CALLANAN & MAGRI
[2012] FMCAfam 246
•23 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CALLANAN & MAGRI | [2012] FMCAfam 246 |
| FAMILY LAW – Children – parenting orders – relocation – where mother seeks to relocate child’s residence to (omitted) – girl nearly 10 years of age – consideration of child’s views. FAMILY LAW – Children – parenting orders – best interests of the child – parental responsibility – equal shared parental responsibility – sole parental responsibility. |
| Family Law Act 1975 (Cth), ss.60CA, 60CB, 60CC, 61DA, 65DAA |
| Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 Harrison & Woollard (1995) 18 Fam LR 788; FLC 92-598 Mallahan & Mallahan [2010] FamCA 631 Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343 MRR v GR [2010] HCA 4; (2010) 42 Fam LR 531; FLC 93-424 |
| Applicant: | MR CALLANAN |
| Respondent: | MS MAGRI |
| File Number: | SYC 1496 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 25 & 26 November, 20 December 2011, 21 February 2012 |
| Date of Last Submission: | 20 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 23 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Anderson |
| Solicitors for the Applicant: | Moylan Family Lawyers |
| Counsel for the Respondent: | Ms Kennedy |
| Solicitors for the Respondent: | Marks Griffith Bova |
ORDERS
All earlier parenting Orders are discharged.
The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child X born (omitted) 2002.
The Respondent Mother is restrained from relocating the residence of the child X born (omitted) 2002 outside the Commonwealth of Australia.
The child X is to live with the Mother in the Sydney Metropolitan Area.
Within forty-eight (48) hours of the Father receiving his work roster from his employer, he must provide to the Mother a copy of that roster by way of email or ordinary post.
Within forty-eight (48) hours of the Mother receiving the Father’s work roster the Mother is to nominate no fewer than eighteen nights (18) during the rostered period whilst the Father is in Australia that the child is to spend with the Father subject to the provisions of Order 8.
With respect to Order 6 above, the total of eighteen (18) nights that the child is to spend with the Father is to include:
(a)two (2) periods of two (2) overnight blocks on weekends;
(b)three (3) periods of three (3) overnight blocks; and
(c)the balance of the time is to be nominated by the Mother.
The time spent by the Father with the child according to these Orders is to be suspended and the child is to live with the Mother:
(a)from the last day of school at the end of Term 4 in 2012 and each alternate year thereafter until Australia Day 25 January in 2013 and each alternate year thereafter;
(b)from 2 January 2014 until Australia Day 2014 and each alternate year thereafter;
(c)for the whole of the Winter school holiday period in each year from the last day of school at the end of Term 2 until the day before school resumes at the beginning of Term 3;
(d)on Mother’s Day in each year; and
(e)on the Mother’s birthday in each year.
In the event that the Father is not required to work on the child’s birthday in any year the child is to spend a period of no less than three (3) hours with the father between the hours of 3:30pm and 6:30pm or at such other time as the parties shall agree.
In the event that the Father is not required to work on Father’s Day in any year the child is to spend Father’s Day with the Father.
In the event that the Father is not required to work on his birthday in any year the child is to spend a period of no less than three (3) hours with the father between the hours of 3:30pm and 6:30pm or at such other time as the parties shall agree.
In the event that the Father is not required to work on Christmas Eve and Christmas Day in 2013 and each alternate year thereafter the child is to spend time with the father from 2:00pm on Christmas Eve until 2:00pm on Christmas Day.
The school term is defined in accordance with the information contained within the New South Wales Public Schools Website (currently ) in the “Term Dates” section or in any official New South Wales schools website that replaces that website.
For the purposes of facilitating changeover in the event that the time that the Father spends with the child occurs on a school day then changeover is to take place at the child’s school and in the event that changeover occurs on a weekend or a public holiday or a day in the school holidays then the Mother is to deliver the child to the Father’s residence at the commencement of the time and the Father is to return the child to the Mother’s residence at the conclusion of the time.
The Mother is permitted to take the child X out of Australia for the purpose of a holiday overseas:
(a)during the Christmas/January school holiday period at or between the times set out in Orders 8(a) and 8(b) above;
(b)during the Winter school holiday period at or between the times provided by Order 8(c) above; and
(c)at such other times as the parties shall agree.
The Father is permitted to take the child X out of Australia for the purpose of a holiday overseas for a period of no more than two (2) weeks in each year at such times as the parties shall agree.
For the purposes of Orders 15 and 16 the parent proposing to travel overseas with the child must provide to the other parent no later than six (6) weeks before the intended trip a detailed itinerary including but not limited to copies of return airfares and contact details for the child to include telephone numbers and addresses of where the child will be staying and on what dates and times.
Each parent must ensure that the child is able to speak to the other parent by telephone or communicate with the other parent by email at any reasonable time when the child is living with or spending time with the other parent.
IT IS NOTED that publication of this judgment under the pseudonym Callanan & Magri is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1496 of 2010
| MR CALLANAN |
Applicant
And
| MS MAGRI |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the Father of a girl named X, who is nearly ten years old. She was born on (omitted) 2002. In his original application, the Father seeks orders that:
a)The parties have equal shared parental responsibility for her;
b)That she lives with him on a week about basis from Monday to Monday; and
c)That both he and the child’s mother are restrained from removing X from the Commonwealth of Australia.
However, by the time of the final hearing the Father had modified his position somewhat. He sought orders that the child should remain living with the Mother in Australia and that he should spend time with her at times according to his work roster.
The Mother opposes these orders. She wishes to move back to (omitted), her country of birth, and take X to live with her there.
No Area of Agreement
There are no areas of agreement between the parties.
Issues
The issue between the parties is whether the child should continue to live in Australia or whether the Mother should be permitted to relocate the child’s residence to (omitted).
It is also an issue whether the parties should have equal shared parental responsibility or whether the Mother should have sole parental responsibility for the child.
Orders Sought
The orders sought by the Father at the final hearing differ somewhat from those sought in the original Application.
The Father seeks orders as set out in a Minute of Proposed Orders filed in Court by his counsel on the first day of the final hearing.
The Father wishes the Court to order that:
· The Mother and Father have equal shared parental responsibility for the child X born (omitted) 2002 (the child”)
· The child live with the Mother in the Sydney Metropolitan Area
· Within 48 hours of the Father receiving his work roster, he shall provide to the Mother a copy of such roster by way of email or ordinary post.
· Within 48 hours of receiving the Father’s work roster the Mother shall nominate no les than 18 nights during the rostered period whilst the Father is in Australia that the child should spend with the Father.
· With respect to (the above order), the total of 18 nights shall include the following:-
- two periods of two overnight blocks on weekends;
- three periods of three overnight blocks;
- the balance as nominated by the mother.
· That in the event that the child is otherwise spending time with the Mother on Father’s Day, such time will be suspended and the child shall spend time with the Father on Father’s Day from 9.00am to 5.00pm.
· That in the event that the child is otherwise spending time with the Father on Mother’s Day, such time will be suspended and the child shall spend time with the Mother on Mother’s Day from 9.00am to 5.00pm.
· The Father shall spend time with the child from 2.00pm on 24 December to 2.00pm on 25 December in each even numbered year and from 2.00pm on 25 December to 2.00pm on 26 December in each odd numbered year.
· The Father shall send time with the child on her birthday for a period of no less than 3 hours as agreed or failing agreement from 3.30pm to 6.30pm.
· For the purposes of facilitating changeover in the event that the time that the Father spends with the child occurs on a weekday then changeover shall occur at the child’s school and in the event changeover occurs on a weekend the Mother shall deliver the child to the Father’s residence at the commencement of that time and the Father shall return the child to the Mother’s residence at the conclusion of such time.
· The child (is to) be permitted to travel overseas with the Mother for a period of no more than six (6) weeks each year.
· The child (is to) be permitted to travel overseas with the Father for a period of no more than two (2) weeks each year.
· For the purposes of (the above) orders the parent proposing to travel overseas with the child shall provide to the other parent no later than six (6) weeks before the intended trip to a detailed itinerary including but not limited to copies of return airfares and contact details for the child including telephone numbers and addresses of where and when the child will be staying.
The orders sought by the Mother are set out in her Response filed on 6th May 2010. They are:
1.That the child of the relationship namely X (hereinafter referred to as “the child”) born (omitted) 2002 live with the Mother and she have sole responsibility for the child.
2.That the Mother have leave to remove the child from the Commonwealth of Australia and relocate to (omitted).
3.That following the Mother relocating the child spend time with the Father as follows:
(a)for a single block period of at least twenty eight (28) days each year in the father’s country of residence as provided in Order 4;
(b)for three (3) periods of up to seven (7) consecutive days during the school terms in (omitted) on dates and times nominated by the father on the conditions set out in Order 5 below;
and such other times as agreed between the parties.
4.That for the purposes of visits in Order 3 (a) above the following conditions apply:
(a)the parties use their best endeavours to ensure that visits to Australia occur during the child’s school holidays in July/August;
(b)such dates and times of visits to be as agreed and failing agreement as nominated in writing by the father to the mother at least two (2) months prior to the planned visit with details of the dates of travel and flight bookings (including who will be travelling with the child);
(c)the Father to bear all of the child’s flight and travel costs to and from the country of father’s residence.
5.That the child have liberal telephone and Skype communication with the Father (at least once per week).
6.That for the purposes of visits in Order 3 (b) above such dates and times of visits to be as agreed and failing agreement as nominated in writing by the Father to the Mother at least one (1) month prior to the planned visit and the Father to notify the Mother as to the accommodation where he intends to reside with the child whilst she is with him in (omitted).
7.That the parties keep each other informed as to their current residential telephone number, mobile number, email address and residential address and whom they are living with and advise each other within two (2) days of any such change.
8.That if the child is hospitalised or receives medical attention the Mother will notify the Father as soon as is reasonably practicable after the initial attendance with the medical practitioner, medical centre or hospital, with that notification to include details of the illness, injury, treating doctor, the prognosis and treatment, if known.
9.That the Mother will ensure that the Father is kept informed as soon as is reasonably practicable of the child’s enrolment at school and as to her education progress.
Background
The parties’ lawyers have each prepared a useful chronology.
The Mother was born in (omitted) on (omitted) 1962. She is now 50 years of age.
The Father was born in Australia on (omitted) 1971. He is now 40 years of age.
The Mother came to Australia in May 1994 and has remained living in this country since then.
The parties met in January 2000 and commenced a relationship. They did not live together.
In May or June 2001 the parties’ relationship ended but continued on a casual basis. The Mother discovered in August 2001 that she was pregnant.
The child X was born on (omitted) 2002.
The Father commenced spending time with the child from about the time the child attained the age of 3 years.
The Mother travelled to (omitted) with the child in July and August 2005. The Father visited them in (omitted).
In 2007 the Father took X to Canberra and (omitted) for a holiday.
The child visited (omitted) for a holiday at Easter 2008, in the presence of both parents.
In December 2009 the Mother arranged for the parties to attend mediation with Relationships Australia. The parties took part in mediation in January and February 2010.
The Father commenced proceedings in this Court by filing an Application on 11th March 2010.
The Application was returnable on 10th May 2010. On that day the parties entered into interim consent orders providing that:
a)Both parties were restrained from removing the child from the Commonwealth of Australia and the child’s name was placed on the Airport Watch List maintained by the Australian Federal Police; and
b)The parties were to attend a Child Dispute Conference with a Family Consultant.
The Child Dispute Conference took place on 24th May 2010. The parties did not agree about the child relocating to (omitted) with the Mother. They agreed that the child would remain living with the Mother pending a final hearing and the Mother would be able to travel overseas with the child for a holiday.
The application was listed for final hearing and a Family Report was ordered.
The Mother took X to (omitted) for a holiday in August 2010 with the Father’s consent.
Evidence
The Father relied on his affidavits of:
a)4th March 2010; and
b)10th November 2010.
The Mother relied on her affidavits of:
a)5th May 2010; and
b)12th November 2010.
It is the Father’s evidence that he has had a significant involvement in X’s life from the time of her birth. In July 2003 he moved to (omitted) from (omitted) in order to be closer to the Mother and X. They were living in the suburb of (omitted) at the time.
The Father deposed that he had been involved in the child’s school life and has attended parent/teacher interviews, sporting events and other school activities.[1]
[1] Affidavit of Mr Callanan 4.3.2010 at paragraph [8.6]
The Father deposed that he took the child to Canberra and (omitted) in 2007 and he took the mother and the child to (omitted) on a work trip, in the course of his employment as a (occupation omitted), in 2008. He has also taken the Mother and child to and from Europe on three separate occasions.[2]
[2] Ibid at [8.7] & [8.8]
The Father stated that he feared that the Mother would take the child away from Australia permanently because on some ten occasions she had said to him:
“I am going to take X to live in (omitted)”.[3]
[3] Ibid at [11]
The Father claims that the Mother has changed her attitude towards his spending time with X or communicating with her, stating that after he left telephone messages for the child when he was in (omitted) in June 2010 he was unable to speak to her and received “various abusive text messages” from the mother.[4]
[4] Affidavit of Mr Callanan 10.11.2010 at [33]
The Father deposes that the child attends (omitted) Public School, where she is doing well both academically and socially. He often speaks with her teachers. She has several close girlfriends and a busy extra-curricular schedule, involving dance lessons, swimming lessons, sporting activities, private (omitted) lessons at school and drama lessons.
The Father also states that X has a good relationship with her paternal grandparents, who live in the nearby suburb of (omitted). The Father also states that the child has a good relationship with his sister and sleeps over at her aunt’s house approximately once a month.
The Father has expressed concern about the adverse consequences on his relationship with X if she were to live in (omitted). Although he is employed by (omitted) as a (occupation omitted) it would not be easy for him to travel regularly to (omitted) to see his daughter. (omitted) does not fly directly to (omitted).
Further, his rosters are based on an eight week cycle. For the Father to spend time in (omitted), where the Mother wishes to live, he would have to request that his roster includes four eight day trips to (omitted). During his 63 hour lay-over, he would have to fly to (omitted) and then drive for over an hour to (omitted). He would have to stay in (omitted) for two nights with the child before returning her to her mother and then flying back to (omitted).[5]
[5] Affidavit of Mr Callanan 10.11.2010 at [54]
The Father deposes that if the child were not to relocate out of Australia he would make arrangements for X to live with him and he would do all things in his power to facilitate a meaningful relationship with the Mother.
The Father gave oral evidence. He said that X has travelled to (omitted) with her mother almost every year, a practice that he has facilitated and encouraged. He said that he had enquired about relocating to (omitted) so that he could operate out of the (omitted) base in (omitted), but the base was not recruiting.
The Mother relied on her affidavits of:
a)5th May 2010; and
b)12th November 2010.
The Mother deposed that she and the Father had had a casual relationship which continued until June 2001. The relationship resumed after she discovered that she was pregnant, but ceased in September 2002, when the Father told her he had met another person.[6]
[6] Affidavit of Ms Magri 5 May 2010 at paragraphs [3],[4],[8] and [10]
The Mother stated that she had told the Father about her wish to return to (omitted) with X from as far back as early 2003, because she was a single mother with little support in Australia. However, after pressure from the Father and his parents she remained living in Australia.[7]
[7] Ibid at [13]
The Mother denied that the Father had arranged for her and the child to have a holiday in (omitted), saying that she paid for them both.
The Mother stated that she worked approximately 20 hours a week and was unable to work longer hours because there was no regularity in the time that X spent with the child.
It is the Mother’s position that her prospects of employment would be better in (omitted) and she would be able to offer the child a better life.
The Mother deposed that she told the Father in August 2009 that she wished to return to (omitted) to live with X. She stated that the Father said to her:
“Your life will be miserable wherever you live”.[8]
[8] Affidavit of Ms Magri 12.11.2010 at [26]
In August 2010, when the Mother was in (omitted) with X, the Father sent her an email asking her if the child could stay with him for a time. She drove the child to (omitted), where she stayed with her father for a couple of days, and then X and her father took the train to (omitted) and he returned the child to her mother.[9]
[9] Ibid at [33]
The Mother maintains her position that she has been unable to take full time work because of her commitment to the care of the child. The Father is not available on a regular basis to assist her with the care of the child because of the nature of his work roster. The Mother states that her financial situation is such that she cannot continue to raise X in Australia.
The Mother deposes that her proposal is that she would live with X in the town of (omitted), where she grew up. X speaks fluent (omitted). The Mother’s sister lives there, as does her niece, the daughter of her other sister, who is now deceased. There is a house which her mother left to her, her sister and her niece.
The Mother would like to obtain work in (omitted), a city about 20 kilometres from (omitted). She has previously worked for an import/export company and her bilingual skills in English and (omitted) would be of assistance to her. Otherwise, she believes she would be able to find work teaching English.[10]
[10] Affidavit of Ms Magri 12.11.2010 at [53]-[54]
The Mother gave oral evidence. In cross-examination by Mr Anderson of counsel, who appeared for the Father, she conceded that there was a high unemployment rate in the area around (omitted) but she knew that she could obtain employment in her field. In Australia, the Mother was unemployed and was relying on casual work teaching (omitted). She said she was worried about her financial situation.
The Family Report
A Family Report was prepared for the purpose of the final hearing by Ms C, a Family Consultant.
For the purpose of preparing her report, Ms C interviewed both parents and met with the child X. She also observed the child in the presence of both of her parents.
In her Report, Ms C identified the following issues:
· If the Mother is able to relocate to (omitted) with X;
· What impact the proposed relocation would have on the relationship between X and (the Father);
· What impact a decision against relocation would have on Ms Magri; and
· The impact of the emotional volatility in the parental relationship on X currently and in the future, should the issues not be resolved.[11]
[11] Family Report page 3 at paragraph [10]
The Father told the Family Consultant about the “on-off” nature of his relationship with the Mother. He said that there was still an attraction between them but “We just can’t sustain it and it always ends badly”.[12] The Father said that he believed that the Mother may wish to return to (omitted) in order to break the nexus of their relationship, which was something that he also wished to do.
[12] Ibid page 6 at [23]
The Father said that he and the Mother had tried the logistics of his spending time with the child when she was in (omitted) with her mother, but it was not feasible, as it required approximately 24 hours travel each way for him to spend little more than a day with the child. He also expressed misgivings about the fact that for him to spend time with X in either (omitted) or (omitted), he would have to arrange hotel accommodation. He felt that the child would eventually tire of staying in hotels and also thought that it would become less appropriate for father and daughter to check into a hotel together.
The Family Consultant stated at paragraph 30 of the Family Report:
Mr Callanan said that he wants X to remain in Australia because he believes that they have a close relationship that is continuing to grow stronger by the day, particularly now that X is fully able to anticipate and understand why he is away in the manner that he is. Mr Callanan said that if X were to remain in Australia he would be able to continue spending a mixture of week-day and weekend time with her and it is his belief that this mixture of times and opportunities for different types of activities (both mundane/routine and fun) and the resultant sense of a shared life, are very important.[13]
[13] Ibid page 7 at [30]
The Family Consultant described the Mother’s presentation as that of “an emotional and highly anxious woman”.[14]
[14] Ibid page 8 at [31]
The Mother, too, spoke of the “on and off” nature of her relationship with the Father, and said that the resumption of intimacy was always initiated by him.
The Mother was critical of the Father, who she said had only recently become more interested in spending time with X, as his life as a single person still came first.
It was the Mother’s claim that she had wanted to return to live in (omitted) since 2003. She had been persuaded not to return in 2003, but now felt that X’s relationship was strong enough to survive the physical separation. If she were living in (omitted) with X, she would support the Father spending as much time with the child as he could manage.
The Mother said that X had told her that she did not want to go to live in (omitted), because she would miss her father.
Ms Magri said that she understands this, however she believes that X would soon get over missing her father and would settle into her new life without fuss because her father has always come and gone in her life.[15]
[15] Family Report page 10 at [44]
The Family Consultant interviewed the child X, who appeared not to be comfortable talking about her mother’s wish to move to (omitted). The child said that she was able to understand and speak (omitted) but preferred to speak English. She was unable to nominate what she thought would be the good things and the bad things about moving to (omitted) might be.
The Family Consultant stated that the child indicated through the use of emotion cards that she felt confused and unsure about the idea of moving to (omitted).
Ms C observed the child’s interaction with each of her parents. She said that:
There were no marked differences in the way that X interacted and played with each parent. Her attitude, demeanour, emotional state and physical responses and cues were virtually identical with both parents. She was warmly affectionate with both of them and they reciprocated this affection.[16]
[16] Family Report page 12 at [51]
The Family Consultant did not make a recommendation in the Family Report about the relocation proposal. She speculated that the child’s reluctance to offer anything positive about (omitted), despite having holidayed there on a yearly basis since birth, may be an obtuse way of indicating that she did not want to go.
Ms C set out a number of factors that would support the Mother’s proposal to relocate the child’s residence to (omitted):
61.X is at an age at which a move to a country where she speaks the language fluently, that she has visited on numerous occasions and where her mother has strong familial and social supports, would not cause her undue emotional distress. It is likely that she would settle in relatively easily and the change would only be as disruptive as it would for a child of similar age moving to a different town or city in their own home country…
63.X is old enough to have developed an attachment to her father that will be maintained over time and distance. She is old enough to get some benefit from using Skype and it is likely that she will in time become able to email pictures and write her father stories about things she has been doing. She has had considerable experience in anticipating and managing her father’s absences to date and therefore she is well prepared to be able to do this in the future, even if the stretches of time are longer.[17]
[17] Ibid page 14 at [61] & [63]
On the other hand, Ms C identified a significant downside as far as the child’s relationship with her father is concerned:
62.However, the real impact of the relocation would be in the loss of not only the amount of time that Mr Callanan spends with X but more importantly, the way that she currently spends time with him . Mr Callanan may be able to structure his work schedule so that he sees X once or twice a month and he may be able to stretch this to a block of time on some occasions. However, his ability to pick X up from school; to supervise her homework; to prepare dinner with her and watch TV or play games before settling her into a familiar bed; will be substantially impacted.
…It is likely, however, that she will struggle with anticipating and emotionally integrating the unpredictability of when, how and where she will spend time with her father, should she relocate to (omitted).[18]
[18] Family Report pages 14-15 at [62] & [64]
Ms C made a number of recommendations about what should happen if the Mother were to remain in Australia. They were:
a)The Mother should engage with a counsellor who would assist her in moving on from her relationship with the Father and finding independent sources of happiness and personal satisfaction;
b)Both parties should engage in post separation counselling to assist them in drawing a line under their relationship and developing strategies to parent X;
c)There should be a set number of overnights in each eight week roster period, with the actual days being negotiated by email well in advance, rather than a continuation of the ad hoc and flexible nature of the current arrangement; and
d)Changeovers should occur at school where possible.
Ms C gave oral evidence and was cross-examined by counsel for both parties. She said that X did not want to relocate to (omitted). She would have thought that there might be a more positive feedback from the child about (omitted), since she has been there on a number of occasions.
Ms C expressed the view that the child’s paternal grandparents were a significant relationship for X, noting that the maternal grandparents were deceased.
The reason why she had made no recommendation was that for X there were risks and benefits either way. She would manage relocation relatively well. However, no child of that age could form a view of what was in the child’s best interests.
The child appeared to love both of her parents equally and there was no sense of divided loyalties. The bond between X and her father is quite strong.
Submissions
Counsel for the Father, Mr Anderson, prepared a written outline of submissions.
Mr Anderson submitted that there were no allegations of abuse or family violence and, when having regard to the primary and additional considerations under subsections 60CC(2) and (3), the Court would find that the presumption of equal shared parental responsibility is in the child’s best interests (see Goode & Goode[19]).
[19] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Having found that the presumption of equal shared parental responsibility applies, the Court should consider, based on the s.60CC factors, whether equal time or substantial or significant time with each parent is in the child’s best interests and reasonably practicable by addressing the matters referred in subsection 65DAA(5).
It was submitted that X would benefit from having a meaningful relationship with both of her parents. The evidence permits a finding that the Mother’s proposal to relocate the child to (omitted) would make it more difficult for the child to have a meaningful relationship with her father.
It was further submitted that X had told her mother that she did not want to go to (omitted) because she would miss her father. The Mother has acknowledged that she is seeking to relocate for her own reasons and she knows that the child does not want to go.
The child has a close and loving relationship with both parents.
Counsel for the Father has submitted that the proposed move to (omitted) by the Mother and X is not in the child’s best interests, because she will lose a close, warm and loving relationship with her father.
It was further submitted that an order that the child spend equal time with each parent would not be practicable in the circumstances, due to the Father’s work roster. The orders proposed by the Father would enable the child to maintain her relationship with him. The impact of an arrangement whereby the child were permitted to relocate with the Mother would have deleterious consequences.
Mr Anderson submitted that the Mother’s application to relocate the child’s residence should not be granted and the orders sought by the Father should be implemented to ensure that the child maintains a meaningful relationship and spends substantial and significant time with him.
Ms Kennedy of counsel, who appeared for the Mother, submitted that the Father had been “disingenuous” in his application. She noted that neither the Father’s parents nor the Father’s sister were on affidavit.
It was submitted that the Father in effect seeks a continuation of the status quo. The disadvantages of this for the Mother would be:
a)The Mother would be subject to the Father’s work roster;
b)The Mother would be subject to changes in the Father’s roster;
c)The Mother would be subject to the Father’s social life; and
d)The Father only gives the Mother short notice of any changes to his arrangements.
The Mother proposes relocation to (omitted) and an order that she should have sole parental responsibility for the child. She would consent to an arrangement whereby the Father would have a 28 day block period with the child.
The disadvantages for the Mother are that she would sacrifice her life to the father. She states that she does not need counselling and she will not participate in it. The Mother wishes to break the nexus with the Father, which will take away any depression she might have.
Ms Kennedy noted the child’s lack of desire to relocate to (omitted) but pointed to the child’s relatively young age and submitted that her views should only be given limited weight.
Further, the child has a deep relationship with her mother, who has always been her primary carer. The child has a good relationship with her grandparents but they holiday in (omitted) almost every year, so the relationship would continue.
It was submitted that the mother has never said no to any request by the father for spending time with the child. She has made the relationship work to date, but at the expense of putting many aspects of her life on hold.
The Court should also take account of the mother’s dire financial position.
Ms Kennedy submitted that the orders least likely to lead to further parenting proceedings would be to permit the child’s relocation to (omitted) with her mother. The father is resigned to the relocation. The evidence is that the child would cope with the move to (omitted) but the mother would not cope with remaining in Australia.
The Relevant Law
In the recent decision of Murphy J in Mallahan & Mallahan[20], his Honour considered at [14]-[39] the principles to be followed in parenting cases involving relocation issues, in the light of the decision of the High Court in MRR v GR[21]. Murphy J stated at [14]:
Parenting orders, of whatever type, are driven by a determination of the best interests of the particular children who are the subject of the proceedings (Sections 60CA; 60CB; 61DA(1) & (4) and 65DAA). The issue of best interests is not left at large. The path to a decision is signposted by a number of mandatory considerations.[22]
[20] [2010] FamCA 631
[21] [2010] HCA 4; (2010) 42 Fam LR 531; FLC 93-424
[22] [2010] FamCA 631 at [14]
Of relocation cases in particular, his Honour said:
· A “relocation” case is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.
· A relocation case falls to be determined like any other parenting case: the fact-finding (or value-finding) exercise required by s 60CC is directed toward ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time.[23]
[23] [2010] FamCA 631 at [27]
In Morgan & Miles[24], an appeal from a decision of the Federal Magistrates Court, Boland J said at [80]-[81]:
80.It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount consideration;
- that a parent wishing to move does not need to demonstrate “compelling” reasons;
- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.
[24] [2007] FamCA 1230; (2007) FLC 93-343
81. What the legislation now requires is:
- considering of the competing proposals against the criteria now in s 60CC informed by s 60B;
- if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issue in dispute against the relevant s 60CC factors, and applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders. [25]
[25] [2007] FamCA 1230; (2007) FLC 93-343 at [80]-[81]
When the Court is deciding whether to make a parenting order, section 60CA of the Family Law Act requires the Court to regard the best interests of the child as the paramount consideration.
The Court determines what is in a child’s best interests by considering the matters in subsections 60CC(2), known as the primary considerations, and 60CC(3), the secondary considerations.
When making a parenting order, the Court is required by s.61DA of the Act to apply a presumption that it is in the best interests of the child concerned for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in cases of abuse or family violence (s.61DA(2)) and it may be rebutted by evidence that it would not be in the child’s best interests (s.61DA(4)).
Where the Court does make a parenting order providing that a child’s parents are to have equal shared parental responsibility, subsection 65DAA(1) requires the Court to consider whether the child spending equal time with each parent is both in the child’s best interests and is reasonably practicable.
If the Court does not make an order for the child to spend equal time with each parent, the Court is required by subsection 65DAA(2) to consider whether the child spending substantial and significant time with each parent is both in the best interests of the child and reasonably practicable.
I have considered all of the above matters.
Conclusions
It is the Father’s case that the mother should be refused leave to relocate the child’s residence outside Australia. His proposal is that the Mother should remain living in Australia with the child.
It is the Mother’s case that she should be granted leave to relocate the child’s residence to (omitted), where the Mother wants to live.
Another option would be for the Father to relocate as well. The evidence is that he works for (omitted), an airline that does not fly directly to (omitted). He has given evidence that he considered the option of seeking to work out of (omitted), where (omitted) has a base for (occupation omitted), but there were no vacancies there. There is no other evidence about the feasibility of that option and it will not be considered further.
Thus, the options for consideration are whether the child remains living in Australia or whether she goes to live with her mother in (omitted).
The parties have differing views about the presumption of equal shared parental responsibility. The Mother seeks an order for sole parental responsibility. This is not a case where there is evidence of abuse or family violence, so the best interests of the child must be considered. If the evidence shows that it would not be in the child’s best interests for the parents to have equal shared parental responsibility, then one or other parent should have sole parental responsibility.
In considering the best interests of the child, the Court must look at the benefit to the child in having a meaningful relationship with both of her parents. It is clear that there is such a benefit. The Family Report makes clear that X has a close and relaxed relationship with each of her parents. There were no marked differences in the way that the child interacted and played with each parent. Her attitude, demeanour, emotional state and physical responses and cues were virtually identical with both parents. She was warmly affectionate with both of them and they reciprocated this affection.[26]
[26] Family Report page 12 paragraphs [50]-[51]
There are no allegations of physical or psychological harm due to abuse, neglect or family violence (s.60CC(2)(b) and s.60CC(3)(j)). There are no family violence orders that apply (s.60CC(3)(k)).
Turning to the other additional considerations, it is clear from the Family Report that X is not happy about to relocating to (omitted) because she will miss her father. X was born on (omitted) 2002, so she is close to ten years old. The Family Consultant said in oral evidence that no child of that age could form a view of what was in her best interests. However, her views should not be completely disregarded, just because they are the views of a child who is not yet ten (Harrison & Woollard[27]). This is not just a case of a young girl expressing a fear of the unknown. She has visited (omitted) regularly, she speaks the language fluently and she has maternal family in (omitted).
[27] (1995) 18 Fam LR 788; FLC 92-598
In my view, X’s views should be given some weight.
X clearly has a close, warm and loving relationship with each of her parents. She responds to them in a virtually identical manner. It appears from the Family Report that the child’s relationship with her father is stronger than the mother believes that it is.
It is to the parties’ credit that their daughter appears to have such a good relationship with each of them
The child also has a good relationship with her paternal grandparents, although the relationship between them and the Mother is now strained, apparently as a result of this litigation. The child appears to have a good relationship with her paternal aunt.
The Mother is somewhat dismissive of the child’s relationship with her father and some doubt arises as to whether she would be willing to facilitate this relationship in the future. By comparison, the Father appears to have more of an understanding of the child’s need to have a close and ongoing relationship with her mother.
One of the important considerations in this case is the likely effect on the child of any separation from either of her parents or other persons, such as her grandparents. Clearly, a move to (omitted) would result in a separation from her father and her parental grandparents.
X would be able to adjust to a move, but, as the Family Consultant noted in the Family Report:
However, the real impact of the relocation would be in the loss of not only the amount of time that Mr Callanan spends with X but more importantly, the way that she currently spends time with him. Mr Callanan may be able to structure his work schedule so that he sees X once or twice a month and he may be able to stretch this to a block of time on some occasions. However, his ability to pick X up from school; to supervise her homework; to prepare dinner with her and watch TV or play games before settling her into a familiar bed; will be substantially impacted.[28]
[28] Family Report page 14 at [62]
It would also be the case that the child’s relationship with her paternal grandparents and her aunt would be significantly affected by the move.
It is also an important consideration that there would be significant practical difficulties and expense in the Father maintaining his relationship with X if she were to move to (omitted). The Mother would be living near (omitted). The Father has given evidence that (omitted) does not fly directly to (omitted), so he would have to fly to (omitted), or perhaps (omitted), and then take a flight to (omitted) and either hire a car or take the train. He would have to book hotel accommodation. He believes that the child would eventually tire of this unnatural arrangement and he also expressed doubts of the appropriateness in the future of father and daughter checking into a hotel together.
The Court must consider the capacity of each of the child’s parents and any other person, including grandparents, to provide for the needs of the child, including emotional and intellectual needs. The Mother appears to be depressed, although she denies it, saying that all will be solved if she can move back to (omitted) permanently.
It seems to be regrettable that the Mother has apparently not permitted X to spend time with her paternal grandparents as a result of the estrangement between them
The Mother gives evidence that she is in a difficult financial situation, which must impact on her ability to provide for the child’s physical needs.
The Mother is hampered by the fact that she is currently a “prisoner” of the Father’s work roster which comes out in eight week blocks. This is a less than satisfactory arrangement for the Mother.
X is a little girl who is nearly ten years old. Her father is Australian and her mother has a (omitted) background. The child has the benefit of that background, including a fluency in the (omitted) language and a knowledge of her mother’s homeland.
The Court must also consider the attitude to the child and to the responsibilities of parenthood demonstrated by each parent. The Mother downplays the father’s parenting capabilities; she does not believe that he is a good father. Counsel for the Father submits, with some justification, that the Mother’s attitude does not enhance her facilitation of the Father’s spending time with the child, communicating with her or making decisions in relation to the child. However, the Mother concedes that the Father should have as much time with X in (omitted) as he can manage.
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. It is often difficult to predict whether an order would lead to further proceedings or not. The parties are diametrically opposed in their view. One party or other is likely to be disappointed over the decision and may appeal. The communication between the parties is such that differences could arise between them, whatever the Court orders. The Court should make an order that is in the best interests of the child.
It is relevant that the Mother has been somewhat at the mercy of the Father’s eight week roster, which has caused her great difficulty in arranging her own life, including obtaining employment. The Family Consultant has recommended that the ad hoc and flexible parenting arrangements should be replaced with a set number of overnights with the actual times being negotiated well in advance.
After considerable deliberation, I have come to the view that it is not in this child’s best interests to relocate her home from Australia to (omitted). Whilst she would cope more readily than most, with her language skills and familiarity with (omitted), the damage to her relationship with her father, and, to a lesser extent, her paternal grandparents, is too great a risk to take. However, she should spend some time with her mother in (omitted) each year, as there are advantages to her in taking advantage of her mother’s connection with that country.
Accordingly, I am satisfied that it is in X’s best interests for her parents to have equal shared parental responsibility for her. I am not satisfied, due to the tyranny of the Father’s work roster, that equal time with each parent is reasonably practicable. The level of antagonism between the parents would indicate that equal time with each parent would not be in the child’s best interests. It is noted that the Father no longer seeks such an arrangement.
The Mother cannot continue to be controlled entirely by the Father’s work roster. There needs to be more structure and less of an ad hoc nature to the arrangement. It will also be of benefit to the child to know that there will be certain times when she will be in (omitted) with her mother.
The Father’s Minute of Proposed Orders appears to have been drafted with some consideration of the recommendations of the Family Consultant, providing as it does for the mother to nominate no fewer than 18 nights during the eight week period of the Father’s work roster when the child would be with her father, such times to include:
a)two periods of two overnight blocks on weekends;
b)three periods of three overnight blocks; and
c)the balance as nominated by the Mother.
The Father’s proposed orders appear to be closer to substantial and significant time, and I am satisfied that the nature of X’s relationship with her father, which appears to be greater than the Mother would admit, would be in the child’s best interests. What must be considered is whether substantial and significant time is reasonably practicable.
The Father’s proposed arrangement would still leave the Mother subject to the Father’s roster with little or no ability for her to plan her activities more than two months out. The Mother needs to know that there are times when she can travel to (omitted) and stay there with the child for a significant period without having to negotiate these arrangements with the Father. Similarly, there needs to be some time when the Father knows that the child will be with him. The Father’s work roster is his roster; it should not dictate the lives of the child and her parents. The calendar of school terms and school holidays is no less important to X than the Father’s roster.
The Mother should be able to have blocks of time during the year when she knows that X will always be with her, whatever the Father’s work roster may say. She should have permission during those times to take the child out of Australia to (omitted), without having to negotiate with the Father. If it should happen that the Father is not rostered to work during those times, then he will need to accept that he cannot expect his daughter to be with him on those occasions.
The child should be able to spend a block of time with the Mother during the Christmas/January school holidays each year, with allowance to be made for alternating Christmases, so that she will spend Christmas one year in (omitted) with her mother and the next year in Australia with her father. It is a matter of public knowledge that December and January are winter months in the Northern Hemisphere, and the child should also be able to spend time with her mother in (omitted) during Summer. Consequently, the mid-year school holidays in July each year should also be spent with the Mother. It will be a matter for the Mother whether she wishes to spend that time in (omitted) or not.
Otherwise, the Father’s proposed orders provide a guide to an appropriate arrangement. It may not always be possible for the Father to spend time with X on significant days such as his birthday, the child’s birthday or Father’s Day, but it would be desirable if that could occur. Similarly, X may well wish to spend time with her mother on Mother’s Day, on her birthday and on the Mother’s birthday.
There should be arrangements in place for X to communicate with each parent by telephone or email when she is spending time with the other parent.
The orders to be made are intended to serve the best interests of this child.
I certify that the preceding one hundred and thirty-seven (137) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 20 March 2012
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