BOURKE & ALVES
[2016] FCCA 1254
•18 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BOURKE & ALVES | [2016] FCCA 1254 |
| Catchwords: FAMILY LAW – Children – Parenting Orders – relocation – application to restrain mother from relocating residence of child from Sydney to Adelaide – one child aged 9 years – parental responsibility – equal shared parental responsibility – best interests of the child – views of the child – whether child should change schools during the school year. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA |
| Cases cited: Bourke & Alves [2014] FCCA 2680 Cowley & Mendoza (2010) 43 Fam LR 436; [2010] FamCA 597 Goode & Goode (2006) 36 Fam LR 422; FLC 93-286; [2006] FamCA 1346 Heath & Hemming (No.2) [2011] FamCA 749 MRR v GR (2010) 240 CLR 461; [2010] HCA 4 SCVG & KLD [2014] FamCAFC 42 Starr & Duggan [2009] FamCAFC 115 Taylor & Barker (2007) 37 Fam LR 461; FLC 93-345 U v U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; FLC 93-112; [2002] HCA 36 |
| Applicant: | MR BOURKE |
| Respondent: | MS ALVES |
| File Number: | SYC 4395 of 2014 |
| Judgment of: | Judge Scarlett |
| Hearing dates: | 16-17 July 2015 |
| Date of Last Submission: | 14 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 18 May 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Kennedy |
| Solicitors for the Applicant: | The Norton Law Group |
| Counsel for the Respondent: | Mr Schonell |
| Solicitors for the Respondent: | Walker, Kissane & Plummer |
ORDERS
All earlier parenting Orders are discharged.
The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child X born (omitted) 2006.
The child X is to live with the Mother.
The Mother is permitted to relocate the residence of the child X from the State of New South Wales to Adelaide in the State of South Australia with effect from 28 December 2016;
UNTIL 27 December 2016 the child X is to spend time with the Father as follows:
(a)Each alternate weekend during the school term from 4:30 pm on Friday until the commencement of school on the following Monday morning PROVIDED THAT if the Monday immediately after the weekend is a public holiday then until the commencement of school on the Tuesday morning;
(b)On the weekend that includes Father’s Day from 4:30 pm on the Friday until the commencement of school on the following Monday;
(c)For half of each New South Wales school holiday period by agreement or failing agreement for the second half commencing at 9:00 am on the middle Saturday of the school holiday period;
(d)For a period of three (3) hours on the child’s birthday being (omitted); and
(e)From 10:00 am on Christmas Day until 12:00 noon on Boxing Day 2016.
FROM AND AFTER 28 December 2016 the child X is to spend time with the Father as follows:
(a)During each of the mid-year school term holidays and excepting the Christmas/January school holiday period for nine (9) consecutive days on days agreed between the parties and failing agreement on the first nine (9) days of each holiday period in odd numbered years and the last nine (9) days of each holiday period in even numbered years;
(b)During the Christmas/January school holiday period from 2 January to 22 January in each year;
(c)During each school term on the fourth weekend of the month commencing from after school on the Friday until 7:00 pm on the Sunday; and
(d)From after school on Friday until 7:00 pm on Sunday on the weekend that includes Father’s day in each year.
For the purposes of Orders (7)(c) and (7)(d) above the Father’s time with the child commences from the time that the child boards the aircraft in Adelaide to travel to Sydney and concludes at the time the child boards the aircraft in Sydney to return to Adelaide.
The Father is permitted to telephone or FaceTime the child at all reasonable times and the Mother is to permit and not interfere with the child initiating and receiving telephone calls or FaceTime communication and if the parties cannot agree on reasonable times, then such telephone calls or FaceTime communication are to be initiated by the Father and made each Tuesday, Thursday and Sunday when the child has not spent time with the Father on those days.
The Mother is permitted to telephone or Skype the child at all reasonable times when the child is in the care of the Father and the Father is to permit and not interfere with the child initiating and receiving telephone calls or Skype communication and if the parties cannot agree on reasonable times, then such telephone calls are to be initiated by the Mother and made each Tuesday, Thursday and Sunday when the child has not spent time with the Mother on those days.
Where the Orders provide that the Father’s time with the child is to commence after school, the Mother must deliver the child to the airport in Adelaide and ensure that the child has boarded a flight agreed with the Father for a direct flight to Sydney and the Mother is to collect the child from Adelaide airport at the end of the time that the child is to spend with the Father and if the parties cannot agree on a flight either to or from Adelaide, the child is to board the flight nominated by the Father no less than seven (7) days prior to the departure dates for the purpose of changeovers in Adelaide and Sydney.
The Mother is to pay all costs and airfares associated with flights from Adelaide to Sydney and Sydney to Adelaide as provided in Order (10) above in a timely manner so as to ensure that the flights are pre-booked and paid for.
The parties are restrained from:
(a)criticising or denigrating each other or members of the other party’s family in the presence or hearing of the child or permitting any third person to do so; or
(b)enrolling the child in extracurricular activities without the consent of the other parent.
The Mother must obtain the written consent of the Father before enrolling the child into any school in the Adelaide area.
The Mother must ensure that the Father’s details including his current address and telephone number from time to time are placed on any enrolment application for the child to attend any school from time to time so that the Father may be included as a person of contact and the Mother must otherwise ensure that the father’s details are kept up-to-date at the child’s school.
Within seven (7) days from the date of these Orders the parties must do all things necessary including providing authority necessary to enable both parties to communicate with the child’s school and obtain all information and copies of documents from the child’s school as each of them may request in relation to the child.
Each party must notify the other as soon as reasonably practicable of any accident or emergency involving the child which involves medical treatment or hospitalisation whilst the child is in their respective care.
Each party must inform the other in writing of any change to his or her residential address not less than fourteen (14) days prior to such change occurring and any change to his contact telephone numbers within seven (7) days of such change occurring.
The Mother must ensure to inform the father by email or other means of any milestone events as they occur in the child’s day-to-day life.
For the purposes of any international holiday travel:
(a)The party intending to travel is to obtain the written consent of the other party or a Court Order in relation to a specific period of travel;
(b)The party intending to travel is to provide the other party within one (1) month of the intended departure date written details of the intended travel including:
(i)Proposed departure dates from and return to Australia;
(ii)Copy of proposed itinerary;
(iii)Proposed airline;
(iv)Places intended to visit whilst away from Australia;
(v)Details of how the child can be contacted whilst away from Australia including telephone contact numbers and addresses (if known) and Skype addresses; and
(vi)If the other party being the party not intending to travel does not consent to the travel arrangements as provided by the above Orders then that party must within fourteen (14) days of receipt of the particulars as provided in accordance with Orders (19)(i) to (v) provide to the other party written reasons for their refusal to consent to the proposed travel.
IT IS NOTED that publication of this judgment under the pseudonym Bourke & Alves is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 4395 of 2014
| MR BOURKE |
Applicant
And
| MS ALVES |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Father of a little girl called X for final parenting orders, including a restraint on the Mother from relocating the child’s residence to Adelaide. The Mother has formed a relationship with one Mr A, who lives in Adelaide.
X was born on (omitted) 2006, so she is nine years and five months old.
Orders Sought
The Father seeks two alternate sets of Orders, one based on the premise that the mother is to remain living with the child in Sydney, the other to come into force if the Court decides that it is in the child’s best interests to live with her mother in Adelaide. The Mother seeks one set of orders, premised on her being permitted to relocate the child’s residence to Adelaide.
Not surprisingly, the Father would prefer the Orders that he proposes on the basis that the mother and child remain living in Sydney. They are set out in a document entitled “Husband’s Proposed Parenting Orders” and say:
1.That the Father and the Mother are to have equal shared parental responsibility for the child X born (omitted) 2006 (“the child”).
2. That the child is to live with the Mother.
3. That the child is to spend time with the Father as follows:
(a)During each school term each alternate weekend from after school on the Friday until before school on the Monday (and extending to Tuesday if the Monday is not a school day), the Father to collect the child from school and return the child to school;
(b)During each school term each Wednesday from end of school until start of school on the Thursday, the Father to collect the child from school and return the child to school;
(c)For one-half of all school holidays and being the first half during even numbered years, and the second half in odd numbered years;
(d)From 9.00 am on Christmas Eve until 4.00 pm on Christmas Day, in odd numbered years;
(e)For a period of four hours on the child’s birthday at times agreed between the parties, and failing agreement from 10AM to 2PM in odd numbered years;
(f)From after school on Friday until start of school on Monday on the Father’s Day weekend.
4. The Father’s time with the child is to be suspended:
(a) On the Mother’s Day weekend;
(b)In even numbered years, 9.00 am on Christmas Eve until 4.00 pm on Christmas Day;
(c)For the times provided for in Order 3(e) to the intent that the child spent[1]time with the mother on her birthday excepting for the times provided for in Order 3 (e).
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5.That the Father is permitted to telephone the child at all reasonable times with the Mother to permit and not interfere with the child initiating and receiving telephone calls, and if the parties cannot agree on reasonable times, such phone calls are to be initiated by the Father and made each Tuesday, Friday and Sunday when the child has not spent time with the Father on those days.
6.That the mother is permitted to telephone the child at all reasonable times when the child is in the care of the Father, with the Father to permit and not interfere with the child initiating and receiving telephone calls, and if the parties cannot agree on reasonable times, such phone calls are to be initiated by the mother made each Tuesday Thursday and Sunday when the child has not spent time with the mother on those days.
7.Where the Orders herein provide that the Father’s time with the child is to commence after school, the changeovers will take place at the child’s school and otherwise for the purposes of all other changeovers the Father is to collect the child at the commencement of the time the child is to spend with the father from the mother’s residence, and the mother is to collect the child from the father’s residence at the end of the time the child is to spend time with the father.
8. The parties are restrained from:
(a)denigrating each other or members of the other party’s family in the presence or hearing of the child or permitting any third person to do so; or
(b)enrolling the child in any extra curriculum[2] activities without the consent of the other parent; or
(c)enrolling or changing the child’s school without the consent of the other parent.
9.That within seven (7) days of the date of these Orders, the parties do all things necessary including providing authority necessary to enable both parents to communicate with children’s[3] schools and obtain all information, copies of documents from such school as each of them may request in relation to the children[4].
10.That each party notify the other as soon as reasonably practicable of any accident or emergency involving the children, which involves medical treatment or hospitalization whilst the children[5] are in their respective care.
11.That each party inform the other in writing of any change to his or her residential address, not less than fourteen (14) days prior to such change occurring and/or any change to his or her contact telephone numbers within seven (7) days of such change occurring.
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12. That for the purposes of any international holiday travel:
(a)that the party intending to travel is to obtain the written consent of the other party, or Court Order in relation to specific period of travel;
(b)that the party intending to travel is to provide the other party within one (1) month of the intended departure date, written details of the intended travel including:
(i) proposed departure dates from and return to Australia;
(ii) copy of proposed itinerary;
(iii) proposed airline;
(iv) places intended to visit whilst away from Australia;
(v) details of how the children[6] can be contacted whilst away from Australia, including telephone contact numbers and addresses (if known) and Skype addresses; and
(vi) that if the other party (that is, the party not intending to travel), does not consent to the travel arrangements as provided pursuant to the above Orders, then such party must in fourteen (14) days of receipt of the particulars as provided pursuant to Order 12 (i) to (v), provide to the other party written reasons of their refusal to grant consent.
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The Father’s alternative position is set out in a document entitled “Proposed Parenting Orders should the child X live in Adelaide”, saying:
1.That the Father and the Mother are to have equal shared parental responsibility for the child X born (omitted) 2006 (“the child”).
2. That the child is to live with the Mother.
3. That the child is to spend time with the Father as follows:
(a)During each school term holidays (excepting Christmas end of year holiday period) for nine consecutive days on days agreed between the parties, and failing agreement on the first nine days of such holiday periods in odd numbered years, and the last nine days of such holiday periods in even numbered years, and that such nine days commence from the time the child boards the plane to travel to Sydney, and the nine days cease from the time the child boards the plane to travel to Adelaide.
(b)During the end of year/Christmas holiday period for two thirds of such holidays, on days agreed up[on between the parties, and failing agreement commencing the day that school ends in odd numbered years, and otherwise commencing on the day which is one third into the school holiday period in even numbered years.
(c) During each school term, each fourth weekend commencing after school on the Friday until 7.00 pm on the Sunday.
(d)From after school on Friday until Sunday 7.00 pm on the Father’s Day weekend.
4.That the Father is permitted to telephone or FaceTime the child at all reasonable times with the Mother to permit and not interfere with the children[7] initiating and receiving telephone calls or Face Time communication, and if the parties cannot agree on reasonable times, such phone calls or Face Time communication shall be initiated by the Father and made each Tuesday Thursday and Sunday when the child has not spent time with the Father on those days.
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5.That the Mother is permitted to telephone or Skype the child at all reasonable times when the child is in the care of the Father, with the Father to permit and not interfere with the children[8] initiating and receiving telephone calls or Skype communication, and if the parties cannot agree on reasonable times, such phone calls are to be initiated by mother made each Tuesday Thursday and Sunday when the child has not spent time with the mother on those days.
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6.Where the Orders herein provide that the Father’s time with the child is to commence after school, the mother shall deliver the child to the airport in Adelaide and ensure that that the child has (boarded) a flight agreed to with the Father for a direct flight to Sydney, and the mother is to collect the child from Adelaide airport at the end of the time that the child is to spend with the Father, and if the parties cannot agree on a flight either to or from Adelaide, the child shall board the flight nominated by the Father no less than seven days prior to the departure dates for the purpose of changeovers in Adelaide and Sydney.
7.The mother is to pay all costs associated with flights from Adelaide to Sydney and Sydney to Adelaide as provided for in Order 6 in a timely manner so as to ensure that the flights (are) pre-booked and paid for.
8. The parties are restrained from:
(a)denigrating each other or members of the other party’s family in the presence or hearing of the children[9] or permitting any third person to do so; or
(b)enrolling the children in extra curriculum[10] activities without the consent of the other parent.
9.That the Mother not enrol the Child into any school without the written consent of the Father.
10.That the Mother ensure that on any enrolment application for the child at any school from time to time, the Father’s details (including his current address and phone number from time to time) be included as a person of contact, and the Mother otherwise ensure that the Father’s details be kept up-to-date at the Child’s school.
11.That within seven (7) days of the date of these Orders, the parties do all things necessary including providing authority necessary to enable both parties to communicate with children’s[11] schools and obtain all information, copies of documents from such school as each of them may request in relation to the child.
12.That each party notify the other as soon as reasonably practicable of any accident or emergency involving the children, which involves medical treatment or hospitalization whilst the child is in their respective care.
13.that each party inform the other in writing of any change to his or her residential address, not less than fourteen (14) days prior to such change occurring and/or any change to his or her contact telephone numbers within seven (7) days of such change occurring.
14.The part(ies) shall maintain a communication book by way of email exchanges, and to this intent the mother shall keep the Father readily appraised of any and all milestones as occur in the child’s day-to-day life.
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15 . That for the purposes of any international holiday travel:
(a)that the party intending to travel is to obtain the written consent of the other party, or Court Order in relation to specific period of travel;
(b)that the party intending to travel is to provide the other party within one (1) month of the intended departure date, written details of the intended travel including:
(i) proposed departure dates from and return to Australia;
(ii) copy of proposed itinerary;
(iii) proposed airline;
(iv) places intended to visit whilst away from Australia;
(v) details of how the children[12] can be contacted whilst away from Australia, including telephone contact numbers and addresses (if known) and Skype addresses; and
(vi) that if the other party (that is, the party not intending to travel) does not consent to the travel arrangements as provided pursuant to the above Orders, then such party must in fourteen (14) days of receipt of the particulars as provided pursuant to Order 15 (i) to (v), provide to the other party written reasons of their refusal to grant consent.
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The Mother seeks these Orders, as set out in the document entitled “Minutes of Order”:
1.The mother and father have equal shared parental responsibility for the child X born (omitted) 2006 (“the child”) in consultation with one another for making decisions on major long-term issues relating to the child.
2.That the child be permitted to relocate to Adelaide with the mother.
3.The child shall live with the mother in Adelaide and spend time with the father as follows:
3.1On the third weekend of each calendar month commencing from 6.30 pm on Friday to 4.00 pm on Sunday
3.1.1If the Monday after the weekend referred to in Order 3.1 is a public holiday then to 4.00 pm on Monday.
3.1.2If in any given month there is a long weekend in South Australia then the child shall spent[13] time with the Father from 6.30 pm on Friday to 4.00 pm on Sunday on that long weekend in that particular month and normal time with arrangements shall resume in accordance with Order 3.1 in the following month.
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3.1.3.For the first 9 days of the short school term holidays in odd numbered years;
3.1.4.For the last 9 days of the short [school] term holidays in even numbered years;
3.1.5.From the day after the last day of the school year to 6.30pm on 3 January the following year in odd numbered years;
3.1.6.From 6.30 pm on 3 January 2014[14] to 6.30 pm 2 days before the commencement of the school year in even numbered years;
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3.1.7.Telephone/Skype contact between 5pm to 6pm on Monday, Wednesday and Fridays on the days that the child is not spending with the Father;
3.1.8.From 6.30 pm on Friday to 4.00 pm on Sunday being the weekend of Father’s Day.
3.1.9.at other times as agreed between the parties in writing, which includes by email.
4. When the child reaches the age of 10 years, the child shall live with the mother in Adelaide and spend time with the father as follows:
4.1Each alternate weekend from 6.30 pm on Friday to 4.00 pm on Sunday;
4.1.1.If the Monday after the weekend referred to in Order 4.1 is a public holiday then to 4.00 pm on Monday.
4.1.2.For the first 9 days of the short school term holidays in odd numbered years;
4.1.3.For the last 9 days of the short school term holidays in even numbered years;
4.1.4.From the day after the last day of the school year to 6:30 pm on 3 January the following year in odd numbered years;
4.1.5.From 6.30 pm on 3 January 2014[15] to 6.30 pm 2 days before the commencement of the school year in even numbered years;
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4.1.6.Telephone/Skype contact between 5 pm to 6 pm on Monday, Wednesday and Fridays on the days that the child is not spending with the Father;
4.1.7.From 6.30 pm on Friday to 4.00 on Sunday being the weekend of Father’s Day.
4.1.8.at other times as agreed between the parties in writing, which includes by email.
5.Notwithstanding the provision contained in Order 4 and 5 the child shall spend time with and communicate with the mother as follows:
5.1the weekend of Mother’s day and in the event that this weekend falls on the weekend that the child is to spend time with the Father then the Father shall forfeit spending time on this weekend;
5.2For the first half of the short school term school holidays in even numbered years;
5.3.For the second half of the short term school holidays in odd numbered years;
5.4From the day after the last day of the school year to 6.30 pm on 3 January the following year in even numbered years;
5.5.From 6.30 pm on 3 January 2014[16] to 6.30 pm 2 days before the commencement of the school year in odd numbered years;
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5.6.Telephone/Skype contact between 5pm to 6pm on Monday, Wednesday and Fridays on the days that the child is not spending with the mother;
5.7at other times as agreed between the parties in writing, which includes by email.
6.For the purpose of facilitating Orders 3 and 4, the times referred to in those orders refer to New South Wales time.
7.Notwithstanding the provisions contained in Order 4 and 5, the parties agree that the child shall celebrate her birthday with the parent that she is spending time with and the other parent shall have the opportunity to telephone the child to pass on their birthday wishes. The other parent shall celebrate that child’s birthday on the next occasion that child spends time with the other parent.
8.For the purpose of facilitating the above Order 4 and 5 the mother shall pay for the return air fare from Adelaide to Sydney on each alternate occasion that the father is to spend time with the child unless otherwise provided or agreed in writing.
9.For the purpose of these Orders, school holidays shall be the holiday dates published by the South Australian Department of Education and Training for the relevant period in each year.
10.The mother shall have responsibility for making decisions for the day-to-day issues of the child when she lives with her, and the father shall have responsibility for making decisions regarding the day-to-day care issues of the child when she lives with him.
11.Each party shall notify the other, as soon as possible of any serious injury or illness suffered by the child whilst with that party.
12.Each party shall notify the other, not less than 7 days before any change to their address and not more than 24 hours after any change to their landline and/or mobile telephone numbers and/or their email address.
13.Each parent shall notify the other of the address and telephone number/s of the place/s where the child will be staying during holidays spent away from their residence, not later than weeks prior to the commencement of any overseas holiday and 2 weeks prior to the commencement of any interstate holiday.
14.That the mother shall forthwith authorise any school the child may attend to provide to the father photocopies of reports, newsletters and announcements of centre/school activities, or otherwise pertaining to the education of the children[17], or if none have been made available in writing, then the mother shall provide written particulars, which includes by email, of such reports and/or activities to the father within 3 days of such documents or particulars being received by the mother from the school, and the mother shall authorise staff members at any school the child may attend to discuss the child’s progress with the father.
15.The parties shall provide to each other the names, addresses and telephone numbers of all medical professionals who may treat the child and authorise each of them in writing to provide copies of any test results, letters of referrals, reports, and letters received from other medical professionals to the father and authorise them to discuss any aspect of the child’s health with the father.
16.That the mother shall keep the father informed of all sporting, religious, cultural and educational activities in which the child is involved.
17.The child may communicate with each parent at such times as the child so wishes and the other party shall facilitate and encourage such communication by telephone, in writing, or by other electronic means including but not limited to email and if the facility exists, and the party wanting it provides it, webcam or video conference.
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Background
The background to this matter is that the Father was born on (omitted) 1966. The Mother was born on (omitted) 1980. The Father has a child from a previous relationship by the name of A, who was born on (omitted) 1995. A has now attained the age of 20 years. He resides with the Father and, of course, is a stepbrother to the child X.
The parties commenced living together either in 1999 or 2000, in a domestic relationship. The subject child, X, was born on (omitted) 2006. The parties separated in February 2009. It appears to be common ground that, from the birth of the child until the separation, the parties shared all aspects of her general care and supervision. From February 2008 the parties came to informal parenting arrangements, whereby the child lived with the Father each weekend, from Friday evening through to Monday evening, plus half of the school holidays and the child would spend further time with the Father on an ad hoc basis.
At the time of separation in February 2009, the parties were living in the Sydney suburb of (omitted) but the Mother relocated with the child to (omitted) without any discussion with the Father. The parenting arrangements between the parties continued. The Father complained that the Mother had made a unilateral decision in early 2012 to enrol the child at the (omitted) Primary School. The child commenced school early in that year.
The Father complained that the Mother made the unilateral decision in October 2012 to change the informal parenting arrangements by reducing the time that the child spent with him from each weekend into each alternate weekend. He said the Mother’s decision was presented to him as a fait accompli, leaving him with no say in the matter. In January 2013, the Father commenced a relationship with Dr A, who is his current parent. Dr A deposed to an affidavit and gave oral evidence and was cross‑examined by counsel for the Mother.
In March 2013 the Mother commenced a relationship with her current partner, Mr A. He resides in Adelaide. The relationship between the Mother and Mr A has continued and is clearly a permanent relationship. On (omitted) 2014 the Mother gave birth to a little girl called Y, who is the child of her relationship with Mr A. It was not until 7th July 2014 that the Father learned for the first time of the Mother’s decision to relocate with the child to Adelaide.
The Father commenced these proceedings on 16th July 2014 by filing an initiating application and affidavit in support. He sought to restrain the Mother from relocating the child’s residence to Adelaide pending orders from the Court. On 4th November 2014, the Court heard an interim application by the Respondent Mother to relocate with the child to Adelaide until further order pending the final hearing. A decision was delivered the following day 5th November, providing:
(1)that the parties would have equal shared parental responsibility for the child;
(2)that the child, X, was to live with the Mother;
(3)the Mother was restrained by injunction from relocating the residence of the child, X, from a radius of 30 kilometres from (omitted) Primary School;
(4)setting out a variety of parenting orders providing that the child would spend time with the Father on various occasions.
At the time, I considered the parties’ submissions noting the Father’s contention that he had a good relationship with the child and a strong, positive and meaningful relationship for her just as the Mother does. I noted the Father’s contention that it was premature to permit an interim relocation without a proper exploration of the issues relating to the best interests of the child. I took the view in paragraph 18 of the decision that it would indeed be premature to permit an interim relocation of the child’s residence because it is a difficult task to persuade a court and in my view it would not appear to be in the best interests of the child to permit this state of affairs to occur without proper examination and testing of the evidence relating to the matter.[18]
[18] Bourke & Alves [2014] FCCA 2680
At that stage there was not a Family Report in existence. That report, which is a detailed and comprehensive report, was completed on 2nd April 2015, and an order was made that same day releasing a copy of the report to the parties. The hearing of the matter was originally scheduled for 22nd and 23rd April 2015, but needed to be adjourned due to serious difficulties that had been sustained by counsel for one of the parties. The application was heard on a final basis on 16th and 17th July 2015.
The Father relied on his affidavit and on the affidavit of his partner, Ms A. Both the Father and Ms A were cross‑examined. The Mother relied on her affidavit and on the affidavits of her partner, Mr A, and Mr A’s mother, Ms C. Mr A and his mother live in Adelaide which is where the Respondent mother would like to live with the child. The family consultant, Ms I, was required for cross‑examination and she was cross‑examined at some length by Ms Kennedy of counsel for the Applicant Father and Mr Chanel of counsel for the Respondent Mother.
The Family Report is as I have said a comprehensive report. The family consultant considered in the report the Father’s proposal that the child, X, should live with him if the Mother wished to move to Adelaide or in the alternative that X should continue to live with her mother in Sydney and she should spend increasing amounts of time with him. The Mother proposed that X should live with her and that they relocate to Adelaide and she set out also propositions as to the time that the child would spend with the Father. The family consultant noted the issues in dispute as being:
(1)the proposed relocation for X with her mother from Sydney to Adelaide; and
(2)how much time X should spend with her father, whether she lives in Adelaide or in Sydney.
The family consultant identified four issues during the assessment being:
(1)the impact of an interstate relocation on X’s relationships;
(2)the historical involvement of Mr Bourke in X’s life;
(3)the capacity of Ms Alves to facilitate X’s relationship with her father; and
(4)the weight to be placed on X’s views.
The family consultant noted that the Father presented as being highly concerned about the impact of the Court’s decision on X. He took the view that it would be catastrophic for X to move to Adelaide and that caused him a great deal of anxiety. He told the family consultant that his relationship with the child had improved over recent months since they had been spending time together regularly as provided for by the interim orders that I made back on 5th November 2014. He feels in fact as if he is being kept in the loop more because he takes X to school each alternate Monday.
The Father said that he opposed the child relocating to Adelaide because he considers that it would diminish her relationship with him and with her adult stepbrother, A. He expressed a concern that the Mother would not facilitate his relationship with X if she were to relocate to Adelaide. He did say that since the interim orders were made on 5th November 2014, the communication between him and the Mother had not improved. He found that the Mother did not provide him with much information about X.
He took the view that if the Mother could not put into practice now the things that she said she would do in Adelaide, for example, keeping him informed about school and medical issues, he did not believe that she would do so in Adelaide. The Father complained that the Mother prioritises X’s relationship with her partner, Mr A, over her relationship with him. He said he did not consider that he was controlling or intimidating towards the Mother during their relationship.
He noticed there was a significant age gap between him and the Mother. They commenced a relationship when she was aged 18 and he was aged 32. The Father also expressed concerns that the Mother’s proposals for X to spend time with him if she were to live in Adelaide were not viable in a practical or financial sense. He did not think that the Mother’s proposal for X to spend time with him was appropriate due to the child’s changing developmental needs as she gets older.
Whilst X recently flew unaccompanied and currently is happy to do so, the Father expressed the view that with time, X may become more resistant to returning to Sydney as she might prefer to spend time with friends in Adelaide. He found it difficult to consider what time arrangements might be suitable if X were to relocate to Adelaide. The Father said that he considered that the simplest solution to the current dilemma was for the Mother’s partner, Mr A, to return to live and work in Sydney. He said that it was not an option for him to relocate to Adelaide due to the employment of his partner, Ms A, also A’s study and also his own employment.
The family consultant noted the Mother presented as being keen to have the matter resolved. She presented with firm views about the appropriateness of her proposal to relocate with X to Adelaide. She said that her biggest reason for wanting to relocate to Adelaide was financial. She said that she and Mr A would be able to buy a house with a backyard in Adelaide whereas they could not afford to do so in Sydney and are struggling to afford their rent.
She said that if they were to live in Adelaide she would be able to remain at home to care for Y full time and X before and after school but if they continued to live in Sydney she would need to return to work for financial reasons. She said their better financial position if they were to live in Adelaide would enable them to provide a better quality of life to X, including extracurricular activities. In addition, the Mother said that if she were to live in Adelaide with the child she and Mr A would benefit from regular and plentiful support from Mr A’s parents which is not available to them in Sydney.
She also expressed the view that it would be of benefit to X to live in Adelaide rather than Sydney due to Adelaide being slower and quieter. She also said that if X were to relocate to Adelaide with her the child would have ample opportunity to spend time with the Father for a weekend in Sydney once a month, half of school holidays and occasional weekends in Adelaide if Mr Bourke was to visit.
The Mother’s partner, Mr A, was interviewed by the family consultant. She described him as being friendly and cooperative in his presentation but was only able to give rudimentary responses to some questions without much elaboration or depth. He also appeared to be somewhat frustrated during the interview process. When interviewed with Ms Alves, both Ms Alves and Mr A expressed frustration with the current situation, Mr A living in Adelaide away from Ms Alves, away from X and in particular away from Y.
Mr A appeared to the family consultant to be less willing than Ms Alves to offer to take financial responsibility for the travel costs associated with X spending time with her father. Mr A said that his parents and his brother live in Adelaide. He said he and Ms Alves had planned to move to Adelaide together and he had been offered a job there. He made the decision after the proceedings were commenced, that he would still accept the job and move to Adelaide alone but he complained of being in limbo living in Adelaide whilst his family were living in Sydney.
He had been working as a (occupation omitted) for (employer omitted) for the past 10 years and he enjoyed the work. He had a permanent full‑time position available in Adelaide but the only jobs being advertised in Sydney were part‑time or contractual. He went on to say that if X were unable to relocate to Adelaide, it would have a massive impact on her and on the family. He said that the parties just could not afford to live in Sydney. He said that he had a good relationship with X and that even though he was not her dad, he was a father figure to her.
The Father’s partner, Ms A, presented as being insightful and with appropriate boundaries in terms of her role with X and in regards to the current dispute between the parents. The family consultant considered that when Dr A was interviewed with Mr Bourke, it appeared that they have a warm and mutually respectful relationship. She described Mr Bourke as being very close to X and always having been respectful about and toward Ms Alves.
Dr A expressed the view that X would benefit from seeing both parents and their partners interacting positively so that they could all attend significant events without X experiencing stress. She said that she and X have a good relationship that is developing over time. She thinks that it was important for her to become involved with X without interrupting X’s relationship with her father and A so she had taken a back seat. Dr A said that she would miss X if she were to relocate to Adelaide but her main concern would be the loss of close relationships between X and her father and between X and A.
The Father’s son, A, who was 19 years of age at the time, presented as being slightly nervous but calm and pleasant. He told the family consultant that he and X were always happy to see each other and he tried to ensure that he stayed at home on the weekends that she spends with her father. He plays with X and consoles her if she is ever upset. He said that if X were to move to Adelaide he would miss her dearly and their relationship would become strained.
He became upset when considering this possibility. He said that he would like the opportunity to maintain his sibling relationship with X definitely over the next couple of years prior to his entering the adult world. He does not think he could do this if X were to live in Adelaide. He considered that he was someone for the child to look up to and to come to as being a positive role model and he listens to her and she trusts him.
He said that he recognises certain mannerisms in her behaviour that he thinks come from him and he said that if they were unable to spend much time together their bond would weaken. He would not entertain the possibility of moving to Adelaide as he is attending university in Sydney and his mother and maternal half-siblings also live in Sydney. The child, X, herself presented as being happy and positively engaged with all members of her family present on the day of interviews.
The family consultant recorded that she appeared to be comfortable in the presence of all family members together in the waiting room and comfortable to transition between her parents for formal observations with each of them, the lunch break with her father and leaving at the end of the day with her mother. She seemed to be confident to be interviewed by the family consultant and appeared to have a good capacity for her age to discuss relationships.
She spoke positively about school and displayed pride and happiness when reporting that she was a member of the student representative counsel. X described having a positive perception of her relationship with her mother and viewed her mother as being loving, caring and nice and appeared to feel very close to her. She described having a positive perception of her relationship with Mr A and said that she was said about him not living with her at the moment.
She views him as being fun and entertaining. She noted some minor annoyance with Mr A in terms of his not being appropriately sensitive to her feelings and being disruptive in interactions between her and her mother. She also expressed concern that she did want to hurt Mr A’s feelings. X described her little sister, Y, with much positivity, affection and love and some acknowledgment of annoyance related to Y’s age and state of development.
Her behaviour when she was observed interacting and playing with her mother, Mr A and Y, was consistent with her reported perceptions of her relationships with them. She interacted calmly and happily with her mother. The Mother encouraged Mr A’s participation in play and X accepted it. She displayed enthusiasm, affection and joy when interacting with the child, Y. X described also having a positive perception of her relationship with her father.
She viewed her father as being fun, familiar and as a source of physical affection and comfort. She had difficulty describing her relationship with Ms A and said that she was not close to her and had experienced some awkwardness in their relationship. She described having a positive perception of her relationship with A. She viewed him as being funny, helpful and enjoyable to spend time with. She identified A as being emotionally available to her and responsive when she was upset and she gave a specific example of A comforting and reassuring her when she was upset in response to her parents having a fight.
The family consultant reported that X’s behaviour when she was observing her interacting and playing with her father, with Ms A and A, was consistent with her reported perceptions of her relationships with them. She interacted and played with her father with apparent cooperation and enjoyment. Ms A joined the play between X and Mr Bourke but was not intrusive and waited for X to invite her into the play which she did. X was particularly keen to spend time with A and spontaneously displayed physical affection toward him when she was with him.
She identified having close relationships with her paternal grandmother and cousins and her maternal grandfather and also with her maternal uncle and his girlfriend. She spends time with her maternal grandmother but seemed not to feel particularly close to her. The child was aware of the dispute between her parents. She articulated the dispute as being her, her mother, Mr A and Y all wanting to move to Adelaide but that her father does not want her to move.
She described having relatives and friends in Adelaide and reported having had positive experiences when visiting them. The family consultant noted the child appeared to have a general sense that Adelaide would offer her new and better opportunities, such as a new school without a particular student who has been bullying her, cheaper lollies, the chance to travel and an actual house with a chance to paint and decorate the way she would like to. She did not spontaneously identify anything negative about moving to Adelaide.
When asked about not seeing her father as often as she does now, X said that she thought it would be all right because “I will still see him.” She said that if she were to never see him again she would not want to go. She said that if she were to live in Adelaide she would see her father once per month and that would be only time less than she currently sees him. She said that she had flown from Adelaide to Sydney by herself during the last holidays that it was fun and she was fine to do it again.
When asked if she would like to give a particular message to the judge, X said, “I would really like to go to Adelaide”, and “I want to live with mum most of the time.” In her evaluation, the family consultant noted that X appeared to have close and meaningful relationships with both of her parents. Both Ms Alves and Mr Bourke appeared to have the requisite skills and psychological makeup to meet X’s needs and there did not appear to be any significant risks for the child’s safety or wellbeing associated with either parent.
At least in recent years, the Mother appears to have provided the child with primary care and X seemed to view her mother, Mr A and Y as her main family unit. X would likely benefit from continuing to live primarily with her mother which would be in accordance with the child’s views. At the same time, the family consultant noted that it seemed that X enjoyed and gained benefit from her relationships with her father and her brother but did not yet have a fully developed relationship with Ms A.
She would likely benefit from maintaining her relationships with her father and brother and could well benefit from further developing her relationship with Ms A. The family consultant opined that when determining whether or not X should relocate to Adelaide with the mother, one of the significant factors which requires consideration is the potential impact on X’s relationships with her father and her brother if she were to relocate. X’s age of 8 years at the time did not pose any particular problems associated with relocation such that a younger child might experience.
If she were to spend time with the Father at least once per month and have at least weekly communication with him, it would give her a realistic opportunity to maintain a relationship with him. Whether she could maintain the same quality of relationship with her father that currently exists is questionable and the opportunity for her to further develop her relationship with him would likely to be limited. If she could spend time with her father once per month, the time would most likely be limited to recreational time and the child would not be given the opportunity to have her father involved in her schooling or extracurricular activities.
The family consultant said that in practical terms X spending time with her father once a month might not be sustainable due to financial costs, X’s willingness to travel, particularly as she got older, or X’s capacity to cope with such frequent travel which is unknown at this stage. The family consultant went on to say at paragraph 53 of her report, that when considering the potential impact of relocation on X’s relationship with her father there were two particular factors to contemplate.
One was the level of past and current involvement of Mr Bourke in X’s life and the other was the Mother’s past, current and future capacity to facilitate X’s relationship with her father. Whilst the Mother and Father appear to have for the most part managed their co-parenting relationship reasonably well, they appeared to have very different perceptions of their own and the other parent’s behaviour and attitudes. The family consultant went on to express the view that the Court would need to consider each parent’s evidence with respect to various issues.
Further, a child’s relocation is known to impact upon not just their relationships, but their social capital. This refers to the family community connections that a child builds throughout their life which provide them with access to a variety of sources of support, assistance and guidance. X currently has social capital associated with the parents, step-parents, extended family and her school community. If her family were to relocate to Adelaide it would reduce the availability of her established social capital in Sydney but would extend the social capital to include Mr A’s family and a new school community.
If she were to relocate, as long as she continued to communicate and spend at least some holiday time with her family members in Sydney, she would still be able to maintain them as sources of social capital but they may be less available to her. The family consultant noted that X has expressed a view that she wants to move to Adelaide with her mother but when determining the weight to be placed on X’s view it needs to be understood in context. It seems that the mother told X about her and Mr A’s plans to move to Adelaide and encouraged X to feel positive about such a move.
Mr A having already moved to Adelaide has been unsettling for X both directly and via the impact on the mother. It is within these contexts that X has formed her view that she wants to move to Adelaide. Another important consideration when determining the proposed relocation is the impact on the mother’s capacity to meet X’s needs of her relocating and of her not relocating. Currently, Ms Alves’ partner and the father of their 11 month old child is living separately from her, having already moved to Adelaide.
This is a problematic situation and one that needs to change as soon as possible. Ms Alves, along with X and Y, relocating to Adelaide would resolve the situation but so would Mr A returning to Sydney. By Ms Alves’ account, she and X relocating to Adelaide would also resolve other problems that she encounters living in Sydney, most notably financial pressure and lack of adequate family support. The family consultant said that it was difficult to predict the impact of relocating on Ms Alves’ function in parenting capacity.
There was nothing to indicate that she would struggle to manage relocating and within her family of origin it seems relocating interstate or overseas is common with two of her three siblings having done so. The family consultant said that it was difficult to predict the outcome for X if she were to relocate to Adelaide, or if she were to remain living in Sydney. It seems that if she were to relocate there would be a negative impact on her relationship with her father but the extent of this impact would be dependent on unknown or disputed variables.
It also seems that if she were to relocate, X may be given greater opportunity, stability and security within her mother’s household. The extent of these opportunities compared to those available to her in Sydney, would be dependent on variables unable to be analysed in the report, such as Ms Alves and Mr A’s financial and employment circumstances. The family consultant recommended the parents share parental responsibility for X. She also recommended that X live with her mother.
She recommended that if X were to live with her mother in Sydney, she spend substantial and significant time with her father, perhaps each alternate weekend extended to include some week nights as well. However, if X were to live with her mother in Adelaide she would spend time with her father for one weekend a month, at least nine days in each mid-year school holiday period and for half the Christmas school holiday period. Arrangements for X to spend time with the Father is she were to live in Adelaide would depend on her capacity to cope with the air travel, and on the parents’ capacity to pay for the air travel.
The Father and his partner, Ms A, were both cross-examined. I recorded their evidence carefully and listened to the evidence with great interest. I formed a positive view of the Father’s evidence. My contemporaneous notes, made on 16th July 2015, were that the Father was a very frank and open witness. I noted that he was very articulate, and he appeared to be honest. I heard the evidence of Ms A, the Father’s partner. She has the degree of (qualifications omitted) in (omitted).
She was cross-examined by Mr Schonell of counsel for the Mother. She noted that, in her evidence, that the Father was very distressed and upset when the Mother had said that she was moving to Adelaide and taking X with her. Ms A was concerned about the travel distance which was onerous for a small child. She expressed a concern that it would diminish the quality time and would diminish the relationship between X and her father.
The Mother gave evidence and was cross-examined by Ms Kennedy of counsel for the Father. She said that if she were not permitted to relocate she would be forced to stay in Sydney. She said that she and Mr A had discussions and looked at the possibility Mr A moving back to Sydney but said it would be a very big decision and it would affect both of her girls, i.e., X and young Y. Mr A had come back from Adelaide to stay in Sydney with the Mother for periods of up to two weeks.
I noted that the Mother too was a good witness. My contemporaneous notes of the Mother’s evidence were that she answered questions put to her by counsel openly and freely. She appeared to be giving her evidence honestly. The Mother’s cross-examination continued into the second day. The Mother of Mr A, Ms C, gave evidence. She said that her husband lives with her and that Mr A had been back living with her for over a year but that he had travelled to Sydney four or five times and she noted the impact of that travel was that it caused a little bit of stress on him.
She said that the parties had told her that it was a lot cheaper to live in Adelaide than in Sydney. Mr A gave evidence and he said that he had made approximately five or six trips back to Sydney to see Ms Alves and the children. It was certainly his evidence that it was very expensive living in Sydney and that it’s a lot less expensive in Adelaide. Ms I, the family consultant, was cross-examined both by Ms Kennedy for the Father and Mr Schonell for the Mother.
She maintained her position and, interestingly, in answer to questions put to her by Mr Schonell, about the effect on a child of changing school in a relocation, said that any change in school causes a disruption and that a move at the end of the school term might decrease the disruption a little bit. She went on to say that the start of a new school year is easier for the child to start at the beginning of the year and changing a child’s school mid-way through the school term would not be in the child’s best interests because the class into which the child moved had already commenced the terms.
Submissions
Due to the amount of time that the evidence took, counsel for the parties made written submissions. I have read those submissions and found them extremely helpful. Ms Kennedy submitted that the Father was a witness of truth who had good insight into his daughter’s current life and insight into the potential impact of the mother’s relocation to Adelaide. At the same time, however, she said that the Mother was a witness who was incorrect in a number of aspects of her evidence as to financial matters and that Mr A’s evidence did not accord with that of the Mother on issues of firstly, salary and his savings.
Ms Kennedy submitted that where the Mother’s evidence differed from the Father’s evidence that the Father’s recollection should be preferred. The Court was referred to the objects of Part VII of the Family LawAct 1975 (Cth) and the principles underlying those objects, and the Court was also referred to the provisions of sections 60CA, 60CC, 61DA, 65DAC and 65DAA of the Family Law Act. Ms Kennedy referred the Court to the decision of the High Court of Australia in MRR v GR[19] and referred particularly to the decision of their Honours at paragraphs 13 and 15 in respect of section 65DAA of the Family Law Act, which sets out the matters which the Court must consider when determining whether or not an order is reasonably practicable.
[19] (2010) 240 CLR 461; [2010] HCA 4
Ms Kennedy also referred the Court to the decision in the Full Court of the Family Court of Starr & Duggan[20], where it was suggested that a logical approach would be first, make findings concerning the relevant 60CC factors, then consider, based on the section 60CC findings, whether equal time or substantial and significant time is in the child’s best interests and then consider whether such arrangements are reasonably practicable by addressing the matters referred to in subsection 65DAA (5), which may be done by referring back to the earlier section 60CC findings.
[20] [2009] FamCAFC 115
Ms Kennedy also referred the Court to the decisions in Cowley & Mendoza[21] and Heath & Hemming (No 2)[22], SCVG & KLD[23], and Taylor & Barker[24]. The Court was also referred to the well-known decision of Goode & Goode[25]. In addressing these issues, Ms Kennedy submitted the Father’s proposal was the only proposal which appropriately addressed the objects and principles of section 60B and subsection 60CC(2)(a) of the Family Law Act 1975. There were no family violence factors which would enliven the provisions of section 60CC(2)(b).
[21] (2010) 43 Fam LR 436; [2010] FamCA 597
[22] [2011] FamCA 749
[23] [2014] FamCAFC 42
[24] (2007) 37 Fam LR 461; FLC 93-345; [2007] FamCA 1246
[25] (2006) 36 Fam LR 422; FLC 93-286; [2006] FamCA 1346
The evidence of both parties is that X has a warm and loving relationship with each parent and enjoys spending time with them. She submitted that the evidence was clear that relocation to Adelaide would have the great likelihood of there being a deterioration in any meaningful relationship between X and her father. Given the Mother’s concession that she would remain in Sydney if X were not permitted to relocate, there was no converse risk of the child’s relationship with the Mother deteriorating if the Father’s proposal were accepted, given that the Mother would continue to live in Sydney, thereby ensuring the child had a meaningful relationship with both parents and indeed extended family members in Sydney.
As to the views expressed by X to the family consultant, it was submitted that X was an 8 year old girl at the time who could not have the capacity to comprehend what it would mean for her to be relocated to Adelaide and the impact that that would have on her relationship with her father, brother, step-mother and extended paternal and maternal family, most of whom live in Sydney. More so, any such wish expressed by X could not be given any weight given the admission by the Mother that she had sold the idea of moving to Adelaide prior to advising the Father of the proposed move.
Ms Kennedy submitted that it was notable that the reasons given to X for her view were (1) a new school without a particular student who had been bullying her, (2) cheaper lollies, and (3) an actual house with a chance to paint and decorate it the way she would like. It was submitted that it was unsurprising that a child of this young age, bonded to both the Father and the Mother, would express conflicting wishes in terms that she did not wish to relocate as expressed to the Father and some desire to relocate to Adelaide as expressed to the Mother.
It was submitted that the child has a significant and loving relationship with the Father and reference was made to a psychological report by one Ms R, psychologist. Both the Father and the Mother, from the child’s birth, have very much shared all aspects of the child’s general care and supervision and the child had spent considerable time with both the Father and the Mother following separation. It was submitted that the nature of the child’s relationship with her father, brother and step-mother, as well as wider paternal and maternal family, would reduce as a result of the relocation.
The Mother’s proposal she submitted, would allow for limited time for the child to spend in Sydney which must reduce the overall time the child could spend with the Father and severely impact on the time that the child spend with the brother, step-mother and wider paternal family and indeed the maternal family. It was submitted that if the Mother were to move to Adelaide with the child, the child would lose the opportunity to experience the love, care and guidance of her father. Whilst the long‑term impact of this would be difficult to predicate, it had the very real risk of diminishing the relationship between the child and her father and indeed her brother, stepbrother and wider family. It was submitted that the relocation would create in the child a real sense of loss about her father, particularly having regard to her emotional attachment to him.
Counsel for the Father was critical of the Mother, noting that her proposal to relocate to Adelaide with the child was a decision which the Mother had made without appropriately considering the long‑term consequences of the move in terms of the child’s general wellbeing and relationship with the Father and noted there were many disadvantages of allowing the move as put to the family consultant.
Thus, it was submitted that the Court would be concerned about the long‑term consequences of the child moving to Adelaide in circumstances where the Mother had not adequately considered the consequences of such a long-term move, given that the child was at the time only eight years of age and given the child’s relationship with her father and brother.
It was contended that allowing the child to relocate to Adelaide would be more likely to lead to further litigation in terms of compliance with orders which would need to be put in place to foster and maintain a good relationship between the Father and the child following any such move. It was submitted that, as the family consultant stated, that it was not a matter of so much complying with the orders of the Court but the spirit of the orders.
It was submitted that the Father’s proposal for the division of time in the circumstances was more child focused than that of the Mother, and that his proposal was the most practical one to serve the child’s best interest, whilst the Mother’s proposal was neither practical in terms of the significant travel that the child would be required to commit to for the purpose of spending reasonable time with the father. It was further submitted that the Mother’s orders were not practical as it may have exposed the child to further stress or anxiety of travelling to Sydney on a regular basis.
The evidence suggested that the communication between the parents was reasonably good following separation but appears to have deteriorated over time and particularly after the Mother’s decision to relocate to Adelaide. The Mother was criticised for not attempting to improve her communication with the Father since the proceedings have been initiated. On the other hand, the orders sought by the Father are likely to lead to the lowest negative impact on the child as the proposed orders are more aligned with such parenting arrangements as have existed prior to separation and post separation.
It was submitted in respect of the Mother’s proposal that answering the two questions posed in MRR & GR[26]: (1) it would be in the child’s best interests to spend substantial and significant time with each parent; and, (2) it would not be reasonably practical to make the order for relocation. At the same time, both questions could be answered in the affirmative in respect to the Father’s proposal and the court therefore has the power to make the orders proposed by him.
[26] supra
It was submitted that the appropriate orders to be made as would be in the child’s best interests would be to refuse the Mother’s application to relocate to Adelaide and to make the orders sought by the Father for the continuing parenting arrangements in Sydney. On the other hand, it was submitted by counsel for the Mother that where there were issues of credit the Court should accept the evidence of the Mother over that of the Father. The Father’s evidence was criticised for consisting of sweeping generalisations and whilst were admissible should not be given much weight.
On the other hand, the Mother’s evidence was described as consistent, forthright and unwavering. Where it was appropriate to make concessions she did so, for example, that the Father loved X or that she could have handled communicating the relocation to the Father better. Counsel for the Mother also set out the legislative pathway set out in Part VII of the Family Law Act. He submitted in respect of matters under section 60CC of the Act that the family consultant did not make a recommendation about where X should live.
In terms of X’s relationship with each parent, the evidence supports the contention that both parents have a meaningful relationship with her and that the ultimate orders proposed by the Mother would see X spending much the same time with her father that she currently enjoys given that the Mother’s proposal includes extending weekends where they fall on a long weekend, nine days of the short school holidays and almost four weeks during the Christmas holidays.
Further, the Mother was the child’s primary carer and an arrangement where she was comfortable with where she was living would enhance a meaningful relationship with her. The Mother’s evidence is clear that she would not be as comfortable in Sydney. Further, there were no allegations of abuse, neglect or family violence by either party.
The family consultant noted in the Family Report that X said that the current amount of time that she spends with the Father was good, and if she continued to live in Sydney she would like to continue spending the same amount of time with him. The message that the child wanted to give to the judge was, “I would really like to go to Adelaide”, and, “I want to live with Mum most of the time”. Mr Schonell submitted that whilst it was conceded that X was only eight years of age at the time weight should be given to her views.
Further, the Father’s evidence was that he has always had a very strong and loving bond with X. The bond has survived, notwithstanding periods where he had irregular contact with the child, on some occasions for weeks on end with no contact. The Father also described A’s relationship with X as a close, loving bond. This was accepted by the Mother.
The family consultant reported that X did not have a close relationship with Ms A, the Father’s partner, which would appear to contrast markedly with the Father’s evidence that X had formed a close relationship with Ms A. X has a loving, caring and close relationship with her mother. Given the Mother is the primary carer, her wellbeing is important to X’s wellbeing. X also has a positive perception of her relationship with Mr A, describing him as “fun and entertaining”.
It was submitted that the Mother recognises the importance of the Father in X’s life and has at all times facilitated and encouraged a relationship between them. This is supported by the Father’s own evidence. Whilst it was conceded that there may be some reduction in X’s time with the Father, this could be made up for during the holiday periods. X has in the past experienced extended absences by her father and yet has maintained a strong and loving bond with her father. He would have less opportunity to be involved in her schooling; however, it was the Mother’s experience that in the past he had little involvement in any event.
Mr Schonell submitted that neither the practical difficulty nor expense of a move to Adelaide was an issue. The child has undertaken the journey as an unaccompanied minor and enjoyed it. The evidence was that return fares were approximately $300, which was an insignificant sum on a monthly basis if the Court were to make orders consistent with those sought by the Father if X were permitted to relocate.
It was further submitted the Mother was capable of meeting X’s needs and has done so since she was born. Her ability to care for X was not called into question. There was a concern about the Father’s ability to provide consistently and regularly for the child’s needs both emotionally and intellectually, argued that historically that this has not been the case. It was submitted that the child needs consistency and reliability and this has always been provided by the Mother.
It was also submitted that a move to Adelaide would provide financial security for the Mother and her partner and ultimately X and the Mother’s new baby daughter, Y. The wellbeing and happiness of the Mother, given she is the primary carer of X, is of particular significance.
The conclusion was, as counsel submitted, that the Mother’s fundamental human right to choose where she lives as delineated by the High Court of Australia in U & U[27] should not be subservient to the position of the father where:
a)the father is not the primary carer;
b)does not seek to be the primary carer; and,
c)recognises the importance of the mother as primary carer, yet seeks to dictate where she lives.
[27] (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; FLC 93-112; [2002] HCA 36
It was further submitted that when looking at section 60CC and what is in the child’s best interests combined with the Mother’s right of freedom of movement, the Court would find that X should be permitted to relocate to Adelaide.
Counsel
Counsel for both parties have accurately set out the matters which the Court is required to consider. The best interests of the child, of course, are the paramount consideration. The Court is assisted by the provisions of subsection 60CC(2) and CC(3) in determining what is in a child’s best interests. I have considered the question of parental responsibility as set out in section 61DA of the Family Law Act, and it is readily apparent that both parents concede that the parties should have equal shared parental responsibility for their daughter.
This, of course, enlivens the matters set out in section 65DAA of the Act, as the Court is then required to consider first whether it would be in the best interests of the child and reasonably practicable for there to be an order for equal shared care and if the Court were not to consider this to be the case, whether there should be an order for the child to spend substantial and significant time with each parent.
This is a case where the Father really does not seek to be the primary carer of the child. The Mother has been the child’s primary carer certainly since separation and wishes to remain so. The Father seeks to have substantial and significant time with the child and the Mother’s proposal offers just that. The main sticking point between the parties is the Mother’s desire to relocate with the child to Adelaide where she can live with her partner, Mr A.
She has a child by Mr A, a young daughter and she wishes her new family unit to be a combined unit. There is much to be said for this view. Whilst it will cause the Father some understandable distress, in my view, the time is fast approaching for the decision to be made to permit the Mother to relocate the child’s residence to Adelaide so that the child can live with the Mother, the Mother’s partner, Mr A, and the child’s half-sister, Y.
The reasons for moving to Adelaide, whilst they are described as financial, are not unreasonable; far from it. It is a serious consideration and I accept the evidence of the mother that there is less expense in living in Adelaide than in Sydney – indeed, I think I can take judicial notice of that fact – and that by living in an environment which is less expensive to live, the Mother will be able to give the child a greater degree of material comfort in life.
There is nothing intrinsically wrong with living in Adelaide. It is a large city in Australia and many families live there. The only difficulty with Adelaide is that it is not where the child’s father lives or wants to live or says that he can comfortably live. His reasons for not moving to Adelaide are valid and understandable. He is in a relationship with Ms A whose work is in Sydney. His own situation is that he feels he cannot move to Adelaide and those views should be respected.
What does concern me, however, is that a move from one city to another, which would involve enrolling the child in a new school, will cause some disruption to this child’s life. It does not appear to me to be in the child’s best interests for her to move from a school in one state to a school in another state in the middle of a school term, or even during a school year.
If there is to be a move which would involve a change of schools it would be far preferable for X to complete the school year in Sydney and then commence a new school year in Adelaide. In my view, that would cause the child the least amount of disruption as far as moving schools is concerned. There is certainly no evidence to indicate that primary school education in Adelaide is in any way inferior to that offered at the school in Sydney where the child currently attends.
It is significant that the child will move. I note her age. She is now nine years of age. She will attain the age of 10 years in (omitted). I am of the view that the Family Report shows that the child is of such an age and state of maturity that the Court should give some weight to her views, and I propose to do so. She said that she wants to move to Adelaide and that she wants to live with her mother. In my view, I will give those matters weight but it is not the child’s views alone which will determine this case.
It is significant that this little girl will attain the age of 10 years on (omitted) this year. Once she is of that age, in my view, she would be of sufficient maturity that she could cope with the move from a city in one state to a city in another. She is most probably of such an age and state of maturity that she could cope with it now.
However, I have expressed reservations about the desirability and the best interests of the child in such a move taking place during a school term or even during the school year. It would be preferable for the move to take place at the end of the year once the child is aged 10 on (omitted) and when she can start the New Year at a new school.
It is for those reasons that I propose to order that the Mother is permitted to relocate the residence of the child, X, from the state of New South Wales to Adelaide in the state of South Australia with effect from 28th December 2016. I have prepared orders which will remain in force until 27th December 2016, providing for the time that X is to spend with her father.
I am of a view that there should be a slightly longer period of time spent by the child with her father on her birthday on (omitted). The interim orders provided for two hours. In my view, on this occasion it should be three hours. I am also of the view that Christmas for the child, which will be her last Christmas living in Sydney, should be spent with her father so that she will spend time with her father from 10:00am on Christmas Day until 12 noon on Boxing Day.
From after 28th December there will be separate parenting orders which do provide for school holiday time of nine days during the school holidays, for extended school holiday time from 2nd January to 22nd January in each year with the Father, and for the child to spend the fourth weekend of the month in Sydney with her father from after school on the Friday until 7:00pm on the Sunday, and also on the weekend that includes Father’s Day from after school on Friday until 7:00pm on the Sunday. There will also be orders in respect of telephone calls, FaceTime, Skype, and other ancillary orders.
In my view, whilst there will be some delay in the relocation taking place, that will allow ample time for the parties to consider the new arrangements and allow ample time for arrangements to be made for a move to Adelaide and for the child to enter a new school so that she may start her new school and her life in Adelaide at the beginning of 2017. I will order accordingly.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 2 June 2016
Key Legal Topics
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Family Law
Legal Concepts
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Consent
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Costs
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