Chesterfield and Brent
[2014] FCCA 787
•30 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHESTERFIELD & BRENT | [2014] FCCA 787 |
| Catchwords: FAMILY LAW – Parenting – relocation to Western Australia – importance of the children’s connection to their Aboriginal culture – primary parent’s freedom of movement – children’s views. |
| Legislation: Family Law Act 1975 |
| MRR v GR (2010) 240 CLR 461 Champness & Hanson [2009] FamCAFC 96 |
| Applicant: | MR CHESTERFIELD |
| Respondent: | MS BRENT |
| File Number: | MLC 3507 of 2013 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 18 & 19 March 2014 |
| Date of Last Submission: | 19 March 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 30 April 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Bonney |
| Solicitors for the Applicant: | Aboriginal Family Violence Prevention & Legal Service, Warrnambool |
| Solicitors for the Respondent: | Unrepresented |
ORDERS
That all extant orders in respect of the children X born (omitted) 2004 (“X”) and Y born (omitted) 2008 (“Y”) be discharged.
That the parents have equal shared parental responsibility for the children X and Y.
That each parent be and is hereby restrained from changing the principal place of residence for X and Y from the (omitted) shire of Victoria except with the express written consent of the other parent.
That X and Y live with the mother.
That X and Y spend time with and communicate with the father as follows:
(a)Each second weekend between Friday at 4.00pm and Sunday at 5.00pm but extending to Monday at 5.00pm in the event of a public holiday or a student-free day;
(b)For one half of the Victorian gazetted summer holidays each year as agreed between the parents but failing agreement then for the first half of such holidays in 2014/2015 and each alternate year thereafter and for the second half of such holidays in 2015/2016 and in each alternate year thereafter;
(c)In each Victorian gazetted term school holiday from the second Monday of the holidays at 5.00pm until the following Sunday at 5.00pm or otherwise as agreed between the parties in writing; and
(d)Such other or varied time as agreed between the parties from time to time.
IT IS NOTED that publication of this judgment under the pseudonym Chesterfield & Brent is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 3507 of 2013
| MR CHESTERFIELD |
Applicant
And
| MS BRENT |
Respondent
REASONS FOR JUDGMENT
Applications
These proceedings concern two children being X born (omitted) 2004 (aged 9 years) and Y born (omitted) 2008 (aged 5 years).
The primary issue is the mother’s quest to relocate the children from (omitted), Victoria to live in (omitted), Western Australia.
The proceedings were commenced by the father’s application filed 14 February 2013 seeking a recovery order in respect of X and Y following the mother’s unilateral move of the children to Western Australia. His substantive application sought orders whereby the children live primarily with him, and spend school holiday time with the mother, presumably on the basis that she was committed to moving to Western Australia with or without the children. A location order was made in the state court to find the mother and the children in Western Australia. In April 2013, the mother and the children returned to (omitted) Victoria where they have remained for the duration of these proceedings. The children have remained living primarily with the mother and spent time with the father each second weekend and during school holidays.
Orders were made restraining the mother again removing the children from (omitted) Victoria. An order was made for a family report.
The applications came on for trial in the circuit of the court at Warrnambool on 19 March 2014. The father was represented by solicitors and counsel. The mother appeared in person.
The father seeks an order for equal shared parental responsibility with the mother for X and Y. He proposes that the children live with him if the mother moves from the (omitted) region. She, however, informs the court that she would not herself relocate without the children.
If the mother’s application to relocate is unsuccessful then the father proposes that the children live on a week–about basis between the parents but with the summer school holidays to be spent between the parents in block periods.
The mother wants to relocate to Western Australia with the children and for them to live primarily with her. She proposes time with the father for 10 days in two of the term school holidays, for one half of the summer school holidays, and for at least “three extended weekends in Perth for the father and the children”. She proposes that the children’s time be supplemented by telephone and Skype communication. She seeks an order whereby the parties share equally in the travel costs.
Background
The mother is 37 years of age. The father is 36.
The parties commenced their relationship and cohabitation in 2000. They separated in July 2011 whereupon, without the benefit of the court orders, the children remained living with the mother and spent frequent time with the father.
In early 2012 the mother told the father that she was considering relocating to Perth. The father’s solicitors then wrote to the mother confirming that he did not consent to his children relocating to Western Australia.
In October 2012 the parties attended mediation and agreed to formalise an arrangement for the children to live with the mother and spend every second weekend with father.
In December 2012 the children informed the father that they would be spending Christmas in Western Australia. The mother confirmed with the father that the children would be returned to (omitted) Victoria on 20 January 2013 and that they would be spending the following week with him. She did not return until 24 January leaving the children with only five days of their school holidays with the father. In early February, the father was advised by a mutual friend that the mother had enrolled X in school in Western Australia and unilaterally moved herself and the children back to Western Australia. She did not return until April 2013.
The mother has two older children being A (aged 14 years) and B (aged 16 years). A did and intends to relocate with the mother and the children. B is completing her VCE in Victoria, and lives with a cousin of the father.
The father lives with his mother, Ms P, at (omitted) near (omitted). He works Monday to Friday for the (employer omitted) as a (omitted).
There is no evidence that Mr Chesterfield is re-partnered.
Mr Chesterfield has a history of some mental illness including a psychotic breakdown in 2000. He has been prescribed antidepressants over a number of years. He admits to have previously been a heavy consumer of alcohol. The mother alleges him to have been a habitual drug user. He says he has not used drugs for three years.
Mr Chesterfield identifies with his local indigenous culture. He works within that community and his family have enjoyed a long and active involvement.
The mother has re-partnered with Mr J. He’s 57 years old. He lives at (omitted) in Western Australia and works as a (omitted). His 24 year old son lives in Perth. Mr J is originally from (country omitted) but has lived in Australia for 20 years including for a period in the (omitted) area and where he pursued his trade.
The Evidence
I was asked to read two affidavits of the applicant father being those filed 14 February and 9 October 2013. He adduced evidence from Ms Z whose affidavit was filed 9 October 2013. She is the applicant’s sister. He also adduced evidence from Mr R. His affidavit is filed 9 October 2013. Mr R is an Aboriginal man from the (omitted), and has had involvement in the (omitted). The focus of Mr R’s evidence was in respect of aboriginal cultural issues generally and in particular, for the (omitted) people. Mr R is a retired gentleman who describes himself as an “apprentice elder”.
The mother had two affidavits read into evidence, sworn 25 April 2013 and 12 March 2014. Mr J gave evidence and was cross-examined. She caused an affidavit of Mr P to be read into evidence. He was not required for cross-examination. Mr P is aboriginal and his evidence addressed aboriginal cultural issues.
The Court also had the benefit of two Family Reports which were read into evidence with the authors not being required for cross-examination.
The Father’s Case
Mr Chesterfield says that the children have expressed a consistent preference to live in (omitted). He argues that they have an established connection with their aboriginal culture which they enjoy through him and his extended family. He argues that should the children be relocated to live in Perth then their time in (omitted) with him, their family and enjoying their culture would be limited and infrequent and would suffer accordingly. Such time would be limited to school holidays and would incur substantial expense. Mr Chesterfield refers to the mother previously and unilaterally removing the children from Victoria to Western Australia as an indicator of her lack of insight into their need for a relationship with him and particular relationships within their culture. He says generally that this behaviour suggests that lack of ability or willingness in the mother to encourage the children’s important relationships.
Mother’s Case
Ms Brent says that she is, and has been, the primary carer for X and Y. She has entered into a new and committed relationship with Mr J. They have welcomed a new child into their family. Mr J has stable and well-remunerated employment in Western Australia, such as is not available in the (omitted) area. She says that she can therefore offer the boys actual and financial stability with a positive lifestyle model. She says that she will connect the children with aboriginal culture in Western Australia and they can pursue their particular culture in (omitted) during regular school holiday visits to their father.
Relevant Law
The orders sought are parenting orders. Consequently, the court is obliged to make orders which have the children’s best interests as the paramount consideration. Consideration of the children’s best interests is not at large but rather by the court having regard to the mandatory references set out in sections 60C(2) and (3) of the Family Law Act 1975 (“The Act”). Those considerations are in many respects amplified by distance and the impact on relationships which accompany the anticipated relocation of children.
Parenting matters involving an element of relocation are among the more difficult coming before these courts. The options left for the court are usually only at the extremes for children’s parenting arrangements. That is, either a relocation of children will be permitted which will almost inevitably leave the remaining parent aggrieved by the result and perceived loss and change in the nature of his or her relationship with the children. Alternatively, a relocation will be refused leaving the primary parent equally aggrieved by the shackles placed on them by being required to live in a place not being their preferred choice.
There is a presumption[1] that parents have equal shared parental responsibility for their children. That presumption is not applicable if the court is satisfied that a parent of the child (or a person who lives the parent of the child) has engaged in abuse of the child or family violence. Alternatively, the presumption can be rebutted if contrary to the best interests of the children. Importantly, and flowing from the presumption, are mandatory considerations for the court as to the regime of time the children spend between parents, and specifically whether they spend equal time with their parents or “substantial and significant time” with each parent. Obviously, a proposed relocation of children will impact directly on these potential options and usually render them impracticable if the relocation is permitted.
[1] Section 61DA of the Act
Importantly, therefore, the High Court MRR v GR[2]confirmed the two-limb consideration for the court in that orders must be both in the children’s best interests and reasonably practicable.
[2] (2010) 240 CLR 461
“Substantial and significant time” is defined in the Act as (section 65DAA(3)):
a. The time the child spends with the parent includes both:
(i) Days that fall on weekend, holidays; and
(ii) Days that do not fall on weekends and holiday; and
b. The time that the child spends with the parent that allows the parent to be involved in:
(i) The child’s daily routine; and
(ii) Occasions and events that are of particular significance to the child; and
c. The time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Further, section 65DA(5) of the Act provides that:
In determining for the purposes of subsections (1) (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
a. How far apart the parents live from each other; and
b. The parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
c. The parents current and future capacity to communicate with each other and resolve difficulties that might arise and in implementing an arrangement of that time; and
d. The impact of the arrangement of that kind would have on the child; and
e. Such other matters as the court considers relevant.
The courts have over many years attempted to extract a set of general principles to be considered in parenting cases involving a relocation. It seems that the list of principles has survived various significant amendments to the Act. Those principles can be summarised as follows:
i)That the child’s best interests remain the paramount but not the sole consideration;
ii)The parent wishing to move does not need to demonstrate “compelling” reasons;
iii)That the judicial officer must consider the advantages and disadvantages of each party’s proposals, and may himself or herself be required to formulate proposals in the child’s best interests;
iv)The child’s best interest must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement but such “right” must ultimately defer to the child’s best interests.
v)That neither party carries an onus to prove either that a relocation is in a child’s best interests or contrary to the child’s best interests.
As such, the Act being silent as to the notion of relocation, it neither prohibits nor offers a presumption against relocation.
Consideration of the Children’s Best Interests
The framework for this consideration comes from section 60B of the Act which sets out the objects and principles of part VII of the legislation, whereas the specific and often empirical considerations for the court are directed to section 60CC, section 60B provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) Parents should agree about the future parenting of their children; and
(e) Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Primary Considerations
Section 60CC(2)(a) The benefits of the children having a meaningful relationship with both of their parents.
In the Family Report the father himself acknowledges the children’s attachment to their mother. At paragraph 32 of the second report released in February 2014 Mr Chesterfield reported:
He advised that if Ms Brent was allowed to relocate, but not the children, then the children would also suffer a level of grief and loss of their mother whom he recognises they love. He would (sic) he is concerned that the children would suffer as they would have to move from their mother to him and his family. He is very prepared to take the children on full time as per his application, however he acknowledges the children’s attachment to their mother. He does not wish them to feel abandoned by their mother if their mother makes the choice of taking her baby to live with Mr J in Western Australia.
The children’s primary attachment to their mother is not surprising given that they have lived with her since the parties separation in July 2011. The father says, however, that he has continued to spend time with the children. He describes such time as being “flexible”, whereas the mother describes it more as “sporadic”.
The mother commits to staying with the children in (omitted) if she is not permitted to relocate them to Western Australia and hence the father’s concerns expressed above do not apply although they do of course remain relevant as to the children’s attachments.
The children’s relationship with their father was made more stable by consent orders entered into in October 2013 whereby the children were to spend time with him each second weekend and for half of the school holidays.
The observations of the family report are that the children are comfortable with their father and show a connection to him and through him to their culture.
These boys are just nine and five years of age. The evidence before me suggests that their relationship with their father has been a casual but frequent one, and through him they have related with their extended family and their culture. The issue for the court is the impact, if any, on those relationships and whether they can be maintained and even flourish on the mother’s proposal which would effectively have these children visiting (omitted) four times a year albeit for block periods on each occasion? The father argues that the children would grieve their loss of him and their extended indigenous family. The mother believes that she can delicately assist them to adapt to a new environment whilst maintaining their relationships and other important people and their culture.
This consideration is very much at the crux of the father’s argument that the proposed relocation be refused. It is, of course, a “primary” consideration for the court. Nevertheless, the obligation for the court is not simply to make orders that are most likely to ensure that children have a “meaningful relationship” with both parents. The task is a much broader one as noted by the Full Court in Champness v Hanson[3] as follows:
The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, S60CC(2)(a) directs the court to consider “the benefit to the child” having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors …[4]
[3] [2009] FamCAFC 96
[4] Ibid at 103
Insofar as anyone can generalise in such matters, it is perhaps a truism to say that children who have established, attached and successful relationships with a remaining parent may be more able to endure a relocation and maintain those relationships than do children who are in the process of establishing their relationships or who have problematic relationships. There are, of course, numerous other variables to add to the recipe of consideration in maintaining those relationships. And it is noted at paragraph 88 of the second family report by Ms S:
The impact on the child parent relationship in relocation matters will be dependent on the following factors; the distance between the parents; the age and development stage of the child; the transport capacity of the parents; the financial resources of each parent; the special needs of any of the children; the presence of step family and step siblings; the impact on schooling; the motives of the relocating parents; the impact on the remaining parent; the presence of high conflict/violence/substance abuse etc in the parent interaction.
Section 60CC(2)(b) – the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The mother does not argue for matters of family violence as a motivator for her wish to relocate with X and Y from (omitted) to Western Australia. Each party paints a picture, however, of a volatile relationship with the spectre of drugs and alcohol and numerous separations. It seems clear that the father suffered at least one psychotic episode. The mother reports of violent outbursts of verbal abuse.
Mr Chesterfield now makes some allegations of violence by the mother perpetuated on the boys. Notably, however, he was not motivated previously to make any application to the court. There appear to have been no other interventions at the instigation of Mr Chesterfield. The family report at paragraph 22 reports Mr Chesterfield as follows:
Mother’s relationship with the boys: Mr Chesterfield sees Ms Brent as a person who parents by raising her voice and is very autocratic or authoritarian in her parenting. He advised that she has anger issues for example “yells and swears at the child”. He advised that she has smacked the boys.
Section 60CC(3)(a) - any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views.
X’s views were elicited in the family report in a general way rather than in the specifics as to his preference. This is entirely appropriate given that he is just nine years old. He is reported in the first family report as:
“Presented his views in a shy and hesitant manner. He spoke in a quiet, subdued voice tone, at times avoiding eye contact with the writer. He was essentially negative in respect of his experiences in Perth but positive in having returned to (omitted).”
The second family reporter notes of X:
He was very clear throughout the interviews that he wanted to stay in (omitted) and that he was very connected with his father. He talked about a lot of activities he undertook with his father but did not describe many activities with his mother.
For Y at just five years of age would not be expected to be able to rationalise his preferred living arrangements.
The mother does not claim any unequivocal preference or desire of the children to live in Western Australia. She acknowledges their family and cultural connections in (omitted). Rather, she says that she is confident that the boys will adapt to the new environment she could provide them in Western Australia and that they would be able to maintain their relationships.
Section 60CC(3)(b) – the nature of the relationships of the children at each of their parents and any other persons.
The impression I glean from the evidence is that the nature of the children’s relationship with their father has been an ad hoc but frequent one. Mr Chesterfield does not impress from the evidence and from seeing and hearing him in the witness box as a person who feels bound by routine and order in his life. He has, however, consistently involved the children with their extended family and with their particular Aboriginal culture in (omitted). The nature of their relationship, therefore, is best seen as being inclusive. These boys are able to move easily and comfortably through their various family members which perhaps has provided them with an alternative perspective from the nuclear family unit. It is the mother, however, who has taken on the primary parenting role. The evidence suggests to me that she has condoned and cooperated with the father’s comings and goings with these children which is consistent with his commitment to their own relationship.
The family reporter, however, notes some potential conflicts or difficulties for these boys in their relationship with their mother and perhaps arising from the inconsistent parenting models provided them. Ms S, at paragraph 55 and in relation to X, notes:
He spoke of being very worried about leaving his father but doesn’t believe his mother understands his feelings. He described his mother as somebody who listens but who plays a lot with Y and not with him. He at times indicated that his mother ignores him and sometimes becomes very angry with him and his behaviour.
It was clear throughout the interviews that he was connected to his father and the (omitted) area. His relationship with his mother is becoming fragile and it would be in Ms Brent’s interests to start prioritising some of X’s needs.
The concern for the father is whether or not the particular relationship that he has with his children which involves family members and traditional indigenous participation, can survive the changes anticipated by the mother which would give structure and predictability to the relationship between the children and the boys. Their previous laissez-fair relationship would give way to organisation and structure around school holidays, airline timetables and the like.
Section 60CC(3)(c) – the extent to which each of the children’s parents is taken, or failed to take, the opportunity to participate in making decisions about long-term issues in relation to the children and to spend time with the children and to communicate with the children.
The evidence suggests to me that these parents have naturally taken on different roles and probably consistent with their own lifestyle values. The mother has provided for the children’s physical needs. She has provided them with routine necessary to function in 21st century society. The father, however, has added other ingredients to these children’s lives. His role has been more casual but no less important. He has opened the doors to their culture, heritage and history. X is of an age where he can absorb and understand the significance of these matters. He has indicated as much to the family reporter. The mother, to her credit, seems to have permitted, and perhaps assisted, in these two boys having the opportunity to enjoy to the maximum potential the benefits of the cultures of both their parents.
Section 60CC(3)(d) – the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents or any other child, or other person (including grandparent or other relative of the children), with whom he or she have been living.
Fortunately for these children, a separation from their mother is not an option. She indicates that she would not herself move to Western Australia if the boys cannot go with her. This is an important commitment by the mother given her role as the stable and practical parent for these two young boys.
The father says that they will grieve the loss of him, their family and their culture should they be moved to Western Australia. X’s reported conversations with the family reporter give some corroboration in this regard. This is an unusual situation where these boys have had a “taste” of what a relocation will provide. Whilst the mother valiantly claims that they showed signs of settling into Western Australia in 2013, the evidence as a whole suggests otherwise.
The mother says that concerns about the children’s connection with their Aboriginal culture can be addressed by involvement with local Western Australian Aboriginal groups. Each party adduced some evidence in this regard. Unfortunately, I gleaned little assistance from the evidence of either Mr R, on behalf of the father, or Mr P, who provided an affidavit for the mother. On reflection, I think that I must consider the ages of these children, the nature of their relationships with their grandmother, their aunts and their cousins when considering the impact of changes on them. Those relationships have an intrinsic involvement in the local Aboriginal community based around (omitted). This is not akin to these children being a member of a club or a society. There is an inherent intertwining between family and culture. Whilst I am satisfied that any exposure to Aboriginal communities generally and anywhere in Australia would be of some benefit to these young children, I am equally satisfied that there is a particular importance for them in the benefits attained from their own family, culture and particular history around (omitted). Whilst the mother says that regular visits each school holiday would maintain those links, I am not convinced. Rather, the evidence is more of the spontaneity and availability of this particular community in which these children are very much participants rather than “visitors” as would inevitably be the case on the mother’s proposal.
The above comments in respect of the children’s relationship with their family and their community are equally valid in respect of their relationship with their father. It is a relationship that is different to that they enjoy with their mother. Mr Chesterfield does not provide the same level of commitment, certainty in routine that Ms Brent gives these children. Their relationship with him, however, is no less valuable for them. I expect that it is not a relationship grounded on calendars, school commitments and aeroplane timetables. It thrives through flexibility and spontaneity.
Section 60CC(3)(e) - the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
The practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relationships and direct contact with both parents on a regular basis.
My experience in this jurisdiction suggests that it is not impractical or financially prohibitive for children to fly between Western Australia and Victoria for the purposes of school holiday time with the other parent. The mother’s partner is in well remunerated employment. The father works full time. In the sense I am satisfied that the mother’s proposal is a reasonably practicable one.
Section 60CC(3)(f) – the capacity of each of the children’s parents to provide for the needs of the children, including emotional and intellectual needs.
The mother has assumed the role of primary parent. There appears to have been a natural evolution of roles between these parents following their separation and perhaps being a continuation of those roles during the relationship. Despite some criticism in the documents from the father in respect of the mother’s capacity, he has not otherwise sought to assume the primary role.
The issue in respect of the mother’s capacity is her happiness and comfort as the primary parent should she not be free to move to Western Australia to pursue her relationship with Mr J. Such freedom of movement is an important and entrenched adult right. Matters involving relocation of children often highlight the intractable conflict between the right to move on with one’s life and the objective responsibilities towards children confirmed by the Family Law Act.
If her application to relocate the children is unsuccessful then the mother commits to remaining in (omitted). She has an infant child with Mr J. He is established in well paid employment in Western Australia. A long-distance relationship for them and for their child would be grossly inconvenient at the very least. I did, however, have the advantage of seeing and hearing both the mother and Mr J give evidence and be cross-examined. They both impressed me as committed in their relationship and they each acknowledged the same. They also impressed me as people of strong character, resilience and adaptability. There was a noticeable objectivity and pragmatism in their evidence. Mr J, for example, said candidly that he would seek employment in the (omitted) area, despite none previously being available to him, should the mother not be able to relocate her children. Mr J acknowledged the importance of the children’s relationship with their father and was able to prioritise the mother’s commitment to her children. He was an impressive witness. The mother herself showed similar objectivity and strength of character.
On the evidence before me and after hearing the parents in cross-examination, I am satisfied that it is the mother who presents as the better option for primary carer of these children. She has a proven capacity and I am satisfied that she has been the delegated primary parent. As mentioned above, Mr Chesterfield has assumed a completely different role with his children following separation.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and of any other characteristics of the children that the court thinks are relevant.
The children share an Aboriginal heritage and culture through their father. The mother is not Aboriginal. She has, however, readily permitted her sons’ full and beneficial involvement in their aboriginal family and wider culture. On the evidence, the children’s involvement with their indigenous people is on a higher and more intrinsic level than might be the joining of a club or other extra-curricular activity. The community is the focus of their relationships with their father and his family. Mr Chesterfield described the connection for the boys at paragraph 30 of the second family report in the following way:
Mr Chesterfield objects to the children being relocated to Western Australia. He is worried that the children will be feeling the loss of their extended family and their involvement in their culture. He advised that the aboriginal culture group in Western Australia is different to the current group, and he dismisses the proposal from Ms Brent that they would connect with the local indigenous groups. He further states that if the children were to relocate and returned to spend time with him on school holidays, that access to his cultural group meant that they would become outsiders and visitors and not an integral part of the family kinship system. He spoke of each family group having its own language and its own traditions and different approach, and therefore, “it’s not family”.
Mr R provided an affidavit for the father. He helped establish the local (omitted) cooperative and has long involvement in the local aboriginal community. He has known that the father since he was born and has met the mother. At paragraphs 8 and 9 of his affidavit, Mr R says:
From my experience as an Aboriginal man and having worked in Aboriginal communities for over 40 years, it is my view that Aboriginal children cannot maintain a genuine connection with their culture if they grow up outside of their own community. I have witnessed this countless times in a professional capacity, and also have first-hand experienced from family members who have grown up outside of our community.
A genuine connection to culture for Aboriginal peoples cannot not [sic] achieved by occasional visits back to country or only attending certain ceremonies or cultural events each year. It also cannot be attained by being given information or being taught about their culture, say over the telephone or in books. Instead, it requires an immersion in the culture which can only be achieved through a lived experience of the cultural practices and lifestyle of the community on a day to day basis.
Mr R comments that the children would have no connection to any Western Australian Aboriginal community and could not claim kinship or other relationship with those communities. Mr R continues:
There is often a general misconception that Aboriginal people can be treated as one group when the reality is that they cannot. Aboriginal culture is not one culture, but rather numerous different cultures that are practised in individual communities throughout Australia. Each community has its own distinct cultural practices and traditions. Involvement in an Aboriginal community in Western Australia could not replace the specific cultural learning, connection, and identity that the children would receive from their own community. The children would still be losing their identity and right to enjoy their culture, even if they became involved with the Aboriginal community in Perth.
Mr R was cross-examined by the mother. His evidence generally withstood that cross-examination as to the mother’s contention that the children could enjoy their wider Aboriginal culture by living in Western Australia and maintain their connections during school holiday visits.
Mr P provided an affidavit for the mother. He was not required for cross-examination. He also lives in (omitted) and is a (occupation omitted). He says he was “born (omitted).” Mr P says at paragraph 3 of his affidavit that:
I would like to state that Aboriginal culture, language, stories, song, dance, ceremony etc. is a universal lore in all cultures worldwide.
Mr P gives evidence from a personal perspective and, on close reading, there is much in his evidence that, in fact, supports the inclusive and personal nature of the particular Aboriginal community in (omitted). At paragraph 7 and following, Mr P deposes:
I have lived all over the country; Darwin, (omitted), (omitted), (omitted), and back home. In my travels, I have learnt a lot about our culture, song lines, history, and dreamtime. When I walk my country, I follow the song lines. Most times, it just happens. Song starts to flow from me, that’s dreaming coming out.
If you live in one place all your life in your country, how do you get to understand love, lore, and respect, if you don’t link up with other tribes? Acceptance into cultural environments, community tribes or clan groups is of one’s respect within one’s self. Certain upbringing is important to support and guide children to a better future in life, whether it is the bush, towns, cities, on country or overseas, culture is important to all peoples.
I, Mr P, and my 3 children have been part of this community going on 10 years this year, in the 10 years I have been here, I’ve seen a lot, and experienced a lot of ignorance, disrespect, and lack of support for me and my children. If there is an Aboriginal elder left, where are you? And why have me and my children not being [sic] asked to participate in any cultural activities? This is disrespectful of the Aboriginal community.
On reflection, I prefer the evidence of Mr R in respect of the issue before me. Indeed, Mr P’s evidence suggests that the local Aboriginal community at (omitted) may be close-knit and protective of its locals and perhaps reluctant to assimilate outsiders. Such appears to have been Mr P’s experience. It follows, therefore, that X and Y may be viewed in a different perspective depending on whether they are visitors to the community in the school holidays or consistent and constant participants within the community?
Section 60CC(3)(h) - if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
If the children are Aboriginal or Torres Strait Islander, then the children’s right to enjoy their Aboriginal or Torres Strait Islander Culture (including the right to enjoy that culture with other people who share that culture) and the likely impact in the proposed parenting order under this Part will have on that right.
These issues have been addressed above.
Section 60CC(3)(i) The attitude to the children, and the responsibilities of parenthood, demonstrated by each of the child’s parents.
I have already made reference to the different roles each of these parents have assumed since their separation. The other significant issue is the mother’s unilateral relocation of the children in early 2013 to Western Australia. Despite her primary role as a parent, these actions of the mother show a distinct lack of insight into the needs of her children, the peculiarities of their various relationships, and, in particular, their relationships with their father and their culture. The mother is optimistic that the children would settle and adapt to their lives in Western Australia. The indications from the family report are not so optimistic. Whilst it is to the mother’s credit that she has encouraged the children’s involvement in their culture and has herself participated, she may underestimate the importance for these two young boys of those relationships. Significantly, the family reporter describes the fragility of X’s relationship with his mother. It is easy to draw a connection between this observation and X’s comments to the family reporter about the effect for him of previously being removed to Western Australia.
Section 60CC(3)(j),(k) – issues of family violence, including the children or their family and family violence orders.
These issues have been dealt with above.
Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.
Parenting matters involving a relocation bring many unknowns into the recipe. The issues and options for the Court here are not matters of degree. A refusal of a relocation will often be a denial of an adult’s freedom of movement. It raises questions, as in the matter now before me, whether the primary parent’s new relationships can endure and survive? Will the primary parent’s capacity be impacted to such a degree that their role as primary parent will need to be reconsidered? Alternatively, the relocation of the children will test the endurance of established relationships. The unknowns are many and realistically may lead to a further litigation. It is for the parties to understand that these courts do not aim at “optimum” or “ideal” orders. Rather, it is the task for the Court, on balance, to arrive at orders that are in the best interests of the children in the particular imperfect recipe provided.
Discussion and conclusions
The difficulties for Courts in the balancing process and those facing parents where a relocation of children is proposed is graphically highlighted in this matter. There are some clear advantages for the children and meritorious arguments on the mother’s case. She is the primary parent and, fortunately for these children, does not consider relinquishing this role. She is in a new, stable and clearly beneficial relationship with Mr J. They together have an infant child. The mother’s freedom of movement, therefore, comes to the forefront of my consideration. In all of those circumstances I should and I do give it considerable weight. Within this context I found Mr J to be an impressive individual who will bring many benefits to these young boys’ lives.
Secondly, I am satisfied generally that the mother’s proposal is a reasonably practicable one. These children have an attached and successful relationship with their father. It is a relationship of a particular and special nature to them. In isolation, I am satisfied that it could continue by way of block periods of time during school holidays, together with the assistance of media such as Skype, telephone, email and Facebook. The fact of the established attachment would, in my view, maintain the connection. The travel would be inconvenient and cause some expense. Neither factor, however, is prohibitive of the continuing relationship.
There would be some financial advantages vicariously for these children. The mother and Mr J could establish one household and one family unit. He has stable and well-paid employment in Western Australia.
There are, however, also advantages for these children to be considered on the father’s case. The nature of the relationship between the children and their father would change on the mother’s proposal. It does not now necessarily feature routine. It is event-based and often spontaneous. The fundamental nature of this relationship would change on the mother’s proposal.
I am satisfied that X’s strong preference is to remain in (omitted). The family report exposes a close relationship between X and his father and one perhaps developed by its very nature. The relationship between X and his mother is more problematic and may be further negatively impacted if orders are made contrary to X’s stated preferences. He is soon to be 10 years of age. Whilst the family reporters were not cross-examined, I am satisfied from reading those reports that there is an element of maturity and rationality in X’s expressed views and preferences. His preferences have the advantage of him having experienced life in Western Australia and away from his father and extended family.
Of real significance is these boys’ connections with their heritage and community. Again, the mother should take some real credit in the encouragement that she has given them in this regard and it is noteworthy that she has even participated herself. It is not, in my view, simply to consider the fact of Aboriginality to be determinative of children’s living arrangements. That is not the intention of the Act. That is not the tenor of the relevant authorities. The fact of Aboriginal heritage is just one factor among many to be attributed weight and balanced in the process of arriving at orders which are in the best interests of the children.
The affidavit evidence of both parents, Ms Z, the family reports, and the evidence of the parents and Ms Z in Court satisfy me that there is, in fact, a positive and beneficial involvement for these children within their Aboriginal community. Their father works in the community. Their extended family have historical involvement. The children have actual involvement throughout their young lives. It would not be an exaggeration to suggest that the focus of their education and cultural learning is through this Aboriginal community. Again, I prefer the evidence of Mr R over that of Mr P and I am satisfied that the specific peculiarities of these children’s community cannot be substituted by involvement in another community in Western Australia. This therefore, is the other consideration which assumes real weight and is to be balanced against the mother’s freedom of movement and continuing role as primary parent. I also place weight on the expressed views of X being to remain in (omitted) and the possible negative impact on his already fragile relationship with his mother of another relocation.
On balance, I am satisfied that the best interests of X and Y are served by them continuing to reside in (omitted). In doing so, I say again that I am impressed by the commitment and objectivity of Mr J. He candidly said that he would actively seek work in Victoria (not necessarily (omitted)) should the mother not be able to relocate her children. He presents as an altruistic and understanding partner for Ms Brent and as a beneficial role model for these children into the future. That commitment gives me cause for optimism that this relationship for the mother with Mr J will survive the inconveniences and pragmatic difficulties caused by my order. I would not have similar optimism for the children maintaining the important connections with their culture should the relocation be permitted.
I am satisfied that an order continuing equal shared parental responsibility is appropriate and in the children’s best interests and that a continuation of the interim time with orders is in the children’s best interests save than the mother and the children should have the opportunity for reasonable block time in school holidays in Western Australia if that need continues. Consequently, I will order that the children spend slightly extra time with the mother during those holidays although I am confident that these two parents will be able to be flexible and accommodating in all aspects of these boys’ various important relationships.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 30 April 2014
Key Legal Topics
Areas of Law
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Family Law
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Injunction
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Remedies
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