BANFIELD & OAKFORD

FEDERAL CIRCUIT COURT OF AUSTRALIA

BANFIELD & OAKFORD

[2020] FCCA 1289

Catchwords:
FAMILY LAW – Parenting – where the father lives in City B – where the mother lives in Town C in central Queensland – where the parents lived in City B prior to separation – where the mother unilaterally moved to Town C with the children following separation (7 hours’ drive from City B) – best interests – children aged 4 years and 2 years – where the children’s attachments and relationships with the parents (in particular the father) was the subject of close scrutiny and expert evidence – a consideration of “meaningful relationship”.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

MRR & GR (2010) 240 CLR 461

Simpson v Hartnett (No.10) (2007) 215 FLR 155

Godfrey v Sanders (2007) 208 FLR 287

Sigley v Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22

McCall v Clark (2009) 41 Fam LR 48

Mazorski & Albright (2007) 37 Fam LR 518

Champness & Hanson [2009] FLC 93 – 407

Collu & Rinaldo [2010] FamCAFC 53

Smith and Smith (1994) FLC 92-488

Applicant:

MR BANFIELD

Respondent:

MS OAKFORD

File Number:

BRC 9222 of 2018

Judgment of:

Judge Howard

Hearing date:

20 February 2020

Date of Last Submission:

20 February 2020

Delivered at:

Brisbane

Delivered on:

22 May 2020

REPRESENTATION

Counsel for the Applicant:

Mr Thomas

Solicitors for the Applicant:

Fallu McMillan Lawyers

The Respondent attending as a self-represented litigant.

ORDERS

That each party shall provide a copy of a proposed Final Order (reflecting the Reasons for Judgment) to each other party by 4:00pm on 4 June 2020.
That the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on 11 June 2020.
That in the event the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph (2) – the matter shall be listed for Mention and each party shall attend personally along with their legal representative (if any) on a date to be fixed by the Court.

IT IS NOTED that publication of this judgment under the pseudonym Banfield & Oakford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 9222 of 2018

MR BANFIELD

Applicant

And

MS OAKFORD

Respondent

REASONS FOR JUDGMENT

A.The Court commenced delivering these Reasons for Judgment ex-tempore on 20 February 2020 and indicated that it would reserve its decision and conclude delivering these Reasons for Judgment subsequently and publish them in writing to the parties. On 20 February 2020 the Court explained this process to the parties. These are now the published and settled Reasons for Judgment.

The application before the Court relates to a parenting issue involving two young children, X born in 2015 and Y born in 2017. The parties in this case are the applicant father, Mr Banfield, and the respondent mother, Ms Oakford.
The parties commenced living together in approximately 2008 – 2010. They separated on a final basis in May 2017. This was prior to the birth of Y.
When Y was only four months old, the mother, against the express wishes of the father (communicated in writing by the father’s Solicitors to the mother), relocated the residence of the children to the town of Town C in central Queensland. The drive from City B, which is where the father lives and where the couple lived when they were together, to Town C is approximately seven hours one way. The father commenced proceedings seeking an order from the Court that the residence of the children be relocated back to the City B area. The mother would like the Court to order the children be permitted to remain living with her in the town of Town C.
The father’s primary proposal is that the children relocate to the City B area. The mother has given evidence that she will move back to City B if the children are ordered to be in City B. In those circumstances, the father’s proposal is that the children would, over the course of the next 12 months, increase their time with him in a graduated way leading up to equal time between the mother and the father. The mother’s primary proposal, as I said, was for her to remain living in Town C with the children and for the children to see their father – (her initial case, as I understand it), was every second weekend. But she suggested during her submissions that it could be once every three weeks if every second weekend was too much.
At the moment, it is once every four weeks. It is once every four weeks because the father has deemed, quite correctly, that the drive is so long between Town C and City B that it is not in the best interests of the children to require them to be travelling more often over such a long distance. At the moment, when it is once a month, the changeover is on a Thursday in Town D and again, then, on the Monday in Town D. That is possible at the moment because X has not started prep. But X starts prep in January 2021. Once that happens, it will not be feasible for the children to be travelling on weekdays. X will need to be in a town where she can attend school on a weekday.
The Court, in making a parenting decision, has to have regard to the provisions of the Family Law Act 1975 (Cth) (“the Act”). I note, in particular, section 60CA:-
“60CA. In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.”
Section 60CC then sets out how it is that a Court is to determine what is in a child’s best interests. 60CC(2) states:-
“(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

(2A) In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (2)(b).”

Section 60CC(2)(a) refers to the benefit to the children of having a meaningful relationship with both of their parents. There are benefits to these children in having a meaningful relationship with both of their parents. The current status of the children’s relationships with their parents requires close consideration.
The family was interviewed by Mr E, the family report writer. It is apparent that the children have a close and loving relationship with their mother, with whom they live on a full-time basis. The mother’s attachments with the children are secure. She is the primary attachment figure. She is the primary carer.
I do need to point out one very important aspect of the evidence in this regard. The child, X, has a firm attachment with the father, as noted by the family report writer. On the other hand, Y was very young when he left City B. Herein lies one of the very great dangers when one parent moves a long distance from another parent, especially when the child or children are so very young.
The mother had given evidence at one stage that she had not left City B until Y was four months old so that there was four months for the father to “bind to Y”. They are the words used by the mother. Unfortunately, this evidence, along with a significant amount of other evidence in the case indicates to the Court that the mother lacks insight in relation to the best interests of these children. I infer from what was stated by Mr E, that four months is a very long way from being old enough to have formed a proper attachment and a proper bond between Y and the father. It is that terribly important aspect of the young boy’s attachment to his father which is of concern to the Court. In fact, Mr E was so concerned about Y’s attachment to his father that it leads the Court to draw an inference from the opinion of Mr E (and from other evidence) that Y’s relationship with his father is not likely capable of being described as a "meaningful relationship” - which is the term used in the legislation (in section 60B(1) and 60CC(2)(a)). In relation to the children’s attachments to the parents I have considered this question (and section 60CC(2)(a)) in more detail later in these Reasons the Judgment when considering section 60CC(3)(m).
Section 60CC(2)(b) relates to – the need to protect children from various forms of harm. There is no significant evidence that these children have been subjected to or have been exposed to any form of harm or neglect or family violence. To the extent that there was any family violence in the relationship between the parents – neither parent specifically drew this to the Court's attention during the course of the hearing. It was not an issue that loomed large in this case.
The additional considerations are noted in section 60CC(3). As to section 60CC(3)(a) – the children are too young to express any meaningful views. In relation to section 60CC(3)(b) – that subsection states:-
“(b) the nature of the relationship of the child with:
(i) each of the child's parents; and

(ii) other persons (including any grandparent or other relative of the child);”

Section 60CC(3)(b) refers to the nature of the relationship of the child with each parent. I already have made mention of the nature of the relationship between the children and their mother and their father. I will return to that issue later in these Reasons for Judgment. This subsection also relates to the children’s relationship with other persons. The father’s evidence is (essentially) that the children appear comfortable with their stepmother, Ms F. Ms F gave evidence at the final hearing and was an impressive witness. There is also evidence from the father, which I accept, that the children (essentially) appear to enjoy seeing other members of the paternal family, all of whom live in the City B area.
There is evidence from the mother that the children have a good relationship with their first cousins – the children of the mother’s sister, Ms G. Those children live in the City B area. The children in this case spent the day of the final hearing with the mother’s sister, Ms H, who is a health care worker at Suburb J. I infer from that evidence the children have a good relationship with Aunty Ms H. The mother, in her own evidence, has confirmed her own very good relationship with her own father. It is quite clear to me that the children have a good relationship with the maternal grandfather. The mother’s own personal relationship with her mother, so the mother maintained, is not as good as it used to be.
In any event, it is undoubtedly the case that the children the subject of these proceedings have a close and loving relationship with quite a number of members of the maternal family. There is, in fact, no evidence of the children’s relationship with their maternal grandmother. It would have been incumbent upon the mother in this case to put on evidence if it was anything other than a good relationship as far as I am concerned. I will return to that point of the mother’s own relationship with her family later in these reasons for judgment.
Section 60CC(3)(c) states:-
“(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;”
As to section 60CC(3)(c) – both parents have taken every opportunity to participate in making decisions about the children and to spend time with the children and communicate with them. The mother, of course, has been their primary carer and has been involved with them since birth. The father has very much wanted to be involved with the children.
I note that the father took things hard after the breakdown in May 2017. There was, in fact, even, on the evidence, a suicide attempt and an admission to hospital. The father has sought and obtained medical help. He took anti-depressants. He has a doctor near where he lives with whom he keeps in contact. The father gave evidence today. He seems very well settled in his job and in his family life. He is a tradesman in a business partnership with another person. His life partner, Ms F, works in that business as a tradesman’s assistant normally. Ms F is about to give birth to the couple’s first child. The father was an impressive witness. I am satisfied that he has addressed his mental health issues and he has also addressed (i.e. stopped) his previous illicit drug use.
Subject to that period of time where the father was not well, the father has wanted to be involved in their lives. That could not be clearer. I find as a fact that the father became aware that the mother was definitely moving to Town C on 21 January 2018. I accept the father’s version of events in that regard. The father instructed solicitors who then wrote to the mother as soon as 25 January 2018. Those solicitors set out very clearly to the mother the father’s view that he was strongly opposed to the mother’s relocation of these two very young children to such a long distance away from the town where they were born and where the maternal and the paternal families, not to mention their father, lived.
There is nothing particularly relevant in relation to section 60CC(3)(ca). Both parents maintain the children when they are with them. The father has been behind on child support but he has a program to catch up – a repayment plan.
Section 60CC(3)(d) states:-
“(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;”
In the town of Town C the mother has developed friendships. She may have even had friendships with people from that town before she moved there. The mother has no relatives in that town and there are no members of the paternal family there.
If the children’s circumstances change and they come down to City B, the likely effect of the children is not actually going to be a separation from anybody except, perhaps, some of their friends in Town C. They will be moving back to the area that they were born; where all of the paternal family live; where all of the maternal family live (at least those who are important to the lives of these children); where their father lives; where their new sibling who is about to be born will live.
Section 60CC(3)(e) states:-
“(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;”
In relation to practical difficulties and expenses, at the moment the practical difficulties and expenses of the children spending time with their father are immense. I repeat – immense. The children live approximately a 14 hour round trip from their father. There is no evidence of the availability or the cost of airfares. Unfortunately, we do not have the benefit of a fast train system in this country. The only way to get there is to drive. The children, if they were to see their father regularly, would have to spend a significant amount of time on the country roads driving with their mother and their father. There is the expense of fuel, wear and tear on motor vehicles and various other expenses involved in long distance travelling. Of course, if the children are living in the same town with both of their parents, these practical difficulties and expenses disappear. There is no longer an issue.
Section 60CC(3)(f) states:-
“(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;”
As to the capacity of the parents to provide for the needs of the children including emotional and intellectual needs. I do think that they have both got the capacity to provide for the needs of the children including their emotional and intellectual needs. Both parents want to be involved to a large extent in the lives of the children.
Section 60CC(3)(g) states:-
“(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant;”
One aspect of the evidence that relates to section 60CC(3)(g) is the fact that in the child Y is so young. He is so young that in order to secure his attachment with his father, the family report writer’s evidence is that there needs to be more frequent visits than once every four weeks. I will expand on this aspect later in these reasons.
My attention has not been drawn to any evidence that would make section 60CC(3)(h) relevant. The parties should inform the Court if there is in fact any Aboriginal or Torres Strait Islander heritage.
Section 60CC(3)(i) states:-
“(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;”
In relation to Section 60CC(3)(i) – there is one important aspect of parenthood which the mother has not accepted. One of the responsibilities of a parent is to foster and support the child’s relationship with the other parent – so long, of course, that it is consistent with the best interests of the child. In this case, we have a father who wants to be involved in their lives, who has demonstrated an ability to care for them, who has demonstrated a close, loving and meaningful relationship with X and who loves Y and very much wants to develop a meaningful relationship with Y. So in terms of the responsibilities of parenthood, it seems to me that in that area that I have just highlighted it has been somewhat lacking so far as the mother is concerned.
My attention has not been drawn to any evidence that would make section 60CC(3)(j) or (k) particularly relevant in these proceedings.
Section 60CC(3)(l) states:-
“(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;”
In the present circumstances – if the mother were to be permitted to remain living with the children in Town C, I can foresee, as the children get older, a further application by the father for more time with the children.

Section 60CC(3)(m) – any other fact or circumstance that the Court thinks is relevant.

After proceedings were instituted, the matter came before the Court and the Court ordered the preparation of a memorandum by the Family Consultant, Ms K. The family consultant's memorandum is exhibit 2. Ms K noted the children interacted positively with their father. X was excited to see her father, ran to him for a cuddle. X was affectionate, interactive and confident with her father. X listened to the father’s instructions without protest. Y was woken from a sleep to be observed with his father. He was content to sit on his father’s lap whilst he was waking up. He smiled, explored the room and was affectionate with his father once fully awake. He also listened to his father’s instructions. The father was appropriate with the children. He was highly interactive with them, leading and following play. He was encouraging, made suggestions and also ensured the children were safe. For example, he told Y to be careful not to accidentally hit X with a toy he was waving around.

Importantly, at that stage both parents had reported to the family consultant that Y was developing his relationship with the father. The mother thought that the child was hesitant at changeovers and sometimes slightly unsettled when he returned from visits with the father. The mother thought this (i.e. being unsettled when returned to the mother) might relate to him being tired. The reference to the child being "hesitant at changeovers" relates to the child moving from the mother’s care to the father’s care. At the time that the family was interviewed by Ms K Y was only aged 16 months.
Ms K interviewed the family on 8 January 2019. Ms K provided a written memorandum (exhibit 2). In her written memorandum Ms K stated – inter-alia,
“The distance between Town C and City B is over 500kms. The father reports it is a 14 hour round trip whereas the mother states it is a 10 hour round trip. Regardless, this is a significant distance for the children to spend weekend time with their father.
The mother has stated that if orders are made that the children spend time with their father which would make it unviable for them to remain living in Town C she would relocate with them to Town D. Her partner’s family live in Town D. The father accepted this proposal.”
The mother’s relationship with Mr L has ended and this will be referred to again shortly.
Ms K also noted in her written memorandum, in relation to the children’s relationship with the father:-
“The children appear to have a positive developing relationship with their father. It is in their interests for them to have the opportunity to further strengthen their relationship with their father. At their age, the children ideally need to spend regular and frequent time with their father for this purpose. It is my opinion that the distance between the mother and father’s home is not conducive to this. The mother’s primary motivations for relocating appear to be familial and because she likes the area. The mother has suggested that if required she can relocate to Town D, which is closer to the father’s residence.
The children’s friendly and vivacious presentation suggests that they would easily transition to a new environment if Court orders were made that the mother relocate closer to the father. The mother is likely to experience some adjustment issues but reported she would have the support of her partner’s family and she also has some social support in the City B area.”
I note the family report writer, Mr E, saw the family in October of 2019 and provided a family report. That family report is exhibit 3 in these proceedings. Mr E gave evidence at the final hearing. As I said earlier, one of the important issues noted by the family report writer is the fact that Y was so young when the mother took him to live with her in Town C that his attachment to the father is not as secure as X’s and needs to be made more secure. Mr E made the following observations of the children with their father and mother in his written family report. The family report writer noted at paragraphs 76 and 77:-
“OBSERVATIONS OF INTERACTIONS
Observation of X and Y with Mr Banfield and Ms F
76. Mr Banfield and Ms F attended with X and Y for their interview. Both were suitably attired and X and Y presented as healthy and happy. Y was content to sit in Ms F's lap while X drew pictures at the table. There were no demonstrated issues with the contact between X, Y and Ms F and Mr Banfield, with X demonstrating a more secure attachment with her father than Y.”
Observation of X and Y with Ms Oakford
77. Ms Oakford attended the rooms without her partner with both children, she was suitably attired and X and Y presented as healthy and happy children. X was content in playing with the various toys and drawing paraphernalia that was supplied on the day. Y, whom demonstrated a close attachment with his mother, would not leave his mother choosing to sit beside her playing with the large Lego blocks on the table.”
Mr E did state in paragraph 75:-
“Children's relationships
75. X and Y presented as settled in both parent's care demonstrating a close and secure attachment. X displayed a closer attachment with Mr Banfield than Y and a more relaxed, but secure attachment with Ms Oakford. X displayed a close connection with her brother on both occasions.”
The evidence in the written report is that the children demonstrated, "a close and secure attachment." But this was not, in fact, borne out during Mr E's oral testimony. At page 46 of the transcript (20 February 2020) from line 18 I note the following evidence from Mr E when he was under cross-examination by Counsel for the father, Mr Thomas. The relevant evidence is as follows:-
“MR THOMAS: You – in your report, you talk about, Mr E, the attachment between X and the father and Y and the father, and the way you describe that attachment, as I understand it, is that Y’s attachment is not quite as secure as his big sister’s, that is, Y’s attachment to his father; is that correct?
MR E: I’m just having a read of that. Correct. Yes.
…
MR THOMAS: All right. So as I understand, you say that there is an attachment between Y and his father?
MR E: Yes.
MR THOMAS: And there’s no issues with them spending time together, no issues that were demonstrated to you?
MR E: No. What I’m trying to explain in there is that whilst there’s – there’s no issues with the attachment. The attachment wasn’t as secure as it would normally be if he was having more time.
MR THOMAS: Yes. And so the only way to improve the security of that attachment is for Y to spend more time with his father, isn’t it?
MR E: That’s correct.
MR THOMAS: And the circumstances which presented themselves, that is, the fact that Y presented with a less secure attachment to his father, is not surprising, is it, having regard to the fact that mum and dad were never living together after Y was born?
MR E: That’s correct.
…
HIS HONOUR: … The child, Y, was four months old when the mother went to Town C.
MR THOMAS: Yes.
HIS HONOUR: Go ahead?
MR E: I have no problems with that. The lack of attachment due to the – the time apart will explain the – the observation on the day, and that’s what I was trying to get across. It can be improved by just the time – more time being spent together. That attachment will improve over time.
MR THOMAS: And the only way it will improve is by there being more time with the father; correct?
MR E: Yes. Significant time and fruitful time. You know, it has got to be productive.
MR THOMAS: One weekend a month is probably not satisfactory?
MR E: Not in my books it is. No.
MR THOMAS: And?
MR E: Not in my professional opinion.
MR THOMAS: Certainly just periods during school holidays and maybe one weekend during the school term certainly wouldn’t be anywhere near enough time to develop that secure attachment that would be in Y’s best interests, is it?
MR E: Not given the geographical distance and where everyone lives. No.”
Whereas Mr E had used the words “X and Y presented as settled in both parent's care, demonstrating a close and secure attachment…” in paragraph 75 of his written report – it became apparent from his oral testimony that his evidence required further explanation. He confirmed that there is “an attachment between Y and his father”. But he did point out that, "the attachment wasn't as secure as it would normally be if he was having more time”. I note in particular page 46 of the transcript.
Then, at page 47 of the transcript Mr E actually talks about “the lack of attachment” – between Y and the father. He then states that he observed this on the day (of the interviews) – and that was what he was trying to get across in his written report. Frankly, the report writer should have been clearer in the written report. Certainly, his evidence became clearer as a result of his oral testimony. Nowhere in the written report had he referred to “the lack of attachment due to the…time apart” in relation to the relationship between Y and the father.
The words "meaningful involvement" and "meaningful relationship" require further consideration. The word "meaningful" is used in both section 60B(1)(a) and in section 60CC(2)(a). In section 60B(1) it reads:-
“60B. Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and…”
As previously noted, the first stated primary consideration in section 60CC(2) requires the Court to consider:-
“60CC(2)(a) the benefit of the child of having a meaningful relationship with both of the child’s parents…"
In McCall v Clark (2009) 41 Fam LR 483 the Full Court noted that the Family Law Act 1975 does not contain a definition of "meaningful". The Full Court stated, inter-alia:-
“109. The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship”.
110. It is necessary we construe the language of the statute to determine whether the import of the legislation is clear without reference to extrinsic material.
111. The Macquarie Dictionary defines the adjective “meaningful” as “full of meaning, significant. Significant is defined as “important; of consequence”
112. The Shorter Oxford English Dictionary defines “meaningful” as “Full of meaning or expression; significant …” “Significant” is defined as “Having or conveying a meaning; Expressive; suggesting or implying deeper or unstated meaning … important, notable; consequential ...”
113. We turn first to the objects clause (s 60B(1)). The purpose of an objects clause is “to indicate the intended purpose of the legislation” (Pearce, D C & Geddes, R S, Statutory Interpretation in Australia, 6th ed, Lexis Nexis, Australia, 2006) The learned authors further note at 4.42… “objects clauses are used as an aid to the construction of words of legislation. Gleeson CJ referred to the legislative declarations of the objects of an Act as giving practical content to abstract terms such as ‘reasonable’, ‘justification’ and ‘satisfactory’ in Russo v Aiello (2003) 215 CLR 643 at 645”.
114. Section 15AA of the Acts Interpretation Act 1901 (Cth) provides for a purposive construction of a statute.”
The Full Court in McCall v Clark (supra) then went on to consider other decisions of the Family Court, including Mazorski & Albright (2007) 37 Fam LR 518. In Mazorski & Albright (supra) Brown J stated the definition of "meaningful" and then stated:-
“26. What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.”
In McCall v Clark (supra) the Full Court went on and concluded (in relation to section 60CC(2)(a)):-
“118. It appears to us that there are three possible interpretations of s 60CC(2)(a):
a. one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (‘the present relationship approach’);
b. a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (‘the presumption approach’); and
c. the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (‘the prospective approach’).
119. We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is ‘the prospective approach’ although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
120. We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.
121. In coming to our conclusions we accept as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazsorski. Consistently with our conclusions we also agree with the reasoning of Bennett J in G & C.
122. In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.”
I note that the Full Court stated that the preferred interpretation is the “prospective approach”. But in the present case I have come to the conclusion that the Court should adopt the present relationship approach. This is because of the particular factual circumstances currently before the Court. The child in question is only two years old. The mother relocated Y’s residence to Town C when Y was only aged four months. As noted, the mother told the family consultant (Ms K) that Y was hesitant at changeovers. It is clear from the report that this is when the child is moving from the mother to the father. This is not surprising. It accords with the general impression of the family consultant and the family report writer. The "lack of attachment" referred to by Mr E and the evidence of the mother that the child is hesitant when moving from her care to the father’s care leads the Court to conclude that as at the date of the final hearing it cannot be said that Y has a meaningful relationship with the father. It is not a significant relationship. If the prospective approach (referred to by the Full Court in McCall v Clark (supra)) is applied in the present case – the outcome is the same. The mother wants to stay living in Town C. This is seven hours’ drive from City B. Given that the child does not yet have a meaningful relationship with the father it is unclear as to how a meaningful relationship could be developed between Y and the father if Y stays living in Town C with his mother. Because of the distance it would only be possible for there to be time between Y and the father one weekend per month. The family report writer did not think that was sufficient to address the "lack of attachment". Having come to the conclusion that it will be in the best interests of Y (and, indeed, X) for there to be a relocation away from Town C – the evidence points to a relocation to City B and not to anywhere else. The reasons for that are as noted in this judgment.
There can be no doubt that there are benefits to both X and Y in having a meaningful relationship with both their father and their mother.
In Champness & Hanson [2009] FLC 93-407 the Full Court noted at paragraph 191:-
“191. The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constituted a ‘meaningful relationship’.
Therefore, it is a matter for the Court to determine whether, in any given set of circumstances, a meaningful relationship exists (presently) or is likely to exist (prospectively). For the reasons stated I have come to the conclusion that in relation to the child Y and the father there is no current meaningful relationship and nor is there likely to be a meaningful relationship if the child stays living in Town C. I appreciate what the Full Court has said in relation to relationships not having to be optimal (Godfrey v Sanders (2007) 208 FLR 287 and Sigley v Evor (2011) 44 Fam LR 439). The real problem here, is that the relationship between Y and his father cannot be said to be meaningful.
In Collu & Rinaldo [2010] FamCAFC 53 at paragraph 355 the Full Court stated:-
“355. However, as we have observed, in determining best interests the obligation is to ‘consider, weigh and assess the evidence touching upon each of the relevant matters adduced on behalf of the parties. After a consideration of all those matters, a trial Judge should then indicate to which of those matters he or she attaches greater significance and how all of those matters balance out’: Smith and Smith (1994) FLC 92-488.”
In the present case I attach greater significance to the consideration of the benefit to the two children of having a “meaningful relationship” with the father. This is especially so when considering the relationship between the father and Y.
If my conclusion in relation to the “meaningful relationship” between Y and the father is not correct – it will make no difference to the outcome of this trial. There is an abundance of other evidence which leads the Court to conclude that it is in the best interests of both of these children to move from Town C back to City B.
When the family saw Mr E in October 2019 – I note that, despite her best efforts, the mother was unable to convince her then partner, Mr L, to attend at the family report interviews. I must say that does not reflect well on Mr L. It sounds very much like Mr L, himself, personally, had no intention of being a long-term fixture in the lives of these children. In any event, when the mother saw the family report writer, she told the family report writer that her relationships with the maternal family in City B were extremely strained and her strong desire was not to return to City B.
At the time of the family report interview – the mother was in a relationship with Mr L in Town C. Mr L’s family are from Town D. A compromise position (namely, Town D) was put forward both at the time of the family consultant’s interview in the beginning of 2019 and subsequently at the family report interview. The compromise position was the town of Town D. That is, the mother states that if she had to leave Town C her preference was to relocate to the town of Town D. The mother’s primary proposal – and the proposal on which the trial proceeded – was her proposal to remain living with the children in the town of Town C.
Mr E gave evidence that his recommendation of a relocation of the children to Town D was based on the fact that he understood that the mother’s then partner, Mr L, had family in Town D and she would have support in Town D. In addition, it was based upon the fact that he did not think that the mother had any relationship with her own family in City B.

Some important facts have changed since the time of the family report. To start with, the mother’s relationship with Mr L ended at the end of 2019. At the time of the final hearing the mother was living in Town C; doing a limited amount of part-time work in a small business; and did not have a partner (the relationship with Mr L having been terminated). The mother does have friends in Town C and the mother wants to stay in Town C for the lifestyle.
As noted, the mother also seemed to put a submission to the Court that she would prefer to move to Town D rather than back to City B. That does not seem to me to be viable in the long term. It is not a sensible argument to put before the Court. The reason that Town D was part of the plan at one stage – as noted by Mr E – related to the continuance of the relationship between the mother and Mr L. Even though the mother in this case may continue to be on friendly terms with Mr L’s stepmother and father in Town D, it does not change my view. Mr E put forward Town D when he thought there was actually a proper connection to Town D. There is no real connection to Town D. In fact, the mother did not lead sufficient evidence in relation to a move to Town D to even allow the Court to make findings concerning reasonable practicability in the context of section 65DAA.
There is another change of circumstances which has fundamentally led Mr E to change his opinion. That evidence was elicited from the mother during the course of the hearing.
When the mother was at the bar table as a self-represented litigant, I had asked her about her own relationship with her family. The indication that she gave to the Court was that it was highly conflictual. The view that I have formed is that the mother has attempted to mislead the Court in this regard. The mother, when she was in the witness box under cross-examination, gave evidence that she came down from Town C two days before the trial. The mother stayed with her family in City B. The mother told me in answer to a question I subsequently put to her that she had telephoned her father to ask if she could stay at the family home with him and her mother in Suburb M – and he said “of course”. And that is where the mother went with the children and that is where the mother stayed during the course of the final hearing.
I also note that the mother gave evidence that when her children met again with their first cousins – the children of her sister, Ms G – X and Y were excited. I have also made reference to the fact that on the day of the hearing, the mother’s sister, Ms H, who is a health care worker, took the children (X and Y) to Suburb J.
I consider that it is more likely than not that, even if, at some stage, the mother’s relationships with her own family were strained, the view that I have reached is that it is much more likely than not that these relationships have healed or they are in the process of healing. Otherwise, why on earth would the mother go to stay at the maternal household at Suburb M? Why would she even ring them if she was so concerned about the alleged toxic nature of the relationship? The mother says it has to do with cost. I do not accept that. The mother has other friends. She said she could not stay with her friend, Ms N, because she has moved in with her sister or some such reason. Again, I just do not accept it.
The reality, it seems to me, is that the mother has put forward this idea that her relationship with her own family was so diminished that she could not bring herself to return to live in City B. And, yet, here she is staying overnight in the house of her own parents.
Mr E, the family report writer, having been updated in relation to the change of circumstances – said he could not see why the preferred town would not be City B. City B is the preferred town for the children to live in so that they can have the support and love of their mother and their father.
I note the evidence of Mr E contained at page 45 of the transcript. From line 35 Mr E gave the following evidence:-
“MR THOMAS: If she didn’t have support from her partner’s parents because she’s no longer in a relationship with him, she would have – there would be no benefit to her remaining in Town D from your perspective or in your opinion?
MR E: No. With the circumstantial change in the matter now, there wouldn’t be. The support would be with her immediate family by the sounds of it. Therefore, I shouldn’t see any reason why the move back to City B couldn’t happen.
HIS HONOUR: Sorry. Say that again?
MR E: Given the change in circumstances…
HIS HONOUR: Yes?
MR E: …she would have support from her family. So I couldn’t see why the move back to City B wouldn’t be the better option. I mean, that is a major change in circumstances.”
The family report writer essentially said that moving back to City B is the better option for these children. I accept this evidence of Mr E and I accept his opinion that the best interests of the children are served by returning to live in the City B area. He also spoke of a gradual increase in their time with their father and thought that over the course of a year this would definitely be ample time to graduate up to an equal time arrangement between the parents in City B or the City B area. As noted, when the family report writer was updated, he stated that he considered that there had been major changes in circumstances. That is, the evidence that the mother was staying at her own parents' house and the evidence that the mother is no longer in a relationship with Mr L. The family report writer only found out this information very recently – when he read the trial material.
As noted, the family report writer was particularly concerned in relation to young Y’s attachment to his father. Mr E said that seeing the father once every month was (essentially) "not sufficient". No other suggestion was put to him. Although, it seems that his view would be that alternate weekends would be better than once a month. But that was when he had in mind the mother relocating to Town D. The mother still says she would prefer to relocate to Town D than to City B. But, for the reasons that I have stated, noting the very forceful opinion and the persuasive opinion put forward by the family report writer – the best interests of the children will be served if they are living in the town of City B.
Another important aspect highlighted by the family report writer was the importance of the children developing an attachment and a bond with their sibling who was about to be born at the time of the final hearing. That aspect was mentioned more than once by the family report writer.
One of the issues here is the ability of the parents to foster and support the children’s relationship with the other parent. In particular, the spotlight is on the mother. I do not have confidence that the mother would foster and support the children’s relationship with their father if the mother remains living in Town C with the children. My view in this regard is strengthened by a number of things that have already occurred.
When Y was only four months old the mother thought it was okay to take him away – all the way up to Town C away from the father. They are not the actions of a person who is focused upon fostering and supporting that child’s relationship with the father. In fact, they are the actions of a person who has no intention of fostering and supporting the child’s relationship with the father.
I have no confidence that the mother will foster and support the children’s relationship with the father – in the absence of an order that the children return to City B. I have no confidence that she would do it. I was not impressed with her veracity (i.e. her truthfulness) as a witness. I have already made that point. I accept the father’s version of events as to when he was told the mother was going to Town C. I consider that the mother has attempted to mislead the Court in relation to her own relationship with her own parents and her sisters.
The other aspect that causes me concern about the mother’s ability to foster and support the children’s relationship with the father is contained in the history. When the mother was still in City B, she commenced a relationship with a Mr O from City P. Her first plan was to leave City B and go to live in City P – at least a 10 hour drive away. The other plans were to go to Town Q or Town C. The mother looked at three different places. Town Q would have been the closest in terms of driving from City B. Town Q, Town C and City P.
The mother does not reflect on her actions. The mother does not think deeply about her actions or the impact that her actions may have on other people – in particular the children and the children’s relationship with the father. The mother does not plan ahead very far. I am very mindful of the comments made by the Full Court of the Family Court in relation to freedom of movement (Simpson v Hartnett (No.10) (2007) 215 FLR 155) especially at page 59). However, I am focusing here, on this mother’s willingness to foster and support a relationship with the father. It is one thing for a parent to say, “Yes, I support a relationship with the father. Yes, I support the children in relation to their relationship with the father.” But to remove the children to such a distance speaks volumes. Actions speak louder than words. To put forward an argument that every second weekend is possible – between Town C and City B – once again shows that the mother lacks insight. To be fair to the mother, I do note that she has told the Court that if the Court orders that the children return to City B then she will also return to City B. The mother is to be commended for that decision.

Equal shared parental responsibility and section 61DA and section 65DAA

The parties agree and it is in the best interests of these children for there to be in an order for equal shared parental responsibility. The presumption in section 61DA has not been rebutted in this case.
The Court is then required to consider section 65DAA. That section states:-

Section 65DAA “Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

Equal time

65DAA(1) 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.

Substantial and significant time

65DAA(2) Subject to subsection (6), if:
(a) a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b) the Court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the Court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”

On the evidence of Mr E, it is clearly the case that an order for substantial and significant time at the outset followed by an order for equal time is in the best interests of these children. They are so young that they need to see their father on a frequent basis to ensure that they develop proper bonds as the years progress. They already have a good bond and a close and loving relationship with their mother.
I note what was stated by the High Court in MRR & GR (2010) 240 CLR 461 from page 466 – were the High Court stated, inter-alia:–
“13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (small a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (small B)). It is only where both questions are answered in the affirmative that consideration may be given, under paragraph (small c) to the making of an order….
…
15. Section 65DAA(1) is 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. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.”
As noted by the High Court – it is important for the Court to look at the “reality of the situation”. The Court has already made many references to the reality of the situation of these parents. The mother moved to Town C not, it seems, because she had secured employment and not because she was in a relationship with anybody from Town C at that stage. The mother moved to Town C for lifestyle reasons. The mother had visited there, it seems when she was younger with her father and had fond memories of the place. I have no doubt that the mother is happy in Town C.
The point is, though, that the Court has to take into account not only the mother’s happiness but many other issues. The mother currently only has a part-time job in a local business. Her most recent affidavit said she gets Centrelink payments of about $800 per fortnight. There is no evidence from the mother to the effect that a move to City B would see a diminution in her Centrelink payments. There is no reason for the Court to consider that the mother’s Centrelink payments would be reduced if she moves to City B. The mother said that if she did return to City B, the mother will not have any problem securing accommodation. The mother did say it would be more expensive in City B to get the same size house that she has in Town C. I note that the house in Town C has five bedrooms. There are only two little children plus the mother. The father has said he will assist with the payment of the bond and some rent in City B and perhaps some associated costs of moving. I will hear submissions on this. The mother did indicate to the Court that in the next year or so she was going to think about working as a health care worker in Town C. The mother said she would be required to drive a couple of hours to work in City P. The mother was asked about this in cross-examination. The mother gave evidence that if she returns to live in City B she will commence working as a health care worker in City B. The mother’s evidence is there are three work meetings in City B each week. There are also meetings in Brisbane each week. The mother is already accredited as a health care worker. The mother has a close relationship with her own father – the maternal grandfather. He is also a health care worker in City B. The mother was confident in her evidence of working as a health care worker in City B.
The mother’s practical realities are that she has at least one very good friend called Ms N, who lives in or near City B. Despite her protestations to the contrary, I have made particular findings in relation to the mother’s relationship with the maternal family. I do note it is undisputed she has an excellent relationship with her own father. I note she is staying with her parents at Suburb M at the moment. I note that her children are close to their cousins and were excited to see their cousins (their first cousins) on the maternal side. The mother has exaggerated the extent of any estrangement from her own family. I think that it is much more likely that she will continue to be able to rebuild those relationships to the extent that any of those relationships actually need rebuilding.
I said earlier the mother is not reflective and does not plan ahead. There is no doubt that that is true. The mother told the Court that she had applied for legal aid one month ago. That is one month prior to the final Court hearing. The mother told the Court that, despite the fact that the father’s application was for the children to relocate to City B, the mother had not really given any thought that she might actually have to relocate with the children to City B. It is inconceivable that the mother would not have given some consideration to the fact that she may, in fact, have to relocate with the children to City B, especially since her relationship with Mr L broke down and Town D – was not really a realistic option once that occurred.
I do consider that, having regard to the mother’s current circumstances and the children’s current circumstances the "reality of the situation" in the event that the mother and the children return to live in City B – leads the Court to conclude that it is not unreasonable for the children (and indeed the mother) to relocate back to City B. The mother will not, of course, be ordered to return to City B. The order will relate to the children returning to City B. The mother has indicated that she will also return to City B in the circumstances. The Court is confident, having observed the father and Ms F give evidence that – in the very unlikely event that the mother decided not to return to City B that the father and his partner are capable of looking after the children. There is nothing in the evidence of Mr E that would lead the Court to conclude that either the father or Ms F were not suitable carers for the children. I do not consider that that outcome will eventuate. I am certain that the mother will also return to City B.
I accept that the "reality of the situation" for the mother in Town C is that she is well-settled and likes the lifestyle. But there is evidence which, in its significance, outweighs that consideration. That evidence relates to the question of the children and their relationship with their father. The "reality of the situation" for the father if the mother remains in Town C is that it is seven hours’ drive one way. There was no close consideration at the final hearing of the possibility of the children flying between Town C and City B. I did not apprehend (from the evidence) that either the mother or the father could afford to pay for regular flights between Town C and City B. It was not put forward as part of either proposal in any serious way.
After having close regard to section 65DAA and the decision of the High Court in MRR & GR (supra) I have come to the conclusion that the reality of the situation of this mother and the children is such that a relocation by the mother with the children to City B is practical, reasonable and feasible in the circumstances of this case. The mother has indicated she will be able to find work as a health care worker. The mother will have the support of the maternal family. The mother’s relationships with the maternal family remain intact. The Court has made findings about those matters. The mother will be able to afford rental accommodation in the City B area. The father will assist with the rental bond and some other expenses.
To the extent that there have been allegations of past family violence or domestic violence, those issues were not pursued in the course of this hearing and that is why I mentioned earlier that I was not paying particular attention to those subparagraphs in section 60CC(3) which are relevant to that issue.

It has not been put before the Court by way of evidence from the mother and certainly has not been proved that from a financial perspective it was impossible or undesirable for her to return to City B.
There is no need for the Court to even consider the situation of the children coming back to City B in the absence of the mother. The mother has been clear about that. If the children are coming, she is coming. I do think it is reasonable to allow the mother some months to relocate. I would be inclined to allow her three months to make arrangements to move back. This will allow the father time to collect enough money or save enough money to pay towards a bond to assist the mother in moving back to the City B area.
Section 65DAA(5) states:
“(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the Court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the Court considers relevant.”
If the children and the parents are living in the City B area – it will be reasonably practicable for the children to spend substantial and significant time and then, subsequently, equal time between the parents. I do consider that these parents have both a current and future capacity to implement an arrangement for the children to spend substantial and significant time and equal time with each of the parents.
On the mother’s own evidence, their communication has improved in recent months. They communicate by text. There was a good deal of animosity at the time of the breakdown of this relationship. I understand there were allegations of unfaithfulness and so on. That animosity has, I find, subsided over time. The mother gave evidence that she needs to have day surgery next month in relation to a cardiac issue. The mother’s plan A, as it were, in relation to care for the children is to contact the father and see if he can care for the children. That indicates to the Court very clearly that the mother and the father in this case have both the current and future capacity to implement an arrangement for the children to spend equal time. They do have the current and future capacity to communicate with each other and resolve difficulties that might arise. One example is the example I have just mentioned in relation to the upcoming surgery of the mother.
I note, also, the mother’s evidence in relation to communication. In fact, when I specifically asked her about this, she spoke of communicating with the father via Facebook. I do understand that the mother has also facilitated Skype and FaceTime with the father.
The evidence is quite overwhelming in relation to the best interests of the children being served by returning to live in City B – including the evidence of the practical realities in relation to the mother’s life, the children’s life and the father’s life. The tyranny of distance is one of the issues which confronts families in Australia every day. This distance, though, from City B to Town C is just so far and these children are so young and their relationship with their father is at such a stage that the distance works against the best interests of the children.
Whilst it is the case that the mother would, as a back-up plan, like to be in Town D, rather than in City B, it remains the case that on a proper consideration of all of the evidence – that the best interests of the children will be served by living in City B. If the mother moves with the children to Town D – when X starts prep in 2021 – the father’s time will be limited to weekend time again.
Noting that the mother split up from Mr L and noting the fact that the mother has family and support networks and connections in City B – I accept the opinion of the family report writer that the preferred outcome – so far as the best interests of the children are concerned – is City B – not Town C or Town D. The conclusion of the Court is that the overwhelming weight of the evidence points to the best interests of the children being served by moving back to live in City B.
The parties will be given an opportunity to forward draft orders to the Court to reflect the Reasons for Judgment.

I certify that he preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Howard

Date: 22 May 2020

[2020] FCCA 1289

22 May 2020

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