Bellamy and Bellamy
[2017] FCCA 494
•21 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BELLAMY & BELLAMY | [2017] FCCA 494 |
| Catchwords: FAMILY LAW – Parenting – relocation – mother permitted to remain living near (omitted) with the child. |
| Legislation: Family Law Act 1975, s.60B |
| Cases cited: AMS & AIF (1999) 199 CLR 160 B & B (1997) 21 Fam LR 676 Clement & Clement [2014] FCCA 1664 Godfrey & Saunders (2008) FLR 287 Goode & Goode (No.2) [2007] FamCA 315 |
| Applicant: | MR BELLAMY |
| Respondent: | MS BELLAMY |
| File Number: | SYC 1343 of 2016 |
| Judgment of: | Judge Henderson |
| Hearing dates: | 9, 10 January 2017 |
| Date of Last Submission: | 10 January 2017 |
| Delivered at: | Sydney |
| Delivered on: | 21 March 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Gorval Lynch |
| Counsel for the Respondent: | Mr Maddox |
| Solicitors for the Respondent: | John S Gibson & Associates |
ORDERS
The mother be permitted to permanently reside with the child X born (omitted) 2014 in an area within 30kms of (omitted).
The father’s application to cause the mother to return to Sydney be dismissed.
The parents have equal shared parental responsibility for the child X born (omitted) 2014.
The child live with the mother other than when he is spending time with the father.
The child spend time with the father as follows;
(a)Commencing the first week after his 3rd birthday, each Monday from 10am to 10am Wednesday or such other time as is agreed between the parents, with the parents to meet at (omitted) Shopping Mall or as agreed between them.
(b)Upon the child commencing formal education and provided the father has suitable accommodation within 30 minutes of the child’s school, regime of time in order 5(a) continue, otherwise time to be each alternate weekend from after school Friday to 6.00pm Sunday or as agreed.
(c)After the child’s 4th birthday, the father’s weekly time to extend to Thursday 4.00pm on 3 occasions during the year as close as possible to the NSW term school holiday periods with the fathers’ time the following week to be suspended .
(d)Upon the child commencing formal education the parents to equally share one half of all term school holiday periods as agreed with the father’s weekly time to be suspended during those school holiday periods.
(e)For Christmas in 2017 and each alternate year thereafter the child to spend time with his father from 2.00pm Christmas eve to 2pm Boxing day and his regular week time is to continue thereafter.
(f)The father’s usual week time be extended to 4.00pm Thursday on one week in January 2018 as agreed and the father’s usual week time be suspended the following week only.
(g)Commencing the NSW school holidays in January 2019 the father to have 2 periods of 7 days with the child in January and his weekly time with the child to be suspended in January.
(h)Upon the child reaching age 7 the child to spend one half of the Christmas school holidays with each parent and the father’s weekly time be suspend in all school holiday periods thereafter.
(i)The father to spend time with the child at Easter as agreed.
That the mother advise the father at least 14 days prior to any move of the address and contact details of where the child will be living.
That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each party do all things necessary to ensure that no third person make critical or derogatory remarks in relation to the other parent in the presence or hearing of the child.
That the mother ensure that the father be kept informed of:
(a)Any medical problems or illnesses suffered by the child while in the mother’s care;
(b)Any medication that has been prescribed for the child;
(c)Any social, school or religious functions which the child is to attend.
That the father ensure that the mother be kept informed of;
(a)Any medical problems or illnesses suffered by the child while in the mother’s care;
(b)Any medication that has been prescribed for the child;
(c)Any social, school or religious functions which the child is to attend.
That within 14 days of any enrolment at any pre-school, day care or school for the child, the mother does all acts and things and give all irrevocable authorities necessary to ensure that whichever pre-school, day care or school the child may attend from time to time, that school forward directly to the father, copies of all of the child’s school reports and merit cards and any written material pertaining to the child’s academic and extra-curricular activities.
IT IS NOTED that publication of this judgment under the pseudonym Bellamy & Bellamy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1343 of 2016
| MR BELLAMY |
Applicant
And
| MS BELLAMY |
Respondent
REASONS FOR JUDGMENT
The matter of Bellamy & Bellamy is an application filed by the father on 27 June 2016 seeking to restrain the mother from removing the child’s permanent place of residence from Sydney and specifically the (omitted) area where she was living, to near (omitted) where the mother intends she and the child live.
The mother’s application is that she be permitted to reside with the parties’ son X born (omitted) 2014 in an area known as (omitted) close to the (omitted) freeway heading towards (omitted) or within an area of 30 kilometres of (omitted) and that the current interim arrangements of X spending one night a week in his father’s care continue with provision to be made for changes when he attends school. The mother says she is unable to live in Sydney and obtain secure accommodation on her income and that this move will afford her an opportunity to purchase a home for she and X in an area closer to her parent’s and extended family than was (omitted).
The father does not agree with that application and seeks that the mother relocates the child to Sydney and that the child spend time with him on an increasing basis ultimately increasing to a sharing of his care with the mother. The father lives at (omitted) in rented accommodation.
There is no order sought by either parent that parental responsibility be other than equally shared.
The matter has come on for final quickly, given the delays in this registry. I heard the matter on an interim basis on 17 October 2016 and permitted the mother to move to the (omitted) area pending this early final hearing in January 2017 as the lease on her Sydney premises was up.
A family report was prepared by Dr G for the final hearing.
The mother has determined to move to (omitted), and she and her son moved on 19 December 2016.
The father was represented by Mr Lynch, solicitor, and the mother by Mr Maddox of counsel. Dr G, the mother and the father were each cross-examined. Dr G gave his evidence first, due to his commitments with other litigants. Both the parents were cross examined.
The Court exhibits tendered were:
a)Court exhibit 1 the family report of Dr G.
The Father tendered the following exhibits;
a)Father’s exhibit 1: consisted of a number of Google printout maps. The first is a printout of a Google search for the distance between the father’s home at (omitted) and (omitted), (omitted) where I ordered the parties to effect changeover once the mother moved. The distance is 93 kilometres one way and the trip time one hour and 36 minutes.
i)The second is the distance between (omitted) and where the mother now lives at (omitted). This is a distance of 159 kilometres one way and the trip time is one hour and 52 minutes.
ii)The third printout is the distance and time from (omitted) to the father’s home which is a 28-kilometre drive, of some 25 minutes one way
iii)The fourth is the distance from the mother’s former home at (omitted) to (omitted) Shopping Mall, (omitted), which is some 30 kilometres and took about 31 minutes. Thus the parties each had perhaps a 30-minute drive to the changeover location when the mother was living at (omitted) and the father living at (omitted).
b)Father’s exhibit 2: An email dated 6 December 2016 from the mother lawyers stating the mother did not want to disclose her new address to the father.
c)Father’s exhibit 3: An email dated 5 January 2017 indicating the father had booked into a parenting-after-separation course as recommended by Dr G. That is some four days before the hearing. The mother enrolled in a similar course immediately after the interview with Dr G.
d)Father’s exhibit 4: A Google printout of the routes between X’s maternal grandfather’s home at (omitted) and her home at (omitted), which is an hour and three minutes. The mother gave oral evidence this drive takes her 45 minutes, as she goes the back way. I am not clear on the evidentiary value of this exhibit.
e)Father’s exhibit 5. Google map printouts of a midway point from each parent’s current home being a café called the Waterfall cafe on (omitted) somewhere near the (omitted) turnoff. For the father the distance is 91 kilometres and for the mother 71kilometres. The difficulty with this evidence is that that no one knows exactly where the (omitted) café is situated and what the surrounds are like, its hours of opening, whether it is an isolated location and the distance it is from the freeway.
The Mother’s exhibits were:
a)Mother’s exhibit 1: A printout of the distances between the father’s home in (omitted) to the current changeover point at (omitted) Shopping Mall which the mother asserts is 89 kilometres, and takes one hour and four minutes to drive via the M1.
b)Mother’s exhibit 2: A printout of the time she asserts it takes to drive between (omitted) and (omitted) of some 48 minutes. Ultimately on the mother’s evidence and this was agreed it is a about two-hours one way for X to (omitted) and then a 2 hour trip to return to his mother’s home.
c)There is no mother’s exhibit 3.
d)Mother’s exhibit 4: A list of questions and answers in summary form answering the father’s non-acceptance of amounts she claimed to pay for their son and which were included in her affidavit. These amounts included speech therapy, day-care and matters of this nature. The father wanted to know if the amount claimed for speech therapy was after or before a rebate and similarly for day care. Ultimately nothing turned on this. The child attends speech therapy which his mother pays for and similarly with day care.
e)Mother’s exhibit 5: A speech therapy invoice showing that the mother net $50.00 per session for speech, which is consistent with her affidavit filed 2 December 2016, paragraph 10. This cavilling by the father over payments made by the mother for their son did not assist his case.
The written evidence for the parties was mercifully short.
For the father:
a)Initiating application filed 27 June 2016; and
b)Trial affidavit filed 5 December 2016.
For the mother:
a)Response to Initiating application filed 5 October 2016;
b)Trial affidavit of the mother filed 2 December 2016; and
c)Affidavit of the mother filed 9 January 2017.
The current arrangements for X are that he lives with his mother primarily and spends time with his father. He spends time with his father from 10am Monday until 5pm Tuesday each week being one night a week on a regular basis.
Dr G was clear on an increase in time for X and his father. He had balanced the situation of the mother continuing to live in (omitted) and the father in (omitted). Dr G said that had the parents been in close proximity he would have suggested one night a week and two shorter periods during the day, but given the distance he believed that X could cope with two nights a week due to the strength of his relationship with his father. He further opined that two nights a week would satisfy the child’s need to cement, develop and enrich his relationship with his father pending him attending school. This time said Dr G would ensure X maintained the benefit of an ongoing relationship with his father.
I do not find either of these parties deliberately misled the court or tried to avoid questions that were asked of them. They were open and honest. As always in relocation cases, whatever decision I make, one party will be bitterly disappointed, for there is no doubt that the child living in (omitted) and the father continuing to live in (omitted) will be a significant impact on the father in travelling, result in significant cost and wear and tear on his motor vehicle and as Dr G said will stymie the father’s flexibility in being able to pop into the child’s daycare or, when he attends school, for school events and the like and see him perhaps daily. The time that X will spend with his father must of necessity be structured, and must be consistent, but there will not be the flexibility which is available when parents live close to each other.
Dr G’s report had some significant deficiencies which when pointed out to him he apologised to the court for. He failed to deal at any level with the impact upon the mother and her primary parenting of the child if she is not permitted to remain living in (omitted). There is absolutely no mention of this most important consideration for the Court in Dr G’s report. When questioned on this lacuna he said he canvassed this issue with the mother, but it was not contained in his report.
Similarly there is no mention of the impact on the father and his relationship with the child if the child remains living in (omitted). Again this issue was canvassed with the father by Dr G however there is nothing in the report on this important issue.
Thus on one of the most important matters I must have regard to and make findings in my necessity to evaluate the parties competing proposals, the very person – the social scientist who saw the parties has failed to disclose this important evidence to the Court in his report.
Dr G was initially of the view that the time the child spends travelling with his father in the car will reduce the quality of time the child and the father have. I put to him that time spent in the car can be quality time, and the reality is you are with your child as a captive audience. Dr G agreed this was correct.
Secondly, both parents agreed that X sleeps in the car avoiding a sleep at his parents’ home thus again I could see little negative impact on time of the quality of time the father and child would enjoy merely due to travel. I simply did not accept the bold assertion that merely because you are travelling with a child in a car you are not spending time with them.
I accept time spent with a child travelling in a car is different to time at home, at the beach, at a shopping centre or visiting relatives etc. however the parent is spending time with the child, and games, DVDs, music tapes and the like can be engaged in during travel time. Thus I do not accept that time travelling with a child in a car will ipso facto result in deterioration in the father and child’s relationship. There is absolutely no evidence in this case or evidence in social science that distance alone will minimise a relationship a parent has with a child or a child with a parent.
When pressed on this issue Dr G was clear, it is not the distance that will impact on the child’s relationship with his father, it is the quality of that relationship and how well the parents’ relationship is going. Dr G said the parents having a good working relationship is how best to support X having a strong relationship with his father.
Dr G was critical of the mother in his report at paragraph 41:
In her affidavit filed 5 October 2016 Ms Bellamy expressed her intention for X’s maternal grandfather to play a pivotal role in his upbringing should she be permitted to relocate with X to the (omitted) area. She said X’s grandfather will be able to mind and take him out on trips giving him guidance he will need without a permanent father figure in his life.
On this statement it appears Ms Bellamy is expressing her expectation that moving to the (omitted) area in conjunction with the care arrangement she is seeking will likely result in X growing up without a permanent father figure in his life.
Dr G goes on to say:
There’s strong evidence in current research delineating the negative outcomes for children who grow up without the consistent presence of their same sex parent. X and his grandfather can serve as an appropriate substitute for the relation he might otherwise have with his father, however, the existing legislation does not align with this and the current research rejects the notion. The relationship between grandfather and grandson forms part of the child’s extended family and is distinct from that between father and son which forms part of the child’s immediate family. Research informs that whilst the former enriches the child’s world immeasurably, the latter is essential for the optimal development and wellbeing.
At paragraph 42:
Based on the information provided by Ms Bellamy and the care arrangement she has put forward there is an element of apparent undervaluation of the father’s role in X’s day-to-day life. Should the Court grant permission to move the burden on the mother to actively encourage and facilitate the relationship between X and his father could be expected to increase. Given the limited value she places on his father, concern is raised regarding her willingness to promote a consistent and meaningful relationship between the two in the context of greater geographical distance.
It was clear to me that Dr G was reporting that the mother believed her father could be a substitute for his absent father. Dr G’s resiled from his strong criticism and stark comments in the witness box when pressed. He said his comments were merely reflecting that the mother could see that the grandfather would fill in the gaps that the father might otherwise have filled if the parents were living in closer geographic proximity. I do not read Dr G’s comments in that favourable light.
However, that that is precisely what the mother was saying to Dr G. It is clear that even at his young age X has a very strong and attached relationship with his father. That can only have come about if the mother has promoted the relationship and the father has had the capacity to take up that promotion. When pressed, Dr G agreed with this truth.
At the time of the report the mother could only see one night a fortnight as being appropriate and this understandably caused Dr G some concern in her capacity to promote the father child relationship. However by the trial she agreed 1 night a week was a proper arrangement.
In light of the mother’s ultimate application to the Court to posit that the mother undervalues the father in the child’s life is simply not borne out on the evidence and is contrary to the evidence. Had the mother maintained a regime of time of one night a fortnight for X with his father until he attended school then I would have accepted Dr G’s concern of her perhaps undervaluing the importance of the father in X’s life however that is not a finding I will make in light of her current application and the evident strength of X’s relationship with his father.
There is no doubt that if X remains in (omitted) and his father in (omitted), it will be very difficult for the father to attend his schooling activities on an ad hoc basis. However, the father’s evidence of the necessity for him to live in (omitted) was not compelling or clear.
The father is a (occupation omitted) by trade and currently an (occupation omitted). He and a friend have purchased a business which he runs in (omitted). The father lives in (omitted) and runs a (business omitted). His evidence was as follows. He has been doing more of the administrative work rather than the (omitted) work which gives him more flexibility. The father’s hours of work as a (occupation omitted) he asserts are problematic. His hours of work are set out at paragraph 15:
My hours of work – Wednesday to Friday 10am to 10pm, Saturday 4pm to 11pm and Sunday 10am to 10pm.
Thus X’s time with his father on Mondays and Tuesdays was crafted to fit around the father’s work schedule. That time can continue whether X lives in Sydney or (omitted) whilst he is not at school. The father was also seeing the child on some Saturday mornings when he was not working.
The father’s evidence orally, not in his affidavit, was that he is not sure whether his business in (omitted) will reopen. It had not reopened as at the date of the hearing, and the father was not certain when or if it would. He was not certain whether they would reopen in (omitted), which is near (omitted), or (omitted), closer to where the father lives.
It was completely unclear to me whether the current business would reopen, and if it did where it would reopen, and whether the father would continue in this business and in his current role.
Secondly, the father rents in (omitted), he does not own a property in (omitted).
In light of the evidence at trial which is that his business had not re-opened and it was uncertain whether it would and that he is renting in (omitted), I do not accept the father’s assertions to Dr G and the Court that he can only live in (omitted). If his (business omitted) is at (omitted) he could live in (omitted), much closer to (omitted) than is (omitted). He could live in (omitted) or anywhere north of (omitted) again closer to (omitted).
I found the father’s evidence that his working commitments render him unable to live other than at (omitted) unsatisfactory. I do accept the father is a (occupation omitted) and is committed to work to support his son.
Thirdly the father was unable to state where he would be working when X attends school in 2019. He was asked:
Can you forecast your work situation in 2019?
The father answered “not even close”.
The father was clear he had no intention of moving closer to the (omitted) area, he did not want to live there, did not like the area, did not think he would earn enough income, did not see that the job situation was as beneficial for him nearer to (omitted) than it is in Sydney. Thus I find Mr Lynch’s final submission that: “The father’s profession causes the problem,” in answer to why the father cannot move closer to (omitted) unsupported on the evidence. It is not the father’s profession, it is his desire to remain living where he does, a desire he is entitled to exercise.
Dr G says X is capable of spending Monday and Tuesday night with his father each week before he commences school. Despite the mother’s concerns and application that he spend only one night per week in his fathers’ care, if she is to remain in (omitted) it is important that there be a balance between his need to obtain benefit from his relationship with his father and the time he can cope being away from his mother. Two nights in his father’s care gives him plenty of opportunity to recover from the trip from (omitted) and Dr G said this time will satisfy his needs up to school.
Given that the father could not tell me what his working commitments would be or where he would be working in 2019; his circumstances in in 2019 cannot be a relevant factor to take into account when assessing the parties’ competing proposals, which is what I must do. The mother’s circumstances in 2019 are much clearer. I am satisfied that the mother and X will be living in (omitted) or close thereto in 2019 and that X will be commencing school in that area.
X can continue to enjoy the time he currently spends with his father when he attends school if his father rents accommodation suitable for overnight time each week. This option would also have the advantage of giving the father the opportunity to attend school events and the like. This would come at a cost to the father and is relevant for child support.
Child support was a vexed issue. The mother said the father had been inconsistent in the past and had not always paid child support and despite the father having been consistent in his payments over the last few months was concerned this would not continue.
The assessed child support is $410 per month. However, it was clear from a document produced by the husband the contents of which were conceded by Mr Maddox that the husband has actually been paying over $600 per month to the Agency yet the agency has not paid that sum to the mother. $600 per month would clearly assist the mother to pay for the additional services such as speech therapy and swimming which she pays for X. Dr G was most concerned about the child’s speech at the interviews and immediately after that interview the parents enrolled him in speech therapy.
The mother is agreeable to the father taking X to speech therapy at (omitted) should he choose to so when he spends time with him. X is enrolled in speech therapy near her home at present but the mother was flexible on where he attended. Dr G said it is not necessary for both parents to be actively involved in speech therapy sessions with the therapist and the parents can attend by way of Skype or the telephone. Further that speech therapy will end unlike education which is ongoing.
It was put to me by Mr Lynch that the father spending time with his son in a motel is not like in a home. That this would be artificial, X would not be able to do his homework and the like. I reject that submission. Spending time in X’s current environment is not something the father has explored. There may be perfectly suitable accommodation in (omitted) for short term yet regular lease which could be a home-like environment. The father had not even looked at this possibility or even canvassed any option in his material other than the child and mother returning from whence they left.
As Dr G said, distance is not the problem. It is the parents’ capacity to promote the child’s relationship with each other that is the key factor. The reality is I must look at the competing proposals. The mother is not moving to Melbourne, Perth, Brisbane, Darwin, Adelaide, and Hobart. The mother is moving 2 hours from where the father lives in his rented premises and is asking he travel for up to 1 hour and 30 minutes and she about 50 minutes to the changeover. This distance and X’s time can be accommodated by a variation of the current arrangement and does not engender a tumultuous upheaval a move to Brisbane for example would create.
I accept the mother’s proposal involves more travel and greater time and difficulties will ensue due to these factors that would not be present if the parties were living in close proximity. However, the evidence does not support the father’s contention that these 2 factors will have a negative effect on his relationship with X.
If I ordered the mother to return to Sydney I would not on the evidence limit as the father seeks I do, where she could live only that it be in the Sydney metropolitan area. The mother may choose to live in (omitted) or the (omitted) area as she would still be living in the Sydney metropolitan area and still the father would be travelling
The upheaval for the mother and child of returning to Sydney when they have only recently moved to (omitted) will unsettle the child. Finding suitable accommodation that the mother can afford in Sydney on her limited income is a difficult task which will have a negative impact on her parenting of the child. I accept that the quality of accommodation in (omitted) is far superior to that which the mother can afford in Sydney or to put it another way the mother gets more bang for her buck in (omitted) than in Sydney.
The father has the capacity to move and only has himself to move. He has failed to explore this option and its consequences. He has failed to acknowledge the consequences for the Mother and his son if I order she return the child to Sydney for it is clear X must live with his mother primarily and the mother will return to Sydney if I so order she is to return X to Sydney.
It is timely to be reminded of the principles in re-location matters set out importantly in of the High Court’s decision of U & U[1] referred to by my brother, Judge Brown in his very insightful judgment in Clement & Clement[2]. His Honour described the pathway set out by the High Court in U & U[3]. The High Court indicated that at first instance a court was obliged to give careful consideration to the proposed arrangements put forward by each party but was not specifically bound by them. As the best interests of the child concerned remained the paramount consideration, it was incumbent upon the court to investigate the possibility of the other parent moving to be closer to the child concerned, rather than necessarily first considering restraining the parent who wished to relocate the child from moving.
[1] U & U [2002] HCA 36
[2] Clement & Clement [2014] FCCA 1664
[3] Above note 1.
The father had not explored that option at all. He was implacably opposed to moving anywhere near (omitted), anywhere out of Sydney, and had not thought of perhaps (omitted) or some other area until Mr Maddox asked him those questions. In Dr G report he briefly referred to the father’s capacity to move at paragraph 10:
Interview with the father.
Mr Bellamy was observed to become subdued in his manner when asked about his relationship with the mother. He said “Ms Bellamy left me. She thought I cheated. I still love her”. When the issue of her relocation to (omitted) was raised, he said “I do not want her to move. We did not talk about it”.
He talked of his concerns about the distance between his residence and (omitted), the impact this would have on his relationship with the child and the impact on X of travel. However, the reality is that X has been doing this travel. He sleeps in the car and neither parent report a negative consequence for him.
The father that if she had notified him earlier of her intention to relocate he would not have bought his Sydney-based business. I do not know the purchase price of his business or when it was purchased. However, the business had not re-opened by 9 January 2017 and the husband is unsure when or whether it will re-open.
Justice Gaudron said in U & U[4]:
…how courts might subconsciously approach relocation issues when raised by mothers. It is sometimes said that it is part of the duty statement of being a parent that one will subjugate one’s personal aspirations and desires to what is seen to be best for one’s child. That is what it is seen to be an ideal parent or mother. Mothers are not required to soldier on regardless with a stiff upper lip if it is perceived to be the right thing to do for the children concerned.
[4] Above note 1.
The mother has clearly weighed up her options. She has a young child, a father with a difficult work roster. She has no family support in Sydney and has family in the (omitted) area and at (omitted). I found the father’s attitude to this lack of family support of concern. He said of the mother at paragraph 35 of his affidavit:
She states that she would receive additional support in (omitted) from her parents. Up until X’s current age, Ms Bellamy had been coping well with X. X does not have any particular difficulties.
I continue to believe she is a good mother to X in Sydney receiving the support she currently receives from her parents, which is – they travel down from (omitted) as and when needed, three, maybe four times a year.
However, at paragraph 12 of his affidavit the father, properly makes much of the fact that his brother Mr G, wife and his four nieces and nephews will be coming to permanently live in Sydney the week of 16 January, and that this will be important for the father and X, that they will give the father support and X will be enriched by this extended family. Yet the father is dismissive of the mother’s claim of the benefit to her and X of being closer to her parents and extended family and being able to access more frequent additional support when the mother is the primary carer.
The mother was questioned that if her parents support was so important why did she not move to (omitted) as (omitted) is over one hour from (omitted). The mother said “I was thinking of Mr Bellamy. I did not want to move that far. It may have made it too difficult”. The mother has carefully picked a location where she has been able to secure high-quality new accommodation being a 3 bedroom townhouse at a rent of some $350 per week, 50 or so minutes from the mother’s home to the changeover point at (omitted) and at most some 1 hour and 30 minutes from the father’s home to the changeover point.
The mother has balanced her needs to be supported by her family enabling her to return to full time work, provide a standard of living and accommodation for X that is appropriate as well as engaging him in other activities such as swimming, speech pathology and preschool and ensuring he can continue to spend quality time with his father and maintain his beneficial relationship with him.
The mother has well thought out her plan. It is not a flight of fancy. The mother has two aunts living very close by, one of whom knows X very well. The mother has significant family support in this area, which the father cannot provide her, on Wednesday, Thursday, Friday, Saturday or Sunday night each week. Yet he believes the mother should cope. That is precisely what Justice Gaudron said was against the law was stating in U v U[5] namely to make a parent by order soldier on or merely cope.
[5] Above note 1.
Going as I must to the Act[6]. The Act provides at paragraph 60B(1) that the orders should ensure the children have the benefit of both parents having a meaningful involvement in the lives to the maximum extent consistent with the best interests of the child. I clearly have to protect children from harm, and there is no risk of harm to X from either parent or anyone in his life.
[6] Family Law Act 1975 (Cth), s.60B.
Section 60B(2) of the Act[7] stats that children have the right to know and be cared for by both parents, spend time on a regular basis and communicate with each parents. Parents jointly share duties. Parents are to agree about the future arrangements. Children have a right to enjoy their culture.
[7] Above note 6, s.60B(2).
The Court’s inquiry is to be a positive one, tailored to the best interests of the particular child and not children in general. That principle arises out of the decision of B & B[8].
[8] B & B (1997) 21 Fam LR 676.
Both parents in this matter agree there ought to be an order for equal shared parental responsibility.
In the High Court’s decision in AMS & AIF[9] Justice Kirby’s decision was referred to by Brown J in his matter of Clement[10]. Brown J Justice states at paragraph 374:
[9] AMS & AIF (1999) 199 CLR 160.
[10] Above note 2.
In AMS & AIF[11] Kirby J set out nine general propositions derived from relevant authorities concerning relocation:
[11] AMS & AIF [1999] HCA 26.
Each relocation is unique and so the facts of each such case require a careful and delicate analysis.
As a result, no single factor will be dispositive in a relocation case. Each case requires the application of an individualised judicial discretion.
Although the child concerned’s welfare is the paramount consideration, it is not the only consideration for the court.
Accordingly, the court cannot ignore the legitimate expectation of a parent that he or she should be free to live how and where he or she chooses in the future.
There is no universal rule that requires separated parents to live in close proximity with one another to ensure that their children have the optimal relationship with both parents
Democratic societies place high store on the entitlements of adults to choose where they live. Accordingly Courts are reluctant to interfere with a parent’s right to freedom of movement particularly if that parent is the unchallenged custodian of the child concerned. Interference by Court order in the life of a parent may lead to resentment which itself is likely to have negative implications for the child concerned
However “the touchstone” remains the best interests of the child concerned and not the wishes and interests of parents.
One of the primary functions of Family Law legislation is to provide mechanisms for separated spouses to begin a new life for themselves, independently of their former partners. Accordingly, any legislative rule regarding the right of a child to maintain frequent and direct relations with both parents cannot be interpreted as an absolute one
Courts in Australia have a more relaxed attitude to relocations within Australia, when compared to overseas relocations, because the availability of reliable transport and telecommunication facilities within Australia and because of the homogeneity of social and cultural factors in this country
When considering a relocation application, the court will be required to assess the adequacy of new contact arrangements with the other parent concerned, and particularly whether those arrangements are in the best interests of the child concerned
The court retains the discretion to depart from the norm of shared parental responsibility, in appropriate cases.
The High Court’s decision in MRR & GR[12] tells me that matters of parenting and the making of parenting orders are matters of practicality and reality. That the court does not make orders about what should be the case but what can be the case having regard to all the matters under the act. That the making of an order for equal shared responsibility is not determinative of an order for time spent but enlivens the Court to consider whether an order for equal time or significant and substantial time is an order in the child’s best interests.
[12] MRR & GR [2010] HCA 4.
The parents agree to share parental responsibility. Thus I must consider whether and order for equal time or significant and substantial time is in X’s best interest. Dr G was clear 2 nights a week away from his mother is what X can cope with at this age and thus an order for equal time or significant and substantial time are not orders in the child’s best interest.
I can only today make orders based upon the evidence before me, and at his young age Dr G said optimal time would be one night a week and two other daytime periods if the parents were in close proximity. If the mother remains in (omitted) the Dr G said that 2 nights per week would be more than sufficient for X to maintain his relationship with his father.
Looking at the competing proposals. The mother says “I wish to remain in (omitted), where I have determined to live with my son. We will share parental responsibilities. I wish to be in an area 30 kilometres of (omitted)”.
That the child spend time with his father each week from 10 am Monday until 4 pm Tuesday, Christmas and the like be shared and when he attends formal schooling he spend alternate weekends with his father and half school holiday.
If the mother remains in (omitted) it is agreed (omitted) continues to be the changeover point.
The father seeks orders that the mother be restrained from removing X from the Sydney metropolitan area. That X spend time with his father from 10 am Monday till 10 am Wednesday each week and each Saturday and that when he commences school he have holidays with his parents as agreed.
Weighing up the competing proposals.
Dr G agreed happy parent equals a happy child. Mr Lynch put forward that the father would be unhappy if the mother moved and therefore his relationship with his son would be diminished because he would not be a happy father. The difficulty with Mr Lynch’s submission is that the father is not, nor has he ever put forward to be the primary carer of this child. His mother is and will always be.
There is no application for equal time nor is there an application for significant and substantial time. The father seeks time each Saturday morning only resulting in X never having a full weekend with either parent. If the father was unhappy I do not see this would have a negative impact upon the child because he would always be happy when he was with his child. The negative impact upon the mother happiness and therefor parenting of the child in being restrained from living where she has chosen to live and having her careful long term plan stymied would be far greater than any unhappiness the father may experience and thus negatively impact on X .
In the decision of Taylor & Barker[13] their Honours say that prior to the 2006 legislative amendments the preferred approach was not to consider a relocation proposal separately from other proposals in relation to a child arrangement. It was just a factor in that matter. However, consistent with what the Full Court said in Goode & Goode[14], the options of the child spending equal time or substantial and significant time with each parent must now be given separate real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an equal time or substantial and significant time arrangement.
[13] Taylor & Barker [2007] FamCA 1246.
[14] Goode & Goode (No. 2) [2007] FamCA 315.
Looking at the matter today, there is no contention for an equal time order and that would be inappropriate. There is no contention for a significant and substantial time order. Thus what are the most appropriate orders going into the future?
Dr G says 2 nights a week is sufficient for X to maintain his relationship with his father and this can occur whether he lives in Sydney or (omitted). Even when X commences school such an arrangement can continue if the father travels and remains in an area close to X’s home each week to take him to and from school. Such an arrangement will come at a cost to the father which will be relevant to child support. X will be spending time with his father in holidays and this will start gradually.
A concern I do have is that whether X is in Sydney or (omitted) his weekly time with his father is predicated on his father maintaining his current work regime and that is far from certain. There is a significant degree of uncertainty with the father’s work which may be reflected in his work roster both during the week and on weekends.
The father is effectively requesting that the mother live close to him so that he can maintain his relationship with his son and his current work regime when his evidence is that it is uncertain if his current work will continue or where it will continue.
What I am certain of is that X will continue to primarily live with his mother.
Whether X lives in (omitted) or Sydney I would not make an order for X to spend every Saturday with his father as this would result in X never having a full weekend with his mother.
Secondly to enable the father to have each or any Saturday morning with his son would require I order the mother to live in Sydney with the possibility of risking her happiness, placing her in financial stress and removing her from her family support the negative consequences of which would far outweigh the benefit to X of a Saturday morning with his father. Thus to restrain the mother from living where she currently does and ordering her to return to Sydney to enable the father to spend time with the child on Saturday cannot be an order in the child’s best interest.
As Justice Gaudron said:
The primary parent’s role is not to sublimate their justified and legitimate interest in what is perceived as the best interest for the child.
As the father sees it the best interests of the child is living close to the father so he can spend quality time with the father. That is just one way of looking at the matter.
In again quoting from Justice Gaudron in U & U[15]:
It must be accepted that regrettably, stereotypical views as to the proper role of a mother are still pervasive and render the question whether a mother would prefer to move to another state or country or to maintain a close bond with her child one that will almost inevitably disadvantage her forensically. A mother who opts for relocation in preference to maintaining a close bond with her child runs the risk the she will be seen as selfishly preferring her own interests to those of her child. A mother who opts to stay with her child runs the risk of not having her reasons for relocating treated with the seriousness they deserve.
It must be acknowledged that it is likely that in very many relocation cases that 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.
[15] Above note 1.
Justice Hayne J said in U & U[16]:
If effect is to be given to those principles it must not be assumed that one parent cannot move, and that the mother must in every case subordinate her ambitions and wishes not to the needs of her 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 interest of one of them.
[16] Above note 1.
That is the difficulty that I have with the father’s competing proposal. It is all about him, “I wish to remain in (omitted), although I do not know where I will be working or whether I will have a business and the mother must return with my son so that I live where I wish to live.” That is clearly not the law nor would an order for the mother to return be an order in the child’s best interest.
There is little impediment to the father moving other than he says he has insufficient funds. Each had a property settlement. The wife received $180,000 and the husband $70,000. The mother is desirous of purchasing a home in that (omitted) area where she can get, as she said, more for her dollar. I will take judicial notice that quality properties in that area will be cheaper than similar quality properties in the Sydney Basin.
The newspaper is full of the difficulties for young couples, let alone single parents purchasing a property in Sydney. The father’s whole case is predicated on, “I cannot or will not move.” yet he can move. There is not one impediment to him moving other than he says he cannot afford it. However, he, like the mother, achieved a property settlement and his evidence about his business is far from clear to me.
Justice Kay said in Godfrey & Saunders[17]:
[17] Godfrey & Saunders (2008) FLR 287.
What the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
Looking at the legislative pathway. X clearly benefits from a meaningful relationship with each of his parents. There is no risk of harm and mercifully such matters are not relevant.
Each parent has a high capacity to parent their child, psychologically, emotionally and educationally.
Each parent takes their role as parents seriously. They both love their child. They are committed to parents.
They positively promote each other in their child’s eyes.
The parents do have difficulties in communication; however, pending litigation in a Court is not conducive to parents being able to communicate freely. I am confident once they have attended a parenting after separation courses and have settled down into a regime of time that is put in place they will be able to communicate as it is clear to me that each has their son’s best interests at heart.
Mr Lynch submitted that as the mother sought an order when the child attends school that the father have him on Friday, Saturday, Sunday night, that meant she minimise the role of the father in the child’s life. The father could not tell me himself what he would be doing when the child went to school in 2019. Perhaps he will be working as a (occupation omitted), perhaps he will be working more as a (omitted), perhaps he will be working more in (omitted). He is not even sure what he will be doing thus that submission cannot be sustained.
Mr Lynch submitted that the mother minimises the importance of the father to X and gave as an example not providing the results of the audiometry testing carried out in in February 2016. I do not know why she failed to do this however it is a matter of small compass in reality.
The mother is very desirous of the child spending time with the father’s family and this she said can be accommodated when he is spending time with his dad.
The parents have agreed that at Christmas they do not want their son to have a shared Christmas Day. He will spend from Christmas Eve to Boxing Day with his father in 2017 and alternate each year. The holidays were also agreed.
It was very hard for Mr Lynch to find any real evidence to support the father’s position and Dr G’s initial opinion that the mother undervalued the father. Not providing the audiometry test in February 2016 was one. Perhaps tardiness in letting him know day care centres and where she was living are examples of this otherwise it is clutching at straws.
I do not see in this matter that the mother continuing to live in the (omitted) or thirty minutes east, south or west of (omitted) will of itself interfere with or in any way diminish the father’s relationship with the child. It does make it harder for the child and the father due to the travel time however it does not mean less time. It is a different regime of time, and a different regime of activities are engaged in during that time. An increase of one night a week is far superior quality time for X than time on a Saturday and at his age he will benefit from a reasonable period in his father’s care.
There are no impediments to the father’s continuing and ongoing development of a close relationship with his son other than his implacable attitude about moving north, and his desire to remain in (omitted). The father is well able to travel, is well able to have his son for two nights in his care in Sydney before he attends big school and can continue this time when attends school by travelling to the (omitted) area and remaining there overnight.
I do not see it is an order in X’s best interests that his mother is ordered to return him to Sydney let alone the (omitted) area in light of the above findings.
I find consistent with Dr G’s evidence and the evidence of the mother and father that X is a happy, robust, emotional stable child well able to spend each Monday and Tuesday night in his father’s care between now and attending school, with such an order continuing when he attends school provided the father has suitable accommodation no more than 30 minutes from where the child attends school.
If the father cannot obtain suitable accommodation near X’s school I can only order alternate weekend time so as not to interfere with X’s schooling
The parents are to meet at (omitted). That is an appropriate place and venue. If the father is late he texts the mother. It is a shopping centre which can cater for the needs of a young child. It is very close to the freeway. It has the facilities required. It is a public place. Thus unless the parties agree (omitted) will be the changeover place.
In odd numbered years the father will have his son from 2pm Christmas Eve to 2pm Boxing Day, and in even-numbered years the mother will have the child from 2pm Christmas Eve to 2pm Boxing Day otherwise the fathers weekly time to continue.
The father’s time with the child will be 2 nights each week being a Monday and Tuesday to be effected by the parents meeting at (omitted) at 10am on Monday morning, and the parents meeting at (omitted) at a time selected by the father on Wednesday which may have to be 9am given his work commitments on Wednesday. This time will continue throughout school holidays.
Upon X reaching age 4 and if the father is able to care for the child, X’s time with the father to extend to four nights, being a Monday, Tuesday, Wednesday, Thursday in each term school holiday period being the first week or as agreed with the father’s usual week time to be suspended in the mothers holiday period.
For the Christmas school holidays commencing 2019 the child to spend 2 periods of 7 days with his father as agreed and the father’s usual week time pre and post his week holiday time is suspended.
Upon X reaching school age he is to spend one half of each term school holiday with his parents.
In the long school holidays and until X reaches age 7 he is to spend 2 separate weeks with his father,
Upon X reaching age 7 the parents to have half of all school holidays.
The mother is permitted to permanently remove the child’s residence to an area within 30 kilometres of (omitted).
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge Henderson
Date: 21 March 2017
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