Darroch & Rassell

Case [2022] FedCFamC1F 34

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Darroch & Rassell [2022] FedCFamC1F 34

File number(s): HBC 79 of 2021
Judgment of: MCGUIRE J
Date of judgment: 10 February 2022
Catchwords: FAMILY LAW – CHILDREN – Application by father for children to live in an equal shared care arrangement on a week-about basis – Application opposed by the mother who seeks to relocate interstate with the parties’ three children – Order not permitting twin girls to relocate interstate – Orders that twin girls live with the mother for a period of nine nights per fortnight and with the father five nights per fortnight – Orders that parents have equal shared parental responsibility for the children – Orders that eldest child spend time with the parents as agreed between the parents and in accordance with the eldest child’s views – Orders by consent that eldest child will attend school interstate from January 2022  
Legislation: Family Law Act 1975 (Cth) ss 60B 60CC and 65DAA
Cases cited:

A & A; Relocation Approach (2000) FLC 93-035

Champness v Hanson [2009] FamCAFC 96

Franklyn & Franklyn [2019] FamCAFC 256

G & C [2006] FamCA 994

Goode & Goode (2006) FLC 93-286

KB & TC (2005) 33 Fam LR 471

Mazorski & Albright  (2007) 37 Fam LR 518

McCall & Clark [2009] FamCAFC 82

Paskandy & Paskandy (1999) FLC 92-878

U & U [2002] 211 CLR 238
Division: Division 1 First Instance
Number of paragraphs: 139
Date of hearing: 23 November 2021, 15, 16 and 23 December 2021
Place: Hobart
Counsel for the Applicant: Mr Kovacic
Solicitor for the Applicant: Ogilvie Jennings
Counsel for the Respondent: Ms Higgs
Solicitor for the Respondent: Dobson Mitchell & Allport
Counsel for the Independent Children's Lawyer: Mr Trezise

ORDERS

HBC 79 of 2021

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

MR DARROCH

Applicant
AND:

MS RASSELL

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

10 FEBRUARY 2022

THE COURT ORDERS THAT:

1.That all extant parenting orders and parenting plans in respect of the three children X born 2005, Y and Z both born 2009 be discharged.

2.That the parents, Mr Darroch and Ms Rassell, have equal shared parental responsibility of the children X, Y and Z.

3.That X live in circumstances and spend time between the parents as agreed between the parents and taking into account X’s views and preferences noting that these parents have agreed that X will attend school from January 2022 in City B, New South Wales.

4.That the children Y and Z live between that the parents on the following basis:

(a)during school term for a period of nine nights per fortnight with the mother commencing from the conclusion of school on Wednesday and finishing at the commencement of school on Friday in the following week;

(b)during school term for a period of five nights per fortnight with the father commencing from the conclusion of school on Friday and finishing at the commencement of school on Wednesday.

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AGLC
Darroch & Rassell [2022] FedCFamC1F 34
Case
[2022] FedCFamC1F 34
Decision Date

CaseChat Overview and Summary

In the case of Darroch & Rassell, the mother sought orders to relocate with her three children to City B, with a particular focus on the eldest child, X, attending a specific school. The father opposed this relocation. The court had to determine the legal issues surrounding the relocation of the children and whether it was in their best interests. The key considerations included the effect of any changes in the children's circumstances, the practical difficulties and expense of maintaining relationships with both parents, and the capacity of each parent to provide for the children's needs.

The court found that the children had established, successful, and happy relationships with both parents, though the parents had different parenting styles and were unable to cooperate effectively due to residual animosities. The eldest child, X, was mature and informed in her desire to attend a specific school in City B, while the younger twin girls were less mature and ambivalent about the relocation. The court concluded that the mother had demonstrated a lack of insight into the needs of the children and the importance of their relationship with their father. The court also noted that the father was more accommodating and objective about the children's needs than the mother.

Based on these findings, the court determined that the relocation would have a significant effect on the children's relationship with their father and their understanding of their parents' roles and responsibilities. The practical difficulties and expense of maintaining school holiday arrangements between the parents would also substantially affect the children's rights to maintain personal relations and direct contact with both parents on a regular basis. Additionally, the court found that the relocation would impede the father's capacity to provide for the children's needs, including their emotional and intellectual needs.

Ultimately, the court denied the mother's application to relocate with the children to City B. The court emphasised the importance of maintaining the children's relationships with both parents and the need for structure, planning, and agreement between the parents to facilitate this. The court also highlighted the paramount importance of the children's best interests in determining the outcome of the case.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The respondent mother, Ms Rassell, asks for orders were whereby she be permitted to relocate with all three children to City B and again with a focus on X attending D School.BACKGROUND FACTS The father is 48 years of age and the mother is 50 years. They commenced cohabitation in 2000. Separation occurred in March 2017. In March 2017 the parties agree a parenting plan whereby the children are to live primarily with the mother but spend time with the father. On 11 May 2017 the parties entered into consent orders for property settlement. On 12 November 2020 the mother first advised the father by text message that X had been offered a place at D School for the 2021 year. The father expressed his opposition to the mother and the children relocating. On 16 December 2020 the mother sent a text message to the father advising of her intended relocation with the children notwithstanding his objections. On 29 January 2021 the mother sent a text message to the father indicating that she would be relocating with the children the following day and being equivocal about the return date but with no return tickets evident. The children were to return from the father to the mother that day but the father retained the children so as to prevent the mother’s anticipated removal of them from Tasmania. There was then an incident between the father and the mother in the father’s driveway, apparently witnessed by the children, which involved some physical aggression and resulting in mutual family violence orders. The father commenced proceedings on 29 January 2021. On 15 March 2021 an order was made for an appointment of an Independent Children’s Lawyer and single expert. The father lives at Suburb E. He is a scientist by occupation but currently working on reduced hours following the birth of his son, W, in March 2021. The father has re-partnered with Ms F who is generally employed as an allied health worker. The mother lives at Suburb G. She is an educator by occupation but currently engaged in casual work. The mother is re-partnered with Mr H. The details of this relationship are sparse and the evidence suggests that the mother was reluctant to disclose the fact of that relationship to the father and to the Court until her trial affidavit of 19 November 2021. Mr H did not give evidence and despite a revelation from the mother that it is anticipated he would relocate with the mother’s family unit to City B and therefore effectively be a male role model in that unit. Further, Mr H is the father of fifteen year old twin boys. The children X, Y and Z have all shown a high level of interest and proficiency in many of the arts. They pursue these activities currently during their time with both the mother and the father.THE FATHER'S CASE The father says that a relocation of all three children as proposed by the mother will impact negatively on his relationship with the three girls and, in particular, the twins who are 13 years of age. He says that the change proposed by the mother is a significant one where the children currently spend five days per fortnight with him but where a move to City B would essentially limit the relationships to school holiday time.

Evidence

Evidence Before The Court

The Court’s focus or specific consideration in matters involving anticipated relocation might include the following:•relocation matters are parenting cases to be determined in accordance with Part VII of the Act and in the context of making necessary findings in respect of the relevant s 60CC factors but also within the context of the s 65DAA considerations of equal time or substantial and significant time and “reasonably practicable”; •the best interests of the child remain the paramount but not the sole consideration;•the child's best interest must be weighed and balanced with the “right” of a parent to “freedom of movement” but such must ultimately defer to the child's best interests; and•neither party carries an onus of proof in respect of the proposed relocation and the Court is to consider each party's proposal generally including the advantages and disadvantages of a relocation or may itself formulate proposals in the best interests of the child.THE EVIDENCEThe father The father presented as an intelligent, articulate, and thoughtful witness. His focus was on the children rather than self-interest as demonstrated by his capacity to understand the wishes of his 16-year-old daughter to relocate. At times, however, the father seemed preoccupied with “fairness” clearly emanating from what he perceives as unfairness by the mother in respect of his relationship with his daughters. The father showed an insightful and perceptive parenting style as for instance subtly building independence in the children. His evidence demonstrated a high functioning and adept parent. He was capable of the organisation of the complicated and onerous regime currently in place for these girls and their activities. The father was at times critical of the mother both personally and in her parenting of the children. He accused her of “poisoning” the children's relationship with him. However, as the evidence developed, it became clear that a number of his criticisms of her had merit and my observations of those criticisms of the mother were that they were articulated in a factual, and at times sympathetic, fashion rather than with any emotional embellishment. The father was objective and focused in respect of his daughters and able to make admissions against interest such that he believed that his relationship with his children would survive and endure if they were to relocate to City B, but was able still to argue that those relationships would not be maximised to their potential and would suffer hurdles and conflicts.The mother The mother was not a good witness. She was verbose in response and at other times non-responsive with a propensity to deflect from the questions. She tried to give an impression in the witness box of being child focused but her evidence was often suggestive of self–interest. Her responses often impressed as orchestrated or rehearsed and frequently with clichéd generalities. The mother certainly impressed as being a dedicated parent to her three daughters but with a lingering question to whether this dedication crossed the borders of her being an enveloping parent and perhaps living her own life or personal ambitions through her children by an “oversubscribing” of the children in extracurricular activities where as the primary parent she does, of course, carry a duty to encourage and facilitate the children's relationship with their father.

Decision

Reasons for decision

It is, of course, the objective of trial judges to make orders that whilst being in the best interests of children are workable and operable into the future given that continuing or repeated litigation is contrary to those children's best interests. Nevertheless, a relocation of children or a refusal to allow relocation of those children gives potential for further litigation. A relocation presents various unknowns. Will the parent settle and be able to assimilate into a new community with accommodation and employment? Will the children settle into new schools, environments, and relationships? Importantly, will the children's relationship with the remaining parent continue or will logistical, conflictual and financial issues bring insurmountable hurdles and further litigation? Conversely, will the frustrations of the parent having ambitions to relocate be such that the parent’s own emotional health or parenting capacity suffer to the extent that further litigation eventuates? Whilst a relocation will test and reality–check the relationships between both parents and children, those relationships can be similarly tested by one unhappy parent being denied freedom of movement, plans and aspirations.FINDINGS AND CONCLUSIONS On the evidence I am able to find that these three children have established, successful and happy relationships with each of their parents. I find that the parents are different in personality and parenting style. Whilst both are child focused, the mother prioritises the children’s extracurricular activities over their relationship with their father. Her evidence in court was revealing in satisfying me that she parents in an entitled fashion and she was unable to acknowledge that what was undoubtedly an attempted unilateral relocation of the children in January 2021 was inappropriate, selfish and demonstrative of a lack of insight into the needs of her children. Whilst the father is able to acknowledge some positives in the mother, both personally and in her parenting, the mother was singularly unable to find any positives with the father. I can only conclude that the personalities and residual animosities of these two parents are such that cooperative parenting is difficult within a climate of suspicion, conflict, and lack of mutual–respect. I repeat, however, that the father's evidence satisfied me that he is potentially more accommodating in this respect than is the mother. I am satisfied that X is mature and informed in her desire to experience her preferred form of education in City B compatible with her interests in the Arts. I accept the evidence of Dr J that X is more independent than her parents perhaps understand or accept but where again the father is more ready to be objective and child focused in this respect than is the mother. I find that the preferences and views of the 13 year old twin girls are more ambivalent and less mature than those of their sister. It is understandable that they do not wish to be separated from X where they have endured the separation of their parents and present as a tight knit unit together with their mother.

Ratio Decidendi

Legal Principle Established

The mother has shown a capacity to act unilaterally in respect of the children most notably by what seems to be an attempt to relocate to City B in late January 2021. Whilst her motives were undoubtedly focused on the children and what she perceived to be X’s best interests, she showed an abject neglect and lack of insight into the relationship between the children and the father and what is generally seen as the concept of parental responsibility. Similarly, she suffers justified criticism by the father in enrolling the children in extracurricular activities which impinge on his time with the children and without full and proper prior consultation.Section 60CC(3)(d) the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:(i) either of their parents; or(ii) any other children, or other person (including any grandparent or other relative of the children), with whom they have been living This consideration is at the very crux of any application involving the potential relocation of children. The current relationship for the children is weekly with each of their parents. They understand their parents’ styles and home environments. As indicated above, the transition for the children between the homes seems relatively successful despite the continuing animosity between the parents and the differences in the parenting styles. In their father's home, the children have relationships with Ms F and with W. Whilst the children might maintain relationships with the adults through various media, this alternative would be of limited or nil value for the relationship between the girls and W. The mother's proposal would inevitably change the children's relationship with and their understanding of the roles and responsibilities of each of the parents. The children would be removed from established peer group relationships. A relocation would require structure, planning, and agreement between the parents where they show questionable abilities in this area.Section 60CC(3)(e) the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s rights to maintain personal relations and direct contact with both parents on a regular basis The mother's proposal is that the children would spend block periods of time with the father in each of the four annual school holidays and, at least for the first year, such time to be loaded in favour of the father. This would involve a degree of communication and cooperation between the parents in the travel logistics. It would incur not inconsiderable expense in respect of three return airfares on four occasions each year. As mentioned above, there is potential for conflict between the commitment for the parents and the children to maintain these school holiday arrangements and the almost inevitable commitment in respect of the extracurricular activities enjoyed by these girls. Section 60CC(3)(f) the capacity of:(i) each of the children’s parents; and(ii) any other person (including any grandparent or other relative of the children);to provide for the needs of the children, including emotional and intellectual needs