Babbitt and Babbitt
[2009] FMCAfam 1185
•27 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BABBITT & BABBITT | [2009] FMCAfam 1185 |
| FAMILY LAW – Children – interim relocation. |
| Family Law Act1975, Part VII ss.60B(1), 60CC(1), 60CC (3)(a) – (d), (f), (i), 61DA, 65DAA (1) & (2), (5) |
| AMS v AIF, AIF v AMS (1999) 199 CLR 160; (1999) 163 ALR 501; (1999) 73 ALJR 927 Champness & Hanson [2009] FamCAFC 96 F v F (2008) 38 Fam LR 52 Goode v Goode (2007) 36 Fam LR 422 Keach & Keach (2007) FLC ¶93-353 Mazorski v Albright (2008) 37 Fam LR 518 Morgan v Miles (2008) 38 Fam LR 275 Rosa & Rosa [2009] FamCAFC 81 SPS & PLS (2008) 217 FLR 164; (2008) 39 Fam LR 295; (2008) FLC ¶93-363 U v U (2002) 211 CLR 238; (2002) 191 ALR 289; (2002) 76 ALJR 1416 Vasser v Taylor-Black (2007) 37 Fam LR 256 |
| Applicant: | MS BABBITT |
| Respondent: | MR BABBITT |
| File Number: | CAC 1116 of 2009 |
| Judgment of: | Neville FM |
| Hearing dates: | 12 August (Wagga Wagga sittings) & 25 September 2009 (Canberra) |
| Date of Last Submission: | 29 October 2009 |
| Delivered at: | Canberra |
| Delivered on: | 27 November 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hogg |
| Solicitors for the Applicant: | Belbridge Hague Solicitors |
| Counsel for the Respondent: | Ms Godtschalk |
| Solicitors for the Respondent: | Farrell Lusher Solicitors |
ORDERS
UNTIL FURTHER ORDER, IT IS ORDERED:
That the mother and father share parental responsibility for the children [X] born [in] 2001 and [Y] born [in] 2005.
That the children live with the mother.
That the mother shall not be prevented from residing in [O] or [G] with the children.
That the father shall spend time with the children from 6:00pm on Friday to 6:00pm Sunday (to extend to Monday on a long weekend), each alternate weekend.
That changeovers are to occur in [S].
That school holidays are to be shared equally between the parties as agreed, and if not agreed the father is to have the first half of each school holiday period.
That Christmas Day is to be shared, with the children to spend time with the mother commencing at 5:00pm on Christmas Eve until 3:00pm Christmas Day. The children are to then spend from 3:00pm Christmas Day to 6:00pm Boxing Day with the father before returning to their mother’s care.
That the children are to be with the mother on Mother’s Day from 9:00am to 5:00pm if otherwise with the father.
That the children are to be with the father on Father’s Day at 9:00am to 5:00pm if otherwise with the mother.
That the parent with whom the children are not with is to spend time with the children for four hours on the children’s birthday and on their birthday.
The matter be adjourned for further directions on 19 May 2010 at 10:30am in Wagga Wagga.
IT IS NOTED that publication of this judgment under the pseudonym Babbitt & Babbitt is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1116 of 2009
| MS BABBITT |
Applicant
And
| MR BABBITT |
Respondent
REASONS FOR JUDGMENT
Introduction
The following reasons in this interim relocation matter proceed as follows: (a) procedural history, (b) proposals of the parties, (c) background facts, and (d) jurisprudential considerations.
A. Procedural history
This matter first came before me in Wagga Wagga on 12th August 2009. After a typically spirited debate between Counsel (Mr Hogg for
Ms Babbitt, and Ms Godtschalk for Mr Babbitt) regarding the injunctions of the Full Court in Vasser v Taylor- Black,[1] essentially the steps that should be taken by a court to obtain the best possible evidence before proceeding, I adjourned the application and ordered the parties to attend upon a Family Consultant in Albury on 24th August 2009. This occurred.
[1] Vasser v Taylor-Black (2007) 37 Fam LR 256
The matter came back before me on 25th September. On that occasion, everyone was armed with a short-from family conference Report from the Family Consultant, Ms Deane, dated 27th August 2009.
This Report may be taken to have been received into evidence on the principles that were espoused by Warnick J in SPS v PLS.[2]
[2] SPS & PLS (2008) 217 FLR 164
On 25th September 2009 there was further argument, at the conclusion of which I granted the parties a further 14 days in which to provide any written submissions and any further evidence.
After receiving written submissions from each party, the last factual item confirmed with the Court arrived via email from the solicitor for the Applicant Mother on 29th October 2009.
B. Proposals of the parties
The applicant Mother, Ms Babbitt, sought interim orders in her Initiating Application filed 9th July 2009 that the children reside with her, that she not be prevented from relocating the children to [O] or Canberra, and that the children spend time with their Father for defined periods on weekends and school holidays.
In a Minute of Orders sought, filed on 1st October 2009, Ms Babbitt amended her orders sought to the following:
If the Mother returns to [G] with the children
1. The Mother and Father share joint parental responsibility for the children.
2. The children live with the Mother.
3. The children spend time with the Father each Thursday from 9:00am to 4:00pm on the Monday next following of one week and then for the short time week the children spend each Wednesday with the Father from 9:00am to 9:00am Thursday.
If the children return to [G] and the Mother remains in [O]
1.The Mother and Father share joint parental responsibility for the children.
2.The children live with the Father.
3.The children spend time with the Mother as follows (with changeover to be at [S]):
(a)6:00pm Friday to 6:00pm Sunday (Monday on a long weekend) for each alternate weekend.
(b)Contact to commence on the second weekend after the children return to [G].
To apply in both situations:
1.School holidays to be shared equally as agreed or if not agreed, Father to have the first half of each school holiday.
2.Christmas Day to be shared commencing 5:00pm Christmas Eve and until 3:00pm Christmas Day. Other party then to have the children for the balance of Christmas Day and Boxing Day and then to return to the party with whom they otherwise live. The Father to have 2009 year.
3.Children to be with Mother on Mother’s Day at 9:00am to 5:00pm if not otherwise with the Father.
4.Children to be with the Father on Father’s Day at 9:00am to 5:00 pm if not otherwise with the Mother.
5.Parent with whom the children are not with to spend time with the children for four hours on the children’s birthday and on their birthday.
Notation:
4.Should the children live with the Father then his regime for care is:
(a)To be assisted by properly qualified carers between 6:00am to 9:00am each weekday morning; and
(b)From 3:00pm to 5:00pm each weekday afternoon.
(c)Otherwise with the Father/Mother.
Ms Babbitt also sought that changeovers occur at McDonald’s in [S], a restraint on the Father’s consumption of alcohol prior to spending time with the children, and mutual non-denigration orders.
In his Amended Response filed on 14th August 2009, Mr Babbitt sought the following interim orders:
1.Until further order the respondent have sole parental responsibility in relation to the children of the relationship.
2.Until further order the children live with the respondent and spend time with the applicant at times to be agreed between the parties.
3.The applicant forthwith return the children to the respondent.
4.In the event that the applicant fails to comply with Order3 hereof within 24 hours of this Order, a Recovery Order issue directed to the Marshall and to all officers of the Australian Federal Police and to all officers of the police force of all states and territories of Australia requiring them to return the children to the respondent forthwith and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the children may be found.
5.The applicant be prohibited from removing the children from the care of the respondent unless pursuant to Court Order or by agreement with the respondent.
6.The applicant wife be restrained from discussing these proceedings or these Orders with the children or in the presence of the children.
C. Essential facts
The applicant, Ms Babbitt, is the Mother of two children [X], now aged 8, and [Y] who is aged 4. She is 37 years old. The respondent,
Mr Babbitt is 50 years old.
Ms Babbitt wishes to relocate from [G] to [O].
As at the date of these reasons, Ms Babbitt has in fact relocated and the question before the Court is whether or not that situation should remain (at least on an interim basis), with the children continuing to live with her in that city and spending time with their Father as set out in her `orders sought’, or whether they should live with their Father and spend time with their Mother.
Prior to her marriage to Mr Babbitt, Ms Babbitt has been married twice previously. Her first marriage was a very short one between 1990 and 1991. Her second marriage, which took place in 1993 and ended in 1997 (although the actual divorce did not take place until 2000), resulted in the birth of one child, [Z] in 1994.
Ms Babbitt’s evidence:
Since the beginning of her relationship with
Mr Babbitt, which she says commenced in 1999, Ms Babbitt claims to have been intimidated and to some degree threatened by him and his abuse of alcohol.
Indeed, she claims that her relationship with Mr Babbitt has involved verbal and emotional suffering and many instances of physical violence, including one instance of being threatened with a knife by
Mr Babbitt. Such matters are canvassed, for example, in her original supporting affidavit which was filed on 9th July 2009 (paras.22-29).
Ms Babbitt maintains that most if not all of the incidents of which she complains are essentially related to Mr Babbitt’s excessive use of alcohol and the consequential aggressive change in his demeanour and actions. She says that he maintains that he does not recall any of these [alcohol-fuelled] events other than that when he is told of them the following day, he invariably apologises to her.
At paragraph 34 of her first affidavit, Ms Babbitt says that in 2003 her second husband, Mr M, alleged that Mr Babbitt had “sexually interfered” with their older daughter [Z].
Later in her affidavit (paras.61 - 81) Ms Babbitt contends that [Z] confirmed the allegation some years later. She contends that [Z]’s confirmation was advised to her in June 2007. Following this she says that she sought legal advice, which suggested that: (a) Ms Babbitt should leave the marriage, (b) nonetheless there was no risk to her younger children. I confess to finding this advice (if true and or accurate) to be anomalous, at least, if not genuinely concerning.
To return to something of a chronology of the relationship, Ms Babbitt confirms (para.37) that Mr Babbitt said to her at one stage “I won’t have my son grow up without his Father.”
Ms Babbitt confirmed that the couple married in October 2004.
Next, Ms Babbitt raises what can only be described as a bizarre series of events which, she says, occurred on her wedding night in October 2004. She says that these “events” involved (obviously) Mr Babbitt, alcohol, an axe, assaults on Mr Babbitt’s family members, the police and much else besides. These matters are set out in paragraphs 40-51 of Ms Babbitt’s affidavit.
I interpose here to note that in Mr Babbitt’s affidavit, which was filed on 5th August 2009 (para.29), he provides a more than reasonable – but obviously untested - explanation of these events from his perspective.
Returning to Ms Babbitt’s account of the relationship, she effectively alleges a pattern of drinking followed by aggression, followed by reconciliation between the parties.
She confirmed that the family home was purchased in November 2006 in [G]. She confirmed (and it seems not disputed by Mr Babbitt) that he was away working for long periods at a time (e.g. four weeks away, then home for one week).
Ms Babbitt contended that Mr Babbitt began to drink again in 2007.
She also says that the couple separated in 2007, a fact which is not disputed. Since that time, and obviously throughout the course of the relationship, Ms Babbitt has been the primary carer of both children. This too is a matter seemingly undisputed.
Ms Babbitt says that there have been a number of Apprehended Violence Orders (AVO) issued against Mr Babbitt, the most recent being in May/June of 2009. Such things are, of course, a matter of public record.
At the conclusion of her first affidavit Ms Babbitt says that, amongst other things, a move to [O] would enable her to be closer to [Z], who is still undergoing counselling in relation to the alleged incident involving Mr Babbitt.
Ms Babbitt notes her concerns about Mr Babbitt’s capacity, in any event, whatever the orders made by the Court are, to care for the children beyond a couple of days.
In her second affidavit, which was filed on 13th August 2009,
Ms Babbitt does two things. First, she elaborates on her employment position with [company omitted], noting that in the [company’s] restructure at [G] her current employment had been downgraded.
Ms Babbitt also noted in earlier material filed with the Court that
Mr Babbitt had reduced his child support payments. This had the consequence of Ms Babbitt needing to make sure that she had an adequate income supply in order to meet the needs of the children, and obviously her own needs also.
She maintains that moving to [O] and a better and more secure position with [company omitted] will ensure adequate income for her own needs and those of the children.
Annexed to her second affidavit are copies of a series of Apprehended Violence Orders to which she had referred in her first affidavit.
She also annexes a copy of ‘Court News’ from the [G] Independent newspaper, dated 14th August 2009, (Annexure CB11) which records that Mr Babbitt pleaded guilty to intimidation – of Ms Babbitt – for which he was fined $500.
Mr Babbitt’s evidence: In Mr Babbitt’s first affidavit, filed 5th August 2009, he confirms that there was a certain turbulence and instability in his relationship with Ms Babbitt, but he says this was in part due to verbal abuse by her second husband, Mr M, and his (Mr Babbitt’s) remonstrations with Mr M to leave Ms Babbitt alone.
Mr Babbitt also deposes to Ms Babbitt having an on-again, off-again relationship (in 2002) with another man after [X]’s birth. This was followed, he says, by yet another reconciliation between the couple.
I have already noted that the “axe incident” in 2004, which Ms Babbitt understandably notes with some prominence, is reasonably well explained in Mr Babbitt’s affidavit at paragraph 29. Because of that explanation, and because it was five years ago, and because Ms Babbitt has had little hesitation, on the evidence, of permitting the children spending time with their Father, I do not propose taking this matter any further at this interim stage of the proceedings.
Mr Babbitt also confirms that the couple bought their home in [G] in November 2006. He also confirms that they separated in July 2007. Importantly, at paragraph 35 of his first affidavit, Mr Babbitt deposes to Ms Babbitt confirming to him that nothing happened in relation to the alleged incident involving [Z]. It would seem that this denial by Mr Babbitt is not challenged in Ms Babbitt’s later affidavit.
Mr Babbitt confirms his financial support for Ms Babbitt and the children.
He also confirms that there have been and remain problems with communication between the parties and frustration with Ms Babbitt and what he contends to be her somewhat promiscuous or wanton behaviour with other men.
Mr Babbitt says that [X] has told him that he has seen his Mother in bed with other men.
Mr Babbitt confirms that in approximately June 2009 he obtained full-time permanent work at [T] to avoid interstate and overseas travel, which prior to that time, had been his more regular work pattern and places of employment. This is to say that he was regularly away from home and worked long shift hours. He said in this first affidavit that his shiftwork was from 5:00pm to 2:00am, but in his later affidavit filed 11th August (para.16), he says that his hours of work are now 7:00am to 4:30pm.
In July 2009 Mr Babbitt contends that he was advised by Ms Babbitt of her moving out of the area due to work commitments. He says he was presented with an ultimatum by her to this effect, and that she was taking the children with her.
D. Family Report of Ms Deane
Ms Deane makes the following comments and observations in relation to the children and their parents. In considering the Report at a little length, and because it is in the context of these interim proceedings, her Report (in large measure) may be taken as the Court’s attempt to traverse the difficult legislative pathway that must be negotiated.
For example, in recording Ms Deane’s observations of the children and the parents and their interactions, as well as various comments (brief as they are), the Court is seeking to have regard, for example, to those parts of “the pathway” that are concerned with the views of the children, and (to the degree possible) the expression of the parents and their understanding of their parental responsibilities.
The older child, [X], says Ms Deane “made general positive comments about the [new] school. And he has made a number of new friends and appears to be settling in.” In relation to his experiences of both his parents, [X] made very positive comments.[3]
[3] Family Report dated 27th August 2009 at para.2. Such a record is relevant to s.60CC(3)(a).
At para.5 of her short-form Report, Ms Deane said that… “these children felt comfortable at spontaneously expressing their warmth and affection towards each parent. The children moved freely between their parents who sat separately in the waiting room area. They verbally interacted in positive tones with both parents.”[4]
[4] These observations are important, of course, in relation to s.60CC(3)(a), (b), (c), (d) and (i).
Ms Deane went on to say (para.6), “during the unstructured and structured observations, both parents were positive and appropriate with their interactions with the children. It was also apparent that both parents take delight in their children.”[5]
[5] These observations are significant in relation to s.60CC(3)(b), (c), (d), (f) and (i).
Significantly, Ms Deane noted that although Mr Babbitt has been absent for lengthy periods in the past related to his work commitments, the children appeared to have warm and connected relationships with him. Ms Deane goes on to make the following important observation when considering the history of the children’s living arrangements:
... Ms Babbitt has provided their primary care. Potentially
Mrs Babbitt, particularly in the case of [Y] (and when considering the child’s tender years), is the children’s secure base attachment figure. It would be important that [Y] particularly has continued access to her Mother, and a prolonged separation from Ms Babbitt at this stage could impact detrimentally on [Y]’s wellbeing and development.[6]
[6] Family Report dated 27th August 2009 at para.8.
Ms Deane also very sagely notes (para.8) that “... in order to ensure their emotional bonds are protected, it would be important that the children spend regular time with both parents.”
Ms Deane’s recommendations are as follows:
1. “The Court may need to be more informed about Mr Babbitt’s consumption of alcohol and any impacts in this regard on his capacity to provide appropriate care to the children.”
2. “Both parents have raised concern that there is an apparent risk to the children in relation to sexual harm, and an evaluation of this would seem to be vital to formulating living arrangements for the children.”
Apart from these recommendations, Ms Deane makes no further comment particularly in relation to the relocation issue.[7]
[7] Ms Deane also noted that [X] has made a number of new friends at his new school and “appears to be settling in.” Family Report, para.2.
E. Jurisprudential Considerations
Before dealing with the formal legal authorities that deal with relocation, I should note one other important factual aspect.
It seems to be unchallenged that the solicitors for Ms Babbitt attempted to file the Initiating Application in June 2009.[8] It would appear that the application received at least one set of requisitions from the Registry of the Court, which had the effect of the delaying the filing of process. I mention this so as to put into context an argument that is raised by the respondent, namely that Ms Babbitt has sought to present to the Court, and to place Mr Babbitt in a disadvantageous position, with a fait d’accomplit regarding her work and the relocation of the children with her to [O]. When seen in the light of the attempt to issue process prior to her move, such an argument does not carry quite the weight that it otherwise would.
[8] This timing would accord with Ms Babbitt’s solicitors’ advice to the Court that she learnt of the possible restructure of [company omitted] in [G] in May.
The relevant authorities, summarily stated, for applications of this kind and in the light of the facts as set out above are Mazorski v Albright[9] (both in relation to the principles to be applied taken from Part VII of the Act and in relation to relocation), Morgan v Miles[10] and, the two most recent Full Court decisions of Rosa & Rosa[11] and Champness & Hanson.[12]
[9] (2008) 37 Fam LR 518.
[10] (2008) 38 Fam LR 275.
[11] [2009] FamCAFC 81.
[12] [2009] FamCAFC 96.
Although the comments made by the High Court concerning relocation in AMS v AIF, and again in U v U,[13] were in a different statutory context than the current regime, nonetheless the observations there made remain critical. I have in mind, in particular, the statements of principle regarding, on the one hand, the paramountcy of the children’s best interests, and on the other hand, the freedom of movement of a parent to `move on’ with their life following the breakdown of a relationship, and that no `compelling reasons’ were required.[14]
[13] Respectively AMS v AIF, AIF v AMS (1999) 199 CLR 160, and U v U (2002) 211 CLR 238.
[14] A summary of these principles from these, and other, cases is set out in my judgment in F v F (2008) 38 Fam LR 52.
These basic principles are in play in these proceedings.
I set out below paragraphs [3] – [6] of Brown J’s judgment in Mazorski v Albright and respectfully adopt it for its succinct overview of relevant sections (and principles) of Part VII of the Family Law Act:
The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
I also set out below from the judgment in Morgan & Miles, beginning at paragraph [79], where Boland J articulates the importance that courts place on `a structured exercise of discretion’:
In considering whether the child should live with the parent who proposes to relocate a court:
· Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
· Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
· Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
· If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
· In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
· When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
· Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
- that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
- that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
- that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
- the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
· Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
Without of course seeking to pre-empt anything which the High Court might say on the appeal in Rosa & Rosa, scheduled for early December 2009, for the purposes of the proceedings before me, in my view, that case turned very much upon the Federal Magistrate’s assessment of the capacities of the parties to promote the relationship of the child with the other parent. So much was in fact noted by the Full Court.
In my view, on the facts of this case, and as noted by Ms Deane, the children have a very good and strong relationship with both parents. This has occurred in circumstances where it has been acknowledged that Mr Babbitt has been absent from their lives for significant periods of time working interstate and overseas. This confirms, at the very least, that Ms Babbitt has been able to promote the children’s relationship with their Father to a significant degree.[15] Certainly there is no evidence either from the experienced Family Consultant or otherwise, that there has been anything negative said or done by
Ms Babbitt to undermine or to cause any impediment to the relationship between the children and their Father.
[15] This important fact relates to s.60CC(3)(b), (c), and (i).
On the facts of this matter, and having regard to the relevant paragraphs of the legislative pathway,[16] I am satisfied that it is in the children’s best interests (which has to be the paramount consideration in any event) that they and their Mother should remain in the [O] region until further order of the Court or written agreement as between the parties.
[16] See Goode v Goode (2007) 36 Fam LR 422, especially at [10], [47], [48], [56], [81] & [82], and Keach & Keach (2007) FLC ¶93-353 at [24] ff respectively.
The difficulties, such as they are, are solely between the parents.
Ms Deane records the children as having a good relationship with both parents. Among other things, it is intended as an encouragement to the parents that there will be an order for equal shared parental responsibility. Indeed, on the limited evidence available to the Court, there is little that could rebut the operation of the presumption under s.61DA.
With such an order comes the responsibility of the Court to consider s.65DAA. Having regard to the provisions in s.65DAA(5) regarding “reasonable practicality”, and having regard to the physical distance between the parties, I do not see that an order for shared care, or for substantial and significant time for the children to spend with their Father, can be made in this case at this time. The orders to be made as sought by Ms Babbitt are in the children’s best interests at this time. Of course, it remains to be seen whether, among other things, she continues to promote their children’s relationship with their Father. Indeed, if it transpires that there is a genuine diminution in it, following a final hearing, Ms Babbitt could well be ordered to return to the [G] region. Such may ultimately be in the children’s longer-term best interests.
Both parents work. Thus, the children will, to some degree, be in some form of care. Ms Babbitt has been their primary carer.
I do not take her move to [O] to have been designed deliberately to make Mr Babbitt’s life with the children more difficult. And as Ms Deane observed, very fortunately, the children have a good relationship with their Father. As I have already noted, the onus is very much now on Ms Babbitt ensuring that that relationship – of the children with their Father - continues to be promoted in every possible way.
The delicate balance that often arises in relocation cases is readily evident here.
The circumstances of the case are such that, in my view, it is in the children’s best interests that the orders sought by Ms Babbitt be made.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: J. Curtis
Date: 27 November 2009
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