Bec and BPS
[2004] FMCAfam 62
•20 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BEC & BPS | [2004] FMCAfam 62 |
| FAMILY LAW – Children – contested residence – residence and relocation – application to remove child from S metropolitan area to Northern New South Wales – best interests of child – child aged 8 years at date of hearing. |
Family Law Act 1975 (Cth), ss.60B; 68F; 65E
AMS v AIF and AIF v AMS (1999) 24 Fam LR 756; FLC 92-852
A v A Relocation Approach (2000) 26 Fam LR 382; FLC 93-035
Paskandy v Paskandy (1999) 25 Fam LR 607; FLC 92-878
SMG v RAM (2000) FLC 93-020
Martin v Martuglio (1999) 25 Fam LR 501; FLC 92-878
B and B: Family Reform Act 1995 (1997) 21 Fam LR 676; FLC 92-755
U v U (2002) 29 Fam LR 74
H and L (2000) FLC 93-036
| Applicant: | E C B |
| Respondent: | P S B |
| File No: | PAM 1210 of 2002 |
| Delivered on: | 20 February 2004 |
| Delivered at: | Parramatta |
| Hearing dates: | 22 & 23 January 2004 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Greenaway |
| Solicitors for the Applicant: | Reimer Winter Williamson |
| Counsel for the Respondent: | Mr Battley |
| Solicitors for the Respondent: | Lamrocks |
ORDERS
That the Applicant mother is permitted to relocate the residence of the child L J B born 10 January 1996 from the S Metropolitan Area to K in the State of New South Wales.
That Order 4 of the Orders made by the Local Court of New South Wales at P on 3 July 2002 be varied so as to provide that the Respondent father is to have contact with the child L J B:
(a)for two (2) weekends during each school term commencing on Friday and concluding on Sunday or on Monday if the Monday is a public holiday with the mother to ensure that the child boards a flight on the Friday to arrive at the S domestic airport by 6.30 p.m. and the father to ensure that the child boards a flight on the Sunday or Monday as the case may be to arrive at the closest domestic airport to the mother’s residence by 6.30 p.m. on that day, the particular weekends to be agreed between the parties but failing agreement to be the third and seventh weekends of each school term;
(b)for one half of each school holiday period as agreed between the parties but failing agreement for the first half of the school holiday period and for these purposes school holidays commence on the day before the child is required to attend school at the commencement of the next school term;
(c)from the Thursday prior to Easter to Easter Monday in each year in the event that Easter does not fall within a school holiday period; and
(d)for such other times as the parties may agree.
That Orders 5, 6 and 7 of the Orders made by the Local Court of New South Wales at P on 3 July 2002 be discharged.
For the purposes of contact changeover in accordance with Order 2 the mother must ensure that the child is delivered to the closest domestic airport to the child’s residence for an aircraft flight to the closest domestic airport to the father’s residence and the father must ensure that at the conclusion of contact the child is delivered to the closest domestic airport to the mother’s residence. The parties must agree to the flight arrangements at least fourteen (14) days prior to the commencement of each contact period with the mother to pay all costs associated with the payment of the child’s airfares.
The father is to have liberal and flexible webcam and telephone contact with the child and for this purpose the mother must keep the father advised of the appropriate landline telephone number.
All documents produced on subpoena may be returned after the expiration of one (1) month from the date of these Orders.
The Application is removed from the Pending Cases List.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 1210 of 2002
| E C B |
Applicant
And
| P S B |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the mother of a boy called L J B to relocate his residence from the S Metropolitan Area to K, on the North Coast of New South Wales. The child is currently living with the mother. She seeks a continuation of her current residence order, and seeks orders for the child to have contact with the father during school holidays and for two weekends during each school term.
The father opposes this application. He asks the Court to make orders that the child should live with him and that the mother should have contact with him:
(a)for eight weeks of the block school holidays;
(b)for one weekend during the school term, at K or some other place chosen by the mother; and
(c)liberal weekends during the term in S on seven days’ notice.
Background
The parties were married on 25th September 1994. The father is now 40 years of age and the mother is now aged 36. The mother has a child from a previous relationship, named C S B, who was born on 19th July 1990. C is 13 years of age. She has always lived with the mother.
There is one child of the marriage, L J B, who was born on 10th January 1996. L is 8 years old. He has lived with the mother since the parties separated.
The mother had commenced work as an ambulance officer in September 1993 and took maternity leave when L was born. She returned to work after several months on a part-time basis, which involved job-sharing with another ambulance officer, one D H, who was in a similar situation. They took turns in looking after each other’s children. The mother returned to work full time in April 1997, and the child L went to Family Day Care.
The parties separated but remained living under the one roof in December 2000. The father left the former matrimonial home on
2nd April 2001, and the parties have lived apart ever since. The children L and C remained living with the mother and the father exercised contact with L.
The mother formed a new relationship with a fellow ambulance officer, one N S. Mr S was separated from his wife. He has two children from his marriage, T, born 22nd January 1992 and A, who was born on
8th June 1995. She commenced living with him in August 2003.
On 3rd July 2002 the mother and the father entered into consent orders at the Local Court of New South Wales relating to property and parenting issues. The relevant orders provided that L was to live with the mother and the father was to have contact from Friday night to Sunday night on alternate weekends, from 4.00 p.m. to 7.30 p.m. on Wednesdays, for half of each school holiday period and on other particular days such as Christmas Day and Boxing Day.
For reasons that were not explained, the mother has changed her surname by adding the letter ‘e’, so that her surname is now spelt ‘Browne’ instead of ‘Brown’. The change of name was registered on 26th August 2002.
The mother and N S purchased a block of land at K, on the New South Wales North Coast, in October 2002. They both wish to live there and work as ambulance officers in Southern Queensland.
There were proceedings in this Court between Mr S and his wife relating to their children, T and A. They settled those proceedings on 21st January 2004. The orders made by consent were that the two children would reside with their mother and the father would have contact during school holidays and for two weekends each school term.
Issues
The mother wishes to relocate to K to live with Mr S. She proposes to take both children with her. She does not believe that the father would take as good care of L as she would, and she does not wish for L to live separately from his half-sister, C.
The father opposes the move, because it will interfere with his contact with L. He says that the child should live with him and remain in the S Metropolitan Area.
Evidence
The mother and Mr S gave evidence and were cross-examined by the father’s counsel, Mr Battley. The father gave evidence by affidavit and he was subjected to cross-examination by the mother’s counsel,
Mr Greenaway.
The mother’s evidence is that the father spent a lot of time at the Army Reserve and she did most of the parenting. It was also her evidence that the father had never had a good relationship with her daughter C. She said that he either ignored her or treated her badly.
Mr S said that his children got on well with L, although he had recently consented to orders that the children should reside with their mother. He denied that he had a bad relationship with L and said that he got on well with him. He denied suggestions that he was harsh in his treatment of the child, saying that he had never laid a hand on him.
It was clear from the father’s evidence that his relationship with C is distant, although he said that he had looked after her on a couple of occasions since the parties separated. He does not get on well with
Mr S, which is hardly surprising, and does not believe that L is as close to Mr S’s children as the mother suggests. He did not believe that L wants to move out of S.
The father also relied on affidavits from his parents, H R B and M M B, and from his aunt, H B. These witnesses were not required to give oral evidence, and it is fair to say that was not of the same significance as the evidence of Mr Brown, Mrs Browne and Mr S. The father’s parents live at H, near T in New South Wales. Their evidence is generally supportive of the father’s case, and they detail instances when they have looked after L, either at their home or the father’s home.
The father’s aunt, H B, is a part of the father’s proposal to care for L. She deposed that she has eight grandchildren and two great grandchildren, and is available to care for L before or after school if required. Unfortunately, she was not interviewed for the purpose of the Family Report.
A Family Report was ordered for the purpose of these proceedings.
Mr N G, a Regulation 8 welfare officer, prepared the Report. He interviewed the father, the mother and Mr S. He also observed the child interacting with both his parents, with Mr S, and with C.
Mr G described L as a shy, quietly spoken boy, who was hesitant about declaring a position in the dispute. L said that he loved both his mother and his father and would not nominate one over the other as the parent with whom he wanted to live. He appeared to Mr G to be “comfortable and accepting” of Mr S’s place in his life.[1] Mr G said that Mr S had told him that he had no intention of replacing the Respondent as L’s father.[2]
[1] Family Report, paragraph 68.
[2] Family Report , paragraph 56
The counsellor expressed the view that if L moved with his mother, and if Mr S’s children also moved, there would be no disruption to his current residential family. His relationship with C was described as a “normal” brother/sister relationship.
On the other hand, the counsellor found it more difficult to assess the father’s proposal, “as his future place of residence was not known and the aunt, on whom he intended to rely for before and after school care, was not interviewed.”[3]
[3] Family Report, paragraph 92.
Mr G found it difficult to determine the child’s primary attachment, as he obviously loved both parents. He did not appear to have a great number of friends in S and gave the counsellor the impression that he would cope emotionally with the change, if the mother’s proposal were to be followed. It is noteworthy that if L were to live with the father, he would be the only child in the household.
On the other hand, Mr G commented that “If the other children, particularly A, were removed from the equation, the gap between the parents’ proposals would seem to lessen.”[4] As it turns out, as a result of the settlement of Mr S’s case, his children will now live with their mother, and not in the household shared by the mother and Mr S.
[4] Family Report, paragraph 95.
The principles to be applied
The principles that apply to matters of this nature are well settled and recent decisions have not altered the attitude that the Court should take in any significant way. Section 60B of the Family Law Act sets out the overall objects in relation to parenting orders. The object of Part VII of the Family Law Act 1975 is to ensure that children receive adequate and proper parenting to help them achieve their full potential and to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of the children.
Sub-section 60B (2) sets out the principles underlying the object of Part VII which are, except when contrary to the child's best interests:
a)Children have the right to know and be cared for by both their parents regardless of whether their parents are married, separated, have never married or have never lived together and
b)Children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development and
c)Parents share duties and responsibilities concerning the care, welfare and development of their children and
d)Parents should agree about the future parenting of their children.
In this matter, as in any matter where the Court is required to make parenting orders, the Court must regard the best interests of the child as the paramount consideration I refer to section 65E of the Family Law Act. Section 68F of the Act sets out the matters which the Court must consider in order to decide what the child's best interests are. The High Court of Australia has considered the relocation question in
AMS v AIF; AIF v AMS (1999) 24 Fam LR 756; FLC 92-852. It is an error for a Court to require the party who wishes to relocate with the child to demonstrate compelling reasons to justify the proposed relocation. The welfare of the child is paramount, but not the only consideration. Furthermore, it is equally an error for a Court to require the other party to provide compelling reasons or at least a preponderance of reasons for not permitting the party who wishes to relocate to do so. I refer to SMG and RAM (2000) FLC 93-020. The Full Court of the Family Court has more recently considered the issue in A & A: Relocation Approach reported (2000) 26 Fam LR 382;
FLC 93-035. In that case the Court considered the earlier decisions of Paskandy v Paskandy (1999) 25 Fam LR 607; FLC 92-878 and
Martin v Matruglio(1999) 25 Fam LR 510; FLC 92-876. The principles to be applied are, in summary:
i)The best interests of the child are the paramount but not the only consideration.
ii)The Court cannot require the parent who wishes to relocate with a child to demonstrate compelling reasons for the relocation.
iii)The Court has to evaluate each of the proposals advanced by the parties.
iv)Relocation cannot be separated from the issue of residence in the best interests of the child.
v)Evaluation of the competing proposals must weigh the advantages and disadvantages of each proposal for the best interests of the child.
vi)The Court must consider the relevant section 68F(2) matters in respect of each proposal.
It is no longer the case that the Court should consider whether the reasons to relocate are genuine, whether they are optional or whether they are seen as important or essential for the orderly life of the parent as was previously held in B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC 92-755.
It is still a consideration, however, that in evaluating the competing proposals, the Court may consider evidence that the proposed relocation would be of benefit to the child as much as the parent whilst the inability of a party to move may impose significant pressures upon that parent:
“A very important aspect of a child's best interest is to live in a happy family environment. Ordinary common experience indicates that long-term unhappiness by a resident parent is likely to impinge in a negative way upon the happiness and therefore the best interests of children who are part of that household”
(at page 84-222).The High Court of Australia again considered the question of relocation in U v U (2002) 29 Fam LR 74 where a mother wished to leave Australia with a child to return to her country of origin. The Court is obliged to give careful consideration to the proposed arrangements of the parties but is not bound by those proposals. The Court has to look at the matters set out in section 68F and the objective is always to achieve the child's best interests.
The competing proposals considered in the light of section 68F(2)
I am required to give consideration to the relevant section 68F(2) factors as they apply to the parties' proposals.
Section 68F(2)(a): Any wishes expressed by the child
It seems clear from the Family Report that the child did not wish to nominate one parent over the other, and preferred that the Court should decide the issue. I note that he is only 8 years old
Section 68F(2)(b): Relationship of each child with each parent and other adults
L loves both parents and said that he would miss the one with whom he was not living. His relationship with Mr S was described as “comfortable”.
Section 68F(2)(c): Likely effect of any change in the children's circumstances
If L remains living with his mother, he will be separated from his father but will remain living with his sister. If he relocates to K, there will be an effect on his contact with his father. If the mother remains living in S, the situation for L will not change but it is likely that the mother would be unhappy and resentful, which would possibly affect him.
On the other hand, if L is to live with the father, his mother is likely to relocate anyway, and this would affect his contact both with her and with his sister, C. He would be the only child in the father’s household.
Section 68F(2)(d): Practical difficulties and expenses of having contact
If the child moves to K with the mother, the distance between the parties will be too far to allow contact other than in the school holidays and on the occasional weekend during the school term.
A similar situation will apply if the child remains living with the father in S and the mother relocates, as she intends to do. It would only be if the mother were to remain living in S that there would be no appreciable difficulty with contact arrangements.
Section 68F(2)(e): Capacity of each parent to provide for the needs of the children
The mother was critical in her evidence of the father’s parenting ability. She said that he had been rejecting of her daughter C for some years before the birth of L, and that he was mean and unfair to her. As far as L was concerned, the mother said in cross-examination that she had held the view that the father was “uncaring” and “inept”, although she went on to say “He’s not dangerous. Uncaring and inept doesn’t mean that he’s not capable of looking after him.”[5]
[5] Cross-examination 22 January 2004
The father denied that he had a bad relationship with the child C, and said that he had looked after her on a couple of occasions since the parties had separated. Mr G was of the view in the Family Report that there was no doubt about the father’s parenting motivation or his capacity for L.
Section 68F(2)(f): The ages of the children and their sex and background
L is a boy aged 8 years. He was born on 10th January 1996. There are no unusual factors in his background.
Section 68F(2)(g): Violence issues, including the need to protect the children from harm, whether physical or psychological.
There are no family violence issues nor are there any apprehended violence orders (ie family violence orders)[6] in force.
[6] S. 689F(2)(j)
Section 68F(2)(h): The parents’ attitude to the child and to the responsibilities of parenthood.
Mr G commented that the father’s arguments seemed, at times, to be more personally reactive and less child focused than those put forward by the mother. He said that the mother spoke more about the importance of sustaining the relationship between C and L.
It is difficult to predict what sort of an order would be least likely to lead to the institution of further proceedings in relation to the child
(s. 68F(2)(k)).
There are no other facts or circumstances that appear to me to be relevant.
Conclusions
It seems clear that each parent has a strong motivation for wanting the child L to live with them. L loves them both, and they both love him. The mother wishes to relocate to K and continue her relationship with Mr S. She believes that, even if L were ordered to live with his father, he would wish to move north and live with her.
The father’s proposal for L to live with him in S is vague, as the father is relying on his aunt to assist him. The father’s suggestion that L could spend time with Mr S’s son A, with whom he has a good relationship, would appear to be unrealistic whilst A is living with his mother. It is likely that the only times when A and L would get together would be when A spends contact time with Mr S.
The father’s proposal that L should live with him would mean that the child would be separated from his sister C. I do not believe that this would be in the child’s best interest. C may well be a half-sister, as she is the child of the mother by an earlier relationship, but L has lived with her all his life. As far as he is concerned, she is his sister. The mother’s proposal would keep the two siblings together.
There is no evidence that the mother’s care of either L, or C, for that matter, has been inadequate. L has lived with the mother since the parties separated. I am satisfied that L should remain living with the mother.
If the child is to remain living with the mother, the matter then to be considered is whether the mother should remain living in S or should be permitted to relocate the child’s residence to K. The mother wishes to relocate, as she has formed a relationship with Mr S, and they have work available. The mother does not have to show compelling reasons to relocate, but I am satisfied that her reasons are sound ones.
If the mother were to remain living in S, the father’s contact with L would continue unchanged, but the mother would not be happy. This could have a negative impact on L.
After considering all the evidence, I am satisfied that it is in the best interests of the child L to remain living with the mother, and for the mother to be permitted to relocate.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 19 February 2004
0