F and H
[2002] FMCAfam 175
•24 June 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| F & H | [2002] FMCA fam175 |
| FAMILY LAW – Children – relocation – compelling reasons not required, but good reasons are required – child’s best interests. B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755 |
| Applicant: | C A F |
| Respondent: | M H |
| File No: | HBM2523 of 2001 |
| Delivered on: | 24 June 2002 |
| Delivered at: | Devonport |
| Hearing Dates: | 17 & 18 June 2002 |
| Judgment of: | Roberts FM |
REPRESENTATION
| Counsel for the Applicant: | Mr. McGuire with Mr. Edwards |
| Solicitors for the Applicant: | Temple-Smith & Barclay DX 70307 DEVONPORT TAS 7310 |
| Counsel for the Respondent: | Mr. Crampton |
| Solicitors for the Respondent: | Levis Stace & Cooper DX 70305 DEVONPORT TAS 7310 |
ORDERS
That the child A E F born 25th May 1999 (“the child”) reside with C A F (“the Father”) from 5.00 p.m. on Wednesday until 5.00 p.m. on Saturday in each week.
That the child reside with M H (“the Mother”) at all other times.
That in the event that Christmas Day or the child’s birthday falls upon a Thursday or Friday in any year the Mother will have contact with the child from 11.00 a.m. until 3.00 p.m. on that particular day.
That in the event that Christmas Day or the child’s birthday falls upon a Saturday in any year the child will reside with the Mother from 11.00 a.m. on that day.
That in the event that Christmas Day or the child’s birthday falls upon a Sunday, Monday or Tuesday in any year the Father will have contact with the child from 11.00 a.m. until 3.00 p.m. on that particular day.
That in the event that Christmas Day or the child’s birthday falls upon a Wednesday in any year the child will reside with the Father from 11.00 a.m. on that day.
That the Father have contact with the child from 10.00 a.m. until 5.00 p.m. on Father’s Day in any year.
That in order to give effect to these Orders the Father is to collect the child from the residence of the Mother and return him to that residence at the start of any period during which the child is to reside or have contact with the Father.
That neither party remove the child from the State of Tasmania without the prior written consent of the other party or an order of a Court of competent jurisdiction.
That the Mother’s Application to relocate the residence of the child from the North West Coast of Tasmania be and is hereby dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DEVONPORT |
HBM2523 of 2001
| C A F |
Applicant
And
| M H |
Respondent
REASONS FOR JUDGMENT
Background and applications
The Applicant, C A F (“the Father”) is aged thirty-four years and the Respondent, M H (“the Mother”) is aged twenty-nine years. They commenced a relationship in 1998 and their child, A E F (“the child”) was born on 25th May 1999. He is just three years old.
The parties agree that they did not live together and it is clear that for some time the child lived mainly with the Mother.
The Father filed an Application seeking contact orders in the Family Court of Australia on 24th January 2000. He filed an Amended Application on 25th May 2001. In that Application he seeks orders that the child reside with him and that the Mother have contact each second weekend from Friday at 4.00 p.m. until Sunday at 4.00 p.m., and at such other times as may be agreed between the parties from time to time. He also seeks an order that neither party remove the child from Tasmania without the express written consent of the other party or an order of the Court.
The Mother filed a Response on 7th March 2000. She sought a residence order in relation to the child and an order permitting her to relocate to Victoria with the child on the basis that the Father have contact “as is agreed”. As an alternative (presumably to relocation), the Mother sought an order that the Father have contact with the child every second weekend from Saturday at 10.00 a.m. until Sunday at 5.00 p.m.
The Application had a fairly long history in the Family Court of Australia and was eventually transferred to this Court at a pre-hearing conference on 23rd May 2001.
When the matter came on before this Court in June 2001 a Family Report was ordered. That Family Report was released to the parties on 1st October 2001.
The author of that Family Report recommended that the Court seek a psychiatric assessment of the Mother. That caused her to obtain a report from a psychiatrist, which in turn resulted in a further Family Report being ordered. That second Family Report was released on
12th June 2002.
The Mother filed an Amended Response on 28th May 2002. Essentially, in that document the amended orders sought by the Mother are that she be permitted to relocate with the child to Hobart and that the Father have contact each second weekend from Friday at 5.00 p.m. until Sunday at 5.00 p.m. with him being responsible for collecting and returning the child.
At the time of the hearing, the Mother’s proposal was that the Father have contact for four days once per month and it appeared that she was willing to share in the transport arrangements.
The law
Section 60B of the Family Law Act 1975 (“the Act”) states:
60B(1) [Object of Part] The object of this Part 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.
60B(2) [Principles underlying object] The principles underlying these objects are that, except when it is or would be contrary to a 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.
Section 65E of the Act provides that: “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
The Family Law Act gives very clear guidance to the Court in relation to what must be considered when determining what is in a child’s best interests. Subsection 68F(2) reads as follows:
68F(2) The court must consider:
(a) any wishes expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;
(b) the nature of the relationship of the child with each of the child's parents and with other persons;
(c) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person, with whom he or she has been living;
(d) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(e) the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;
(f) the child's maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant;
(g) the need to protect the child from physical or psychological harm caused, or that may be caused, by:
(i) being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or
(ii) being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person;
(h) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(i) any family violence involving the child or a member of the child's family;
(j) any family violence order that applies to the child or a member of the child's family;
(k) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(l) any other fact or circumstance that the court thinks is relevant.
In B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755 the Full Court of the Family Court of Australia (consisting of Nicholson CJ, Fogarty and Lindenmayer JJ) considered the interrelationship of sections 60B, 65E and 68F. They said:
“Section 65E is the fundamental section in relevant proceedings under Pt VII. It makes it clear that the best interests of children is the paramount consideration. The interrelationship of s 60B, 65E and 68F was the essential issue in this appeal. It is also central to the correct approach to be adopted in all cases under Pt VII where the best interests of the children is the paramount consideration.
A court which is determining issues under Pt VII starts from that essential premise and it remains the final determinant. In that process the Court is required to have regard to the provisions contained in s 68F(2) and s 60B.
Section 68F(2) makes it clear that the Court must consider the various matters set out in paras (a)-(l). In stating "any other fact or circumstance" para (l) underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.”
Following the High Court decision in AMS v AIF; AIF v AMS (1999) FLC ¶92-852 and the decision of the Full Court of the Family Court that followed it A v A; Relocation Approach (2000) FLC ¶92-035, it is clear that in determining an application to relocate the residence of a child, the following principles apply:
·The best interests of the child remains the paramount consideration, but it is not the only consideration.
·The court cannot require the applicant to demonstrate “compelling reasons'' for the relocation.
·It is necessary for a court to evaluate each of the proposals advanced by the parties.
·A court cannot proceed to determine the issues in a way that separates the issue of relocation from that of residence.
·The evaluation of the competing proposals must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.
·The Court must follow the directions set out in sections 60B and 68F of the Family Law Act 1975. The wording of subsection 68F(2) requires the Court to consider the various matters set out in that subsection.
·The object and principles in section 60B also provide guidance to the Court.
Evidence and findings
I propose to review the evidence in the light of the relevant parts of section 68F(2).
It is clear that if the child had expressed any wishes in this matter, they would not be relevant because of his tender years.
The nature of the relationship of the child with each of the parties and with other persons is a relevant factor.
In both her reports, the reporting counsellor shows clearly that the child has a good relationship with both parents. I shall also refer to this below when considering other section 68F(2) factors.
However, it seems to me that there is at least one more person on the North West Coast of Tasmania with whom the child has a warm and loving relationship. That person is Mrs. S, (“Mrs. S.”) with whom the Mother and child reside.
It is clear from the evidence of the Mother that, during the life of the child she has changed her residence on at least five occasions. However, she has returned to live with Mrs. S. on three of those occasions. She is currently living with her and it is clear that Mrs. S. is effectively her surrogate mother, and therefore a surrogate grandmother to the child. The child has a nickname for Mrs. S. which often includes the term “Nanna”.
The Mother, and therefore the child, are indeed fortunate that Mrs. S. has filled the role that she has. This is because the Mother has had a particularly unfortunate history in relation to her own family. She was sexually abused by her father and it appears that he was put in prison for that. (The Mother received $30,000.00 recently by way of criminal compensation, but no amount of money could possibly erase the emotional trauma that she must have suffered).
The Mother’s immediate family do not live in Tasmania, whereas the Father’s extended family live on the North West Coast of Tasmania. He says that he can promote the child’s relationship with that extended family.
The only affidavit filed by any member of his family was by his brother, but that related to a contravention of contact orders and does not provide any details of that brother’s relationship with the child. That brother was not cross-examined.
I need also to consider the likely effect of any changes in the child’s circumstances, which includes the likely effect on the child of any separation from either of his parents or any other person with whom he has been living. However, it seems clear to me that paragraph (c) of subsection 68F(2) is not limited to any separation from a parent or other person with whom the child has been living.
The Mother has had three different plans in relation to relocation. At first, she wished to move to Melbourne to be close to her family. She then changed her mind and indicated that she wished to move to Byron Bay to be close to a brother, because she could not face being close to her father in Melbourne. Her current view is that she and the child should be permitted to live in Hobart.
It is quite clear that her plan to move to Hobart (or anywhere else) has not been clearly thought out and it is significant that she has not filed any affidavit from either of the two adult friends with whom she wishes to live in Hobart.
Her plan is to live with a couple in Lindisfarne. She has known the male partner of that couple for some time through their common interest in music. The female partner of that couple has only been known to her for four or five months and on the pattern of her visits to Hobart, she could only have come into contact with her on four or five occasions. As I have said, it is significant that the Mother has not even filed an affidavit from either of those parties to indicate that they are willing to have her in their household.
The Mother also states that she will have a better opportunity in Hobart to obtain part-time employment. It would appear that such employment would be in the music industry or some form of unskilled work. However, she has not provided any evidence of her employment prospects in Hobart in those fields. Indeed, it appeared to me that she has better employment prospects in the music industry on the North West Coast of Tasmania because somebody who lives at Boat Harbour is to assist in the production of a CD and a further resident of the North West Coast has had dealings with her about promotion and sponsorship.
It seems to me that the only possible positive factor about a move to Hobart is that there are likely to be better medical facilities available to the Mother. It is clear from the evidence put forward on her behalf by a psychiatrist that she was suffering from Major Depression and Generalised Anxiety Disorder when she was seen by that psychiatrist on 6th March 2002. However, when she was seen on 10th May 2002 her condition had improved significantly. Indeed, in cross-examination, the psychiatrist indicated that she appeared not to be suffering from that major depression. That being so, it would seem that the Mother does not currently need to avail herself of the better medical facilities in Hobart and I am satisfied that she is receiving good and proper treatment from her General Practitioner (who also gave evidence) and the psychologist that she is seeing.
It was the evidence of both the psychiatrist and the general practitioner that the Mother has not taken the medication that was prescribed, but prefers to rely upon “alternative medicine”. Whatever the product is that she is taking appears to be either working or having no detrimental effect upon her.
It seems to me to be quite clear that the Mother’s reason for wishing to relocate is that which is set out in the reporting counsellor’s first report. The reason is that she wants to have a relationship with the Father but because that does not appear to be possible, it would be less painful for her to remove herself from him. Unfortunately, the consequence of that is to remove the child from his father, his surrogate grandmother on his mother’s side and his extended family on his father’s side.
In Bright and Bright v Bright and Mackley (1995) FLC ¶ 92-570 Treyvaud J said at p 81,658 that:
“it is very important for children's proper upbringing and development that they have contact with a much wider family than merely the parents of the relevant child. It is very important for a child to understand that he or she is part of a wider family, that he or she has grandparents on both sides, uncles, aunts and cousins, so that the child grows up feeling part of an extended and supportive family.”
Although it is quite clear from judicial authority that the Mother does not need to provide the Court with compelling reasons to relocate, it seems to me that her reasons should at least be good reasons and on that test she fails.
I am required to look at the capacity of each of the parents and any other person to provide for the needs of the child. In this regard, it seems to me that both parents are capable of providing well for the needs of the child.
The child lives generally with the Mother but the Father has contact each Tuesday from 8.15 a.m. until 5.00 p.m. and from 5.00 p.m. on Friday until 5.00 p.m. on Saturday in each week. As a consequence, the child spends roughly four and a half days per week with the Mother and two and a half days per week with the Father .
It is a credit to them both that all reports in relation to the child are good. In this regard, the reporting counsellor said the following:
“(The child) presented as a delightful three year old who seemed to have good small motor co-ordination. His speech was generally clear and he was very inquisitive. He had a good knowledge of colours, the alphabet and counting. (The child) was a little shy with strangers but seemed to settle fairly quickly in the presence of his parents.”
The General Practitioner stated that the child is a healthy, well developed child and the psychiatrist stated that he presented as “an alert, active, happy, well nourished, dark haired boy …”
It is very important to note that these very positive remarks about the child are being made in circumstances in which the child is spending approximately one third of his time with his father and two thirds of his time with his mother. In addition, he is living in the home of Mrs. S. and is having some contact with the father’s extended family.
In my view, the mother’s proposal to relocate to Hobart would diminish the child’s contact with the Father, Mrs. S. and the Father’s extended family and that is not in the child’s best interests.
Pursuant to paragraphs (g) and (i) of subsection 68F(2), I must consider violence and any harm that may come to the child. Although it is clear that there has been a stormy relationship between the parties that has resulted in some violence and property damage, I am not persuaded that the child has come to any harm, either physically or psychologically as a result of that.
I am required to have regard to the attitude to the child and to the responsibilities of parenthood that are demonstrated by each of the parties. In this regard, I find that both parties have not been perfect. However, I have yet to meet the perfect parent.
It is clear that in her desire to distance herself from the Father, the Mother has put her own interests before that of the child although I am sure that she did not ever consider the matter on that basis.
On the other hand, the Father has clearly put his own interests before that of the child in financial matters. In this regard, he pays the minimum Child Support of $5.00 per week to assist the Mother to look after the child for four and a half days per week. However, he receives $10.00 per week from Centrelink to look after the child for two and a half days per week and that amount is deducted from the Centrelink benefit received by the Mother. While there seems to be some inconsistency in the two Government policies, the result is that the Father appears to gain at the expense of the Mother for looking after the child for a shorter period per week.
Again, I do not believe that the Father has made any conscious decision in relation to this but he has not really considered how much it must cost the Mother to look after the child for the greater part of the week, nor has he made any recent effort to assist her over and above the required payment of $5.00 per week.
Having said these things, I am of the view that both parties are generally good, loving and capable parents and the child benefits greatly from that.
The Mother’s counsel endeavoured to persuade me that I should not be tempted to consider a shared care arrangement. However, I am of the view that this child has benefited greatly by both parents being significantly involved in his life and that should continue. I am very firmly of the view that the Mother should not be permitted to relocate the child’s residence to Hobart (or anywhere else away from the North West Coast of Tasmania). Further, particularly while the child is not attending school, both parents must be significantly involved in his life.
The child is only three years of age and it is well known that parental contact with young children should be regular and frequent for the benefit to be maximised. I am therefore of the view that the Father should continue to be involved in his son’s life for three days per week.
It is quite conceivable that such an arrangement could continue after the child starts school, because both parents could easily be involved in taking him to school and collecting him from there.
In my view, the Mother’s Application to relocate the residence of the child should be dismissed and the child should reside with the Father from Wednesday evening until Saturday evening and with the Mother at all other times.
I am mindful of the fact that such orders could cause difficulties on special days such as Christmas Day, the child’s birthday and Father’s Day. I shall therefore make orders to accommodate that.
Mother’s Day is not a complication because the child will be in the Mother’s household every Sunday anyway.
It seems appropriate to me that the Father collect the child from the Mother at the start of any particular period and return him to the Mother at the end of such period, and in this regard, I am mindful of the very worthwhile assistance being given to the Mother by Mrs. S.
It also seems appropriate to me to make an order that the child not removed from the State of Tasmania without the parent’s permission or an appropriate court order.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
Date: 24th June 2002
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