D & SV

[2003] FamCA 280

[2003] FamCA 280

FAMILY LAW ACT 1975

IN THE FULL COURT       
OF THE FAMILY COURT OF AUSTRALIA                   Appeal No SA61 of 2002
AT MELBOURNE  File No ML7015 of 1998

BETWEEN:

D
Appellant Wife
- and -

SV
Respondent Husband

REASONS FOR JUDGMENT

CORAM:  NICHOLSON CJ, KAY & MONTEITH JJ
DATE OF HEARING:                 4 December 2002

DATE OF JUDGMENT:             19 March 2003

APPEARANCES:  Ms Swart of Counsel, instructed by Ann E. Gambetta & Associate, Solicitors, Suite 6, 16-18 Croydon Road, Croydon Vic  3136, appeared on behalf of the Appellant Wife.

Ms Smallwood of Counsel, instructed by, Pearsons, Solicitors, DX 436, Melbourne, appeared on behalf of the Respondent Husband.

D V SV
Appeal No. SA61 of 2002
File No. ML7015 of 1998
Coram:  Nicholson CJ, Kay & Monteith JJ
Date of hearing:     4 December 2002
Date of judgment    19 March 2003
Trial Judge:            Morgan J

Catchwords:          CHILDREN – Contact – Relocation – Consideration of alternative contact arrangements – Whether or not relocating parent must provide reasons for relocation

Appeal allowed.
Costs certificate granted.

1. This is an appeal by the mother of three boys aged 13, 11 and 9 against orders made by Morgan J on 25 June and 29 August 2002.  The orders had the effect of prohibiting her from moving with the boys from Vermont South (in Melbourne’s eastern suburbs) to Drysdale (near Geelong), a distance of about 115 kilometres.  At the conclusion of the hearing we pronounced orders allowing the appeal (other than as to costs).  These are our reasons.

Background

1. The parties separated in 1998.  Orders were made in May 1999 that provided for the children to reside with their father during school term from Wednesday evening until Sunday evening on alternate weekends, and for him to have contact with them on each other Wednesday from after school.  The orders also provided for the sharing of school holidays and special days such as birthdays.

1. The parties lived in close proximity to one another and the orders worked by and large smoothly, although the relationship between the parties remained extremely abrasive and conflictual.

1. The mother formed a new relationship with T.  They lived together in Vermont for 12 months but decided that they would rather live in Drysdale, where Mr T had some significant connections.  Without informing the father of her intentions, the mother sold her home in Vermont and bought one in Drysdale.

1. In July 2001 the mother notified the father of her intention to move and proposed that the sharing arrangements for the children change so as to see them spending each alternate weekend with him.  Not surprisingly he reacted with some hostility to that suggestion. 

The trial

1. The proceedings before Morgan J were commenced on the basis that the father sought orders that the mother be restrained from removing the children from their home environment in Vermont South, that the children live with him and that the mother have contact each alternate weekend and half the school holidays.  The mother proposed a variation to the existing arrangements so that the children spent every alternate weekend with their father.  He made no proposals at all as to what the arrangements should be if the mother was allowed to take the children to Drysdale.

1. The father’s case for a change in residence, so that the boys came to live with him, was not vigorously pursued.  He really wanted to maintain the status quo.  As already mentioned, he made no proposals as to what alternative arrangements might best advance the children's welfare should the move take place.

1. Ultimately, the trial Judge acceded to the husband’s request and imposed a geographical limitation on the mother residing outside a 10-kilometre radius from the husband’s home.

1. The Court was assisted by a report prepared by Vincent Papaleo, a clinical psychologist.  Mr Papaleo had prepared an earlier report on this family in August 1998.

1. Mr Papaleo was cross-examined on his report.  He concluded in his report that the children have an excellent relationship with both of their parents.  The children clearly indicated that the present arrangement was not without difficulties.  The eldest child wanted to reduce contact to alternate weekends.  He was tentatively supported in that view by his 11-year-old brother.

1. Mr Papaleo was of the view that the move to Drysdale would disrupt virtually all aspects of the children’s lives and remove them from their supports and networks.   He postulated that the reasons for the move needed to be examined to see if they “were sufficient to warrant such a change in the contact arrangement…”.  If the reasons were sufficient then the change should be supported; otherwise the status quo should be maintained.

1. In his viva voce evidence Mr Papaleo stated that if a shift to Drysdale occurred the boys’ development would most likely not suffer:

“…that will probably still be okay because the fundamentals of their experience is (sic) sufficiently strong to promote their healthy development. See, I believe that if they go to Drysdale with their mum and see their dad twice in 14 days, that’s still going to be okay. If they spend more time with their dad, they’re still probably going to be okay. If things stay the way they are, they’re probably going to be okay because all the indicators suggest that they are coping pretty well and getting enough from the world.

…

I think if they have less contact with their father and the mother moves to Drysdale, I think they will cope.”

The judgment

1. Her Honour commenced her judgment by setting out some of the background material.   She identified the issue by saying:

“4.It could be said that this matter could be determined without the necessity to consider the principles to be applied in relocation cases.  That is because the mother said that the extant residence arrangements should be changed in any event.  The expert evidence of Mr Vincent Papaleo was that this and not the move to Drysdale was from his perspective the issue.  Indeed, he said that in some ways the issue of Drysdale was a red herring because if the present contact arrangement was not working there should be a change and if it was working then there should not be a change. 

5.I have given serious consideration to approaching this matter on that basis.  However in the circumstances of the case I have determined that it is appropriate to adopt the procedure set out by the Full Court in A v A Relocation Approach (2000) FLC [93-035].  That is because the mother unilaterally determined to move the boys to Drysdale and to sell her house in Vermont South and purchase a property in Drysdale.  The mother acted upon this decision and presented the father and ultimately the Court with a fait accompli not only in relation to her housing situation but, more significantly, the fact that in the event the children were to live in Drysdale the present shared residence arrangement could not continue.  However, in my view it would be quite artificial in this matter to embark upon the balancing exercise of weighing up the parties competing proposals as required by Re:A  without examination of the children’s present circumstances.”

1. Her Honour noted that while each parent continued to behave in a provocative and confrontational manner to the other, the mother’s case to move to Drysdale was not motivated by a need to escape the conflictual situation.  She found that the children:

“11…are happy and well adjusted and thriving in their present environment.  They are all doing well at school.  They have friends and are involved in sport and other age appropriate activities.”

1. Her Honour then indicated that she would deal with the case within the framework set out in the decision of A v A; Relocation approach (2000) FLC 93-035; (2000) 26 Fam LR 382. She began by saying:

“12.The first step is to examine the competing proposals.  The father’s written proposal was that the children should live with him and have defined contact with the mother…It was clear from the way the matter was conducted for the father that he did not press his proposal for residence but did press his proposal that the present situation should continue.  It was implicit in that that he proposed that the children remain at their present schools.  Thus in reality the father’s proposal was that the children’s present circumstances which I have already set out should not change.

13.The mother’s proposal was that the children reside with her and Mr T in Drysdale.  …she deposed to lifestyle advantages which she saw that the Drysdale area offered, such as leisure activities and proximity to beaches such as Ocean Grove.  She said that ‘as a family’ they had discussed buying a boat.  She said that the father had brought [two of the children] wetsuits which they seldom had the opportunity to use.  In cross-examination by Counsel for the father she conceded that most of the activities which were available to the children in Drysdale and nearby Geelong were available to them in their present circumstances.

14.From the perspective of the children I have to weigh up the father’s proposal which is for the maintenance of the status quo entailing joint residence which includes three nights in each alternate week with the father against the mother’s proposal which involves substantial changes including the loss of 40 nights per year with their father.  The only positive benefits for the children on the mother’s own case are the fairly nebulous ‘lifestyle’ matters to which I have referred.”

1. It should be noted that her Honour did not give consideration at all to any alternative contact arrangements that could be made if the children moved to Drysdale.  As early as 1976 in Craven v Craven (1976) FLC 90-049; (1976) 1 Fam LR 11,276, in setting aside an order that restrained a mother from moving her children from Geelong to Queensland, the Full Court said at FLC 75,205; Fam LR 11,278-9:

“Our concern in this case is that his Honour did not give adequate consideration to alternative forms of access which could have been arranged.  In our view an order restricting the freedom of movement of the custodial parent should be made only if the welfare of the children clearly indicates that the other parent should have regular weekly access rather than less frequent but longer periods of access.  In our view as children grow older there can be advantages in the latter form of access. In this case the children have been in regular contact with their father and we agree that it is desirable in the interests of the children that they maintain their relationship with their father.  However, when alternatives are considered, there is no preponderance in favour of weekly access provided that it is practical and reasonable to arrange for less frequent but longer periods of access;  e.g. 3 or 4 visits each year of one or two weeks duration.”

1. Then, in AMS v AIF (1999) 199 CLR 160; (1999) FLC 92-852; (1999) 24 Fam LR 756, Kirby J, when speaking of relocation within Australia, said at CLR 224; FLC 86,050; Fam LR 806:

“192    …the attention of the decision-maker should ordinarily be to the possibility of formulating different arrangements for access and contact which would meet the child’s welfare…”

1. Recently in U v U (2002) FLC 93-112; (2002) 29 Fam LR 74 Gummow and Callinan JJ, with whom Gleeson CJ, McHugh and Hayne JJ agreed, said at FLC 89,089; Fam LR 92 (emphasis added):

“80.     We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. …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.”

1. Nevertheless as Hayne J said:

“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.)”

1. Even allowing for the caveat in the last sentence cited from Hayne J, the Court cannot manufacture an alternative proposal with respect to residence when one does not exist.

1. In our view it was as early as this point in her Honour’s reasons for judgment that her Honour fell into error.  It was essential that her Honour give consideration to how the best interests of the children could be advanced in this case.  This did not confine her Honour to the competing proposals of the parties.  Her Honour needed at least to turn her mind to whether alternate arrangements could be made to those being put forward by each of the parties that would meet all the criteria needed to determine what was best for these children.

1. Her Honour then set about a consideration of each of the relevant factors under s 68F(2). She considered the wishes of the elder children, stating that they were of an age where any clear expression of such wishes should be given significant weight. Whilst the eldest child had said he wanted to go to Drysdale, his views were described by the Court expert, Mr Papaleo, as being “cautious and non-committal at the highest level”. The youngest child did not want to move. While not stated expressly, it seems clear that in the circumstances of some conflict of view between the brothers, her Honour did not in the end give significant weight to their views in her decision, and no issue was taken with that approach on appeal.

1. Under s 68F(2)(b), her Honour found that the children had a close and loving relationship with both parents while regarding the mother as their primary caregiver. There was no evidence to suggest that they did not have a good relationship with their mother’s current partner.

1. Her Honour described s 68F(2)(c)(i) as the most significant factor “in this case as in all relocation cases”. That sub-section provides that the Court must consider:

“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;”

1. The mother’s case had been that the children’s relationship with the father would not be affected by the move.  However her Honour stated that it was not put for the mother “that there were any positive benefits for the children per se in the move”.  In that context her Honour said:

“…the following questions may be asked:

(a)Are the reasons given for the move related to the children’s best interest?

(b)If so, do those reasons justify a reduction in the time the children spend with their father and a disruption to their present lifestyle?”

1. It is convenient to deal with this section of the judgment now.  This approach seems to be fundamentally incorrect.  For reasons discussed by Kirby J in AMS v AIF below it places an unfair and inappropriate burden on the mother to show that the status quo should be disturbed.  There is no need for the mother to explain her reasons to move.  She has the right to do so.  It is not a question of asking whether the advantages of the move outweigh its disadvantages.  The question rather is whether in all the circumstances it is appropriate to restrain the primary caregiver from choosing the children’s place of residence.

1. To approach the matter as her Honour did places a burden squarely on the mother to show how the children will be better off under the planned move.  There is no such burden upon her. 

1. Her Honour then considered Mr Papaleo’s views on the matter, which were that if the mother’s reasons were not sufficient to justify such disruption it should not occur.  She quoted him as saying:

“’is it a good enough reason to change the children’s residence and school and all the rest because their mother or father has moved on and things have changed?…I think sometimes it is not’”.

1. Her Honour concluded:

“44.I am satisfied on the balance of probabilities by reason of a), the evidence that the boys are thriving in their present circumstances; b), that the mother did not, apart from the somewhat nebulous lifestyle factors, proffer any positive benefit for the children in the propose[d] move; and c), the expert evidence of Mr Papaleo that a change from the established environment of these children and a diminution of the times spent with their father is not in the interest of these boys; that a change in the boy’s circumstances as proposed by the mother is not in their best interests.” 

1. It is convenient to note that Mr Papaleo’s evidence about the negative effects of moving the boys from a known successful environment to an unknown one was given in hypothetical terms that children benefit from ongoing contact with both parents and that children might suffer if their routine is altered.  Such changes were inevitable if the children had to start in new schools.  Such evidence needs to be considered in light of the observations of the Full Court in B and B set out below.  Her Honour considered and rejected the mother’s case that the conflict between the parents would reduce in the circumstances of the move.

1. Under s 68F(2)(h) (the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents), her Honour considered evidence that both parents had shown inappropriate attitudes to the other parent. Her Honour was however extremely critical of the mother in attempting to present the father with a fait accompli. She said:

“…the mother’s conduct was totally reprehensible. It demonstrates an irresponsible attitude to orders of the Court.  More significantly it demonstrates a totally irresponsible attitude to the best interests of her children, and in particular the disruption of their relationship with their father and their lives in general.  The mother made no attempt to seek either the father’s approval or to apply to the Court for a variation of the existing orders.  To say that the father ‘may continue to see the children’ is to demean the significant relationship these children have with their father.”

1. Her Honour considered the mother’s submission that the reality was that she had burnt her bridges by selling her Vermont South property and buying in Drysdale.  Her Honour said that as there was in her view no positive benefit for the boys in the move the mother’s circumstances were not a determinative factor.

1. Finally her Honour considered the mother’s right of freedom of movement.  She said that the evidence established on the balance of probabilities that the mother’s right to freedom of movement was not a “good enough” reason to affect the disruption in children’s lives that will necessarily follow.

1. Her Honour concluded that on the balance of probabilities the best interests of the children would be met by preferring “the father’s proposal…[that] the present arrangements for their residence and schooling should continue”.

The relevant principles

1. The High Court has twice recently looked at issues involving the restraint of movement of a parent.  In the first case AMS the Court was concerned with interstate movement, in the second case U v U the Court was concerned with international movement.  The case before us concerns intrastate movement that could almost be characterised as intrametropolitan movement. 

1. The Full Court has looked at the issue extensively.  The most detailed of those examinations are B and B; Family Law Reform Act 1995 (1997) FLC 92-755; 21 Fam LR 676 and A v A: Relocation approach (2000) FLC 93-035; (2000) 26 Fam LR 382.

1. 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.

1. 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.

1. 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. 

1. 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.

1. There has certainly been legislative recognition of those concepts in various American jurisdictions.  In Wisconsin a parent may move up to 150 miles from the other parent without giving notice (Wisconsin Statutes 767.327); in Michigan a parent may move up to 100 miles from the other parent without permission (MCL 722.31);  in South Dakota there is a 70 mile rule (see We emphasise that we are not suggesting the desirability of imposing such arbitrary limits, but are simply pointing them out as a recognition that a degree of common sense must be brought to bear in these cases.

42.  

“The realities of divorce mean an alteration of the relationship between both the parents and the child.  It is not realistic to attempt to preserve completely the quality and nature of the relationship that the non-custodial parent enjoyed, especially if such preservation is the cost of the custodial parent’s ability to start a new life and financially support herself” (per Katz J in Ireland v Ireland 256 Conn 413 at 422).

These remarks would seem to apply on an ongoing basis, not only to initial break up, but also to circumstances that arise from time to time in the parties’ lives during the infancy of the children.

1. The Full Court in B and B extensively discussed the context in which relocation cases should be viewed.  Nicholson CJ, Fogarty and Lindenmayer JJ’s preliminary comments bear repeating here.  The Court said:

“7.3     When the parents are living together a change in their home environment is not an uncommon circumstance in Australia.  Families move from one suburb to another, from one town to another, or from one State to another, for a variety of reasons, including the dictates of employment, family and lifestyle, and in some cases a desire to move from their first home to a more comfortable second or third home.  When the parents are living together these decisions are made by them, although in many cases they may be dictated by outside factors such as transfers in employment.  …  In this situation, at least in the short term, it may be said that the rights of children are in some cases adversely affected in that they may find themselves moved from the environment in which they have lived, with their schools, friends, members of extended family, and neighbourhood, and are required to commence a new life elsewhere.  This occurs to many children in Australia during childhood, and experience indicates that there is usually a rapid adjustment and their lives are often advanced, even enriched, by these changes.

7.4      When parents separate the relocation of one or sometimes both is inevitable.  Both parents do not continue to live in the same home.  Often it is necessary for the house to be sold, requiring both to relocate.  Sometimes they can do that within the same locality; often not.  Various considerations determine choices which have to be made at that stage in the life of that family, including personal, economic, family and other considerations.  Whether the change produces a situation where the parents still live close to each other or whether it produces a situation where they live a substantial distance from each other, it is inevitable that the rights of the children to ‘know and be cared for by both their parents’ and the ‘right of contact, on a regular basis, with both their parents’ will be affected.  Almost inevitably the children will live for the much more substantial portion of their daily lives with one parent.  Daily contact with and care by the other party may no longer be feasible.

…

7.7      However, even where the relocation only involves one or both parents moving from one suburb to another or to another nearby town, the degree of previous contact with the children is almost inevitably reduced or changed.  Once it is accepted within our society that parents may separate and, if married, may divorce, this consequence inevitably follows.  Even in cases where the distance between households is not great, practical considerations place restrictions upon the free contact which the children had previously enjoyed with one or other parent.  Issues of availability of transport and its cost, the availability of the children because they are at school or at recreation, the availability of the other parent because he or she is employed, the ability to take leave from work to coincide with school holidays, the wishes of the children, all represent practical limitations.  In the vast majority of cases parents reach commonsense arrangements and do the best they can to respect the rights of their children in an imperfect situation. 

7.8      In a small number of cases the parties are unable to agree and this Court is required to adjudicate.  The essential aim of the Court is to protect and advance the best interests of the children, and it makes orders which grapple with these practical difficulties as best as may be, commonly, where the children are of school age, focusing upon weekends and school holidays…

7.9      Sometimes when parties separate they establish temporary accommodation until a more permanent home becomes a reality.  This will often involve a move from one home to a better home within the same city but a different suburb.  Where the children are living with that parent, this will again involve a change in their environment and a temporary dislocation in their day to day life.  If it is the contact parent who moves this will often add to the practical difficulties of future contact and impact upon the rights of the children to ‘contact, on a regular basis, with both their parents’.  It may require changes in previous contact arrangements, resulting in a reduction in or less frequent contact.  Again it is difficult to contemplate the application to such changes of the principles suggested by Mr Hamwood [the right of children to have each parent share in their life was predominant unless it could be shown that the current situation was contrary to their best interests]; otherwise both parents would be frozen in locations which for various reasons seem to be inferior to their subsequent choices or are no longer viable.

7.10     …Australia is a highly mobile society.  It is also a large country and the tyranny of distance develops by degree.  Once the distance involved goes beyond a particular degree, it is likely to make a profound impact upon at least the frequency with which the children can have contact with the contact parent.  That is, once the distance involved makes weekday or weekend contact impractical the realities begin to dictate that that contact has to be less frequent but for larger blocks of time - long weekends, school holidays.  Other forms of contact may then need to be contemplated - telephone and letters - and cost becomes an important consideration.  Once the interstate element intrudes that frequently dictates the need for air travel, and the cost of frequent visits then becomes substantial and, depending upon the financial position of the parents, may become a limiting or prohibitive circumstance.  In this particular case the question of cost is not an issue but it frequently is.  Parties often deal with these matters by agreement.  Where they are unable to agree the Court is obliged to grapple with this cost issue in a pragmatic way, there being no ideal solution where the parties’ financial positions are limited. 

7.11     Obviously where the contemplated relocation is interstate or overseas the issue of maintaining contact becomes more acute, but the basic principles remain the same.  The difference is that the consequences are greater and the Court is required to factor that in as a significant circumstance in determining the ultimate questions - whether to permit relocation and on what terms.

…

7.15 The forming of personal relationships, often within marriage, is an integral part of our society, and one which is encouraged at all levels. It is not simply that it fulfils the personal desires of the persons involved. It is an essential aspect of life in our society. Section 43 of the Family Law Act, which sets out principles which this Court shall apply in exercising jurisdiction under the Act, includes ‘the need to preserve and protect the institution of marriage’ and to ‘give the widest possible protection and assistance to the family as the natural and fundamental group unit of society.’  There is no reason to suggest that these principles apply only to first marriages. 

…

7.17    As we have said, there are other reasons why a relocation to another town or another State is seen by the parent to be desirable, in some cases essential.  That includes reunion with family from an otherwise isolated lifestyle after marriage breakdown, occasionally issues of health, and not infrequently to escape violence and abuse by the former partner. 

7.18    The point of referring to these reasons is not to attempt an exhaustive list or to give them any particular validity in the abstract.  The ultimate point in these cases is that often good, perhaps compelling, reasons exist to relocate.  … The Court is required to consider, amongst other matters in determining the ultimate issue of the best interests of the children, the degree of significance of the proposed move and the impact which that will have on the children, the other party, and the inter-relationship between all of them.  In some cases the contact parent has had, either by choice or circumstance, little meaningful contact with the children; in other cases contact may be seen as of little value or even harmful.  A change in the children’s place of residence may in those circumstances cause little detriment.”

1. In AMS v AIF the trial Judge restrained the mother from changing the children’s place of residence from Western Australia to the Northern Territory.  The Full Court of the Supreme Court of Western Australia declined to interfere with the primary judgment.  The High Court allowed the mother’s appeal and remitted the matter for rehearing on the basis that the trial Judge had placed an unacceptable burden upon the mother to show compelling reasons why it was in the interests of the children to move. 

1. The High Court dismissed an argument by the mother that the restraining orders interfered with her freedom of movement pursuant to the provisions of s 92 of the Constitution. The Court accepted that an impediment, reasonably required to achieve the objects of applicable State legislation to promote the welfare of the children, could be imposed.

1. Kirby J, with whom Gleeson CJ, McHugh and Gummow JJ agreed on this point, concluded that the trial Judge erred in requiring the mother to demonstrate compelling reasons to justify the relocation.  He said at CLR 224-6; FLC 86,050-1; Fam LR 806-7 (endnotes omitted, emphasis added):

“192.   First, to impose upon a custodial (or residence) parent the obligation to demonstrate ‘compelling reasons’ to justify relocation of that parent's residence, with consequent relocation of the residence of the child, is not warranted either by the statutory instructions to regard as paramount the welfare of the child or by the practicalities affecting parents. Parents enjoy as much freedom as is compatible with their obligations with regard to the child. The freedom continues, including with respect to their entitlement to live where they choose. At least in the case of a proposed relocation within Australia, the need to demonstrate ‘compelling reasons’ imposes on a custodial parent an unreasonable inhibition. It effectively ties that parent to an obligation of physical proximity to a person with whom, by definition, the personal relationship which gave rise to the birth of the child has finished or at least significantly altered.

193.    Whilst a proposal to take a child to a place where it would be exposed to risks and dangers might, in a particular case, warrant a need for ‘compelling reasons’, such seems scarcely applicable for relocation within Australia. In the latter case, the attention of the decision-maker should ordinarily be to the possibility of formulating different arrangements for access and contact which would meet that child's welfare…

194.    Secondly, it is important to remember that in Australia, whilst the welfare (or best interests) of the child are, by statute, the ‘paramount’ consideration in the exercise of jurisdiction such as was invoked here, they are not the sole consideration. …. Statutory instructions as to the paramountcy that is to be accorded to the child's welfare or best interests are to be understood as they apply to a child living in Australian society, normally in relationship with both parents and other members of its family. Whilst the legislation considered in this case, and later statutory reforms, give the highest priority to the child's welfare and best interests, that consideration does not expel every other relevant interest from receiving its due weight. In part, this is because (as the English courts recognised long ago) the enjoyment by parents of their freedoms necessarily impinges on the happiness of the child. But, in part, it is also because legislation such as FLA 1975 and FCA 1975 is enacted to take effect within a society of a particular character whose members enjoy a high measure of personal freedom, diminished only to the extent that the law obliges.

195.    …the reason for the lack of attention to her alternative proposal arose from the conclusion that the arrangements in Perth were ‘ideal’ because they meant regular physical contact with both parents (and an extended family), whereas this would be diminished if the mother relocated. That approach impermissibly restrained the residence choices open to the mother. It illustrates an application of the legislation unduly favourable to the interests of the non-residential parent. He is subject to no injunction and he lives where he chooses effectively requiring his former partner to remain close at hand to maximise his contacts with the child of their relationship (and, it must be added, the child's contacts with him). Whilst the last stated consideration is certainly a matter proper to be taken into account, it is not the sole consideration to inform the Court's decision.

…

196.    Any such alteration [of place of residence], with its practical consequences for the access to, and contact with, the father necessarily required a reconsideration of the issue of the residence of the child on the footing that the mother was to relocate to the Northern Territory. It required consideration in that context, of the acceptability of the alternative proposals which she advanced for different, but longer, periods of contact between the child and the father. If this was not judged satisfactory, it possibly necessitated consideration of whether a different regime, devised by the Family Court, would adequately fulfil the child's rights to regular contact with his father although no longer living permanently in close physical proximity. If such arrangements were still judged insufficient for the welfare of the child, that might necessitate, despite the life-long role of the mother as the primary care-giver, reconsideration of the entire issue of custody (or residence) and whether some joint arrangement was not appropriate. …”

1. In Paskandy (1999) FLC 92-878; (1999) 25 Fam LR 607 the mother of a three-year-old child was restrained from removing the place of residence of the child to any place outside the Perth metropolitan region. The wife had come to Australia from Hungary in 1995. Shortly thereafter she married the husband. They separated in August 1997. After the breakdown of the marriage the wife wanted to return home with the child. The trial Judge concluded that the welfare of the child would best be served if he lived in Perth with his mother and had ongoing contact with his father.

1. The Full Court (coram Ellis, Holden and O’Ryan JJ) held that the trial Judge had failed to consider properly and assess each of the competing proposals; namely the wife’s plan for contact if she lived in Hungary, the wife’s plan for contact if she did not live in Hungary, and the husband’s plan that he should have residence of the child.  In particular, the Court concluded that the Judge had first determined that the wife should live in Australia with the child and then evaluated the two competing proposals that were left.  The Full Court concluded that the matter needed to be remitted for rehearing.

1. In A v A: Relocation approach Nicholson CJ, Ellis and Coleman JJ dealt with an appeal against an order that had restrained a mother of a nine year old girl from taking the child to live with her in Portugal.  The issues before Moss J, the trial Judge, did not include a claim by the father that the child live with him in Sydney.  At the time of the hearing before the Full Court all contact between the father and child had been suspended.  Moss J had concluded:

“125.In so far as the welfare of M is concerned, I am strongly of the view that she should continue to reside in this country thereby to enjoy the many benefits available to her, in terms of her health, her schooling, her freedom, the opportunities that will be available to her in terms of a career, and most important of all, so that she may have as much contact as possible with the Respondent.”

1. The Full Court, in allowing the appeal and remitting the matter for retrial, took the opportunity to state what it perceived were the binding principles of law established by AMS and AIF, and then purported to set out by way of “guidance” matters which ought to be given consideration in a relocation case. They were as follows (FLC 87,551-3; Fam LR 408-10, emphasis added):

“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 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 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 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.”

1. The High Court examined the issue of international relocation in U v U.  This was a case in which an order had been made which had the effect of prohibiting the mother of children from taking them to live in India.  The majority judgment was given by Gummow and Callinan JJ, with whom the Chief Justice, McHugh and Hayne JJ agreed.  Kirby and Gaudron JJ in separate judgments each dissented, holding that the appeal should be allowed.  Kirby and Gaudron JJ would have remitted the matter for a rehearing.

1. In the majority judgment their Honours observed at FLC 89,090-1; Fam LR 94:

“89…whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent…

…

91…’Contact’ with both parents is desirable and important. So too is the presence of a ‘stress-free environment’ for the child, to the extent of course, that it is possible for it to exist in a fractured emotional relationship. It is unlikely that many of such situations will admit of perfect solutions.

92…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.”

1. At the trial the mother’s position was that she should live in India.  The father’s position was that the children should live with him in Australia.  As the trial progressed the mother conceded that if the children were not allowed to go to India she would stay behind.  The Judge seized on that concession and concluded that the best interests of the children dictated an outcome where they were in a position to have an ongoing relationship with both parents.

1. Kirby J was critical of such an approach at FLC 89,099; Fam LR 106-7:

“142. The failure of a primary judge to give separate and full consideration to the true proposal of a mother, as designated primary carer and residence parent, to discharge her assigned responsibilities overseas, following her return to her family in India, therefore constitutes a serious injustice to the proper evaluation of that application. The burden of such injustices will ordinarily fall, as here, on the wife. It will be she, not the husband, who will usually be confined, in effect, in her personal movements, emotional environment, employment opportunities and chances of remarriage, repartnering and reparenting. Effectively, as here, it is she who will be controlled by court orders that require her to live, and make the most of her life, in physical proximity to the husband's whereabouts. In this way, inconvenience to the husband is minimised. But the effect on the wife may be profound.

…

144.   The implications of adopting the ‘alterative proposal’:: Treating the wife's refusal to abandon her child and her expression of willingness (if necessary) to stay with the child in Australia as an ‘alternative proposal’ requires, in effect, that parent to show ‘good’ or ‘compelling’ reasons to relocate, given that doing so will always make it more difficult (and in some cases virtually impossible) for physical contact between the other parent and the child to be maintained. Such an approach stacks the cards unfairly against the custodial/residence parent. It is precisely the approach held to have been erroneous in AMS.”

1. In a separate judgment Hayne J, with whom the Chief Justice agreed, drew attention to the Court’s need also to enquire of the non-custodial parent whether he or she could move to be near the children (at FLC 89,103; Fam LR 113):

“175.   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.”

1. There are several parallels between the case before us and the Full Court decision in Martin and Matruglio (1999) FLC 92-876; (1999) 25 Fam LR 510. That case involved an appeal by a mother who had been prohibited from moving from Canberra to Sydney with the children. The Full Court held that Faulks J had impermissibly required the mother to demonstrate the compelling reasons why she should move to Sydney.

1. In the majority judgment Kay and Dessau JJ said at FLC 86,410; Fam LR 528:

“64…The best interests of the children are to be ultimately evaluated by taking into account a number of considerations, one of which is the right of the residence parent to move where he or she pleases and the other of which is the need to ensure in appropriate cases an ongoing relationship with a non-residence parent.”

1. Their Honours took the view that the trial Judge made no exploration of possible alternatives to the current arrangement other than the rejection of those put forward by the wife.  Their Honours said :

“65.  In our view in this case, his Honour did not appropriately conduct the balancing exercise.  There is no exploration by the trial Judge of possible alternatives to the current arrangement other than the rejection of those put forward by the wife.  The husband put none forward.  The trial Judge put none forward.  The wife's proposals seemed, on the face of them, to be sensible and a genuine attempt at ensuring that there was ongoing contact between the children and their father.  It was the husband's inflexibility (whether by necessity or otherwise) which was causing the problem.”

1. As in Martin and Matruglio in this case the factors favouring the move in our view clearly outweighed any factors against it.  The mother was the primary caregiver and was unchallenged in that position.  Whilst the father had put forward a case for residence, it was not pressed at the hearing and he admitted himself that it would be devastating for the children not to be living with their mother.  There was clear and unchallenged evidence from Mr Papaleo, the psychologist who had provided two reports on the family, that the children had a solid relationship with their father and that it would not be damaged by a diminution in frequency of contact.  As set out in paragraph 12 above, he said in cross examination:

“…the fundamentals of their experience is sufficiently strong to promote their healthy development.  See, I believe that if they go to Drysdale with their mum and see their dad twice in 14 days, that’s still going to be okay.  If they spend more time with their dad, they’re still probably going to be okay.  If things stay the way they are, they’re probably going to be okay because all the indicators suggest that they are coping pretty well and getting enough from the world.

…

I think it wouldn’t be a good thing for them not to have their mother as their primary carer but if circumstances were such that demanded that that occur, I think they would cope.  I think if they have less contact with their father and the mother moves to Drysdale, I think they will cope.”

1. The mother’s housing was in Drysdale and she had no housing immediately available within 10 kilometres of the husband’s residence.  The mother’s current relationship with Mr T was of some years standing.  He had ties in the Drysdale area that explained why it was that the mother wanted to live there.  The distances between Vermont and Drysdale are relatively small.  The journey was said to take about 1½ hours by road. 

1. In the case before us, the husband’s initial response to the wife when she informed him that she was moving to Drysdale was to say that if his opposition otherwise failed:

“I will have no choice but to simply move to Drysdale and seek whatever employment there I might be able to find.”

1. In cross-examination he resiled from that position indicating that he had no intention to move.

1. In a case like the present one, where there is no or no credible alternative proposal with respect to residence advanced by the non-residential parent the correct approach to adopt is the one identified by Kirby. J. in AMS v AIF  (see para 17 above) that the focus of

“the attention of the decision maker should ordinarily be at a possibility of formulating different arrangements for access and contact  which would meet the child’s welfare”

Conclusion

1. We are of the view that Morgan J unfortunately fell into the trap of requiring the mother to justify her move.  If she could not do so then the status quo would have to prevail.  In so doing her Honour transgressed the boundaries discussed by the High Court in AMS v AIF, especially in failing to evaluate all options to determine if the welfare of the children could fit in with the mother’s right to live where she pleased.  It was very important to ensure an adequate ongoing relationship between the children and their father, but, as Mr Papaleo conceded, that could be achieved with the mother living in Drysdale.  It might not have the same quality about it that living across the park enabled, but it would still allow the children to have regular and frequent contact with their father and at the same time allow the mother to get on with her life as she chose.  It may be that her Honour gave too much weight to Mr Papaleo’s view that it was for the mother to justify her move to Drysdale.  In this he was clearly wrong and was operating outside the field of his expertise.  In dealing with expert evidence it is important to be aware that the expert may be applying his/her own views about what is properly a matter for the Court to decide. 

1. Normally when an error in a discretionary judgment is detected in relation to children’s matters, the advantage that a trial judge has in evaluating competing proposals, including evaluating the parties themselves, indicates that it is inappropriate for an appellate court to try and impose the decision that ought to have occurred at first instance.  It is normally more appropriate to remit the matter for a rehearing. 

1. However, there are cases in which there is a sufficiently strong substratum of facts that are unchallenged that make it appropriate that an appellate court make its own orders rather than remit the matter for rehearing.  Indeed, as the High Court pointed out in CDJ and VAJ (1998) FLC 92-828; (1998) 23 Fam LR 755, the rehearing process itself may be contrary to the best interests of the children.

1. Having announced that we were intending to allow the appeal and make orders that would enable the mother to move to Drysdale with the children, we invited the parties to consider whether they could reach agreement on a set of appropriate contact arrangements, or whether we would need to remit that issue to a single judge.  The parties subsequently provided us with minutes of final orders that provided for the father to have weekend contact on two out of every three weekends as well as sharing in school holidays.

Costs

1. Both parties applied for a costs certificate in the event that the appeal was successful, and in our view it was appropriate that such certificates be granted.

1. The mother also sought that a costs order relating to the second day of the proceedings before her Honour be set aside.  Her Honour made that order as a result of a second hearing having been necessitated by the mother’s actions in moving to Drysdale despite her Honour’s findings adverse to her in the original proceedings.  As her Honour put it, that conduct “precipitated the making of the application by the father in which he has been entirely successful”.  While the basis for those findings has been successfully challenged by this appeal, it does not follow that the mother’s conduct on that occasion was appropriate, and we see no reason that the order should not stand.

I certify that the 69 preceding
 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.

Elizabeth Hore
Associate