E and R
[2003] FMCAfam 55
•21 February 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| E & R | [2003] FMCAfam 55 |
| FAMILY LAW – CHILDREN – Proposal to remove child interstate – parenting orders – contact order – planned relocation of mother – place of residence of child when one parent wishes to relocate to another state – proposals of parents about residence and contact with child – best interests of child paramount consideration – two children aged 5 and 2 years – mother the primary carer. PRACTICE AND PROCEDURE – Children – parenting orders – proposals of parents – powers or discretion of court not confined to proposals of parents. WORDS AND PHRASES – “Compelling reasons”. Family Law Act 1975 (Cth), ss.60B, 65E, 68F(2) AMS v AIF; AIF v AMS [1999] HCA 26; (1999) 24 Fam LR; FLC 92-852 A v A: Relocation Approach [2000] FamCA 751; (2000) 26 Fam LR 382; FLC 93-035 H v L [2000] FamCA 752; (2000) FLC 93-036 Paskandy v Paskandy (1999) 25 Fam LR 607; FLC 92-878 B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC 92-755 Re Evelyn (1998) 23 Fam LR 53; FLC 92-807 |
| Applicant: | K-A E |
| Respondent: | P R |
| File No: | PAM 3716 of 2002 |
| Delivered on: | 21 February 2003 |
| Delivered at: | Parramatta |
| Hearing Date: | 18 and 19 February 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Battley |
| Solicitor for the Applicant: | Henshaws |
| Counsel for the Respondent: | Ms Langley |
| Solicitor for the Respondent: | Albert A Macri Partners |
ORDERS
The Orders made by consent in the Local Court of New South Wales at Liverpool on 5 April 2002 are discharged.
The Respondent Mother is to be at liberty to relocate to the city of D in the Northern Territory with the children of the parties P K A R born
17 July 1997 and S R born 2 August 2000 on or after 22 March 2003.The mother is to provide details of her address and telephone number in the Northern Territory to the father no later than 3 days prior to her departure.
The said children K A R and S P R are to reside with the mother.
The Applicant Father is to have contact with the said children as follows:
(a)for each of the Northern Territory school holiday periods at the conclusion of the first and third school terms, commencing at 10.00 am on the day after school term concludes and concluding at 10.00 am on the day immediately before the next school term commences;
(b)for the second half of the school holiday period commencing at the conclusion of the second school term in 2003 and alternating each year with the first half of the said school holiday period;
(c)for the second half of the Christmas/January school holiday period commencing in 2003. Not to include Christmas Day, and alternating each year with the first half of the said school holiday period including Christmas Day;
(d)on reasonable occasions in D in the event that the Father is visiting D at times arranged by the parties provided that he gives the mother reasonable notice;
(e)by telephone, email or letter at any reasonable time including the children’s birthdays, the father’s birthdays and Father’s Day in each year; and
(f)at such other times as the parties shall agree.
For the purposes of exercising contact, the father is to collect the children from the mother’s residence at the commencement of contact and return them to the mother’s residence at the conclusion of contact.
In the event that the father is unable to exercise any period of contact prescribed by these Orders he is to give the mother 7 days notice of that inability in which case the parties are to arrange a further period of contact to make up for the contact that has been forgone within two (2) months or such other period of time as the parties shall agree.
In the event that the father is unable to exercise any period of contact prescribed by these Orders (with the exception of contact by telephone, email or letter) for a period of six (6) months by reason of illness, injury or inability to obtain leave from his employment during that period, the mother is to take the children to S on one occasion in any one year for the purpose of the children exercising contact with the father for a period of not less than seven (7) days, for which purpose the father is to arrange reasonable accommodation for the mother and the children at his expense.
The parties are to be equally responsible for all travel costs incurred in exercising contact.
The mother is permitted to telephone the children during all periods of block contact with the father each Tuesday and Thursday between the hours of 6.00 and 6.30 pm (New South Wales time).
The Mother is to give the Father 21 days written notice of her intention to reside with the child in any State or Territory of Australia other than the Northern Territory.
The parties are to notify each other within 6 hours of any illness or injury sustained by the said child requiring either treatment at a hospital or attendance upon a specialist medical practitioner.
The Mother is to authorise the principal of each school attended by the said child to provide to the Father on a regular basis copies of all school reports concerning the said child and copies of all school bulletins and newsletters as are normally provided to parents of children attending the child’s school, such authority to be given by the Mother within seven (7) days of the child commencing to attend the school.
The Mother is to authorise the principal of each school attended by the said child to forward to the Father all necessary information about school photographs of the child on a regular basis and permit the Father to obtain copies of such photographs as he may wish at his own expense.
Each party is to inform the other of any changes to their address or landline telephone number within seven (7) days of such change.
The father is to advise the mother of an address where the children will be residing and a telephone number upon which they can be contacted during any periods of block contact.
All documents produced on subpoena with the exception of exhibits are to be returned.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 3716 of 2002
| K-A E |
Applicant
And
| P R |
Respondent
REASONS FOR JUDGMENT
This is an application by the mother of two children to relocate the residence of those children to D in the Northern Territory. The orders sought in the final hearing differed somewhat from those orders sought in the original Application, which referred to an application to relocate to G in Western Australia.
At the commencement of the hearing, the mother’s counsel, Mr Battley, informed me that the application for relocation was now to be changed from G to D, and that the respondent and his legal advisers were aware of the change. An initial minute of orders was made available, but this was replaced by a slightly amended version on the second day of the hearing.
The Orders sought by the mother are to this effect:
a)that the Orders made by consent in the Local Court of New South Wales at Liverpool on 5th February 2002 should be discharged;
b)that the mother should be permitted to relocate to D with the two children within 28 days;
c)that the father should have contact during the school holidays, including the whole of the school holiday periods at the conclusion of Terms 1 and 3 of the Northern Territory school year, as well as regular and flexible telephone contact;
d)that the mother should have telephone contact with the children whilst they are with the father;
e)that the parties should share the travel expenses equally;
f)that the father should have additional contact with the children if he travels to the Northern Territory for any reason; and
g)that the parties should inform each other of their addresses, landline and mobile telephone numbers.
In the father’s original Response, filed on 31st October 2002, he sought that the mother should be prevented from removing the two children from the S metropolitan area without his consent or leave of the Court, and, in the alternative, that the children should reside with him, with the mother having contact during the school holidays. During the hearing, however, in fact, during the cross-examination of the father on the second day of the evidence, the father made it clear that his primary application was that the children should reside with him.
Background
The father was born on 30th September 1971, so he was 31 years old at the time of the hearing. The mother is 26 years of age, having been born on 10th October 1976. They resided together from August 1996 until April 2001.
There are two children of the relationship, both girls. K A R was born on 17th July 1997. She is aged 5 years and 7 months. Her younger sister, S R, was born on 2nd August 2000. S is, therefore, two years and six months old. The children have resided with the mother since their parents separated, and the father has been exercising contact.
There were proceedings between the parties in the Local Court of NSW at Liverpool, where orders were made by consent on 5th February 2002. Those Orders provide that the children were to reside with the mother and the father was to have contact with K each alternate weekend and S each alternate Sunday (being the same Sunday as the father had contact with K). There were also orders for contact during school holidays and at other times.
The father is a serving member of the Australian Regular Army, and has been in the Army since the parties first met. He is currently posted to the 4th Battalion, Royal Australian Regiment, which is a commando battalion based at H, New South Wales. It forms a part of the Army known as Special Forces.
The father has not re-partnered. The mother has formed a relationship with a man called W B, who is about to be discharged from the Army. It is the mother’s intention that she and Mr B will reside in D, and work with her father in a pest-control business.
Evidence
The mother gave evidence on affidavit and was cross-examined, by Ms Langley, counsel for the father. The mother also called evidence from Mr B and her father, M E. The mother also relied on an affidavit from B M, a friend and neighbour, Ms M was not required for cross-examination.
In his case, the father gave evidence and was cross-examined. The father also relied on affidavits by C L and B N D, but neither of them was required for cross-examination.
A Family Report was prepared by M O’Sullivan, a psychologist and Family Court Mediator. Mr O’Sullivan was cross-examined by both counsel.
The mother’s evidence was that the parties had commenced their relationship in August 1996 and she became pregnant about two months later. The parties resided in Western Australia, where the mother’s family lived.
The father was serving with the Special Air Service Regiment, which is based in Western Australia, and problems arose in the parties’ relationship because the father’s work often required him to be away for weeks at a time, sometimes at short notice. On occasions, the mother did not know where the father was, although at other times she knew that he had been deployed to K or E T.
The mother recounted how K had suffered from health problems as a baby, and this exacerbated her dissatisfaction at the father’s work-related absences. She described how she had separated from the father in 1998, but they reconciled in November of that year.
The mother deposed that she found out in February 1999 that she was pregnant again. She lost the baby in March of that year, whilst the father was away on a course. The mother became pregnant with the parties’ second child, S, in November 1999.
The father was transferred to S in his employment in January 2000, and the parties moved to W G, a suburb of S not far from the H Army base. The mother says that she was unhappy because she was far away from her family.
The mother deposed in her affidavit that the relationship between the parties deteriorated in 2001, and there was an incident between them that led to the police becoming involved.
The father was deployed to E T in April 2001, and the mother told him over the telephone that she was leaving him. The father returned on leave from T in early May and the parties attended counselling, but did not reconcile. The father returned to T, and the mother moved into rented accommodation in June 2001.
The father returned from T on leave in June. The mother had started seeing W B. The father went back to T, and returned to Australia in November 2001. He then spent some weeks in hospital.
The mother says that the father has had contact with the children, but has not been able to exercise all the contact to which he has been entitled under the consent orders made at L Local Court due to work commitments.
The mother has decided that she wishes to leave S and reside in the Northern Territory with W B. Her parents have separated, and her father now lives in D. She has an uncle and aunt living in the Northern Territory, and the uncle offered her father and her a franchise in a pest control business called “K B B”. The original franchise was in G, in Western Australia, but the mother and Mr B were unable to go to G in time to take up that franchise, due to these proceedings. Since then, the uncle has now offered her father and her a franchise in a similar business in D. Mr B has taken leave from the Army pending his discharge, and has obtained a pest control licence in Western Australia.
The mother intends to settle permanently in D. For the time being, she will reside with her father and his new partner, whom she has known since she was 6 years old. She will be working from home, which means that she will be able to look after the younger child S instead of sending her to day care.
In cross-examination, the mother reiterated that there had been times when the father had been required to go away and that she had no idea of where he was or how she could contact him. The Army did have a liaison officer to whom messages could be given, but there was no quick way to communicate with the father on those occasions.
The mother denied that she was happy to leave P when the father was transferred to S in 1999, or that she was happy to go to S. She denied that the father helped her with the children whilst they were in Perth, but agreed that he did assist with them once they had moved to S. She said that she had formed a close relationship with B M, the wife of another soldier in 4 RAR (CDO), the father’s present unit. The mother says that Mrs M is her only friend in S.
It was put to the mother that her relationship with her father and his partner was not as close as she made out, but she denied that, saying that she had just spent four weeks staying with them.
The mother admitted the possibility that a period of up to six months could pass when the father did not have face-to-face contact with the children, but denied that her proposals for contact were to suit her convenience. She said that return airfares cost $780.00 and that she would pay half the airfares.
When asked about the father’s proposal that the children could live with them, thereby allowing her to move to D, the mother said that she would not go to D without the children. She would stay in S, but she would be miserable.
The mother’s father, M E, gave evidence to say that he and his daughter had originally been offered a franchise for pest control enterprise in Western Australia, and they were late offered the Northern Territory franchise. Due to the fact that the mother was unable to move to G in November, they gave up the franchise there and concentrated on D. He has moved permanently to D. W B, the mother’s new partner, has spent some time in D with him setting up the business.
In cross-examination, Mr E said that his relationship with his daughter was a good one, with the exception of a period of about 12 months, when he had moved to the United States. He was enthusiastic about the possibility of his daughter and grandchildren living in D.
The mother’s new partner, W B, gave evidence. Incidentally, the mother was rather coy about admitting that she and Mr B were living together, but Mr B had no such reticence. His evidence was that he had a good relationship with the two children and saw his relationship with the mother as a permanent one. He has sought his discharge from the Army and was keen to set up the business with the mother.
In cross-examination, Mr B confirmed that his discharge became effective on 8th March 2003, which is when his four-year contract expires. When he applied for discharge, he had not considered the possibility that the mother may not be permitted to move to D. If she were not permitted to go, he would still have to go and continue to work there. It was too late for him to inform the Army that he did not wish to be discharged, but he admitted the possibility that he could apply to rejoin. He did not appear enthusiastic about rejoining the Army, and I consider it unlikely that he would do so.
The mother’s other witness, B M, was not required to give oral evidence. Those admissible parts of her affidavit say that she was married to but recently separated from a Lance Corporal in 4 RAR (CDO). She deposed to the fact that she considered the mother to be a devoted and committed mother who finds creative activities for the children. She is currently providing accommodation for the mother and the children in her home until these proceedings are completed.
The father’s evidence did not differ from that of the mother in respect of the details of the dates of their relationship, but did so in a number of different ways. It was his view that, during their previous separation from August to November 1998, the mother strictly controlled his contact with the child K. He deposed that the mother was enthusiastic about moving to S when he received news of his transfer to 4 RAR, saying that she was unhappy about the constant fighting between her parents. The mother denied this, but I note that her parents have now separated and that her father has formed a new relationship.
It was his view that he was closely involved with the children, at least from the time when the mother was pregnant with their second child. He deposed to making arrangements with the Army so that he could be at home as much as possible when the birth of the child was imminent. He provided some detail of the way he looked after the older child K when the mother was occupied with the baby.
His account of the incident between the parties, which resulted in the police becoming involved, is different from that of the mother. He claimed that the mother had acted in an irrational manner and had actually punched him. He was trying to defuse the situation, in his view. He later described another incident on about 18th June 2001, which resulted in an altercation and the intervention of the police. He attributes the blame for this incident to the mother, saying “I did not want to get into an argument with her, but, she seemed as if she were trying to provoke one”.[1]
[1] Father’s affidavit sworn 31 January 2003, page 5, paragraph 19.
It is the father’s evidence that he has had regular contact with the children since February 2002. He says that the child K has expressed a wish to reside with him and complained that she has no friends. Against this, I note that the mother has alleged in her affidavit that the child missed her when she was on contact with the father and, on 21st January 2003, did not want to speak further to her father on the telephone, claiming that he was pressuring her about these proceedings.
The father seeks a residence order. He remains with 4RAR and expects to do so for the foreseeable future. He will remain in Special Forces, but he does not anticipate a transfer back to the SAS Regiment. By remaining in Special Forces, he will not be likely to be posted to D, as would be the case if he were posted to a conventional infantry unit. He may visit D briefly, but there would be few opportunities to spend much time there as part of his duties.
The father has applied for a position within 4 RAR that would place him in an office environment, and would not require him to be deployed overseas. He would work between 9.00 am and 3.00 pm, which would allow him to assume the role of a separated father more effectively. If the children remain living with their mother, he would remain in his present posting, which would be subject to the usual requirements of service life. He told the court that he had been offered the opportunity to join members of his unit who were to go to the Middle East, but he declined that offer.
The father was asked in cross-examination how he could be sure, if he were to have the children living with him, that the Army would not require him to deploy overseas or travel to other parts of Australia. His evidence was that, if his status were changed without his consent, there exist in the Army administrative means for him to challenge that decision.
The father said that he had made the decision as long ago as October 2002, when the mother first approached him about moving away with the children, that he should apply for residence of the children. He considered that he was in a better position financially than the mother was, as he has a permanent job, a guaranteed pension at the end of his service in the Army, and he owns his own home. He would arrange for a housemaid to assist him in caring for the children in the afternoons until he returned from work. That person, and he already has a person in mind, would assist with cleaning, cooking and the general care of the children. He compared that with the mother’s position, with the possibility of the mother having to move again if her business was unsuccessful.
The father did not criticise the mother’s ability as a parent, saying that the children have a close and loving relationship with each of their parents. He described the time he spends with the children as “100% quality time”.
B N D, a long-time friend of the father, gave evidence by affidavit. He was not required for cross-examination. He described an incident in about November 1999 where he had a conversation with the mother about their proposed move to S. He recalled that she said:
“Yes, I’m very excited about going. I’ve never lived outside of Western Australia. I’m looking forward to living in a big city. I’m really happy that P is willing to give up serving with the Special Air Service in Perth for his family commitments. It will be good to have him home on a regular basis and have some normality in our lives.”[2]
[2] Affidavit of B.N. Davies affirmed 5 February 2003.
C E L, whose son lives in the same block of home units as the father, gave evidence by affidavit. In her affidavit, she spoke highly of the way in which the father had looked after his daughters on occasions when she had observed them together. Ms L was not required for cross-examination.
Mr M O’Sullivan, a Court Counsellor, prepared a Family Report for the purposes of these proceedings. For the purpose of preparing the report, Mr O’Sullivan interviewed both parents and had a telephone conversation with Mr B. He had a brief interview with the two children. He also observed the children in the company of the mother and then in the company of the father.
In the Report, Mr O’Sullivan quoted the mother as saying “I am mum first” of her relationship with the children. When the mother spoke of the proceedings concerning the proposed relocation, she said “I would not go without the children and would stay here and be miserable.”[3]
[3] Family Report page 9, paragraph 15.
The father told the counsellor that he believed that it was in the children’s best interests to remain in his care, and that they were his priority. He did not want the children’s relationship with their father to suffer because their mother wished to move away, and contrasted the stability of the children’s lives before the separation with the instability which would result, in his view, if the children relocated away.
The counsellor’s telephone conversation with Mr B did not throw any fresh light on the matters. Basically, Mr B confirmed factual details and told the counsellor that had an “excellent” relationship with the two children. Mr O’Sullivan did not have the opportunity to have a face-to-face interview with Mr B, or to observe him with the children.
The counsellor observed the children in the presence of each of their parents. The children appeared to relate well to both parents. He described the interaction of the children with their mother as “relaxed and familiar”[4] and he said of the children with their father “Both K and S appeared very relaxed and enthusiastic in the interaction and were affectionate with their father”.[5]
[4] Ibid, page 11 paragraph 24
[5] ibid, page 12 paragraph 25.
It is hardly surprising, noting the counsellor’s observations, that the child K spoke positively of both parents and said that she was happy with either one. The child S did not join in any of the verbal responses, but I note that she is only two and a half years old.
The counsellor recommended that the children continue to reside with the mother and that they have regular contact with the father. He said that the mother “has been the primary carer of K and S and the children are strongly attached to their mother. Ms E wants to continue to have the full time care of the children and the children would benefit from stable and continued care.”[6]
[6] Ibid, page 14 paragraph 32
The counsellor cast doubt on the “role strain” between the father’s career ambitions and obligations on the one hand and the responsibilities of being a father. The father was asked about this, and made it quite clear that the children were his first priority. The father took issue with the counsellor’s comment (in paragraph 30) that he had expressed a wish to deploy overseas with his unit. He said that he valued his role as a father and was clear that he was putting the children before his career in the Army.
Mr O’Sullivan was cross-examined about the Family Report. When he prepared the Report, Mr O’Sullivan was still under the impression that the mother proposed to move to Western Australia, rather than to D, and he prepared his report accordingly. Mr O’Sullivan stated in cross-examination that it was still his recommendation that the children should reside with their mother and that the father should have regular contact in S or D.
One issue that arose was the fact that the father would not always be able to take leave from his employment to coincide with school holidays, leading to the possibility that the children might not have face-to-face contact with the father for six or even eight months. Ms Langley asked Mr O’Sullivan if this would be detrimental to the children. His reply was that it would have more effect on the younger child, S.
Principles to be applied
The principles which apply to matters of this nature are well settled, and recent decisions have not altered the attitude that the Court should take in any significant way. Section 60B of the Family Law Act sets out the overall objects in relation to parenting orders. The object of Part VII of the Act is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Subsection 60B(2) sets out the principles underlying the object of part VII, which are, except when contrary to the child’s best interests:
“(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married, or have never lived together; and
(b)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children.”
In this matter, as in any matter where the Court is required to make parenting orders, the Court “must regard the best interests of the child as the paramount consideration” (s. 65E). Section 68F sets out the matters which the Court must consider in order to decide what the child’s best interests are.
The High Court of Australia has considered the relocation question in AMS v AIF; AIF v AMS (1999) 24 Fam LR 756; FLC 92-852. It is an error for a court to require the party who wishes to relocate with the child to demonstrate “compelling reasons” to justify the proposed relocation. The welfare of the child is the paramount, but not the only, consideration. At the same time, it is equally an error for a court to require the other party to provide compelling reasons, or at least a preponderance of reasons, for not permitting the party who wishes to relocate to do so (SMG v RAM (2000) FLC 93-020).
The Full Court of the Family Court has more recently considered the issue in A v A: Relocation Approach [2000] FamCA 751; (2000) 26 Fam LR 382; FLC 93-035, where the court considered the earlier decisions of Paskandy v Paskandy (1999) 25 Fam LR 607; FLC 92-878 and Martin v Matruglio (1999) 25 Fam LR 510; FLC 92-876. The principles to be applied are, in summary:
a)the best interests of the child are the paramount, but not the only consideration;
b)a court cannot require the parent who wishes to relocate with the child to demonstrate “compelling reasons” for the relocation;
c)the court has to evaluate each of the proposals advanced by the parties;
d)relocation cannot be separated from the issue of residence and the best interests of the child;
e)the evaluation of the competing proposals must weigh the advantages and disadvantages of each proposal for the best interests of the child; and
f)the court must consider the relevant s. 68F(2) matters in respect of each proposal.
It is no longer the case that the court should consider whether the reasons to relocate are genuine, whether they are optional or whether they are seen as important or essential for the orderly life of the parent, as was previously held in B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC 92-755 (at paragraph 9.63). It is still a consideration, however, that in evaluating the competing proposals, the may consider evidence that the proposed relocation would be of benefit to the child as much as to the parent, whilst the inability of a party to move may impose significant pressures upon that parent:
“A very important aspect of a child’s best interests is to live in a happy family environment…Ordinary common experience indicates that long-term unhappiness by a residence parent is likely to impinge in a negative way upon the happiness and therefore the best interests of children who are part of that household” (at page 84,222).
The High Court of Australia again considered the question of relocation in U v U [2002] HCA 36; (2002) 29 Fam LR 74, where a mother wished to leave Australia with the child to return to her country of origin. The Court is obliged to give careful consideration to the proposed arrangements of the parties, but is not bound by those proposals. The court has to look at the matters set out in s.68F. The objective is always to achieve the child’s best interests.
The competing proposals in the light of section 68F(2)
I am required to give consideration to the relevant s.68F (2) factors as they apply to the parties’ proposals. First of all, I should set out what the competing proposals are.
The mother’s proposal is to move to D and reside there with the children. The father would have contact with the children during the school holidays in S and, if he were to visit D, at other times in D.
I accept the father’s evidence that he is unlikely to be posted to D or be required to make any temporary visit to D in the course of his employment.
The father has two proposals. His preferred option is for the children to reside with him, which would allow the mother to move to D, or anywhere else in Australia. The mother would then have contact with the children during the New South Wales school holidays. The mother has consistently stated that she would not agree to this course of action, and if she were not permitted to take the children with her to D, she would not go.
The father’s alternative proposal (and not his preferred option) is the “no change” scenario, where the Mother is not permitted to relocate the children to D but remains living in S. This scenario would see the existing contact arrangements remain, at least in a way that it not too far removed from those which presently obtain. The mother has indicated that she would remain living with the children in S, although Mr B has stated that in his evidence that he would still take up residence in the Northern Territory.
The Court is not bound to consider only the proposals put by the parties, but may consider other arrangements for the best interests of the children (U v U (supra)). In this case, there does not appear to be any other realistic proposal for consideration, as neither party has even contemplated an arrangement where one child would live with each parent, nor is there any evidence before me that would justify such an arrangement. Accordingly, I am left with the mother’s proposal and the father’s primary and alternative proposals to evaluate. These proposals must be considered in the light of the matters in s.68F(2).
Section 68F (2)(a) – any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding)
The children are aged five years and seven months and two and a half. The younger child, S, is too young for her wishes to be given any weight. The older child, K, is not yet six, and her wishes, whilst not irrelevant, would not be given the same weight as those of an older and more mature child. K is happy with both parents, and would like to be with both of them. This is a constant across all three proposals.
Section 68F(2)(b) – the relationship of the child with each parent and with other persons
I am satisfied that these children have a strong, loving relationship with both parents. This factor is a constant across each of the three proposals under consideration. There is evidence that the children have a good relationship with Mr B, but the Court Counsellor did not have the opportunity to observe the children with him. If the children relocate to D, this is an important consideration, but it is of considerably less importance in either of the father’s two proposals.
Section 68F(2)(c) – the likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either parent
There are negative aspects to each of the parties’ proposals. If the mother moves to D, the children would have less contact with their father. This would cause the children some unhappiness, as they have a good relationship with him. A separation of six months or more would have a particular effect on the younger child S.
If the children were to reside with their father, they would have considerably less contact with their mother, which would also be a cause of unhappiness to them. It is only the third proposal, requiring the mother to remain in S, that would have little impact on the children as far as separation is concerned.
Section 68F(2)(d) – the practical difficulty and expense of a child having contact with a parent
Both the mother’s proposal and the father’s primary proposal would have similar effect, as in each case one parent would be a long way away from the children. Airfares are $780.00 return, and the children are too young to travel by air without the company of an adult. The father’s alternative proposal is a “no change” option, so no difficulty should arise there.
Section 68F(2)(e) – the capacity of each parent to provide for the needs of the child
I am satisfied that each parent has the ability to meet the children’s physical, emotional and intellectual needs. They present as loving, caring parents, although the mother has more experience of being the primary carer for the children.
Section 68f(2)(f) – the children’s maturity, sex and background
The children are little girls, both under the age of six years. There is no principle that young female children should preferably be in the care of their mother rather than their father (Raby (1976 2 Fam LR 1,348; FLC 90-104; Re Evelyn (1998) 23 Fam LR 53; FLC 92-807). This factor is a constant across all proposals.
Section 68F(2)(g),(j)(etc) – the need to protect the child from physical or psychological harm, family violence etc.
There are allegations on both sides of family violence whilst the parties were together. This situation does not apply now, nor are there any current family violence orders. As the parties are separated, these factors are not relevant to any of the parties’ proposals.
Section 68F (2)(h) – attitudes to parenting
Despite their differences, the father and mother appear to have positive attitudes to parenting. The mother presents as a committed parent and says that she would not take steps to deny the father contact with the children, although this is in the context of wishing to take the children out of the State. The mother accuses the father of having been uninterested in the past.
The father has accused the mother of being controlling about contact in the past, even to the point of restricting contact. He says that he is now committed to putting the children’s interests first, ahead of the demands of his career.
Section 68F(2)(k) – the Order least likely to lead to further proceedings
It is often difficult for a Court to predict the Orders that would be least likely to lead to further proceedings. In this case, there is a need to preserve a positive relationship between the children and both parents, which means that, even if the father’s residence application is unsuccessful, the children should see their father regularly. It should also be clear to the parties that, even if the mother’s application is successful, she will not be given carte blanche to relocate the children around Australia at will.
There are no other facts or circumstances that I consider to be relevant.
Conclusions
I have considered all the evidence. The mother has been the children’s primary carer all their lives, and she wishes to remain in that role. The priority she places on that commitment is demonstrated by her consistent rejection of the father’s primary proposal, that would allow her to relocate herself to D whilst leaving the children in S with their father. If she cannot take the children, she will not go. This action would clearly have some effect on her relationship with Mr B, even if only in the short run, because he has made it clear that he will be moving to D commence in the pest-control business.
The father’s proposal for the children to reside with him carries with it the disadvantage that he would still be required to work in his employment and he would need a housemaid to assist him with the care of the children. If the mother will not move to D without the children, where is the need to change the children’s residence to the father? As the mother has been the children’s primary carer all their lives, and there is no real criticism of any substance about her parenting ability or motivation, I do not see any reason for the children not to continue in her care. This means that the father’s application for the children to reside with him will not be granted.
Having established that the children should remain living with the mother, there are advantages and disadvantages in the proposals for her to either relocate with the children to D or remain living in S. If she moves to D, she anticipates being able to work from home and thereby be available to care for the children full-time. She will be in a relationship with Mr B, and she will have the company of her father, her uncle and aunt, and a cousin. In short, the children will have some extended family around them, which is not the case in S. The question of the father’s contact with the children is the important issue.
The mother has said that if she remains in S, she will be miserable. She has no family in S, she appears to have no other friends apart from B M, and Mr B will be in D, at least for the time being. It is clear that it is not to the children’s benefit for their primary carer to reside in a state of constant unhappiness.
I am of the view that it is in the best interests of the children for them to live with their mother, and for her to be permitted to relocate them to D. There must be regular contact with the father, which will involve air travel. I accept the father’s evidence that he is unlikely to be able to travel to D in the course of his employment.
I am particularly concerned that it would not be in the children’s best interest for them to go for months at a time without seeing their father; this is of particular importance for young S. Accordingly, I propose to require the mother to take steps to reduce the effect of this situation, by requiring her to bring the children to S on one occasion each year if the father is not able to take leave from his employment for six months or more. The father will have to arrange accommodation for the mother and the children, and I would not see it as appropriate for him to require the mother to share accommodation with him for that period of time. This arrangement, however, is intended to ensure that the father would be able to spend time with the children on a weekend and after work, even if he could not get leave. The evidence from the counsellor confirms the strong relationship between the father and the children, which should be encouraged.
I also propose to order that the mother must give the father 21 days’ written notice of her intention to move out of the Northern Territory. The father has expressed concern that the mother’s business might fail, and she may well be tempted to relocate elsewhere.
It is for these reasons that I propose to make the Orders in the attached schedule.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 28 February 2003
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