Clement & Clement
[2014] FCCA 1664
•31 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLEMENT & CLEMENT | [2014] FCCA 1664 |
| Catchwords: FAMILY LAW – Final arrangements for parenting of children aged thirteen and eight – parties have been separated since 2010 – children have lived predominantly with mother since separation – mother proposes planned relocation of children from (omitted) to Melbourne at start of 2015 school year – relocation opposed by father who seeks shared care regime centred on (omitted) – children well settled in (omitted) – mother has indicated she will not consider living in (omitted) beyond end of 2014 – mother wishes to pursue career and relationship opportunities in Melbourne – father unable to consider leaving (omitted) due to career and personal considerations – both parties are competent and well-resourced parents – parties experience conflict in their parenting relationship – children have secure and loving relationship with each parent – presumption of equal shared parental responsibility – court’s obligation to consider actively children spending equal periods of time with each parent – necessarily father’s preferred outcome necessitates either explicit or implicit restraint on mother’s freedom of movement – court’s authority to make such an order – what is reasonably practicable – consideration of section 60CC factors – adequacy of proposals for children to spend time with each parent – meaningful level of relationship – best interests. |
| Legislation: Family Law Act 1975, ss.60B; 60CA; 60CC; 61DA; 65DAA; 65DAC; 65DAE |
| A v A: Relocation Approach (2000) FLC 93-035 U v U (2002) FLC 93-112 KB & TC (2005) FLC 92-224 M & S (2007) FLC 93-313 Astor & Astor [2007] FamCA 355 B v B: Family Law Reform Act 1995 (1997) FLC 92-755 Russell & Russell & Anor [2009] FamCA 28 MRR v GR (2010) 240 CLR 461 C & S [1998] FamCA 66 AMS v AIF; AIF v AMS (1999) FLC 92-852 Goode & Goode (2006) FLC 92-286 Taylor & Barker [2007] FamCA 1246 Fragomeli & Fragomeli (1993) FLC 92-393 D and S V (2003) FLC 93-137 Godfrey v Saunders (2008) FLR 287 Morgan & Miles [2007] FamCA 1230 Mazorski v Albright (2008) 37 Fam LR 518 H v W (1995) FLC 92-598 R & R: Children’s Wishes (1999) 25 Fam LR 712 |
| Applicant: | MR CLEMENT |
| Respondent: | MS CLEMENT |
| File Number: | ADC 1902 of 2013 |
| Judgment of: | Judge Brown |
| Hearing dates: | 19, 20 & 25 June 2014 |
| Date of Last Submission: | 25 June 2014 |
| Delivered at: | Adelaide |
| Delivered on: | 31 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Horvat |
| Solicitors for the Applicant: | Mahoney's Lawyers |
| Counsel for the Respondent: | Mrs West |
| Solicitors for the Respondent: | DeGaris Lawyers |
ORDERS
The parties have equal shared parental responsibility for the children X born (omitted) 2000 and Y born (omitted) 2006.
The mother be permitted to relocate the children’s principal place of residence to the Melbourne metropolitan area.
The children live with the mother.
The children spend time with the father as follows:-
(a)Pending the children’s relocation to Melbourne:-
(i)from the conclusion of school Thursday to 6pm Sunday on each alternate weekend;
(ii)in the alternate week from the conclusion of school on Wednesday until Thursday at 7:30pm;
(iii)for one half of school holiday periods at times to be agreed;
(iv)for Christmas in accordance with paragraph 4(f) herein;
(v)at such other times as may be agreed between the parties.
(b)On two weekends following relocation in each school term at times to be agreed and upon the following conditions:-
(i)the father shall be entitled to nominate any weekend time occurring on a long weekend or a weekend in which a pupil free day is adjoining;
(ii)the father shall give notice of which long weekend at least six months in advance of such long weekend;
(iii)the father shall give notice of such times within fourteen (14) days of receiving written notice as to the children’s pupil free days;
(iv)the mother shall be responsible for the cost of return air fares to enable the children to travel to (omitted) on such occasions.
(c)For not less than one weekend in each school term to occur in Melbourne and the father shall give the mother at least twenty eight (28) days notice of same;
(d)For not less than twelve (12) days in each short school holidays with the children to travel by motor vehicle unless otherwise agreed by the parties;
(e)For not less than four (4) weeks of the Christmas school holidays at times to be agreed by the parties and with the children to travel by motor vehicle between the parties on such occasions;
(f)Each alternate Christmas with the father to have the children in his care for Christmas 2014 and each alternate year thereafter and the mother to have the children in her care in 2015 and each alternate year thereafter;
(g)Where the children are transported by motor vehicle handovers shall occur at a location as agreed between the parties and failing agreement to be in (omitted) Victoria;
(h)The father shall be at liberty to nominate the weekend upon which Father’s Day occurs as a weekend the children will spend in his care pursuant to paragraph 4(b);
(i)The father shall not nominate the weekend upon which Mother’s Day falls as a weekend in which the children shall spend time with him pursuant to paragraph 4(b);
(j)For the children’s birthdays as agreed;
(k)For the Easter period as agreed;
(l)On any occasion when the father is in Melbourne upon him providing not less than forty eight (48) hours notice to the mother;
(m)Such other times as may be agreed between the parties.
The parties ensure the children are able to communicate with each parent at any time they reasonably request and that the father be permitted to telephone the children on at least two (2) occasions each week and the mother shall facilitate the children receiving such telephone calls and the mother shall be permitted to telephone the children on at least two occasions each week during school holiday time and the father shall facilitate the children receiving such calls.
The parties communicate by email or text message with each other in respect to matters regarding the children’s routine health, development milestones, handovers, contact requests, travel information, educational issues and all such other information as may be appropriate to be communicated between the parties.
Each party do notify the other of any significant illness or injury to the children as soon as possible.
Each party is hereby authorised to communicate directly with the children’s treating medical practitioner, specialists and allied health professionals regarding the children’s physical and mental health and that each party is to keep the other informed of the names and contact details of such treating practitioners.
Each party do notify the other of their residential address, email address and contact telephone number forthwith, and keep the other party advised of any change to such address or contact number within forty eight (48) hours of any such change.
Each party is hereby authorised to receive copies of all school reports, newsletters, letters to parents and any other correspondence relating to the children’s education and is authorised to attend any school events which parents may reasonably attend, including but not limited to parent teacher interviews, open days, sports days and concerts.
Each party do not prevent any sporting club or association, music teacher, or any other social, musical or sporting group which the children may be a member of, from forwarding all reports, letters and other correspondence regarding the child’s sporting, musical or other activities, to the other party, and not prevent the other party from attending such sporting or musical events or practices, or prevent the other party from talking to any teacher, coach, team manager or group coordinator, to discuss the children’s sporting and musical activities or social activity with the other party.
Each party be restrained and an injunction be granted restraining each party from discussing any aspect of these proceedings with the said children, or allowing the said children to see any documentation filed in these proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Clement & Clement is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 1902 of 2013
| MR CLEMENT |
Applicant
And
| MS CLEMENT |
Respondent
REASONS FOR JUDGMENT
Introduction
This is what lawyers categorise as a relocation case. Relocation cases arise when one parent, very often for legitimate and understandable reasons, wishes to move far away, with the children concerned, from the other of the children’s parents.
The parent proposed to be left behind resists the move proposed because of the obvious implications it will have on the type of relationship that parent will have with the children, in future, if the move occurs.
Mr Clement “the father” and Ms Clement “the mother” are the parents of X born (omitted) 2000 and Y born (omitted) 2006.
X and Y are much loved and delightful children, who function well, both academically and socially. X has lived in (omitted) since early 2002, when her parents moved to the town after her father, who is an (occupation omitted), obtained a good job at the (employer omitted) nearby. Y was born in (omitted).
Currently both children attend (omitted) College, a highly regarded co-educational and (religion omitted) private school in (omitted). They engage in a number of extramural activities, including swimming, cricket and, in X’s case, (hobby omitted). They have many friends at their school. Undoubtedly both children are happy and well settled in (omitted). To all intents and purposes, it is the only life they have ever really known.
X and Y are fortunate in that they have two parents who love them dearly and who aspire to be as fully involved as possible in every aspect of their lives. Both the mother and father are competent and well-motivated parents, who are dedicated to ensuring that their children have access to every opportunity to succeed in life.
As such, X and Y are likely to grow up to become well rounded and emotionally secure adults. The family consultant, Ms D, who has reported in the case, describes the children as being “very loved, high functioning children, who are developing well”.[1] It is impossible to quibble with this description of X and Y.
[1] See Family Report dated 18 March 2014 at paragraph 58
The parties finally separated, in what can only be described as difficult and traumatic circumstances, in late 2009. It is now Mr Clement’s preference that the children should be parented in what is commonly called a shared care regime, moving between their parent’s respective homes, on a week about basis.
In his view, such an arrangement would ensure the children get the best each of their parents has to offer them. Necessarily this would require the parties to live in close physical proximity for the indefinite future. Theoretically, if the court considers it to be in the children’s best interests, it is open to it to make an injunction restraining each of the parties from removing the children from (omitted).
However the court has no specific authority to prevent Ms Clement from moving from the town. She, as a citizen of this country, is a free agent, entitled, as of right, to live in the location of her preference. Accordingly, to some extent, the optimal outcome envisaged by Mr Clement, depends on Ms Clement’s acquiescence to it.
Ms Clement now wishes to leave (omitted) and resettle herself in (omitted), on the outer eastern reaches of Melbourne. It is her case that she is deeply unhappy living in (omitted) and wishes to move on in her life. Ms Clement is a (omitted) by occupation. She wishes to be a (occupation omitted), something which would require her to move to a larger metropolitan centre.
In addition, Ms Clement has met a man, Mr G, who works in (omitted) Victoria. He cannot easily leave Victoria, where his employment has been both long term and secure. Ms Clement wishes to share her life with Mr G, whom she professes to love.
It is the mother’s case that the interests of both X and particularly Y will be best served if they continue to live predominantly with her. This has been the regime since the parties separated, now almost four years ago. If the children are to continue to remain in this arrangement, it must mean that they will move, with their mother, to Melbourne. Ms Clement’s proposal is that the move should occur from the start of the 2015 school year.
In one significant way, this relocation case raises an issue which is out of the ordinary. Very often a parent who wishes to move – invariably that parent is a mother – indicates to the court that, although it is her clear preference to move with any child concerned, she would not countenance such a move without the child, as to leave him or her behind would be contrary to the child’s best interests.
Accordingly, if the court ultimately determines that it is not in the best interest of the child to move away from the parent proposed to be left, she will not move, if it means that she can no longer be the child’s main provider of care. Essentially, it is position of such a parent that she would rather subjugate her personal aspirations to the needs of the child concerned than detrimentally deprive the child of her immediate presence in their lives.
This is not the case in this matter. Ms Clement has indicated to the court that she will be moving to Melbourne, at the start of 2015, whether or not the court authorises the relocation of X and Y with her.
It is her position that she is at the end of her tether emotionally and cannot cope with living in (omitted) for any longer than that. Accordingly she will be going to Melbourne, with or without the children, even if it means an outcome she believes is ultimately detrimental to them.
As such, although Ms Clement strongly believes it would be disadvantageous for the children to live predominantly with their father, in (omitted), she asserts that she will not be available to provide any alternative for the court, other than that they move with her to Melbourne or remain, in (omitted), in the care of their father.
She is thus, ostensibly at least, opposed to an equal time regime and has asserted that it cannot be a viable option for the court because she will not be in (omitted) to ensure its implementation. Accordingly, if the children are not permitted to move with her to Melbourne, the only alternative is that they live with their father, in (omitted).
Perhaps needless to say, it is also Mr Clement’s position that it is close to impossible for him to relocate, in tandem with Ms Clement, to Melbourne, to bring about the idealised parenting arrangement, for X and Y, to which he aspires. His reasons for this are a mixture of things practical and emotionally infused, particularly so far as Ms Clement is concerned.
Firstly the prosaic. By dint of hard work and application to his professional advancement, Mr Clement has secured a well-paid position at (employer omitted), which he enjoys. He is paid in excess of $200,000.00 per annum. (employer omitted) does not have a (business omitted) in Victoria, so he cannot seek a transfer with his current employer to that state. He would have to seek another position. He does not believe his current skill set is easily transferable.
In these circumstances, it is his case that it would be financially disadvantageous for the family for him to give up his well-paid position for an uncertain future, in which he would have to find an alternative position for himself. Furthermore he does not want to move. He is happy and well settled in (omitted).
Secondly, Mr Clement has recently married on (omitted) 2013. His current wife is Ms L. He and Ms L are expecting their first child together in October 2014. Like her husband, Ms L is a (occupation omitted). She graduated in 2000. She has been employed at (employer omitted), in (omitted), since 1998. She and Mr Clement are work colleagues, having met in 2002.
Ms L is also well settled in (omitted), where she was born in 1979. Her parents, grandparents, siblings, nephews and nieces, numerous cousins and no doubt her very many friends also live in (omitted). Ms L’s family have lived in (omitted) for five generations.
Ms L is also an accomplished (hobby omitted). In the past, she has been an Australian champion. (omitted) is apparently an important centre for (hobby omitted), in both South Australia and the entire country. Ms L has her own (business omitted) in the town and when she retires from (employer omitted), on the birth of her first child, which she intends to do, she proposes that she will earn her living from the (business omitted).
Prior to the parties’ separation, Ms L was X’s (hobby omitted) teacher. She was also regarded by Ms Clement as her friend and a friend of her family. She was a regular visitor to the Clement home, where she would instruct X from time to time. There is no dispute between the parties that Mr Clement and Ms L began an emotional involvement, with one another, during the parties’ marriage and this was the catalyst for the end of the marriage between them.
As I indicated to both Mr Clement and Ms Clement, during the course of the hearing, it is not the function of this court to attribute fault for the failure of the marriage between them. However, it would be naïve for me to think that I could ignore the fraught emotional topography, which the circumstances surrounding the parties’ separation created and which still reverberate for each of them, particularly Ms Clement.
Ms Clement is a staunch (religion omitted). I was told by her counsel that she regards marriage as a sacrament. I have no reason to disbelieve that statement given Ms Clement informed me that she attends church regularly. Ms Clement’s antipathy for Ms L during these proceedings was palpable.
Of Ms L, Ms Clement said as follows: “I don’t like her. I don’t like her morals. I don’t like what she did. I don’t think she is a good example for my family.” It is, I think, something of an understatement for Ms Clement to say of herself and Ms L “we’ll never be friends”. In my assessment, Ms Clement feels viscerally betrayed by a person whom she previously regarded as her emotional confidant.
At any event, it is Mr Clement’s position that, if his ties to (omitted) are strong, those of Ms L are adamantine and so effectively unbreakable. From Ms Clement’s perspective, her unhappiness in (omitted) and her desire to start afresh elsewhere are related, in part, to her emotional reaction to the end of her marriage and what has happened afterwards.
It is the submission of the mother’s counsel that Ms L has a high profile in (omitted), which is a fairly small provincial town. In those circumstances, it is submitted that it is fraught for Ms Clement to remain living in (omitted), particularly given her embarrassment at the prospect of running inadvertently into Ms L or her perception that her particular circumstances are the subject of comment amongst the town’s residents.
Mr Clement commenced these proceedings in May of 2013, following a somewhat tortuous process of mediation, which resulted in a series of parenting plans, which have never formally been mandated by the court. This process resulted in a regime in which the children spent alternate weekends in the care of their father, as well as each Wednesday evening and alternating Thursday evenings, during the school term along with substantial periods of each school holiday.
Accordingly, it is axiomatic that the father has been significantly involved with the care and parenting of X and Y in the relatively lengthy period since the parties separated. In these circumstances, he asserted that the time was now ripe to advance the time the children spent with him to one of equality with Ms Clement.
He also wishes, for readily understandable reasons, for the children to be closely involved in the birth of their half sibling later this year and thereafter for the three children to grow up together in essentially the same environment. Again, from his perspective, this can only occur if X and Y remain living in (omitted).
It is Mr Clement’s case that he and Ms L have proceeded cautiously in advancing their relationship together, so as not to unnecessarily upset X and Y or test their respective ties of loyalty to each of their parents unduly. As such, it is his case, readily supported by Ms L, that the children love Ms L and are comfortable in her presence and amendable to sharing a home with her.
Mr Clement is not so sanguine about Mr G. He does not believe that the children know him sufficiently well, as yet, certainly not for him to become an important person in their day to day lives. In this context, there is no controversy that neither X nor Y have any experience of sharing a domestic setting with Mr G for anything more than a few days.
In these circumstances, Mr Clement fears that, for the children to move from the environment with which they are intimately familiar in (omitted), into a new school setting, in which they will have to make new friends, overlaid with the need for them to adjust to a radically different domestic setting, incorporating a person who is relatively new to them, is, essentially, a recipe for disaster.
Ms Clement and Mr G met on the internet in 2011. They spoke frequently on the telephone but did not meet face to face until July 2013, when Ms Clement went to Melbourne for a conference. From the mother’s perspective, she wished to move slowly in the relationship and ensure that Mr G was a person who shared her values and was therefore an appropriate person to meet X and Y.
The children have now met Mr G and indeed two of his three children. They are teenagers – A and B, who live with their mother in (omitted). X, Y, A and B spent a portion of the end of year school holiday in 2013/14 together.
Mr G has another child. She is B who is aged four. B is a child of Mr G’s second marriage. She lives with her mother in Melbourne and sees Mr G currently, during the day, on weekends. As such, she has not as yet met X and Y.
Ms Clement formally responded to the application for shared care in August of 2013. She did not raise any application to relocate the children’s place of residence from (omitted) to Melbourne. Rather, in her answering affidavit material, she focussed on issues relating to the care of the children pursuant to the various parenting plans negotiated by the parties following their separation.
It was her position that she had cared for the children “72%” of the time, compared to the father’s “28%” in the period since separation. She also complained that the father prioritised his work commitments over his responsibilities for the children, something she was not in a position to do. The implication being that she was reliable in respect of care arrangements for the children, whereas Mr Clement was not.
In these circumstances, it was her position that the alternate weekend regime, interspersed with after school visits mid-week was working well for the children and there was no imperative for it to be changed. In addition, she complained that the father’s decision to move in with Ms L, at her home in (omitted), had been kept secret from her and the house itself was not suitable accommodation for the children to stay overnight.
Accordingly the original focus of the case was on the appropriateness of shared care for X and Y, within the legislative parameters provided by Part VII of the Family Law Act 1975, particularly in cases in which the presumption of equal shared parental responsibility applied and the court was mandated to consider actively an equal time regime [see sections 61DA and 65DAA].
It was only in February of 2014 that Ms Clement formally raised the prospect of her relocating the children interstate. By this time, the case had already been listed for trial and a family report ordered. Indeed, it was only on the actual day that the children were to be interviewed by Ms D that they learnt of their mother’s plans to move and were asked to indicate what their views about possibly living in Melbourne were.
Mr Clement is highly dubious about the mother’s choice of timing and the bona fides of her desire to move interstate with the children. It is his position that the mother has brought her application only to stymie his aspiration for shared care.
In these circumstances, he contends that the court must be dubious about Ms Clement’s apparent indication that she will go to Melbourne with or without the children. Essentially, it is his case that Ms Clement wishes to tie the court’s hands, so far as the relocation is concerned, presenting it with an invidious decision to be made, after having, by her apparent unequivocal assertion that she will be going to Melbourne regardless, removed the best outcome, for the children, from the table, namely an equal time regime in (omitted).
In support of his position, he points to the incontestable fact that Ms Clement has lived in (omitted) for well over a decade and has secure employment, in her chosen profession, in the town. In addition, she owns the parties’ former marital home. As a consequence, he asserts that it must be regarded as axiomatic that Ms Clement can function adequately in (omitted) and that she is being disingenuous about her true motivations for wanting to move.
It is Mr Clement’s evidence that Ms Clement dictated to him the terms on which he was to interact with the children in the period following the parties’ separation and unduly and unreasonably restricted his time with them. He went along with this, I infer, as a result of a combination of guilt and a desire to mollify her. But by the time of his application his patience was at an end.
On the other hand, it is Ms Clement’s case that she perceives Mr Clement dictates to her what is to happen with the children and, although not a bully, in the true sense of the word, is a person who is habituated to getting his own way. In this context, it is her case that Mr Clement makes unilateral decisions regarding the children and his desire for shared care is emblematic of his propensity to impose his will on others regardless.
Mr Clement concedes that the parties’ parenting relationship is far from perfect. However, he contends that it is not as bad as Ms Clement paints it. It is his case that the parties communicate reasonably well, mostly in electronic form. He asserts that Ms Clement has exaggerated the present difficulties, either in an attempt to frustrate his application for shared care or to bolster her desire to relocate with the children to Melbourne.
The nature of the parties’ relationship with one another is one of the central evidentiary issues in the case. As is frequently the case, in matters of this kind, both the father and mother see themselves as the victim of the other parent’s high handed and dictatorial attitude.
This difficult dynamic has arisen over many years, against a background of considerable emotional tumult. An important ancillary issue concerns the impact of the parties’ relationship with one another on the children themselves. Ms Clement believes it will be easier for the children if they are taken away from an environment in which their loyalty to each of their parents is constantly called into question.
Ms Clement acknowledges that both X and Y have a close and loving relationship with their father, whom they know well indeed. She believes that the relationship, which each child shares with the father, is strong enough to resist the vicissitudes of distance, provided the children see their father regularly, both during school terms and for extended periods in the holidays.
On the other hand, it is the father’s case that both children are flourishing in the current arrangement and will do better if they spend more time with him, rather than less. The underpinning of his position is that both X and Y are happy and well settled in (omitted), where they have many friends and a supportive regime of sport, extramural activities and access to a very good school.
As this introduction shows, this is a complex case, in legal terms. Because the primary emphasis, in children’s cases, is on the best interests of the children concerned [section 60CA], it is usual for an independent expert to be commissioned to provide evidence to the court about the needs of any children involved and, if appropriate, for the children’s views about an appropriate outcome to be canvassed.
As previously indicated, such a report was prepared in this case by Ms D, who is a psychologist. In general terms, whilst recognising the respective competency of each of the parents concerned, Ms D was not in favour of a week about arrangement for X and Y.
Rather Ms D reported her view that the parenting relationship between Mr Clement and Ms Clement was one characterised by negative dynamics. Ms D believed this dynamic was impacting detrimentally on the children, particularly Y, who has been described as being something of an anxious child.
In these circumstances, Ms D was reservedly in favour of the children remaining in the predominant care of their mother and of Ms Clement being authorised, by the court, to live with them in Melbourne.
The chief benefit of such an outcome being that Ms Clement would experience an enhanced sense of well-being, in the changed location, and this would have a positive flow-on effect in turn for X and Y, who were likely to benefit from being withdrawn from the immediate circumstances of the unpleasant dynamic between their parents.
Mr Clement does not accept Ms D’s recommendations and believes that she has underestimated the benefits the children derive from the stability provided by their current situation in (omitted). In addition, Mr Clement believes that Ms D has paid insufficient heed to the views of X, who was ambivalent at the prospect of moving to Melbourne, if not downright opposed to it.
Ms Clement believes Ms D has correctly evaluated the family dynamic. It is her position that Y is a particularly vulnerable child, who derives his main sources of psychological security from her. She would categorise X as a more emotionally robust child.
However, both parties agree that the children enjoy a close bond with one another and should not be separated. In these circumstances, Ms Clement asserts that, as Y’s overwhelming need is to remain in her care, it must mean that both children should relocate with her to Melbourne.
Ms D did not make her recommendations unreservedly. She acknowledged that the absence of Mr Clement from the day to day aspect of the children’s lives would be a great loss for X and Y. There can be absolutely no doubt that this is so.
Accordingly, there can be no outcome in this case, which will be satisfactory to all the parties involved and to all those who will be affected by the outcome, including X and Y. The various options available to the court, in the outcome of this case, cannot be manipulated like the surface of a Rubik’s Cube, to reach a perfect result.
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 children 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 children to maintain a meaningful relationship with both their parents, regardless of the state of the relationship between the parents concerned.
These proceedings are intended to resolve this dispute between the parties. However, no matter how the case is ultimately resolved, one party will inevitably feel harshly treated by the court’ decision. This, of itself, has the potential to drive further conflict between them, which will have ramifications for the emotional well-being of the children into the future.
If the children go to Melbourne, with their mother, Mr Clement will feel the outcome is wrong and that X and Y have been robbed of the opportunity to have an intimate relationship with him and their as yet unborn sibling, which is based on day to day domesticity and so is replete with meaning. In contrast, he will feel that the court has confined him to the artificial and limited role of being a holiday dad.
On the other hand, if I do what Mr Clement proposes, Ms Clement will feel her modest aspirations to pursue her career goals and be with the man she loves can be achieved only if she renounces her role as the main provider of care for X and Y. A role which she has hitherto discharged capably and unselfishly.
She will feel that her desire to move on with the next phase of her life and escape a place which has only unhappy associations for her has no validity, when compared to the aspirations of Mr Clement, who is not prepared to move and left her with the main responsibility of parenting the children, when it suited him.
In addition, both parties are likely to consider the outcome, which is adverse to him or her, is not truly influenced by a proper consideration of the children’s best interests. Mr Clement will perceive the children have been up-rooted from a secure and familiar environment. On the other hand, Ms Clement will perceive that the children have been deprived of their major source of emotional sustenance, in her, so as assuage the father’s aspirations.
I say this, at the outset, because I think it right to acknowledge the distress the resolution of the case will bring, regardless of what is its ultimate outcome. I hope that each of the parents will try to cope with the resulting situation, so that any difficulties for X and Y may be minimised and they will be able to maintain their hitherto excellent relationship with each of their parents in whatever new circumstances prevail.
For all the reasons I have summarised, this is a very difficult case, which presents no ready or obvious solution. However it is determined it will have significant deficits so far as X and Y are concerned. I must remain focussed on their best interests, which remain the court’s paramount concern.
The orders sought by each of the parties and the possible outcomes
Although she is not formally the applicant in these proceedings, Ms Clement has been regarded as dux litus, as it was she who initiated the relocation aspect of the case. She has proposed a complex raft of orders in the event that the children are living with her in Melbourne from the start of 2015 onwards.
In order to compensate the children for the loss of frequent interactions with their father, during school terms, she proposes that X and Y should spend two weekends, each term, in (omitted) with Mr Clement. It is hoped that these can be long weekends, whenever possible or occur in conjunction with a pupil free day.
Ms Clement would want Mr Clement to nominate the weekends in question well in advance. She proposes six months in terms of long weekends involving public holidays and fourteen days in respect of pupil free days. An important concession in respect of these intra term visits is that Ms Clement proposes that the children would travel by air between Melbourne and (omitted) and she would be responsible for the cost of the travel involved.
In addition, Ms Clement proposes that the children could spend one weekend per school term in Melbourne, with the father, on Mr Clement giving twenty eight days notice. These visits would be at the expense of Mr Clement. If he wished, Mr Clement could nominate the weekend of Father’s Day, as one of the intra-school term weekends he would spend with the children, either in Melbourne or (omitted).
In terms of the school holidays themselves, Ms Clement proposes that the children should spend twelve days of each short school holiday with their father, as well as four weeks of the end of year school holiday, subject to the sharing of the actual festive days of Christmas on an alternating yearly basis. So far as travel for holiday periods is concerned, Ms Clement proposes that this should be by road and the parties should exchange the children at a convenient mid spot. In this regard, she proposes (omitted).
The rationale of these proposals is that the children would be theoretically able to interact with their father, Ms L, their new sibling and indeed with their friends from (omitted) every few weeks or so, interspersed with generous time in the holidays. In this way Ms Clement asserts that X and Y will be able to maintain the intimacy and immediacy, which they currently enjoy in their relationship with their father.
As is the case with children of their ages and socio economic situation, X and Y are adept at the use of all manner of electronic communication devices. Ms Clement proposes bi-weekly telephone calls and is open to skype, webcam and the like.
Prior to the proposed relocation of the children to Melbourne, Ms Clement suggests that the children should spend an extended alternate weekend with their father, during school terms, from after school on Thursday until Sunday evening and in the other week of the fortnight from the conclusion of school on Wednesday until school re-commences the following Thursday.
Finally, Ms Clement proposes a range of uncontroversial orders which would mandate the exchange of information between the parties concerning parental information and authorise each parent to attend at school functions and the like. Significantly, there is no dispute between the parties that they should continue to hold equal and shared parental responsibility for X and Y.
Ms Clement has not delineated, with similar precision, the orders she would seek if the court determines that the children should not be permitted to leave (omitted). However, as indicated earlier, it is her permission that she will not remain in (omitted) to facilitate an equal time regime. In these circumstances, she would want the court to make analogous orders, in her favour, to those she proposes for Mr Clement, in the event she lives in a different state to the children.
Counsel for Mr Clement also provided a detailed memorandum of the orders sought by her client. His preferred position is that the children should live with each of their parents on a week about basis, during term time. As previously indicated, such an outcome is only achievable with the mother’s implied acquiescence. It is not open to the court to restrain Ms Clement personally from leaving (omitted).
In this context, the father proposes a curious order. He seeks that, if the mother is permitted to relocate to the Melbourne metropolitan area, the children live with him. As I am at pains to point out, the mother does not personally require the court’s permission to move anywhere.
The court’s authority rest in respect of parenting arrangements for the children. In these circumstances, it can theoretically restrain each of the parties from changing the children’s place of residence from (omitted) but not restrain a parent per se.
However, underpinning the father’s position is his desire that the court give the mother a choice. If she elects to remain in (omitted), he is open to shared care. If however, she persists in her plan to move to Melbourne, he proposes that the children live with him in (omitted) and spend time with their mother along similar lines to that proposed by the mother if the children are living predominantly in the Melbourne region.
Like Ms Clement, the father is willing to pay for the children to travel, by air, to Melbourne on two occasions each term and is open to the mother spending time with them, on one occasion each term in (omitted), at the mother’s expense. He is also open to the mother spending a larger proportion of each school holiday with the children.
However, he proposes that each party does one of the necessary drives to achieve this outcome. He suggests he would deliver the children to the mother in the Melbourne CBD at the beginning of each such holiday and the mother would return them to him, in (omitted), at the holiday’s conclusion. At an earlier stage, he proposed that the necessary handovers take place at (omitted) Victoria rather than (omitted) Victoria.
Mr Clement has not specified what orders he would seek in the event that the children live with their mother in (omitted). However, in oral submissions, his counsel indicated that he would accept the mother’s proposals in this regard. Otherwise, Mr Clement has analogous proposals to those of Ms Clement in respect of how the parties are to exchange information regarding the children.
In A v A: Relocation Approach,[2] a decision, which pre-dates the significant amendments to Part VII of the Family Law Act 1975, inaugurated by the Family Law Amendment (Shared Parental Responsibility) Act 2006, the Full Court of the Family Court indicated that, in a case involving a relocation component, the court should not dissect the case into separate or discrete issues in the following manner – firstly, who of the parties concerned should have primary responsibility for the children concerned and secondly, whether that preferred parent should be permitted to relocate.
[2] A v A: Relocation Approach (2000) FLC 93-035
In the case, it was held a parent wishing to relocate did not have to provide compelling reasons for the relocation, if the court found that he or she was the preferred parent to provide the predominant residence for any children concerned.
It is Ms Clement’s position, which she asserts is supported by Ms D, that she is clearly the preferable parent to provide the children’s main place of residence and discharge the majority of parental duties for them. She wishes to do this in Melbourne.
In this context, she submits that it is not appropriate for the court, if it finds that she is indeed the preferable parent and confirms the arrangements for the care of X and Y, which have existed post separation, to then turn to a determination of whether she should be permitted to do this in Melbourne, particularly given that her reasons for wishing to move are rationally based and her proposals for the children to spend time with their father are adequate.
Mr Clement approaches the case from the perspective provided by the Shared Parental Responsibility Legislation. It is his case that the legislation mandates the court to consider, in an active fashion, any child or children concerned spending either equal periods or substantial and significant periods of time with both the parents concerned. This necessarily may involve the bifurcation of the case concerned into discrete issues regarding the relocation issue and the parenting arrangements arising under section 65DAA of the Act.
It also the underpinning of his case that Ms Clement’s protestation that she will be going to Melbourne, come what may, is mere sound and fury and when confronted with the prospect of either having a shared parenting regime in (omitted) or having to leave (omitted) without the children, she will choose the former option.
The problem with this option is that it erodes, to a state of practical non-existence, any notion relating to Ms Clement’s freedom of movement. In addition, it may render otiose the requirement for the court to evaluate who of the parties is better equipped and placed to parent the children in a total sense.
This was the difficulty to which the court alluded in A v A. It may be seen as illogical to determine that a parent is better placed to provide predominate or substantial care of a child, but only in one particular place. As a matter of logic, if that parent is the preferable parent, he or she remains the preferable parent, irrespective of location.
Essentially, it may be unpalatable for the court, having determined that one parent is the preferable parent, to have to contemplate an outcome which is seen to be inferior for the children concerned, in order to engineer an optimal outcome. In this case there are three conceivable outcomes:
·Shared care in (omitted). This can be achieved only if Ms Clement agrees to abandon her aspirations to live in Melbourne;
·The children live in Melbourne, with their mother, and spend time with their father as contemplated by Ms Clement and reluctantly endorsed by Mr Clement;
·The children live in (omitted) with their father because the mother will not renounce her plans to relocate.
The optimal outcome from Mr Clement’s perspective is the first. If the mother is truthful in what she says, it can only be achieved through a process of compulsorily engineering the mother to abandon her plans, even if the court considers option two more likely to be in the children’s best interests than option three, if option one is unfeasible. In effect, to achieve option one by imposing option three, as an alternative, may be seen as an exercise in jurisprudential sleight of hand.
On Mr Clement’s case, if Ms Clement prioritises her own aspirations, she can do so only at the price of surrendering her previously preeminent role in the parenting of the children, regardless of whether the court considers X and Y’s interests will be better served by them living with her as opposed to their father, in the longer term.
The problem with this course is that it runs the risk of the court being hoisted on its own petard. If it mistakenly accepts Mr Clement’s assessment of his former wife’s likely course of conduct, (she will ultimately choose to stay in (omitted)) it may mean that, in attempting to engineer the statutorily endorsed and theoretically optimal outcome, it will be left with the least attractive outcome for the children because Ms Clement turns out to be as good as her word.
This unpalatable outcome may be intensified by the fact that the court has given no consideration to the prospect of Mr Clement himself moving. He is not presented with the same invidious choice he presents to Ms Clement and the court. This may be seen as fundamentally unfair or even sexist.
However, to play the Devil’s Advocate, if the court meekly accepts what Ms Clement says, it will not be in a position to know whether she was, in fact, genuine in what she said about moving regardless. In these circumstances, it is Mr Clement’s position that the court will have allowed itself to have been manipulated by Ms Clement and enabled her to get her own way, at the price of the children’s best interests.
Accordingly, each party says that the other is attempting, to some degree or other, to manipulate the situation and force the court’s hand. For obvious reasons, there are perils implicit in such exercises in brinkmanship.
In U v U[3] the High Court indicated that a first instance court was obliged to give careful consideration to the proposed arrangements put forward by each party, but was not specifically bound by them.
[3] U v U (2002) FLC 93-112
As the best interests of the child concerned remained the paramount consideration, it was incumbent upon the court to investigate the possibility of the other parent moving to be closer to the child concerned, rather than necessarily first considering restraining the parent who wished to relocate the children from moving.[4]
[4] U v U per Hayne J at 89,103
This was so because proceedings concerning the welfare of a child are not exclusively adversarial proceedings. Accordingly, the court could examine outcomes, independent of the positions primarily put forward by the parties themselves. This was said to be a prelude to the “deeper inquiry” of what will best serve a child’s best interests.
One conceivable outcome in the case, which is not advocated by either of the parties, is some form of moratorium on the decision required to be made in the case. The chief benefit of this would be that it would allow further time to ascertain the resilience of the relationship between Ms Clement and Mr G and investigate whether he could relocate closer to South Australia.
However, this does not seem to me to be a realistic consideration for the court. To my mind it would serve merely to delay the inevitable decision, which must be made and, in so doing, heighten rather than diminish the significant level of tension between the parties. It is, I think, naïve for the court to adopt a micawberish position and hope something will turn up in the meantime. Such an approach would also be fundamentally unfair to Ms Clement.
Just as the court cannot restrain Ms Clement personally from leaving (omitted), so to it cannot compel Mr Clement to up-root himself from his job, home and life in (omitted). In these circumstances, neither party regards it as a realistic option that Mr Clement relocates to Melbourne, in tandem with the mother and children. I accept that there are too many barriers in the way of such an outcome, not the least of which is Mr Clement’s job at (employer omitted) and his relationship with Ms L.
Accordingly, a significant issue in the case is an assessment of how genuine is Ms Clement in her assertion, to the court, that shared care is a non-starter, as she will not be available in (omitted) to facilitate it. If the court accepts her protestations in this regard, there will only be two major options available to the court, which will have to be gauged and assessed according to the criteria provided by section 60CC of the Family Law Act.
The balancing of these various considerations has been described by Warnick J as both “a delicate interplay of concepts” as well as “an imbroglio of principles." [5] In dealing with this particular case, I think I must guard against becoming unduly bogged down in legal considerations. Rather I must remember that every relocation case is unique and turns upon a consideration of all the circumstances prevailing in it.
[5] See B v B [2006] FamCA 1207 (delivered 15 November 2006) at paragraph 1.
Courts, such as this one, have also recently been cautioned about applying a too formulaic approach to relocation cases. Rather, it has been said that the proper approach is to weigh and assess each of the competing proposals of the parties, against the yardstick provided by section 60CC and consider all the other relevant factors, including the right of freedom of movement of the parent, who wishes to relocate. However the court must always bear in mind that ultimately the decision it makes must be the one which is in the best interest of the child concerned.[6]
[6] See KB & TC (2005) FLC 92-224 at 79,699
The recent amending legislation has not specifically prohibited a parent relocating with a child because such a move will have implications for the nature of the child/parent relationship with the other parent concerned nor has it imposed any special onus on the parent wishing to relocate.[7]
[7] See M & S (2007) FLC 93-313 per Dessau, J. at 81,386
The Evidence
The parties themselves, Ms L, Mr G and Ms D were the only witnesses, who gave evidence in the proceedings. In terms of the parties, both Ms Clement and Mr Clement seemed to me to be individuals of the highest integrity. As such, I found both of them to be completely honest in the testimony which they provided to the court.
Necessarily however, there were differences, of a minor nature, in the accounts each provided to the court. These differences were ones of emphasis and perception rather than of factual discrepancy. The major areas of dispute concern the following:
·Who of the parties has historically provided more of the care for the children and what significance has this had for the emotional wellbeing of the children;
·Who of them is more responsible for the problems which have arisen in their post separation parenting relationship, particularly in term of deficits in communication;
·Is Y a particularly anxious little boy. If so, what are the causes of his anxiety;
·What were the circumstances surrounding a disclosure X made to a family consultant, in November of 2013, that her mother had subjected her to physical abuse.
The issues in this case are subtle and have arisen over a number of years. It seems clear that the parties’ relationship, particularly in its latter stages, was unhappy and no doubt riven by tensions. The mother remains extremely bitter about the circumstances surrounding the end of the parties’ marriage.
The father believes that he has attempted to mollify the mother enough and she remains unrealistically fixated with the past and her animosity for him. He believes that it is time for all to move on and put the past behind. In such circumstances, he asserts it would be both unrealistic and unreasonably utopian to expect them to have a perfect relationship, with one another, now. From his perspective it is however as functional as it is ever going to get and he personally is well-motivated to doing whatever can be done to ameliorate it.
These are high stakes proceedings for both the mother and the father and both have invested much in them, in both emotional and financial terms. The extreme emotions created by such proceedings are likely to blur perceptions and recollections of past events. Each party is likely to feel hard done by at their mutual shared impression that they are the victim of the other parent’s unreasonable, selfish and capricious attitude.
In the mother’s case, she perceives that she has always sacrificed her career and her aspirations for the sake of initially her marriage and then more recently for the children. It is her view that the father has made no sacrifice of an equal magnitude to hers, but has always wanted more of her. Accordingly, she sees the father as self-absorbed and unduly demanding – essentially always wanting his way, at her expense.
She does not believe that he truly appreciates what she has done for the children, but nonetheless would still want to rob her of the opportunity to be happy and to continue on in her role as a self-less parent for X and Y. The application for equal time comes as a final straw of indignity for her.
The father sees the mother as a capricious self-styled martyr, who always aspires to have the upper hand over him, in respect of the children. He is willing to forget the past, but she will not. In these circumstances, he has become tired of trying to mollify her. From his perspective, whatever he does in respect of the children is likely to be open to some form of criticism.
He is damned, in her eyes, if he does something in respect of the children and damned if he does not. He perceives that any attempt to open communications with the mother about the children is likely to receive the cold shoulder from her. As such, he sees the mother as locked in the past and inherently unreasonable.
In these circumstances, Mr Clement believes that the mother’s desire to move to Melbourne is confected and is motivated by her wish to have a position of ascendancy over him in respect of the children. From his perspective, it is axiomatic that it is best for the children to continue to live in (omitted) indefinitely. He cannot understand why the mother (and indeed Ms D) does not share his view, which he regards as obvious.
Ordinarily, a court, such as this one, should refrain from making adverse comments about a parent in the proceedings before it, unless it is specifically necessary to do so. It does not help children if the relationships between those who are influential to their care are inflamed by hurtful findings of fact, as a result of the court process itself.
I am well aware that it is difficult for me to form an accurate appraisal of the respective motivations of each of the parties in this case through the imperfect tool of assessing evidence provided in the artificial (and to many, intimidating) confines of the witness box and through the reading of formal and often professionally prepared affidavits. However these are the only tools I have.
The dynamic of the parties’ relationship is extraordinarily difficult and fraught with powerful emotion. In my view, the relationship is unlikely to change significantly in the foreseeable future, if at all. It is in fact to the great credit of the parties themselves that it is has not had more detrimental implications for the well-being of their two children. The evidence indicates that each of them has been able to control their emotions and resentments satisfactorily over the years of their separation. This is to their mutual and abiding credit.
In these circumstances, although it may smack of judicial abrogation, it is my finding that both parties’ perceptions of the other are true and validly held. As such, it is not helpful to find one parent is reasonable and the other is not. Individually, they are fine and decent people. In tandem, they are problematic. The problems arising between them being a consequence of the unresolved and perhaps unresolvable emotions unleashed by their separation.
This difficult situation cannot be ascribed to the failings of one of them rather it is as a consequence of their shared circumstances. From time to time, no doubt, with the benefit of hindsight, each party could have behaved in a more conciliatory fashion towards the other or communicated more effectively. But that would be to ascribe to each of them almost Olympian reserves of equanimity, like all ordinary human beings, neither of them possess. They now find themselves with little in common, apart from their children.
As a consequence of their separation, the parties now no longer like each other. In combination, their parental relationship presents problems and will always have an aspect in which they seek to achieve some form of advantage over the other. In my view, one character trait, which the parties share, is a steely determination and self-will.
To some extent the parties now have different parenting styles. The mother is a somewhat conservative person, with a strict code of moral conduct. The father and Ms L are perhaps a little more permissive. Recently X had access to Ms L’s iPad and discovered an app which related to Ms L’s pregnancy. For obvious reasons, this is likely to be a somewhat sensitive issue.
Ms Clement was horrified at what X had done and referred the matter to the police so that X could be counselled about hacking. From the father’s perspective, this was something of an overreaction. Necessarily, in the period since the parties separated, they are likely to have moved further and further away from one another. As will become clear, in due course from these reasons for judgment, the parties have little, if any, scope to adopt a common strategy in respect of a wide range of issues pertaining to their children.
However, in my assessment, the parties are likely to have more things in common with one another, particularly so far as their children are concerned, than things about which they disagree about. They both aspire to have happy, well-parented and well-adjusted children, who will achieve their full potential as adults.
Apart from the issue concerning the iPad, their values seem to be generally more complementary than not. I have also no doubt that they each wish to protect their children from the worst aspects of the dispute between them.
In all these circumstances, it is my finding that the mother has not capriciously manufactured her desire to relocate to Melbourne. It is likely to have been percolating in her mind for some time. I accept that (omitted) is a place for her, which now has only unhappy connotations. Although I suspect that there is some connection between the timing of her application and the filing of the father’s application for shared care, I do not believe that her actions can be regarded as malicious in any way.
I regard the mother to be a person of scrupulous honesty. She is also a person of high intelligence. Although her assertion that she will go to Melbourne regardless of the result of this case smacks of being a tactical ploy, I do not regard it as such. In this respect, I do not think her tears, when I asked her to consider how Y would cope without her, were feigned.
In my assessment, the mother is a self-less parent. However, I do not doubt her evidence that she has had enough of (omitted) and will quit it when she can, regardless of whether X and Y come with her or not. This is not an idle threat. The mother sees herself at a cross roads in her life and she has decided the direction she will take.
When I come to discuss the legal principles applicable in this case with more forensic rigour, I will allude to some comments made by Gaudron J, which relate to how courts might subconsciously approach relocation issues, when raised by mothers. It is sometimes said that it is part of the duty statement of being a parent that one will subjugate one’s personal aspirations and desires to what is seen to be best for one’s children. That is what it is to be an ideal parent or mother.
In this context, it might be actively or tacitly perceived to be selfish of Ms Clement for her to assert that she will be going to Melbourne regardless of where X and Y are to live and notwithstanding she believes that such an outcome will be positively detrimental for Y, in particular, as it will render him deprived of the essential emotional resource of day to day access to her.
I do not regard the mother as an inherently selfish person. To the contrary, I regard her as a fine and self-less parent. Although she is prepared to countenance leaving the children behind in (omitted), this, in my eyes, does not render her a substandard parent. I consider that I must be careful not to adopt a stereotypical attitude as to what it is to be a proper mother – that is such a parent is required to soldier on regardless with a stiff upper lip if that is perceived to be the right thing to do for the children concerned.
In addition, just because Ms Clement has opted for her ultimate relocation as a non-negotiable outcome in this case, I must be careful not to discount the value of the bond between the mother and X and Y, from the children’s perspective, on the basis of any subconscious notion that the mother’s conduct indicates that she does not value it. After all, I do not discount the value of the children’s connection with their father, notwithstanding the fact that he is not prepared to relocate to Melbourne.
In this context, I also accept the mother’s evidence that she regards an outcome in which the children remain in (omitted) to be potentially very adverse for them, particularly for Y. To my mind, this is testimony to how strong the mother’s desire to leave (omitted) is. I do not consider that she is attempting to manipulate either the father or the court in this regard.
Ms Clement cannot be regarded as a wealthy person. She is likely to be frugal in her approach to life. I also regard her as a person of her word. If she has pledged that she will bear the costs of the children flying between (omitted), Melbourne and return, she means it and can be relied upon. This is a most significant finding in the circumstances of the case.
(a) Background
The parties are the same age, being now both in their early forties. They have known each other since they were young adults, having met in New South Wales in 1991. Neither is originally from (omitted). The mother’s family is from (omitted) New South Wales. The father is originally from (omitted) New South Wales. He has family in (omitted) New South Wales.
Both the father and the mother have professional qualifications. The father is a (occupation omitted), graduating in 1994. More recently, he has obtained an (qualifications omitted), which was conferred in 2004. The mother is a (occupation omitted). Her degree was conferred in 1994. They became engaged in the year of their graduation.
The parties married in (omitted) on (omitted) 1996. At the time, the father was working as a (omitted) at the (employer omitted) in (omitted) New South Wales and the mother was a (occupation omitted) at the (employer omitted).
(Employer omitted) in (omitted) was shut down in 1997. The father was able to obtain a transfer, with (employer omitted) New South Wales, to (omitted) in Western Australia. He was fortunate to be able to obtain a temporary secondment, to a facility in (country omitted), for a period of three months, which coincided with the start of his job in Western Australia.
The mother resigned her position in (omitted) New South Wales and, after a period of time with her parents in (omitted) New South Wales, followed her then husband to Western Australia, where she was able to obtain a position as a (occupation omitted).
The mother’s position is that she was not happy living in Western Australia where she felt isolated. Her difficulties were compounded by the fact that she suffered a miscarriage of twins in 1999. Whilst grieving, she was prescribed anti-depression medication. There is no controversy between the parties that Ms Clement has a propensity towards depression, having been first diagnosed in 1994, in the context of a stressful workplace.
Happily, Ms Clement was able to fall pregnant with X not long after. She was born in (omitted) Western Australia. Ms Clement took twelve months maternity leave following her birth in early 2000. Again, Ms Clement asserts that she found it difficult being a young mother in Western Australia and deposes that she suffered reactive anxiety but coped with the assistance of a local mother’s group, friends and colleagues from her work.
In early 2002 the father successfully applied for a position, as a (occupation omitted), with (employer omitted), at its (omitted) at (omitted) South Australia, near (omitted). The parties now disagree about the circumstances surrounding the move. From the mother’s perspective, it was foisted upon her without any consultation. From the father’s perspective, Ms Clement was happy to move because it meant she was closer to her family in (omitted) New South Wales.
It is not necessary to resolve this controversy in the context of the current proceedings. However, it is a flavour of the mother’s case that her career and professional aspirations were always subordinate to those of the father, during their marriage. In these circumstances, it is her position that her aspiration to be a (occupation omitted), at a large (employer omitted), is a readily understandable one.
At any event, the parties, with then one year old X, moved to (omitted), purchasing a house at (omitted), which the mother continues to occupy, in April of 2002. The mother’s evidence is that it took her some time to find a suitable (occupation omitted) position in (omitted).
After some time, she obtained a position as a (occupation omitted) at (employer omitted) in April 2003. Prior to obtaining this position, she also obtained casual work as a (omitted), contributing the income she earned from this to family purposes.
In 2004, Mr Clement began to study for his (qualifications omitted) through (omitted) University. He continued to work. It must have been a busy time for both parents. Y was born in early 2006. Again the mother took extended maternity leave.
It is her position that she was the children’s main provider of care. The father asserts that he was a hands on parent, who regularly collected X from child care and prepared her evening meals, in order to assist the mother, whilst she was engaged in parenting the newly born Y.
In 2007, Mr Clement was offered a year-long secondment, at a (employer omitted) in (country omitted). In response to this offer, Ms Clement took a year’s leave without pay, from her position with (employer omitted), which she added to her maternity leave. However, she was not able to work in (country omitted), as her qualifications were not recognised by the (country omitted) authorities.
Accordingly, during the family’s year long stay in (country omitted), Ms Clement was engaged in home duties. Again, Ms Clement points to this period in support of her assertion that her career aspirations were subservient to those of the father.
It is her case that she was always willing to go to wherever Mr Clement’s career took the family. It is also her position that it was also taken as a given, between the parties, that she would always be available to parent X and Y, so that Mr Clement could pursue any career opportunities and remain the family’s main breadwinner.
The family returned to (omitted) in 2008. It had been a condition of the mother’s leave of absence from her job that she return to her full time position, which she did. In these circumstances, X was enrolled at (omitted) College and Y was placed in child care. At this stage, Mr Clement was promoted to the position of (occupation omitted) at the (employer omitted) outside (omitted).
Up until this point, without in any way wishing it to be taken in a pejorative sense, it is my finding that the parties had a conventional marriage. Mr Clement’s career was important. He was the family’s main source of financial support. As such, it was important that he remained in well paid employment, so that the family could be financially secure. Ms Clement’s career was also important, but it was also accepted that she would be the family’s main homemaker, particularly when the children were young.
Mr Clement describes himself as a committed parent, who has a deep sense of responsibility towards his children. I accept that this is so. He is resentful of the suggestion made by Ms Clement that she has always been the children’s main caregiver. In some ways it is fatuous for me to attempt to rank the parties’ parenting roles in the period from when they first arrived in (omitted). In my view, both performed indispensable roles in maintaining the welfare of their family. As such, neither can be described as a passenger in the relationship.
I accept that Mr Clement sees himself as a modern parent, who was motivated to do as much nuts and bolts parenting of X and Y as he could. However, it seems to me to be more likely than not that Ms Clement was the parent who was more available to the children and so performed more of the routine but intimate parenting of the children. This was a necessary corollary of how the parties had divided their responsibilities towards the family.
The marriage between the parties fell into difficulties in late 2009, early 2010. The father left the former matrimonial home in February 2010. He has not entered it since. The father’s involvement with Ms L coloured the separation. It was not an amicable separation. Nonetheless the parties were able to agree on a parenting plan in respect of the children in February 2010.
From the father’s perspective, this first parenting plan was unduly restrictive on his time with the children, particularly in terms of the persons who could come into contact with the children. It is likely that he agreed to the plan both in order to try and mollify the mother and perhaps out of a sense of guilt. In particular, the plan imposed conditions regarding the children coming into contact with Ms L.
The plan provided for the children to spend three weekends per month with their father, as well as time on Wednesday and Thursday evenings. Mr Clement was also to take X to her swimming lessons on Fridays. Although, Mr Clement may have perceived the plan to have been weighted in Ms Clement’s favour, in my view, it cannot be said to be anything other than child focussed. For obvious reasons, the involvement of Ms L in X’s (hobby omitted) was likely to be a sensitive issue.
Accordingly, in difficult circumstances, the parties were able to agree on a reasonable and child focussed plan for the care of X and Y. It recognised that both parties were in full time employment. It also made allowance for Mr Clement to continue to pay the children’s school and kindergarten fees and other expenses, including child care fees.
Accordingly it cannot be said that Mr Clement has ever abrogated his financial responsibilities towards the children. However, to some extent, both the parties are likely to view how the other has discharged financial responsibilities, for the children, through a prism of hostility.
In February 2011 the parties began negotiations in respect of a second parenting plan, which was ultimately finalised in September of 2011. Ultimately it was agreed that the children would spend time with their father on alternate weekends from after school on Thursday until the Sunday at 5.00pm and in the intervening week on Thursday from after school until 8.00pm and on each Wednesday from 5.00pm until 8.00pm.
From the mother’s perspective, this was a good arrangement for the children. From the father’s perspective, it did not allow the children to have sufficient time with him. The parties had been in negotiation for a third parenting plan. This has been prepared in draft but never formally ratified. It seems to be Mr Clement’s apprehension that Ms Clement dictated terms to him, rather than vice versa. He wanted to have a longer and unbroken period of time with the children.
On 26 October 2011, the parties were divorced. It is the father’s position that following separation, he did not pursue any relationship, other than one relating to their mutual employment, with Ms L. However following the divorce, he began to see Ms L socially. A matter which he approached cautiously so far as the children were concerned.
Ms Clement describes the parties’ parenting relationship with one another, between separation and early 2013, as being relatively uneventful. It was characterised by lengthy email correspondence but few, if any, face to face exchanges. The parties were thus able to make mutually satisfactory arrangements for holiday and special occasions, involving the children.
To her credit, Ms Clement acknowledges that Mr Clement has been significantly involved in the children’s education since separation. Mr Clement is also very involved in the children’s swimming club, which is important to X in particular. He has also taken X to a (omitted) in Victoria.
Ms Clement has also been actively involved in the children’s extramural activities. She has been the treasurer of X's (hobby omitted) and provides (omitted) advice to the swimming club. She too has taken X to many (hobby omitted) and competitions. As I say, each of the parents is a committed and well-motivated parent.
This was the background to the father commencing the current round of proceedings, which he did on 31 May 2013, seeking a week about shared care regime based on a routine starting each Monday. It was his case that the process of mediation had broken down because Ms Clement was essentially unreasonable and imposed a double standard on his behaviour when compared to her own. It was also his perception that she was unreasonable in her demands for continuing financial support for the children.
At this stage, it was his position that both children had expressed a wish to have such a regime. He further stated that his employment was sufficiently flexible to support shared care, particularly if he had the assistance of Ms L. He deposed as follows:
“I believe that this is in the best interests of the children both short term and long term and for their development as in my view it is important for the children to have as much time with both parents to ensure that they develop and fulfil their lives in a normal family setting.”[8]
[8] See father’s affidavit filed 31 May 2013 at paragraph 32
There seems little doubt that Ms Clement did not respond well to this application, which she regarded as tactless and premature. In her trial affidavit, she asserted she experienced a lack of trust in Mr Clement as a consequence of what she described as the stress and pressure occasioned by court proceedings. It is her evidence that the inauguration of the proceedings led to a marked deterioration in the parties’ parenting relationship.[9] She disputed that the children had ever indicated a desire for week about.
[9] See mother’s affidavit filed 22 May 2014 at paragraph 27
(b) Ms L
As previously indicated, Ms Clement holds a dim view of Ms L, which is unlikely to ever change. This situation is likely to create a difficult dynamic for all concerned, including X and Y, who are likely to be well aware of their mother’s feelings towards Ms L.
Ms L presented as a pleasant and insightful person. She has no wish to exacerbate any difficulties between her and Ms Clement and aspires only to have a quiet life. Ms L has known the children, particularly X, for many years. She indicated, in her evidence to the court, her awareness of the fact that the children are well aware of the tensions between their parents and can become anxious when they are together.
Ms L deposed that the mother and she occasionally come into contact with one another at (hobby omitted) events. On these occasions Ms Clement does not speak to or acknowledge her and the children decline to make eye contact. Ms L suggested that the mother hisses or groans at her. From which behaviour she deduces, quite obviously it seems to me, that interaction between her and Ms Clement “should be kept to a minimum”.[10]
[10] See Ms L’s affidavit filed 5 June 2014 at paragraph 16
I accept Ms L’s evidence, which is supported by Mr Clement that she and the father adopted an extremely cautious approach to re-introducing the children to Ms L, after the two resumed their relationship. This is to their mutual credit and it has paid dividends. I accept that the children are now very comfortable with Ms L and enjoy spending time with her.
This is not to say that there has been any great resolution of the difficulties implicit in any interactions between Ms L and Ms Clement. It seems likely that the children are well aware of the tight rope they must walk and are well aware of the tensions between their mother’s household and that of their father and Ms L, between which they must frequently transition.
When X was first re-introduced to Ms L, she ran away and presented herself at the local police station. The father believes that the mother engineered this crisis, in some way, and precipitated X to act out the mother’s own hostility for Ms L.
From my perspective, it is difficult to know precisely why X did what she did. Her feelings of loyalty to her mother are one possible factor amongst many. What is clear is that the parties did not approach the issue with any common strategy, as the mother collected X from the police station, without reference to Mr Clement.
Mr Clement acknowledges that he did not disclose to Ms Clement the fact that he and Ms L had resumed a relationship. I can understand why it would be extremely difficult for him to do so. No doubt he was anxious at the possible reaction such a development would precipitate in Ms Clement.
In his words, he and Ms Clement “share a dysfunctional relationship [as she, Ms Clement] feels let down by myself”. In this context, Mr Clement acknowledged that Ms Clement was a devout (religion omitted), who regarded marriage as being for life. As previously indicated, Ms Clement continues to evince considerable bitterness towards Ms L in this context.
I accept the evidence of Mr Clement and Ms L that the issue of the children spending overnight time at Ms L’s home at (omitted) was approached conservatively. Ultimately it was Mr Clement and Ms L’s decision that her home was the more suitable one. Again it is acknowledged that Ms Clement was not advised that the children would be overnighting at the property.
This is a subject of some criticism by Ms Clement, who complains that she was only informed tangentially, by email, that X was to be picked-up from the property concerned. With the benefit of hindsight, the issue could have been more tactfully dealt with by the father. I can understand his reluctance to deal with the issue more frankly. Again the issue is emblematic of the ever-simmering tensions between the parties concerned, which inevitably must impact upon the children concerned.
In this case, it is not a realistic option that there be different arrangements for Y on the one hand and X on the other. Accordingly, Y’s significant need to remain in his mother’s predominant care must be influential so far as arrangements for X are concerned. At any event, as previously indicated, although X clearly recognises the down side of moving to Melbourne, from her perspective, she is also acutely aware of the implications of being separated from her mother.
Ms L is likely to be an attractive and charismatic figure for the children, particularly X, who will identify strongly with her. X and Y have known her now for very many years. They both love her very much and approve of her relationship with their father. To the credit of everyone involved, there is no suggestion that the children have been under any pressure to align one way or the other. I am satisfied that the relationship between the children and Ms L is a natural, spontaneous and positive one.
In these circumstances, it represents a significant deficit for the children to have Ms L removed as a daily figure in their lives, particularly as she is pregnant with their half sibling. In an ideal situation, it would be highly desirable that X and Y be able to engage with their new brother and sister from the time of the child’s birth and in the period afterwards.
However, the situation between the parties is not ideal. They have been separated for a significant period of time. One of the functions of the family law legislation is to provide divorced former spouses with mechanism to separate their lives, both financially and as parents. Necessarily, Ms Clement was not involved in Mr Clement and Ms L’s decision to start a family together. Similarly, if Ms Clement and Mr G decide to have a child together, this will occur independently of Mr Clement and Ms L.
Accordingly, in my estimation, the pull of the as yet unborn child cannot be a significant factor in the determination of this matter. The relationship X and Y will have with the child is inchoate. I respect, of course, Mr Clement’s understandable aspiration that the three children, who will be united by ties of blood, have as close a relationship as possible.
Again, it seems to me, X and Y will have an adequate opportunity to have a meaningful relationship with this child, regardless of whether they live predominantly in (omitted) or in Melbourne from 2015 onwards. This opportunity may not be the perfect one, but it will most likely be sufficient, given the fact that the paternal and maternal aspects of their family are separated.
In my assessment, the children’s relationship with Mr G and his children is far less assured than that which the children enjoy with Ms L. This is not due to any fault on Mr G’s part. Rather, it is a reflection of the fact that, for prudent and understandable reasons, Ms Clement was cautious in how she introduced X and Y to him.
I agree that the uncertainty surrounding the relationship between Mr G and the children is a factor favouring the father’s position that the children not be moved from the familiarity of the environment they know in (omitted). I will return to this consideration when I consider the implications of change for the children. However the evidence available to date indicates that X and Y currently do have a viable relationship with Mr G.
X, it would seem from what she said to Ms D, was somewhat guarded in her reaction to Mr G initially. However, she now regards him as being nice, comforting and caring and his two older children as being “so nice”. This bodes well for the future.
It seems that X and Y reside at the centre of a warm and loving network of extended family on both their paternal and maternal aspects. This family lives mainly in New South Wales. I am satisfied that wherever the children ultimately live, they will have appropriate levels of interactions with this family, particularly their grandparents.
ca) Provision of financial support for the children
Mr Clement is a well-paid (occupation omitted) with a multi-national company. Notwithstanding his comfortable salary, I accept that he has, at times, struggled to make ends meet, particularly in the period immediately following the parties’ separation. In my assessment, he has always more than met his financial obligations towards the children, particularly through the provision of their school fees.
Ms Clement has been less financially secure than Mr Clement. As a consequence, there have been some financial pressures in her household from time to time as she has struggled to ensure that X and Y have all the advantages of middle class children, who are well educated and have access to all manner of extra-curricular activities.
In these circumstances, financial issues have been a bone of contention, in the past, between the parties. Overall, I am satisfied that neither party has had it easy in this regard and neither has ever shirked their financial responsibilities for X and Y, who are well parented children. Necessarily, the future provision of parenting, of the calibre currently being received by the children, is likely to be an expensive exercise in the long run.
In the future, I am satisfied that both parties will continue to ensure that X and Y enjoy the resources necessary to enjoy a comfortable, middle class childhood and have access to the best possible educational resources, regardless of where they live.
However, it would be naïve for me to think that there will not be conflict between the parties in future over financial issues pertaining to the children. Both parties are likely to be resentful about such matters and feel that the other is not pulling his or her weight in respect of the children, which is based on the fact that the other has an unrealistic appreciation of his or her financial circumstances overall.
These resentments are likely to become heightened following the resolution of these proceedings, as one party will inevitably feel hard done by, no matter what is the result. However the parties share a mutual commitment to ensuring that X and Y are properly provided for and educated, which is likely to ensure that the inevitable difficulties can be overcome.
The fact that the children will be living in a different state to one of their parents from the start of 2015 onwards adds a fresh dimension to the likely difficulties surrounding the parties’ provision of financial support for the children. I will consider these matters further when I turn to the logistical implications of the children spending time and communicating with each of their parents.
d) The likely effect on the children of any changes in their circumstances
This is a case about change and the implications of that change for X and Y. Given that I have accepted Ms Clement’s evidence that she will be moving to Melbourne regardless of the outcome of these proceedings, it seems inevitable that there must a significant change in the manner in which X and Y’s lives will be configured from the start of 2015 onwards.
In these circumstances, the questions which the court must address are what are the likely implications of each such proposed change and how the children themselves are likely to react to it. As I indicated at the outset of these reasons for judgement, whatever is the decision which the court ultimately reaches, it is likely that it will have some serious deficits for both X and Y. Relocation cases, as a consequence of their nature, do not produce perfect results for children and their parents.
If the court approves Ms Clement’s proposal, the children will have to adapt to a new school or schools; make new friends; and join fresh sporting and (hobby omitted) groups. I accept Ms D’s assessment that changes of this magnitude are a big ask for children but are not usually beyond them, if they have sufficient parental support and encouragement. Indeed children in intact families are frequently expected to move interstate or even overseas as a consequence of parental decisions.
X is open to some positive aspects of moving with her mother. I accept she is a resilient child, who has a close and loving relationship with her mother who will support her through any difficulties which are likely to arise from relocating. As such, X is likely to adjust successfully to the significant change arising from moving away from (omitted).
She is also likely to adapt to living in (omitted) with her father or in a shared care regime, although that is not her preference at present. Clearly, she has a strong relationship with her father and many enduring ties in (omitted). X is a robust and self-confident child, who is likely to cope with whatever is decided, provided she has strong parental support, which appears assured. In my view, the court cannot be so sanguine about Y.
Y is characterised by both Ms D and his mother as being an anxious child. Mr Clement believes this is an over-statement and that there is no relationship between his psychological state and his bed wetting. On balance, it seems to me to be more likely than not that Y is somewhat anxious, particularly about issues arising between his parents regarding parenting, including the relocation. From his perspective, the issue needs to be resolved.
In my view, the question so far as Y is concerned is what is likely to be the least deleterious outcome for him. In my estimation, clearly the worst outcome, for Y, would be to be separated from his mother for any prolonged period. I accept Ms D’s evidence that this is likely to exacerbate his propensity towards anxiety, which in turn may have long term consequences for his emotional health.
Accordingly, I accept that Y is not likely to react well to the change envisaged in Mr Clement’s position, which he submits should be engaged if Ms Clement leaves (omitted) at the start of 2015. Given the closeness of the siblings, it is not viable to consider different arrangements for them. As a consequence of this, the needs of the more vulnerable child must have implications for what happens to them both.
One significant weakness, arising from Ms Clement’s case, is that the children have never shared a household with Mr G, for any extended periods of time. I accept that it is one thing for a child to spend relaxed and relatively brief holiday time with an individual and quite another to share long term domestic arrangements with that person.
As such, it is difficult for me to assess how X and Y will react to having Mr G as a permanent and quasi-parental influence in their lives. This is a major plank of Mr Clement’s case. He characterises the mother’s proposed arrangement as untested and Ms Clement herself as precipitate in what he would see as her haste to in becoming involved with Mr G.
It is true that Ms Clement and Mr G have not known one another for a significant period of time. They met, face to face, for the first time, only very recently. Again, I acknowledge that the relationship between them has not been tested by the vicissitude of prolonged domestic life and, quite foreseeably, the pressures of finding a new home to share and the adjustment difficulties this may precipitate in both X and Y.
Of course, I cannot predict with certainty what will be the outcome of this change for the children, particularly how they will react to Mr G. What I can do is attempt to assess the evidence of both Ms Clement and Mr G in this regard, particularly their level of insight into potential difficulties and how they will likely respond to them.
Ms Clement is a cautious person, who, in my assessment remains somewhat reticent about forming a further relationship, following the end of her marriage with Mr Clement. I accept her evidence that she has proceeded cautiously, in her relationship with Mr G, and has only continued with it because she is certain of its resilience.
Importantly, in my assessment, X and Y are her highest priority. As such, she would not expose them to any person, whom she considered was likely to be insensitive to their needs. Accordingly I do not think it can be said she is rushing into her relationship with Mr G or is doing so without having any regard to the needs of X and Y.
To Ms D, both children were positive in their descriptions of their interactions with Mr G and two of his children. I appreciate that neither I nor Mr Clement have been provided with a great deal of information about Mr G. As I have previously indicated, my impression of him is of sensible and kindly person. Certainly, this is how X described him to Ms D. However, at the end of the day, there can be no doubting that Ms L is a more certain quantity, for the children, than is Mr G.
Mr Clement is critical that Ms Clement has not got more fleshed out plans in terms of her accommodation and the children’s schools in (omitted) Melbourne. It is his case that his proposals are much more certain. This is obviously correct. From his perspective, the chief advantage of his proposal is that it is a minimalist one. Obviously, if his position is accepted by the court, the children will not have to change schools or accommodate living in a different environment.
From Ms Clement’s perspective, I accept that she cannot really make any long-term commitments, either in the sense of purchasing accommodation in (omitted) Melbourne or enrolling the children in new schools, until she knows the actual outcome of these proceedings. She has however done some basic research about both such issues. In my assessment, she is not the type of person who would fail to look before she leaps.
To the contrary, in my assessment, Ms Clement is an innately cautious and conservative person. Given this finding, I accept that, if it be the court’s decision that X and Y should continue to live with her, in the Melbourne area, she will ensure that appropriate arrangements are made for the children’s accommodation and education.
Like Mr Clement, a good education, for X and Y, is a fundamental requirement of the children’s future parenting and, as such, is not negotiable. In my view, she is likely to be very careful about these arrangements, in which Mr Clement is also likely to have significant input.
In general terms, I accept that there are likely to be good schools available for the children in reasonable proximity to where they are likely to live in Melbourne. The school or schools ultimately selected may be different to (omitted) College in some minor ways but are likely to offer a broadly similar curriculum and standard of teaching and facilities. In this respect, there is some validity to the mother’s assertion that, given its greater population base, there are likely to be more rather than less educational and extracurricular opportunities for the children in Melbourne as opposed to (omitted).
Accordingly, I have no reason to believe that Ms Clement lacks insight into the degree of change her proposal entails for X and Y or lacks the capacity to assist them to adjust to such change. As I have already indicated, I accept that her desire to move is not motivated by any sense of caprice towards Mr Clement. She wishes to move because she considers it will be better for her and so the children.
Although I accept Ms Clement’s evidence that she would not consider remaining indefinitely, in (omitted), if the court considered that it not to be in the best interests of X and Y to leave the town, it remains, I think, necessary for the court to consider, potentially in the abstract, what are the consequences for the children, if the mother does not carry out her currently professed intention to move to Melbourne regardless.
Ms Clement is not a robust person emotionally. She has had a propensity to depression for much of her adult life. In my assessment, she is not a manipulative person. Accordingly, I do not think she has adopted the position, which she has, in an attempt to work the system. Rather she wishes to move because she realises that it is the best option available to her personally.
I do not, however, consider her to be a selfish or self-absorbed person. In these circumstances, it is a significant thing for her to say to the court that she will be leaving (omitted) regardless of the outcome of the case. However, there can be no doubt that X and Y mean everything to Ms Clement.
Accordingly, there remains the possibility that, when the chips are down, Ms Clement may change her mind and elect to stay because she cannot countenance prolonged separation from the children. In this scenario, the previously rejected shared care option may start to float.
As I say, in my estimation, this is unlikely, as Ms Clement is a person of her word, which she does not pledge lightly. However, if it did come to pass, I consider that it is likely to be an outcome with the potential to be deeply unsettling for the children and emotionally deleterious to them in the longer term.
I accept Ms Clement’s evidence that she is deeply unhappy in her present circumstances in (omitted). This unhappiness can only become more intense (and so potentially injurious to Ms Clement herself) the longer she is living in (omitted), essentially against her will.
If Ms Clement did feel she was compelled to remain living, in (omitted), because of the best interests of X and Y, she is likely to become extremely bitter. She would feel that her career aspirations and her desire to pursue a relationship with Mr G were of no moment. She would blame Mr Clement for her unhappy situation, particularly because he personally would suffer no personal detriment regarding his personal preferences in life. Essentially, she would have been compelled to give up her aspirations in life and he not.
Inevitably, in my view, Ms Clement’s sense of bitterness would influence the quality of her day to day parenting of the children and increase the tensions between her and Mr Clement, which are already unacceptably high and impacting upon the emotional functioning of Y in particular.
In my assessment, Ms Clement is not likely to keep a stiff upper lip and magnanimously accept her lot of an on-going life in (omitted), a place which has only unhappy connotations for her, for some undefined period of time, dependent on when the children leave home, either to attend university or for their final years at school. She will feel Mr Clement has chained her to the town, whilst suffering no equal loss of liberty himself.
I accept that, in theoretical terms, Mr Clement’s proposal is the best one for the children, particularly in the sense that it represents the least amount of change for them. However, in my view, it is fundamentally unworkable, as it relies on the co-option of Ms Clement to it and the parties’ joint commitment to make it work effectively.
The parties, in my assessment, do not communicate effectively. The mother can only resent the quasi-compulsory imposition of an equal time regime upon her. As the controversy over Y’s bed wetting and medical appointments for X’s back problems, amongst many other issues demonstrates, the parties have limited facilities to solve parenting problems consensually.
Fundamentally, I share Ms D’s concerns that an equal time regime would have a deleterious impact on the children, particularly Y. Essentially the reality of the family situation in this case, even in theoretical terms, militates against equal time [see section 65DAA(5)].
As I am at pains to point out, Ms Clement is a free agent, who is entitled to live how and where she chooses. I am not in a position to ignore her entitlements in this regard, which must be weighed in the mix of the children’s best interests.
(e) The practical difficulties and expense of the children spending time and communicating with each of their parents
This is one of the more significant considerations in the case, given that one of the essential components of a child’s best interests is the benefits accruing, to that child, from having a meaningful level of relationship with both parents. Accordingly, in the context of the possible relocation, I must closely consider the adequacy of the arrangements proposed by Ms Clement for the children to spend with Mr Clement and vice versa.
Ms Clement’s proposals for the children to visit (omitted) regularly, both during the school term and in school holidays, are ambitious and likely to be expensive. Potentially, the children face many years of commuting, by air, between Melbourne and (omitted).
It would be a brave person, I think, who would attempt to prognosticate the price of air travel in such a period or indeed whether regional airlines will continue to offer a regular service between capital cities and provincial towns, such as (omitted).
Ms Clement cannot be regarded as a wealthy person. She is professionally qualified and is likely to obtain reasonably well remunerated employment in future. However, even for such a person, the burden of two children, flying twice a term between Melbourne, (omitted) and return, is likely to be a significant impost on her income.
I, however, do not doubt her commitment to providing this travel for the children and although, in the longer term, it is highly possible that the children, particularly X as she grows older, will rail against it, it seems me to be logistically feasible to put into effect, at least under current conditions.
This intra-term contact, when combined with regular school holiday time, will ensure that X and Y interact with their father’s household regularly. In addition, both children are likely to have access to electronic means of communication, which will enable them to contact their father to share with him moments of special importance, soon after they have occurred. I appreciate that this is no substitute for face to face interaction, but in the age of Skype and Facetime, it is a viable alternative.
Undoubtedly, under the mother’s proposal, the children will be able to have frequent periods of quality time with their father, Ms L and indeed their prospective sibling. As I have indicated, it is my view that given the children’s respective ages and the strength of their respective levels of relationships with their father, it seems probable that both X and Y will be able to maintain warm relations, with their father, pursuant to the mother’s proposals.
The same situation will prevail, if the positions of the parties are reversed and the children live in (omitted) and spend time with their mother during school holidays and school terms. I am satisfied that Mr Clement is also committed to the children spending as much time with their mother as is possible if his proposal is preferred by the court. Accordingly, whatever is the outcome, the children will see each of their parents regularly.
It seems to me that the parties are likely to be able to resolve the issue of where the children are to be exchanged between them, for school holidays, on a common sense ad hoc basis, depending on what is proposed for the holiday in question. However, if I am wrong in this regard, I will specify (omitted) as the handover point as this seems to me to be the more equitable in terms of sharing the driving.
(f) The capacity for the parties to provide for the children’s emotional and educational needs
Both Mr Clement and Ms Clement are well motivated, well-resourced and insightful parents, who are committed to the best outcomes for their children, particularly in educational terms. I am satisfied that the children will receive a good education and engage in all required extra-curricular activities, whether they live predominantly in (omitted) or the Melbourne area.
Importantly, both parents are the source of unconditional love for the children. Both X and Y have thrived on the affection, support and encouragement they have received from both their parents. The fact that both Mr Clement and Ms Clement are such capable parents makes the relocation issue so intensely difficult and finely balanced. Whatever is the outcome, the children are likely to experience a sense of loss.
Given the differences of personality and sex, the parties necessarily bring different attributes to the parenting of X and Y, which are equally important. Children need both paternal and maternal role models to assist them to move appropriately towards maturity and become competent and insightful parents in their own turn. Both Mr Clement and Ms Clement, in my assessment, are highly suitable role models for X and Y in this regard. The children are fortunate to have such good parents.
However, in cases which are so closely balanced, it is necessary for the court to consider all relevant factors very closely to arrive at points of distinction, even if very slight, in the respective cases of the parents concerned, which have the potential to influence the outcome. The capacity of the parties to provide for the emotional needs of the children is one such factor in this case.
X, a robust and vivacious child, will most likely thrive and adjust whatever is the outcome. However, she has some sense of trepidation at the prospect of being separated from her mother for any extended period of time. She will miss her mum too much if she (Ms Clement) goes to Melbourne and she (X) does not.
These considerations are likely to be far more intense, so far as Y is concerned. His propensity towards anxiety will be heightened, if he separated from his mother. In all these circumstances, it seems to me to be probable that the children’s draw more of their emotional sustenance from their mother, although their father is clearly also very significant in this regard. In a finely balanced case, in my view, this is a tipping point in favour of Ms Clement’s position, particularly if I accept, as I do, that she is intent on moving to Melbourne.
g) The children’s maturity, sex, lifestyle and background
h) Aboriginality
In the context of this case, neither of these criteria appear to be specifically relevant.
i) The attitude that each parent has demonstrated to the responsibilities of being a parent
Both Mr Clement and Ms Clement have demonstrated a strong commitment to being the best possible parents they can be to X and Y. They are each to be commended for their responsible attitude to being parents.
j) Family violence
k) Any family violence order
This is not a case concerned with family violence. There are no family violence in place and never have been.
l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
As I have pointed out earlier in these reasons for judgement, I am not strictly bound by the proposals put forward by each of the parties in the ultimate resolution of this case. In this context, one possible option might be to impose some form of moratorium on Ms Clement’s removal of the children from (omitted), in the hope that, in future, the move can be managed more easily by all concerned, chiefly because X and Y will be older and more emotionally resilient and any uncertainty about their relationship with Mr G will be resolved.
From Mr Clement’s perspective, there is not likely to be any ideal time for the children to move away from (omitted). From Ms Clement’s perspective, she is at the end of her tether, so far as remaining in the town for any period whatsoever past the start of 2015. It is her case that the children are currently old enough to be able to maintain a relationship, over distance, with their father.
In my assessment, some form of moratorium would only intensify the tensions between the parties and would be unfair to be both them and indeed the children. Regrettably, it seems to me that a decision needs to be made in respect of this issue at this stage and it would not be in the children’s best interests for it to be deferred.
m) Any other relevant issue
Ms Clement wishes to leave (omitted) because she wants to move on in her life, for both professional and personal reasons. She wants to be with the person whom she loves and to advance her career. She also wants to put her old life in (omitted) behind her because she has been unhappy there. These are understandable human aspirations and cannot be easily dismissed.
Ms Clement’s personal happiness is potentially very important to X and Y. If their mother is happy, she is likely to parent them more effectively. These considerations, abstract though they are, are of fundamental relevance to the best interests of X and Y. X herself is aware of them. She told Ms D that it would be unfair to her mother, if she could not pursue her relationship with Mr G and be happy, as her father was with Ms L.
In this regard, these comments of the Full Court in Fragomelli & Fragomelli [44] are relevant:
“The custodial parent’s freedom of movement and his or her right to choose where to live may itself be a factor in the welfare of the child. As the person responsible for the custody of the child, the custodian’s ability to function effectively is important to the child’s welfare…
A child’s welfare may well be adversely affected if the custodian’s movements are restricted. It the Court were to interfere unduly with the way of life which the custodial parent legitimately proposes to adopt, there may be frustration and bitterness which might adversely affect the child…”
[44] Fragomelli & Fragomelli (1993) FLC 92-393 at 80,023
Up until this stage, Ms Clement has provided significantly more of the parenting of the two children concerned, both before and after the parties separated. Mr Clement seeks only to displace Ms Clement, from having a major role in the parenting of X and Y, if she elects to move to Melbourne. In these circumstances, he would seek to replace her as the children’s primary custodian.
Clearly, if she is so replaced, because she feels she has no alternative other than to move to Melbourne to pursue her personal aspirations, Ms Clement is likely to feel significantly aggrieved towards Mr Clement, from whom she has been separated for many years. In this situation she will inevitably perceive that, notwithstanding the decision to end their marriage, her former husband is still able to exert control over her chosen future direction in life.
I am not at liberty to ignore Ms Clement’s legitimate expectations that she is entitled to live how and where she chooses, notwithstanding that she is a parent of two children. In this context, although X and Y’s best interests are the paramount consideration for the court, they are not the only consideration.
Conclusions
The parties agree that the presumption of equal shared parental responsibility applies in this case. This is patently the case, given that both Mr Clement and Ms Clement are competent and caring parents and there are no issues of family violence or abuse arising in the case.
Given the structure of the applicable legislation and the decision of the Full Court in Taylor & Barker the court is required to give earnest consideration to firstly an equal time and secondly a substantial and significant time regime for the care of the two children.
However, as the High Court has established in MRR both such regime depend on a positive answer to two equally important questions – firstly, are these arrangements in the best interests of the children concerned; and secondly, are they objectively feasible to implement, in all the circumstances of the case.
In the words of the High Court itself, in determining the answer to the second limb, the court is directed to consider the reality of the situation of the parents and child. In theoretical terms, the best outcome for X and Y is likely to be one in which their excellent parents share responsibility for them and the children see both their father and mother every few days or so.
However, in practical terms, this option is not open, as Ms Clement has indicated she will not remain in (omitted) to implement it or is only achievable at the price of shackling Ms Clement indefinitely and unhappily to (omitted), which in my view would be effectively unworkable, as well as potentially deleterious for the care of the children. As such, I consider neither option to be feasible.
In addition, having considered the various matters delineated in section 65DAA(5), it is my finding that the parties’ relationship with one another, as parents, is not one which is conducive to an equal time (or indeed a substantial and significant time) regime for the parenting of X and Y, even if Ms Clement was prepared to remain living indefinitely in (omitted).
The parties do not communicate well. At a deep visceral level, Ms Clement would both resent and resist either such regime. As such, it is likely to have some deleterious consequences for the children. Given the lack of empathy and trust, between the parties, in my view, these are not practical outcomes.
In these circumstances, I must consider whether the children should live predominantly with the mother or predominantly with the father, against the yardstick provided by section 60CC of the Family Law Act. Obviously, I cannot ignore the relocation aspect inherent in the case and must consider the respective proposals of each party as to how the children concerned may maintain a meaningful level of relationship with other parent.
Relocation cases are very difficult and this case is no exception, particularly given the strong parental qualities of both Mr Clement and Ms Clement and the fact that X and Y are thriving in their current environment in (omitted). In my view, there is a very real danger that Y, in particular, will not continue to thrive, if he is separated from the predominant care of his mother.
At the risk of repetition, I accept that Ms Clement will not remain in (omitted) regardless of the outcome of this case. The outcomes available to the court therefore are that the children remain living in (omitted), in the father’s predominant care or move to Melbourne with their mother and thereafter live in her predominant care. It is these two proposals which fall for consideration under the provisions of the Family Law Act.
As Kirby J pointed out in AMS v AIF no single factor is dispositive of a relocation case and the application of the legislation concerned “is in a constant state of amendment and re-expression”. However, in my view, in the absence of specific legislative expression otherwise, the court is still required to consider a parent’s entitlement to freedom of movement, arising from the Australian Constitution, in conducting the delicate analysis and balancing of irreconcilable considerations that such relocation cases require.
It is necessary for the court to weigh up the pro’s and con’s of each feasible outcome and focus on how it believes the best outcome may be achieved for both X and Y, in the heartbreakingly difficult circumstances prevailing in the case. Their best interests remain the paramount consideration but not the only one. I must not lose sight of the fact that, as a citizen of a free and democratic country, the mother has an entitlement to live how and where she chooses.
As such, the mother’s desire to live the life of her choosing, with Mr G in Melbourne, is a legitimate matter for the court to consider. Australia, which occupies a large land mass and where language and cultural practices are largely homogeneous, is a country whose citizens frequently move within it, as indeed the parties themselves have done in the past.
Given the mobility of Australia’s population and the high rates of divorce prevailing in the country generally, many children maintain relationships with parents over distance and through electronic media. This is not ideal but it is workable for the individuals concerned. The regime of contact, first promoted by Ms Clement and subsequently adopted by Mr Clement in reverse, is an ambitious one but, in my view achievable.
In this case, given the strength of the children’s relationship with each parent and the fact that both Mr Clement and Ms Clement are reasonably provided for financially and equally committed to the children maintaining relations with the other parent, the relocation is not likely to result in either X or Y losing a meaningful level of relationship with the parent whom they will not be living with predominantly from the start of 2015 onwards.
I hope I have been able to consider closely all the applicable criteria arising under section 60CC. In my view, these factors militate more in favour of the mother’s proposal than the father’s. I have real concerns that the children and particularly Y will not receive the emotional sustenance they require if they do not live in their mother’s predominant care.
At the end of in excess of one hundred pages of consideration, this, in my view, is the most important factor. It reflects the long standing arrangements for the care of the two children, both before and after separation. Ms Clement, in my assessment, is a devoted and insightful parent. She is likely to continue to discharge her parental responsibilities, to a high degree in Melbourne, where she will be a more contented and settled parent. This outcome will not result in the truncation of the children’s relationship with their father, which will remain meaningful.
Accordingly, after what I hope is a thoughtful synthesis of the various competing factors arising under section 60CC – some favouring a move; others not – I have come to the conclusion that, on balance, it is more in the interest of X and Y to remain living predominantly with their mother and that the court should provide its approval for Ms Clement to live in Melbourne, provided she accedes to her proposal for the children to spend time with their father, both during school holidays and each school term.
In my view this is the appropriate balance in this difficult case. I appreciate that the outcome will be difficult for Mr Clement to accept and he is likely to be liable to think that Ms Clement’s personal aspirations have been prioritised over the long-standing stability of the children.
To a large extent, Mr Clement’s likely feelings are inevitable and reflect the finely balanced nature of the case. One inescapable corollary of the case was that it was impossible for the court to fashion an outcome which was acceptable to both the father and the mother.
Accordingly, I have come to the view that I should make orders in the terms sought by the mother. I am satisfied that these orders will reflect the best interests of both X and Y. In particular, I am satisfied that the children will be able to maintain a meaningful level of relationship, with their father, notwithstanding the significant distance between (omitted) and Melbourne.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding five hundred and ninety (590) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 31 July 2014
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Injunction
5