Benson and Benson

FEDERAL CIRCUIT COURT OF AUSTRALIA

BENSON & BENSON

[2014] FCCA 716

Catchwords:
FAMILY LAW – Parenting – relocation – mother seeks to move the children to (omitted) – consideration of ‘reasonably practicable’ – consideration of ‘quality of relationship’ – children’s best interests.

Legislation:

Family Law Act 1975

Paskandy & Paskandy (1999) FLC 92-878
Taylor & Barker (2007) FLC 93-345
MRR v GR (2010) 240 CLR 461
McCall & Clark (2009) FLC 93-405

Applicant:

MS BENSON

Respondent:

MR BENSON

File Number:

MLC 12007 of 2012

Judgment of:

Judge McGuire

Hearing dates:

7 & 8 April 2014

Date of Last Submission:

8 April 2014

Delivered at:

Melbourne

Delivered on:

30 April 2014

REPRESENTATION

Counsel for the Applicant:

Ms Lane

Solicitors for the Applicant:

Gardens Lawyers

Counsel for the Respondent:

Mr Pavone

Solicitors for the Respondent:

Verhoeven & Curtain

ORDERS

That the parents have equal shared parental responsibility for the children X born (omitted) 2005 (“X”) and Y born (omitted) 2007 (“Y”).
That X and Y live with the father as follows:
(a)Each second weekend between Thursday at the conclusion of school and the following Monday at the commencement of school;
(b)On the other week from the Thursday at the conclusion of school until Friday at the commencement of school;
(c)For half of all Victorian gazetted school holidays as agreed between the parties but failing agreement for the first half of such holidays in 2014 and 2014/2015 summer holidays and in each alternate year thereafter and for the second half of such holidays in 2015 and 2015/2016 summer holidays and in each alternate year thereafter;
(d)Such other or varied times as may be agreed between the parties from time to time.
That X and Y live with the mother at all other times.
That each of the parties be and is hereby restrained from changing the children’s places of residence from the (omitted) municipality without the express written consent of the other party.

IT IS NOTED that publication of this judgment under the pseudonym Benson & Benson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 12007 of 2012

MS BENSON

Applicant

And

MR BENSON

Respondent

REASONS FOR JUDGMENT

These are proceedings about two children, X, born (omitted) 2005 (aged 8 years) (“X”) and Y, born (omitted) 2007 (aged 6 years) (“Y”).
The discrete issue before me concerns the mother’s application to relocate with X and Y from (omitted) to (omitted). The application is opposed.
There are no extant parenting orders. There is, however, a parenting plan or agreement whereby the children live between their parents in (omitted). They are with the father, during a four-week cycle, on three weeks between Sunday evening and Tuesday evening and, on the fourth weekend from Friday after school until the following Tuesday at 6 pm. This amounts to 10 nights out of each 28.
Should the mother’s application be unsuccessful then she would not herself propose relocating and would remain in (omitted). That being the case, the parties have reached an agreement that the above regime change to a fortnightly one whereby the children would spend five nights with the father and nine with the mother.
Should the mother’s application to relocate be successful then she proposes that the children travel to (omitted) on one weekend per month (each fourth weekend) and that the father travel to (omitted) for one weekend per month. The mother proposes that the children spend a greater proportion of their school holidays with the father in (omitted).
The mother is 42 years of age. The father is 40 years.
The parents commenced co-habitation in 2003. They married on the (omitted) 2005 and separated in May 2011.
The mother has re-partnered with Mr T who is a (occupation omitted) and employed in (omitted) since January 2013. That relationship has continued since November 2011. Mr T and the mother say that the relationship is a committed one and they contemplate marriage and hope for children. They have purchased a home in (omitted).
The mother’s case is that she is and should continue to be the primary parent of X and Y. She wishes to fully pursue her relationship with Mr T and says that her happiness is vicariously of benefit to the children. Her relationship with Mr T is currently confined to weekends and his leave from employment. He travels a substantial distance from (omitted) to (omitted) on Fridays and returns Sundays for three weekends out of each four. On the one weekend per month that the children are with their father, the mother travels to (omitted).
The mother further argues that X and Y have a well-established, successful and meaningful relationship with their father which would endure their relocation.
She says that the children are ambivalent as to the move but is confident in their maturity and resilience so as to readily adapt to a new school and friendships in (omitted).
The father argues that the nature of the change proposed by the mother for his relationship with the children is so dramatic that it will impact significantly on those relationships and is hence contrary to the children’s best interests. He says that the travel between (omitted) and (omitted) is so onerous as to offer little practical benefit of any quality to the children in their relationship with him. Although in cross-examination the father seemed pessimistic as to the mother’s commitment to facilitating and encouraging the girls’ relationship with him should they be relocated, such a position is contrary to the more optimistic version of history given in his affidavits and I expect that he was simply being keen to shore up his case in the witness box.
The father has re-partnered and is soon to commence co-habitation with Ms C. She has three children being A who is 11 years old, B, who is 7 years old; and C, who is 5 years old. Ms C is a widow and hence her three children are with her on a full-time basis. Both the father and Ms C allude to some difficulties in the assimilation of their family unit. However each is confident that these problems will be alleviated over time. I place little weight on this evidence and particularly given that it is the mother’s proposal that X and Y spend lengthy block periods of times with the father in (omitted) and during school holidays should she be permitted to relocate. I can only conclude, therefore, that the mother is also of the view that any difficulties for these children within a blended family unit are not insurmountable.
The father argues that the children’s extended family live in (omitted) and that they have close intra-family relationships. He says that the same cannot be said for (omitted) where there are no family connections on either side.
The father says that the children are thriving in their academic and social environments and that the changes proposed by the mother present unnecessary unknowns for the children and their relationships.
The father argues that, given the mandate of the Court to have the children’s best interests as a paramount consideration, it is on balance preferable for Mr T and the mother to continue their apparently successful long-distance relationship rather than have the children endure the unknowns and difficulties presented by the mother’s proposal that they relocate.

The Issues

The issues for the Court’s consideration can be summarised as:
a)the impact of the mother’s proposal on the children’s relationship with the father, if any, together with the children’s capacity to endure and adapt their relationship with their father and other important persons in their lives;
b)the impact, if any, on the mother and her comfort and happiness as the children’s primary parent should she not be permitted to relocate to (omitted) and pursue her relationship with Mr T to its fullest potential;
c)the practical difficulties, if any, of the children maintaining a relationship with the father on the mother’s proposal.
d)the nature of the relationship of X and Y with the father’s partner and children;
e)The mother’s willingness and capacity to encourage and facilitate the children’s continuing relationship with their father should she be permitted to relocate them to (omitted).

The Evidence

The mother relied on two affidavits filed 7 November 2013 and 3 February 2014 together with a sworn financial statement filed 7 November 2013. She adduced evidence from Mr T, whose affidavit was filed 12 November 2013. He was cross-examined.
The father relied on his affidavit and financial statement both filed 22 November 2013. He adduced evidence from Ms C and from his mother, Ms M. They were both cross-examined albeit very briefly.
The Court also had the assistance of a comprehensive family report prepared by Dr S, psychologist. Dr S interviewed the parties and the children and conducted some psychological/personality testing. His report is dated 26 November 2013 and annexed to an affidavit filed 30 January 2014.
Dr S identifies the issues between the parties set out above. He relates a history relatively consistent with that provided by the parents.
Dr S observed an attached, warm and engaging relationship between the children and each of their parents.
Although X was ambivalent as to the proposed relocation, Dr S noted in his report[1]:
X is somewhat shy. She is mature and engaged well in the evaluation. Although there is no evidence of formal coaching, her comments about the evaluation suggested that there may have been some pressure from her mother, with the indication that she was told by her mother that she would have to tell the truth. She spoke of her parents’ wishes, indicating that she is aware that her mother wants her to go to (omitted) and her father wants her to stay with him. She reported that she did not know what she wanted but was thinking about moving to (omitted). She described her arrangement between her parents and indicated that her parents live only a few minutes drive apart. She spoke positively of her home environment with her mother although indicated in (omitted) there is a bigger house. She spoke positively of her mother’s new partner, Mr T, and reported that they get along well. She spoke of her mother as caring although indicated that she and Y sometimes fight.
[1] See page 40, paragraph 37 of the Family Report.
X is also reported to be positive about her father’s home environment and his partner, Ms C. She did confirm some difficulties in assimilation with Ms C’s children. Dr S concludes in respect of X:
She described positive relationships at both homes, although is positive about the possible move to (omitted), although could also imagine staying at her father’s, and she reported that she would feel okay if that eventuated. It would appear that the relationship with Ms C is not as well-developed as with Mr T.
Dr S reports Y as speaking positively of her school and of her time with each of her parents. She is also ambivalent as to the potential move to (omitted).
Dr S’s psychological assessment of the father was unremarkable, as was his presentation.
Dr S reported the mother as “emotional” and “very reactive”. He commented that:
She presented as very focused on what she wanted, rather than a more complex focus on the children. She presented as overtly focused on her own needs. Additionally, there were comments that appeared directly to be attempting to convince the examiner of the benefits of people moving location.
By way of comment, I do not find Dr S’s observations of the mother to be unusual. It would perhaps be unusual for a parent not to attempt to emphasise their case to an expert whom they probably perceive as carrying some real weight with the Court. Secondly, Dr S’s observations of the mother as being “focused on what she wanted” is consistent with her evidence in court, where she conceded that her application was in effect putting her own personal relationship with Mr T above the girls’ relationship with their father. Rather than accepting any implication of a lack of insight or selfishness in the mother, I found her responses to be pleasantly candid and honest. This Court is well aware of the difficulty facing a primary parent who, for good reason, wishes to relocate her children. The balancing of one’s subjective interests with the objective interests of children must indeed be a very difficult one.
Dr S details the mother’s childhood with instances of harsh discipline, a toxic family environment and abuse of both the physical and sexual variety. In cross-examination, Dr S agreed that the mother’s emotional demeanour at the interviews might be at least partly explained by this sad background but also suggests a nexus to the current family law matters.
Dr S concludes in respect of the mother[2]:
The mother presented a picture of a person with a difficult family upbringing, with her being subjected to physical abuse and some sexual abuse in her childhood in the context of an alcoholic father. She subsequently moved and distanced herself from her family of origin. She has re-partnered with Mr T after her previous two marriages. She presents as a person with some personality difficulties and vulnerability to depression. She presents with a tendency towards egocentricity, emotionality, dichotomous cognitive style and defensive.
[2] See page 30, paragraph 45 Family Report
Dr S agreed with both parents that X and Y are well-functioning and thriving children within their schools, respective families and social networks.
At page 33 of his report, Dr S makes a number of recommendations. Significantly, in a matter where the only real issue agitated between these parents is whether or not the mother is able to relocate with them to (omitted) and there being no substantial issues in respect of father’s time with the children, Dr S’s first recommendation is “…that the children have more time with the father on a fortnightly basis”.
Specifically in respect of the anticipated relocation, Dr S is more equivocal. He says:
In this matter, my recommendation is that the children remain in (omitted) in order to avoid the significant disruption with the move to (omitted). There should be consideration of a move if the mother’s partner was to find an alternative position, as it would appear inappropriate to alter the relationship with the children and their father at such an important stage of the children’s development.
Relocation of the children to a more viable location in the future would not be unreasonable and my understanding is that this is not opposed.
In respect of these recommendations, I note the following:
(1) It is an admitted fact that Mr T has now achieved permanency in his position in (omitted). His unchallenged evidence is that his previous position in (omitted) is redundant and no other employment options are available for him in that town;
(2) Dr S agreed that the current social theory favours a relocation for children between the ages of six and 12 years as to be the least problematic. X and Y are eight and six years of age, respectively.
Dr S was cross-examined at length and particularly by counsel for the mother. He generally maintained his position contrary to the mother’s proposal for relocation. He maintained his concerns as to the mother’s perceived emotional vulnerability. He denied that he had made comments to the mother relatively early in the interview suggesting his pre-determination of his opinion and recommendation. I accept his reasoning and explanation in this regard and do not find that he pre-determined the issues against the mother.
When challenged as to apparent conflict between on the one hand the mother’s responses in cross-examination and to Dr S suggesting some selfishness in her motives as against, on the other hand, the evidence tendered on behalf of the mother suggestive of her consistent encouragement of the father’s relationship with the children, Dr S elaborated that there was no such conflict. He said that he was not referring to the mother’s parenting per se but rather as to the issue of relocation where “she presented as individually focused rather than on the impact on the children”.
Dr S was challenged as to whether the current (and admitted by both parents) relationship between the children and their father could endure a relocation in respect of its “quality”. He responded that his concerns were in respect of the “depth of the relationships”. He said that such an attachment as between these girls and their father would inevitably maintain quality but that the relationship as a whole would be weaker. I understood Dr S to be referring specifically to the mother’s proposal which would arguably provide relatively minimal direct time with the children. Dr S continued that opportunities for flexibility and spontaneity within those relationships would be lost.

The relevant law

The Family Law Act 1975 (“The Act”) itself is silent as to the notion of relocation. It follows that a proposed relocation of a child is neither prohibited nor is there a presumption against it. Rather a consideration of an application to relocate a child is determined on consideration of all relevant factors in respect of the child’s best interests. It is well settled that it is not a proper course to consider firstly with whom a child should live and then enter into a separate investigation as to whether or not that parent should be permitted to relocate with the child.[3]
[3] Paskandy & Paskandy (1999) FLC 92-878 and Taylor & Barker (2007) FLC 93-345
Superior courts have over the years, and surviving various significant amendments to the Act, extracted a number of principles of assistance to trial judges dealing with matters of relocation. Those principles can be summarised as follows:
a)The child’s best interests remain the paramount but not the sole consideration but such best interests must be considered within the context of section 65DAA of the Act (reasonable practicability);
b)That a parent wishing to move does not need to demonstrate “compelling” reasons;
c)That the judicial officer must consider all the advantages and disadvantages of proposals, and may himself or herself be required to formulate proposals in the child’s best interests;
d)Neither party carries an onus of proof to convince a court either for or against the proposed relocation;
e)The child’s best interests must be weighed and balanced with the “right” of an adult parent to freedom of movement but such right must ultimately defer to the best interests of the child.
In determining parenting orders, a court must follow a statutory course of consideration. A starting point is the presumption that parents have equal shared parental responsibility for their children[4]. Parental responsibility in relation to a child means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children[5]. Such responsibilities often manifest in decisions of import such as for example education, religion, medical procedure and the like. In the matter now before me there is no contest between these parents as to parental responsibility. I am satisfied that the presumption applies given there being no issues of family violence. I agree with the parents, at this early stage, that an order for equal shared parental responsibility is in the best interests of the children and entirely appropriate.
[4] Section 61DA of the Act.
[5] Section 61B of the Act.
Once an order for equal shared parental responsibility is determined then the court is to move to consider whether the children spending firstly “equal time” between their parents is both in their best interests and reasonably practicable. If the answer to either question is in the negative then to consider whether the children spending “substantial and significant” time between their parents is both in their best interests and reasonably practicable.[6] .
[6] MRR v GR (2010) 240 CLR 461

The court’s determination of children’s best interests it not at large but rather by mandatory reference to the legislation. Section 60B of the Act sets out the objects and principles of the Act as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a 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 to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CC(2), (3) provide the more pragmatic and obligatory references for the court to address the parties’ proposals and the probative evidence. Those considerations are numerous and divided into two “primary” and numerous “additional” considerations. Despite this terminology, there appears to be no hierarchy of importance and it is for the court to address each factual platform by attributing weight and then balancing the various considerations so as to ultimately determine a child’s best interests.

Children’s best interests – section 60CC factors

Primary considerations

Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both parents

This consideration is at the crux of the father’s argument. Each parent and Dr S acknowledge that X and Y have a well established, attached and bonded relationship with both their parents. The mother argues that this very fact will assist in those relationships enduring her proposed relocation. The father argues that the mother’s proposal is so removed from the current regime of time for the children with him that there is a strong likelihood that the children’s meaningful and successful relationship with him will not be maintained. The children currently spend time with the father on about 10 nights each four weeks. The parents live in close proximity with the opportunity for flexibility and spontaneity in their movement between the parents’ homes. Time together takes place on both weekends and weekdays. The father is able to participate in their education and extracurricular activities. He says that all of these opportunities will be lost on the mother’s proposal.
It is well established that it is the quality of relationships in a prospective sense that most interests the court. In doing so, however, the court is to look at the current state of those relationships plus empirical factors such as the children’s ages.[7]
[7] McCall v Clark (2009) FLC 93-405
Dr S expanded on the notion of “quality” within a relationship. When challenged in cross-examination, I understood him to agree that the attachment of the children to their father might continue on the mother’s proposal but it was the “depth” of the relationships that might suffer. This raises the question as to whether “quality” as expounded in the various authorities is to be read simply narrowly in the sense of “attachment” or “bonding” or alternatively, and as implied by Dr S, the quality of a relationship should be considered in a far broader sense and perhaps to the enjoyment of such a relationship to its fullest potential?
The consideration under s.60CC(2)(a) is a primary one but remains simply one among the many which the Court must balance and attribute weight in ultimately making a determination that is in the best interests of X and Y and one that is reasonably practicable. In this sense the Full Court in Champness & Hanson observed:–
The submissions of Counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make Orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make orders most likely to promote the child’s best interest. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. (My emphasis).[8]

Section 60CC(2)(b) – the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.

[8] ([2009] FamCAFC 96 at 103

Such issues do not arise in this matter. It is opportune at this time to observe that this is a matter properly fitting within the pilot Relocation List currently offered by the Melbourne registry of this Court. That is, I have before me a situation of two good parents who have been able to successfully and cooperatively parent their children since separation in 2011 and without the need of Court intervention or Orders. They are now confronted with a situation where one party wishes to relocate. The commonly raised issues such as family violence and parenting capacity are not brought to the fore here. Issues of credit are not agitated. There is but one, albeit difficult, decision for the Court but one that will almost inevitably leave one of these parents understandably aggrieved.

Additional considerations

Section 60CC(3)(a) – any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views.

The children are just eight and six years of age. Neither party urges me to consider any preferences expressed by them. Dr S’s report confirms their general ambivalence to the issue of the mother’s proposed relocation. It is perhaps a statement to their good and successful relationships with both parents and a credit to those parents that these children are able to freely contemplate and consider the positions of both parents but do not appeared pressured by either.

Section 60CC(3)(b) – the nature of the relationship of the children with each of their parents and with other persons (including any grandparent or other relative of the children).

The evidence points to X and Y having loving, comfortable and successful relationships with each of their parents.
The father concedes that the children have a good and comfortable relationship with Mr T. And both parents acknowledge that there have been some difficulties in the children establishing relationships with Ms C and her three children. The issue here is that the father’s proposal would have X and Y living in a family unit, including Ms C and her children, for five nights a fortnight should the mother’s application be unsuccessful. In cross-examination the father offered that the girls are becoming more comfortable in those relationships. The mother was positive in her encouragement of the girls with Ms C and her children and, in fact, concedes that they should live with their father in this family unit for five nights a fortnight should she not be permitted to relocate. It would not be unusual for children of the ages of X and Y to experience some difficulties in understanding and assimilating into their father’s new household and relationship which includes other children. Taking the evidence as a whole, I do not find this to be a weighty concern and share the parent’s confidence that these two socially successful young girls will blend comfortably given the obvious understanding nature of the parents themselves and Ms C.
The children’s broader relationships are in (omitted). They are settled and thriving in school and in their social and extracurricular activities. They have traditionally been cared for by their paternal grandmother on Monday afternoons. They have the benefit of frequent contact with members of their extended family in (omitted). To the contrary and understandably, they have no peer group relationships in (omitted). The mother herself has not yet established relationships there. She has no family living in the area. The mother does, however, see her children as being socially adjusted, resilient and with a capacity to easily adapt to change. She is confident that they would easily establish new relationships if there was a move to (omitted). Dr S’s observation of the two girls supports the mother’s optimism.
The father argues that the mother’s proposal would provide minimal time for the children in (omitted), which would then need to be shared between himself, the members of his family unit and the children’s extended family and current friends. He argues that these relationships would necessarily suffer, for want of frequency of direct contact and given that the mother’s proposal would effectively give the children just one Saturday and a few hours of practical time in (omitted) each month together with school holidays each ten on to week.
Just continuing, sorry, on this new file for this matter of Benson. The father argues that the children’s – that these relationships would suffer for lack of time. Given that the mother’s proposal would effectively give the children give the children only the one Saturday per month in (omitted).
The parties agree that the nature of the children’s relationship with the mother is with her as the “primary” parent in the sense that she has taken on a greater role in their day-to-day activities and needs. It is she that has taken them to the dental appointments. It is she that has made the enrolments at school.

Section 60CC(3)(c) – the extent to which each of the children’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children and to spend time and communicate with the children, together with the extent to which each of the parents has fulfilled, or failed to fulfil the parent’s obligations to maintain the child.

These parents have not previously required court orders. They have been able to cooperatively parent. They have clearly both been involved in decision-making. They have both contributed to the financial support of the children. They have each moved on with their personal, domestic and emotional lives without the problems for children that all too often accompany the breakdown of parents’ relationships.

Section 60CC(3)(d) – the likely effect of any changes in the children’s circumstances, the likely effect on the children of any separation from either of their parents or from any other child, or other person (including any grandparent or other relative of the children, with whom they have been living).

The changes in the children’s regime for time between their parents and as proposed by the mother is a dramatic one. They currently see their father regularly and frequently. They live in close proximity and travel is not an issue. They have the opportunity for flexibility in their time together. Their relationships with their grandmother, other extended family and friends are readily available. They have the benefit of both parents being available for school and extra-curricular events.
The mother’s proposal would have the children coming to (omitted) for one weekend per month. They would not arrive until late on the Friday night. They would leave again by around eleven on the Sunday morning. Such a change would present an obvious impact on the actual and available time for the children to enjoy all of their current relationships.
There is another issue with relocation which commonly confronts parents. That is, as in this case, the mother is confident that her children will readily establish new relationships in their new town. This brings obvious benefits for the children. The mother argues this as a positive of her case. It does, however, raise further potential problems. As they explore their new home and relationships, the children will be confronted with conflicts. They will have sporting and extracurricular activities on weekends. They will be invited to social occasions. These will inevitably conflict, at least in the children’s minds, with their obligations to travel for time with the other parent. Issues may then arise between the parents themselves. The ability of the primary parent to continue to adhere to court orders and facilitate and encourage the children’s relationship with the other parent will be tested by these very conflicts.

Section 60CC(3)(c) – the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relationships and direct contact with both parents on a regular basis.

The force of the husband’s argument is also directed at this consideration. I emphasise that the court’s consideration is directed not just at the children’s best interests but also as to the reasonable practicality of the parties’ proposals.
Mr T currently travels from (omitted) to (omitted) on three Friday evenings per month. He estimates the travel time at near six hours. The distance is more than 400 kilometres. Regardless of the vagaries of peak hour travel, it is reasonable to expect that the travel would occupy five hours or more each way.
The mother proposes that the children be removed from school early on Fridays to minimise the difficulties of travel. I have no evidence from their proposed school that this would be acceptable on a regular basis even for one Friday out of each four and whether such an indulgence could be continued into secondary school.
By the time of final submissions the mother was proposing that she would do all of the travelling from (omitted) to (omitted). The evidence, however, had been directed at her previous proposal of the parties meeting at a halfway point on the Friday afternoon/evening. The father responded to the mother’s late change of proposal in questioning the safety aspect of one parent being required to undertake such onerous travel.
The mother proposes or offers that the father travel to (omitted) on one weekend per month. She suggests that he could do so from Friday afternoon until Monday morning. Like the mother, the father has no family or acquaintances in (omitted). He would be required to suffer the expense of both the travel and accommodation. The mother argues that there would be some set-off from savings of school fees. Such a proposal, however, would have this father away from his own family for one weekend out of each four whilst the mother suggests a benefit for X and Y in seeing their father each fortnight.
In referencing the practicality of the parties’ proposals, it is relevant to note that the mother’s relationship with Mr T is, and has been, a “distance relationship”. He travels on three weekends out of four from (omitted) to (omitted). The mother spends the fourth weekend with him in (omitted) and when the children are with the father. Perhaps ironically, she argues that her move to (omitted) is important and beneficial in maintaining her relationship with Mr T. At the same time, she would be creating and imposing those very difficulties for these two young children in their relationships with their father and other important persons.

Section 60CC(3)(f) – the capacity of each of the parents to provide for the needs of the children, including emotional and intellectual needs.

Although each of these parents in the witness box was keen to take any opportunity to make minor criticisms of the other, there is effectively no issue of their capacity to parent the children. Simply by reason of the parties agreeing to a regime of shared care in (omitted), should the mother not be permitted to relocate, negates any concerns as to the capacity of either. The evidence indicates that they have already demonstrated a capacity to attend to the children’s physical, intellectual, emotional and financial needs.

Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and either of the children’s parents and any other characteristics of the children that the court thinks are relevant.

These children are currently eight and six years of age. Dr S proffers that if there is to be a relocation then these children are of an age where it would bring less difficulties than should they be either teenagers or under five years old.

Section 60CC(3)(h) – if the children are Aboriginal or Torres Strait Islander

Not relevant.

Section 60CC(3)(i) – the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents

No issue is taken by either parent as to the attitude of the other to the responsibilities of parenthood.
Dr S suggests that the mother may be confusing her priorities of her own best interests as opposed to those of the children in arguing for a relocation. On consideration, however, I differ in that the mother’s wish to pursue her relationship with Mr T to its potential and including their desire to start a family is an entirely reasonable and understandable one. I certainly detected no mala fides in the mother’s evidence. I would prefer that she is confronted with the most difficult of conundrum following the breakdown of the relationship with the father. She wishes to move on with her life. She wants to pursue her own happiness and her new relationship. She wants to include the children in her new life. All of these are reasonable ambitions. The difficulty for the mother and the court is that she, to her credit, does not want to be confronted with the choice of either pursuing her relationship or relinquishing her care of the children. If there was any criticism of the mother’s attitude implied in Dr S’s evidence then I reject it.

Section 60CC(2)((k) - if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following;

This consideration is not relevant.

Section 60CC(2)(l) - whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

Matters involving a relocation of children bring particular difficulties for both parents and courts. The greater majority of parenting matters coming before these courts involve subtle issues of degree. Parents often argue as to whether children spend five or seven nights a fortnight with a particular parent. They argue as to particulars of time and the mechanics of changeovers. It is conceivable that such parents might leave after receiving the assistance of the courts with both being relatively satisfied as to the result or perhaps was not grossly dissatisfied.
Sadly, however, as such niceties of degree are not available when the issue is one of relocation. The result will be more “black and white”. Either the relocation will be permitted or it will be refused. The decision will inevitably burden one or other of the parents with harsh and unwelcome results and realities. If the relocation is permitted then the nature, frequency and regularity of time between the children and the remaining parent will usually be fundamentally changed. Issues of travel, expense and other inconveniences are added to the recipe. Previously civil and good relations between the parents are severely tested with bitterness and blame often coming to the fore.

Conversely, if the relocation is not permitted then the primary parent are similarly aggrieved and prone to attribute blame to the other parent. They may be unable to pursue new relationships. Their perceived “right” as adults to freedom of movement is thwarted. They are compromised in their obligations and love of their children and a person as need to pursue their own happiness.
The making of parenting orders is perhaps unique for courts in this country in that we are asked to make prospective orders with all of the unknowns and with the expectation (or hope) that they will successfully operate for children and parents into the future. The unknowns are many. Will the children adapt to their new environment if they relocate? Will the proposals for travel to the other parent prove too onerous or suffer by reason of being impractical? Will the very quality of the children’s relationship with the remaining parent degenerate to such an extent that further litigation is a real possibility? If the primary parent is obliged to remain unhappily in their place of residence then will that unhappiness impact on their parenting capacity to an extent that further litigation eventuates? Will the children grow to express their own preferences as to their living arrangements thereby igniting further litigation? All of these are possibilities.
It is the task for the courts, however, to make orders with an imperfect recipe but which are on balance in the best interests of the children. It is not the aim of these courts to strive for ideal or optimum orders for children. Such are probably not achievable.
Consequently, it therefore remains for parents to accept that the courts have considered, weighed and balanced the various proposals and options and determined a result which is considered to be in the best interests of their children. They should then endeavour to parent accordingly and to avoid further litigation in respect of their children.

Discussion and Conclusions

There are a number of advantages and positives in the mother’s proposal. They include:
(i)That she is in a committed relationship with Mr T. They reasonably wish to start their own family. Mr T was obliged to leave his employment in (omitted) due to no fault of his own;
(ii)Mr T has the capacity to provide financially and by way of facilities for the mother and the children. He has an income package of approximately $370,000 per annum. He and the mother have purchased a home which, on their evidence, is of superior size and quality to the mother’s (omitted) property. They would be relieved of the cost of maintaining the homes in both (omitted) and (omitted).
(iii)The children, X and Y, have a good, close and beneficial relationship with Mr T;
(iv)All parties and Dr S agree that these children are resilient and capable of adapting relatively easily to the mother’s proposed move of them from (omitted) to (omitted);
(v)The children have expressed no hesitation or reluctance in respect of the proposed move;
(vi)Dr S agrees that the children’s attachment and bond with their father is of such strength that the “quality” of those attachments and bonds would probably endure the relocation.
(vii)The mother would undoubtedly be happier and more comfortable in her own personal life should she be permitted to relocate with the children and ought have a positive effect on her parenting and therefore vicariously be in the children’s best interests. Her unchallenged evidence is that she would not immediately return to the workforce but be able to devote more of her time directly to the children’s care and needs than she is currently able to do.
There are also advantages in the father’s proposal including:
(i)The children could continue the frequency and regularity of the current relationship with their father which everyone agrees is a successful one;
(ii)The children would have be reason of proximity a continuing regular relationship with their grandmother, other extended family, and their friends and acquaintances;
(iii)The parties agree that the children are currently thriving academically and socially;
(iv)There is no indication that the children positively want or endorse the changes in their lives proposed by the mother;
(v)The children would have the benefit of being fixtures in their father’s family unit including his partner and her children rather than being infrequent visitors on a monthly basis as proposed by the mother;
(vi)The father’s proposal would remove the onerous travel for the children and for both the parents imposed by the mother’s proposal;
(vii)The mother could reasonably continue her relationship with Mr T. In fact, on the regime agreed between the parties, should the mother not be permitted to relocate, then she would be able to travel to (omitted) each second weekend which would effectively be a long weekend given that she does not work on Fridays. Whilst such travel might be onerous, it would be shared more equitably with Mr T and provide the mother and Mr T considerably more time together than would be provided the children with their father and others on the mother’s proposal and even if the father was inclined to travel monthly to (omitted).
On consideration and on the balance of all of the relevant evidence, I am of the view that the father’s proposal is in the best interests of X and Y.
The primary reason for the mother’s proposed relocation is to pursue her relationship with Mr T. That relationship has endured its difficulties for the past fifteen months and, on the evidence of both the mother and Mr T, continues to be a successful and committed one. On the father’s proposal, that relationship could continue each weekend, often being “long weekends”, when the mother could travel fortnightly to (omitted). The onerous travel for Mr T is diminished.
In contrast to the mother’s relationship with Mr T, her proposal would significantly impact on the children’s relationships with their father and others. Her proposal would see the children spending significantly less time with their father than she would be able to spend with Mr T on the alternative option. Again, there is some irony in mounting her argument to maximise her time and the potential relationship with her partner whilst conceding in her evidence the obvious impact on the children’s relationship with their father. Significantly, and candidly, the mother responded simply with “Yes” when it was put to her in cross-examination, “Therefore, you are putting your relationship with Mr T above these girls’ relationship with their father?” The major focus of the balancing process for the Court is in respect of these competing considerations. It is of course trite to repeat that the mother’s “right” to freedom of movement must be subject to the children’s best interests. I am satisfied that the impact on those interests of the children in respect of their relationship with their father would be so significant so as to weight against the proposal for their relocation. The travel for these young girls would be onerous and the relative benefits dubious given the limited time that would remain available on weekends in (omitted). I accept and adopt the distinction made by Dr S in his evidence in respect of the definition of “quality”. That is, whilst the attachment for these children with their father might endure, the quality of their relationship with their father in real and pragmatic terms would undoubtedly suffer on the mother’s proposal. I repeat that effectively all opportunity for flexibility and spontaneous interaction would be lost as would the realistic possibility of involvement in school and other activities enjoyed by the children.
I also have concerns as to the “reasonable practicality” of the mother’s proposal. Again, a strict and narrow definition of the term might allow for a finding of her proposal being “reasonably practicable”. It is practical for the children to be driven once a month on a Friday and return on a Sunday between (omitted) and (omitted) a combined ten or more hours on the road. It is reasonably practicable for the father to travel to (omitted) on a monthly basis in the sense that he is not prohibited from doing so; he has a drivers licence and a motor vehicle he would not be working on those two days. However, in my view, the term “reasonably practicable” should have some emphasis on the word “reasonably” in a pragmatic sense. Is it reasonably practicable for two young girls to travel for more than 10 hours on a weekend by motor vehicle for a limited benefit of just one day and a few hours of quality time? I suggest not and certainly not on a cost-benefit basis.
In conclusion, I am satisfied that the father’s proposal operates in the best interests of the children. That proposal is, of course, reasonably practicable in both that it is tried and true as an ongoing arrangement.

I certify that the preceding eighty four (84) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 30 April 2014

[2014] FCCA 716

30 April 2014

Key Legal Topics

Areas of Law

Family Law