BJZ and KEM
[2007] FMCAfam 86
•22 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BJZ & KEM | [2007] FMCAfam 86 |
| FAMILY LAW – Relocation – mother of children aged 8 and 7 wishing to move with them from M in SA to N in Victoria – impact of new provisions of Part VII of the Family Law Act – distinction between consideration of application of section 92 of the Constitution and general considerations of freedom of movement of citizens – whether presumption of equal shared parental responsibility rebutted – consideration of bests interest of children – orders made effect of which is for children to live with mother in N. |
| Constitution of the Commonwealth of Australia, s.92 Family Law Act 1975, ss.60B, 60CC, 61C, 61DA, 64B, 64DAA |
| AMS v AIF; AIF v AMS (1999) FLC 92-852 A v A: Relocation Approach (2000) FLC 93-035 U v U (2002) FLC 93-112 Bolitho & Cohen (2005) FLC 93-224 Goode & Goode [2006] FamCA1346 Hickson & Humphrey [2007] FMCAfam 27 Tiedeman & Offord [2006] FMCAfam 709 |
| Applicant: | BJZ |
| Respondent: | KEM |
| File number: | ADM 3747 of 2005 |
| Judgment of: | Lindsay FM |
| Hearing dates: | 17, 18, 21, 22, 23 August 2006 & 21 September 2006 |
| Date of last submission: | 21 September 2006 |
| Delivered at: | Adelaide |
| Delivered on: | 22 February 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Verlato |
| Solicitors for the Applicant: | Downs Lawyer |
| Counsel for the Respondent: | Ms T Lewis |
| Solicitors for the Respondent: | Herman Bersee |
| Counsel for the Independent Children’s Representative: | Mr Pickhaver |
| Solicitors for the Independent Children’s Representative: | Nicola Lesley Atchison |
ORDERS
That all previous parenting orders be and the same are hereby discharged.
That any injunction restraining the mother from changing the principal place of residence of either of the infant children JSZ and JPZ be and the same is hereby dissolved.
That the mother have sole parental responsibility for the said children.
That the said children live with the mother.
That the mother do all such things as may be reasonably required to facilitate the said children spending time with the father as follows:
(a)During school term on each fourth weekend from Friday evening until Sunday evening commencing 2 March 2007;
(b)For the entirety of the first and third term school holiday periods;
(c)For the second half of the 2007-2008 Christmas school holiday period and in each alternate year thereafter;
(d)For the first half of the 2008-2009 school holiday period and in each alternate year thereafter;
(e)For periods of time in Victoria being those periods of time specified in writing by the father upon giving the mother not less than fourteen (14) days notice of same being periods of time not exceeding 48 hours in length save with the consent of the mother and with such periods of time to be at intervals of not less than twenty one (21) days.
That the mother do all such things as may be reasonably required to facilitate the said children communicating with the father by telephone at intervals of not less than fourteen (14) days with the costs of such telephone communication to be borne by the mother.
That for the purposes of facilitating the father spending time with the children pursuant to para.5 (a), (b), (c) and (d) of these orders the mother shall arrange for the transportation of the children to Melbourne airport and their flight from hence to M airport at the commencement thereof and their flight from M to Melbourne airport and their collection there from at the conclusion thereof and the mother shall bear all costs in relation to same.
Liberty to the father to apply at short notice upon the filing of an affidavit for orders relating to the modification of the orders specified in paras.4 or 5 hereof in the event of the mother’s failure to comply with the provisions of these orders relating to the facilitation of the father spending time with the said children and for orders relating to the provision of security relating to the costs referred to in para.7 hereof.
That the order for the appointment of the independent children’s lawyer be discharged.
Liberty to apply as to consequential matters.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADM3747 of 2005
| BJZ |
Applicant
And
| KEM |
Respondent
REASONS FOR JUDGMENT
Introduction
This case involves competing applications for parenting orders in respect of two children of the unmarried relationship of the parties, namely JSZ and JPZ. The children have spent their lives in M in South Australia. They have lived with their mother since their parents separated in 2003. Their mother wishes to relocate with them to N in Victoria. The father wants them to continue to live in M with their mother or, if she determined to move to Victoria in any event, with him.
Problems first arose with respect to the father’s time with the children in late 2004. For the period 2004 to May 2005 the father’s time with the children was limited to seeing them at his parent’s home in M on Tuesday and Thursday evenings. Then, for a period of approximately 6 months (mid-late 2005) he spent no time with the children at all. That followed the imposition by the mother of certain conditions of time with the children which he was unwilling to accept.
Proceedings were instituted in this Court by the father in October 2005. On 9 December 2005 I made an order during the period of an adjournment that the children live with the mother and spend time with their father on Tuesday evenings and on alternate weekends. However, the orders contained a provision that the overnight component of the time spent by the father be exercised at the home of his parents.
In February 2006 the mother’s employment in M ceased. She secured employment in Melbourne. She sought to relocate with the children to Melbourne on an interim basis. That application was refused. She took up the position in Melbourne in any event in late April 2006. The employment she took up at that time was employment that she hoped would be permanent but in fact was lost at the end of July 2006. However, she had begun to reside in Melbourne when she took that job but left the children residing in M. This involved the placement of the children with her mother in M and her return to M on alternate weekends to be with them.
The order requiring the overnight time spent by the children with the father at his parent’s home was not extended beyond 2 May 2006.
At trial the mother had changed her position in that she was now seeking to relocate to N in Victoria. She had sought but not obtained alternative employment in Melbourne following the demise of the first job. She was commuting to M to see the children on a regular basis. She promoted orders which would have the affect of allowing her to relocate to N with the children to enable her to take up employment with her father who is a pharmacist in that town.
The father at trial notionally promoted an order that the children live with him but such order was not seriously agitated. He also maintained an application for a week-about live with order but the fundamental argument at trial was whether the children should reside with the mother in M or the mother in N. The mother made plain that she would continue to reside in M if the continued living of the children with her was to be put at risk by her living in N.
The independent children’s lawyer supported the father’s application for orders that would have the effect of the children live with the mother in M.
This case falls to be determined in accordance with the new provisions of the Family Law Act being those provisions introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006.
The law
AIM v AIS was the first case in which the High Court discussed the proper approach to relocation cases under Part VII of the Family Law Act. An evaluation by the Court of the mother’s claim in that case to be able to exercise residence of a child in the Northern Territory and the father’s claim that she be restrained from removing the child from Perth gave rise to two important matters still crucial to the determination of relocation cases.
The first, shared by all six members of the majority of the Court, was the need to bear steadfastly in mind that such cases are not to be approached by a determination of how compelling or strong or persuasive are the reasons of the relocating parent for the move. As Kirby J, with whom Gleeson CJ, McHugh and Gummow JJ agreed on this point, expressed the matter at paragraph 191 of the judgment.
“First, to impose upon a custodial (or residence) parent the obligation to demonstrate “compelling reasons” to justify relocation of that parent’s residence, with consequent relocation of residence of the child is not warranted either by the statutory instructions to regard as paramount the welfare of the child or by the practicalities affecting parents. Parents enjoy as much freedom as is compatible with their obligations as regard to the child. The freedom continues, including with respect to their entitlement to live where they choose. At least in the case of a proposed relocation within Australia, the need to demonstrate “compelling reasons” imposes on a custodial parent an unreasonable inhibition. It effectively ties that parent to an obligation of physical proximity to a person with whom, by definition, the personal relationship which gave rise to the birth of the child has finished or at least significantly altered.”
The second, is the need to give proper weight to the freedom of intercourse between the States guaranteed by s.92 of the Constitution of the Commonwealth of Australia. That section provides:
“On the imposition of uniform duties of customs, trade, commerce, and intercourse amongst the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.”
This second aspect is a matter that has been often, sometimes reflexively, invoked by counsel in relocation cases, sometimes with little concrete thought being given as to the practical way in which the provisions of s.92 impact upon the resolution of a case involving relocation.
In AIM & AIS three members of the majority (Gleeson CJ and McHugh and Gummow JJ) determined the appeal of the mother on what they described as the “narrower footing” of the error of law involved in considering whether the mother had established compelling reasons for the relocation (see para.47 of the judgment). It will be recalled that the injunction restraining the mother from leaving Perth was an order made under the Family Court Act 1975 of Western Australia. It will also be recalled that s.49 of the Self-Government Act of the Northern Territory contained a provision identical to that of s.92 of the Constitution. Their Honours referred to the decision of Lamshed v Lake (1958) 99 CLR 132 as establishing that provisions such as s.49 of the Self-Government Act are laws of the Commonwealth which attract the operation of s.109 of the Constitution. Their Honours went on to say:
37. As a species of what is often identified as “operational inconsistency”, this supremacy of Commonwealth law operates to exclude, in relation to the matters in which it applies, the operation of the laws of a State such as the 1975 Western Australian Act, under which the jurisdiction of a court of that State may otherwise be exercised and orders made. Where the law in question confers jurisdiction entailing the exercise of judicial discretion, that discretion will effectively be confined so that an attempt to exercise it inconsistently with section 49 of the Self-Government Act involves, at least, an error of law which is liable to appellate correction. On that footing, the State law itself retains its validity. These conclusions follow by parity of reasoning with that of Brennon J, concerning the operation of section 92 itself upon discretionary licensing schemes, in Miller v TCN Channel Nine Pty Ltd.
38. It was in this way that the effect on section 109 of the Constitution was to render invalid the provisions of the 1975 WA Act to the extent to which they otherwise would have empowered the State Family Court to make, in the exercise of a discretion conferred by the 1975 WA Act orders which were impermissibly burdened or prohibited the absolute freedom of intercourse between the Northern Territory and the State of Western Australia, for which provision was made by section 49 of the Self-Government Act.”
There is then a discussion by these members of the Court of the principles relating to s.92 to be obtained from a consideration of cases such as Cole v Whitfield and Cunliffe v The Commonwealth and ultimately Their Honours conclude as follows:
“45. …The question becomes whether the impediment so imposed is greater than that reasonably required to achieve the objects of the 1975 Western Australian Act. If the order in question does answer that description, it would, as indicated above, be liable to appellate correction as having been made in an exercise of discretion which was tainted by an error of law.
46. …we would not wish to be understood as denying the proposition that, in the case of legislation, state or federal, of the nature of the custody and guardianship provisions of the 1975 Western Australian Act, section 92 may not put beyond the relevant statutory power the making of orders which have a practical effect of imposing upon the freedom of intercourse protection by section 92 an impediment greater than that reasonably required to achieve the object of the legislation.”
The Family Law Act (Cth) was in a different form, of course, in 1999 than it is in 2007. I will turn to the effect of the relevant amendments to Part VII of the Act in a moment. However, these members of the High Court are indicating that in respect of legislation such as the State law then being considered, an order made under such law may be liable to be found to have been made ultra vires having regard to s.92 of the Constitution, if the practical effect upon freedom of movement outside a State was greater than necessary to achieve the objects of the legislation.
Kirby J, also a member of the majority, is the only Judge to deal directly with the issue of whether or not s.92 has application to orders of a Court or only to legislation relied upon in the making of such orders (see paras.157-160). The other members of the majority appear to accept that contention implicitly. As set out therein, His Honour finds no reason of principle why orders found to infringe s.92 should be dealt with any differently than the laws giving rise to such orders. His Honour then discusses the issues relating to the practical burden of the relevant State legislation and concludes in relation to the constitutional issue as follows:
164. Without exploring fully all of the implications for free movement within Australia to be derived from the very nature of the federal Commonwealth as created by the Constitution, our nation is clearly one which is organised to permit not only a very high measure of freedom of movement within its borders but also laws and court orders which indirectly or incidentally have consequences which inhibit, in ways proportionate to the attainment of their objects, totally unrestricted freedom. Completely unlimited freedom would be a form of anarchy. If the mother’s argument were no more than that FCA 1975 (and the court orders made under it) should be construed keeping generally in mind the high measure of personal freedom to move throughout the Commonwealth without unjustifiable or unreasonable restrictions, I would agree with her. But to the extent to which she appealed to section 92 of the Australian Constitution, or section 49 of the Self-Government Act, to invalidate the injunction granted in relation to the residence of the child, or the provisions of FCA 1975 under which that injunction was made, I would dismiss her challenge. There is no constitutional invalidity either in the court order or the provisions of FCA 1975 sustaining it. Nor are they inconsistent with section 49 of the Self-Government Act in so far as, incidentally and proportionately to the attainment of their objects, they impose a practical burden on the movement of the mother to the Northern Territory which would alter the residence of the child and disturb the arrangements under which that child enjoys contact with and access to his father.
Gaudron J was also in no doubt (paras.101-102) that the State law under which the injunction was granted did not operate invalidly on account of s.92. Insofar as the test which Her Honour found should be adopted (being that propounded by Dean J in Cunliffe v The Commonwealth) was concerned, the relevant State legislation was found to have an incidental effect only on interstate intercourse. However, that conclusion was reached upon the basis of what Her Honour described as her rejection of a wider interpretation of the State legislation. That is explored in para.103 where Her Honour says:
“It is sufficient to note that there is a difference between what is necessary to protect the welfare of the child or, which is the same thing, to avert a risk of harm to his or her wellbeing, and an order designed to achieve what is thought to be in his or her best interests. An order necessary to protect his or her welfare would not infringe section 92, notwithstanding that it incidentally affected interstate intercourse. On the other hand, an order designed to achieve what is thought to be in his or her interests cannot, in any sense be described as necessary.”
It will be recalled that the relevant State legislation in the case had been characterised by Her Honour as similar to the parens patriae jurisdiction of the Court of Chancery. She was dealing with a child welfare jurisdiction rather than a jurisdiction such as Part VII of the Family Law Act (Cth) which specifically directs that a child’s best interests are to be paramount and which has much more broadly expressed objects. Her Honour is saying that if the legislation were given a “wider” construction constitutional difficulties may arise. That is, legislation interpreted in that wider way and, we may say, afortiori legislation directly expressed in such a way may well operate in a discriminatory way so as to invoke the application of s.92. It is not merely a question of the practical effect being greater than that required to achieve the objets of the legislation. Her Honour is positing legislation the objects of which may be said to operate in a discriminatory way.
Hayne J also found it unnecessary to determine the s.92 issue but says at para.221:
“I agree that custody and guardianship legislation may present a question whether the statute empowers the making of orders that have a practical effect of imposing upon freedom of intercourse an impediment greater than reasonably required to achieve the object of the legislation. But construing the legislation applied in this case in the way I have, I do not consider that any separate question would then arise under s49 or s92. A proper exercise of the discretion would not impose an impediment upon freedom of intercourse greater than reasonably required to achieve the object of providing for the guardianship and custody of and access to children.”
Callinan J understood the mother’s submissions as being directed at the legislative provisions being beyond power and thought that she accepted for the purposes of her argument that s.92 did not operate to strike down orders of a Court made under the legislative provisions (see para.274).
His Honour it will be recalled did not join with the majority in allowing the mother’s appeal on account of the way in which the issue of compelling reasons was dealt with. However, whether the test in relation to s.92 be expressed in terms of proportionality, reasonable necessity or reasonable regulation, His Honour was satisfied that the laws involved no infraction of s.92 of the Constitution. At para.279 he says:
“The sections are adapted to achieve their object, of ascertaining and ensuring the best interest, or welfare of children, the place of residence of whom will almost always be, if not always be, critical to a child’s welfare.”
The Full Court of the Family Court in the case of A v A: Relocation Approach (2000) FLC 93-035 was a decision of the Full Court of the Family Court of Australia which described the principles to be applied in the determination of relocation cases. Beginning at [64] the judgment of the Court sets out what it describes as the “binding principles of law” established in AMS v AIF. Their catalogue of those principles does not include any reference to the impact of s.92 of the Constitution. However, when explaining what they regard as the three stages of analysis of a relocation case the Full Court says that as part of the third stage – explaining why one of the proposals of the parties is to be preferred - regard must be had to the importance of a parties right to a freedom of movement in that in determining the case:
“… care must be taken by a Court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party’s rights under section 92 of the Constitution, where applicable.”
No further assistance as to the way in which the application of s.92 impacts upon a relocation case is given.
The High Court had occasion to revisit the issue of relocation cases determined under Part VII of the Family Law Act (Cth) in U v U (2002) FLC 93-112.
The case was one involving a proposed international relocation and is important principally for the demonstration by the majority of the Court of the extent to which the Court is not bound by the proposals of the parties in determining such cases. The mother’s appeal against orders refusing her opportunity to relocate to India with the children was unsuccessful. Section 92 is not an issue that is dealt with in any of the judgments of the Court.
The Full Court of the Family Court in Bolitho & Cohen (2005) FLC 93-224 was a decision of the Full Court of the Family Court in an international relocation case, important principally for its rejection of the strictures of the Full Court’s decision in A v A, a rejection which is grounded, so the Full Court says, in the approach demonstrated by the High Court in U v U. Once again the issue of s.92 of the Constitution is not a matter given any specific consideration.
So far as High Court or Full Court authority is concerned, then, the issue has not been taken any further since AIM & AIS.
It is as well to note the distinction that must be drawn between a consideration of the s.92 issue and the broader issue of “freedom of movement”. The cases discussed above deal with the latter concept, derived from a reading of s.92 but considered as a principle to be applied in determining a relocation case in a generalised or aspirational sense. Freedom of movement is said to be something citizens are entitled to be able to exercise and it is said orders should be framed which give weight or clear consideration to that principle. But such discussion occurs in a context unrelated to a consideration of the authorities which deal with the interaction of s.92 and relevant State or Federal legislation such as the Family Law Act, as was undertaken in the case of AIM v AIS with the relevant Western Australian legislation. Kirby J discusses the two different ways in which the issue of freedom of movement can be introduced into the resolution of relocation cases at para.164 as set forth in [17] hereof.
I discuss hereunder the effect of the new provisions in Part VII of the Family Law Act in determining applications for parenting orders and in particular the way in which how those changes impact upon the determination of relocation cases. It may be that the amendments to the Family Law Act are such that reconsideration in due course by the High Court of the s.92 issue will be required. I will return to a discussion of this issue hereunder but in practical terms it is difficult to see how section 92 will play any significant role in my determination in this case. There are a number of features of the new legislation which might suggest that an application of s.92 and of the High Court cases involving that section of The Constitution to the present Part VII will result in a different outcome than that which resulted in the application of the section to the State Act in AIM and AIS (and it will be recalled different judges in the High Court approached different aspects of that case in different ways) but it is not appropriate in my view for the Federal Magistrates Court to embark upon that exercise. In any event, had it been appropriate to embark upon that exercise, serious consideration would have to be given to the provision of notice to the Attorneys-General of the Commonwealth and the States of the issue pursuant to s.78B of the Judiciary Act1903. That did not occur and I do not propose that it do occur. I will return to this issue hereunder.
Leaving the s.92 issue to one side at the moment, a summary of the principles to be extracted from the High Court and Full Court relocation cases is conveniently set forth in paras.3.14 to 3.35 in the Family Law Council’s discussion paper on relocation (I am obliged to Altobelli FM for drawing my attention to this summary at [50] of his judgment in Hickson & Humphrey [2007] FMCAfam 27):
In summary, the “general consistency of approach” that can be drawn from the discussion above about the legislative provisions and case law regarding the best interests of the child is as follows.
· Relocation cases are not a special category of cases. The Family Law Act does not specifically mention ‘relocation’ and the cases are best described as “parenting cases where the proposal of one of the parties involves relocation”.[1]
· The best interests of the child is the “paramount consideration, but not the sole consideration”. For example, the interests of the parents can be considered if they are relevant to the best interests of the child.
· The court must consider the competing proposals for the future care of the child, but is not limited to the proposals presented by the parties. All the proposals need to be evaluated in terms of the advantages and disadvantages for the best interests of the child and the court should explain why a particular proposal is preferred.
· The issue of relocation cannot be separated from the issue of residence and the best interests of the child. The relevant factors in sub-section 68F(2) must be considered and the weight given to each should be explained by the court. The object and principles in section 60B provide guidance for this exercise.
· A court cannot require the person who wishes to relocate to demonstrate “compelling reasons” for relocation as this would incorrectly focus on the parent’s interests instead of the best interests of the child.
· It should not be assumed that the contact parent cannot relocate as well, as the interests of the child (not the parent/s) must be paramount.[2]
[1] A v A: Relocation approach (2000) FLC ¶93-035 at 87,541, quoting Paskandy v Paskandy (1999) FLC ¶92-878 at 86,453.
[2] Family Law Council Discussion Paper, Relocation, Canberra, February 2006.
Relocation cases are now determined under a radically different statutory framework. That statutory framework has been given detailed consideration by the Full Court of the Family Court in Goode & Goode [2006] FamCA1346.
The impact of the new Part VII regime as discussed in Goode on relocation cases is carefully explicated in by Altobelli FM in Hickson & Humphrey (supra) (see paras.53-69).
The best interests of the children involved in the particular case remain the paramount consideration of the Court (see s.60CA).
Section 60CC now prescribes the matters to be taken into account in determining the child’s best interests. There are two primary considerations and fourteen additional considerations. The additional considerations reflect those matters previously set forth in s.68F(2). The primary considerations are:
a)The benefit to the child of having a meaningful relationship with both parents; and
b)The need to protect the child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.
Section 64B describes what a parenting order is and the issues that it may deal with. Relocation is not a particular species of a parenting order. It was not such under the previous version of the Act and it is not so now.
The radical change to the legislative requirements in relation to parenting orders is introduced by s.61DA and s.65D.
Section 61DA provides that when making a parenting order the Court must apply a presumption that equal shared parental responsibility is in the best interests of the child. The legislation does not say that the presumption is only to be applied when making that type of parenting order which deals with the allocation of parental responsibility (which is the parenting order described in s.64B(2)(c)). The presumption is to be applied apparently when making any kind of parenting order. That is perhaps an oddity related to the drafting of the legislation. There cannot be many matters where a presumption relating to subject matter X is to be applied when dealing with subject matter Y, but that is what the legislation provides. So even though parental responsibility and the allocation of it may not be an issue agitated by either parent (they may, for example, be content with the legislative provision which governs parental responsibility in the absence of an order, which is that described in s.61C), the presumption must still be applied.
Section 65D(1) gives the Court such power to make such parenting order as it thinks proper but subject to s.61DA .
The presumption is just that, of course. It is not a legislative fiat to make an order for equal shared parental responsibility in every case. Being a presumption it may be rebutted. Section 61DA(2)-(4) goes on to prescribe circumstances in which the presumption does not apply. The first is where reasonable grounds to believe that where a parent or a person who lives with the parent has engaged in child abuse or family violence; the second is in the circumstances of the making of an interim order (these were the circumstances of Goode); and the third is where evidence satisfies the Court that it would not be in the best interests for the child for there to be an order for equal shared responsibility.
The circumstances in which the presumption may be rebutted are not said to be exhaustive.
If, either through application of the presumption or otherwise the Court determines that the parents are to have equal shared parental responsibility, s.65DAA prescribes certain matters that the Court must consider. The Court must first consider whether the child spending equal time with the parents is in the best interests of the child, consider whether that is reasonable practicable and, if it is, consider making it an order providing for equal time (s.65DAA(1)).
If having carried out that exercise the Court does not make an order for equal time the Court must then consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests, whether that is reasonably practicable and, if it is, make an order for the child to spend substantial and significant time with each of the parents.
Two key concepts in s.65DAA are “reasonable practicality” and “substantial and significant time”. They are both defined. Substantial and significant time includes both days that fall on weekends and holidays and days that do not and involves time the child spends with the parent that allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child and allows the child to be involved in occasions and events that are of special significance to the parent. These aspects are not exhaustive of the consideration of substantial and significant time (s.65DAA(3) and (4)). Reasonable practicality is defined in sub-s.5 which provides:
“(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.”
In relocation cases an issue arises as to para.(5)(a). One of the issues for determination in a relocation case will be how far apart the parents live from each other and it is one of the things the Court must have regard to. So as to avoid the exercise becoming circular, it will have to involve the hypothetical consideration of each of the proposals by the parents and of any other scenario the Court considers might serve the best interests of the child.
The first issue that arises after an order for equal shared parental responsibility is made is just what it means to “consider” the questions of equal time or substantial and significant time. The Full Court of the Family Court in Goode (supra) reviewed the meaning of the word “consider” and concluded at para.64:
“While these observations of the Federal Court are of some assistance, we do not think that the meaning of “consider”, when applied to consideration of administrative law as in the cases referred to, is entirely apposite to the meaning of the word in s 65DAA. This is so because the juxtaposition of ss 65DAA(1)(a), 65DAA(1)(b) and 65DAA(1)(c) suggests a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in s 65DAA(1)(a), being the best interests of the child, and s 65DAA(1)(b), reasonable practicability, are met. The same considerations apply to s 65DAA(2).”
So the consideration of these concepts must be a consideration of the need to make the order rather than a consideration involving a more notionally abstract weighing of the various factors.
In those circumstances it is difficult to disagree with Altobelli FM in Hickson & Humphrey (supra) at [59]:
“ Given the narrow interpretation of to ‘consider’ in s 65DAA, it must be the case that if a relocation case gets as far as a determination of the impact of s.65DAA, and the other parent cannot move, the relocation is not likely to succeed. In these cases therefore, the real focus seems to be s.61DA and whether the presumption can be rebutted. As the Full Court indicated at paragraph 43 in Goode, in a final hearing the presumption will not apply if there is abuse or violence (s.61DA(2)) and may be rebutted if the Court is satisfied that it would conflict with the child’s best interests (s.61DA(4)). If the presumption of equal shared parental responsibility is not rebutted, however, relocation is an unlikely result.”
I also agree with the observation of Altobelli FM at [56] of that judgment that whilst the definition of substantial and significant time does not include any reference to the amount of such time such that an order that substantial and significant times could occur on only a handful of occasions per year, such a reading would be inconsistent with a purposive reading of the legislation.
The evidence
The mother relied upon her trial affidavits, gave oral evidence and was cross examined. Her mother also filed an affidavit was cross examined. It will be recalled that she has been the de facto principal carer for the children since approximately April of last year. She was able to give evidence of her dealings with the father since that time. The wife also called her father. He swore an affidavit and gave oral evidence and was cross-examined. His evidence related principally to the issue of the employment he was prepared to make available to his daughter and his intentions with respect to the future conduct of his business.
The father relied upon his trial affidavits, gave oral evidence and was cross examined. He also called Ms P, his de facto spouse. She filed an affidavit and gave oral evidence and was cross examined.
The independent children’s lawyer called Mr Tony McDonagh, Child and Family Mediator. He had prepared two written reports, one in April and one in August 2006 and had interviewed the children and the parties and Ms P for the purposes of each of them.
Each of the three counsel provided me with written outlines of argument and concluding submissions and I was greatly assisted by the contributions each of them made.
The amount of business the Court has to attend to particularly in the Family Law Act jurisdiction militates against detailed discussion of the evidence in these reasons. Lack of specific reference to any aspect of the evidence is not to be taken as an indication that it was not weighed with the other evidence in enabling me to make the findings which I have and to apply the provisions of Part VII of the Act to those findings.
I will deal firstly with the evidence of Mr McDonagh. As indicated above, he provided separate reports in April and August 2006. The timing of his reports facilitated a useful perspective on the mother’s attitude to her changing employment circumstances throughout that period.
In the April report the children were interviewed at the homes of both parents. They were aged seven and six respectively. The interviews with the children did not reveal any significant issues relating to their relationship with their parents or life in either household. The interview with JSZ produced some information relating to the safety of the children in their father’s car when all five children (Ms P has three children) are in the car which was of some limited forensic assistance when the father and Ms P were cross examined on this topic.
The first report involved Mr McDonagh interviewing the father twice. This was necessary because on the first occasion the father had not been provided with details of the mother’s proposals for relocation. Mr McDonagh questioned the father extensively as to why he had not been more involved with the schooling of the children. He blamed the mother. He knew little about the nature of the child JSZ’s speech difficulties. He acknowledged to Mr McDonagh that he continued to smoke marijuana but said he never smoked it around the children. He was concerned that a move to Melbourne would impact upon his relationship with the children. He did not think it was practical for him to travel to Melbourne to visit the children. When travelling and sleeping time was deducted, he would spend less than one day with the children on a visit. He was sceptical about being able to meet one half of the air transportation if the children lived in Melbourne.
The most significant aspect of Mr McDonagh’s first report, however, was his assessment of the extent to which the mother had thought through the proposed move to Melbourne. KEM was in fact unemployed at the time of the first interview with Mr McDonagh. She described her offer of a job with a racing stable in Melbourne as her “dream job”. She clearly thought it would be her means of acquiring a significantly better income and lifestyle. She was sanguine about the prospects of being able to find alternative employment if she lost the job. She planned to send the children to a Catholic school close to the area she was proposing to find rental accommodation. She spoke positively about the children’s relationship with the father and thought that it would not be affected by her move to Melbourne and pointed to his signal lack of involvement with their schooling to date. She remained concerned about the lifestyle of the father and Ms P and in particular their marijuana use.
Mr McDonagh’s assessment of the mother in the first report was that she was in circumstances of some pressure and that she had not thought through the implications or detail of her move and he recommended that she be restrained from removing the children from the M area. Mr McDonagh in my view turned his mind in the first report to matters that were clearly relevant to an evaluation of the competing proposals. He saw little advantage to the children moving to Melbourne because of the uncertainties associated with how long the mother’s employment would last (it was employment offered on a trial basis). He was conscious of the extent to which the happiness of the mother as the parent principally caring for the children was linked to the general happiness of the children. He accepted that if she were restrained from leaving M it would increase her antagonism towards the father and cause further conflict which would affect the children. He also thought, however, that it would be unlikely that the mother would support the children’s relationship with the father given the history of the difficulties associated with his contact with the children and her expressed attitudes towards him. All of these matters are clearly matters that are germane to an evaluation of whether the move is in the best interest of the children. Insofar as his criticisms of the mother’s attitude towards the father and his apprehension that she would not support that relationship into the future are concerned, however, they were based in part upon his evaluation of the accounts of the parties and the attitudes expressed in interview. I have had the opportunity of hearing the parties cross-examined as to these matters and I have formed my own view about them which I will discuss in detail hereunder.
For the second report the children were once again interviewed at the homes of each of the parents. Once again the interviews with the children did not elicit any clear preferences or any significant issues relating to the relationship with either parent. By the time of the second report the children had been living during the week in the care of the maternal grandmother for some four months.
By the time of this report KEM was aware that her job at the LPS would shortly become unavailable because of restructuring with that employer. She was at the time of her report considering two job offers in Melbourne (at trial nothing had come of them) and was considering an offer from her father to work in his pharmacy business in N. She was still living in the area of Melbourne close to her employment. In the interview for the second report Mr McDonagh reported her as being much more aware of matters relating to the differences between South Australian and Victorian educational systems and the prospects in Victoria for JSZ to continue to receive speech pathology. Her reservations about the father’s parenting continued. In his interview with BJZ for the second report BJZ continued to be cynical about the mother’s motivations in moving from M. He promoted a shared care arrangement but Mr McDonagh indicated in his evidence that the father had not thought it through in any meaningful way. Mr McDonagh’s evidence was that such an arrangement was not likely to succeed because of the differing routines and expectations for the children in the different households. It is clear that Mr McDonagh was concerned about the changing career focus of the mother and the fact that her enthusiasm for each of them remained undiminished by any failure or jettisoning of an earlier enthusiasm. He was not impressed by the mother’s grasp of the qualifications necessary for each of the positions she was then promoting. He continued to support orders which would see the mother obliged to exercise principle care of the children in M. If she was unable to do that, then, he said that the children should live with the father. Overall Mr McDonagh appeared to have a very poor opinion of the mother’s planning and organisational skills. He continued to be concerned about whether she would support a relationship between the children and the father if she lived in Victoria.
It will be recalled that by the time of trial the mother had abandoned all employment proposals other than that which she said was an offer from her father to work in his pharmacy as a pharmacy assistant while she obtained qualifications as a pharmacist. There was clear evidence that to obtain a qualification as a pharmacist the mother would require:
a)a Year 12 level secondary qualification in chemistry;
b)the completion of a 1 year science degree (Monash University Gippsland); and
c)completion of a five year college course full-time.
The mother had found appropriate accommodation in N for herself and the children and had proposed that the children attend SM’s private school. She proposed that the father spend time with the children each fourth weekend for all of the first and third term short school holidays and for one half of the Christmas school holiday period. She said she would meet the costs of air travel for the children in respect of each of the periods for spending time with him she proposed. I will return to an evaluation of these proposals hereunder. One issue that assumed some significance during the hearing was the issue of the father’s drug use, and to a lesser extent drug use by Ms P (an allegation that the mother used opiates based upon the presence of that substance in one of her drug screen analysis at an earlier phase of the proceedings was not seriously agitated in the evidence before me. I say not seriously agitated but perhaps it would be better to say that no evidence was adduced which caused me to disbelieve the explanation provided by the mother that she had taken two tablets for a migraine headache some four days before the urine sample was given in which there was a small quantity of codeine present).
Each of the parties made allegations as to the other’s drug use during and after the relationship and it was these allegations that lead to a regime of drug screen testing being imposed by the Court beginning in December 2005. The father’s drug screen analysis of 18 January 2006, 25 January 2006 and 21 January 2006 were both positive for the presence of cannabinoids. His compliance with the request in July was tardy.
The father accepted in cross-examination that the mother had been complaining about his drug use since the date of the separation of the parties. He certainly knew from reading her affidavits at the interlocutory stage of proceedings and the submissions of her counsel at those various hearings that his drug use was a matter that the mother said concerned her in itself and as being an example of the inappropriate lifestyle choices he presented to the children. In other words, there was a role model issue and there was a concern as to the long term impact of the continued drug use on his motivation.
Notwithstanding his awareness of the extent to which the mother would rely upon this issue and the seriousness with which the Court regarded it as evidenced by the making of drug testing orders he continues to smoke marijuana throughout the period of his being at risk of random drug screen analysis. That is revealing either of the priorities he brings to bear in his decision making or of his inability or unwillingness to give up the use of marijuana.
He said that Ms P used cannabis but not with him. He said Ms P used marijuana at the home of a neighbour. Ms P denied the use of cannabis at all. There was a clear contradiction between their evidence. One or other or both of them was prepared to lie about cannabis usage within the household. The concern is why the father did not conduct himself in such a way as to eliminate this as an issue in the determination of the proceedings. Instead of that he persists in the use of cannabis and it becomes an issue which brings the reliability of his testimony and that of Ms P into question.
It is not a question of taking a judgmental stance on the issue but of weighing this issue with all of the other evidence in deciding which orders are in the best interests of the children. I will return to this issue hereunder.
The evidence available to me clearly indicated that the parties enjoyed a very poor relationship. Issues arose as to the reasons why the state of their communication was so poor and the level of mistrust so high. Each of them relied on different aspects of the evidence to support their view that the other was principally responsible. It is not in dispute, however, that from separation until the end of 2004 the father was able to exercise time spent with the children on a regular basis on Tuesday and Thursday of each week and on alternate weekends, the time spent generally being taken at his grandparent’s home. Both date the deterioration in their relationship from about the time that the father forms a relationship with Ms P. The mother says these events are related. The father says they are related only to the extent that the mother is jealous of Ms P and that she sought to create matters of controversy between the two households. I suspect that the reality was a combination of those factors. Certainly the mother’s complaints about the care of the children during the father’s time with them and in relation to the use of drugs in the father’s household and in relation to her being denigrated by the father and Ms P in the children’s presence intensified at the end of 2004. In December 2004 the mother said she was assaulted by Ms P at S’s discotechque. I am unable to determine precisely what happened on this occasion but the importance of the incident is as a measure of the antipathy between the two women and it is clear evidence of that.
The mother delivers a letter to the father on 23 November 2004 unilaterally imposing conditions on his time with the children. The conditions are that it must take place at the home of his parents, that his child support are to be paid by direct debit and that communication between them is to be between his parents. There is no doubting the high-handed nature of the mother’s communication. It is indicative of the attitude she has to the father to the present day. She does not think highly of him. She thinks that he has expectations and goals much lower than hers for the children and that he has been responsible for holding her development back. Insisting on her staying in M is but the most significant way in which he has attempted to thwart her development. There is no doubt that she holds him responsible for these matters. On the other hand, her attitude in the letter was not one of suggesting the contact should cease. It had in the main been taken at the home of his parents in any event. It is also clear that he was tardy about his payment of child support instalments. The proposal as to communication was only sensible in the light of the evidence as to the state of their relationship at the time (incidentally I accept the mother’s evidence as to the father having done a “burn out” on the mother’s lawn at the end of a period of contact on 7 October 2004. His evidence on this topic was unconvincing).
During this period the evidence satisfies me that whilst the father was hardly being encouraged by the mother to involve himself in the schooling of the children, he was able to have involved himself if he had shown sufficient initiative or interest. His interest in the children’s education and extra-curricular activities at trial had about it the flavour of a decision made very proximate to the trial to involve himself to give a favourable impression. But his failure to involve himself in such matters at an earlier time speaks for itself in terms of the priorities he has had.
The father found the mother’s proposals unacceptable. The mother continued to deliver the children to the paternal grandparents on Tuesday and Thursday evenings. The father saw them on some but not all of these occasions. He does not take any steps with respect to the restitution of alternate weekend contact. This decision must be seen in the light of the extreme deterioration in the relationship between the parties at the time. Contact ceased altogether in May 2005. The parties had differing accounts as to why this happened and I cannot make a positive finding in relation thereto. Finally the father consults a solicitor and instructs him to write to the mother on 5 July 2005 insisting that the mother agree to the restoration of the father’s time with the children although the letter lacked specificity as to what he sought. The mother’s response through solicitors essentially reiterated her earlier demands.
Curiously proceedings are not instituted in the Court until October 2005 and the court does not make any substantive orders until December. There is no meaningful contact at all between the father and the children in that period of approximately 5 months save on Father’s Day and on the child JSZ birthday.
To put the relationship between the parties in some perspective this situation maintained notwithstanding that the parties lived within very close proximity of each other in late 2005 - according to the father, no more than 100 metres. This I regard as highly significant.
The relationship between the parties had broken down entirely by this stage and all the evidence that I heard from the parties and from Mr McDonagh and from the other witnesses indicates to me that the relationship remains the same to this day. It will not improve.
The evidence before me as to the events of the 12 months preceding the institution of the proceedings does not assist the husband at all in persuading me that he was someone who prioritised his relationship with the children. His acquiescence in the radical reduction and then elimination of his time with the children (for such is what I take his conduct to be, it is not properly explained by him). I am also satisfied on the evidence that I heard that had he wished to do so he could have involved himself to a much greater degree in the schooling and pre-schooling of the children. I accept that the mother may not have welcomed his involvement but he never acted so as to test her attitude in that regard.
The evidence of Mrs W, the mother’s mother as to the father’s suggestion in May 2006 that the boys attend Auskick which involved a training session after school on a Wednesday and that he would pay for it and that her evidence that in fact it was left for her to enrol them and pay the enrolment fees speaks of the father’s inability to follow through even at that late stage any initiatives with the boys. The evidence also was that he indicated that he would pay KEM with some money to assist her in caring for the boys but that had not happened.
Part of the evidence of the father was concerned with his own proposals for the boys. As indicated above theoretically the father continued to promote an order that the children live principally with him even if the mother continued to live in the M area. If the children lived with him he was candid in indicating that he would not be able to continue to send the children to the TW College they currently attend. His proposal, therefore, involved a significant change to the children’s lives in any event. I am not criticising him for not being able to afford the fees or for his candour in that regard. The mother has been responsible for meeting the fees to date. The evidence on this topic is a clear delineation of the capacity of the parties to provide for one aspect of the children’s care. That is a reflection of the reality of their situation.
The unwillingness of the father to make any payments to Mrs W to assist with the care of the children is aggravated by the circumstance that following the mother’s decision to travel to Melbourne and leave the children with her during the week, the father actively sought to terminate prospective payments of child support to her (paying only arrears on previous amounts owing). The father’s proposal for a change of school was not something Mr McDonagh was told about by the father but I agree with the counsel for the independent children’s lawyer that had he been aware of it Mr McDonagh would have been fortified in his primary recommendation that the father’s suggestion that the children reside with him should not be adopted. During the presentation of his case the father promoted another alternative which was that the children live with he and the mother on a week about basis. The assumption was that the children would continue to attend TW College (presumably if the mother paid for it). Mr McDonagh was clear that the disintegrated state of the relationship with the parties made a transition by the children from one home to another each week most unlikely to be in their interests and I agree with him.
The father was of course concerned as to how a reduction in his time with the children to a monthly and school holiday basis would impact on his relationship with them and that is why he opposed the relocation. If the relocation were able to occur, however, he thought the mother’s proposals for his spending time with the children were the most practical. He wanted to exercise further time with them by travelling to N but was unsure if his commitments to his household with Ms P would enable him to do so.
The mother’s counsel during cross examination of the father obtained his assent to the proposition that he was able to restore his relationship with the children to its former strength once contact resumed in December 2005 notwithstanding his absence from them. On the strength of that concession she suggested that the relationship was strong enough to survive the modification to his time with them that would result from them moving to N. That is not a proposition that finds favour with me. Assessments of the relative strength of a relationship or its ability to “recover” are nebulous concepts. I accept that the mother’s proposals will significantly impact upon the father’s ability to develop his relationship with them. A parent child relationship needs an opportunity to develop that can only be provided by time and regularity and the more time and the more regular the more likely it is to strengthen. Having said that, the father’s relationship has since separation been one characterised essentially by fortnightly time (with some mid-week opportunities, but has, as noted above, included periods of mid-week time only and periods of no time at all). The assessment of whether the “quality” of his relationship with the children would suffer if the children moved to N (and by “quality” I am referring to the matters discussed immediately above) is a difficult exercise.
Of course the issue which dominated the oral evidence was that of the reasons for the mother’s move and the practical implications of same. It is important to bear in mind Mr McDonagh’s concerns as to the unsubstantiated optimism the mother has had from time to time with respect to various employment opportunities. Mr McDonagh’s scepticism or caution with respect to the racing stable employment was completely vindicated. He apprehended uncertainties with it but the mother did not or could not. Mr McDonagh carefully demonstrated the extent to which the mother had failed to think through the practical consequences of that initial move. It is also important to remember that the mother was promoting two other employment opportunities in her affidavit material before the trial and before her decision to promote exclusively the opportunity with her father. The impression was left of the mother being prepared to consider any option provided it involved moving from M with the children.
It is difficult for me to make any specific finding with respect to the prospect of the mother successfully completing all of the academic requirements for qualifications as a pharmacist. Her record of achievement with respect to the South Australian Certificate of Education was put in evidence before me. She had been unable to complete Year 12 because of the death of her brother shortly before her final exams. Her mother says she had been a high achiever at school. I am not able to make a finding as to whether she will complete the various hurdles referred to above for admission as a pharmacist but there is little in the mother’s achievements to date to suggest that it is likely she will be able to sustain a trajectory toward that goal. Of course, she has work available to her from her father as a pharmacy assistant. Her father is 72 years of age and there must be doubt about how long he will stay in his present business. I suspect that if the mother, however, had established herself as a pharmacy assistant there would be no reason to think that she wouldn’t be retained by any successors to the business.
I have touched upon some of the more important aspects of the evidence but it was the whole of the evidence that must be weighed when I turn to the application of the law to the facts.
I remind myself of the objects and principles contained in s.60B of the Act:
60B Objects of Part and principles underlying it
(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).
As the Full Court in Goode (supra) points out in [10] they provide the context in which the s.60CC best interest’s criteria are examined weighed and applied.
The reference in the objects to ensuring that the children have the benefit of both of their parents having a “meaningful” involvement in their lives is an expression echoed in one of the s.60CC(2) primary considerations. FM Brown in Tiedeman & Offord [2006] FMCAfam 709 had this to say at [168] – [170] about the concept of meaningful in relation to the primary considerations:
168 In the context of section 60CC(2)(a), the use of the word “meaningful” by the legislature is interesting. The ordinary definition of “meaning” and “meaningful”, when it is attached to an idea or some object, is denoting of the significance or importance of that idea or object. It seems clear that the court is only to consider whether a relationship is “meaningful”, to the child concerned, after it has assessed the benefit or advantage such a relationship will bestow on the child concerned. Accordingly, it seems clear that the legislature intends the court to consider the significance of the child concerned having a relationship with both his or her parents in a positive or beneficial sense.
169 The practical underpinning of how a relationship for a child with one or either of his or her parents is to be rendered “meaningful”, in the context of a parenting order, is provided by section 65DA. The emphasis is on time, but not merely on the extent of that time, but rather on its quality and the manner of its utilisation with the child or children concerned. In this context, the court is to consider the parent concerned spending time that falls on weekends; holidays; weekdays; and perhaps most importantly, time that allows that parent to be involved in the child’s daily routine and occasions of particular significance, both to parent and child.
170 The rationale of section 65DAA is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flows from them being exposed to their parents in a variety of settings. These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting; as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in more mundane situations. In this way, the child is likely to have a more balanced and so richer relationship with the parents concerned.
The assessment as to whether an involvement between a parent and a child is “meaningful” (one of the objects of the Act) or if whether a relationship between a parent and a child is “meaningful” (one of the primary considerations in determining a child’s best interests) can only take place against the background of the nature of the relationship between the parent and the child to date. “Meaningful” is a word that does not sit comfortably in legislation describing contexts and frameworks relating to the exercise of discretion. The word invites subjective speculation. But it is the word legislation uses and we must do our best to apply it.
Neither of the case outline documents of the parties sought orders in relation to the allocation of parental responsibility. Their amended applications were filed prior to 1 July 2006. As discussed above, that does not relieve the Court of the responsibility for applying the presumption for equal shared parental responsibility (s.61DA). My first task is to ascertain whether the presumption does or does not apply. There was no suggestion in the evidence that reasonable grounds existed for believing that the father or Ms P had engaged in abuse of the child or any other child in the family or engaged in family violence so ss.(2) does not apply. The proceedings are not interim proceedings so that leaves only ss.(4) as providing the legislative basis for the rebuttal of the presumption. I have to be satisfied that it would not be in the best interests in the child for the children to have shared equal parental responsibility or the presumption will apply. I agree with Altobelli FM when he says this of the threshold issue at [79]:
“I think it is a rare case that will meet the relatively high threshold set in section 61DA(4). I say a high threshold because overall Part VII of the Act so strongly encourages shared parenting, that is not likely that this can be easily subverted.”
I bear in mind that even if the presumption does not apply, issues of equal time or substantial and significant time will still arise for consideration in determining what is in the best interests of these children.
I turn then to the primary considerations in ss.60CC(2). The orders made at the conclusion of this process must be orders which take into account the benefit to the children having a meaningful relationship with each of their parents. Mr McDonagh’s evidence and the concessions made by the mother indicate that the children presently have a meaningful relationship with their father. The question is whether a movement to monthly instead of fortnightly time spent on weekends would disrupt that meaningful relationship. As noted above, he has historically spent time with the children during the week but not without interruption. Historically, he has had little to do with their schooling or extra curricular activities. Taking into account all of the evidence, I find that he will continue to have a meaningful relationship with the children on the basis of the proposals of the wife (provided she is capable of adhering to those proposals, and I will come to that in a moment). His is not the only meaningful relationship to be considered in this context. The children obviously have a close attachment to their mother and again this is based on Mr McDonagh’s evidence and based on the concessions made by the father. I am satisfied that were she obliged to remain in M and to seek employment within that proximity which is the corollary of living there, that would impact upon her relationship with the children. There is speculation involved but Mr McDonagh thought it would be unlikely that she would be happy about that situation. That is my assessment. I think she would be profoundly unhappy and resentful. I infer that this may have an impact upon the general emotional health of the children. But that would not necessarily mean the relationship would not be meaningful. Whether or not her relationship with the children would continue to be meaningful is a question that demonstrates how inapposite this expression is in legislation of this type but it is difficult to see how even in those circumstances the relationship would not continue to be able to be described as meaningful
The other primary consideration relating to the need to protect the children from harm or being subjected to abuse, neglect or family violence does not arise in this case.
I turn to the additional considerations:
(a)The children have expressed views to Mr McDonagh during his preparation of two reports but they do not add anything that can be meaningfully weighed. This is essentially a reflection of their age. I take into account their expressed wish that they wish to see both their parents.
(b)On the information available to the Court, the children have a good relationship with both parents and with Ms P and with the maternal grandmother. Their interaction with their grandfather has been limited. I think the nature of the relationship the children have with their mother is qualitatively different though than that they have with their father only in the sense of her having had a prolonged opportunity to engage herself in their nurture.
(c)The willingness of the mother to facilitate and encourage a close and continuing relationship between the children and their father must be questionable. Her imposition of conditions upon his time with the children and her suggestion to Mr McDonagh in the first report that the condition relating to overnight periods with their paternal grandparents should continue (which I understand to have been jettisoned by the trial) and her evidence before me suggests that she sees very little worth in the relationship as far as advantages to the children are concerned. There is no doubt that she sees herself and her family as offering the children a much better way of life. It is difficult to conceive of her speaking positively to the children of their father but I do not think I had enough evidence before me to suggest that she would actively disparage him in the presence of the children. The antipathy between her and Ms P was such that she might disparage her (and vice versa). These attitudinal matters are of concern but they are likely to be intensified in their effect on the children by her being obliged to remain in M rather than by her being permitted to travel to Victoria. Physical proximity between the father and the children has counted for little in the past if we remember the extraordinary position that maintained in late 2005 when the parties were living 100 metres apart. The mother will facilitate contact between the father and the children but without enthusiasm and there must be a concern as to whether or not she would be opportunistic enough to take advantage of any financial difficulties that may arise in her household as an ostensible explanation for not being able to fly the children over each weekend. I think that is a risk. Her enthusiasm for meeting such a significant cost on a regular basis will test her commitment to adherence to the orders, but I think this is a matter that can be dealt with by an appropriate mechanism in the orders relating to ensuring that she lives up to her commitment in that regard.
So the question of the mother’s willingness to facilitate a close and continuing relationship between the children and the father must be an issue. But it would be an issue that would apply whether the mother was living in M or N. In some respects it could worsen if she was living in M against her will. A shared care arrangement in M, leading as it would, I think, to perpetual disputation between the parties would test the ability of each party to encourage the children’s relationship with the other. I think they would fail the test. If the children were to reside with the father in M (which, I repeat, was formally still before the Court at the end of the trial but not pursued with vigour by him and certainly not supported by Mr McDonagh or the Independent Children’s Lawyer’s Counsel) then I would have considerable doubt as to the willingness and ability of he and Ms P to encourage a continuing close relationship between the children and the mother.
(d)This sub-section requires us to consider the likely effect on the children of any separation from their parents or either of them. There are two aspects to this. First, there is the separation in the sense of them not seeing their father fortnightly but monthly. I think that there will be some effect upon the children’s circumstances although it is hard to measure. Monthly time spent (in addition to holidays) will still provide an opportunity in my view for the relationship to remain as meaningful as it has in the past. More time would be optimal but it is a matter of weighing it against the other matters that go to considering the best interests of the children. The other aspect that must be borne in mind is the possibility that the physical distance between the father and the children and the possible complications with respect to transportation will ultimately lead to the children and the father drifting apart and having no relationship. This would be the ultimate separation. It is a risk. It must be weighed, although I think we can build into the orders provisions which tighten the mother’s obligations so as to minimise the risk.
(e)Sub-paragraph (e) directs our attention in this case to essentially the same matters as paragraph (d). I have averted to the risks that the practical difficulty and expense of facilitating time spent by the father with the children may have on their ability to maintain contact with their father. Physical separation carries these risks, magnified where there are questions as to the mother’s commitment to sustaining the relationship. Again, though, and at the risk of being repetitive, physical proximity in the past has not facilitated contact for extended periods of time.
(f) (and (i)) Under this heading the Court is to consider the capacity of the parents and other persons to provide for the emotional and intellectual needs of the children. There is nothing in the evidence (bar one matter) of the parties or of the expert that highlights any particular incapacities of the parties or of Ms P. Whatever the reason it is the mother who has catered almost exclusively for their educational requirements.
I say “for whatever reason” but in reality the evidence is plain: a combination of the father’s lack of motivation and the mother’s disinterest in involving him. The question of the capacities of the parents links up with sub-paragraph (i) and the attitudes of the children and the responsibilities of parenthood demonstrated by the parents. The mother has an incapacity, based upon her experience in large measure, to fully support the relationship between the children and their father and Ms P and I have discussed this passim.
But the significant issue here it seems to me is the father’s continuing drug use. The history each party gives is replete with allegations as to drug use including allegations as to allegedly “harder” drugs than marijuana. But the focus upon the present is on the father’s continuing marijuana use and, I suspect, the continuing use of that substance by Ms P. One or other of them or both of them lied to me about this issue. The biggest concern is that the father simply continued to use the substance throughout the period of risk of random testing. This indicates an habitual reliance upon the substance or an attitude that substitutes his own judgment as to the risks presented to the children by his use of it for the judgment of the mother or of the Court. Whether or not he thinks the mother is raising this issue in an opportunistic way (and that appeared to be his position from the cross-examination of the mother), he kept using it long after she had indicated to him and to the Court that she was concerned about this issue. She was concerned for a variety of reasons: the possible impact of habitual use upon his psychological well-being and sense of motivation, the company and lifestyle use of it encourages and the fact that it is unlawful. There was a very vigorous but proper exchange between the Independent Children’s Lawyer’s Counsel and I about whether I should take judicial notice of the harmful long-term effects of the drug. I think I must be very cautious about assuming specific health or psychological effects upon an individual in absence of specific medical evidence. I can, I think, take judicial notice of the fact that use of the substance is unlawful and I can certainly take judicial notice the fact that the substance is capable of being harmful and sometimes very harmful to particular individuals. I can not take it further than that. But I can and I do have significant regard to the fact of the father’s continuing use during the course of the proceedings, almost up until the date of the trial. He has no intention of ceasing to use it. This gives me some insight into the extent to which he is capable of prioritising matters relating to his care of the children. He wants specific parenting orders but he is unwilling or unable to jettison specific unlawful behaviour to assist him to obtain those orders. This places in some understandable context the mother’s apprehensions about the extent to which the father can provide the children with appropriate motivation and example to achieve their maximum potential. The mother may be unrealistically optimistic about some of her aspirations but she patently has aspirations and I think this is a significant matter.
(l) Sub-paragraph (l) directs the Court to consider whether it would be preferable to make an order that would be least likely to result in further proceedings. One can not help but notice the highly tentative nature of the direction. It is not whether to consider to make an order that is least likely to do that but only to consider whether such an order would be preferable. I think it would be preferable to make such an order. This litigation has been reasonably extensive. It impacts upon the parties financially and emotionally. I think that an order that leaves both of the parties in M but the children with the mother is a situation that is pregnant with the possibility of further litigation. I can not be specific about prognosticating the nature of the disputes but the mother’s disgruntlement would doubtless lead to contravention proceedings or applications by her to vary spend time orders. For reasons already discussed, a shared care arrangement or an arrangement whereby they lived with the father is in my view not viable given the antipathy of the parties for one another and the differing attitudes to responsibilities of parenthood. Either of those arrangements would be a recipe for further and probably protracted litigation.
Sub-section (4) of s.60CC now contains a legislative direction to take certain matters into account when considering the exercise in (c) and (i) above. I consider that I have already addressed these matters above. The father’s failure to participate in educational provision and decision-making and the periods of time when his contact with the children has been reduced or non-existent were not satisfactorily explained by him in the evidence. Neither was his failure to fulfil his obligations to provide appropriate financial support. The mother’s failure to allow the father involvement in educational issues has been noted but in my view is at least partly explicable on accounts of her experiences of him in the period following separation. I should also note the issue relating to the child JSZ and speech difficulties in this context. There was little evidence from either party on this topic. The father annexed a letter from the local health service indicating he was undergoing speech pathology. It is apparently being arranged at the TW College. The father could not tell me much about it, citing it as an example of how he has been excluded from participation in health issues. The mother did not give us much information either. Mr McDonagh was critical of the mother for not thinking through the services available to her if she were to move, either in her first manifestation of that impulse or in the context of the move to N. In the end I was not able to attach much significance to the evidence on this topic.
In weighing the various matters that go to ascertaining the children’s best interests significant regard must be had to the submissions of the Independent Children’s Lawyer particularly where both solicitor and counsel are so experienced and where clearly they have approached their duties in a highly thoughtful and diligent way. Ultimately they supported the recommendations of their expert. Again, his evidence was well argued and carefully considered. I do bear in mind however that in formulating his opinions he gave some weight to the father’s allegations as to his being marginalised from the life of the children. He did not have the opportunity to hear all of the evidence I heard on this topic. At the end of the evidence I had formed a clear view that the principle responsibility of this situation rested with the father. I do not perceive that to have been Mr McDonagh’s view and this coloured significantly his apprehensions as to the mother’s proposed move.
In the end, and this is trite to say but nevertheless important to say, it is a matter of balancing all of these considerations. Having done so I am of the view that it would not be in the best interests of the children for the parents to have equal shared responsibility for the children. It has not been a position that has maintained at any time in the past and is likely to lead to disputation and acrimony. The parties have fundamentally differing aspirations for themselves and, inferentially, for the children. I have confidence in the mother’s ability to make such decisions soundly. I do not have the same confidence for the father. The mother should exercise sole parental responsibility for the children. I consider that it would not be in the best interests of the children for there to be an order for equal shared parental responsibility. I consider that the evidence has rebutted the presumption for making such an order. That being the case no issue arises for under s.65DA as to the need to consider the question of equal time or substantial or significant time.
That does not mean that such concepts do not form a part of the considerations of the Court in exercising its discretion to make parenting orders that are in the best interests of the children having regard to the objects and to the provisions of s.60CC. But the matters which arose in the evidence that were important to the rebuttal of the presumption above are the same matters which are taken into account in framing an order that is in the best interests of the children.
The best interests of these children will be promoted if they live with their mother in an environment in which she is able to obtain remunerative employment and in which she will have the opportunity to attempt to realise her aspirations to be a pharmacist. Even if she failed ultimately in obtaining such a qualification, her work with her father is reasonably remunerative (relative to the remuneration of the father) and the environment in N is one in which she has some family support. I have carefully weighed the absence of the maternal grandmother in the daily life of the children in the event of the re-location. She has played an important role in their life to date. The mother will have the support of her own mother in such a move. Mrs W’s own assessment of her daughter is that she would be significantly distressed at a requirement that she remain in M. She did not dramatise the matter, indicating that the mother would cope, but nevertheless she saw the impact as being significant. The maternal grandmother indicated an intention to travel to N to spend time with her mother and grandchildren and I accept her evidence in that regard. We should not overlook the issue of the ability of the paternal grandparents to spend as much time with the grandchildren as they have heretofore. We did not hear any evidence from them but no-one suggested they did not have a good relationship with the children. It is a relationship, however, that as with the relationship of the children with the father, will not in my view be significantly impacted upon by changing from fortnightly to monthly especially with the opportunity for extended time during school holidays.
I have had some regard to the fact of the desire of the mother to move to N as an expression of her expectation as an adult citizen to move freely about the country, or in other words to her right of freedom of movement in the generalised sense discussed herein at [28]. Constraining her to live in M is a fact that would affect her general happiness and have some effect on the happiness of the children and is a matter that I should take into account even if I were not able to infer such a consequential possible impact upon the children. In other words, her own interests whilst not paramount must yet be given some consideration in this regard. However, if the state of the evidence had been such that I found that the best interests of the children required they not be moved from M then the freedom of movement issue would not have had a significant effect on the orders the Court would make. The best interests of the children are what have determined the outcome of this case. However, having determined that the move is in their best interests the fact that it is consonant with the mother’s own aspirations is a matter which fortifies me in the making the orders that I propose to make.
It may be that if I had made orders the effect of which was that the children remain with the mother in M (and it will be noted again that the mother indicated that if having the children with her were conditional upon her remaining in M that is what she would do) then serious consideration would have needed to be given as to whether such orders, made as they are pursuant to a legislative scheme which, in the ordinary run of cases, makes it significantly more difficult for a parent to re-locate to a part of the country which does not facilitate equal time or substantial and significant time with the other party, would bring into consideration in a real and practical way the provisions of s.92 of the Constitution. I say that, having regard to the fact that the majority of the High Court left such issue clearly open for consideration in AIM v AIF and especially having regard to what Gaudron J had to say about legislation which directed consideration not of merely obviating risks to the child but as to orders which promoted the welfare of the child (see the discussion of same at paragraph [18] of this judgment).
It has been unnecessary for me to make any findings as to this issue given the outcome of the case but the issue of the application of s.92 of the Constitution to relocation cases will no doubt be dealt with in due course by an appellate Court and possibly the High Court.
For the foregoing reasons I propose to make the orders set out at the commencement of these Reasons.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate: Ms N Julius
Date: 22 February 2007