F and F
[2007] FMCAfam 831
•24 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| F & F | [2007] FMCAfam 831 |
| FAMILY LAW – Parenting – relocation – equal shared parental responsibility – estrangement between parent and child – meaningful parent/child relationship. |
| Family Law Act 1975, ss.4, 60B (1) & (2), 60CA, 60CC (2), (3), (3)(a) & (4), 60CA, 60CD (1), 65AA (1), (2) & (5), 65DAA, 65DAC, 94AAA(3) Family Law Amendment (Shared Parental Responsibility) Bill 2005 Australian Journal of Family Law Family Law Council’s Report to the Attorney-General, Relocation, May 2006 Family Law Amendment (Shared Parental Responsibility) Act 2006 Commonwealth Parliamentary Debates, (Senate) (27th March 2006) p.78 (Senator Santoro) |
| A v A: Relocation Approach (2000) FLC 93-035 AMS v AIF (1999) 199 CLR 160 B and B (NA27 of 2006) [1] Bolitho and Cohen (2005) FLC 93-224 Christie v Christie (2007) 37 Fam LR 126 D and SV (2003) FLC 93-137 Gillick v West Norfolk AHA [1986] AC 112 Godfrey & Sanders [2007] FamCA 102 Goode v Goode (2007) 36 Fam LR 422 Gordon v Goertz (1996) 134 DLR (4th) 321 H and H (EA 73 of 2004) [2005] FamCA 805 H and L (2000) FLC 93-036 M v S (2007) 37 Fam LR 32 Martin and Matruglio, (1999) FLC 92-876 Morgan & Miles [2007] FamCA (17th October 2007) Paskandy and Paskandy (1999) FLC 92-878 Payne v Payne [2001] Fam 473 Powell and Ptolemy (2005) FLC 93-239 Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 Taylor & Barker [2007] FamCA (19th October 2007) U v U (2002) 211 CLR 238 W v R (2006) 35 Fam LR 608 Walls & Robinson (2006) FLC 93-251 |
| Applicant: | ALF |
| Respondent: | SPF |
| File Number: | CAM 2336 of 2000 |
| Judgment of: | Neville FM |
| Hearing dates: | 16 & 17 August 2007 |
| Date of Last Submission: | 17 August 2007 |
| Delivered at: | Canberra |
| Delivered on: | 24 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Godtschalk |
| Solicitors for the Applicant: | Legal Aid Office ACT |
| Solicitors for the Respondent: | Mr F in person |
ORDERS
All previous Orders are discharged.
That Ms F be permitted to relocate with the children MCF born October 1991 and DPF born May 1995 to G, NSW.
Both parents of M and D have equal shared parental responsibility for their children.
Mr F be provided with all relevant school reports from M’s and D’s new school in G.
The children, M and D, shall continue to live with their Mother, Ms F.
Subject always to further and or alternative agreement between the parties, Mr F shall spend time with D as follows:
(i)Each alternate weekend from Friday afternoon until Monday or Tuesday morning if a long weekend;
(ii)For one half of the school holiday periods occurring at the end of the first and third school terms;
(iii)For the entire school holiday period occurring at the end of the second term;
(iv)For a period of three weeks each summer school holidays being the first 3 weeks in odd-numbered years, and being the last 3 weeks in even-numbered years;
(v)In even-numbered years, from 3pm Christmas Day until 10am Boxing Day, unless the Mother is away from G with D;
(vi)In odd-numbered years, from 3pm on Christmas Day until 10am Boxing Day with Ms F, unless Mr F is away from C with D.
Mr F shall communicate with D at any reasonable time, and by any reasonable means, including email and other information/ communication technology.
For the purposes of hand-over, the parents shall agree upon a suitable point, approximately mid-way between C and G.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAM 2336 of 2007
| ALF |
Applicant
And
| SPF |
Respondent
REASONS FOR JUDGMENT
The principal legal issue for determination in these proceedings concerns the Mother’s application to re-locate to G from the Australian Capital Territory. A number of other orders are sought. They are, in substance, consequential on, or perhaps more accurately, inextricably linked with, the resolution of the primary issue. Clearly the most significant consequence of the relocation would be its potential effect on the relationship, and the time spent, between the youngest child D and his Father. While that may, in terms of time, be a diminution, there may also be a potential, positive impact on the currently fraught relationship between Mr F and his older teenage daughter, M. As Warnick J commented recently:
In most cases about parenting orders under the Family Law Act there is no conceptual difficulty in the court applying the principle that the best interests of the child are [sic] the paramount consideration. However, that is not so when deciding upon orders in what have become known as “relocation cases.” That is because, when in relocation cases regard is also had to another consideration, namely the right to freedom of movement of a parent, a delicate interplay of concepts arises. That is on the most favourable view of it. On another view, that to which I incline, the result is an imbroglio of principles.[1]
Respectfully, I agree with his Honour. A relocation can, and usually does, involve some degree of dislocation given the competing interests involved.
[1] B and B (NA27 of 2006) [1]. Cf.AMS v AIF (1999) 199 CLR 160 at p.207 [142], Kirby J said: “…the facts of each case are unique. Those facts call forth a “careful and delicate analysis.”” (Internal references have been omitted.) In the same case, Hayne J commented aptly:
There are two children to the marriage: M (born October 1991) and D (born May 1995). M is currently in year 10 at C C High School, which is situated in the southern C suburb of C. D is currently in year 6 at G Primary School. Since orders made by Federal Magistrate Brewster on 27th February 2001, the children have lived with their Mother, Ms F. Subject to further detail below, since 2001 the children have spent time with their Father. Following a confrontation with her Father in late February 2006, M has refused to spend any time with Mr F. Among a number of concessions offered or made in the course of the hearing by Ms F, through her Counsel (Ms Godtschalk), it was agreed that (a) there would be equal shared parental responsibility for both children[2] and (b) that all school reports and similar records in relation to M will be provided to Mr F as well as Ms F.[3]
[2] See Transcript of Evidence, (16th August, 2007) pp.60-61.
[3] Mr F conceded that an order providing that both he and Ms F receive school records/reports would resolve the contest between the parties on the issue of access to such records. See Transcript of Evidence, (16th August, 2007) pp.42-43.
The parents married in 1991, and separated in 1999. Ms F, who is the children’s primary carer and with whom they reside, describes her occupation as “home duties.” She has been in a relationship with Mr M since February 2004. Mr M is a trucking contractor who works out of G. He has a house in C. Ms F and Mr M plan to marry; they were engaged in February 2005. Mr F is a public servant who works in C and also resides in one of its southern suburbs.
Proposals of the parties
Ms F proposes that she be permitted to move to G. G is approximately a one hour drive north of C.[4] Obviously, it is a somewhat longer drive from the south of C where Mr F lives; he claims that the drive is one hour and twenty-one minutes from his residence.[5] Ms F also seeks orders in relation to the time spent between D and his Father that properly take into account the physical distance that would separate the parties pursuant to a relocation order in her favour.
[4] In D and SV (2003) FLC ¶93-137, the Full Court of the Family Court (Nicholson CJ, Kay and Monteith JJ) observed, without deciding [37-39], that where “the move is over a relatively short distance such as this one [approximately 115 kms], we would caution against the making of orders that restrict the residence parent’s freedom of movement. The inquiry should be directed more at alternative contact or shared residence arrangements.” And further, that the “amount of emphasis to be given to one or other of the competing matters in a relocation case will change depending on the degree of relocation involved and the degree of interference with the existing arrangements.” An even more recent decision of the Full Court involving a short move, similar in distance to the current proceedings, is Powell and Ptolemy (2005) FLC ¶93-239, where the Court (Finn, May and Boland JJ) quoted favourably the decision in D and SV but not on this discrete observation regarding relocations of a relatively short distance and relatively easy travel time. In the current proceedings, the Court was referred to the decisions of AMS v AIF, A v A, and M v S as the judicial lodestars. In Powell v Ptolemy the distance between the respective residences of the parents was 100 km. Most recently, Justice Boland, sitting in her capacity as a single appellate judge of the Family Court pursuant to s.94AAA(3) of the Family Law Act, dismissed an appeal (on a range of grounds) that factually concerned a relocation involving a distance of 144 kms: Morgan & Miles [2007] Fam CA (17th October 2007), while in the most recent Full Court decision, delivered on 19th October 2007, the Court (Bryant CJ & Finn J, Faulks DCJ dissenting) dismissed an appeal against a decision of his Honour, Federal Magistrate Brewster, who allowed a relocation from C to North Queensland: Taylor & Barker [2007] Fam CA.
[5] Among other places, see Transcript of Evidence (16th August, 2007) p.21 & Family Consultant Report, par.8. Standard maps list the distance between C and G as 86 kilometres. In the course of cross-examination by Mr F, Ms Willetts commented: “Q: My only point is that you would agree that that is not a trivial time [travel time between C and G], is my point, would you agree, a journey time by that? A: [Ms Willetts] My thoughts about that, your Honour, is that I think that people in large capital cities travel that sort of time to get to work and back. I mean I think that as far as I know when I worked in Sydney, people didn’t bring relocation cases to Court when they were moving from say Manly to Cronulla. And I think that sort of time span is significant but not so significant that it can’t be made in a day and still have adequate time to spend with children as well or to attend certain events.” Transcript of Evidence, (16th August, 2007) p.21.
For his part, Mr F proposes to have the orders made by FM Brewster in February 2001 (when the children were 10 and 4 years of age) remain in force, and that his children continue to reside in the ACT unless otherwise mutually agreed in writing by both parents. Plainly and understandably, Mr F is concerned that a relocation of his former wife to G with the children will impact detrimentally on his relationship with them. He also asserts that to make the orders sought by Ms F, and that a ‘reduction of the time shared between M, D and myself, by way of orders’ “would be contrary to the intentions of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 and the Family Law Act as amended.”[6]
[6] Mr F’s “Outline of Submissions,” point 7. I have already mentioned, and as will be seen from evidence cited later in these reasons, part of this submission is at least factually incorrect. The legal flaws will be commented on later. While Mr F observes that there are “some present difficulties with M,” the “present difficulties” have actually been on-going for quite some time, during which M has made it plain that she does not wish to have any relationship with her Father. She has spent no time with Mr F for approximately 18 months.
Before dealing with the evidence, including that of the Family Consultant, Ms Willetts, I set out next the relevant legal principles that govern the Court’s approach to the issues for determination in these proceedings.
Legal principles
There is a growing body of judicial authority that provides the relevant legal principles to be applied in relocation cases, and the issues that regularly arise concomitantly in them, such as parenting orders.[7] Drawing from the authorities listed, those principles may be summarised as follows:[8]
a)In the absence of legislative direction, no single factor is dispositive of decisions governing residence of a child in a context of the proposed relocation of the parent with whom the child resides. (AMS v AIF, Kirby J, [143]; A v A, [91]; cf. Powell v Ptolemy, [48]).
b)The over-arching issue is to ensure that any parenting order is in the best interests of the child. (AMS v AIF, Kirby J, [144]; U v U, Gummow & Callinan JJ, [80],[9] Hayne J, [171]; Bolitho v Cohen, [71]; Powell v Ptolemy, [40]). This is also to say that if there is a conflict between the welfare or best interests of the child, on the one hand, and the legitimate interests and desires of the parents, on the other, priority must be given to the best interests of the child. (AMS v AIF, Kirby J, [144]; Hayne J, [217-219]; A v A, [67] cf. Goode v Goode, [72]).
c)Freedom of movement of parents is a significant priority. That freedom is linked with the object of family law legislation to facilitate parties to a broken relationship to start a new life for themselves, including the possibility of forming a new relationship “free from unnecessary interference from a former spouse or partner or from a court.” (AMS v AIF, Kirby J, [145]. On “freedom of movement” generally, see AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [40-45]; Gaudron J, [96]; U v U, Gummow & Callinan JJ, [89]; cf. Powell v Ptolemy, [36]). Inhibition of movement may impinge upon the happiness of the custodial parent, which may in turn be transmitted to the child. (AMS v AIF, Kirby J, [145]).[10] Freedom of movement, however, takes second place to the paramount interests of the child.
d)There is no presumption in favour of a custodial parent to reside wherever he or she wishes. (AMS v AIF, Kirby J, [146]).
e)The applicant who seeks to relocate need not establish “compelling reasons” for such a move. (AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [47]; Gaudron J, [92]; Kirby J, [191] & [195]; Hayne J, [209]; A v A, par.85; U v U, Gummow & Callinan JJ, [82]). Nor does either party bear an onus to establish whether to relocate is, or is not, in a child’s best interests. (A v A, [96]).
f)Transport and modern means of telecommunication may be relevant factors in making proper arrangements (“new and different facilities of access and contact … with the other parent”) as between a child and his or her non-resident parent, especially in relation to relocation within Australia. (AMS v AIF, Kirby J, [147], [148 & 192]; Paskandy v Paskandy, [57]; A v A, [103 & 104] cf. M v S and “virtual visitation”[93]).
g)In determining a relocation case that involves changed parenting arrangements, a court must evaluate each of the proposals advanced by the parties, without necessarily being bound by them. (A v A, [65]; U v U, Gummow & Callinan JJ, [70 & 89]; Hayne J, [171 & 172]; Bolitho v Cohen, [83-85]). Put another way, without embarking upon “some roving inquiry”, and subject to the evidence led – and affording procedural fairness to all – a court will not necessarily be constrained solely by the proposals of the parties in determining what is in the best interests of the child. (U v U, Hayne J, [172]; Bolitho v Cohen, [84]; Powell v Ptolemy, [40]).
[7] Chronologically, relevant appellate authorities include: AMS v AIF, AIF v AMS (1999) 199 CLR 160; Martin and Matruglio, (1999) FLC ¶92-876; Paskandy and Paskandy (1999) FLC ¶92-878; A v A: Relocation Approach (2000) FLC ¶93-035; H and L (2000) FLC ¶93-036; U v U (2002) 211 CLR 238; D and SV (2003) FLC ¶93-137; Powell and Ptolemy (2005) FLC ¶93-239; Bolitho and Cohen (2005) FLC ¶93-224; H and H (EA 73 of 2004) [2005] FamCA 805; Goode v Goode (2006) 36 Fam LR 422; Godfrey & Sanders [2007] FamCA 102 (Kay J); Morgan & Miles [2007] Fam CA (17th October 2007 (17th October 2007) (Boland J); Taylor & Barker [2007] Fam CA (19th October 2007) (Bryant CJ & Finn J, Faulks DCJ dissenting). Among judgments at first instance in relocation matters, see W v R (2006) 35 Fam LR 608 (Carmody J); Walls & Robinson (2006) FLC ¶93-251 (Carmody J: international relocation); M v S (2007) 37 Fam LR 32 (Dessau J). Helpful extra-judicial comment on relevant matters (e.g. `the best interests of the child’), is provided by P. Parkinson, “Decision-making about the best interests of the child: The impact of the two tiers,” (2006) 20 Australian Journal of Family Law 179; Dr T Altobelli, FM, “The search for wisdom: relocation in the era of shared parental responsibility,” (Paper presented to the 10th Australian Family Lawyers Conference: 8-13 June 2007). See also the Family Law Council’s Report to the Attorney-General, Relocation, May 2006 and the Government’s response, dated 7th August 2007. Overseas authority of less proximate relevance but which discusses similar principles, include Gordon v Goertz (1996) 134 DLR (4th) 321 & Payne v Payne [2001] Fam 473. I should note also the caution expressed by Dr Altobelli FM in Christie v Christie (2007) 37 Fam LR 126 where he questioned [51]: “The changes that came into effect on 1 July 2006 are substantial. It is possible that the cases referred to above [AMS v AIF, A v A, U v U] are still useful but no longer determinative of how relocation cases are to be decided.” His Honour wondered further [57] whether, in the light of the operation of s.65DAA, as he considered it, and in the light of the relevant evidence, “…then it is hard to imagine how relocation could be allowed.” Respectfully, an interpretation of s.65DAA that would, as a matter of course, in all cases and in all situations, thwart applications for relocation cannot, in my view, have been the legislative object and intent of the section. Moreover, in Goode v Goode, albeit a case involving interim parenting orders, the Full Court of the Family Court nonetheless expressly followed U v U. As well, the persuasive authority of M v S and Sanders & Godfrey [respectfully] palliates, it seems to me, if not resolves the concerns expressed by Dr Altobelli FM.
[8] Generally, it may be said that the decision in A and A in effect re-states and slightly refines the principles outlined by Kirby J in AMS. Those two decisions were re-visited and encapsulated in the High Court judgment in U v U, which in turn is summarised, refined and applied by the Full Court of the Family Court in Bolitho v Cohen. My summary is a distillation of the principles set out primarily in these cases. In particular, I note that in Bolitho v Cohen the Full Court said [71]: “In U v U the High Court reaffirmed that the “overarching issue” is to ensure that any parenting order is in the best interests of the particular child,” and further [72] that the High Court in U v U “has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals … including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.” The most recent appellate authority of the Family Court in relation to the principles to be applied in “relocation” cases – Morgan & Miles and Taylor & Barker - have not altered in any way, it seems to me, the above summary. If anything, they have confirmed the principles outlined, especially the pre-eminence of the paramount interests of the child.
[9] It should be noted that in U v U, Gleeson CJ agreed with the judgment of Gummow & Callinan JJ, as well as with the comments of Hayne J. See (2002) 211 CLR at p.240 [1].
[10] Cf.Payne v Payne [2001] Fam 473, where Thorpe LJ, summarised [26] the two governing propositions under UK legislation and judicial authority over 30 years in relocation cases as (a) the welfare of the child is the paramount consideration and (b) refusing the primary carer’s reasonable proposals for relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. See also the reasons of Dame Butler-Sloss P [85]. See also the comments of Bryant CJ and Finn J in Taylor & Barker [2007] Fam CA at [84-113].
In addition to the above, it is essential to note the cautionary and critical observation of Gummow and Callinan JJ in U v U [92] which, in many respects, underlies the principles enunciated above:
The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
To this I would only add that, in certain respects, one responsibility of the Court is to apportion, according to principles of justice and equity in the context of what is in the best interests of the particular children involved, in what proportion, and how, the sacrifices will fall on each of the parents of the children. In saying this, the apportionment of the moral and legal obligations of parenthood should not be seen by either party as an apportionment of blame, and still less of “guilt”. The primary consideration in this case is not, per se, Ms F’s application to relocate; it is ‘what is in M’s and D’s best interests’ in the context of that application? It is time to consider and apply these principles to the facts and proposals of this case in the light of the evidence.
Relevant evidence
The Mother – Ms F: Ms F’s evidence, both by affidavit (affirmed 14th June 2007) and in testimony in Court, confirmed that she had a sincere desire to relocate to G in order to marry Mr M, with whom she has been in a relationship for approximately three years. In her view, the move would have minimal impact on the relationship between the children and their Father. The evidence provided by Ms F traversed her concerns about the controlling nature of Mr F, both in her life and in the lives of the children. She stated that Mr F regularly checked up on the children’s visits to the doctor because he disbelieved, for example, that M suffered from eczema to the degree that was claimed, with resultant non-attendance at school. These and similar matters evidenced, in her view, that there has been and remains a very significant level of distrust between the parties. It is difficult to disagree with her assessment in this regard. It was echoed in evidence by Mr F who said specifically that he did not believe Ms F’s reasons for the number of school absences of the children. Ms F’s evidence also went to the wishes of the children concerning the relocation and the relationship with their Father. As to the first matter, Ms F sees the move to G less as an escape from a former relationship (although that is part of the emotional and practical landscape against which this case was presented) and more the opportunity to commence a new life with Mr M.
Regarding her evidence of the children’s wishes and their relationship with Mr F, Ms F contended that both children were positive about the move to G. She conceded that D had expressed reservations initially, then warmed to the idea, and more recently seemed to have a more balanced, perhaps realistic, view that such a move would have its benefits (such as being with his sister), as well as some negatives, such as moving away from school friends. Ms F also claimed that Mr F’s involvement with the children’s schooling was irregular, in the sense that he was not involved in their day to day schooling but was, at times, quite involved in P & C meetings. She claimed that this latter involvement had resumed and increased appreciably since the commencement of the current proceedings.[11] Ms F also confirmed that there had been a significant deterioration in the relationship between M and her Father since late 2005. It had quickly reached a stage where M did not wish to see, or to speak with, her Father. That position is not only regrettable, for all parties, but is seemingly entrenched for the foreseeable future.
[11] See Ms F’s affidavit of 14th June 2007, pars.38 & 39.
The Father – Mr F: The thrust of Mr F’s evidence, and his submissions, which he presented thoroughly and forcefully, was directed mainly at three areas: (a) his disbelief about Ms F’s bona fides in relation to the amount of time, and the reasons why, the children were absent from school (with a consequent negative impact on their schooling),[12] (b) how his relationship with D would likely suffer if he relocated to G, and similarly, (c) how his estranged relationship with M could likely not be bridged, let alone healed, with her being in G. A further, related area concerned how Mr F’s involvement with the P & C of D’s school would be detrimentally affected should a move to G be permitted. Although this last matter occupied quite some time of the evidence, and on which Mr F had obviously dedicated considerable energy,[13] and however much the education of a child is a primary consideration for any parent, involvement in P & C meetings, without more, does not evince detailed involvement in an individual child’s education.[14] Involvement in school meetings is always to be encouraged, but it does not necessarily, or directly, translate into specific matters pertaining to a particular child’s education, in this case D’s. While attendance at P & C meetings was involvement in ‘school matters’, it was not direct involvement in the day to day schooling of his son. It may also be the case that Mr F’s involvement in P & C meetings is/was the only way he considered that he could be involved in educational affairs that affected one of his children, even though he is not involved, to any significant degree, in their daily educational lives.
[12] See pars.12-19 of Mr F’s affidavit, affirmed 6th July 2007. Annexed to this affidavit is an elaborate table of the children’s absences from school.
[13] For example, Mr F annexed to his affidavit a letter from the President of the Parents & Citizens Association at G Primary School attesting to his involvement in P & C matters.
[14] A child’s current and future educational needs are a prescribed “major long-term issue” under s.4 of the Family Law Act1975.
As indicated above, there is no engagement, at any level, between Mr F and M. She has not spent any time with Mr F for significantly more than 12 months, indeed now closer to 18 months. Naturally, Mr F is anxious that this not be the case, and hopes that it may be ameliorated sometime, by some means, in the future. He is anxious that a move to G will make any movement towards reconciliation all but impossible. I do not accept this last contention as inevitable; it is a counsel of despair, especially in the light of other possibilities to be explored shortly, and the evidence of Ms Willetts, to which I now turn.
The Family Consultant – Ms Helen Willetts: Ms Willetts provided a Family Report (dated 29th May 2007). She also gave evidence in Court. Her report [par.4] notes the current arrangements for D to spend time with his Father, namely every Thursday [night], every second weekend, and half the school holidays. She observed that Ms F’s reasons to relocate are, as already stated, twofold: to marry and reside with Mr M and the children. Secondly, she wishes to remove herself from the “difficult parenting relationship that she has reportedly always had with Mr F whom she feels “traps” her. She experiences him as controlling and cleverly manipulative.” [Report: par.6] In relation to Mr F, Ms Willetts recorded that he felt that the proposal to relocate was a selfish proposition by Ms F, that she had 60% of the care of the children, that the estrangement between he and M was engineered by Ms F, and perhaps most of all, he feared becoming merely a “weekend dad.” [Report: par.8] He also was concerned that after a move to G, the new family would move further away to C, where Mr M owns a house. This possibility, apart from its speculative character, was denied by both Ms F and Mr M. It should be noted at this juncture that Ms F agreed, during the course of the proceedings, that there be equal shared parental responsibility with Mr F in relation to the children.
I accept the following assessments of Ms Willetts in relation to the children. I will deal firstly with remarks concerning M, then those recorded in the course of the interview with D. Finally, I will deal with Ms Willetts’ comments regarding both parents, followed by her recommendations.
M: Ms Willetts recorded a series of significant, very strong comments from M. These included (Report: par.13): “Ever since I was little I didn’t like going over (to spend time at her father’s home). Finally, I decided I was sick of it and I’m older and I just could not handle it anymore.” Ms Willetts also records that M said that she did not enjoy spending time with her father because he became easily angry about things which she considered “little.” She (M) described her father as “really mean” to her. Ms Willetts also recorded M saying that she never wanted to talk to him. Such a range of decisive comments by a young woman of 16 years is significant, for at least two reasons. First, she is fast approaching her legal adulthood. But in any event, according to the principles espoused by the High Court in Marion’s Case, and in the light of the statutory responsibility of the Court under the Family Law Act, relevantly to take heed of a child’s views, her wishes are to be given increasing weight in the light of her age.[15] Secondly, her references to a range of areas, circumstances, and different occasions and causes of discontent, which have occurred, she says, over many years, in the relationship with her Father, all tend to undermine Mr F’s contention that M’s terse relationship with him has been manipulated by Ms F.
[15] Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218. In the course of their joint judgment, Mason CJ, Dawson, Toohey and Gaudron JJ cite approvingly the following statement by Lord Scarman: “Parental rights … do not wholly disappear until the age of majority…. But the common law has never treated such rights as sovereign or beyond review and control. Nor has our law ever treated the child as other than a person with capacities and rights recognised by law. The principle of the law … is that parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child.” [Gillick v West Norfolk AHA [1986] AC 112 at pp.183-184] The High Court quoted further from Gillick ibid, p.189 (Lord Scarman): “A minor is, according to this principle, capable of giving informed consent when he or she “achieves sufficient understanding and intelligence to enable him or her to understand fully what is proposed.” The High Court commented [pp.237-238: internal references omitted]: “This approach, though lacking the certainty of a fixed age rule, accords with experience and with psychology. It should be followed in this country as part of the common law.” For statutory recognition of these principles, see ss.60CC(3)(a) and 60CD(1) of the Family Law Act1975 which pertain to the Court’s responsibility to consider the views of a child having regard, among other things, to that person’s maturity and level of understanding. In this case, the views and comments of 16 year old M, in particular, should be given significant weight.
Ms Willetts reports that M regards the move to G as “a positive one for her.” She is not daunted by leaving her school and her peers. One reason for this is that she would have to change schools in 2008 even if she stays in the ACT. M would not consider living anywhere else except with her Mother. When asked about what orders the Court should make, Ms Willetts reports M’s answer as follows (Report: par.16): “They [the Court] should definitely let us go (to G) we want to move and not be stuck in one place.”
Significantly, Ms Willetts reported: “It is likely that M’s alienation from her father occurred after her becoming tired of being between two warring parents rather than eventuating from any intentional campaign by her mother to sever her relationship with her father.”[16] Ms Willetts confirmed this view in her testimony in Court.[17] Moreover, she confirmed that her impression of M and the strained relationship with her Father was now virtually one of “desperation” to move away from who she saw as a principal cause of friction for the family.[18] Ms Willetts noted (in her report) that M considered Mr M “nice”, and (in evidence in Court) that if her Mother was restrained from moving to G to marry Mr M, there was the increased risk that M would become even more disaffected with her Father.[19]
[16] Family Report, (29th May, 2007) par.23.
[17] See Transcript of Evidence, (16th August, 2007) p.12.
[18] See Transcript of Evidence, (16th August, 2007) p.14. Mr F, while conceding that there are current difficulties with his daughter, does not concede that he is estranged from her. See Transcript of Evidence, ibid, p.8.
[19] Ibid, p.15. In evidence, Ms Willetts also noted the risk of the negative impact on Ms F if the relocation was denied her, and the likelihood of her negativity and frustration in feeling “trapped” in C being passed on to the children. See Transcript of Evidence, (16th August 2007) pp.12-13.
The final thing to note in relation to M’s views, as recorded by Ms Willetts, is that M and D are very close in their relationship. At the same time, M is respectful of her brother’s wishes and does not seek to influence his disposition towards or relationship with Mr F.
D: Ms Willetts agreed that the only benefit, and the only difference between the respective proposals of the parties before the Court, was the likelihood that the Thursday nights, which D currently spends with his Father, would likely have to change. In her report (par.19), and in oral evidence, Ms Willetts noted that D thought that the Thursday night time with his Father, while important, would not make any real difference to the relationship with his Father. Indeed, he stated that he thought the relocation to G would not make any difference to that relationship.[20] He did see it as having an impact on relationships with his friends and peers. As well, Ms Willetts records that D expected that his weekend time with his Father would continue, as would time with him in the holidays. Moreover, according to D, he expects “that he may spend some additional time with his father during the school holidays but would not want to be in C for the entire holidays.” (Report, par.19) D was adamant that he wished to continue to live with his Mother and sister. Ms Willetts also records D as liking Mr M.
[20] Par.19 of the Report quotes D as saying: “It (the relocation) wouldn’t make much difference to the time I spend with him [Mr F].” In evidence, Ms Willetts commented: “Sorry, can I just say something in relation to what you've just asked me, Ms Godtschalk. There's - the research is clear that
Proposals of the parties
The proposals of each of the parties are very simple; each of them is readily understandable in the circumstances. The relevant details of each of them have already been mentioned. For her part, Ms F seeks that both children continue to live with her in G, and that D continue to spend time with his Father, albeit on a basis reduced by one night per week. She contends that while the relocation to G will necessitate a change in schools, the move to outside of C will involve a ‘relatively minor re-arrangement of the time the children currently spend with their Father.’ Ms F also submits that her freedom of movement should only be impinged to the degree necessary to fulfil the objects of the Family Law Act as set out in s.60B. Finally, Ms F submits that the move to G will still allow her son – but presumably both children - to enjoy substantial and significant time with Mr F, according to s.65DAA.
Mr F’s proposals are eloquently simple. They are that the Orders made by Brewster FM in February 2001 remain in force, that the children continue to reside in the ACT, and that they continue to attend school in the ACT. The latter two orders sought are stated to be subject to there being an alternative agreement between the parties in writing. Mr F contends that a move to G is ostensibly for the benefit of Ms F, and that there would be no demonstrable benefit for the children. He goes further in this regard to contend that it would not be in the children’s best interests to move to G with their Mother. One reason for his opposition to the children moving is that he contends that the children have missed a considerable amount of school, for which he largely blames Ms F, and that he would have greater difficulty monitoring their schooling if they were in G than if they remained in C. Understandably, Mr F also contends that his involvement with the children’s schooling on another level, notably with P & C meetings, will be reduced or at least made more difficult.
Assessment of the proposals: The law and the evidence
For ease of reference, I will consider the proposals, and the relevant evidence, within (a) the framework of the primary and additional statutory requirements prescribed by ss.60CC (2), (3) & (4), as well as (b) those additional sections of the Act that relate to equal shared parental responsibility, and (c) the Court’s responsibility to ensure, in so far as it is judicially possible, that a child maintain a meaningful relationship with his or her parents. In what has been stated already, and in what follows, I am acutely conscious that, to date, while there is no High Court authority of which I am aware directly in point following the enactment of the Family Law Amendment (Shared Parental Responsibility) Act2006, there have been a number of very recent appellate decisions of the Family Court – both by single Justices and a Full Court.[21]
[21] Se, Kay J, sitting on appeal as a single judge of the Family Court pursuant to s.94AAA(3) of the Family Law Act 1975, in Godfrey v Sanders [2007] Fam CA 102 and Boland J, similarly, in Morgan & Miles [2007] Fam CA (17th October 2007); Taylor & Barker [2007] Fam CA (19th October 2007) (Bryant CJ & Finn J; Faulks DCJ dissenting).
General observations
The wife’s application to relocate is, as already stated, relatively uncomplicated. The analysis, similarly, need not be complex. A move to G will allow her to marry Mr M, who works out of that city. Subject to further discussion below regarding the estrangement between M and her father, M is untroubled by the prospect of a move away from C. Indeed, it could be said – and was conceded as a likely consequence of the move – that it may likely provide a welcome, new beginning for her. It will certainly do so for Ms F. Moreover, if she were not permitted to relocate with the children, there is the considerable risk, confirmed in evidence by Ms Willetts and by Ms F, that her imposed residence in C would certainly affect her happiness directly, and more than likely indirectly impact negatively on the children.
Put another way, Ms F’s unhappiness in being required to stay in C would not only ensure ongoing bitterness between her and Mr F, but also very likely risk the children becoming entangled even more in that acrimony. In this respect, the fundamental touchstone of the child’s best interests being the paramount consideration in making a parenting order,[22] risks being significantly clouded if not, in a worse-case scenario, being damaged further or even fractured in the relationships involved in and affected by these proceedings.
[22] See ss.60CA & 65AA Family Law Act1975.
Put yet a third way, the objects and principles set out in s.60B (1) and (2) of the Family Law Act risk being thwarted by a court imposing permanent residence upon the children’s principal carer, their Mother, thereby risking further alienation, at least between Mr F and his daughter M, because she would almost certainly see an order denying her Mother to relocate as supporting the orders sought by her Father. As well, the risk of straining further the relationship between Ms F and Mr F by imposing residence on Ms F in C bodes ill for them being able to make decisions either amicably or at all in relation to ‘major long-term issues’ concerning D (let alone M), and likely even more mundane matters. In the context of the evidence in this case, the best interests of the children are best served by allowing the relocation. The child who benefits most by the relocation is M. But, as will be explained shortly, D’s relationship with his Father is highly unlikely to be impaired in any way by a relocation of Ms F to G. He already has a meaningful relationship with his Father.[23] Indeed, the time spent currently between D and his Father is likely, to a reasonable degree, to be able to be replicated following a relocation.
[23] See here the comments of Dessau J on a long-distance and meaningful relationship: M v S (2007) 37 Fam LR 32 at 41 [45], and those of Kay J in Godfrey & Sanders at [36] where his Honour said: “Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.”
I have already noted that D wishes to continue to live with his Mother, and he is also very close to his sister. It follows that anything that potentially may rupture the serenity of these relationships will impact adversely on D. Given the amount of difficulty that already attends the relationships involved in these proceedings, I am reluctant to impose more strains beyond their natural elastic limits. That would occur if Ms F did not receive the sanction of this Court to relocate.
The critical statutory consideration that arises next concerns the operation of s.65DAA in relation to a child spending equal or “substantial and significant time with each parent in certain circumstances.” I have already mentioned Federal Magistrate Altobelli’s somewhat pessimistic remark that [perhaps] “relocation” is hard to imagine since the commencement of the 2006 amendments, and especially s.65DAA.[24] If I have understood his Honour correctly, I do not necessarily share his more sombre view of the impact of the significant amendments of last year so as seemingly to prevent, as a matter of course, orders that would sanction relocation. Let me explain the steps behind why I hold this view, in addition to those expressed recently by Dessau J in M v S and Kay J in Godfrey & Sanders.
[24] I should note that when making his decision in H v H, Dr Altobelli FM did not have the benefit of the judgment of Kay J in Godfrey & Sanders [2007] FamCA 102, which was delivered subsequent to delivering his Honour’s judgment in H v H. It would also appear that he also did not have the benefit of Dessau J’s decision in M v S.
First, the Second Reading speech incorporated into the Senate Hansard in relation to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 seems to me to hinge on two basic principles – one long-standing, the other common sense. The long-standing principle to which there was no change, and emphasis was given, was put this way: “It is important to emphasise that the paramount consideration for the court will continue to be the best interests of the child.”[25] The common sense principle referred to in the Second Reading speech was: “The Government wants to change the culture of family breakdown from litigation to cooperation.”[26] Implicit, and sometimes explicit in the Second Reading speech, are the legislative intentions that children, where it is in their best interests, have the benefit of time with, and parenting by, both parents, and that the parents seek to resolve matters concerning their children by negotiation and preferably without judicial assistance. Judicial intervention should always be a means of last, not first, resort.
[25] Commonwealth Parliamentary Debates, (Senate) (27th March 2006) p.78 (Senator Santoro).
[26] Ibid. I am not aware of anything in the Revised Explanatory Memorandum, tabled in the Senate at the same time as the Second Reading speech in relation to the Family Law Amendment (Shared Parental Responsibility) Bill 2006, that would alter the views and observations made here.
The second step in my reasoning on this point is that it clearly was not, nor could it have been, part of the legislative intention to impose on children (and their parents) a regime that is more onerous and potentially more debilitating to the relationship between the children and their parents than what was in place before seeking the relief of the Court. In this case, not to sanction the relocation to G risks putting even greater strain on the relationships in question. In making these comments, this is not to underplay or diminish that some extra travel is likely by Ms F, and even more so by Mr F, in taking D to and from hand-over meetings half-way between C and G (or as otherwise agreed between the parties), and similarly that there will be extra travel by Mr F to G for teacher interviews and other significant occasions at school, and perhaps elsewhere.
I move now to a consideration of each of the statutory requirements in s.60CC in the light of the evidence in the current proceedings. In doing so, I recognise that I have already traversed, to a significant degree, the matters canvassed in this and other critical sections of the Family Law Act, notably s.60B.[27] I deal firstly with the “primary considerations” prescribed in s.60CC(2).
[27] Rather than quote each sub-paragraph of each of the sub-sections of s.60CC, unless otherwise required, each of the paragraph numbers corresponds to the relevant sub-paragraph of that section.
I noted earlier that D already has an established and meaningful relationship with his Father. Also, D’s evidence (via the Family Report and confirmed by Ms Willetts) is that he does not consider that a move to G will impact negatively at all on his relationship with Mr F.
In so far as it is necessary to repeat it, M does not wish to have any contact with her Father. It may be, however, that once this litigation is finalised, and time, distance and a measure of order are allowed to bring some therapeutic intervention into the various, currently fractured, relationships, there remains the hope of some reconciliation between M and her Father. This is more likely if the relocation orders are granted in favour of her Mother than if the Court sanctioned the orders of Mr F.
It is unnecessary to consider sub-paragraph (b) of s.60CC(2). It has no formal application in the current proceedings. I move now to consider s.60CC(3) and its array of 13 sub-paragraphs.
(a) The views of both M and D have been detailed extensively already: in M’s case, she wishes to have nothing to do with her Father, she wishes to continue to live with her Mother, and is, therefore, content with a move to G. She enjoys a relaxed relationship with Mr M, her Mother’s fiancé. In D’s case, he already has a meaningful relationship with his Father and does not see it being affected by a move to G. His primary concern with a move is in relation to the possible effect on his relationships with his current school friends. He too wishes to continue to live with his Mother. He also enjoys a good relationship with Mr M.
(b) The nature of each of the children’s relationship with their parents has also been dealt with in detail earlier in these reasons. Both children wish to continue to live with their Mother. This speaks for itself. M’s relationship with her Father is, and has been for a long time, extremely fraught, to say the least. A move to G, and away from close proximity to her Father, may be therapeutic. It is difficult to see how the physical distance between C and G will demonstrably impact negatively on the already poor, if not hostile, relationship between M and her Father. Indeed, in evidence, Ms Willetts acknowledged that the distance may actually have a therapeutic effect on the relationship.[28] D’s relationship with his Father remains strong, and is likely, with minimum adjustment on D’s part but more adjustment on Mr F’s part, to remain so. A move to G for D would necessitate a change in schools, and some adjustment in relation to the frequency and nature of contact with his circle of friends and, of course, his Father. Ms Godtschalk, Counsel for Ms F, noted that D would be changing schools at the end of 2007 in any event when he embarks on the journey to high school. As well, it would be remarkable if his entire, current group of friends all moved to the same high school; hence some adjustment of his group of friends is rather inevitable even if he were to remain in C. As other cases have indicated, modern means of communication can alleviate a number of adjustment issues, perhaps especially in the use of computer-linked video contact (“virtual visitation”).
[28] Transcript of Evidence, (16th August 2007) p.22. I note also the following exchange between Mr F during his cross-examination of Ms Willetts: “Q: Would you take it that the greater distance between us in future [i.e. between C and G] will make it more difficult for M to spontaneously establish a new relationship [with her Father]? A: No, I don’t think so. I don’t think that a distance of that or even further is going to prevent her from having a relationship with her father. I think that there’s many ways that she could commence some sort of relationship with Mr F, and it doesn’t need to be commenced in the same town.” In her next answer, to a question posed by me, Ms Willetts said: “… I think that if M feels that something is resolved between her parents, and this has been an issue for some time now this move, then I think that would have a positive effect on her views about her relationship with her dad.” Ibid.
(c) Both parents gave evidence to the effect that they would be willing to facilitate and encourage a close and continuing relationship between D and the other parent. In M’s case, both parents – Mr F somewhat more reluctantly, but understandably so – recognise the need to respect M’s wishes, given her age and maturity, with respect to her desire to continue to live with her Mother, and not to spend any time with her Father. Counsel for Ms F confirmed that both parents should have equal shared responsibility for both children, and that there be specific orders made so as to provide for Mr F to receive school reports in relation to M.[29] In evidence, Mr F conceded that an order requiring school reports for M to be provided to him would resolve that issue for him.[30] Notwithstanding his opposition to a relocation by Ms F and the children to G, Mr F agreed, and I accept, that he would be obliged not to let his disappointment or unhappiness affect D.[31]
(d) As with earlier sub-sections, I have already canvassed the likely effect of any change in the child (D’s) circumstances, including the likely effect on the child of any separation from his Father.
A relocation to G will not, in my view, have any discernible impact on the existing meaningful relationship between D and Mr F.
(e) As to practical matters (time, expense, etc) relating to D spending time with and communicating with his Father, Mr F indicated that an order in favour of Ms F would involve increased travel time for him to spend time with D. While this is undoubtedly true, it may actually provide opportunities (again with some sacrifice on Mr F’s part) for D and his Father to spend time together. For example, after a P & C meeting, Mr F could perhaps spend the night in G with his son, thus alleviating, to some degree, Mr F’s concern about losing his current Thursday night time with D. Indeed, Mr F could, perhaps, make such a venture north to G to spend the night there something of a feature of his regular time with D. In the course of cross-examination, Mr F suggested to Mr M that he could relocate his trucking business to C.[32] While that was, not unreasonably, rejected, it is not beyond the bounds of practicality that Mr F, at some later stage when the dust, angst and turmoil of litigation has settled, could relocate to G so as to be in a position to spend more time with, at least, D.
(f) Notwithstanding some contest between Mr F and Ms F regarding school attendance by both children, and questions being raised about the nature and extent of medical treatment required by M, I do not consider that the capacities of each of the children’s parents to be a matter formally (or otherwise) in issue in these proceedings.
(g) Other than as discussed above, the matters raised by sub-paragraphs (g) and (h) of s.60CC(3) were not in issue in the litigation. As to sub-paragraph (i), the only comment to note here is that, in the light of the evidence presented, Mr F seems unable to accept the degree of estrangement between himself and his daughter. To that degree alone, I do not consider that there is anything that warrants this Court to comment on the attitudes of the parents towards their children, or their responsibilities as parents. Both are clearly committed parents.
(h) Sub-paragraphs (j) and (k) have no application to the present proceedings. In relation to sub-paragraph (l), I think it is more likely that further legal proceedings involving the children may ensue if orders were made as sought by the Father than if made in favour of Ms F. In my view, Ms F and Mr F have both fulfilled their duties and responsibilities as parents as prescribed by s.60CC(4).
[29] Transcript of Evidence, (16th August, 2007) p.60 & (17th August, 2007) p.90.
[30] Transcript of Evidence, (16th August, 2007) pp.42-43.
[31] Transcript of Evidence, (16th August, 2007) p.86.
[32] Transcript of Evidence, (16th August, 2007) p.56.
It remains to consider s.65DAA. Sub-section (1) does not apply to the current litigation in relation to either of the children. Subject to the over-riding principle, referred to in s.65DAA as well as in ss.60CA and 65AA, that the Court “must regard the best interests of the child as the paramount consideration,” subsections (2) and (3) require the Court to consider whether, (i) in making a parenting order that involves “equal shared parental responsibility” (which there is here – by agreement), and (ii) where there is no order for the child to spend equal time with each of the parents (which is the case here), a child should spend “substantial and significant time with each of the parents” and whether to do so “is reasonably practicable.”[33]
[33] Section 65DAA(3) provides what constitutes “substantial and significant time”, while s.65DAA(5) provides what constitutes “reasonable practicality” for the purposes of s.65DAA(1) & (2).
I have already indicated that I consider the provisions of s.65DAA to be subject to the provisions of s.60CA and s.65AA. I consider it also to be subject to the provisions of s.60B. My reading of Justice Kay’s judgment in Godfrey & Sanders confirms that view. Moreover, the section could not be taken to impose, or require, parenting orders that potentially could threaten the rather delicate equipoise of the relationship between Mr F and his daughter M, and the workable arrangements that will enable the existing meaningful relationship between D and his Father, to continue. Moreover, the practicalities of a relocation to G, without imposing intolerable and unnecessary strains on all involved, mean that the issue of what is in the children’s “best interests” is essentially “at large” – to use the words of Kay J in Godfrey & Sanders ([30] – which quotes Dessau J in M v S [37]), who in turn quotes from Goode v Goode [65.8]. Critically, Kay J adopted [30] the remarks of Dessau J in M v S [38]:
Counsel for the father submitted that the new Part VII provisions effectively cast an onus of proof on the applicant for relocation. They do not, and it is clear that was not the intent of the amendments. The legislature has not explicitly prohibited the relocation of a child away from one parent. It has not introduced a specific presumption against it, nor an onus of proof on the moving party. Nor has it suggested that just because the relationship between a child and a parent will inevitably be affected by a move away, that in itself should preclude the court from permitting the relocation. Otherwise, given the inevitability of some change to the nature of the child/parent relationship when the structure of the time spent together is changed, virtually all requests for relocation would as a matter of course be disallowed. Had that been the intention, the Act would have been amended accordingly.[34]
[34] M v S (2007) 37 Fam LR at pp.39-40 [38].
And further (Godfrey & Sanders [30], quoting again from M v S [39]):
The objects and principles of the Act, the primary and additional considerations under s 60CC, together with the various provisions in relation to equal shared parental responsibility, direct the court squarely to maintaining the important relationship between a child and his/her parents. But the child’s best interests remain the court’s paramount consideration (s 60CA). In the opening words of the objects provisions in s 60B(1) of the Act, and again in s 60B(2) where it is stated that the principles set out there apply “except when it is or would be contrary to a child’s best interests”, the legislature has not diminished the best interests test as integral to any parenting issues, including the difficult issue of relocation.
Respectfully, I accept and adopt the comments of Dessau J in M v S, and their endorsement by Kay J in Godfrey & Sanders, in relation to the operation of the Act, in the light of the 2006 amendments, and in the context of an application to this Court for its sanction for Ms F to relocate to G. I note that Mr F urged me to view the 2006 amendments regarding shared parental responsibility as effectively prohibiting the Court from acceding to any relocation orders. For the reasons advanced by Dessau and Kay JJ, and for other reasons outlined above, I do not agree with his submission.
Conclusion
The “best interests of the child” is, and remains after the 2006 amendments to the Family Law Act in relation to shared parental responsibility, the paramount consideration of Courts in making any parenting order. That judicial touchstone is prescribed in ss.60B, 60CC, 65AA and 65DAA of the Act. While these sections clearly have their own individual provenance, especially the breadth and intricacies of ss.60CC and 65DAA, summarily they may be treated for the purposes of this case as focussing attention on what is in the best interests of the children, and what, in the light of the respective proposals and the relevant history, constitutes a “meaningful relationship” of each child with both parents. Subject to proper regard to the legislative context and express provisions of the sections mentioned, in my view, such an approach accords with Kirby J’s observations, using language from Thorpe LJ in Payne v Payne[35], in U v U:
[35] [2001] Fam 473 at [42].
The judge in the end must evaluate comparatively each option for the child, one against another. Often that will mean evaluating a home with mother in this jurisdiction, against a home with mother wherever she seeks to go, against a home in this jurisdiction with father. Then in explaining his first choice the judge will inevitably be delivering judgment on both applications.[36]
[36] U v U, at [139].
In the circumstances of this case, I have explained why I will make the following orders (a) that will allow Ms F to relocate to G to embark on a new life with Mr M, (b) which will seek to allow the existing, meaningful relationship between Mr F and D to continue, and (c) to provide for different circumstances that might allow for a meaningful relationship between M and her Father to begin afresh. In making the following orders, I stress that the over-riding consideration has been the best interests of the children. The Orders should not be seen as either a victory or a loss by either of the parties but what, in the light of the evidence, this Court considers to be in the best interests of M and D. Rather, it is apt to see it in terms of what Gummow and Callinan JJ said in U v U, which I quoted earlier in this judgment in relation to the responsibilities and sacrifices that are the lot of parents. Their Honours said at [92]:
“The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.”
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: Angela Kelly
Date: 24 October 2007
The problems that family law legislation deals with are human problems: with all their attendant variety and complexity. And at the end of a court proceeding under such legislation, a judge must make an order – usually an order that says yes or no to some application. “[A] complicated mass of human experience has to be reduced to the simplest possible terms.” Because the problems are human problems, because they are as varied and complicated as they are, the legislation speaks in terms more often found in statements of aspiration than legal prescription. It is, then, hardly surprising that the guiding principles prescribed by the legislation for application in cases concerning the guardianship or custody of children or related issues, are principles that seldom, if ever, permit syllogistic reasoning.
Further, when considering the reasons given by a judge who has made an order in an application about the guardianship or custody of children, it is necessary to bear steadily in mind that the judge must grapple with the chaotic complexity of real life, make predictions not only of what he or she concludes may happen in the future but also of what will be “best” for the child, and do so having regard to what the parties have chosen to contest or emphasise in the course of the hearing.
Ibid, p.228 [204 & 205]. (Internal references omitted.)
there's no direct correlation between the amount of time children spend with the parent with whom they're not living and the closeness that they have with that parent. I mean, people like P Amato(?) has done a lot of research in that area. And it's the - it is the quality of the relationship that makes the difference, not the amount of time they spend. And Amato goes into some detail about what that quality should be about, you know, certain parenting styles, parents that continue to have an interest in their children and continue to do the things with them that shows that level of support for them are parents who have a good relationship with their children, no matter that they may not see them every week or every day or - so there isn't a direct correlation between those two.” Transcript of Evidence, (16th August, 2007) p.8. On this same point, Professor Parkinson quotes the same scholar cited by Ms Willetts [Amato], saying: “… Amato and Gilbreth confirmed that frequency of contact in itself does not appear to be associated with better outcomes for children. However, emotional closeness, and in particular, authoritative parenting, is highly beneficial to children.” P. Parkinson, “Decision-making about the best interests of the child: The impact of the two tiers,” (2006) 20 Australian Journal of Family Law at p.184.7
6