Cawley and Devries

[2016] FCCA 3460

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAWLEY & DEVRIES [2016] FCCA 3460

Catchwords:
FAMILY LAW – Children – child’s best interests – meaningful relationship – relocation.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA

Applicant: MR CAWLEY

Respondent: MS DEVRIES

File Number: ADC 310 of 2013

Judgment of: Judge Kelly

Hearing dates: 15 and 16 December 2016

Date of Last Submission: 16 December 2016

Delivered at: Adelaide

Delivered on: 16 December 2016

REPRESENTATION

The Applicant: In Person

Counsel for the Respondent: Mr D Fryer

Solicitors for the Respondent: The Family Law Project

ORDERS

1. All previous parenting orders are discharged.

2. By consent the parties share equally in parental responsibility for the child X born (omitted) 2008.

3. By consent the child X live with the mother.

4. The mother is permitted to relocate the place of residence of the child X to the Brisbane/(omitted) area in Queensland as and from 15 January 2017.

5. Pending X relocating to Queensland he spend time with the father as follows:

   (a)by consent from 12.00noon on 20 December until 3.00pm 25 December 2016;

   (b)by consent from 12.00noon on 1 January until 5.00pm on 8 January 2017; and

   (c)from 12.00noon Thursday 12 January until 12.00noon Saturday 14 January 2017.

6. Upon X moving to Queensland the following orders apply.

7. In the event the father remains living in South Australia, X shall spend time with the father as follows:

   (a)for one week during the April 2017 school holidays and thereafter for ten days during each short school holiday period at times to be agreed between the parties and in default of agreement from a time to be agreed on the first Saturday with handover dates and times to be agreed, taking into account flight arrangements;

   (b)for one half of the Christmas school holidays each year on dates to be agreed between the parties provided that X spend Christmas Day in the father’s care in 2018 and each alternate year thereafter.

8. The father communicate with X by Skype on at least one occasion each week at times to be agreed between the parties.

9. The mother meet all flight and other associated costs with X travelling from Queensland to Adelaide and return, with the father to collect X from and return him to the Adelaide Airport, or such other location as the parties may agree.

10. In the event the father relocates to the Brisbane/(omitted) region, then the following orders apply.

11. X shall spend time with the father as follows:

    (a)during school terms on each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday (or Tuesday if a public holiday);

    (b)for one half of each of the short school holidays at times to be agreed between the parties and in default of agreement from the conclusion of school on the last day of term until 5.00pm on the Saturday one week following;

    (c)for one half of the Christmas school holidays each year at times to be agreed between the parties or in default of agreement from the last day of school until 5.00pm on the Friday one week following and each alternate week thereafter with handovers to take place at 5.00pm on Fridays.

12. By consent and notwithstanding any other orders, X shall spend time with each parent on special occasions as agreed between the parties or in default of agreement as follows:

    Christmas

    (a)With the father:

    (i)from 3.00pm Christmas Day until 3.00pm Boxing Day in 2017 and each alternate year thereafter;

    (ii)from 3.00pm Christmas Eve until 3.00pm Christmas Day in 2018 and each alternate year thereafter

    (b)With the mother:

    (i)from 3.00pm Christmas Eve until 3.00pm Christmas Day in 2017 and each alternate year thereafter;

    (ii)from 3.00pm Christmas Day until 3.00pm Boxing Day in 2018 and each alternate year thereafter.

    Easter

    (c)With the father:

    (i)from the conclusion of school or 5.00pm on Easter Maundy Thursday until 12.00noon Easter Saturday in 2017 and each alternate year thereafter;  and

    (ii)from 12.00noon Easter Saturday until 5.00pm Easter Monday in 2018 and each alternate year thereafter

    (d)With the mother:

    (i)from 12.00noon Easter Saturday until 5.00pm Easter Monday in 2017 and each alternate year thereafter;

    (ii)from the conclusion of school or 5.00pm on Easter Maundy Thursday until 12.00noon Easter Saturday in 2018 and each alternate year thereafter.

    Father’s Day / Mother’s Day 

    (e)With the father from 10.00am until 5.00pm on Father’s Day in the event X is in the mother’s care on that weekend;

    (f)With the mother from 10.00am until 5.00pm on Mother’s Day in the event X is in the father’s care on that weekend.

    X’s birthday

    (g)X shall spend time with the parent with whom he is not otherwise living for a period of four (4) hours at times to be agreed or in default of agreement from the conclusion of school or 3.00pm until 7.00pm.

    Each parent’s birthday

    (h)X shall spend time with the relevant parent from the conclusion of school or 3.00pm until 7.00pm or as otherwise agreed between the parties.

AND BY CONSENT IT IS FURTHER ORDERED THAT:

1. Handovers not taking place at school shall take place at a mutually convenient public venue to be agreed between the parties.

2. X is at liberty to take personal items, including clothing, sports clothes, school uniforms and toys to each parent’s house and these items are to be returned with X at the conclusion of each such period of care.

3. In the event either parent wishes to travel interstate with X, the travelling parent shall provide the other parent with no less than 28 days written notice of their intended travel plans, to include details of flights or travel arrangements, itinerary and the contact details for X while he is away interstate.

4. Each parent notify the other party at the earliest possible opportunity in the event X suffers any injury or illness that requires medical attention or hospitalization and both parents are at liberty to visit X in the event he is hospitalized.

5. The mother do all things necessary to authorize X’s school to provide the father with copies of all notices, newsletters, school reports and notice of parent/teacher meetings, sports events and social events to which parents are invited to attend.

6. Each parent is at liberty to attend all such school events to which parents are ordinarily invited.

7. The parties negotiate and reach agreement in relation to X’s extracurricular activities noting both parents support X continuing to play (hobby omitted) in Queensland.

8. Both parents are at liberty to attend X’s sporting and extracurricular activities.

9. The mother notify the father in the event X commences counselling with any therapist or psychologist and provides the father with the name and contact details for the said counsellor or psychologist.

10. Each party notify the other as to their residential address and telephone and contact details and keep each other advised as to any change to these contact details.

11. The parties are restrained from abusing, denigrating or rebuking the other parent in the presence of the child X or through any form of electronic media and from permitting any other person to do so.

12. All proceedings are dismissed as finalised.

IT IS NOTED that publication of this judgment under the pseudonym Cawley & Devries is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 310 of 2013

MR CAWLEY

Applicant

And

MS DEVRIES

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.  They have been edited and corrected from transcript to correct any grammatical errors and generally to make my oral reasons easier to read.

1. X was born on (omitted) 2008 and is just eight years of age.  His parents have been unable to resolve his long term parenting arrangements and it falls to the Court to determine these issues.

2. The parties were in a casual relationship prior to X’s birth, and there are allegations in relation to family violence and conflict both during the parties’ relationship and their subsequent parenting arrangements.  Given that there have been earlier Court proceedings in 2013 and final consent Orders entered into in April 2014, I do not consider it is necessary to discuss the parties’ earlier relationship to any great extent.  

3. The consent Orders provide for the parties to share equally in parental responsibility, for X to live with his mother and to spend time with his father on a fortnightly basis from Friday to Sunday and overnight on alternate Thursdays.  The parties also consented to additional Orders in relation to holidays, special occasions and other parenting arrangements.

4. These Orders were made by consent. Clearly both parties acknowledged that X enjoyed a meaningful relationship with each of his parents, and they consented to final orders that would foster his relationship with each parent as he grew up, notwithstanding the previous difficulties that may have existed between them.

5. The father filed a further interim application seeking to vary the orders on 21 May 2015 and on 24 August 2015 the parties consented to orders that X’s three nights per fortnight proceed as one block of time from Friday evening through to Monday morning, in lieu of the intervening Thursday.  There was also agreement regarding some additional increased time during school holidays, and the earlier orders in relation to special occasions, school arrangements and counselling were repeated.    

6. In the course of this hearing the mother indicated that she may seek leave to move interstate with X, to live in Queensland.  The mother was directed to file answering documents and the parties were ordered to attend Family Dispute Resolution at the Legal Services Commission of South Australia.

7. The mother then filed her Response confirming her application to move to Queensland with X.  The father opposed the mother’s proposal.  The parties were unable to reach agreement, and accordingly the matter was listed for trial.  In addition, the Court ordered that a family report be prepared.  Ms O completed the family assessment report which was released on 6 July 2016.  The parties attempted further family dispute resolution with the assistance of the Legal Services Commission following on from the family report, but there was still no resolution.

8. The father was initially represented by solicitors but ultimately represented himself at trial.  He has not filed any Affidavit material since May 2015, nonetheless, I am satisfied his position before the Court is clear and is well understood both by the Court and by the respondent.  The father is happy for X to remain living with the mother but opposes X moving away from Adelaide.  He also raised a number of concerns in the course of the family report, relating to the mother’s parenting. It is not surprising that a parent would oppose their child moving away from the city where both parents have been living, because of the impact the relocation would have upon their time spent with the child.

9. The father gave evidence that he has recently moved to live in (omitted) for a period of time. He did not advise the mother of this change ahead of time, but the parties negotiated for X to continue spending time with his father on alternate weekends from Friday until Sunday evening.  He proposes this arrangement continue until he returns to live closer to X’s school when he would then deliver X to school on Monday mornings. 

10. Despite the parties’ dispute regarding X’s long term living arrangements, a range of other parenting issues were resolved and I will make those Orders by consent.  The parties agree that the order for equal shared parental responsibility should continue.  The father agrees that X should remain living in the mother’s primary care.  Both parents raised issues about the other party’s parenting, but nonetheless, they both acknowledge that each parent has a significant role to play in X’s life. 

11. Turning to the trial, both parties gave evidence and were cross-examined.  Limited cross-examination occurred in relation to each party’s parenting and living arrangements, but the Court did not permit detailed cross-examination regarding events that occurred earlier within the parties’ relationship.  Those earlier events may explain the limited level of co-parenting co-operation that presently exists, but both parties continue to support X’s ongoing relationship with each parent into the future, notwithstanding past conflict.

12. I am satisfied that both parties gave their evidence honestly and to the best of their recollection, as did the mother’s partner, Mr K.  Ms O also attended for cross-examination.  The father was unhappy with Ms O’s approach to the report and felt that she was somewhat biased and placed far more weight upon the mother’s concerns than upon his concerns, but having heard Ms O respond to the father’s challenges, I am satisfied that she adopted a professional and even-handed approach in preparing her report.  Ms O’s report focused on X’s best interests, which is her role and which, of course, is the primary responsibility that I have in this trial.  Her evidence was of great assistance to the Court. 

Relevant legal principles

1. The Court is empowered to make such parenting orders as it thinks proper, and when determining what order to make, X’s best interests are the Court’s paramount consideration.

2. Section 60B of the Family Law Act 1975 sets out the objects and principles which the Court should apply when deciding a parenting dispute. The legislation also focuses upon parents fulfilling their parenting duties and obligations. Section 60CC sets out a range of specific factors the Court should consider, and I will address those in more detail further in these reasons.

3. The primary considerations in s.60CC(2) are the benefit to X in having a meaningful relationship with both of his parents, and the need to protect him from the risk of physical or psychological harm. Again, while each party has raised concerns about the other party’s parenting from time to time, I do not consider that X is at risk of abuse or neglect in either parent’s care. Nor do I consider that there is a significant risk that he will be exposed or affected by family violence in the future.

4. The parties consent to an order for equal shared parental responsibility, which requires the Court to consider whether it is going to be in X’s best interests to spend equal time, or substantial and significant time with each parent.  The father is not opposed to the existing parenting arrangement continuing, where X lives in his mother’s primary care and spends substantial and significant time with the father on alternate weekends and school holidays.

5. When determining whether a child should spend equal time or substantial and significant time with each parent, the Court must consider whether this outcome is in the child’s best interests, but also then consider whether such an outcome is reasonably practicable.  And only when both those questions are argued in the positive should the Court proceed to make the orders. 

6. It is trite to say that relocation disputes such as this are particularly difficult matters to determine because whatever decision the Court makes, one parent is going to feel aggrieved and distressed by the outcome.  Either the mother’s rights to live where she chooses will be curtailed or the father’s capacity to spend regular time with X will be affected. Nonetheless the Court’s responsibility in this matter, as with every parenting dispute, is to make orders that will be in X’s best interests.  It is not a matter where the relocation issue should be determined separately, it must be considered in terms of the overall legislative factors that the Court should apply.

7. It is important that the parties remember that the Family Law Act emphasises X’s right to maintain a meaningful relationship with each parent, not necessarily an optimal relationship.  The reality is that in a country the size of Australia, parents do live in separate locations, and children can still maintain a meaningful relationship with both parents, even if their face to face time is not as frequent.  A meaningful relationship is one that is important and significant to a child.  It is not a relationship that is measured simply by the amount of time spent together, but by the quality of the child-parent interaction. 

Section 60CC – Primary considerations

1. Taking into account all of the evidence, I am satisfied that X has a meaningful relationship with each of his parents.  I will discuss each party’s criticisms of the other parent shortly, but I conclude that X is not at significant risk of abuse, neglect or being exposed to family violence in either parent’s care. 

2. X experienced some difficulties in the father’s care earlier this year following an incident when police attended at the father’s home.  X was frightened by these events and became reluctant to spend overnight time with his father for a period of time.  Nonetheless, with the support of both parents, X settled back into spending overnight time with his father in subsequent months. 

3. The parties held different views as to how quickly that overnight time should resume – the father would have liked additional overnight time during the 2016 school holidays, for example.  The mother now supports additional school holiday time and has proposed that X spend extended overnight time with his father during the forthcoming Christmas school holidays.

4. The father has raised concerns about the mother’s approach to disciplining X.  He gave evidence that X has complained about his mother smacking him and locking him in the toilet.  The mother concedes that she also occasionally gave X a light smack when he was younger, but I do not consider this is a matter of major concern in the circumstances.

5. On the latter point, the mother gave evidence that this arose in the context of imposing “time out” as a disciplinary response for X.  Sending X to his bedroom for “time out” was not working, as there were too many toys or activities for X to see it as a punishment.  The mother was advised by a psychologist to allocate “time out” to a more restrictive space, such as the toilet.  The father conceded he was aware that the mother was acting on advice from a psychologist.  

6. I agree with the father that sending X to “time out” in the toilet was inappropriate.  In any event, the mother came to the same conclusion and ceased doing so some time ago.  I accept that X did complain about these matters to his father, but I do not consider either complaint is a major issue in relation to X’s long term welfare or his relationship with his mother. There may be occasional lapses by both parents, but I have no doubt that X enjoys a meaningful relationship with both of his parents and is safe in their care.

Section 60CC(2) – additional considerations

1. X’s wishes and views are a factor the Court should take into account, but obviously he is still a young child and his views do not carry significant weight in the Court’s decision.  X was interviewed by Ms O, who noted that he was somewhat ambivalent about moving to Queensland. Ms O noted he was somewhat ambivalent about it, but X went onto say that it might be “funner”, as quote by Ms O.  Again, it is not a situation where X’s views are likely to be the determining factor in relation to the relocation, given that he is only six years of age. 

2. I have already commented upon X’s relationship with each parent.  Ms O’s report confirms that he has a loving and meaningful relationship with each of his parents, and that both parents have supported his relationship with their extended family as well.  But at the end of the day, I am satisfied that both parents will continue to support their son’s relationship with extended family no matter where he may be living, and that both parents do have a commitment to X’s relationship with the other parent.

1. I accept the parties have a limited co-parenting relationship and trust between them is not very high.  Nonetheless, they have been able to negotiate some matters proactively.  The most recent example, perhaps, is the change to the care arrangements that are happening at the moment while the father is staying with his parents in (omitted), and therefore overnight time is not as easily arranged, and the parties have been able to negotiate that and vary that arrangement by agreement.

2. I am satisfied both parents are competent parents in terms of meeting their son’s day-to-day care needs and, as I have said, there is no challenge to the mother’s ongoing role as X’s primary care giver. 

3. The complaints that either party may make about the other, to my mind, are of a niggling nature rather than a significant nature.  And again, while the mother has previously had some concerns about extended time during school holidays, the parties have agreed that X will be spending four days in his father’s care leading up to Christmas day and then a week in early January 2017. 

4. In reality, the most important factors in this matter are set out in s.60CC(3)(d) and (e) which require the Court to consider the impact of any change in X’s living arrangements, and any practical difficulty that may apply in relation to X spending time with both of his parents.

5. There is no doubt, of course, that a move to Queensland is a dramatic change for X.  Clearly X would not be able to be spend time with his father or extended family as frequently.  He will be moving away from the area where he has grown up, away from his father, away from the school he has attended, away from friends and activities such as (hobby omitted) and away from extended family.  The mother acknowledges these changes are significant but says that they are outweighed by the advantages that will flow for the family and therefore for X.  She says there are better opportunities for her and her partner, Mr K, in Queensland, and therefore they are able to provide a better standard of life for X. 

6. I accept that both the mother and Mr K have struggled to find secure work in Adelaide, whereas Mr K provided written evidence of numerous work offers – offers of steady work in the Brisbane/(omitted) region if they were able to relocate.  The mother gave evidence that she understands that teaching work is also more readily available in Queensland, but did not present any independent evidence in this regard. While I cannot conclude that the mother’s future employment prospects will improve interstate, I am satisfied that Mr K’s employment opportunities will be substantially more advanced in Queensland.

7. Obviously, if the mother and X move to live in Queensland and the father stays in Adelaide, then it will be much more difficult and expensive for X to spend time with his father.  Their time together will inevitably be less frequent, and that is a significant consideration to take into account.  The fact that the father has said he is willing to follow X if the child is permitted to move is a demonstration of his commitment to his relationship with X, but it does not affect my decision today, given the father’s primary position is that X should remain living in Adelaide.

8. Turning then to the remainder of the relevant considerations, when I turn to each parties’ attitude to the responsibilities of parenthood, I am satisfied that both parties love their son deeply, and both have been involved in his life in a significant way, the mother obviously more so, as X’s primary caregiver.  The father has had less involvement in the child’s school activities, but does so to the extent that he can when X is in his care, and both parents are actively involved in X’s (hobby omitted) commitments. 

9. The mother says that the father is paying very minimal child support, if any.  This may be the case and may reflect the father’s current employment and income.  It is not a factor that weighs in my decisions today, except to note the mother is otherwise providing the necessary financial support for X.

10. The father says that the mother is bitter and hostile towards him, and that her wish to relocate is motivated as much to undermine his relationship with X as it is to offer a better lifestyle for X. I reject this argument.  

11. The mother has continuously complied with Court orders and facilitated X’s time in the father’s care despite previous difficulties between the parties. I agree with Ms O that the mother is supportive of X’s relationship with his father.   While the parties do not enjoy an easy co‑parenting relationship, the mother acknowledges that their relationship is important to X.

12. X has been continuing to spend regular time with the father in accordance with Court orders, albeit there has been a recent variation.  That was not a matter of the mother’s making, but arose because the father moved away from Adelaide.  It must be remembered that the father is not promoting or seeking a change of primary care for X.  He simply believes that X should continue to live with the mother in Adelaide and not move to Brisbane.

Conclusion

1. When weighing up the various factors, this is a finely balanced decision, as with most relocation disputes.  If X moves away from Adelaide his relationship with his father may be affected, because their time together will be less frequent.  Likewise, his capacity to spend time with extended family will be affected.  He will experience the disruption of moving to a new school, establishing a new social network and so on.

2. Conversely, if the mother feels she is forced to stay in Adelaide she will feel trapped and resentful.  Her partner may need to seek work away interstate which will place strains on their relationship and that will also affect the mother’s wellbeing, particularly as they want to start a family.  These stressors may have a significant impact on X’s emotional welfare, and may also further undermine the co-parenting dynamic in place between the parents.  One of these outcomes would be in X’s best interests.

3. The reality is that sometimes parents need to move interstate for employment, as is the case here.  While a party does not need to demonstrate compelling reasons to justify an application to relocate, this is certainly not a situation where the mother’s application could be seen as fickle or ill-judged.  On the contrary, she has presented cogent evidence to explain why she and her family, including X, will benefit from moving to Brisbane.  Ms O supports the proposed relocation and considered that, on balance, it is in X’s best interests. 

4. I accept that X will enjoy a better standard of living in Queensland, given that the mother’s partner will be able to obtain stable employment there, as may the mother herself.  I accept that the mother will be able to provide X with better life opportunities in Queensland. He will be living with a parent who is emotionally settled and able to get on with her life in a way that she considers most beneficial for her family. 

5. I am satisfied that X will be able to maintain a meaningful relationship with his father, even if they are living in different states.  As mentioned earlier, the legislation directs the Court to focus on the child’s ability to maintain a meaningful relationship with each parent, not an optimal relationship.  It may be easier for the father and X to maintain their relationship if they are living in the same location, but I am quite confident that they will continue to have a strong and loving relationship, even if they are living far apart.  They will be able to maintain communication by telephone or Skype in between spending time together.

6. The father may well choose to relocate to Queensland as well.  This would be a positive outcome for X, as it would again be reasonably practical for X to spend substantial time with both parents.   However my decision to permit X to relocate is not affected by the father’s evidence in this regard.  I conclude that X’s best interests will be promoted by moving with his mother to live in Queensland, whether or not the father decides to follow.    

7. For all of the above reasons, I conclude that X should be permitted to relocate with his mother to Queensland.  That being the Court’s ruling, the parties have had some discussions and have agreement about X’s care arrangements over Christmas and the next few weeks.  I will make those orders by consent.  Otherwise I will make orders that deal with both scenarios, whether the father is staying in Adelaide or whether the father moves to live in Queensland.

8. I now pronounce orders as published at the commencement of these Reasons.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Kelly

Date:  8 February 2017