Curnow and Armfield
[2012] FMCAfam 544
•20 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CURNOW & ARMFIELD | [2012] FMCAfam 544 |
| FAMILY LAW – Children – residence – relocation. |
| Australian Capital Territory (Self-Government)Act 1988, s.69 Australian Constitution, s.92 Family Law Act 1975, ss.60B(1)(a), 60CA, 60CC, 65DAA Northern Territory (Self-Government) Act 1978, s.49 |
| AMS v AIF (1999) FLC 92-852 D & SV (2003) FLC 93-137 |
| Applicant: | MS CURNOW |
| Respondent: | MR ARMFIELD |
| File Number: | CAC 1174 of 2011 |
| Judgment of: | Brewster FM |
| Hearing dates: | 15 & 16 May 2012 |
| Delivered at: | Canberra |
| Delivered on: | 20 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Tonkin |
| Solicitors for the Applicant: | Evans Family Lawyers |
| Counsel for the Respondent: | Ms Godtschalk |
| Solicitors for the Respondent: | Dobinson Davey Clifford Simpson |
ORDERS
That in these orders the term “contact” means spending time with.
That as and from the mother’s relocating to [O] all previous orders in relation to the children [X] born [in] 2005 and [Y] born [in] 2006 be discharged.
That the parties have equal shared parental responsibility for the children.
That the children live with the mother.
That the mother is at liberty to relocate with the children to [O] no sooner than the July school holidays in 2012.
That the children have contact with the father:
(a)Each alternate weekend during school term from 5.30pm on Friday to 4.30pm on Sunday (or from Thursday or Monday if the Friday or Monday is a public holiday).
(b)One half of the Christmas and the first and third term New South Wales school holidays being the first half in holidays falling or commencing in the even numbered years and the second half of holidays falling or commencing in odd numbered years.
(c)For the whole of the second term school holidays from 2013.
That the father be at liberty to communicate with the children by telephone or Skype each Tuesday and a non contact Friday between 6.00pm and 7.00pm and on his and the children’s birthdays and between 9.00am and 10.00am on Christmas Day when the children are not in his care. The mother is to facilitate the children calling the father.
That changeovers are to occur at the General Store/Service Centre at [omitted].
That if Mothers Day falls on a contact weekend there will be no contact that weekend and in lieu contact will be on the following weekend. If Fathers Day falls on a non contact weekend contact will occur on that weekend in lieu of the following weekend.
That the mother is at liberty to communicate with the children by telephone or Skype (with the father facilitating the call):
(a)Between 6.00pm and 7.00pm each Wednesday during school holidays when the children are not in her care;
(b)Between 9.00am and 10.00am on Christmas Day when the children are not in her care.
That the mother is to advise the father of the name of any treating medical practitioner involved with the children and to authorise that person to provide the father with any information concerning the children.
That each party is to promptly notify the other of any significant medical issues involving either of the children whilst they are in their care.
That the mother is to authorise any school the children attend to provide the father with any information he may wish and to provide him with copies of school reports and, at his own expense, school photographs.
IT IS NOTED that publication of this judgment under the pseudonym Curnow & Armfield is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1174 of 2011
| MS CURNOW |
Applicant
And
| MR ARMFIELD |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter involves a dispute between the parties as to the residential arrangements that should obtain in relation to their two children. Those children are [X], who was born [in] 2005 and is therefore aged 7 and [Y], who was born [in] 2006 and is therefore aged 6. The dispute arose consequent on a proposal by the mother to relocate with the children from Canberra to [O]. The father opposes the proposed relocation.
Background
The parties are each aged 31. They commenced a relationship in 2001 and separated in September 2008. The children have lived with the mother since separation. From that time until November 2009 the father would see the children each Wednesday and Thursday night. From November 2009 this arrangement changed and the father would spend time with the children each alternate weekend from Friday to Sunday and each alternate Thursday. Again this arrangement changed in May 2011 to include the Sunday night and in July 2011 the parties agreed to add half school holidays. This arrangement was formalised by interim consent orders made 27 September 2011.
When the parties met the mother was living in [O] and the father in Canberra. The mother moved to join the father in Canberra but in 2003 the parties relocated to [omitted], a town near [O]. They moved from there to [O] in 2004. In May 2007 the father obtained employment in Canberra but the mother and the children remained in [O]. The father would commute during the week. The precise details of how much time he would spend in [O] as opposed to Canberra are in dispute and I need not resolve this issue. In July 2008 the mother moved to Canberra and the parties have lived in Canberra since that time.
The mother first raised with the father the issue of her relocating to [O] in 2009. She says that the father agreed that she could move. The father denies that he did so. I need not make a finding in relation to this. Suffice to say that the father does not consent to the proposed relocation now and even if I were to find that he consented in 2009 I would not now hold him to that position.
The Parties’ Applications
The mother proposes that if she relocates to [O] the alternate weekend arrangement should continue but end on Sunday night rather than Monday morning. Naturally the arrangement for the father spending time with the children each alternate Thursday night would have to cease. She proposes in her Minute of Orders Sought that the holidays should be equally shared but was amenable to a suggestion made by counsel for the father that if I were to permit a move to [O] some additional time should be provided during school holidays.
As I have indicated the father opposes the mother’s relocating to [O]. He proposes that there be a change to the existing orders such that the children live with each of the parties on a week about basis.
Discussion
Section 60CA of the Family Law Act 1975 provides that in deciding what order I should make in relation to the children I must regard the best interests of those children as the paramount consideration. An important backdrop to this exercise for the purposes of this case is found in section 60B of the Act. That section sets out the objects of the Act insofar as it addresses children’s matters and the principles underlying those objects. Of particular relevance is section 60B(1)(a) which recites that one of the objects of the Act is to ensure the best interests of children are met by ensuring that they have the benefit of both their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child. I bear this in mind.
Whilst the best interests of the children is the paramount consideration it is not the only consideration. In this case freedom of movement is a relevant factor. The mother’s move from the Australian Capital Territory to New South Wales brings into play section 69 of the Australian Capital Territory (Self-Government)Act1988. This mirrors section 92 of the Constitution and provides that trade, commerce and intercourse between the Territory and a State shall be absolutely free.
Section 49 of the Northern Territory (Self-Government) Act1978 is in identical terms. This section was discussed by the High Court in AMS v AIF (1999) FLC 92-852. As I understand that case it is authority for the following propositions:
a)The object of the Family Law Act is to promote the best interests of children.
b)In order to achieve the objects of the Act it is permissible to restrict an individual’s rights of freedom of movement, but
c)The court must not impose “an impediment greater than that reasonably required to achieve the objects of the (Act)”. (Gleeson CJ, McHugh and Gummow JJ at paragraph 48).
I interpret this as saying that the court must not restrict freedom of movement only to create, in the words of Voltaire’s Dr Pangloss, “the best of all possible worlds”. To quote Gaudron J at paragraph 100, any order has to be “reasonably appropriate and adapted or, which is the same thing, proportionate to some legitimate purpose connected with that … subject matter (of the Act)”.
Relocation cases typically involve distances which greatly restrict the time the other parent spends with the child or children. In such cases the principles in AMS have little if any application. However, in my opinion, these principles are brought into sharp focus when one is considering a relocation which does not involve large distances. In the present case the distance involved in the proposed relocation is comparatively small. It involves a drive of less than two hours. In this respect I note the Full Court decision in D & SV (2003) FLC 93-137. That case involved a short distance relocation again involving a drive of less than two hours. Section 92 issues did not arise in that case as it involved an intra state relocation but the Full Court did highlight freedom of movement generally in cases involving a short distance relocation. It said (at paragraph 37):
Where the move is over a relatively short distance such as this one, we would caution against the making of orders that restrict the residence parent’s freedom of movement. The inquiry should be directed more at alternative contact or shared residence arrangements.
Section 60CC of the Act sets out a number of matters which I am to consider when assessing what is in the children’s best interests. The section is divided into primary considerations and additional considerations. The primary considerations are set out in section 60CC(2). The first of these is the benefit to the children of having a meaningful relationship with both of their parents. I am satisfied that the orders that I make will permit the children to continue to have a meaningful relationship with their father.
The second primary consideration concerns issues of violence and neglect and is not relevant.
Section 60CC(3) sets out the additional considerations and I will discuss each paragraph in that sub-section in turn.
Paragraph (a) requires me to consider any views expressed by the children and any factors, such as their maturity or level of understanding, that I think relevant to the weight that I should give to the children’s views.
The court has the advantage of a report prepared by Dr S, a Regulation 7 Expert. He interviewed the children. He reported that [Y] was unwilling to talk to him and he comments that given her age this was not thought unusual. Dr S interviewed [X] on his own. [X] told Dr S that he enjoys attending his present school and has lots of friends. He told Dr S that he did not wish to live in [O]. He said that he enjoyed visiting there because he can ride motorbikes but he does not want to leave his school and friends and live there. He said that he likes spending time with his father and would like to spend more time with him. He said that he loves his mother and wanted to continue to live with her. On reflection he said that he thought he might like things to stay as they are.
[X] has only recently turned seven and the weight which I give to his views is limited by reason of his age. Nevertheless I do not ignore those views. The impression one gets is that [X] was quite clear and unequivocal about wishing to remain living in Canberra.
Paragraph (b) requires me to consider the nature of the relationship of the children with each of their parents and other persons, including any grandparents or other relatives.
I am satisfied that the children have a close relationship with each of their parents. The father has re-partnered and I have no reason to doubt the assertion that his partner and the children have a good relationship.
There are grandparents on both sides. I am satisfied that the children have a very close relationship with their paternal grandmother. I am satisfied that they have a good relationship with their maternal grandparents although one would expect that this would not be as close as the relationship with the paternal grandmother given that the paternal grandmother lives in Canberra and the maternal grandparents in [O].
The father has a sister in Canberra and the mother a sister in [O]. I have no reason to doubt the assertions that these people have a good relationship with the children.
Paragraph (c) requires me to consider the willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent. In this case it is the willingness and ability of the mother that is important. I am satisfied that she recognises the importance of the father’s having as close a relationship as possible with the children. The fact that she has been able to facilitate contact with the father without hitherto having to seek recourse to the court is evidence of this. Plainly the relationship between the children and the father would be affected by a move to [O] but I am satisfied that she has sound reasons for wishing to move.
Paragraph (d) requires me to consider the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents.
This is an important consideration. The mother’s proposal will mean that the father will not be able to spend each alternate Sunday night and each alternate Thursday night with the children. I shall discuss this later in this judgment.
Paragraph (e) requires me to consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relationships and direct contact with both parents on a regular basis.
I do not believe that a move to [O] would substantially affect the children’s right to maintain personal relations and direct contact with the father. However there is a practical difficulty involved in the children living in [O] and the father in Canberra. I have already averted to this. However as I have indicated [O] is not a great distance from Canberra. It is not in a category of the punishing sorts of drives that parents sometimes agree to to secure consent to a relocation.
Paragraph (f) requires me to consider the capacity of each of the children’s parents and any other persons including grandparents and other relatives to provide for the needs of the children including emotional and intellectual needs. I have no reason to believe that either of the children’s parents or any of their relatives have any deficiencies insofar as these criteria are concerned.
Paragraph (g) requires me to consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of their parents, and any other characteristics of the children that I think are relevant. This paragraph is not relevant.
Paragraph (h) deals with Aboriginal or Torres Strait Islander children and is not relevant.
Paragraph (i) refers to the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of their parents. I have no criticism of either of the parties insofar as meeting these criteria are concerned.
Paragraph (j) refers to family violence and paragraph (k) to family violence orders and are not relevant.
Paragraph (l) requires me to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children. I do not believe that an arrangement in accordance with or more or less in accordance with the existing arrangement, or an arrangement whereby the mother would live with the children in [O], would be either more or less likely to lead to further proceedings. It might be different if I ordered a week about arrangement but I need not rely on this paragraph when considering the father’s proposal for such an arrangement.
Paragraph (m) requires me to consider any other fact or circumstance that I think relevant. Such facts or circumstances will emerge in the balance of this judgment.
Section 60CC(4) requires me to consider the extent to which each of the children’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent. It lists a number of criteria to be specifically addressed. I am satisfied that each of the children’s parents has fulfilled his or her responsibilities as a parent.
At this stage I have three options before me. The first option is to make orders for week about care as sought by the father. The second option is a continuation of the status quo or something approximating the status quo. The third option is making orders which will permit the mother to relocate to [O].
I can deal in short compass with the father’s proposal for a week about arrangement. The parties have agreed that there should be an order that both parties have equal shared parental responsibility for the children. Section 65DAA(1) provides that if an order is made for the parents to have equal shared parental responsibility I must:
a)Consider whether the children spending equal time with each of the parents would be in their best interests; and
b)Consider whether the children spending equal time with each of the parents is reasonably practical; and
c)If it is, consider making an order to provide (or include a provision in the order) for the children to spend equal time with each of their parents.
If I am not satisfied as to the matters set out in paragraphs (a) or (b) I am precluded from considering making an order for equal time.
I am not satisfied as to paragraph (a). That is I am not satisfied that the children spending equal time with each of their parents would be in their best interests. For the whole of the children’s lives the mother has been the primary parent. After the birth of [X] she only worked, if she worked at all, part-time. Her role as primary parent was particularly marked in the period in 2007 and 2008 when the father was working in Canberra. A week about arrangement would be a radical change to a long standing arrangement. It would be an untried experiment. As I have indicated I need to be satisfied that an equal time arrangement would be in the best interests of the children before I can consider ordering such an arrangement. I am not so satisfied.
I turn now to the remaining alternatives.
I turn first to the advantages in making an order which would preclude the mother from relocating. These advantages are significant and cogent.
The first of these is [X]’s wishes. Whilst he is only seven years of age it is appropriate to bear those wishes in mind. As I have indicated they appear to be firm and unequivocal.
Secondly the children are settled in Canberra. They have lived here now for some four years. They have established schools and friends. It would be a big change for them to relocate to [O] although I understand that they do have friends in [O] as the mother has of late, following the birth of her sister’s first child, taken to travelling with the children to [O] each alternate weekend.
Thirdly the mother’s move to [O] would have an impact on the involvement in their lives of the father’s extended family. Of particular significance is the fact that his mother is involved in [X]’s school and plans to be involved in [Y]’s kindergarten. This involvement would not be practical if the mother moved to [O]. On the other hand to some extent the ability of the mother to participate in the children’s schooling would be greater in [O]. She works a significant distance from the children’s school and she would be working much closer to their school in [O]. Having said this however she proposes to obtain employment in [O] and will not have the opportunities that the father’s mother has to involve herself in the children’s school.
Fourthly the children’s ability to fully participate in sporting commitments would be impacted on by a move to [O]. If they joined sporting teams in [O] they would be absent each second weekend.
Fifthly there is a particular aspect of this case involving [Y]’s health. In late 2006 she became ill. She was diagnosed as having Biliary Atresia. In November 2006 she was airlifted to [W] Hospital in a gravely ill condition. She had a liver transplant. She was in hospital until February 2007. The operation was a success although the functioning of her present liver beyond 10 years is not guaranteed and she may require another transplant. If she does the mother will be a donor. However she continues to require immuno-suppressant medication and there are potentially serious side effects of a risk of infection if she suffers any other illness. She may require hospitalisation for the administration of intravenous antibiotics. There is a hospital in [O] and it is understood that there would be facilities for the administration of intravenous antibiotics. However there is no permanent paediatric specialist at [O] Hospital and it is obvious that a large teaching hospital such as the Canberra Hospital would be preferable to the [O] Hospital. If a crisis occurred which required her admission to a major hospital she would be only a short distance from the Canberra Hospital. I am aware that in an emergency the Southcare helicopter is available but plainly that would take more time to fly to [O] and then either to Canberra or [W] than it would to take [Y] by car to Canberra Hospital if she were living in Canberra. In addition it is possible that another emergency or serious adverse weather could pose a problem to her being airlifted to either place. Furthermore if both parents lived in Canberra they would be able to be at the hospital if any emergency arose and [X] would not have to be left in the care of his maternal grandmother which would be the case if the mother were living in [O] and [Y] spent time in Canberra Hospital.
I note however that when the father obtained employment in Canberra in 2007 it appears that the parties did not consider the risks to [Y] in staying in [O] to be sufficiently serious to require the mother’s and her relocation to Canberra to be fast tracked.
Sixthly the father’s involvement with the children would be reduced were the mother to relocate to [O]. As I have indicated the Sunday night and the alternate Thursday would be impracticable. Whilst additional holiday time can be provided the more regular contact on Sunday and Thursday is preferable. Moreover a move to [O] would significantly impact on the father’s ability to be involved in the children’s school, homework and extracurricular activities.
Finally Dr S recommends that the mother should remain in Canberra. At paragraph 10.5 of his report he says as follows:
It is easiest for shared, cooperative parenting to occur if both parents live close to each other. In this case, this is likely to occur only if Ms Curnow remains in Canberra. Despite the disadvantage to Ms Curnow, it would seem most beneficial for [X] and [Y] to have the opportunity to have easy contact with both parents and for both parents to have the opportunity to participate in events in the children’s lives as they occur. Continuity of schooling and medical care would be a benefit of this outcome. Ms Curnow seemed accepting of the fact that she may not be able to move to [O] with her children. She seems to be a resilient and self-reliant person who, though disappointed, would be able to cope with such an outcome.
Dr S also commented that [X] was certain that he wished to remain in Canberra and that this preference seemed to be genuinely held. He did note however that young children generally adapt quickly to a change that they might not initially prefer if they are supported by firm and caring parental guidance. I have no doubt that the children will continue to have firm and caring parental guidance.
The advantages in my making an order which would permit the mother to relocate to [O] can be boiled down to one factor only. That is her emotional state and her happiness and contentment. I am satisfied that the mother has a very strong wish to return to [O]. It is her hometown. She has lived there most of her life. It is where her mother and sister live. They can offer support both practical and emotional. In my view family support is a very important factor.
As I have noted, Dr S assessed the mother as a resilient self-reliant person who, although disappointed, would be able to cope with being forced to remain in Canberra. Whilst I greatly respect Dr S’s opinion it does not accord with my observations of the mother in the witness box. I acknowledge that there are significant limitations involved in assessing a person in the witness box, in particular in assessing the extent to which they may be resilient and self-reliant in another context. There are significant stressors involved in the giving of evidence and for the mother a great deal is hanging on the outcome of the case. However even allowing for this I believe that it substantially understates the position to say that, if the mother were forced to remain in Canberra, she would be “disappointed”. I believe that her emotional state would go far beyond mere disappointment. I believe that she would be deeply unhappy if she were forced to remain in Canberra. I believe that this would make her resentful and may impact on her ability to be a cooperative parent so far as the children’s relationship with the father was concerned. Even with the best will in the world it would be difficult for her to overcome her feeling that she was being forced to remain in Canberra against her wishes by the father. I believe that her parenting capacity would be impacted on if she were forced to remain in Canberra. I believe that her unhappiness would be picked up by the children. I prefer to rely on my observations rather than those of Dr S. I appreciate the force of the arguments that I have summarised concerning the advantages of the mother’s remaining in Canberra. I have regard to [X]’s views in relation to the proposed move. On balance however I am of the opinion that the children’s best interests would be best served by making orders which will permit the mother to relocate to [O] and I have ordered accordingly.
While the case insofar as the children’s best interests are concerned is a finely balanced one it becomes a clear cut case when I factor in issues of freedom of movement. In the best of all possible worlds the children would have more regular time with the father. In the best of all possible worlds he would be involved in their sporting and other activities. In the best of all possible worlds his mother would continue to be involved in their school. In the best of all possible worlds [Y] would be close to a major hospital. But I cannot restrain the mother from moving to [O] only to preserve the best of all possible worlds.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Brewster FM
Date: 20 June 2012
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