BEAUFORD & KEDDIE
[2021] FCCA 4
•5 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEAUFORD & KEDDIE | [2021] FCCA 4 |
| Catchwords: FAMILY LAW – Relocation – competing applications for final parenting arrangements in respect of child aged 4 – parties originally lived in Town B in South Australia – mother moved to Perth with her new partner and child remained in Town B with her father – mother seeks that child live with her and the child’s half-siblings in Western Australia and spend time with the father in school holidays – father seeks that the child remain in South Australia and spend time with the mother in school holidays – issues of relocation – presumption of equal shared parental responsibility – issues concerning the impact of a change in the child’s circumstances – section 60CC factors – best interests – costs in respect of earlier interim proceedings. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65C, 65D, 65DAA, 65DAC, 65DAE, 117 |
| Cases cited: Adamson & Adamson (2014) FLC 93-622 AMS v AIF; AIF v AMS (1999) FLC 92-852 A v A: Relocation approach (2000) FLC 93,035 B v B: Family Law Reform Act 1995 (1997) FLC 92-755 B & B: Family Law Reform Act 1995 (1997) FLC 92-755 C & S [1998] FamCA 66 D and S V (2003) FLC 93-137 Deiter & Deiter [2011] FamCAFC 82 Eaby & Speelman (2015) FLC 93-654 Fox v Percy (2003) 214 CLR 118 Godfrey v Saunders 2008 FLR 287 Mazorski v Albright (2007) 37 Fam LR 518 MRR v GR (2010) 240 CLR 461 Russell & Russell & Anor [2009] FamCA 28 Sampson & Hartnett (No 10) (2007) FLC 93-350 Taylor & Barker [2007] FamCA 1246 U v U (2002) FLC 93,112 |
| Applicant: | MR BEAUFORD |
| Respondent: | MS KEDDIE |
| File Number: | ADC 4506 of 2018 |
| Judgment of: | Judge Brown |
| Hearing dates: | 19, 20 & 21 February, 18, 19 & 20 August and 21 September 2020 |
| Date of Last Submission: | 21 September 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 5 February 2021 |
REPRESENTATION
| Counsel for the Applicant: | Mellor Olsson |
| Solicitors for the Applicant: | Mr Boehm |
| Counsel for the Respondent: | ASW Lawyers Pty Ltd |
| Solicitors for the Respondent: | Ms Horvat |
ORDERS
The parties have equal shared parental responsibility for the child X (born in 2017 and hereinafter referred to as “X”).
X live with the father.
X spend time with the mother as agreed between the parties and failing agreement:
(a)During 2021 (and in 2022 prior to X commencing school in 2022):
(i)For up to four times per year for up to two weeks at a time at such times as the mother nominates in writing not less than twenty eight (28) days in advance and with X to spend at least two months (that is 62 days) with the father in between each such period of time spent with the mother.
(b)Upon X commencing school in 2022:
(i)For half of all short school holiday periods in the first week of each short school holidays from the first Saturday until the middle Saturday;
(ii)For the first three weeks of the summer school holidays in 2022 and each alternate year thereafter and from the first Saturday until the fourth Saturday; and
(iii)For the second three weeks of the summer school holidays in 2023 and each alternate year thereafter from the fourth Saturday until the seventh Saturday.
Unless otherwise agreed between the parties, including any agreement that X travel as an unaccompanied minor when the rules permit it, all handovers take place with the mother or her agent to collect X from the father or his agent at the Perth airport at the beginning of each visit and the father or his agent to collect X from the mother or her agent at the Adelaide airport at the conclusion of each visit.
Each party be responsible for the cost of their own or their agent’s travel to collect/deliver X at handovers.
The party booking the flight for the child pay the initial costs of the flight, with the other party to reimburse them within twenty one (21) days of the booking being made.
Should the mother be visiting South Australia at any time upon her having given the father notice in advance of her doing so, the mother spend time with X at such times and at such places to be agreed between the parties in writing, on the basis that the mother advises the father of the name, address and contact details for all places of accommodation for herself and X within South Australia during 2021, and thereafter from 2022 on the further basis that unless otherwise agreed in writing in advance, the mother is required to ensure X’s attendance at school in South Australia during such period.
Should either party wish to travel with X during any period of care of her from outside his or her (as the case may be) “home state” that party shall give the other party at least four (4) weeks written notice thereof, including as to applicable details for flights, accommodation and contact details.
Unless otherwise agreed in writing between the parties, X communicate with the party whose care she is not in via Skype/telephone twice each week on Wednesdays and Sundays at 4.30pm local time for X, with the party whom X is not being cared for at the time to initiate the Skype/telephone call.
X be enrolled to attend at Town B Primary School in 2022 for the entirety of her primary education unless the parties agree otherwise.
The parties do all such things and sign all such forms necessary to enrol X in a secondary school to be agreed between them in writing.
Each party keeps the other informed of their current residential address, mobile and landline telephone numbers (if applicable) and any available email addresses and advise the other party of any change thereto within seven (7) days of such change.
The mother and father do all things reasonable to ensure that the other is kept informed in a timely manner of any issues relating to the wellbeing, health, education and care of X whilst with the respective party.
The mother and father inform the other forthwith by telephone call to the other’s mobile telephone in the event of any accident, serious injury or serious illness suffered by X and of all and any medical or other treatment received by X. In the event the other party does not answer the call then the informing party shall message the other party via the communication app/mode used by the parties.
The mother and father provide to the other names and addresses of all medical, dental and licensed health practitioners consulted by X.
The mother and father authorise the other to receive any and all information from any treating doctor, licensed health practitioner and dentist, including access to reports, whom X may attend from time to time.
Both parties be at liberty to attend all of the children’s sporting and extra-curricular activities and all school functions routinely attended by parents in respect of the child, obtain copies of the child’s school reports and school photographs and any other school related information in respect of the child.
Each of the parties, their servants and agents be hereby restrained and an injunction issue restraining them from:
(a)Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party; and
(b)Discussing these proceedings or the contents of any documents filed in these proceedings with or in the presence or hearing of X, and from permitting any other person to do so.
All outstanding applications are dismissed and the proceedings are removed from the list of matters awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Beauford & Keddie is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 4506 of 2018
| MR BEAUFORD |
Applicant
And
| MS KEDDIE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is what is commonly referred to as a relocation case. Relocation cases arise when one parent, invariably for very good reasons, wishes to move a child far away from the other parent concerned, who, for equally good reasons, is unable to move in tandem with the child.
Inevitably, the consequences of such a case, whatever its outcome, must have significant implications for the emotional well-being of the child concerned (and indeed each of the parents), in terms of the frequency and quality of child/parent interaction with the parent proposed to be left behind.
The issues in this case are particularly difficult and finely balanced, as the distance between the two locations involved is significant – Town B, South Australia and Town C, Western Australia. However, the dichotomy between the two competing locations does not turn on geography alone.
Rather, the court is placed in the invidious situation, in which it must determine what type of prospective childhood the child concerned will have, as the two households are radically different, both in their nature and composition.
However, as will become clear as the case unfolds, each of the parents has the potential to offer the child a happy and fulfilling childhood but these childhoods, at least in prospect, are likely to be fundamentally different – not necessarily better, just different.
To be frank, it is currently unknowable which will be the better one for the child concerned, who is of tender years, around four years of age, given the obvious uncertainty surrounding her temperament and idiosyncratic preferences, at this early stage of her development.
Yet, given the various factors, which have brought the parties to this point, for no fault of their own, the court must make this crucially important decision for them, as they cannot make it themselves, given the impasse arising from their respective circumstances and idiosyncratic preferences.
The fact remains many parental relationships break down every year in Australia. As such, a civilised society, governed by the rule of law, must provide a mechanism for deciding the appropriate living arrangements for the children affected by these failed relationships. This heavy responsibility falls to courts, such as this one, exercising jurisdiction under the Family Law Act 1975 (Cth).[1]
[1] See U v U (2002) FLC 93,112 at [97] per Kirby J
In short, I must carefully apply the statutory criteria provided by the legislation and consider the judicial guidance provided by superior courts to reach the outcome I consider is the one most likely to provide the best outcome for the child concerned.
At the same time, I must recognise that every case involving a relocation aspect – as with this one – is unique in its factual and emotional circumstances. Inevitably, each of the parties concerned can mount powerful arguments in favour of their respective positions.
In making the necessary decision, I am well aware of its moment for each of the parents concerned and especially the child whose best interest I must strive to promote. Sadly, I am well aware that it is impossible for me to achieve an outcome, which will be wholly satisfactory to all concerned.
Unavoidably, one of the parties (and those associated with them) will be bitterly disappointed at the outcome and any such result must have deficits for the child. This case is incapable of having a wholly satisfactory outcome.
I hope that, notwithstanding this state of affairs, the outcome of the case does not deepen the rift between the parties and they will each be able to adjust to it, so that the potential detriments for their child can be minimised and managed and she can maintain a loving and close relationship with each of her parents, notwithstanding the challenges relating to the distance between her parents’ homes.
Background
The child concerned is X. X was born in 2017, at the City D. Hitherto she has always lived in the south east of South Australia, particularly in the Town B area.
At present, X lives with her father in Town B. Her mother lives in Town C, where she has formed a relationship with another person. Court injunction prevented X leaving Town B, with her mother, until the issue of where and with whom of her parents she should live had been adjudicated.
The father seeks for X to remain living with him in Town B and spend what he would regard as liberal time with her mother in Town C during school holidays.
The mother seeks the court’s authority to change X’s place of residence from Town B to her home in Town C. She proposes broadly analogous arrangements for X to spend time with her father during school holidays.
Issues remain as to the payment of travel costs; the nature of electronic communication; and other specific issues. However, the extent of the controversy between the parties remains easily defined and, in practical terms, has only two possible outcomes.
In A v A: Relocation approach[2] the Full Court provided some guidelines to be applied to the determination of cases involving a relocation aspect, which can be summarised as follows:
·The best interests of the child concerned remain the paramount but not the sole consideration;
·As such, a parent wishing to relocate a child need not demonstrate compelling reasons to justify the move;
·Rather, the court should identify the competing proposals of the parties concerned and evaluate them each against the relevant criteria contained in the Act for determination of a child’s best interests.
[2] A v A: Relocation approach (2000) FLC 93,035 at 87,547
As will become apparent in due course, it is the mother’s position that she will not be compelled, by some form of coercive court order, to return to Town B. It is her case that she has demonstrated the reality of her resolve, in this regard, by leaving X with her father and moving to Town C, until her final application has been determined.
For his part, the father is vehemently opposed to X living away from Town B. He makes his living in Town B, has lived in the town all his life and has no obvious prospects of being able to live anywhere else. If the mother returned to live in Town B, which she says she will never do, he would be open to sharing X’s care.
Accordingly, pursuant to the principles enunciated in A v A, there are only two possible outcomes, which arise for the court’s consideration:
·X lives with her father in Town B and spends regular periods of time with her mother in school holidays;
·X lives with her mother in Town C and spends regular periods of time with her father in school holidays.
In short, the case offers no compromise. In mathematical terms, it is a zero sum game. It is either one outcome or the other, which offers no permutations in between. As such, whatever is the outcome, one party will feel hard done by and unheard.
Town B is a small rural and fishing community, with a population of less than 2,000, which is approximately 157 kilometres from Adelaide.
X’s father is Mr Beauford, who was born in 1974. He is a farmer who farms land near Town B, which was previously owned by his late father and which he now farms on behalf of his mother, Ms E (Ms E).
Mr Beauford[3] lives on the farm, which is about 16km out of town. He also owns a house in Town B itself, which is currently rented out. Ms E is 72 years of age. She lives in Town B and has done so for most of her adult life.
[3] I have elected to refer to the parties in these reasons for judgment by their respective given names. This is the practice they each followed during the proceedings themselves and in their affidavit material for the court. I mean no disrespect to the parties for adopting this nomenclature.
Ms E can only be described as a pillar of the Town B community. She is a retired public servant, who worked in her employment for around forty years, mostly at the Employer B.
X’s mother is Ms Keddie. She was born in 1987. Accordingly, there is an age gap of around 13 years between Mr Beauford and Ms Keddie.
X is Mr Beauford’s only child. It would appear to be the case that he had not had many significant relationships before he became involved with Ms Keddie, in 2016.
There is no dispute that Ms Keddie and Mr Beauford separated, on 4 December 2017, following a violent altercation between them, involving police, which occurred on that day.
On any view, the relationship between the parties cannot be regarded as having been a long established one or one which was founded on secure foundations. During the relatively lengthy trial of their competing applications, it became apparent to me that they are quite different in personality and temperament.
In many ways, Ms Keddie has had a challenging life to date and, in contrast to Mr Beauford, has four other children, in addition to X. Accordingly, the relationship between X’s parents was brief and she (X) herself is at the centre of a complex web of half-siblings.
It is the mother’s case that X’s proper place, in the family, is one in which she is able to interact with her various half-siblings, as much as possible. The father does not agree. It is his case that X is well settled, living with him, in Town B and it would not be in the child’s best interests for this arrangement to be upset.
X’s oldest half-sibling is F born in 2008, when Ms Keddie was aged around 20 years. In 2008-2009, there were court proceedings, in this court, regarding arrangements for F’s care.
The parties to those proceedings were F’s father, Mr G, Ms Keddie herself and F’s paternal grandparents, Mr & Ms H. The case centred on the capacity of F’s parents, who were very young at the time, to provide appropriate care for F.
Ultimately, it was agreed between all concerned that F should live, in City D, with his paternal grandmother and see his mother on alternate weekends and regularly during school holidays.
Ms Keddie was previously married to Mr J, whom I understand was also a farmer in the Town B district. Mr J died suddenly, in an accident, in 2015. His parents continue to farm in Town B and have previously had a supportive relationship with Ms Keddie.
The marriage between Ms Keddie and Mr J produced two children – K born in 2013 and L born in 2015. It is Ms Keddie’s case that X has a close relationship with K and L and the relationship between the three siblings should be at the forefront of the court’s consideration in determining the relocation aspect of the case.
For understandable reasons, the tragic circumstances surrounding the untimely death of her husband, Mr J, left Ms Keddie suffering anxiety and depression. It is her case that she remains deeply unhappy and emotionally traumatised as a consequence of what happened to her in Town B, a place which has only unhappy memories for her, and which she wishes to leave.
Ms Keddie met Mr Beauford shortly after Mr J’s death and the two began to live together, along with K and L, in a house owned by Ms Keddie and Mr J’s parents in Town B. X must have been conceived shortly afterwards.
With the benefit of hindsight, it is likely that Mr Beauford and Ms Keddie lacked the familiarity and confidence in one another necessary to start a blended family together. Certainly, Ms E regards her son as having entered the relationship because he regarded Ms Keddie as a lost soul, who needed his help. It seems almost certain that Ms Keddie herself was emotionally traumatised, when she began the relationship with Mr Beauford, which soon afterwards started to unravel.
Following their separation, when X was approximately eleven months old, Mr Beauford moved out of Ms Keddie’s house and the parties began a process of community based mediation to sort out parenting arrangements for X.
Ultimately, it was agreed that X would remain living with her mother and half-siblings and see her father overnight, on alternate weekends and during the day on alternate Wednesdays.
Following her separation from Mr Beauford, Ms Keddie reconnected with Mr M, a friend whom she had known since 2009. Mr M was born in 1986. He is a tradesman, who lives in Town C, a town approximately 300km from Perth, in Western Australia. Mr M’s family, particularly his mother, live in Town C.
The relationship between Ms Keddie and Mr M soon became a serious and committed one. It was the central factor leading to Mr Beauford commencing these proceedings, which he did on 30 October 2018. Around this time, Ms Keddie informed him that she wanted to take X to Town C, so that she could live with Mr M there.
Mr Beauford objected and sought an injunction, from the court, restraining Ms Keddie from moving X out of the Town B area. Judge Cole granted this injunction on 12 December 2018 and contemporaneously ordered that, if Ms Keddie moved to Western Australia, X should live with her father in Town B.
On 26 January 2019, Ms Keddie moved to Town C, with K and L, and X has lived in the care of her father, at his farm near Town B, ever since. Mr Beauford continues to manage the farm and is assisted, on a daily basis, in his care of X, by Ms E.
As previously indicated, it is Ms Keddie’s case that the fact she left X behind with her father is testament to the strength of her conviction that she cannot live in Town B, notwithstanding her devotion to X.
During 2019 and 2020, X has regularly visited her mother, in Town C, for extended periods. Although, more recently, these visits have been derailed by the Covid-19 crisis. X is also able to interact, with her mother and half-siblings, via Skype and video calls.
This is another issue in the case. Mr Beauford asserts that he has supported X interacting with her mother and half-siblings through these electronic media. However, for her part, Ms Keddie challenges Mr Beauford’s willingness to commit to and support this mode of communication. She complains that her calls are not answered or properly supported.
In addition, particularly in connection with the preparation of these proceedings and during their subsequent hearing, Ms Keddie has returned regularly to South Australia and has been able to spend time with X.
However, the progress of the proceedings has not been without incident. Judge Cole listed the case for final hearing, in the court’s Mt Gambier circuit as quickly as he was able – in late February of 2020, following the preparation of a family report in July 2019.
Unfortunately, the three days set aside for the final hearing were not sufficient to enable all the evidence required to be given. At the time of the February hearing, Ms Keddie was in an advanced state of pregnancy. As a consequence, the resumption of the hearing had to be delayed.
This delay coincided with the Covid-19 pandemic emergency and the closing of the border between Western Australia and South Australia, which rendered it impossible for X to have face-to-face time with her mother and half-siblings.
The case was able to resume, in Adelaide, on 18 August 2020, when Ms Keddie and Mr M were able to secure permits to enter South Australia. In the meantime, Ms Keddie gave birth to N in 2020. Ms Keddie was not able to interact directly with X, between 22 February and 17 August 2020.
N is Mr M’s first child. He and Ms Keddie have now purchased a home together in Town C through a mortgage and using the proceeds of sale of Ms Keddie’s interest in her previous home at Town B.
It is Mr M’s position that he is happy and well settled in Town C, where he has secure employment, which he enjoys. His life and family are in Town C, which he regards as his home and which he has no desire to leave. It is the effect of his evidence that he will find it difficult to secure similar employment in Town B.
As previously indicated, it is Ms Keddie’s evidence that Town B has only unhappy and traumatic connotations for her, particularly in the context of Mr J’s premature death. It is her case that she is not able to cope psychologically, in Town B.
This is not only because of the failure of her relationship with Mr Beauford but also because she feels that she is constantly subject to scrutiny and gossip in what she regards as the small and insular community of Town B. It is her position that she has gained emotional resilience as a consequence of her relationship with Mr M, who does not wish to leave Town C.
In these circumstances, it is her case that it would have been irresponsible for her, as a parent, not only for X, but also for K and L, for her to remain in Town B, where she simply could not function properly. In this respect, Ms Keddie is supported by the family report writer, Mr O, who categorises her decision to leave Town B, albeit it involved leaving X behind, as an insightful and child-focussed one.
In all these circumstances, it is Ms Keddie’s position that X’s best interests will be served, if she lives with her mother in Town C and regularly visits her father, in Town B, for extended periods in school holidays. The most obvious implications of such an outcome would be the re-unification of X with her siblings K and L and the opportunity for her to grow-up in the same household as baby N.
On the other hand, it is Mr Beauford’s case that due to his responsibilities for his mother and the farm, he cannot leave Town B. He asserts that X is flourishing, in his care, on the farm and given that this has been the reality of her life, for the past nineteen months or so (approaching half her life to date) there is no pressing need to change this longstanding arrangement, and to do so would be contrary to her best interests.
Essentially, Mr Beauford approaches the case from considerations of stability and continuity. It is his case that it would constitute an unwarranted experiment to uproot X from the home which she has known for the majority of her life and then insert her into a complex and developing family constituted of Ms Keddie, Mr M, K, L and now N.
Mr Beauford fears such an experiment may miscarry, particularly given Ms Keddie has not always enjoyed sound psychological health and her complex blended family situation will inevitably produce many unforeseen pressures, which will impact upon X. In these circumstances, he contends that it is better to leave X where she is, in what he would describe as a known environment, in which she is flourishing.
In this context, he would characterise Ms Keddie’s decision to move to Town C, whilst leaving X behind, as a precipitate and selfish one, motivated more by her desire to have a relationship with Mr M than what is best for X. He does not accept that Ms Keddie and Mr M could not function adequately in the Town B area. Ms E shares his view in this regard.
As such, Mr Beauford would characterise himself as the parent who has displayed the better level of insight into the heavy responsibilities of being a parent. Essentially, he stepped into the breach, so far as X’s care was concerned, whereas Ms Keddie put her own needs first.
In this respect, Mr Beauford and Ms E would echo the oft-quoted passage from Gummow and Cullinan JJ, arising from U v U, as follows:
“The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.”[4]
[4] U v U (2002) FLC 93,112 at [92]
Essentially, they contend that the parental obligations Ms Keddie owes to X are such that, if she wishes for X to have the best possible outcome in life, it will be necessary for her (Ms Keddie) to subjugate some of her personal aspirations and desires, in the medium to longer term, to ensure that X’s best interests are served.
From Ms Keddie’s perspective, such an outcome would be deeply unfair to her and most likely detrimental to X. It is her case that she has no rational choice other than to leave Town B, where she is deeply unhappy and cannot function as a parent, regardless of its possible implications for X.
In addition, such an outcome would ignore her entitlements, as a free individual to pursue the relationship of her choice in the location of her preference. Quite simply, living with Mr M (whom she loves) in Town C will make her happy, whilst living in Town B will not.
It is her case that she cannot be shackled to Town B and Mr Beauford indefinitely just because the two of them are the parents of X. In addition, she is not in a position to compel her current partner to live somewhere which is not palatable to him.
She would refute any suggestion that she is selfish or capricious by the fact that when confronted with this extraordinarily difficult decision, in the short term, she elected to move to Town C although she knew it would have serious implications for her relationship with X.
Rather, she would characterise herself as a parent who found herself on the horns of a dilemma arising from the difficulty of reconciling her own needs, with those of her children, in the face of a co-parent who would not compromise. She too would draw solace from a different aspect of U v U.
Gaudron J (who was in dissent) said as follows in the case, in respect of the dilemma created by such a situation, particularly from the perspective of a mother:
“A mother who opts for relocation in preference to maintaining a close bond with her child runs the risk that she will be seen as selfishly preferring her own interests to those of her child; a mother who opts to stay with her child runs the risk of not having her reasons for relocating treated with the seriousness they deserve.
It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated.”[5]
[5] See U v U (2002) FLC 93,112 at 89,082
It is Ms Keddie’s case that the court must be very careful to properly evaluate her case from the perspective of X’s best interests, whilst at the same time not ignoring her legitimate expectation that she is entitled to live the life of her choosing in the location of her preference, with the partner she loves.
However, Ms Keddie’s case is a more nuanced one than that. It is her position that she is the more insightful and capable parent, whilst Mr Beauford is an odd and insular person, who will not be able, in the longer term, to meet X’s emotional needs, whilst she grows to maturity. She would characterise him as being emotionally needy and unhealthily over-reliant in maintaining the residence of X because of his own fears about living alone.
In addition, she would characterise him as a compromised role model, for a child such as X because, in the past, she alleges he has used family violence as a means of resolving disputes within the home or alternately, he has become violent when frustrated emotionally.
In the present case, much of the evidence was devoted to examining various incidents, particularly what occurred at the time of the parties’ final separation, in an attempt to determine whether one of the parties concerned had subjected the other to episodes of family violence as defined by the Act.
Ms Keddie would contend that Mr Beauford did subject her and the other children concerned to such episodes of family violence. On the other hand, Mr Beauford, whilst accepting his behaviour was not always perfect, would assert that he was merely reacting to stressful circumstances and the fact that he and Ms Keddie did not have a secure and established relationship with one another.
As such, it is his case that his household cannot be characterised as a violent one or one in which it is probable X will be exposed to family violence in the future. It is his case that he and X are a small and perhaps idiosyncratic family unit, augmented by regular support from Ms E, which is eminently suitable and supportive for X and her needs, both emotionally and in practical terms.
On the other hand, Ms Keddie would assert that the family which she can offer X is a much more conventional one. This family may be rambunctious and busy from time to time, but is one in which X will have a clearly defined position between her two elder half siblings and her newly born one. Essentially, X will feel that she is in the right place in her family, if she lives in Town C, but will inevitably feel she is in the wrong place if she remains in Town B isolated from her sisters.
In the opinion of Mr O this is the determinative factor. Whilst conceding that it may be difficult for X to make the adjustment required from transitioning into a household in which she is no longer the focus of attention from a parent and grandparent, but must struggle with other siblings, Mr O considered as follows:
“[K]eeping young siblings together, would normally been seen as an important factor, in maintaining their emotional well-being, and long term familial attachments and bonds, as would strengthening the attachment established with primary care giver. In the light of this, the Court may wish to consider giving these relationships, some weight, in the deliberation of where X should primarily live.”[6]
[6] See Family Report dated 28 June 2019 at [142]
Ms Keddie also has considerable reservations about the overall safety of a working farm for a child of X’s tender years. It was her experience that Mr Beauford was frequently away from the main farm homestead and, from time to time, did not pay adequate attention to X’s safety, particularly when mustering livestock and the like.
Mr Beauford and Ms E, needless to say, reject these claims and assert that all proper precautions are taken around the farm. Ms E in particular has deposed that Mr Beauford has done a remarkable job in accommodating X’s physical and emotional needs. From her perspective, the two are inseparable and it would be extraordinarily difficult for X to live away from her father.
It is their case that X is currently enjoying a very rich and varied childhood growing up in a rural setting, in which she can interact with animals and wide open spaces. In addition, they have taken all the necessary steps to ensure that she can interact with children of her age in a variety of settings, particularly a local playgroup in Town B. They reject the assertion that she is a lonely child.
Mr Beauford and Ms E concede, as they must, that X is currently being parented largely in a single parent home, in which that parent is engaged in full time work. However, they reject that this household is not suitable for X.
To the contrary, they each extol the virtues of a farm based childhood, augmented by attendance at a rural school, and assert that X is fortunate to be able to interact with a grandparent on an almost daily basis. They reject any suggestion that issues relating to X’s safety have ever been overlooked. It is their position that, when Mr Beauford is working on the farm, Ms E is always present to look after X.
One of the intentions behind presenting this brief synopsis of the parties’ competing claims is to provide the basis for my introductory comment defining the dilemma which this case presents. Essentially, the court is placed in the position of having to decide the nature and quality of the childhood which X will have in prospective terms.
Will she, in effect, be a much doted upon only child, growing up on a farm, playing with animals or will she be part of a large and rowdy family unit, in which she is not the sole focus. The two childhoods must be different and it is impossible to say which is likely to be the one to have been preferred by X in retrospect.
Necessarily, the risk arising from this state of affairs is that of the resulting decision appearing judgemental in nature. Yet the decision must be made notwithstanding this difficulty.
However, regardless of the dilemma thrown up by this case, the evidence indicates that X has hitherto been able to maintain a satisfactory level of relationship with each of her parents and notwithstanding the distance involved, has been able to spend significant periods of time with each of them.
This is a good harbinger for the future. It is abundantly apparent to me that X is a much loved child and both Mr Beauford and Ms Keddie have much to offer her as she grows up. In addition, regardless of the distance between their two homes, it seems probable that she will have a meaningful level of relationship with both her father and her mother.
The legal principles applicable
Part VII of the Family Law Act deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration [see section 60CA].
Part VII is subject to a number of principles and objects set out in section 60B. These, if you like, provide the philosophical under-pinning of the Act as it relates to decision-making so far as children are concerned. I will provide them verbatim:
“(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The principles, which underpin these objects, are set out in section 60B(2) and are as follows:
“(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
Clearly, in the context of the current matter, involving as it does the parents concerned living in separate states, these principles are difficult to apply in practice. Given the distance involved, X will only be able to spend time with one of her parents during school holidays. The likely disappointment flowing from the court’s decision may impede the parties’ capacity to make parenting decisions consensually.
Most significantly of all, the distance between Town C and Town B will necessarily preclude X from deriving the optimal level of meaning in the parental relationship she has with each of her parents, unless one of them decides to move closer to the other, which currently is not an outcome proposed by either.
The Act, picking up on section 60B, provides a specific list of matters, which the court must take into account in determining how a child’s best interests are to be served in the making of any parenting order. They are contained in section 60CC.
Section 60CC creates two classes of considerations, which apply to the court’s determination of how a child’s interests will be best served in proceedings before it. They are designated as primary considerations and additional considerations.
There are two primary considerations, which are set out in section 60CC(2)(a) and (b), namely:
“(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.”
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of the decisions of the Family Court, as twin pillars, the importance of which depends on the circumstances of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act, the Court is now directed, in applying the primary considerations, to give greater weight to section 60CC(2)(b), which is the primary consideration relating to the need to protect children from physical or psychological harm, from being subjected to or exposed to neglect, abuse or family violence.
As already indicated, it is a significant plank of Ms Keddie’s case that, in the past, Mr Beauford has exposed X to family violence and therefore the court’s preeminent obligation is to protect X from coming to harm. She submits that the best mechanism to achieve the prerequisite level of protection is through X living predominantly with her.
Mr Beauford acknowledges that the relationship between the parties was frequently a turbulent one, which he ascribes to personality issues and relationship issues rather than a marked imbalance of power between domestic partners. It is his position that, with the end of the parties’ relationship, the risk of X being exposed to family violence, in his household is minimal.
Family violence is defined by section 4AB(1) of the Family Law Act. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.”
The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
·an assault;
·a sexual assault or other sexually abusive behaviour;
·stalking;
·repeated derogatory taunts;
·intentionally damaging or destroying property; and
·the withholding of financial support.
Accordingly, family violence means not only violence, which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person.
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”.
Again, in section 4AB(4), the legislature has included examples of conduct which may amount to such exposure, which include:
·overhearing threats;
·seeing or hearing an assault;
·comforting or providing assistance to a member of the child’s family, following an assault;
·cleaning up after property has been damaged; and
·being present when police attend an incident involving an assault.
In assessing cases involving family violence, the court needs to be aware of the nature of family violence, in general terms. Family violence, by its nature, is something that frequently occurs behind closed doors in the private confines of a family home.
Accordingly, it is very often difficult, if not impossible, for there to be independent verification that it has occurred. However, “the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.”[7]
[7] See Eaby & Speelman (2015) FLC 93-654 at 80,322 [21] per Ryan J
Family violence is not homogenous in its qualities and can arise in a variety of contexts. It is also well recognised, including by the legislature through the provisions of the Family Law Act, that family violence is prevalent in all walks of Australian society and represents a great threat to the wellbeing of children.
Family violence can place children at actual physical risk of being hurt. It also has the potential to do them emotional harm, if they are subjected to exposure to a well-loved family member being hurt or frightened. For obvious reasons, individuals who use force to coerce or control another person are not appropriate role models for children.
This would appear to be the gist of Ms Keddie’s case. She contends that Mr Beauford is likely to respond poorly to stressful situations and may be a poor role model for X. She would characterise Mr Beauford as a bully.
Family violence can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown, and is instantly regretted, or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned. Obviously, the latter type of behaviour is more damaging, so far as children are concerned. But not all incidents of family violence will be damaging for a child.
On the other hand, it would appear to be Mr Beauford’s case that there was no power imbalance between the parties. Rather, they were emotionally unsuited for one another and this led to their relationship being stressful for each of them, with at times unfortunate consequences.
It is not the role of this court to punish parties for past failings arising from their relationship. Rather its task is prospective in nature, involving an assessment of the risk arising for any particular child of the future occurrence of some particular event, including the possibility of exposure to family violence or some other form of abuse.
In making this assessment of risk, the court is required to assess the degree of possibility that a harmful event will occur in future and what will be its level of severity, to any individual, particularly any child, who will be potentially affected by it, with or without any precautionary mechanisms.[8]
[8] See Deiter & Deiter [2011] FamCAFC 82
The additional considerations are set out in section 60CC(3). There are fourteen such criteria, including, pursuant to section 60CC(3)(m), that the court is empowered to have regard to any other fact or circumstance which it considers relevant. This is to ensure that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[9]
[9] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[10] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[11]
[10] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[11] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
The primary considerations are generally to be given more emphasis, arising as they do directly from the aims and principles of the family law legislation. However, in determining the outcome of a particular case, one or more of the individual considerations may come to the fore.
In the current matter, the following additional considerations, set out in sub-paragraphs (b); (d); (e); (f); (i); & (j) are likely to be central. These subparagraphs deal with the following issues:
·The nature of X’s relationship with each of her parents and particularly other relatives significant to her. In Ms Keddie’s case, her siblings L, K and N. In Mr Beauford’s case, her paternal grandmother Ms E;
·The likely effects of any change in X’s circumstances. This is one of the central aspects of Mr Beauford’s case. He believes it will be deeply unsettling for X to leave his household and move into a very different one in Town C;
·Practical issues to do with X spending time with each of her parents given the distances between their respective homes;
·Parental capacity to provide for X’s emotional and intellectual needs. This is a central theme of Ms Keddie’s case. She is concerned about the potential for Mr Beauford to use X as an emotional crutch;
·Level of parental insight. Ms Keddie would characterise herself as being the more competent parent and the one more sensitive to X’s needs, including her medical needs;
·Family violence.
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
Because of the importance the legislature places on both parents being closely involved in their child’s life, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA].
The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned. Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from section 65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made (and with equal effect a substantial and significant time order).
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. This is because section 65DAA(1) & (2) are expressed in “imperative terms” and oblige the court to consider both questions. The affirmative answer to both being an essential jurisdictional fact before an equal time or substantial and significant time order is made.
Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and children not merely whether it is desirable, in the sense of facilitative of the child’s best interests alone, that an order be made for equal time to be spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[12]
[12] See MRR v GR (2010) 240 CLR 461 at [13] & [15]
Accordingly, a proper consideration of what is feasible requires the court to consider the circumstances of both parties. This is particularly so if an equal time (or a significant and substantial time) order can only come about by requiring both parents concerned to remain in (or move to) the same locale.
The legislative pathway, which was delineated by the Full Court in Goode & Goode can be summarised as follows:
·The court is to consider the section 60CC matters relevant; then
·Decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or in an interim matter only, it is not considered “appropriate” for it to be applied;
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.
On a final basis, Mr Beauford proposes that he and Ms Keddie be conferred with equal shared parental responsibility for X. However, given the relocation aspects of the case, he concedes that it is not feasible for X to live in an equal time or substantial and significant time regime. This would appear to reflect the practical reality of the parties’ current situation.
Ms Keddie’s application is silent in respect of the presumption, she simply seeks the court’s permission to relocate X’s place of residence to Western Australia. She does not propose any formal mechanisms as to how decisions for major long term decisions should be made in respect of X. She proposes a raft of orders designed to exchange information between the parties in respect of X.
How responsibility for the parenting of a child is formally conferred upon a person, in proceedings conducted under the Family Law Act, is through the making of a parenting order. Parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children [section 61B].
The court has authority conferred upon it, through the provisions of Part VII of the Family Law Act, to alter the conferral of parental responsibility on any parent or parents, which arises by reason of their status as parents of any child concerned. This is done through the mechanism of a parenting order.
A parenting order is an order which deals with such issues as the persons with whom a child should live; spend time and communicate with; and the persons who should have responsibility for making decisions, both significant and otherwise, about a child and the degree of consultation necessary to implement such decisions [section 64B(2)].
Pursuant to section 65C of the Act, a child’s parents; the child him or herself; a child’s grandparents; or any other person concerned with the child’s care, welfare or development; may apply for a parenting order. Accordingly, the applicants have legislative authority to seek the orders, which they do.
In addition, as a consequence of the provisions of section 65D, the court is empowered to make whatever parenting order it considers “proper”. Pursuant to section 64B parental responsibility can be allocated to two or more persons.
Clearly this provision, when considered in the light of the objects and principles underlying Part VII, contained in 60B, is supportive of the concept of parents sharing parental responsibility and meeting their responsibilities concerning their children’s care, welfare and development.
It appears obvious from the positions which each party has advocated in these bitterly contested proceedings that each of them is fervently interested in everything pertaining to X’s care, welfare and development.
An order which provides for shared parental responsibility requires that the parties to it consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Pursuant to section 65DAE, parents (or other relevant persons) do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or other of them.
This is to ensure that the myriad decisions, which have no long term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents, can be made.
Cronin J said of the concept of parental responsibility that it:
“… is a broad concept as described in s 61B and that task covers many things. Parents are expected jointly to endeavour to promote their children’s development by ensuring they have the greatest potential in adulthood whilst at the same time enjoying the security of childhood they deserve.” [13]
[13] Ibid at [21]
These aspirations are likely to be difficult to achieve in the context of a bitterly contested relocation case, particularly one characterised by the parties concerned having a compromised capacity to communicate with one another and a significant level of suspicion and hostility given their relationship history.
Given the structure of Part VII of the Family Law Act, particularly in matters where the presumption of equal shared parental responsibility applies, cases involving one parent wishing to move a major distance away from the other parent concerned raise significant issues for the court and the parties concerned. Such cases throw up competing principles, which are difficult to reconcile.
On the one hand, one of the purposes of the Family Law legislation is to provide former partners with mechanisms to enable them to lead separate lives from one another in future and make arrangements for the care of their children, in the now changed circumstances following the end of the marital or de facto relationship between them. There is no principle of law that requires separated parents to live indefinitely in close proximity to one another.
Pursuant to rights read by the High Court into the Australian Constitution, Australian citizens, and those resident in this country, have a right to freedom of movement, both internally within Australia and indeed overseas. Australia is a free and democratic society, which prizes the rights of its citizens to live where and how they choose.
On the other hand, pursuant to the principles contained in the Family Law Act, it is the entitlement of a child to have a meaningful relationship with both his or her parents, regardless of the fact that the parents concerned chose not to live together. As such, it has been said that relocation cases need careful analysis.[14]
[14] See C & S [1998] FamCA 66
This requirement for careful analysis flows from the fact that a parents’ entitlement to freedom of movement, as a citizen, is frequently difficult to reconcile with the entitlement which children have, pursuant to the Family Law Act, to maintain and develop relationships within their family, particularly with a parent, which are likely to be significant to them, both in the short and long term.
The High Court has considered this dilemma in a number of cases and has determined that although the child’s best interests are the paramount consideration, they are not the sole consideration for the court.
A parent’s aspirations, as to where and how he or she proposes to live in future, are matters which the court is required to take into account. However, these expectations must yield to the child’s ultimate best interests.
In AMS v AIF; AIF v AMS[15] Kirby J set out nine general propositions, derived from the relevant authorities, concerning relocation, which can be summarised as follows:
[15] AMS v AIF; AIF v AMS (1999) FLC 92-852 at 86,041-86,043
·Each relocation case is unique and so the facts of each such case require a careful and delicate analysis;
·As a result, no single factor will be dispositive in a relocation case. Each case requires the application of an individualised judicial discretion. Although the child concerned’s welfare is the paramount consideration, it is not the only consideration for the court;
·Accordingly, the court cannot ignore the legitimate expectation of a parent that he or she should be free to live how and where he or she chooses in future. There is no universal rule that requires separated parents to live in close proximity with one another to ensure that their children have the optimal relationship with both their parents;
·Democratic societies, for obvious reasons, place great store on the entitlements of adults to decide where they will live. Accordingly, courts are reluctant to interfere with a parent’s right to freedom of movement, particularly if that parent is the unchallenged custodian of the child concerned. Interference, by court order, in the life of such a parent, may lead to resentment on that parent’s part, which, of itself, is likely to have negative implications for the child concerned;
·However “the touchstone” remains the best interests of the child concerned and not the wishes and interests of parents;
·One of the primary functions of Family Law legislation is to provide mechanisms for separated spouses to begin a new life for themselves, independently of their former partners. Accordingly, any legislative rule regarding the right of a child to maintain frequent and direct relations with both parents cannot be interpreted as an absolute one;
·Courts in Australia have a more relaxed attitude to relocations within Australia, when compared to overseas relocations, because of the availability of reliable transport and telecommunication facilities within Australia and because of the homogeneity of social and cultural factors in this country;
·When considering a relocation application, the court will be required to assess the adequacy of new contact arrangements with the other parent concerned, and particularly whether those arrangements are in the best interests of the child concerned.
·The court retains the discretion to depart from the norm of shared parental responsibility, in appropriate cases.
In Taylor & Barker[16] the Full Court of the Family Court speaks of the risk of the court potentially devaluing the legislative imperative placed upon it to consider actively a child spending equal time or substantial and significant time with both parents, in all cases, including those which contain a relocation proposal.
[16] Taylor & Barker [2007] FamCA 1246 at [81]–[83]
In Taylor & Barker the Full Court indicated that the outcome in a case containing a relocation would usually emerge after a consideration of the second limb contained in section 65DAA, namely what is reasonably practicable in all of the circumstances of the case concerned, which is necessarily a different consideration to what is hypothetically in the best interests of the children concerned.
There is no doubt that in theoretical terms the court has the authority to make what has been characterised as a coercive order. In effect directing that, if a parent wishes to be either a co-parent or to remain a primary custodian of a child, he or she must either remain in a designated locale or move to such a location.Such a power is to be exercised rarely and is not without its implicit risks.[17]
[17] See Sampson & Hartnett (No 10) (2007) FLC 93-350 at 82,016 [57]–[59]
Given the strength of Ms Keddie’s conviction in respect of her returning to Town B and the fact that she moved away from its environs to pursue her relationship with Mr M, who did not himself elect to move to Town B to be with Ms Keddie, it is clear to me that there must be many practical implications arising from directing Ms Keddie to return. In my view, it is simply not feasible.
The same can be said of the prospect of Mr Beauford moving to live in Town C. He has the farm to consider and his obligations towards Ms E. Technically, he is her employee. His life is enmeshed with Town B. Like Ms Keddie, it is simply not feasible for him to move to live in Western Australia to be closer to X, if this is the court’s ultimate decision.
In Adamson & Adamson the Full Court described a father’s electing to live and work in one location and a mother choosing to live somewhere else as being different manifestations of the same perfectly legitimate right. The Full Court went on to indicate:
“The Court must be sensitive to the wishes and rights of parents to live and work wherever they desire.
These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interest where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effect.” [18]
[18] Adamson & Adamson (2014) FLC 93-622 at 79,699 at [59]–[60]
In these circumstances, the focus of the case is likely to be on the application of the various section 60CC factors to each of the parties’ competing applications for X to live primarily with him or her and how X may derive the benefits flowing from her having a meaningful level of relationship, with each of her parents, given the tyranny of distance arising in the case.
The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced. I accept that to be meaningful parental relationships require both sufficient temporal quantity and quality of shared time to sustain them.
A relationship does not necessarily become better, if a parent spends more time with a child but, for obvious reasons, a parent must spend sufficient time with the child concerned for the relationship between the two to become and remain “meaningful”.
In Mazorski v Albright[19] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned. X has lived predominantly, with her father, for the past twenty or so months but has seen her mother regularly.
[19] See Mazorski v Albright (2007) 37 Fam LR 518 at 526 [26]
Prior to that time, she lived mainly with her mother but saw her father often. Accordingly, it would appear to be the case that X knows each of her parents well and has a meaningful level of relationship with each of them.
The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives. As a verb, involve means to participate or share experience.
Accordingly, in my view, the rationale of Part VII of the Family Law Act is that children derive benefits from feeling that their parents are involved or participating in their lives. A child’s life is, by necessary definition, every activity in which the child takes part. Literally, it means the child’s existence, as an individual.
The aspects of a child’s life, in which a parent can be meaningfully involved, are therefore multifarious. They include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting – as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, and collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations.
In this way, the child concerned is likely to have a more balanced and so richer relationship with each of his or her parents. It is these types of interactions, which add significance and value to parent/child relationships and so add meaning to them.
It also seems to me that parental relationships will become more meaningful, for the children concerned, if they entail a greater degree of involvement of the parent concerned in a variety of aspects of the life of the child concerned. In my view, it is significant that the legislature has elected, in section 60B(1)(a), to speak, in unconfined terms, of parental involvement in children’s lives.
As X’s best interests remain the paramount consideration in determining the outcome of any relocation proposal and as one of the components of a child’s best interests is the right to have a meaningful relationship with both his or her parents, I must consider the adequacy of the arrangements proposed by each parent for the child to spend time with the other parent concerned.
The potentially deleterious consequences, for children, of relocating away from one of their parents, compound with the distance involved. The tyranny of distance develops by degree.[20]
[20] See B & B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,196
For obvious reasons, it is likely to be more difficult for a child to maintain a meaningful relationship with a parent, if an international relocation is involved or the move involved is to a far distant part of Australia – say from Cairns to Canberra or Broome to Bairnsdale.
In the current case, the proposed relocation is one of significant distance, involving an interstate relocation. The most feasible mode of transport between Adelaide and Perth is by air. At either end of the journey it will be necessary for X to travel a significant distance by road.
There is nothing easy about the logistical implications arising in this case. For obvious reasons, I am not in a position to be able to predict with any degree of accuracy what will be the costs of such travel in future years. Ms Keddie has three young children and is not currently in the paid workforce. Mr M cannot be considered well paid.
Mr Beauford, as a primary producer, may have good years and bad in future. As such, how the inevitable costs of travel, for X, between South Australia and Western Australia, are to be borne in future, is likely to be a perennial problem.
The age of the child concerned may also be a relevant consideration, as is the state of development of the child/parent relationship involved and the parties’ financial capacity to maintain such a relationship, over distance [section 60CC(3)(e)]. Older children are likely to be better motivated to call a parent and can more easily travel unaccompanied.
X is about to start school next year or perhaps the one after that. She is familiar with Skype and other forms of electronic communications. She is also a fairly accomplished flyer but still needs the support of a chaperon for each of her flights. Travel for her, between Town B and Town C, is likely to be expensive and time consuming.
It is a common occurrence for a parent to move voluntarily away, from any child or children concerned, after a relationship breakdown. In addition, children are often relocated away from one of their parents, as a result of a consensual decision made by the parents concerned. In such circumstances, parents make the best of things and do what they can to maintain important relationships.
Often financial imperatives are involved – a parent is offered a better job elsewhere or falls in love, with someone from somewhere else. There is nothing extraordinary about such occurrences. They are part and parcel of life, particularly after parents separate and each wishes to embark on a new phase of life.
These types of situations come about because of the high level of mobility in Australian society and the reality that many parents wish to pursue career and personal opportunities, in a different place to that in which they lived whilst in a relationship with the other of their child’s parents. For obvious reasons, one of the frequent consequences of marital breakdown is that parties concerned form new relationships. Accordingly the interests of new partners become involved.
In such circumstances, children are frequently able to maintain their relationships with significant people, including a parent, by less frequent periods of quality time spent in school holidays, which is supplemented by other forms of communication, such as telephone, webcam or letters.[21]
[21] See D and S V (2003) FLC 93-137 at 78, 280
As Kay J pointed out in Godfrey v Saunders[22] “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”. In my view, this is a significant comment in the current matter.
[22] See Godfrey v Saunders 2008 FLR 287 at 298
In this case, each party asserts that X will be able to maintain the prerequisite level of meaningful relationship with the other party pursuant to the regime proposed by him or her. This may not be a perfect outcome but will achieve the objects of the legislation directed to maintaining child/parent relationships, without unduly restricting parental autonomy.
Although it will be beset with all manner of difficulties, arising from the personal imperatives which decrees that the parties must live in separate states, it is probable that X will be able to maintain a meaningful level of relationship with the parent with whom she does not predominantly live through a combination of electronic communication and regular face to face visits, as has occurred up to this stage.
One of the central questions arising in this case is who will be the more fastidious parent in regards to these issues and the more empathetic to the feelings of the child and the other parent. It is Ms Keddie’s case that it will be she, as she asserts that she has consistently found Mr Beauford to be wanting in terms of facilitating skype and face to face contact between her and X.
On the other hand, Mr Beauford asserts that he has done the best he can in regards to electronic communication and Ms Keddie has been insensitive to the fact that he cannot always be available to take her calls or deliver X because of his need to remain focussed on providing for X’s care.
Although the shared parenting legislation has added emphasis to the principle that children benefit, in their emotional and social development, by having as extensive a relationship as possible, with both their parents, there thus is no principle of law that the parents of children are required to live indefinitely close to one another, in order to ensure that such an optimal outcome is achieved. The recent legislative amendments have not changed this situation.
If such a principle was indiscriminately applied, in children’s cases, it would necessarily result in the negation of a parent’s entitlement to freedom of movement. Parents would never be able to move with their children following relationship breakdown. The court cannot ignore this entitlement. If the legislature intended to curtail this right, it would have specifically done so.
As a result of these considerations, I conclude that the main thrust of the inquiry, in this case, remains what outcome is likely to best serve X’s best interests.
Equally important, if the presumption of equal shared parental responsibility applies, must be a consideration of what is reasonably practicable. This must entail a close scrutiny of, from the perspective of each of the parties, respectively in Town B and Town C, what will work best for X, given the reality of her familial situation.
The best interests of a child are ascertained by a consideration of the objects and principles contained in section 60B and the various considerations listed in section 60CC(2) and (3). Accordingly, the best interest test remains “integral” to the determination of any parenting issue, including the difficult issue of relocation.
In conclusion, the case presents no ready solution. Every relocation case is different and requires careful analysis. As is apparent from this survey of the law, the exercise I must undertake is “to attempt a resolution of often irreconcilable considerations”[23] which arise from complex issues. Such cases require the application of an individualised judicial discretion.
[23] See AMS v AIF (supra) per Kirby J at 86,041
Finally, as Boland J reminds me, the Family Law Act provides a pathway for the careful exercise of a structured discretion. In my view, this is a fiendishly difficult case but a decision must be made. It can only be made by a careful application of the Act, which I will endeavour to provide.
The Evidence
In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observation of the demeanour of each of the witnesses concerned.[24] I have tried to reach my conclusions on credibility and reliability on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.[25]
[24] See Evidence Act1995 (Cth) at section 140
[25] See Fox v Percy (2003) 214 CLR 118 at 129 [31] per Gleeson CJ, Gummow and Kirby JJ
The evidence in this case occupied approximately six sitting days, which were held in two equal tranches, in Mount Gambier and Adelaide respectively. As a consequence, I had the opportunity to see both Mr Beauford and Ms Keddie close up, under some significant level of pressure, whilst each gave their evidence and was subject to skilful and thorough cross-examination by the other’s lawyer.
Ordinarily, a court, such as this one, should refrain from making adverse comments about a parent, in the proceedings before it, unless it is specifically necessary to do so. It does not help children if the relationships between those who are influential to their care are inflamed by hurtful findings of fact, as a result of the court process itself.
b) The nature of the child’s relationship with each of her parents and significant others
This is one of the more significant considerations arising in this case given its unusual circumstances. X is at the centre of a complex intersection of relationships emanating from her mother. She has four half siblings, with none of whom she currently lives. They are F, who lives near her, with his paternal grandparents, in City D and whose father is Mr G; K and L, whose father Mr J is deceased; and finally baby N, whose father is Mr M and whom X has only recently met.
Accordingly, the siblings cannot be regarded as having a completely homogenous background. In addition, the living circumstances of X, on the one hand and K and L on the other, have been markedly different over the period of the last two years.
As such, this is not a case involving the imminent separation of siblings. X has been living independently of her half siblings for a significant period of her life to date. In her affidavit, Ms Keddie has deposed as follows:
“I am worried that X’s relationship with her sisters is going to suffer because of their separation. The girls have always been very close and spent their time together. K and L often tell me how much they miss X and ask me about when X will be again living with us.”[39]
[39] See mother’s affidavit filed 6 June 2019 at [18]
It seems inevitable that X’s relationship with K and L will have changed, to some degree or other, in the period since they have lived in separate households and have not interacted on a daily basis. What is the current nature of their relationship, with one another, at the present time, is more difficult to gauge, given Mr O was not in a position to appraise it in the course of the family assessment process.
In addition, even if X comes to live with Ms Keddie, it is likely to be the case that the experience of the two sets of siblings will be different, given X will be spending periods of time, in Town B, with her father, in holidays, in respect of which Ms Keddie has made it abundantly clear K and L are not to be included.
I accept that the relationship between siblings is potentially one of the most important of all human relationships. This is because, as a consequence of the natural incidents of the human lifespan, they have the likelihood of lasting longer than the relationship a child has with a parent. Such relationships are likely to derive their potency from the commonality of shared experience and memories.
Necessarily, as a consequence of their different backgrounds, the half siblings in this matter, particularly F, do not share a homogeneous background with one another. For obvious reasons, apart from the differences in their respective ages, X, on the one hand and K and L, on the other, have had quite different experiences of life up to this stage.
Necessarily, as a consequence of her different paternity and her extended separation from them, X must be regarded as something of an outlier, so far as K and L are concerned. In my view, this included the period prior to her mother’s departure from Town B, during which she spent time with Mr Beauford, in the absence of her siblings and obviously more so in the period since.
In my view, there is a level of inherent tension in Ms Keddie’s position that X, K and L must be regarded as a family unit, when she herself has taken a contrary view of them by restricting Mr Beauford’s access to K and L in the period following separation. Essentially, her actions have ensured that the siblings have had a very different experience of life in this lengthy period.
In this context, in my view, it must be something of a conjecture, on Mr O’s part, for him to consider that X will perceive that she is in the wrong place, if she remains in the care of her father and away from K and L. Such a speculation, in my view, cannot be definitively resolved. The only person who will know, definitively, if she is (or more accurately was placed) in the wrong place, is X herself and then only with the benefit of hindsight.
Mr O regarded Mr M as a positive influence in Ms Keddie’s life. He presented as a pleasant and thoughtful person, who relished the prospect of having a family. His relationship with K and L appears to be secure. Certainly, this is the view of Ms Keddie. Mr O was not in a position to assess these relationships.
Mr M carried X into the observed interaction with Mr O and was reported as being relaxed in his company. X herself seems to be a robust and resilient child. As such, it appears likely that she has a viable relationship with him, which could be consolidated if X moves into his and Ms Keddie’s household. However, necessarily, much of Mr M and Ms Keddie’s parenting focus, in this eventuality, will be on N.
Ms E clearly plays a central role in X’s life at the present time. She is more than a doting grandmother. Rather, she is instrumental in X’s care, socialisation and pre-school education. X and Ms E interact with one another on a daily basis. I found Ms E to be a down to earth and sensible person, who is obviously devoted to X.
The evidence available to me, which I accept, is that Ms E, in conjunction with Mr Beauford, has given close thought to how X can have a rich and rewarding childhood, in circumstances which can be regarded as atypical, so far as the comparable lives of children growing up in suburban Australia are concerned.
At present, X is an only child, whose principal caring parent is a busy self-employed person. She lives in a fairly isolated location, although in itself a stimulating environment for a child. In my assessment, Ms E, to her very great credit, has thrown herself into the task of overcoming these potential deficits to ensure that X has a balanced and well-adjusted childhood.
I do not consider that Ms E’s age can be considered a deficit in respect of her current discharge of this central role in X’s life. Rather, her age and experience brings a different but rich nuance into X’s life, which would not otherwise be there. X’s current care arrangements may not conform to a conventional nuclear model but, in my view, they are a stimulating and nurturing one.
I accept that Ms E ensures that X mixes with children of her own age. In all these circumstances, albeit as a result of Ms Keddie’s decision to leave Town B, it is apparent to me that X’s relationship with her paternal grandmother has become central to her life and sense of personal identity. This is an important consideration in the case.
c) The extent to which each of the parents has taken or failed to take the opportunity to be involved in decision making and to spend time or communicate with the child
This is a vexed and potentially controversial consideration. It is one of the central themes of Mr Beauford’s case (supported by Ms E) that Ms Keddie, in effect, abandoned X, when she moved to Western Australia and prioritised her relationship, with Mr M, over that she has with X.
Mr O is of the view that Ms Keddie’s decision to move to Western Australia was a sensible one, given her mental fragility at the time. I do not consider that Ms Keddie is open to censure for this decision. However, the decision must have ramifications for the outcome of the case, given the extent of time Mr Beauford has been X’s primary carer and the extent and facility with which he has made decisions in respect of her care.
In the period since Ms Keddie made the decision to move, it is clearly the case that she has utilised every opportunity open to her to engage with X. As such, there can be no suggestion that she has emotionally abandoned X or is in any way disinterested in decisions relating to her.
Mr Beauford was disinclined to give Ms Keddie any latitude in respect of the issue. From his perspective, it was non-negotiable, if Ms Keddie wished to move to Town C, X would have to remain in Town B with him. I have already remarked that Mr Beauford does not have a flexible or conciliatory approach to many difficult issues. I do not consider that this is an important criterion in the outcome of the case.
ca) Provision of financial support for the child
Mr Beauford is critical of Ms Keddie for being behind in her child support obligations. The amounts are not significant, particularly given that Ms Keddie cannot be regarded as a wealthy person and there are many demands in her household, including the costs associated with a new baby and the provision of travel for herself and X.
d) The likely effect on the child of any changes in her circumstances
Issues to do with change are at the centre of the dispute between the parties. They have different views about how readily X will cope if her life and care arrangements are changed significantly at this stage of her life and development.
In my assessment, this is the other crucial issue in the case, which ranks in significance with the assessment of X’s relationship with her half siblings K and L. Again, it is an issue steeped in conjecture and uncertainty.
The criterion directs the court to consider the likely effects of change. Essentially, the court is required to consider what is reasonably to be expected for the child concerned. Necessarily, the task cannot be approached with any sense of certitude in the outcome.
Rather, what the consideration appears to be directed towards, is the avoidance of dramatic or unwarranted change for the child. It being the case that some degree of change is a necessary corollary of every individual’s life, including a child. Every child has to transition to kindergarten and then primary school. Friendship groups change. To some extent, such changes allow emotional resilience to develop. Not all changes are bad.
On the one hand, Mr O opines that there is a very real probability that X will perceive, if she remains in Town B that she is in the wrong place. Accordingly, if she moves to Town C, she will feel like a piece of a jigsaw puzzle that has been slipped into its correct setting and the change will be a positive one for her.
On the other hand, Mr Beauford is of the view that X will feel wrenched from the home and care arrangements, in which she has thrived for around half of her life to date. It is his case that the farm environment, coupled with the extensive care provided by both him and Ms E is the one to which X has become accustomed.
As such, he conjectures that there are risks, if X moves from being at the centre of her idiosyncratic care arrangements to one in which she is a satellite vying for attention with K, L and now N. Essentially, the change must be considered a too dramatic and precipitate one given the elapse of time.
One matter on which all agree, including Mr O, is that X is a resilient child, who takes most things in her stride. She has spent time in her mother’s household, in Town C, in the past. Ms Keddie’s evidence is that it takes her some time to transition but she does do so. Mr Beauford’s evidence is that she re-integrates easily into his household, when she returns from her mother’s.
Again, like every issue in the case, the matters falling for consideration under this criterion are finely balanced. The issue is important but far from determinative. In my view, it could not be characterised as an impulsive and imprudent experiment to place X in her mother’s care. It is probable that X would cope with the change.
However, whether such a change is indispensable to her on-going welfare is a more subtle issue. In my view, it is not possible to determine whether one parental environment is likely to be significantly superior to the other. In this context, there is some moment to Mr Beauford’s position, summed up in Mr Boehm’s pithy epigram if it ain’t broke don’t try and fix it.
Overall, I do not consider that there is a compelling reason to change X’s current parenting arrangements. She is clearly a happy and well cared for child, who has a rich and well-structured life provided by Mr Beauford and Ms E. It is likely to be very different to the one which will be provided by Ms Keddie and Mr M, but one is not necessarily obviously superior to the other.
Inevitably, each has pros and cons. In one, X is the centre of attention in a doting adult household, in which close thought is given to maximising her engagement with her peers by Ms E and where she has the stimulation of a farm.
In the other, she is a smaller cog in a rambunctious household of many young children. As I indicated, at the outset, it is a matter of conjecture, on my part, as to which type of household is more temperamentally suitable for X and she herself is not able to express a preference, as yet.
e) The practical difficulties and the expense of the child spending time and communicating with each of her parents
No matter what is the outcome in the case, there will be logistical issues arising from the fact that X’s parents live in separate states and, if she is to spend regular periods of time with each of them, she will have to travel, most likely by air, regularly during the year.
This will be expensive. In addition, given X’s tender years at present, it is likely she will require a chaperone, at least for the next one to two years or so, which will add to the expense. The parties are not wealthy individuals and these expenses will be challenging to meet regularly.
There is no easy answer to these issues. There is a probability that, once these proceedings have been resolved, there will be less incentive, on the part of the successful party, to meet his/her obligations regarding travel for X.
What is the future of commercial air travel in Australia, in a post pandemic world, is beyond my capacity to assay. In particular, whether travel will become more expensive. What is certain is that modes of communication via electronic media will become more pervasive and perhaps more effective because individuals will travel less.
X is used to skype. Although Ms Keddie is critical of Mr Beauford for not being fully supportive of this mode of communication, it seems to me that each parent will utilise it to ensure that the other parent remains an active participant in X’s life, regardless of what is the outcome of the case.
In terms of the provision of the funds necessary for X to spend actual time with each of her parents, which clearly is essential for her on-going welfare, it is difficult to assess whether one parent will be more reliable or better financially resourced, in this regard, than the other. In this context, although this is clearly a very important consideration, it is not a determinative one. Again, it is line ball.
f) The capacity of the parents to provide for the child’s emotional and educational needs
I am satisfied that Mr Beauford, in conjunction with Ms E, will ensure that all of X’s educational needs are more than adequately met. As an experienced public servant, with deep roots in the Town B community, Ms E will make certain that this is the case. Ms Keddie will also ensure that X has an adequate education.
At the centre of Ms Keddie’s case is her conviction that she is more emotionally in tune with X than Mr Beauford. She would characterise him as being emotionally retarded in the sense that he can neither articulate his feelings nor respond adequately to those of others. It is considerations of this sort which have been highly influential in the shaping of Mr O’s view that Ms Keddie is better placed to parent Ms Keddie than is Mr Beauford.
These are important considerations. Ms Keddie is a sensitive and emotive person and certainly a more vocal person than is Mr Beauford, who as Mr O described him, is the quintessential laconic farmer. However, merely because he does not express them, it cannot be the case that Mr Beauford does not have emotions or is oblivious to the feelings of others.
He clearly loves X and she him. He makes her laugh. He plays with her. Whether he is capable of being her emotional confidant, as X grows older is a more difficult issue to resolve. On balance, this would seem to be a factor which favours Ms Keddie’s application. In addition, it would appear axiomatic that K and L have the potential to be emotional confidants, for X, if the three siblings are part of the one household.
g) The child’s maturity, sex, lifestyle and background
X is a pre-schooler, who is due to start primary school in 2022. As such, she is not, as yet, firmly ensconced in a cohort of friends. As such, her age is not likely to act as an impediment to a change in care arrangements.
Although she does not overtly express it as such, Ms Keddie perceives that it will be preferable for X to share a household with siblings of her own gender. She has significant misgivings that Mr Beauford will be able to approach issues of gender, as a sole father, particularly given that he is not a particularly emotionally expressive person and therefore X will be better off in her household, which must be regarded as a highly feminine one.
Although I must be careful to avoid sexual stereotyping, I do not dismiss these concerns out of hand. One of the things I must consider is in which household will X be the better fit? To a large extent, this is unknowable and is also an issue which turns on considerations of lifestyle and background.
Mr Beauford considers his home on the farm, bordering as it does the Region Q, as being the best place in the world for a child to grow up in. He loves it and can conceive of living nowhere else. Others may consider it cold, windswept and desolate. It is a case of horses for courses.
At present, the farm is X’s home and closely associated with two central figures in her life – her father and paternal grandmother. She too is likely to be strongly disposed towards it, as she grows up. However, I concede once again, that whether this will prove to be the case is not something I can accurately predict.
Again, whatever is the outcome of the case, X is likely to spend a lot of time at the farm, as she grows up. As such, it is likely to provide some of the strands of her identity as she matures into adulthood. Certainly, an environment, such as that provided by a working farm, with animals and livestock, at first blush, is likely to be a stimulating and rewarding one for a child of X’s age.
This is Mr Beauford’s view and it is his evidence, which I accept, that X identifies strongly with the farm and enjoys the lifestyle which it provides her. It does not seem improbable that X will continue to derive a sense of belonging from spending time at the farm, given its importance to her family.
However, the possibility of living predominantly in Town C will not result in the permanent excision of this aspect of her background from her life. Whatever happens, X will be able to spend regular periods of time, at the farm, and enjoy all it has to offer. In this sense, it may be overly dramatic to suggest that in living in Town C X has, in some way, gone into exile.
h) Aboriginality
This is not a relevant consideration in the case.
i) The attitude to the child and to the responsibilities of parenthood, demonstrated by each of the parties
Again, Mr Beauford would characterise Ms Keddie’s decision to go to Town C as displaying a flawed attitude towards the responsibility incumbent in being a parent, which is always to give pre-eminence to one’s obligations towards a child over one’s own personal aspirations and needs. As previously indicated, he would characterise Ms Keddie as being selfish in leaving X in Town B to pursue her relationship with Mr M.
In the circumstances of this case, given Ms Keddie’s particular vulnerabilities, in my view, this is an unduly judgmental and harsh attitude. In addition, it could be said that Mr Beauford himself was opportunistic and self-serving in refusing to allow X to relocate, with Ms Keddie, at the start of 2019, when it was clearly the case that she had been the child’s primary carer, in the period following separation, and had a legitimate reason for wanting to move.
Clearly, at this stage, Mr Beauford was not capable of any great magnanimity or self-sacrifice so far as his emotional needs were concerned. These are difficult issues and neither party has a superior claim over the other, so far as the high moral ground is concerned. It is not my role to be unduly censorious so far as the conduct of either Mr Beauford or Ms Keddie are concerned, in the period both before and after their separation.
In this context, I am satisfied that each of them did the best they could in challenging circumstances. More importantly, I am satisfied that both of them aspire to be the best possible parent for X. These proceedings have been bitterly contested.
This is because each party loves X very much indeed and therefore each has invested much into the outcome of the case. As such, both Mr Beauford and Ms Keddie have no ulterior motive in pursuing their respective applications other than they each think it would provide the best outcome for X.
It is conceivable that Ms Keddie thought that Mr Beauford would not be able to cope with X’s care in her absence, given his lack of prior parenting experience and his responsibilities as a sole farmer. In my view, it is greatly to Mr Beauford’s credit that he has been able to parent X so successfully, in tandem with Ms E, over the last two years.
As such, he has amply demonstrated his capacity to learn and assume the responsibilities relating to being a parent. This is a factor which militates in his favour and against upsetting the comparatively long standing status quo concerning X’s care.
j) Family violence
k) Any family violence order
There is no applicable family violence order in these proceedings. I do not propose to revisit the issues canvassed under the heading of primary considerations.
l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
If X remains in her father’s care and it is the case that she herself perceives that such an outcome is fundamentally wrong for her, it is likely to be the case that there will be a further episode of litigation as Mr Beauford, in my assessment, may not be inclined to easily concede the issue. This will not be helpful for X in terms of her emotional equilibrium.
On the other hand, the issue is largely hypothetical in nature. It is impossible to gauge with any certainty what X’s attitude in future may or may not be. In my view, there is no particular outcome, arising in this case, which implicitly will have the consequence of lessening the possibility of further litigation between the parties.
Presumption of equal shared parental responsibility
I do not consider that the presumption created by section 61DA of the Act is rebutted on the basis that I can have reasonable grounds to believe either party has abused the children or has recently engaged in family violence, which has had significant consequences for X personally. That is not to say, I do not consider the relationship between the parties was at times highly volatile and conflicted. However, in my assessment, both parties played a part in creating such an atmosphere.
In addition, having considered all the relevant best interest factors contained in section 60CC, I have come to the conclusion that it would not be appropriate to promote one parent above the other in respect of the exercise of parental responsibility for X notwithstanding the fact that they live so far apart and do not communicate with any great facility or at all.
On any view, both the mother and the father aspire to be involved in every aspect to do with X’s welfare. As such, every issue to do with X is of enormous moment to both Mr Beauford and Ms Keddie. In these circumstances, notwithstanding the obvious difficulties which will arise in respect of the consensual exercise of joint decision making for X by her parents, it is appropriate that Mr Beauford and Ms Keddie be conferred with equal shared parental responsibility for her.
It will be difficult for Mr Beauford and Ms Keddie to agree on major long-term issues arising for X, no matter in which of their households she lives. However, in my view, that of itself is no reason to promote one parent over the other in respect of the making of such decisions given the devotion and interest each has in X.
In the current circumstances, it is obviously impracticable for X to live for either equal time with each of her parents or for substantial and significant periods as defined by the Act. Sadly, unless Ms Keddie returns to Town B, which appears unlikely, or Mr Beauford moves to Town C, which is even more improbable, X must live more with one parent than the other and, in the difficult logistical circumstances prevailing, the court needs to fashion the orders which will best enable her to maintain a meaningful level of relationship with the other parent.
Conclusions
As I hope these lengthy reasons for judgment indicate, I have not found this an easy case to determine. In effect, the burden of having to choose between two radically different potential childhoods for X has been a heavy one for me and I have tried not to allow my own inherent subjective biases to influence it.
As a consequence, I have attempted to carefully consider all the section 60CC considerations and weigh them against one another to reach the outcome which I consider will best serve X’s interests, both now and in the longer term. It cannot be an exact or purely scientific task, dealing as it does with matters which are imponderable.
Essentially, will it be better for X to remain where she is, in the care of a parent who has demonstrated, in difficult circumstances, that he can provide her with a stimulating and loving environment, in which she is currently thriving and where she receives the focussed attention of a devoted and capable grandmother, but in which she will be an only child.
Or should she be moved to a more conventional family setting, in which she will have to find a place for herself in a broader hierarchy of siblings and where she will not necessarily be the centre of attention, but which may provide her with a deeper and more abiding sense of belonging, as she grows into adulthood, because she will forge, in her infancy, abiding ties to K, L and N.
It is a question which cannot have a correct answer and on which different minds will have different opinions. However, the decision is mine alone. On balance, I have decided to take a conservative approach. The fact remains that X has been living with her father for the past two years. Given she is four years of age, in my view, this must be regarded as a significant factor.
During this period, X has done well. Although it may not be to everyone’s taste, I am satisfied the farm is a stimulating and secure place for her. This is not only because of Mr Beauford’s efforts but is also due to Ms E. Without her assistance, I would not be so sanguine about X remaining in Town B.
Siblings are important. However, X has lived apart from K and L for an extended period. She has taken a different pathway in life, which is reflective of her different background to her half siblings. I am concerned at potential pitfalls, arising for X, of disrupting her care again, when it cannot be known, with any degree of exactitude, how she will adapt to another familial regime.
I have described Mr Beauford as an odd bod. I do not resile from that description. However, I do not doubt his love for X nor his skills as a parent, which are augmented by those of Ms E. These proceedings have taken a long time to reach their conclusion.
As a consequence, including as a result of decisions made by Ms Keddie herself, X has been in the sole care of her father for approximately half of her life. I do not consider that it would be in her best interests to change this long standing arrangement.
Clearly, it is central to X’s sense of identity and wellbeing that she spends as much time as possible with her mother and half siblings in Town C. This will be expensive and logistically challenging. There are no obvious or easy solutions to the distance between Town B and Town C.
One of the current difficulties arises due to X’s tender years and the fact that she cannot travel alone, requiring a chaperone. It is the father’s view that, since it was Ms Keddie’s decision to move interstate she should bear the cost of this but otherwise the expense of travel should be shared.
In the short term, I consider that the parties should share the costs of any accompanying adult and otherwise the costs of travel be shared. I hope this will lead to the parties being able to agree sooner rather than later as to the stage when X can travel unaccompanied, subject to relevant airline policy.
The father proposed, prior to X attending school, her spending four blocks of two weeks in her mother’s care each year. Once she starts school, he proposes longer than orthodox (ten days) in each of the short school holidays and two weeks in the end of year school holiday. This seems reasonable to me.
The mother proposes the holidays be equally divided. It is a slight distinction, but I propose to adopt the mother’s position, given the importance of the long school holiday in the lives and development of many children in this country. It is important the halves rotate so each parent has the benefit of Christmas in alternate years.
I do not propose to make the penal order proposed by Mr Beauford in respect of Ms Keddie potentially over-holding X. The orders, I hope, will be clear and therefore should minimise the potential for breach. If there is any such breach, it should be dealt with in respect of what occurs then. To deal with a breach prospectively has the potential to add rather than diminish conflict.
The father proposes skype three times per week; the mother twice. I think Ms Keddie’s proposal of time at fixed times on specified days of the week is likely to be more workable.
Mr Beauford wishes to have the sole authority to select X’s primary school. The reality is that the Town B Primary School is the only option available at this stage. Issues to do with where she is to attend school for her secondary education have the potential to be more controversial but, in my view, given the conferral of equal shared parental responsibility, Ms Keddie should have some input into this decision.
I do not propose to mandate a medical practitioner for X at this stage nor formally authorise her attendance at the father’s place of worship. In my view, in the circumstances, these orders are not necessary. However, the parties should keep each other informed of all major medical and educational issues to do with X, particularly, for obvious reasons, if there is some form of emergency.
The case has been posited on the basis that Ms Keddie will not return to live in Town B. I take her on her word in this regard. In these circumstances, I do not propose to make orders in respect of such an eventuality. It is, however, probable that her longstanding connections with the Town B area, particularly so far as F is concerned, will bring her back to the area from time to time.
In these circumstances, it is clearly appropriate that she be able to interact with X, provided it is not unduly disruptive so far as school and X’s daily care are concerned.
I will make the standard non-denigration orders sought by the mother. This is to underline to the parties the importance of them remaining civil to one other, in the challenging circumstances arising from this case, which clearly will be in X’s long term interests. I will also make the orders proposed by the father regarding interstate travel.
This is a heartbreakingly difficult case. The two parents concerned each love X very much. They are good parents but in fundamentally different ways. The ways of life which they can individually offer X are each good and rewarding but again very different.
Due to decisions both Mr Beauford and Ms Keddie have made about how they want to lead their lives in future and due to the obvious fact that this cannot be in the same household or even in the same district or state, a decision about their much loved child has to be made.
I hope it is apparent from these lengthy and I concede, at times, somewhat technical and prolix reasons for judgment, that I have tried to make the decision carefully and thoughtfully. Throughout the process of decision making, I was acutely aware that it was inevitable that one of the parties concerned would be devastated by its outcome. This person has turned out to be Ms Keddie, who hitherto has not had the easiest of lives.
I hope the parties will be able to remain focussed on making whatever orders arise in respect of X work and ensuring that she has the happiest possible childhood and a sense that her parents love her and are not intent on struggling with one another as to who has the upper hand, so far as she is concerned.
Principles applicable to costs
The final issue to be determined concerns Mr Beauford’s application for costs in respect of what he would characterise as Ms Keddie’s misconceived interim application for X to move to Town C, which was dismissed by Judge Cole in August of 2019.
Section 117(1) of the Family Law Act abolishes for the purpose of family law proceedings, the general rule that, in civil proceedings, costs follow the event. It provides that each party should bear his or her own costs in such proceedings.
However, pursuant to section 117(2), if the court is of the opinion that there are circumstances that justify it in doing so, it may, subject to a number of stipulated considerations, make such order as to costs as it considers just.
The relevant considerations are set out in section 117(2A) of the Family Law Act and are as follows:
·The financial circumstances of each of the parties to the proceedings;
·Whether any party to the proceedings is in receipt of legal aid;
·The conduct of the parties to the proceedings, including in respect of issues of discovery and production of documents;
·Whether the proceedings were necessitated by the failure of a party to comply with previous orders of the court;
·Whether any party to the proceedings has been wholly unsuccessful in the proceedings;
·Whether any party has made an offer in writing to settle the proceedings and the terms of any such offer; and
·Such other matters as the court considers relevant.
In the emotionally charged circumstances surrounding the case, I do not consider Ms Keddie can be criticised for bringing the relevant application. Neither party is well off financially. Ms E is funding the proceedings on Mr Beauford’s behalf. Ms Keddie has utilised the funds from the sale of her home in Town B.
In all these circumstances, I do not propose to make any orders in respect of costs in this case.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding five hundred and eighty four (584) paragraphs are a true copy of the reasons for judgment of Judge Brown.
Associate:
Date: 5 February 2021
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