Beaumond & Hardiman
[2013] FCCA 1173
•12 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEAUMOND & HARDIMAN | [2013] FCCA 1173 |
| Catchwords: FAMILY LAW – International relocation. |
| Legislation: Family Law Act 1975, ss.60CA, 60B, 60CC, 61DA, 65DAA, 65D, 65D, 65DAB, 60I, Part VII International Convention on the Rights of the Child 1989 |
| U & U (2002) 211 CLR 238 Marvel [2010] FamCAFC 101 Goode & Goode (2006) FLC 93- 286 Gordon v Goertz (1996) 134 DLR (4th) 321 |
| Applicant: | MS BEAUMOND |
| Respondent: | MR HARDIMAN |
| File Number: | AYC 459 of 2012 |
| Judgment of: | Judge Harman |
| Hearing dates: | 8 & 9 July 2013 |
| Date of Last Submission: | 9 July 2013 |
| Delivered at: | Albury |
| Delivered on: | 12 July 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dura |
| Solicitors for the Applicant: | Rama Myers Family Lawyers |
ORDERS
All prior parenting orders with respect to the child, X born (omitted) 2007, (also known as X in his (country omitted) passport) shall be and are hereby discharged.
The parents, Ms Beaumond and Mr Hardiman, shall have equal shared parental responsibility for their son X.
X shall live with his mother Ms Beaumond.
Ms Beaumond shall be permitted, no earlier than 23 August 2013, to relocate with X to (country omitted).
Prior to 22 August 2013, X shall spend time and communicate with his father as follows:
(a)From the conclusion of school Friday until the commencement of school the following Monday on each of the weekends of 19 and 26 July and 9 and 16 August 2013;
(b)From 6pm 17 July 2013 (X’s birthday) until the commencement of school the following day ;
(c)By Skype at all reasonable times and provided that Ms Beaumond shall ensure that X is available to receive calls from and speak with his father between 6:00pm and 7:00pm each Tuesday, Thursday and Saturday.
From 23 August 2013, X shall spend time and communicate with his father as follows:
(a)For the whole of the (country omitted) summer school holidays in each year;
(b)For a further period of not less than two weeks in each year alternating between the (country omitted) Christmas school holidays in 2013/2014 and the (country omitted) Easter school holidays in 2015 and in each alternate year;
(c)For further periods of up to 14 days each and in each calendar year, such time to begin and end in the (country omitted) and upon Mr Hardiman giving Ms Beaumond no less than 28 days notice of the intended visit;
(d)By Skype and other electronic means (such as Facebook and Facetime) at all reasonable times and provided that Ms Beaumond shall ensure that X is available to receive calls from and speak with his father each Tuesday, Thursday and Saturday between 7:00am and 8:00am during (country omitted) daylight savings time (4:00pm and 5:00pm Australian time) and between 7:00pm and 8:00pm during (country omitted) non-daylight savings time (6:00am and 7:00am Australian time); and
(e)Such further and/or other periods and other means as are agreed between Mr Hardiman and Ms Beaumond from time to time.
That for the purpose of order 6 hereof:
(a)Ms Beaumond shall, for all travel involving X travelling to Australia, arrange, at her expense, X’s transport to and from Tullamarine Airport accompanied by an adult at the beginning and end of X’s time in Australia as well as travel to and from Tullamarine Airport to (omitted);
(b)Mr Hardiman shall pay the cost of his travel to and from (country omitted) (and any accommodation and incidental costs) to spend time with X together with the cost of X’s accommodation and travel during such periods;
(c)If either parent is not personally transporting X to and from the airport they shall notify the other parent in advance of the intended person travelling with X;
(d)Ms Beaumond shall ensure that X arrives in Australia not later than 3 days after the conclusion of the (country omitted) school term and shall ensure that X arrives back in (country omitted) not later than 2 days prior to the resumption of the new school term;
(e)Ms Beaumond shall provide to Mr Hardiman, no less than 21 days before X is due to travel and via e-mail, a copy of X’s flight itinerary.
(f)Mr Hardiman shall ensure that if he proposes to spend time with X commencing and concluding in (country omitted), and that such time falls during the school term, he shall obtain consent from X’s school for X to be absent during those periods (and Ms Beaumond shall provide such assistance, consent and authority as necessary to apply for such permission), and if such permission is not provided then Mr Hardiman shall ensure that X attends school each day of required attendance.
In the event that Mr Hardiman is unable to spend time with X in Australia for any period provided for above, then Mr Hardiman shall notify Ms Beaumond via e-mail of his inability not later than 28 days prior to the scheduled date for the commencement of his time with the child.
Within 7 days of Ms Beaumond’s relocation to (country omitted), Ms Beaumond shall set up and maintain an e-mail and Skype account for X and X shall be able to communicate freely via e-mail with Mr Hardiman, his sister W and his paternal grandparents whenever he may wish and in that regard X’s sister W and X’s grandparents shall be at liberty to also communicate with X at the times and means as Mr Hardiman.
When X spends time with his Father during the holidays pursuant to these Orders, Ms Beaumond shall be able to communicate with X at the same times and by the same means as Mr Hardiman does when X is with his Mother.
Ms Beaumond shall:
(a)Cause Mr Hardiman to be recorded as X’s father with any school attended by X;
(b)Authorise X’s school to provide Mr Hardiman with copies of X’s school reports, notices and any information that Mr Hardiman may request and such provision be by e-mail if possible; and
(c)Keep Mr Hardiman informed of X’s significant school and extracurricular activities and shall provide an email report of such activities to Mr Hardiman not less frequently than fortnightly.
Ms Beaumond shall be at liberty to enrol X in (omitted) Primary School in (omitted) or (omitted) Primary School in (omitted) (or such other school as Ms Beaumond shall select proximate to her residence) and Ms Beaumond shall provide Mr Hardiman with notice of her selected school, together with all necessary enrolment forms to facilitate X’s enrolment and attendance at the said school, and Mr Hardiman shall execute all necessary documents to complete the enrolment and return same to Ms Beaumond within 14 days of receipt of the documents from Ms Beaumond.
Each parent shall notify the other of any significant illness or injury to X that occurs during the period that X is in their care.
Both parents shall keep each other advised of any changes to their residential address, telephone number and/or email addresses.
The order made on 28 November 2012, in relation to X’s passports, is discharged and the Mother shall hold the Australian and (country omitted) passports in X’s name.
The Father do all such things and sign all documents that are required to maintain X's Australian passport, including passport renewal forms, within 14 days of receiving same from the Mother.
In the event that either parent fails and/or refuses to execute any document necessary to give effect to these Orders, save order 16 hereof, then the Registrar of the Federal Circuit Court of Australia Parramatta shall be and is hereby authorised, pursuant to Section 106A of the Family Law Act, to execute such document in the place and instead of the defaulting parent.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or if so requested, securely destroyed by the Court.
IT IS NOTED that publication of this judgment under the pseudonym Beaumond & Hardiman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ALBURY |
AYC 459 of 2012
| MS BEAUMOND |
Applicant
And
| MR HARDIMAN |
Respondent
REASONS FOR JUDGMENT
These are proceedings involving care arrangements with respect to a young child, X born (omitted) 2007, and who will next week turn six years of age.
The parties to the proceedings are X’s mother and father, who are, respectively the applicant and respondent.
The parties to these proceedings, and following their separation from each other, the parties and their respective partners, all met on the internet. That is in no way a criticism, simply an observation of fact.
This case embodies that which is acknowledged in numerous High Court and Full Court cases including, for instance, as observed by Kirby J in U & U (2002) 211 CLR 238 at paragraph 150 thereof:
Cases of fractured family units having connection with two or more national jurisdictions are much more common today than in earlier times when international travel was less common, wives less willing to challenge husband’s rights and legal aid less available for such cases even than it is now.
The case perhaps more pertinently highlights the fact that our population is not only increasingly mobile, willing, wishing and able to travel, but highlights the significance of the internet in rendering the world a global village of seven billion people.
The case also regrettably highlights the difficulties that arise in accommodating the needs of many diverse blended families within that global village.
The proceedings, as I have indicated, concern competing parenting applications for young X. However, the contest is in the context of a proposal by his mother, Ms Beaumond, to relocate with X and his two elder siblings (children born as a consequence a former relationship of Ms Beaumond with a gentleman, to use that term in its loosest sense, Mr G) to (country omitted) to then reside there with X and his sibling’s and Ms Beaumond’s partner.
It is to be noted that Ms Beaumond has already obtained from this Court orders with respect to those two elder children, Y and Z, and which allow and permit her to travel with them, as is her desire. That is not to suggest for one moment – and I will hope that it will become clear in these reasons that it is not thus considered – that having obtained those orders has any bearing upon, or weight in, the determination this Court is asked to make with respect to X. He is a different child and his circumstances are somewhat different.
However, orders were made by this Court on 16 August 2010 and again on 28 November 2012, which allow and authorise the relocation, should Ms Beaumond wish it to be.
The High Court has been clear, particularly in its decision in U & U, that relocation proceedings, whilst nothing more than parenting proceedings, have a peculiar or special nature and carry with them some particular elements outside of other parenting cases. As Kirby J observed at paragraph 137 of U & U, relocation cases involve:
...hard decisions which have to be made….
The decision that must be made by me in this case weighs upon me in a fashion which approaches that which I imagine Raoul Wallenberg and Oskar Schindler experienced. That is in no way intended to be disrespectful of the Schindlerjuden or those saved by Mr Wallenberg. However, this is a case in which the interests of a myriad of children, six in total, together with the extended family of both parents, and a number of other adults, including the partners of each of these parents, will be affected.
The Full Court has often observed, as has the High Court, that there is no optimal outcome readily available in most proceedings. Indeed, this is a case in which there is no optimal outcome. I must proceed in the sure and certain knowledge that whatever orders I make will be perceived as devastating by the party whose position has not found favour. That, however, cannot be avoided as the context of these proceedings is, in accordance with the International Convention on the Rights of the Child 1989 and s.60CA of the Family Law Act 1975, a determination as to what is best for X. His interests are paramount, and whilst other interests are legitimate and relevant, the paramountcy of his interests must prevail.
As Hayne J observed in U & U at paragraph 170:
What have come to be known as relocation cases present difficult questions. Much of that difficulty stems from the fact that to take a child from the place where one of the parents’ lives and, in some cases, works to some distant place will, if the other parent does not move, necessarily affect the way in which the child’s relationship with that other parent can be maintained and allowed to developed. It follows that the needs and wishes of each parent and the needs of the child and, if of sufficient age, the child’s wishes, all bear upon the question to be considered by the Family Court [or in this case, the Federal Circuit Court of Australia].
In the end, as the Family Law Act 1975 makes plain, the court must regard the best interests of the child as the paramount consideration, but that does not deny the fact that there are at least three persons who will be affected by the order that is made: two adults and the child. Very often, of course, there will be other relatives of the child whose physical contact with the child will also be curtailed if the child lives in one place rather than the other. As observed in this case, there are at least the parents, their partners, extended family on each side, as well as five other children.
Children
X has two siblings arising from the relationship between Ms Beaumond and her former partner, Mr G. If these proceedings were determining the issue as between Ms Beaumond and Mr G, I would have far less difficulty. From the evidence available, and whilst accepting that Mr G is not available to respond to those allegations – but the evidence is not in dispute – Mr G does not have a relationship with his two children, X’s siblings, and certainly no relationship of meaning. Indeed, from the evidence available, he would appear to bring very little to their lives, nor has he in the past. Thus, my colleague who dealt with those proceedings would appear to have had a far easier job.
In this case, I have two parents who are equally competent, loving, devoted and committed to their child and their relationship with him.
Y and Z, who are aged 11 and 8, live with Ms Beaumond and thus their interests, by reference to Hayne Js comments, will also be affected. However, that does not end the effect that will flow on to others.
X also has a sister W, Mr Hardiman’s child of a prior relationship. Her interests will be affected by these proceedings, although she is not a party to the proceedings. Nor is X a party to the proceedings. Nor are Y or Z parties. Yet all of these children are people whose interests are relevant, although the paramountcy of X’s interests is that which must concern me.
Mr Hardiman has also re-partnered. His partner, Ms N, has two children, U and V aged 10 and 6, who are not dissimilar in age to X’s brother and sister, Y and Z. Whilst they may not be biologically related to X, they are also children with whom X is familiar, has developed a relationship and that relationship will be affected, to some degree, by whatever orders are made by this court irrespective of which proposal finds favour.
Hayne J had also opined in U & U, paragraph 176:
It is now recognised as self-evidently true that apart from some cases of abusive relationships, [such as that between Ms Beaumond and Mr G], children benefit from the development of good relationships with both their parents. The right to know and be cared for by both parents and the right of contact on a regular basis with both parents are said to be principles underlying the objects of part 7 of the Act. If effect is to be given to those principles, it must not be assumed that one parent – the father in that case – cannot move and that the mother must, in every case, subordinate her ambitions and wishes not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount; not the interests or needs of the parents, let alone the interests of one of them.
That statement, from a far greater jurist than I, gives me some comfort as it reaffirms “the Alamo” to which I can retreat in dealing with these proceedings, being s. 60CA, which codifys the paramouncy of the child’s best interests. Those best interests, as already observed, will be impacted irrespective of which decision is made and which proposal of which parent finds favour. It is an issue of balancing, as will be observed by reference to the legislation and case law in due course, the advantages and disadvantages of each proposal.
Relationships
The dynamic between the parties and the various reconfigured blended families is complex.
The mother and father both live in the (omitted) area.
The three children, Y, Z and X, live with Ms Beaumond.
Mr Hardiman, whilst living in (omitted), spends time with each of X and with his daughter, W, who lives in (omitted), or at least within that area. That is some little distance from (omitted), but far from an insurmountable distance.
Ms Beaumond’s partner lives in (country omitted). That is the genesis or the basis, or at least one of the basis, advanced by Ms Beaumond for her desire to relocate. I make clear at this point, and will return to it on several occasions, that Ms Beaumond is not at any time required to demonstrate compelling reason for relocation. Indeed, that is not the focus of the case. The focus of the case is singularly upon X’s best interests.
However, the relationship which Ms Beaumond enjoys with her partner and has enjoyed for some years and which, from the evidence, these children, Y, Z and X all enjoy with Ms Beaumond’s partner, Mr T, is of some importance to them.
Mr T is a deponent of an affidavit in these proceedings and has travelled from (country omitted) to attend court for the purpose of being cross-examined and providing support to Ms Beaumond.
Mr Hardiman, whilst having re-partnered, is not living on a full-time basis with his partner. I make clear that that is in no way to suggest a lack of commitment in their relationship. The basis upon which they maintain separate households, about eight hours apart from each other, living in (omitted) and (omitted) respectively, is entirely appropriate and commendable.
The maintenance of separate households arises as Mr Hardiman’s partner, Ms S, must also deal with the father of her two children who, according to Ms S’s evidence – which I accept – opposes her relocating those children from the area in which she lives. Mr Hardiman does not wish to move a significant distance from his children X and W. Accordingly, Mr Hardiman and Ms S have continued to maintain their relationship over a distance and as reflective of their respective child focus and selflessness.
It might well be suggested, as Ms Beaumond does in her material, that this maintenance of separate households over a distance would give rise to some reasonable expectation that Mr Hardiman will, in the immediate future, relocate to (omitted). However, Mr Hardiman, whilst indicating that he and Ms S are engaged – another demonstration of their commitment and love for each other – has been clear that he does not propose to relocate as that will remove him, if his application finds favour and X is restrained from relocating away from the (omitted) area, from both X and, even if his application is not successful, away from his daughter, W.
As I have indicated, one cannot be critical of Mr Hardiman and Ms S for thus continuing their relationship, and it is not intended to suggest any lack of love or commitment, indeed, quite the opposite. For them to be able to continue their relationship in those circumstances, each travelling at different times so that they can see each other, spend time with each other and spend some time together as a family unit, is a credit to them.
However, the parties are in dispute with respect to this issue and I must determine it.
Material considered
In dealing with the case, I have read and considered each of the documents that the parties have identified in their respective case outlines.
This has, in the case of Ms Beaumond, comprised:
a)An application initiating proceedings filed 8 October 2012;
b)Ms Beaumond’s affidavit of evidence filed 13 June 2013;
c)An affidavit by her partner, Mr T, sworn on 14 June 2013 and filed thereabouts;
d)An affidavit of a counsellor, Ms M, sworn 13 June 2013 and filed the same day; and
e)A financial statement of Ms Beaumond filed 8 October 2012.
In the case of Mr Hardiman, I have read and considered each of the documents that he has identified, comprising:
a)Mr Hardiman’s response filed 22 November 2012;
b)Mr Hardiman’s affidavit of evidence-in-chief filed 28 June 2013;
c)The affidavit of Ms S filed 22 April 2013;
d)An affidavit of the paternal grandfather, Mr Hardiman, filed 28 June 2013; and
e)Mr Hardiman’s financial statement filed 28 June 2013.
I have also received into evidence Exhibit ‘C1’, a Family Report prepared by Ms D.
There are a number of other tenders that have occurred in the proceedings and comprising in Ms Beaumond’s case:
a)Exhibit ‘M1’, two minutes of order addressing the orders proposed by Ms Beaumond in the event that she is permitted to or not permitted to relocate with X;
b)Exhibit ‘M2’, a bundle of email correspondence between herself and Mr Hardiman; and
c)Exhibit ‘M3’, a bundle of email and other material relating to Mr T’s attempts to obtain employment in Australia.
In Mr Hardiman’s case, I have received and considered the following tenders namely:
a)Exhibit ‘F1’, an email forwarded by Ms Beaumond to the paternal grandparents shortly after the separation affected between she and Mr Hardiman;
b)Exhibit ‘F2’, a minute of orders proposed; and
c)Exhibit ‘F3’, notes from 2008 and 2009 from the (omitted) Contact Centre.
The Parties’ Evidence
Each of the deponents of the affidavits, together with Ms D, have been required for cross-examination.
The cross-examination of each of the parties has been hampered to some extent, particularly in the case of Mr Hardiman as he has been self-represented in these proceedings. That is not a criticism of him. Mr Hardiman has done the best he can and certainly, as regards both the preparation of his case outline and his demeanour and conduct of these proceedings, he is to be congratulated and complimented. He has maintained a calm and cordial demeanour throughout, although clearly he is representing himself in the most onerous of circumstances, whereby that which is at stake, his child’s potential removal from the Commonwealth of Australia and thus a significant change in how his interaction and relationship with his son would occur, would weigh heavily upon him.
It is regrettable that Mr Hardiman has had to represent himself at hearing as he has previously been represented. It is in no way a criticism of his attorneys who are entitled to be remunerated for work that they do and I infer that those difficulties are the only basis upon which Mr Hardiman has had to represent himself.
However, I am satisfied that Hardiman has not been disadvantaged. Whilst the Re F: Re F: Litigants in Person Guidelines (2001) have been followed in explaining process and procedure to Mr Hardiman, I do not for one moment expect or believe that in his position, highly stressed and dealing with matters of great emotion to him, that he will absorb, take on board and be able to fully present his case in the fashion that competent counsel with many years’ experience would.
However, I am also conscious that his cross-examination has been effective and that he has done the best he can, which has been entirely adequate.
It is regrettable in any proceedings that come before this court that parties are self-represented in such circumstances. However, it is simply unavoidable and I have been conscious to do all within my power to endeavour to ensure as level a playing field as is possible. I have already, and will again, congratulate Mr Hardiman for the dignity and decency that he has demonstrated both towards the court, Ms Beaumond and her Counsel throughout these proceedings.
During his cross-examination, Mr Hardiman amplified concerns that he had raised in his affidavit material, primary amongst which is a concern, on his part, that Ms Beaumond has not done everything, or has not done everything within her power, to support his relationship with X and encourage a relationship between he and X.
When it was put to Mr Hardiman that, as far as effort was concerned, that he would accept that he has seen and observed nothing that would suggest other than a positive image having been created, he disagreed with the proposition. He indicated that he had witnessed, in X’s behaviour, matters that had concerned him.
Mr Hardiman suggested that X had indicated to him that his mother would not let him ring his father when he wished to and related an incident which occurred at a swimming pool, when both he and his partner and Ms Beaumond and her elder children were present, and which meeting caused some discomfort. However, that event would appear to relate to discomfort between adults rather than any real concern in relation to X.
The major issue that arose from cross-examination, and which I will turn to in due course, related to the proposals put by each parent.
The orders sought by Mr Hardiman in his response do not advance any application to have X live in Mr Hardiman’s full-time care, irrespective of whether Ms Beaumond is permitted to relocate or not. I emphasise the use of that terminology is consistent with the orders as sought in both the application and response as to both permission and restraint. However, it is not the object of these proceedings, nor is it apprehended by me as an issue in the proceedings to give “consent” to Ms Beaumond to relocate. The proceedings are based firmly upon X’s best interests, which include competing proposals which, on Ms Beaumond’s case, would see him relocate with his mother and siblings to (country omitted).
Mr Hardiman’s application in fact seeks that Ms Beaumond be restrained from relocating X’s place of residence away from the (omitted) region:
...without the express written permission of the father or order of the court.
Prefaced upon that relief being granted, Mr Hardiman seeks that X live with his mother and spend time with his father alternate weekends from Friday to Sunday and, upon commencing school (which he has now done) from Friday to Monday as well as for half of school holidays and for telephone communication on Tuesdays and Thursdays.
Thus, the response does not apprehend an application that X live with his father, irrespective of whether Ms Beaumond relocates or does not relocate herself. However, during his cross-examination, quite clearly, and by reference to the minute of orders set out in the case outline filed by Mr Hardiman, such an application is made and I will, accordingly, treat it as one of the proposals before me.
The cross-examination with respect to that proposal focussed upon the difference in that advanced by Mr Hardiman’s meeting X’s needs, dependent upon whether he was spending time with his father or his mother. Mr Hardiman’s application would see, if successful, X living with him and spending one half of each New South Wales school holiday period with his mother. However, if he were unsuccessful and X then relocated with his mother, the orders sought by Mr Hardiman would have the effect that X would spend all of each (country omitted) school holiday with him.
Counsel for Ms Beaumond explored those differences and it was indicated by Mr Hardiman in response thereto “it’s their choice [being Ms Beaumond and Mr T] to relocate to (country omitted)” and that would appear to be the only basis upon which a difference is prefaced.
It was suggested to Mr Hardiman that there would be a detrimental impact upon Ms Beaumond if she were to remain living in Australia, presumably with X and his siblings as she would no longer be in a relationship with Mr T. That is a suggestion raised and addressed in the Family Report. Mr Hardiman conceded that there would be a detrimental impact if the relationship ceased and the support provided thereby also ceased, but added “But she has his support now”.
It is clearly the case and the evidence supports, in the same fashion (as I have observed with respect to Mr Hardiman and Ms S) that there is deep love, affection and commitment in the relationship between Ms Beaumond and Mr T and that the relationship, having now endured for approaching four years, has continued notwithstanding that the parties have lived, to adopt a phrase used in the evidence throughout, “on opposite sides of the world”.
The major issue which arose from Mr Hardiman’s cross-examination, and which relates to the Exhibits tendered in his case, is a suggestion that there has been a significant difficulty in communication between he and Ms Beaumond. Thus the allegation that she does not and will not, if permitted to live overseas with X, support his relationship with X in the future. That is countered by criticism raised by Ms Beaumond and addressed also in the Family Report that Ms Beaumond is somewhat frustrated by sending to Mr Hardiman email communication which is not answered. Mr Hardiman indicated that he prefers not to respond to emails on the basis that he perceives that Ms Beaumond’s emails have the potential to be a “rant” and that he does not wish to encourage or engage in it.
The Exhibits tendered in Mr Hardiman’s case, particularly the email to which I have referred and the contact centre notes, suggest that at the time of the matters related and reported therein, real difficulties did exist in communication. The email, Exhibit ‘F1’, from Ms Beaumond to the paternal Grandmother (dated 6 December 2007), suggests a significant lack of commitment by Ms Beaumond, at that time, to supporting a relationship between X and the grandparents.
However, within that context, bearing in mind its age, having been written some time only a few months after the separation and end of the relationship between these parties and at a time when, consistent with Ms Beaumond’s evidence, which I accept, when she was significantly depressed, whether by way of clinical diagnosis or lay observation, I am not as concerned. Clearly also the email is part of some chain of email, whether one or more, and there are matters addressed within the email that make clear that there have been prior disputes relating to the care of the children and suggested comments by the paternal Grandmother regarding Ms Beaumond and/or her parenting, focus and priority thereupon.
The contact centre notes similarly, as tendered, reflect some difficulties during the latter part of 2008 and early 2009. It is clearly demonstrated therein, and at that time, some tension between the parties and a lack of desire, on the part of Ms Beaumond, to communicate with Mr Hardiman.
The notes which are tendered suggest also that this had created significant distress and frustration for Mr Hardiman, which I accept would well and truly have been the case.
The tender of those documents was objected to by Counsel for Ms Beaumond on a number of grounds, not the least of which was suggested relevance as a consequence of the age of those observations. Whilst there is and was some merit to that objection, I allowed the documents to come into evidence, noting their context, and demonstrating that at that point in time, 2008 and 2009, that the relationship between the parties was not good. Thus, communication was not effective.
There appears to be some continuation of those difficulties and based upon the preference, as remarked by Mr Hardiman, to not communicate by email. Thus, in response to the criticism that he simply does not answer, he indicated that his answer is provided but either directly – although it was ultimately conceded that there had been no instance that this had occurred to date but no prohibition on it occurring in the future – or usually by telephone or text.
Thus, communication whilst somewhat problematic and frustrating due to the difference in preference for style of communication and manner of communication, I accepted for both of the parties, has occurred.
What is also clear is, from the chronology of events to which I will turn shortly, is that X has never really lived with his parents as a family unit. There is some dispute as to when the parties separated, but on either version, these parents separated when X was very little. On the mother’s case separation occurred when X was about one month of age and on Mr Hardiman’s case X was a little bit older, but still under 1 year of age.
It is well documented and accepted that in those circumstances the difficulties in building a relationship between a child and a parent who does not live with the child are significant. Notwithstanding those difficulties, however and notwithstanding the criticisms that each makes of the other and their commitment to the other’s relationship or their own, this little boy has developed what could well be appropriately described as a nice relationship with his father. The relationship is close and warm and is observed as such by Ms D, as well as by Mr Hardiman and all of his witnesses and as conceded by Ms Beaumond. There is no issue that X has an excellent relationship with his father, consistent with his age.
In those circumstances, I am satisfied and infer that the difficulties which occurred in 2007, 2008 and 2009 are historical and that the suggested lack of support of the relationship, which could well be taken from the material tendered, has itself changed. I draw that inference on the basis that if I accepted Mr Hardiman’s criticisms that Ms Beaumond does not in any fashion appropriately or fully support, to the extent that is available to her, the relationship between X and his father, the relationship simply would not be as it is observed. The relationship would be damaged and fractured, and one would not observe what Ms D reports as being a close, loving and entirely appropriate relationship.
Mr Hardiman’s cross-examination concluded with what might be described as an emotive plea, but that is not intended to be pejorative. Mr Hardiman is entitled to be emotional about these issues. It is his child and his life and as his evidence makes clear, he has particular and profound desire to ensure that his son experiences what he has indicated clearly in his evidence he did not have the opportunity of experiencing - a close bond and attachment between father and child. Mr Hardiman’s evidence makes very clear that his relationship with his biological father did not exist and he was denied that opportunity for reasons that are not entirely clear. In any event I accept, as he has opined in his material, that this absence has had some long lasting effect upon him.
At paragraph 27 of his affidavit, Mr Hardiman offers:
I grew up not knowing my biological father with my mother meeting Mr Hardiman, my stepfather, when I was three years old. Even though I consider Mr Hardiman my dad and love him dearly, I’ve grown up with some personal issues having not built a relationship with my biological father.
That makes the issues involved in this case all the more significant, and in that context, Mr Hardiman concluded his evidence with:
My relationship with my son is based on contact and cuddles and kisses. How do I maintain that through a computer screen? I am happy for them, being Ms Beaumond and her partner, but I don’t want to lose a bond with my son. I am working very hard to build a bond with my son. I am very worried that will be lost. I’m not just fighting for me, but for his sister and his grandparents. My children are my life.
I wholeheartedly accept that this is how Mr Hardiman feels and that that is a testament to him as a person, as well as a parent.
The other witnesses in Mr Hardiman’s case were cross-examined briefly and their evidence I accept. They were clear, frank and candid in their position and supported that which was offered by Mr Hardiman, observed by Ms D and, indeed, accepted by Ms Beaumond -that X enjoys an excellent relationship with his father.
One issue that arose during Mr Hardiman’s cross-examination and which was touched upon briefly with X’s paternal Grandfather, was a holiday which had been undertaken by X with his mother and siblings to (country omitted) of some three weeks duration.
On return a CD was provided by Ms Beaumond to Mr Hardiman with photos of X on his holiday. Mr Hardiman made clear in his evidence that he did not watch the CD with X and made clear that X had not asked to watch it with him. Mr Hardiman indicated that he has not looked at the photos on the CD and indicated that this, in part, related to a concern that a photo had been provided to him at or about Father’s Day which showed X, presumably whilst on that same holiday, in the (omitted) uniform, or portions thereof, of Mr T – Mr T being a (occupation omitted) in the (omitted).
Mr Hardiman was criticised for that reaction. That criticism has some validity but it must again be viewed in its context. These proceedings were, at that time, on foot. It was made clear to Mr Hardiman thereby that if successful X would be leaving the jurisdiction and the nature of his relationship, or at least the time in which the relationship was practised and experienced would change significantly. The profound sense of loss that he would feel from knowing that these proceedings were on foot with that possibility as a consequence at their conclusion, would cause him to feel undermined and at risk of losing the relationship.
In those circumstances, where the photo that he has described as provided to him – and I make clear I am not critical of Ms Beaumond nor suggest that she is insensitive in providing it – would perhaps represent in Mr Hardiman’s mind a physical manifestation, not only of potential loss of his relationship but his replacement in X’s life.
The evidence of the paternal grandfather makes clear that X had returned from the holiday excited and viewing the CD may have been something which might have assisted in the further strengthening of the relationship between and X and his father and its meaning through allowing X to share with his father his holiday experience and for the holiday to be more joyously celebrated by all.
Ms D’s evidence did not significantly change nor add to the evidence provided by her in her Report, which I will discuss briefly in one moment. Ms D, however, confirmed in her evidence that which she had advanced in her Report, namely that the bond which already exists between X, which she observed was quite close, could be maintained “satisfactorily” in the event that X relocated.
The use of the word “satisfactorily”, I accept Ms D has used deliberately. It is again not intended to suggest for one moment that the relationship would be as strong or continue with the strength that it would have in different circumstances than X living in (country omitted).
Ms D resisted the suggestion put to her that a failure to allow the relocation in circumstances whereby X, and perhaps moreso his elder siblings Y and Z, were aware of their mother’s desire to leave and in the case particularly of Y supporting that desire, might impact negatively upon X’s relationship with his father. I am satisfied Ms D’s resistance of that proposition is accepted as well based and appropriate. She indicated clearly that she did not believe that X was at such a level of cognisance to be able to draw such conclusions for himself.
During Ms Beaumond’s cross-examination, nothing arose of significance which would cause me concern as to an acceptance of her evidence.
Ms Beaumond has made clear and as is clear from her affidavit, that she has no direct connection with (country omitted). She is not (omitted) and she is not returning to a place she has previously lived. She makes clear that her desire is to be able to fulfil her relationship with Mr T to its maximum extent and particularly based upon the benefits which she receives and perceives as receiving, from that relationship.
Ms M was briefly cross-examined and again was unshaken with that opined by her in her material. However, I note that Ms M, whilst providing counselling to Ms Beaumond and having provided a report with respect to that counselling to which some weight could be attached, has:
a)Perhaps moved beyond a description of what she has provided by way of counselling and her comments arising therefrom and has adopted a degree of partisan advocacy; and,
b)Been entirely reliant, as regards comments and opinions offered by her with respect to the relocation, upon information received by her from Ms Beaumond.
The above is not a criticism of Ms M. There is nothing more that she could do. It is not her role to be and she is not commissioned as a joint expert to provide an assessment of the parties, their evidence, their relationships with X, or any other matter. However, it is difficult, if not impossible, for Mr Hardiman to fully or properly test or discredit any opinion offered by Ms M. And whilst I am satisfied that I would not reject or exclude her evidence by reference to s.136 of the Evidence Act1995, I am satisfied that I would limit its use, or at least the weight attached to it, by reference to s.137.
The particular portion of her report upon which she was cross-examined is found on the second page thereof. It is suggested by Ms Beaumond to Ms M and thus reported and commented upon by her, that the relationship with Mr T is over four years long and Mr T has made approximately 12 visits to Australia in this time. There is in addition to the trip undertaken by Ms Beaumond and the children to (country omitted). Ms Beaumond has also whilst in (country omitted) meet Mr T’s family and she and her children are considered a part of their extended family. Thus yet another set of adults whose interests are potentially affected by the Court’s determination.
Ms M suggests that even though X’s father lived with Ms Beaumond for some years that he has never extended his support or friendship to Ms Beaumond’s other children. That is also suggested in Ms Beaumond’s evidence wherein she indicates that following separation she had requested that Mr Hardiman provide some support to her and her two elder children and indeed, spend time with them. Ms Beaumond suggests that in response to those requests that Mr Hardiman declined. I do not repeat the particular evidence set out in the affidavit that has been read and considered.
It then continues:
…Her current fiancé, Mr T, does not differentiate between the children and treats all children with fatherly love and support. Currently Ms Beaumond has no family support to rely on, and believes that if she is to move, she will have the support of her partner’s family. She has worked very hard to have her partner as a positive figure in her children’s life, and he is reported as being very much a part of their life.
A number of examples are given to support that suggestion. The report concludes with an opinion that Ms Beaumond is keen to attempt to negotiate. In that regard, I note that Family Dispute Resolution has not occurred between these parties, and a certificate was issued pursuant to s.60I(6)(a) on 10 August 2012, indicating that Ms Beaumond had not attended Family Dispute Resolution as Mr Hardiman had failed or refused to do so. In any event, that is not raised in the evidence of the parties as a significant issue, but simply a missed opportunity.
Again, within the context of the matter, it is difficult to comprehend that it would be emotionally possible for Mr Hardiman to readily enter such negotiation knowing full well the stakes that are involved, for example Ms Beaumond wishing to negotiate and seek his consent to an overseas relocation which clearly he opposes on every level.
I am not satisfied that Family Dispute Resolution, if ordered, would have been of any great utility to the parties, although it, in all probability, would not have been inappropriate.
Mr T’s evidence focused upon his love and affection for Ms Beaumond and the children, his support of them and the efforts that he has made to obtain employment in Australia. One of the exhibits in Ms Beaumond’s case goes to that issue, suggesting that significant enquiries had been made by Mr T to obtain employment, either as a police officer – his present career - or in security or a related industry, for which he has qualifications and experience.
In closing submissions, Mr Hardiman had indicated a criticism of Mr T in that regard, suggesting that he had not done all that he could possibly do to obtain employment. Mr Hardiman suggested that the position advanced by Mr T, that he could not obtain employment in his chosen career or something connected with it, demonstrated on his part, a lack of commitment to the relationship with Ms Beaumond. It was suggested that he was balancing his career against a family and that Mr Hardiman opined that if he was in the same circumstance, he would take any job that was available, no matter what it was, to be in a position to be with his family.
Whilst there might be some validity to that criticism, I accept that Mr T has undertaken extensive efforts and exhausted those readily available to him in seeking employment in his attempt to move to Australia. The criticism must be balanced against several realities. They include the fact that Mr T would need a visa to obtain any employment. It is not simply a matter of coming to the country and getting a job. There must be a necessary visa and Mr T’s evidence makes clear that he is not entitled to a s.457 visa as a skilled professional whilst working as a (occupation omitted), it not being included in the relevant categories.[1] If he was to come to Australia without an appropriate visa, he would not be in a position to work at all and thus, and without intending to be pejorative, he would represent a financial burden on the family whom he desires to otherwise support.
[1] Refer to the Migration Regulations 1994 s. 2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa
Further, I do not consider that it is illegitimate to wish to continue in a chosen profession which has been pursued for some years. And clearly from the material that is tendered, it is not possible for Mr T to be considered for employment within a (omitted) in Australia unless and until he has permanent residency which would be some years away. As was observed both in the Family Report and the evidence of Ms Beaumond and Mr T and in submissions speaking to same, there would be some real difficulty in the support observed as provided and felt and experienced as provided by Ms Beaumond, were Mr T not able to work.
Mr T presently is in employment and meets a number of liabilities which he has in the (country omitted). He gave clear evidence as to the efforts he has made to alleviate himself of those responsibilities but without success, including listing for sale a property which he owns, and it being on the market for over a year, without great interest, and certainly without sale. In those circumstances, I do not accept that the criticism could validly stand.
The evidence of the parties and particularly as regards to the chronology of events between the parties, is succinctly summarised and relatively objective in the case outline document provided by Counsel for Ms Beaumond. I thus adopt and incorporate that chronology herein.
That is not to suggest any preference for that chronology over the evidence of the parties, or over any position advanced by Mr Hardiman. The chronology is simply succinct and available. In addition to the chronology below it is clear that each of the parties is in their latter thirties, having been born in 1975 and 1976 respectively and that as regards the relationship of the parties that it is fractured. The parties agree on that much.
Chronology
| (omitted) 1975 | Mr T born. |
| (omitted) 1975 | Father born |
| (omitted) 1976 | Mother born |
| (omitted) 2001 | Y is born |
| (omitted) 2004 | Z is born |
| (omitted) 2005 | The couple begin their relationship after meeting on an online dating website |
| 2006 | The Mother begins studying towards a (omitted) |
| June 2006 | The couple end their relationship |
| Mid 2006 | The Mother receives a call from the Father in which he tells her The Mother asserts that the Father was sentenced to three months |
| (omitted) 2006 | The Father is released from jail and the couple renew their relationship. |
| (omitted) 2006 | The couple begin living together |
| (omitted) 2007 | The parties’ child, X is born |
| August 2007 | The couple separate |
| December 2007 | The couple separate on a final basis after months of a “on and off” style relationship. |
| Mid 2008 | The Mother and Father attend a mediation at the Family Relationships Centre in (omitted) in which they reach an agreement for the Father to spend time with X each Wednesday and Sunday during the daytime. |
| (omitted) 2008 | The Mother meets her new partner Mr T online |
| (omitted) 2009 | The Mother meets with Mr T face-to-face for the first time when he travelled to Australia |
| 2010 | Mr T spends nearly 3 months in Australia staying with the Mother. The Mother begins working as a (occupation omitted). The Father changes job and begins working at “(omitted)” |
| (omitted) 2011 | The Mother and Mr T become engaged |
| (omitted) 2011 | The Father changes jobs again and beings working at (omitted) in (omitted) on a rotating shift. |
| 2012 | The Mother completes an on-line (course omitted) which enables her to work as a (occupation omitted) in (omitted). |
| (omitted) 2012 | The Mother and children travel to (country omitted) for three weeks to spend time with Mr T, meeting his family while there. |
| (omitted) 2012 | The Mother approaches the Father about moving to (country omitted) with X. |
| July 2012 | The Mother organises a mediation to discuss the matter of moving To (country omitted) further with the Father. The Father does not respond to the invitation to attend the mediation. |
| (omitted) 2012 | The Mother begins studying towards a (course omitted) on-line. A s.60I certificate is issued regarding parenting issues. |
| 28 November 2012 | Orders are made in the Federal Circuit Court regarding parenting matters. |
The Internet
The parties initially met on an online dating website in December of 2005.
During closing submissions, Ms Beaumond's Counsel had commenced by alluding to the temptation to snigger or have some other dismissive attitude towards online dating. I make clear I have not such attitude or assumption. It is simply how these parties have met and whilst their relationship has not made the distance as it were, it has certainly had some positive benefit to each of them. It has produced X.
Each of the parties has then met their new partners, which appear to be far more successful and enduring relationships for each of them and thankfully so, in a similar fashion. Thus, there could be no criticism.
The parties separated for a time in mid 2006 and for a short period of time in the latter part of 2006.
At or about the time of separation, Mr Hardiman served a three month period of imprisonment. Those offences have not been raised by Ms Beaumond, to her credit, as a criticism of Mr Hardiman and nor should they be. They are irrelevant to the relationship and the capacity of Mr Hardiman as a father.
The parties reconciled their relationship and resumed living together, whether on a full time basis or otherwise, shortly after Mr Hardiman’s release. Shortly after that reconciliation X was conceived.
The parties then lived together on a full time basis and separated, as I have indicated, on Ms Beaumond’s allegation in August 2007 and, on Mr Hardiman’s allegation, later that year. The parties continued in some form of relationship of intimacy between August 2007 and the latter part of the year. Whether that comprised a committed relationship or cohabitation between them or otherwise is largely irrelevant.
In mid-2008, the parties attended Family Dispute Resolution through a family relationship centre which was successful in assisting them to negotiate a set of arrangements.
What is also clear is that on at least two occasions and the parties’ evidence is at one on those issues, the parties had then effected, without the need for any other intervention whether by way of Family Dispute Resolution or this Court, changes to those arrangements. Those changes were largely to accommodate changes in circumstances at those times, principally arising from Mr Hardiman’s employment. Whilst those changes had been principally connected with employment they were not entirely so.
Mr Hardiman has also made changes in arrangements so that he was more available for his daughter, W, as he is, and I clearly accept is, a committed parent to both children.
Similarly, I accept that Ms Beaumond is a committed parent to all three of her children.
Prior to the relationship between these parties, Ms Beaumond had been in a relationship with a Mr G, the father of Y and Z. That relationship has had a profound effect upon Ms Beaumond. It is addressed in some detail in her affidavit, commencing at paragraph 4.
The relationship with Mr G subsisted from 1996 until 2004 and as is described by Ms Beaumond in her material, was an abusive relationship typified by controlling and abusive behaviour towards her. As a consequence, the Department of Human Services in Victoria became involved with the family and only after physical separation and intervention orders were obtained by Ms Beaumond against Mr G, was the Department satisfied that the children were safe.
It is clear from Ms Beaumond’s evidence, and Mr Hardiman does not seek to cavil with it, but nor would he be in a position to do so (having not been present at those times) there was real violence and a real impact upon Ms Beaumond resulted as a consequence thereof. It is in that context that Ms Beaumond’s evidence sets out some significant vulnerability’s which she experiences at this point in time. She has frankly and candidly and no doubt with some impact upon her as they being issues which I am certain that she would rather keep to herself, experienced periods of depression for which she has received treatment, if only counselling.
Ms Beaumond’s vulnerabilities have particularly followed that relationship and Ms Beaumond is clear that she experienced periods of post natal depression as well as depression following her separation from Mr Hardiman. It is also within that context that the communication difficulties and particularly the email Exhibit ‘F1’, arose.
Ms Beaumond also makes clear that she has experienced some difficulty and distress in her childhood. It is not clearly or specifically enumerated, but nor need it be. There have been a number of deaths within her immediate family, including a brother with whom Ms Beaumond clearly enjoyed a close relationship. There are other difficulties that Ms Beaumond and her siblings have clearly experienced in their upbringing.
Ms Beaumond is largely estranged from her remaining sister. Her evidence with respect to that relationship would suggest that she has some basis for suggesting a lack of support or perception of same, including her indication that at one point in time she had asked of that sister what would happen with the care of her children (then Y and Z) in the event of her death, to which her sister simply shrugged, rather than offering immediately (as one would expect she might have, although the context is not apparent from that sister’s perspective) that she would, of course, take care of her nephew and niece.
Those vulnerabilities are also spoken of by Ms D. At paragraph 17 of the report, Ms D says “Ms Beaumond said that she was the victim of serious coercive controlling family violence…”
I will accept that term is probably that of Ms D as a conclusion drawn from that reported by Ms Beaumond:
…which included physical, sexual and emotional violence during her relationship with Mr G. Ms Beaumond said the Victorian Child Protection Authorities were involved with her and Y and Z because of the family violence. Ms Beaumond said that during the child protection intervention, she accessed formal supports and that after a period she realised that she needed to make changes to her situation, and she ended the relationship with Mr G. She said she moved with Y and Z from Melbourne to (omitted), because Ms R was living in (omitted) at the time…[Being her sister who is described in the previous paragraph 16 as being “not emotionally supportive”]…Ms Beaumond said that after their separation, she suffered serious stalking and intimidating behaviours from Mr G, and she alleges that he breached the family violence order she had in place protecting her from him.
In paragraph 18, Ms D reports:
Ms Beaumond said she was diagnosed with post natal depression after X was born, and at the time, was taking prescribed medication. She said that she is not presently suffering with depression. She said that when she moved to (omitted), she attended counselling and that she recommenced attending appointments with the same counsellor after the parents’ separation and again more recently [That being Ms M].
In paragraph 19, Ms D reports:
In regards to Mr Hardiman, Ms Beaumond said that her pre and post separation relationship with him has always been difficult. Notwithstanding this comment, she said that they were civil towards one another and able to communicate directly at changeover periods. Ms Beaumond said that she had encouraged and facilitated X’s time with Mr Hardiman. She said Mr Hardiman had had five different jobs in the past six years, and that for all of those, there had been changes to X’s arrangements that she had accommodated. From Ms Beaumond’s perspective, Mr Hardiman had not been consistently available due to his personal and or work commitments.
I make clear that I do not interpret that reported of Ms Beaumond as being a criticism of Mr Hardiman or at least not a criticism for the sake of it. I also make clear I am not critical of Mr Hardiman for having had a number of jobs over a period of time. He needs to support himself. We do not live in a society whereby benefits are provided to people not in paid employment and to the extent that benefits are provided, they are not benefits that enable people to do more other than live at or below the poverty line. Mr Hardiman has responsibilities not only to himself, but to X and his daughter W.
Accordingly, Mr Hardiman has done what he can to obtain employment at different times and he cannot and should not be criticised for having taken different jobs which have required, at times, travel for instance to Melbourne and which employment commitments have impacted upon his availability to spend time with X in accordance with arrangements which had existed prior to that employment being taken. It is simply a necessary reality.
What I can also take from that evidence is the fact that Ms Beaumond has accommodated those changes. The parents jointly have made sensible and appropriate arrangements to ensure that X’s relationship has continued, albeit that there may be some force to that opined by Mr Hardiman, that Ms Beaumond has dictated those arrangements and he has perhaps acquiesced, rather than fully consented. Nothing really turns upon the difference between them as clearly I am satisfied in those circumstances that the parents have worked together in whatever fashion to produce changes that have allowed X to continue his important relationship with his father, as well as his important relationship with his mother. It is a credit to them both.
At paragraph 41 of her affidavit, Ms Beaumond sets out under the heading “Efforts made to support Mr Hardiman’s relationship with X”, a number of matters that she has attended to. That evidence runs for some pages. Ms Beaumond was not cross-examined with respect to those matters. In any event, those matters do not appear from Mr Hardiman’s evidence to be significantly in dispute. I accept, as already indicated, that whilst difficulties existed at or about the time of separation, or for some short period thereafter and whilst the parties’ communication is not as perfect as it might be, that these are parents who are focussed on their child and are able to make things work, irrespective of other difficulties.
The Family Report also touches upon the relationship to which I’ve already referred. In the reportage of Ms D in dealing with her interview with Mr Hardiman, she opines at paragraph 23:
Mr Hardiman said he has a close and loving bond with X. He said he is a very affectionate and loving father, and that he often shares kisses and cuddles with X.
That was touched upon in Mr Hardiman’s cross-examination and I entirely accept that he is a loving, devoted and tactile father.
It continues:
He said that being an actively involved father to both his children is extremely important to him. Mr Hardiman commented that he has been significantly involved in parenting X since the child’s infancy when the child was in his care during the day and for overnight periods. There is some issue between the parents as to those arrangements, but clearly there has been active and ongoing involvement by Mr Hardiman consistent with his desire to be so involved and his availability at different times. Mr Hardiman has also reported as indicating that X and W have a close relationship, and that W’s alternate weekends coincide with the weekends that X is in his care. He goes on to describe the activities he engages in with both children, as well as the facilitation of X’s relationship with his parents during those periods of time.
At paragraph 25, Ms D reports:
From Mr Hardiman’s perspective, the proposed relocation would also impact detrimentally on X’s relationship with W, and his paternal grandparents. Mr Hardiman said that W would also experience an emotional loss if X were to relocate. Mr Hardiman also identified that the parenting relationship is a difficult one, and discusses the differences in communication styles relating to email and the like canvassed above.
Mr T travelled to Australia to participate in the report interviews. At paragraph 28, Ms D reports:
In response to a query if the relocation is not permitted, Mr T said that he and Ms Beaumond would have to seriously consider whether they will be able to continue to be in a relationship.
I have touched upon that briefly as regards the criticism made of Mr T for expressing such a view. However, I accept that what is intended by that expression is not to suggest any lack or affection or commitment to the relationship, but simply an acknowledgement that all enquiries and endeavours having been met with negative response regarding his relocation to Australia, that these adults would be frustrated in their desire to continue their relationship. If it were not possible for them to, as they both desire, live together permanently, rather than continuing with their four year long distance relationship.
Ms S has also travelled from (omitted) to be included in the interviews and everything reported by her is consistent with her evidence and positive and supportive of the closeness of X’s relationship with his father.
X is interviewed at paragraphs 30 and 31 of the report. At paragraph 31 the following is offered:
X indicated that Ms Beaumond wants to live in (country omitted) and that they were at the family report interview “to try to work it out”. X made positive comments about each parent and his experience of each parent’s household.
Again, I pause to observe that if there was substance to the criticism of Ms Beaumond and her failure to support the relationship or, as was also suggested, her efforts to actively undermine it, it is difficult to comprehend how such observation by X would be made.
It continues:
He said however that sometimes he doesn’t want to go to Mr Hardiman’s house because “I want to stay at my mum’s and I have more fun at mum’s.”
I do not take that reportage other than on face value and as comment made by a then five year-old child. Further, I take it as offering nothing more positive than a suggestion of the closeness of this little boy’s relationship with his mother and siblings.
It continues:
When asked who he would take with him to a tropical island, X indicated Ms Beaumond and then when asked about taking a second adult he indicated Mr T. Due to his tender years X was not asked nor did he initiate a comment about his views on the proposed relocation.
Again, with respect to the above, I did not take it or infer it to suggest anything negative with respect to X’s relationship with his father. It perhaps is clearly an acceptance by him of Mr T as a person of importance to him but certainly falling far short of replacing his father and perhaps, more relevantly, recognising the importance to Mr T and to his mother of their relationship with each other and perhaps, his desire to live as part of an intact family unit. That is something which he has never really experienced in his life.
At paragraph 32 interviews with Y and Z occur and at paragraph 33 an interview with W is reported.
The comments made by Y, and it is to be remembered that it is not his best interests that are paramount in these proceedings but X’s, is somewhat telling however. It is indicated in that paragraph:
Both children are fully cognisant about Ms Beaumond’s proposal to move to (country omitted). They made positive comments about Mr T. Whilst the children are aware that Mr G is their biological father they interchange between referring to Mr T as dad and Mr T. Z was fairly quiet during the interview although she giggled on occasions but it was very clear that Y is very positive of and loyal towards Ms Beaumond. Y said he sometimes worries about his mother. He said that he is particularly worried about the detrimental consequences for their family unit if they are not allowed to move to (country omitted) and if Mr T and Ms Beaumond were to break up. He said, “Because then we will have to start over again and we’ve come so far.” He elaborated, “We’ve gone through so much and succeeded and he (Mr T) is such a support to us and we will miss him.”
That clearly would reflect that these children, whilst living with their mother and/or Mr G, have been exposed to the behaviours that Ms Beaumond indicates and which I accept have occurred.
The detrimental impact upon children of exposure to family violence is regrettably a common factor in proceedings before the court. However, whilst the impact it has clearly had upon Y is regrettable, it must be made clear that he is talking about his father, not about Mr Hardiman.
These parents are two good, decent parents and thus, again, it would be much easier to deal with the issues dealt with by one of my colleagues between Ms Beaumond and Mr G than between these parents.
W is reported as being a sensitive and thoughtful child in year 4 at (omitted) Primary School. She indicates that she is also fully cognisant about the relocation dispute and:
She said that she would really miss X if he were to move away. W also commented that she misses Mr Hardiman and she wishes she could spend more time with him than currently is the case.
I have no doubt Mr Hardiman would welcome more time with W.
In the evaluation provided by Ms D there are a number of comments particularly relating to the vulnerabilities suggested of Ms Beaumond. To refer to them as vulnerabilities is, again, not intended to be pejorative. Ms Beaumond has experienced difficulties, trauma and hardship in her life and she has, particularly in the case of her relationship with Mr G, been the victim of thuggish, loutish and anything other than appropriate behaviour demonstrated by one person towards another.
It is not her fault at all, indeed, the fact that she has been exposed to such matters recalls the words of Oliver Wendell Holmes:
Don’t flatter yourself that friendship authorises you to say disagreeable things to your intimates. The nearer you come into relation with a person, the more necessary tact and courtesy become.
They are words which I am sure would fall entirely upon deaf ears as regards Mr G who has demonstrated, from Ms Beaumond’s evidence, that he has been incapable of behaving in a fashion that is appropriate and consistent with expressed and professed love of a partner.
In any event, that is how Ms Beaumond now arrives in these proceedings and without intending any disservice to her whatsoever and to adopt terminology of those in the torts jurisdiction, “one takes one’s victim as one finds them”.
At paragraph 35, Ms D indicates:
Since birth X has been cared for predominantly by his mother and he appears to have a close relationship with her.
That terminology, I am sure is not intended by Ms D to suggest any doubt whatsoever that the relationship is close. I make clear that I have no doubt that it is.
It continues:
He has also spent regular time with his father and they appear to share a warm relationship [an opinion which I adopt and embrace]. Whilst the parents have always lived in very close proximity in (omitted), Ms Beaumond has borne the predominant care giving and parenting responsibilities for X and it appears that for the last few years his time with his father has generally consisted of alternative weekends.
I pause to make clear that I accept that Mr Hardiman would readily and willingly have shared (what is described therein as “bearing”) the care for this child. I do not accept that either parent considers it a burden and that each delights in the time they spend and the care they are able to provide for X.
Ms D concludes that paragraph with:
The impression formed is that X has stronger emotional bonds with his maternal family than his paternal family which may relate to his historical living arrangements. There is then discussion with respect to communication.
At paragraph 36, Ms D opines:
The issue of Ms Beaumond’s emotional well-being if she is not permitted to relocate with X to (country omitted) is a central one and it appears that her relationship with Mr T may end if the relocation does not go ahead. Ms Beaumond holds a strong desire and understandably has a genuine emotional need to have Mr T’s ongoing support. Ms Beaumond had an emotionally deprived childhood. As a child she was exposed to serious verbal family violence and she was the victim of serious coercive controlling family violence from her older children’s father. Ms Beaumond believes that in more recent years she has grown stronger as a person and as a parent and that her and the children’s quality of life has considerably improved. It is to be noted that during that period and at least the last four years that Ms Beaumond has had the full support of her relationship with Mr T albeit largely from afar.
The paragraph is concluded with:
There is little doubt that the parent’s emotional state has an impact on parenting capacity and that the child’s development is enhanced when raised by a competent and contended parent. Happy parents are more able to better respond to the needs of their children and to focus more fully and positively on their children and in this regard X might benefit from relocating with his mother.
It is to be noted with respect to that comment, however, that in the recommendations portion of the report at paragraph 42, Ms D clearly and appropriately indicated:
The family consultant is not in a position to make definitive recommendations about the relocation dispute.
It is also indicated at paragraph 38:
X may be at a greater risk of being exposed to a stressed or emotionally unstable or unavailable parent if the relocation goes ahead. There are no guarantees that after X is uprooted and taken away from his father, paternal half sibling and extended paternal family members, his school, social connections and country of birth/homeland, there will not be a poor outcome for him in (country omitted). Currently, Ms Beaumond appears generally to be coping quite well and she does a good job predominantly and/or solely parenting X, Y and Z, albeit that Ms Beaumond presently has Mr T’s emotional and financial support.
At paragraph 40, Ms D offers:
Although X is old enough to retain an image of his father for longer periods of time he is still reliant on an adult to help him remember, thus the issues raised by Mr Hardiman in his case have some real significance as to the suggested lack of desire or capacity by Ms Beaumond to fully support his relationship.
It continues:
It would appear that Ms Beaumond has to date been instrumental in encouraging the child’s relationship with his father. Without her support it would have been difficult for X to have the warm relationship he presently has with Mr Hardiman particularly considering that the parents separated when X was an infant. The impression formed is that Ms Beaumond would continue to facilitate X’s relationship with Mr Hardiman and that she would ensure that they have regular Skype and telephone communication and provide positive reminders to him about his father. Ms Beaumond’s and Mr T’s proposal would probably ensure that X maintains a satisfactory relationship with Mr Hardiman however the proposal may not be financially and practically sustainable over longer term. Once Ms Beaumond and Mr T are living together and getting on with their lives with the children in (country omitted) any number of unexpected events could arise such as financial or family work matters and their ongoing commitment to the proposal may waiver.
The parties’ proposals
Ms Beaumond’s proposals are set out in the minutes to which I have referred and which are marked as an exhibit in the proceedings. Those minutes provide alternatives for both time between X and his father to occur if Ms Beaumond is living in (country omitted) and the time that would occur if she were living in Australia.
I do not, for one moment, take the alternate proposal as to time arrangements that would occur if Ms Beaumond were living in Australia as being a concession by her or a proposal, on her part, as to that which should occur. That is consistent with the observations of Gaudron J in U & U wherein she opined at paragraph 30:
It may well be that the conversion of the mother’s acceptance that she would stay in Australia if the child were not permitted to live with her in India into a separate proposal for the child to live with her in Australia would give rise to a question whether there had been a denial of procedural fairness if there had been no other basis for that proposal.
That is also touched upon in paragraph 37 by her Honour:
It must be acknowledged that it is likely that in very many relocation cases the 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, that is so whether it is the mother or the father who wishes to relocate. So much was made clear in AMS & AIF.
The issue was also touched upon by Kirby J in the same case in paragraphs 138 and 139 thereof which I adopt and incorporate herein as follows:
It is not as if the issue presented by the wife's complaint to the Full Court was unusual. In fact, it is a common issue in cases such as this. In Payne v Payne, Thorpe LJ described the frequent tactic that arises in such cases:
"In very many cases the mother's application to relocate provokes a cross-application by the father for a variation of the residence order in his favour. Such cross-applications may be largely tactical to enable the strategist to cross-examine along the lines of: what will you do if your application is refused? If the mother responds by saying that she will remain with the child then the cross-examiner feels that he has demonstrated that the impact of refusal upon the mother would not be that significant. If on the other hand she says that she herself will go nevertheless then the cross-examiner feels that he has demonstrated that the mother is shallow or uncaring or self-centred. But experienced family judges are well used to tactics and will readily distinguish between the cross-application that has some pre-existing foundation and one that is purely tactical."
In Payne, Thorpe LJ stated what, in my view, is the correct approach. It is the approach that the Full Court should have required in the present case:
"The judge in the end must evaluate comparatively each option for the child, one against another. Often that will mean evaluating a home with mother in this jurisdiction, against a home with mother wherever she seeks to go, against a home in this jurisdiction with father. Then in explaining his first choice the judge will inevitably be delivering judgment on both applications."
The same issues were also addressed by the majority judgment in U & U delivered by Gummow and Callinan JJ and with whom Gleeson CJ and Hayne and McHugh JJ agreed. Thus I cannot accept and do not elevate to the position of a genuine proposal by the mother that she would consent to remain in Australia. It is simply her position as must be addressed; so much was made clear by U & U and AMS & AIF (1999) 199 CLR 160 and a number of other authorities of the High Court and Full Court.
It is a proposal and a position which will be considered separately by me but I do not accept it as a proposal advanced by Ms Beaumond.
The proposals that are raised in Mr Hardiman’s case, if one has regard to the response, are based upon an acceptance that X would, if Ms Beaumond continues to live in Australia, have his needs best served by continuing to live with his mother and to then have substantial time with his father. That time is somewhat tempered by work arrangements but I accept it is in no way a suggestion by Mr Hardiman that he does not desire greater time and would not readily and willingly have his child in his care full time if it could be so. Indeed this child’s needs would be perfectly well met by Mr Hardiman if that arose. Mr Hardiman made that much clear in his evidence by indicating that he is devoted to his children, each of them, and desires to spend every moment with them if it were possible.
However, the proposal also became clear, inferentially if not directly during Mr Hardiman’s evidence, that if Ms Beaumond were to relocate he would not simply seek a restraint but would, in those circumstances, seek that X remain in Australia, live with him and spend time with his mother for half of each school holidays, as reflected in the minute proposed in case outline document.
There is the comment reported by Ms D that might be taken as a criticism or taken as a suggestion that he desires to spend less time with his father, and more time with his mother, but I do not interpret Ms D’s comment in that light. I take it simply, as I have already indicated, as a suggestion that he has a very strong relationship with his mother and his siblings and a developing relationship with Mr T which is not and will never be a replacement for his relationship with his father.
However, views thus are of little assistance.
Views have been expressed by the other children, particularly W, and Y and Z.
Whilst those views are of some assistance in considering the proposals before the court, they are not the views of X which are those which must be considered. It does not mean that the views of the other children cannot have relevance. The Court can take into account such other matters as it considers relevant by reference to ss.(m), however, they do not fall within ss.(a).
Nature of the child’s relationship with each parent and other persons including grandparents or other relatives
On its face (and I would hope each party accepts) X is a very lucky little boy. He has an excellent mother, an excellent father, loving and caring partners, involved in a relationship with each of his parents, loving and caring paternal grandparents, a sister, W, who loves him, a brother Y and sister Z (who love him) as well as Ms S’s children who, whilst spending limited time with him because of the geographical difficulties and the like, are developing quite a nice relationship with him as well, I am sure.
All of those relationships exist together and simultaneously. They all impact on each other, potentially.
Again, with respect to X’s various relationships, the best I can draw from the evidence that I have discussed is:
a)X has an excellent relationship with each of his parents. There is nothing to be gained from a discussion as to whether it is equal or better in favour of one parent. It is excellent, close and loving with both; and
a)X has a number of excellent relationships with other people: including his siblings with whom he lives and has lived since his birth, as well as his sister W. Whilst he does not live with W full time he has also developed an excellent relationship with her; and
b)Those relationships exist because they are allowed, permitted, encouraged and facilitated by both parents.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in decision making, spend time with or communicate with the child
I am satisfied that this factor is not relevant.
There is a suggestion that Mr Hardiman could have done more to spend greater time with X and could have reprioritised other interests, particularly his relationship with W, and employment to spend more time with X. However, I am not satisfied that criticism is in any way valid and it is, in fact, niggardly. All it does is to suggest that reality need not be taken into account.
Mr Hardiman has to work. To work he has to make the very compromise that he has referred to in his submissions. Whilst he would dearly prefer to be spending every day with his son, which is not possible because these parents have separated, and separated at a very early age for X, he must work. It is a simple reality and, particularly, a reality within the context of employment law within this country that impacts perhaps more so on men than women and, particularly, separated men.
Parent-friendly work places, work practices and the like, regrettably, are not universal.
Whilst there is also then a criticism raised of Ms Beaumond that she could and should have perhaps worked more than she has, she is perfectly entitled also to have done what she has done, being to have made a commitment and sacrifice to be a full-time parent.
Neither of these parents can be criticised for failing to participate to the maximum extent reasonably and practically available to them in their child’s life.
The extent to which each child’s parent is fulfilled or failed to fulfil their obligation to maintain the child
There is some reference in Ms Beaumond’s evidence to suggest that the child support she has received has been some hundreds of dollars a month.
It is not clear whether it is intended to suggest that this amount has not been properly assessed or is not reflective of Mr Hardiman’s income or earning capacity. However, I do not take it as such a criticism, whether it is intended or not.
There is also a suggestion Mr Hardiman has some small arrears of child support, but that is not a significant issue and can arise easily. It is also to be said in stark contradistinction to the evidence Ms Beaumond gives, and which I accept, as to Mr G’s contribution financially, emotionally and otherwise, to Y and Z (i.e. nothing or precious little).
Accordingly, Mr Hardiman efforts, if viewed in the above context, could not be criticised.
Likely effect of change in the child’s circumstances including separation from either parent or any other child or other person
That is perhaps a complex and significant issue in determining this little boy’s best interests and which will need to be unbundled significantly in addressing each of the available proposals. This little boy has so many close and loving relationships.
The reality is that X has lived most of his life since birth with his mother and two siblings and has been spending time with his father. That is not to suggest, as the High Court and Full Court have expressly disavowed, that status quo is the basis for decision making. It is not, and it will not be in this case. It is simply a reflection of the undisputed evidence.
Ms D has commented and opined with respect to those arrangements as potentially supporting what might be seen as a greater closeness of relationship with his mother above and beyond the closeness of his relationship with his father. However, there will be, as is abundantly clear in these proceedings, an effect upon this child, both positive and negative in different measures, of the each of the available proposals because the simple reality is there will be a separation affected between him and some person or persons of significance and importance to him, whether that is Mr T, Mr Hardiman, extended family or combinations thereof.
It clearly will not be his siblings as I accept from Ms Beaumond’s evidence, although not as a proposal by her genuinely put before the court, that she would not relocate if X were not able to travel with her and his siblings. If Ms Beaumond is successful with her application it will clearly affect a separation, or at least a change to the present arrangements for time between X, his father and various others including his sister, W and grandparents.
Practical difficulty and expense
I will deal with this as part of s.65DAA(5) which more fulsomely addresses those factors.
Capacity of each parent to provide for the child’s needs including emotional and intellectual needs
These parents are very balanced as to their capacity to meet the child’s needs. There is, perhaps, some very slight advantage to Ms Beaumond in this consideration and particularly noting that her proposals, if accepted as meeting this child’s needs more adequately than any other, would not affect a separation between three siblings.
It is also to be noted that the proposals of each of the parties provide for regular and ongoing time between X and each parent and significant others as far as possible, albeit that there will be a significant reduction in the time, separate to and distinct from a relationship that X can spend with each.
Maturity, sex, lifestyle and background of the child and any other characteristics of the child which the court considers relevant
Each of these parents must be congratulated and must take great joy from reading paragraph 30 of the report wherein X is described as presenting as “well mannered and quietly confident”. He is suggested to have made many friends at school and through social activities including playing soccer and swimming.
Otherwise, X is a little boy. He is soon to turn six and, in those circumstances, he is dependent upon others to make his decisions for him and to meet all of his needs as he is not capable of doing it himself. That includes meeting and supporting his emotional needs.
Aboriginality
Neither X nor his parents identifies as Aboriginal or Torres Strait Islander and, thus, the factor is not relevant.
The attitude to the child and responsibilities of parenthood demonstrated by each of the parents
I am satisfied that each of the parents has fully and appropriately formed and acted upon an attitude towards their responsibilities which is a credit to them.
Family violence
This factor is not relevant.
Family violence orders
There are none.
Whether it is preferable to make the order that would least likely lead to the institution of future proceedings
This factor, I am satisfied, is neutral.
There is no greater probability of proceedings eventuating if Ms Beaumond’s proposal is accepted than if Mr Hardiman’s is accepted.
Other facts and circumstances
I specifically incorporate therein s.65DAA(5) in its entirety, namely:
Reasonable practicality
(1) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note: Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
With respect to same I must consider, with respect to each of the proposals to which I will very shortly turn, the distance that the parents live apart from each other, the parent’s current and future capacity to implement an arrangement, the parent’s current and future capacity to communicate and resolve difficulties, the impact of the arrangement on the child and such other matters as are considered relevant.
Clearly, on Ms Beaumond’s proposal these parents will live some 12,000 kilometres apart, as Mr Hardiman has described it, on different sides of the world.
On Mr Hardiman’s proposal they may still do so, but I accept in reality that simply would not occur. If Mr Hardiman was successful in resisting Ms Beaumond’s application and persuading the court that his proposal, for example that X remain living in Australia were the most appropriate, Ms Beaumond would also remain living in Australia.
Thus, distance can be addressed with respect to each of the proposals.
The parents have a capacity to implement either of the arrangements that are proposed by them. Whilst some concern is raised by Mr Hardiman and, to a lesser extent Ms D, as to the durability and sustainability of the arrangements Ms Beaumond proposes whereby she will be responsible for funding two lots of travel per year, I am satisfied that it can occur, and it will, and that whatever is required to make it occur will be done.
Similarly, I am satisfied if Ms Beaumond’s proposal was successful that there is some capacity for Mr Hardiman, albeit with difficulty and expense, to travel to (country omitted) to spend periods of time. The evidence suggests, at least Ms Beaumond’s, that there have been two trips in recent times to (country omitted) undertaken by Mr Hardiman. And whilst it is far more expensive for him to travel to (country omitted) than (country omitted), the possibility for that to occur cannot be discounted.
Similarly, however, if the parties continued to both reside within a reasonable geographical proximity of each other, their capacity to implement an arrangement similar to that which presently occurs is manifest and demonstrated through recent performance.
The parent’s capacity to communicate and resolve difficulties, whilst each has raised factors which would impact upon that, has been demonstrated as entirely abundant.
That leaves the significant issue which will be addressed in each of the proposals of the impact upon X of each parent’s proposal as clearly that is significant, irrespective of which proposal finds favour. Thus, there are five proposals which must be considered:
(1)If X lives with his mother in (country omitted) and Mr Hardiman remains in Australia, and time is spent as proposed by or similar to that proposed by Ms Beaumond;
(2) If X lives with his mother in Australia and continues to spend time with his father either in accordance with Ms Beaumond’s alternate proposal or Mr Hardiman’s primary proposal;
(3)X lives with his father in Australia and his mother moves to (country omitted). Whilst I must consider that proposal, it clearly is not formally sought and, more importantly, it is clear from the evidence that it is not an option which Ms Beaumond would entertain, countenance or allow to occur. It is not expressly an application by Mr Hardiman, but as it has been raised during the evidence I will touch upon it;
(4) That X live with his father in Australia irrespective of whether Ms Beaumond continues to live in Australia. That order is not sought by either parent, but I must still consider it. However, I can make it clear that it will be dismissed in a very short time as I am not satisfied it would or could possibly be, on the evidence available, in X’s best interests. That is not to suggest Mr Hardiman is not an entirely appropriate parent and carer for his child, however, it is not sought by either party and, thus, there would be a denial of due process for it to be considered seriously;
(5) That X and both Mr Hardiman and Ms Beaumond live in (country omitted) and what arrangement might then apply. That also need not be significantly considered although it must be touched upon. The proposal is not raised by either parent and is not raised as practical or possible on the evidence. I accept that Mr Hardiman, in light of his evidence, that he has not relocated to (omitted) to ensure that it does not impact his relationship with W, would not be in a position to relocate to (country omitted) and, certainly, would face some practical issue in any event.
In dealing with each of those proposals:
X living with his mother in (country omitted) spending time with his father
The minute of orders proposed by Ms Beaumond would see X spending time with his father for the whole of the (country omitted) Summer school holiday in each year (being a significant period) and for a further period of two weeks to alternate between the Christmas and Easter school holidays. There is also provision that Mr Hardiman would be able to spend time with X in (country omitted) and, subject to some notice, and issues with respect to attending school or obtaining permission from the school to be absent.
It is proposed that there be telephone, Skype and email communication at nominated times and specified days.
An order is also sought by Ms Beaumond which would effect a change to an order made with respect to Y, her elder child, and the child of the relationship with Mr G. Those orders made on 28 November 2012 have referred to Y by his former surname, and I am satisfied by reference to those orders that the change can be effected not as part of these proceedings but, simply, as an amendment pursuant to the slip rule which will be issued in due course.
The proposal of Mr Hardiman in the event that X were living with his mother in (country omitted) is that all of the holidays would be spent by X with his father. During cross-examination it was put to Mr Hardiman that two of the holiday periods are of seven days or thereabouts. Mr Hardiman confirmed his position was that each and every school holiday period would be spent by X with his father and at the expense of the mother transporting him to Australia.
The parties are agreed that at least until the age of 12 X will not be in a position to travel unaccompanied, nor does either propose that it would be appropriate for him to do so. It is a trip of around 23 or more hours and, in all probability, involving at least a stopover if not changing planes. Airline policies would preclude it prior to 12 and possibly later. Thus, the cost and expense of this child being transported over such a distance, involving as it does two airfares on a return basis plus accommodation in Australia once arriving here for Ms Beaumond or whoever transports X, would be significant.
I am satisfied if travel were to occur four times a year cost would be prohibitive and thus, not reasonably practicable. The cost on any basis and by reference to the evidence, minimal as it is as to likely cost, would mean that something of at least $4,000 to $5,000 per trip would be incurred and, thus, $20,000 per annum.
That represents a significant portion of Mr T’s income and the reality being that at least in the foreseeable future Mr T will be funding or substantially funding that cost. Ms Beaumond’s proposal is that she will meet the cost but on the basis that it is two trips per year. The additional issue relates to the logistics of that travel and the duration of two of the holiday periods, those which are seven, eight or 10 days.
The return trip, leaving aside any consideration of jetlag and the like, would, I am satisfied, be onerous on X, a six year old child travelling for what is, in effect, and including with time differences a two-day trip each way, then having to recover from the trip, return and recover again for the purpose of spending what might be, dependant on how long the holiday is, a period of three to six days.
Whilst I do not begrudge that time between X and his father and see great benefit to it, due to Mr Hardiman’s excellence as a parent, it is simply not practicable nor in the child’s best interests in light of that burden.
The real issue that relates to that proposal, however, are the advantages and disadvantages to X and how they will promote his best interests.
By reference to the factors in s.60CC, I am satisfied the most important considerations relate to his relationships. There is great force, and I am deeply touched by the evidence of Mr Hardiman that he is not in a position to maintain the same relationship that he presently has with X, a physical, proximate relationship through Skype and electronic means as he indicated. He simply cannot hug and kiss his child through a computer screen.
However, what I must focus upon are the totality of relationships that X has. That includes relationships with his father, with his mother, with Mr T, with Ms P, with grandparents and with a variety of siblings and step-siblings.
On balance, I am satisfied that X will maintain a relationship with each of his parents irrespective of the proposal that is favoured as each parent understands the importance to X, even though there might be criticisms that they have not always acted upon it in the past, of maintaining a relationship with all of those people, each will do everything they can to meet this little boy’s best needs.
Neither of these parents is negligent, spiteful, or in any way acting contrary to their child’s interests, although I accept they each have a very different perspective at this time with respect to this issue and as to what is in his best interests.
The evidence, unfortunately, has talked a great deal about X maintaining an “image” of his father over a long distance and using Skype and two or possibly more trips to Australia per year augmented by such trips as Mr Hardiman might be able to fund to (country omitted) if that proposal found favour.
That language is regrettable. We are not dealing in this case with a little boy retaining a memory or an image of a parent but maintaining a relationship of meaning. We are not talking about identification contact as is often discussed in the care jurisdiction but a meaningful relationship which is deep and profound to this little boy and each of his parents.
Because this little boy has so many important relationships my task is made all the more difficult. I can assure each of these parents that I feel the weight of the decision enormously and, perhaps, more than I have in any other case that I have had to determine. However, the relationships that this little boy has had in his life have particularly and importantly included his relationship with his brother and sister, Y and Z.
That is not to disregard his relationship with any other person including W and, very importantly, his father. But I am satisfied the relationships with his siblings are relationships which, if he were to be removed from them, the day-to-day emotional support, love, care and nurture that he receives from his siblings as well as his mother, would be the least beneficial to him.
The disadvantages are that, clearly it will impact upon the type of relationship and the quality of time that he spends with his father, his sister, his step-siblings, his step-mother, and his grandparents. However, they are relationships which already have some strength to them and I am satisfied would continue to have some strength.
I am incredibly conscious of the evidence of Mr Hardiman to which I have already referred which make very clear, and validly so, the impact this decision would have upon him if this proposal found favour.
However, with the greatest of empathy that I feel for Mr Hardiman’s position, the court cannot, as legislation dictates, make a decision based on misericordia or upon any factor other than the paramountcy of a child’s best interests. The determination of which, by reference to the legislation, is the only basis upon which I can advance. Thus, on balance, I am satisfied that this proposal would have more advantage than disadvantage to X although, clearly, the disadvantages are significant.
X live with his mother in Australia and continue to spend time and
communicate with his father also resident in Australia.
This proposal has some real benefit to X in that it will allow him to continue in all of his relationships in a very similar fashion, if not in fact an enhanced fashion, to the way he presently does. However, the disadvantage is that, clearly, he runs the risk of experiencing a number of significant losses which whilst not guaranteed, are predictable.
Clearly X will, on any proposal, maintain a primary parent. I accept in that sense, through an acceptance of Ms D’s evidence and interpreting that evidence as reflective of primacy of care rather than primary importance of relationship, that X has a primacy of care with his mother and brother and sister. He is dependent, as Ms D has opined, upon having a parent with whom he can maintain a strong emotional bond. Ms D has opined in paragraph 35 that she believes that is presently stronger with the maternal family.
But the continuation of that and the bond and indeed, his emotional support and physical support is dependent upon Ms Beaumond being able to appropriately function. The disadvantages and vulnerabilities which have plagued Ms Beaumond for a significant period of her life which, from the evidence available and the opportunity of observing these parties, are inexplicable. She seems a perfectly decent, lovely young woman, and that she has been treated in the fashion she has by Mr G is entirely inexplicable and could only reflect some shortcoming in his personality.
However, those vulnerabilities are manifest. She has, as is observed by Ms D and is as consistent with Mr Hardiman’s own evidence and that of her counsellor, taken huge strides in the last few years and, particularly, the last four or five years since the relationship between she and Mr Hardiman broke up. That is not to suggest that there is any connection between Ms Beaumond’s improved emotional functioning and the termination of her relationship with Mr Hardiman. It does, however, largely correspond with her relationship with Mr T.
I do not accept that Mr Hardiman has had any negative impact upon Ms Beaumond’s functioning although, clearly, the separation of these parents impacted Ms Beaumond’s functioning as would be expected. The termination of any relationship, one would hope, at least to normal, decent people, would cause some grief. However, what is clear is that in that period Ms Beaumond has had the support of a loving and appropriate relationship albeit long distance with Mr T.
What is clear is that this relationship is now at a point where each of these adults has sought to move their relationship to a permanent cohabitation. I am satisfied, as indicated, that Mr T has exhausted all relevant and reasonable inquiries regarding relocating himself to Australia and obtaining employment. I am not satisfied that I should be critical of him for simply failing to relocate irrespective of and in disregard of whether he can obtain employment or residency.
The support which is provided through that relationship is not only financial. It is abundantly clear to me, and I accept their evidence, that Ms Beaumond and Mr T love each other, and derive great strength from each other and their relationship with each other. In exactly the same fashion, Mr Hardiman and Ms P love each other and derive support from each other.
The risk of that relationship ending is perhaps most cogently set out from the mouth of Y at 11 years of age in the phrases related by him and which I accept are a reflection of his genuine position (see, for example, Harrison & Woolard (1995) FLC 92-598 and R & R Children’s Wishes [2002] FamCA 43) in the following statements:
We’ve gone through so much and succeeded and he [Mr T] was such a support to us, and we will miss him if the relationship breaks up.
It is also reflected in Y’s comment that he is worried what will happen if the move does not occur. He is worried for his mother if the breakup occurs as clearly he has seen the difficulties with Ms Beaumond’s functioning in the past when she has not had support and not felt or received support.
Y has also made clear, not that it is intended to make him a witness in the case, that he has seen his mother sad when Mr T leaves, has seen her happy when he is here and that all of these children have developed some real affection for him.
In those circumstances, I am satisfied that the failing of that relationship which I am satisfied is not something that either Ms Beaumond or Mr T desire or would welcome, but which whilst not inevitable would be probable, would render such significant disadvantage to Ms Beaumond and through her and the difficulties that she will then face (the potential for which Ms M has opined, to relapse into depression and other difficulties), as to outweigh the advantages which would otherwise exist.
X living with his father in Australia and his mother in (country omitted).
This is a proposal that must be considered.
By reference to the comments of the High Court to which I have referred above I am not satisfied that I could appropriately describe it as a proposal as such but simply a possibility which might be considered. There are two difficulties with it, however:
a)No due process has been afforded to either party as I have not indicated to them that I would contemplate such an order and I do not. Nor does either party propose it;
b)The evidence in its entirety, particularly that of Ms Beaumond, makes it clear that she would not contemplate it. If she is not permitted through orders, however they are expressed, to relocate with X and his siblings with respect to whom she already has an order to facilitate such relocation, she would not leave.
Whilst I have already indicated that the orders made in the other proceedings between Ms Beaumond and Mr G do not dictate the outcome of these proceedings, they are relevant. The order that I would make if I declined Ms Beaumond’s proposal and required through her own evidence, as it is the action she would take that she remain in Australia, then Y and Z would also be affected by those orders. That would impact upon them personally and their relationship and level of care by their mother.
That X live with his father in Australia and Ms Beaumond also living
in Australia.
This is simply not sought. Whilst it is thus identified as a possible outcome it is not one which either party seeks and thus U & U would preclude it being ordered without due process having been afforded to the parties. That need not occur as I do not consider that it would be appropriate particularly as these parents, who agree to equal-shared parental responsibility and can clearly exercise it, do not see it as being in their child’s best interests.
X living with his mother and his father in (country omitted) irrespective of the time arrangement.
As I have already indicated, the evidence could not support this as being a viable or available option although it must be identified. The High Court has discussed it in U & U and AMS & AIF. There is no evidence to suggest that Mr Hardiman could, even if he wished, relocate to or migrate to (country omitted). He has no right of residence in that country, not being (country omitted) or having appropriate relatives to allow him to obtain an (country omitted) passport or an (omitted) passport which Ms Beaumond has for herself and the children.
Also, it has been clear and I accept, Mr Hardiman would not move away from where he presently is, including a move to (omitted), in such a way that would increase the difficulties that he has in spending time with W when both she and Mr Hardiman both desire even more time.
As would be apparent from the above and with my apologies to the parties that it has been set out in such detail, I am satisfied on balance that the proposal which contains the most advantage, albeit with disadvantage and which would thus best prioritise and treat as paramount X’s best interests is proposal 1, being to accede to the proposal of Ms Beaumond to relocate.
I certify that the preceding two hundred and ninety-seven (297) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 1 October 2013
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