Boyd and Sage (No 2)
[2020] FamCA 692
•18 August 2020
FAMILY COURT OF AUSTRALIA
| BOYD & SAGE (NO. 2) | [2020] FamCA 692 |
| FAMILY LAW – INTERIM PARENTING – where child returned from Scotland pursuant to 1980 Hague Abduction Convention – where the taking parent (mother) proposes that she and the child reside an hour’s drive from the school previously attended by the child – where father seeks that mother be required to reside in reasonable proximity of child’s former school and the child return to that school FAMILY LAW – RESTRAINT ON FREEDOM OF MOVEMENT – where restraint on a primary carer’s freedom of movement can be effected directly by injunction pursuant to s 114(3) of the Family Law Act 1975 or indirectly by a parenting order – where exercise by the court of both powers is limited to circumstances where the best interests of the child require that the primary carer be so restrained FAMILY LAW – INTERIM PARENTING – where the court accepts the evidence of the family consultant that, optimally, the child should return to her previous school and the mother and child should live in reasonable proximity to the school – where mother’s proposal means that the child will have less direct contact with the father - where court is satisfied that child’s best interests can still be accommodated on mother’s proposal – where orders made in child’s best interests does not necessarily equate to the best available outcome for the child FAMILY LAW – INTERIM PARENTING – where best interest of the child as the paramount consideration does not preclude the court taking into account the legitimate wishes, rights and freedoms of the primary carer FAMILY LAW – INTERIM PARENTING - where parents are not required to re-enrol the child at her previous school and no restraint or conditions are imposed on the child or the mother |
| Convention of 25 October 1980 on the Civil Aspects of International Child Abduction Family Law Act 1975 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth) |
| A & A: Relocation Approach [2000] FamCA 751 Boyd & Sage [2020] FamCA 482 Godfrey & Sanders [2007] FamCA 102 M & S [2006] FamCA 1408 Sampson and Hartnett (No 10)(2007) FLC 93-350 |
| APPLICANT: | Ms Boyd |
| RESPONDENT: | Mr Sage |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Lonergan |
| FILE NUMBER: | MLC | 5782 | of | 2020 |
| DATE DELIVERED: | 18 August 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 11 August 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Allen |
| SOLICITOR FOR THE APPLICANT: | Knight Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Robinson |
| SOLICITOR FOR THE RESPONDENT: | Kennedy Partners |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Ms Hutchings |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: | Victoria Legal Aid |
Orders
IT IS ORDERED THAT
The mother inform the father in writing of the current residential address of the child X born … 2013 and advise the father and keep the father advised in writing of any change to X’s residential address as soon as possible but, in any event, not less than seven clear days prior to any such change
The mother forthwith provide to the independent children’s lawyer a copy of any lease of residential property entered into by her.
If issues arise with the implementation and/or operation of these Orders, including but not limited to issues of contravention, and those issues cannot be resolved by agreement, any application may be listed before me for directions in accordance with arrangements made with my associate, …, ….
IT IS FURTHER ORDERED, BY CONSENT, THAT UNTIL FURTHER ORDER:
The parents have equal shared parental responsibility for the child, X.
X live with the Mother.
X spend time with the Father as follows:
(a) Each alternate weekend from the conclusion of school (or 3:30 pm if X is not in physical attendance at school) on Thursday until the commencement of school (or 5.00 pm if X is not in physical attendance at school) on Monday commencing 13 August 2020;
(b) Each alternate Thursday from the conclusion of school (or 3:30 pm if X is not in physical attendance at school) until the commencement of school (or 5.00 pm if X is not in physical attendance at school) on Friday commencing 20 August 2020;
(c) One half of X's school holidays on dates and times as may be agreed upon between the parties in writing but in default of agreement, the first half;
(d) On the Fathers’ Day weekend from 5:00 pm on Saturday until the commencement of school (or 5.00 pm if X is not in physical attendance at school) on Monday;
(e) On Christmas Day in each year as follows:
(i)From 4:00 pm on Christmas Eve until 2:00 pm on Christmas Day in 2020 and alternating yearly thereafter; and
(ii)From 2:00 pm on Christmas Day until 4:00 pm on Boxing Day in 2021 and alternating yearly thereafter;
(f) Such further or other time as may be agreed upon between the parties in writing.
X’s time with the Father pursuant to paragraph 6 (a) and (b) of this Order be suspended during all Victorian gazetted school term and long summer school holidays and recommence after the holidays in the same cycle as if the holidays had not occurred.
X’s time with the Father be suspended at the following times to enable X to spend time with the Mother if X is not otherwise in the Mother’s care:
(a) On Christmas Day in each year as follows:
(i)From 2:00 pm on Christmas Day until 4:00 pm on Boxing Day in 2020 and alternating yearly thereafter;
(ii)From 4:00 pm on Christmas Eve until 2:00 pm on Christmas Day in 2021 and alternating yearly thereafter; and
(b) On the Mothers Day weekend from 5:00 pm on Saturday until the commencement of school (or 5.00 pm if the X is not in physical attendance at school) on Monday; and
(c) Such further or other time as may be agreed upon between the parties in writing.
Save as otherwise agreed between the parents in writing, changeovers take place at school on days X attends school and otherwise:
(a) If the Mother moves her residence to the north-eastern suburbs of metropolitan Melbourne, all changeovers take place at a public place, to be agreed upon in writing, approximately midway between the parties' respective residences but in default of agreement, the Father collect X from the Mother's residence at the commencement of his time and the Mother collect X from the Father's residence at the conclusion of the Father's time;
(b) While the Mother resides in Suburb G, changeover take place at the service station on C Street.
Save as otherwise agreed between the parents in writing, the Father communicate with X by telephone or FaceTime each alternate Wednesday and Saturday between 6:00 pm and 6:30 pm when X is in the Mother’s care with the Father to place the call to the Mother’s telephone and the Mother to encourage and facilitate the communication.
Save as otherwise agreed between the parents in writing, X communicate with the Mother by telephone or FaceTime each alternate Saturday between 6:00 pm and 6:30 pm when X is in the Father’s care with the Mother to place the call to the Father’s telephone and the Father to encourage and facilitate the communication.
The Mother do all such acts and things necessary to continue to attend on:
(a) The Mother’s treating psychiatrist, Dr E, or Dr E’s nominee; and
(b) The Mother’s treating psychologist, Dr F, or Dr F’s nominee (“the mother’s treating mental health practitioners) with such frequency and for such duration as the mother’s treating mental health practitioners recommend.
The Mother comply with all lawful recommendations made by her treating mental health practitioners including but not limited to taking all medication as prescribed.
Both parties be and are hereby restrained by injunction from:
(a) Abusing, insulting, belittling, rebuking or otherwise denigrating each other either directly in person, or in writing, or in the presence or hearing of X and from knowingly permitting any other person to do so; and
(b) Discussing these proceedings either directly or in the presence or hearing of X and from knowingly permitting any other person to do so.
The parties do all things necessary to facilitate X's attendance upon a paediatrician agreed between the parents and failing agreement as appointed by the Independent Children's Lawyer for the purpose of a paediatric assessment and report and the parties each pay one half of the cost of the assessment and report.
Save as otherwise agreed between the parents in writing, the parents communicate about X in writing via SMS text message, save in the case of an emergency when the parents shall communicate by telephone.
The parents keep each other informed of their mobile telephone numbers in writing and notify each other of any change 24 hours prior to the change if practicable and otherwise as soon as possible after the change.
The parents keep each other informed of the following in writing:
(a) All serious illnesses, accidents, medical conditions, or hospitalisations with respect to X whilst she is each parent’s respective care; and
(b) All medication prescribed to X and/or all medication administered to X whilst she is in their respective care in the 24 hours prior to any changeover, including the date and time the medication was administered; and
(c) The names and contact details for X’s treating medical, dental, and other allied health professionals.
Both parents be at liberty to:
(a) Obtain school reports, school photographs, correspondence, newsletters, and reports from X’s school at the requesting parents’ expense;
(b) Communicate with staff at X’s school in such manner as the school prescribes and expects;
(c) Communicate with X’s treating medical practitioners in such manner as the practitioners prescribe and expect; and
(d) Attend all school events (including parent teacher interviews) and extra curricula activities pertaining to X parents are ordinarily invited to attend.
As soon as practicable, both parents do all such acts and things necessary to attend and complete an approved Parenting After Separation Course and provide a certificate of completion to the other parent and to the Independent Children’s Lawyer.
IT IS FURTHER ORDERED BY THE COURT THAT:
The mention listed for Thursday 19 August 2020 be and is hereby vacated.
This matter otherwise be listed for mention before me on Thursday 18 March 2021 at 9.00 am.
Pursuant to s.65DA(2) and s.62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Attachment A hereto and these particulars are included in these orders.
AND THE COURT NOTES:
A.This matter remain in her Honour Justice Bennett’s docket.
B.The parties intend that Orders 6(a) to 6(d) remain in full force and effect for the duration of X’s remote learning and they shall review Orders 6(a) to 6(d) immediately prior to X’s return to on-site learning.
A.The parties seek that this matter be listed for mention and directions in March 2021 to canvass the trajectory of this matter.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Boyd & Sage has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: MLC 5782 of 2020
| Ms Boyd |
Applicant
And
| Mr Sage |
Respondent
And
Independent Children's Lawyer
REASONS FOR JUDGMENT
Introduction
These proceedings concern X who is seven years old and these reasons relate to the discrete issues of the school at which X should be enrolled and whether there is to be any restriction on where the mother and X should reside. Apart from these issues, all matters dealt with in the orders set out at the commencement of these reasons are matters upon which the parties have agreed.
Relevant history
The mother and father began living together in 2012 and separated on a final and permanent basis in 2017. The father is 31 years old and engaged in full-time employment as a tradesman. The mother is 32 years old and is not currently employed outside the home. The mother and X are currently living with her parents in Suburb G and the mother proposes to obtain private rental accommodation in the Suburb G area. The mother deposes to having been diagnosed with Obsessive Compulsive Disorder manifesting “mainly as a germ phobia”.
After separation the father continued to live in the Suburb H/Suburb D area and the mother was living in rented accommodation in Suburb J. The father spent time with X although, he says, not as much as he wanted due to the mother’s restrictive attitude to time between himself and X. For her part, the mother says that the father could not care for X appropriately and had subjected the mother to family violence.
On 26 December 2019, the mother unilaterally removed X from Australia and took her to Scotland using a British passport which she had obtained unbeknownst to the father and without his consent. The father was aware of the mother’s plans to visit Scotland and the mother had agreed that X would remain in Australia in the care of the father. The mother deposes that: [1]
[11][…] when I was leaving Australia, I was advised by Border Control that, as X was leaving the country on a British passport, she would not be able to return on this alone and would require an Australian passport, which we did not have.
[12]Due to this, X and I continued to travel to Scotland and, upon arrival, I decided not to return to Australia.
[1] Affidavit of Ms Boyd dated 4 June 2020 [111]-[12].
Once the father was notified of X’s whereabouts, in Scotland, he was prepared to tolerate her staying there until late January 2020. However, when the mother failed to return X as agreed, the father commenced the procedure for a return of X to Australia pursuant to the Family Law (Child Abduction Convention) Regulations 1986 which implement into Australian law the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the 1980 Convention”).
The return application was initiated in the High Court in Scotland on 7 May 2020. The mother did not oppose the application. The Judge ordered that the child be returned to Australia by 21 May 2020. The Judge adjourned the matter to 28 May 2020 so that he could be satisfied that there had been no difficulties with X’s return to Australia and noting that, if the hearing proved to be unnecessary, it could be administratively discharged. The mother did not return X as ordered and the Scottish proceedings were adjourned to 4 June 2020.
The mother filed an application initiating proceedings in this Court on 4 June 2020 seeking urgent interim parenting orders ex parte the father, to allow X to remain in Scotland until “it is safe to travel to Australia” due to the COVID-19 pandemic. The mother claimed that she and X attempted to board a flight to Australia in January 2020 but that they were “turned away due to the child not having a right of entry into Australia.”[2]
[2] Covering letter for urgency filed by the mother on 4 June 2020.
I dealt with the mother’s application on 4 and 5 June 2020, ordered that X be returned forthwith to Australia and made numerous other orders in anticipation of X’s return. In the course of discussions there was the following interchange between myself and the lawyer for the mother:[3]
[3]Transcript in Confidence, 5 June 2020, 20-22, 21-15.
MR KNIGHT: […] That’s another issue that, I think, the parties need to – perhaps that can be discussed at mediation, your Honour, because when the mother comes back she will need to look at, potentially even now – to look at housing – accommodation for herself – for the child and the like.
HER HONOUR: Well, how is she going to do that? I mean, she can do that now.
MR KNIGHT: In relation to - - -
HER HONOUR: She will be as just as – it will be just as easy for her to do it from Scotland as it will be to do it from quarantine.
MR KNIGHT: Yes. Sorry, your Honour. I indicated that she can do that probably now. Whilst she’s in Scotland she can look for rentals.
HER HONOUR: Yes. So I think that by the time that X comes back to Australia she should be looking forward to going back to school. Now, where was she at school before? Does anyone mind if I ask the father?
MR KENNEDY: No. Please ask .....
MR KNIGHT: No.
HER HONOUR: Mr Sage - - -
MR SAGE: She – she – she was – she was going to a school about 10 minutes down the road, just in Suburb H Primary.
HER HONOUR: And it’s called Suburb H Primary?
MR SAGE: Yes, your Honour.
ORDERS DELIVERED
MR KNIGHT: Thank you, your Honour.
HER HONOUR: All right. So they should expect that she is coming. So get on to the school and say that she may be coming back, because it would be nice if she has a place to go to as soon as she can.
MR SAGE: Yes, your Honour.
HER HONOUR: All right. What are the rentals like in Suburb H? What are the abutting suburbs to Suburb H?
MR SAGE: Previously, Ms Boyd was residing in Suburb J which is - - -
HER HONOUR: Is that near Suburb H?
MR SAGE: It’s, yes, within 10 minutes, your Honour.
HER HONOUR: Okay. All right. So it would be a good idea to be somewhere around the child’s school. What family does your client, Mr Knight, have here? Is it just this family, or does she have any family members of origin here?
MR KNIGHT: No. All family members of origin are back in Scotland. So it’s just this family.
HER HONOUR: Okay. So there’s no other suburb of Melbourne that she would want to find herself near?
MR KNIGHT: Not that I am instructed at this stage, no.
HER HONOUR: Okay. All right.
MR KNIGHT: That could change, your Honour, based on my instructions, but at the present moment, with me appearing before your Honour, those are my instructions.
HER HONOUR: One of the things that would be unfortunate is if your client decided to move somewhere and it looked later like she had moved there in order to avoid the father, but then tried to rely on the fact that with limited resources she had signed a lease out of which she could not get and she had to go and live there. So probably best not to sign a lease before we know where she will be living.
MR KNIGHT: Yes, your Honour.
HER HONOUR: Freedom of movement is important, but you can’t live – she shouldn’t be coming back to Melbourne thinking she can live anywhere if that’s going to have implications for the daughter
MR KNIGHT: Yes, your Honour. I will explain that to my client.
HER HONOUR: - - - because it might end up just having implications for her, doing a lot of driving.
MR KNIGHT: Yes, your Honour.
My reasons for decision on 5 June 2020 appear as case neutral citation, [2020] FamCA 482.
The mother was ordered to send the father passport photographs of X, to facilitate an application by him for an Australian passport. She did not do so for weeks and alleges that it was not possible to get a passport photograph taken in Scotland due to pandemic restrictions.
The mother and X did not return to Australia until 20 or 21 July 2020. They entered Australia at Sydney and were required to quarantine in Sydney for 14 days. The father disputes that it was necessary for the mother and X to enter Australia through Sydney as there were flights coming into Melbourne.
At the hearing on 5 June 2020, I had discussed in favourable terms the father communicating with X electronically and with small gifts on a daily basis during any period of quarantine. The mother did not permit daily communication between the father and the child. The mother alleges that the child did not want to speak with the father daily. I understand there is reference in correspondence to daily communication not being a priority or an obligation because it was not reflected in orders of the Court. The evidence on this matter is not complete and I make no finding in this regard, at this stage.
The mother was ordered to surrender X’s passports to her solicitors and her solicitors were to lodge them with the Court upon her return to Australia. The mother has failed or neglected to do so.
Upon being released from quarantine, the mother and X made their way to Melbourne and, I gather, went to stay with the maternal grandparents in Suburb G. The mother unilaterally enrolled X in a school in the Suburb G area.
It is agreed that the journey by car from the father’s residence in Suburb D to Suburb G or from Suburb H primary school to Suburb G is approximately an hour.
The mother and the father have been assessed by Dr B, psychiatrist. His report is dated 28 July 2020 and was in evidence before me. [4] It does not impact on the issue of where the mother should live or where X should attend school.
[4] Annexure A to the Affidavit of Dr B affirmed 10 August 2020.
Both parties have a history of mental health difficulties, although the mother’s is more current than the father’s. Apart from the psychiatric assessment of both parents, which was arranged by the Independent Children’s Lawyer, each parent was required to file and serve any evidence of a treating psychologist or like professional within a prescribed time. The mother has a treating psychologist of long standing, who treated her before she went to Scotland and has or will resume now the mother is back in Australia. The mother did not file any evidence by that practitioner.
It was not stated in the report or contended on behalf of the mother that her parenting capacity would be impaired if she lived near Suburb H Primary School or enhanced if she lives near her mother in Suburb G and X goes to school locally.
Mother’s position
The mother says that she wants to remain close to her family for support. The maternal grandparents live in Suburb G and the mother’s brother also lives in Suburb G. As indicated, prior to leaving for Scotland, the mother resided in Suburb J.
The mother asserts, through her counsel, that she cannot afford to live in Suburb H or in Suburb J and that the cost of obtaining rental accommodation is much cheaper in Suburb G. In spite of having sworn two affidavits since her return to Australia, the mother provides no evidence of the comparable costs of accommodation. Counsel for the mother informed the Court that his client had been offered a lease of a private premises in Suburb G at $1200 per month and that she and X would be able to keep their large dogs with them in the new accommodation. Again, there is no evidence in this regard.
The mother says that she has a poor rental history in Suburb J. I queried why a poor rental in history in Suburb J would not also impact her prospects of obtaining private rental accommodation in Suburb G. Counsel for the mother said that the property on offer is handled by an estate agent through whom the maternal grandmother rents and that the estate agent is, thereby, prepared to recommend that the property be leased to the mother. Again, there is no evidence in this regard.
The mother asserts that it is very important for her to have the support of her family. She refers to the father having deprived her of that support for the six years of their relationship and post separation. As mentioned, the paternal grandparents live in Suburb G. However, the mother also says that her parents propose to relocate to Scotland at the end of this year or as soon as the restrictions around COVID-19 are eased and they are able to do so. It follows that if the mother and X settle in Suburb G now, they will not have any family support once the maternal grandparents have left Australia to reside in Scotland. The mother’s comment in this respect was that she is not certain when her mother will, in fact, be able to leave Australia.
The mother’s case is that X was previously bullied at Suburb H Primary School and that she is enjoying her new school in Suburb G. The father denies that the mother had told him that X was bullied at school in Suburb H.
Father’s position
X attended Prep and Grade One at Suburb H Primary School. The father’s position is that X should return to that school. He seeks that the mother be required to reside to the northern suburbs to be in proximity to the school. However, if I’m not prepared to order the mother to reside in a particular location, he still seeks that X attend Suburb H Primary School.
The father’s position is that, in the event that X remains at school in Suburb G, he will be able to manage the travel in order to spend time with her on each alternate weekend but not for the overnight time on Thursday of the intervening week. In the intervening week, the most he would be able to do would be an evening meal in Suburb G. It follows that X’s ability to spend time with the father is directly impacted by where X goes to school and where X and the mother reside.
Children and parents issues assessment by Family Consultant, Ms K
Pursuant to an Order made on 5 June 2020, a s 11F children and parents issues assessment was undertaken by family consultant, Ms K. Ms K interviewed the mother, father and X on 3 July 2020. All interviews were conducted electronically. The mother and X was still in Scotland. The report is dated 20 July 2020.
In the report and X spoke excitedly of returning to Australia and being able to see her father. Ms K notes [17] that “X expressed excitement about coming back to Australia, as she said “I am going to see all my friends again, I can’t wait to see them, especially Y,” who was her best friend at her school in Suburb H. X said “I can play with my toys in Australia and I was born there and I get to see my dad as well.”
As part of Ms K’s evaluation, she states:-
54. The parental communication has deteriorated, particularly since Ms Boyd unilaterally went to Scotland with X. Post separation and with the assistance of mediation in February 2019, the parents agreed to a parenting plan for X to spend significant time with her father. This arrangement was not consistent which may have also impacted on X’s relationship with her father. The parents may be assisted by attendance at Family Dispute Resolution to address the issues regarding their communication and future parenting arrangements for X.
55. X is seven years of age. Prior to leaving Australia she is reported by both parents to have had a positive and meaningful relationship with her father. X was spending time with her father, which appeared subject to what Ms Boyd believed was in X’s best interests and was therefore not always consistent. For X if she is to continue to enjoy a meaningful relationship with her father, consistency in time spent and established routines that also provide stability are paramount. Since December 2019, X’s relationship with her father has occurred through What’s App and other social media platforms twice a week.
56. At X’s age, developmentally she is likely anxious to want to show each parent how much she loves them which may also result in perhaps saying different stories to each parent. This period is also characterised by intense sadness, powerlessness and pain as a child struggles to make sense of the parental conflict and try to fix the problems of her parents. X’s reported regression in toileting at school and home, may be symptomatic of the stresses involved in the parental conflict.
57. This is a relocation case which is particularly difficult as there are few “good” options available, compromise solutions impossible and losses for all inevitable. X needs the opportunity to have meaningful relationships with each of her parents. Although she has been in communication with her father via telephone and social media and she is of an age when she can manage this, electronic devices are not an ideal substitute for an ongoing and meaningful relationship that has been well established.
Ms K’s recommendations include [59]: “When X does return to Australia it will be important she spends consistent time with her father as soon as practicable.”
None of the parties sought to cross examine Ms K. There were content for Counsel for the Independent Children’s Lawyer to speak with Ms K and ask her opinion on where X should go to school and the location at which the mother should be ordered or encouraged to reside. The family consultant’s response was that X would be best served by returning to school at Suburb H Primary School and that the mother should reside in reasonable proximity to the school. My impression is that the family consultant detects the potential for X’s relationship with the father to be undermined by the mother or at least to be undervalued – these are my words. Counsel for the Independent Children’s Lawyer said that the Ms K referenced “alienation”.
I am assisted by Ms K’s assessment and the matters which she relayed to the court and the parties through counsel for the Independent children’s lawyer.
Discussion
The issue here is whether X’s best interests require her and the mother to reside in the northern suburbs of Melbourne (which it is the mother’s strong preference not to do) or for X to attend Suburb H Primary School.
I asked the parties to address me on the practicability of the mother and X residing where she wishes and X being required to attend school in Suburb H. Each addressed me in terms of their own proposal. In practical terms, X would face an hour-long drive to and from school each day. X is learning remotely at the moment and there may not be many school days between now and the end of the year. However, if it is too burdensome for the father to be able to maintain the travel for the spend time arrangements agreed upon, I must assume that it is going to be similarly burdensome for X to be living far away from school. Notably, the mother could not countenance living anywhere between Suburb D and Suburb G so as to make both suburbs reasonably accessible to X.
I am satisfied that it is not practicable for X to attend Suburb H Primary School if she and the mother live in Suburb G. That is because:
a)The parents would be living at least an hour’s drive from each other;
b)Suburb G is an hour’s drive from Suburb H Primary School;
c)I have no evidence of the parents’ current and future capacity to implement such an arrangement but I have a body of evidence from which I can conclude that the mother, who is the primary carer, is not in favour of it working;
d)Burdensome travel for the mother is likely to also be a burden for X;
e)The parents’ current and future capacity to communicate with each other and resolve difficulties that might arise with such an arrangement is non-existent or very limited.
As with all parenting decisions, the paramount consideration for the court is the best interests of the child. [5] This does not mean that X’s best interest is the only consideration but it is the most important consideration. In a case of this nature, I must also consider that the mother has valid rights, expectations, legitimate interests and desires. I should impact the mother’s legitimate interests and expectations only to the extent necessary to secure X’s best interests (see A & A: Relocation Approach [2000] FamCA 751) and then in a way which preserves for the mother a choice about how she wishes to parent X. That is, I cannot require the mother to live in the Northern suburbs of Melbourne per se, but I could specify that X must reside in the Northern suburbs or that X reside in the primary care of the mother providing that the child and the mother reside in the northern suburbs.
[5] S.60CA provides that, in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
An order which directly or indirectly determines where a child will reside is not necessarily a parenting order. In Sampson & Hartnett (No 10) [2007] FamCA 1365, the Full Court found that an order compelling a parent to relocate was not a parenting order and, therefore, not subject to the paramountcy principle in s 60CA of the Family Law Act 1975 (“the Act”). The Full Court was satisfied that there is power to restrain a parent’s freedom of movement by injunction. The majority of the Full Court stated:[6]
“[…] We conclude that there is power under section 114(3) of the Act to enjoin a parent from relocating or to relocate, providing that the injunction is no more than is necessary to secure the best interests of a child. The proper exercise of that power is likely to be rare because:
(i) the location of the child will usually be the critical factor, leaving the parents to the choice of their roles; and
(ii) in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will not play that role, if the child is relocated or not, the Order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the Order will be coercive in nature and be the equivalent of forcing that parent to discharge a role in circumstances not about parents choosing.
[6]Sampson & Hartnett (No 10) [2007] FamCA 1365, 17 [58].
The father is not saying that, if the mother does not live in reasonable proximity to Suburb H Primary School, X should live with him. The spend time and interim residence arrangements are settled as between the parents and the Independent Children’s Lawyer, in the terms of the minute which they all seek that I make by consent. The agreed arrangement is that X will continue to reside in the primary care of the mother and spend time with the father at what amounts to substantial and significant time within the meaning of s65DAA(3) of the Act. In fairness, if the father did seek to become X’s primary carer so that she could attend Suburb H Primary School, he would be unlikely to succeed with that application on an interim basis in the circumstances of this particular case.
Section 60CC(2)(a) of the Act provides that a primary consideration when determining what is in the best interests of children is what is necessary to obtain “the benefit to the child of having a meaningful relationship with both of the child’s parents”. Given the parenting arrangements as agreed, I can safely assume that each parent acknowledges and accepts that it is to X’s benefit to have a meaningful relationship with the other parent.
In M & S [2006] FamCA 1408 at [72], Dessau J considered what a “meaningful relationship” was and concluded that a relationship may be meaningful even over distance:
[45]I am conscious that a long-distance relationship, with longer but less frequent time spent together, is inevitably different from a relationship where people live closer together with regular face-to-face contact. But it does not mean in itself that it cannot be meaningful. The likely impact of the relocation on close relationship with her father is integral to my decision in this case. It is important further her overall well-being and healthy development that she is able to enjoy their relationship, to experience his input into her upbringing, and to develop her own sense of identity through him and the paternal family.”
“Meaningful” in the context of s 60CC(2)(a) does not equate to optimal as Kay J observed in Godfrey & Sanders [2007] FamCA 102 (at [42]):
[33] The Act sets out in s60CC several matters for the court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.
Both M & S and Godfrey & Sanders were relocation cases, necessarily involving the move of a child to reside a substantial distance away from one parent. This case involves X moving suburbs to reside across town. Nonetheless, the principle that “meaningful relationship” does not have to be the best relationship that is possible between a child and the parent, applies to X.
The exercise of my discretion is also to be informed by such of the additional considerations as are set out in s 60CC(3) of the Act as are relevant.
I take into account X’s view[7] that she is looking forward to seeing her school friends, including Y. The family consultant’s evidence satisfies me that X has fond memories of Suburb H Primary School and her friends but X’s age and her dependence on her parents to maintain her friendship group precludes me from giving much weight to X’s views. The spend time arrangement will permit X to see her friends, if she still wants to, whilst she is in the father’s care. However, as time progresses and X does start to attend her new school and meet classmates face to face, I expect that Suburb H Primary School will be of less importance to her.
[7] S.60CC(3)(a)
Counsel for the mother submitted that X has settled at her new school. I do not regard X as being in any way settled in school in Suburb G that she has only attended that school for a few days as a remote student. She has never been to the school grounds and she has not met any of her classmates face-to-face nor her schoolteacher.
I have regard to the nature of X’s relationship with each parent.[8] The mother has been X’s primary carer. On the father’s case the mother has been unduly restrictive of X having a relationship with him. That said, X has been assessed as having a good foundational relationship with the father and one which the family consultant believes should now be consolidated by “having consistent time with her father as soon as practicable”. I give consideration to X’s relationship with the maternal grandparents. My impression is that the maternal grandmother is likely to be more important to the mother than to X. Prior to being taken to Scotland, X had lived in the northern suburbs and gone to school there. The mother speaks of being deprived of having a relationship with her family for the last six years from which I conclude that that X did not see much of the family members who lived in Suburb G. When the mother decided to remain in Scotland, her mother was in Melbourne.
[8] S.60CC(3)(b)
Section 60CC(3)(e) requires me to consider:
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on regular basis.
Practical difficulties are clearly case specific. If the mother lives in Suburb G it is more likely than not that X will have less time with the father than she would if she lived in a nearby suburb and attended Suburb H Primary School. However, I am not satisfied that the mother’s decision to establish a home in Suburb G will substantially affect X’s right to maintain a personal relationship and direct contact with the father. On the father’s case, he will still have each alternate weekend with X and dinner in Suburb G (or thereabouts) on the Thursday following a spend time weekend. It is not optimal time, but it is meaningful time.
I have regard to the capacity of each parent and other people to provide for the needs of X including her emotional and intellectual needs[9] and I find that the parents are quite evenly placed in this regard. The distinction is that the mother has historically been X’s primary carer and is the parent that X is more likely to look for emotional comfort and support from.
[9] S.60CC(3)(f)
I consider the parents attitude to X, and to the responsibilities of parenthood. [10] The mother asserts that she is supportive of the relationship between X and the father and points to the generous amount of time provided in the orders which are sought to be made by consent. My impression is, however, that the mother’s generosity in relation to X spending time with the father is very recent. It may also be more show than substance if the mother recognises that the proposed spend time arrangements are unlikely to be manageable if she lives in Suburb G and the father and his household are situated in Suburb D. The mother situating herself on the other side of Melbourne inhibits the father’s ability to spend time with X compared to the proximity within which their households were located prior to the mother’s unilateral move to Scotland.
[10] S.60CC(3)(i)
This is an interim hearing and, as such, not the opportunity for the parties to adduce all of their evidence or for me to draw conclusions and make findings of fact about which I could or should be more comprehensively informed at a final hearing. However, there are a number of markers to the mother’s recent behaviours which may indicate that, at best, she assumes that what is good for her is good for X and, at worst, that she is self-centred rather than child focussed and is prepared to prioritise what she wants over what is good for X. These markers include:
a)The mother’s unilateral removal of X from Australia;
b)X not having an opportunity to farewell her father or his partner or her friends before she left;
c)The mother’s decision to remain in Scotland without any consultation with the father;
d)The mother’s delay in returning to Australia in spite of being ordered to do so by this Court and the High Court in Scotland (although this will be the subject of evidence at trial);
e)The mother wanting to establish her residence in Suburb G so as to be in close physical proximity to her parents, whilst saying that her parents propose to relocate to Scotland by the end of this year or whenever travel is permitted having regard to COVID-19 pandemic restrictions.
Notably, the mother has made serious allegations of all manner of family violence against the father and accused him of neglecting X so that she was injured in his care and left without necessary medical treatment. However, the mother now consents to orders which provide for him to have substantial and significant time with X. There is an apparent inconsistency between the mother’s allegations and the order to which she consents.
Conclusion
Having regard to the foregoing, I am not satisfied that it would be proper to require the mother to live in the northern suburbs so as to facilitate X’s attendance at Suburb H Primary School. I accept the evidence of the Family Consultant which is to the effect that, optimally, X would return to Suburb H Primary School and have extensive and regular time with the father. However, I am not satisfied that X’s best interests are interfered with, by the mother’s choice to live in Suburb G, to such an extent that I should prohibit her from doing so. If X lives in Suburb G, she will still be able to enjoy overnight and regular time with the father.
I will make orders which are consistent with these findings and otherwise make orders in the terms which the parties seek by consent.
The mother should provide the Independent Children's Lawyer with a copy of the lease that she will enter into and each parent should at all times know where X resides.
I am satisfied that the orders are consistent with X’s best interests.
I anticipate that there could be difficulties with compliance with this Order so I direct that the proceedings can come back to me immediately if any new application is filed. Likewise, if there is difficulty with implementation of this decision, the matter may be mentioned before me by arrangement with my Associate.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 18 August 2020.
Associate:
Date: 18 August 2020
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