CAHAN & KAFKA
[2019] FCCA 2421
•30 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAHAN & KAFKA | [2019] FCCA 2421 |
| Catchwords: FAMILY LAW – Parenting – proposed interstate relocation – Mother’s desire to relocate – strong bond between Father and son – Father significantly involved in child’s life – diminished relationship by virtue of practical realities – resulting reduction in time spent – best interests of the child – relocation refused. |
| Legislation: Evidence Act 1995 (Cth), s.140 |
| Cases cited: A v A: Relocation Approach [2000] FamCA 751 |
| Applicant: | MS CAHAN |
| Respondent: | MR KAFKA |
| File Number: | MLC 10683 of 2016 |
| Judgment of: | Judge Carter |
| Hearing dates: | 11, 12 & 13 June 2019 |
| Date of Last Submission: | 13 June 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 30 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Tulloch |
| Solicitors for the Applicant: | Nicholes Family Lawyers |
| Counsel for the Respondent: | Ms Ben-Simon |
| Solicitors for the Respondent: | Frid & Associates |
ORDERS
All previous parenting orders be discharged.
The parties have equal shared parental responsibility for the child X born … 2015 (“the child”).
The child shall live with the Mother.
In 2019 and 2020, the child shall spend time and communicate with the Father as follows:-
(a)during school term, in a two-week cycle as follows:-
(i)in week one:-
A.from 4.00pm until 7.00pm on Tuesday; and
B.from 4.00pm Wednesday until 7.00pm Thursday; and
(ii)in week two:-
A.from 4.00pm until 7.00pm on Tuesday, Wednesday and Thursday; and
B.from 4.00pm on Friday until 9.00am (or the commencement of kindergarten) on Monday;
(b)during the long summer holidays in 2019/2020:-
(i)from 4.00pm on 20 December 2019 until 10.00am on Christmas Day; and
(ii)from 5.00pm on 31 December 2019 until 7.00pm on 15 January 2020; and
(c)at such further or other times as may be agreed between the parties
Commencing in 2020, the child spend time with the parties during the June/July school term holidays as follows:-
(a)in 2020 and each alternate year thereafter, the child spend the entirety of the holiday period with the Mother; and
(b)in 2021 and each alternate year thereafter, the child spend the entirety of the holiday period with the Father.
Commencing in 2019, the child shall spend one half of each of the March/April and September/October school term holiday periods with each of his parents, at times to be agreed and failing agreement:-
(a)in 2019 and each alternate year thereafter:-
(i)from the conclusion of school on the last day of school term until 7.00pm on the middle day of the school term holidays with the Father; and
(ii)from 7.00pm on the middle day of the school term holidays until the commencement of the new school term with the Mother; and
(b)in 2020 and each alternate year thereafter:-
(i)from the conclusion of school on the last day of school term until 7.00pm on the middle day of the school term holidays with the Mother; and
(ii)from 7.00pm on the middle day of the school term holidays until the commencement of the new school term with the Father.
Commencing in 2020, the child shall spend one half of the long summer holidays with each of his parents at times to be agreed.
Commencing in 2021, the child shall spend time and communicate with the Father during school terms in a two week cycle as follows:-
(a)in week one:-
(i)from 4.00pm until 7.00pm on Tuesday; and
(ii)from 4.00pm on Thursday until 9.00am (or the commencement of school) on Monday (or 7.00pm if Monday is a non-school day);
(b)in week two:-
(i)from 4.00pm until 7.00pm on Tuesday and;
(ii)from 4.00pm Thursday until 9.00am (or the commencement of school) on Friday (or 7.00pm if Friday is a non-school day); and
(c)at such further or other times as may be agreed between the parties.
Notwithstanding any other order, for the purposes of special occasions, X shall spend time with his parents as follows:-
(a)with his Father from 10.00am on 24 December until 10.00am on Christmas Day;
(b)with his Mother from 10.00am on Christmas Day until 6.00pm on Boxing Day;
(c)with his Mother on the Mother’s Day weekend from 5.00pm on the Saturday preceding Mother’s Day until the commencement of kindergarten/school (or 9.00am) on the following Monday;
(d)with his Father on the Father’s Day weekend from 5.00pm on the Saturday preceding Father’s Day until the commencement of kindergarten/school (or 9.00am) on the following Monday; and
(e)as may otherwise be agreed between the parties from time to time.
Each parent shall facilitate the child communicating with the other parent via telephone, FaceTime, Skype or such other like electronic means at any time as reasonably requested by the child.
Each parent be permitted to travel interstate with the child at any time he is in their care or at other times as may be agreed PROVIDED ALWAYS THAT the travelling parent provide notice to the other parent upon booking and provide the other parent with details of an address and contact information for the child whilst interstate.
Each parent be permitted to travel overseas with the child at any time he is in their care or at other times as may be agreed PROVIDED ALWAYS THAT the travelling parent provides 21 days’ written notice to the other parent of the intended travel and provides the other parent with copies of the child’s return tickets, itinerary, details of an address and contact information for the child whilst overseas.
Each of the parties:-
(a)advise and keep the other advised at all times of the current residential address and telephone number of the child and advise the other of any change thereto within seven (7) days of such change;
(b)advise the other immediately in the event that the child suffers any serious illness or injury;
(c)authorise any medical practitioner upon whom the child may attend from time to time, to communicate with the other in respect of the child’s medical condition/s and/or requirements; and
(d)authorise all schools or childcare centres at which the child may attend, from time to time, to:-
(i)provide to the other, at the expense of the other, copies of all school reports, school notices and school photographs in relation to the child;
(ii)communicate with the other, either by telephone, in writing or by personal attendance, in respect to the child’s progress at schools; and
(iii)attend all school function to which parents are normally invited;
subject to any policy in relation thereto.
Each of the parties and their servants and/or agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of the child and from permitting any other person so to do.
All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.
Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Cahan & Kafka is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10683 of 2016
| MS CAHAN |
Applicant
And
| MR KAFKA |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings are in relation to the care arrangements for the parties’ one child, four year old X. He currently resides in Melbourne in close proximity to both his parents. X currently lives with his Mother and during school terms, he spends time with the Father in a two week cycle, being three afternoons and two nights in one week, and two afternoons and one night in the alternate week. He spends additional time with his Father during holiday periods.
The Mother is 40 years of age. She is currently employed as a Professional at Employer A (“Employer A”). She has been employed by them for around 8 years.
The Father is 66 years of age. He is employed as a public servant at Employer D where he is employed full time.
In June 2016, Employer A offered the Mother the opportunity to move to Sydney to take up the position of Professional. She says this is a very significant opportunity for her, providing her with increased job security, responsibilities and remuneration.
Accordingly, it is the Mother’s application to move to Sydney to pursue her career. The Father opposes that relocation.
This is a finely balanced case, in which I have to consider and weigh the various proposals and determine what is in the best interests of X. The Mother’s desire to move interstate is of course part of that assessment. However, for the reasons I now set out, in my view, X’s best interests are not met by relocating to Sydney, but by remaining in Melbourne and having both of his parents significantly and substantially involved in his care.
Background
The parties commenced living together in 2001. They initially separated at the end of 2003, but resumed their relationship in late 2005. They married on … 2007, and X was born on … 2015, shortly before the parties’ final separation in August 2015.
X was born via a surrogate, Ms E (“Ms E”). Ms E is the partner of the maternal uncle. X does not yet know the story of his birth. The parties were named on X’s birth certificate as his parents pursuant to a substituted parentage order made on 7 August 2015. The Mother says the emotional aspects of the surrogacy process were more complex and difficult than she anticipated. The Mother is now estranged from Ms E and has a limited relationship with her brother.
There was significant tension and anxiety surrounding X’s birth. He was born at 36 weeks’ gestation and spent some time in intensive care. The parties’ relationship ended when the Mother became aware that the Father had been unfaithful. Both parties say they struggled emotionally at that time. The Father asserts the Mother subjected him to verbal and physical abuse and hostility. There was an unpleasant exchange between the parties at separation, in which the Mother sent the Father an abusive text message. The Mother says her comments were made at a time that she was shocked, angry and hurt, but she has since moved on.
When the parties separated, the Father moved out of the former matrimonial home. X’s time with his Father has gradually increased over time since separation. Although generally the parties have been able to negotiate and reach agreement about X’s care, the Father asserts the Mother is somewhat controlling about the time X spends with the Father.
In … 2015, the Mother commenced a relationship with a Mr F (“Mr F”) who lives in Sydney. The Mother and Mr F spent between one and four nights per week together in either Melbourne or Sydney. The Mother also travelled to Sydney on a number of occasions with X, along with interstate and overseas holidays, to spend time with Mr F and his two children N and O.
The Mother’s relationship with Mr F has now ended. She suggests that if she is permitted to relocate, there is a possibility the relationship could be rekindled. Counsel for the Mother said that I should give “some weight” to the Mother’s hope for a reconciliation. Mr F was not called to give evidence.
Care arrangements for X since separation
When the parties first separated, they arranged for the Father to provide care for X each alternate day. Time gradually increased and those changes were substantially by consent. However, there were occasions the parties did not agree, or took considerable time, to reach an agreement. The Father says at times the Mother simply imposed arrangements on him. By and large, the Father has sought increased time with X, and the Mother has suggested a more cautious and conservative approach.
The Mother returned to work on a part-time basis when X was about 12 months old and X would spend the day in crèche. The Father collected him at 5.00pm on Tuesday, Wednesday and Thursday afternoons, and cared for him until the Mother returned from work around 6.45pm. In addition, X spent time with his Father each weekend for an afternoon, and overnight time was subsequently introduced.
The Mother commenced these proceedings on 11 November 2016. The matter was first before the Court on 1 February 2017.
Court orders were made by consent on 21 February 2017. Those orders increased X’s time with his Father from 4.00pm to 6.45pm each Tuesday, Wednesday and Thursday afternoon and an overnight on three Fridays per month.
The parties continued to have some difficulty agreeing to arrangements for the school holidays in 2017. The Father proposed three consecutive nights with X during the school term holidays, to which the Mother did not agree. It was the Mother’s evidence that at that stage, she harboured some concerns about the Father’s mental health and she required the Father to undergo a psychiatric assessment before such time could occur.
Following the breakdown of the marriage, the Father commenced attending upon Mr G, psychologist (“Mr G”). Mr G filed an affidavit in these proceedings on 30 April 2018, annexing three separate letters from him in April, May and June 2017. Those letters confirmed that the Father’s parenting capacity was in no way compromised by mental health issues. The Mother did not accept Mr G’s assessment. She said she was concerned the Father was on medication and had not provided her with information regarding the impact or side effects of that medication.
Throughout the Final Hearing, the Mother maintained that her concerns as to the Father’s functioning were justified at the time and that she therefore had a rational basis to reject the evidence of the Father’s treating psychologist. She said this was as a result of Mr G not making contemporaneous notes. According to the Mother her then-psychologist told her this was not consistent with “industry standards” and meant she had a “gross lack of information”. In April 2017, the Mother wrote to the Psychologists’ Registration Board (“the Board”) outlining her concerns regarding Mr G. She says she did so as she was concerned Mr G was potentially putting the Father and X at risk. The Board declined to take any action.
At trial, the Mother also said that when the parties were assessed in the course of the surrogacy process, the Father’s results came back “void”. She was referring to the assessments of herself, the Father, Ms E and the maternal uncle conducted by Dr H, psychologist (“Dr H”). The Mother had previously written to the Father’s solicitors on 4 July 2017 asserting that the Father’s answers to Dr H were inconsistent, that he had “attempted to manufacture a favourable result, rather than answer honestly” and that the assessment was therefore void.
The report of Dr H dated 4 February 2014 was tendered. That report reflects that whilst the Father “…approached the PAI with a high degree of caution… His response style is not interpreted as an attempt to distort or minimise any distress he may be suffering.” The report goes on to say that the Father “…gave no indication of clinical psychopathology in interview or in his PAI responses”. Dr H went on to say all adults interviewed as part of the process had the necessary insight, emotional resilience, “communication skills, emotional intelligence and psychological capacity” to manage the surrogacy process and surrounding issues. There was no suggestion in the report that the Father’s results were in any way psychologically concerning.
In June 2017 the Mother went overseas. The Father did not agree that the Mother could take X with her for the proposed 17-day and suggested the travel be instead limited to seven days. The Mother did not agree to leave X with the Father referring to what she described as his “well documented mental condition”. Instead, in her absence the Mother arranged for X to be cared for by the maternal grandmother, a babysitter and a nanny she flew down from Sydney. X was to otherwise spend time with the Father as per Court orders. In her oral evidence, the Mother said the maternal grandmother at that time had a “severe dislike” of the Father, so a babysitter was engaged to undertake changeovers on behalf of the maternal grandmother. I understand the Mother travelled for approximately two weeks. She said that X was with the maternal grandmother for most of that time and his day to day routine remained much the same.
The Father attended at changeover, expecting to return X to the Mother. He was advised by a babysitter that the Mother had gone away and had made arrangements for others to care for X in her absence. He had not been informed beforehand. Unsurprisingly, the Father was unhappy about this arrangement. He says X was distressed and crying at changeover. He asked the babysitter for her name and contact details as he had never met her before. In my view, he cannot be criticised for doing so. X was only just over two years old at the time.
The Mother did not apologise to the Father for not advising him in advance. She says the babysitter contacted her and was upset. The Mother then sent a text message to the Father saying:-
all communication regarding X should be directed toward me at all times without exception. Communicating with X’s nanny or support network is inappropriate. Asking Ms J (baby sitter) to write her name and number down, putting her on the spot like that was inflammatory behaviour. I will take this up further formally.
It is troubling that the Mother did not agree that X should spend more time with his Father whilst she travelled and that she arranged for a nanny and a babysitter to assist her. It is also troubling that she failed to advise the Father of the arrangements she had made. It is troubling that the Mother took issue with the Father asking for the details of the person to whom he was handing X, and that she said he was not to communicate with any of X’s care providers. It was the Mother’s failures that put Ms J “on the spot”. The Mother did acknowledge in her oral evidence that she should have provided the Father with the information beforehand. However, she said she stood by her email, and that she is to be the sole contact point for issues as to X’s care.
In October 2017 the Father obtained a psychological assessment from Mr K, psychologist (“Mr K”). Mr K confirmed there was no evidence that the Father suffered from any mental illness, and there was nothing in the Father’s presentation that gave rise to concerns as to his capacity to provide extended care for X.
In my view, the Mother had no reasonable basis to be concerned about the Father’s mental health. Her characterisation of Dr H’s assessment is inaccurate. She also had the benefit of multiple letters from Mr G. Accordingly, it was inappropriate for her to use those alleged concerns to prevent X’s time with his Father progressing.
Over the long summer holidays in 2017/2018, the Father sought at least seven consecutive nights with X. The Mother agreed to X spending blocks of three consecutive nights.
In March 2018, following X’s third birthday, the Mother proposed an extension of overnight time between the Father and X, as well as block periods of time over the school holidays. The parties then negotiated an agreement to increase time, extending one of the mid-week afternoons to an overnight visit, as well as additional time over the school holiday periods.
On 3 May 2018, the matter was not reached for a Final Hearing. Further orders were made by consent pursuant to which X’s time with his Father was again increased to include an overnight mid-week and an overnight each alternate Friday. Additional orders were made for some extended time during the school holidays. The matter was adjourned to 24 September 2018 with priority.
The Father says the Mother was frequently late to collect X during the week. In or around mid to late 2018, they agreed to extend the Father’s time to 7.00pm for those weeknight periods.
Unfortunately the matter was again unable to be reached on 24 September 2018. The parties did however negotiate a detailed property settlement and final property orders were made. Those orders provide for a division of assets in the event of a relocation and an alternate division of assets in the event X and the Mother remain in Melbourne.
Happily, it seems that in more recent months, the parties have worked more cooperatively. They have been able to negotiate times for the holiday periods as well as special occasions, and for each parent to attend the Parent-Kinder morning with X. They are working together in relation to X’s toilet training, and are able to maintain a consistent parenting routine at their individual houses. That they are able to work together will be of enormous benefit to X.
The evidence at trial
The Mother relied on each of the affidavits filed on her behalf during these proceedings. I have read each of those affidavits.
The Father relied on his trial affidavit filed on 1 February 2018 and further trial affidavit filed on 27 April 2018, along with affidavits filed on 10 September 2018 and 7 June 2019 and a Further Amended Response filed on 7 June 2019.
The Father also relied upon the affidavit of his sister, Ms L (“Ms L”) filed on 23 April 2018, and the affidavit of Mr G filed on 30 April 2018. Neither of these witnesses were required for cross-examination. The Father also relied upon the affidavit of Ms E, filed on 23 April 2019. Ms E gave evidence and was cross-examined during these proceedings.
Ms M, social worker (“Ms M”) has prepared two family reports in these proceedings, the first dated 28 February 2018 and annexed to her affidavit filed on 19 March 2018 (“the first report”), and the second dated 19 August 2018 filed under cover of affidavit on 20 September 2018 (“the second report”). Ms M also gave evidence and was cross-examined.
Having heard from both of the parties, I am generally satisfied that they each endeavoured to give straightforward and honest evidence. I accept their evidence, save where I specifically indicate otherwise.
It has not been possible to include every aspect of the evidence. However, just because I have not mentioned something in these reasons does not mean that I have not considered it, and I have taken all of the evidence into account.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
The parties’ proposals
The parties agree that X will spend a week in each school term holiday period with each of his parents, and the whole of the mid-year school term holidays with one parent in each alternate year. They agreed that in 2019, X will spend that holiday period with his Father, which will have occurred prior to the delivery of these reasons. They further agree he will spend half of the long summer school holidays with each parent, although they both suggest a different division of that time. The parties also largely agree on a sharing of special occasions and travel, which I have included in the orders that I have made.
The parties also agree that X will commence four year old kindergarten in 2020 and he will start his preparatory year in 2021. If he remains in Melbourne, he will remain at Employer D for four year old kindergarten next year, and it is likely he would attend B Primary School or C Primary School the following year. The parties have put him on the waiting list for a number of private schools for his secondary education.
If X relocates with his Mother to Sydney, there is currently no agreement as to what kindergarten or school he will attend.
The parties do not agree as to where X should live, nor as to what arrangements should be in place for him during term time regardless of whether he resides in Melbourne or Sydney.
When the matter came before me, the Mother advanced a primary position and a secondary position as follows:-
a)her primary proposal was that X spend time with the Father each alternate weekend, with one weekend per month in Sydney, and one weekend per month in Melbourne. Prior to commencing school, she proposed additional time in Melbourne over the Queen’s Birthday and the Melbourne Cup long weekends (“her primary proposal”);
b)if the Court did not accede to her primary position, she proposed a fall-back position, (“Plan B”), pursuant to which X would spend three out of four weekends with his Father, with two of those to be in Melbourne and one in Sydney. With regard to the travel expenses, the Mother proposed that:-
i)she would meet the costs of one trip to Melbourne;
ii)the Father would meet the costs of the Sydney trip; and
iii)the parties would share the airfares for X’s second trip to Melbourne each month; and
c)the Mother also proposed, (“Plan C”) the second of the Melbourne weekends could be in Sydney, at the Father’s election, in the event of which the parties would share the costs of the Father’s airfares.
The Mother proposed that upon X commencing school, time during school term should occur each alternate weekend, with the Father to come to Sydney one weekend in four at his expense, and the Mother to bring X to Melbourne one weekend in four at her expense.
During closing submissions, Counsel for the Mother said the Mother was now proposing a ‘half-way’ or hybrid combination of her proposals for X. She proposed that X spend three out of four weekends with his Father for the first six months after relocating, in accordance with Plan B. She then proposed that after six months, time reduce to alternate weekends as set out in her primary proposal. Counsel for the Mother also submitted that the Mother’s proposal to share the costs of the Father’s airfares as contained in Plan C could be extended to cover the entire costs of the Father’s travel to Sydney for that weekend.
If the relocation was not permitted, the Mother will remain living in Melbourne with X. In terms of his care arrangement in those circumstances, the Mother initially proposed the current arrangements continue during school terms. During closing submissions, Counsel for the Mother said that in the event the relocation did not occur, her client was now proposing that the parties implement Ms M’s recommendations.
The Father did not put any formal proposals for X’s time with him in the event of a relocation. However, he gave evidence about this when cross-examined. His proposals for X’s time with him during school terms were:-
a)in the event that X was living in Sydney, the Father sought time in Melbourne three out of four weekends. In his oral evidence, the Father acknowledged that when X started school, out of necessity, that time would have to reduce to alternate weekends. However, during closing address, Counsel for the Father said that the Father now proposed the three weekends out of four arrangement remain in place until X is seven years old, and that X should stay with his Father on Saturday night in Sydney on the fourth weekend; and
b)in the event X remains in Melbourne he proposed time from 4.00pm on Tuesday until 7.00pm on Thursday in each week, and each alternate weekend from Friday afternoon until Sunday night, for a total of six nights per fortnight. In closing submissions, Counsel for the Father said that whilst the orders sought by him were as set out in his material, he would accept the recommendations made by Ms M. That is, to add in a Sunday overnight now and then progress to a five night per fortnight arrangement when X commences school. In addition, he proposed he would continue to collect X on weekdays after school rather than him being in aftercare or looked after by third parties.
The Mother’s evidence
The Mother deposed that the position she has been offered in Sydney is extremely significant for the future of her career in the industry. She says in Melbourne, there is no opportunity for growth and she does not manage a team. In Sydney, she would manage a team of 4 to 6 members, and work towards building a significant network. In addition to an immediate increase in salary, to cover the additional costs of living in Sydney, she anticipates receiving discretionary performance bonuses and being “recognised financially for both building a Sydney base and building and managing a team”. She says there is a 12 month restraint of trade written into her current contract, and accordingly this restricts her ability to leave Employer A for a similar role elsewhere. She says she has worked hard for 15 years to build up her reputation and this opportunity will move her career from management to executive level, which in turn will make further opportunities available to her.
It was part of the Father’s case that the Mother has overstated the urgency and significance of the offer of employment in Sydney. When these proceedings were commenced in November 2016, the Mother deposed to there being a degree of urgency surrounding her application in order to secure the employment opportunity she had been offered. The Mother initially deposed that after returning from maternity leave in … 2016, her role at Employer A had been made “largely redundant”.
In her trial affidavit, the Mother refers to her opportunity for career growth having diminished upon her return from maternity leave. She also deposed at that time she was suffering stress and anxiety and was concerned that her employment at Employer A was unstable. The Father says the Mother told him if she did not move, she would be made redundant.
The Father subpoenaed the Mother’s employer. In the subpoenaed documents was a letter from the Mother to her employer dated 17 October 2016, in which the Mother advised her employer that her lawyers told her they may be able to get an early hearing date from this Court if there is some urgency about her employment situation.
Her employer responded by saying “Sure. Please can you draft something that will do the trick?”. The Mother then emailed her employer and asked him to write an email along the lines of her suggested letter, in which she told him to ask for an update on her status as soon as possible, and that they need to know if she will accept the offer by the end of the year. The employer then sent an email to the Mother using the precise wording she drafted, which the Mother then sent to the Father.
The Mother said it was not unusual for her to draft emails for her employer.
Whilst the employer had written, at the Mother’s urging, an email saying they needed to know if she was taking the position by the end of December 2016, the offer remains on the table in June 2019. That suggests there was no real or genuine urgency some two and a half years ago.
In her oral evidence, the Mother said Employer A has been patient, but they have pressured her “subliminally”. I do not know what she meant by that.
In my view, whether the Mother has overstated the urgency of her application is of limited relevance to the determination I must now make. What is plain is that the offer remains on foot.
I accept the Mother’s evidence that the position would advance her career. There are advantages that would flow to X if the Mother is able to take up that opportunity, including financial benefits. They also include the advantage to the Mother of feeling professionally fulfilled, which would increase her sense of happiness, which in turn would positively impact X. These are important considerations.
It does not appear to me, however, that the evidence supports a finding that the Mother’s employment in Melbourne is unstable. The Mother asserted that in the event of an economic downturn, her position in Melbourne was more vulnerable than if she was engaged in the Sydney role. She says she would be the first to be “let go” if there were economic issues.
The Mother’s employers appear to hold her in high regard. They have neither made her redundant, nor closed their offer to her, despite the significant wait they have endured. She has received substantial bonuses and share incentives in addition to her base salary, although the shares only vest every three years. In September 2018, she received a bonus of $140,000, inclusive of superannuation, and an allocation of 100,000 shares. I accept the Mother’s evidence that even when those shares vest, there are limits on how these can be dealt with by her, as they are not shares in a publicly listed company. Additionally, they do not necessarily have the value the business attributes to them.
In the letter to her advising her of those additional payments dated 13 September 2018, her employer writes in part:-
These incentives recognise your performance, commitment, enthusiasm and contribution as a valuable member of our Firm…
Thank you for all of your effort and support over the course of the past year. I look forward to working with you in the year ahead as we continue to grow the Firm
In her oral evidence the Mother acknowledged her employer has never told her that her employment is insecure. She also said that prior to her joining the team, no-one had been paid bonuses.
It is apparent from the Mother’s material that she has continued to play a significant role in the Sydney office notwithstanding that she remains based in Melbourne. Her evidence is that she has continued to fly to Sydney at least once per month for work purposes. It was suggested to the Mother by Counsel for the Father that she could work in Sydney from Tuesday to Thursday in each week, however, the Mother said she would not be able to take the position on a fly-in-fly-out basis. She said that would be impractical as she is required to work outside of work hours, attend meetings or be at the office on Mondays as required and attend dinners and other work events outside of hours. I note that no evidence was called from the Mother’s employer at trial. I also note that if the Mother was residing in Sydney, the Father would be unable to assist in X’s care when the Mother attends these out-of-hours events.
The Mother says she has suffered stress and anxiety since the relationship with the Father ended. She says she is managing those matters after having engaged with a psychologist since April 2015. She says she feels isolated and anxious in Melbourne, being a single parent without a strong support network around her. She says she has no family members in Melbourne other than her brother, from whom she is substantially estranged. The maternal grandmother lives in Town P and accordingly is unable to provide day-to-day support and assistance, although she visits often. The Mother said in earlier material that she feels isolated, lonely and unsupported.
No evidence was called from either of the Mother’s psychologists. Nevertheless, I accept that the Mother will be personally happier if she is able to move to Sydney.
When the Mother commenced these proceedings, she was in a relationship with Mr F. Part of her case was that she wanted to relocate to pursue that relationship. She and Mr F became engaged in … 2017 and the Mother said at that time they planned to marry in 2019. She referred to the emotional and practical support she enjoyed from Mr F as being of benefit to her if she was able to relocate.
Unfortunately, that relationship, and the support and assistance the Mother anticipated as a result, ended in April 2019. The Mother did not advise the Father that her relationship with Mr F had ended. Rather, the Father discovered the relationship breakdown from reading the Mother’s affidavit filed shortly before Final Hearing. It is worth noting that in previous material, the Mother described X as having developed a “very close and sibling-like bond with N and O” and that he “thoroughly enjoys” spending time with Mr F and his children. She said his relationship with them including with their nanny Ms J “continues to flourish”. Putting the Mother’s evidence at its highest, it is likely the loss of those relationships would have some impact on X and it is unfortunate the Father was not promptly told of this significant change in X’s life.
The Mother currently works from home each Monday and does not work on Fridays. She says she will have substantially the same arrangement in Sydney. In her oral evidence, she said her hours will be 9.30am to 6.00pm Monday to Thursday, with some flexibility as to start and finish times. She also said she would be able to finish at 5.30pm and can work from home on Monday, although from time to time she may be required to attend the office. She acknowledged that she has been required to stay at work until 9.00pm previously but that had only happened once. On that occasion, X was cared for by his Father, and the Mother required that he be woken and returned to her care for the night when she returned home.
In terms of the arrangements for X whilst in Sydney, the Mother says she can live close to X’s proposed kindergarten. He will attend kindergarten on Monday from 9.00am to around 4.30pm. She says she will drop him to kindergarten by 8.15am on Tuesday, Wednesday and Thursday mornings and collect him by 5.30pm. It is difficult to see how she can collect him by 5.30pm when she does not finish until at least 5.30 if not 6.00pm on her evidence. She will not work on Fridays and will continue to spend time with X on those days.
The Mother says she has some close friends in Sydney, whom she says would be available to assist her and support her. No such persons were on affidavit to confirm their availability to support her. The Mother also says she has engaged another babysitter, Ms Q, in Sydney, who will be able to assist her at short notice in Sydney. Ms Q has already babysat X in the past. She says the maternal grandmother will continue to visit regularly, around every four to six weeks. The Mother says this is about the same time that the maternal grandmother visits in Melbourne.
Whilst the Mother does not feel she has a strong support network in Melbourne, in the circumstances of this case, I am not satisfied that she has any more supports in Sydney. Importantly in Sydney, she would not have the ready available support offered by the Father for the care of X. That is significant for X in particular.
The Father’s evidence
The Father currently collects X at 4.00pm every Tuesday, Wednesday and Thursday each week and cares for him until his Mother returns from work at about 7.00pm, save for every second Wednesday when he stays with his Father overnight. The Father proposes these or similar arrangements should continue, which means X only needs to spend a short period in care after crèche, and later, school. He contrasts this to the situation if the Mother relocates, when X will remain in care until collected by his Mother three to four afternoons per week.
The Father says if X remains in Melbourne he will have the benefit of the Father being fully involved in X’s life. The Father will be able to engage with his education, social life and his extra-curricular activities. In addition, the Father has close relationships with paternal family members, including his two sisters, his nephews and their five children. By remaining in Melbourne, the Father says X will have the advantage of maintaining close relationships with his extended paternal family. The Father too has maintained a relationship with the maternal uncle and his partner, X’s surrogate mother, and he facilitates X’s relationships with them.
The Father says if the relocation is permitted, X will lose the significant benefit of regular contact with his Father. The Father says if time is spent in Sydney, whilst this will enable the Father to share aspects of X's Sydney experiences, he and X will be staying at accommodation that does not have the conveniences and familiarity of X’s home in Melbourne. There will be significant costs to bear, including travel, accommodation, entertainment, and car hire, which the Father says will be difficult for him to manage, particularly once he retires. Whilst he is working, the Father will not be able to arrive in Sydney to collect X until Friday evening. For the foreseeable future, by the time he arrives in Sydney it will be close to X’s bedtime. The Father would accordingly have little opportunity to participate in or engage with X’s kindergarten or school life.
The Father says if X moves to Sydney but spends time in Melbourne, whilst that will mean X can spend time at his Father’s home and with his extended family, this does mean X bears a significant travel burden.
The Father also proposed that the Mother could work in Sydney from Tuesday to Thursday each week, and he would care for X whilst she is interstate. The Mother specifically rejected this as a possibility, and said her employer would not agree to her taking up the position while remaining primarily resident in Victoria.
The Father says he considered moving to Sydney but has concluded this would not be practicable for him to do so. He is 66 years of age and does not anticipate being readily able to obtain new employment. His family and friends, with whom he is very connected, are all in Melbourne. He does not own property in Sydney, nor does he have any history there. He says he would be lonely and isolated in Sydney. I accept his evidence in this regard.
The Father gave evidence that he is supportive of the Mother and her career. He said he wants her career “to flourish”, and that there are ways that can be achieved without being at the expense of X’s relationship and connectedness with his Father and his familiar surroundings. He reiterated that he is ready, willing and available to provide care for X whenever that will assist the Mother.
The Father has concerns that if the Mother relocated with X she would not promote and facilitate the father-child relationship. Having heard from the Mother under careful cross-examination, I am satisfied she understands the importance of the relationship between X and his Father. I am satisfied that if she and X lived in Sydney, she would do her best to facilitate the relationship between X and the Father. Nevertheless, the distance between them in the event of a relocation would reduce the Father’s capacity to assist the Mother and of necessity means that no mid-week time could occur.
Ms E’s evidence
As already set out, Ms E is X’s surrogate mother. X does not yet know this.
The Mother and Ms E are estranged. The Mother says she felt Ms E tried to force her to resume the relationship with the Father post-separation. That was denied by Ms E.
Unfortunately, Ms E’s affidavit is very critical of the Mother. She sets out complaints and comments the Mother made about the Father around the time of the parties’ separation, which was clearly a difficult and distressing time for them all. It is largely an historical affidavit as Ms E has had no contact with the Mother since late-2015.
In my view, the basis of the estrangement is not relevant to my determination in this matter. It is sad and unfortunate for X that his Mother and Ms E are estranged. It would be of enormous benefit to X if that rift could be repaired.
The Father continues to foster the relationship between X and Ms E and X’s cousins. That is clearly welcomed and reciprocated by Ms E. The Mother says the Father will be able to maintain those relationships by visits on holidays and weekends, and that X does not need to be living in Melbourne for this to occur.
It was Ms E’s evidence that most of the times she has seen X has been during school holiday periods.
Mr G
The Father relied on the affidavit of Mr G who provided therapy to the Father from around May 2015. Mr G sets out that the Father was extremely distressed at the breakdown of the relationship with the Mother. The Father also sought Mr G’s assistance when the Father says he was experiencing difficulties negotiating arrangements with the Mother and as a result of feeling distress when the Mother sought to relocate.
In all three letters annexed to his affidavit of April 2018, Mr G maintains that the Father is high functioning, and does not have any mental health issues that impact on his parenting. Indeed, he impressed Mr G as being a competent, responsive, safe and caring father.
I note Mr G made comments regarding parenting matters. Mr G did not have the opportunity of meeting the Mother, nor of observing either of the parties with X. Accordingly, I put no weight on Mr G’s evidence regarding any issue other than the Father’s mental health.
Mr G was not required for cross-examination. I accept his evidence regarding the Father’s mental health and the impact upon it that X’s relocation to Sydney would have.
Ms M
Ms M prepared two reports in this matter as I have set out.
At the time of the first report, communication between the parties was poor, and X’s time with his Father was more limited. The Mother’s proposal for relocation at that time was that she would travel to Melbourne at her expense for three out of four weekends to facilitate time between X and his Father.
In the first report, Ms M said generally a child of X’s age (who at that time was not quite three years old) was too young to relocate. However, she noted a number of important factors, including that X was developmentally advanced and had developed very secure and trusting relationships with both his parents. She said these factors did not mean X could easily adjust to a relocation but would assist him to manage the move emotionally. If a relocation occurred, regular FaceTime and at least three out of four weekends in Melbourne with his Father would help him transition.
Ms M suggested that a relocation could proceed “at some point but with caution and conditions”. She suggested two consecutive overnight stays with his Father should be introduced, with time over the holidays to gradually increase. Ms M said if this was manageable for X over the next six months “then relocation could happen”.
At the time of the second report, the Mother’s relocation proposal set out time between X and his Father occurring fortnightly, with one visit in Melbourne and one Sydney. The Father proposed X remain in Melbourne and commence an equal time arrangement between his parents in Melbourne.
Ms M said at that time, X being three and a half years of age, would “not be quite ready” to move from spending very regular time with his Father, to only two nights on alternate weekends as per the Mother’s proposals as then put. She said a gap of 11 days between spending time with the Father pursuant to the Mother’s proposal was too long. She did not believe X would manage cognitively or emotionally under that proposal.
In addition to what Ms M describes as the “immediate emotional and cognitive losses” for X spending less time with the Father and there being too long between visits, she referred to the “invisible costs for X”. Ms M identified these as the Father no longer being able to have ongoing involvement with X’s school and sporting life, and on missing out on other activities X and the Father have regularly enjoyed together.
Ms M said it was difficult to assess the losses to X. She said that it was “unknown as to whether these losses may be outweighed by any benefits to X which could include Ms Cahan being psychologically well and happy in her new life with Mr F”. Ms M was of the view that the losses may outweigh the benefits at that time. I pause here to note that there is now significant doubt that a relocation will result in the Mother being able to pursue a new life with Mr F.
Ms M’s evidence was that X’s cognitive and language skills had increased, which would assist him in emotionally managing longer separations from his Father. However, as X was spending such frequent time with his Father, she said it was “unknown” how X would be effected if time was reduced to each fortnight as proposed by the Mother. She described 11 days between time as being “still far too much to expect X to manage without suffering effects”, which could include distress and anxiety and a difficulty in expressing his feelings. She said if a relocation was to occur, time should occur in Melbourne three out of four weekends, together with FaceTime and a sharing of the school holidays. Ms M said that when X commenced school, such time may then need to be reduced to alternate weekends.
Under cross-examination, Ms M agreed that in the event X lived in Sydney, it would be beneficial to him for the Father to spend some time with him there. However, she maintained that X frequently returning to Melbourne to spend time in his Father’s home and engage with familiar people would assist him in making the transition to living in Sydney.
It was put to Ms M that X is now another ten months older than when she last saw him, and accordingly he would be more able to emotionally cope with a relocation. Ms M said she would generally agree with that statement. However, she said X is spending very frequent time with his Father on several occasions each week. Even though the periods of time are not lengthy, Ms M said this sets X apart from other children who have had more ‘usual’ fortnightly time plus a meal in the other week with the non-resident parent. She said the frequent, regular time has made X’s connection with his Father closer and stronger.
Ms M raised some concerns about whether the Mother would facilitate the relationship between X and the Father, as that would be an important consideration. She also said that X would need to spend three out of four weekends with the Father for a period of time to assist in the transition and to maintain his relationship with his Father.
Ms M also raised her concerns about the significant change to X’s care arrangements in Sydney, where X would be spending additional time in childcare. She said this would be a major change for X compared to his current situation, in which his Father plays a significant role in caring for him each Tuesday, Wednesday and Thursday afternoon. She said a move to Sydney will require X to adapt to very new and very different circumstances.
Equal shared parental responsibility
Although the communication between the parties is fairly limited, generally via text message or email, the parties both proposed there be orders for equal shared parental responsibility. Both parties also acknowledged that over time, their communication has slowly and gradually improved, as has their capacity to successfully and flexibly co-parent.
The relevant legal principles
It is quite clear at law that whilst this is described as a ‘relocation case’, this is not a separate category of parenting cases. I have to apply the law, and determine orders that are legitimate by reference both to the “best interests” consideration and to the rights of parents, including their right to choose where to live. I have to evaluate these competing proposals. I do not consider the relocation as a separate or discrete issue, but consider it as just one of the proposals for X’s living arrangements. These matters are set out in cases including AMS and AIF (1999) 199 CLR 160 (“AMS”), A v A: Relocation Approach [2000] FamCA 751, U v U [2002] 211 CLR 238 (“U v U”) and Taylor & Barker [2007] FamCA 1246.
As observed by Kent J in Heath & Hemming (No 2) [2011] FamCA 749 at 101:-
In some cases, the determination of “best interests” may well mean that one party’s choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child’s “best interests” being served by Orders which do not give one parent “optimal” arrangements or outcomes.
Part VII of the Family Law Act 1975 (Cth) (“the Act”) guides the process in relation to the making of parenting orders.
Section 65D of the Act directs the Court to make such parenting orders as it thinks proper. As to what is “proper”, and how the Court’s discretion is to be exercised, the Full Court in Grella & Jamieson [2017] FamCAFC 21 at paragraph 18 said:-
A discretionary judgement concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgements; assumptions; necessarily uncertain predictions and intuition.
Section 60B(1) of the Act sets out the objects of Part VII. They are to ensure that the best interests of children are met and hence, the objects act as a guide. The objects are:-
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60CA of the Act requires that in deciding whether to make a particular parenting order, the Court must consider the best interests of the child as the paramount consideration.
Section 65DAA of the Act sets out, inter alia, that if an order provides for equal shared parental responsibility, the Court must consider whether equal time is in the child’s best interests and whether an order to that effect is reasonably practicable. If the answer to either of those questions is negative, then I must consider both whether substantial and significant time is in the child’s best interests and whether an order for that is reasonably practicable. This is the approach set out by the High Court in MRR and GR [2010] HCA 4.
In this case, the parties agree there should be an order for equal shared parental responsibility. Although the Father initially sought an order for equal time, his position at the conclusion of the hearing was that he would accept Ms M’s recommendations. In circumstances where neither party is now of the view that equal time is currently in the child’s best interests, my consideration is only in relation to whether it is in X’s best interests and whether it is reasonably practicable for him to spend substantial and significant time with his Father.
It is clear that if the Mother and X are in Sydney, and the Father remains in Melbourne, there is a serious difficulty about the practicality of an order for substantial and significant time. An order for time on alternate weekends, or even three out of four weekends would still not enable X to experience school nights in his Father’s care. It would not allow the Father to be involved in X’s daily routine, as the arrangements could not include mid-week time. There is also the practical difficulty of travelling between Melbourne and Sydney, and the costs associated with that travel, including transport and accommodation for the travelling parent.
There is no such practical difficulty if X and the Mother were to remain in Melbourne. Both parents are employed in Melbourne. Both have secure housing and live within a few minutes’ drive of each other. Neither parent proposes any significant change to these circumstances if the relocation is not permitted.
As to whether an order for substantial and significant time is in the X’s best interests, the Court is obliged to examine the factors set out in section 60CC of the Act, to which I now turn.
The primary considerations
X’s best interests are paramount in these proceedings. In determining his best interests, there are two primary matters or considerations, and several additional matters or considerations which I am required to take into account.
Section 60CC(2) of the Act sets out the two primary considerations I must consider:-
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I must also weigh and consider the additional considerations set out in section 60CC(3) of the Act.
In this case, there are no real issues regarding X’s safety or exposure to abuse, neglect or family violence. I do not accept the complaints the Father makes in his material regarding the Mother’s conservative approach to X’s time with him amounting to abuse or harm in any way. In any event, this was not pressed at trial.
There is also no dispute between the parties that X should have a meaningful relationship with both of his parents. It appears common ground that X benefits from and enjoys a meaningful relationship with each of them and that this should continue.
In the case of McCall & Clark [2009] FamCAFC 92 (“McCall”), the Full Court of the Family Court noted that whilst the Act does not provide a definition of the word “meaningful”, they noted with approval the view of Brown J in her decision of Mazorski & Albright [2007] FamCA 520, in which her Honour said the term was synonymous with notions such as “significant”, “important”, “of consequence” and “valuable to the child”. Her Honour said it is a qualitative and not a strictly quantitative adjective. Their Honours in McCall also held it was appropriate to adopt the “prospective approach” when considering the benefit to a child of a meaningful relationship with both parents.
In the case of Godfrey & Sanders [2007] FamCA 102, Kay J noted that:-
Even if the move results in a diminution of the quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
This position was subsequently endorsed by the Full Court in McCall.
It is plain that if X relocates to Sydney, the quantity of time he spends with his Father will be diminished. That however is not the end of the matter. The question is whether X can maintain a meaningful relationship with his Father and can continue to benefit from that if he lives in Sydney.
As set out, the legislation does not require the Court to ensure an optimal relationship between X and the Father. The issue is whether he will benefit from having a meaningful relationship with him. I find that both parents currently have meaningful relationships with X, and he clearly derives significant benefit from those relationships.
Whilst the Mother’s proposals do not provide an optimal relationship between X and the Father, the evidence would not support a finding that X’s relationship with his Father would no longer be meaningful or significant to him if he moves to Sydney. Similarly, the evidence would not support a finding that X would not continue to benefit from his relationship with his Father in the event of a relocation. That is, the relationship between X and his Father will alter and the Father’s involvement in his life will become less, but not to the extent that the relationship will not be meaningful or beneficial to X.
The additional considerations pursuant to section 60CC(3) of the Act
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
At the age of four, X’s views would be given little weight. It is clear he loves both his parents and enjoys spending time with each of them.
The nature of the child’s relationships with each of their parents and other relevant persons
The Mother asserts she was and remains X’s primary carer. The Father says both parents were his primary carer, with the Father having taken some weeks off work following his birth, and having remained significantly engaged with X throughout his life. The Father asserts X’s relationship with both parents is equally important to him.
In my view, it does not matter which of the parents was or is his “primary attachment” or “primary carer”. Both parents are clearly highly engaged parents and are significantly involved in X’s care. X is clearly strongly and lovingly bonded and deeply attached to each of his parents.
During the first report, Ms M said X had formed “significant attachments” to both of his parents, and that he felt “trusting and secure” with them both. In her oral evidence Ms M noted that X has secure, trusting, warm, close and significant relationships with both parents.
Ms M recommends that if X remains in Melbourne, his alternate weekend time with his Father be extended to include Sunday nights. She also stated she would have no concerns if X were to stay each Tuesday and Wednesday night with his Father. That was in the context of the Mother potentially working in Sydney on a fly-in-fly-out basis. As already noted, the Mother’s evidence is that her employer would not permit that arrangement long-term.
Ms M recommends that if X relocates to Sydney, time should occur three out of four weekends for some time to assist him with the transition. In addition, the Father could attend for some day time contact on the Saturday or Sunday of the fourth weekend, although X also needs to enjoy weekend time with his Mother.
Those recommendations of Ms M reflect the depth and significance of the relationship between X and both of his parents.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child and to spend time and communicate with the child
The Father asserts the Mother has made unilateral decisions regarding X and attempted to exclude him from those decisions on occasion. For instance, he says she insisted on X not having the Father’s surname and did not provide him with the name and contact details of X’s doctor until she was compelled to by Court orders. He also says she unilaterally enrolled X in crèche in Sydney without his knowledge or consent. He asserts that these factors suggest the Mother does not place importance or value on his role in X’s life.
I do not accept that the Mother has enrolled X in crèche in Sydney. Her evidence is that she put him on a waiting list for a kindergarten in Suburb N and she has now been advised there is a place available for him.
Curiously, although the Mother has outlined the kindergartens and schools she has proposed for X in the event he lives in Sydney, the Father has not made any enquiries of his own nor contacted any of those kindergartens or schools.
Notwithstanding these observations, I am confident both parents have the capacity and desire to consult with each other and participate in making long term decisions regarding X. They both gave evidence about determining X’s future education, and they each impressed as being open to the suggestions and proposals of the other. I am also confident that both parents have taken every opportunity they can to spend time and engage with X and to provide him with care and support.
The extent to which each of the child’s parents has fulfilled or failed to fulfil their obligations to maintain the child
I am satisfied that both of the parents have fulfilled their obligations to maintain X.
The likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either of his parents or any other significant person
This consideration is a very significant aspect of this case.
The Father asserts that moving away from his life in Melbourne will profoundly interrupt X’s social and family relationships, requiring him to change kindergartens and move home. He further asserts that such a move would be diminishing and disruptive of his relationship with the Father. He says this will be a drastic change for X, the effect of which will be to marginalise and substantially exclude the Father from X’s life. The Father says this will cause X emotional pain and a deep sense of loss.
The Mother asserts X’s relationship with his Father will not be diminished by the relocation. She acknowledges there would be some adjustment and changes but the relationship between X and his Father will continue to grow and flourish.
If X moves to Sydney he will cease spending time with his Father each Tuesday, Wednesday and Thursday during school term. Instead, he will be cared for either at crèche, after-school care or by a paid professional or babysitter when the Mother is at work. I accept Ms M’s evidence that this will be a major change for X.
Whilst FaceTime or Skype may assist X by enabling him to see his Father, it is trite to say this is no substitute for being physically present. I note the Mother’s evidence that X in the past could become distracted and unable to concentrate during FaceTime calls, although she says this has improved since around December 2018. At his age, it is not surprising that he would lose interest in FaceTime on occasion.
I also note the Mother’s evidence that X is a tactile and physically affectionate child. She acknowledged he enjoys physical games, cuddling, tickling, and crawling around together. If X is in Sydney, the time he can engage with his Father in this sort of play and interaction will be dramatically curtailed.
There is no doubt that moving to Sydney will be a significant change for X. Currently, kindergarten ends at around 3.00pm or 3.15pm. X remains in care until 4.00pm. If he moves to Sydney, X will no longer have the advantage of being collected by one parent shortly after kindergarten or school each day. He will no longer see his Father every Tuesday, Wednesday and Thursday. He will remain in care three days per week until the Mother finishes work. How X will cope with those very significant changes is unknown. He has already had to manage the Mother’s separation from Mr F, which he would have experienced as a loss, according to Ms M. In my view it would be naïve to believe X would easily transition to these changed arrangements or that he would not keenly miss the frequent and regular time with his Father.
Ms M said X’s capacity to cope will be significantly impacted by how well the transition is supported by the Mother, and how she manages and facilitates X’s relationship with his Father. Ms M’s evidence was that at his age, X will struggle to express his emotions and feelings in words which will make it difficult to assess the full effects on him. He will need to have things explained to him. He will need regular Skype or FaceTime with his Father. He will need to know his Father is “still there” for him, and that he remains a real, visible and significant person in his life. She said even if the Mother supports and facilitates the relocation and X’s ongoing relationship with his Father, X will still feel a significant loss. She said those losses included emotional and cognitive losses, as well as the “invisible costs” to X as a result of the Father’s diminished availability to him.
As already set out, Ms M’s evidence was that to assist X in transitioning to live in Sydney and to minimise the psychological impact on him of the relocation, time would best occur in Melbourne on three out of four weekends, with the Father to also be at liberty to travel to Sydney on the fourth weekend for some additional time with X.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
If X remains in Melbourne, there are no difficulties nor expenses for time to occur. The parties live in close proximity to each other. The advantages for X are obvious and significant. Both his parents can remain significantly involved in his life with all the benefits that flow from that.
If X lives in Sydney, any of the competing proposals are accompanied by practical difficulties that substantially affect X’s relationship with his Father in particular. This is another very important aspect of this case.
If X relocates, any of the competing proposals will result in flight costs and the travelling parent having to incur the costs of accommodation and hire cars. Additionally, if the Father travels to Sydney, it is predictable that the expenses for entertaining X would be increased. I accept the costs for the Father to travel to Sydney and spend a weekend there will be approximately $1000 per trip.
The costs however are not necessarily insurmountable. Both parents are in paid employment. The Mother anticipates she will receive a modest base salary increase upon her relocation. She also expects her income to otherwise increase by way of bonuses. The Mother’s evidence was that whilst she would prefer not to bear more of the costs of travel than she has proposed, she wanted the Father to be involved in X’s life in Sydney. Implicit in that was her acknowledgment that if required, she could contribute more to the costs of travel. Similarly, the Father acknowledged he would effectively find the funds to enable him to spend time with X, although that would be made more difficult when he retires.
The sustainability of travel and the physical and emotional cost of travel on X are another significant practical difficulty in the event of relocation. In his oral evidence, the Father said if the relocation occurs, X should travel back to Melbourne three out of four weekends, an arrangement that the Father describes in his affidavit as being “not appropriate”. At Final Hearing however, he said it was the “lesser of two evils”. That is, out of the options available in the event of a relocation, X travelling to Melbourne three weekends out of four was a ‘less-worse’ option than time occurring fortnightly. He said that it was better for X for the time with the Father to occur in Melbourne. That would mean X would bear the onerous burden of travelling frequently but would then be able to stay at a home familiar to him.
The Mother deposes that X handles the commute between Melbourne and Sydney well and has no difficulties flying. However, both parties acknowledge there would be a toll on X of travelling as proposed by the Father. There is a significant difference between travelling between Melbourne and Sydney once per month and travelling three out of four weekends, or even each alternate weekend. I accept that travelling to Melbourne three out of four weekends would be exhausting and unsustainable for X in the long term. Even alternate weekends or potentially once per month would be problematic, particularly once X starts school. He will need to travel to the airport, wait to board, fly to Melbourne, be collected and travel back to the Father’s home. Even without delays, this process will take several hours on a Friday, and then be repeated on Sunday. It will be tiring for him. It will be unreasonable for him to leave school early on a Friday in order to get to his Father’s home at a reasonable time in the evening. The return flight to Sydney will also truncate the time on a Sunday. There will be school events, social events, extra-curricular activities and the like that X will miss which occur on weekends he has to travel to Melbourne.
If the Father travels to Sydney, that has the benefit of enabling the Father to spend time in what would be X’s world. However, that time would be limited to weekends only. The Father cannot arrive until close to X’s bedtime on a Friday evening. Time in Sydney in a motel or serviced apartment, whilst enabling the Father to share in X’s life there, is not qualitatively the same for X as spending time in his Father’s home. He will not have the comfort of his own familiar bed, bedroom, toys and surroundings. He will not have his sandpit and toddler pool or indoor train set currently set up in his bedroom in his Father’s home. The Father will not have his family and friends nearby to take X to visit or their dog to walk together.
If X lives in Sydney, it is also not practicable for the Father to easily meet X’s school teachers or to regularly attend to take him to or collect him from school. The Father cannot arrive in Sydney early enough on a Friday to collect X from kindergarten or school whilst he remains employed, and would have to return him to the Mother on a Sunday evening. The Father would need to take time off work to physically attend at X’s kindergarten or school. It will be difficult for him to attend school assemblies or other functions to which parents are invited. That may become easier if the Father retires in four years or so. However, currently the reality is that the distance diminishes the capacity of the Father to actively engage in X’s schooling and education. That in turn diminishes the quality of X’s relationship with his Father.
Any orders that would have X travel to Melbourne regularly create practical difficulties for his social life and engagement in extra-curricular activities.
A further practical difficulty whilst the Father is employed is that the New South Wales and Victorian school holidays do not wholly overlap. The Father is currently available during all Victorian school holidays to spend time with X. That the periods do not wholly coincide may make it more difficult for X to spend time with his Father if he was to reside in Sydney.
The capacity of each of the child’s parents and any other significant person to provide for the needs of the child, including emotional and intellectual needs
The Father asserts the Mother has not prioritised X’s needs on occasion. He has generally interpreted the Mother’s more conservative approach towards X’s time with him as controlling or gatekeeping. The Father says the Mother does not understand or appreciate the importance of the Father’s relationship with X and that she has been dismissive on many occasions of his role in X’s life. For instance, he deposes to issues including that:-
a)the Mother has arranged for other people to care for X in her absence when he is available;
b)the Mother has been difficult about extending time;
c)the Mother does not manage the changeovers safely;
d)the Mother has sworn at him at a changeover; and
e)the Mother has not kept him properly informed as to X’s care arrangements and whereabouts at times.
The Father also referred to a time the Mother refused to allow X to bring home a toy dinosaur the Father gave him. The Mother said it was a large toy, almost as tall as X, and therefore inappropriate. I reject the Mother’s evidence about this matter. The Father tendered a picture of the toy next to X taken in 2018. It comes up to around his knees and in my view the Mother’s exaggeration and refusal was unwarranted.
In his affidavits, the Father asserts that he has significant concerns the Mother will not facilitate the parent-child relationship between X and the Father in the event of a relocation. In his oral evidence, he said that he still has some reservations, and a very real fear about that. However, he also acknowledged circumstances and communication between the parties had improved, cooperation had also improved and “things have become more amicable”.
The Mother denies any wrongdoing on her part, save that she acknowledges she possibly swore on one occasion, which she regrets. She says she has always acted in a child-focussed manner and that the Father’s proposals have at times exceeded X’s capacity to manage time away from her.
I accept that the circumstances surrounding the parties’ separation were tense and fraught and that from 2016, and 2017 in particular, the Mother had limited trust in the Father. I also note Ms M’s observation that circumstances of X’s conception and birth may well have contributed to the Mother being quite protective of X. That tension and mistrust appears to be resolving or at least diminishing. In more recent times, the parties have both been able to make arrangements for X that meet his developmental needs.
Overall, the evidence supports a finding that both of the parties are well able to provide for X’s needs. They are both engaged and attuned parents who are both well placed to assist X in his intellectual, emotional and psychological development. Ms M notes the parties’ parenting journey began under very difficult circumstances, and I agree with her observation that the parents have generally done their best to provide their son “with a safe, caring world through mature and responsible parenting”. She also described them as “mature, very responsible and capable parents”. That accords with my observations of them.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
There is nothing about the parties’ or the child’s lifestyle, culture, traditions, background or maturity that is relevant in these proceedings.
If the child is an Aboriginal child or a Torres Strait Islander child
This consideration is not relevant to these proceedings.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
There is no doubt each of the parties has generally demonstrated a responsible attitude to X and the responsibilities of parenting him. As I have said, they are both engaged and attuned parents.
Any family violence involving the child or a member of their family and whether any family violence orders apply
The Father asserts the Mother was verbally abusive and physically aggressive to him around the time of separation. The Mother did say some hurtful and nasty things to and about the Father at that time. I also accept that the Mother lashed out physically around the time of the parties’ separation. Her behaviour was unacceptable. It was also limited in time and duration. There is no suggestion that there is any likelihood or risk at all of either parent subjecting the other or X to family violence.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The parties have been engaged in litigation for an extended period of time. It is preferable and in the best interests of X that these proceedings be brought to an end.
Any other fact or circumstance that the court thinks is relevant
The Mother’s legitimate interests and desires are that she be permitted to relocate to further her career. In AMS, his Honour Justice Kirby (as he then was) said that the Court is not obliged to ignore parents’ legitimate interests and desires, and cannot view the children’s best interests “…in the abstract, separated from the circumstances of the parent with whom the child resides”.
It is settled authority pursuant to the High Court authority of U v U that parents have a right of freedom of mobility, but that right “…must defer to the expressed paramount consideration, the welfare of the child that would be adversely affected by a movement of a parent.”
In AMS, Justice Kirby said at paragraph 145:-
One of the objects of modern family law statutes…is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare of the best interests of the child and not, as such, the wishes and interests of the parents.
I note the Mother deposes to feeling isolated and anxious, due to the demands of being a single parent with a professional career, trying to balance that without a strong support network around her. The Mother has previously deposed that she had concerns for the impact on her emotional wellbeing as X’s primary carer if she were unable to relocate. That was largely in the context of being unable to pursue her relationship with Mr F, which has now ceased. Having said that, I note the Mother hopes to rekindle that relationship. I put little weight on that hope given I know nothing about the circumstances of the breakdown of that relationship nor heard evidence from Mr F.
I note the Mother deposes to suffering stress and anxiety about the stability of her employment. There was no evidence from her employer that suggests her employment is in any way unstable or tenuous. She has worked with her current employer for approximately seven or eight years and is evidently well regarded by them.
In Melbourne, the Mother has the significant support of the Father for the care of X. She is not parenting alone as they are both engaged and involved parents. X currently spends significant time with the Father for five afternoons each fortnight, plus an overnight visit in each alternate week and two nights each alternate weekend. My orders will increase that time. The Father is well placed to care for X when the Mother is not available, in the event she is held up at work or has a function to attend. I am further heartened in this regard by the evidence of both parties that their ability to communicate and parent co-operatively has improved over time.
I accept the Mother wants to move and that she perceives she will be happier in Sydney. I also accept that she may have some unhappiness and frustration as a result of this decision. However, she is also a competent and attuned parent, and after having the advantage of seeing the Mother give evidence I am confident she will not allow her disappointment or other feelings in that regard to impact on X or to affect her parenting. She presented as a very child-focussed parent, who will ensure X is not harmed.
What orders should be made?
I have considered at length the parties’ competing proposals including the proposals as advanced by their respective Counsel in closing addresses. I note both parties made alterations to their positions. I have separately evaluated each of their competing proposals in these reasons, considering the advantages and disadvantages of the various options for X. I have carefully considered other permutations of X’s travel and/or the Father’s travel in the event of a relocation. I have also carefully considered the primary and additional considerations, as well as the Mother’s desire to further her career as set out, together with considering the reasonable practicability of substantial and significant time.
I refer again to the objects underlying a determination of a parenting matter, as I have already set out. Section 60B(2) sets out that:-
(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 to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly 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; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The objects and the principles as set out in the legislation are intended as a guide to the determination of the Court. As Cronin J said in Farleigh & Wills and Ors [2011] FamCA 431, “They are the aspirations of the community for children in Australia”. X is entitled to have the benefit of both of his parents meaningfully involved in his life, to the maximum extent consistent with his best interests. X currently enjoys substantial and significant time with both of his parents. The relocation as proposed by the Mother will dramatically alter the parenting arrangements for X and X will feel a significant sense of loss. The proposed relocation will significantly curtail the Father’s involvement and engagement in X’s life as a matter of practical reality. These are the matters and considerations to which I attach significant weight.
This is a difficult and finely balanced case. In the context of all the evidence, the balance favours X remaining in Melbourne.
I note the parties effectively agree that if X remains in Melbourne they will adopt Ms M’s recommendations for time to be increased to include the Sunday overnight. I note the parties also agree to move X to a nine-five arrangement upon X commencing school. I agree with the Father’s proposal that in addition, X should continue to spend some time with his Father after school. In my view, that should occur each Tuesday. This will ensure X’s parents remain able to engage with his education, and will also ensure X continues to have his parents significantly involved in his life.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding one hundred and eighty (180) paragraphs are a true copy of the reasons for judgment of Judge Carter
Date: 30 August 2019
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Injunction
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Procedural Fairness
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