Burke and Burke
[2009] FMCAfam 984
•18 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BURKE & BURKE | [2009] FMCAfam 984 |
| FAMILY – Children – relocation (interstate) – best interests of children. |
| Family Law Act 1975, Part VII, ss.60B (1)(a), (b), (2), (2)(a), (3), (3)(h), 60CA, 60CC (2)(a), 60CC (3), 60CC(3)(d)–(h), (j), (k), 60CC(4), 60CC(4A), 61DA, 65DAA, 65DAA (2)–(4) |
| A v A: Relocation Approach(2000) 26 Fam LR 382; (2000) FLC ¶93-035 P. Easteal & K. Harkins, “Are we there yet? An analysis of relocation judgments in light of changes to the Family Law Act,” (2008) 22 Australian Journal of Family Law 259-278 P. Parkinson “Relocation: What We Know Now and Why it Matters,” Paper for Family Law Conference, Fiji (June 2009) Macquarie Dictionary (Fourth Edition: 2005) |
| Applicant: | MR BURKE |
| Respondent: | MS BURKE |
| File Number: | CAC 1049 of 2008 |
| Judgment of: | Neville FM |
| Hearing dates: | 29 & 30 June; 1 July 2009 |
| Date of Last Submission: | 1 July 2009 |
| Delivered at: | Canberra |
| Delivered on: | 18 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Nicholson |
| Solicitors for the Applicant: | Commins Hendriks |
| Counsel for the Respondent: | Mr Skerjl |
| Solicitors for the Respondent: | Kell Moore Solicitors |
ORDERS
That all previous parenting orders be discharged.
That the Father and the Mother have equal shared parental responsibility for the children, [X] born in 2003, [Y] born in 2005 and [Z] born in 2006 (“the children”).
That the Father and the Mother consult and make a genuine effort to come to joint decisions in the event long-term issues arise in relation to the children, including but not limited to their:
(a)Health;
(b)Education;
(c)Religion; and/or
(d)Living arrangements.
That the children reside with the Father in [L], New South Wales.
That the children spend time with the Mother at all times as agreed between the parties, but failing agreement as follows:
(a)From 5.00 pm Friday until 8.00 am Monday on the last weekend of each alternate calendar month, in [L], commencing the first calendar month following these Orders;
(b)From 5.00 pm Friday until 8.00 am the following Monday on the last weekend of each alternate calendar month, in Melbourne, commencing the second calendar month following these Orders;
(c)For the first half of all New South Wales school term holidays in 2009 and each alternate year thereafter, commencing at 3.30 pm on the last day of school and concluding at 12.00 pm on the middle Saturday of the holiday break;
(d)
For the second half of all New South Wales school term holidays in 2010 and each alternate year thereafter, commencing at
12.00 pm on the middle Saturday of the holiday break and concluding at 12.00 pm on the following Saturday;
(e)For the first four weeks of the Christmas school holiday break in 2010 and each alternate year thereafter commencing at 3.30 pm on the last day of school for the year, and concluding at 12.00 pm on the 28th day thereafter; and
(f)
From 3.00 pm on Boxing Day in 2009 and each alternate year thereafter for a period of 28 days, concluding at 12.00 pm on
23 January in the following year.
(g)Should the wife be in [L] at any time during a New South Wales school term for one weekend per school term in [L] at times to be agreed between the parties, provided that the wife gives to the husband not less than two (2) weeks notice in writing of her intention to spend time with children pursuant to this Order.
That with respect to the Christmas period, despite with whom the children are living with during the week of Christmas, unless otherwise agreed, they shall spend time with their Parents as follows:
(a)With the Father from 3.00 pm Christmas Eve until 3.00 pm Christmas Day in 2009 and each alternate year thereafter;
(b)With the Mother from 3.00 pm Christmas Day until 3.00 pm Boxing Day in 2009 and each alternate year thereafter;
(c)With the Father from 3.00 pm Christmas Day until 3.00 pm Boxing Day in 2010 and each alternate year thereafter; and
(d)With the Mother from 3.00 pm Christmas Eve until 3.00 pm Christmas Day in 2010 and each alternate year thereafter.
That unless otherwise agreed between the parties, for the purpose of Orders 5 and 6, the Father is to facilitate the children spending time with the Mother by the Father delivering the children to the wife in [L] at the commencement of the relevant period, and the Mother is to deliver the children to the Father’s home in [L] at the conclusion of the relevant period.
That the children communicate with the parent with whom they are not living three (3) times per week by telephone (or Skype) between the hours of 6.45 pm and 7.45 pm and the parent with whom they are not living initiate the call and the parent with whom they are living facilitate the Children communicating with other parent.
That the Father and the Mother provide to the other and keep the other party informed of his or her current residential address and contact telephone number and advise of any change in relation to either within seven days of such change.
That each party will not denigrate the other and will use their best endeavours to ensure that no other person denigrates the other party, their relations or members of the other party’s household, to the children or in the presence of the children.
That the parties notify the other of the name, address and telephone number of any medical practitioner or any other professional that they take either of the children to, and by this Order, that medical practitioner or other professional is authorised to release information to the other party concerning either of the children’s health or welfare.
That each party shall notify the other party of any medical emergency or medical condition concerning either of the children as soon as possible after its occurrence.
That the parties shall authorise any school that either of the children attend to release such information concerning the children’s education or development, or school related events to the other party at the other party’s request and at the other party’s expense.
THAT ALTERNATIVELY IN THE EVENT THE MOTHER RESIDES IN [L], IT IS ORDERED:
That Orders 4, 5 and 7 of these Orders be discharged.
That from 2009 to 2011:
(a)The children live with the Mother; and
(b)The children spend time with the Father at all times as agreed between the parties, but failing agreement:
(i)For a period of 12 months following the date of these Orders:
A.From Thursday at 3.30 pm until Friday at 8.30 am in Week One and each alternate week thereafter; and
B.From Thursday at 3.30 pm until Monday at 8.30 am in Week Two and each alternate week thereafter.
(ii)For a period of 12 months commencing on the anniversary of these Orders:
A.From Wednesday at 3.30 pm until Friday at 8.30 am in Week One and each alternate week thereafter; and
B.From Wednesday at 3.30 pm until Monday at 8.30 am in Week Two and each alternate week thereafter.
That commencing at the start of the New South Wales school year in 2012 the children live with the Father and the Mother on a week about basis as follows:
(a)From 5.00 pm on the Sunday immediately following the twelve month anniversary of these Orders until the following Sunday at 5.00 pm and for each alternate week thereafter the Children live with the Father;
(b)From 5.00 pm on the second Sunday immediately following the twelve month anniversary of these Orders until the following Sunday at 5.00 pm and for each alternate week thereafter the Children live with the Mother;
(c)Where a long weekend occurs with the Monday being a Public Holiday in the state of New South Wales, the changeover time will be 5.00 pm on the Monday in lieu of the Sunday.
That should Father’s Day occur on a weekend where the children would otherwise be living with the Mother in accordance with these Orders, the children shall be returned to the Father by 5.00 pm on the Saturday immediately preceding Father’s Day.
That should Mother’s Day occur on a weekend where the children would otherwise be living with the Father in accordance with these Orders, the children shall be returned to the Mother by 5.00 pm on the Saturday immediately preceding Mother’s Day.
That with respect to each of the children’s birthdays, unless otherwise agreed:
(a)If the birthday occurs on a school day, the parent with whom the children are not living with during that week shall spend time with the children from 4.00 pm to 6.30 pm on that day.
(b)If the birthday occurs on a non-school day, the parent with whom the children are not living with during that week shall spend time with the children from 3.00 pm until 6.30 pm on that day.
That with respect to the changeover of the children pursuant to these Orders, unless otherwise agreed, the Father shall collect the children from their school or day-care facility or the Mother’s residence at the commencement of his time with the children and the Mother shall collect the children from their school or day-care facility or the Father’s residence at the commencement of her time with the Children.
IT IS NOTED that publication of this judgment under the pseudonym Burke & Burke is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1049 of 2008
| MR BURKE |
Applicant
And
| MS BURKE |
Respondent
REASONS FOR JUDGMENT
A. Introduction and overview
The Macquarie Dictionary defines “triptych” as: “a set of three panels or compartments side by side, bearing pictures, carvings, or the like. [And] a hinged or folding three-leaved writing tablet.”[1] Leaving aside other references that involve music and opera, the Shorter Oxford English Dictionary is to similar effect, but with the not unimportant point that a triptych is also “a set of three thematically connected paintings hung together.”[2] I emphasise the “thematic connection.”
[1] Macquarie Dictionary (Fourth Edition: 2005).
[2] Shorter Oxford English Dictionary on Historical Principles (Fifth Edition: 2003).
Parenting matters, of which relocation is a particular species, might be likened to a triptych. By this I mean that one is required to look at, as it were, the first panel, which comprises the past relational history of the parents and the children involved. The second panel comprises the current situation of the parties and the children.
The third and final panel that completes the triptych – albeit to a limited degree – aided by the trial process, any experts called, such as family consultants, and the Court’s assessment of the evidence of the parties, seeks to present the picture for the now divided family into the future. As already indicated, it is necessarily an incomplete picture. Indeed, with each panel that unfolds more often than not (particularly in relation to the third panel) greater levels of opacity are [ironically] revealed.
Thus so here: the first panel might be presented as follows. The applicant Father is aged 34 and the Respondent Mother, 28. The parties commenced co-habitation in July 2001 and married in 2004 in the country New South Wales town of [L]. Subject to some slight qualification later, the relationship ended in either late 2007 or early 2008.
There are three children of the relationship: [X] (aged 5), [Y] (aged 4) and [Z] (aged 2) (“the girls” or “the children”). It is not disputed that the girls have a good relationship with both parents.[3] It is disputed as to how much involvement Mr Burke had in the girls’ lives during the parties’ relationship. For my part, I am not sure that attempting to resolve this piece of history is going to be of much assistance. Indeed, unless there is a specific matter from the past that is directly relevant to the issues to be decided by the Court I do not propose trawling through much, if at all, of the relational history of the parties. More recent events have overtaken its relevance. Ms Deane acknowledged that
Ms Burke was the children’s primary carer,[4] as did Mr Burke.[5]
[3] In her evidence during the trial, the Family Consultant, Ms Deane, agreed with the proposition that the girls have a “strong bond” with both parents. Transcript (1st July 2009) p.139. See also Ms Burke’s evidence, Transcript (30th June 2009) p.96.
[4] Transcript (1st July 2009) p.143.
[5] Transcript (29th June 2009) p.22.
Nor is it disputed that the girls have a close relationship with both their parents’ extended families, all of whom live predominantly in or around the NSW country city of [L].
Ms Burke has re-partnered. Her new partner, Mr S, lives and works in Melbourne. He confirmed in his evidence at trial that he has no plans to formalise the relationship with Ms Burke, although he indicated that he and Ms Burke would ultimately move in together and would like to have children. In relation to formalising the relationship he said: “Marriage … I don’t think there’s even a time. It was decades ago when marriage is of importance.”[6] Ms Burke wishes the children to go to the local Catholic school in Melbourne and has made some general inquiries in this regard.[7]
[6] Transcript (30th June 2009) p.127. It is not apt to comment on the apparent dissonance between the attitude to marriage articulated by Ms Burke’s new partner and the likely values and principles in relation to marriage likely to be taught to the girls in the school proposed by Ms Burke.
[7] See Ms Burke’s evidence, Transcript (30th June 2009) pp.78-79.
Ms Burke’s application to relocate to Melbourne with the girls is at the heart of the proceedings. Of some significance – to be determined – is the fact that Ms Burke has stated that she intends to go to Melbourne with or without the girls, such is her level of desperation to leave what she describes (using my words) as the suffocating, claustrophobic small environs of [L].[8]
[8] Among other places, see the discussion with the Family Consultant, Ms Deane, Transcript (1st July 2009) pp.138-139. Ms Burke’s evidence in relation to moving to Melbourne is at Transcript (30th June 2009) pp.80, 91, & 104. In relation to her isolation in [L], see Transcript (30th June 2009) pp.83-84, 87, 89, 90 & 100.
She offered some limited, independent evidence regarding her state of (emotional and psychological) well-being – or lack thereof – in the course of the trial.
Unsurprisingly, Mr Burke seeks no specific orders in relation to Ms Burke moving to Melbourne. He opposes her doing so with the girls. He has also indicated that, in the event that Ms Burke returns from Melbourne within approximately 12 months, again using my words not his, she will not be “punished” and he would be more than content for the proposed shared care regime (which is to commence in approximately 12 month’s time) to be reinstated.[9]
[9] Among other places, see the “opening” remarks of Mr Nicholson, Counsel for Mr Burke, at Transcript (29th June 2009) p.2, and the evidence of Mr Burke, Transcript (29th June 2009) p.8.
Ms Burke commenced diploma studies in [omitted] in [W] in February 2008, which obviously required her to travel regularly to that locality.
The initiating application was filed by Mr Burke on 1st July 2008. A Response was filed by Ms Burke in August 2008. She filed an Amended Response on 17th November 2008, which was the first time that she sought the sanction of the Court to relocate to Melbourne with the girls.
In resolving the matters before the Court raised by both parties, I proceed in detailing the following two panels of the triptych as follows.
After outlining the respective proposals of the parties, I move to a consideration of their evidence (and that which was provided by others on their behalf, such as Ms Burke’s partner, Mr S, and Ms C), then the evidence of the Family Consultant, Ms Deane. Next I detail the basic principles gleaned from a range of relocation cases – past and present - before finally traversing the building blocks/stepping stones that go to make up the `legislative pathway’ set out in Part VII of the Family Law Act1975 (“the Act”) and as prescribed by the Full Court in Goode v Goode and Keach & Keach.[10]
[10] (2007) 36 Fam LR 422, especially at [10], [47], [48], [56], [81] & [82], and (2007) FLC ¶93-353 at [24] ff respectively.
At this early stage, for the purposes of context, principle and legislative framework, it is intended to be helpful to note, as I have done in other judgments, the utility of Brown J’s observations in Mazorski v Albright,[11] which provide a helpful summary of the Court’s responsibilities under Part VII of the Act. Her Honour’s not infrequently cited “twin pillars” description, of children having a meaningful relationship with both parents (as well as other family members, such as in this case the applicant Grand-parents) and the need to protect children from physical and psychological harm, neatly summarises the general principles that are in tension in these proceedings. Her Honour’s “twin pillars” is a more than convenient “short-hand” expression, which is teased out later, in relation to the “legislative pathway.”
[11] (2007) 37 Fam LR 518 at [3] – [6].
B. Competing Proposals
At the conclusion of the hearing I requested each party to forward to my Chambers a copy of their up-to-date Minute of Orders Sought. Both parties sought two sets of orders, primary and alternative, so as to cater for arrangements if the children were permitted to relocate and in the event that they were not permitted to do so.
In his Minute of Orders sought, filed in Chambers on 2 July 2009,
Mr Burke sought the following primary orders:
1.That the Father and the Mother have equal shared parental responsibility for the Children of their marriage, [X] born in 2003, [Y] born in 2005 and [Z] born in 2006 (“the Children”).
2.That the Father and the Mother consult and make a genuine effort to come to joint decisions in the event long-term issues arise in relation to the Children, including but not limited to their:
(a) Health;
(b) Education;
(c) Religion; and/or
(d) Living arrangements.
3.That from 2009 to 2011:
(a) The Children live with the Mother; and
(b) The Children spend time with the Father at all times as agreed between the parties but failing agreement:
i.For a period of 12 months following the date of these Orders:
AFrom Thursday at 3.30 pm until Friday at 8.30 am in Week One and each alternate week thereafter; and
BFrom Thursday at 3.30 pm until Monday at 8.30 am in Week Two and each alternate week thereafter.
ii.For a period of 12 months commencing on the anniversary of these Orders:
A.From Wednesday at 3.30 pm until Friday at 8.30 am in Week One and each alternate week thereafter; and
B.From Wednesday at 3.30 pm until Monday at 8.30 am in Week Two and each alternate week thereafter.
4.That commencing at the start of the New South Wales school year in 2012 the Children live with the Father and the Mother on a week about basis as follows:
(a) From 5.00 pm on the Sunday immediately following the twelve month anniversary of these Orders until the following Sunday at 5.00 pm and for each alternate week thereafter the Children live with the Father;
(b) From 5.00 pm on the second Sunday immediately following the twelve month anniversary of these Orders until the following Sunday at 5.00 pm and for each alternate week thereafter the Children live with the Mother;
(c) Where a long weekend occurs with the Monday being a Public Holiday in the state of New South Wales, the changeover time will be 5.00 pm on the Monday in lieu of the Sunday.
Additionally Mr Burke sought orders setting out arrangements for changeovers, for the children to communicate with their non-resident parent and for the children to spend time with their parents on special occasions such as Christmas, Father’s Day, Mother’s Day and the children’s birthdays. Other ‘standard’ orders were sought making provision for the parties to keep each other informed of contact details and any emergencies in relation to the children, as well as non-denigration orders.
In the event Ms Burke’s application to relocate the children was granted, Mr Burke alternatively sought that the children reside with him and spend time with Ms Burke as follows:
That the Children spend time with the Mother at all times as agreed between the parties, but failing agreement as follows:
1. From 5.00 pm Friday until 8.00 am Monday on the last weekend of each alternate calendar month, in [L], commencing the first calendar month following these Orders.
2. From 5.00 pm Friday until 8.00 am the following Monday on the last weekend of each alternate calendar month, in Melbourne, commencing the second calendar month following these Orders.
3. For the first half of all New South Wales school term holidays in 2009 and each alternate year thereafter, commencing at 3.30 pm on the last day of school and concluding at 12.00 pm on the middle Saturday of the holiday break;
4. For the second half of all New South Wales school term holidays in 2010 and each alternate year thereafter, commencing at 12.00 pm on the middle Saturday of the holiday break and concluding at 12.00 pm on the following Saturday.
5. For the first four weeks of the Christmas school holiday break in 2010 and each alternate year thereafter commencing at 3.30 pm on the last day of school for the year, and concluding at 12.00 pm on the 28th day thereafter;
6. From 3.00 pm on Boxing Day in 2009 and each alternate year thereafter for a period of 28 days, concluding at 12.00 pm on 23 January in the following year.
Mr Burke’s alternate orders also provided for the children to spend time with their parents during the Christmas period in the same terms as his primary orders, and also sought identical standard orders for notifications, authorisations and non-denigration orders.
For her part, in her Minute of Orders filed in Chambers on 24 July 2009, Ms Burke sought a primary set of orders, in the event that the Court granted her application:
1.The husband and the wife have equal shared parental responsibility for the children of the marriage [X] born in 2003, [Y] born in 2005 and [Z] born in 2006.
2.The said children of the marriage live with the wife.
3.The wife and the children of the marriage be and are hereby permitted to relocate from [L] to Melbourne.
4.Upon the wife and the children of the marriage relocating from [L] to Melbourne the orders made on 13 August 2008 be and are hereby discharged.
5.Upon the wife and children of the marriage relocating to Melbourne the children spend time with the husband as follows:
5.1 for one long weekend at the mid point of each Victorian school term at times to be agreed between the parties;
5.2 for one half of all Victorian school term holidays at times to be agreed between the parties;
5.3 for the last four (4) weeks of the Victorian Christmas school holidays commencing with the 2008/2009 Victorian school holidays and each alternate year thereafter provided that the children also spend time with the husband from 3.00pm on Christmas Day until 3.00pm on Boxing Day;
5.4 for the first four (4) weeks of the Victorian Christmas school holidays commencing with the 2009/2010 Victorian Christmas school holidays and each alternate year thereafter provided that the children also spend time with the wife from 3.00pm on Christmas Day until 3.00pm on Boxing Day;
5.5 by telephone on two (2) occasions each week between the hours of 6.30pm and 7.30pm provided that the wife be permitted to telephone the children on one occasion each week between the hours of 6.30pm and 7.30pm when the children are in the care of the husband during Christmas school holidays as provided above;
5.6 should the husband be in Melbourne at any time during a Victorian school term for one weekend per school term in Melbourne at times to be agreed between the parties provided that the husband gives to the wife not less than two (2) weeks notice in writing of his intention to be in Melbourne; and
5.7 at such other times as may be agreed between the parties.
6.The spend time with arrangement provided for in orders 3.1, 3.2, 3.3 and 3.4 be put into effect by the wife delivering the children to the husband in [L] at the commencement of the spend time with period and by the wife collecting the children from the husband in [L] at the conclusion of that spend time with arrangement.
Alternatively, in the event that the children were not permitted to relocate from [L] to Melbourne, Ms Burke sought the following orders:
1.The husband and the wife have equal shared parental responsibility for the children of the marriage [X] born in 2003, [Y] born in 2005 and [Z] born in 2006.
2. The orders made on 13 August 2008 be and are hereby discharged.
3. The children of the marriage reside with the husband.
4. The children of the marriage spend time with the wife as follows:
4.1 for one long weekend at the mid point of each New South Wales school term at times to be agreed between the parties;
4.2 for one half of all New South Wales school term holidays at times to be agreed between the parties;
4.3 for the last four (4) weeks of the New South Wales Christmas school holidays commencing with the 2008/2009 New South Wales school holidays and each alternate year thereafter provided that the children also spend time with the wife from 3.00pm on Christmas Day until 3.00pm on Boxing Day;
4.4 for the first four (4) weeks of the New South Wales Christmas school holidays commencing with the 2009/2010 New South Wales Christmas school holidays and each alternate year thereafter provided that the children also spend time with the husband from 3.00pm on Christmas Day until 3.00pm on Boxing Day;
4.5 by telephone on two (2) occasions each week between the hours of 6.30pm and 7.30pm provided that the husband be permitted to telephone the children on one occasion each week between the hours of 6.30pm and 7.30pm when the children are in the care of the wife during Christmas school holidays as provided above;
4.6 should the wife be in [L] at any time during a New South Wales school term for one weekend per school term in [L] at times to be agreed between the parties provided that the wife gives to the husband not less than two (2) weeks notice in writing of her intention to be in [L]; and
4.7 at such other times as may be agreed between the parties.
5.The spend time with arrangement provided for in 5.1, 5.2, 5.3 and 5.4 be put into effect by the husband delivering the children to the wife in [L] at the commencement of the spend time with period and by the wife returning the children to husband in [L] at the conclusion of the spend time with period.
C. Evidence of the parties, Mrs B & Mr S
I will deal with the evidence of the parties as summarily as the circumstances and applications before the Court permit.
Evidence of Mr Burke: As far as one can make adequate or appropriate assessments of people who give evidence in Court, Mr Burke struck me as a fair and straight-forward witness. He was, on his own evidence, still coming to grips with the somewhat late-breaking news that his former wife was wishing – indeed intending – to relocate to Melbourne and wished to do so with the girls. His genuine hope was that this did not occur, not to prevent Ms Burke from `moving on’ with her life, but for the sake of the children.[12] I accept his evidence and general statements on these matters, as I do more generally in relation to his evidence as a whole.
[12] Transcript (29th June 2009) pp.9 ff.
Likewise, as a matter of logistics and much else besides, I also accept Mr Burke’s evidence that he would need significant family support in caring for the girls due to his work commitments.[13] Indeed, it was generally accepted by all that such would have to be the case if the girls remained in [L] with their Father. Significantly, this support would come from both sides of the family.
[13] Transcript (29th June 2009) p.8.
It was also not in dispute that both parents recognised the other parent to be a “good parent” and that each of them loved their children very much.[14] All of this was so despite Ms Burke being critical of Mr Burke during the course of the relationship regarding his availability to assist with the children.
[14] See, for example, Mr Burke’s evidence, Transcript (29th June 2009) pp.23 & 24.
Apart from one particular matter (noted below), as I have already indicated I see little point in trawling through contested history of the relationship before separation, although that occupied some time with Mr Burke’s cross-examination. I accept his evidence, which is supported by copies of email correspondence (attached to various affidavits filed in the proceedings) passing between the parties, to the effect that there is a `business-like’ relationship between the parents, at least in relation to matters pertaining to the girls.[15]
[15] Transcript (29th June 2009) pp.32-33.
Moreover, there are two affidavits filed on behalf of Mr Burke from members of Ms Burke’s family. They are by Ms M and Ms N, who are respectively, Ms Burke’s younger sister and the paternal aunt of
Ms Burke.[16] Neither deponent was required for cross-examination. Both members of Ms Burke’s family attest to the good relationship that Mr Burke has with the Mother’s side of the family, the regular involvement that Mr Burke ensures the girls have with Ms Burke’s wider family, and the care and attention that Mr Burke gives to the girls. To state the obvious, these are not insignificant matters, which are unchallenged by Ms Burke.
[16] Both affidavits were sworn on 8th January 2009 and filed on 13th January 2009.
The one issue of some moment concerns a dispute or contention that Mr Burke is said to have accused Ms Burke, in some blunt language, of a sexual liaison (or liaisons) during her forays to Melbourne while still married to Mr Burke.
Ms Burke’s contention is that Mr Burke effectively circulated these allegations around [L] such that now her life is a misery. For his part, Mr Burke says that he only learnt of the alleged “liaisons” from others (who, he says, were told by Ms Burke) and that he did not pass on that information.[17] He admitted that he had used strong language to
Ms Burke in relation to these matters.
[17] See, for example, Mr Burke’s evidence at Transcript (29th June 2009) p.36 ff.
It was suggested that the so-called “news” of Ms Burke’s new relationship with Mr S was “around”, in a manner of speaking, in May 2008. However, Mr Burke commented that now [mid 2009] it was “old news.” He was certainly not aware of any comments about Ms Burke and her new partner in recent times. He also made the point that he told friends not to judge and, perhaps more realistically, he said that Ms Burke was still the Mother of the girls and that he did not want any stigma for or on them.[18]
[18] Transcript (29th June 2009) pp.37-38. For other evidence regarding Ms Burke’s “treatment” in [L], post-separation, see Transcript (29th June 2009) pp.39, 30-43, 64 & 70.
Mr Burke was asked questions about Ms Burke’s relationship with her family. While he agreed that he knew that, at the commencement of their relationship, she had little or no relationship with her Father, he understood that Ms Burke had a good relationship with her Mother.[19] Otherwise, the questions to Mr Burke about Ms Burke’s relationship with her family were not all that helpful to me. Similarly, questions put to Mr Burke about certain events involving Ms Burke at which he was not present were bordering, at least, on the tangential.[20]
[19] Transcript (29th June 2009) pp.39-40.
[20] See Transcript (29th June 2009) pp.43-44.
Again, at a little length, Mr Burke was questioned over his relationship with Ms Burke in recent times. He acknowledged that up to approximately January 2009 he was still “raw” about the break up of his marriage and Ms Burke re-partnering with Mr S. He contended, however, that over the last five months or so, things had improved in his dealings with Ms Burke in matters relating to the children. He also agreed that most communication was via email, and that face-to-face communication was very brief.[21]
[21] Transcript (29th June 2009) pp.47-52 & 61-62.
There was significant discussion about the extent of telephone time between Mr Burke and the girls – currently and in the future. I need not canvass that discussion here.
Mr Burke acknowledged that if the girls lived with him, he would rely heavily (a) on assistance from the respective families, especially his own family, and (b) on child-care.[22]
[22] Transcript (29th June 2009) pp.60-61.
Mr Burke also acknowledged that if Ms Burke remains in [L], she will continue to feel alienated from the local community, even though, as Mr Burke perceived it, other news and gossip had long since overtaken the break-up of their marriage. As I note below, Ms Burke acknowledged the propensity for [L] to focus regularly on “new” gossip.
Mr Burke also acknowledged that Ms Burke feels that she has some difficulty communicating with him (which, of course, would be the case regardless of her place of habitation). At the same time, he expressed the view that Ms Burke was a very capable person who, he thought, would always do what, ultimately, was best for the girls and cope with that.[23]
[23] Transcript (29th June 2009) pp.68 & 69.
Evidence of Mrs B (Grandmother): It is sufficient to note that the evidence from the paternal Grandmother, Ms B, was that she could be available to look after the children from quite early each morning when Mr Burke might not be available due to work commitments, and equally so, after school until after Mr Burke returned home from work. She has had regular time with the girls. This evidence was not challenged.
Evidence of Ms Burke: Ms Burke stated that she first raised the issue of relocation with Mr Burke in May/June 2008 in the course of mediation. As it happens, the first formal notification opposing her proposed relocation came via letter from Mr Burke’s solicitors, dated 16th April 2008.[24] Yet, as already noted (see [12] above), Ms Burke did not seek the sanction of the Court to relocate until she filed her Amended Response on 17th November 2008. She rejected, however, the question from Mr Nicholson that, in April 2008, she had given up on her proposal to relocate to Melbourne. Indeed, she confirmed that she had wished to relocate “from before separation,” that she will go to Melbourne whether the children go with her or not, and that (she says) Mr Burke knew of her plans or intention in this regard, also from before separation.[25] She also confirmed that she would not stay in [L] even for a few months, for example, either until the delivery of judgment or until the commencement of the school year in 2010.
[24] See Transcript (30th June 2009) p.79.
[25] Transcript (30th June 2009) pp.79-80.
Her evidence was that Mr Burke was not much of a “Dad” during their relationship but that he has `actually taken notice [since separation] and spent time with the kids and that’s what’s important.’[26]
[26] Transcript (30th June 2009) p.82.
Ms Burke confirmed that since March 2008, she has spent every second weekend in Melbourne. As a consequence, the girls have spent that time (at least) with their Father. Sometimes the girls go to Melbourne with their Mother. If that is the case, Ms Burke and the girls stay in an apartment; otherwise, Ms Burke stays with Mr S.
Ms Burke confirmed that she takes the girls to her Mother’s house once or twice each week. Her Mother has looked after the girls since they were babies. Ms Burke confirmed that her Mother was a significant person in the girls’ lives, and had been since they were born.[27] She also contended that her Mother would do anything for the girls, but the support for her (Ms Burke) was virtually non-existent.[28]
[27] Transcript (30th June 2009) pp.85 & 86.
[28] Transcript (30th June 2009) pp.88-89.
There was some contention about the nature of her relationship with her family. Except to note, it is unnecessary to retail the to-ing and fro-ing in relation to that issue.[29]
[29] It is sufficient to note the summary at Transcript (30th June 2009) pp.86-88.
In relation to Ms Burke’s psychological welfare she confirmed that her treating psychologist was not on affidavit in these proceedings, although she had arranged for other experts, such as Ms C and Ms P – both of whom she had seen only briefly – to provide evidence to the Court about her well-being. Ms Burke confirmed that the reports filed on her behalf do not indicate that she is either depressed or anxious.[30] Indeed, Ms Burke conceded that the material contained in their reports, and the assessments by Ms C and Ms P, were based on information that had been provided by her, as opposed to any significant period of assessment or treatment by, or time spent with, them.
[30] Transcript (30th June 2009) p.92.
Ms Burke was insistent that, if she was in Melbourne and the girls were in [L], her relationship with the girls could be maintained more than satisfactorily through regular telephone and internet/Skype contact, in addition to regular, block times during school holidays. She maintained that the relationship “depends on the determination of the parent to have a relationship with the children.”[31]
[31] Transcript (30th June 2009) p.98.
To a significant degree, I accept the basic point of her contention. It must, however, be qualified to the extent that a relationship in which there is a significant degree of physical distance involved cannot, as it were, compete on the same footing as a relationship where such an impediment does not exist.
She confirmed in the witness box her contention or assertion to Ms C[32] that “her future was with Mr S and … if necessary she would leave her children.” In this regard, she said that she had “the right to be happy and I’m not going to be happy in [L].”[33]
[32] See Ms C's Report, which was Annexure A to her Affidavit of 2 June 2009 and filed 9 June 2009, par.5.9.
[33] Transcript (30th June 2009) p.105.
Ms Burke confirmed that she could rely on Mr Burke to keep the lines of communication open between the girls and Ms Burke’s side of the family.[34]
[34] Transcript (30th June 2009) p.106.
She also confirmed that (a) Mr S was not part of the family conference with the Family Consultant, Ms Deane, and (b) Mr S has had, at best, periodic contact with the girls.
Currently, Ms Burke works for a home-based, online [omitted] business that is conducted after hours by Mr S, who is an [occupation omitted] otherwise (although he is not fully qualified as such). In the event that Ms Burke relocates to Melbourne with the girls, she would, in all likelihood (she says) seek some work, which would be after the children were in bed. She confirmed that Mr S would be their carer on those occasions.[35] This is also predicated on the basis that she would not move in with Mr S for approximately 12 months or so, while the girls settle into Melbourne, their new school, and the like.
[35] Transcript (30th June 2009) p,109.
At the end of her cross-examination, Ms Burke confirmed her agreement with the proposal that, if she relocated with the children,
Mr Burke could spend time with the girls once each month, alternating between Melbourne and [L]. The travel would be shared. She also confirmed that she would prefer telephone (and Skype) contact between the girls and their Father to be every second day rather than every day.[36]
[36] Transcript (30th June 2009) pp.111-113. Discussion about change-overs also took place at this time.
I should note here that Ms Burke was a reasonably straight-forward witness but who was, not surprisingly, somewhat conflicted on a number of fronts. She wants desperately to get out of [L] notwithstanding that her originally expressed angst about gossip about the break-up of her marriage seems to have passed or at least dissipated significantly. Understandably, she wishes to live with her new partner, Mr S, and she also wishes to have the girls live with her. However, she is prepared to move to Melbourne and, if necessary, to leave the girls behind in [L]. Her evidence clearly showed her various, if not multiple, levels of conflict.
As well, in effect Ms Burke is asking the Court to make orders that would place the children in her care at a time in her life when (a) she is in a relatively new relationship with Mr S, (b) the girls have not had a great deal of time with Mr S, (c) Ms Burke’s living situation in Melbourne is very fluid, (d) her employment situation also is very fluid, (e) she and Mr S plan on starting a family in the next year or so, and (f) all of the girls’ family, on all sides, is in [L].
Much of the fluidity of these matters is a function of circumstances. Many of them may (and hopefully will) resolve themselves in time. However, the Court is being asked to make orders on the basis of a very significant number of unknown factors. As well, there is the very significant risk to the girls’ relationship with their Father if they move to Melbourne. Not only would they very likely miss him with the attendant risk of damage to their relationship with him, but also they would lose immediately the physical supports and very familiar family surroundings and support in [L].
Put in such terms, and accepting the all too natural and human desire of Ms Burke to relocate with the children to be with Mr S and to get out of [L], her emphasis was rather more on her needs than on those of the children.
Indeed, to put it even more starkly, it is Ms Burke’s choice to move so far from the children. She is free to move. Mr Burke seeks no restraint at all against his former wife in relation to her moving. The only question is whether she may be permitted to take the children with her to Melbourne. The relocation would clearly be less of an issue if she was proposing to move to a different locality but which allowed for very regular time for the girls with both parents.
Looked at from that perspective, it is clear that Ms Burke’s main (and understandable) motivation is her relationship with Mr S, who lives in Melbourne. Although I deal with his evidence shortly, I can note here that he confirmed that his livelihood, as he saw it, was in Melbourne. Currently he earns a good living as an [occupation omitted]. Although it was put to him that in that profession he could move to and work in [L] (or presumably somewhere close by so that Ms Burke could have easy access to the girls), he said he could not do so. Melbourne was where he worked and where he had commenced his online business.
Couched in the terms of Mr Nicholson, Counsel for Mr Burke, there are a very significant number of unknowns immediately in front of
Ms Burke in her move to Melbourne. Those unknowns also extend into the future for not a little way. She proposes that the Court place the children into those same unknowns.
Stated so baldly, such an observation sounds terribly harsh. It is not intended to be. Rather, it is simply to state a range of factors and a conclusion to which they inevitably lead. Such a conclusion of course is no reflection on her capacity and her labour as the girls’ Mother and her care for them.
Evidence of Mr S: Mr S confirmed that he and Ms Burke planned on having children within the next two years. He also confirmed that he and Ms Burke would not live together for some time if the children moved to Melbourne. He accepted that the girls would need some time to adjust to such a move.
Mr S also confirmed that there have been, perhaps, only between 10 to 15 occasions that he has spent with the girls and their Mother overnight.[37] He confirmed that he has yet to meet Ms Burke’s Mother.
[37] Transcript (30th June 2009) p.127.
Evidence of Ms C: Ms C is an experienced Regulation 7 Consultant. Her evidence in these proceedings, however, was not in that capacity. She was retained by, and gave evidence as an experienced counsellor and therapist on behalf of, Ms Burke.[38]
[38] Ms C’s primary evidence was by way of affidavit, affirmed on 2nd June and filed on the 9th of that month.
In the course of her cross-examination her letter of engagement/ instruction from Ms Burke’s solicitors was tendered.[39] That letter stated that Ms Burke’s intention or wish to move to Melbourne was because of her relationship with Mr S and because of career prospects.
[39] Letter from Kell Moore, Solicitors to Ms C, dated 16th March 2009: Exhibit A.
The letter also confirmed to Ms C that in the event Ms Burke was not successful in obtaining the sanction of the Court to relocate she would remain in [L]. It was in the context of this latter scenario that Ms C’s professional opinion was sought as to its likely impact on Ms Burke.
It was only during the course of her one and only session with
Ms Burke that Ms C learnt of Ms Burke’s intention to move to Melbourne with or without the children.
Ms C confirmed that in preparing her report she did not see or speak with Mr Burke, nor did she see the girls. And she did not see or speak with Mr S.[40]
[40] Transcript (30th June 2009) p.134.
Ms C agreed with Ms P’s assessment that Ms Burke does not meet the criteria for depression (at this stage), nor does she meet the criteria for anxiety (at this stage).[41]
[41] Transcript (30th June 2009) p.134. See also Ms C's Report, annexed to her affidavit filed on 9th June 2009, pars.6.1 – 6.8. Ms P's Report is annexed to Mr Hogan’s affidavit sworn on 4th February and filed on 6th February 2009. Mr Hogan is the solicitor for Ms Burke.
In my view, Ms C’s report did not advance the issues much at all. This is no reflection on her. Rather, it is a function of the limited material she had to work with. Indeed, one might reasonably wonder how a single, limited session with even the most experienced therapist could assist the Court in determining what (if any) impact a refused relocation might have on the well-being of the “unsuccessful parent”, in this case, Ms Burke. One would have thought that if any medical or psychological evidence would be beneficial it would have come from someone who had been regularly consulted by Ms Burke. Indeed, by using Ms P (who was not called to give evidence) and Ms C it could suggest that there was so limited psychological evidence available it actually did more harm than good in the circumstances of this case.
I also note the obvious curiosity in the dissonance between Ms Burke’s position about relocation (i.e. that she will move to Melbourne with or without the children) and the instructions to Ms C from Ms Burke’s solicitors that Ms Burke will not relocate without the children. Also of note is that this letter of instruction was written well after the Amended Response was filed regarding relocation. One might reasonably wonder when Ms Burke formed the view that she would relocate regardless of whether the children were with her. Obviously (or presumably) some time after the letter of instruction was written and certainly by the time she saw Ms C on 6th May 2009.
There is a further curiosity. In the Outline of Case Document filed on behalf of Ms Burke (it is not clear on its face whether Counsel prepared or settled it or whether it was prepared only by her solicitors) the section entitled “Documents Relied Upon by Respondent Wife” does not list the Report by Ms C. It does list the Report by Ms P. Ms P was not cross-examined; Ms C was. No point – procedural or otherwise – was taken by Counsel for Mr Burke in relation to these formal omissions/curiosities.
D. Evidence of Family Consultant
I will deal with Ms Deane’s evidence in two parts. First I will detail some observations from her Report, dated 16th December 2008. Secondly, I will consider her oral evidence given on the last day of the trial. Although not formally admitted, I accept Warnick J’s observations in SPS & PLS, at [7] – [22],[42] regarding the reliance on the Family Report and its admission by necessary implication. There is no question that all parties proceeded at the trial on the basis of the admission of the Family Report.
[42] (2008) FLC ¶93-363.
The following observations are taken directly from Ms Deane’s Report, firstly in relation to the capacity of the parties to understand and respond to the children’s needs:
Ms Burke and Mr Burke impressed with a very deep affection for their children, and both desire to be fully involved parents. However Ms Burke and Mr Burke continue to differ in respect to their views about the mother’s proposed relocation. It is likely that a Judicial decision would be required in this matter.
Mr Burke continues to hold the view that the children would benefit most from the ongoing care of both their parents. Ms Burke does not dispute that the children’s relationship with their father is important and she stresses that she would facilitate the children’s relationship with him.
Both the parents agreed that in the future they would protect all the children from the dispute, and particularly in regards to [X], ensure that the children are not exposed to adult issues related to the proposed relocation.[43]
[43] Family Report, par.26 – 28.
And in evaluating the matter, Ms Deane opined:
In this case given the significant travel distance between the locations and when considering the young age and developmental stages of the children, it would have an impact on the children’s future relationship with their father, if the proposed relocation occurs. The loss of the parenting relationship between the children and their father is the most significant cost for the children, if the relocation were to go ahead. There would be a reduction in the frequency of the time the children would spend with Mr Burke, which would have a negative impact on the quality of their relationship. The father would not have an opportunity to be involved in the children’s daily life and activities, which adds depths to the quality and connectedness of relationships. In other words, nurturing and consolidation of the children’s relationship with their father would be compromised with the relocation.
Particularly [Z], but also in regards to [Y], they are not at a developmental stage that they would be capable of retaining an image of their father for long periods and both would be very reliant on an adult to provide positive reminders of Mr Burke.
Ms Burke presents as genuinely motivated to encourage the father/children relationships and it seems that the mother would foster the children’s memory to the best of her ability, if relocated. However, if the relocation were to go ahead it would be much better if the children were older, when their relationships are well established, and the children are all of an age developmentally to retain and access memory to Mr Burke.
The benefits to the relocation for Ms Burke is central to her, she wants to make a fresh start in a city which offers her anonymity from the small town gossip and innuendo. Further, Ms Burke has formed a new relationship and she is looking forward to potential new career opportunities in the city. It is perfectly reasonable that Ms Burke would want to experience more freedom and perhaps the excitement offered by the city compared to that of her small home town. That is, she has a legitimate need to be able to get on with her life in the way she wishes to do. However, [X], [Y], and [Z] have a legitimate but competing need to be able to spend time with their father on a frequent and regular basis, and to have him participate in their daily lives…
…Although equal time arrangements offer benefits to some children, they must be developmentally appropriate and tailored to suit the special needs of the child. A week about equal time arrangement would not be a suitable option developmentally for the two younger children. They would likely experience intolerance to a prolonged separation of seven day periods from their attachment figures, and such an arrangement could impact on their emotional security and development.
The central issue in this case when considering the father’s proposal is that these children have different needs related to their developmental stages. To introduce a substantially shared care arrangement, almost an equal time arrangement could be quite unsettling and confusing to them, and generally children manage better with a predictable routine. It seems that the children have adapted to the present parenting arrangement, they seem generally settled and this arrangement provides substantial time with their father. Potentially to introduce a substantially shared care arrangement at this stage of their development could stretch their capacity to cope. Mr Burke’s proposal could be particularly confusing to [X] and it might place more pressure on her whilst she is making the necessary adjustments to her first year of primary school.
Both parents have been regularly involved with the children since their infancy and they both wish to continue to do so. The children’s development capacity will change as they grow so a Final Order could provide for evolving arrangements that would maximise a sense of structure and continuity for them as they mature. School age children usually benefit from arrangements which reflect the routine of the school week, commencing on a Friday or Monday, and a week about arrangement becomes more suitable and could perhaps be considered at this later stage.[44]
[44] Family Report, par. 32 – 34, 36 – 38.
In relation to her oral evidence, which (of course) was predicated upon the “updated” evidence provided by both parties, the following may be observed.[45]
[45] Unless otherwise required, it will be sufficient to note that the evidence of Ms Deane is located at Transcript (1st July 2009) at p.138 ff.
Ms Deane confirmed her understanding that (a) the children had a “strong bond” with both parents; (b) there would likely be a diminution of that bond for the non-resident parent; (c) a so-called optimum age for relocation was not until the children were at school; (d) in any travel arrangements related to the children spending time with the non-resident parent, special attention to fatigue of the children, given their young ages, was required; and (e) the optimal result for the children would be for the parents to reside in the same general area so as to ensure the children have the maximum time possible with both parents.
Ms Deane acknowledged that Ms Burke was the children’s primary carer. Accordingly, she also stated that it would be a significant loss to, and doubtless lead to some grieving by, the girls if their Mother relocated without them and, as a result, she did not remain their primary carer. She also acknowledged that, whatever the support offered by other members of the family, that was not a substitute for the girls’ Mother and primary carer.
In the light of the evidence recounted above, it remains to deal with the legal principles that apply in relocation cases, as well as the “legislative pathway” set out in Part VII of the Act.
E. Relocation: legal principles
There have been a number of recent Full Court decisions that discuss principles relevant or applicable to relocation cases. I have in mind cases such as Sealey & Archer (Bryant CJ, Finn & Thackray JJ), Rosa & Rosa (Finn, May & Benjamin JJ), and Champness & Hanson (Thackray, O’Ryan & Benjamin JJ).[46] I will consider those judgments in the course of setting out principles of long-standing, relevantly beginning with the High Court decision in AMS v AIF, AIF v AMS.[47]
[46] Respectively, [2008] Fam CAFC 142; [2009] FamCAFC 81; and [2009] FamCAFC 96.
[47] (1999) 199 CLR 160. Kirby J articulated nine general principles in relation to relocation cases in AMS v AIF at [142] – [150]. Naturally, I have drawn extensively from his Honour’s list.
Before dealing further with judicial authority, I note too that the production of academic studies in relation to relocation also continues apace.[48]
[48] See, for example, P. Easteal & K. Harkins, “Are we there yet? An analysis of relocation judgments in light of changes to the Family Law Act,” (2008) 22 Australian Journal of Family Law 259-278; P. Parkinson, “The Realities of Relocation: Messages from Judicial Decisions,” (2008) 22 Australian Journal of Family Law 35-55; P. Parkinson, “Freedom of Movement in an Era of Shared Parenting: The Differences in Judicial Approaches to Relocation,” (2008) 36 Federal Law Review 145-171. Most recently, see Professor Parkinson’s paper, “Relocation: What We Know Now and Why it Matters,” Paper for Family Law Conference, Fiji (June 2009). Should it be relevant, I did not attend that Conference: it came to me via other means.
In F v F, I summarised the lines of authority since AMS v AIF in both the High Court and in the Full Court.[49] I note the following general principles outlined in and taken from that case, at [7] and [8]:
[49] F v F (2008) 38 Fam LR 52 at [7] – [8].
a) In the absence of legislative direction, no single factor is dispositive of decisions governing residence of a child in a context of the proposed relocation of the parent with whom the child resides. (AMS v AIF, Kirby J, [143]; A v A, [91]; cf. Powell v Ptolemy, [48]).
b)The over-arching issue is to ensure that any parenting order is in the best interests of the child. (AMS v AIF, Kirby J, [144]; U v U, Gummow & Callinan JJ, [80],[50] Hayne J, [171]; Bolitho v Cohen, [71]; Powell v Ptolemy, [40]). This is also to say that if there is a conflict between the welfare or best interests of the child, on the one hand, and the legitimate interests and desires of the parents, on the other, priority must be given to the best interests of the child. (AMS v AIF, Kirby J, [144]; Hayne J, [217-219]; A v A, [67] cf. Goode v Goode, [72]).
c)Freedom of movement of parents is a significant priority. That freedom is linked with the object of family law legislation to facilitate parties to a broken relationship to start a new life for themselves, including the possibility of forming a new relationship “free from unnecessary interference from a former spouse or partner or from a court.” (AMS v AIF, Kirby J, [145]. On “freedom of movement” generally, see AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [40-45]; Gaudron J, [96]; U v U, Gummow & Callinan JJ, [89]; cf. Powell v Ptolemy, [36]). Inhibition of movement may impinge upon the happiness of the custodial parent, which may in turn be transmitted to the child. (AMS v AIF, Kirby J, [145]).[51] Freedom of movement, however, takes second place to the paramount interests of the child.
d)There is no presumption in favour of a custodial parent to reside wherever he or she wishes. (AMS v AIF, Kirby J, [146]).
e)The applicant who seeks to relocate need not establish “compelling reasons” for such a move. (AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [47]; Gaudron J, [92]; Kirby J, [191] & [195]; Hayne J, [209]; A v A, par.85; U v U, Gummow & Callinan JJ, [82]). Nor does either party bear an onus to establish whether to relocate is, or is not, in a child’s best interests. (A v A, [96]).
f)Transport and modern means of telecommunication may be relevant factors in making proper arrangements (“new and different facilities of access and contact … with the other parent”) as between a child and his or her non-resident parent, especially in relation to relocation within Australia. (AMS v AIF, Kirby J, [147], [148 & 192]; Paskandy v Paskandy, [57]; A v A, [103 & 104] cf. M v S and “virtual visitation”[93]).
g)In determining a relocation case that involves changed parenting arrangements, a court must evaluate each of the proposals advanced by the parties, without necessarily being bound by them. (A v A, [65]; U v U, Gummow & Callinan JJ, [70 & 89]; Hayne J, [171 & 172]; Bolitho v Cohen, [83-85]). Put another way, without embarking upon “some roving inquiry”, and subject to the evidence led – and affording procedural fairness to all – a court will not necessarily be constrained solely by the proposals of the parties in determining what is in the best interests of the child. (U v U, Hayne J, [172]; Bolitho v Cohen, [84]; Powell v Ptolemy, [40]).
In addition to the above, it is essential to note the cautionary and critical observation of Gummow and Callinan JJ in U v U [92] which, in many respects, underlies the principles enunciated above:
The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
To this I would only add that, in certain respects, one responsibility of the Court is to apportion, according to principles of justice and equity in the context of what is in the best interests of the particular children involved, in what proportion, and how, the sacrifices will fall on each of the parents of the children. In saying this, the apportionment of the moral and legal obligations of parenthood should not be seen by either party as an apportionment of blame, and still less of “guilt”.
[50] It should be noted that in U v U, Gleeson CJ agreed with the judgment of Gummow & Callinan JJ, as well as with the comments of Hayne J. See (2002) 211 CLR 238 at p.240 [1].
[51] Cf.Payne v Payne [2001] Fam 473, where Thorpe LJ, summarised at [26] the two governing propositions under UK legislation and judicial authority over 30 years in relocation cases as (a) the welfare of the child is the paramount consideration and (b) refusing the primary carer’s reasonable proposals for relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. See also the reasons of Dame Butler-Sloss P [85]. See also the comments of Bryant CJ and Finn J in Taylor & Barker [2007] FamCA 1246 at [84] – [113].
In the later cases of Christie & Balkin and Badcoe & Badcoe,[52] I considered a range of more recent Full Court decisions, such as Wiley & Wiley and Winter & Winter.[53] In my view, in the light of the facts of the appeals before the Full Court, those decisions have accented (obviously in their own words) various parts of the principles that I have set out above.
[52] Respectively, [2008] FMCAfam 665 & [2008] FMCAfam 1368.
[53] Respectively, [2008] FamCAFC 153 & [2008] FamCAFC 159.
I should also accent Kirby J’s important observation in U v U, where his Honour said, at [164], that the Court should pay particular attention to the “paramount consideration of the best interests of the child, viewed in the long term and not just the short term.” (Emphasis added.)
Also in U v U, Hayne J commented aptly, at [204] and [205] (internal references omitted.):
The problems that family law legislation deals with are human problems: with all their attendant variety and complexity. And at the end of a court proceeding under such legislation, a judge must make an order – usually an order that says yes or no to some application. “[A] complicated mass of human experience has to be reduced to the simplest possible terms.” Because the problems are human problems, because they are as varied and complicated as they are, the legislation speaks in terms more often found in statements of aspiration than legal prescription. It is, then, hardly surprising that the guiding principles prescribed by the legislation for application in cases concerning the guardianship or custody of children or related issues, are principles that seldom, if ever, permit syllogistic reasoning.
Further, when considering the reasons given by a judge who has made an order in an application about the guardianship or custody of children, it is necessary to bear steadily in mind that the judge must grapple with the chaotic complexity of real life, make predictions not only of what he or she concludes may happen in the future but also of what will be “best” for the child, and do so having regard to what the parties have chosen to contest or emphasise in the course of the hearing.
Respectfully, I accept and adopt his Honour’s comments. They mirror, at least in part, aspects of my brief analogy in relation to the triptych at the commencement of these reasons.
I will consider the Full Court relocation decision of Rosa & Rosa (and others), when dealing with the ascetic judicial journey of the `legislative pathway’ that must be negotiated and upon which I now embark.
F. The legislative pathway
Given the logistics of the relocation proposed, and having regard to the emphasis placed on it in the legislation,[54] it seems to me that a consideration of this “pathway” must be prefaced by, and pay particular attention to, what is and what is not “a meaningful relationship.”
[54] See, for example, s.60B(1)(a) and s.60CC(2)(a).
Brown J considered “the concept of a meaningful relationship” at some length in Mazorski v Albright, to which I have already referred. Beginning at [20], through to [26], her Honour outlined a range of considerations. I set them out below, and respectfully adopt what Brown J said.[55] Her Honour said:
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[55] Brown J’s remarks were recently endorsed by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121].
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA(2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
The whole tenor and substance of the principles set out in s.60B(2) concern the involvement of both parents in the lives of their children (to the degree consistent with the children’s best interests) and the rights of the children to know, to be cared for by, and to spend regular time both their parents, “and other people significant to their care, welfare and development.” All of the “principles” espoused in this section are designed to ensure and to promote (as far as law can do so) that there is a “meaningful relationship” between the children and their parents as discussed by Brown J in Mazorski v Albright.
Against the above discussion, I note the following in relation to “the pathway” and its application to the facts and circumstances of this case.[56]
[56] Unless otherwise required, I follow, in order, the “additional considerations” without necessarily always mentioning specifically the particular sub-paragraph. Also, should it need to be noted, s.60B(3) and s.60CC(3)(h) have no application to these proceedings. Importantly too there are no substantive issues of violence raised. Although Ms Burke claimed that there were instances of violence during the marriage, no such matters were ever put to Mr Burke, nor any evidence led in this regard. Accordingly, s.60B(1)(b) and s.60CC(3)(j) & (k) have no work to do here either.
Parental Responsibility: The circumstances of the case are such that an order for equal shared parental responsibility under s.61DA can and should be made.
Substantial & Significant Time: By such an order, the question arises as to whether s.65DAA regarding substantial and significant time has application here.
In the event that Ms Burke does not relocate, Mr Burke’s “primary orders sought,” as set out earlier in these reasons, provides for a graduated move over the next twelve months to a shared care arrangement. In the event that Ms Burke does not relocate, or in the event that she returns to [L] within the next twelve months, I will make those orders. They would readily satisfy the requirements of s.65DAA.
In the event that Ms Burke does relocate to Melbourne, the practicalities of time with the children and other matters of logistics would render the operation of s.65DAA otiose.
The Pathway: Given the ages of the girls, there are no particular views for the Court to consider.
It is uncontested, as I have already noted, that the girls have a solid relationship with both parents. Likewise, it was also largely uncontested that the girls had very good relationships with all other members of both families. The only person in relation to whom there are questions marks, vis-à-vis the relationship with the girls, is Mr S, Ms Burke’s partner. On the evidence before the Court he has not spent a large amount of time with them. And rather unfortunately, he was not part of the family conference and subsequent Report of Ms Deane.
I have no doubt that both parents will do their utmost to promote the girls’ relationship with the other parent. Both Mr Burke and Ms Burke struck me as having significant capacity, and a clearly stated willingness, to promote the other parent’s relationship with the girls.
The matters set out in sub-paragraphs (d) and (e) in s.60CC(3) are at the nub of this case. The logistical issues may be addressed this way.
Whether the girls are with their Mother in Melbourne or their Father in [L], significant travel will be involved for the parents and (to some extent at least) the girls. As Ms Deane noted, special attention will be needed to ensure the girls are not unduly fatigued by too much travel. Thus, the parents will have to work out some practicalities to ensure this is sufficiently taken into account.
In the same vein, and as discussed at the trial, suitable telephone time and other means of communication, such as Skype, will be important to keep up appropriate levels of communication between the children and the non-resident parent. In this regard I would only venture the comment that Mr Burke’s insistence on daily telephone time with the girls is not, in my view, a viable, long-term option. Greater flexibility, from both parents, will be necessary. As the girls grow, their needs, routines, and other activities will impinge on regimes that are too rigorous.
In relation to the likely impact on a change in living situation for the girls and or the relocation of one of their parents, the following may be observed – notwithstanding that I have already noted the balance or competing factors that are in play.
On the one hand, Ms Burke is the girls’ primary carer, but the greatest level of unknowns remains on her side of the equation. Whether it is in relation to her living situation in Melbourne, which is dependent on her relationship with Mr S and what happens with the girls, whether it is in relation to her plans to have children with Mr S, or even her part-time employment, there remain a very significant number of question marks.
Likewise, if the children go with their Mother, they will unquestionably grieve for their Father, as well as for their wider family in [L]. This latter aspect, regarding the importance of the support with the girls’ wider family (on both sides), in my view, is significant.
On the other side of the equation, if the girls remain in [L], there is no doubt, as Ms Deane confirmed, that the girls will grieve significantly for their Mother. That loss will be hard to bear. It will, to some extent, be ameliorated by the wide support from both sides of their family.
I do not have any doubts about either parent having the capacity to provide for the various needs of the girls.[57]
[57] By this comment I intend to encompass the matters set out in s.60CC(3)(f) & (g).
With one reservation, nor do I have any concerns about the responsibilities of parenthood exercised or demonstrated by both parents. The reservation is this. It is something to which I have referred or adverted previously. It is Ms Burke and her `Hobson’s-choice’ dilemma.
I have noted earlier various authorities in which courts have recognised the right of a parent to start a new life following the break-down of a previous relationship. That is not disputed. Nor is it disputed that ‘compelling reasons’ are not required to support a relocation. All of that said, Ms Burke finds herself in a situation where she now must make a choice between her own happiness and the needs of her girls to be in close proximity to their Father. She has stated candidly that she feels compelled to leave [L], that her future is in Melbourne with Mr S, and that she will be no less compelled to leave her girls behind and move without them, if that be the decision of the Court that is in their best interests.[58]
[58] There is nothing in the Full Court discussion in Rosa & Rosa [2009] FamCAFC 81, such as at [67] – [70], and [79] – [111], or in the more recent Full Court decisions in Sealey & Archer and Champness & Hanson that alters my assessment of the situation as I have presented it here.
Put starkly, and I do so without criticism of her, Ms Burke has chosen her interests over those of the girls. Understandably, she contends that she does not do so and does not intend to do so. She loves her children and will do the best for them. I have no doubt of that. But she will not stay in [L]. She says that she cannot continue to live in [L] and that her happiness (indeed her life) would be totally compromised if she continued to do so. To stay in [L] would be too great a sacrifice that she cannot pay.
To some degree, these comments, and those made earlier, apply also to the matters to be addressed in s.60CC(4) and (4A).
G. Conclusion
Warnick J commented recently:[59]
In most cases about parenting orders under the Family Law Act there is no conceptual difficulty in the court applying the principle that the best interests of the child are [sic] the paramount consideration. However, that is not so when deciding upon orders in what have become known as “relocation cases.” That is because, when in relocation cases regard is also had to another consideration, namely the right to freedom of movement of a parent, a delicate interplay of concepts arises. That is on the most favourable view of it. On another view, that to which I incline, the result is an imbroglio of principles.
[59] B and B (NA27 of 2006) [1].
In AMS v AIF, Kirby J said, at [142] (internal references have been omitted): “…the facts of each case are unique. Those facts call forth a “careful and delicate analysis.””
Respectfully, I agree with the comments and observations of both Warnick J and Kirby J. I have endeavoured to apply them to the facts of this case.
Weighing up all of the facts and legal principles in this matter, in my view, the risks of the children going to Melbourne outweigh the risks to them staying in [L]. Put more positively, in my view, it is in the girls’ best interests, that they remain in [L] with their Father. Accordingly, the orders will be essentially as sought by Mr Burke.
It remains to be seen, of course, how these orders, which look to the immediate and future needs and interests of the girls, play out. How that occurs will determine the nature, detail and beauty (or lack of it) that will comprise the third panel of the triptych.
I certify that the preceding one-hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: J. Curtis
Date: 18 September 2009
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