F and F
[2002] FMCAfam 428
•24 December 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| F & F | [2002] FMCAfam 428 |
| FAMILY LAW – Children – proposal to remove child inter-state – parenting orders – contact orders – 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. |
Family Law Act 1975 (Cth), ss.60B, 65E, 68F(2)
AMS v AIF; AIF v AMS [1999] HCA 26; (1999) 24 Fam LR 756; FLC 92-852
U v U [2002] HCA 36; (2002) 29 Fam LR 74
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
SMG v RAM [1999] FamCA 1845; (2000) FLC 93-020
Martin v Matruglio (1999) 25 Fam LR 510; FLC 92-876
B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC 92-755
Jurss (1976) 9 ALR 455; 1 Fam LR 11,203; FLC 90-041
Maday (1985) 10 Fam LR 357; FLC 91-636
| Applicant: | M E F |
| Respondent: | A C F |
| File No: | PAM 1831 of 2000 |
| Delivered on: | 24 December 2002 |
| Delivered at: | Parramatta |
| Hearing Dates: | 19 & 20 December 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Stewart |
| Solicitors for the Applicant: | Stockman & Evans |
| Counsel for the Respondent: | Mr Givney |
| Solicitors for the Respondent: | Adrian Twigg & Co |
ORDERS
The Orders made by the Family Court of Australia at Parramatta on
29 October 1999 are discharged.The Respondent Mother is to be at liberty to relocate to the city of Melbourne in the State of Victoria with the child of the marriage
K M F born 10 February 1998 on or after 29 December 2002.The Applicant Father is to have contact with the said child as follows:
(a)for each of the Victorian school holiday periods at the conclusion of the first, second 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)from 31 December 2002 until 9.00 am on the day one week before the commencement of the first school term in 2003 and each alternate year thereafter;
(c)from 5.00 pm on Christmas Eve 2003 until 9.00 am on the day two weeks before the commencement of the first school term in 2004 and each alternate year thereafter;
(d)on Father’s Day and on the Father’s birthday at times arranged by the parties;
(e)on reasonable occasions during the day in Melbourne when the Father is visiting Melbourne at times arranged by the parties;
(f)by telephone, e-mail or letter at any reasonable time; and
(g)at such other times as the parties shall agree.
Until the child is of an age where she may be permitted to travel on an aircraft unaccompanied by an adult, the Mother is to accompany the said child on any flight for the purpose of contact at her own expense or arrange for the child to be accompanied by a responsible adult.
The Mother is to give the Father 14 days written notice of her intention to reside with the child in any State of Australia other than Victoria.
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.
The Mother is to notify the Father of the name and address of each school attended by the said child no later than 48 hours before the child commences to attend such school.
The Mother is to advise the Father of her intention to enrol the child at a secondary school no later than three months before the child is due to commence at secondary school and consult with the father about the selection of a suitable secondary school for the said child.
The Mother is to notify the Father of her landline telephone number in Melbourne within 7 days of her arrival in Melbourne.
The Mother is to make all necessary arrangements to obtain an e-mail facility so that the said child may communicate with the Father by
e-mail by 30 June 2003.All documents produced on subpoena with the exception of exhibits are to be returned.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 1831 of 2000
| M E F |
Applicant
And
| A C F |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the father of the child K M[1] F born 10th February 1998 for the following orders:
[1] There is discrepancy in the spelling of the child’s middle name in various documents filed at the Court. The Application and Response spell the name “M” but the Application for Dissolution and the Orders made by the Family court on 29th October 1999 use the spelling “M”, which is used in this decision for the sake of consistency.
(a)The Mother be restrained from removing the child from the area within the radius of forty (40) kilometres from the General Post Office at Sydney without the written consent of the Father;
(b)That the Father have contact with the child:
·Each alternate weekend from immediately after the conclusion of day care until the following Monday morning;
·In the week during which the Father does not have weekend contact from immediately after day care on Wednesday until the following Friday morning;
·For half of each school holiday period;
·For alternate Christmas Days from 12 noon until 12 noon on the following Boxing Day;
·On Father’s Day;
·On the child’s birthday in alternate years;[2]
·On the Father’s birthday; and
·Contact to cease at 9.00 am on Mother’s Day.
[2] The Application refers to the child’s birthday in 2002, which has already passed. This is presumably a typing error.
In her Response, filed on 2nd September 2002, the Mother seeks orders to the following effect:
(a)that she be at liberty to relocate with the child to Melbourne;
(b)that the father have contact with the child:
·for each of the mid-year school holidays;
·from 31st December each year to a day one week before school goes back;
·on Father’s Day and the Father’s birthday;
·on reasonable occasions during the day when the Father is visiting Melbourne, by arrangement with the Mother;
·by telephone, e-mail or letter;
·the Father to pay the costs of all travel.
(c)That the child attend such school or schools and upon such terms and conditions as the Mother selects.
On the second day of the hearing, the Mother told the Court in evidence in chief that she was prepared to offer that the father could have contact with the child every second Christmas if she were living in Melbourne.
Background
The father was born on 16th August 1966, so he is 36 years old. The Mother was born on 30th December 1967, which means that her 35th birthday is just a week away. The parties commenced to reside together on 30th April 1992 and were married on 9th November 1996. The child K was born on 10th February 1998.
The parties separated on 25th July 1998[3], when K was just five months old. Despite the separation, the parties maintained a cooperative relationship about the Father’s contact with K, and there is no issue over the fact that the Father was having overnight contact with the child within weeks of the separation. Regular contact has continued ever since.
[3] According to the Application for Dissolution of Marriage
The Family Court at Parramatta made orders by consent on
29th October 1999 relating to property and parenting issues. The parenting orders provided that the parties should have the joint long term responsibility for the child’s care, welfare and development, that she should reside with the Mother and that the Father should have reasonable contact with the child.
The Father commenced divorce proceedings in the Federal Magistrates Court at Parramatta. The Federal Magistrates Court pronounced a decree nisi dissolving the marriage on 4th December 2000.
The Father formed a new relationship with a lady who is now his wife. They commenced to live together in February 2000 and were married on 27th April 2002. There is no issue as to the fact that the Father’s new wife has had frequent contact with the child, at least since February 2000.
The Mother had continued working, but on 15th June 2002 she told the Father that she believed that she would be made redundant from her employment and, if that were to happen, she would wish to move back to Melbourne, where her family live. On 7th July, the Mother told the Father that she had in fact been made redundant and she did wish to go to live in Melbourne with the child. The retrenchment took effect on 19th July 2002.
The Father commenced proceedings in this Court by means of an Application filed on 21st July. The wife filed her Response on
2nd September 2002. The Application was returnable before the Court on 2nd September 2002 and, on that date, interim orders were made by consent. The Minute of Consent Orders provided for an interim Order restraining the Mother from removing the child from the area within a radius of forty kilometres from the General Post Office at Sydney without the written consent of the Father.
Evidence
The Father gave evidence by affidavit and was cross-examined by
Mr Givney, Counsel for the Mother. He submitted two affidavits, sworn on 10th July and 19th November 2002. His earlier affidavit set out the history of the relationship between the parties and described how he had commenced a relationship with his present wife about six months afters he had separated from the Mother. He described how contact had been extended about eighteen months previously at the Mother’s request so that alternate weekend contact went from Thursday evening through to the following Monday morning. He also said that he had overnight contact on the Thursday of the non-contact week.
The Father set out various conversations he had with the Mother, which showed an increasing disagreement between the parties, with the mother expressing a desire to move to Melbourne and the Father expressing his concern about the resultant reduction of contact with K.
The Father also set out in his affidavit that he is a member of the Catholic faith although the Mother is not. His current wife is a Catholic, and he expressed his desire that K should attend a Catholic school. She has been baptised a Catholic, with the Mother’s consent.
In his later affidavit the Father set out details of increasingly acrimonious discussions between the parties. The Father also gave verbatim accounts of conversations with the child, indicating her awareness of the dispute between her parents about the Mother’s desire to move to Melbourne.
The acrimony between the parties led to an incident on Sunday
5th September when the Father was returning the child to the Mother after contact and an argument broke out between the parties. This led to the Mother using abusive and offensive language to the Father and then she struck him and pushed him out the door. The Father telephoned his solicitor and reported the incident to the Police, who apparently took no action.
The Father said that the Mother rang him on 18th September and referred to the incident, saying “I didn’t mean to push you out the door on Sunday”. She went on to say that she had had a hormone injection which was wearing off and could affect her hormone balance, thereby explaining her action. He went to recount a conversation where the Mother expressed frustration at the situation, saying “What I was trying to explain to you was why I wanted to go to Melbourne, I will be able to give K a place with a backyard and probably buy a place, why are you being so inconsiderate (?)”. The Father replied “I only have K’s best interests at heart”. She then went to say “So do I, if the Judge says we have to stay in Sydney I’ll have to move further out which will mean you won’t be able to pick her up before 6 p.m.”.[i]
The affidavit also referred to discussions between the parties concerning payment of Child Support by the Father. The mother indicated that she was working on a temporary basis and that money was an issue for her.
The Father also set out that the Mother told him on 29th September that she had changed her surname back to her maiden name of S. The Mother told him that K was also asking for a new name, and said that she might refer to herself as “K Fairy, K F, K Sparkles”.[ii] The Father sought to remind the Mother that she had previously said that she would retain the name of F so as not to confuse K, and warned her that K should understand that her surname is F. Later, the child did refer to herself as both “K Fairy” and “K S”. The Father and his wife hastened to assure her that her surname was F.
The Father raised concerns in his affidavit that his contact with the child would be seriously reduced if she were to move to Melbourne. He stated that he is entitled to only four weeks per year by way of leave, of which part must be taken between 20th December and 6th January. His wife is also entitled to four weeks leave per year, part of which must be taken between Christmas Eve and 2nd January. Whilst he specifically referred to this year, it is presumed that similar arrangements would apply each year.
The Father also mentioned that he and his current wife wish to have children of their own, and if K were to live in Melbourne this would be “an obstacle” to building up a relationship. In his evidence in chief the Father told the Court that his present wife, L-J F, has now found out that she is in fact eight weeks pregnant.
The Father was extensively cross-examined by Mr Givney on behalf of the Mother. He described how he had been retrenched from his previous employment and had used the retrenchment money to buy a town house in which he and his wife now reside.
The Father said that he saw his parents every six to eight weeks, and K saw her paternal grandparents regularly. They live about three and a half hours drive away.
The Father said he was aware that the Mother has a close relationship with her twin sister, who resides in Melbourne. He initially denied that he had ever discussed with the Mother her desire to move to Melbourne before the matter was raised in June 2002, but was shown a copy of a letter written by him to the Mother dated 11th November 1999. He did not deny that his signature was on the document but did not recall writing the letter. The letter was tendered (as Exhibit 2) and said (amongst other things):
“Should you move with K to Melbourne this will obviously reduce my access and increase the cost of my access due to the necessity of travelling to Melbourne…
Having given the matter serious consideration I would reluctantly agree with your move to Melbourne provided you maintain flexibility with access..”.
It should be made clear that the concession made in a letter written over three years ago cannot be regarded as binding on the Father. The Court must consider the matter on the basis of all the evidence and a proper examination of the parties’ proposals.
Mr Givney asked the Father about his proposals for contact if his application to restrain the Mother from moving to Melbourne were successful. His proposal is effectively a shared care arrangement, with the child spending half of each fortnight and half of each school holiday period with him. When asked if he thought there would be an adjustment period for the child if his proposal were put into place, the father replied “Just as she misses me, she may miss her mother as well.” He admitted that he personally did not know any parents who shared the care of a child half each.
The father spoke of the fact that his present employment requires him to travel to Melbourne from time to time. He said that his visits were often just for the day, but sometimes were overnight. Mostly, he decides when he has to go to Melbourne, but there are occasions when he is directed to go.
The Father was asked if he recalled the occasion when the child said her name was K S and his wife corrected her. He said that he believed it was a reasonable thing to do. His wife and K have a strong relationship.
The Father’s present wife, L-J F gave evidence. In her affidavit sworn on 19th November 2002 she deposed to having known the Father for six years and becoming romantically involved with him in December 1998. She said she first met the child K in January 1999 and said she had a “very good and solid relationship.”[iii]
She, too, recounted conversations with the child about moving to Melbourne. In paragraph 12 of her affidavit she describes this conversation, initiated by the child:
“K: ‘why won’t you let us move to Melbourne (?)’
Applicant (ie the Father): ‘If you go to Melbourne you won’t see as much of daddy and L[4] and we would miss you very much, would you miss us?’
K: ‘Yes’.
Applicant: ‘You won’t see N and P, N D[5], A and J[6],G and R[7]’
I said ‘K, D and G and everyone else who love you very much, that wouldn’t be good would it’
K said ‘no’.
I said ‘Melbourne is a long, long way away and we wouldn’t see each other as much. We couldn’t drive and pick you from school. We could only come and see you on a plane and that costs lots of money. That wouldn’t be good, would it’.
[4] L-J F
[5] Mrs F’s mother
[6] Mrs F’s niece and nephew
[7] Mrs F’s brother and his wife
K said ‘No’.”
This conversation took place on 15th September 2002, when the child was aged 4 years and 7 months. In my view, this heavy-handed ‘lobbying’ of the child is to be deprecated, as it would be likely to place the child under a considerable amount of pressure. It appears, from paragraph 15 of Mrs F’s affidavit, that some counter-lobbying may have taken place, as she describes a conversation with the child on 20th September:
“K said ‘mummy said it’s time to be nice to each other and you should let us go to Melbourne’.
I said ‘Melbourne is a long way away darling and we wouldn’t see very much of you’.”
Exchanges of this nature are not in the best interests of the child. She is not yet five years of age, and should not be subjected to that sort of pressure from feuding adults.
Mrs F refers in her affidavit to her interaction with the child. She also describes her fortnightly visits from her mother and her frequent contact with her brother and his family. There is evidence that K has a good relationship with all of these people. K also has contact with her paternal grandparents who reside in Forster.
Mrs F expressed in her affidavit a love for the child and her belief that she and the child have a “very special relationship”. She also referred to her concerns about the likelihood that she would not be able to take holidays to coincide with the Mother’s proposed arrangements, “Which means the applicant, K and I would never be able to spend time together as a family the way we do now.”[iv]
It is difficult to see how the evidence as it now stands would support that proposition. The very fact that Mrs F is expecting a child will mean that she will be spending a considerable time away from work, so she will be at home and able to spend time with K.
In cross-examination by Mr Givney, Mrs F told the Court that her mother was currently staying with her and Mr F, and had previously visited her a fortnight ago. Her mother stays for two nights at a time and Mrs F enjoys the visits. Mrs F also said that if K is to live in Melbourne she would want her to feel happy and secure wherever she is.
The Father relied on affidavits by his father, D T F, his mother, J M F, his uncle, J E F, and his mother in law, D M S. The Mother’s counsel did not require any of them to give oral evidence.
The paternal grandparents deposed in their affidavits to having a close and loving relationship with their son and his daughter. They see them between eight and ten times a year. They reside in Forster. Mr F senior suffers from fibrosis of the lungs, which causes shortness of breath, and makes it difficult for him to fly in an aircraft. Mr F stated that if he were to fly in the pressurised cabin of an aircraft it would potentially put his life at risk.
The Father’s uncle, Mr J F, is a Catholic priest, although he had been a Stipendiary Magistrate until about 1978. He deposed to having a strong relationship with both his nephew and the child, and believed that he would usually see her about six or seven times a year.
D M S is the mother of L-J F. She lives at E Beach, on the C C of New South Wales. She states in her affidavit that she sees the Father and her daughter fortnightly, and sees the child about once or twice a month. She describes having a good relationship with the child, and observing that strong relationship between the child and Mr and Mrs F. She expressed a concern about the thought of the child moving to Melbourne.
Having observed the Father and his wife in the witness box, I am satisfied that they both attempted to give evidence truthfully and accurately. The father was forthright in his answers, at times making concessions against interest, at other times admitting that he either did not know or could not remember. I am satisfied that when he said he could not remember a conversation or writing the latter that is exhibit 2 in 1999 he was telling the truth. Mrs L-J F impressed as a kind person with a genuine affection for K. She will no doubt be a loving mother to her own child when that child is born next year.
The Mother, who has now reverted to her maiden surname of S, gave evidence by affidavit and was cross-examined. She also relied on affidavits by her sister, Mrs C B, her mother, DS, and her brother, S S. They were all briefly cross-examined by Mr Stewart, counsel for the Father.
In her affidavit, the Mother denied that the father had been having overnight contact with the child for as long as he claimed, but agreed that it had been taking place for some time. She said that she had told the Father that she wanted to go to Melbourne because, after her mother and her sister C had visited her in Sydney, she realised how much she missed them.
She deposed to the fact that she has always been the child’s primary carer. The Father was away from time to time on business trips. She stated that she was retrenched from her work and does not own any real estate. She is living in rented accommodation. She has about $40,000.00 in a managed fund, but does not have sufficient money to buy a house in the Sydney area, being reasonably close to the centre of Sydney.
Her intention, when she moves to Melbourne, would be to live initially with her parents in the suburb of B West. The house has a bedroom available for K and herself. Her sister J lives with her partner in a granny flat out the back of the property. Her brother S and his wife and children live about two minutes walk away. There is a primary school only about 100 metres away from her parents’ house.
Once she has relocated, the Mother then plans to move to rented accommodation in the suburb B North, where her twin sister C resides with her husband and two children. She states that there is a primary school and a high school within walking distance if her sister’s house. She deposes to having a very strong relationship with her sister C, who is her identical twin. The Mother intends to enrol the child at the O O Primary School in B North, and her sister will walk the child to school and collect her. The mother intends to look for work.
The Mother deposes to the fact that her parents and her brother and sisters all live in the one general area and that they will provide her and her daughter with a lot of support. The child will be able to spend time with her cousins.
In oral evidence in chief, the mother stated that she would be prepared to suggest that Christmas could be alternated between the Father and herself. Since the separation, the Mother has always taken K to Melbourne to spend Christmas with her family. The Mother said that she had been searching the Internet to find out information about rental properties in the area. She has made some inquiries about the cost of purchasing property in the B area.
She also said that she had made inquiries about out of hours care for the child in the S area, as that is where she would have to go to school if she were not to relocate to Melbourne. The Mother tendered a letter which she had just received from the Co-ordinator of S Outside School Hours Care, stating that the centre did not have a place available for the child. This letter was admitted into evidence as Exhibit 5.
In cross-examination by Mr Stewart, for the Father, the Mother conceded that the child was entitled to know her father and entitled to bond with him. When she was retrenched she got around to changing her name back to S, which was her maiden name.
The Mother was clearly of the view that the purpose of the proceedings was to discuss whether she and the child were going to Melbourne or not. She had told Mr Givney in her evidence in chief if the Court decided that K were to remain in Sydney, she would have to stay in Sydney. She was cross-examined very strongly on her motives for going to Melbourne. She denied that her gong to Melbourne was intended to be “the ultimate slap in the face” for the Father. She said that her reasons for going were that she missed her mother and her twin sister, and her retrenchment was, in effect, the catalyst (not her words) for planning to relocate. The retrenchment package gave her the financial wherewithal to make the move.
The Mother conceded that not seeing her father regularly would be the unfortunate side effect of a move to Melbourne for K, but said that her concern was for her child. She said that she realised how much she needed her mother and sister to cope. Again, she was asked if her application failed, would she stay in Sydney, and she replied “Yes, but not by choice”.
The Mother said that she did not think not seeing her father as often would be a “devastating loss” for K, but certainly felt that K would miss him. When Mr Stewart put to her very strongly that she was using K living with her as a weapon, she replied in an emotional tone “I’m not!”
Mr Stewart asked the Mother about the fact that she had had counselling prior to her marriage to the Father. She said that she was living in Sydney, away from her sister, and she had some concerns about her relationship with the Father, due to his drinking alcohol and his smoking marijuana. Her own father has apparently had a drinking problem for some years. The Mother denied that she had a new partner in Melbourne, and reiterated that her desire was to return to Melbourne where her support network is located.
The Mother was of the view that the Father’s attitude to her changed earlier this year after he married his present wife. She said that he became more antagonistic towards her. She was asked about her attitude to the fact that the Father and Mrs F were going to have a child of their own. She said that she had no difficulties with K forming a relationship with the new child, saying, “If L-J is going to be at home being a full-time mum, K will be there” (with her and the baby).
Having observed the Mother’s demeanour in the witness box, I am of the view that she was giving a truthful account of her wish to relocate to Melbourne. She denies that her actions are designed to exact revenge on her former husband, and she appeared to me to be telling the truth. It certainly appears that her motivation is from a sincere belief that what she wants to do is move back to her family so that they can provide emotional and physical support for her and the child.
The Mother’s twin sister, C E B, gave evidence. She had travelled up from Melbourne to give evidence in this case. Her affidavit evidence is to the effect that she is the Mother’s identical sister and they are very close to each other. She is married with two small children, and intends to remain at home as a “’stay at home mum’ for at least a few more years”[v]. She described her commitment to assisting her sister care for K, especially of the Mother has to work. She said that if her sister moved to live near her “There would be no need for K to go to any before or after school care as I would be available to pick her up and deliver her. Similarly if something happened at school for example K was sick or whatever, I could be there in a couple of minutes.”[vi]
Mr Stewart of counsel cross-examined Mrs B very briefly. She confirmed her strong commitment to assisting her sister in the care of K. She said she had a good relationship with her father, and she was aware that her sister had attended counselling some years ago.
I found Mrs B to be an impressive witness. I am satisfied that she has a genuine desire to support her sister, and she gave her evidence frankly and without guile. After she had finished her evidence, she sat in the courtroom next to her sister, who was at times teary, having apparently found her cross-examination stressful (which was not surprising). C B comforted her sister, holding her hand and at times putting her arm around her shoulders. To my observation, the Mother appeared to respond positively to her sister’s support.
The Mother’s mother, D S, gave evidence by affidavit and was cross-examined by telephone. Her affidavit set out details of her home, which has 5 bedrooms, and of the amenities of the local area. She was cross-examined by Mr Stewart, who asked why her husband was not on affidavit. She said that she and he had not thought it necessary. She said that she would provide accommodation for her daughter and granddaughter for a year or more if need be. She reiterated her wish to provide whatever assistance she could when her daughter starts work and K starts attending school.
The Mother’s brother, S S, said in his affidavit that he and his wife have two young daughters below school age. He resides only about 100 metres from his parents’ home. His wife is a “stay at home full-time mother” who would be able to offer her time during the day “as well as much love”.[vii] His offer was to provide “stability, love and support” for his sister and K.
In brief cross-examination (again by telephone), Mr S reiterated the offer of support and his willingness to be involved that he made in his affidavit.
I did not have the opportunity to observe the demeanour of the maternal grandmother or of the Mother’s brother in the witness box, as their evidence was taken by telephone. I would comment that the telephone facilities available to the Court in Parramatta are of a very high quality, and neither counsel nor I had any difficulty being heard or understood. Bearing in mind the limitations in involved in taking evidence in this way, the two witnesses gave the impression that they were direct and uncomplicated people who were giving their evidence truthfully.
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 court 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 situation up to now has been that the child has resided with her mother since birth. The parties separated when the child was a baby, and whilst they disagree as to exactly when overnight contact started, it was certainly when the child was quite young. The Father’s proposal is that the Mother should remain living in Sydney but that the arrangements should change, so that the parties would share the care of the child on an equal basis.
The Mother’s proposal is that she should relocate to Melbourne, living initially with her parents, and then living near to her twin sister. Her intention is that the Father would have contact during all of the mid-year school holidays, for a period of weeks during the long Christmas/January school holidays with Christmas being shared, that there should be contact at other times, including when the Father is required to visit Melbourne for his work.
Of course, the Court is not bound by those two proposals. It is permissible to look at other arrangements, and I propose to conduct a brief review of realistic alternative proposals. The most obvious, of course, would be the “no change” scenario, where the Mother is not permitted to relocate the child’s residence to Melbourne but the Court does not make Orders as sought by the Father. 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.
One possibility is that the Mother could move to Melbourne and the child could reside with the Father and his wife. The Father has not put this forward as an option, and the Mother has made it clear that if K is not allowed to move to Melbourne, then she will be obliged to remain living in Sydney. In the light of this evidence, I am satisfied that this is not a realistic option, and I do not propose to devote any time to considering it.
Similarly, the Mother could relocate to Melbourne with the child, and the Father could decide to move to Melbourne himself. This is not a realistic option, either, on the evidence before me. Neither party has suggested it, even as a ‘fall-back’ position and the disadvantages are obvious. The Father’s work is in Sydney, his wife will have to give up work to care for the new child and they own a home in Sydney. It would be economically unrealistic for the Father to contemplate a move at this stage, and I do not propose to waste time considering something that is not likely to happen.
In short, the only proposals that should be considered are those argued by the parties themselves and the “no change” scenario. These proposals must be considered in the light of the matters in s. 68F(2).
S.68F(2)(a) – any wishes expressed by the child. The child was born on 10th February 1998. Little weight should be given to her wishes, because she is not yet five years old.
S.68F(2)(b) – the relationship of the child with each parent other persons. I am satisfied that this child has a good, strong, loving relationship with each parent. She also appears to have a good relationship with L-J F and her maternal aunts. She has a half-sibling to come, and the Mother has given evidence that she sees no difficulty in encouraging this relationship when it occurs. This factor is a constant across each of the three proposals under consideration.
S.68F(2)(c) – the likely effect of any change in the child’s circumstances. There is no question that a move to Melbourne would mean that the child would see her father less frequently. If the Mother were to stay in Sydney, the Father’s proposal would see her arrangements change from living with her mother to living with each parent. This would no doubt have some effect on her and require her to make an adjustment. I am dubious that a change to those arrangements, combined with going to school for the first time and living in a home where her stepmother was going to become a mother for the first time, would necessarily be something that this child could take in her stride, although her father believes that she is an intelligent little girl and could cope. I am inclined to the view that she might need more of her mother’s time, not less. The “no change” scenario would see the balance of time between the parents remain unchanged, provided that the Mother were able to remain living where she is now. If she has to move, as she fears, there would be a change anyway. The status quo is that the child has lived with her mother since birth, and has provided a suitable environment for the child (Jurss (1976) FLC 90-041, Maday (1985) 10 Fam LR 357; FLC 91-636)
The positive effects of the Father’s proposal are that the child would see more of him and Mrs F, and probably more of the Father’s extended family. The positive effects of the Mother’s proposal are that the child would be part of a supportive family network on her mother’s side, that she would be able to be cared for by her Aunt C rather than being in out of hours care, that she would be able to see her cousins on a daily basis. The positive effect of the “no change” scenario is that the child would spend as much time with her mother as she does now, provided that the Mother does not have to move.
S.68F(2)(d) – the practical difficulty and expense of having contact. The Father’s proposal seems to have no practical difficulties, provided that the Mother does not have to move, except for the fact that the relationship between the parties, now strained, would almost certainly deteriorate. The Mother’s proposal would involve the child living in Melbourne, which would require travel and expense. There do not seem to be any obvious practical difficulties in the “no change” scenario, as long there is no change (except for the deterioration in the parties’ relationship).
S.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 child’s physical, emotional and intellectual needs. The Father is assisted strongly by his wife, although her attention will necessarily be directed towards the new baby. The Mother is without support in Sydney, but would have strong support in Melbourne, particularly from her sister C.
S.68f(2)(f) – the child’s maturity, sex and background. The child is a little girl not yet 5 years old. There is no presumption that little girls should live with their mothers, and K’s stepmother appears to have a good relationship with her. This factor is a constant across all proposals.
S.68F(2)(g), (j) – the need to protect the child from physical or psychological harm, family violence etc. There is no apprehended violence order in force, and no history of violence. There has been one unfortunate incident on 5th September 2002, where there was an altercation between the parties, which involved physical violence by the Mother. It seems clear on all the evidence that this was an uncharacteristic ‘one-off’ event that is unlikely to be repeated. This factor is a constant across all proposals.
S.68F(2)(h) – Attitudes to parenting. Each parent seems to be child-focussed and mature, although the “lobbying” to which I referred in paragraphs 29 through to 31 is a cause of concern. I note that this evidence appears in chief in the affidavit of L-J F, and it appears that the Father and Mrs F were, at the very least, thoughtless inputting the child under the pressure that they did. At the same time there is evidence of the Mother revealing her frustration and, on one occasion, the Father reports her as saying that he would never have contact with the child at Christmas time. This has since been remedied in the Mother’s case.
The Father refers to the Mother taking the child to Melbourne in October without his consent, contrary to the Interim Order made by consent on 2nd September 2002. I am not asked to deal with an allegation of a contravention of a parenting Order, and it may be that the Mother misunderstood what her obligations were, but there arises a suggestion that the Mother was prepared to act in defiance of an order when it suited her.
An Order least likely to lead to further proceedings. There needs to be finality to proceedings. The parties were able to co-operate about their child until this year. Their relationship is now strained, and any of the three proposals could see difficulties arising with contact orders in the future. I am inclined to the view, however, that if the Mother were able to relocate to Melbourne and live near her parents and siblings, which I am satisfied that she desperately wishes to do, she would be much happier and more settled. If she were under less pressure, she would be more likely to adopt a flexible approach to contact.
Conclusions
Relocation proceedings seem to be more frequent than ever before, and it was only through the efforts of counsel that these proceedings were contained in the two days allotted to them. Had there been a Family report, I am sure the proceedings would have taken longer.
This case has been brought about because each parent has a strong and loving and relationship with the child K. The father is very concerned at a reduction in his contact with the child. The Mother wishes to return to Melbourne where her extended family can support her. The events of the year 2002 have clearly indicated to her that there is little left for her in Sydney. Her former husband has remarried; there is now a new Mrs F. She has been retrenched from her job. I am satisfied that these events have shaken her and caused her to reconsider her life. She says that her former husband became antagonistic towards her after he remarried. She has used the occasion to revert to her maiden name.
I am not persuaded that the incident of the child calling herself “K S” is anything for the Father to worry about. There is no application before the Court that this child should be called by any other surname than F, and the Mother said in evidence that the child was enrolled at school under that name. I accept the Mother’s explanation that the child was fascinated by the fact that the Mother had a new name, and decided that she wanted one too. After all, there is evidence that she was calling herself “K Fairy” at one stage. She is only four years old.
It is easy to see how these factors would indicate to the Mother that the best thing for her was to return to Melbourne where she had the support of her family. What the Court has to decide, however is whether this relocation is in the best interests of the child. Little attention should be paid to the “Catch 22” argument of whether the Mother would stay if she were not permitted to relocate. Quite clearly, the Mother in this case would say that she would stay in Sydney if she were not permitted to relocate to Melbourne. It is not permissible to say that the Mother could not really want to relocate if she says she would not go without her child; a person seeking to relocate with a child does not have to show “compelling reasons” to go. Only that it would be in the child’s best interests to do so.
The Court is not bound to accept either proposal. There are disadvantages in each. There are disadvantages in the “no change” scenario, also. I bear in mind that the place to which the Mother wishes to go is Melbourne, not Port Hedland or the Cape York Peninsula.
I note that the Father’s work requires him to travel to Melbourne not infrequently, and this situation is likely to continue.
It is common knowledge that there are many airline flights between Sydney and Melbourne every day; it is the busiest air route in Australia. It is common knowledge that there are also train and bus services between Sydney and Melbourne, so the paternal grandfather is not precluded from travelling to Melbourne just because he has difficulty travelling in aircraft. There are easy telephone connections between Sydney and Melbourne. It is easy very simple for telephone contact to take place. There is evidence before me that the parties communicated regularly by e-mail; there is no reason why this cannot happen again.
The child is too young to travel unaccompanied in an aircraft at this stage, but she will be 5 years old in February. She has flown before. If she moves to Melbourne, her mother should accompany her for the first few times on an aircraft.
One factor that impresses me most strongly is the availability of the Mother’s extended family as a support network. The child will commence school next year, wherever she is living. In Melbourne, she will be able to go to school in an area where she has grandparents, aunts, uncles and cousins. Her aunt C, her mother’s identical twin sister, impressed me as a kind and loving person who would be able to look after K in her home before and after school, without the need for the child to go to out of hours care whilst the mother works. Having her aunt nearby on a daily basis is almost as good as having her mother available to her. It is the strength of this family that persuades me that relocating to Melbourne will be in this child’s best interests.
It is for all of these reasons that I consider that the mother should be permitted to relocate with the child to Melbourne.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 22 December 2002
[i] Father’s affidavit 19.11.2002, paragraph 9
[ii] Affidavit 19.11.2002, paragraph 10
[iii] Affidavit of L-J F sworn 19.11.2002, paragraph 7.
[iv] Paragraph 23 of Mrs F’s affidavit
[v] Affidavit of C Elizabeth B sworn 27.11.2002, paragraph 5.
[vi] Mrs B’s affidavit, paragraph 7.
[vii] Affidavits of S S sworn 27 November 2002 paragraph 4.
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