Cooke & Cooke

Case [2023] FedCFamC1F 25

Federal Circuit and Family Court of Australia

(DIVISION 1)

Cooke & Cooke [2023] FedCFamC1F 25

File number: SYC 4738 of 2020
Judgment of: REES J
Date of judgment: 31 January 2023
Catchwords: FAMILY LAW – PARENTING – Relocation – Where the father opposes the relocation proposal – Where the parties agree that the mother have sole parental responsibility – Parental conflict – Where the father’s communications with the mother has been offensive and derogatory – Where the father communicates with the children in a manner that is critical of the mother and the maternal family – Where it has not been established that the children have been exposed to family violence – Where the foremost consideration in the circumstances is the benefit to the children of having a meaningful relationship with both parents – A meaningful relationship is one which is important, significant and of consequence – Where the benefits to the mother of relocation would not outweigh the loss of the children’s meaningful relationship with their father – Where the father does not have the financial means to travel regularly to the United Kingdom as the mother proposes – Where the relocation would be a major disruption to the children’s lives – Expressed views of the children to remain in Australia – Application for relocation dismissed – Orders made for the children to spend time with the father each alternate weekend and for half of school holidays and on special occasions.
Legislation:

Australian Passports Act 2005 (Cth) s 11

Family Law Act 1975 (Cth) ss 60B, 60CC, 65DA

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.06
Cases cited:

Godfrey & Sanders [2007] FamCA 102

McCall & Clarke (2009) FLC 93-405

Moose & Moose (2008) FLC 93-375

U & U [2002] 211 CLR 238
Division: Division 1 First Instance
Number of paragraphs: 241
Date of hearing: 14, 15 & 16 December 2022
Place: Sydney
Counsel for the Applicant: Mr Todd
Solicitor for the Applicant: Mills Oakley Lawyers
Counsel for the Respondent: Mr Havenstein
Solicitor for the Respondent: Galea And Faustin Solicitors
Counsel for the Independent Children's Lawyer: Mr Reeves
Independent Children's Lawyer: Legal Aid NSW

ORDERS

SYC 4738 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS COOKE

Applicant
AND:

MR COOKE

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

REES J

DATE OF ORDER:

31 January 2023

THE COURT ORDERS:

1.That all previous parenting Orders be discharged.

PARENTAL RESPONSIBILITY

2.That the mother shall have sole parental responsibility for the children X (born 2011), Y (born 2012) and Z (born 2017) (“the children”).

3.That the application of the mother to relocate the residence of the children to the United Kingdom is dismissed.

4.That prior to the mother’s making any long term decision in relation to the children, she shall:

(a)Notify the father, in writing, of the proposed decision and the reasons for the proposal;

(b)Invite the father's input and allow 28 days for him to advise of his views in writing;

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Cooke & Cooke [2023] FedCFamC1F 25
Case
[2023] FedCFamC1F 25
Decision Date

CaseChat Overview and Summary

The case involves the parents of two children, X and Y, who are in dispute over the children's residence and contact arrangements. The matter was heard in the Family Court of Australia. The central issue before the court was whether the father's refusal to move to the United Kingdom, where the mother intended to reside, was unreasonable. The court had to consider the primary considerations under section 60CC(2) of the Family Law Act 1975, particularly the benefit to the children of maintaining a meaningful relationship with both parents, and whether the children had been exposed to family violence or other harm.

The court considered the evidence of the expert, Mr C, who interviewed both parents and the children. The mother proposed that the children should live with her in the United Kingdom, citing the need to distance herself from the father due to the ongoing stress of their relationship. The father was reluctant to move, even if he could secure the necessary visa. The court examined whether the father's refusal to relocate was unreasonable, weighing the benefit to the children of maintaining a meaningful relationship with both parents against the potential harm from the conflict between the parents. The court also assessed the children's views and their relationships with both parents and extended family.

The court concluded that there was no evidence the children had been exposed to family violence, abuse, or neglect, and that it was in their best interests to maintain a relationship with both parents. The court found that the father's refusal to move to the United Kingdom was not unreasonable, given the lack of evidence that he would be able to live there permanently and the children's expressed desire to remain in Australia. The court emphasised the importance of a meaningful relationship, which was qualitative rather than quantitative, and considered the children's relationships with both parents and extended family in its decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The single expert, Mr C, prepared a report dated 14 September 2021 and was cross-examined. THE EVIDENCE OF MR C Mr C conducted interviews and prepared a report dated 14 September 2021. In relation to his interview with the mother, Mr C reported:9.[The mother] proposes that she returns to live, with the children, in the United Kingdom. Her primary reason for wishing to do so is to distance herself from [the father] – more specifically to distance herself from the ongoing stress of their conflicted relationship, which, she advises, is causing her considerable anxiety and panic attacks. She advised that she would feel more supported by family and friends in the United Kingdom and that the children have close friendships and family relationships in the United Kingdom. Mr C noted that the mother proposed that the father have substantial time with the children if he were to move to the United Kingdom. The mother’s proposal for the time the children would spend with the father if they all lived in the United Kingdom, as enunciated in her Amended Initiating Application, is more generous than her proposal for time if they all live in Australia. In cross-examination, she conceded that the time should be the same, whether in the United Kingdom or Australia. Mr C reported,29.[The mother] said that [the father] was not physically abusive (in the sense of hitting her) but that nevertheless she felt “threatened and intimidated…he was goading me when we were separated under the same roof … it is the abuse you don't see is really hard… I doubted myself….” [The mother] described [the father] as “talking down to her in a patronising voice…I tried to make myself smaller (as in small target)… I appeased him to keep him happy… (but) I was walking on eggshells…” Mr C reported,17.With respect to the possibility of herself and the children remaining in Australia, [the mother] said, “if we all stay here, he is extremely adversarial… I am in constant flight mode…”. The writer observed to [the mother] that she refers to her having panic attacks. In response she said that she has never been diagnosed with depression or anxiety prior to separation (under the same roof). She observed that her panic attacks are triggered by, “relentless emails, messages… I get stressed… it is hard to relax”. The writer asked [the mother] to describe her symptoms with respect to panic attacks. In response she said, “I cannot concentrate, I worry, my stomach drops… (the last) panic attack was last week… I was shaky and breathing quickly… finance is a trigger… I am still on medication… it went up to 30 mg but (I get) brain fog…” As to the mother’s mental health, Mr C stated,31.[The mother] advised that, with respect to her management of her mental health, she is undertaking, “[various exercise], (I am) good at asking for help and no alcohol for one and a half years”. She added that she is seeing her GP regularly. She has seen a psychiatrist twice and her psychologist regularly.

Decision

Reasons for decision

I do not consider that the father’s refusal to move to live in the United Kingdom (if he were able to gain the requisite visa) is unreasonable in all the circumstances.conclusion The question of what is meant by the term “meaningful relationship” was considered by the Full Court in the decision of McCall & Clarke (2009) FLC 93-405 where their Honours said, [109]The Act does not contain a definition of “"meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a ”meaningful involvement” in a child's life. It does not give guidance to the interpretation of the phrase “meaningful relationship”. [110]It is necessary we construe the language of the statute to determine whether the import of the legislation is clear without reference to extrinsic material. [111]The Macquarie Dictionary defines the adjective “meaningful” as “full of meaning, significant. Significant is defined as “important; of consequence” [112]The Shorter Oxford English Dictionary defines “meaningful” as “Full of meaning or expression; significant …” “Significant” is defined as “Having or conveying a meaning; Expressive; suggesting or implying deeper or unstated meaning … important, notable; consequential ...”[113]We turn first to the objects clause (s 60B(1)). The purpose of an objects clause is “to indicate the intended purpose of the legislation” (Pearce, D C & Geddes, R S, Statutory Interpretation in Australia, 6th ed, Lexis Nexis, Australia, 2006) The learned authors further note at 4.42… “objects clauses are used as an aid to the construction of words of legislation. Gleeson CJ referred to the legislative declarations of the objects of an Act as giving practical content to abstract terms such as ‘reasonable’, ‘justification’ and ‘satisfactory’ in Russo v Aiello (2003) 215 CLR 643 at 645”. [114]Section 15AA of the Acts Interpretation Act 1901 (Cth) provides for a purposive construction of a statute. [115]The phrase “meaningful relationship” in the context of s 60CC(3)(a) has, not surprisingly, been considered in a number of decisions since the introduction of the amending Act. In Mazorski & Albright (2007) 37 Fam LR 518 Brown J, after setting out the definition of “meaningful” and “meaning”, said at paragraph 26: What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

Ratio Decidendi

Legal Principle Established

There is no evidence that the father would be able to live permanently in the United Kingdom. consideration This is a matter where the primary considerations, set out in s 60CC(2) of the Family Law Act 1975 (Cth) (“the Act”) come starkly to the fore.The primary considerations are:(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Whilst the relationship between the parents, from the time of the breakdown of their relationship until the present, has been one of conflict, I find, as is explained below, that it has not been established that the children have been exposed to family violence. There is no suggestion that they have been abused or neglected. It is therefore necessary, when considering what Orders are in the children’s best interests, to have foremost the consideration of the benefit to them of maintaining a relationship with both of their parents. any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views X and Y have told Mr C that they wish to remain in Australia. Y wants more time with his father. Y has told his mother that he does not want to leave his school.the nature of the relationship of the child with:(i) each of the child’s parents; and(ii) other persons (including any grandparent or other relative of the child) I accept the evidence of Mr C that the children have a close and loving relationship with each of their parents. Only X spoke to Mr C about the maternal grandfather whom she clearly loves but she told Mr C that her feelings for her father were “much stronger”. Y described his maternal grandfather as “kind and generous” and said “we call Grandad a lot”. Although the mother stressed the close and loving relationships that the children have with the extended maternal family in the United Kingdom, that was not the children’s perception as relayed to Mr C. X told Mr C that she didn’t know her cousins although she knew their names. She told Mr C that she talks to her aunt Ms N and to her maternal grandfather on Zoom but did not mention communication with any other member of the maternal family. By contrast, X told Mr C that she is “really close” to her cousin who lives in Sydney. Y told Mr C about visiting cousins in Sydney and spoke of talking to his cousin in the United Kingdom on Zoom. Nothing in Mr C’s report of his interviews with the children suggests that the children have a close relationship with the mother’s siblings and their partners or their cousins in the United Kingdom, which is consistent with the fact that the children have lived in Australia since 2016 and have, since that time, spent little time with the extended maternal family, other than their maternal grandfather.the extent to which each of the child’s parents has taken, or failed to take, the opportunity:(i) to participate in making decisions about major long term issues in relation to the child; and(ii) to spend time with the child; and(iii) to communicate with the child