Charles and McCullough
[2013] FCCA 883
•24 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHARLES & MCCULLOUGH | [2013] FCCA 883 |
| Catchwords: FAMILY LAW – Parenting orders – relocation – equal time – best interests of the child. |
| Legislation: Family Law Act 1975, ss.60, 60CA, 60CC, 61DA, 65DAA, 69ZN Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011, Sch. 1, Pt 2, Item 45 |
| Cases cited: KB & TC (2005) FLC 93-224 Champness & Hanson (2009) FLC 93-407 Mazorski and Albright (2007) 37 Fam LR 518 Morgan & Miles [2007] FamCA 1230 MRR v GR (2010) FLC 93-424 Mulvaney & Lane (2009) FLC 93-404 P & P [2006] FMCAfam 518 Runcorne & Raine [2008] FamCA 837 Wainder & Wainder (2011) FLC 93-473 |
| Applicant: | MR CHARLES |
| Respondent: | MS MCCULLOUGH |
| File Number: | LNC 263 of 2010 |
| Judgment of: | Judge Roberts |
| Hearing dates: | 23, 24 & 26 April and 2, 14 & 15 May 2013 |
| Date of Last Submission: | 15 May 2013 |
| Delivered at: | Launceston |
| Delivered on: | 24 July 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr P McVeity |
| Solicitors for the Applicant: | Levis Stace & Cooper |
| Counsel for the Respondent: | Mr M Verney |
| Solicitors for the Respondent: | Matthew Verney |
ORDERS
That Orders No. 3 and No. 4 of the Orders made by consent in the Family Court of Australia on 8 June 2010 are discharged.
That X born (omitted) 2007 (“the child”) is to live with MR CHARLES (“the father”) and MS MCCULLOUGH (“the mother”) on a week and week about basis from Friday after school or at 5.00 p.m. if it is not a school day until the following Friday at the start of school or 5.00 p.m. if it is not a school day.
That notwithstanding the arrangements as set out in Order No. 2 hereof the following shall apply:
(a)at Christmas in odd numbered years the child shall live:
(i)with the mother from 5.00 p.m. on 24 December until 2.00 p.m. on 25 December; and
(ii)with the father from 2.00 p.m. on 25 December until 5.00 p.m. on 26 December.
(b)at Christmas in even numbered years the child shall live:
(i)with the mother from 2.00 p.m. on 25 December until 5.00 p.m. on 26 December; and
(ii)with the father from 5.00 p.m. on 24 December until 2.00 p.m. on 25 December.
(c)at Easter in even numbered years the child shall live with the father from after school on the Thursday preceding Good Friday (or at 5.00 p.m. if it is not a school day) until 2.00 p.m. on Easter Tuesday.
(d)at Easter in odd numbered years the child shall live with the mother from after school on the Thursday preceding Good Friday (or at 5.00 p.m. if it is not a school day) until 2.00 p.m. on Easter Tuesday.
(e)on Mother’s Day the child shall live with the mother from 9.00 a.m. until 5.00 p.m..
(f)on Father’s Day the child shall live with the father from 9.00 a.m. until 5.00 p.m.
(g)on each of the parent’s birthdays the child shall live with the relevant parent from 9.00 a.m. until 5.00 p.m. if the day is not a school day but shall spend time with the relevant parent for at least 3 hours if the relevant day is a school day.
(h)on the child’s birthday the child is to spend at least 3 hours with the parent with whom she is not living in that particular week.
That there be such further or other arrangements for the child as may be agreed between the parties from time to time.
That the mother’s application to be permitted relocate the child’s residence to Victoria is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Charles & McCullough is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
LNC 263 of 2010
| MR CHARLES |
Applicant
And
| MS MCCULLOUGH |
Respondent
REASONS FOR JUDGMENT
The parties’ proposals
The applicant is MR CHARLES (“the father”) and the respondent is MS McCULLOUGH (“the mother”). Essentially, their dispute relates to the living arrangements for their child X born (omitted) 2007 (“the child”).
In his closing submissions, counsel for the mother said that the differences between their applications were stark, because:
·the father is seeking to have the child live primarily with him, irrespective of whether the mother relocates from Tasmania to Victoria; and
·the mother is seeking to have the child live with her in Victoria, but if she is not permitted to relocate to Victoria with the child, then the child should live in Tasmania on a three weekly cycle of two weeks with the mother and one week with the father.[1]
[1] Transcript: Day 6 at page 2
In my view, that is a good shorthand summary of the parties’ competing proposals.
The length of the hearing
On 20 December 2012 I made orders that set this matter down for hearing on 23 April 2013. At that time, the estimates given by the parties’ lawyers caused me to allocate two to three days for the hearing. If those lawyers’ estimates had been accurate, the matter should have finished in the same week that it started. However, the hearing ranged over six days in three different sittings, thereby causing inconvenience to the parties, witnesses, counsel and other court users. Consequently, I repeat my general plea to lawyers to consider their time estimates carefully when asking for matters to be set down for hearing.
This matter was heard on 23, 24 and 26 April 2013 and 2, 14 and 15 May 2013. In these Reasons I will refer to those dates generally as Day 1 to Day 6 respectively.
Brief background
Where I refer to any fact in these Reasons, it should be regarded as a finding of fact unless a contrary intention is clear from the context.
The father is aged 38 years and the mother is 34 years old. They commenced their relationship in 1993 and were married in 2005. The only child of their relationship is the subject of these proceedings.
The parties separated in December 2009 and are now divorced.
On 8 June 2010 the parties entered into consent orders which provided inter alia that:
·the parties would have equal shared parental responsibility for the child;
·the child would live with the mother; and
·the child would spend time with the father each second weekend from Friday afternoon until Sunday evening and on special occasions.
Those consent orders also provided for a property settlement between the parties and they each had independent legal advice at that time.[2]
[2] See Document No. 1 on the court file
Both parties re-partnered in 2010. The father’s partner (Ms C) is a former employee of the child care centre that the child had attended. She does not have children. The mother’s current partner (Mr P) was formerly the father’s stepfather, having been married to the father’s mother for many years. Mr P is more than 30 years older than the mother. He has two adult children and five grandchildren.
In June 2011 the mother was voluntarily admitted to a private clinic for nine days “for detox from alcohol”.[3] I shall refer to that further below.
[3] See exhibit “M6”
Shortly after her discharge from that clinic she sought the father’s consent to take the child to New Zealand and then to Victoria with Mr P but he did not provide that consent. The father cared for the child for several weeks while the mother and Mr P were away.
The father filed an Initiating Application on 14 July 2011, seeking orders that the child live with the parties on a week and week about basis.
On 11 September 2011 the mother informed the father of her wish to relocate to Victoria with Mr P and the child. The father informed the mother that he did not consent to a relocation of the child.
During a telephone conversation initiated by the mother on 20 September 2011, the mother asked the father to care for the child. Although the parties do not agree about what was said during that telephone conversation, it is clear that the child lived with the father from then until 4 October 2011 when an arrangement was put in place whereby the child has lived with the parties on a week and week about basis.
On 2 December 2011 the mother filed a Response in which she sought orders:
·that the child live with her;
·that relocation to Victoria be permitted; and
·that the child spend time with the father during school holidays.
The parties attended a Child Dispute Conference with a Family Consultant on 5 December 2011. A Family Report was recommended and an order for such a report was made on 8 December 2011.
On 9 February 2012 the father filed an Amended Initiating Application seeking orders that the child live with him and spend time with the mother:
·during school holidays if she chooses to live in Victoria; or
·for four nights per fortnight and half school holidays if she remains in Tasmania.
The Family Report was released to the parties on 2 March 2012. The Family Consultant recommended inter alia that the court consider the merits of obtaining “a focussed report about the impact of [the mother]’s mental health issues upon her parenting capacity”. The parties agreed the psychologist should provide a report, and it is annexed to his affidavit.
On 12 April 2013 the father filed a Further Amended Initiating Application in which he sought only minor changes to the orders sought in his Amended Initiating Application, but it is not necessary to detail those here.
When this matter was still part-heard and before he gave his oral evidence, the psychologist provided another report to the mother’s lawyer. It is dated 14 May 2013 and is Exhibit “M5”.
The evidence and credit issues
The father relied upon the affidavit evidence of himself and his partner. They also gave oral evidence.
The mother relied upon affidavits by herself, her partner, her mother, her sister and a psychologist, Mr J (“the psychologist”). They all gave oral evidence as well.
A Family Report dated 29 February 2012 was admitted into evidence and the Family Consultant who prepared that report also gave oral evidence.
The parties are in dispute about a number of factual matters, so I consider it necessary to make some comments about their relative credibility.
It is clear from the Family Report that the mother made statements to the Family Consultant which suggested that she (the mother) considered the father’s allegation that she abused alcohol to be without foundation.[4] In my view, it is also clear that the mother intended to mislead the Family Consultant in her interview on 14 February 2012. That is because her medical records show that she had mentioned her difficulties with alcohol in numerous medical consultations in 2011 and she had been planning in March 2011 to admit herself to the (omitted) Clinic (“the clinic”) because she was “not coping with the alcohol” and was “still drinking a fair bit”.[5] In fact, she was admitted to the clinic in June 2011 “for detox from alcohol”. Clearly, that admission to the clinic did not resolve her difficulties with alcohol because her doctor noted “gradual incr alcohol use - lately 1/2 bottle spirits/day starting midday” on 23 August 2011.
[4] See paragraph 31 of the Family Report
[5] See Exhibit “M7”
I note also that in her trial affidavit, filed less than two weeks before the hearing, the mother said: “I deny that I have been admitted to hospital for treatment for alcohol related issues.” However, her discharge summary from the clinic reads as follows:[6]
[6] See Exhibit “M6”
Ms McCullough was admitted here at [the clinic] for detox from alcohol on 12th June 2011. She described a three and a half year history of alcohol use which began six months after the birth of her daughter (within the context of Post Natal Depression). Daily alcohol use with increasing tolerance was described, with current use on admission one half bottle of vodka plus or minus wine daily. Prior to admission Ms McCullough had attempted a period of abstinence for a two day period. On admission Ms McCullough gave a history of depressed mood, sleep disturbance, suicidal ideation, poor concentration and probable blackouts. She expressed guilt in relation to [alcohol] use. Nil seizure history was recorded. Infrequent fleeting attendance with mental health services was disclosed in context of low mood and suicidal ideation.
Ms McCullough separated from her husband eighteen months prior to admission and is currently in a relationship with Mr P who is supportive of her abstinence. She has a four year old daughter … to the previous relationship.
On admission Ms McCullough blew O on BAL and after initial anxiety settled in the new environment. Withdrawal was monitored routinely and reducing diazepam regime commenced. Antidepressant medication (Fluvoxamine) was increased from 50mg to 100mg nocte.
After a few settled days Ms McCullough became angry and hostile when asked to begin having her meals in the dining room and not isolating in her room. She believed she was “here for detox and nothing else”. She responded well however, to an intense 1:1 session with nursing staff and was able to disclose a number of stressors and current problems she was having. These include: the complexities of her relationship with Mr P (he is her ex-husband’s step-father); lack of parenting skills/awareness and the subsequent challenging behaviour that [her daughter] presents; custody and access problems with her ex-husband.
Ms McCullough has not liked the restrictions at [the clinic] even although (sic) she signed an agreement prior; the agreement was no leave during the time of withdrawal period. Ms McCullough has found this difficult and at times threatens to discharge herself. She maintained a passive aggressive approach to staff during the course of admission.
Remained quite isolative and most of the motivation to detoxify from alcohol has come from her partner Mr P. While requesting to be discharged it was strongly advised she reconnect with … Alcohol and Drug Services ‘(omitted)’. Then to get involved with Alcohol and Drug Services in Melbourne (she will be going there on there 30th June)
Seen by [a psychiatrist] on 21st June and it was decided she could be discharged. The propensity for relapse with Ms McCullough is high.
A mandatory referral to Child Neglect Services was made prior to discharge as it was felt there were significant doubts how she could properly care for her daughter.
Discharged 4.30pm, 21st June 2011 into care of her partner Mr P.
I can only conclude that her denial that she had been admitted to hospital for treatment for alcohol related issues was knowingly and deliberately false.
The mother clearly intended to convey a very strong impression in numerous paragraphs of her trial affidavit that the father was “domineering and demanding” throughout their relationship and that such behaviour continued after their relationship broke down. For example, at paragraph 77 she said this in relation to the father not agreeing to her requests to be able to take the child to New Zealand and Victoria in July 2011:
This is an example of the unilateral dictating behaviour that [the father] persists with and was common during our relationship. I had hoped that after our relationship came to an end that I would be spared having to deal with his domineering and demanding behaviour.
I do not conclude that his behaviour at that time was either domineering or demanding. The mother had only recently been discharged from a mental health clinic and she had initially sought to hide her admission to that clinic from the father. Certainly, the father wanted the mother to sign an undertaking that the child would not be removed from Tasmania without his consent but that was after he had received advice from his lawyer and I consider it to have been a reasonable request in the circumstances that then prevailed.
Another example of the father allegedly controlling and dominating the mother can be found in what she says about the circumstances surrounding the “week and week about” arrangement for the child that has existed since 4 October 2011. In her affidavit she said:
50. From 4 October 2011, Mr Charles has tried to dictate to me what dates I will see [the child]. He even brought out a calendar setting out the dates that he had marked on it that I would be “permitted” to see my daughter. I feel that Mr Charles has tried to once again control and dominate me as he did during our marriage and sadly I have not been strong enough to withstand his efforts.
51. From this time onwards, [the child] has been living in a week about arrangement between our households, this arrangement essentially being dictated to me by Mr Charles, against my desires. I felt powerless to stop it. I even felt so overborne by Mr Charles that I acquiesced to the week about arrangement without seeking the advice of my solicitor.
52. I did not seek legal advice from my lawyer about this arrangement starting before allowing it to start however I now wish that I had done so.
In my view, the arrangement that the parties entered into on 4 October 2011 needs to be seen in its proper context. It is the mother’s own evidence that on 20 September 2011 she had telephoned the father and informed him that she “needed a break” and that she felt that she “could not cope”.[7] It is common ground between the parties that, following that telephone conversation on 20 September 2011, the child went to stay with the father, and I accept that she stayed with him for almost the entirety of the time between then and 4 October 2011.
[7] See paragraphs 43 and 47 of her trial affidavit
It is also significant that these events took place only three months after the mother had spent nine days in a mental health clinic in order to “detox from alcohol”. Further, there is some significance in the fact that the mother made no application for interim orders, notwithstanding that she clearly consulted her lawyer both before 20 September and after 4 October 2011.
Another claimed example of the father “dominating” the mother was in relation to the choice of school that the child would attend. The mother had preferred (omitted) Primary School and the father’s preference was (omitted) Primary School. However, the mother clearly instructed her counsel that the father had “exerted his will over the mother” in relation to that because the child was enrolled at (omitted) Primary School. Her counsel put that as a submission in closing and suggested further that the father “overrode, again, the wishes or the concerns, or even the views of the mother”.[8]
[8] Transcript: Day 6 at page 6
In my view, the facts do not bear that out. In this regard, I note that:
·In his oral evidence the father readily conceded that there had been advantages in relation to both schools – (omitted) Primary School was closer to her home[9] and (omitted) Primary School was already familiar to the child because of its location across the street from her child care centre and she had been involved in “some buddy sessions and orientations and library sessions at the school”.[10]
[9] Both schools are only minutes away from either parent’s home
[10] Transcript: Day 2 at page 75
·On 27 July 2011 the father sent a long email to the mother which included this:
I may only see [the child] every second weekend, however I still have equal parenting responsibilities and this is why I have been looking into schooling for [the child]. It has not been to take any control from you, it has been simply to get the ball rolling (as pre-kinder orientations have been happening through July) and simply for my peace of mind that things are under way and that (omitted) School would have a place for her. I heard back from them today, they do have a place for her and (omitted) School have sent a letter allowing the child to go to school out of her zone. It was merely enquiries and I want to talk to you about this further, but I need you to understand my reasons for enquiring at schools. I want to be involved in choosing a school for the child and I want it to be the best decision based on what the child needs. As she is a sensitive little girl and she needs familiarity it would probably be good to send her somewhere she will have a couple of little friends ? (omitted) School, however we can also look into the private school (omitted) School as I know one of her friends is going there. Obviously this would be a little more expensive but I would still be keen to make some enquiries if you are. We can also check out (omitted) School too if you wish.
·The mother replied with a very short e-mail which included the following:
I have received a copy of your affidavit and application to the court. I am keeping this as brief as I possibly can because I feel that any time I communicate with you, you record your own version of everything that is said and then fabricate (as demonstrated in your affidavit) it in order to benefit your case. Therefore I am not discussing the child with you, given the upcoming court case ….[11]
·The father responded with an e-mail which included this:
I had a call from (omitted) at (omitted) Primary School yesterday and she advised me that the child has clearance from (omitted) Primary School to attend (omitted) Primary School if that is what we both agree to do. I have given (omitted) your mobile number so that she or the school principal could make contact with you to discuss some of the services they are able to provide. Perhaps we could both meet with the principal and have a tour of the school. As you are aware [the child] is very excited about going to the big school as she describes it. Please let me know your thoughts regarding this.
·Exhibit “F2” shows that the principal of (omitted) Primary School wrote to both parties stating that there were “grounds to put your child in either school” and added that “It would be great if you could both get together and make a decision soon”. I accept the father’s evidence that he photocopied that document and provided it to the mother the next time he saw her.
[11] My emphasis
In my view, what is set out above belies any claim by the mother that she was dominated or overborne in relation to the choice of the child’s school. Further, I can assume that the mother is now happy with the choice of (omitted) Primary School because she conceded that if relocation is not permitted she would have no problems with the child continuing at that school.[13]
[13] Transcript: Day 4 at page 46
When I consider these maters, I cannot help but conclude that the mother has either re-cast events in her mind and wrongly concluded that the father is a domineering and overbearing individual, or she has deliberately exaggerated her evidence in an attempt to portray him in a less flattering light for the purposes of these proceedings. Either way, I conclude that the father is not a domineering and overbearing individual as was so often suggested by the mother.
At this point I consider it important to remind litigants generally (and their lawyers) that even though proceedings in our judicial system generally follow an adversarial format, unnecessarily belittling or disparaging the qualities and actions of one of the parties does not accord with the principles for conducting child-related proceedings as set out in section 69ZN of the Family Law Act 1975. In my view, it is worth re-stating that one of those principles is that “the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties”.[14] In this matter, that principle was clearly overlooked, not only by the mother but also by her witnesses. For example, it did not assist me to have the mother’s sister express her view that the father was “difficult, disagreeable and at times very unpleasant”.[15]
[14] See subsection 69ZN(6)
[15] At paragraph 16 of her affidavit
I also have some concerns about the mother’s evidence in relation to the support she can receive from her family if she relocates to Victoria. In that regard, she claimed in her trial affidavit to have many relatives in Victoria who will be able to assist but the only relative from Victoria to give any evidence on her behalf was her sister who lives in (omitted). If her sister is in (omitted) and the mother is in the vicinity of (omitted), they will be approximately one and a half hours apart,[16] so I conclude that any physical support will not be either frequent or regular. In that regard I also reject as exaggeration her sister’s statements: “It will be easy for [the mother] and I to spend time together. It will be easy for our children to spend time together …” and “In the event that [the mother] was able to relocate with [the child] to Victoria then I would be available to offer … babysitting”.[17] I also note her sister’s oral evidence was that she was in the process of setting up a new (omitted) business in the (omitted), so that is likely to make her even less available.[18]
[16] Source: Google Maps
[17] See paragraph’s 17 and 18 of her affidavit
[18] Transcript: Day 4 at page 88
Although the mother’s father lives in (omitted) in Victoria, I note that he did not give any evidence at all and, in any event, it appears that he works in (omitted) on a two weekly fly in/fly out basis.
The mother’s own mother gave evidence, but she lives in (omitted) in Queensland, which is more than 2,000 km to the north of Melbourne, so she is unlikely to be of any more support than she is at present.
Taking the above into account, I conclude that the mother was also exaggerating when she said “this family support will be abundant” in Victoria.[19]
[19] At paragraph 15 of her trial affidavit
In general, I had no real concerns about the veracity of the father’s evidence, so when his evidence and that of the mother were in conflict, I found that I preferred the father’s evidence.
Legal principles to be applied
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration.[20]
[20] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
·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
·protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [21]
[21] See subsection 60B(1)
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
·children have the right to know and be cared for by both their parents; and
·children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children.[22]
[22] See subsection 60B(2)
In determining what is in a child’s best interests I must consider the matters set out in section 60CC of the Act. That section was amended in some respects by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (“the Amending Act”). However, Item 45 of Schedule 1, Part 2 to the Amending Act provides that the amendments to section 60CC do not apply to proceedings instituted before 7 June 2012. These proceedings were commenced prior to that date, so it follows that I must apply section 60CC as it applied prior to the amendments enacted by the Amending Act.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.[23]
[23] Subsection 60CC(2)
The court must also take into account those of the “additional considerations” that are relevant.[24]
[24] Subsection 60CC(3)
There has been some debate about whether the “primary considerations” should be given more weight than the “additional considerations”. That debate may continue from time to time. However, it is my view that each consideration, whether “primary” or “additional”, should be given the weight it deserves in the light of the facts of the particular case.[25]
[25] See Mulvaney & Lane (2009) FLC 93-404 at paragraphs 76 and 77 and Champness & Hanson (2009) FLC 93-407
The court must apply a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence.[26] The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[27] In this regard, Murphy J said:
The statutory presumption is rebuttable in circumstances where the court has reasonable grounds to believe that a parent has engaged in abuse or violence or where it is in the best interests of the children for that presumption to be rebutted. In the latter case, then, the s 60CC findings as to best interests are again called into use. [28]
[26] Section 61DA
[27] Subsection 61DA(4)
[28] See Runcorne & Raine [2008] FamCA 837 at paragraph 24
If a parenting order is to provide that the parents are to have equal shared parental responsibility for the child, the court must:
·consider whether spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable; and
·if it is, consider making an order to provide for the child to spend equal time with each of the parents.[29]
[29] Subsection 65DAA(1)
However, if an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that is reasonably practicable.[30]
[30] See subsections 65DAA(2) and (3)
The High Court decision of MRR v GR[31] has clearly stressed the importance of what is “reasonably practicable”. Their Honours[32] made it clear that if it is not open to a Court to find that it is reasonably practicable, within the meaning of s 65DAA(1)(b) of the Act for a child to spend equal time or substantial and significant time with each parent, then it is not open to a Court to consider making an order as described in s 65DAA(1)(c).[33]
[31] MRR v GR (2010) FLC 93-424
[32] French CJ, Gummow, Hayne, Kiefel And Bell JJ
[33] Also see Wainder & Wainder (2011) FLC 93-473
The law in relation to relocation of children is very fully set out by her Honour Boland J in Morgan & Miles. [34] I do not propose to restate all of what her Honour said. However, I think that it is worth restating what she said at paragraphs 80 and 81:
80. It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount but not sole 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,
[34] Morgan & Miles [2007] FamCA 1230
remain valid.
81. What the legislation now requires is:
- consideration 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 issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
It is not surprising that relocation cases often cause significant anguish for the litigating parents and are difficult for courts to decide. The difficulties were succinctly put by Judge Brown as follows: [35]
Relocation cases are invariably very difficult for all concerned, involving as they do two competing and irreconcilable claims of right. These claims of right arise when the parents of a child have separated and for legitimate reasons wish to take different directions as to where they will live in future. On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees fit, both as a parent and as an individual, separate from the other parent concerned. On the other hand, it is the right of a child to maintain a meaningful relationship with both his or her parents, in the now changed circumstances of his or her parents’ separation.
[35] P & P [2006] FMCAfam 518
As Dr P said in a paper on relocation:
Relocation cases cause considerable conflict between parents and the nature of long-distance relocation cases is that there is little room for compromise. Those conflicts inevitably have deleterious effects on children. Relocation cases also cause significant financial stress, not only in terms of the cost of litigation but also, if the relocation goes ahead, the costs of travel.[36]
[36] “The realities of relocation: Messages from judicial decisions.” Australian Journal of Family Law - May 2008
However, it is clear that the court is not bound by either of the parents’ proposals.[37]
[37] See KB & TC (2005) FLC 93-224
Discussion
I propose to adopt the approach suggested in Morgan & Miles, in that I will examine the issues in dispute against the relevant section 60CC factors, and then apply those findings to my consideration of the criteria of section 65DAA in order to decide upon what orders are appropriate.
However, I point out that, when deciding matters involving the best interests of children, the evidence rarely falls into “pigeonholes” that align neatly with only one of the criteria listed in section 60CC. It is more usually the case that some relevant facts can be considered under more than one of those criteria. This case is no exception.
The Section 60CC factors
The benefit of having meaningful relationships with both parents
The term “meaningful relationship” in relation to section 60CC has been considered in a number of decisions. In Mazorski and Albright,[38] Brown J said this at paragraph 26:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
[38] Mazorski and Albright (2007) 37 Fam LR 518
The Oxford Dictionary of English[39] defines “meaningful” as “serious, important or worthwhile”, and I consider that “worthwhile relationship” is synonymous with “meaningful relationship” for the purposes of section 60CC.
[39] iPad 2nd Edition revised
The parties each wish to ensure that that the child has a worthwhile relationship with the other, and that is only appropriate. However, they clearly have different views about whether or not that can be achieved by a relocation of the child to Victoria.
The need to protect the child from harm from abuse, neglect or family violence
This is not the case where the child needs protection from any harm caused by abuse, neglect or family violence.
Although the definition of “family violence” contained in section 4AB of the Act refers to “behaviour by a person that coerces or controls a member of the person’s family”, I do not consider that any behaviour on the part of the father falls into that category. In this regard, I simply repeat what I said above rejecting the mother’s allegations that the father was “domineering and demanding”.
The child’s views
When she was interviewed for the Family Report, the child did not appear to have a particular view about her own residential arrangements. However, that is not really surprising, given that she had not yet turned five at the time of the interview. The Family Consultant reported that as follows:
[The child] was cooperative enough about being interviewed alone but she soon indicated that she did not want to talk about or draw her family. She was much more willing to talk about going to school. She could not describe her living arrangements, which is expected at her young age when developmentally, children have only a rudimentary understanding of the concept of time. [The child] directed her efforts towards diverting the interview process to play with items in the room. She then did not want to end the play. [The child] is still a very young child so her avoidance of sharing information about her family quite probably could be related more to the interview process. Occasionally children of her age simply prefer to play. No negative themes were noticed in her play.
The child’s relationships with the parents and other people
I conclude that the child has warm and loving relationships in each household.
The Family Consultant reported that her observations of the child “showed that she has emotionally secure relationships with both parents and their partners.” She also added: “Another notable feature of the observations was that [the child] seemed free to talk about her other absent parent when with her father and her mother without tense reactions from the adults.” [40]
[40] Family Report at paragraph 48
She had earlier said that the child was “somewhat sombre” when observed with the mother and Mr P and she was “more animated and spontaneous” with her father and his partner.[41] However, she commented:
This comparison of [the child]’s interaction with each household did not raise criticism of either parent or their partners but rather showed that [the child] has different kinds of relationships with each household and that each household offers her different experiences. On balance, this difference probably is complementary and enriching rather than antagonistic and burdensome for [the child].[42]
[41] At paragraphs 45 and 47
[42] Also at paragraph 48
When the Family Consultant was cross-examined about that statement, she commented:
That balance would be much less able to come into play, almost impossible to come into play, in the context of the geographic distance in this relocation.
The willingness and ability of the parents to facilitate and encourage the child’s relationship with the other parent
In general, I do not have any major concerns about either party’s willingness or ability to facilitate and encourage the relationship between the child and the other parent.
However, I do have some minor concerns about the mother’s portrayal of the father as “domineering and demanding”. If that was a deliberate attempt to cast him in a bad light, I would be concerned that she might not be encouraging of the child’s relationship with him.
The likely effect of any change in the child’s circumstances
Currently, the child is living with both parents on a weekly rotational basis. That has applied for nearly one third of her life.
I note that the Family Consult said that the child would possibly miss her mother if that arrangement was to be changed to seeing her for only four nights per fortnight.[44] Clearly, it is just as likely that the child would miss her father if she was to move to Victoria and see him only during school holidays.
[44] Transcript: Day 1 at page 30
A move to Victoria would also result in the child having to spend many hours travelling between the (omitted) district and Tasmania. In this regard, it was clearly absurd for Mr P to say: “The reality is that we would be a little more than an hour or so away”.[45] In fact, the reality is that child will be living significantly more than an hour away from Melbourne airport.
[45] At paragraph 29 of his affidavit
It therefore follows that the proposals of either parent would result in significant changes to the child’s life.
The practical difficulty and expense of the child spending time with and/or communicating with a parent
I have touched on this factor immediately above.
The parties currently live in close proximity to each other so there is effectively no practical difficulty or expense in the child moving between their two households. However, it is clear that a move to Victoria with her mother would significantly increase the difficulty and expense of the child spending time with her father. Travel from the (omitted) district in Victoria to the (omitted) of Tasmania would involve flights from Melbourne to either (omitted) or (omitted), and return. That would involve the cost of return airfares for the child, and for an accompanying adult at least until she is old enough to travel unaccompanied. It would also involve a number of hours of travel by motor vehicle between the parties’ homes and the relevant airports. In my view, it is unlikely that the total time for a one-way trip would be less than four hours and could possibly be significantly more.
The capacity of the parents to provide for the child’s needs
This consideration includes not only the child’s day to day physical needs but also her emotional and intellectual needs, and I am generally satisfied that the father is capable of providing for the child’s physical, emotional and intellectual needs. However, I am not quite as confident that the mother is as capable of providing for those needs, and my concerns relate to her history of depression and alcohol consumption.
In his first report under the heading “Alcohol and other drug history”, the psychologist said this about his interview with the mother on 1 June 2012:
18. As already noted above, [the mother] conceded problematic alcohol reliance following [the child]’s birth. She said that her alcohol use has been better managed and not problematic since admission to [the clinic]. She said that she has four or five alcohol free days each week and only drinks on weekends in the company of [Mr P].
In relation to that, I note that the mother was discharged from the clinic on 21 June 2011, and at that time the staff at the clinic stated: “The propensity for relapse with Ms McCullough is high.” Further, her General Practitioner’s notes record:
·23 August 2011 - “gradual incr alcohol use - lately 1/2 bottle spirits/day starting midday”
·27 September 2011 – “say 2-3 days no alcohol, 2-3 days 2-3 drinks, 1-2 days heavy drinking! (mostly vodka mix)”
In my opinion it is a logical inference from those notes that, for a period of three months or more after her discharge from the clinic, her alcohol use was not better managed and was still problematic. I note, however, that her General Practitioner’s notes for 7 December 2011 say “cutting on alcohol”, and for 3 February 2012 they record “she is not taking much alcohol, only once in a while is fine”. [46]
[46] See Exhibit “M7”
Unfortunately, the mother has not provided any up-to-date medical evidence to the Court, and the last record available was that attendance upon her General Practitioner on 3 February 2012, being fourteen months prior to the start of the hearing. My concern about that is that she must have understood that her depression and alcohol consumption would be significant issues in the hearing, yet she did not seek to provide the Court with up-to-date information from her doctor. The only available medical records predate the psychologist’s first report.
It is also of some concern that, despite recommendations to her that she also seek psychiatric and counselling support, she has chosen not to avail herself of that type of support. In his first report, the psychologist said:
She was referred to psychiatrist Dr S, but cancelled the appointment and did not reschedule. She was encouraged to seek counselling but did not do so. She frankly admitted she does not like talking about her difficult thoughts and emotions, but feels very supported by her current partner …[47]
[47] At paragraph 27
He went on to say:
30. [The mother] has demonstrated over time that she is not psychologically minded enough to feel comfortable with individual counselling. Her reliance on alcohol for tension reduction arose in part because of this reason. Not everyone is suited to individual psychological treatment. Having regard to [the mother]’s circumstances it is probably unreasonable and unrealistic to expect her to seek individual psychological treatment. It is likely the current dispute and family law proceedings are a complicating factor. Much has been made of her mental health as a factor reducing her parenting capacity and [the mother] may well feel that for her to accept Individual treatment would be to confirm she has psychological difficulties. She may also be (reasonably) concerned that details of any treatment could be subpoenaed in legal proceedings. It is possible that when she feels more safety in her life that individual treatment will become possible for her.
The psychologist’s prediction that the mother would be unlikely to seek individual psychological treatment appears to have been borne out, because he said this in his second report after he interviewed the mother on 10 May 2013: [48]
In terms of treatment, [the mother] indicated that other than the pharmacological treatment she has not received any further treatment for her depression. She said she is sufficiently supported by her partner and other close friends.
[48] Exhibit “M5”
In that second report, the psychologist also said this:
My specific questioning elicited no symptoms suggestive of current depression. Her sleep was generally good. Her mood is better. She has sufficient energy to undertake normal tasks of living and attends gym classes about three times a week. She does not feel hopeless, tries to stay positive, and has plans for the future. No undue symptoms of anxiety were elicited.
Results of the BDI and DASS-42 indicated no significant depression.[49]
and
In terms of current alcohol use, [the mother] said that she has on average five alcohol free days a week. She normally permits herself to drink on Thursday and Friday nights, when she has two glasses of wine. Occasionally she will drink on other nights if she is with friends for a social event. She said her partner has been a huge support getting her drinking under control.
[49] Beck Depression Inventory (BDI) and Depression Anxiety and Stress Scale (DASS-42)
It is pleasing to note the apparent improvement in her mental health and reduction in her alcohol consumption. However, it is of some concern that she has not availed herself of any other form of treatment apart from taking antidepressant medication. In relation to that, when the psychologist was cross-examined, he clearly indicated a preference for a combination of antidepressant medication and “psychological treatment approach that looks at the causes of the depression”.[50]
[50] Transcript: Day 5 at page 14
Having said that, I note that the psychologist had seen the mother the previous week and at that time “she indicated again that she felt sufficiently supported by the people in her life” and he “inferred from that that she didn’t see the need for any further individual psychological treatment”. He also said that she is “probably unsuitable for individual psychological treatment”.[51]
[51] Transcript: Day 5 at page 21
The attitudes of the parents to the child and parental responsibilities
In general, I find that both parties are loving and responsible parents and have no concerns for the child’s welfare in either household.
Any family violence and family violence orders
Thankfully, these are not concerning factors in relation to this matter.
Whether it is preferable to make an order that is least likely to lead to further litigation in relation to the children
Neither party’s proposal is inherently more likely to lead to further litigation.
Equal shared parental responsibility
In my view, nothing in this matter suggests that it is not in the best interests of the child for the parents to equally share parental responsibility. Indeed, I note that :
·Firstly, neither party is seeking to set aside the consent order providing for equal shared parental responsibility that was made on 8 June 2010; and
·Secondly, the Family consultant reported:
Despite tension in the parental relationship, [the parents] have demonstrated that they can co-parent. Accordingly they probably are able to implement equally shared parental responsibility, for [the child]’s benefit.[52]
[52] At paragraph 58 of the Family Report
Consequently, I do not propose to make any amendment to the consent order in relation to equal shared parental responsibility.
Even though I am not proposing to make any order allocating equal shared parental responsibility (because it already exists), I am of the view that it is within the spirit of the legislation to consider whether spending equal time with each of the parents is in the best interests of the child and is reasonably practicable, and if it is, I must consider making an order that the child is to spend equal time with each of her parents. However, if I do not propose to order that the child is to spend equal time with her parents, then I must consider whether it would be in her best interests to spend “substantial and significant time”[53] with each of the parents and whether that is reasonably practicable.
[53] As defined in subsection 65DAA(3)
As I stated during the hearing, it is quite clear that neither equal time, nor substantial and significant time is reasonably practicable if one parent resides in Victoria and the other resides in Tasmania. Indeed, neither would be possible. It would only be possible to achieve one or the other if the parents were living in much closer proximity to each other. It therefore follows that the question of the child’s relocation to Victoria with the mother must be considered before any “live with” or “spend time” orders can be devised.
Should relocation be permitted?
In her Response filed 2 December 211, the mother seeks an order that she “be permitted to reside with the child in Victoria”.[54] Her plan is clearly to live in or near (omitted) with Mr P and the child. In her trial affidavit she said:
20. In the event that the Court permits us to relocate then it is our intention that [the child] attend primary school in either (omitted) or (omitted) …
[54] That is repeated in the “Summary of Argument” filed 22 April 2013
She set out her reasons for relocation in her affidavit as follows:
11. Whilst we live in Tasmania, I am not Tasmanian and in fact I only moved to Tasmania with Mr Charles from Victoria in March 2003. All of my family supports are in Victoria and I feel very lonely in Tasmania without the support of my family. This was the case even during my marriage with Mr Charles. [The child] was born on (omitted) 2007. After her birth, I suffered significantly from post natal depression. Sadly, Mr Charles and his family were not supportive of me in any way and in fact during that period of time Mr Charles seemed to be rarely at home. This lack of support from Mr Charles and his family at what was a difficult time for me only served to accentuate the absence of my family here.
12. Consequently, Mr P and I have developed a plan to relocate ourselves with [the child] to Victoria because I would like to have the support of my extended family both for my own benefit but also for the benefit of [the child].
13. In Victoria, are [the child]’s cousins and my sister … and her partner, my brother … and half sister … . Also in Victoria are my father, uncle, aunt and cousins.
14. Mr P and I see the opportunity to move to Victoria as beneficial. Mr P is able to take up a business opportunity of running a (omitted) business in (omitted). He has already investigated the opportunities there and they are very positive for us.
Consequently, her reasons for wanting to relocate appear to be twofold. Firstly, it is for family support and secondly it is to enable Mr P to set up a business running a (omitted) business in (omitted).
I have made comments about the mother’s claims of family support at paragraphs 40 to 43 above, so I do not consider it necessary to repeat them. Further, the psychologist’s evidence was clearly that her mental state has improved.
I therefore turn to consider the business reason for relocation. In relation to that, Mr P said this in his affidavit:
7. I had planned to semi retire …. It has been my plan to take … a (omitted) which I own to (omitted) in Victoria. I know that I have the opportunity to run that (business omitted) in (omitted) as a business during the holiday high peak seasons and I know that it would have provided a stable source of income for myself, [the mother] and [the child].
8. The nature of the (omitted) business for holiday makers is such that I would be able to run that (omitted) business for a few months each year and make enough money to live on. However delays in us being able to relocate are proving expensive for us the (omitted) is sitting idle at the present time in (omitted).
Mr P did not provide any business plan or financial analysis of his proposed venture. Consequently, the Court has no way of properly assessing the viability of Peter’s assertion that he will make enough money for the family to live on by only working for a few months each year. In relation to that, the father’s counsel said this in his closing submissions:
… there is no economic basis for arguing that the situation of the [family] unit would improve if they relocated. It appears to be half run as an economic argument but there is no evidence there for that. The evidence in fact is to the contrary. Your Honour didn’t know until [Mr P] was cross-examined that he does have about $1.2 million to split up with his wife after a long marriage. That’s relevant because you read the affidavit and you would be left with the impression that … there will be a situation of penury here in Tasmania which will suddenly be miraculously healed by the inauguration of a new untested, apparently unplanned, business in a totally new location and it’s the same like business that was operating essentially a seasonal tourist operation in (omitted) until it stopped.
That may be a colourful description of the situation but it is true that I have no real explanation why a (omitted) business should succeed in Victoria when apparently it did not succeed in Tasmania. In relation to that the only evidence from Mr P was that there would be “access to millions of people from Melbourne where (omitted) has got next to none”.[55] That also suggests to me that there could be much more competition as well.
[55] Transcript: Day 4 at page 80
As I have noted above, a parent wishing to relocate does not need to demonstrate “compelling” reasons for the move. However, it is my view that the reasons put forward should persuade me that relocating is more likely to be in the child’s best interests than staying. In this matter I am not so persuaded. That is because I am not convinced that the family support available to the mother will be as abundant as claimed by the mother and there is no real evidence that the (omitted) business will be financially viable.
When I weigh that against the inevitable reduction in contact between the child and the father, I cannot help but conclude that the mother’s application to relocate with the child to Victoria must be refused.
The mother says that she will not relocate to Victoria without the child and I accept that.
With whom should the child live?
If the mother is not able to relocate to Victoria with the child, it is the father’s proposal that the child should live predominantly with him and spend time with the mother for four nights per fortnight. On the other hand, the mother proposes that the child live with her but spend each third week with her father. In my opinion, neither proposal is in the child’s best interests, because each would significantly reduce the involvement of one of her parents in her life. I am mindful that she has been spending equal time with each of her parents since early October 2011 and for those last 21 months the parents have each had a meaningful involvement in her daily life.
As I have said above, it is clear from decisions such as KB & TC that I am not restricted to considering only the proposals put forward by the parties, and the father’s counsel alluded to that in his closing submissions
I am also mindful of the fact that if the parties are living in close proximity, as they are now, a continuation of an equal time regime is “reasonably practicable” within the meaning of section 65DAA as explained by their Honours of the High Court in MRR v GR:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. [56]
[56] MRR v GR (2010) FLC 93-424 at paragraph 13
I am therefore obliged by the section to consider whether continuing such a regime is also in the best interests of the child.
The Family Consultant appeared to be of the view that the child should live predominantly with one parent and spend substantial and significant time with the other. At paragraph 60 of the Family Report, she said this:
If relocation is not an issue and if the Court is satisfied that [the mother]’s mental health status poses no significant risk to [the child], it would benefit [the child] to live with either [the father] or [the mother] and to spend substantial and significant time with her other parent. This could be in a shared care arrangement of nine and five days. Both parents want to participate in [the child]’s school life and extra-curricular activities; and this would benefit [the child]’s development.
However, that statement was made in February 2012 and the child has been living in an equal shared care regime for nearly 18 months since then. Indeed, one significant factor that has helped with the improvement in the mother’s mental health has been the fact that the child is settled in the weekly shared care arrangement. In relation to that, this exchange took place when the psychologist was cross-examined:
Counsel: Did you identify any factor that is changed from your interview, in your second interview, which might be causative of that improvement?
Psychologist: She mentioned that she was reassured that [the child] had settled into the week-about care arrangement. And she was reassured that that was overall easier for [the child] – and then that was one factor that she named.
Counsel: Can you remember any other factors she named?
Psychologist: No.
It seems to me therefore that a significant contributor to the mother’s improved mental health has been the fact that the child is settled and comfortable with having her parents equally in her life.
When I weigh up these matters, I conclude that the current weekly shared care should continue and I will make orders to take account of that.
Other orders
The mother sought an order that would require the father to sign documents to enable the child to be issued with a passport. Her application came about as a result of the father not allowing the child to be taken to New Zealand (where Mr P’s parents live) in 2011. That was at a time when the mother had only just been released from the clinic and I do not consider the father’s actions at that time to have been unreasonable.
I note that in his evidence he was quite prepared to consider the issue of allowing the child to travel to New Zealand and I am therefore confident that he will consent to the issue of a passport if he is provided with reasonable details in relation to a proposed trip. In my view, that makes an order at this time unnecessary.
I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Judge Roberts
Date: 24 July 2013
[12] The emails are Exhibit “F3”
[43] Transcript: Day 1 at page 15
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