BDA & PDA
[2006] FMCAfam 440
•30 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BDA & PDA | [2006] FMCAfam 440 |
| FAMILY LAW – Children – relocation – proposal to remove two children within the State of New South Wales – parenting orders – contact orders – planned relocation of mother – place of residence of children when on parent wishes to relocate to another area within the same State – proposals of parents about residence of and contact with children – best interests of children paramount consideration. |
| Family Law Act 1975 (Cth), ss.60B, 65E, 68F |
| AMS v AIF; AIF v AMS [1999] HCA 26; (1999) 24 Fam LR 756; FLC 92-852 A v A: Relocation Approach [2000] FamCA 751; (2000) 26 Fam LR 382; FLC 93-035 Paskandy & Paskandy (1999) 25 Fam LR 607; FLC 92-878 Martin & Matruglio (1999) 25 Fam LR 510; FLC 92-876 B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC 92-755 U v U [2002] HCA 36; (2002) 29 Fam LR 74 W & R [2006] FamCA 25 |
| Applicant: | D A B |
| Respondent: | D A P |
| File Number: | NCM 1023 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 8 & 9 February 2006 |
| Date of Last Submission: | 10 May 2006 |
| Delivered at: | Newcastle |
| Delivered on: | 30 June 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bates |
| Solicitors for the Applicant: | Mr Levick |
| Counsel for the Respondent: | Rankin & Nathan |
| Solicitors for the Respondent: | Thomas Mitchell Solicitors |
ORDERS
That the Respondent mother is restrained from relocating the residence of the children E R B born 7 August 1994 and A E B born 27 April 1998 to the K area prior to 1 January 2007.
That the said children live with the mother.
That the said children have contact with the Applicant father:
(a)While the mother and children reside in the N area:
(i)During school terms on each alternate weekend from after school on Friday to the commencement of school the following Monday commencing the first weekend of each school term in even numbered years and the second weekend of each school term in odd numbered years;
(ii)For the first half of all school holiday periods in even numbered years from 10.00 a.m. on the first day of the holiday period to 4.00 p.m. on the day midway through the holiday period;
(iii)For the second half of all school holiday periods in odd numbered years commencing at 10.00 a.m. on the day midway through the holiday period until 4.00 p.m. of the last day of the holiday period;
(iv)From 9.00 a.m. to 6.00 p.m. on Father’s Day in each year; and
(v)By telephone to the child E’s mobile telephone and the father is to initiate the call between 6.00 p.m. and 6.30 p.m. each week day.
(b)That the children’s contact with the father be suspended at 9.00 a.m. on Mother’s Day in each year.
(c)That for the purpose of implementing the contact referred to in Order 3(a)(i) above, the father is to collect the children from school at the commencement of the contact period and return the children to school at the end of the contact period.
(d)That for the purpose of implementing the contact referred to in Orders 3(a)(ii), (iii) and (iv) above, the mother or her nominee is to deliver the children to the outside of the fathers’ residence at the commencement of contact periods and collect the children from outside the father’s residence at the end of each contact period, and the father must remain inside his residence during contact changeovers.
(e)That from and after the time when the children relocate with the mother to the K area:
(i)For one weekend of each school term by arrangement in writing between the parties and, failing agreement, the fifth weekend of each term;
(ii)For the first half of all school holiday periods in each even numbered year from the first day of the holiday period to the last day of the holiday period;
(iii)For the second half of all school holiday periods in each odd numbered year from the day midway through the holiday period to the last day of the holiday period; and
(iv)By telephone to E’s mobile telephone and the father is to initiate the call between 6.00 p.m. and 6.30 p.m. each week day.
(f)That the contact in Order 3(e)(i) above be implemented by the mother arranging and paying for the children’s return flights from C to N.
(g)That the contact in Orders 3(ii) and (iii) be implemented by the mother arranging and paying for the children’s return flights from C to N in the midyear and Christmas holiday periods and the father arranging and paying for the children’s flights in the Autumn and Spring school holidays.
(h)That at all times when the children travel by air between C and N for the purpose of contact the mother is to supervise the children’s embarkation and disembarkation at the C end of the flights and the father is to supervise the children’s embarkation and disembarkation at the N end of the flights.
(i)That the parent arranging the children’s flights give the other parent written details of the flight arrangements no less than seven (7) days prior to the commencement of the contact period.
(j)That the father must ensure that he is available to supervise the children during all contact periods.
(k)That the father is restrained from leaving the children without supervision whilst he is working.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCM 1023 of 2005
| D A B |
Applicant
And
| D A P |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the father of two children for contact orders and to restrain the mother from changing the residence of the children outside the N region without the father’s written consent.
In the event that the mother does relocate, the father seeks orders that the children should reside with him and the mother should have defined regular contact.
The mother opposes those orders. She seeks orders that the children reside with her and the father have contact for one weekend of each school term and for half of the school holidays.
Background
The parties entered into a de facto relationship in 1993. There are two children of the relationship, a boy to whom I will refer as E and a girl to whom I will refer as A. The son E was born on 7th August 1994 and the daughter A was born on 27th April 1998. The mother also has a child by an earlier relationship, a boy called J who was born on
15th February 1988.
The father was born on 6th June 1960 and the mother was born on
4th February 1960. They are both 46 years old. They presently live and work in the N area.
The parties separated in March 2001 when the father left the joint home. The father continued to have a considerable amount of contact with the children, including taking the children to school and collecting them from school. The mother’s elder son J left the mother’s home in October 2004 and went to live with his father. He is now an adult.
The mother first expressed a wish to move to K, in Northern New South Wales, in about February 2005. K is very close to the border of New Wales and Queensland, and it is such a distance away that weekend contact would be impracticable. The father expressed his disagreement with the mother’s wish to remove the children and did not agree to the mother’s suggestion that he, too, could move to the North of the state.
In March 2005 an incident occurred during a disagreement between the parties where physical contact occurred between the father and the mother. As a result, the NSW Police charged the father with assault and an interim apprehended violence order was issued against him.
The father pleaded guilty to the assault charge on 12th April 2005 at the N Local Court and was dealt with without a conviction being recorded. The father consented to an apprehended violence order being made against him without admissions, and an order was made for a period of 12 months.
The father commenced these proceedings by means of an application filed on 19th April 2005. On 11th May 2005 the court made interim orders for the father to have contact with the children on alternate weekends from Friday to Monday and overnight on the Monday of the off week.
Relations between the parties about arrangements for the children were strained from then on. The father complained of not being able to talk to the boy E by telephone or to find out from the mother details of the children’s sporting arrangements and other matters. The father sent several SMS telephone messages to the mother, including one that said “Put the children first for Gods sake”.
The police contacted the father in July 2005 and, in late, August 2005, they served a Court Attendance Notice on him alleging that he had breached the Apprehended Violence Order. On 24th January 2006 in N Local Court the father pleaded guilty on the basis of an admission concerning one SMS message and was dealt with under
s.10 of the Crimes (Sentencing Procedure) Act (NSW).
The father changed his residence in October 2005 to one that offers more room.
Evidence and Witnesses
Both parents gave oral evidence and were cross-examined. A Family Report was prepared by Dr M.M. C, who was cross-examined by Mr Bates for the father and Mr Levick for the mother. The report recommends that the children should reside with the mother provided that she continues to reside in the N region. If the mother does move to K, the report recommends that the children reside with the father.
The father claims that he and the children have a strong relationship and that the children do not wish to relocate away from him. He denied any awareness that the mother had been considering moving to the North Coast of New South Wales for some years. He specifically denied that she had said to him that she was intending to move north because there was nothing in the N area for her. He denied that he and the mother had had any conversations to that effect prior to about February or March 2005.
The father made it clear in his evidence that he had no wish or intention to move to the North Coast of New South Wales. He does not want to live there, he said. He chose to live in N. Whilst he does not have family ties there, other than the children, he has a lot of friendships in the N area.
The father works on a part time basis, some 19 hours a week. He does not wish to increase his working hours. He has a great deal of time away from work so that he is able to spend time with the children.
It is the mother’s evidence that she has regularly visited the K area over many years and has taken the children there regularly.
She claims to have spoken to the father about that wish on occasions over the last two years. She believes that the children also wish to move to K.
The mother gave evidence that she hopes to obtain a transfer to the K C of T and F E from her present position. She said that she had had discussions with the holder of a similar position to her own and understood that there was to be a restructure which would create an extra position, albeit at possibly a lower grade. She said in cross-examination that she would take a regression in seniority and salary. She denied that this would defeat the purpose of moving to K, saying that she had been going to the area since she was about 17 years old. She had been waiting to move to that area for years.
When asked about the likelihood that she would successfully obtain a position in K, the mother was positive that it would occur. When it was put to her by counsel for the father that there was nothing firm to indicate the certainty of a transfer, she replied that there was but she did not have anything in writing.
The mother is critical of the father’s parenting ability. Nevertheless, she made the statement that if she were to be restrained from removing the children from the N area, she would go anyway, and the children would live with their father. The mother said that she did not have confidence in the father’s ability to parent the children. She said that she did not believe that he would cope at all, and that he would soon get tired of them and send them to her.
The mother denied that her proposal was “an experiment”. She said that the children would not want to see her go. They would be heartbroken, she said. She envisaged a situation where the father would not cope.
The Family Report
The Report Writer conducted interviews with both parents, both children and the mother’s son J. She also observed each parent with the two children and with J.
The Report Writer described the mother as “a committed and loving mother with a very successful career”. Nevertheless, she believed that the mother appeared to lack insight into the possible damage to the children’s relationships with their father and possibly with J if she relocated to K “for furtherance of her career”.
The Report Writer expressed this view at paragraph 61 of the Report:
The writer has formed the opinion that the main advantages of Ms (P)’s proposed relocation to K would be for herself.
In the writer’s opinion, relocation to K would be more disadvantageous for the children than advantageous. They would see far less of their father than is currently the case, thereby jeopardizing the strength of the bond and that relationship.
In addition, they would possibly lose a close relationship with J unless he also relocates.
The Report Writer described the father as “a committed and loving father”. Because of his part time work and flexible hours he has spent more time with the children than most fathers. She went on to say at paragraph 63:
Although the mother does not view the time he has spent with them as “quality” time, it is, in the writer’s view, inevitable that the bond between the father and the children would be exceptionally strong.
The Report Writer said of the children that E appeared to have split loyalties, wanting to please both parents, whilst A does not really comprehend what relocation would mean in a practical sense. If they were able to choose, she wrote, both children would seek more time with the father.
In cross-examination, the Report Writer commented on the mother’s evidence that if she were to be restrained from leaving N, she would go anyway and leave the children with the father. Dr C said that there was no question about the mother’s parenting capacity, but her statement raised questions about her priorities. The children would suffer emotionally, and would be “devastated”, if the mother were to make that move.
Dr C went on to say that both parents had the capacity to care for the children very well. The mother had always been the primary caregiver of the children; the children’s primary attachment was to the mother. Both children expressed a wish to go to K provided that there was no change to their contact with their father.
Dr C said that she thought that it was in the children’s best interests to remain where they had grown up. As small a change as possible in the children’s lives would be in the best interests of the children. Relationships suffer because of geography. Both parents were equally important in the lives of children.
In answer to some questions from the Bench, Dr C conceded that children do move schools, and agreed that they not infrequently moved at the end of Year 6. All children suffer at a level and lose many things in a move from one school to another. A move is compounded by the other simultaneous losses; new friendships have formed and the child is isolated.
Principles to be applied
The principles that apply to matters of this nature are well-settled, and recent decisions have not altered that the court should take in any significant way. Section 60B of the Family Law Act sets out the overall objects in relation to parenting orders. The object of Part VII of the Act is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. Sub-section 60B(2) sets out the principles underlying the object of Part VII.
In this matter, as in any matter where the Court is required to make parenting orders, the Court must regard the best interests of the child as the paramount consideration (s.65E). Section 68F sets out the matters that the court must consider in order to decide what are the child’s best interests.
In AMS v AIF; AIF v AMS (1999) 24 Fam LR 756; FLC 92-852 it was held to be an error for a court to require the party who wishes to relocate with the child to demonstrate “compelling reasons” to justify the proposed relocation. The welfare of the child is the paramount, but not the only, consideration. It is equally an error, however, for a court to require the other party to provide compelling reasons, or at least a preponderance of reasons, for not permitting the party who wishes to relocate to do so (see SMG v RAM (2000) FLC 93-020).
In A v A: Relocation Approach [2000] FamCA 751; (2000) 26 Fam LR 382; FLC 93-035, where the Full Court of the Family Court also considered Paskandy v Paskandy (1999) 25 Fam LR 607; FLC 92-878, and Martin v Matruglio (1999) 25 Fam LR 510; FLC 92-876, these principles were held to apply:
a)the best interests of the child are the paramount, but not the only consideration;
b)a court cannot require the parent who wishes to relocate with the child to demonstrate compelling reasons for the relocation;
c)the court must evaluate each of the proposals advanced by the parties;
d)relocation cannot be separated from the issue of residence and the best interests of the child;
e)the evaluation of the competing proposals must weigh the advantages and disadvantages of each proposal for the best interests of the child; and
f)the court must consider the relevant s.68F (2) matters in respect of each proposal.
It is no longer the case that the court should consider whether the reasons to relocate are genuine, whether they are optional or whether they are seen as important or essential for the orderly life of the parent. It is still a consideration, however, that in evaluating the competing proposals, the court may consider evidence that the proposed relocation would be of benefit to the child as much as to the parent, whilst the inability of a party to move may impose significant pressure upon that parent:
A very important aspect of a child’s best interests is to live in a happy family environment…Ordinary common experience indicates that long-term unhappiness by a residence parent is likely to impinge in a negative way upon the happiness and therefore the best interests of children who are part of that household (see B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC 92-755 (at [9.63]).
The High Court of Australia considered the question of relocation again in U v U [2002] HCA 36; (2002) 29 Fam LR 74. The court is obliged to give careful consideration to the proposed arrangements of the parties but is not bound by those proposals. The court must look at the matters set in s. 68F, with the objective always being to achieve the child’s best interests.
The competing proposals in the light of s.68F(2)
I am required to consider the relevant s.68F (2) factors as they apply to the parties’ proposals. The proceedings changed in their nature when the mother gave evidence that she intended to relocate to the K area whether or not the court granted her permission to relocate the residence of the children. It is common ground that the proceedings thereafter became essentially a residence application, with the father proposing that the children should live with him in the N area and the mother proposing that the children should live with her in the K area.[1]
[1] Applicant father’s submissions at [21]; respondent mother’s submissions at [5].
The father submits that the children have enjoyed close contact with their father since the parties separated, and that the quality of this contact can only continue if the children remain living in N. As a result of this continuous and frequent contact the father has developed a close emotional bond with the children. He submits that it is not in the children’s best interests that this bond should be put at risk by the severe curtailment of contact that would be brought about by the mother relocating with the children to K.
The father further submits that:
a)he can continue to spend a significant amount of time with the children in N because his working hours are limited to 19 hours per week.
b)The children express a wish to spend more time with him.
c)The mother’s primary motivation for relocation is for her needs, being a desire to live in the K area with the possibility of enhanced employment prospects.
d)The mother is unable to prioritise the children’s interests over hers by dismissing the importance to the children in continuing their relationship with their father.
e)This inability to focus on the children’s best interests over her own is illustrated by the mother’s statement that she would move to K in any event and leave the children to live with their father.
f)The mother’s criticisms of the father’s parenting ability are without foundation if she is prepared to allow the children to live with him on a full-time basis.
g)The mother’s evidence that she would have no difficulty with the father relocating to the K area as well diminishes the weight that should be given to the mother’s claim that the father’s motivation for opposing the relocation is his wish to control her.
The father contrasts the mother’s contention that she would be happier in herself if she were able to relocate, which would be advantageous to the children’s wellbeing with the downgrading and possible destruction of the father’s close emotional bond with the children outweighs the potential advantages of relocation.
The mother submits that she has always been the children’s primary carer, and their primary attachment is to her. She makes a number of criticisms of the father, particularly:
a)whilst he has had regular contact with the children he has not had them for extended periods until the court made orders for school holiday contact commencing in 2006.
b)She is critical of his parenting abilities.
c)The father has not been able to move on from the breakdown of the relationship and his motivation to prevent the relocation is to continue to control her.
d)The father has not met his financial obligations in relation to the children.
The mother submits that she has regularly visited the K area over many years and has taken the children there regularly. She has long wished to live in that area with the children. She believes that the children’s welfare would be promoted if they lived with her at K.
The mother believes that her prospects of promotion in her employment with T would be enhanced if she were to move to that area.
The mother submits that it would be open to the father to relocate to the K area to spend more time with the children. Whilst she has some concerns about the father she has no objection to his residing in the same general area in order to maintain his contact with the children.
Even if the father chose to remain living in the N area, the mother submits that he would still be able to maintain a good relationship with the children, by means of block contact and contact during school terms. There is a distinction between the parental relationship and the parental role. “Whilst there would be a reduction in the parental role as far as the father is concerned there would be no reduction in the parental relationship.”[2]
[2] Mother’s submission at [24].
Counsel for the mother submitted that where the evidence of the two parties conflict the court would prefer the evidence of the mother over that of the father. The submission is that the father was evasive, argumentative and non-responsive in cross-examination and gave inconsistent as to the circumstances of his assault on the mother on
11th March 2005.
By comparison, counsel for the mother submits that she gave evidence in a frank and honest fashion. She made admissions against interest and answered questions directly and without evasions.
Counsel for the father submits that this is a case where issues of credit are not of high priority and the more significant issues relate to the relationship of the parties to the children. In that respect, he submitted, there is no real issue as to the nature and quality of those relationships.
Counsel for the mother has submitted that the court should place little weight on the evidence of the Family Report Writer, because she has not addressed or addressed in any detail the following matters:
a)The proposal that the mother goes to K and the children remain with the father;[3]
[3] In fairness, the mother’s proposal to relocate without the children if necessary was not raised as an issue until the commencement of the hearing
b)The impact on the mother and/or the children if they were not allowed to relocate;
c)How the relationship of the children would be affected with their father by the mother moving with them to K;
d)The strength of the bond between the children and their father and between the children and their father;
e)The distinction between the parental role and the parental relationship;
f)Whether the motivation of the mother in moving to improve her career and to provide a better lifestyle for the children is a proper motivation;[4]
g)Whether the father was in fact a controlling personality whose motivations were other than to ensure the best interests of his children;
h)The competing proposals for residence;[5]
i)the evidence that the mother’s child J is also to relocate to K[6];
j)the importance to the children of their mother being happy;
k)the genuineness of the mother’s wish to move; and
l)Whether the father has the necessary parenting skills to care for the children full-time.
[4] Surely this is a matter for the court to decide?
[5] Again, a matter for the court.
[6] The report writer may not have been aware of this evidence.
The proposals that I identify are these:
a)The children continue to live with the mother and she relocates with them to the K area. This is the mother’s preferred option.
b)The children remain in N and live with the father whilst the mother relocates to K. The mother sees this as only a temporary measure, as she believes that the father would be unable to meet the responsibility of being a full-time parent and would eventually return the children to her.
c)The children and the mother remain living in N and the father continues to exercise contact with the children. This is the “no change” option.
d)
The children and the mother relocate to the K area and the father relocates as well, so that contact continues as before.
It is not the mother’s preferred option and the father has rejected it out of hand.
Wishes expressed by the children.
The Family Report at paragraph 48 refers to the child E’s wishes in this way:
E said he would like to go to K. He said he thinks ‘it would be great’. When asked if he would miss his Dad he said ‘a little bit’. When E was asked how to rate how much he would miss Dad on a scale of 0-10, where 0 equals not at all and 10 equals heaps he said he would miss him about 6-6.5.
Against this, the child’s statement at paragraph 49 records a somewhat different view:
At a later point in the interview E was asked if he would want to change anything about the current arrangements if he could write his own script. He said he would like to have more contact with his Dad…
The child A is reported as being of the view that she would like everything to remain as it is and in addition she would like to see him on the Friday as well as the Monday of a non-contact weekend.[7]
At paragraph 53, the Report Writer noted:
Essentially, A indicated that she would not mind moving to Queensland[8] as long as there is no change to the contact she has with her Dad…
[7] Family Report paragraph 52.
[8] Kingscliff is actually in New South Wales, although not far from the border with Queensland.
The children’s wishes indicate a desire to continue living with the mother but to have the same amount of contact, or perhaps more, with the father. Neither child expressed a wish to live with the father on a full-time basis.
The relationship of the children with each parent and with their brother
The children were observed to relate well with both parents and to their half-brother J. Their primary attachment is to their mother but they have a strong and loving relationship with their father.
The likely effect of any change in the children’s circumstances
If the children move to K with their mother, they will see their father less frequently and they will miss him. If the children live with their father in N and their mother relocates to the K they will miss her. They will also have to adjust to living in their father’s household on a full-time basis. The evidence now is that the older boy J intends to relocate to K with his mother, so the children would see him less frequently as well.
The practical difficulty and expense of contact
If the mother moves to K and the father remains living in N, there will be difficulties in exercising contact because of the distance, no matter with which parent the children live. Whilst the mother has set out a detailed contact proposal, the father has not done so. The father’s counsel submits that it is simply the father’s case that the relocation should not happen and
By reason of the exceptional relationship which the children enjoy with the father the removal of the children to a distant place with the curtailment of contact is something that he has great difficulty in contemplating.[9]
[9] Father’s submission at [54].
Of course, if the mother were to remain in N there would be no greater difficulty and expense in exercising contact. A similar situation would occur if the father were to move to the K area, which he refuses to do.
The capacity of each parent to provide for the needs of the children
Both parents have shown a great capacity to care for the children, although the mother criticises the father for leaving E unsupervised at home in the evenings whilst he is at work.
The father is a committed and loving parent. The mother has criticised the father’s accommodation is presently unsatisfactory for the children and he would be required to relocate.[10] His working hours, even though he only works 19 hours a week, tend to conflict with his ability to care for the children in the evenings. The father’s income, due to his short working week, is only about $27,000.00 per year, and the mother has complained that he has not met his financial obligations in relation to the children. If the children were to live with him on a full-time basis, the father’s limited income may preclude his finding more commodious accommodation for himself and the children and impact on his ability to provide for the children’s physical needs. Presumably he would seek a child support assessment against the mother.
[10] Mother’s submission at [58]
The father criticises the mother for putting her wishes or needs before the needs of the children. The mother’s defiant pronouncement that she would move to K without the children if necessary does not assist her case in this regard. Again, the mother’s apparent willingness to let the children live with the father full-time if she could not take them to K does not sit well with her criticism of the father’s apparent inability to cope with the responsibility of being the residence parent.
If, as the mother says, the father could not cope with the responsibility with full-time parenthood and would soon ask her to take the children back, what does this say for the mother’s perception of what would happen to the children in the meantime? The children would be distressed at a change of residence, because neither of them has expressed a wish to live permanently with the father. If the father found it difficult to cope with the children and would be reduced to asking the mother to resume the responsibility, the mother does not seem to have given serious thought to the difficult time that the children would be likely to endure in the intervening period. It is well established that children need stability in their lives, and the scenario described by the mother would be likely to involve a period of instability for the children and possible damage to the children’s relationships with each parent.
The children’s maturity, sex and background
E is a boy who was born on 7th August 1994. He was 11 years and 6 months old at the time of the hearing. The Family Report writer describes him as “a very confident boy for his age” and went on to say:
He appears to be functioning in the above average intelligence for his age and appeared to be emotionally mature.[11]
[11] Family Report paragraph 4
A is a girl who was born on 27th April 1998. She was 9 years and 10 months old at the time of the hearing. Dr C did not express any opinion in the Family Report about the child’s maturity, and I consider that I should regard her as being of average maturity for her age.
Dr C did state that it was clear that A did not have a realistic comprehension of time or distance[12], presumably at least so far as the distance between N and K is concerned.
[12] Family Report paragraph 53
The need to protect the children from physical or psychological harm
Counsel for the father submits:
That the mother would be prepared to expose the children to the risk of emotional abuse by choosing to relocate without them is a matter of serious concern. It is submitted that this being so the father has greater insight into the needs of the children and is the parent more likely to protect them.[13]
[13] Father’s submission at 65
The mother gave evidence of incidents of violence between her and the father. Counsel for the mother submits that the children would be less likely to be exposed to any conflictual situations if they were in the mother’s residence.
It appears to be common ground that the relationship between the parties has deteriorated in recent years. This acrimony between the parties has a tendency to cause some harm to the children.
The attitude to the children and the responsibilities of parenting demonstrated by the parents
Counsel for the father and the mother confined their submissions to what they had each put in respect of the parties respective parenting capacities.
Family violence and family violence orders
There was an incident on 11th March 2005 that led to the Local Court making an Apprehended Violence Order against the father for a period of 12 months. There is no evidence that this order has been extended. The father was dealt with by the Court on a later occasion for a breach of that order. It appears unlikely that any further proceedings will be necessary.
Institution of any further proceedings
The father submits that a residence order in his favour in the event that the mother chooses to relocate or, if she were to choose not to relocate, a shared parenting order, is the least likely to lead to further proceedings between the parties (see father’s submission at paragraph 68). With respect, that submission refers to 2 very different concepts.
On the other hand, counsel for the mother makes this submission:
It is submitted that an order in favour of residence in favour of the mother (sic) is less likely to lead to further litigation. It is submitted that it is likely the children would experience a great sense of loss if they resided with their father and not their mother. It is submitted that the children would be more likely to express a wish to return to the care of their mother should they be close with their father thereby leaving a potential for further proceedings.[14]
[14] Mother’s submission at [71]
Other facts or circumstances
It is submitted on behalf of the father that the mother’s employment plans remain nebulous. The mother’s evidence does not establish any certainty that any position would become available to her in K.
Much still depends on the movement of personnel and a position suitable to the mother becoming available.[15]
[15] Father’s submission at [74]
The father concedes that the mother does not have to demonstrate compelling reasons for relocation, but he submits that she has not demonstrated any other reason than a personal desire to do so with the potential for career enhancement (with no evidence that any such enhancement will occur). The father submits that little weight should be given to the mother’s reasons for wishing to relocate.
The mother submits that the right of parents to decide where they live and freedom of movement are highly important social values which are not to be lightly interfered with, especially where the relocating parent is the established and unchallenged primary carer of the children with a proven record of meeting their needs in performing that role (W & R [2006] FamCA 25). However, the right to freedom of movement must be compatible with and does not take precedence over the best interests of the children.[16]
[16] Mother’s submissions at [73]-[74]
The mother submits that an order for residence in favour of the mother with her relocating to K would be in the best interests of the children for these reasons:
a)The children would retain their primary attachment to their mother.
b)The children would benefit from consistent parenting and a parent who has demonstrated over the years the ability to meet the emotional and physical needs of the children.
c)The mother’s own emotional welfare would be enhanced by moving to K and that emotional wellbeing would be a benefit for the children.
d)Placing the children in the care of the father would be experimental.
e)The Family Report writer failed to consider the effect on the children of a separation from their mother.
f)The child E has expressed a wish to live at K.
g)The children’s half-brother J is likely to be living in K, which would lead to a continuation of the children’s relationship with him.
h)The mother would be prepared to continue and encourage contact. The fact that she would be prepared to accept the father living in the area supports that submission.
i)The father has not met his financial obligations to the support of the children.
j)The father has placed his work commitments ahead of the children.
k)The father has no history of consistent parenting and is consequently untried and untested as a full-time resident parent.
l)The mother submits that the father was deceptive and attempted to tailor his evidence to further his case whilst the mother was transparent and honest in relation to her intentions and motivations.[17]
[17] Mother’s submissions at [86] (summarised). Not all of the points referred to necessarily illustrate the children’s best interests.
Conclusions
Neither party has to demonstrate compelling reasons for relocation or for opposing relocation. Nevertheless, the court must examine the reasons given by the parties for their position when considering and evaluating the proposals against each other. The court is not bound to accept any of the proposals. There are disadvantages in each.
The mother’s preferred option is that she would relocate to K with the children and the father would either remain in N or relocate to the K area himself.
A significant disadvantage to this proposal is that the children’s contact with their father would be reduced and they would miss him.
The children clearly have a strong bond with their father.
The mother’s evidence about the likelihood of career enhancement if she were to move to K is not very convincing. Her plans were aptly described by Mr Bates, for the father, as “nebulous”. There was no clear proposal that the mother would be able to secure a transfer in her employment, let alone obtain a promotion. As the mother has complained that the father has not met his financial obligations in respect of the children, she is hardly likely to move to the K area without the guarantee of employment.
The Family Report writer, Dr C, took the view that any move would have negative consequences for the children. I was not persuaded by her evidence in this regard, because it is common knowledge that families move around Australia quite frequently. I am not persuaded that it is always in the best interests of children that they should never move from their birthplace until they are adults.
That said, it would not be in the best interests of the children to move schools during a school year. This applies particularly so for the child E, who is in his final year at primary school and will be going into high school next year.
Against this, the mother has been the children’s primary caregiver all their lives. Whilst the father has criticised the mother for wanting to move away from N with the children and for his difficulty in exercising contact, especially telephone contact, he has not made any basic criticisms of her parenting capacity. He never sought that the children should live with him on a full-time basis until these proceedings started.
It is clear from the Family Report that the children want to live with their mother. Neither one of them expressed a wish to live with their father on a full-time basis. They did not envisage a scenario where they would go to live with their father. The child E has expressed a wish to live at K. In my view, the children’s wishes should be given some significant weight.
The mother clearly has her heart set on moving to K. It is likely that she would be happy there, which would have a positive effect on the children. Her other son, J, wants to move to K to be with her, and the children’s relationship would continue. It is clear from the Family Report that the children, especially E, have a strong relationship with J.
Whilst K is some distance from N, it is still within the State of New South Wales. The children would remain in the same education system and would still be in the same time zone. They would remain living on the East Coast of New South Wales. The distance to be travelled is not so far as to preclude frequent, even though weekend contact would no longer be practicable.
In my view, the advantages of this proposal outweigh the disadvantages.
The second proposal, whereby the mother goes to K by herself whilst the children remain in N and live full-time with the father, appears to me to hold more disadvantages than the earlier proposal, with fewer disadvantages.
It is not what the children wish. They have said that they would like to see more of their father, but they have never said that they want to live with him on a full-time basis. They would be very distressed if their mother were to go to K and leave them behind, and it would be likely to harm their relationship with her.
The children would have to adjust to living with the father, which they have never done on a full-time basis before. His income is modest, and the children’s standard of living would be likely to suffer, even if the father were to obtain an assessment under the Child Support (Assessment) Act 1989 against the mother. The father would need to obtain better accommodation, because it would be undesirable for the children to share a bedroom when they are older.
Whilst I am not persuaded that the father would be unable to cope with the responsibility of full-time parenthood, as the mother so confidently asserted in court, the possibility of disruption and instability in the children’s lives, at least in the immediate future, cannot be discounted. The father’s working hours involve a certain amount of work in the evening, which is also a factor that makes full-time parenting of school-age children more difficult.
Whilst the children would see more of their father, they would see a lot less of their mother. I do not see this as being in their best interests, and it is certainly not in accordance with their expressed wishes.
I am not of the view that this option offers any advantages over any option that involves the children remaining in the full-time care of the mother.
The father’s preferred option is the “no change” option. This option would not involve any increased difficulty with exercising contact.
The children would remain living with their mother, which is what they want, and would continue to see their mother on a regular basis.
The disadvantage of this option is that the parties have already tried it, and it has been less than successful. There has been acrimony between them, leading to an Apprehended Violence Order and the father pleading guilty to a breach of that order. The father has complained that the mother has been obstructive about contact.
If the situation remains the same, it is likely that the acrimony will continue. The mother is likely to be unhappy that she cannot move to another part of the State, and this will not assist the children.
It is fanciful to assume that, if the parties remain in the same situation as before, the relationship between them will improve and the mother will no longer be able to complain that the father does not bear his share of the financial obligations of being a father. There is nothing to stop the father seeking more remunerative work now, or even working longer than 19 hours per week, but he chooses not to.
In my view, the “no change” option has been tried and found wanting. Its advantages are that the children remain living with the mother, which they prefer, and go on seeing their father frequently, which they clearly want to do. It is better than the option of the mother moving away from the children and going to K by herself, for the reasons that I have set out above, but it does not offer an optimistic prospect of the parents working together in harmony. It is not unlikely that further differences between the parties would lead to further litigation between them.
I am not satisfied that the present poor relationship between the parties offers any prospect that shared parenting, as the father suggests, would be at all successful. my view it is unrealistic.
The option of the mother relocating to the K area with the children and the father moving to the same area offers the advantages of the children remaining in the care of the mother, who has been their primary caregiver all their lives, and the father being able to continue regular and frequent contact.
The mother is not enthusiastic about it as an option, which leads me to the view that one advantage to her of moving away from N is the possibility of moving away from the father. It should be remembered that there was an Apprehended Violence Order against the father as a result of an incident involving the mother, and the father pleaded guilty to breaching that order. Without a guarantee that there would not be a repetition of those incidents, the mother could be excused for wanting a little bit of distance between her and the father.
The disadvantage about this option is that the father will have nothing to do with it. He has his part-time work in N and he has made friendships there, so he does not want to move. The father has criticised the mother for not putting the children before her wishes, but it appears to me that the father is acting in the very same way. The father has a comfortable life in N with plenty of friends in the area and a job that appears to suit him, but there are no major obstacles to his moving up the coast to be near his children. The father does not have to establish compelling reasons for not wanting to move, such as the care of an aged parent or the fact that he has started another family or the fact that he has established his own business in the area.
The fact is, however, that the father will not move away from N because he does not wish to do so.
In my view, the option that involves the mother eventually moving to another part of the State of New South Wales with the children compares favourably to all of the other options. At the same time, the mother has not established any particular urgency about the timing of the move. There is no promise of a job waiting for her, only a hope that she can obtain a transfer in due course.
The disadvantages of an immediate move away from N are that the move would be in the middle of the school year, which would not be in the children’s best interests. It would be far better for the mother to wait until the end of the year, when E finishes primary school and would have to start a new school in any event, because he would be going to High School. There would be more likelihood of the mother having some firm offer of employment in her career as a T teacher at that stage.
It should be remembered that the mother is not planning to move overseas or even interstate. She wishes to move to the North Coast of New South Wales, which is not unreasonable, in my view. I am satisfied that the genuineness of the mother’s wish to move is as genuine as the father’s wish to stay in N. There are some factors which make a move before the end of the year undesirable, but I propose to make orders that will address those factors.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 21 August 2006
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