C and C
[2002] FMCAfam 138
•22 May 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| C & C | [2002] FMCAfam 138 |
| FAMILY LAW — Children — Planned Relocation of Mother — A v A: Relocation Approach (2000) FLC 93-035 and cases referred to therein considered and applied — evaluation of parties’ competing proposals — recognition of importance of mother’s right to freedom of movement. |
| Applicant: | T T C |
| Respondent: | C R C |
| File No: | ZM 9526 of 2001 |
| Delivered on: | 22 May 2002 |
| Delivered at: | Melbourne |
| Hearing Date: | 5 – 6 February 2002 |
| Judgment of: | Walters FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Puckey |
| Solicitors for the Applicant: | Tait Taylor Lawyers |
| Counsel for the Respondent: | Mr Grant |
| Solicitors for the Respondent: | Fogarty Lawyers |
ORDERS
The mother and the father have joint responsibility for making decisions about the long term care, welfare and development of the child JE born 7 September 1999.
The said child live with the mother on a day to day basis.
The mother and the father each have sole responsibility for making decisions about the day to day care, welfare and development of the said child during periods when the said child is in their respective care.
The father’s application for an injunction restraining the mother from relocating with the said child (being the orders sought in paragraph 5 of the father’s application) be dismissed.
Contact orders — to be determined.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
ZM 9526 of 2001
| T T C |
Applicant
And
| C R C |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is the mother’s application for orders that are intended to enable her to move from Victoria with the parties’ child, JE (who is not yet three years of age), and reside in Cairns in Queensland. The mother has specified the contact orders that she seeks in the event of her application being successful.
The father seeks that the mother be restrained from removing JE from the Warrnambool area — and that he have certain defined contact with JE.
The parties agree that they are to have joint responsibility for JE’s long term care, welfare and development. They have also agreed that JE is to live with the mother on a day-to-day basis. As well, it has been agreed that the mother is to have sole responsibility for making decisions regarding JE’s day to day care, welfare and development whilst JE is in her care and the father is to have such responsibility whilst JE is in his care.
Documents Relied Upon
The father relied upon the following documents:
(a)his application filed 29 November 2001;
(b)his affidavit sworn 12 November 2001;
(c)his Information Sheet filed 29 November 2001; and
(d)his affidavit sworn 30 January 2002 (which I shall refer to as his “trial affidavit”).
The mother relied upon the following documents:
(a)her response filed 3 December 2001; and
(b)her affidavit sworn 30 November 2001 (which I shall refer to as her “trial affidavit”).
The mother filed an Outline of Case Document. It was filed on
4 February 2002.
The father did not file a formal Outline of Case Document.
Counsel for the father handed up a written Outline of Submissions.
Counsel for the mother did not provide written submissions.
Neither party relied upon any further filed material.
Background
The parties to the proceedings are the mother and father of the child JE born 7 September 1999. She is their only child.
The father was born on 15 December 1972. The mother was born on
28 May 1976.
The parties are not and never have been married — nor have they ever lived together.
JE has lived with the mother throughout her short life.
The father was initially reluctant to concede that JE was his child. Paternity testing was conducted when JE was approximately 5 months old. According to the father, he “…was nervous about becoming a father and wanted to protect both (himself) and JE by confirming paternity before (he) became too attached”. I shall comment on this passage later in these Reasons.
The parties agree that they “resumed an intimate relationship” approximately two and a half months after the paternity test results were received. The relationship was not a stable one. It finally broke down in September 2001.
As at the commencement of these proceedings, there were no orders in place dealing with the father’s contact with JE. Notwithstanding that fact, the mother has encouraged the father to have contact with JE since her birth.
There is a close and co-operative relationship between the mother and the father’s parents.
Until late 2001, the father’s contact with JE was as follows:
(a)each alternate weekend (including overnight on either the Friday or Saturday night);
(b)each other weekend from 2.00 p.m. to 8.00 p.m. on either the Saturday or Sunday; and
(c)one night each week at the mother’s home — from when the father finished work until JE’s bed time.
At the time of the trial the father was having contact with JE overnight each weekend. In other words, the father had ceased the Wednesday evening contact and had extended the daily contact on alternate weekends.
The father was desirous of increasing his contact with JE to either two consecutive nights each weekend or, alternatively, two consecutive nights each alternate weekend and an overnight visit during the week.
In approximately mid October 2001, the mother advised the father of her desire to move, with JE, to live in Cairns. It was as a result of this announcement that the father commenced the current proceedings.
The Mother
The mother’s parents separated when she was seven years old. Her mother moved to Queensland and the mother remained in Warrnambool with her father until she was 15 years of age. The mother had regular contact with her mother during that period. The mother thereafter moved to live with her mother in Cairns. She had regular contact with her father (who remained in Warrnambool) whilst she was in Cairns.
The mother finished high school in Cairns in 1994. She returned to Warrnambool to visit her father in 1997 and has lived there since that time.
The mother’s father moved from Warrnambool to Toowoomba, Queensland in early 2000.
The mother’s mother still lives in Cairns. She has remarried, and she and her husband operate a motel in Cairns.
The mother’s sister, S, lives in Cairns. S is aged 23 and has an 18 month old son. She has her own accommodation in Cairns.
The mother has a good relationship with the members of her family.
The Father
The father is an electronic/computer technician. He is a partner in a business in Warrnambool. The business appears to be in its infancy, and the father and his partners are attempting to build it up.
The father also has an interest in music, and is involved with three separate bands. He plays bass. It is apparent from the father’s evidence that the band’s activities take up a large amount of his spare time.
The father’s parents live in a small town, approximately half an hour’s drive to the west of Warrnambool. As indicated earlier in these Reasons, the mother has a good relationship with them.
The father sees his parents approximately once a week.
The father has two brothers and two sisters. One brother (who is aged 27) lives with the father’s parents. The other brother lives in an outer suburb of Melbourne. He has two children. The father sees this brother (and his family) approximately three times per year.
One of the father’s sisters is married and lives with her husband in Brisbane. She has no children. The father’s other sister is married with two young children. She and her family live in Port Macquarie, on the New South Wales northern coast.
According to the father his family is “extremely close”. Given that they reside at a distance from each other, their principal forms of communication comprise email and telephone.
Overview
In Hardy & Herlihy (2001) FamCA 1472 (unreported) Kay J said (at paragraph 51 and 52):
Relocation cases are agonising for all persons involved in them. They almost inevitably involve two claims of right. There is the right of the residence parent to get on with…life as he or she sees fit and, at the same time, there is the right of the children to maintain a meaningful relationship with the non-residence parent, if at all practicable. From the non-residence parent’s point of view a breakdown in the frequency of contact is no doubt a painful experience.
Decisions are often made by parties in these proceedings without thinking through the entirety of the consequences. This observation applies to both decisions to move and decisions to oppose any move.
I agree with the sentiments expressed by Kay J in the paragraph referred to above.
I observed both parties carefully as they gave their evidence, and at other times during the course of the proceedings. It is my view that both parties did their best to be open and frank and that, generally speaking, neither was more credible than the other. Where appropriate, however, I have made certain comments regarding each party’s evidence. It is to the credit of both parties that neither made any attempt to denigrate the other or to diminish the importance of his or her role in JE’s life. Both are genuine in their desire to take steps that are in JE’s best interests.
It is the mother’s wish to move to live in Cairns with JE. I shall deal with her proposal in more detail later in these Reasons. It is the father’s wish that JE remain in Warrnambool – in the care of the mother.
The Law
The Full Court has determined that certain guidelines should apply to the determination of a parenting case that involves a proposal to relocate the residence of a child. The guidelines are summarised in paragraph 108 of A & A: Relocation Approach (2000) FLC 93-035, and restated in paragraph 77 of H & L (2000) FLC 93-036. The guidelines are 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 residence 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 (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (l) of that subsection.
·The object and principles of s60B provide guidance to a court's obligation to consider the matters in s68F(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 s68F(2) factor, a court will set out attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s60B;
· As one, but only one, of the matters considered under s68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed 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 s92 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(2) 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.
Although I have quoted the Full Court’s ‘guidelines’ as they appear in paragraph 108 of A & A, I confirm that I have read carefully the whole of the Full Court’s decisions in both A & A and H & L. Further, I have read and am familiar with the decisions referred to in the two cases — including AMS & AIF (1999) FLC 92-852, Paskandy & Paskandy (1999) FLC 92-878 and B & B: Family Law Reform Act (1997) FLC 92-755. I am also aware that the High Court has recently reserved its decision in the case of U & U s256/2001 (and I have read a transcript of the argument which took place before the High Court on 11 April 2002).
Discussion
Before proceeding further with these Reasons, I refer to and revisit paragraph 74 of the Full Court’s decision in A v A:
In our view, the use of a structured series of analytical steps is an aid to the decision—making transparency and minimises the risks of a court falling into appellable error of the kind discussed in AMS v AIF. In weighing the advantages and disadvantages of the proposal, we agree with the recent observations made by a differently constituted Full Court in Findlay and Boniface [2000] FamCA 676 (unreported). In dismissing a ground of appeal that challenged the adequacy and clarity of the steps taken by a trial Judge in reaching her decision in a parenting order case, the Full Court said...:
Her Honour’s obligation was not to laboriously and exhaustively set out each and every advantage and disadvantage which she saw in each proposal put forward by the parties for the residence of/contact with their child. Her obligation was to deduce, from the evidence, and from her assessment of the parties and their witnesses, the essence of their competing proposals, and to decide, having considered the relevant matters referred to in s 68F(2) … which of those proposals would be more likely to advance the child’s best interests, which she was required to regard as the paramount consideration. Her further obligation was to give adequate reasons to enable the parties, and any appellate court called upon to review her decision, to understand how she arrived at her decision and to demonstrate that in arriving at it she did indeed regard the child’s best interests as paramount and did consider the relevant matters arising under s 68F(2).
The guidelines contained in A & A are relatively complex (and, with the greatest of respect to their Honours comprising the Full Court, rather awkwardly expressed). I take into account the sentiment expressed in Findlay & Boniface (subject to the comment which I make in paragraph 44(a) below), however, and now remind myself that it is important not to lose sight of the wood for the trees, as it were.
I am conscious of all the following matters:
(a)The welfare or best interests of JE remains the paramount consideration in this case — but it is not the sole consideration (and my reference to Findlay & Boniface should not be interpreted as suggesting that I have misunderstood the significance of the welfare or best interests of the child in cases of this nature).
(b)The mother has not been required to demonstrate “compelling reasons” for relocating JE’s residence to Cairns. That said, I find that her reasons for wishing to relocate JE’s residence to Cairns are valid and understandable. At no stage was it put to the mother during cross-examination that her reasons for wishing to travel to Cairns with JE were other than valid and reasonable.
(c)I understand that it is necessary to evaluate each of the proposals advanced by the parties and will do so — directly or indirectly — in these Reasons.
(d)I understand that the Court cannot proceed to determine the issues in these proceedings in a way that separates the issue of relocation from that of residence in the best interests of JE. The case has not been and will not be (indeed, it cannot be) dissected into discrete issues — relevantly, a primary issue is to who should have residence of JE, and a further and separate issue as to whether the relocation should be ‘permitted’. In this case, of course, it is important to note that the father has not sought residence of JE. He seeks contact only.
(e)I understand that the evaluation of the parties’ competing proposals must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for JE’s best interests. I have performed that evaluation — directly or indirectly — in these Reasons.
(f)I understand that it is necessary to follow the legislative directions set out in section 60B and section 68F of the Family Law Act 1975, and that I must consider the various matters set out in section 68F(2).
(g)Further, I understand and appreciate that the object and principles of section 60B provide guidance to a Court’s obligation to consider the matters in section 68F(2) that may have arisen in the context of this case.
(h)I recognise that neither of the parties to these proceedings bears an onus to establish that a proposed change to an existing situation, or a continuation of an existing situation, will best promote JE’s interests. I have taken into account the whole of the evidence relevant to JE’s best interests.
(i)I am well aware of the importance of both parties’ (and, in particular in this case, the mother’s) right to freedom of movement. I am aware that in paragraph 102 of the decision in A & A, the Full Court emphasised the significant weight that must be attached to the right of freedom of movement. I am aware, as well, of the other matters set out in paragraph 102 of A & A.
Relevant Competing Proposals
The mother’s proposal is to relocate to Cairns with JE.
The father’s proposal is for JE to remain resident with the mother in Warrnambool, and for the father to continue to have frequent contact with her — being a combination of overnight weekend contact and additional day contact in the off week.
It was the mother’s case that the father should have contact with JE as follows;
(a) In Cairns —
(i)for two weeks in March and two weeks in September in 2002 and each alternate year thereafter;
(ii)for two weeks in June and two weeks in December in 2003 and alternate years thereafter; and
(iii)until the child commences school, on each day that the child is on contact with the father, the child spend one hour with the mother;
(b)in the Warrnambool/Yambuk area —
(i)for two weeks in June and two weeks in December in 2002 and in each alternate year thereafter;
(ii)two weeks in March and two weeks in September in 2003 and each alternate year thereafter; and
(iii)contact take place at all times outside the father’s work hours;
(c)contact be suspended on Christmas Day and the child’s birthday and take place by agreement with the mother; and
(d)by telephone at any reasonable time.
The mother also sought an order that she be at liberty to telephone to speak with JE at any reasonable time whilst JE is on contact with the father.
The father sought that he have contact with JE as follows:
(a)each alternate weekend from 6.00 p.m. Friday to 6.00 p.m. Sunday;
(b)every other Saturday or Sunday from 2.00 p.m. until 8.00 p.m.;
(c)from 6.00 p.m. Christmas Eve 2001 until 3.00 p.m. Christmas Day and each alternate year thereafter;
(d)from 3.00 p.m. Christmas Day 2002 to 10.00 a.m. Boxing Day and each alternate year thereafter;
(e)for a continuous 3 hour period on JE’s birthday at times to be agreed by the parties; and
(f)as may otherwise be agreed between the parties from time to time.
It was the mother’s case that JE’s best interests would be best served by her relocation to Cairns with the mother. The mother explained her conclusion in this regard by means of reasoning under four separate headings;
(a)“Extended Family”;
(b)“Economic Advantages”;
(c)“Lifestyle in Cairns”; and
(d)“Father’s ongoing relationship with JE”.
I do not propose to discuss the matter dealt with by the mother under the heading “Lifestyle in Cairns”. Suffice it to say that the mother describes what she perceives to be certain benefits associated with the physical location of Cairns in paragraphs 41 to 51 of her trial affidavit. The father responds to these paragraphs in paragraphs 44 to 54 of his trial affidavit — in which he urges the Court to accept that the advantages of Warrnambool as a place to live are no less than those of Cairns.
It was not seriously contended by either party that one of the cities was to be objectively preferred as a physical location in which to raise children, and JE in particular. To the extent that it may be relevant to the conclusion which I shall ultimately reach in this matter, I find that both Warrnambool and Cairns are perfectly satisfactory cities in which to raise children, and that neither city should be preferred over the other.
Under the heading of “Extended Family”, the mother deposes to the fact that her mother had two minor strokes during 2001. According to the mother, her mother suffers from heart problems. The mother’s maternal grandmother and great grandmother both died when aged in their forties. The mother’s mother is in her early forties. The mother continued:
I consider that it is important that JE gets to know my mother in the next few years, as unfortunately, my mother’s life expectancy is not long (paragraph 31).
I also wish to be with my mother at this time, for I am very concerned for her well being. Not being with my mother at this time is causing me a great deal of stress and anxiety. I have been depressed and also reluctant, and indeed at times feel unable, to leave my home to participate in my usual activities because of my concern for my mother and not being able to be with her at this time. (paragraph 32).
According to the mother, if JE resides in Queensland she will be able to develop close relationships with other members of the mother’s extended family — including her father, her sister and step-sister and their children. Further, JE would be seeing the mother’s mother “almost every day, and (the mother’s) sister and step-sister and their children at least once a week”. I accept the mother’s evidence in this regard.
The father had little knowledge of the health problems suffered by the mother’s mother. Notwithstanding that fact, no serious attack was mounted against the mother’s description of her mother’s medical condition. Nor did the father suggest that the mother did not genuinely wish to be with her mother for the reasons set out in paragraph 32 of the mother’s affidavit.
The mother’s mother and her husband operate a motel in Cairns. In paragraph 30 of her trial affidavit, the mother deposes to the fact that her mother has never visited her or JE in Warrnambool. The father agreed that the mother’s mother had never visited Warrnambool since JE’s birth. In paragraph 33 of his trial affidavit, the father suggested that “the lack of visits demonstrates that the mother and maternal grandmother are not as close as is being promoted”.
During the course of her evidence, the mother affirmed that her mother had not visited as a result of the demands upon her of operating the motel in Cairns. She denied that she and her mother are not close. I accept the mother’s evidence in this regard and find that she has a close and caring relationship with her mother and that her desire to be with her at the present time is genuine and deeply felt.
In paragraph 36 of his trial affidavit, the father said:
I don’t disagree that if living in Queensland JE would be able to develop strong relationships with her maternal relatives including her grandmother and cousins. However, I note that she sees her paternal grandparents and uncle on a weekly basis now. I am not trying to put forward my family as being any better than the mother’s (family), but the one difference between living in Victoria instead of Queensland is that she can maintain a relationship with me if she stays in Warrnambool. I think this relationship needs to be given priority over her relationship with both her maternal or paternal relatives.
In paragraph 37 of the father’s trial affidavit he concedes that JE presently has a limited relationship with his extended family — not including his parents, and his brother Greg (who lives with his parents).
Under the heading “Economic Advantages”, the mother deposes to the fact that she is able to work at the motel in Cairns operated by her mother and step-father. I do not propose to repeat the contents of paragraphs 35 to 40 of the mother’s trial affidavit. In them, she suggests that she will be able to work at the motel on a part-time basis, and that her income will be supplemented by appropriate government benefits. Because of the presence of her extended family in Cairns, she anticipates that JE will not have to be placed in daycare. Instead, she can be looked after by family members whist the mother works.
In paragraph 40 of her affidavit, the mother said:
In addition to the tangible economic advantages, I sincerely believe that my ability to work outside the home and develop a career in tourism and hospitality, while being close to my family, will result in a healthier and more satisfying emotional environment for JE.
The mother is currently studying creative writing. She is studying full-time, by correspondence. During the course of the hearing, the mother conceded that “a career in tourism and hospitality” is not her preferred career path. It will allow her, however, to derive some form of income whilst she pursues her preferred option — being creative writing.
I find that the mother will indeed work part-time in Cairns (to the extent that she is able to do so), and that she is likely to pursue her studies in creative writing at the same time. The mother is an intelligent, capable and determined person, and I find that she is likely to succeed in establishing herself financially whether she remains in Warrnambool or relocates to Cairns. I find, however, that it will be easier for her to achieve economic advancement in Cairns than in Warrnambool. That is so because she is likely to be able to work in the business operated by her mother and step-father whenever the need arises. Similarly, her mother and step-father are likely to be sympathetic to any requests that she may make for time off to attend to JE’s needs and to attend courses, study or sit examinations.
Under the heading “Father’s ongoing relationship with JE”, the mother said:
I recognise that the father is concerned that by my moving to Queensland with JE, there is a risk that his relationship with her may be harmed (paragraph 52).
JE has a strong bond with her father and given the contact I am proposing I do not believe that this bond will be lost or even diminished should I move to Cairns with JE.(paragraph 53).
The mother continued:
I worked very hard to promote the father’s contact with JE in the months after her birth, and have done so again since the father and I separated. I will continue to do so (paragraph 54).
While contact will be less frequent if I move to Cairns with JE, it will be of greater duration (paragraph 55).
In response to these paragraphs of the mother’s trial affidavit, the father emphasised his belief that his relationship with JE would be “irreparably harmed should the mother and JE be permitted to move to Cairns”. Of considerable importance in these proceedings, however, is the fact that the father admits paragraph 54 of the mother’s trial affidavit. In other words, he concedes that the mother has worked hard to promote his contact with JE (both in the months after her birth and since the date of separation). Further, the father concedes that the mother will continue to promote contact between the father and JE. The father argues, however, that the mother’s plans are “now going to undo all of the effort made to date to achieve the current relationship I believe JE and I share”.
I find that the mother has indeed worked hard to promote the father’s contact with JE and that she will continue to do so. I am confident that she will promote a close and loving relationship between JE and the father whether she lives in Cairns or in Warrnambool.
In so far as the expressed beliefs of the parties are concerned (in the case of the mother, to the effect that the father’s bond with JE will not be diminished if she should move to Cairns with JE and, in the case of the father, that his relationship with JE will be irreparably harmed should the relocation occur), I reiterate the comment that I made during the course of the hearing to the effect that it is impossible to conclude that either belief is well founded without the benefit of expert evidence. That is so because the genesis of the mother’s conclusion in this regard is her view that less frequent, but longer, contact periods are no less desirable than shorter, more frequent periods. The genesis of the father’s belief (as described above) is his view to the effect that “young children need regular and consistent contact with the non residential parent”. In the circumstances of the present case, and without the benefit of appropriate expert evidence, I am not prepared to conclude that the father’s belief or perception is to be preferred to that of the mother. Even if I am wrong in that regard, and it is indeed open to me to conclude that shorter, more frequent periods of contact are ordinarily preferable for children of the age of JE, I would have discomfort in reaching such a conclusion in the circumstances of this case. My discomfort in that regard arises from the fact that I accept the mother’s evidence to the effect that JE already has a strong bond with her father. When coupled with the father’s admission that the mother has worked very hard to promote the father’s contact with JE throughout her life, and that she will continue to do so, I see no reason to conclude that one form of contact is inherently better — for JE — than another.
Part of the hearing involved an investigation of certain complexities associated with the mechanics of the contact arrangements proposed by the mother. The father alludes to certain of the difficulties in paragraph 59 of his trial affidavit.
I have little doubt that there will be a degree (perhaps even a significant degree) of inconvenience or awkwardness associated with the contact arrangements proposed by the mother. I formed the impression, however, that the mother is a capable and responsible person. I formed a similar impression of the father — at least in relation to the period since he acknowledged paternity of JE. Both parties are capable of communicating effectively and without rancour where JE’s welfare is concerned and, in my opinion, they are quite capable of overcoming any practical difficulties associated with the contact regime proposed by the mother. In so far as the cost of the contact regime may comprise an impediment to its implementation, the mother stated that she was prepared to forgo child support to the extent that it may be necessary to facilitate the father having contact with JE.
It was the father’s view that the additional costs associated with exercising contact should JE live in Cairns “could be money better spent on other areas of JE’s life”. I understand the father’s submission in this regard, and have taken it into account in my deliberations.
The father did not put forward alternative proposals for contact in the event of his application being unsuccessful.
Section 68F(2) Factors
I turn now to consider the 68F(2) factors.
Clearly, JE’s wishes are not relevant in these proceedings.
JE has a close, loving and appropriate relationship with each of her parents. She also has a close relationship with the father’s parents (who reside near Warrnambool), and, I assume, the father’s brother who lives with them. JE has no or almost no existing relationship with the mother’s mother and the other members of the mother’s family in Cairns. The mother conceded that her mother has not visited her in Warrnambool since JE’s birth (and, indeed, did not visit her at the time of the birth). The mother’s evidence was that she wants JE “to get to know” her mother and that JE “doesn’t know her (i.e. the mother’s mother) at all”.
During the course of her evidence, the mother said that she was “never going to re-partner” and that she would “never live with anyone else other than JE.” She said “I don’t need it.”
It was clear to me that the mother has been scarred in some way by her relationship with the father. I have no doubt, however, that she recognises the bond between JE and the father and that she would not intentionally diminish or adversely interfere with that bond. The mother gave her evidence on two days (being 5 and 6 February 2002). During the course of her evidence on 5 February, she appeared reluctant to agree to the adoption, at this period in time, of a contact regime which would enable JE to spend extended periods of time with the father. She appeared to have no discomfort with the current contact arrangements. When reminded by Counsel for the father that her own proposals for contact in the event of her relocation to Cairns involve the father having extended periods of contact (the questioning being in the context of why the father could not have extended periods of contact at the present time) the mother responded: “Now I can avoid it, but I can’t avoid it if I relocate to Cairns.” My impression of the mother’s comments at that point in the hearing was that the mother saw extended contact as the price that would have to be paid (as it were) in order that she and JE could “get on with their lives”.
By the time the mother commenced giving her evidence on 6 February 2002, her opposition to extended contact periods had softened. She said that on the previous day she had not been rational, and that she was distraught. I accept the mother’s explanation in that regard. In my opinion, the mother’s outlook (as described in paragraphs 77 and 78 above) is attributable — in large part — to the fact that the mother sees herself as being alone (or virtually alone) and without support in Warrnambool. She is, as it were, on the father’s turf. Her concerns regarding her mother’s health are genuine (as I have concluded above) and she has a genuine desire to be with her and near other members of her family at this time of her and her mother’s life. Those concerns, and that desire have affected the mother in the manner described in paragraph 32 of her trial affidavit.
On a number of occasions the mother said that she wishes to be where her family is and that she wishes to be able “to get on with (her) life”. It is clear to me that the mother genuinely believes that she is not able to “get on with her life” whilst she resides in Warrnambool and remains within what can perhaps be described as the father’s sphere of influence. That is not to say that the father has behaved improperly towards her or towards JE, but I gained the distinct impression that the mother sees herself as something akin to a prisoner, albeit in a relatively comfortable prison — with which she has become extremely familiar and in which she is liked and respected by certain of the gaolers. In my view, the mother’s attitude is completely understandable if appropriate weight is to be given to her right to freedom of movement. The mother is aware — as the Court is aware — that that right is not absolute and may have to give way to other factors relevant to JE’s best interests. Even so, the mother is an intelligent, free thinking, strong minded young woman who could not help but become resentful if she were to be compelled to remain in Warrnambool.
I am aware, of course, that the father’s case is not to the effect that the mother be restrained from leaving Warrnambool. His case is that JE be restrained from leaving — but that the mother remain the residence parent (and hence, JE’s principal care giver). In such a circumstance, it is a nonsense to regard the mother as being free to relocate without her daughter. I find that she would not do so, and to restrain the child is to restrain the mother.
The mother’s proposal in these proceedings (which I shall refer to as “the Go proposal”) will enable the continuance of the close relationship between JE and the mother. It will also enable a relationship to be established between JE and other members of the mother’s immediate family.
The father’s proposal in these proceedings (which I shall refer to as “the Stay proposal”) will — at one level — not alter the nature of the relationship between JE and the mother (given that the mother will remain in Warrnambool with JE), but it will mean however, that the establishment of JE’s relationship with the mother’s extended family will be retarded.
Of concern to me, however, is that the natural consequence of the Stay proposal is that the mother’s relationship with JE may eventually be affected by the unhappiness that the mother will experience if she is effectively denied a right (being the right to freedom of movement) that would otherwise be freely exercisable by her — but for the need to ensure and promote the ongoing relationship between JE and the father.
Whilst I am fully aware of the development of the law since the Full Court handed down its decision in Fragomeli & Fragomeli (1993) FLC 92-393, it seems to me that certain of the comments made in that case and the cases referred to in it (see, in particular, the cases cited under the heading “Removal of Child” on page 80,022) have relevance in the context of cases of this nature and the present case in particular. Obviously, the father and the mother in the present case were not married, and the mother has not re-partnered. In my view, however, the following passage from Fragomeli holds true (see page 80,023):
The custodial parent’s freedom of movement and his or her right to choose where to live may itself be a factor in the welfare of the child. As the person responsible for the custody of the child, the custodian’s ability to function effectively is important to the child’s welfare...A child’s welfare may well be adversely affected if the custodian’s movements are restricted. If the Court were to interfere unduly with the way of life which the custodial parent legitimately proposes adopt, there may be frustration and bitterness which might adversely affect the child...
Once again, I am aware that the Stay proposal does not directly restrict the mother’s freedom of movement. Given the nature of her relationship with JE, however, the Stay proposal equates to an insurmountable barrier impeding her freedom of movement.
As JE is a very young child, there is unlikely to be an adverse effect upon her resulting from a change in her physical location. The Go proposal is advantageous to the mother in that she will be able to maintain close contact with her extended family. Further, she will be able to work on a part-time basis for a sympathetic employer.
The Stay proposal provides JE with the ability to continue enjoying her close relationship with the father, his brother and their parents. The Stay proposal does not involve any significant physical separation from the father. Clearly, the Go proposal involves such a separation. On the basis of the evidence before me, however, I am unable to conclude that JE would necessarily be adversely affected by such a separation — provided that the current contact regime were to be replaced by one involving lengthier, but less frequent, periods of contact. I reiterate that I am not prepared to infer that — in the circumstances of this particular case — a continuation of the current contact regime is inherently or inevitably preferable to the regime that would adhere if the Go proposal were to be adopted.
It is a fair assumption, of course, that JE will miss her father and paternal grandparents if she is separated from them in the manner that the Go proposal envisages. I am simply unable to conclude, however, that the implementation of the proposal would otherwise adversely affect her. This is clearly a subject in relation to which evidence could have been led by the father, but was not.
When regard is had to section 68F(2)(d), there can be no doubt that the Stay proposal has significant advantages over the Go proposal — in that the practical difficulty and expense of JE having contact with the father are much less if both parties reside in Warrnambool than they would be if the mother resides in Cairns and the father resides in Warrnambool. Obviously, the difficulty and expense associated with contact in the event of the Go proposal being preferred must substantially affect JE’s right to maintain personal relations and direct contact with both parents on a regular basis.
In an endeavour to at least partially dilute the significance of the consideration referred to in the section 68F(2)(d), the mother has formulated the proposed contact arrangements described elsewhere in these Reasons. For his part, the father appeared to have given little thought to the formulation of an appropriate contact regime in the event of the Go proposal being preferred.
The mother was cross examined at length regarding the practicality of the contact arrangements inherent within the Go proposal. Notwithstanding that such arrangements may divert funds away from the day to day support of JE (being funds otherwise attributable to Child Support or which may otherwise be sourced income earned by the mother), I find that both parties are willing and able to put in place financial arrangements which would ensure the effective implementation of the contact arrangements inherent in the Go proposal.
Clearly, Cairns is a long way from Warrnambool, and travel between the two places is likely to be both lengthy in duration and tiring for JE. In the final analysis, however, some (but not all) of the practical difficulties associated with transport between the locations can be overcome if JE were to travel by air between, say, Cairns and Melbourne (where she could be met by the father).
Other problems were alluded to in the course of the proceedings — such as the father’s apparent inability to take leave during all periods that JE is with him pursuant to the contact arrangements envisaged in the Go proposal. In my opinion, these problems are not insurmountable. The father gave evidence to the effect that he is essentially self employed. He seems to be able to find time to play in the three bands of which he is a member. Clearly, the contact arrangements associated with the Go proposal are far less convenient than those associated with the Stay proposal, but the mother has indicated that she will travel to Warrnambool with JE until she starts school. As well, the father’s parents are able to assist him with JE’s care (as is the mother if she is in Warrnambool at the time) should the father be obliged to work.
Further, I find that both parties are intelligent, hardworking people and that is likely that their economic circumstances will improve wherever JE resides. As I understood the father’s case, he did not suggest that the expense of travel between Cairns and Warrnambool would be such as to seriously inhibit what would otherwise be reasonable contact arrangements. His argument was that the monies associated with this expense could be better spent for other purposes associated with JE’s welfare. That is a factor that I have not ignored and will weigh in the balance with all other relevant factors in these proceedings.
Diminution in contact is an almost inevitable consequence in any parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas (assuming, of course, the relocation is proceeded with). If that were the sole or overriding consideration, then a party’s right to freedom of movement would mean little and cases involving the proposed relocation of a child would be entirely predictable. But that, of course, is not the law. I remind myself, though, of the provisions of section 60B of the Family Law Act 1975, the terms of which are as follows:
60B Object of Part and principles underlying it
(1) The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that, except when it is or would be contrary to a child's best interests:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c) parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children.
Section 68F(2)(e) requires the court to consider the capacity of each parent, or of any other person, to provide for the needs of the child, including her emotional and intellectual needs. Once again, the father does not seek a residence order in relation to JE. His case is that he should have certain limited, defined contact with JE, and that JE should continue to live with the mother.
It was not suggested that the mother does not have the capacity to provide for all aspects of JE’s needs. I find, on the basis of the evidence before me, that the mother has such a capacity and that she will receive whatever support she requires (including financial support) from her mother and her extended family whilst she resides in Cairns.
I find that the father has the capacity to provide for JE’s needs — including her emotional and intellectual needs — in the context of a contact (as opposed to a residence) parent.
Section 68F(2)(f) is not relevant in the present proceedings. Nor are the provisions of section 68F(2)(g), (i) and (j).
Section 68F(2)(h) requires the Court to consider the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents. I am satisfied that the mother has a proper, mature and sensible attitude to JE, and to the responsibilities of parenthood. She is prepared to put JE’s needs before her own. I find that she can be relied upon to continue to place JE’s needs before her own and that, whether she lives in Warrnambool or in Cairns (or elsewhere for that matter) she will make proper arrangements for JE’s welfare.
The father has had a more limited opportunity to demonstrate his attitude to JE and to the responsibilities of parenthood. The fact of the matter is, however, that the father did not initially accept the responsibilities of parenthood. I do not accept the “spin” placed by the father on the events surrounding the paternity testing — as set out in paragraph 9 of his trial affidavit (responding to paragraph 6 of the mother’s trial affidavit). If the father was indeed nervous about becoming a father, and if he genuinely wanted to protect both himself and JE by confirming paternity before he became “too attached”, then he would have arranged paternity testing at the earliest possible opportunity. This did not happen. Instead, the father was to arrange paternity testing but had not done so by the time JE was four months old. The mother then insisted the paternity testing be conducted, and it took place some five months after JE was born. It was only after that time that the father agreed to see JE. I find, however, that since that time the father has demonstrated an appropriate attitude to JE and to the responsibilities of a contact parent.
The father, through his Counsel, submitted that the Go proposal “displays an inappropriate prioritisation of (the mother’s) needs over her own perception of the child’s needs”. I do not agree. The mother conceded (on 6 February 2002, if not on 5 February 2002) that JE will be able to adjust to extended periods of contact with the father, and that she will enjoy them. The mother acknowledged that she may have difficulty with JE’s behaviour after periods of extended contact but recognised that it was a problem that she would have to deal with and that “it’s part of being a parent.” I do not accept that the Go proposal displays any inappropriate prioritisation of the mother’s needs over JE’s needs or the mother’s perception of those needs. In my view, the opposite is the case. Were it not for JE and JE’s relationship with the father, the mother would not now be residing in Warrnambool. If the Stay proposal is preferred by the Court, then the mother will remain in Warrnambool with JE. I have already commented that, in my opinion, the mother’s attitude in this regard evidences her willingness to place JE’s needs and welfare above her own.
In my opinion, the provisions of section 68F(k) and (l) are not obviously relevant to the matters in issue in these proceedings.
Conclusion
In his written submissions, Counsel for the father urges that the Stay proposal should be preferred for a number of reasons. It is conceded that JE is closely bonded to the mother. It was submitted that the mother’s proposal requires JE to adjust very quickly to a contact regime that the father had not sought to pursue, and that the mother herself contended that she and the child would have difficulty coping with. In my view, it is not relevant that the father had not sought to pursue extended contact with JE. In any event, I accept the mother’s evidence (given on 6 February 2002) that JE would be able to cope with extended contact at this time in her life.
I pause at this stage to comment that the father saw fit to cease mid week contact with JE because it did not suit his work commitments. Whilst I make no adverse finding arising from the father’s actions in this regard, I am of the view that the father’s failure to seek extended periods of contact in the past has more to do with his own convenience than the best interests of JE.
It is true that JE’s contact with the father and his parents will be severely restricted in its frequency if the Go proposal is to be preferred. I have taken this factor into account in these Reasons.
The father’s Counsel argues that the Stay proposal offers more certainty than does the Go proposal. I accept and have taken into account the fact that the Go proposal contains uncertainties. I have already stated, however, that I am satisfied that the mother is a sensible and responsible parent, and I find that she will make proper arrangements for the accommodation and education of JE — as well as all other matters relating to her welfare. Again, I accept that there are uncertainties associated with the contact arrangements inherent within the Go proposal (including as to how those arrangements will be financed). I have recognised those uncertainties in these Reasons. Having regard to the matters to which I have referred in paragraphs 89 to 94 above, however, I am satisfied that the parties will be able to satisfactorily arrange and implement an appropriate contact regime. I accept that the difficulty of contact inherent within the Go proposal when contrasted with the contact arrangements inherent within the Stay proposal amounts to a factor favouring the latter proposal over the former. I have taken that fact into account and weighed it in the balance.
The father, through his Counsel and the submissions filed on his behalf, recognised that the mother will be ‘happier’ in Cairns than in Warrnambool. Having observed the mother during the course of the proceedings, having read her affidavit material and having heard her evidence, I conclude that that is an understatement. I find that she would be extremely unhappy if she were compelled to remain in Warrnambool (by virtue of the fact that she is restrained from removing JE from that location). I refer to paragraph 32 of the mother’s trial affidavit and find that her current situation has caused her stress and anxiety.
I find that the mother has made her application in these proceedings on a bona fide basis and that she has a genuine desire to travel to Cairns to be with her mother and her extended family. In my view, to require the mother to remain in Warrnambool in the circumstances of the present case would be highly likely to subject her to such an unreasonable strain as to seriously impair her parenting capacity and thus ultimately, seriously affect JE’s welfare.
I have borne firmly in mind, throughout my consideration of the party’s competing applications, the various factors and considerations referred to in the guidelines in A & A (and the other matters to which I have referred). I have evaluated both the positive and negative aspects of the Stay proposal and the Go proposal. I am firmly of the view that the Go proposal would be more likely to advance JE’s best interests for the various reasons I have already expressed. Although some of the factors that I have discussed favour the Stay proposal, I give greater overall weight to those that favour the Go proposal — reinforced as it is by my recognition of the mother’s right to freedom of movement.
I am aware that JE has the right to know and be cared for by both of her parents, and the other rights set out in section 60B of the Family Law Act 1975 (including the right of contact, on a regular basis, with both her parents). But I am of the view, that in the circumstances of the present case, it is the mother’s case that must prevail.
In Dawes & Forbes, Appeal No. SA 28 of 2002 (unreported – judgment delivered 20 May 2002) Kay J said (at paragraph 41):
The obligation of the (Federal Magistrate) was not to look to see whether the evidence required the children to relocate but to evaluate the competing proposals and then determine from those competing proposals whether the welfare of the children led him to the conclusion that in all the circumstances of the case, having regard to the fact that the welfare of the children was the paramount but not the only consideration, that an order should be made either in favour of the mother moving or in favour of the mother staying. The task was not to search for evidence that justified the move. It was to weigh up the evidence put forward by each party in their competing cases and then to reach a result that otherwise complied with the statutory obligation to make such order as was proper in the circumstances.
The judgment in Dawes & Forbes has become available shortly before the handing down of these Reasons. I note his Honour’s summary of the Court’s obligation set out in the passage quoted above, although I have some discomfort with the words ‘…an order should be made either in favour of the mother moving or in favour of the mother staying’. It seems to me that, with respect to his Honour, it is arguable that his Honour may have inadvertently misstated the relevant approach – which, in this regard, appears from the following passage from paragraph 108 of A v A: Relocation Approach (see paragraph 40 above):
A Court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interest 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’.
In any event, I have reviewed these Reasons taking into account his Honour’s comments (and, of course, the matters referred to in paragraph 40 to 44 above — under the headings “The Law” and “Discussion”) and am satisfied that the orders that I propose to make are proper in the circumstances of the case now before me.
The orders that I propose to make will be those sought in paragraphs 1, 2 and 3 of the father’s application filed 29 November 2001. The father’s application for an injunction restraining the mother from relocating with JE (being the orders sought in paragraph 5 of the father’s application) will be dismissed.
I shall now hear Counsel as to any submissions that they may be minded to make regarding the precise terms of the relevant contact orders or any further or other orders that may be necessary to give effect to this Judgment.
I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Walters FM
Associate: Paul O’Halloran
Date: 22 May 2002
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