Brown and Sheehan
[2007] FMCAfam 135
•9 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BROWN & SHEEHAN | [2007] FMCAfam 135 |
| FAMILY LAW – Children – relocation – whether or not the prospect of relocation should have been reasonably contemplated by the Applicant in the lead-up of the resolution of the original proceedings – a fresh application for a parenting order should only be entertained where there is a significant or substantial change in circumstances. |
| Family Law Act 1975, ss.60CA, 60CC, 60CC(3)(c), 60CC(3)(f), 60CC(4), 61DA(1), 61DA(2), 65AA, 65D(1), 65D(2) |
| AMS v AIF (1999) 199 CLR 160 207 Bolitho v Cohen (2005) 33 FAMLR 471 D & Y (1995) FLC 92-581 Godfrey & Saunders 2007 FamCA 102 Goode v Goode 2006 FamCA 1346 King & Finneran (2001) FLC 93-079 Martin & Matruglio 1999 FLC 92-876 M & S (formerly E) 2006 FamCA 1408 Paskandy & Paskandy 1999 FLC 92-878 Rice & Asplund (1979) FLC 90-725 U & U 2002 211 CLR 238 |
| Applicant: | MS BROWN |
| Respondent: | MR SHEEHAN |
| File number: | BRC 427 of 2007 |
| Judgment of: | Burnett FM |
| Hearing date: | 2 March 2007 |
| Date of last submission: | 2 March 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 9 March 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms McMillan, Senior Counsel |
| Solicitors for the Applicant: | Hopgood Ganim Lawyers |
| Counsel for the Respondent: | Mr Hamwood |
| Solicitors for the Respondent: | McCowans Solicitors |
ORDERS
That the parties submit a minute of order within fourteen (14) days of the date of this judgment.
IT IS NOTED that publication of this judgment under the pseudonym Brown & Sheehan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 427 of 2007
| MS BROWN |
Applicant
And
| MR SHEEHAN |
Respondent
REASONS FOR JUDGMENT
Introduction
In this proceeding Ms Brown (the Applicant) applies for a relocation order in respect children to her marriage to Mr Sheehan (the Respondent). Final parenting orders concerning the children [C] born in April 2001 and [D] born in May 2003 had been made by consent on 2 November 2006. Those orders relevantly provided that the children would live with the mother and spend time with the father as might be agreed but otherwise subject to an arrangement which was detailed therein. By reason of events detailed below the Applicant very shortly after the making of consent orders on 2 November 2006 was offered a position in Innisfail, far north Queensland. Accordingly she has applied for a variation of the orders of 2 November 2006 to permit her to relocate and for consequential amendments to the parenting orders.
Background Facts
The Applicant and Respondent were married in Brisbane in September 1991. They separated under the one roof on 25 December 2004 and the divorce was made absolute on 15 April 2006. The Applicant is a [occupation omitted] and is currently employed on a part time basis with the [workplace omitted]. She has been in that position on a permanent basis since May 1996. The Respondent works full time as a [occupation omitted]. He is employed in that a capacity on a full time sub contract basis and has been so employed since January 2006.
On 8 July 2005 the Applicant filed an application for final orders seeking orders in respect of property and parenting matters. Between that time and August 2006 when agreement was reached concerning parenting arrangements for the children there were some difficulties between the Applicant and the Respondent concerning parenting issues. In part those difficulties arose because the Respondent suffered a depressive condition and the Applicant was concerned about his capacity to safety care for the children in an unsupervised context.
Those matters appear to have been resolved for the final orders contemplated only that neither parent would consume excessive alcohol nor be under the influence of alcohol whilst the children were in their care.
At the same time those matters were being negotiated the parties also resolved the issue of property and a property settlement was achieved by way of consent orders. Significantly those orders provided in part that the Applicant was to retain the former matrimonial home subject to payments made by her to the Respondent. In her affidavit she swore she entered into the parenting orders at a time when she intended to remain living in the former matrimonial home with the children. She swore that at that time the issue of relocation had not been considered.
In her evidence the Applicant said that following the settlement of matters between the parties and the making of final orders she had a telephone conversation with a friend from Innisfail. She says that at that time she was informed by her friend, Ms H who lived in Innisfail and conducted business as a developer that the [workplace omitted] had been advertising to fill a senior [omitted] position in their office. That information led the Applicant to make further enquiries which in turn resulted in an interview and subsequent offer of position. Needless to say for the Applicant to take up the opportunity afforded to her there has to be either a rearrangement of the original orders to provide for the children to live with the Respondent or alternatively the Applicant requires a release and adjustment of the orders permitting relocation.
Rice and Asplund
It was contended by Mr Hamwood for the Respondent that the application should fail in limine on the basis of the principle in Rice and Asplund[1]. In summary Mr Hamwood submitted that the prospect of relocation should have been reasonably contemplated by the Applicant in the lead-up of the resolution of the original proceedings and addressed at that time. The fact that the orders made in the original proceedings did not make adequate provision for a matter which should have been in the reasonable contemplation of the parties was submitted to thereby preclude the Court revisiting that issue now.
[1] (1979) FLC 90 - 725
Ms McMillan of Senior Counsel for the Applicant submitted that to be entitled to review all that need be demonstrated is that there has been a bona fide significant or substantial change of circumstances.
I do not agree with Mr Hamwood’s submission concerning the breadth of the principle in Rice and Asplund.
The most recent authoritative statements concerning the application of the principle in Rice & Asplund is to be found in Bolitho v Cohen (2005) 33 FAMLR 471. Although that appeal concerned an appeal against interim orders the orders under review were final orders consented to by the parties some five years previously. The principles apply equally to these circumstances.
In adopting the statement by the trial Judge in the case under appeal, the Full Court noted with approval his exposition of the law as follows:
“10.In the Full Court of the Family Court of Australia in Rice v Asplund (sic) (1979) FLC 90-725, Evatt CJ with whom Pawley SJ and Fogarty J agreed stated at 78,905 that:
“The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J, there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material…”
11.This decision has been affirmed in a number of cases and the general principle is that a fresh application for a parenting order should only be entertained where there is a significant or substantial change in circumstances. In D and Y (1995) FLC 92-581 at 81,764 the Full Court held that a trial judge has the discretion to determine whether there is a change in circumstances as a preliminary issue or to proceed to a full hearing.
12.More recently in King v Finneran (2001) FLC 93-079 Collier J held that amendments to the Family Law Act in 1995 requiring a full inquiry of the matters set out in s.68F do not disturb the discretion of the trial judge to make a threshold determination whether to proceed to a full hearing, stating at 88,367:
“41. The rule in Rice and Asplund is a rule evolved to protect children from involvement in further unnecessary litigation. To require a court to make a detailed determination of the matters set out in section 68F would defeat the purpose of that protection. It would mean that before the matter could be dealt with, a complete hearing, or …at least a hearing dealing with the section 68F factors, would have to be undertaken and completed.”
13.The decision of Collier J in King v Finneran also provides further insight into the nature of the change required to warrant consideration of a fresh application, at 88,368, his Honour said:
“50…The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.”[2]
[2] Bolitho & Cohen (2005) 33 FAMLR 471 at paragraph 20
Since the Full Court’s decision in Bolitho & Cohen there have been further amendments to the Family Law Act. The further refinements of Division VII of the Family Law Act (which in part included the repealing of section 68F and its restatement in section 60(CC) likewise do not impact on the application of the principle in Rice & Asplund for the same reasons identified by the trial Judge in Bolitho & Cohen. I consider I am bound by those principles.
It follows that the principal issue for determination concerns the issue of what constitutes substantial change in circumstances for the purpose of successfully traversing the threshold. In Bolitho & Cohen the Court considered with approval of the principles espoused by Collier J. in King v Finneran (2001) FLC93-079 the Court stated:
“[44] “In King v Finneran, a case decided after the Family Law Reform Act 1995 (Cth), Collier J, when discussing the nature of the change required to warrant further consideration of a fresh application at 88,368, said:
[50]“The words in any event are not words of necessarily strict dictionary definition. In D and Y (1995) FLC ¶92-581 their Honours of the Full Court made a finding that a trial judge has a discretion whether to deal with a change of circumstances as a preliminary issue or to proceed to a full hearing. Their Honours indicated that in the circumstances that prevailed in that case, that is, a nine day hearing a little more than two years previously, that a judge would be extremely loath to reopen the issue of custody, except on strong grounds. The word strong (sic) in that case is a departure from substantial or significant as used in earlier cases. It indicates clearly what is required. The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.” ”[3] (Emphasis mine.)
[3] Bolitho & Cohen (2005) 33 FAMLR 471 at paragraph 44
In this case the matter of whether a Rice and Asplund point arises falls to be determined by reference to the factual issue concerning whether or not at the time the orders were struck the Applicant knew of or had reason to believe that there was an opportunity available to her or even of interest to her at Innisfail with the [workplace omitted].
If I accept the Applicant did not know of the Innisfail opportunity or have it within her reasonable contemplation at the time she consented to [occupation omitted] in Innisfail would, in my view, constitute a circumstance giving rise to a necessity to relitigate the parenting issue.
In his cross examination of the Applicant Mr Hamwood, for the Respondent father, sought to establish that the Applicant was aware of the prospect of relocation at the time that she entered into consent orders in respect of both property and parenting matters. It is the fact that in December 2006 the Applicant was offered a position as [occupation omitted]. Given that final parenting orders were made on 2 November 2006 and final property orders on the same day it is understandable that the Respondent is suspicious that at the time the Applicant consented to those orders that she was aware that there was a prospect of the orders being unsatisfactory by reason of intervening events.
She said in her evidence that she was not aware that the position which she ultimately successfully obtained had initially been advertised in September 2006. She swore that she became aware of the position through a friend, Ms H who lives in Innisfail and is engaged in the business of property development up there. She said she first became aware of the position on or about 15 November 2006 when the position was suggested to her by Ms H. She says following upon the advice she received from Ms H she then spoke with Mr D at [workplace omitted] who appears to have been the retiring officer whose position was being advertised. Subsequent to that she was then contacted by an officer from the Human Resources Section of the [workplace omitted] enquiring as to whether she had any interest. Matters progressed from there. Whilst it does seem that matters progressed quickly it appears from concessions made by the Respondent in his evidence that the Applicant was known to Council because she had taken up a temporary employment in Innisfail during the course of their marriage. Further the Applicant herself swore to having previously worked in Innisfail (which I understood to mean with [occupation omitted]).
Despite the reasonable basis for the Respondent’s suspicion concerning these matters I find on the balance of probabilities that the Applicant was not aware of the opportunity in Innisfail prior to her consenting to final parenting and property orders and that the opportunity in Innisfail has arisen since that time.
As an adjunct to that point it was put to the Applicant that at the time she was negotiating the terms of the property settlement and parenting orders she made representations concerning her long term intentions which included in particular a representation that she intended to continue with part time work until the children had completed school.
The opportunity offered to her at the [workplace omitted] would involve her working eight days a fortnight instead of the current five days a fortnight which she currently works in her present employment with the [workplace omitted].
As I have earlier determined I do not consider that the Applicant did have any reasonable basis for believing other than what she represented in the course of her earlier negotiations. However despite those matters it would in any event have been unrealistic for any of the parties to have expected a representation of that kind made in the course of negotiating a final property and parenting orders would operate to bind the representing party forever. Without entering into a debate concerning what is meant by part time employment it is well open to argument that what is proposed by the Applicant still constitutes part time employment and to that end there has been no misrepresentation as alleged.
Likewise I do not see the acquisition of the property subject to the contract of 8 December 2006 as giving rise to any basis for overt criticism. The evidence of the Applicant and Mr W was that they went to Innisfail in December 2006 for the purpose of looking around and for the Applicant to discuss the job offer before making a final decision. It appears from the Applicant’s evidence that she accepted the position on the day of the interview. The next day it appears that she entered into a contract to purchase a dwelling. Whilst it may be open to question the prudence of such a transaction that is not a matter for the Court. Given the circumstances in which these events occurred and in particular given the shortage of accommodation in Innisfail it is understandable that the Applicant may literally have bought the first place she saw. There is nothing to suggest the transaction was not an arms length transaction or that she paid greater than market price for the property. The transaction did however give her the security of knowing she had accommodation arranged in a town where it is notorious that there is presently a shortage of accommodation by reason of the devastation effected in 2006 by Cyclone Larry and where it is also well known that the price of accommodation is high by relative standards. Whilst the transaction may have given rise to suspicion on the part of the Respondent I accept as truthful the Applicant’s explanation.
I am not persuaded that the employment opportunity sought to be pursued by the Applicant constitutes any more than the fulfilment of her reasonably held views present at the time of those negotiations. What she did not anticipate was the opportunity would be in Innisfail. Given the potential for this opportunity was not on her radar at that time it was too abstract to be a matter requiring provision in the orders and accordingly was not provided for. I draw no adverse inference concerning those matters.
It follows that in my view there has been an unforeseen change of circumstances which by operation of the principles in Rice and Asplund displaces the presumption of finality. The Court should proceed to determine the relocation application.
Relocation Application
Legal principles
The principles governing relocation cases have varied slightly since the introduction to the amendments of Part VII of the Act. Despite that matter which will be relevantly addressed below the following principles expressed in AMS v AIF (1999) 199 CLR 160 remain firmly in place, namely:
·Each case depends on an application of the governing legislation. As the facts of each case are unique the individual facts call for a “careful and delicate analysis” which renders previous decisions of limited assistance except in so far as they offer illustrations which may tend to promote a general consistency of approach: AMS v AIF[4].
·No single factor is dispositive of decisions governing the residence of a child in the context of the proposed relocation of a parent with whom the child resides and the Court is required to attempt a resolution of often irreconcilable considerations although the Act does instruct that the welfare or best interests of the child should be the paramount consideration. The paramount consideration however is not the same as the “sole” “only” consideration. Preconceived notions as to the weight which must be given to particular factors are incompatible with the exercise of an individualised judicial discretion such as is mandated by the legislation[5].
·The statutory instruction to treat best interests of the child as the paramount consideration does not oblige the Court to ignore the legitimate interests and desires of the parents although if there is a conflict between those considerations priority must be accorded to the child’s welfare and rights which matters in any event cannot be viewed in the abstract separate from the circumstances the parent with whom the child resides[6].
·The Act has been enacted and the relevant discretions exercised in recognition of a society which attaches high importance to the freedom of movement and the rights of adults to decide where they will live. “Courts recognise that an unwarranted and interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to effect the welfare or best interests of the child.”[7]
·Whilst jurisprudence recognises the increased emphasis upon the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with the other, the rule is not an absolute one[8].
·Where relocation is proposed within Australia a more relaxed attitude should be adopted than where proposed relocation is overseas[9].
·When it is proposed that residence arrangements change, the fact of disturbing them presents a consideration that must be taken into account in determining new arrangements should be approved. Where a parent seeks to change arrangements affecting the residence of and access or contact with the child that parent must demonstrate that the proposed new arrangement is in the best interests of the child[10].
[4] At 207
[5] AMS v AIF at 207
[6] AMS v AIF at 208
[7] AMS v AIF at 208
[8] AMS v AIF at 209
[9] AMS v AIF at 209
[10] At 210
The decision of the High Court in AMS v AIF and in particular the observations by Kirby J have considered in a number of decisions since the pronouncement of that authority. See for instance Paskandy & Paskandy 1999 FLC 92-878; Martin & Matruglio 1999 FLC 92-876; H & L 2000 FLC 93-306; and A v A: Relocation approach 2000 FLC 93-035. Finally the High Court revisited the question of relocation in its later decision in U v U (2002) 211 CLR 238[11].
[11] It is to be noted that in U v U Gummow and Callinan JJ with whom Gleeson CJ and Hayne J concurred noted AMS v AIF in passing without any criticism of it. See page 261.
More significantly the majority in U & U accepted the process was as stated in A v A: Relocation approach supra in which case the Full Court of the Family Court stated the process to be as follows:
“[108]. It is convenient to bring together in a summary form the most significant points we have made above. Courts of first instance faced with cases involving a proposal to relocate the residence of a child should adopt the following guidance and should be able to expect that cases are presented in a way which addresses the following matters to the extent that they arise:
In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas:
· The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.
· A court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residency contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances.
· It is necessary for a court to evaluate each of the proposals advanced by the parties.
· A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be “permitted”.
· The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child’s best interests.
· It is necessary to follow the legislative directions espoused in s 60B and s 68F of the Family Law Act 1975 (Cth). The wording of s 68F(2) makes clear that the Court must consider the various matters set out in (a)-(1) of that subsection.
· The object and principles of s 60B provide guidance to a court’s obligation to consider the matters in s 68F(2) that arise in the context of the particular case.
· It is to be expected that reasons for decision will display three stages of analysis and:
1.A court will identify the relevant competing proposals;
2.For each relevant s 68F(2) factor, a court will set out the relevant evidence and the submission with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make finding son each factor as the Court thinks fit having regard to s 60B;
· As one, but only one, of the matters considered under s 68F(2), the reasons for the proposed relocation as they bear upon the child’s best interests will be weighted with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.
· The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
· Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child’s contact with, and access to, the other parent.
3.On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.
· The process of evaluating the proposals must have regard to the following issues:
a) None of the parties bears an onus:
· In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.
b) The importance of a party’s right to freedom of movement:
· In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party’s rights under s 92 of the Constitution, where applicable.
· In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.
c) Matters of weight should be explained:
· In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss60B and 68F(s) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.
· In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.”
Despite the recent amendments to Part VII of the Act that approach has retained favour with the Full Court. Recently in Godfrey & Sanders 2007 FamCA 102 Kay J cited that authority with approval. In Godfrey & Sanders the Court also noted that approval the single judge decision of Dussau J in M & S (formerly E)[12] where in that instance Her Honour was considering a relocation application involving a proposed relocation to England from Australia. In particular His Honour Kay J noted with approval the observations of Dassau J that it is clear there is no onus upon the Applicant for relocation and nor is there a presumption against it. Further His Honour noted with approval Her Honour’s observations that just because the relationship between a child and a parent will inevitably be affected by a move away that in itself should not preclude the Court from permitting relocation[13]. Importantly His Honour Kay J adopted Dassau J’s observations at paragraph 38 of her decision that:
“The objects and principles of the Act, the primary and additional considerations under section 60CC, together with the various provisions in relation to equal shared parental responsibility, direct the court to squarely maintaining the important relationship between a child and his/her parents. The child’s best interests remain the Court’s paramount consideration (section 60CA). In the opening words of the objects provision in section 60B(1) of the Act, and again in section 60B(2) where it is stated that the principles set out there apply, except for when it is or would be contrary to a child’s best interests”, the legislature has not diminished the best interest test as integral to any parenting issues, including the difficult issue of relocation.”
[12] 2006 FamCA 1408
[13] See para 30 Godfrey & Sanders adopting para 38 M & S (formerly E)
In summary I adopt the approach provided for in A & A: Relocation Approach as supplemented by other matters identified by Dassau J in M & S (formerly E).
The Court’s power to make a parenting order includes the power to make an order that discharges, varies or suspends or revives some or all of a parenting order: section 65D(2). Otherwise the Act generally provides that in proceedings for parenting orders the Court may make such parenting orders as it considers proper: section 65D(1). In any event the overriding consideration concerning any particular parenting order in relation to a child is that the Court must regard the best interests of the child as the paramount consideration: section 65AA; section 60CA.
Ordinarily as a starting point when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility: section 61DA(1). The presumption does not apply however if there are reasonable grounds to believe that a parent of the child has engaged in family violence: section 61DA(2). Family violence is defined to mean conduct, whether actual or threatened by a person towards a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for or be apprehensive about his or her personal welling or safety: see section 4. In this case the Applicant deposed in her affidavit to a number of events of alleged violence but in particular an event which she alleges occurred on 7 May 2005 on which occasion the Respondent assaulted the Applicant causing her to fall to the ground[14]. The matter was not subject to challenge under cross examination. Furthermore the matter appears to be one conceded in the Respondent’s affidavit filed
28 February 2007 at paragraph 19 where he accepted that he was having some difficulty dealing with the different emotions that he was experiencing at the time leading up to separation and that the discussions became heated and led to arguments. He conceded that on one occasion he did indeed “hit out” at the Applicant. It follows that the presumption provided for in section 61DA(1) that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility for the children does not in this instance apply. That however is not to discount entirely the prospect of an order being made in those terms if in all the circumstances the Court could be satisfied that it is in any event appropriate for an order for equal shared parental responsibility to be made: Goode v Goode 2006 FamCA 1346.
[14] Affidavit of Ms Brown filed 20 February 2007, para 51.
How the Court determines what is in the children’s best interests is provided for by section 60CC of the Act. However before examining that matter it is first necessary to consider the competing proposals to place those matters in context.
Proposals
The Applicant’s initial proposals were contained in her application filed 15 January 2007. However between the filing of that application and trial the Applicant filed a further affidavit on 23 February 2007 which contained two proposals. At the hearing a further proposal was contained in her case outline document. The case outline proposal which the Applicant advanced as constituting appropriate arrangements in respect of relocation was submitted to the Court as constituting the terms of her application.
Broadly the Applicant’s proposal was that the children live with her and the father spend time with them. Insofar as it concerns contentious matters, in the context of a six week cycle her spending time proposal was:
That the father spend time with the children at all times as may be agreed between the parties, such contact to include at least the following:
(a)During school terms, each three weeks (on the basis of a six week cycle) as follows:
(i)The father spend time with the children in either Cairns or Innisfail, with the father to travel to Cairns in week 3 (with the cost of the return airfare to be met by the mother) and have contact with the children from either Friday evening or Saturday morning (at the father’s election) until Sunday afternoon;
(ii)That the father spend time with the children in Brisbane in week 6 (with the cost of the children’s return airfares to be met by the mother) and have contact with the father from Friday morning until Sunday afternoon.
Alternate proposal:
(a)During school terms, each fortnight (on the basis of a six week cycle) as follows:
(i) That the father spend time with the children in either Cairns or Innisfail, with the father to travel to Cairns in week 2 (with the cost of the return airfare to be met by the mother) and have contact with the children from either Friday evening or Saturday morning (at the father’s election) until Sunday afternoon;
(ii) That the father spend time with the children in either Cairns or Innisfail, with the father to travel to Cairns in week 4 (with the cost of the return airfare to be met by the father) and have contact with the children from either Friday evening or Saturday morning (at the father’s election) until Sunday afternoon.
(iii) That the father have contact with the children in Brisbane in week 6 (with the cost of the children’s return airfares to be met by the mother) and have contact with the children from Friday morning until Sunday afternoon.
In his response the Respondent seeks orders that the Applicant’s application to relocate be dismissed and that in the event the mother relocates to Innisfail she do so without the children and that the children live with the Respondent. He then proposes consequential orders in respect of spending time with orders in the event that such an order was made. The orders proposed by the Respondent are in effect reciprocal orders to those proposed by the Applicant although he proposes each such spending time event occur monthly.
Best interests of the children
As earlier stated in considering the competing proposals start from an analysis of considering what would be in the children’s best interests.
Primary Considerations
Benefit to the children of having a meaningful relationship with both parents
To date the children have enjoyed meaningful relationships with each parent. In the family report prepared by Mr Robinson he noted both children have positive relationships with each parent and it is assessed that it would be in their best interests to maintain their relationships with both parents[15]. The Applicant herself conceded that the children would benefit from having a meaningful relationship with both herself and the Respondent. She noted that she was committed to ensuring that the children did maintain regular contact with the Respondent and that if relocation were permitted that contact could be maintained by regular phone, video phone and contact visits. The Applicant proposes an increase in the length of the living with time for the Respondent on those occasions that the children travel to Brisbane. Having regard to the current orders if relocation were permitted it would seem that the Applicant’s proposals in fact present as likely to give the Respondent more time with his children than he presently enjoys. It would seem however that there would be a lengthening of the time between contact events. That conclusion is premised upon proposals that would involve a lengthy living with period enjoyed during a school holiday break with a contact visit every three weeks as proposed by the Applicant. She also proposes telephone and video phone contact which appears by inference to be a matter which would positively benefit the children’s development of a meaningful relationship with the Respondent. So much can be inferred by Mr Robinson’s observations at paragraph 10.2.2 concerning the exploration of the possibility of a win-win outcome along those lines.
[15] At paragraph 10.2.1.
As the Respondent’s proposal was only directed to a change of residence with the children to live with him and otherwise one weekend a month (apart from school holidays) it would by inference appear the Respondent too saw some like arrangements as promoting relationships between the children and the “spending time with” parent.
Need to protect the children from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence
The Applicant in her affidavit expresses the view that she does not believe the Respondent would physically harm the children in any way. She has however concerns regarding the Respondent’s care for the children premised upon a number of instances involving the return of the children following contact occasions with the children suffering sunburn and by reason of the Respondent’s history of previous psychological difficulties. Concerning the Applicant’s complaints relating to instances of sunburn on contact visits, it is clear that the Applicant had some basis for those concerns. In medical reports prepared following presentation to a Dr C it was revealed that upon examination of the children on 16 October 2006 there was evidence of moderate sunburn in the case of [C] and mild sunburn in the case of [D]. The Applicant deposed in her affidavit that by reason of a history of melanoma she was concerned for the children’s welfare and risk of injury to them by sunburn. In cross examination the Respondent acknowledged the risk and agreed that it is a matter for concern. In that respect he noted that both he and the Applicant were concerned about that matter.
The other matter of concern relates to the Respondent’s psychological state. The uncontroverted evidence is that the Respondent has suffered from a mild psychiatric disorder for many years. That appears to have manifested on a number of occasions resulting in his hospitalisation. More recently the Applicant says that she became increasingly concerned regarding the frequency and severity of the Respondent’s condition (being depression) towards the end of the marriage. At paragraph 36 of her affidavit filed 20 February 2007 she detailed a number of events which demonstrate his fragile psychiatric state. These matters were not subject to significant challenge and in fact the Respondent conceded in his affidavit filed 28 February 2007 that throughout his adult life he had suffered from depression and had been prescribed anti-depressant medication. He did note however that at the time of swearing his most recent affidavit he was not experiencing any symptoms of depression and that the medication he took did not impact upon his day to day functioning or ability to hold down a full time job or care for the children whilst they were with him.
It is however apparent that this has been an issue between the parties and it would appear that despite the Respondent taking medication as he says between 2003 to 2005 he required ongoing psychiatric treatment[16]. It is to be inferred from the material that should the Respondent be noncompliant in respect of his medication or take his medication inappropriately by taking his medication in conjunction with other inappropriate substances including alcohol there is a risk of the children being exposed to emotional abuse in that the Respondent may behave in a manner in which is inappropriate.
[16] See generally affidavit Ms Brown filed 20 February 2007 paras 37 to 40.
As best as one can this is a matter that can be addressed by an order but it is a matter that weights in favour of the children living with the Applicant who has a history of stability.
Additional considerations
Children’s wishes
The children are very young. The family reporter notes in his report that it appears the children are keen for the relocation to occur[17]. Clearly the child [D] was too young to express a view although the family reporter has recorded the views of [C].
[17] In his report at paragraph 10.2.7 the author notes that the children are likely to be disappointed if they do not move to Innisfail at this point. See para 7.4 and 10.2.7.
Unquestionably the children do not have adequate insight into the full ramifications of such a relocation. However the expression of the view of the child [C] is weighed into the mix although not a matter which has been afforded significant weight.
The nature of other relationship with each of the children’s parents.
In her affidavit the Applicant deposes to having a loving, warm, and trustworthy and holistic relationship with the children. She swears that the children are “exceptionally” close to her as she has been the main caregiver since birth and has continued in this role.
The Respondent contends that during the course of the marriage he shared roughly equally the care of the children. For instance he says that at the time [C] was born he was working casually part time and that the Applicant took maternity leave. He says that during that period he was often at home and assisted in the care of [C]. He says that when the Applicant returned to work he was then the primary carer for [C]. He swears that throughout the time of their relationship together they equally shared the care of [C] and [D] and were both involved in the feeding, bathing and putting the children to sleep and playing with them.
Following initial separation in December 2004 he says that he continued to see the children on a daily basis as he was at that time living separately and apart under the same roof. He says his periods of absence involved absences to attend barefoot water skiing competitions which such absences were short in duration. Following his moving into separate accommodation in around May 2005 he says he continued to spend time with the children and that generally that occurred on a Sunday until relations broke down between the parties at the end of July 2005.
Following the intervention of lawyers contact recommenced by telephone in late August 2005 before recommencing on a time with basis in mid September 2005 at the Logan West Contact Centre. As matters progressively improved between the parties matters were rearranged. Ultimately the orders made 2 November 2006 came into place. Those orders reflected the time with periods leading up to resolution of those matters and anticipated the ongoing time with periods.
In his statements to the family report writer the Respondent stated that the arrangement allowed him to maintain a good relationship with both of the children. He also conceded that both the children had a good relationship with their mother and he did not have any complaints about the mother’s parenting ability. He also noted that he was “fine” about the mother’s new boyfriend, Mr W and that the children seemed happy to be happy with him[18].
[18] Family Report, Anthony Scott Robinson para 4.10
In his report Mr Robinson concluded that both children have positive relationships with each parent and he assessed that it would be in their best interests to maintain that relationship[19].
[19] At para 10.2.1.
In her affidavit the Applicant complained that after separation she formed the view that the children were never part of the Respondent’s priorities and that his own needs and desires came first. Having said that however she acknowledged and agreed that the Respondent and the children enjoyed spending time together and that the Respondent loved the children and the children loved him. She noted that she supported the children’s involvement with an ongoing relationship with the Respondent and that she tried to show appropriate interest in what they had done while with the Respondent and to be excited for them when they had had an enjoyable time. She complained however that the Respondent was generally “a fun time Dad” and appeared not to be too concerned regarding normal routine including appropriate bed time.
Clearly the evidence demonstrates parents who are each motivated to be involved with the children and have good relationships with them. This has occurred despite a troubled past.
However I accept the Applicant has adopted a more child focused attitude to the children. The Respondent’s attitude has in the past been reflected by his absences to participate in water skiing competitions which involvement has been really more in the nature of a voluntary sport. He has sought and been afforded considerable flexibility by the Applicant concerning his time spent with the children to accommodate this matter. That is not to say that he has failed to develop relationships with his children but his approach has a tendency to selfishness. I consider the Applicant’s relationship with the children more balanced and selfless. This matter weights in favour of the Applicant.
Other persons
Aside from the Respondent the only other significant person the subject of evidence was Mr W, the Applicant’s new partner. While it is the case that the Applicant and Mr W have not formally re-partnered it is clear that irrespective of the outcome of this application their
re-partnering will shortly obtain a more formal status. At this stage the evidence demonstrates that the children’s introduction to Mr W has been carefully managed by the Applicant. Mr W himself noted that he did not regard himself as a replacement for the children’s father and that he would be part of their lives in a different manner. He says that he has never said anything to the children that was negative about the father in any way[20].
[20] Affidavit of Mr W filed 22 February 2007 at para 12.
In his report Mr Robinson noted that Mr W presented as a positive influence in the children’s lives[21].
[21] See para 6.2.
The only other persons of note were the children’s maternal grandparents. It appears the children had spent some time with them as their house was on various occasions used as the exchange point for contact visits. While the matter was not explored in any detail the Applicant noted that the children enjoyed having regular contact with the grandparents. She proposed to maintain that contact by block periods when her parents would come and stay with them in Innisfail.
Positive relationships exist between persons associated with the Applicant and the children. Parenting orders favouring the Applicant would enhance those relationships, particularly with the maternal grandparents.
Willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent
In her affidavit filed 20 February 2007 the Applicant says that she is prepared and able to facilitate and encourage close and continuing relationship between the children and the respondent. She says that she would do this because ultimately she accepts he is the children’s father and that they love him and that she considers it beneficial for them to enjoy a healthy relationship with him. On that basis she said she is prepared to put aside her own feelings and respect the Respondent’s position in the children’s lives. She swore that she had only ever been supportive of him and never indicated any negativity to the children regarding her own personal experiences and feelings.
On the contrary however she considered that the Respondent did not reciprocate in that regard. She swore for instance that the Respondent had recently accused her of being a bad mother and that he taunted her with the prospect that he would seek orders that the children live with him. For that reason she is concerned that the Respondent would not be able to foster a relationship between the children and her if his proposals concerning residence were accepted.
Section 60CC(4) requires that when considering the s.60CC(3)(c) considerations the Court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent and in particular the extent to which each of the child’s parents have taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the children, spending time with the children and communicating with the children and further the facilitation or failure to facilitate the other parent enjoying like opportunities. Furthermore the Court must consider whether or not the child’s parents have fulfilled or failed to fulfil the parent’s obligation to maintain the children.
In this case I am satisfied the evidence clearly demonstrates that each parent has fulfilled his or her responsibilities as a parent to the extent permitted by opportunity to spend some time with the children and to communicate with the children. No issue arises concerning the fulfilment of the parent’s obligations to maintain the children.
However real issues arise between the parties concerning their respective taking or failure to take the opportunity to participate in making decisions about major long term issues in relation to the children. In particular this concern surrounds the circumstances surrounding the Applicant’s proposed relocation. As I have indicated earlier the evidence demonstrates that the Applicant became aware of the prospect of relocation sometime in mid November. The prospect crystallised into an intention to relocate following her acceptance of a position following an interview on or about 8 December 2006.
On 10 December 2006 the Applicant informed the Respondent that she was “thinking of making an application to the Court” for relocation. Proposals were proffered concerning ongoing contact and the Respondent says that on that occasion he told the Applicant that he was not happy with the prospect of relocation. He says that on 1 January 2007 the Applicant phoned him and he told her that he had given her request for relocation consideration but that he had resolved not to agree to it.
Despite being informed of those matters on 1 January 2007 it transpired that on 21 January 2007 the Respondent attended at the Applicant’s residence to return the children having spent time with them to see the Applicant had packed much of the furniture and contents of her home and to observe that Mr W’s car was also fully packed. He says he asked the Applicant when she intended going to Innisfail to which the Applicant respondent “the next day, after Court”.
The next day there was a further conversation between the Applicant and the Respondent when the Applicant was asked whether it was her intention to fly to Innisfail or to drive. He says the Applicant responded saying “we are all booked on the plane” and that when he enquired as to whether he could see the children before they left he says the Applicant responded that he could see the children at the airport.
The events surrounding the prospective relocation suggest a lack of communication between the parties. It was evident from the cross examination of both the Applicant and the Respondent by their respective Counsel that there still remains residual hostility between them. It was suggested by Counsel for the Respondent that the Applicant lacked flexibility in respect of her preparedness to afford the Respondent contact. It was for instance suggested that her attitude to permitting the children to attend the Respondent’s parent’s 50th wedding anniversary party was evidence of that. The Applicant’s response to those suggestions was to express her concerns about his mental stability and concerns that arose because of his inappropriate consumption of alcohol in conjunction with taking medication. In cross examination the Respondent’s Counsel took the Applicant to various passages within her material wherein she made adverse comments concerning the Respondent. She did not resile from those comments. Broadly the comments appear to be observations by her concerning the Respondent’s behaviour. Equally the Applicant’s Counsel was able to take the Respondent to parts of his affidavit from which he did not resile and from which it can be inferred an unreasonable failure on her part to properly communicate. In particular he related an event where he left the children in the care of a babysitter.
In his report Mr Robinson noted that the Applicant’s failure to discuss with the Respondent her plans to relocate prior to accepting the position in Innisfail and her apparent assumption that it would be satisfactory to move without first obtaining the Respondent’s agreement or consent suggests at the very least a lack of respect for the Respondent’s rights and an unwillingness to discuss important issues with the Respondent that related to the children’s welfares. These matters are, perhaps, fully evident and do not require the expression of expert opinion but in any event Mr Robinson’s opinion in the context of a family dispute is no doubt premised upon his considerable experience in disputes of this kind and assessing the conduct of parties in respect of these kinds of disputes. He noted that those matters tended to give weight to the Respondent’s contention that the Applicant may be less than cooperative in conforming to any arrangements for the children to spend regular time with him, particularly if the arrangements were costly and logistically difficult. He did however note in the Applicant’s favour he did consider she was cognizant of the fact that she was remiss in not discussing it with the Respondent and had expressed regrets about that matter.
Overall it does appear that whilst there may be some evidence to demonstrate failings particularly on the part of the Applicant to take the opportunity to facilitate the Respondent participating in making decision about major long term issues in relation to the children that failing is only to be seriously demonstrable in respect of one significant evident. It does not from the evidence appear to be a matter which is compounded by evidence of numerous instances of such a failing.
For the Respondent’s part he was likewise open to criticism by the Applicant for his failure to adequately communicate his decision to relocate from Brisbane to Bli Bli. While he was free to do so that matter did impact upon arrangements relating to his spending time with the children. Putting aside the suitability or otherwise of his new accommodation his relocation impacted significantly upon travel time for the children.
In summary difficulties in communication between each of the Applicant and Respondent have had the potential to impact the encouragement of a close and continuing relationship between the children and the other parent because of the obvious conflict that has been occasioned by such conduct. The consequent conflict would have been apparent to the children and highlighted to them the underlying absence of respect mutually apparent. Such an attitude would clearly not be compatible with facilitating the encouragement of a close and continuing relationship between the children and the other parent. The problem is clearly deep seated and evident on both sides of the record. Irrespective of any order the Court may make such deep seated attitudes will not be readily modified.
Despite evidence to date there does appear from the evidence to be foreshadowed a willingness of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent. That matter of course can be enhanced by orders which could be made the Court. Overall on this issue it is a matter in respect of which I consider the prospect of relocation or otherwise would have no material impact. The prospect of relocation seems simply to have served as an opportunity for the wounds to have been re-opened.
The effect of the relocation on the children including the effect of being separated from either of the Applicant and Respondent and others
Unquestionably if relocation is permitted there will be some emotional trauma experienced by each of the Respondent and the children. They will clearly each miss each other. However if the compromise proposal foreshadowed in Mr Robinson’s report were to be pursued it seems by inference that the effect of any such changes would not be unduly adverse.
Clearly however if appropriate contact arrangements could not be put in place it seems clear that there would be detrimental effects in the move to Innisfail in respect of the children’s relationship with the Respondent and the grandparents. So much is apparent from the report of Mr Robinson who concluded that if the Applicant’s proposal proceeds it is likely that the children’s relationship with the father will be weakened. Upon relocation that state would ensure unless orders reflecting the compromise proposed by Mr Robinson in paragraph 10.2.10 of his report where put in place. The prospect or adverse impact is less likely in respect of the maternal grandparents as it is proposed that they visit Innisfail in any event.
I am satisfied that in the event of relocation appropriate orders can ensure the effect of relocation will not be negative for the children. This matter weights in the Applicant’s favour. However I emphasise that is only so in the event of appropriate orders.
The practical difficulties and expense of contact
Clearly given the distance between Brisbane and Innisfail the time travel and expense associated with contact visits is a significant factor. Although material was placed by the Applicant concerning the estimated time taken to travel between Innisfail and Brisbane it was obvious from the cross examination of the Applicant by the Respondent’s Counsel that there had not been adequate consideration given to the practicalities of that proposal. Putting aside matters of expense it is clear that the Applicant had grossly underestimated the amount of time involved in travel from one point to another. It was apparent from cross examination of the Applicant that her time estimates did not make any allowance for delays and preceded the assumption that each activity would be undertaken within the time specified without interruption. That approach is of course quite unrealistic particularly when one is considering travel of significant distances to airports and from airports together with delays at airports occasioned by such things as the need to check-in in sufficient time to be processed through security. In terms of the financial considerations associated with travel it is apparent also that little consideration was given to the fact that travel to Cairns and its cost vary from season to season. Cairns is a tourist city and timetables and cost vary from season to season.
The Applicant’s answers to questions put by Mr Hamwood concerning her proposals suggest a lack of vigour on the part of the Applicant when considering that matter. For instance the Applicant conceded that her proposals made no allowance for contact on Father’s day, the children’s birthday and the Father’s birthday and when challenged concerning those matters the Applicant’s only response was that the father had not exercised those rights on previous occasions. It needs to be understood that as the orders only came into effect on 2 November 2006 there had been no opportunity for the father to fail to exercise his rights in that regard.
Furthermore it was apparent that there had been no effective costing of contact if contact was to be affected by the father travelling to Cairns. Clearly if he were to travel Cairns there would not only be travel expenses but there would be accommodation expenses and some travel expenses perhaps including the need to hire a car. None of these details appear to have been addressed. Furthermore in terms of contact arrangements involving the travel by the children from Innisfail to Brisbane there had not been adequate consideration of the time which would be necessarily involved in those activities. Whilst I accept the Applicant’s affidavit provides some estimate it is clear and was conceded as such by the Applicant that her estimate contained in her affidavit is unduly optimistic and makes no allowance for the vicissitudes.
The Applicant’s answers to questions put by Mr Hamwood concerning her proposals suggest a lack of vigour on the part of the Applicant when considering that matter. For instance the Applicant conceded that her proposals made no allowance for contact on Father’s day, the children’s birthday and the Father’s birthday and when challenged concerning those matters the Applicant’s only response was that the father had not exercised those rights on previous occasions. It needs to be understood that as the orders only came into effect on 2 November 2006 there had been no opportunity for the father to fail to exercise his rights in that regard.
Furthermore it was apparent that there had been no effective costing of contact if contact was to be affected by the father travelling to Cairns. Clearly if he were to travel Cairns there would not only be travel expenses but there would be accommodation expenses and some travel expenses perhaps including the need to hire a car. None of these details appear to have been addressed. Furthermore in terms of contact arrangements involving the travel by the children from Innisfail to Brisbane there had not been adequate consideration of the time which would be necessarily involved in those activities. Whilst I accept the Applicant’s affidavit provides some estimate it is clear and was conceded as such by the Applicant that her estimate contained in her affidavit is unduly optimistic and makes no allowance for the vicissitudes.
However insofar as reciprocal orders are sought that criticism can also be made of the Respondent’s proposal.
Those matters do not provide unsurmountable obstacles to an order. However in that event careful crafting of orders will be necessary.
The most significant practical difficulty associated with the children spending time with either the Applicant or the Respondent if the Applicant’s relocates is that such will substantially affect the child’s right to maintain personal relations and direct contact with either the Applicant or the Respondent on a regular basis. There are in my view significant practical difficulties involved in transporting children over the distances involved in this case on a regular basis. Those difficulties can be ameliorated to some extent by ensuring that such travel when undertaken is punctuated by reasonable pauses. It is for instance verging on impractical to expect children to travel between Innisfail and Bli Bli on the Sunshine Coast for a weekend. That of course ignores a prospect of the children’s school week being truncated to permit travel to occur on a Friday to permit close to 48 hours time to be enjoyed by the other parent.
The Applicant does say however if relocation is not permitted she will not accept the position in Innisfail and relocate. Accordingly in practical terms it only falls to be considered whether the arrangement could be made to work from the perspective of the Respondent.
Difficulties concerning inter city travel could be overcome if the Respondent himself travelled to Innisfail for short spending time with periods and only had the children travel to him at Bli Bli on those occasions when there would be longer spending time with periods. Those matters appear to be been the subject of the “win-win” outcome foreshadowed by Mr Robinson in his report.
While it is clear that there are in this instance some practical difficulties the expense does not appear to be an issue. Both the Applicant and her new partner will both be in well paid positions in Innisfail. Indeed one of the precipitating factors for the application for relocation is the Applicant’s prospect of more than doubling her income should she be able to partake of the employment opportunity in Innisfail. Upon her evidence it would appear that the gross value of her income would be close to $90,000 per annum when allowance is also made for non cash benefits. With allowance made for Mr W’s income, it would seem that the household income would be worth not much less than $140,000 per annum. Clearly in those circumstances the Applicant would be able to make good her offer contained in her affidavit to pay the costs of travel. I note in that regard that she would like some of those costs to be shared but in the event relocation is ordered it is clear that the Applicant would be enjoying an indulgence which in part would permit her to advance her career and to that end she must be prepared to accept an added cost for that indulgence.
In any event it may transpire that the Respondent himself decides to relocate in order to maintain the current contact regime. He conceded in his evidence that there was some degree of portability associated with his employment. He has no significant employment connection which would preclude his capacity to relocate should he chose to do so. However at this time he has not expressed any intention to relocate.
I proceed on the premise that it is the Respondent’s intention not to relocate despite that capacity.
As I have noted above, with appropriate orders in place the practical difficulties can be addressed. I have examined those practical difficulties in greater detail below. The Applicant has expressed a willingness to meet reasonable expenses. She has a capacity to do so. This matter weights in favour of relocation.
The capacity of each parent to provide for the needs of the children (including emotional and intellectual needs)
The Applicant contends that she is a better parent to provide for those needs. However section 60CC(3)(f) calls for a consideration of the capacity of the parents to provide for those needs. Whilst it might be that the Applicant can better provide the needs I accept the Respondent too can provide those needs although I accept the Applicant’s contention that she is in a better position to provide for those needs particularly because she has a more stable personality than the Respondent. Each party proposes appropriate accommodation although I note that at the moment the Respondent’s circumstances are not appropriate for long term care. He would modify those circumstances if the children were to be ordered to live with him.
Whilst each party can provide for the physical, emotional and intellectual needs of the children I consider the Applicant’s more stable personality favours her as the parent with whom the children’s welfare and best interests would be advanced in respect particularly of their emotional and intellectual needs.
The children’s maturity, sex and background
The child [C] is five years of age and presently in Grade 1 at the [X] State School. It is reported that she is a well groomed, happy and social child. It was noted that she was cooperative and confident during the course of her interview with Mr Robinson although she tended to avoid eye contact. The Applicant swears that she has integrated well with her classmates at school and that she enjoys swimming dancing and singing and is fond of animals and nature. By inference from the report of Mr Robinson it appears that she would be able to cope with relocation. Concerning [D] it was also noted that he was well groomed and cheerful and the child’s physical and psychological development appeared to be normal. Presently he attends a day care three days per week and enjoys activities including swimming dancing and singing. Again subject to appropriate orders it does not appear from the report of Mr Robinson that relocation would be adverse to him.
The evidence does not contra the prospect of relocation or presenting a positive outcome for the children although the matter does not bear great significance in this dispute.
The attitude of the Applicant and Respondent to the children and responsibilities of parenthood
The Applicant contends that her position in this regard is superior to that of the Respondent. In that regard she particularly identifies evidence of failings on the part of the Respondent to properly care for the children. These occasions have included complaints earlier noted including sunburn, on spending time with occasions. Undoubtedly the Respondent had difficulties concerning this matter prior to he bringing his psychiatric condition under control in late 2005. However it would appear that since that time his personality has been on a more even keel and his attitudes and appreciation of responsibilities as a parent have improved. Broadly I accept that there is a positive attitude by both the Applicant and Respondent to those responsibilities although the Applicant probably has greater insight into those responsibilities because she has been the primary carer for the children and has demonstrated a greater capacity and awareness in that regard.
Any family violence or family violence orders
There has been a history of family violence as addressed above. On 7 July 2005 a temporary domestic violence order was issued by the Magistrates Court of Queensland. In proceedings that ensued in September 2005 the Respondent gave an undertaking to the Court that he would not commit any act of domestic violence for the following twelve month period. It appears that he honoured this undertaking. On balance I am inclined to the view that it is unlikely that violence is a significant feature of this relationship. However there has been an event of violence. It is apparent that the Respondent has expressed frustration by aggressive behaviour although it seems that these events occurred some time ago. They also appear to have occurred in the context of escalating matrimonial disharmony and in the context of the Respondent not having received appropriate medical treatment for his condition or alternatively not complying with such treatment as he may have received. In all those circumstances and accepting that matters have moved on since then I am of the view that this is no longer a significant issue although one to which I do give some weight in favour of the children living with the Applicant.
The extent to which the Applicant and Respondent have (before and after separation) fulfilled or failed to fulfil responsibilities as a parent
For her part the Applicant says that she has always place the uppermost importance on the children’s needs and taken her responsibilities in relation to the children most seriously. She swears that she has kept and been fully informed in their lives and takes as much opportunity as possible to spend time with the children. She says that she had arranged her working conditions to ensure that some balance was available. The evidence supports that contention. She has previously worked five days a fortnight in her position as a [occupation omitted] to enable her to attend to her parental responsibilities. Even in Innisfail it is proposed that she would work a four day week. No doubt this negotiated employment arrangement too comes at a cost. It does however demonstrate her appreciation of the need to fulfil those responsibilities. In her affidavit she swears that she dedicates night time to homework reading and story time and that she and the children participate in conversation. She says that at this stage she and the Respondent have not had the opportunity to participate in significant long term issues in relation to the children although says that prior to separation there had been some discussion concerning education. I note the Respondent does not challenge any of these matters although he said that so far as long term education is concerned it is proposed that the children would attend State school.
No doubt the parties will have an opportunity to consider these matters in due course. In any event in the short term the Applicant says that when relocation was discussed she sought the Respondent’s input in relation to schools. Likewise she says that on an occasion which involved a requirement for surgery for [C] in October 2005 she engaged the Respondent in decisions concerning that matter. She swore that on occasions she had attempted to adopt a flexible approach to contact and that on occasions when the Respondent had missed contact visits for one reason or another she was prepared to discuss make-up contact. She has for instance in any event come to informal agreements with the Respondent concerning collection of the children on contact occasions to permit him some convenience on those days. She also swore that she facilitated communication between the Respondent and the children by telephone by making the children ordinarily available between 6.00 and 7.00pm in the evening any day of the week for telephone contact. She noted ordinarily the Respondent would speak to the children every two to three days. These matters do not generally appear to be the subject of controversy. Overall however the Applicant’s conduct favours her application.
The extent to which the Respondent has (before and after separation) fulfilled or failed to fulfil his responsibilities as a parent
The Applicant contends that the Respondent prioritises his bare foot water skiing over his responsibilities to his family and children. She said this was the case prior to separation and that she believes this still to be the case. She noted for instance that the Respondent competed in tournaments and that he had limited telephone contact with the children during those times.
In the course of cross examination the Respondent conceded that he did spend a considerable amount of time participating in bare foot water skiing events. It did however appear from the matters put to him in cross examination that despite the numerous instances referred to they did appear to be of short duration. It is no doubt the fact that on occasions his contact arrangements were interrupted by reason of those matters. However he denied that he put his needs and desires ahead of the concerns he had in respect of his relationship with his children. In particular he denied that that included not just emotional aspects but also financial aspects. He maintained that his participation in bare foot water skiing was not a particular expensive exercise because of the manner in which it was organised. There has undoubtedly been some element of convenience associated with the Respondent’s exercise of contact although generally speaking it could be said that the degree of casualness is as much a function of the Applicant’s willingness to adopt a flexible approach as it is of the Respondent’s own attitude.
Perhaps one telling feature concerning his attitude is the fact that his child support payments have been irregular and on occasions in arrears. As I noted earlier the Respondent’s attitudes have reflected a degree of selfishness not consistent with a child favoured approach against the Applicant’s conduct favouring orders sought in the application.
Conclusion
Upon considering the matters relevant it is my view that it is in the best interests of the children that the Applicant be permitted to relocate to Innisfail and that the children relocate with her.
I consider such an outcome is in the best interests of the children. Present relationships can be preserved. Indeed there is the prospect of them being promoted by the physical distance. The Applicant is afforded an opportunity to improve her physical, economic and emotional well being. This will have a positive outcome for the children. Not only will this physical environment improve over the long term but the Applicant will enjoy an improvement in her emotional state. As the children were to live with her in any event that improvement can only be to their benefit.
The Respondent will overall have more time with the children. Whilst there will be now up to four weeks between those events the provision of appropriate accommodation with spending with time to be enjoyed over three consecutive nights will enhance those occasions for both him and the children. Overall I do not consider his situation will be diminished and so by proxy the children’s best interests will suffer.
That conclusion is premised upon appropriate contact arrangements being put in place and further upon the orders having an operational effect for a limited period of time. I have had particular regard to the Applicant’s evidence that she only wishes to relocate for four years. I accept the Applicant’s evidence concerning the nature of the opportunity which has now presented to her and her intention to use that opportunity as a springboard to other opportunities in the field of local government particularly with a [workplace omitted] in the South-East Queensland (Greater Brisbane) area. I consider that with appropriate contact orders in place to preserve and develop the strength of the relationship between the children and the Respondent. The opportunity will indeed benefit all the parties to this proceeding.
The Court’s acceding to the Applicant’s application should not be interpreted, particularly by the Applicant as the first step in a staged program on her part to develop a long term career in North Queensland (or any other locale should the Respondent decide himself to relocate to North Queensland). The order merely reflects that for the time being and the foreseeable future the opportunity represents an outcome which is in the best interests of the children. It is with those matters in mind that orders will be made including a sunset provision.
Proposed orders
It is well settled that whilst the Court is obliged to give careful consideration to the proposed arrangements of the parties the Court is not in any view bound by the proposals of the parties: U v U[22].
[22] Supra per Gummow and Callinan JJ at 260 with whom Gleeson CJ and Hayne J concurred.
The approach of the Court in that instance reflected the earlier views expressed by Kirby J in AMS v AIF where he too had expressed the view that
“Any such alteration [of place of residence], with its practical consequences for the access to, and contact with, the father…require consideration in that context, of the acceptability of the alternative proposals which (the mother) advanced for different, but longer, periods of contact between the child and the father. This was not judged satisfactory, it possibly necessitated consideration of whether a different regime, devised by the Family Court, would adequately fulfil the child’s rights to regular contact with his father although no longer living permanently within close physical proximity.”
Whilst not cavilling with the Court’s expression concerning the capacity of this Court to impose another regime not considered by the parties if it is indeed considered appropriate, it raises the question concerning how the Court might be guided to such an approach. In the absence of direct evidence as to an appropriate alternative proposal the Court must then be guided by its own experience and judgment in relation to these matters. A question arises as to whether that would be an appropriate approach. It appears to me following the words of His Honour Justice Kirby that that approach by the Court is permissible. His Honour referred to the potential of a regime “devised” by the Court. Clearly in circumstances where the Court rejected as appropriate the alternative proposals advanced by the Applicant and Respondent to a proceeding it seems reasonable to infer that there may not have been evidence directly adduced in support of such a “devised” approach. Undoubtedly that matter will have been considered by His Honour Justice Kirby in his choice of language and I proceed on the premise that against that background when His Honour noted the possibility of a different regime and employed the word “devised” to deal with the prospect of another regime His Honour had in mind the Court calling upon its own experience and judgment in respect of that matter, subject of course to the matters provided for in Part VII of the Act which called for the paramount consideration of the best interests of the children.
Upon that basis there does appear to me to be some latitude concerning competing proposals if a Court devised proposal can be justified on a Part VII approach.
In this case a number of practical difficulties present from the prospective of the proposal concerning spending time with a parent. Despite the Court permitting relocation to the mother these difficulties were also present with the father’s proposal[23]. However by reason of the father having sought, in effect, reciprocal orders I infer that he regarded such a regime as appropriate.
[23] As earlier observed the mother says she would not relocate unless accompanied by the children.
Outside school holidays the proposals broadly provide for contact to be effected in Innisfail or Brisbane every three or four weeks. From the Applicant’s perspective if contact were to be effected in Brisbane it would in practical terms mean that the children could not depart from Innisfail until late on Friday afternoon or at the very latest Saturday morning in order to travel to Brisbane. Questions about the availability of flights, their timing, travel to and from the airport at either end and the like clearly indicate that for weekend contact such a proposal is probably impractical particularly having regard to the age of the children. No doubt they would find travel of that kind exhausting. The result would be unhappy children and an unhappy contact experience from the time spent by the children with the Respondent. Travel for such a short period does not appear to be justified in those circumstances.
For the Respondent to travel to Cairns (putting aside issues concerning employment[24]) there is greater flexibility available to the Respondent. For instance given the flexibility available to him by reason of his employment it is not inconceivable that he could make a long weekend of contact visits to Innisfail whether by leaving Thursday evening or Friday morning permitting him time to collect the children school or in the case of the youngest child day care on the Friday afternoon and returning them on Monday morning to the Applicant’s residence or school. Visits on this basis would also present him with the opportunity to speak with other important persons in the lives of his children including teachers, the parents of his children’s friends and others involved in the Innisfail region with his children.
[24] The Respondent’s evidence was that his employer would permit a reasonably flexible approach . The Respondent works for him for forty hours a week the actual hours and times when the Respondent works are left up to him with the [workplace omitted] at his place of employment being open from 6.00am to 7.00pm Monday to Friday each week with the Respondent being at liberty to work at any 40 hours of time between those times.
It would also provide him with an opportunity to see places such as the children’s school and childcare facilities whilst operationally giving him a greater understanding of places of importance in his children’s lives.
There is however the practical difficulty involved with the accommodation of the children if the spending time with the Respondent was to occur in those circumstances. There is evidence that the Respondent has a brother in Port Douglas. I accept however the Respondent’s evidence that his visiting the brother to stay on a regular basis may constitute an imposition and that it would be unfair in that regard to visit upon him that imposition, if indeed the invitation was available. That otherwise would lead to the prospect that the Respondent having to enjoy time with his children in rented accommodation a motel or self contained apartment.
A motel would provide a most unsatisfactory venue for accommodation on an extended basis. That sort of arrangement although fine on a temporary basis would be unsatisfactory for more than a night. By that I mean not only in terms of the length of stay but also over an extended period. There is in my view a need for some continuity of accommodation arrangements such that the children spend time with the father at a common venue whether it be in Innisfail, Cairns or Brisbane. The venue must also be comfortable affording some privacy and basic cooking facilities. It is for instance unsatisfactory for both the Respondent and the children to be expected to live on takeaway food for an entire weekend.
Cairns is a popular tourist destination and provides a very broad assortment of accommodation. There are for instance many serviced or self contained apartments available on a short term rental basis. It is appropriate that if relocation is permitted that it would only be permitted if satisfactory accommodation can be agreed between the parties. A minimum standard of accommodation which I expect for spending time with the Respondent would be a serviced or self contained apartment. Furthermore I would expect any arrangement to involve agreement concerning the particular apartment such that it will remain the spending time facility for the duration of these orders.
Furthermore given the ages of the children some means of transport is necessary. It is not satisfactory for the Respondent to rely upon public transport. Of course if the Applicant could make an appropriate vehicle available to the Respondent that would resolve that difficulty. However in the absence of that facility being available for the Respondent to collect from and return to the airport upon his arrival and departure from Cairns it will be necessary for a rental vehicle to be secured. Having regard to the needs of the Respondent I would expect a rental vehicle to be of a type equivalent to a Toyota Corolla/Holden Astra/Ford Laser or the like.
The Respondent would have to fly to Cairns. As the Applicant would be meeting the cost the Respondent would be required to accept the lowest airfare available. This will vary from season to season. However these orders should permit a program to be prepared perhaps permitting advance discount fares to be obtained. If appropriate the Applicant should be permitted to use frequent flyer points to pay for such transport. The respondent should also be permitted the cost of parking a vehicle at the long term parking facility at Brisbane airport for the duration of travel associated with such a visit.
I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of Burnett FM
Associate: Bev Schmidt
Date: 9 March 2007
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