E and E - [2002] FMCAfam 38

FEDERAL MAGISTRATES COURT OF AUSTRALIA

E & E

[2002] FMCAfam 38

FAMILY LAW – contact – relocation.

Applicant:

R J E

Respondent:

M B E

File No:

ZC 3338 of 2001

Delivered on:

14 February 2002

Delivered at:

Canberra

Hearing Date:

25 January 2002

Judgment of:

Brewster FM

REPRESENTATION

Counsel for the Applicant:

Ms Rees

Solicitors for the Applicant:

Phelps Reid, Canberra House, 40 Marcus Clarke Street, Canberra ACT 2601

Counsel for the Respondent:

Mr Millar

Solicitors for the Respondent:

Farrar Gesini & Dunn, Level 5, 17-21 University Avenue, Canberra ACT 2601

ORDERS

That the child R R E born 1 September 2000 reside with the mother.
The father have contact as follows:
(a)Commencing 16 February 2002 for a period of five weeks
i.For three consecutive weekends in Canberra from 9.00 am Saturday to 9.00 am Sunday;
ii.For a further two consecutive weekends in Canberra from 9.00 am Saturday to 4.00 pm Sunday;
iii.During this period of five weeks from 12 noon to 2.00 pm each Wednesday;
(b)Thereafter until R attains the age of two years from 9.00 am Saturday to 5.00 pm Sunday and after that time from 5.00pm Friday to 5pm Sunday, each alternate weekend.
(c)After 1 March 2003 for four additional periods during 2003 of four consecutive nights spaced throughout the year as nominated by the father.
(d)Between January and November 2004 for three additional periods spaced throughout the year as nominated by the father, the first of five consecutive nights, the second of six consecutive nights and the third of seven consecutive nights. If R is attending pre school these are to be in holiday periods.
(e)In January 2005 for a period of two weeks and thereafter for one-half of each school holiday period being the first half of holidays that commence in an even-numbered year and the second half of holidays that commence in an odd-numbered year;
(f)Such telephone contact as the parties agree;
(g)Such additional contact as the parties agree.
That the changeover point will be in C at the commencement of contact and N at the conclusion of contact.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

ZC 3338 of 2001

R J E

Applicant

And

M B E

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns contact between the father M B E and the parties’ child R R E. R was born on 1 September 2000 and is therefore aged

17 months.

Background

The father is aged 38 and the mother 31. They commenced living together in 1996 and married on 26 June 1999. They separated on

17 September 2001.
Initially there were difficulties in the father having contact with R. The mother adopted what I consider to be an overly protective attitude towards R and an overly critical attitude towards the father. She underestimated the strength of the relationship between him and R and was not able to appreciate that he had any parenting skills. Contact initially was quite inadequate, being half an hour to one hour, perhaps twice a week at a shopping centre and always in the presence of the mother. The parties attended a counsellor and were fortunately able to work out a more appropriate program. From early November, contact was not supervised by the mother. It started off with periods of thirty minutes to an hour and ended up being contact twice a week, being two hours on Wednesday and three hours on Saturday. This was disrupted by the parties taking holidays over the Christmas/January period and recommenced on Saturday 19 January. At the conclusion of the hearing of this case on 25 January I ordered that pending delivery of this judgment the father should have contact with R from 9.00 am to 5.00 pm each Saturday and from 12 noon until 2.00 pm each Wednesday.
The father proposes that this twice-weekly contact continue. It is not necessary to set out the details of his proposal which involves different regimens of contact for different ages of the child. The mother on the other hand wishes to relocate to B. This would, of course, make twice weekly contact impossible. Her initial proposal in relation to contact showed an inadequate appreciation of the importance of the child having a relationship with her father and an inadequate appreciation of the realities of contact. She proposed that the father visit B for contact. This would have been difficult to achieve in practice and would also have meant that the father saw the child in quite artificial circumstances. There was little prospect that I would have made orders permitting her to relocate to B on this basis. Fortunately however she has now put forward more realistic proposals. She proposes the father have contact each alternate weekend, with the parties sharing the travelling, so that this contact can occur in Canberra.
The mother has connections in the B area. She has an aunt living there and apparently her family used to holiday in that area frequently during her childhood. Her main reason for wishing to relocate now is that her mother, who until recently was living in Canberra, has separated from her husband (the mother’s father) and relocated to B. The mother also says that she wants to relocate to B for economic reasons. She says, and I accept this, that the cost of housing is cheaper in B and she would have better prospects of being able to buy a home in B than in Canberra. She also put forward other reasons in relation to education and employment which I regard as mere rationalisations and in any event there is no evidence to support her contentions in those respects.
The mother also maintains that she would have greater support in B from friends and relations. There is no doubt this is the case in relation to her mother. In relation to friends and other relatives, I do not believe the position is any different in B than it is in Canberra. I believe, however, that her mother does play a significant role in the mother’s life and she would be able to gain a good deal of support from this source.

Discussion

The Family Law Act requires that in making a decision in this case, I am required to regard R’s best interests as the paramount consideration. The backdrop to this is Section 60B of the Act which sets out the principles and objects of the Act insofar as children are concerned. Insofar as those principles and objects are relevant in this case, they provide that children should receive adequate and proper parenting to help them achieve their full potential and that unless it would be contrary to a child’s best interests that children have a right to be known and cared for by both their parents and to have a right of contact on a regular basis with both their parents and with other people significant to their care, welfare and development. Section 68F(2) of the Act sets out the matters that I am to have regard to when assessing what is in R’s best interests and I will deal with each of the matters set out in that subsection in turn.
Given that this case involves a relocation proposal I also bear in mind the guidelines set out by the Full Court of the Family Court in A v A: Relocation Approach (2000) FLC 93-035. I summarise those which apply to this case as follows
(a)The best interests of the child is the paramount consideration but is not the sole consideration. In particular rights of freedom of movement are not to be ignored.
(b)Neither party bears an onus. That is to say neither parent has an onus to establish that a change in current contact arrangements or a continuation of those arrangements will best promote the best interests of the child.
(c)The reasons for a parent wishing to relocate with a child is but one of the matters to be considered and should not be dealt with as a separate issue.
(d)I must identify the competing proposals and evaluate how each proposal will hold advantages and disadvantages for the child’s best interests.
(e)I am to indicate which matters are of greater weight and explain how matters balance out.
I will now consider the matters set out in section 68F(2).
Section 68F(2)(a) concerns the wishes of the child. This is not a factor in this case.
Subsection (b) requires the Court to have regard to the nature of the relationship of the child with each of the child’s parents and with other persons.
I am satisfied that R has a strong and secure attachment to both parents. The evidence is not sufficient to enable me to make a clear finding as to her relation to other persons but I am prepared to assume that she would have a good relationship with her maternal grandmother who will be a significant part of her life if the mother resides in B.
Subsection (c) requires me to have regard to the likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of her parents or any other person with whom she has been living.
R has not been living with any other person who is relevant to her upbringing. It is the separation from her father to which I should have regard.
Dr Bruce Stephens, the Order 30A expert in this case, expressed concerns in the event that the father were not able to have frequent contact with R. His evidence was, in effect, that if the relationship between R and her father were to be optimised, then contact twice weekly at a minimum would be appropriate. Plainly, this will not be possible if the mother relocates to B. This is a very significant factor in this case and I will discuss it later in this judgment.
Subsection (d) requires me to consider the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis. This is a significant factor in this case. It is not a question of expense, but a question of difficulty. It will be impossible, if the mother moves to B, for the father to have twice weekly contact. He is in full-time employment in Canberra with the Australian Sports Commission. In theory, weekly contact is possible. He gave evidence that he would, if the mother left B, travel to B on the non-contact weekend. This is an admirable sentiment and I will discuss the implications later in this judgment, but it imposes considerable inconvenience and expense on the father and whether it would actually occur on a regular basis is very much open to question.
Subsection (e) requires me to consider the capacity of each parent or any other person to provide for the needs of the child, including emotional and intellectual needs.
I believe both parents are quite capable of meeting R’s emotional and intellectual needs. The mother was rather dismissive of the father’s capacity to do this in her affidavit filed at the end of November last year. In my opinion she was wrong in this assessment and, in fairness to her, she concedes this now. I was impressed with the father. I thought that he was very child-focused. He frankly acknowledged the difficulty for the mother if she were not able to relocate to B and I felt he had some sympathy for her position. Whilst it must be very difficult, if not impossible, to separate his own need to see R from R’s need to see him, I believe that his decision to oppose relocation in this case was based on what he perceived as R’s best interests. I have no doubt that he is a caring and committed parent and R is very fortunate to have him as a father.
Subsection (f) requires me to consider the child’s maturity, sex and background and any other characteristics that I think are relevant and deals with matters of aboriginality. This has no application in this case.
Subsection (g) deals with issues of violence. Subsections (i) and (j) address the same issues. These have no relevance in this case.
Subsection (h) requires me to consider the attitude to the child, and the responsibilities of parenthood, demonstrated by each of the child’s parents.
I have been critical of the mother in relation to her attitude towards contact exhibited last year and to her failure at that stage to appreciate the importance of R’s father in her life. She has changed her position in this respect. What causes me some concern in whether this is a genuine change or not.
A responsible parent would appreciate the importance of the other parent in a child’s life and how it is vital for a child to have a good relationship with that other parent. The mother’s initial position in this case failed to appreciate this. Shortly before the commencement of the hearing she filed a Minute of Orders Sought which sought contact when she was in B each alternate weekend. This Minute was silent as to the arrangements for such contact, that is, whether it was to take place in B as her initial proposal required, or whether it permitted contact at the father’s home in Canberra. I asked that the details of this proposal be made clear when the case commenced and Ms Rees who appeared for the mother sought a brief adjournment to obtain instructions. When the Court resumed Ms Rees said the proposal was for alternate weekend contact in Canberra with the hand-over to take place at N.
This left me with some misgivings that the mother’s change in attitude was not of her own making but as a result of advice from her lawyers. I have no doubt that her lawyers would have realised that her initial proposal of contact occurring only in B would have greatly damaged her prospects of succeeding in her application to relocate. However, on balance, I am not prepared to ascribe the mother’s motives to forensic considerations. She says her change of heart in relation to the father came about as a result of a realisation that there was a good relationship between R and her father. She explained that this was a result both of Dr Stephens’ report and also of her own observations. For example, she gave evidence of visiting the father’s home at one stage to deliver some things when the father was not there, and that R cried when they drove away. I am prepared to accept that she now realises the vital importance of a relationship between R and her father. I would be very reluctant to make orders which would permit her to relocate to B if I did not believe that she was committed to playing her part in bringing about contact between R and her father.
I have no concerns in relation to the father’s attitude to R and to the responsibilities of parenthood.
Subsection (k) requires me to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
If I were to make an order that had the effect of preventing the mother relocating to B indefinitely, it is quite possible that further litigation might ensue. The mother might maintain that because of changed circumstances the issue of relocation should be looked at afresh. The likelihood or otherwise of further litigation is dependent on the type of order I make. A blanket order including relocation might well provoke litigation. An order delaying relocation would be unlikely to do so and an order permitting relocation would be most unlikely to be an order leading into further proceedings unless the mother fails to honour her obligations with respect to contact. I will discuss the implications of this later in this judgment.
Subsection (l) requires me to consider any other fact or circumstance which I think is relevant. These matters will be addressed in what follows in this judgment.
This case does not lend itself to a decision being made simply on the basis of an analysis of the matters set out in s 68F(2). It requires a balancing of the benefits to the child if the mother is permitted to relocate to B with benefits to her of her remaining in Canberra.
The detrimental effects of the relocation are obvious. It would inevitably mean less contact between R and her father. As previously indicated, Dr Stephens has recommended that frequent contact is required to optimise a relationship between a child of this age and her father. Such contact would not be possible if R were to live in B. The relocation to B will affect the relationship between R and her father and will have an impact upon her future development. This is greatly to be regretted.
There are a number of advantages for R if the mother is able to relocate. The mother has set her heart on it. She said to Dr Stephens that she will be “devastated” if she is not permitted to relocate. Dr Stephens considered there was a possibility of her suffering a depressive episode if she were forced to remain in Canberra. To a considerable extent his opinion in this respect were dependent on assumptions concerning the mother’s past emotional condition which were not established in evidence, but the father in his affidavit gave evidence as to the mother’s fragile emotional state and I think it entirely possible that she would suffer a depressive episode if she were not able to relocate. It was submitted by Ms Rees, and I accept this to a substantial degree, that the child’s happiness is dependent on the happiness of the parent who cares for her the majority of the time.
The move to B would also benefit the mother, and consequently R, in that the mother would have the support of her mother. I have no doubt there is a close relationship between the mother and her mother. This is an important factor in the case. In addition, of course, R would be able to see more of her grandmother and this would be to her benefit. In saying this, however, I do not in any way suggest that seeing more of her grandmother would be a substitute for seeing less of her father.
Also relevant is the possible resentment the mother might have towards the father if she should be prevented from moving to B. She says that, around the time of separation, the father gave her permission to relocate to B. This issue was not explored at the hearing and I am not prepared to find that the father did give such permission, but even on his version the mother may well have come to believe, and probably did come to believe, that he would not object to her moving. Her resentment at what she perceives as a change of mind is understandable but it is not in R’s best interests that this should be the case
There are also financial aspects of the relocation. The mother was employed in the Public Service in Canberra. She was until recently on leave without pay. She resigned from the Public Service two days before the hearing of this matter. It was suggested that this “burning of the bridges” was a forensic tactic to force the Court’s hand. If it was, it is ineffective but I am not prepared to draw this conclusion. The reason the mother gave was that she wished to obtain a house in B to secure her future. She said that property in B was cheaper than in Canberra and that she had made an offer to purchase a property for $92,5000. It was for this reason she said that she needed to resign from the Public Service in order to obtain her superannuation monies which amount to some $15,000. She said that she had intended to resign from the Public Service in any event, having no intention of returning to work while R was young. In the normal course of events she would have had to return to work in September of this year. There are possible benefits for R in her mother having the stability of owning her own home which might not be possible in Canberra
If the mother were precluded from relocating, she would obtain accommodation in Canberra and her mother would occupy the B home to meet the mortgage payments. She spoke of “obtaining rooms” in Canberra by which I take it she would reside in premises occupied by other people. Given her financial position, this might be her only option.

Conclusion

Insofar as matters of weight are concerned, while I give some weight to the matters set out in paragraphs 33 to 35, they are not matters which I give great weight when I compare them to the benefits of R having an optimum relationship with her father. The matter to which I give the greatest weight in the mother’s case is her happiness, the extent to which that is bound up in the support she can get from her own mother and the impact that denying her the right to relocate would have on her. In taking these matters into account I do not do so out of sympathy for the mother but because of the impact of these matters on R.

This is not an easy case. The pluses and minuses of the mother relocating to B are finely balanced. If she proposed to relocate to an area which would not permit weekend contact on a regular basis I would not have been prepared to accede to her application. However, fortnightly weekend contact is possible if she lives in B. Indeed, dependent on the father’s resolve, contact more frequent than fortnightly could occur. I am concerned as to the mother’s emotional state if she is forced to remain in Canberra. She has her heart set on going to B and I think it likely she would be “devastated” and would possibly suffer a depressive episode if relocation were precluded. I think her emotional stability would be assisted by close contact with her mother. Whilst I am unhappy about letting a situation occur where R does not have frequent contact with her father I believe on balance that the benefits to the child being with a happy parent, in the context of the fact that regular contact will still be possible if the mother relocates, outweigh the benefits to her if the mother remains in Canberra. On balance I find that R’s best interests would be best served if the mother were permitted to relocate to B.
I add that, while the balance is a fine one, I have not had to factor in considerations of freedom of movement to reach my decision.
I have given consideration to delaying this relocation, perhaps until R is two years of age. This would enable the relationship between her and her father to solidify. On balance again, however, I am not satisfied that the benefits of this would outweigh the detriments.
The mother herself recognises that some delay in moving to B is appropriate. She proposes a period of five weeks during which the father would have frequent weekly contact to R. Her proposal is that for three consecutive periods, contact be from 9.00 am Saturday to 9.00 am Sunday with a further two weekends from 9.00 am Saturday to 4.00 pm Sunday. These contact periods would take place in Canberra. Thereafter contact in accordance with her Minute would occur. I propose to make orders in accordance with this proposal but I will include provision for the Wednesday contact until the mother relocates to B.
The mother proposes the handover be at N. The driving time from Canberra to B is in the order of 2½ hours. The distance between Canberra and B is 230 kilometres and the midpoint, insofar as distance is concerned, is C. I estimate the mid-point as far as driving time is concerned to be somewhere between N and C. I propose to order that the collection point at the commencement of contact be at C and delivery at the conclusion to be at N. I propose that from September this year contact commence Friday night and the arrangement for collection at C would fit in better with the father’s work commitments.
As indicated previously, the father has given evidence that if the mother lived in B he would propose to travel to that area in the non-contact weekend to see R. I hope that he is able to do this and to maintain his resolve in this respect. I do not propose, however, to make orders about this because of the uncertainty of how often this will be feasible. I hope the parties will be able to cooperate in this respect. If the father does do as he has indicated I would hope the mother would permit contact for the whole of the weekend on frequent occasions and for substantial periods on other occasions. However if he were to visit every non-contact weekend, it would be too much to expect contact to take place for the whole of that weekend. Conversely, if his visits were only occasional, one would expect that if he wished he would be able to exercise contact for the whole of such weekends. If he were able and is prepared to visit every non-contact weekend, I would envisage a period of contact of six or seven hours on one day on one contact weekend, and overnight on the other with the mother having a whole weekend with R about one weekend in five. Over time I believe that the more conventional arrangement of alternate weekend contact supplemented by holiday contact should be the norm and additional weekends the exception. The frequent contact that Dr Stevens recommends is more applicable to young children. If the father does maintain his resolve and travel frequently to B for this purpose, and if the parties are unable to satisfactorily work out arrangements between themselves I will, if requested, make orders.
Neither party sought orders about Christmas Day. If orders were sought I would, unless there are good reasons to do otherwise, order contact from the 24^th to the 26^th December this year and in 2004. As the orders are framed no order would be necessary for subsequent years. The father sought orders concerning contact on his and R’s birthdays. Such orders are impractical in the terms sought by him while the mother lives in B. If either birthday does not fall on a contact day and if he visits B I would expect the mother to allow him some time with R. I will make orders about this if necessary but hope and expect that this will not be required.
I would expect there to be telephone contact in time between the father and R. I imagine that at this time it is not really practicable for this to occur in any meaningful way. Again I do not propose to make orders in relation to this and trust the parties are able to reach agreement. I will indicate my views in this respect however. Some non-residence parents engage in the practice of telephoning their children each day. I deprecate this practice. I believe it is more related to the needs of the non-residence parent than the needs of the child. In my opinion telephone contact no more than three times a week is appropriate. The length of time of such calls should be reasonable. Again I will if required to make orders about this but I hope and expect this will not be necessary.
Initially overnight weekend contact will for one night. I propose that when R is two years of age it would extend to two nights.
I also propose to make provision for block contact. This will be a graduated process commencing when R is two and a half and ultimately leading to half school holidays from 2005.
Whilst I hope my warning is unnecessary and indeed I believe it probably is, I caution the mother against adopting a negative attitude towards contact. Orders permitting her to relocate to B can just as easily be reversed and orders can be made which would force her to return to Canberra. An unsatisfactory record in relation to contact might justify such orders being made.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Brewster FM

Associate:

Date: