BALSANO & LABANE
[2019] FCCA 3494
•9 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BALSANO & LABANE | [2019] FCCA 3494 |
| Catchwords: FAMILY LAW – Parenting application – relocation – where parties agree in interim orders to restrain either party from relocating 15kms from Region E – where proceeding set down for trial – where property and spousal maintenance proceedings resolved – where respondent’s mother, father and respondent jointly own Suburb D property – where respondent resides in Suburb D property – where Suburb D property sold – where respondent’s mother buys property 144kms from Region E – where, before trial, respondent vacates residence, moves to parent’s residence and then to new premises – where respondent alleges family violence and escalates allegations immediately before trial – where DHHS closes file on entry in relation to each of its investigations – applicable principles – where relocation is in best interests of child by reason that respondent is primary carer – where relief granted aims to accommodate child’s relationship with applicant. |
| Legislation: Evidence Act 1995 (Cth), s.140 Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 61A, 61B, 61C, 61D, 61F, 61DA, 61DAB, 64A, 64B, 64D, 65A, 65AA, 65D, 65DAA, 68P, 68Q |
| Cases cited: A & A (Relocation Approach) (2000) FLC 93-035 AMS v AIF (1999) 199 CLR 160 |
| Applicant: | MR BALSANO |
| Respondent: | MS LABANE |
| File Number: | MLC 14092 of 2018 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 27 November 2019 |
| Date of Last Submission: | 27 November 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 9 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms P. Villella |
| Solicitors for the Applicant: | Aughtersons |
| Counsel for the Respondent: | Ms L. Johnson |
| Solicitors for the Respondent: | Zenith Lawyers and Consultants |
THE COURT ORDERS THAT:
The parties have equal shared parental responsibility for the care, welfare and development of the child, X, born in 2014 (the Child).
The Child live with the respondent.
The Child spend time with the applicant in 2019 as follows:
(a)in week one, commencing on Thursday, 12 December 2019, from 2.00pm on Thursday until 10.00am on Monday and on each alternative weekend thereafter;
(b)in week two, commencing on Thursday, 19 December 2019, from 2.00pm on Thursday until 10.00am on Friday and on each alternative weekend thereafter.
The Child’s spend time with the applicant at Christmas be as follows:
(a)Christmas 2019: from 3.00pm on 24 December 2019 until 3.00pm on Christmas Day and in each alternate year thereafter;
(b)Christmas 2020: from 3.00pm on Christmas Day until 3.00pm on Boxing Day and in each alternate year thereafter;
The Child’s future spend time with the applicant be as follows:
(a)subject to paragraph 4(a) of this Order, for half of the long summer holidays as agreed in writing, and failing agreement, on a week about basis, commencing from the end of final term;
(b)from the commencement of school in 2020: from the conclusion of school on Friday (from the conclusion of school on Thursday, if Friday is not a school day), until 3.00pm on Sunday (or 3.00pm on Monday, if the Monday is a non-school day), and each alternative weekend thereafter;
(c)each Easter, from 5.00pm on Easter Thursday until 5.00pm on Easter Tuesday;
(d)for half of all school term holidays, to be agreed in writing between the parties, and failing agreement, for the first half of such holidays, commencing on the last day of the school term until 5.00pm on the middle Sunday of that term holiday.
Until the Child commences school in 2020, unless otherwise agreed in writing, changeover shall occur at Suburb A.
Upon the Child commencing school in 2020, unless otherwise agreed in writing, where spend time is to commence at the conclusion of:
(a)a school day, the applicant to collect the Child from school at the commencement of his time, and the respondent is to collect the Child from Suburb B McDonald’s;
(b)a non-school day, the applicant to collect the Child from Suburb A at the commencement of his time, and the respondent is to collect the Child from Suburb A at the end of his time.
When the Child is not in the applicant’s care, the Child’s communication with the applicant whether by FaceTime, Skype or any other digital or video conferencing facility occur between 5.00pm and 5.30pm, on each Tuesday, Thursday and Sunday evening and on special days (including Child’s birthday, Father’s day and the father’s birthday), with:
(a)the applicant to contact the respondent’s mobile phone, iPad or Skype address by computer and
(b)the respondent to ensure that the call is answered and the Child has appropriate privacy when communicating with the applicant.
The Child to spend time and communicate with the applicant at such other times as are agreed between the parties, including on special occasions such as the Child’s and father’s birthdays and Father’s day.
The Child be enrolled in Town C Primary School with effect from term one, 2020 and beyond.
The applicant and respondent shall refrain from making critical derogatory remarks about each other or members of each other’s families in the presence or within the hearing of the Child and the applicant and respondent shall do all things as may be reasonably necessary to ensure that no other person makes any critical or derogatory remark about the applicant or respondent or members of their respective families in the presence or hearing of the Child.
For the purposes of communication about parenting matters, the parties use a downloadable application relating to parenting arrangements such as My-Mob, to be used only by the parents who are restrained by injunction from permitting any third-party to use such application or intervene in their communications.
The applicant and respondent immediately inform each other should the Child sustain any serious illness or injury while in their care and keep the other properly informed as soon as is reasonably practicable, of the Child’s diagnosis, treatment and prognosis, together with the name, address and contact details of the person[s] providing treatment and the location at which the Child is receiving such treatment.
The parties shall advise each other of the current contact details, including phone numbers, email addresses and residential addresses, and shall keep each other informed of any changes within 48 hours.
Each of the applicant and respondent shall be entitled to:
(a)receive notices, school reports, photographs and other related material from any school that the Child attends; and
(b)attend a school function, parent/teacher meeting or similar event, including but not limited to all extracurricular activities at which parental participation and/or attendance may be required or which is encouraged irrespective of with whom the Child is living at that time.
The respondent be restrained whether by herself her servants or agents or howsoever otherwise from changing the residence of the Child a distance of more than 5kms from Town C, in the State of Victoria.
If either party proposes to travel with the Child out of the State of Victoria, they shall provide notice to the other party not less than three weeks prior to any such interstate travel and to include the following information:
(a)the proposed commencement and return dates of the travel;
(b)the flight itinerary (outbound and return);
(c)copies of pre-paid return flight tickets; and
(d)appropriate contact details for any accommodation in which the Child will be staying.
Subject to paragraph (19) of this Order the respondent, whether by herself, her servants, her agents or howsoever otherwise be and is hereby restrained by injunction from removing, attempting to remove or causing or permitting the removal or attempted removal of the child X, born in 2014 from the Commonwealth of Australia.
Paragraph (18) of this Order shall cease to have effect 5 years after the date on which it is made or as provided by any further order.
The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and hereby empowered to take all steps as may be necessary to give full effect to these orders.
Subject to paragraph (18) of this Order, the Court requests that the Australian Federal Police place the name of the child X, born in 2014 on the Watch List at all points of international arrival and departure in Australia for the purpose of preventing removal of the Child from Australia in breach of these orders.
Pursuant to s 68P(2)(a) of the Act, to the extent that this Order may be inconsistent with an Interim Intervention Order that has been made by a Magistrates’ Court (Intervention Order):
(a)this Order prevails over and operates according to its terms;
(b)that Intervention Order is invalid, pursuant to s 68Q(1) of the Act.
The parties be at liberty to provide this judgment to a state court.
The application in a case filed on 2 September 2019 be dismissed.
All other previous parenting orders be discharged.
Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 (Cth) the particulars of the obligations this Order creates and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in this Order.
IT IS NOTED that publication of this judgment under the pseudonym Balsano & Labane is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 14092 of 2018
| MR BALSANO |
Applicant
And
| MS LABANE |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain orders that are made in an application under the Family Law Act 1975 (Cth) (Act) in a parenting dispute between the applicant father and respondent mother in relation to their son, X, born in 2014 (the child). The substantive dispute relates to the question of relocation.
I have determined that the child should live with his mother in Town C. Ancillary orders are made to reflect this change, including orders that seek to accommodate the child’s spend time with the applicant.
Procedural history
On 6 December 2018, the applicant father commenced this proceeding seeking parenting and property orders. The applicant sought final orders that the parties have equal shared parental responsibility and that the child live with him, both on alternative weekends and on Thursday evenings. Particular relief was sought to restrain the respondent from removing the child either, from the State of Victoria or the Commonwealth of Australia. Sundry related orders were sought.
Following service of the Initiating Application, on the same date, the respondent applied for an Intervention Order (IVO) against the applicant.
On 17 December 2018, at the first directions hearing in a Duty List, the parties consented in interim orders that: they share equal shared parental responsibility; for the child to live with the applicant in alternative weeks (from after kindergarten on Thursdays to Monday mornings, and from after kindergarten on Thursday until the commencement of kindergarten on Friday mornings); for the child to live at all other times with the respondent. A trial date was set and other orders were made to regulate the preparation of the matter for trial. A notation to the order recorded that an issue in the proceeding “to be determined at trial is whether the respondent mother will relocate to a destination some two hours distance from the applicant’s residence.” The making of this notation is to be seen in the context of an order that:
Until further Order, the parties are hereby restrained from relocating their residential address beyond a radius of 15 km of the Region E of Melbourne in Victoria.
As will appear, the respondent chose to ignore this order.
On 13 February 2019, orders were made to facilitate a conciliation conference and for the provision of a family report. While the family report was issued in April 2019, it is considered separately below.
On 12 June 2019, parties agreed in the making of final orders to resolve the issues in dispute between them respecting property and maintenance. In addition, orders were made permitting each parties to enrol the child in the respective primary school of their choice.
An order made on that date by another judge of this court provided that “All extant property and maintenance applications are dismissed”. Further, the parties’ minute of consent order provided that “In all other respect (sic) all extant applications relating to property/financial and spousal maintenance be likewise dismissed.” Those matters notwithstanding, at the trial of the proceeding counsel for the respondent asserted that an issue arising for determination was whether an order for spousal maintenance should be made. In the circumstances, an order was made that any further application for spousal maintenance be made on notice by an Application in a Case.
Following the settlement of property proceedings, the respondent, in breach of the order made above, relocated to the other side of metropolitan Melbourne, being a distance of more than 15km from her residence in the Region E. In the course of the trial, the respondent sought to justify, and take refuge in, her decision upon the stated basis that the judge who had approved the parties’ property settlement had observed that the question of relocation called for “common sense”. The course adopted by the respondent was the antithesis of common sense. To breach court orders was not and is not synonymous with common sense. In this case, it reflected nothing less than self-interest.
On 2 September 2019, the applicant filed an Application in a Case by which he sought an abridgement and an interim order that the child should live with him and spend time with the respondent on alternative weekends. The circumstances giving rise to this application were that, without notice, the respondent had unilaterally relocated, before trial, from one side of Melbourne to the other. As will appear, the applicant had been given virtually no notice of this proposed relocation.
By her Response to the Application in a Case, the respondent sought dismissal, with costs, of the relief being applied for by the applicant.
On 28 October 2019, the applicant filed an Amended Initiating Application in which he refined the final relief that was being sought in the proceeding. In due course, he also filed a detailed Outline of Case and minutes of proposed orders.
The following day, on 29 October 2019, the respondent applied for a further IVO against the applicant.
On 4 November 2019, the respondent filed a Further Amended Response to the Initiating Application in which she too refined the relief being sought. The respondent also filed a detailed Outline of Case.
Each of the parties responded in a timely way to a compliance check. However, it is a matter of some regret that by her Outline of Case the respondent sought to rely upon practically every document that had been filed in the proceeding. That she did so ignored the order which had been made for each party to rely on one trial affidavit only for each witness who was being called (in this case two witnesses).
In closing address, the parties submitted proposed orders that accommodated the possibilities of the child continuing to live in the Region E suburbs or relocating as his mother has done.
Issues at trial
Issues raised by the applicant included the following: the respondent’s breach of the injunction; relocation; school enrolment; spend time with the applicant; family violence allegations; and care arrangements for the child. The applicant made clear that no issues were raised respecting the presumption of equal shared parental responsibility or that the child should spend time and communicate with him (subject to determination of the other issues that were in contest).
As presented by her Outline of Case, the issues raised for determination included: relocation; school enrolment; changeover locations; time that the child was to spend with the applicant; family violence; and impact on the respondent/child if relocation refused. In contrast with the applicant’s Outline of Case, the respondent did not identify any issues that were common ground. Further, despite the matters addressed in the procedural history above, the respondent sought payment of a substantial sum by way of lump-sum maintenance.
Notices of risk
On 5 December 2018, the applicant filed a notice of risk naming himself, the respondent and the child as Affected Family Members. He stated that the child was not at risk of harm and made no allegations of child abuse, family violence or any other risk.
On 13 December 2018, the respondent filed a notice of risk identifying the same parties as being the subject of such notice but suggested the child was at risk of abuse and made other allegations. The category of abuse being relied upon was serious psychological harm. The particulars provided by the respondent were that the applicant had shouted loudly in the presence of the child, had baited her and “On the first weekend after we separated I went out to dinner with friends and the father constantly rang me telling me I had to go home and sending videos of [the child] crying, instead of comforting and reassuring him.” The respondent alleged that the applicant suffered mental health issues, exhibited irrational, coercive, manipulative and controlling behaviours and that he had exposed both the child and herself to unnecessary emotional stress. She further alleged that the applicant “constantly undermined her in the presence of the child and “manipulates the child to emotionally harass [the respondent]”.
On 27 December 2018, the Department of Health and Human Services (DHHS) issued a response to the s 67Z notices in which it advised that it had determined to take no further action. DHHS recorded the respondent’s allegations and the results of its enquiries of police who had noted that there was in place an IVO with full conditions. Police also reported to DHHS that they had attended the respondent’s residence in relation to a complaint that the applicant had come to the door “knocked on it and left”. Likewise, police had observed there was no violence or threats between the parties and that the applicant did not have any other history with police. DHHS also took the initiative of obtaining the respondent’s affidavit and examined it in relation to her allegations of family violence. It closed the matter at intake.
Shortly before the trial of the proceeding, the respondent filed another notice of risk. This notice is remarkable for the level of detail which it contained. It alleged that the child had been abused, causing him to suffer serious psychological harm. It noted that the allegations had been reported by the respondent to the following: police; EDVOS; Child First, Australian Childhood Foundation; Child Protection; a treating general practitioner and her treating therapist (none of whom were called).
Of particular concern is that the respondent’s statement annexed to her notice ran to 15 single spaced pages of small font type. On one view, it was twice as long as her trial affidavit.
On 25 November 2019, the DHHS received the respondent’s notice and commenced an investigation. On 26 November 2019, DHHS provided a report which addressed the respondent’s notice of risk. It reported that the department had determined to take no further action on the basis that there was insufficient information to suggest that the child was at risk of harm to warrant further intervention. DHHS determined that there was no child protection history relating to the family. It observed that there had been two previous reports relating to the child in December 2018 and November 2019, both of which had been closed at intake.
DHHS recorded that the underlying causes of concern appeared to relate to: (1) the applicant sending videos via his mobile phone of the child crying; (2) the child being told by the applicant that the respondent had a different surname; (3) that the applicant did not impose boundaries and undermined the respondent’s parenting ability; (4) the applicant exhibited controlling behaviours and had mental health issues; (5) the applicant “continually changing the time for the mother to pick up [the child] after his contact to suit himself.” Other complaints were also made. DHHS also investigated the matter with the police and determined that there were active IVO’s between the parties. It also confirmed that the kindergarten held no concerns for the child. It closed the matter at intake.
Family report
On 13 February 2019, an order was made for the provision of a family report. For the purposes of preparing the report, the author had regard to the parties’ initiating applications, their primary affidavits, the orders made to that point and their notices of risk. The report indicates that the author had not obtained a copy of DHHS’ report prepared in response to the notices of risk. The family report writer interviewed each of the parties, the maternal grandmother and observed the parties with the child. Contact had been made with the applicant and a treating psychologist.
The family report writer observed the child to respond well in the presence of each of his respective parents and noted that the child had a good relationship with each of his extended families.
In the evaluation of the parties, the author noted the mutual allegations of substance abuse and that, as concerned allegations of family violence, the applicant considered the respondent was overreacting, in part, it seems because “she was out at all hours socialising and mixing with peers who were illicit substance users. . .”
The family report writer considered the applicant impressed as having a warm and affectionate relationship with the child and that he knew his father well. It was recommended that if the child was to live with his mother and permitted to relocate, the child’s relationship with his father should be maintained. In particular, the author proffered this opinion: “It is known that children who have a warm and affectionate relationship with a parent they do not live with, benefit from sufficient time to maintain the relationship but that more time does not improve the relationship. In other words, they have an internalised strong bond with that parent, and it would appear that [the child] has that with his father. In the situation where both parents are warm and affectionate as appears to be the situation . . . children of [this] age benefit from the stability of remaining with the primary carer.” The author considered that it did not appear the child had a stronger or primary bond with his father than his mother and further, that it was common ground the respondent had been the child’s primary carer. This opinion did not positively assert that the child’s primary attachment was to the respondent. It was not expressed in affirmative terms but put more neutrally.
Contrastingly, the family report writer observed that the respondent impressed as being anxious and stressed and being “genuinely distressed about her accommodation and emotional support needs”. The author underlined the importance that, when parties were establishing arrangements for a child to spend time, that “they commit to an agreed plan as much as possible and not various unless necessary.” This appears to be an admonishment to the parties to recognise the importance of adhering to changeover arrangements.
The family report writer’s recommendations included for the parties to have equal shared parental responsibility for the child, who should live with the respondent and spend time with the applicant. Differing recommendations were made in relation to those spend time arrangements, depending upon whether the court accepted the proposal for relocation or not and also addressed school holidays. The family report writer did not evaluate the competing pros and cons of any proposal in relation to the child’s residence.
The family report writer was not required for cross-examination. However, the decision not to do so occurred in circumstances where it was clearly agreed that counsel would be free to make submissions in relation to the content of that report. Those submissions were made.
Evidence
Evidence was given by each of the parties and their respective mothers.
Overall, I was impressed by the grandmothers’ evidence. I considered that each of them attempted to give their evidence in a candid and detached manner, with each demonstrating their desire to support the parties in their attempts to resolve their parenting arrangements in whichever way that was to occur. Each of them was to be commended for the stance which they adopted.
I found the applicant to be forthright and candid. He was prepared to make admissions against his own interests. When confronted upon topics that were in contest in the proceeding he addressed them directly.
I also found the respondent to be a person who sought to give her evidence in a candid fashion. However, she was somewhat distraught and spoke of her anxiety and distress in relation to her circumstances. A troubling aspect of her evidence was that she seems to have convinced herself that there is a high level of family violence in the case, being a conclusion to which she has come after speaking variously with her solicitor, EDVOS, the police and staff at Magistrates’ courts. In this regard, a theme which emerged in the course of cross-examination suggested that the lead up to hearings in this court had been preceded by contact with EDVOS, the police and Magistrates’ courts, culminating in her making applications, of one sort or another, for IVOs.
The following findings are based upon an analysis of the parties’ affidavits, viva voce and documentary evidence and the inferences which I consider, are properly made. The matters set out below include both matters that were common ground, including from their chronologies, and my findings of fact upon particular issues. Matters addressed above in my summary of the procedural history are incorporated in my findings. Where issues of dispute arose, I have addressed them separately in a later section of these reasons. In deciding disputed issues of fact, I have applied the civil standard of proof to the resolution of that issue.[1] The more serious the allegation, the more necessary it was that I took into account the gravity of the allegation in deciding whether it was made out.[2] Where the evidence does not permit the court to make an affirmative finding either way on a particular issue, the court is not bound to do so, and may find that the party which bears the evidentiary onus of proof has failed to discharge it.[3] The court may well accept some parts of a witness’s evidence and reject other parts of it.[4]
[1] Evidence Act 1995 (Cth), s 140.
[2]cf Evidence Act 1995 (Cth), sub-s 140(2); Johnson v Page (2007) FLC 93-344, [72]; Briginshaw v Briginshaw (1938) 60 CLR 336.
[3] Kuglioski v Metrobus (2004) 220 CLR 363.
[4] Jabour & Jabour [2019] FamCAFC 78, [110] and cases cited.
Background
The applicant is aged 38 years and is described in his Amended Initiating Application as being self-employed. The applicant conducts a small business as a sole proprietor and has another equity interest in a business, which gave him some ability to arrange his work commitments around the care of the child. He has a modest income and is in good health.
The respondent, who migrated to Australia from Country F in 1999, is aged 38 years and is described in her Response as being a homemaker. She has returned to Country F on several occasions. She is in receipt of government benefits and child support. Her accessible income is comprised of child support of $171 and Centrelink payments of $497. While she gave evidence of having consulted a psychologist, she is otherwise in good health. While she is presently unemployed, it appears she has a capacity to work and has expressed some interest in undertaking further courses of study.
X, who is aged 5 years, is the only child of the relationship. At present, the child attends kindergarten for two – three days per week. He is expected to commence primary school in 2020. Although the applicant has expressed some concerns, the child appears to be in essentially good health. On his paternal side, in addition to his grandparents, the child also has two uncles, four aunties and eight cousins who live in proximity to the applicant in the Region E suburbs. Since separation, the maternal grandmother has seldom seen the respondent.
The parties’ relationship commenced in 2009. While they separated at some point between November 2017 or January 2018, there was also a 12-month period of separation between 2013 and May 2014. Each of the parties had worked up until the birth of the child when the respondent took maternity leave. She has not worked on a full-time basis since that time. Although the respondent has been seeing a psychologist since separation, no evidence from that treating practitioner was adduced.
Following separation, the child lived with the respondent and spent five nights a fortnight with the applicant. They have essentially shared equal parental responsibility for long-term decisions relating to the child. Since separation, the applicant lived with his parents in Town C. The home of the paternal grandparents is sufficiently large that the child has his own bedroom and he has lived there on the five nights in each fortnight that he spends time with the applicant.
More recently, the applicant has purchased his own home in Suburb G which would cater more than adequately for the child’s needs.
The parties tendered a number of text messages they had sent indicating as to the nature of some difficulties in communication. A feature of some texts is that the applicant was effectively left hanging for some days before he received any reply from the respondent.
In November 2018, the applicant sought agreement from the respondent that the child be placed on an Airport Watchlist and that she would not relocate a distance greater than 15km from their former residents in the Region E suburbs of Melbourne. Reactively, the respondent immediately withheld the child from the applicant. She did this by collecting the child from his kindergarten (in circumstances where the applicant’s mother usually did so). Her repeated refrain in a series of texts was that the respondent considered it best that the child stayed with her “until this is all resolved”. The applicant did not accept this and advised he would “swing pass” to pick up the child’s needs and to have a chat. The text messages descended into a series of exchanges in which the applicant implored the respondent simply to open the door so that they could chat. The respondent declined to do so and in a lengthier chat volunteered that she had asked the child if he wanted to contact the applicant by FaceTime or video and that the child had said “No.” Instead, the respondent appears to have taken the child to her parents’ home at Town H.
Although it is not entirely clear, it seems that it was in relation to this incident that the police were called and took no action as was reported by police to DHHS following the respondent’s first notice of risk.
On 6 December 2018, the applicant commenced this proceeding and served the process on that day. Immediately afterward, the respondent applied ex parte for an interim IVO against the applicant. By his trial affidavit, the applicant denied any history of family violence and the allegations levelled at him by the respondent. His denial is consistent with the police report to DHHS. The applicant also explained his version of events as concerned an alleged breach of an IVO.
Further, on the whole of the evidence, it is clear that the respondent has no objection to the applicant attending her home or spending time with the child as by putting him to bed or reading to him at bedtime. The allegations of family violence appeared to be focused upon and confined to some sort of psychological and economic harm which, as the respondent alleges, is said to ground a fear of harm from the applicant.
As noted, on 17 December 2018, interim orders were made restraining the respondent from relocating a distance of more than 15km from the parties’ former residential address in the Region E suburbs. In the course of that hearing, submissions were made by the respondent disclosing her intention to sell the family home and to relocate to Town H, an area where the respondent’s parents live on a 42 acre property. On that date, the parties resumed their informal arrangement that had previously existed for the child to live with the respondent and spend time with the applicant on five nights in each fortnight.
In mid-January 2019, the applicant was interviewed by police in relation to an alleged breach of the IVO. Shortly afterwards, on 7 February 2019, the respondent applied ex parte to vary the IVO.
On 8 February 2019, the respondent filed an Amended Response so as to seek an order that she be permitted to relocate to Town H. Less than a week later, an order was made for a conciliation conference.
On 18 March 2019, the respondent’s application to vary the IVO was returnable in a Magistrates’ court. On 16 April 2019, orders were made to finalise the applicant’s alleged breach of the IVO. On 6 May 2019, the respondent filed further and better particulars in her IVO application. Later that month, the applicant filed material in the IVO proceeding responding to the allegations. The IVO proceeding was resolved on 17 June 2019 by the applicant providing an undertaking.
In May 2019, the parties engaged in a series of text messages in which the respondent advised the applicant that she was moving the child’s care to a new medical practice. Somewhat remarkably, the respondent stated “At this stage it is not known which Dr he will see there as it will depend on with whom he feels most comfortable with (sic).” This statement stood in marked contrast with her Outline of Case in which she stated that the child’s views were not relevant to the determination of this application. At all events, the applicant replied, perhaps understandably, that such a decision should have been made by the parties jointly. To have done so would have been entirely consistent with the respondent’s agreement at trial that the parties should have equal shared parental responsibility. The applicant also explained his objection to the change in medical clinics on two bases: first, he had not been asked to and did not consent to the change; secondly, he had been attending the parties existing clinic for 15 years and trusted the practitioners at that clinic. To this objection, the respondent replied “Thanks for info”.
A further series of text messages related to an incident shortly before Easter 2019, which preceded the parties’ plans for the child to spend time with the applicant. In these emails, the respondent informed the applicant that the child had been sufficiently ill and admitted to a hospital with a fever but that he had been discharged. The text further advised that the respondent had made two further appointments for the child to be seen at the local medical clinic. In reply, by a series of texts, the applicant stated: “Poor little man, I’ll meet U for change over this morning at 11” followed by “And why didn’t U inform me any earlier especially taking him to hospital?” and the concluding with “Can you please send me the doctor’s name . . . and I will also need a report”. These communications were hardly inappropriate.
Relatedly, a Discharge Summary from the hospital was tendered in evidence which recorded the information obtained on admission, the clinical synopsis and findings on examination including that the child was “Grizzley but alert and cooperative . . . Chest clear”.
In the evidence given in relation to this issue, the parties levelled various criticisms at one another, however, none of them rose to the level of raising a significant concern. In particular, on Easter Friday, a medical practitioner at the family clinic provided a certificate to certify his opinion that the child would be “fit for camping”.
I have referred to the procedural history above which included the final settlement of the parties’ property applications on 12 June 2019. One of the orders made on that day provided that all extant parenting orders would remain in full force and effect. In the course of that hearing, it was stated that the respondent, together with her parents (who were co-owners) had sold the property where she was living. Further orders were made, permitting each parent to enrol the child in a school. The applicant has furnished detailed evidence in relation to a number of primary schools in his surrounding area. The respondent has done likewise. I have considered their observations as to these schools.
The applicant also tendered a Domain internet search history relating to the property in which the respondent now resides. The internet history indicated that the property had been sold on 26 June 2019; that is, two weeks after the final property orders were made. While there was debate in the evidence as to the respondent’s involvement in the purchase of that property, I have no doubt that it was part of a premeditated design by the respondent to relocate to an area in close proximity to her parents. While the respondent’s autonomy generally entitled her to move where she wanted, her exercise of autonomy engages the court’s power to make orders including as to where, in his best interests, the child might reside.[5]
[5] Cf Duarte & Morse [2019] FamCAFC 93, [370]-[371] (Strickland, Aldridge and Austin JJ).
On 19 July 2019, the respondent’s lawyers wrote to the applicant’s lawyers in relation to a number of issues, including relocation. Their correspondence had a disingenuous tone about it inasmuch as the mother’s purchase of the property was already fait accompli or at least well advanced. At all events, the letter advised that: the respondent was not employed; her only source of income was Centrelink payments; she would not qualify for a rental property; the parties’ property settlement provided her a net sum of $33,000 (stating that “all of this amount will be used to fund her legal costs for these proceedings”); with no ability to secure a rental property her only option was to move in with her parents. Nothing was said as to the maternal grandmother having purchased the subject property. The respondent’s lawyers requested that the applicant assist their client by securing a lease on a monthly basis at least until the final hearing. Further proposals were made.
The applicant’s lawyers, who replied within a week, contested the sum which the respondent asserted she would receive from the property settlement was $33,000 and calculated her share at $52,000. They also referred to research undertaken by the applicant as to the cost of rental properties in the immediate locality and indicated the applicant’s preparedness “to financially contribute towards your clients weekly rental of a two-bedroom unit in the Region E suburbs from 6 September 2019 until 25 November 2019 commensurate to his financial capacity and subject to his already existing financial commitments.” Further, the applicant’s proposal was conditioned on three further requirements, one of which was that the respondent make every endeavour to secure employment. The vagueness of the applicant’s proposal is evident.
To this, the respondent replied shortly afterward asserting that in the course of the 12 June 2019 hearing, counsel for the respondent had stated, in open court, her intention “to go and stay with her parents” and that the court, as it was said, had “called for common sense in the circumstances.” The latter proposition was of course an interpretation which was placed by the respondent’s lawyers on the events of that day.
Having regard to her present circumstances, I find that the respondent could not secure rental accommodation in the Region E suburbs (or probably elsewhere so for housing commission accommodation) from her own resources. I am also satisfied that she could not do so without the financial support of her parents. I accept her evidence that she could not find the monies necessary for a bond or to pay rent in advance and that, since her primary source of income is a Centrelink benefits, she is most unlikely to qualify for rental accommodation in the private market. Further, having regard to his own modest circumstances, I find that the applicant could not realistically provide much financial support to the respondent for such rental accommodation.
It was in these circumstances that the applicant filed an Application in a Case to address the respondent’s breach of the order made on 17 December 2018.
In August 2019, the applicant sent a text message in relation to a request to alter arrangements respecting changeover in circumstances where he had hurt his back. The respondent’s reply expressed her regret that she could not assist. Likewise, the respondent appears to have actively obstructed the father seeing the child on his birthday (notwithstanding his erroneous belief that an order was in place for this to occur). Whether or not such an order was in place, it had clearly been a topic that was under discussion and, when pressed for a response, the reply received from the respondent was “Don’t insult my intelligence Mr Balsano. If I were u I reacquainted (sic) myself with the court orders Before I start throwing my weight around However u proceed is entirely your choice. That’s the beauty of freedom. Each individual has the freedom & right to choose . . .” The tenor of the remainder of this, and many other, texts sent by the respondent indicate that she is not child focused. While the respondent has repeatedly made allegations against the applicant of family violence, the manner of her texts is often combative and indicates that the applicant’s views are ignored.
At all events, the respondent ultimately stated that the applicant could see the child on his birthday between 10.00 – 11.00am. The difficulty in the proposal was that the respondent sent the message at 9.55am.
I have considered the parties’ text messages and do not consider that they support allegations of family violence or the respondent’s complaints that the applicant has been systemically unreliable in relation to changeover. To the contrary, they indicate that the applicant has attempted to communicate with the respondent, in advance, on occasions where there has been difficulty (as may occur on occasions).
On 29 August 2019, the respondent gave notice to the child’s kindergarten that she was withdrawing his enrolment. Again, the applicant was not consulted about this decision.
On 30 August 2019, the applicant filed an Application in a Case to address the respondent’s threatened breach of the injunction by relocating to Town H.
On 6 September 2019, the respondent completed the sale of her home in Suburb D. On the same date, she relocated to Town C, some 144kms from Suburb D. The property to which she relocated was purchased by her mother as nominee. I am prepared to infer that this purchase occurred on about 26 June 2019. Seen in context, the purchase occurred precisely two weeks after 12 June 2019; that is, the date upon which the parties agreed in the making of final orders to resolve all issues in dispute between them respecting property and maintenance.
The Town C property, like the property that had been sold in Suburb D, is registered in the names of the respondent and her parents. The maternal grandmother’s evidence was that the mortgagee would not transfer the mortgage unless there was an identity of parties. The respondent then entered into a lease with her co-owners (ie parents), to secure a tenancy of the property in her favour. The property will cater quite adequately for the needs of the child.
Town C is some 144km from the applicant’s residence. The travel time between the two properties is about two hours. Suburb A is located ~70 kms from both residences. The respondent’s trial affidavit identified the essential services and other features of the Town C area which I have considered.
On 4 October 2019, the applicant sent a text to the respondent in circumstances where he had just been told by the child that they were no longer living with the maternal grandparents. Despite a further prompt, it was not for three days until the respondent replied. Included in the text messages were a series of exchanges during which the applicant confronted the respondent in relation to information he had received from the child that respondent had already relocated. In reply, the respondent provided the applicant with not one, but three, addresses. Viewed objectively, the respondent’s reply could reasonably have been understood as demonstrating obfuscation on her part. In the course of cross-examination, the respondent sought to clarify the position, stating that one of the three addresses which she had provided was the address which had been designated by the local municipality before the completion of the subdivision within which the property was located. Accepting this may have been the position, the respondent has not demonstrated that she is forthcoming in relation to such information. That she has not done so is consistent with her design to deliberately conceal from the applicant her intention to relocate from Suburb D to Town C and to do so despite the court order.
On 28 October 2019, the applicant filed an Amended Initiating Application and his trial affidavit. On the same date, the respondent filed her Outline of Case. The following day, the respondent again applied ex parte for an IVO. On this occasion, however, the application was made in City J, being in a court that is proximate to her new residence.
Parenting – Applicable principles
Application is made for a variety of ‘parenting orders’.[6]
[6] Act, s 64B.
Part VII of the Act, which concerns the subject, Children, is arranged in 16 Divisions comprising ss 60-70Q. Part VII has frequently been described as providing a legislative pathway which governs parenting decisions. By way of overview, that pathway includes the following:
a)objects and principles underlying Part VII: s 60B;
b)child’s best interests as the paramount consideration in making a parenting order: s 60CA;
c)how a court is to determine a child’s best interests: s 60CC;
d)primary and additional considerations which are relevant: s 60CC;
e)a presumption of shared parental responsibility: s 61DA;
f)assessment of equal or substantial and significant time: s 65DAA;
g)assessment of reasonable practicability: s 65DAA(5).
See, eg, Goode & Goode;[7] Morgan & Miles.[8]
[7] (2006) 36 Fam LR 422, [5]-[13].
[8] (2007) FLC 93-343, [62]-[71].
However, it is not essential that the court should refer, either to the legislative pathway or to specific provisions of the Act.[9] Authorities which refer to Part VII as prescribing, or as imposing an obligation upon a court to follow a legislative pathway, are properly understood as emphasising that the statutory considerations which are relevant to a particular case must be considered and applied as directed by the Act.[10]
[9] Panno & Panno [2018] FamCAFC 195, [72]; SCVG & KLD [2014] FamCAFC 42.
[10] see, eg, Oswald & Karrington [2016] FamCAFC 152, [47].
The objects of Part VII are stated in s 60B(1). They include to ensure that the best interests of children are met by protecting them from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: para 60B(1)(b). The principles underlying those objects recognise certain, extensive, rights of children with respect to their parents: s 60B(2). The rights of the child expressed in s 60B(2) remain subject to an exception “where it is or would be contrary to the child’s best interests”.
In Part VII, Div. 6, Parenting orders other than child maintenance orders, the expression ‘parenting order’ has the meaning given by s 64B(1).[11] Sub-section 64B(1) states that a parenting order is:
[11] Act, s 4.
(a)an order under this Part. . . dealing with a matter under subsection (2); or
(b)an order under this Part discharging varying suspending or reviving an order . . . described in paragraph (a).
Sub-section 64B(2) is cast in ambulatory terms and provides that a ‘parenting order’ may deal with one or more of the following: (a) the persons with whom a child is to live; (b) the time a child is to spend with other persons; (c) the allocation of parental responsibility for a child; (d) the obligation of consultation in cases of shared parental responsibility; (e) the communication a child is to have with other persons; (f) maintenance; (g) steps to be taken before an application be made for variation of an order to take account of changing needs or circumstances of a child or the parties; (h) dispute resolution; (i) any aspect of the care, welfare or development of the child or any aspect of parental responsibility.
Section 65D concerns the subject, Court’s power to making parenting orders. By sub-s 65D(1), power is conferred on the court in proceedings for a ‘parenting order’,[12] to make such parenting orders as it thinks ‘proper’.[13] Sub-section 65D(2) provides that, without limiting the generality of sub-s 65D(1),[14] a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order. Sub-section 65D(3) is presently immaterial.
[12] Subject to ss 61DA and 61DAB and Division 6 of Part VII.
[13]Section 61DA applies where a parenting order is made and requires the Court to provide for the obligations which the order creates and the consequences that may follow upon contravention. Section 61DAB is not presently relevant. Division 6 of Part VII is comprised of ss 65A-65ZD, the whole of which provisions were inserted in, amended by or repealed from, the Act by the Family Law Reform Act 1995 (Cth) and Family Law Amendment (Shared Responsibility) Act 2010 (Cth).
[14] But again subject to ss 61DA, 61DAB and Division 6 of Part VII.
The discretion conferred on a court by s 65D to make such parenting orders as it thinks proper is broad. In Bondelmonte v Bondelmonte,[15] the High Court said of s 65D:
A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the Court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child. (emphasis added)
[15] (2017) 259 CLR 662 at [32].
The power created by s 65D confers a largely unfettered discretion, albeit one that must be exercised judicially.[16] At the same time, the court may, in the interests of consistency, provide guidelines which inform the proper exercise of discretion.[17] The ambit of the discretion explains why a court will not interfere with such orders, merely because it might have taken a different view of the matter.[18] The court’s discretion must also be exercised having regard to the objects and principles stated in s 60B.
[16]Cf Norbis & Norbis (1986) 161 CLR 513, 519 (Mason and Deane JJ) 536 (Brennan J agreeing), 522-533 (Wilson and Dawson JJ).
[17]Cf Morton & Berry (2014) FLC 93-613, [21]-[24] (May, Ainslie-Wallace and Watts JJ) citing Norbis.
[18] CDJ v VAJ (1998) 197 CLR 172, [151]-[152] (McHugh, Gummow and Callinan JJ)
However, the discretionary power conferred by s 65D(2) to make a parenting order is subject to s 65AA of the Act.[19] Section 65AA confirms that, by s 60CA, the court must have regard to the best interests of the child as the paramount consideration in deciding whether to make a particular parenting order. By this route, the obligation in s 60CA is engaged in the exercise of power under s 65D(2). This is because an order made under s 65D is a ‘parenting order’. Further, where the court makes a parenting order for equal shared parenting responsibility, the discretion conferred by s 65D is not at large but must be exercised in accordance with the imperative requirements of s 65DA.[20]
[19] Reid & Lynch (2010) FLC 93-448, [232]-[233] (O’Ryan J, Finn and Strickland JJ agreeing).
[20]Dundas & Blake [2013] FamCAFC 133, [56]; Mellick & Mellick [2014] FamCAFC 236, [58] (see below).
In determining the best interests of a child, there are certain primary considerations which the court must take into account: sub-s 60CC(2). The court must consider:
(a)the benefit to the children of having a meaningful relationship with both of their parents; and
(b)the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
See ss 4(1) (abuse); 4AB(1) (family violence); 60B(1)(c), 60CC(1) (determining child’s best interests); 60CC(2) (primary considerations). Additional considerations are prescribed by sub-s 60CC(3)(a)-(m).
In addition, amendments to the Act effected by s 60CC(2A) now require that the court is to give greater weight to the need to protect children from physical or psychological harm from being subjected, or exposed, to abuse, neglect or family violence. Thus, where the circumstances require, the need for protection from harm as prescribed by par 60CC(2)(b) assumes prominence over the child enjoying a meaningful relationship with both parents as addressed in par 60CC(2)(a). This conclusion is reinforced by the exception provided for by sub-s 60B(2).
When deciding what parenting orders ought to be made in proceedings under Part VII of the Act, the best interests of the children are the paramount consideration.[21] The principles contained in s 60B(2), which express the rights of children in relation to their parents, may yield to the paramount consideration expressed in s 60CA that in deciding whether to make a particular parenting order, a court must have regard to the best interests of the child. Put in other terms, where it would be contrary to the child’s best interests to make orders which accorded priority to the principles in s 60B(2) (as by facilitating the child’s right to spend time on a particular basis with both of their parents or other people significant to their care), the mandate, which is expressed as the paramount consideration to pay regard to the best interests of the child, may support orders appropriate to promoting the child’s best interests, including orders that will operate so as to protect the child from harm.
[21] Act, s 60CA.
It is plain that neither party may arrogate to themselves any right to insist on what parenting arrangements ought to be made.[22] The best interests of the child remain paramount. Thus, where the Parliament has imposed a duty on the court to have regard to the best interests of a child as a paramount consideration, this is not satisfied by subordinating that assessment to a consideration of a child’s second best interests.
[22] Cooke & Morton [2018] FamCAFC 9, [39] (Ryan, Kent and Cleary JJ).
Division 2 of Pt VII concerns the subject Parental Responsibility and comprises ss 61A- 61F. Relevantly, parental responsibility in relation to a child means all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[23] Absent a parenting order which is in operation, each of the parents of a child has parental responsibility for that child.[24] The position enacted by s 61C is displaced where parenting orders are made. Section 61D provides that a parenting order confers parental responsibility for a child on a person, but only to the extent to which it confers on that person, duties powers, responsibilities or authority in relation to that child.
[23] Act, s 61B
[24] Act, s 61C(1).
A presumption of equal shared parental responsibility is established by s 61DA which may not apply in certain prescribed circumstances and which may be rebutted. Section 61DA relevantly provides:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note:The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 6.5DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3). . .
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Notes to sub-s 61DA makes clear that the presumption which is created by the section is confined to parental responsibility and does not speak to the question about what amount of time a child should spend with either parent (or any other person).
Where it applies, s 65DA(1) requires that the court’s discretion in making a parenting order is to be exercised upon a presumption that it is in a child’s best interests to have equal shared parenting responsibility.[25] This presumption does not apply where there are reasonable grounds for believing that a parent has engaged in abuse or family violence: Act, s 61DA(2).[26] The presumption may be rebutted: Act, s 61DA(3). Where it is sought to be established that the presumption is rebutted, this requires significant attention in the evidence.[27]
[25] Dundas & Blake [2013] FamCAFC 133, [56].
[26] Mellick & Mellick [2014] FamCAFC 236, [60], [65].
[27] Dundas & Blake [2013] FamCAFC 133, [57].
Divisions 5-6 of Pt VII each concern the subject Parental Orders and comprise ss 64A-64D and 65A-65ZD respectively. When making a parenting order, the court is conferred power to make such order as it thinks proper: s 65D(1). Properly construed, the discretionary power conferred by this section is constrained by imperative obligations: (1) to pay regard to the child’s best interests, and; (2) where the court makes a parenting order which provides for parents to have equal shared parenting responsibility, the court must also give consideration to a number of matters.
Section 65DAA, is headed, Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances. Sub-section 65DAA(1), Equal time, reads:
Subject to subsection (6), 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.
Sub-section 65DAA(2) is cast in terms which largely mirror s 65DAA(1), save that if an order for ‘equal time’ is not made, the court must consider whether spending ‘substantial and significant time’ with each of the parents is in the child’s best interests and whether it is reasonably practicable to do so.
The succeeding provisions of s 65DAA address a non-exhaustive list of considerations which the court must consider if an order for equal shared parental responsibility is to be made, including issues as to a child spending substantial and significant time with each of the parents, the reasonable practicability of that occurring and, if so, for the making of an order which provides for the child to spend such substantial and significant time with each of the parents.[28] The types of matters which the court must have regard to in evaluating the reasonable practicability of the question of a child spending equal or substantial and significant time with each of the parents are prescribed by s 61DAA(5).[29]
[28] Act, s 61DAA(2)-(4).
[29]The matters addressed in s 61DAA may not need to be addressed where the parties agree in consent parenting orders for equal shared parenting responsibility: s 61DAA(6).
It is only where the court determines that it is in a child’s best interests to spend equal time (or substantial and significant time) with each parent and that it is reasonably practicable to do so that the court is authorised to consider making an order which provides for the child to spend equal (or substantial and significant time) time with each parent.[30]
[30] MRR v GR (2010) 240 CLR 461, [13].
An evaluation of the reasonable practicability of a child spending equal with each parent requires a practical assessment of whether that is feasible.[31] If the evidence does not permit an affirmative answer to the question of reasonable practicability, there is no power to make an order for a child to spend equal time with each parent.[32] Once a conclusion is reached that it is not open to make an order for equal time, the court must then consider whether an order for substantial and significant time is in a child’s best interests, whether to do so is reasonably practicable and if so, what order should be made. Again, if it is not reasonably practicable for a child to spend substantial and significant time, there is no power to make such an order.
[31] MRR v GR (2010) 240 CLR 461, [15].
[32] (2010) 240 CLR 461, [19].
The primary and additional considerations contained in s 60CC(2)-(3) must be used to ‘drive’ the application of s 65DAA(1)-(2); that is to say, s 65DAA is reliant upon findings made pursuant to s 60CC(2)-(3) when determining what type of parenting order is in a child’s best interests, including upon questions as to spending equal, or substantial and significant, time with each parent.[33] This is because the purpose of s 60CC is to identify how a court is to determine what is in a child’s best interests and since s 65DAA prescribes that the court must have regard to a child’s best interests in the determination whether an order for equal shared parental responsibility.
[33] SCVG & KLD (2014) FLC 93-582, [75]; Mellick & Mellick [2014] FamCAFC 236, [56].
Relocation
Where relocation is in issue, the court is not concerned to restrain a parent from exercising their autonomous right to move to any locality. In a parenting context, absent exceptional circumstances, an adult has the right to live where they wish. The jurisdiction exercised under the Act in making a parenting order concerns the making of orders that are ‘proper’ because they are in a child’s best interests. Thus the, court may impose a restraint against a party to prevent a child from being relocated where to do so would be contrary to his or her best interests.
The parties stated that they were in agreement as to the applicable principles. I was referred to A & A (Relocation Approach);[34] U & U.[35] In light of those submissions, it is necessary to consider some authority.
[34] (2000) FLC 93-035.
[35] (2002) 211 CLR 238.
In A & A (Relocation Approach),[36] Nicholson CJ, with Ellis and Coleman JJ reviewed the authorities and considered the following principles to be established:
· In determining a parenting case that involves a proposal to relocate the residence of a child, the welfare or best interests of the child as the case may be . . . remains the paramount consideration but is not the sole consideration.
· In determining a case that involves a proposal to relocate the residence of a child, a court cannot require the applicant for the child’s relocation to demonstrate ‘compelling reasons’ for the relocation of a child’s residence ‘contrary to the proposition that the welfare of the child would be better promoted by’ maintenance of the existing circumstances.
[36] (2000) FLC 93-035, [64].
The Full Court proceeded upon a detailed analysis[37] of dicta in many authorities and commended the adoption of a three-staged approach that should be taken where relocation was in issue. It is important to recognise that A & A (Relocation Approach) was decided at a time before the Act was the subject of extensive amendment, including by the provision of the legislative pathway that is now provided by Part VII.
[37] (2000) FLC 93-035, [65]-[81].
Further, in U & U,[38] Gummow and Callinan JJ, while accepting that the court was required to give careful consideration to the arrangements proposed by the parties, questioned whether, in every case, the court was obliged, or would be able in every case to give discrete consideration to each of the three issues as had been postulated in A & A. Gleeson CJ, McHugh and Hayne JJ agreed in that judgment.[39] Although Gaudron and Kirby JJ were in dissent, their honours’ respective reasons confirm that the Court was unanimous in the need to give attention to the parties competing proposals.[40] In particular, Kirby J reiterated that, while a child’s best interests were to be treated as paramount, they were not to be elevated to the status of the sole factor for consideration. Further, his Honour acknowledged the hesitation that should be adopted by the court before refusing permission to take the children, stating:[41]
The "hesitation" mentioned in Tyler does, however, evidence a greater attention to the realities of the position of the primary carer (overwhelmingly female). It allows a proper consideration of the factors affecting the carer's life, such as their freedom of movement, association, employment and personal relationships. These are to be weighed against any negative impacts of relocation, such as reduced contact. However, this last factor should not dictate the result, any more than should the carer's desire for relocation. (footnotes omitted)
[38] (2002) 211 CLR 238, [80].
[39] (2002) 211 CLR 238, [1], [34], [169].
[40] (2002) 211 CLR 238, [37]-[38] (Gaudron J), [136], [157]-[159] (Kirby J).
[41] (2002) 211 CLR 238, [158].
In KB & TC,[42] Bryant CJ, May and Boland JJ discerned that the statements of Gummow and Callinan JJ above had “ameliorated the somewhat rigid and or formulaic suggested approach” of A & A (Relocation Approach). The Full Court held as follows:
In U & U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant [s 60CC] factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.
[42] (2005) FLC 93-224, [72].
Following KB & TC, the Act was substantially amended in 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), which commenced operation in 2006 and which relevantly, by Sch 1, inserted Sub-Div. BA Best interests of the child, ss 60CA – 60DAE to the Act. In the result, those amendments established a new statutory framework in which parenting orders were to be considered. Following those amendments, relocation principles were reassessed.
In Morgan & Miles,[43] Boland J sitting as a single Justice on appeal, considered relocation principles in light of the amendments to the Act. His Honour held[44] that the statutory pathway contained in Part VII was to be followed and required consideration of the competing proposals as against the criteria in s 60CC, informed by s 60B and, where equal shared parental responsibility was presumed or agreed, the evaluation of the matters required by s 60DAA. Boland J further held that:[45]
. . . as a matter of practical utility, that structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
[43] (2007 FLC 93-343.
[44] (2007 FLC 93-343, [72]-[80].
[45] (2007 FLC 93-343, [81].
In Taylor & Barker,[46] Bryant CJ and Finn J agreed in a submission that it was inappropriate to deal with the issue of relocation as an issue separately or distinctly from the consideration of the primary and additional considerations posed by s 60CC(2)-(3) of the Act, stating:
We agree that when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather is just one of the proposals for the child’s future living arrangements, at least insofar as that approach is possible.
Their Honours cited both U & U and KB & TC as authority for that proposition and endorsed as appropriate to the circumstances, that it was entirely appropriate to consider the possibility of relocation under s 60CC(3)(m) as constituting “any other fact or circumstance that was relevant.” The plurality expressed difficulty in seeing in what other context within the applicable statutory framework relocation could have been considered. Their Honours further held that a relocation proposal should also be evaluated, so far as possible, in the context of s 65DAA.[47]
[46] (2007 FLC 93-345, [53].
[47] (2007) FLC 93-345, [54]-[63].
In MRR & GR,[48] the Court examined relocation principles and held that, in relation to orders for a child to spend either equal or substantial and significant time with each parent, a precondition to the exercise of power was that the court consider and made a finding whether the spending of such time was reasonably practicable. Their Honours further held[49] that s 65DAA(1) was “concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent.” Although their Honours did not expressly address s.65DAA(2) on this issue, parity of reasoning supports a conclusion that it too is concerned with the reality of a child spending substantial and significant time with each parent.
[48] (2010) 240 CLR 461.
[49] (2010) 240 CLR 461, [15].
In Moon & Moon,[50] Coleman J sitting as a single Justice on an appeal, stated that, on a number of occasions it had been suggested in the Family Court, in light of the changes to Part VII of the Act and judgment in MRR v GR,[51] that reliance upon A & A (Relocation Approach) was “unhelpful and possibly erroneous”. His honour cited a number of authorities for that proposition: Hepburn & Noble;[52] McCall & Clark;[53]and Starr & Duggan.[54]
[50] [2010] FamCAFC 116, [113].
[51] [2010] HCA 4.
[52] (2010) FLC 93-438, [100] (Coleman, Strickland and Crisford JJ).
[53] (2009) FLC 93-405.
[54] [2009] FamCAFC 115.
In Hepburn & Noble,[55]the Full Court expressed concern that A & A (Relocation Approach), was “still being referred to given that since then the Act has been substantially amended . . . and there have been a number of significant decisions of the Full Court addressing the issue of relocation since those amendments commenced. . .” Further, the court observed that, following the hearing of the instant appeal, the High Court had given judgment in MRR & GR,[56] which only reinforced the view that A & A (Relocation Approach) no longer represented the law.
[55] (2010) FLC 93-438, [100] (Coleman, Strickland and Crisford JJ).
[56] (2010) 240 CLR 461.
Despite the parties’ submissions, having regard to the matters considered above, it would seem preferable not to adopt the rigidly formulaic approach commended in A & A (Relocation Approach) and instead to follow the statutory pathway provided by the Act as amended.
In Tabac & Kelmer,[57] Stewart J stated a number of propositions which I accept as being an accurate statement of applicable principles:
a)the best interests of the child remain the paramount, but are not the sole consideration;
b)a parent who wishes to move to another locality does not need to demonstrate compelling reason to do so;
c)instead, where relocation is under consideration it is necessary to weigh and balance the child’s best interests together with the right of the parent proposing to relocate to freedom of movement;
d)such cases do not fall for analysis upon whether one parent should have residence of the child and, separately, whether relocation should be permitted;
e)the proper approach in a relocation case entails the weighing of the parties competing proposals upon s 60CC considerations and any other relevant matter, including a party’s right to freedom of movement;
f)ultimately, the decision turns on the best interests of the child.
See also Wilburn & Wilburn.[58]
[57][2016] FCCA 1937, [112] citing Morgan & Miles [2007] FamCA 1230; Paskansky & Paskansky [1999] FamCA 1889; KB & TC [2005] FamCA 458.
[58] [2019] FCCA 2131, [83]-[86] (McNab J).
These principles are to be applied in the present case. In this regard, it is convenient to incorporate the parties’ submissions, where relevant, when addressing each of the primary and additional considerations and the matters which s 60CC, 61DA and 65DAA require be considered.
Resolution
By way of overview, the parenting dispute relates to a child who is now aged 5 years. The parties’ submissions and evidence sought to highlight the relative attractiveness of living in Town C or Suburb G and were framed by reference to ss 61DA, 60CC and 65DAA of the Act. It is convenient to consider the competing considerations in relation to relocation from the perspective that was adopted by the parties by reference to each of these provisions.
Primary & Additional considerations: s 60CC(2)
Having regard to the principles considered above, the relative merits of the parties proposals (including relocation and the respondent’s right to freedom of movement), should be evaluated after ss 60CC(2)-(3) considerations have been considered and in the context of ss 61DA and 65DAA. I propose to adopt that course and consider the issues that were raised by the parties in terms of their competing proposals.
Benefit of meaningful relationships with both parents: s 60CC(2)(a)
The legislature aspires to promote a meaningful relationship between children and parents but accepts that it may not always be optimal.[59] Where it is determined that a meaningful relationship with both parents is in a child’s best interests it is necessary to consider: (a) whether any such meaningful relationship is already established, and; (b) if it is, whether that existing relationship can be promoted.[60]
[59] Godfrey v Sanders (2007) 208 FLR 287, [36] (Kay J).
[60] CfHeath v Hemming (No.2) [2011] FamCA 749, [104].
In my view, it is clear that a meaningful relationship is already established with both parents and that the child would benefit greatly from maintaining such a relationship with each of his parents.
Neither party suggested orders which might terminate, rather than preserve, a meaningful relationship for the child with each of his parents. Each of the parties agreed the child would benefit from a meaningful relationship with each of his parents.
The applicant seeks to be an integral part of the child’s upbringing and to promote him having a meaningful relationship with each of his parents and his extended family. It was said that the child’s relationship with his applicant and his extended family would be significantly diminished as a consequence of relocation. In this context, it will be recalled that the applicant has actively sought, and maintained, a relationship with his son, including from the time that the respondent sought to withdraw the child’s spend time following the applicant’s request for an assurance that she would not relocate. The applicant has been prepared to seek proactively to protect the child’s right to the benefit of a relationship with each of his parents, including by bringing this proceeding.
The respondent accepted that there was benefit to the child in having meaningful relationships and submitted this could be achieved under her proposal. The real difficulty inherent in her proposal is that, to date, the respondent seems to have pursued her own objectives in blatant disregard of court orders. Her evidence that another judge had exhorted the parties to use their common sense in relation to relocation was an opportunistic attempt to justify her conduct and was no excuse for her effectively seeking to pre-empt the result of the final hearing.
Protection from risk of abuse, neglect or family violence: s 60CC(2)(b)
In determining what is in a child’s best interests, the second of the primary considerations to which the court must have regard is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In applying the primary considerations, the court is obliged to give greater weight to the matters in s 60CC(2)(b).
I considered that the respondent’s allegations of family violence were essentially vague and unparticularised. Insofar as she deposed to suffering mental health issues, it was not supported by any independent evidence. As the applicant correctly submitted, to the extent the respondent’s conduct and behaviour is indicative of mental health issues, these may well inform her capacity to provide appropriate care.
Contrary to the respondent’s allegations, I do not accept that the child is at risk of abuse, neglect or family violence from his father. The manner in which the respondent has pursued, and escalated, allegations of this kind appears more to reflect her own anxiety and somewhat histrionic reaction to the present circumstances. It does not appear to me to be in any way child focused. The respondent’s allegations of family violence were said to be “of critical importance.” However, apart from the paucity of evidence, very little was said by way of closing submissions. I reject the respondent’s allegations of family violence.
I conclude that neither party poses an unacceptable risk to the child, including, in particular, any risk of psychological harm.
Additional considerations
The primary considerations in s 60CC(2) will not be determinative as to how a child’s best interests will be served. By s 60CC(1), the court is required to consider each of the matters in both sub-s 60CC(2) and (3). Accordingly, those additional considerations must be addressed.
Views expressed by the child: s 60CC(3)(a)
The respondent submitted that the child was not of an age where he was able to usefully express any views. In a narrow sense this may be accepted, as it was by the family report writer.
However, in my view, it is clearly within the ambit of par 60CC(3)(a), to consider such views as may be manifested by the child’s behaviour. I accept the applicant’s submission that the child presents as having a strong, positive relationship with each of his parents and that each of them has demonstrated a capacity to provide him with a consistently positive experience whilst in their respective care.
Nature of relationships with the child: s 60CC(3)(b)
There is no contest that the child has a warm and loving relationship with each of his parents and with his extended paternal and maternal families. Insofar as attempts have been made to erode or undermine the child’s relationship with his father, I do not ignore that consideration.
As stated, it was common ground the respondent had been the child’s primary carer. This was confirmed by the family report writer. In this context, the expert opinion of the family report writer is not unimportant. In particular, the family report writer considered that it did not appear the child had a stronger or primary bond with his father than his mother.
Further, the author of the family report expressed her opinion that children who had a warm and affectionate relationship with the parent with whom they did not live, would continue to benefit from having sufficient time to maintain their relationship but that more time did not improve the relationship. This opinion was based upon the child’s “internalised strong bond with that parent”. The family report writer considered that in this case, the child had a strong bond with his father.
For all of those reasons, the author considered that where, as here, both parents were warm and affectionate, the child would benefit from “the stability of remaining with the primary carer.” The stability of maintaining the child’s relationship with his primary care is important.
Participation in decisions, spend time and communication: s 60CC(3)(c)
I have set out in some detail, the chronology of the parties’ lives since cohabitation, addressed the parenting arrangements which have existed since the birth of the child. There was force in the submission that the respondent has actively sought to marginalise the applicant, and, by extension, his family, from involvement in the care and welfare of the child. So much is manifested by her frequent ex parte applications for IVOs; her conscious decision (in breach of the injunction) to unilaterally relocate to Town C; her cancellation of the child’s enrolment at kindergarten and the change in medical clinics. Her attitude was comprehensively demonstrated by her reply in relation to the medical clinics issue “Thanks for info”, together with the position she adopted in facilitating spend time on the child’s birthday.
Subject to my observations respecting marginalisation above, I accept the applicant’s submission that both parents have the ability to facilitate and encourage a close and continuing relationship between the child and the other parent. As concerns marginalisation, I reiterate the observations made above. However, I do not accept that the respondent has not demonstrated a capacity to facilitate the child’s time spent with his father, including by undertaking the travel that is now necessary to allow him to spend time with the applicant. I have reflected on whether the respondent’s conduct in relation to spend time is merely an attempt minimise the fallout of her breach of the injunction in relocating to Town C. Relatedly, the respondent has, without consultation with the applicant varied the child’s enrolment at kindergarten, thereby setting in place an environment in which the child’s attendance clashed with the existing arrangements for the child to spend time with the applicant. In a similar vein, the respondent has changed, without any consultation or explanation, the child’s swimming lessons and medical practitioner. There was force in the applicant’s submission that the respondent has also been essentially dismissive and contemptuous of arrangements for the child to spend time with the applicant.
Should the respondent continue to behave in a manner which properly demonstrates her resolve to alienate the child and marginalise the applicant in his involvement in the care and welfare of the child, I have little doubt the applicant would apply for orders for the child’s change of residence. Unjustified attempts to undermine a parent’s relationship with a child is conduct that is to be abhorred. These matters underline the need for prescriptive orders in this case.
Fulfilment of obligations to maintain the child: s 60CC(3)(ca)
I adopt much of what has been said above concerning the nature of this family in relation to parenting issues above.
Only the applicant addressed this consideration. I accept his submission that each parent has fulfilled their obligations to maintain the child and that the applicant pays child support as assessed and makes other contributions toward child related expenses.
I do not accept, and find there is no evidence to support, the generalised allegations that the applicant is committing “economic abuse” upon the respondent. Each of the parties is of modest means.
Likely effect of changes: s 60CC(3)(d)
On the whole of the evidence, including the expert opinion of the family report writer, I am not satisfied the child would be likely to suffer significant emotional or psychological harm if he were removed from the Region E suburbs of Melbourne. I have considered the applicant’s submissions that the child has suffered significant instability as a result of relocation. I’m not satisfied that this is so. Whatever view I may take of the respondent’s conduct, I attach greater weight to the expert report on the importance of maintaining the child attachment with the primary caregiver and of the likely impact upon his established bond with his father. I am conscious that relocation will have an effect upon the amount of time which it is reasonably practicable for the child to spend when allocated between two parents who live some distance apart and that the travel time will also have an impact upon him. Those matters are an inevitable consequence of relocation and fall for evaluation in the context of the relocation principles which I have examined above.
Practical difficulty & expense: s 60CC(3)(e)
Conformably with the requirements of s 65DAA in relation to a child spending equal time or substantial and significant time with both parents, the court is required to consider whether such a proposal is reasonably practicable. If it is not, the proposal is not open.[61] The applicant’s substantive basis for his application is to preserve the status quo so that he may continue to spend five nights in each fortnight with the child. The application is entirely understandable. Maintenance of the status quo must however accommodate the principles which require that recognition be given to the right of a person to move and live in another location, including that, where appropriate, the child may also relocate when it is in the child’s best interests that he or she should continue to maintain their relationship with the person who is moving.
[61] cf MRR v GR (2010) 240 CLR 461, [13], [19].
The respondent’s submissions in relation to this issue were somewhat superficial. In particular, on an assumption that the child relocated to Town C, they were primarily addressed changeover and baldly asserted that “the father’s time with the child will not be affected”. The submission tacitly conceded that the direct consequence of relocation would introduce real practical difficulties in relation to the prospect of the child spending equal or substantial time with his father. The applicant’s submissions correctly recognised the implications of relocation included that they would present real practical difficulty both in the child being able to spend equal or substantial time with his father. I accept that the child will now need to endure travel on a regular basis which would not otherwise have occurred had the respondent not relocated. Otherwise, the submission digressed to issues of where changeover should take place and that the expense of doing so could be neutralised by providing for the parties to share driving equally.
Those matters considered, the overarching question remains as to what order should be made in the best interests of the child, treating those interests as the paramount, but not sole, consideration.
Parental capacity to provide: s 60CC(3)(f)
Paragraph 60CC(3)(f) requires the court to consider the capacity of each of the children’s parents (and any other person) to provide for a child’s needs, including to provide for their emotional and intellectual needs.
I accept the applicant’s submission that there are no factors that will affect his ability to provide for the care of the child or to provide him with a safe, physical and emotional environment. There are no factors raised in this case which would contraindicate this conclusion. However, I considered that the applicant’s submissions exaggerated the suggestion that the respondent is presently unable to provide a stable environment for the child. In reality, the child has been brought up in a house in Suburb D, the cost of which was largely borne by the respondent’s parents. Following the breakdown of the relationship, the respondent moved into her parent’s property in Town C where she is a tenant (notwithstanding that she is a co-owner in the property).
The respondent did not suggest more than that each parent could continue to provide for the child’s needs.
Maturity, sex, lifestyle, background of child and parents: s 60CC(3)(g)
I have addressed aspects of the child in some detail above. The family report indicates that the child is developing at a rate where he was unable to participate usefully in dialogue at interview. Instead, he was observed with each of his parents. I accept that the applicant has demonstrated his ability and commitment to provide for the care and welfare of the child. However, I do not accept the applicant’s submission that the child’s enrolment in primary school is such a momentous event as to constitute a significant factor in evaluating the contested issue in this case. I squarely reject the respondent’s submission that the applicant is merely focused on himself and does not listen or allow for any meaningful communication between the parents. This submission is not without irony given my findings above, including that the respondent chose to breach a court order in what can only be described as pure self-interest.
In substance, I accept that the respondent has no friends, family or other support in the Suburb D area, whereas she clearly has such support with her parents, who are relatively young, also living in that area. I also accept that the applicant is able to provide relative stability for the child where he lives and that he has the support of his own mother. While the applicant’s mother impressed me as a person who would readily lend her assistance to the respondent in relation to the care and welfare of the child, I do not see her willingness to do so as providing a direct substitute for the support which the respondent will obtain from her own parents. Moreover, she has had little contact with the respondent since separation.
Indigenous considerations: s 60CC(3)(h), 60CC(6)
These matters are not relevant.
Demonstrated attitude to and responsibilities for the child: s 60CC(3)(i)
Much of what has been discussed above, including the parties’ text messages, is applicable to this consideration.
I consider the parties attitudes to be a somewhat neutral factor in the sense that both parents have demonstrated that they take seriously their responsibility for the child. I reject the respondent’s generalised submission in relation to this issues which are critical of the applicant and that he has demonstrated a lack of insight in relation to parenthood. So much is clearly undermined by the applicant’s immediate text when the respondent informed him that the child had been hospitalised. His first reaction one was one of express empathy. His second was questioning of why he had not been told the earlier. His third pursued the topic in a responsible fashion, receiving little by way of a substantive response.
If there is a point of distinction, it clearly arises from the respondent’s breach of the order and her unilateral decision to relocate. Far from demonstrating an attitude which had the best interests of the child at the forefront of her consideration, to the contrary, it demonstrated self-interest. This is also compounded by the various steps which have been taken at frequent intervals throughout the course of this litigation to marginalise and exclude the applicant from the life of the child, including by the repeated institution of applications for IVOs.
Family violence: s 60CC(3)(j)
I have addressed this topic above and for the reasons given earlier reject, as unfounded and unsubstantiated, the respondent’s allegations of abuse.
But the avoidance of doubt, I also accept that when regard is had to the totality of the evidence relied upon by the respondent in relation to this issue, there is not a single instance where it would be appropriate to make any finding that the child has been placed at harm or exposed to any form of family violence while in his care.
Matters relevant to existing family violence orders: s 60CC(3)(k)
As the history of the matter confirms, there is presently in place an undertaking proffered by the applicant which was accepted by a Magistrates’ court to address the matters alleged by the respondent in her IVO application.
An order that would be least likely to result in the re-litigation: s 60CC(3)(l)
I have considered the finality of litigation as an important principle which informs a decision whether final parenting orders might be revisited. The same principle is an important additional consideration in relation to the question of what parenting orders are proper to make.
While I reiterate my findings above as concerned the undesirability of pursuing unwarranted allegations and the need to make orders which might assist in this respect, an order which permits the parties to supply these reasons to another court may be of some assistance.
Any other relevant factor: s 60CC(3)(m)
As noted above, it appropriate to consider the possibility of relocation under s 60CC(3)(m) as constituting “any other fact or circumstance that was relevant.”[62]
[62] Taylor & Barker, (2007 FLC 93-345, [53].
The respondent submitted that she “must be allowed to reside in Town C with the child”. The substantive basis on which this submission was made was grounded upon the presence of the significant family support which was available to her in Town C and being provided by her parents. Aside from the fact that the submission was framed as a demand, the family report supports a conclusion that it is in the child’s best interests for him to be with his primary carer.
I cannot discount the very real value to the child for the support provided by the extended maternal family for the care and welfare of the child. In terms of the practical realities of the situation, I consider that the support of the extended family is important. By contrast, the applicant is self-employed and, despite the undoubted support of his mother and extended family, the practical realities of that arrangement would not be in the child’s best interests.
Parental responsibility: s 61DA
The next issue calling for determination is the allocation of parental responsibility. Where it applies, s 65DA(1) of the Act requires that the court’s discretion in making a parenting order is to be exercised upon a presumption that it is in a child’s best interests to have equal shared parenting responsibility.[63] It does not apply where there are reasonable grounds for believing that a parent has engaged in abuse or family violence: s 61DA(2).[64] The presumption may be rebutted: s 61DA(3).
[63] Dundas & Blake [2013] FamCAFC 133, [56].
[64] Mellick & Mellick [2014] FamCAFC 236, [60], [65].
Where it is sought to be established that the presumption is rebutted, this requires significant attention to the evidence.[65] The presumption of equal shared parental responsibility that is provided by s 61DA of the Act should be applied in circumstances where the parents have, jointly, made important decisions respecting the children both during, and after, the breakdown of their relationship.
[65] Dundas & Blake [2013] FamCAFC 133, [57].
The parties were agreed in equal shared parental responsibility.
The circumstance that the respondent agreed in orders for the parties to have equal shared parental responsibility stands in marked contrast to her allegations of family violence.
Statutory pathway: s 65DAA(1)-(5)
Since the parties were agreed and as I have concluded that the parties are to have equal shared parental responsibility for the child, s 65DAA of the Act is engaged. Where a proposal is made for the relocation of a child, it should be evaluated, so far as possible, in the context of s 65DAA.[66] In applying s 65DAA, it is appropriate to canvass the advantages and disadvantages of relocation.[67]
[66] Taylor & Barker, (2007) FLC 93-345, [54]-[63], (Bryant CJ and Finn J).
[67] Taylor & Barker (2007 FLC 93-345, [58].
I have addressed the applicable principles above at [98]-[112].
It is not reasonably practicable for the child to spend equal time with each parent. The applicant quite properly acknowledged it was not feasible in the circumstances for the child to spend equal time with his parents but submitted that it was in the child’s best interests to spend substantial and significant time with him. The applicant submitted that for the child to spend substantial time with his father could only be achieved by the making of orders providing for the child to remain in the same geographical area as the applicant. It was further submitted, and I accept, that it is not feasible for the applicant to relocate to the Town C, particularly in circumstances where he conducts his business as a sole proprietor in the Region E suburbs. Moreover, the applicant pointed to the circumstance that his immediate family are also residents in the Region E suburbs. Instead, it was submitted the respondent had the “ability to reside in the Region E suburbs of Melbourne and is benefited from significant family support from the paternal family, the interest of which outweighs the consequences of a relocation to country Victoria.”
Contrastingly, the respondent submitted that it was not in the best interests of the child to spend equal time with the applicant by reason of family violence and having regard to the fact that the applicant worked full-time. Further, it was said not to be practical to spend equal time by reason of the distance between the parties’ respective residences. This submission was somewhat extraordinary. The respondent, in effect, in breach of an injunction had placed herself with the child in a residence far distant from the home which she had occupied in Suburb D and sold. Having done so, she then relied upon the distance between the parties’ residences as a basis to oppose the child spending equal time with his father, doing so in circumstances where she agreed the parties should have equal shared parental responsibility and that the child’s best interests were the paramount consideration.
Relocation raises questions as to the relative advantages and disadvantages of the child, who in this case is aged 5 years, continuing to reside in the Region E suburbs (an area where the respondent cannot afford to live), or his relocating to Town C , where he could continue to live with the person who provides his primary care and do so in a new home that has been purchased by, and is proximate to, his maternal grandparents. I do not ignore that the applicant has also purchased a new home. However, the respondent has no family or friends in the Region E suburbs whereas she has that support in Town C. Objectively, in the circumstances where the child has a loving and close relationship with each of his parents, and extended families, there are inherent disadvantages in each of the parties’ proposals. That is necessarily so since the acceptance of one would place the child at a significant distance from the other parent (and extended family). While both proposals have their pros and cons, I consider on balance that the living arrangements in Town C would be in the child’s best interests overall.
However egregious the respondent’s conduct has been, the best interests of the child are the paramount, but not sole, consideration. Having examined the primary and additional considerations to which ss 60CC and 65DAA direct attention, I conclude that the child should live with his primary carer and that it is not reasonably practicable for the child to spend substantial or significant time with the applicant.
Spend time – s 65DAA(3)-(5)
Much of what is relevant to the proper consideration of this issue has been addressed above. For the purposes of the Act, the phrase substantial and significant time is given a defined meaning that is supplied by sub-s 65DAA(3), and requires that the child should spend time on days that include, weekends, holidays and “days that do not fall on weekends or holidays.” Given the applicant’s work commitments and that he is a sole proprietor, it is not realistic, despite the undoubted support of his own mother that the child could spend substantial and significant time with the applicant as that expression is defined.
However, the further evaluation of spend time does require recognition that the applicant and his extended family have been a constant in the life of the child. There is every reason to recognise that the applicant has actively sought to be a parent who is present in, and committed to, the welfare and care of his son. In my view, it is reasonably practicable for the child to spend time with his father on alternate weekends, on special days, during holidays and at Easter. It is therefore necessary to examine this issue in deciding what relief is in the child’s best interests.
Relief – parenting
The parties helpfully provided proposed orders in two formats. The first was framed in terms which postulated that the child would not relocate and the second addressed parenting arrangements on the basis that relocation was to occur.
The court is not obliged to accept either party’s proposal as to the orders which should be made. There are at least three reasons why this is so. First, in deciding whether to make a particular parenting order, the court must regard the child’s best interests as the paramount consideration in deciding what order should be made. Secondly, in making a parenting order, the court is given power to make such order as it considers proper in all the circumstances.[68] Thirdly, it is clear that the court exercising power to make parenting orders is not bound by the parties’ proposals.[69] These conclusions are reinforced, for example, by sub-s 65DAA(7) of the Act which provides that, for the avoidance of doubt, even where the parties propose orders by consent, the court must have regard to the paramount consideration of the child’s best interests.
[68]AMS v AIF (1999) 199 CLR 160, [95] (Gaudron J), [196] (Kirby J), [218] (Hayne J), [284] (Callinan J).
[69] U & U (2002) 211 CLR 238.
In AMS v AIF, Callinan J recognised[70] that where well-intentioned parties made competing proposals, the court was presented with making difficult choices that the parties themselves were unable to make.
[70] (1999) 199 CLR 160, [295]
In U v U,[71] Gummow and Callinan JJ (in whose reasons Gleeson CJ, McHugh and Hayne JJ agreed) observed that, not uncommonly, there would be cases in which it would not be possible for the court to adopt exclusively, or perhaps even substantially, a proposal of either party and that it was not bound to do so. Hayne J considered[72] it would be quite wrong to treat a parenting decision as being confined to the party’s proposals. I do not understand the High Court to have suggested that a trial judge will be presented with making any less difficult choices where the competing proposals were presented by parties who may not be well-intentioned. Those considerations are very much alive in this case.
[71] (2002) 211 CLR 238, [70], [80].
[72] (1999) 199 CLR 160, [171]
The importance of considering whether some proposal other than that of either party is appropriate in all the circumstances is clear.[73] In Cooke & Morton,[74] the Full Court observed that a child’s best interests lie at the centre of parenting proceedings, rather than upon any assumed right, interest, entitlement or privilege of a parent. Neither party may arrogate to himself of herself an assumed entitlement to insist on what parenting arrangements must be made. The best interests of the child remain the paramount but not sole consideration. Inherent in the discretion in making parenting orders is that the task is evaluative, necessarily predictive and involves assumptions where no one answer is the only, or could be the only correct, available order to be given.[75] The court seeks to make orders that would most likely promote a meaningful relationship with the children. It cannot make orders that will ensure such a result.[76]
[73] Heath v Hemming (No.2), [2011] FamCA 749, [104] (Kent J).
[74] (2018) FLC 93-820, [41].
[75] Kulat & Azzarudin [2018] FamCAFC 97, [39]; CDJ v VAJ, [151]-[152].
[76] cfChampness v Hanson (2009) FLC 93-407, [103].
Parties are entitled to be afforded an opportunity to make submissions in respect of orders which are under contemplation. Such an opportunity was afforded in this case. The parties’ Outlines of Case identified the proposed orders that were being sought. They were addressed in the context of the existing orders as to which the parties were clearly also on notice. Each of the parties led evidence and was cross-examined in relation to their particular proposals and in the course of closing submissions, their proposed orders were addressed.
There were a number of orders in which the parties were agreed and will be made. Relevantly, they were agreed that if relocation was to occur, having regard to the two hour travel distance between the parties properties, changeover should occur at Suburb A which is ~70km distant from both properties. This was a sensible solution as it provided a central point that would eradicate travel directly across metropolitan Melbourne. To the extent that the travel will be a burden, changeover in this locality will minimise the extent of that burden.
However, the respondent made a number of proposals which I have considered and rejected. In particular, she sought an arrangement for Christmas Days, which contemplated child would spend the entirety of Christmas Eve, Christmas Day until morning of Boxing Day with one parent in one year and the child would then spend the corresponding period with the other parent in the following year. The submission was made on the stated basis that it would be to the parties’ mutual advantage, and that of the child, for them not to be involved in driving and changeovers on Christmas Day. To my mind, the submission was not sufficiently child focused. As discussed with the parties in the course of submissions, that for a child, Christmas Day is a day of particular excitement where familial connections are a central part of their childhood experience. In this case, it is common ground that the child enjoys a close bond not only to each of his parents, but to his extended family. I do not accept the respondent’s proposal as to this. The respondent also sought to retain the spend time arrangement for Christmas 2019 on the same terms as had operated in 2018. I consider that reciprocity is required and have made orders accordingly.
The respondent also made a proposal that both parties participate in therapeutic counselling. This had not been raised by her before closing address in any form, whether by various amended responses, her Outline of Case or evidence. It seemed to represent some sort of afterthought only during the course of evidence in re-examination. Another feature of the respondent’s belated proposal was that this counselling should be undertaken at the applicant’s expense. Having regard to the findings, in particular as concerns the respondent’s escalating perceptions of family violence, it may be that the more immediate and appropriate concern is to address counselling for the respondent.
I have given consideration to how the child’s relationship with the applicant can be maintained in light of relocation and what orders can promote this outcome. I consider that the child should also spend Easter in each year with the applicant. This is a time when, as a self-employed person, his work commitments are unlikely to intrude and so the child will be able to spend some extended time with his father and the paternal family.
In addition, I consider that an injunction is required both in relation to further relocation and as concerns an Airport Watch List. Given the history of the matter, including the respondent’s disinclination to inform the applicant of her plans, it is appropriate to do so.
I also propose consider it appropriate to provide an order pursuant to s 68P of the Act so as to accommodate any issues arising in relation to the series of IVOs that have been sought.
Conclusion
I have considered each of the orders as proposed by the applicant and respondent. I have made the orders that I consider appropriate in the best interests of the child. Otherwise, I have concluded that final parenting orders should be made for the reasons as set out above.
I certify that the preceding one hundred and eighty-two (182) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 9 December 2019
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