D and D
[2006] FMCAfam 458
•10 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| D & D | [2006] FMCAfam 458 |
| FAMILY LAW – Relocation – application to move from Melbourne to G – where mother and child have already relocated prior to the final hearing – best interests of the child – child to remain in G with mother. |
| Child Support (Assessment) Act 1989, ss.117(2)(b)(i)(A), 117(3) Family Law Act 1975, ss.4, 60b, 60ca, 60cc, 60cg, 61da, 65daa |
| A & A: Relocation Approach (2000) FLC 93-035 Family Law Council report on relocation released in May 2006 |
| Applicant: | LMD |
| Respondent: | DJD |
| File Number: | MLM 2183 of 2004 |
| Judgment of: | Riley FM |
| Hearing date: | 21 August 2006 |
| Date of Last Submission: | 21 August 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 10 October 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Robertson |
| Solicitors for the Applicant: | Rowe Lawyers |
| Counsel for the Respondent: | Mr Carlile |
| Solicitors for the Respondent: | Stephen A Canals |
ORDERS
All previous parenting orders be discharged.
The father and the mother have equal shared parental responsibility for NMD (“the child”) born in 2000.
The father and the mother each have responsibility for the child’s day-to-day care, welfare and development while the child is with each of them.
The child live with the mother.
The child may live in B and may attend the local primary school.
The child spend time with the father as follows:
(a)each alternate weekend commencing on the first weekend after these orders are made from 6:00pm (give or take 15 minutes) on Friday until 6:00pm on Sunday;
(b)the first half of each mid-year school holidays;
(c)alternate weeks during the long summer school vacation with the first week to be spent with the father in 2006/2007, the first week to be spent with the mother in 2007/2008 and alternating thereafter;
(d)on father’s day from 10:00am to 5:00pm;
(e)if the father’s birthday falls on a non-school day, from 10:00am to 5:00pm;
(f)if the father’s birthday falls on a school day, from 3:30pm to 7:30pm;
(g)if the child’s birthday falls on a non-school day, from 10:00am to 3:00pm;
(h)if the child’s birthday falls on a school day, from 3:30pm to 6:00pm;
(i)between 10:00am and 5:00pm pn one Saturday per school term, such Saturday to be agreed between the parents, and in default of agreement, the Saturday closest to the middle of the term;
or, alternatively
(j)between 6:00pm (give or take 15 minutes) on alternate Fridays and 5:00pm on the following Saturdays during school term;
(k)between 3:30pm and 7:30pm on Tuesdays and Thursdays during school term; and
(l)at such other times as may be agreed between the parents.
Notwithstanding the previous orders, in 2006 and in subsequent even numbered years, the child is to spend Boxing Day with his mother from 10:00am until 5:00pm, and the father is to deliver the child to the mother’s home at 10:00am and the mother to deliver the child to the father’s home at 5:00pm on Boxing Day.
Notwithstanding the previous orders, in 2007 and in subsequent even numbered years, the child is to spend Boxing Day with his father from 10:00am until 5:00pm, and the mother is to deliver the child to the father’s home at 10:00am and the father to deliver the child to the mother’s home at 5:00pm on Boxing Day.
Notwithstanding the previous orders, the child shall spend mother’s day with his mother, and if the child would otherwise have spent that Sunday with his father, the child shall spend the immediately following Sunday with his father.
Notwithstanding the previous orders, the child shall spend father’s day with his father, and if the child would otherwise have spent that Sunday with his mother, the child shall spend the immediately following Sunday with his mother.
For the purposes of the child spending time with his father on alternate weekends, the mother (or by agreement with the father, her agent) is to take the child to his father’s home on the Friday evening and collect the child from his father’s home on the Sunday afternoon.
For the purposes of the child spending time with his father on school holidays, the mother (or by agreement with the father, her agent) is to take the child to the father’s home at the commencement of the time to be spent by the child with his father and the father is to take the child to his mother’s home at the conclusion of that time.
For the purposes of the child spending one Saturday per term with his father, the father is to collect the child from his mother’s home at 10:00am and return the child to his mother’s home at 5:00pm.
or, alternatively
For the purposes of the child spending alternate Saturdays with his father, the mother (or by agreement with the father, her agent) is to deliver the child to his father’s home at 6pm (give or take 15 minutes) on the Friday and the father is to return the child to his mother’s home at 5pm on the Saturday.
For the purposes of the child spending time after school with his father, the father is to collect the child from school at 3.30pm and take him to his mother’s house at 7.30 pm.
For the purposes of the child spending time with his father on the father’s birthday or the child’s birthday, when those days are not school days, the father is to collect the child from the mother’s home in the morning and the mother is to collect the child from the father’s home in the afternoon.
The child may communicate with the father by telephone on Tuesday evenings between 7:00pm and 7:30pm with the mother to facilitate and encourage such contact.
The child may have telephone communication with the mother on Tuesdays and Thursdays between 6:00pm and 7:30pm during those weeks that the child is spending with the father.
The father shall not attend upon the mother’s home or the immediate vicinity thereof otherwise than for the purpose of collecting or delivering the child, and the father shall not approach, harass or otherwise engage with the mother other than in a civil manner.
The mother is to authorise the local primary school to discuss the child’s progress with the father and to provide copies of all school documents, newsletters, reports, school photograph application forms and other documents of the kind normally disseminated by schools to parents.
The mother is to record the father as an emergency contact person with the local primary school and the coordinator of the out of school hours care program at the local primary school.
The mother and father are each to notify each other of any illness or injury suffered by the child requiring treatment by a medical practitioner.
The mother and father each inform the other in writing of their current residential and mobile telephone numbers and their current residential address and each party shall inform the other of any change of address or change of residential or mobile telephone number within five days of such change.
The father and his servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the mother to or in the presence or hearing of the child, and from permitting any other person to do so.
The mother and her servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the father to or in the presence or hearing of the child, and from permitting any other person to do so.
Until further order or by written agreement between the father and the mother, the father and the mother are restrained from moving to a home more than five kilometres further from each other than they are at present, and are restrained from living anywhere other than in the Melbourne and G metropolitan areas or anywhere in between them.
The mother and the father:
(a)attend and complete, as soon as practicable, the Parenting Apart post separation parenting program ("the program") at an organisation as nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia;
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;
(c)pay and otherwise be responsible for all costs associated with the program; and
(d)provide an appropriate certificate of completion of the Program to the other parties’ or their solicitors.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 2183 of 2004
| LMD |
Applicant
And
| DJD |
Respondent
REASONS FOR JUDGMENT
Introduction
This is the mother’s application for parenting orders in respect of the child born in 2000. The child is 6 years old. The parties began living together in 1992 and were married on 7 May 1996. They separated on 16 March 2004. The mother was born in 1971 and is now 35 years old. The father was born in 1969 and is now 37 years old.
In essence, the mother wishes to change the times that the child spends with his father because she wishes to move with the child from M, in Melbourne to B, which is a suburb on the western side of G. The mother has formed a new relationship with CS, who lives in B. The father sought orders dismissing the mother’s application, and seeking to restrain her from moving to B with the child. However, by the time the father’s application was filed, the mother had already moved to B and the child had started at a new school in that area.
Final orders had been made by consent on 10 March 2005 which provided in substance that:
a)The father and mother have joint responsibility for the long term care, welfare and development of the child;
b)The child live with his mother.
c)The father have contact with the child as follows:
i)until the first contact weekend in June 2005, alternate weekends from 9:30am on Saturday to 5:30pm on Sunday;
ii)from the first contact weekend in June 2005 until the end of January 2006, alternate weekends from 5:30pm on Friday until 5.30pm on Sunday;
iii)from February 2006 onwards, alternate weekends commencing at 3.30pm on Friday until 5.30pm on Sunday;
iv)for one half of the school mid-year holidays and for two weeks of the summer school holidays;
v)each alternate Thursday evening from 5.30pm to 7.30pm during 2005 and from 3.30pm to 7.00pm after the child starts school;
vi)by telephone each Tuesday and on each alternate non-contact Thursdays between 6pm and 7:30pm; and
vii)at specified times on the father’s and the child’s birthdays, on Father’s Day and at Christmas time.
The consent orders made on 10 March 2005 provided that the father was to collect the child at the commencement of contact. Initially, the child was to be collected by his father from McDonald’s at M. After the child started school, he was to be collected by his father from school. The mother was to collect the child at the end of contact from his father’s home in R, unless otherwise agreed, provided that his father resided within 20 kilometres of his existing address. The father has not moved from that address and he continues to rent his accommodation.
The consent orders made on 10 March 2005 also provided that if his mother wished the child to attend any special family or other events which fell during his father’s contact periods, she was to provide the father with no less than 21 days notice and provide a proposal for alternative contact. The consent orders provided that any such variation was subject to the father’s approval.
Factual background
When the parties first separated in March 2004, the father was living in a rented unit in R and the mother was living in a house in M with her brother and her friend B. The three of them are part owners of the property. In November 2005, the mother commenced a relationship with B’s brother, CS.
In February 2006, the child started school at the local primary school. The mother had wanted to consider non-state school options for the child but the father indicated that he was not willing to pay any school fees. He presently works a few days a week as a taxi driver, having suffered an injury to his shoulder and having been on Workcover for some months.
The child did not spend time with his father for the full two weeks over the 2005/2006 Christmas break that were contemplated by the consent orders made on 10 March 2006. The child spent only five or six days with his father during that period.
The child also rarely spent time with the father on the alternate Thursday evenings. The mother said that the child had spent Thursday evenings with the father on only five occasions in the last 18 months, all of them in 2005. The father said that the reason he had not spent more Thursday nights with the child was that the wife had told him that she had other commitments and was not able to collect the child until well after 7:30 pm on the Thursdays. Given the child’s need to go to bed early, the father indicated that he felt that he had no option but to forgo time with the child on the Thursday evenings.
Having seen the parties give evidence, I find that the difficulties with the father spending time with the child on the Thursday evenings were largely the result of the mother’s conduct. I find that the father was a more reliable witness overall. Also, during the course of the hearing, the mother demonstrated a somewhat cavalier attitude to her need to comply with court orders. She seemed to consider that the father and the child should simply fall in with her social and other commitments regardless of the requirements of the orders of the court, to which she had consented, and regardless of the child’s need to spend time with his father.
The father gave unchallenged evidence that in March 2006, the child cut his leg badly while on a picnic with his mother at Maroondah. He was taken to hospital for treatment, but the father did not find out about the incident until five days later. The consent orders made on 10 March 2005 required the mother and father to notify each other “as soon as practicable of any serious illness or injury suffered by the child necessitating treatment of a medical practitioner”. In my view, an injury requiring a hospital visit would fall within that requirement. The mother did not explain why the father did not hear of the injury for five days.
The father gave evidence (partly by adopting as true what his counsel had put to the mother in cross examination) that the mother had telephoned him at 3:00pm on 19 January 2006 to say that she could not get to his premises until well after the ordered collection time of 7.30pm. The mother in cross-examination said that she did not recall this incident. The father gave evidence that the mother telephoned him at 2:00pm on 7 February 2006 to say that she could not collect the child until well after the ordered collection time of 7:00pm. The mother said that she did not recall this incident. I find that the mother made the calls that were put to her in cross examination.
The mother accepted in evidence that she sent the father a text message on 4 April 2006 asking him to drop the child at her Nan’s house, even though the consent orders required her to pick up the child herself. It was put to the mother that, on 18 April 2006, she sent the father a text message telling the father to drop the child off at her friend B’s house. The mother said that she did not recall sending that message. I find that she did.
By letter dated 10 April 2006, the mother advised the father’s solicitor that she intended to move to G at the end of term two in 2006 and to enrol the child at the local primary school in N, which is a suburb of G, so that he could commence there at the start of term three. The mother also said in her letter that, as the father had not exercised contact on the Thursday evenings, the move ‘should not be an issue’. The mother proposed that changeover should be at the Shell Service Station near the Westgate Freeway at 5:30pm, give or take an hour. The wife also proposed that someone other than herself be able to pick the child up or drop him off.
By letter dated 27 April 2006, the father’s solicitor advised the mother that the father would ‘under no circumstances agree to [her] relocating with the child to G.’ The letter stated that the proposals were more or less unworkable and said that the difficulties with the Thursday evenings had arisen from the mother’s failure to comply with the order regarding the collection of the child at the conclusion of contact. The letter also noted that the child had a settled routine of spending alternate Friday evenings with his extended family and participating in sporting activities each second Saturday morning. The letter also made the point that the father had made arrangements with his employer and located his own residence so as to ensure that he spends enough time with the child and needs to do as little travel as possible in order to see the child. The letter also said that the father would seek restraining orders if the mother did not indicate within 7 days that she no longer intended to relocate with the child.
The wife’s solicitor replied by letter dated 3 May 2006. In that letter, the mother reiterated her intention to move to the G area with the child and asked that an agent be able to attend to changeover on occasions. The letter said that the mother proposed no real substantive changes to the current orders and advised of the address that she would be living at with her new partner.
The mother filed the initiating application on 29 May 2006. It essentially seeks a regime where the father spends time with the child on alternate weekends, from 6.00pm on Friday until 5.30pm on Sunday, with various arrangements made for birthdays, father’s day and Christmas. It proposes that the child spend one half of the mid-year school holidays with the father and two weeks during the summer holidays. It also proposes telephone contact each Tuesday and Thursday between 6.00pm and 7.30pm. The application also seeks orders that the mother be permitted to send an agent to changeover in circumstances where she considers it necessary.
On or before 1 July 2006, the mother did in fact relocate with the child to B and did in fact enrol him at the local primary school. The mother at that time commenced cohabiting with CS. I find that in moving to B, the mother knew that the child would not be able to spend alternate Thursday evenings at his father’s house.
CS gave evidence that he and the mother were living in B in rented accommodation. He said that he worked as a whitegoods sales and repair man and did not work closer to Melbourne than L. He has two daughters, one who presently attends the local primary school and the other who attended that school until she commenced secondary school.
The mother’s solicitors wrote to the father’s solicitors on 7 July 2006 asking whether the father intended to spend time with the child on the weekend commencing Friday 14 July 2006, as provided in the court orders. The mother said that she had made other arrangements for that weekend and did not find out until 3pm on 14 July 2006 that the father did wish to spend time with the child on that weekend. Given that the mother’s solicitors chose to make their enquiry by ordinary mail, it is not surprising that the response was not received until shortly before the time scheduled for the child to spend time with his father.
The mother gave evidence, without objection, that the father had said at a confidential mediation that he did not intend to spend time with the child during July 2006. I accept that the father may have said this, at some point during the mediation. However, his statement of intention needs to be seen in the context of the mother moving to B, and the orders providing for the father to collect the child from school. I accept the father’s evidence that for him to have collected the child from school in B would have required a five hour round trip from R, after the father had driven long hours on the Friday as a taxi driver. Whatever may have been said at the mediation, one way or another, the child did spend time with his father during July 2006. The mother drove the child to Melbourne for that purpose.
The father filed a response on 4 August 2006. He sought orders that the mother be restrained from relocating with the child to G, from removing him from his present school and from enrolling him in any other school. As noted above, by that time, the move had already occurred.
By letter dated 8 August 2006, the principal of the child’s new school reported that the child “has quickly settled into his new environment both in school, the playground and in out of hours school care. He has quickly made friends and interacts well with his teacher and out of school care staff.” This evidence was not given on oath but nor was there any objection to it. In the circumstances, it seems to me that it would be reasonable to give weight to the principal’s views.
The father gave evidence that the child had had a good deal of contact with his maternal grandparents when he lived in M as the grandmother regularly took him to school and collected him. The mother said that this arrangement could not continue as the grandmother’s working hours had changed. I accept the mother’s evidence on that matter.
The father also gave evidence that virtually all of the child’s extended family lived in the Melbourne area, the mother’s relatives being primarily near M and the father’s relatives being primarily in the LR and C areas. He said that the mother had no relatives in the G area who could help out in case of emergencies. The father gave affidavit evidence that when he is with his father, the child spends a good deal of time with his extended family, which includes cousins of approximately his own age. I accept that evidence.
The father gave evidence that the child had been attending Auskick on Saturday mornings and having swimming lessons, and that he wanted the child to start attending cubs. The mother deposed that the child had joined the G and District Angling Club and the G Rope Quoits Competition and that he had recently received a trophy. CS gave evidence that he and the mother had taken the child to play quoits on Wednesday nights from before they had moved to B. He said he and his daughters had played quoits for some years. He said that the quoits meeting went from 7.30pm until 8.45pm on Wednesdays and the child had been returned home to M at 11:00pm. I accept that evidence.
CS was asked in cross examination whether he thought cubs and Auskick were good activities for boys. He said that he was not familiar with them. He was asked whether his daughters had attended girl guides. He said that they had not.
It was not apparent from the evidence whether CS’s daughters live with CS, the child and his mother or whether they live with their mother. In any event, the mother deposed that the child has a close relationship with CS and his daughters. I accept that evidence.
The mother is a data entry processor and administrative officer who works in S. She presently commutes from B to S four days per week, namely, from Monday to Thursday. She does not presently work on a Friday but said that she would like to seek employment in the G area that may result in a change to her working hours.
The father said in oral evidence that he works as a taxi driver on Friday for long hours and would find it very difficult to drive to G on a Friday. He said that he would prefer not to drive to the Westgate Bridge on a Friday. The father’s taxi depot is in V, which is in the outer east of Melbourne.
It was estimated that the driving time from B to R was about two and a half hours depending on the traffic. The father accepted in cross-examination that although the local primary school is a long way from R, it would be possible for the father to drive there on occasion to speak to the child’s teacher and otherwise participate in the child’s school activities, on those days when the father was not working.
The father gave evidence that every Sunday the child was in tears because he did not want to go back to B. The mother also said that the child was also in tears on occasions when it was time for him to go to the father. I accept the evidence of both parents on this matter. It is in the child’s best interests that both of his parents have a positive and responsible attitude towards him spending time with the other parent and maintaining a good relationship with the other parent. Both parents have an obligation, in the interests of the child’s long term well being, to foster a good relationship between the child and the other parent. Accordingly, there will be orders that the father and the mother attend a parenting apart program.
The father is now paying the mother $340 per month for child support for the child. The father’s child support payments were reduced to $5 per week in May and June 2006 because at that time he was being paid nothing, due to a misunderstanding by his previous employer about its obligations under Workcover. The mother put to the father that he had been unduly slow in arranging with the Child Support Agency to restore the proper level of child support once the problems with his Workcover payments had been resolved. The father said that he had notified the Child Support Agency reasonably promptly but it had taken them some time to process the information. I accept that evidence.
The father said that, when the mother was living in M, the most he had to drive for the child’s changeovers was 10 to 15 minutes. He said that driving to the Westgate Bridge to collect the child would be a two hour round trip. I accept that evidence.
Submissions and proposals
The mother’s proposal was that the child should live with her in B and spend time with the father on alternate weekends. At the hearing, the mother proposed that the child spend an extra day in each of the mid year school holidays to make up for the time that he would have spent with the father on Thursday evenings. It was calculated that the three and a half hours on alternate Thursdays provided for in the orders made by consent on 10 March 2005, multiplied by 20 weeks, being the number of alternate Thursdays in the year, excluding time spent with the father on school holidays, amounted to 70 hours or a little less than three full days in a year.
Ultimately, the parties agreed that, if the child did remain in B, it would be better for him to spend time with the father on one extra Saturday per school term, rather than extending the time the child spent with the father on school holidays. To reach this agreement, the father offered to travel to B on the relevant Saturdays and collect the child at 10:00am from the mother’s home and return him there at 5:00pm. Given that the child is only six years old, I accept that it is preferable for him to spend time with his father frequently, rather than by adding an extra day to an existing period of a week or more.
The mother submitted that the court should allow people other than herself, namely, B and CS, to drop off and collect the child. She also submitted that there should be more flexibility in the drop off and collection times. The father submitted that the mother should continue to attend personally to the child’s changeovers and submitted that the parties needed clear and unequivocal orders.
The mother proposed that changeover occur at S on the Melbourne side of the West Gate Bridge. The father submitted that, if the child were to remain in B, the journey should not be split with a changeover at the West Gate Bridge. Rather, one person should drive the child all the way to or from the father’s home. The wife gave evidence that the child frequently fell asleep in the car. I accept that it would make the trip very uncomfortable for the child to be woken up half way through, just to spend another hour or so in a different car with a different parent. Accordingly, the orders will provide for the child to be driven from wherever he is to his destination without a change of driver and vehicle in the middle of the trip.
The father submitted that there was no benefit to the child in moving to G, though the father conceded that there was some benefit to the child’s mother.
The father submitted that it would be in the child’s best interests to live closer than B to his extended family, which includes cousins of approximately his own age, so that he did not have to travel long distances to spend time with them.
The father’s proposal was that the child should return to the local primary school and live with the mother nearby. In that case, the father said that he would like to spend time with the child on Thursday nights in accordance with the previous consent orders. If the mother were to stay in B, the father proposed a shared care arrangement, where the father would collect the child from school every day. The father would have the child overnight every Monday and Wednesday, and take him to school every Tuesday and Thursday. To fit in with his work commitments, the father proposed that the mother would have the child on Tuesday and Thursday nights and take the child to school on Wednesdays and Fridays. The father proposed that the child spend alternate weekends with each parent. The father suggested that the mother could live at, or stay at, her house in M or live with, or stay with, her parents either fulltime or just for the nights the child would spend with her.
The wife gave evidence that the house in M that she part owns is going to be sold in the near future. She also gave evidence that it would be difficult to stay with her parents as her father is a diabetic and she did not know whether they would want her to stay with them. I accept that evidence. The mother also said that she did not wish to stay with or live with her parents. It is entirely understandable that a 35 year old woman would not wish to stay with her parents two nights a week for the foreseeable future or live with them on a permanent basis. I consider that the father’s proposal in that regard is not viable. Similarly, the house in M is going to be sold. The mother living there is not a viable option.
The father submitted that the inability of the child to spend time with his father on alternate Thursday evenings was a significant shortcoming in the mother’s proposal.
Legislation
Objects and principles
Part VII of the Family Law Act 1975 (“the FLA”) deals with children. Section 60b of the FLA provides that the objects and underlying principles of Part VII of the FLA are as follows (omitting for present purposes sub-s.3 which deals with Aboriginal and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Best interests of the child
Section 60ca of the FLA provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60cc of the FLA relevantly provides that:
1.Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
2.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.
3.Additional considerations are:
(a)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;
(b)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);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child …
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) 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; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A)If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Family violence
Section 60cg of the FLA provides that:
1.In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a)is consistent with any family violence order; and
(b)does not expose a person to an unacceptable risk of family violence.
2.For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.”
Family violence does not appear to be an issue in the present matter, though there has been some tension and anger between the parents. I anticipate that the parenting apart program that the parents will be ordered to attend will alleviate the difficulties in this regard.
Equal shared parental responsibility
Section 61da of the FLA provides as follows:
1.When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
2.The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
3.When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
4.The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In the present case, it is agreed that the parents should have equal shared parental responsibility for the children.
Equal or substantial and significant time with each parent
Section 65daa of the FLA requires the court to consider the children spending equal time, or a substantial and significant time, with each parent if the parents are to have equal joint parental responsibility. It provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
4.Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
In the present case, by agreement, and, in my view, appropriately, the parents are to have equal shared parental responsibility for the child. Accordingly, the court is required to consider whether it is in the child’s best interests that he spends equal time with each of his parents and whether equal time is reasonably practicable. If so, the court is required to consider whether an order for equal time should be made. If not, the court is required to consider whether the child spending substantial and significant time with each parent would be in the child’s best interests and would be reasonably practicable. If so, the court is required to consider whether the child should spend substantial and significant time with each parent.
In the terms of the legislation, the child will spend substantial and significant time with each of his parents if the time that he spends with each of them includes weekdays, weekends and holidays, and allows each parent to be involved in the child’s daily routine, and involved in occasions and events that are of particular significance to the child and to each of his parents.
In determining whether equal or substantial and significant time with each parent is reasonably practicable, the court must have regard to how far apart the parents live from each other, the parents’ capacity to implement the necessary arrangements, the parents’ capacity to communicate with each other, the impact of the arrangement on the child and any other matters the court considers relevant.
Case law
D & SV
The mother submitted through her counsel that this is not a relocation case but a case concerning changes to the arrangements for the child to spend time with his father. Reference was made to the decision of the Full Court of the Family Court in D & SV [2003] FamCA 280; (2003) FLC 93-137 (Nicholson CJ, Kay & Monteith JJ). The Full Court said at paragraphs [37] to [40]:
37. While it was not a ground of appeal, we raised with Counsel for the respondent the issue of whether in the context of this relatively short move, the relocation principles in those cases should apply to this case. It was her submission that any move of residence that requires a significant change in existing parenting arrangements can bring the principles discussed in those cases into play. While we did not hear argument contesting that proposition, it seems to us to be an approach that may be open in some cases. However, the normal reason for applying the reasoning used in such cases, particularly where residence is not seriously in issue, is to seek to restrict the freedom of movement of the residence parent. 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.
38. Clearly the less distance involved in the move, the more readily satisfactory alternative contact arrangements or logistical arrangements for shared residence are likely to be available. A move over a great distance may render shared residence or meaningful contact difficult if not impossible.
39. The amount of emphasis to be given to one or other of the competing matters in a relocation case will change depending on the degree of relocation involved and the degree of interference with the existing arrangements.
40. Where a move interstate or overseas requires a dramatic and drastic change in the nature of the manner in which the parents share in their children’s lives, much emphasis might be given to the deleterious effects of such a move on the relationship with the other parent. Where the move is within the same State or certainly within the same city resulting in room for significant contact, such a move might well face less resistance from the Court.
D & SV concerned a somewhat similar factual matrix to the present case. In D & SV, there were three boys aged 13, 11 and 9 years old who lived with their mother except on alternate weekends and for part of the school holidays. The children also spent Wednesdays after school with their father. The parents and the children lived in the vicinity of V in Melbourne’s eastern suburbs until 12 months after the mother formed a new relationship. The mother and her new partner decided at that point that they would rather live in D where the new partner had some connections. The mother sold her home in V and bought a home in D without informing the father of her plans.
The trial judge restrained the mother from living more than ten kilometres from the father’s home. The Full Court on appeal set aside that order and enabled the mother to remain in D with the children. The Full Court also made orders providing for the father to have weekend contact on two out of every three weekends as well as sharing school holidays.
D is on the BP a little further from Melbourne than B. V is about the same distance from the central business district of Melbourne as R, and is in the same direction. The principal differences between D & SV and the present case are the difference in the ages of the children (being an average of 11 against the child’s age of six), the fact that the mother and her new partner had actually bought a house in D whereas in the present case the mother and her partner are renting, and there was no indication in D & SV that all of the children’s extended family lived in suburban Melbourne.
AMS v AIF
If this matter is to be regarded as a relocation case, the relevant principles were explained by Kirby J in the High Court in AMS v AIF (1999) 199 CLR 160; FLC 92-852 as follows (citations omitted):
142. First, each case depends on the application of the governing legislation which, in turn, is in a constant state of amendment and re-expression. Care must therefore be observed in applying propositions advanced in particular jurisdictions where the legislative duties of the courts are relevantly different. Necessarily, the facts of each case are unique. Those facts call forth a “careful and delicate analysis”, which renders previous decisions of limited assistance, except in so far as they offer illustrations which may tend to promote a general consistency of approachhttp://web2.westlaw.com/result/result.aspx?cite=199+CLR+160&cxt=DC&fcl=False&rp=%2fFind%2fdefault.wl&ss=CNT&docsample=False&cnt=DOC&n=1&rlt=CLID_FQRLT363923118&service=Find&ReferenceSDU=214&ReferencePositionType=T&ReferencePosition=FN%3BFFN%2E140&AP=&fn=_top&rs=WLW6.07&mt=WestlawAustralia&vr=2.0&sv=Split&sp=famcourt-2004.
143 Secondly, unless legislation provides otherwise, no single factor is dispositive of decisions governing the residence of a child in a context of the proposed relocation of the parent with whom the child resides. It is necessary for a court, making decisions affecting the child’s place of residence, to attempt a resolution of often irreconcilable considerations. Statute may, and commonly does, instruct that the “welfare” (or “best interests”) of the child should be the paramount consideration. It may provide a list of considerations or “principles” to be applied in the exercise of the court’s powers. However, the “paramount” consideration is not the same as the “sole” or “only” consideration. The relevance of enumerated statutory principles will depend upon the circumstances of the particular case. Preconceived notions as to the weight which must be given to particular factors are incompatible with the exercise of an individualised judicial discretion such as is mandated by Australian legislation.
144 Thirdly, a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.
146 Fifthly, whilst legislative reform sometimes reflecting international law, has laid increased emphasis upon the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with each of them on a regular basis, the rule is not an absolute one. Courts recognise the implications of the application of that right for the custodial (or residence) parent, and particularly because most of them are women. To avoid unnecessary derogations from women’s equality or the “feminisation of poverty” resulting from the effective immobilisation of a custodial (or residence) parent, some Canadian judges have lately proposed a presumptive deference in favour of the right of the custodial (or residence) parent to reside where she or he decides unless good reason, relevant to the welfare or best interests of the child, is demonstrated to the contrary. Although this presumption was supported by a minority in the Supreme Court of Canada in Gordon v Goertz, it was rejected by the majority as incompatible with the individualised assessment required by the statute, addressed as it is to the best interests of the child. The objective of the minority was understandable. However, the reasoning of the majority is preferable, at least so far as the applicable Australian legislation is concerned.
147 Sixthly, in evaluating disputes concerning an expressed desire of a custodial (or residence) parent to relocate the residence at which the child will reside in circumstances which necessarily diminish the opportunities of the other parent to have access to, and contact with, the child, courts have suggested, rightly in my view, that a more relaxed attitude should be adopted to relocation within Australia than relocation overseas. This approach is connected with the ready availability of reliable transport and telecommunications, social and cultural factors, the absence of many dangers which exist in other parts of the world and notions of national community. But even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child’s contact with, and access to, the other parent. Proof that the custodial (or residence) parent has remarried and wishes to join a new spouse overseas; wishes to return to a supportive family in the land of origin, or has a well thought out and reasonable plan of migration may suffice to convince the court having jurisdiction over the child, that the best interests of the child favour continuance of the custodial (or residence) arrangement in another jurisdiction but with different orders as to access and contact.
148 Seventhly, just as, depending upon the legislation, conditions may be placed upon a custodial (or residence) parent as to where the child may reside according to its best interests, when it is proposed that residence arrangements change, the very fact of disturbing them (particularly if likely in practice to alter access to, and contact with, the other parent) will present a consideration that must be taken into account in judging whether new arrangements should be approved. If a parent seeks to change arrangements affecting the residence of, access to or contact with the child, he or she must demonstrate that the proposed new arrangement is for the welfare of, or in the best interests of, the child. Because the child’s access to, and contact with, the other parent will necessarily be diminished to the extent that relocation of its residence disturbs a physical proximity which has hitherto existed, it will often be necessary to adjust orders as to access. This will be done to offer new and different facilities of access and contact such as longer periods of residence with the other parent during school holidays and at other times.
149 Eighthly, although at common law the concept of custody was indivisible, statute has altered this position. Joint custody and guardianship became increasingly common even before recent legislation made shared parental responsibility for a child the modern norm. Yet even now, courts necessarily retain the power to order otherwise. Under the legislation, before it was changed, the determination of whether joint or sole guardianship should be ordered was within the discretion of the court. Departure from the norm of shared parental responsibility is also within the court’s discretion.
A v A: Relocation Approach
In the matter of A & A: Relocation Approach (2000) FLC 93-035; [2000] FamCA 751, the Full Court of the Family Court set out a guide for courts in considering relocation matters. That guide is at follows at [108]:
In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas:
* The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.
* A court cannot require the applicant for the child's relocation to demonstrate "compelling reasons" for the relocation of a child's residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances:
* It is necessary for a court to evaluate each of the proposals advanced by the parties.
* A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be 'permitted'."
* The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.
* It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) - (l) of that subsection.
* The object and principles of s60B provide guidance to a court's obligation to consider the matters in s68F(2) that arise in the context of the particular case.
* It is to be expected that reasons for decision will display three stages of analysis and:
1. A court will identify the relevant competing proposals;
2. For each relevant s68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s60B;
* As one, but only one, of the matters considered under s68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.
* The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
* Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.
3. On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child's best interests are the paramount but not sole consideration.
* The process of evaluating the proposals must have regard to the following issues:
a) None of the parties bears an onus:
* In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.
b) The importance of a party's right to freedom of movement:
* In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s92 of the Constitution, where applicable.
* In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child's rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.
c) Matters of weight should be explained:
* In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.
* In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.
KB & TC and U v U
More recently, in KB & TC [2005] FamCA 458, a differently constituted Full Court of the Family Court (Bryant CJ, May and Boland JJ) considered the High Court decision of U v U [2002] HCA 36 (2002) 211 CLR 238. In KB & TC, the Full Family Court said:
70. In U v U (2002) 211 CLR 238 at 260 Gummow and Callinan JJ said:
“We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. Whether the Court is obliged, or will be able in every case to treat each of the three steps as discrete and in the suggested order may be another question. But the Court is not, on any view, bound by the proposals of the parties. The Court has to look to the matters stated in s 68F and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child’s best interests.”
71. In U v U the High Court reaffirmed that the “overarching issue” (at 260) is to ensure any parenting order is in the best interests of the particular child. We accept that whilst in some cases each s 68F(2) factor may be relevant in determining what is in the best interests of a child, in other cases a more limited examination of s 68F(2) factors may be appropriate as being the only relevant (our emphasis) factors to the particular issue to be determined.
72. We discern that the decision in U v U has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s 68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.
…
83. In U v U at paragraph 70 Gummow and Callinan JJ, when dealing with the appellant’s argument that the trial Judge had failed “to focus on, analyse and reach a conclusion on the separate proposals of the respondent and the appellant...”, said:
“There is, in our opinion, an air of artificiality about the appellant’s argument on the first ground. No doubt there will be cases, perhaps many cases, in which a court can and should adopt, with few changes or additions, the arrangements proposed by one of the parties for the future of the child or children whose welfare is paramount, in preference to the other.
...
There will, however also be cases, and not a few of them we suspect, in which it will simply not be possible for a judge to adopt exclusively or perhaps even substantially, a proposal of either party. In such a case the final order will evolve out of the evidence as it emerges, and submissions as they are developed.”
84. Hayne J at paragraphs 171 and 172, also dealt with the requirement, in some cases, for a trial Judge to look beyond the proposals of the parties, in his or her fundamental task of ensuring the parenting orders made are in the best interests of a child. He said:
“171. In these circumstances, it would be quite wrong to treat the decision that is to be made as confined to a choice between whatever may be the particular ‘proposals’ that the parents may make for the residence of, and contact with, the child. So to confine the inquiry would, in this case, have required the Family Court to ignore admittedly relevant evidence that was led about what the mother would do if it were decided that the child should live in Australia rather than India. More fundamentally, it would confine the Court’s inquiry to what the parents suggested would be in the best interests of the child, regardless of whether those suggestions were informed, even wholly dictated, by the selfish interests of one or other of the parents. To confine the inquiry in this way would, therefore, disobey the fundamental requirement of the Act that the Court regard the best interests of the child as paramount. Those interests may, or may not, coincide with what one or both of the parents put forward to the Family Court as appropriate arrangements for residence and contact.
172. That is not to say that the Family Court is to embark upon some roving inquiry about the matter, unfettered by any regard for the evidence led and the matters which the parties seek to contest. Due account must be taken of the fact that proceedings in the Family Court are conducted in a framework of adversarial procedure familiar to the common law. (I do not stay to consider how or to what extent that adversarial model has been modified by the Act or rules of court made under it.)”
85. The requirement to look beyond the proposals of the parties highlights the fundamental difference in litigation involving the welfare of a child, and ordinary inter partes litigation. This unique requirement may necessitate a trial Judge crafting orders which are outside the proposals presented by either party, subject to the caveats expressed by Hayne J set out above. This task requires a trial Judge to afford the parties procedural fairness by indicating and inviting comment on changes to the parties’ own proposals, for example, by way of additional or different contact to that proposed by the relocating party, or a limitation to a period of restraint in removing a child from its present geographical location.
Applying KB & TC and U v U, it is clear that in deciding this case, the court should not be confined to the proposals advanced by the parties but should determine what is in the child’s best interests based on all of the evidence.
In U & U, Gaudron J, in dissent, noted at [35] that:
“it is noteworthy that in this case there was no consideration of the possibility that the father could return to India permanently to avail himself of frequent and regular contact with his daughter. The failure to explore that possibility, particularly given the father’s origins, his professional qualifications and family contacts in India, seems to me to be explicable only on the basis of an assumption, inherently sexist, that a father’s choice as to where he lives is beyond challenge in a way that a mother’s is not.
Hayne J, also in U & U, at [173-175], made an observation to a similar effect:
In this case, there were only three outcomes which were raised by the parties in the proposals which they made and in the way in which the matter was conducted at trial. Put shortly, and incompletely, those three outcomes were that the child would reside with the father in Australia, with the mother in India or with the mother in Australia. All of those outcomes assumed that the father would remain in Australia.
There may have been some sufficient and compelling reason for the parties to make that assumption and to conduct the litigation on this premise. But neither the premise nor the reasons for adopting it were explored in evidence or in argument in the courts below and therefore these matters could not be tested or examined in this Court. The premise is not one which, in relocation cases, should be accepted as a matter of course.
When one parent (for whatever reason) wishes a child who is, or is to be, resident with that parent to move to a place distant from the other parent, it should not be assumed that that other parent cannot, or should not, contemplate moving to be near the child. There may be (and for all that is known, in this case there was) compelling reason for that other parent (here, the father) not to move, but it would ordinarily be expected that these reasons would be explored in evidence and the validity of any assumption that the other parent will not move would be examined. Just as, in this case, the mother was asked what she would do, if she could not have the child reside with her in India, so too it might have been expected that the father would be asked what he would do, if the mother were to have the child reside with her in India. Such questions should not be treated as mere forensic tests of parental devotion, to which only one answer is seen as being satisfactory proof of being a loving parent. Rather, they are no more than a prelude to a deeper inquiry about where the best interests of the child may lie and what arrangements will best serve those interests.
Their Honours’ observations highlight that the best interests of the child may be such that, where one parent wishes to relocate, the other parent should also consider relocating to be closer to the child. In this case, that could mean the father relocating to G, or perhaps W, to be equidistant between his parents and siblings and his son. Given that the father is renting at the moment, the costs of him moving are not as great as they would be if the father owned a house. Additionally, as a taxi-driver, the father’s skills are readily transferable. The same, of course, can be said for the mother. She and CS are renting and have readily transferable skills.
Post 1 July 2006
The need for a father to consider the possibility of relocating has perhaps become more acute since the changes to the parenting provisions of the FLA introduced on 1 July 2006, part of which is set out above. Those changes envisage children having as close to equal time with both parents as circumstances permit. They reflect a considered view that it is in the best interests of children to have meaningful relationships, and therefore substantial amounts of time, with each of their parents. It is now unlikely that orders will be regularly made for children to spend alternate weekends and half of school holidays with their fathers.
The court is now required to consider the children spending equal time with each parent, and failing that, spending substantial and significant time with each parent. That is defined to include some time on weekends and some time mid-week. The idea is that the children are to have the benefit of each parent spending large amounts of time with the children and the benefit of each parent participating in all of the normal daily routine of the children’s lives, rather than just seeing one or the other of their parents on alternate weekends and school holidays. Given these substantial legislative changes, and the significant social policy they reflect, relocation and other parenting cases decided under the previous legislative regime may provide less guidance than they once did.
Having said that, the FLA contains no restriction on parental freedom of movement. The report of the Family Law Council released in May 2006 on relocation considered whether there should be a presumption in favour of or against relocation. At paragraph 6.30, the Family Law Council recommended that there be no presumption either way. Section 65daa(5) of the FLA, which provides how the reasonable practicability of a child having equal or substantial and significant time with each parent is to be determined, specifies as one factor “how far apart the parents live from each other”. That would seem to suggest that, to an extent, the court is to take the residence of each parent as it finds it, though there remains jurisdiction to restrain a relocation if that is in the best interests of a child.
In summary, in parenting matters in general and relocation cases in particular, the state of the authorities and legislation requires the court to treat the best interests of the child as paramount. Each case is unique and is to be considered on its own merits. There are strong policy considerations in favour of parental freedom of movement. Parents are entitled to form new relationships. It is in the interests of a child to have parents who are happy and fulfilled. On the other hand, there are also strong policy considerations, and clear legislative directives, in favour of children spending equal or substantial and significant time with each parent. Relocation can impact adversely on the prospects of a child spending substantial and significant time with the parent with whom he or she does not live. The task of the court is to resolve the matter in a way that neither punishes nor rewards a parent, but which promotes the best interests of the child.
Consideration
Bearing in mind that the best interests of the child are the paramount consideration, and taking into account the various cases and principles mentioned above, my consideration of the relevant factors set out in s60cc of the FLA is as follows.
The benefit to the child of having a meaningful relationship with both of his parents
It would clearly be of very great benefit to the child to have a meaningful relationship with both of his parents. The child’s mother and father are both capable and loving parents who are strongly motivated to be involved in his upbringing. They each have different and important contributions to make to the child’s long term development and well-being. To establish and maintain a meaningful relationship with the child requires both parents to spend a considerable amount of time with him in person. This is particularly so as the child is only six years old. This factor is given primacy in this decision.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There was no indication that either parent was exposing the child to physical or psychological harm, except to the extent that he was aware of tensions between the parents and found the changeovers between the parents so stressful that he cried on each occasion. As indicated above, the court anticipates that the order requiring the parents to attend a parenting apart program will alleviate these difficulties. This factor, to the extent that it arises, is given primacy in this decision.
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
A family report was not prepared in this case and the child’s views were not otherwise expressed to the court, except that the parents both reported that the child cried at the prospect of each changeover. I take this to mean that the child is comfortable with whichever parent he happens to be with, and wishes to continue to be with that parent when he is with him or her. Although the child is very young, it is appropriate for the court to give weight to the child’s apparent wish to spend time with each parent.
The nature of the relationship of the child with:
each of the child’s parents; and
other persons (including any grandparent or other relative of the child)
The child appears to have a good relationship with each of his parents. Since the parties separated on 16 March 2004, the child has primarily been in the day to day care of his mother, with alternate weekends and part of school holidays with the father. There do not appear to be any significant problems in the relationship between the child and either of his parents.
The child also appears to have the good fortune to have a good relationship with all members of his extended family on both his father’s and his mother’s side. Living in Melbourne would make seeing the members of his extended family somewhat easier and the travel to see them somewhat less time-consuming and tiring than continuing to live in B, as virtually all of the child’s extended family lives in Melbourne.
The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The mother has in some respects failed to facilitate and encourage a close and continuing relationship between the child and his father. She was obstructive and difficult about the child spending time with his father on Thursday nights, even while she was living in M, and, of course, she has now moved to B, making it much more difficult for the child to spend time with his father on Thursday nights.
There is no real indication that the father is not willing and able to facilitate a close and continuing relationship between the child and his mother.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
either of his or her parents; or
any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Before the child moved to B, he was living with his mother, her brother and her friend B. There was no suggestion that ceasing to live with the mother’s brother or friend has had or will have any adverse impact on the child.
For the last two or three months, the child has been living with his mother and her new partner, CS, with whom the child has a close relationship. It seems unlikely that ceasing to live with CS would cause the child any major distress, save and except that if the mother also ceased to live with CS, her possible unhappiness could have adverse consequences for the child. The child’s relationship with CS’s daughters is not a particularly significant factor.
The fact that the child is presently unable to see his father on alternate Thursday nights is not properly characterised as a change, as the child has not in fact seen his father on a Thursday night all this year. If the child stays in B, he will not be separated, as such, from his father and the members of his extended family, though there will be some practical difficulties in spending time together.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
If the child stays in B, there will be additional costs involved in ensuring that he is able to spend time with his father, namely, the cost of petrol. Also, if the child stays in B, there are practical difficulties involved in him spending time with his father in the form of the child spending lengthy periods of time in the car, and someone needing to drive him fairly long distances fairly often.
The capacity of:
each of the child’s parents; and
any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Both of the child’s parents are clearly able to provide for his needs, including his emotional and intellectual needs. The contribution of other relatives and friends is also valuable for the child, and should be encouraged.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
There do not appear to be any matters of particular significance in relation to this consideration.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parents have demonstrated a good attitude to the responsibilities of parenthood, with the exception that the mother does not appear to sufficiently appreciate that one of her parental responsibilities to is foster a good relationship between the child and his father.
Any family violence involving the child or a member of the child’s family
This consideration does not appear to be of any particular significance in the child’s case.
Any family violence order that applies to the child or a member of the child’s family, if:
the order is a final order; or
the making of the order was contested by a person
This consideration does not appear to be of any particular significance in the child’s case.
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 child
It would be preferable in the circumstances of this case to make orders that would be the least likely to result in the institution of further legal proceedings. However, in view of the orders that I propose to make, it will be necessary to give the parties an opportunity to make further submissions on some aspects of the matter.
Any other fact or circumstance that the court thinks is relevant
There do not appear to be any relevant matters other than those expressly stipulated by the legislation.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) 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; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child
The definition of “major long-term issue” in s.4 of the FLA includes the following:
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.”
The mother, in making it difficult for the father to spend time with the child on Thursday evenings even while the child was still living in M, did not facilitate the child spending time with the father. The mother, in deciding to move to B and to enrol the child in the local primary school without seeking any meaningful discussion with the father, did not facilitate the father participating in making long-term decisions about the child and did not facilitate the child spending time with the father.
The fact that the father, in the past, may have said that he did not wish to pay any school fees for the child, and did not involve himself in the selection of the local primary school as the school that the child initially attended, did not absolve the mother of her responsibility to attempt to engage in meaningful discussions or written communication with the father about major long-term issues relating to the child. That responsibility requires that a genuine effort be made. Making a genuine effort to engage in a meaningful discussion involves giving the other person sufficient time to consider a proposal, having sincere respect for the other person’s needs and point of view and being willing to search for a solution that accommodates the needs and point of view of both parties.
On the other hand, the father seems to have shown little interest in choosing the child’s initial primary school. He also failed to make a genuine effort to discuss the issue of where the child and his mother were to live. Both parents seem to have taken entrenched and extreme positions on this issue. In doing so, they do not appear to have considered the child’s needs.
Given that both parents are living in rented accommodation, and given that both the father and CS have skills that are readily transferable, there appear to have been other options that could have been explored, in a spirit of genuine effort to find a mutually satisfactory solution. One such option would be that the father, the mother and CS all move to W. There are no doubt other options that the parties could come up with if they were so minded.
Otherwise, it appears that both parents have fulfilled their obligations to maintain the child. For present purposes, I am satisfied that the father has paid approximately the correct level of child support, although there were some delays in processing within the Child Support Agency.
I also accept that the mother did facilitate the child spending time with his father in July 2006 by driving the child from B to his father’s home on two occasions. Apart from the Thursday evening issue and the move to B, on the mother’s part, and the father being off-hand about the initial choice of the child’s school, both parents have been keen to participate in the child’s life and development and have facilitated the other parent continuing to be involved in the child’s life.
The events that have happened, and circumstances that have existed, since the parents separated
The principal events that have happened since the parents separated are that the mother has relocated to B and the child has started at a new school. The effects of these events have been discussed elsewhere in these reasons and are not repeated here.
Resolution
Where the child is to live
Taking into account the matters specified in s.60cc of the FLA, for the reasons which follow, it seems to me that it is in the child’s best interests that he remain in B with his mother. As discussed above, the father’s shared care proposal for the child to live in Melbourne is dependent on the mother being able to assist at least two mornings a week. The mother is not available for that purpose. Accordingly, the father’s equal shared care proposal with the child living in Melbourne is not viable. Accordingly, it is in the child’s best interests that he lives with his mother. That being so, it is in the child’s best interests that his mother be able to form a new relationship with an appropriate person and, hopefully, be able to live a happy and fulfilling life, provided that the child is still able to spend a good deal of time with his father.
If this matter is not to be regarded as a relocation case, and if the view expressed by the Full Family Court in D & SV is still applicable, then that case is not, in my view, sufficiently distinguishable for it to not govern the outcome in this case. The differences in the children’s ages, the fact that the mother’s house had been bought in that case rather than rented and the fact that there was no indication in that case that all of the children’s extended family lived in Melbourne are matters of significance in the context of this case. However, in my view, they are insufficient to tip the balance so as to restrict the mother’s freedom of movement to such an extent that she must live in Melbourne, rather than living with her new partner in an area where he has an established home, and which is not so far from Melbourne that the child will be unable to see his father frequently.
Moreover, even if this case is to be properly treated as a relocation case, the principles specified by Kirby J in AMS v AIF are such that, treating the best interests of the child as the paramount consideration, the child should remain in B with his mother. She has been the child’s primary caregiver throughout his life and is caring for him well, except to the extent that some of her actions do not facilitate a meaningful relationship between the child and his father. If the child remains in B, he will be able to continue to spend time with his father, and with his extended family, although this will undoubtedly require a good deal of time spent travelling.
I should also say that, if the father did decide to live in G, there could well be scope for the father to spend more time with the child if he so chose. For example, it may be possible to have the sort of shared care arrangement that the father proposed having in M. The possibility was not explored at the hearing and I take it no further at this stage.
Saturdays
Given the distances involved, it will not be possible for the child to spend substantial and significant time with his father, in the sense of spending some overnights during the week with his father in R. However, in my view, this can be off set by the child spending one Saturday per school term with his father, between 10am and 5pm.
Additionally, in my view, it would also be in the child’s best interests to be taken by his father to a regular sporting or other activity, such as Auskick or swimming, on a Saturday. The father may wish to act as a coach or team manager in relation to the child’s sporting activities. It would be preferable for the child to undertake any Saturday sport in the same place on a regularly basis, particularly if he becomes a member of a team. Accordingly, it would be desirable for the child to spend each Friday night with his father and return to his mother on Saturdays, at say, 5:00pm.
As this matter has not been canvassed with the parties, I propose to hear the parties in relation to this possibility before pronouncing any orders in relation to it. I would anticipate the mother taking the child to the father’s home on the Friday and the father taking the child to the mother’s home on the Saturday.
Mid-week time
The father gave evidence that it would be possible on days when he was not working for him to go to G to see the child after school. That being so, in my view, it is in the child’s best interests that he spends time with his father on two days a week, from after school until 7.30pm, perhaps on Tuesdays and Thursdays. I would envisage this time being spent by the father with the child in the G area. It might involve going out for a meal together or the father taking the child to a sporting or other activity, such as cubs or swimming lessons. It would presumably occur on days when the father was not working. The father could also combine these visits with participation in the child’s school activities, and discussion with his teachers. On these occasions, the father would be responsible for collecting the child from school and returning the child to his mother’s home.
Again, this matter has not been canvassed with the parties. Accordingly, I propose to hear the parties in relation to this possibility before pronouncing any orders giving effect to it.
Costs
The time the child may spend with his father on Saturdays and midweek could involve a substantial burden on the father in terms of travelling time and cost. Depending on how much the father actually spends on travelling to spend time with the child, and other associated items, the father may have grounds for a departure from his child support assessment under s.117(2)(b)(i)(A) of the Child Support (Assessment) Act 1989, as that section is explained in s.117(3) of that Act. This is a matter for the father and his legal advisers and I say no more about it.
School holidays and special occasions
It would also be in the child’s best interests for orders to be made for one half of school holidays to be spent with his father, and arrangements made, similar to the orders that were consented to on
10 March 2005, for the child to spend time with his father on special occasions.
Changeovers
As to changeovers, in my view, it would be in the child’s best interests for the mother to be responsible for driving the child to the father’s home on Fridays, as the father spends a lot of time driving on Fridays for work, and, at least at present, the mother does not work on Fridays. It is to be hoped that if the mother gets a new job, she will ensure that she is still able to have Fridays free.
The father will possibly be driving to B on two days each week to spend time with the child after school, and on alternate Saturdays. In these circumstances, it seems to me to be fair that the mother should be responsible for collecting the child from his father’s home on alternate Sundays.
Who is to attend changeovers
There is an issue as to whether the mother personally should take the child to his father’s house and collect him from there. The mother wants to be able to delegate the task to CS or B, as she sees fit. The consent orders made on 10 March 2005 provided that:
“the mother will collect the child at the conclusion of contact from the home of the father in R unless otherwise agreed with the father … while he resides within 20 (twenty) kilometres of his present address”.
The effect of the consent orders was that the mother was required to personally collect the child. In my view, the mother should personally take the child to and from his father’s home. The child is only six years old. It is preferable that he spends the travelling time with his mother, being cared for by his mother, rather than by a person who has been delegated a task because the mother feels that she is too busy. The essence of the mother’s case is that B is not really that far from R. It does not sit well for her to now say that it is too burdensome for her to take her own child to and from his father every so often.
I note that the CCH Australian Family Law and Practice at 15-035 says that:
Ordinarily, a child should be under the personal supervision of the parent who they are spending time with and it is generally regarded as a subjugation of parental responsibility to leave the child in the care of another during that time (O’Reilly and O’Reilly (1977) FLC 90-300).
O’Reilly does not actually go quite as far as the CCH authors suggest. At 76,589, Ferrier J said that:
… the husband must be prepared to devote most of the time during which he has the children with him, in the personal supervision of the children. It would not be regarded as reasonable access by the husband were he to spend any substantial part of the times envisaged in a hotel or placing the children in the care of others. (emphasis added)
In O’Reilly, the father spent part of his proposed access time on Saturdays and Sundays in his local pub. Ferrier J seems to have contemplated that the children could be under the supervision of a non-parent for at least part, though not a substantial part, of an access period.
There are different considerations where the question whether the parent with whom the child is predominantly living, such as the mother in this case, can leave the children in the care of another. It is generally accepted that it is perfectly reasonable, and, in fact, desirable, for parents to allow other people to care for their children from time to time.
However, in my view, as indicated above, it is not reasonable for the mother to leave it to others to take the child, at six years of age, to and from his father’s home. It would signal to the child that his visits to the father are a chore that the mother wishes to avoid. The mother should take the child to and from his father’s home and she should do so with good grace. It is clearly in the child’s best interests that the mother also takes all reasonable steps to ensure that the child looks forward to and enjoys his time with his father. However, it may be that the requirement that the mother personally take the child to and from his father could be changed by agreement, when the child is older. The order in relation to this matter, and others, will be that the arrangement may be altered by agreement between the parties.
Flexibility in times
The mother also submits that there should be flexibility in the times of collection and delivery of the child. She says they should be varied by up to one hour either way, because of the vagaries of travelling from B. Basically, she is asking for the father to be on standby for up to two hours waiting for the child to arrive, or for the mother to collect him. In my view, this suggestion is very discourteous. It shows no respect for the father, or the fact that he might have social or other commitments of his own.
The travelling time from B to R on a Friday evening and a Sunday evening is no doubt fairly predictable. There may be major hold ups from time to time, but these would be rare and would be documented by the traffic authorities. If there were a genuine problem with traffic on a particular occasion, such that the mother was late, the father could no doubt verify with the traffic authorities that there had actually been an accident, or some other unforeseeable problem. In such circumstances, the delay would be understandable and the father would presumably not make a contravention application. Overall, given the travelling time involved, it is appropriate that the mother be required to deliver the child to and collect the child from the father’s home within 15 minutes of the stipulated time on the applicable days.
Restraint on further relocation
In view of the difficulties that have arisen in this matter, it is appropriate that the parents be restrained from moving more than five kilometres further from each other than they are at present, and be restrained from living otherwise than in the Melbourne and G metropolitan areas or somewhere in between. Such a restraint will give the parents some confidence that if they move house to be closer to each other, to make it easier for the child to have a meaningful relationship with each of his parents, the move will be of a reasonable duration.
In making this order, I am mindful particularly of the fact that the father chose to live in R to be close to the child. It may be, in the future, that the father would choose to live in C or L, to be closer to his family, or in W for example, to be closer to the child. Similarly, the mother might choose to live in W, for example, to make the travelling easier for her as well as for the child. As both parties are renting, moving house would not be as costly as it might otherwise be.
Given that it is in the child’s best interests to spend considerable amounts of time with both of his parents, it is in my view proper that both parents be restrained from moving significantly further from each other than they are at present, unless an order of the court is made permitting them to do so, or they agree in writing.
Further hearing
The orders that are set out at the beginning of these reasons for decision will not be pronounced until the parties are given an opportunity to be heard on proposed orders 6(i), (j) and (k) and 13, which may be changed in the light of the parties’ submissions.
I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Melissa Gangemi
Date: 13 October 2006
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