the father had been giving the child inappropriate information and material about the Court case and directing her comments and responses to issues in dispute.
The writer’s interview with Mr P simply highlighted the uncertainty of him leaving his settled and enjoyable life in Cairns, notwithstanding any plan to marry or his relationship with the mother. It was again in this context that the report writer identified the need to explore options in Victoria within a rural setting if Mr P was to join his fiancé in Victoria. On a positive note it was recorded that Mr P does understand and is accepting of the father’s role and he committed to be positively supportive thereof. That position and co-operation of Mr P is fundamental and if I were to have found that he would have presented a real level of opposition to that future father / daughter relationship then it would have substantially influenced the outcome of my deliberations. What Mr P has said to the Court and to Ms L is consistent with his acknowledgement of the father’s role and importance to the child and I have ultimately accepted that will be respected by Mr P.
It is clear that the child has, and the Family Consultant identified, a close and loving relationship with both mother and father. The child was described as a resilient child who has developed strong attachments to key figures in her life, primarily her mother and father. It is said in the report that she now holds well formed views and that her relationship with her father has had time to develop and strengthen and that she now does have a positive bond with him. The evidence in this regard before the Court, in paragraph 37, is that:
“These strong attachments and her clear understanding of people’s roles within her family and her resilient nature will see her well placed to make the required adaptions if she were to relocate. These factors, coupled with the goodwill of the mother to promote and support the relationship, indicate that [the child] will likely manage the arrangements required as a result of the relocation”.
Ms L accepted that the mother had indeed demonstrated her willingness to support and foster the child’s relationship with her father, as evidenced by her decision to remain in Melbourne following the earlier Family Report of October 2007. From the evidence that is an uncertain and perhaps incorrect conclusion because the mother did not accept that earlier report recommendation and specifically continued to a Court hearing before settling on the morning with final consent orders as earlier outlined in this Judgment. Nevertheless there does seem a clear acceptance by the Family Consultant that the mother will in the future co-operate with and constructively contribute to an ongoing relationship between father and daughter if living in Cairns.
Nowhere in her report does Ms L make mention of the Mornington Peninsula. When questioned she had a recollection that Mornington may have been mentioned but it was not in her notes. Given the report was prepared only last month, with interviews in late November then this is highly instructive of the total lack of thought, care and decision of the mother, Mr P, and their legal advisers to any realistic option within Victoria, but that is a matter which I have already substantially highlighted.
The primary recommendation of Ms L is that the child should remain in the primary care of her mother. The further recommendations, paragraph 44 are drafted in the alternative and do not, appropriately, adjudicate upon the relocation issue. What the writer has recommended is that if the child is in Queensland then she spend regular time, including during school holidays and other periods with the father and otherwise has access to photographs and is supported by electronic communication. Of more significance and in the alternative if the child were to remain in Melbourne then it is recommended that the current time spent with arrangement of five nights each fortnight, plus holiday and other special times be continued and that the mother be permitted to move from the C area to another unidentified area within Melbourne, or otherwise Victoria. The significance of that recommendation is that it would break the tie that the mother and the child have in and around the eastern suburbs where each of them has spent most of their life and where extended family, friends and relations live. I balance that recommendation of Ms L with the observation that it is not supported by any proper analysis or evaluation of the factual circumstances and background of the mother and the child, or of the concerns of the father, though the answer is most probably the available time to the writer and pressures of work in completing the report to be released to the parties prior to this Court hearing.
I have ultimately, and upon evaluation accepted the primary recommendations of Ms L. They are consistent with my observations of the parties and my conclusions upon evidence. The mother is and has been the primary carer of the child. The father’s current relationship and attachment to his daughter are such that it can and should be maintained given the willingness and ability of the mother to contribute to and ensure that outcome. The primary consideration of s.60CC(2)(a) would therefore be established with the father maintaining a meaningful relationship with his daughter.
THE ACT – RELEVANT SECTIONS EVALUATED
I have throughout these reasons for judgment concentrated my consideration and evaluation of the evidence upon the best interests of the child. I have cross referenced much of the evidence to the determination of that best interest in accordance with s.60CC of the Act, the requirement of a substantial and significant period of time to be spent as between father and daughter and all of the practical circumstances associated with that scenario as identified within sub-paragraph (5) of s.65DAA. To the benefit of the parties and by way of a substantiation of the detailed process and evaluation that I have undertaken I now record the relevant parts of the Family Law Act and my summary of specific findings made thereunder.
Section 60CA of the Act requires the court, in deciding whether to make a particular parenting order in relation to a child, to have regard to the best interests of the child as the paramount consideration. This has been my primary focus throughout my evaluation of all of the evidence.
The objects of and principals underlying Division 7 of the Act and its amendments are intended to ensure that the best interests of children are paramount and are fully and wholly considered by the court in determining appropriate parental responsibility orders.
It is important for the mother and father to wholly understand their obligations and for such purpose I therefore have incorporated within this Judgment, the provisions of s60B of the Act. The objects are there stated to be:
(a)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
(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.
Sub-paragraph (2) thereof highlights the principles underlying those objects which are:
(a)children to have the right to know and be cared for by both 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.
I have had careful regard both to the objects and principles as expressed above. There likely are emotional, behavioural, conduct and personality issues which may, on the facts of this case partly nullify those objects and principles. The mother and father have a reasonable and sometimes co-operative, albeit a distant relationship with communication issues which I have more fully explored. Ideally, as parents, they should be more understanding and co-operative with each other and it would be very helpful if they each reflected upon and acted more positively to perform their primary obligations to the child.
Section 61DA of the Family Law Act 1975 provides that there is a presumption of equal shared parenting responsibility when making parenting orders. That presumption relates solely to the allocation of parental responsibility as defined in s61B. The specific sub-section provides as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
The basis upon which that presumption may be rebutted by evidence is identified in sub-section (4) where it provides as follows:
(4)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.
Each of the parties, and the previously appointed Independent Children’s Lawyer, agreed by final consent orders to an ongoing equal shared parenting arrangement and both parties, by their applications to this Court have preserved that situation and, notwithstanding the relocation outcome the common approach of the parties to the Court is to preserve that equal shared parenting arrangement. Therefore because of that consent circumstance and because there is no evidence before the Court upon which the presumption could or should be rebutted the mother and father will remain sharing equally the parental responsibilities for the child.
SECTION 60CC CONSIDERATIONS
How the court determines what is in the best interests of a child is prescribed by s60CC of the Act and there are both primary and additional considerations that I have fully considered and evaluated. I have identified each of those relevant considerations and evaluated the evidence of the father, mother and Mr P upon each of these matters and then further reflected upon them in my determination of orders that are in the best interests of the child.
The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Overwhelmingly the relevant primary consideration in this case is for the child to maintain and extend a meaningful relationship with her mother and father. I will not restate all of the many and varied reasons that I have previously considered and which now form the basis for the orders that I have concluded are in the best interests of the child.
In summary and as to the mother I accept the evidence as to their current close and loving relationship and relocation to Cairns would foster and most likely draw mother and daughter even closer.
The meaningful relationship between father and daughter is and has been my primary focus and his current relationship and attachment are close but will be impacted by any relocation to Cairns, including by geographical distance and lack of time spent five nights in each fortnight. That issue, and all of the other relevant considerations which I have evaluated and reflected upon as between father and daughter, and his current response and dealing with their relationship are matters of importance. There is now established a solid basis and with a level of dedication and continuing real interest of the father that should be able to be maintained by him. Certainly that is in the child’s best interests.
Sub-section (b) thereof is not applicable and I have not been asked to consider, nor do I find there is any issue of concern as to any harm, neglect or exposure to or concerning the child.
The relevant additional considerations of s.60CC(3) must be considered within the framework of deciding the best interests of the child and with whom she is to live and the related relocation issue. Within that framework and having regard to the specific issues in dispute before the court the additional relevant considerations that I have considered and assessed in determining the best interests of the child are:
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child)
to provide for the needs of the child; including emotional and intellectual needs;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
I have substantially recorded, evaluated and made findings upon the evidence of the mother, father and Mr P and upon the family reports from the consultants.
To more fully discharge the onus upon the Court to consider all of these additional matters within the framework of deciding where and with whom the child is to live I do conclude and again summarise that the mother has a willingness and ability to continue to encourage a close father / daughter relationship. On balance her conduct over the past two years has been child focused and proper and forms the foundation upon which her continued goodwill and encouragement of significant and substantial time to be spent by the father would and should continue to occur.
I have exhaustively described the nature of the child’s relationship with her parents, and with Mr P. I have considered the likely effect of changes for the child upon relocation but ultimately I am satisfied that she can and will develop in and respond to her new life and maintain a good and close relationship with her father.
The practical difficulties and expenses that will arise upon relocation, distance and less regular time with her father have likewise been the subject of evidence and evaluation. Ultimately these issues should not “substantially” affect the child’s rights to her life and upbringing with both parents involved on some regular basis. I accept, and I emphasise my reliance upon the mother in purchasing air fares and actively and genuinely co-operating with all holiday travel periods and other time spent arrangements. That has been a promise by the mother, supported by Mr P to the Court which is accepted.
I do not have a concern as to the capacity of the parents to provide for and be involved in the upbringing of the child and likewise each of them have shown a proper attitude, all matters considered to the child and her upbringing and in their own way each of them have substantially contributed towards parenthood issues.
It is difficult to pronounce an order that is preferable and least likely to lead to no further proceedings before the Court. This case needs to be entirely out of Court and for the parents to preserve their limited capital assets and to concentrate upon their daughter, her life and their future circumstances, well being, employment and lifestyle.
The other matters, facts and circumstances have been recorded in my assessment and findings upon the parties and the evidence and I will not again restate such matters.
Thereafter sub-section (4) of s60CC is relevant because of the additional considerations identified in sub-paragraph (3)(c) and (3)(i) and I have examined the role that both parents have undertaken and fulfilled for the child and specifically in the context of their separation and circumstances that have existed since that date are made relevant by s4A.
It is to better understand the post separation events that the parties have filed further affidavits and I have separately evaluated their evidence in that regard. Likewise the professional evidence of a child focused and psychological nature from the Family Consultant has considered these post separation events and conduct within the parameter of what is best for the child and with whom and where she should live.
SECTION 65DAA
As the parents have agreed on a continuation of the order for equal shared parental responsibility it was incumbent upon the Court to carefully consider and determine whether there should be a sharing of equal time or whether one parent should otherwise spend substantial and significant time, but not equal time with the child. This scenario changed with the withdrawal by the father of his equal time application but I nevertheless intend to record this section of the Act and otherwise give my endorsement to the time hereafter to be spent by the father with the child being of a substantial and significant basis.
The very formal obligation upon the Court is to consider in accord with s.65DAA equal time, or substantial and significant time in cases where there is an ongoing equal shared parental responsibility order. The section provides:
Equal time
(1)If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)If:
(a)a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)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.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
The commencement point is that the parents have now agreed, upon the father withdrawing his application for equal week about time, that there should be an order for substantial and significant time appropriate to the living circumstances of the child. Notwithstanding the agreement of the parents I strongly share the professional view of Ms L that this was not a case for an equal time, week about arrangement. If my orders had have been for the child to remain living within the eastern suburbs of Melbourne I would not have provided an equal sharing of time. I find that would be contrary to her best interests as her mother is her primary parent and there is some level of conflict and communication difficulties between her parents. The current five nights in a fortnight arrangement, plus holidays was appropriate and in the best interests of the child in the now existing circumstances.
As to substantial and significant time the relocation of the child to Cairns would necessitate that the child could not spend five nights per fortnight with her father, as with the current order. More particularly now, future weekends could not regularly be exercised by the father and predominantly his time will be substantially in holidays or otherwise on weekend occasions when he can travel to Cairns and substantially by telephone electronic means.
By virtue of sub-paragraph (4) thereof the Court can have regard to other matters when determining what is substantial and significant and I conclude that the regularity of holidays as agreed to by the mother, and as I have ordered, and all of the other time spent by electronic opportunities do provide the father with substantial and significant time hereafter to be spent with the child.
In sub-section (5) there must be a concluded understandable level of reasonable practicality to the orders. I have determined what is substantial and significant time on the basis of the obvious geographical distance, what is reasonable by way of an implementation of proper arrangements for travel and communication and the financial and practical issues for both parents. All of these matters are fully detailed in my individual evaluation of the evidence of the parties and Mr P.
SPECIFIC ISSUES
I have concluded that it is proper to require the mother to co-operate in all reasonable ways with both the father and members of his existing family to facilitate the best interests of the child and for each of them to spend reasonable time with her when they are in Cairns. Such an order must be reasonably subject to her schooling and other genuinely organised activities but I emphasise that I have concluded there does remain upon the mother an obligation to ensure the child remains close to and knows of her father’s extended family and their activities.
It is in the best interests of the child for each of their parents to immediately inform the other of any medical, health, personal or education issue that may arise from time to time and I have made an appropriate order.
Likewise it is in the best interests of the child for each of the parents to be able to contact the other at all times and to know their whereabouts, in particular the mother must at all times keep the father informed of where the child is living and updated contact details. That is an obligation upon the mother within the relocation order that I have pronounced.
As to schooling I require the mother to provide a written authority and permission to the child’s schools, from time to time, to give true copies of school reports and other statements and records to the father on a real time basis.
COSTS
I have been provided with appropriate letters pursuant to Rule 19.04 of the Family Law Rules 2004. I therefore have knowledge of the substantial expenditure of the parties. I have specifically considered s.117 of the Act which, as its commencement, has a requirement that parties pay their own legal costs unless it is just that a contrary order be made because of an evaluation of the matters and facts identified in sub-section (2A) thereof. Without further submissions from Counsel I have carefully considered these issues and the whole of the preparation and presentation of legal argument and the outcome of this hearing.
I conclude that it would not be just to make any order for the payment by one party of the whole or part of the legal costs of the other party. There was a genuine and very difficult scenario to be determined by the Court. I would not have been persuaded to order costs in this case and my intention of including a refusal of any costs order, prior to any application or argument, is to save further costs and expenditure to the parties and to do what, in all of the circumstances, is just.
DELAY IN RELOCATION
I have concluded that in the best interests of the child the relocation to Cairns should be delayed until the end of the Victorian first school term. The child can therefore be enrolled to commencement in primary school in Cairns from that date. This extended period provides the father his right to take legal advice on these reasons and lodge an appeal, if that be his chosen course of action. Otherwise it allows a meaningful period for the father and his extended family to accept the outcome of this hearing and to prepare themselves for the future family circumstances of the child. Given the period that the mother has waited there can be only be limited further inconvenience to her and, in any event, I have assessed this delayed relocation date to be in the child’s best interests.
VENUE
I take this opportunity to express my considered view that, for any future Family Court proceedings that might arise in the near term then Melbourne, and not Cairns, should be and remain the Registry for such proceedings.
I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young
………………………………………………………..
Associate: Annette King
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