Degman & Waldrum
[2020] FCCA 3426
•16 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
Degman & Waldrum [2020] FCCA 3426
File number(s): MLC 1643 of 2020 Judgment of: JUDGE HARLAND Date of judgment: 16 December 2020 Catchwords: FAMILY LAW – relocation – 220 kilometres away – finely balanced case Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC(2), 60CC(2)(a), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 64, 65D, 65DAA(1), 65DAA(3) Cases cited: AMS & AIF (1999) 24 Fam LR 756
KB & TC (2005) FLC 93-224
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR v GR [2010] 240 CLR 461
Taylor & Barker (2007) 37 Fam LR 461
U v U (2002) 211 CLR 238
Waterford & Waterford [2013] FamCA 33
Number of paragraphs: 119 Date of last submission/s: 20 November 2020 Date of hearing: 20 October 2020 Place: Melbourne Counsel for the Applicant: Ms Bonney Solicitor for the Applicant: Dwyer Legal City C Counsel for the Respondent: Mr Nehmy Solicitor for the Respondent: SWD Legal ORDERS
MLC 1643 of 2020 BETWEEN: MS DEGMAN
Applicant
AND: MR WALDRUM
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
16 DECEMBER 2020
THE COURT ORDERS THAT:
1.The parties have equal share parental responsibility for X born in 2010 and Y born in 2013 (“the children”).
2.The children live with the mother.
3.The children spend time with the father during school terms:
(a)In week one from Tuesday after school until Wednesday before school; and
(b)In week two from Friday after school until Wednesday before school.
4.The children spend time with the father:
(a)For half of all school holidays as agreed between the parties in writing and failing agreement:
(i)With the father for the first half of the school holidays and the mother for the second half of the school holidays in even numbered years; and
(ii)With the father for the second half of the school holidays and the mother for the first half the school holidays in odd numbered years.
(b)On special occasions being the children’s birthdays, the father’s birthday, father’s day, Christmas and Easter as agreed between the parties in writing; and
(c)At other times as agreed between the parties in writing.
5.The initiating application filed 14 February 2020 and response filed 26 February 2020 be otherwise dismissed and the matter be removed from the pending cases list.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Degman & Waldrum is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND:
The mother seeks to relocate with the children to Town B, 220 kilometres away from their current home in City C. The father opposes her application. There are two children of the relationship; X born in 2010, aged 10 and Y born in 2013, aged seven. The parties started living together in 2004, were married in 2009 and separated on 1 June 2014. If it were not for the mother’s desire to relocate, these parties would not be before the Court. They have been able to negotiate parenting arrangements themselves since they separated over six years ago.
Factually, there is little in dispute. The parties, the mother’s partner and the family consultant were cross-examined. Neither parent raises any concern about risk.
BACKGROUND
Both parties describe themselves as taking on “traditional roles” during the marriage, with the father being the primary income earner and the mother the primary caretaker for the children.
When the parties separated X was four and Y was 15 months old. For the first year after their separation the father spent regular daytime periods with the children on alternate Saturdays and Sundays, and the children spent Wednesdays with the paternal grandmother as the children did not have school or kinder. The father started spending overnight time with the children when they were two and a half and six years old. Currently, the parties live approximately 15 minutes’ drive from each other.
The mother says that whilst the children have a close bond with the father she has always been the primary carer and it would not be in the children’s best interests for them to live with their father should she not be permitted to relocate with the children.
THE PARTIES’ POSITIONS
The parties’ case outlines were prepared on the premise that the competing positions of the parties were that either the mother and children relocate to Town B and spend regular time with the father on weekends and school holidays or the mother relocates to Town B without the children and the children spend regular time with the mother on weekends and school holidays. However, the mother’s case was presented somewhat differently at trial. The mother stated that she would not relocate without the children. This is very much a fall-back position for her and not a proposal. She was very clear in her evidence that as her partner is not able to relocate to City C, continuing to live in separate places will place a strain on their relationship. The mother gave evidence that as a fall-back position, they would look at buying land closer to City C and building a property that would enable the children to remain at their school and for the current parenting arrangements to remain in place, which would also shorten the commute to Town B. That would take some time to find appropriate land and to build. Again, this is not a proposal of the mother’s and is very much what she referred to in oral evidence as “Plan B”.
After reserving the decision and considering the evidence, I sought clarification from the parties on this point and also gave procedural fairness with respect to an order that neither party sought in the event the mother is not permitted to relocate the children’s residence. As the mother regularly travels to Town B and is able to work remotely, if orders were made for the father to spend alternate weeks with the children from after school Friday until before school Wednesday and overnight Tuesdays in the other week, the mother would be able to spend a longer block period in Town B rather than needing to return to City C on the Sunday afternoon. Alternatively, the father having the children until Monday before school would also give the mother additional time in Town B. The father said in his material that he wanted to be able to take the children to school on Monday mornings but complained the mother would not agree. Despite this comment in his material, the mother was not cross-examined about this.
The parties took up the opportunity to provide further submissions. The mother clarified that her position is that she be permitted to move the children’s residence to Town B. In the event the Court does not find that to be in the children’s best interests she seeks to be able to relocate to a midpoint between the two locations and says in her further submissions that failing that, she would opt for the father to spend alternate weeks with the children from after school on Friday until before school on Monday in week one and overnight on Tuesday in week two. She did not give any further explanation for her preference. The father made further submissions stating that in the event the mother remains living in City C, that his strong preference is for him to have the children for six nights a fortnight rather than the current four nights a fortnight and states that the evidence supports this as being in the children’s best interests and refers to the requirement for the Court to consider substantial and significant time. The father would have greater opportunity to be involved in the children’s day-to-day routine than he does currently and it would maintain the Tuesday night dinners.
THE PARTIES’ CURRENT CIRCUMSTANCES
The children spend four nights a fortnight during school terms with the father on alternate weekends from Friday to Sunday and overnights each Tuesday. They also have dinner with their father on alternate Thursdays. The father also has the children for half of the school holidays.
The mother works part-time as a Manager and has held that job for three years, earning approximately $46,800 a year. Her employer has an office in City C and depots in Town B, City D and Town E. She says she is not required to be in the office and can work remotely and has been working remotely during COVID-19 restrictions. She says she has spoken with her employer and will be able to continue her employment if she moves to Town B.
Approximately six months ago the father was promoted from Manager to divisional manager with his employer. He says the divisional meetings he is required to attend in City F will now be one day every two months instead of every month. The father says he schedules his hours and these meetings around his parenting commitments.
The children attend G School in City C. X is in year 4. Y is in year 1. Both are progressing well at school. The mother says the father chose their school as it was important to the father that the children attend a Catholic school. The mother said this is why she proposes that the children attend the local Catholic school in Town B. The father says the children are doing very well at G School and have positive relationships with their teachers and are emotionally attached to the school community. He says they often win school awards. The father pays the children’s school fees and associated costs.
Since interim orders were made on 2 March 2020, the father has spent half the school holidays with the children. The father says he has assisted the mother when she has asked during the COVID-19 restrictions but there have been occasions when he has been unable to do so due to his online university classes.
THE MOTHER’S CASE
The mother proposes that if she be permitted to relocate with the children that the father spend alternate weekends with the children and half school holidays or longer if agreed, as well as on occasions when she visits City C for work or to see family. She says she intends to stay with her parents on their farm at Town H one weekend per month.
Both parents acknowledge that the children have a close bond with the other parent. The mother says the children have strong relationships with both the maternal and paternal grandparents and that those relationships will continue. Her position that her proposal provides more time for the father to spend with the children than he currently does, is just configured differently. She says until the orders were made on 2 March 2020, the father did not seek to spend half the school holidays with children. The father disputes this and says he asked for time during the holidays but the mother refused to allow him more time during the school holidays.
The mother denied telling the children that they would be moving. She said that they talked about it as a possibility. She denies inappropriately involving the children in the dispute.
In her affidavit filed 13 October 2020 the mother complains that the father seldom attends the children’s swimming lessons, has never attended a full sports day and does not attend parent teacher interviews, information evenings and school assemblies.
The mother says since the COVID-19 restrictions have been in place, she has done all the home-schooling with the children apart from one day where the father assisted.
She says the children will benefit from her being happier and no longer being a single parent.
The mother has been in a relationship with Mr J for three years. They are in a committed, long term relationship. They wish to live together. At paragraph 51 of her trial affidavit the mother says the following:
We wish to live in a family unit, and this will assist my emotional welfare and that of the children and will greatly improve my career aspirations, self-esteem, and ability to contribute to support the advancement of the children. It will also provide me with support within the home and in parenting the children. I will also have someone to share my day with and my thoughts when the children go to bed and financially, I will not have to live week to week.
Mr J is a farmer working in partnership with his parents. The farm is located at Town B. He lives in a three-bedroom home which is a 10 minute drive from the farm and a five-minute walk from the local school. The mother proposes that she and the children live there with him. She says she will be in a stronger position financially as Mr J does not have a mortgage over his property. The mother said she would also assist Mr J’s business doing bookwork and general work on the farm. She says the children would benefit from living in a regional area and will be able to have horses, go fishing, build cubbies in the bush and play with farm animals.
Mr J’s parents live on the farm. The mother has been travelling to Town B on weekends, bringing the children with her on her weekends. She says the children get along well with Mr J and his parents when they visit the farm and play with the animals there.
Mr J gave evidence. He says he has operated the farming and cropping enterprise with his parents for the past seven years. Since commencing a relationship with the mother in 2017 they split their time between Town B and City C. If the mother and children are permitted to relocate they would live on his property. He says they intend to build a home on the family farm which is situated on 270 acres.
He says the children would be able to continue to enjoy their extracurricular activities and hobbies as well as enjoy farm life and horse riding. In his affidavit he says he believes that if the mother is not able to relocate, that strain on their relationship will be such that it may likely end their relationship.
It was clear when he was cross-examined that the option of buying a property closer to City C was not one that they had explored in any detail and was definitely not a preferred position.
I accept that Mr J is not able to relocate to City C as he is in partnership with his parents running the family farm. He also gave evidence that the type of farming that they undertake is local to the area and not transferable to other farms in the City C area.
The mother acknowledged the regularity with which the children see her parents and the assistance her mother provides her with the children, but says if she is permitted to move, Mr J will be able to provide that assistance and his family will also be able to assist. Part of what the mother seeks is the support of a partner living in the same home full time.
THE FATHER’S CASE
The father says that during and after their relationship the mother relied heavily on the support of her parents and that she and the children spend time at her parents’ home several days a week.
The father says he has tried to talk to the mother about the children staying with him overnight on Sundays so that he could take them to school Monday mornings but the mother has refused. He said he would often drop the children to the maternal grandparent’s home as the mother would still be travelling back from Town B. Curiously, the father did not seek any variation to the current orders, in the event the mother does not relocate, to extend his time on alternate weekends to Monday mornings.
The parties agree that the children have very good relationships with both their partners. The father expressed concern in his affidavit as to how Mr J would juggle managing the farm given his father is getting older and does not provide much assistance on the farm. In cross-examination the father said the children have told him they have overheard arguments about this. He expresses concerns about the mother and the children moving away from the extensive supports provided in City C by both sides of the family.
The father expresses concern about the fact that Town B has a population of less than 1,000 people with a median age of 52 and people over 65 making up 32% of the population, in contrast to City C being a regional city with a population of approximately 33,500 people and many recreational and other opportunities for the children.
Town B is 220 kilometres away from City C. The father says it is a two and a half hour drive. The mother says it is a two-hour drive not allowing stops along the way. Nothing turns on this. Clearly the driving time will vary depending on the conditions on the road. Despite the father complaining about the children having to undergo extensive travel if the mother’s proposal is accepted by the Court, both parties propose that the children see the other parent on alternate weekends. The reality is that the children have been travelling between City C and Town B on weekends regularly for the past three years. The evidence is not clear as to whether this has been alternate weekends but it has certainly been frequent. However, I do note that the father says in his affidavit that the children go to Town B every fourth weekend as the mother spends extensive time with her family on her other weekends. The father does say in his affidavit that he believes that the mother will regularly travel back to City C which means the children will be travelling regularly as she has a very close relationship with her parents.
The father says he has always sought additional time during the school holidays but that the mother has refused his requests. He says despite taking three weeks of leave over the summer holidays, the mother only allowed him to have a week with the children and the mother organised for the children to attend during that week. The father was not challenged about this.
The father says that both he and the mother have extensive support networks in City C and the children have extensive friendships and social groups in City C. He says the children ride horses at the maternal grandparents’ farm.
The father is concerned about the children growing up in a small isolated community without the family support that they have in City C and is concerned about the impact the relocation would have on his relationship with the children and with both sets of grandparents.
The children attend a family dinner at the paternal grandparents’ home with the father every Tuesday night. The father says other extended paternal family members regularly attend that dinner including his sister and her husband.
The father’s employment is five minutes away from school and he said his mother volunteers at the school on a weekly basis.
The children attend swimming lessons each Tuesday. The father says that the pool in Town B is only open from November to March and that if the children were to continue swimming lessons year-round they would need to travel an hour to Town K.
The father has also re-partnered and lives with his partner Ms L. The father expressed an understanding for the mother’s position in wanting to be able to live with her partner as he is able to, but is firmly of the view that the relocation would not be in children’s best interests for a number of reasons which primarily relate to the children’s close relationship with both the paternal and maternal extended family members and their education.
It was clear during the course of the hearing that the father had looked into the educational opportunities available in Town B compared to City C, whereas the mother had not gone beyond proposing the children attend the local Catholic primary school.
INVOLVEMENT IN EXTRA CURRICULAR ACTIVITIES
The mother said she takes the children to swimming on Tuesdays. The mother agreed that the children attend the paternal family dinners after swimming each Tuesday and that they would miss out on attending the Tuesday night dinners with the extended paternal family regularly although they could still do so during school holidays.
The mother was challenged about her assertions in her affidavit that the father does not attend sports or teacher interviews. The mother said the father may have come to a sports day but never stayed the full day. She conceded that he attends some assemblies when the children receive awards. She said he only attends sports activities sporadically and does not attend swimming lessons regularly. She would not concede that her affidavit was wrong when it was suggested that the father did not attend any of these things and said in her view it is not wrong because he only attended on an ad hoc basis if the children mentioned something. She would not agree that the father attended more parent teacher interviews than he missed but said maybe he attended a third or a quarter. She said he is not there week in week out.
The father denied the allegation that he does not attend the children’s school activities and says he attends sports days, father’s day at school, the children’s swimming lessons and swimming competitions, skit nights and school assemblies when he is able to. When cross-examined he said he arranges his own parent teacher interviews. This is perfectly sensible considering the reasonable length of time the parties have been separated. He also said he makes sure that he attends assemblies if one of the children are to receive an award. With respect to any criticism of the father not attending all the children’s assemblies, many parents in intact relationships would not have a particular reason for doing so as typically school assemblies occur on a weekly basis.
DECISION-MAKING
There is a dispute between the parties as to whether the father was disinterested in decision-making for the children’s welfare and left all decision making to the mother or whether or not the mother excluded him from those decisions.
The mother says she would make the majority of the decisions during the relationship including making and taking the children to various health appointments, arranging school enrolments and after school activities. She said she attempted to involve him in the decisions but that he had little interest. The mother said she has continued to be responsible for making decisions for the children’s welfare. She says she has tried to include the father in those decisions but that the father often does not acknowledge or respond to her requests.
The father says that the mother tried to control his relationship with the children and would exclude him from decision-making and has continued to do so except when she sought additional financial support. He says he contributes to the costs of the children’s extracurricular activities and is involved in sports and swimming.
The mother confirmed that in her view the father opted out of decision-making for the children and is not interested. She agreed during cross-examination that she had not given any examples in her affidavit material but said that she could. She then conceded that the father enrolled the children in sports one year. She then agreed that it was the father’s decision to send the children to G School as attending a Catholic school was very important to him. Again, she was reluctant to make concessions and reluctantly conceded that the father attended the children’s first day of school.
Both parties seek orders to exercise equal shared parental responsibility.
THE MOTHER’S ORAL EVIDENCE
The mother would not concede that spending less time with the father would be a negative for the children. She said if she is able to move with the children they will see their father on alternative weekends and half school holidays or more. She conceded the children’s time with the father would be configured differently. She says they will continue to share their close relationship with him. She said the children do not mention missing their father. That does not mean that they do not and will not if they see him less often.
The mother would not concede that the children will miss their father if they only see him on alternate weekends and holidays. She said she was not concerned about the family consultant’s recommendations and said he did not give a reason but just said everything should stay the same. The mother was keen to get her points across and tended to speak over counsel.
The father’s Counsel cross-examined the mother about paragraph 50 of her affidavit where she says her relationship with Mr J will likely break down if she is not allowed to move. She said that they will not break up but it will put a strain on their relationship as they will not be able to live the life they want to live and she does not know how long they will be able to manage a long distance relationship. She referred to the little things they will not be able to do not living in the same house.
The mother said that the fall-back position of buying land and building a house somewhere closer to where the children can remain at their school and so the spend time with arrangements can remain in place would take years to achieve.
The mother was cross-examined about the broad statement in her affidavit that her mental health will be negatively affected. The mother conceded when cross-examined that she told the family consultant she has no mental health issues. She is not on any medication and is not seeing a psychiatrist or psychologist. She does not have any evidence about any impact that the denial of the relocation would have on her mental health. I accept that of course the mother would be unhappy and disappointed if she were not permitted to move, but there is no evidence that this will adversely impact on her parenting capacity.
The mother did not agree that the education opportunities are limited in in Town B. She says she chose M School for the children to attend in Town B as it is a Catholic school and she respects the father’s wishes in this regard. She said she has attended the school but has not had a tour and has exchanged emails with the principal but has not met her. She agreed that there are only six students in X’s year. The mother said she has looked at the NAPLAN results and conceded she was aware that it was below the national average but then contradicted herself and said “last time” it was above average. She did know about G School’s scores.
It was apparent during cross-examination of the mother that she has done little research into the educational opportunities for the children, particularly once they reach high school, which in reality is only a little over two years away. The mother said there is a P12 school called Town B College. The mother was not aware of whether there were limited VCE subject choices and had not looked at the school’s NAPLAN scores.
The mother agreed that she and the father had a verbal agreement about the children attending N School in City C. She agreed that it is a very good school and said so were the other two other high schools in the area. She said the children have a choice of high schools but are unable to tour them.
The mother also agreed that prior to the COVID-19 pandemic the children attended swimming lessons all year round. She agreed that the children would need to go to Town K, an hour’s drive away, nine months of the year to keep up their swimming if she moved to Town B.
The mother also agreed that Town B does not have an under 13’s sports team, so X would have to play with children three years above her grade.
THE FAMILY CONSULTANT
The family consultant refers to the paternal grandfather being the children’s swimming coach and being involved with the swimming, however this is inaccurate. The paternal grandparents work at the swimming school but do not coach the children’s swim class. Further, the reference in the family report to X enjoying time with the paternal grandfather on the farm should refer to the maternal grandfather who is a dairy farmer. These errors do not affect the outcome.
The mother told the family consultant that the children’s spend time arrangements progressed positively. She said there were occasionally minor issues with children from time to time but nothing serious and she has no safety concerns with the children in the father’s care.
She said the parents generally communicate via text and generally their communication is positive. Both remain flexible and the children rarely miss out. Again, she expressed a couple of minor issues with the parties having different perceptions about things.
She and Mr J have wanted to live together for about 13 or 14 months. When she told the father during a phone call that she wanted to relocate with the children to Town B, a couple of days later the father responded, objecting to the children moving and saying that she could move and the children could live with him. The mother said after she raised the possibility, the father started to request time with the children during school holidays. She complained that the father’s position remains unyielding and he has not offered any alternate proposals but simply opposes the move. This is the difficulty with relocation cases. There usually is no position of compromise. The mother does not propose that the father move too.
When the family consultant asked the mother if she had considered any alternate arrangements or backup plans she said she and Mr J had talked about purchasing land on the outskirts of City C where they could build a family home. Mr J would continue to live in Town B but it would reduce his commute. She then said that if the Court allowed the relocation she would agree to the children spending every two out of three weekends with the father. She did not think it would be too burdensome on the children and said that most weekends when the children are with her they travel to Town B and this has not caused them any difficulty.
The mother clearly stated to the family consultant that there were no issues of family violence, no history of either party using illicit substances and no concerns about excessive alcohol use.
The mother did complain that the father has introduced his partners to the children too early and that this has occurred six times within a month of the father commencing a relationship, which results in the children meeting a partner and then becoming confused when the relationship breaks up.
The father has been in a relationship with Ms L for the past 15 months. She does not have children and is employed as a professional.
The mother described the current arrangements for the children positively, that the children appear comfortable and in a good routine. The father and the mother are able to be accommodating and flexible. The father has no concerns about the children in the mother’s care and said she is a good mother.
The father described his concerns about the mother’s proposed move firstly with respect to the children’s education. He said Town B is too small. The school only has 50 pupils and there are only six children in year four, being X’s year. In contrast, there are 180 pupils enrolled at the children’s current school. X is in a composite year 4/5 class with 23 children. Both children are doing well at school and are performing above their level.
The father also talked about the close relationship the children enjoy with both extended families in City C. He referred to the Tuesday night extended family dinners with his family. He also said the mother relies heavily on the support of her family. The children see both sets of grandparents each week.
The family consultant asked the father if he had any alternative positions or backup plans. He said he wanted the mother to be happy and had offered to have the children live with him on a full-time basis and she could have the children for the whole of the school holidays. He said his employment is only five minutes away from school and that he has flexible working arrangements and no longer needs to attend building sites. His mother would also be able to assist as she does not work in the afternoons.
The father did not think the proposal of the children spending two out of every three weekends with him was a good one. He expressed concern about the travel for the children. He thinks Town B is too small, remote and isolated and the children will not have their extended maternal and paternal families in Town B. The father would not be able to attend an assembly or the children’s sporting events and be involved with the children during the week.
He also expressed concern about how the children would cope with the move. He said Y is a sensitive child who would find settling into a new community difficult. He expressed concern about X having sleeping difficulties and wanting to come into his bed. He said that she has been secretive lately and not as open with him as she usually is. I note the father complains in his affidavit that the mother has spoken to the children about the move and is critical of this involvement of the children in the dispute. He also raised this with the family consultant and said that the mother has been trying to sell the move to the children and that once the children told him matter-of-factly that they were moving. He also said it would be difficult for the children to participate in sports on weekends. It was all the bits and pieces that caused him to oppose the relocation.
X told the family consultant that she likes her school, making new friends and helping teachers. She said that when she is with her mother they visit the in-home compound farm or visit her maternal grandfather’s farm and she enjoys helping him milk the cows. She said she enjoyed hanging out at her grandfather’s farm. She did not have difficulties going to Town B on the weekends with her mother and said she helps collect grain, play with the dog and the calf and playing with her friend. She rated Town B as 10/10 and said she enjoys playing sports and having a bonfire and playing with her friend.
X rated her home life with the mother as 9/10 and referred to enjoying mowing the lawn, playing with neighbours, riding the motorbike, riding horses and playing. She spoke positively of her relationship with her mother.
X described the things she enjoys doing with her father as learning, going on a rail train, walking the dog, visiting her paternal grandparents and her aunt and uncle, baking and gardening. She rated her time with the father as 8/10. She referred to going swimming on Tuesdays and that her paternal grandparents take her and her brother home and they always have a large family dinner at the paternal grandparents’ home that night. She said her paternal grandparents are fantastic and she feels close to them. She also spoke about her father in positive terms. X did not want to change anything about either of her parents. She also described both parents’ partners in positive terms feeling close to both of them and not wanting to change anything about either of them.
X said that she thought she would feel fine if she changed schools and that she would make new friends. She clearly understood the dispute between the parents as being that the mother wants to relocate and the father is opposed to it. She said she would feel “a little sad” if they did not move to Town B and things stayed the same but that it would not matter too much as she would still see her friends when visiting. She thought her mother would be upset as she wants to move. Her father would be unhappy if they moved as he does not think the school at Town B is very good. X thought she would feel great if they moved because she would have a new town and a new school. She said she and her brother had seen the school at Town B, but that they have not had a tour and she was not sure about the class size.
Y told the family consultant that he was seeing him because his mother wanted to move and his father did not. He enjoys his current school and playing with his friends. He has a best friend at school but did not have a lot of friends. He said he lives with both his parents and explained that he mainly lives with his mother. He described the various activities he enjoys at his mother’s home, including going for walks, playing on the trampoline, riding the bike and scooter and playing with the children. There is nothing that he dislikes about living with his mother.
He described the things he enjoys doing with his father including watching TV, playing with the dog, going on walks and riding his bike. He said both parents play with them equally. He referred to attending the family dinners on Tuesdays. He also identified positive things about both his parents and there was nothing that he wanted to change about either of them.
Y said he would be only sort of happy if he moved to Town B as he would not see his father as much. He thought changing schools would be good as he would make new friends but that his father and paternal grandparents would be sad and he would be sad not visiting his paternal grandparents or Tuesday night dinners. He said he would feel good if the status quo remained but then said he wanted to move to Town B and would feel half good if he moved there and talked about being able to see Mr J more. Y then said he thought that each of his parents would be unhappy if they did not get what they wanted.
The family consultant conducted observations of the children with both parents and their partners. Both observations were positive and suggestive of the children having close, loving relationships with both parents and positive relationships with both their parents’ partners.
It is unsurprising that the parties have experienced an increase in conflict and difficulties communicating since the start of litigation. It would be more surprising if this were not the case. The stakes are high for both parents and as is the case with most relocation cases, there is no easy middle ground.
The family consultant recommended against the relocation, referring to the loss of the weekly family dinners which appeared to be important and meaningful to the children. In addition he referred to the children doing well at their current school and the small school at Town B not being as ideal, with there being more educational options also for high school and extra-curricular activities in City C. He said the children appear to be thriving in their current environment.
The family consultant was concerned about the children’s acute awareness of the dispute between their parents. He did not think the children showed a depth of understanding as to what the change of school would mean and the true impact of the move. He expressed concerns about the children being unduly influenced by their mother and either wanting to find in favour of the mother, wanting her to be happy or having been led to believe that the move will be only positive. It is clear from X’s comments to the family consultant that she is aware of the father’s views about the move as well as the mother’s and the dispute between the parents.
As I raised with the family consultant during his evidence, children are invariably influenced by their parents and this is not necessarily a bad thing. What is harmful is for children to be drawn into the adult issues in the dispute.
Given the comments the children made and the parties’ opposing positions, it may be that the children have been overly involved in the dispute but it would be utterly unrealistic to expect that the children would have no awareness of the mother wanting to move and the father not wanting them to move. This is not a matter that influences the outcome one way or the other.
The family consultant concluded that the move would not be in children’s best interests because of the loss of regular time with their father, including the extended family dinners, and he expressed concern about the burden on the children of the regular travel on alternate or every two out of three weekends. Although, he noted the mother said the children have not expressed any opposition to the travel and she does not see the travel as being difficult for them.
The family consultant acknowledged that the mother’s partner could not easily move because of his commitments. He recommended that the children remain living in the general City C area with the mother not more than 30 minute drive from children’s school and that the current parenting arrangements continue.
Legal Principles
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in s.60CC(3). I will address those which are relevant.
Section 61DA(1) provides that when making a parenting order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make orders that the children spend equal time, and if not equal time then substantial and significant time with each parent.
For a parenting order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
In MRR v GR [2010] 240 CLR 461, the High Court found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an order for equal time. At paragraph 13 of the judgment the High Court said:
Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words in which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each court has the power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subs (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
The High Court also addressed the relationship between section 65DAA(1) and section 61DA(1) at paragraph 15:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court considered the issues of relocation in light of the 2006 reforms in Taylor & Barker (2007) 37 Fam LR 461 and said at paragraphs 53 and 83:
We agree that when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principal has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, as least in so far as that approach is possible (see U v U (2002) 211 CLR 238; (2002) FLC 93-112 and KB & TC (2005) FLC 93-224).
However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an” equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parents.
Whilst the best interests of the child is the paramount consideration it is not the only consideration. In AMS & AIF (1999) 24 Fam LR 756 at 792 His Honour Justice Kirby said:
… …a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.
Parents are not obliged to remain living close together after separation. An individual’s freedom of movement is an important right recognised in the Constitution. His Honour Justice Kirby refers to this in AMS & AIF but also acknowledges that this right gives way to a child’s best interest if the two things conflict.
Application of legal principles to the circumstances of this case
There are no risk concerns in this case. There are no allegations of family violence. Section 60CC(2)(a) prevails. I am satisfied that the children will continue to enjoy the benefit of a meaningful relationship with both parents regardless of which orders I make.
I have referred to the children’s views. X is positive about the move, referring to friends she has already made there and excitement of a new school, whereas Y has said he would be a little sad. I have no doubt that the children would adjust to such an arrangement just as they would adjust to living with their father or spending more time with him. I have also discussed the nature of the children’s relationship with each of their parents and other significant persons, including their paternal and maternal grandparents, the parties’ partners and other extended family members.
One of the disputes between the parties was whether or not the father has failed to participate in decision-making for the children as the mother complains, or whether he has been denied the opportunity to participate in decision-making as the father complains. I have formed the impression that neither complaint is made out. Rather my impression is that they respect each other as parents and the roles they have had, where it was the mother primarily responsible for the children during the relationship and after separation. There is no suggestion that the father lacks confidence in decisions that the mother has made and it is clear to from the mother’s own comments that she has been mindful of what is important to the father, such as a Catholic education.
I have no concerns about either parents’ capacity to provide for the children’s needs including their emotional and intellectual needs and I have no concern about either parents’ attitude towards the responsibility of parenthood.
The presumption that it is in the children’s best interests for their parents to exercise equal shared parental responsibility applies in this case and both parties seek such an order. The current care arrangements which have been in place for some time see the children spend four nights a fortnight plus a dinner with the father and the remainder of the time with the mother. The parties do not dispute that in the event the mother relocates, such an arrangement would not be reasonably practical because of the distance.
As I indicated at the beginning of these Reasons, the case the mother presented at trial is somewhat different to her case outline in that her position at trial was that she would not relocate without the children. The mother’s position is that in essence if she is not permitted to relocate, the current care arrangements should remain in place. Somewhat curiously the father did not agitate for a different shared care arrangement in the event the mother did not relocate despite making reference to it in his material and his position being that if the mother relocated without the children, the children should live with him. One of the things the children currently benefit from is the tradition of the paternal family night dinners on Tuesdays with extended family members.
It is well-established that the mother does not need to establish compelling reasons for wishing to relocate. The Court must also be mindful of the parents’ rights to freedom of movement which should only be restricted if it is in the children’s best interests to do so. I accept that the mother has genuine reasons for seeking to relocate, so that she can benefit from being able to live full-time with her partner and would be financially better off living in an unencumbered home with her partner and not needing to maintain a separate residence. I also accept that it is not feasible for her partner to move to City C. It is also readily understandable that if they are unable to live together but had to continue the current commute this will put a strain on their relationship. Whilst they would be able to look at other options which would reduce the distance, that is not something they could achieve in the short term as it would be necessary to find appropriate land and build on it. I do not accept that the mother would be so unhappy if not permitted to relocate that this would adversely impact on her parenting capacity beyond the understandable disappointment she would feel.
It is also clear that the children have very strong relationships with both parents and extended family members on both sides and both parents are to be given credit for this. This will continue whether or not the mother is permitted to move the children to Town B.
This is a very finally balanced case. If the mother and children were to move, the children would continue to have a close and meaningful relationship with the father and the extended paternal family. However, it would not be optimal and the children would miss out on the regularity of the paternal family gatherings which they attend every week, to only occurring during their time with the father during school holidays. It would also mean that the father would not be able to be involved with the children’s school pickups and drop-offs and other incidental interactions. There would also be other adjustments that the children would need to make, including not being able to participate in the same extracurricular activities with the same frequency which the children would adjust to. However, more significantly the change of school does not simply involve a change from a similar school to another, but to a very small school. The father raises very real and legitimate concerns about the quality of the education on offer in Town B being a very small country town and as I referred to earlier, it is clear that the mother has not given this issue a great deal of thought, particularly looking longer term to the issue of high school.
This is not a case where one factor stands out as being decisive. Rather it is a balancing exercise and a finely balanced one. Having engaged in that exercise I find that it is not in the children’s best interests to relocate to Town B. I will dismiss the mother’s application for the children to relocate. As discussed above, the mother’s position at trial was that she would not relocate to Town B without the children. If the mother changes her mind about this, it being a difficult matter for her, then it would be in the children’s best interests to live with their father and spend alternate weekends and half the school holidays with their mother. That would require the children to make a significant adjustment as they have always lived with their mother the majority of the time.
Currently, the children spend alternate weekends with the father from after school Friday until Sunday afternoon and each Tuesday from after school until before school Wednesday. This enables the father to have some involvement with the children’s day to day activities. From the mother’s further submissions it appears that it is conceded that the father’s time should be extended from the Sunday afternoon to Monday morning. The issue then becomes whether or not the children should return to the mother’s care for one night on the Monday night or remain in the father’s care until Wednesday morning. That increases their fortnightly block of time from three nights to five. On both parties’ cases until recently the father has not had regular week blocks of time with the children in school holidays. However, there is no evidence to suggest that the children have had difficulties adjusting to that. By having the Tuesdays overnight during school terms they already have exercise of being in the father’s care on a school night and a school morning. Extending that block by a further two nights involves less moving back and forth between the households and also gives the mother more flexibility. The mother may for example choose to stay in Town B until Wednesdays during school terms when the children are in the father’s care.
I will order that the father spend time with the children during school terms six nights a fortnight from Friday afternoon until Wednesday morning in week one and from after school Tuesday until before school on Wednesday in week two.
The orders I am going to make do involve change for the children. It increases the father’s time by two nights a fortnight. It is not as significant a change as the relocation would be. The relocation would involve significant adjustments for the children, both in terms of the frequency and types of time spent with their father and paternal family and also a different type of school environment. The children are already familiar with travelling to Town B, the township and people.
I do not propose to restrict the mother to living within a 30 minute or 45 minute drive from the children’s school. The father does not seek such an order. It is clear from the evidence that the mother is mindful of those practicalities and will be when looking at alternate accommodation if that is what she chooses to do.
My impression of the parties’ written and oral evidence is that both parties are focusing on difficulties they have had with the other parent to support their position in the case.
Whilst both Counsel invited me to prefer their client’s evidence, this is a not a case that turns on credit. Whilst the mother did exaggerate the father’s lack of involvement I think this is more due to her interpreting things that support her strong desire to relocate. The father’s criticisms of the mother also clearly arose from his perspective of being opposed to the relocation and concerned about the impact of the relocation on the children and his relationship with them.
I am comfortably satisfied that both parents are genuine in their positions and have good reasons for taking the stance they do. This is what makes relocation cases difficult.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Associate:
Dated: 16 December 2020
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Procedural Fairness
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