D and D
[2004] FMCAfam 349
•16 July 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| D & D | [2004] FMCAfam 349 |
FAMILY LAW – Children – parenting orders – residence and contact – relocation – A v A: Relocation Approach (2000) FLC 93-035 and cases referred to therein considered and applied — evaluation of parties’ competing proposals.
Family Law Act 1975, ss.65E, 60B, 68F, Part VII
| Applicant: | MWD |
| Respondent: | ACD |
| File No: | (P)NCM1905 of 2003 |
| Delivered on: | 16 July 2004 |
| Delivered at: | Newcastle |
| Hearing date: | 13 July 2004 |
| Judgment of: | Donald FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Tregilgas |
| Solicitors for the Applicant: | Peter Raymond Hartley, Thomas Mitchell Partners |
| Counsel for the Respondent: | Mr Duane |
| Solicitors for the Respondent: | Greg Tyler and Associates |
FEDERAL MAGISTRATES |
NCM1905 of 2003
| MWD |
Applicant
And
| ACD |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings for parenting orders brought by the Father in relation to the Child SKD born 25 July 2001. Each party concedes that the Child should reside with the Mother and have contact with the Father. Indeed, during the course of the Father’s cross-examination, the Father made it quite clear that because of his own commitments, that could not be an issue. What does remain, however, is the issue of the proposed restraint on the Mother as to the location of the residence of the Child.
As to such restraint, the Father’s objection relates principally to the period prior to the Child commencing school.
Evidence
In considering the matter I have had regard to each of the affidavits referred to in the course of the hearing together with the oral evidence and exhibits tendered. I have also had regard to the submissions made on behalf of each of the parties.
I also note that after the cases for each of the parties were concluded, the Father asked that the matter be brought on for directions. Following submissions, it was agreed between the parties that a further affidavit should be filed by the Father detailing further evidence he had obtained regarding his leave entitlements.
The Mother then also filed an affidavit partially in reply to that filed by the Father. Leave was not granted for her to do this but there has been no objection by the Father to the Court taking this further evidence into account. Cross examination of the Mother in relation to the further affidavit filed by her occurred. I have, therefore, also taken these affidavits and the further oral evidence of the Mother into account when considering the matter.
Background
The Applicant Father was born in 1961 and is aged 42 years. It would appear that the Father resides at up to 3 different residences in each week. They being a residence in the S area when required to be in S for the purposes of his employment; at his parent’s home at B; and in the home of his fiancee at T.
The Respondent Mother was born in 1969 and is aged 35 years. She resides in the B area but seeks to reside with the Child at C.
The Mother and the Father commenced their relationship in B in 1999. The Father alleges that they commenced residing together in January 2000 when the moved to S. The Mother alleges that cohabitation commenced in October 1999 in B. It is unnecessary to decide when cohabitation commenced.
The Child was born in 2001 and is now almost 3 years of age.
The parties moved from S to the B area of New South Wales in September 2001 and purchased a property in the Mother’s name in that location in April 2002.
The parties separated on 14 April 2003 and the Father left the former matrimonial home in 2003. The parties have, since that time, resided separately and apart. The parties were never married.
Interim orders were made by consent in this Court on 9 July 2003. Pursuant to those Orders, the Child was to reside with the Mother; have defined contact with the Father; and the Mother was restrained from relocating the residence of the Child from the Newcastle area.
The Father has now been promoted to the position of National Manager for NB with his employer. It is his evidence that his responsibilities cover all Australian states except for Western Australia, Tasmania and the Northern Territory. It is also his evidence, which I accept, that as a consequence of his position, he travels throughout the state of New South Wales and interstate for the purposes of staff training and project management.
As a consequence of such employment and of his current relationship, it is also his evidence, which I accept, that he resides from Monday to Thursday each week in S and otherwise stays “at my parent’s home at B or at a friend’s at B North and, more often and more frequently now, at T”.
When the matter came back before the Court on 13 July 2004, it was agreed that the Court could take into account the assertion by the Father that if the Child’s residence was relocated to Queensland, he anticipated that he would be able to have contact with the Child in alternate months when he visited that State for the purposes of his employment.
Relevant law
Residence, contact orders and specific issues orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B sets out the objects of Part VII and the principles that underlie those objects. They are subject to section 65E. That section of the Act provides that in determining the outcome, the best interests of the child is the paramount consideration.
Section 60B(2)(a) and (b) have particular relevance in these proceedings. The principles set out in those paragraphs are as follows:
(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 of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development.
Fundamentally, these provisions emphasise the desirability of contact. The use of the term “regular” carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the child's best interests.
In deciding the residence, parenting and contact arrangements that will best promote the interests of a particular child, the Court must consider the various matters set out in section 68F(2). That subsection lists those matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the Court to take into account any other fact or circumstance that the Court thinks is relevant. This ensures that the infinite variety of individual children's circumstances can be addressed, B and B, Family Law Reform Act (1997) FLC 92-755.
The Full Court of the Family Court of Australia has determined that certain guidelines should apply to the determination of a parenting case that involves a proposal to relocate the residence of a child. These guidelines are set out in paragraph 108 of A & A: Relocation Approach (2000) FLC 93-035 and repeated at paragraph 77 of H & L FLC 93-036:
It is convenient to bring together in a summary form the most significant points we have made above. Courts of first instance faced with cases involving a proposal to relocate the residence of a child should adopt the following guidance and should be able to expect that cases are presented in a way which addresses the following matters to the extent that they arise:
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 1975 (Cth). 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 s 60B provide guidance to a court's obligation to consider the matters in s 68F(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 s 68F(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 s 60B;
· As one, but only one, of the matters considered under s 68F(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 s 92 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 ss 60B 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.
I also refer to the decision of U & U (2002) HCA 36 S256/2001. I note that the decision does not alter the law with respect to cases that involve an issue of relocation of a child’s residence. I do note, however, the following:
a)Gaudron J at paragraph 37:
It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated. That is so whether it is the mother or the father who wishes to relocate. So much was made clear in AMS v AIF 3 (1999) FLC 92-852.
b)Kirby J at paragraph 114:
The wife complained that the orders of the primary judge necessarily weighed heavily against her, as they would any woman in her position. They confined her, effectively, to living in a place and in circumstances for the convenience of the husband, who did not, for his part, offer to relocate his home and work to India but expected his life to go on uninterrupted whilst the wife continued to be hostage to his contact requirements. Effectively, this imposed on the wife not only the primary responsibilities of providing residence and most of the obligations of care for the child but also serious economic, personal and emotional burdens.
c)And Hayne J at paragraphs 175 and 176:
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.
It is now recognised as self-evidently true that, apart from some cases of abusive relationships, children benefit from the development of good relationships with both their parents. The right to know and be cared for by both parents and the right of contact on a regular basis with both parents are said to be principles underlying the objects of Pt VII of the Act. If effect is to be given to those principles, it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.
I shall make more specific reference to these comments later but I do indicate that I accept and apply the principles above to which I have referred.
Relevant competing proposals
As noted above, there is no application by the Husband for the Child to reside with him. He acknowledges that the Mother is to remain the primary carer for the Child but wishes to restrain her from leaving the N area. He does recognise that such a restraint is of greater importance whilst the Child is younger and he perceives a greater need for frequency of contact as against length of contact in these earlier years.
As to contact, the Father proposes that until the Child commences school or is 5 years of age (whichever first occurs), that he have contact with the Child for 3 out of 4 weekends and between 9am and 3pm on the 4th of such weekends. He also proposes that he have a further 4 weeks contact each year to coincide with the Father’s leave.
It is then the Father’s proposal that after the Child commences school or turns 5 years of age, he have contact with the Child on each alternate weekend and from 9am to 6pm on either the Saturday or Sunday of the other weekends. He also seeks that he then have contact for half of each school holiday period.
The Mother’s primary competing proposal is that she be permitted to relocate the residence of the Child to Queensland. In those circumstances her application is, as recorded in her Amended Response, that until the Child reaches school age contact occur as between the Child and the Father between 4pm Friday and 3pm Monday on the first weekend of every second month and for about 1 week in the Christmas period of each year.
Interestingly, the Wife proposed that in such circumstances she would pay for air travel for the Husband on six contact occasions per year for him to attend at the Child’s residential location in Queensland. She further indicated in the course of the proceedings that she would vacate her home during that period so that the Father could save the costs of accommodation and would also provide the Father with her motor vehicle to further assist him.
After the Child reaches school age, and if the Child is residing in Queensland, it is the proposal of the Mother that the Child have contact with the Father for one half of each non-Christmas school holiday period and for a period of 14 days in the Christmas holidays. The Mother proposes to assist the Husband in having such contact by providing a return airfare for the Child to attend for contact.
If the Mother is not permitted to relocate the residence of the Child to Queensland, it is proposed by her that the Child have contact with the Father on each alternate weekend and for other periods of time of not less than four hours as agreed between the parties; for one half of all non-Christmas school holidays and for 14 days in Christmas school holiday periods.
The Mother also intends on any scenario that the Child have telephone contact with the Father on three occasions each week.
In the course of the proceedings, the Mother indicated that she would consent to Orders whereby she be permitted to relocate the residence of the Child to Queensland and that the Child have contact with the Father prior to the Child commencing school as per her proposal referred to above but with contact also to occur for 4 additional one week periods in the intervening months. In such circumstances, on those extra occasions contact changeover to occur at C H. In this way the Father would be having greater contact than he is now and the Child would be able to return for those extra periods to the N area to maintain her relationship with the extended family of the Father.
This proposal was not agreed to by the Father who maintained his opposition to the Mother relocating the residence of the Child out of the N area. He did indicate, however, that if the Mother did relocate the Child’s residence then he should have contact with the Child for one week out of every four until the Child commenced school.
Following the conclusion of the evidence in the matter, the Court was approached by the Father asking that the matter be relisted for the purpose of adducing fresh evidence. By consent, a further affidavit was filed by the Father in which he indicated that his employer had now authorised him to have six weeks leave per year.
That same affidavit indicated that he had also examined his “work and other commitments” and that he would find great difficulty in travelling to the Sunshine Coast of Queensland in alternate months to have contact with the Child as suggested by the Mother. He stated that he could, at best, leave S or N on Saturday morning and be required to return from Queensland on the Sunday afternoon to be back in time for work on the Monday morning. Thus, he would assert, the arrangement for a “long weekend” in alternate months would not be feasible. I note, in passing, that this evidence is not consistent with the evidence given by the Father in the course of the proceedings that his work practices were flexible enough for him to be available for two days of the week in addition to the weekend when the Child could be having contact with him.
Whilst the Father’s primary position remained that the Mother should not be permitted to relocate the residence of the Child to Queensland, he did seek in his most recent affidavit that if Orders were made enabling the Mother to relocate the residence of the Child to Queensland, that he should have contact for one week of each alternate month (8 days on his formulation) with contact changeover to occur at Coffs Harbour.
The Father further asserted that his employment enabled him to travel to Queensland on various occasions and that he should be able to have contact with the Child on such occasions providing that notice was given to the Mother. When the matter came back before the Court on 13 July 2004, it was agreed between the parties that the Court could take into account the likelihood that the Father would be able to have further contact with the Child to coincide with the Father’s visits to Queensland as part of his employment.
These visits were likely to occur in the intervening months between the 8 day periods referred to above. The Father would be required to give either 7 or 14 days notice of his intention to have such contact.
The Mother agreed to such contact occurring but did not agree to such contact occurring overnight. This was, she stated in her evidence, because she did not consider it appropriate for the Child to have such contact at a motel or at the residence of the Father’s friends.
The Mother has also now sought from the Court an Order that contact changeover for the 8 day periods of contact occur at a point more approximating a halfway point, namely Grafton. The Father continues to pursue changeover at Coffs Harbour.
Examination of Factors under Section 68F(2)
Wishes
I note that there is no evidence before the Court as to the Child’s wishes. Given the age of the Child any wishes, if they were expressed, would be given no weight. This factor has no relevance to these proceedings.
Relationship of the Child with each parent and others
It is conceded by the Father that the Mother is the primary carer of the Child and has been throughout the Child’s life.
It is also the evidence that the time spent by the Child with the Father and out of the care of the Mother has been limited to a maximum of 4 days at any one time. The Father asserted in his affidavit filed 10 June 2003, that he has an “extremely good relationship” with the Child and that he has been involved in the day to day care of the Child throughout the Child’s life. He does add, appropriately, that this has been when not absent for the purposes of his employment.
I note the Father’s further evidence that the Child has a “good” relationship with members of the Father’s family and other people who reside in the N area. The evidence in this regard is scant.
As has already been noted, there is no proposal for the Child to reside with the Father. The primary care relationship of the Child with the Mother is conceded.
The Father’s primary concern with the Mother’s proposed move of the residence of the Child is that his relationship with the Child will be adversely affected in the Child’s formative years before the Child commences school. If the Child’s residence was to remain in the N area, the existing relationship would be maintained and developed.
If the Child was to move to Queensland, frequent shorter periods of contact could not occur as they do now with the parties residing closer to each other. The original proposal of the Father whereby the Child would have contact with the Father each month would enable the relationship as between the Father and the Child to be maintained and developed. I am concerned, however, that if the Father’s original proposal for one week of contact each month, possibly in the Newcastle area was accepted, this would prove too disruptive for the Child and her relationship with the Mother and those in the environment in which the Child lives.
It would appear, however, from the affidavit of the Father sworn 17 June 2004, that he no longer seeks such orders and seeks, instead, orders for contact for a period of one week each alternate month and for other periods when the Father is in the vicinity of the Child’s residence. As indicated earlier, such other periods would be likely to consist of weekends in the intervening months.
Under the arrangement originally conceded by the Mother for one week’s contact each alternate month and for a “long weekend” in the intervening month in the Child’s home, contact would be less disruptive and certainly less demanding upon the Child as far as travel is concerned. As indicated earlier, the Father has now indicated that he is unable to have such “long weekends” despite his earlier evidence as to flexibility of his employment. His other “commitments” which prevent such contact are not disclosed.
The Father’s most recent proposition for 8 days’ contact in each alternate month and most likely a weekend in Queensland upon giving the Mother notice does provide most of the advantages referred to in the preceding paragraph. The exercise of such contact in a location not that of the Child’s home is, perhaps, a little more disruptive to the Child but still does not involve the travel involved on the other occasions. It does provide the opportunity for relatively frequent contact with the Father and, in the alternate months, contact with the Father’s extended family. Those relationships are also able to be maintained.
I do place significant weight upon the need of the Child to maintain and develop her relationship with her Father whilst not disrupting her relationship with the Mother. This is best achieved by the Child remaining in the N area but if the Child’s residence is relocated, then is best achieved by spending some time each month with the Father. For reasons not appropriately detailed, the Father is unable to take advantage of the proposal of the Mother which would enable such monthly contact to occur on a regular basis. The Father’s ability to probably have contact when in Queensland for business in alternate months does provide most of the same advantages.
Essentially, the Court is left with the Father’s proposal only if the Child’s residence is relocated to Queensland. That is, contact for 8 days in each alternate month with other contact to occur when the Father is in the Child’s residential area for work. I accept that whilst the Child is very young this is not an optimal arrangement insofar as the development of the Child’s relationship with the Father is concerned.
As to the contact arrangements once the Child commences school, it is important to note that the alternate monthly contact periods are unable then to occur because of the demands of the Child’s attendance at school. It is appropriate at that time for the Child to spend the greater portion of school holiday periods with the Father. At the Child’s then age, such an arrangement should not impact upon the Child’s relationship with the Mother and should assist the relationship as between the Child and the Father.
I do accept that this factor is a very important and weighty consideration for the Court when considering the competing applications.
Factors falling for consideration under this head also overlap into the considerations appearing immediately following.
The likely effect of any changes in the Child’s circumstances, including the likely effect on the child of any separation from either parent or other persons.
This is the factor in relation to which the Father expresses most concern. If the application of the Father is successful there will clearly not be any change of circumstance resulting in any effect on the Child. The Child will continue to reside with the Mother in the N area and contact as between the Child and the Father or Father’s family will continue largely as before. The Mother’s support network, or lack thereof, and the financial circumstances within the Child’s household will remain the same.
If, on the other hand, the Mother relocates the residence of the Child to Queensland, contact as between the Child and the Father or his family will change on any arrangement. In a practical sense, contact cannot be as frequent as it is now. The effect that this might have upon the Child and upon the Child’s relationship with the Father and his family will largely depend upon the contact regime that is able to then occur.
On the Mother’s proposal, the Father would have been able to have contact for a “long weekend” in alternate months. This contact would have occurred in the familiar surrounds of the Child’s home. In addition, the Mother has also indicated that she would agree to the Father having an additional four weeks contact with the Child in, if the Father desires, one week blocks. The Father is unable to commit to such an arrangement but is able, he believes, to have contact for a weekend in alternate months when in Queensland for business. Notice of such weekends could be given to the Mother when they were able to occur.
Given the most recent evidence of the Father that he would be able to have 6 one week periods of leave each year, such an arrangement would mean that there would be contact each and every month of the year when coupled with the ability of the Father to have contact when in Queensland for business.
For the purposes of these one week blocks each alternate month, the Mother has agreed to meet the Father at a mid-way point to facilitate contact. There is now a dispute as to what is the “mid-way point” and this will need to be decided by the Court.
A real advantage to the longer periods of contact is that such contact would be able to occur in the Newcastle area. An additional benefit is that the Child would be able to maintain his relationship with the Father’s family.
After the Child commences school, the contact as between the Child and the Father must, necessarily, alter if the Child resides in Queensland. At that time the Child will be able to spend a greater proportion of her school holidays with the Father and his family. The issue of frequency of contact is not of such importance when the Child is of school age.
The Mother will have the support of her family if she relocates the residence of the Child to Queensland. As indicated in her affidavit material, and not contested by the Father, the Child’s household financial situation will improve. No longer will there be a greater expenditure than income and no longer will the Child have to reside in rental premises. The Child will, instead, be able have the stability and security that the Mother’s purchase of an interest in her home will provide. The Child will also have the support of the Mother’s family and a greater ability to improve her relationship with them.
Given the Child’s tender years, I accept that the relationship between the Child and the Father would be best served by having the shorter and more frequent periods of contact proposed by the Father and able to occur if the Child remains resident in the N area. The alternative arrangement put forward by the Father, however, is capable of providing contact for a greater period of time in alternate months with a weekend in the intervening month
The change of circumstance whereby the Child would be able to reside in her own home, in greater financial security, and with the support of the Mother’s family outweighs, so I find, the effect of having less frequency of contact with the Father. This is a factor which weighs in favour of the Mother’s proposal to relocate the residence of the Child to Queensland.
The practical difficulty and expense of a child having contact 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 was to remain resident in the N area, there will be little change other than accommodating any move by the Father with his new family to some location distant from N. As indicated earlier, the Father and his new partner have not finally decided where they will reside after moving, if they do, from the Taree area. It is more likely to be the N area but this is not certain.
Thus if the Father’s application is successful or if Orders are made in accordance with the Mother’s alternative application for contact arrangements with the Child residing in N, little will probably change.
If, however, the Child’s residence was to be relocated to Queensland, I note that the Mother, as part of the Orders she seeks, includes a provision for the payment by her of 6 airfares for the Father to travel each alternate month to Queensland for the purpose of contact with the Child. She has also offered to vacate her home so that the Father can save on further costs and also to provide the Father with her motor vehicle in such periods to further assist him. The Father has now indicated that he is unable to take advantage of this offer made by the Mother.
As earlier indicated, the Mother has indicated her agreement with the proposition that the Father also have contact for an additional 4 one week periods during which the Father would be able to have contact with the Child in the N area. Since that agreement was given in the course of these proceedings, further evidence has been filed by the Father indicating that he could have 6 one week periods of contact each year but could not have the proposed “long weekends”. Instead, it would appear that he could have weekend contact on one weekend in the intervening month when he is present in Queensland for business.
The advantage of the 8 days contact each alternate month is that this would enable contact to occur not only with the Father but with the Father’s extended family and other person’s in the Father’s life. It is proposed by the Father that to facilitate such contact the parties would meet in Coffs Harbour, a mid-way point of sorts, thus sharing the financial and other burdens of such contact.
The Mother, in her most recent affidavit, provides evidence that a more realistic mid-way point is Grafton. That is based upon the residence of the Father being in either T (with the Father’s fiancee) or in N on weekends. It is clear that during the week the Father is usually resident in S and that for him to travel to Grafton from S is a distance greater than half. It is likely, however, that after collecting the Child at the commencement of contact he would return to either T or N as he would have leave from his employment for the contact period. Similarly, at the end of the contact period it is likely that he would travel from T or N to return the Child to the Mother. I accept, therefore, that a more realistic “half-way” point is Grafton.
I do not have sufficient evidence before me to draw any conclusions as to the benefits of Coffs Harbour in relation to air travel if the Father chooses that means of travel to collect the Child from the Mother at the commencement of contact or to return the Child to the Mother at the conclusion of contact.
I also note the Mother’s financial position as disclosed in her affidavit filed 28 May 2004. At the present time her outgoings are greater than her income but this will improve if allowed to relocate the residence of the Child to Queensland. Nonetheless, the Mother is still totally dependent upon social security and child support for her family income and things are and will be, if Orders are made in her favour, very tight.
The Father does not seek residence of the Child. In his affidavit filed 7 July 2003, the Father acknowledged that she is unlikely to be employed in the near future:
5. … The respondent is not presently employed, nor do I anticipate she will be in employment in the immediate foreseeable future. The child is not quite two (2) and is not yet of school age.
Contrasted to that is the position of the Father in the workforce. As indicated above he now holds the position of “NBDM” for his employer. There is no evidence that, at the present time, he has any duty to support any other person.
If the Mother is to relocate the residence of the Child to Queensland it is appropriate for the parties to share equitably in the cost and burden of contact. In those circumstances, it is appropriate for the parties to meet at the point closely equating to midway between the Child’s proposed residence in Queensland and the apparent residence of the Father. This, I accept, is Grafton.
Once the Child has commenced school, if the Child is then residing in Queensland, it is appropriate for the parties to share in the financial burden of travel for the Child. The Mother proposes that the Child flies for the purpose of such travel. I accept that this is the preferable course and that the parties appear to have the capacity to share such costs. This travel would be less demanding on the Child and, contrary to the view of the Father, quite straightforward. The parties should have the capacity to agree to other transportation methods if desired.
Given the factors to which I have referred, I do not find that there would be such practical difficulty and expense for the child to have contact with the Father that it would substantially affect the child’s right to maintain personal relations and direct contact with the Father on a regular basis, or indeed with the Father’s family.
The capacity of each parent, or any other person to provide for the needs of the child, including emotional and intellectual needs
The Father does not seek residence of the Child. Clearly, on the evidence before me the Father has the appropriate capacity to care for the Child during periods of contact. It is not clear, at the present time, where the Child will be residing during contact periods in New South Wales. The Father has indicated that his residence is presently shared between S, N and T.
The evidence of the Father’s fiancee, TAK, as to intended residence is contained within her affidavit filed 28 May 2004:
31.It is certainly my intent, and it is my understanding that it is M intent, that on our marriage we will continue to reside in New South Wales, more probably than not in the N area, again more than likely in the B area. We have certainly discussed that as a possibility but no firm plans have been put in place.
I do accept, however, that regardless of where the Father eventually resides, it is more probable than not that he has the financial capacity to care for the Child.
I am also satisfied on the evidence before me that the Father has taken an appropriate role in the life of the Child and has demonstrated an appropriate capacity to otherwise care for the Child. This is likely to be enhanced by his marriage to Ms. King who will be available to provide support.
As to the Mother, however, as indicated earlier, on any proposal the Mother is to remain the primary carer for the Child. The Father does not propose taking over this role. It is not alleged that the Mother does not have the appropriate capacity to care for the Child.
The Mother has clearly asserted in her affidavit material, however, that if she was to remain in the N area her financial capacity to provide for the Child is limited. Her household expenses exceed her income and she has eaten into the capital sum provided to her by way of property settlement. If, however, she was to relocate the residence of the Child to Queensland her financial situation would improve as indicated in her affidavit. Further, she would have the benefit of a permanent home for the Child and the assistance of her family members. Clearly her financial capacity to care for the Child would be improved if not prevented from relocating the Child’s residence to Queensland.
The child’s maturity, sex and background and any other characteristics of the child that the court thinks are relevant
I note the Child’s age and take this into account in both considering the frequency and length of contact periods and the effect of such factors on the maintenance and development of the relationship as between the Child and the Father. I also take those factors into account in considering the effect of absence by the Child from the Mother during such contact periods.
These factors are discussed elsewhere in these reasons.
The need to protect the child from physical or psychological harm
I do not accept that this factor is relevant in these proceedings.
The attitude to the child, and the responsibilities of parenthood, demonstrated by each of the child’s parents
I do not accept that there is sufficient evidence before me to indicate that either of the parties have demonstrated other than an appropriate attitude to the Child and to the responsibilities of parenthood.
Any family violence involving the child or a member of the child’s family
I do not accept that this factor has relevance in these proceedings.
Any family violence order that applies to the child or a member of the child’s family
This factor has no relevance in these proceedings.
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
The Father has indicated that he is not of closed mind in relation to the relocation of the Child to Queensland. He is of the opinion, however, that such a move should not occur at this stage of the Child’s life as such period is crucial to the development of the relationship as between the Child and the Father.
Thus, it would appear that the Father does countenance a possible agreement or Orders in the future that would allow such relocation to occur. Given the conduct of the parties to this point, it appears more likely than not that if the Child does relocate in the future, the parties will again require the intervention of the Court to determine the arrangement that would then apply to contact as between the Child and the Father. Further, it is also possible that even if the Father was successful, the Father would not be residing in the N area and further orders would need to be made.
Clearly, if further proceedings were necessary, additional expense and stress would need to be borne by the parties and this might impact upon the wellbeing of the Child.
If the Court was to grant the Mother’s application to relocate the residence of the Child now, and with appropriate orders as to contact, then this further stress and cost is able to be avoided.
Any other fact or circumstance that the court thinks is relevant
I note the evidence of the Father’s fiancee, Ms K, who in her affidavit filed 28 May 2004, stated the following:
It is certainly my intent, and it is my understanding that it is M’s intent, that on our marriage we will continue to reside in New South Wales, more probably than not in the N area, again more than likely in the B area. We have certainly discussed that as a possibility but no firm plans have been put in place.
The Father did not seek to contradict this even when that assertion was brought to his attention in the course of the proceedings.
The proposal of the Father is, therefore, that the Mother be restrained from relocating the residence of the Child to Queensland where she has, I accept, greater support and financial opportunity. This he does whilst not even committing to residing in the future in the area in which he seeks, essentially, that the Mother remain.
Is the Mother to then be restricted at the whim of the Father when he himself is not committing to remain in the area? Is the price to be paid for accepting the burden of caring for the Child when the Father does not, a restriction on her freedom and ability to press on with her life? Really this is precisely the situation envisaged by Kirby J in U & U at paragraph 114:
The wife complained that the orders of the primary judge necessarily weighed heavily against her, as they would any woman in her position. They confined her, effectively, to living in a place and in circumstances for the convenience of the husband, who did not, for his part, offer to relocate his home and work to India but expected his life to go on uninterrupted whilst the wife continued to be hostage to his contact requirements. Effectively, this imposed on the wife not only the primary responsibilities of providing residence and most of the obligations of care for the child but also serious economic, personal and emotional burdens.
Further, I note that the Mother has offered additional contact to the Father and in order to facilitate such contact has offered to pay 6 airfares per year; vacate her home so the Father can stay with the Child; and provide her car to the Father during such periods. The Father has now indicated that such a proposal would involve great difficulty for him having regard to his working schedule and “other commitments”. Again, the Father is ordering his priorities in accordance with his needs but is also attempting to restrain the Mother from exercising her freedom to live her life in greater security and with greater support. The Mother should not be “hostage to his contact requirements”.
Conclusion
On all proposals falling for consideration by this Court, the Mother is to remain the primary carer for the Child. The Father is primarily concerned that if the Mother is permitted to relocate the residence of the Child to Queensland, he will then be unable to maintain a frequency of contact with the Child to sufficiently maintain their relationship in the crucial years prior to commencement of school.
The Mother wishes to be able to move to Queensland where she has the support of family members and the security of her own home. The Mother is not employed and is dependent upon Child Support payments and social security. At the present time the Mother and the Child must reside in rented accommodation and the household’s outgoings exceed income. The circumstances of a change of residence to Queensland would improve the financial situation for both her and the Child.
The proposal developed by the Mother during the course of proceedings whereby there would be contact between the Father and the Child each month, alternately in Queensland and the N area, would enable the relationship to be maintained both as between the Child and the Father and as between the Child and the Father’s family. This proposal of the Mother is now rejected by the Father because of his schedules at work and other commitments.
The proposal of the Father, however for 8 day periods of contact in each alternate month with the probability of a weekend in Queensland in the intervening month does provide adequate contact time but there remains a significant period of time between such periods. I accept that this period between contact should be minimised during a child’s tender years.
Each party has the capacity to ensure that such a regime could be successful given the ability of the parties to meet at a midway point. Given the relative financial circumstances of the parties, it is appropriate that there be an equitable sharing of the burden of such contact. This is constituted by the meeting at the midway point. It is also appropriate that the contact changeover time be 2pm. This will enable the parties, if they wish, to travel to the changeover point on the day of changeover and to do so largely in daylight hours. A decision can then be made by each party what to do after that time as to the balance of that party’s journey.
I accept that the restraint on the Mother would be the better arrangement insofar as providing the opportunity for the relationship as between the Child and the Father to be maintained and developed. I also accept, however, that by putting in place the contact arrangements referred to, an appropriate relationship is able to be maintained and developed whilst enabling the Child and the Mother the financial security and support that a move to Queensland would bring.
It is appropriate that the Mother be permitted to relocate the residence of the Child to Queensland that the Child have contact with the Father as proposed by the Father in his affidavit sworn 17 June 2004 with the parties to meet in Grafton for the purpose of facilitating that contact. It is also appropriate that contact occur on weekends when the Father is able to be in Queensland for the purposes of his employment. The Father should give 14 days notice of an intention to have such contact.
In relation to the weekend contact referred to in the preceding paragraph, I note the Mother’s objection to such contact occurring overnight. I do not accept that there is any evidence before the Court which could serve to justify such a restriction being placed on that contact.
The Orders sought by the Mother for after the Child commences school in 2007 are inappropriate. Once the Child is commencing school and the alternate monthly periods of contact can no longer occur, it is appropriate that the Father has contact with the Child for the greater proportion of the school holidays. Contact should occur for all of the non-Christmas school holiday periods and for half of each Christmas school holiday period.
I accept that at that time the Child is able and should travel by air unaccompanied unless otherwise agreed and that the parties should share equally in the cost of such travel.
I invite the parties to submit appropriate Orders to the Court for its approval.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Donald FM
Associate: Helen Drysdale
Date: 16 July 2004
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