BACHMAN & BACHMAN
[2010] FMCAfam 80
•18 February 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BACHMAN & BACHMAN | [2010] FMCAfam 80 |
| FAMILY LAW – Parenting orders – relocation – best interests of children have priority over parent’s right to freedom of movement. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 65DAA |
| B and B: Family Law Reform Act 1995 (1997) 140 FLR 11 A v A: Relocation Approach [2000] 26 Fam LR 382 U v U (2002) 211 CLR 238 D & SV (2003) FamCA 280 |
| Applicant: | MR BACHMAN |
| Respondent: | MS BACHMAN |
| File Number: | MLC 11464 of 2009 |
| Judgment of: | Bender FM |
| Hearing dates: | 2 & 3 February 2010 |
| Date of Last Submission: | 3 February 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 18 February 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Nehmy |
| Solicitors for the Applicant: | Mal, Ryan & Glen |
| Counsel for the Respondent: | Ms Buchanan |
| Solicitors for the Respondent: | Pearsons Barristers & Solicitors |
ORDERS
The parties have equal shared parental responsibility for their children [X] born [in] 2003 (“[X]”) and [Y] born [in] 2007 (“[Y]”).
From 3 April 2010, the wife live with [X] and [Y] within 40 kilometres of [A] (“the Greater [A] area”), and be restrained from relocating with [X] and [Y] outside of the Greater [A] area without further order of this court or the written consent of the husband.
Pending the wife’s return to the Greater [A] area pursuant to order 2 herein, orders 1 to 4 of the orders made on 11 January 2010 remain in full force and effect.
Upon the wife, [X] and [Y] returning to the Greater [A] area pursuant to order 2 herein:
(a)[X] and [Y] live with the husband as follows:
(i)from after school Thursday to 5.00 pm Sunday, commencing 15 April 2010 and each alternate week thereafter; and
(ii)from after school Wednesday to before school Friday, commencing 21 April 2010 and each alternate week thereafter and upon [Y] turning four years of age from after school Tuesday to before school Friday; and
(iii)as otherwise agreed between the parties
(b)[X] and [Y] otherwise live with the wife.
[X] and [Y] shall communicate with the parent with whom they are not living by telephone between 6.00 pm and 7.00 pm each evening they are not in that parent’s care.
The husband’s time with [X] and [Y] pursuant to orders 4(a)(i) and (ii) herein shall be suspended during school holidays and recommence on the basis that [X] and [Y] will live with the husband on the first weekend of each new school term.
Unless otherwise agreed between the parties, changeover for the time [X] and [Y] live with the husband shall take place as follows:
(a)when changeover is on a school day:
(i)until such time as [Y] starts school, the husband shall collect and return [X] from and to his school and collect and return [Y] from and to the wife’s residence;
(ii)upon [Y] commencing school, the husband shall collect and return [X] and [Y] from and to their school/s.
(b)when changeover is on a non- school day, the husband shall collect and return [X] and [Y] to the wife’s residence.
Each party shall advise the other of any serious illness or injury suffered by either of [X] and [Y] as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
Each party is free to be fully involved in the school and kindergarten lives of [X] and [Y], to receive copies of school reports, school newsletters, school photograph order forms and the like and to attend all parent/teacher interviews, events and functions to which parents are normally invited.
Each party shall keep the other informed of their residential address,
e-mail address, landline and mobile telephone numbers and shall advise of any changes to those details within 48 hours of any such change.
Each party is restrained from denigrating or criticising the other party in the presence or hearing of [X] and [Y] or allowing any other person to do so.
BY CONSENT:
[X] and [Y] spend time with the husband on special occasions as follows:
(a)if Father’s Day falls on a weekend that [X] and [Y] are not spending time with him, from 5.00 pm the Saturday preceding Father’s Day until 5.00 pm Father’s Day;
(b)for a period of three hours on the husband’s birthday if the husband’s birthday falls on a week day that [X] and [Y] are not spending time with him at times agreed and failing agreement from the conclusion of school until 6.30 pm with the husband to collect [X] and [Y] from the wife’s residence and return [X] and [Y] to the wife’s residence;
(c)for a period of four hours on the husband’s birthday if the husband’s birthday falls on a weekend that [X] and [Y] are not spending time with him at times agreed and failing agreement from 2.00 pm to 6.00 pm, with the wife to deliver [X] and [Y] to the husband’s residence and collect [X] and [Y] from the husband’s residence;
(d)for a period of three hours on each of [X] and [Y]’s birthdays if such birthdays fall on a week day that [X] and [Y] are not spending time with him at times agreed and failing agreement from the conclusion of school until 6.30 pm with the husband to collect [X] and [Y] from the wife’s residence and return [X] and [Y] to the wife’s residence;
(e)for a period of four hours on each of [X] and [Y]’s birthdays if such birthdays fall on a weekend that [X] and [Y] are not spending time with him, at times agreed and failing agreement from 12.00 pm to 4.00 pm with the wife to deliver [X] and [Y] to the husband’s residence and collect [X] and [Y] from the husband’s residence;
(f)from 4.00 pm Easter Friday to 4.00 pm Easter Monday in odd numbered years;
(g)from 4.00 pm Christmas Eve to 4.00 pm Christmas Day in odd numbered years; and
(h)from 4.00 pm Christmas Day to 4.00 pm Boxing Day in even numbered years.
[X] and [Y] spend time with the wife on special occasions as follows:
(a)if Mother’s Day falls on a weekend that [X] and [Y] are not living with her, from 5.00 pm the Saturday preceding Mother’s Day until 5.00 pm Mother’s Day;
(b)for a period of three hours on each of [X] and [Y]’s birthdays if such birthdays fall on a week day that [X] and [Y] are not living with her, at times agreed and failing agreement from the conclusion of school until 6.30 pm with the wife to collect [X] and [Y] from the husband’s residence and return [X] and [Y] to the husband’s residence;
(c)for a period of four hours on each of [X] and [Y]’s birthdays if such birthdays fall on a weekend that [X] and [Y] are not living with her, at times agreed and failing agreement from 12.00 pm to 4.00 pm with the husband to deliver [X] and [Y] to the wife’s residence and collect [X] and [Y] from the wife’s residence;
(d)from 4.00 pm Easter Friday to 4.00 pm Easter Monday in even numbered years;
(e)from 4.00 pm Christmas Eve to 4.00 pm Christmas Day in even numbered years; and
(f)from 4.00 pm Christmas Day to 4.00 pm Boxing Day in odd numbered years.
[X] and [Y] spend time with the husband during school holiday periods as follows:
(a)for one half of the school term holidays, from the conclusion of school on the last day of term to 5.00 pm on the middle Saturday or as otherwise agreed between the parties; and
(b)for one half of the long summer holidays, in one week blocks at times agreed and failing agreement each alternate week to commence at 5.00pm Boxing Day each year.
IT IS NOTED that publication of this judgment under the pseudonym Bachman & Bachman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 11464 of 2009
| MR BACHMAN |
Applicant
And
| MS BACHMAN |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter comes before the court because of the wife’s unilateral move in December 2009 from [A] to [W] with the parties’ two children [X] born [in] 2003 (“[X]”) and [Y] born [in] 2007 (“[Y]”).
The husband opposes this relocation. He believes the move will limit his ability to be involved in all aspects of the children’s lives and seeks orders that the wife live with the children within the “Greater [A] area” and that she be restrained from relocating with the children outside the Greater [A] area.
The husband is also seeking orders that [X] and [Y] live with him for six nights per fortnight, an increase from the four nights per fortnight they currently spend with him.
The wife seeks to be permitted to move with [X] and [Y] to [W], and that [X] and [Y] spend time with the husband for two weekends out of three, for an evening meal in the “off” week, half holidays and special occasions.
Background
The husband was born [in] 1982 and is aged 27 years. He is employed full time as [occupation omitted].
The wife was born [in] 1984 and is aged 25 years. She is engaged in home duties.
The parties commenced a relationship in January 2003. The wife became pregnant shortly after the commencement of the relationship. They commenced cohabitation in September 2003 in Melbourne. [X] was born [in] 2003.
In August 2005, the husband obtained employment as a [tradesman]. The parties moved to Launceston, Tasmania. The husband’s employment involved both interstate and international travel.
The husband purchased a house in Launceston in December 2006 and the parties married [in] 2007.
In September 2007, whilst pregnant with the parties’ second child, the wife was diagnosed with gonorrhoea passed to her by the husband. He had contracted the condition when travelling with his employment in Indonesia.
The parties’ second son [Y] was born [in] 2007.
The wife and children returned to [A] in May 2008 after, the wife alleges, a serious incident of domestic violence perpetrated against her by the husband. The husband returned to Victoria in August 2008. The husband alleges the parties resumed cohabitation upon his return to Victoria and finally separated in November 2008. The wife denies a resumption of cohabitation.
From November 2008, the parties agreed as to arrangements for [X] and [Y], whereby they lived with the wife and spent time with the husband each alternate weekend from Friday to Sunday and from after school Wednesday to 8.00 am Thursday each week. They were also able to agree as to arrangements for holidays and special days.
In July 2009, the husband instructed his solicitors to write to the wife seeking her involvement in Round Table Dispute Management, with a view to him increasing the time [X] and [Y] spend with him. The wife did not respond to this correspondence.
The rental property the wife and children were residing in [A] was placed on the market for sale and in or about December 2009, the wife made a decision that it was in her and the children’s best interests they move to [W] where she had the offer of suitable rental accommodation, better job prospects, better childcare and the chance to ‘start over’. She forwarded an email to the husband advising of her intention to relocate with [X] and [Y] to [W] on 7 December 2009. The husband instructed his solicitors to write to the wife on 9 December 2009 advising that he did not consent to such a relocation.
On or about 14 December 2009, the wife relocated with [X] and [Y] to [W].
The husband filed an urgent application with the court on 22 December 2009 seeking orders preventing the wife relocating with the children outside the Greater [A] area.
Orders were made by me on 11 January 2010, on an interim basis, providing for the longstanding arrangements for the boy’s care to remain in place and for [X] to remain enrolled at [A] School. The matter was otherwise expeditiously listed for final hearing and orders made for the preparation of a family report.
The husband’s evidence
The husband is seeking orders that the wife, [X] and [Y] remain living in the Greater [A] area, defined as within 30-40 kilometres of [A]. He proposes that the living arrangements for [X] and [Y] be that they live with the wife and spend six nights per fortnight with him, being from after school Wednesday to before school Friday in week one and from after school Wednesday to 5.00 pm Sunday in week two, half of school holidays and on special occasions.
When the report writer, Ms Gourlay, gave evidence that four nights away from the wife would not be in [Y]’s best interests, the husband through his counsel advised the court he would be agreeable to an arrangement whereby the boys spent three nights in each week with him.
It was the husband’s evidence that he had been seeking to increase the time [X] and [Y] spend with him for some time, and had instructed his solicitors to write to the wife as early as July 2009 putting forward proposals for such an increase in time.
The husband indicated that he wished to be involved in all aspects of [X] and [Y]’s lives and that the wife’s proposals would exclude his involvement in the children’s school and every day activities.
The husband is employed as [occupation omitted]. As part of his remuneration package, he is provided with a house on the [business premesis] in which he resides rent-free. It was his evidence that the position is full-time and he works on average from 5.00 am to 2.00 pm Mondays and Wednesdays, and from 7.00 am to 3.00 pm on Tuesdays, Thursdays and Fridays. The husband indicated his working hours are flexible. By way of example, he currently starts work at 8.30 am rather than 7.00 am on Thursdays as he returns the boys to their mother that morning.
The husband was asked whether he would be able to return the children to school in [W] on Monday mornings in the event the wife was successful in her application. He indicated that was the one morning he did have to start early but if that was what the court ordered, he would do everything in his power to adjust his work commitments to accommodate this.
It was the husband’s evidence, refuted by the wife, that he and the wife had agreed that they would like [X] and [Y] to grow up in the [A] area close to their maternal and paternal extended family.
The husband was questioned as to the current level of his involvement with [X]’s school. He indicated that he had dropped [X] to school on a couple of occasions and that [X] had been very excited about this. When asked why he did not do this more often, it was the husband’s evidence that the wife did not allow him to do so and that she had insisted that he return to [X] to her home rather than to [X]’s school on the Thursday morning after [X] and [Y] had spent the night with him. The husband indicated that he had made private arrangements to see [X]’s teacher on two occasions, had attended other special days at the school and was very keen to have a greater involvement with the school.
It was the husband’s evidence that last year he had taken [X] to Auskick in [A] and that he wished to continue to have full involvement in all [X]’s extra-curricular activities and in [Y]’s too once he is older.
The husband indicated that in addition to the flexible work hours that he has, his partner Ms L and his mother are available to assist him in the care of the boys.
Both parents, to their credit, agreed that [X] and [Y] have a close and loving relationship with both of them and made no criticism of each other in their parenting of the boys.
It was the husband’s evidence however that there have been occasions since separation when the wife has contacted him and asked him to take care of the boys as she was unable to cope with them at that time. It was the husband’s evidence that this had particularly been an issue in the first half of 2009 and gave evidence of two occasions in the latter half of 2009, including one on Melbourne Cup Day, when the wife had contacted him and asked for his assistance. Because he had been socialising on Cup Day, the husband advised her he was not in a position to drive a vehicle and was unable to offer assistance but had otherwise assisted the wife in the boy’s care when asked by her to do so.
It was the husband’s evidence that one of his major concerns if the wife and the boys were to move to [W] is that the wife would be distancing herself from the extensive support base that is available to her in [A], being her family with whom she is very close, and also from the husband and his family who are able to offer her assistance.
In relation to the wife’s claim that appropriate rental accommodation was very difficult to find in [A], the husband made available to the court the results of an internet search he had performed for available rental accommodation in the [A] area. That search showed several properties, being either houses or units available for rent in the area.
In relation to the wife’s concerns about employment availability, the husband produced a number of ‘Positions Vacant’ advertisements that he had collected from the local paper in the previous three months prior to the hearing of the matter which showed a variety of employment positions available.
In relation to available childcare in [A], it was the husband’s evidence that he had made enquiries of the local council, and they had advised him that an additional family day care home was becoming available in [A]. It was put to the husband that the wife had made enquiries of the council in relation to this care and that whilst [Y] could be accommodated, that carer was unable to provide either before or after school care for [X]. Such care is not provided by [A] School. The husband did not dispute this.
Attached to the husband’s affidavit material filed 29 January 2010 was a transcript of a number of text messages forwarded to the husband by the wife. Those messages are unpleasant and on occasion also sought the husband’s assistance with the children. The husband agreed that in more recent times he had not been receiving text messages of this type from the wife.
36. The husband agreed that at this time he and the wife have difficulty communicating with each other and there continues to be ongoing unresolved issues in relation to the breakdown of their relationship. This makes it difficult for them to communicate effectively at all times in relation to [X] and [Y].
The affidavit material filed by the wife in this matter set out instances of domestic violence perpetrated towards her by the husband during the marriage and after separation. As a result of these incidents, the wife obtained an interim intervention order against the husband in September 2008. When her application for an intervention order came before the state courts in February 2009, a final intervention order was made which does not expire until 16 December 2010.
The intervention order arose from an incident which took place between the parties in September 2008. The wife alleges the husband was affected by alcohol, assaulted the wife and then ‘trashed’ the unit in which she and the children were residing.
The husband, in his evidence, downplayed this incident and other incidences of domestic violence alleged by the wife. In his affidavit filed 29 January 2010, the husband denied he was the aggressor in any altercations that occurred between himself and the wife, and that any physical altercations between himself and the wife were as a result of him attempting to defend himself against her aggression.
There was dispute between the parties as to their date of separation. Whilst it was the wife’s evidence that the parties separated when she left the matrimonial home in Launceston, Tasmania to return to [A] in May 2008, it was the husband’s evidence that whilst they had had a disagreement at that time he remained in Launceston to prepare the matrimonial home for sale. He then returned to live with the wife and children in Victoria. The husband worked in [M], but it was his evidence that the wife and children were staying with friends and he resumed cohabitation with the wife at that address and then subsequently at a rental property in [A]Property A until November 2008 when the parties separated finally.
41. The date of separation is not the issue that will determine this matter, however it was argued it is relevant to the parties’ credit. I found both parties to be credible witnesses and am satisfied that the parties’ differing views as to the status of their relationship between May and November 2008 is more a reflection of what they understood the relationship to be rather than there being an issue of credit in relation to either party on this issue.
Ms L
Ms L is the husband’s de facto partner. She and the husband have been in a relationship since March 2009, and commenced cohabitation in November 2009. Ms L filed an affidavit in support of the husband’s application and also gave viva voce evidence at the final hearing of the matter.
Ms L was a most impressive witness and presented as an intelligent, competent and insightful young woman. It was her evidence that she believed she and the husband were in a long-term and committed relationship.
She gave evidence that when she commenced her relationship with the husband, she received several unsavoury email communications from the wife which she quite sensibly ignored.
She gave evidence that she has a good relationship with the children and that she is available to assist in their care when they are spending time with their father.
Ms L was quite clear that she respected the husband’s position as a father and the wife’s position as a mother and that she did not want to intrude on those relationships.
Ms O
Ms O is the paternal grandmother and she too filed an affidavit in support of the husband and gave viva voce evidence at the final hearing of this matter.
Ms O confirmed that she assists in the care of [X] and [Y], who are her only grandchildren.
Concerns had been raised in the wife’s evidence as to whether Ms O consumed alcohol to excess, particularly when the children were in her care. It was Ms O’s evidence that at or around the time of a particularly messy breakdown of her second marriage she did for a period drink more than was appropriate but indicated that was now in the past and at most she has one or two glasses of wine socially.
Ms O gave evidence that she does not have a good relationship with the wife in these proceedings, but is more than willing to assist her in the care of the children if called upon to do so by her.
Ms O was sympathetic to the wife’s desire to move out of [A], but believed that it was in [X] and [Y]’s best interests that they not be moved away from their father and their extended family both paternal and maternal. In relation to the wife’s relationship with her family,
Ms O described it as being very close and confirmed they were very supportive of the wife.
The wife’s evidence
The wife is seeking orders that will permit her to relocate to [W] with the parties’ two children, [X] and [Y].
It is her proposal that if she is permitted to relocate, [X] and [Y] spend two weekends out of three with their father from after school Friday to 5.00 pm Sunday, as well as an evening meal on a night convenient to both parties in the week that the boys are not otherwise spending the weekend with their father. The wife is also in agreement with the boys spending half holidays and special occasions with their father.
During the running of the final hearing, the wife made no submission in relation to the husband’s proposal for increased time with [X] and [Y] in the event that she is not permitted to relocate to [W], and is required to remain with the children in the Greater [A] area. Such submissions were sought from the wife’s solicitors during the writing of this judgment but the brief written submissions received did not address this issue in any substantial or meaningful way.
It was the wife’s evidence that it was never her intention to remain permanently in [A] when she, [X] and [Y] returned there at the time of separation. She refuted the husband’s claims that they had agreed that the boys would be brought up in that region.
It was the wife’s evidence that because of [A]’s relatively small size, she had and continues to have difficulty in obtaining suitable accommodation for herself and the boys, appropriate childcare and has very limited employment opportunities for herself.
It was the wife’s evidence that additionally, her previously existing friendship group has ‘sided with the husband’ following separation and this has been very upsetting for her, resulting in her feeling uncomfortable and isolated in the town.
Upon returning to [A] in 2008, the wife was able to obtain employment [in the hospitality industry in [R]], where she had previously worked before the parties left the [A] region when they first commenced their relationship. The wife was in fact working at the [workplace omitted] on Black Saturday and managed to safely return to [A]. As we all know, [R] was to all extents and purposes destroyed in the fires and the wife knew many of the people who were killed in [R] on that day. It was the wife’s evidence that this experience had also contributed to her sense of unhappiness in continuing to live in [A]. It was the wife’s evidence that she received quite extensive counselling from [M] Community Health for some six months after the fires occurred.
It was the wife’s evidence that she had carefully considered alternate living arrangements for herself and the boys and had settled on [W] for a number of reasons. Firstly, close friends of the wife had purchased an investment property in [W] and made it clear that she would be able to rent the property for a reasonable rental and with certainty of tenure. The wife described the property as having three bedrooms and a fully enclosed backyard which enabled the boys to have their own rooms and to be able to play safely outside. Additionally, [W] provides proper daycare facilities for [Y] and [W] School provides before and after school care for [X]. [W] also has greater employment opportunities for the wife and is in sufficiently close proximity to the northern suburbs of Melbourne to further expand her employment opportunities. It was her evidence that [W] is just over 100 kilometres from [A] and takes approximately one hour and fifteen minutes travelling time in the car.
The wife acknowledged that she had sent some unsavoury and inappropriate text messages and emails to the husband and Ms L. It was the wife’s evidence that when she looks back at what she did, she feels ‘horrible’ about it. She described herself as being immature and not handling the breakdown of the marriage very well.
When giving this evidence, the wife was very genuine in her remorse and I accept her description of her behaviour at that time as being that of someone behaving immaturely and not handling the breakdown of her marriage particularly well.
In relation to the accommodation available in [A], the wife was taken to the internet search for accommodation that was conducted by the husband and tendered into evidence. In relation to the rental properties available in [A], the wife indicated that one had already been taken, two were in inappropriate locations in [A] as they were close to the main street and hotels which have an unsavoury reputation and three of the properties, whilst suitable, would be very expensive and require her to have someone else live there to share the rent.
In relation to the ‘Positions Vacant’ that the husband had found in the local newspaper in [A], it was the wife’s evidence that some of the jobs were such that she would not be eligible to apply for them and the others were in areas in which she had no expertise or interest.
In relation to the husband’s involvement with [X]’s school, the wife conceded that the husband had asked to be able to drop off and collect [X] from school and that she had told him she did not want him to do this. Her explanation for this behaviour initially was that it was because she had bought all of [X]’s school uniforms. The wife then attempted to correct herself by saying it was because of the level of hostility between the parties and that as the husband was already bringing [Y] back to her home, she wanted to limit the number of interactions that took place between them. Her evidence in this regard was most unconvincing, as there was no reason why the husband couldn’t have dropped [X] off to school and then proceeded on to her home to drop off [Y].
In relation to [X] changing school, it was the wife’s evidence that she spoke initially to [X] to suggest that he might be moving school and then spoke at length to his current primary school teacher. It was her evidence that she and the teacher monitored [X] following these discussions and that he showed no overt signs of distress or unhappiness about the possibility of changing schools.
In relation to the parties’ date of separation, it was the wife’s evidence that separation did take place when she and the children left Tasmania, and that there was no resumption of cohabitation between the parties after that date. She conceded there may have been one or two occasions of intimacy shortly after the husband’s return to Melbourne, but denied that they ever cohabitated once she moved into the rental property in Property A in August 2008.
In the wife’s affidavit filed 11 January 2010, she annexes a statement that she gave to the police on 15 September 2008 in relation to the incidents that precipitated the intervention orders that were made against the husband.
In that statement, the opening paragraph is as follows:
“I am 23 years old and I am married to Mr Bachman. We have two boys aged 4 and 10 months. We live in a unit in [A].”
The final paragraph of that statement reads as follows:
“Since I have known Mr Bachman he has never been a big drinker. On the occasions that he has had a lot to drink he has become abusive and sometimes violent. He has hit me before and I should have reported it before so he can receive treatment.
Mr Bachman gets depressed at times due to his job. We have been together for about 5 and a half years and the violence is slowly getting more frequent. I still love Mr Bachman and want to live with him but I want him to get treatment for his self control and anger. He has never threatened or been abusive towards the children. I want Mr Bachman charged so he realises that what he is doing is wrong and get help.”
These statements to the police seem to confirm that the husband’s recollection of the parties’ living arrangements at this time are a more accurate reflection than that of the wife. Having said that, I make no adverse findings as to the wife’s credit but accept that her evidence before the court reflects her belief as to the state of their relationship during this period.
As noted earlier in this judgment, the wife spoke positively of the husband as a father and confirmed that the boys have a close and loving relationship with him and enjoy their time with him.
The wife confirmed the evidence of the husband that the parties have difficulty communicating and that there continues to be an ongoing level of animosity and distrust between them that impacts on their ability to communicate effectively in relation to their children.
It was the wife’s evidence however that she wants [X] and [Y] to continue to have the close and loving relationship that they do with their father, and that she genuinely believes that they will be able to do that if arrangements are put in place in accordance with her proposal.
In the family report of April Gourlay, Ms Gourlay raises concerns that the wife may have been inappropriately raising adult issues with [X].
There is a possibility that the husband is not [X]’s father. Both parties are cognisant of this fact. The husband has made it very clear that this is not an issue he wishes to pursue and as far as he is concerned [X] is his son.
The wife conceded that she did tell [X] that the husband ‘is not your dad’. It was her evidence that she knows that this was not good and that when she read the report of Ms Gourlay, she was horrified to see what the impact of that had been on [X] and acknowledged that such behaviour was totally inappropriate.
77. The wife denied that she had ever told [X] to call the husband ‘[first name omitted]’ rather than ‘dad’ or that she had ever discussed any other matters with [X] in relation to this case or adult issues generally. She had to concede however that [X] may well have overheard her discussing these issues with her family and friends.
In relation to her capacity to care for the children without the immediate assistance of her family and friends, it was the wife’s evidence that she has matured considerably since the parties first separated and that she now competently cares for the children as a single parent. Further, it was the wife’s evidence that she has good friends in [W] upon whom she can call. She also indicated that she would continue to have the ongoing support of her family, as they are very close.
The wife agreed that in the period immediately after separation, and in particular following the aftermath of the Black Saturday fires, there were times when she wasn’t coping with the care of the boys and that she had called on her family and the husband to offer assistance at that time. The wife agreed that on Melbourne Cup Day in 2009, both boys had behaved badly and that she had called upon the husband for assistance. It was her evidence that when the husband said he was unable to assist her, she proceeded to manage the boys herself. The wife gave evidence that she had put the boys in the car and taken them for a ride. [Y] had fallen asleep, [X] had settled down, and in turn she and [X] had sat down and had a chat about why his behaviour was inappropriate. Thus, it was the wife’s evidence that she had gone on to manage the situation appropriately herself.
Mr C
Mr C is the wife’s father. He filed an affidavit and gave viva voce evidence in support of his daughter’s application.
It was Mr C’s evidence that he and his wife have a close and loving relationship with their daughter and that they have always been there to provide her with support when needed, including when the parties were living in Tasmania.
It was Mr C’s evidence that he and his wife support their daughter’s move to [W] and see that as a positive move for her and the children to make. Mr C gave evidence that he is a [occupation omitted] and that he drives past [W] on a daily basis. Accordingly, he will be in a position to frequently visit his daughter and grandchildren.
It was Mr C’s evidence that [W] is only an hour away from [A] and, if needed, either he or his wife could quickly travel there if the wife were to call.
In relation to the incident that gave rise to the intervention order, Mr C gave evidence that his daughter had arrived in a very distressed state at his home and advised that she had been assaulted by the husband. He gave evidence that he attended upon the Property A unit where he found the husband in the act of ‘trashing’ the wife’s belongings and he was verbally abused by the husband. Mr C confirmed that since that time he had distanced himself from the husband, but that he and his wife otherwise had a good relationship with the paternal family.
April Heather Gourlay
April Gourlay is a Family Consultant with the Federal Magistrates Court of Australia who prepared a detailed family report in this matter dated 21 January 2010. Ms Gourlay also gave viva voce evidence at the final hearing of the matter.
Ms Gourlay confirmed the evidence of the parties that [X] and [Y] have a close, loving and meaningful relationship with both of the parents.
Ms Gourlay quoted [Y] to be quite a self-sufficient two year old, who exhibited none of the ‘usual’ separation anxieties when separating from his primary parent, which it was agreed is his mother.
Ms Gourlay was of the view that the primary reason for the wife wishing to leave the [A] area was the breakdown of her relationship with her primary friendship group as well as her concerns in relation to accommodation, childcare, employment, the aftermath of the Black Saturday fires and her feeling smothered in the relatively small [A] community.
Ms Gourlay was of the opinion that whilst these concerns were genuinely felt by the wife, her desire to move was a response to how she was immediately feeling and did not necessarily reflect a longer term consideration of her living arrangements, nor the impact that her proposed move would have on [X] and [Y] and their relationships with their father and with their extended paternal and maternal family.
Ms Gourlay expressed concerns about the wife living a distance away from the husband and the maternal and paternal family in circumstances where she may again become stressed and need assistance in care of the children.
The parties’ respective proposals in relation to the living arrangements for [X] and [Y] were discussed with Ms Gourlay.
In relation to the wife’s proposal that [X] and [Y] spend two weekends out of three with their father as well as a mid-week meal and half holidays, Ms Gourlay was concerned that such a proposal would mean that the husband would only be involved in particular aspects of the boys’ lives – ie. weekend activities rather than the more rounded aspects of their daily lives. Ms Gourlay was of the view that it is beneficial for both parents to be involved in both weekday and weekend time with the children.
In relation to the husband’s proposal that [X] and [Y] spend two nights with him in week one and four nights with him in week two,
Ms Gourlay expressed concern that in circumstances where the most time that [Y] had spent away from his primary carer, being the wife, was two days (save for some holiday time), that a move to four days would be very difficult. Ms Gourlay was of the view that additional time with the husband is something that would need to be worked in gradually for [Y], and suggested that it would be better to slowly increase the time [Y] spends with the husband by initially adding one extra night and adding an additional night at a later time or alternatively for the husband to spend three nights in each week with the boys rather than two nights in one week and four weeks in the second.
When discussing the time the children spend with each of the parents, Ms Gourlay expressed the view that with young children it’s not necessarily the amount of time that they spend with each parent but more so the activities and the roles that each parent can play in the lives of the children. By way of example, she indicated that lots of overnight time doesn’t necessarily mean more time if the children are sleeping. However, if the parents can be more involved in school, sports and a broad variety of activities, then that will increase their relationship with the children and maintain and strengthen the relationship that the children have with each of their parents.
Ms Gourlay confirmed that she was concerned that [X] had been exposed to inappropriate adult conversations and that there were things that [X] told her that he really should not have known about. Ms Gourlay did not form the view that the wife had intentionally involved [X] in the dispute between the parents, but rather had either lacked insight in relation to the information that she should be sharing with [X] or had not ensured that [X] was shielded from conversations she may have been having with family and friends around these issues.
In paragraph 26 of the family report dated 21 January 2010, Ms Gourlay noted:
“Despite the conflict between the parents, when interviewed together they appeared open and respectful towards each other. The parents agreed that [X] would refer to Mr Bachman as “Dad” and the issue of paternity would be raised again with [X] as a late teenager when he is mature enough to understand what this may mean for him. Both parents also discussed the importance of the children attending swimming lessons given
Mr Bachman resides [near water].”
In her family report and in her viva voce evidence, it was Ms Gourlay’s evaluation that:
“There does not appear to be many benefits in [X] and [Y] being separated from the supports of their father, extended family and local community. Therefore it appears to be in the boys’ best interests that they return to [A]. The boys have a loving relationship with both their parents and they would benefit from spending additional time with their father.”
98. Ms Gourlay’s recommendations were therefore as follows:
32.That parental responsibility of [X] and [Y] is shared between their parents.
33. That the children live with their mother.
34. That the children remain within the [A] area.
35.That the children spend time with their father 5 nights per fortnight. (It should be noted that this recommendation was a reflection of Ms Gourlay’s understanding that the husband was seeking a 5:9 arrangement, and when his proposal for six nights a fortnight was put to her, she raised no real objection to that arrangement being put in place).
It was Ms Gourlay’s evidence that whilst the wife had many good reasons for choosing [W] as a place to relocate to, she was of the view that the wife did not necessarily have good reasons for leaving [A].
Ms Gourlay was asked whether the basis for her recommendation that the children remain in the [A] area was that the wife couldn’t provide a sufficiently strong reason for the move from [A]. In response to this question, it was Ms Gourlay’s evidence as follows:
“That would certainly be one of my stronger ones, yes, because I felt in any kind of relocation that I was focussed on why you’d want to change the status quo (sic) so I felt a lot of my questioning would need to be around that issue.”
Ms Gourlay confirmed that she had formed the view that the wife hadn’t put a lot of thought into why she was seeking to leave [A] and wasn’t able to provide sound or compelling reasons for such a move.
Best interests of the child
When determining parenting matters, the law is set out in Part VII of the Family Law Act 1975 (“the Act”). Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act and they are as follows (omitting for the present purposes s.60B(3) which deals with Aboriginal and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(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.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
It is established law that in relocation cases, the best interests of the children remain the paramount consideration. The children’s best interests must be determined in the context of the provisions of section 60CC of the Act, together with the matters the court has to consider under section 65DAA of the Act. However, the children’s best interests must be weighed and balanced against a parent’s desire to relocate and their right to freedom of movement.
In this case, both parties agree that they should have equal shared parental responsibility for [X] and [Y]. Despite their acknowledged difficulties in communication at this time, the parties were able to agree as between themselves as to appropriate living arrangements for [X] and [Y] upon their final separation and have ensured that [X] and [Y] continue to have a loving and meaningful relationship with both of them. The parties were observed by Ms Gourlay to behave respectfully and appropriately towards each other during the family report interview process. In the conduct of the hearing of this matter, both were respectful of each other and complimentary of each other as parents to their children. In those circumstances, I am more than satisfied that this is an order that should be made appropriately by the court in this matter.
However, there are important consequences which flow from such an order. Where the parents have equal joint parental responsibility for their children, section 65daa of the Act requires the court to consider the children spending equal time, or a substantial and significant time, with each parent. It provides as follows:
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.
Since separation, the parties have had in place arrangements whereby [X] and [Y] live with the wife and spend four nights a fortnight with the husband as well as holiday time and time on special occasions. The husband has flagged that he will be seeking an equal time regime for the boys in the future, but at this time he is not pursuing such an arrangement.
Sections 65daa (2) and (3) of the Act provide as follows:
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;
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.
The husband is seeking that the wife be restrained from relocating with the children from the Greater [A] area and that the time that [X] and [Y] spend with him be increased from the current four nights a fortnight to six nights a fortnight.
If permitted to relocate to [W], the wife’s proposal is for [X] and [Y] to spend two weekends out of three with the husband, a mid-week meal in the week the children will not see the husband on the weekend, as well as holiday time and time on special occasions. This proposal would not result in a dramatic reduction of the amount of time that [X] and [Y] currently spend with the husband, but would restrict the type of activities that he would be able to be involved in with the boys and in particular would make his involvement in their daily routine much more difficult.
The husband is currently involved in both weekend and mid-week activities with the boys, albeit his level of involvement with [X]’s school is not as great as he would desire. This however is as a result of the wife’s attitude and in no way due to a lack of interest on his part. The husband is also seeking orders that would enable him to have even greater involvement in the boys’ daily routines.
In determining what is in the best interests of the children, the court must have reference to the matters set out in sections 60cc (2) and (3) of the Act. Each matter contained in the subsections must be considered and assessed in the context of each of the party’s proposals and behaviours and a determination made of which party’s proposals best meet the children’s best interests.
The law is also very clear that when determining what arrangements best meet the children’s best interests, the judicial officer may also be required to formulate proposals in the children’s best interests that don’t necessarily accord with those which are being put forward by the parties. (see U v U (2002) 211 CLR 238, Hayne J [172])
Section 60cc(2) of the Act sets out the primary considerations which are as follows:
Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
As set out earlier in this judgment, there has been instances of domestic violence between the parties prior to and subsequent to their separation. There was also an unfortunate incident at the handover of the children between the wife and the husband on Christmas Day 2009 which resulted in [X] being the subject of a ‘tug of war’ between both his parents.
However, having said that, I am satisfied that both parties are committed and loving parents who will shield their children from the risk of physical or psychological harm as a result of being subjected to abuse, neglect or family violence in the care of either of their parents.
Further, to their credit, the parties have ensured that the children have a close, loving and meaningful relationship with both of them and both parents have encouraged that relationship.
Ms Gourlay expressed concern that whilst in moments of extreme emotional distress, the wife can lose focus on the importance of the boys’ relationship with the husband, Ms Gourlay’s evidence was that the wife does genuinely hold the desire that the boys have a meaningful relationship with their father and promotes that relationship the majority of the time.
The wife is strongly of the view that if she and the boys relocate to [W], there will be no impact on the relationship that [X] and [Y] have with the husband and that it will continue to be a close, loving and meaningful one. Whilst I agree that a move to [W] would not prevent [X] and [Y] having a close, living and meaningful relationship with their father, the question is whether the nature of the boys’ relationship with their father will be diminished in the event of relocation because of the reduced capacity for the husband to be involved in the daily routine of the children and in particular their school and extra-curricular activities, particularly if the latter occurs during the week.
Section 60cc(3) of the Act sets out the additional considerations to be taken into account, and I will consider each of these in turn as relevant.
Section 60cc 3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
[X] is only six years of age. Ms Gourlay discussed his parenting arrangements with him and in paragraph 24 of her report notes that when she did so he started to cry and told her that he wanted to live with both of his parents. Ms Gourlay indicated that she discussed various shared care arrangements with [X] and it was his wish that his parents would live together again but he sadly noted that he did not think that was possible as his dad now had a new girlfriend.
[Y], at only two years of age, is far too young to express any views.
It is common ground that the wife has been the boys’ primary carer and it is to her that they have their principal attachment. However, they have a close and loving relationship with their father and they enjoy the time they spend with him.
Section 60cc 3(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)
As noted throughout this judgment, the boys have a close, loving and meaningful relationship with both parents.
The parties finally ‘separated’ in November 2008 and put in place, by agreement, an arrangement whereby [X] and [Y] lives with the wife and spends four nights a fortnight with the husband. The husband has been seeking to increase the amount of time that [X] and [Y] spend with him since July 2009 and he wishes to be actively involved in all aspects of his sons’ lives.
[X] and [Y] also have a close and ongoing relationship with both their maternal and paternal grandparents. Since their return to [A], the children have seen the maternal grandparents and maternal aunts and uncles on an almost daily basis, with the children and the wife and her family popping in and out of each other’s homes regularly.
Similarly, when [X] and [Y] are with their father, they spend considerable time with the paternal grandmother who assists the husband in their care when called upon to do so.
The husband has re-partnered with Ms L, and I accept that she and [X] and [Y] get on well and that they see her as part of their paternal family.
Section 60cc 3(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
In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
It has already been commented on previously in this judgment the credit that both parties should be given for ensuring that the children have a close and loving relationship with each of them, particularly in the circumstances where the breakdown of the parties’ relationship has been somewhat fraught.
Both parties, and the wife in particular, presented as having become parents and marrying at a young age and some of their behaviours during the marriage, at the time of and shortly after separation reflect a lack of maturity. Having said that, both parents impressed in the witness box as being committed to the welfare of their children and intent on parenting them to the best of their ability.
The wife’s decision to move to [W] in the clear knowledge of the husband’s opposition to such a move has not assisted the parties’ ability to communicate. It is to be hoped that the observations and comments of Ms Gourlay in relation to the impact that the parties’ conflict is having on [X] will be taken on board by both parents and that they will ensure that they shield their children from any ongoing difficulties they might have in relation to their communication.
Section 60cc 3(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
If the wife is permitted to relocate with the children to [W], there has to be a change in relation to the manner in which [X] and [Y] will spend time with the husband.
The husband’s ability to be actively involved in the children’s school will be curtailed, as will his capacity to respond immediately to any emergency or cry for help that may arise in relation to the boys.
In the event that either of the boys prove to be interested in pursuing sporting or other activities on a weekend, this will cause real difficulties as the children will either only be able to participate when in [W] or the husband will find himself travelling to and from [W] on a very regular basis in order to enable the boys to participate in their sporting or other extra-curricular activities.
As noted previously in this judgment, the current living circumstances for the boys are such that they have an almost daily involvement with their extended families, both maternal and paternal. The level of this involvement must, as a matter of course, diminish in the event the wife is permitted to relocate although it is noted that the boys will no doubt see their paternal grandmother regularly when with their father. The maternal family have made it very clear that they actively support the wife’s desire to move to [W], that they will be regular visitors to [W] and expect that the wife and the children will continue to be regular visitors to their home in [A].
Section 60cc 3(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
The distance from [A] to [W] is just over 100 kilometres and takes approximately one hour and a quarter of travel time, depending on the time of day and route taken.
It is the husband’s proposal that he doesn’t necessarily require that the wife live in [A] itself, but rather within the Greater [A] area, which his counsel clarified as meaning within 30 to 40 kilometres of [A]. In practical terms for the boys, this would mean within approximately half an hour’s travel time.
It would seem to me that a distance of 100 kilometres and a travel time of approximately one hour and a quarter is not overly onerous in a country the size of Australia, especially with modern vehicular transportation.
The practical difficulty is more related to the ability of the husband to be easily involved in the children’s school lives and the impact on [X] and [Y] as they get older in the context of sporting commitments, social commitments such as birthday parties which in all probability will revolve around their school lives and friendship groups. This will place a real burden on the husband and the boys as they will either be unable to attend because they are spending time with their father or the husband will be making many journeys each weekend to enable the boys to participate fully in their sporting and social lives.
However, it must be recognised that many parents regularly spend many hours each weekend transporting their children to their sporting and social commitments as a usual part of their parental ‘duties’.
Section 60cc 3(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 am satisfied that both parents have the capacity to provide for the emotional and intellectual needs of their children.
As set out earlier in this judgment, both parents have on occasion behaved less than appropriately towards each other in the course of the breakup of their relationship, evidenced in the husband by his infidelity during the marriage and the instances of domestic violence. In relation to the wife, this is evidenced by the inappropriate text and emails sent by her to the husband and his now partner, her occasional self-absorption and periods of extreme emotional distress. Having said that however, I find the parties to be fundamentally good people whose behaviours on these occasions was indicative of a lack of maturity rather than any inherent malice and both impressed me as loving, committed and caring parents who want what is best for their children.
Whilst Ms Gourlay questioned the cogency of the wife’s desire to leave [A], I am satisfied that she is currently genuinely unhappy living in [A] and that further, she genuinely believes that [W] will provide herself, [X] and [Y] with an opportunity for a more positive and fulfilling life.
The wife’s genuine belief in this regard has to be balanced against the impact that such a move would have on [X] and [Y] in the context of [X] leaving his school and the impact it would have on the relationship the children have with their father and their extended family.
Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Not applicable.
Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not applicable.
Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
It has been a common theme throughout this judgment that both parties impress as committed, loving and caring parents.
As also noted earlier in this judgment, there have however been instances when the parents have been less than perfect. The wife’s behaviour in telling [X] that there is a possibility that the husband is not his father and in not shielding [X] from discussions of adult issues was inappropriate and, to her credit, acknowledged by the wife as being inappropriate. The parties involving [X] in a ‘tug of war’ on Christmas Day was also inappropriate, as was [X]’s exposure to the incidences of violence between his parents.
However, as identified earlier, I am of the view that such behaviours can be seen as uncharacteristic and not a reflection of the generally positive view of these parties’ parenting capacities.
Section 60cc 3(j) any family violence involving the child or a member of the child’s family
The isolated incidences of domestic violence have already been set out in detail in this judgment. Whilst the husband denies the allegations against him, I am satisfied that he was the party responsible on these occasions.
The incidences seem to have occurred in circumstances where the husband was affected by alcohol, albeit it is common ground that he is not a big drinker in any way. It is of concern that the husband downplays these incidences and does not accept responsibility for his behaviour during these altercations. It is important that he recognises that domestic violence is not acceptable in any circumstance.
Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
There is a final family violence order in relation to the husband that expires in December 2010. The circumstances of that order and the observations in relation to same are set out in the preceding paragraph.
Section 60cc 3(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
One of the major issues and most difficult aspect of any relocation case is that whatever the outcome, one of the parents is going to be extremely distressed by the determination.
Whilst most distressing to her, it was the wife’s evidence that if she is required to remain in the Greater [A] area, then she will find suitable housing for herself and the children and will do her very best to get on with her life to the best of her ability.
Similarly, the husband made it clear that he would do whatever is necessary to ensure that he continued to be as actively involved in his children’s lives as he possibly could in the event that they were to move to [W] with the wife.
Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant
As set out previously in this judgment, it was Ms Gourlay’s evidence that one of the main reasons for the recommendations in her report that the wife and children remain in the [A] area was that she was not satisfied that the wife had sufficiently strong reasons to move.
It is well established law that a parent who is intending to relocate does not have to demonstrate ‘compelling reasons’ for his or her desire to relocate (see AMS v AIF; AIF v AMS (1999) FLC 92-852). Rather, the court has to consider the respective proposals of the parties in their entirety to see which best meets the best interests of the children.
It was submitted on behalf of the wife that Ms Gourlay had erred in considering it her task to consider the reasons being proposed by the wife for the move and that in circumstances where the recommendations proposed by her were in large part resultant from her assessment that the wife’s reasons were less than satisfactory, then such recommendations should not be given great weight by this court.
The wife’s counsel also referred to the matter of D & SV (2003) FamCA 280, in which the mother sought to relocate from Vermont South in Melbourne to Drysdale, which was a distance of approximately 115 kilometres away. In that matter the trial judge’s orders restrained the mother from moving more than 10 kilometres from the Vermont area.
On appeal, the Full Court having made reference to the High Court decisions of AMS v AIF; AIF v AMS (supra) as well as B and B: Family Law Reform Act 1995 (1997) 140 FLR 11 and A v A: Relocation Approach [2000] 26 Fam LR 382 held as follows:
37.…However, the normal reason for applying the reasoning used in such cases, particularly where residence is not seriously in issue, is to seek to restrict the freedom of movement of the residence parent. Where the move is over a relatively short distance such as this one, we would caution against the making of orders that restrict the residence parent’s freedom of movement. The inquiry should be directed more at alternative contact or shared residence arrangements.
38.Clearly the less distance involved in the move, the more readily satisfactory alternative contact arrangements or logistical arrangements for shared residence are likely to be available. A move over a great distance may render shared residence or meaningful contact difficult if not impossible.
39.The amount of emphasis to be given to one or other of the competing matters in a relocation case will change depending on the degree of relocation involved and the degree of interference with the existing arrangements.
40.Where a move interstate or overseas requires a dramatic and drastic change in the nature of the manner in which the parents share in their children’s lives, much emphasis might be given to the deleterious effects of such a move on the relationship with the other parent. Where the move is within the same State or certainly within the same city resulting in room for significant contact, such a move might well face less resistance from the Court.
The Full Court allowed the appeal against the restraints of the trial judge and indicated they would allow the mother to move to Drysdale with the children and invited the parties to reach agreement as to contact arrangements. They were able to do so.
The decision of Full Court in the matter of D & SV (supra) predates the 2006 amendments to the legislation and in particular the introduction of section 65DAA of the Act.
It was submitted on behalf of the husband that [X] and [Y] have been spending significant and substantial time with the husband, as defined by section 65DAA of the Act since separation, in that they have been spending days with their father that fall not only on weekends and holidays, but also on weekdays. Thus, the husband has been involved in the children’s daily routines for some time as well as occasions and events that are of particular significance to the children.
It was further argued on behalf of the husband that the wife’s proposal for the time the husband would spend with the children if she were to relocate to [W] does not meet that definition of significant and substantial time as set out in section 65DAA(3) of the Act.
Accordingly, it was argued on behalf of the husband that the decision of D & SV (supra) must be distinguished on the basis that it predates the amendments to the legislation.
Conclusion
The inherent difficulty in most relocation cases is that the proposed move of the parent who has the primary care of the children is going to alter what is the existing living arrangements for the children in relation to their school and community and the time and activities in which their parents have previously been involved.
In this matter, the wife is seeking to relocate with [X] and [Y] a distance of just over 100 kilometres, from [A] to [W]. Whilst
Ms Gourlay was somewhat critical of her reasons for doing so, I am satisfied that the wife is genuinely unhappy in [A] and is genuinely of the belief that [W] will provide her and the children with secure accommodation, more options in relation to childcare, a good school that includes the current speech pathologist that [X] is attending at [A] School, greater employment opportunities and respite from the breakdown in what was formerly a close friendship group.169. I am satisfied that in proposing the relocation, the wife is not seeking to undermine the children’s relationship with their father and that her proposal, she would submit, enables the acknowledged close and meaningful relationship that the boys have with their father to continue and be enhanced.
The practical reality of the relocation by the wife and the children to [W] has to be however that it will be very difficult, if not impossible, for the boys to spend mid-week overnight time with the husband and for there to be an expansion of time between the boys and the husband beyond that which is being proposed by the wife.
It was submitted on behalf of the wife that to order that the wife remain residing in [A] is unnecessarily restrictive and is an excessive prohibition on her rights to freedom of movement, particularly in circumstances where the proposed move is of a relatively short distance.
It was further submitted that the wife’s proposals enable the children to spend significant and substantial time with the husband, in that he will be collecting the children from school and can interact with their teachers and school environment at that time and, if he can make the necessary arrangements to do so, he could also return them to school on the Monday morning. The husband can continue to have substantial involvement in the children’s weekend sporting and extra-curricular activities and if there is a special occasion or event at the children’s school, the husband can attend same as it is only one hour’s travel for him to do so and that many a suburban parent travels for much greater time in order to attend school events for their children.
It was also argued that the wife is the children’s primary carer and that many of the benefits available to her in [W] are not available in [A] and that in turn impacts on her capacity to be the best parent she possibly can to her children.
The maternal grandparents were clearly in support of the wife’s move and I am satisfied that they will continue to be an active and integral part of their grandchildren’s lives wherever it is that the wife and children live.
It was argued on behalf of the husband that he is not seeking that the wife needs to remain residing in [A], but rather the Greater [A] area, and as such she would be able to reside in [E] which is some
30 kilometres away or in [Z] which is some 40 kilometres away. This would enable the wife to leave [A] and the issues she has identified with that town but still enable arrangements to be put in place for the care of the children that would allow the husband to continue to be involved in the children’s daily lives, not just weekend activities.Ultimately, the court must make a decision which it believes is in the best interests of the children, having factored in all the relevant considerations of the legislation and the respective merits of the proposals that are put by the parties. The court was not greatly assisted in this instance by the report of Ms Gourlay as, on her own evidence, her recommendations were greatly influenced by her belief that she needed to be satisfied that the wife’s reasons for relocation were sound. She erred in this belief. However Ms Gourlay gave evidence that whatever the reasons for the proposed relocation, it is in the children’s best interests for each of their parents to be involved in all aspects of their children’s lives.
I have found this to be a most difficult matter to determine. There is for me a real tension in trying to balance the wife’s right to freedom of movement and ability to ‘move on’ with her life after the breakdown of her marriage with the best interests of the children, and in particular, their right to have the benefit of both of their parents having a meaningful involvement in their lives.
The law however is very clear where that tension exists, the children’s welfare has priority. In AMS v AIF; AIF v AMS (supra), Kirby J held:
“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 a conflict between those considerations, priority must be accorded to the child’s welfare and rights.”
179. Having determined that the parties in this matter are good, loving and caring parents, [X] and [Y] have the right to have both of them involved in all aspects of their lives. If the wife is permitted to relocate to [W], the husband’s ability to be meaningfully involved in all aspects of [X] and [Y]’s lives is significantly curtailed in that he will not be able to be actively involved in their school and weekday lives, and whilst the wife’s proposal for the children to spend time with the husband for two out of three weekends is a generous one, the reality is that this involves weekend time only.
There is also the practical reality that as the boys get older and their extra-curricular and social activities increase, spending time with the husband two weekends out of three more than 100 kilometres away from their primary place of residence will greatly impinge on their capacity to engage in such activities.
Accordingly, I have determined that it is in [X] and [Y]’s best interests that the wife be restrained from relocating with [X] and [Y] outside of the Greater [A] area without further order of this court or the written consent of the husband.
The ‘Greater [A] area’ is, for the purposes of this decision, defined as within 40 kilometres of [A]. Whilst of small comfort to the wife at this time, this will allow her to reside other than in [A].
It was submitted on behalf of the wife that in the event the wife was restrained to living with the children in the Greater [A] area, she be allowed some time to comply with this determination as she will need to find accommodation and make appropriate arrangements to return to [A] from [W]. Whilst the wife can and should be criticised for moving in the circumstances she did, the practicality is she will need time to re-establish herself in accordance with the requirements of these orders. She will be given until Easter 2010 to do so.
184. The final issue for determination is the living arrangements for [X] and [Y] upon their return to the Greater [A] area. The husband is seeking that their time with him be extended from the current regime of four nights per fortnight to six nights per fortnight in either a 3:3 or 2:4 configuration each fortnight.
As noted earlier in this judgment, no submissions were put on behalf of the wife in relation to this aspect of the husband’s application and despite giving her solicitors an opportunity to make written submissions, none were received on this issue.
It was Ms Gourlay’s evidence that the husband’s proposal for the boys to spend six nights with him per fortnight would be too big a change for [Y] and that he would find that difficult. It was Ms Gourlay’s suggestion that such change be introduced gradually. This reflected the reality that [Y] is only just two years of age and his mother has been his primary carer for most of his short life.
I have also formed the view that a jump from four days a fortnight to six days a fortnight would be too big a change for [Y] in particular at his young age and stage of development. Accordingly, I will be making orders that when [X] and [Y] return to the Greater [A] area, they spend five nights a fortnight with their father that will include both mid-week and weekend time. This time will increase to six nights a fortnight upon [Y] turning four years of age.
188. It is noted that it is the husband’s wish for arrangements to ultimately be put in place that provide for [X] and [Y] to live equally with both their parents. Given the young ages of [X] and [Y], quite properly the husband did not pursue this application at this time. It is expected that when the boys are older and the parties seek to adjust the current arrangements for the children, that they will attempt to resolve matters as between themselves utilising the appropriate family dispute resolution providers to assist them if needed.
I certify that the preceding one-hundred and eighty-eight (188) paragraphs are a true copy of the reasons for judgment of Bender FM
Associate: Sarah Hession
Date: 18 February 2010
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