F and M - [2001] FMCAfam 303

FEDERAL MAGISTRATES COURT OF AUSTRALIA

F & M [2001] FMCA fam 303

FAMILY LAW– relocation – proposal to separate children – girl aged 11 years and boy aged 9 years – relocation permitted.

Applicant:

Respondent:

File No:

ZB 5026 of 2001

Delivered on:

22 November 2001

Delivered at:

Bundaberg

Hearing Date:

21 November 2001

Judgment of:

Baumann FM

REPRESENTATION

Solicitors for the Applicant:

Applicant appeared in person

Counsel for the Respondent:

Mr Westbrook of Counsel

Solicitors for Respondent:

RJ Suthers, Solicitors of Maryborough

Counsel for the Children’s Representative:

Mr Slack of Counsel

Solicitors for the Children’s Representative:

Legal Aid (Qld) of Brisbane

ORDERS

That the CHILDREN, C, born on 27 July 1990 and A, born on 17 June 1992 reside with the MOTHER and the MOTHER be entitled to relocate to the Northern Territory after 7 January 2002.
That the FATHER and the MOTHER share joint responsibility for the long term care welfare and development of the CHILDREN.
That the FATHER have contact with the CHILD, C as agreed between the parties.
That until the MOTHER relocates the FATHER shall have contact to the CHILD, A as per order (3) of the Order of Registrar Wilkie of 5 April 2001 and holiday as per the order of the Family Court of Australia of
13 September 1999.
That upon the MOTHER relocating and until the CHILD, A commences Secondary School, the FATHER is to have contact as agreed between the parties but at least:-
(a)the whole of the April and September gazetted Northern Territory school holidays;
(b)half of the June and Christmas gazetted Northern Territory school holidays and unless otherwise agreed, the first half in the year 2002 and even years thereafter and the second half in the year 2003 and odd years thereafter;
(c)the costs of return airline transport during this period for the CHILD, A from Darwin to Brisbane shall be borne as to two thirds by the MOTHER and one third by the FATHER,
That after the CHILD, A commences Secondary School, the FATHER’s contact to the CHILD shall be as agreed but at least half of the June and Christmas gazetted Northern Territory school holidays, with the costs of return airline transport to be shared equally.
That the FATHER may exercise contact with the CHILDREN in the Northern Territory upon the giving of one months notice to the MOTHER of his intention to exercise such contact.
That the FATHER have liberal telephone contact on at least on one occasion per week initiated by the FATHER.
That the MOTHER shall:-
(a)authorise any school attended by the CHILDREN to provide the FATHER with copies of all reports, school photographs and the like (at his cost) to enable him to be appraised of their educational development;
(b)authorise any health professional which the CHILD consults to provide such reasonable information to the FATHER;
(c)notify the FATHER of any serious health issues concerning the CHILDREN.
That the parties shall provide each other with details of their residential address and home telephone number and advise of any change thereto within 7 days of the such change.
Pursuant to S65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A to these orders.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BUNDABERG

ZB 5026 of 2001

Applicant

And

Respondent

REASONS FOR JUDGMENT

Introduction

I have before me an application by the mother, F, for permission to relocate to the Northern Territory with two children of the marriage, C, (11 years), and A (9 years), born 17 June 1992. The father, G C M, opposes the relocation.

The issues

The mother wishes to move to the Northern Territory, initially to Darwin for reasons which will become apparent. If the mother does move, then the father seeks residence of the child, A, accepting that at this stage, the child, C, should be permitted to relocate with the mother.

Competing proposals

As the mother has indicated, she will move to the Northern Territory whatever the decision of this court may be in respect of A, but subject to the offer of recruitment to her or her partner, K, in the Northern Territory Police Service. The two competing proposals are:
a)that the mother moves to Northern Territory with both children who would thereafter have holiday contact to their father, and;
b)the mother moves to the Northern Territory with C whilst A will remain in the Hervey Bay area residing with his father and having holiday contact to his mother and sister in the Northern Territory.

Background

The father is currently aged nearly 41 years and the mother is aged 37 years. The parties married in January 1987 and, as already indicated, there are two children of the relationship: C, now aged 11 years and A, now aged 9 years. There appears to have been during the year 1997 some difficulties in the relationship whereupon the mother obtained a domestic violence protection order against the father, however, reconciliation occurred until final separation ultimately occurred in March 1999 with the mother leaving the then family home and moving initially to Kingaroy where her parents were residing.
After a period of some three months where the father, it would appear, had little contact to the children, and as a result of proceedings commenced, an order was made in the Family Court of Australia that the children were to reside with the mother and to have contact with the father each alternate weekend and half of school holidays. That order was subsequently reviewed, it would seem, in approximately September 1999 where the nature of the contact was varied slightly. There was also an order that the children not reside outside the Hervey Bay area without the consent in writing of the father and issues of property settlement were resolved.
By this stage it is apparent in all the material, however, that the relationship between the parties had become very acrimonious. As a result of what the mother says was a misinterpretation of the consent order, the father was not able to exercise contact to the children in the first half of the Christmas school holidays 1999. This resulted in the father commencing proceedings for a recovery order which was refused by Registrar Coker, as he then was, and which subsequently meant that the father then brought an application for contravention.
Such application was dealt with by Jordan J on 24 March 2000 and his reasons for finding that the mother had contravened the order were before me. In essence, however, the effect of Jordan J's order was to make it clear what the nature of the order would be. Thereafter it would seem that the parties again entered into a consent order on undertakings not to denigrate or otherwise discuss these proceedings with the children and to continue to reside in the Hervey Bay area.
It would seem, however, that by late 2000, there were difficulties in the relationship evident between the father and C. I shall say more about this shortly, however, it is clear that C ceased having contact with her father in late 2000. As a result of the pending proceedings, Registrar Wilkie was confronted with this difficulty when the matter came before him on 5 April 2001. In a cautious approach which, in all the circumstances, was appropriate, Registrar Wilkie ordered that the order that C have contact to her father, except for telephone contact, be suspended and appointed a child's representative.
As a result of the appointment of a child's representative, we have had the benefit in these proceedings of reports from Mr Sean Moriarty. Ultimately the matter was transferred to this court in the hope that a decision could be made on the matter as a result of the pending recruitment as it was hoped by the wife and her partner at that time, into the Northern Territory Police Service. In fact, in July 2001, the mother filed an application in the pending proceedings seeking leave to relocate with the children to Darwin and as a result of what she believed to be the pending offer of recruitment.
These proceedings were listed for trial in Bundaberg and the matter proceeded to trial on Tuesday of this week. For completeness, it should be noted that the mother had formed a relationship with a Mr M K some months ago which resulted in or about September 2001 in a joiner of the families as one family unit. Mr K is the principal carer of three children of an earlier relationship. It should also be noted that the father has himself re-partnered with one, C W, and that relationship has now been progressing, it would seem on all the evidence, quite satisfactorily for an excess of two years.

Principles to be applied

In this case, as in all cases in which parenting orders are sought, I must regard the best interests of the children as the paramount consideration. In determining what are the children's best interests, I must consider the matters set out such as are relevant in section 68F(2). I'm also required to have regard to the object of Part VII of the Family Law Act which is to ensure that children receive adequate and prompt parenting to help them achieve their full potential and to ensure that parents fulfil their duties and meet their obligations and responsibilities concerning the care, welfare and development of their children. I must also have regard to the principles underlying these objects.
As this case involves a relocation decision, I was also quite properly directed to the principles set out in Re: A & A Relocation Approach (2000) FLC 93-035, and for the purposes of these extempore reasons, I do not propose to set out fully the nature of those principles, which I have sought to comply with in these reasons.

The evidence

The mother who represented herself quite ably gave evidence and was cross examined. She offered as a witness her partner, M K. The mother presented in the witness box as articulate and possessing firm views about the events of the past and the likely future. She is clearly a person who manages and carefully plans her daily life in a structured and disciplined way. Rules and policies are important to her. She appears to be a person who I would describe as being highly sensitive to criticism, easily becoming defensive and argumentative. She demonstrates a high intellect. At times I assessed her reactions as lacking some empathy.
Whilst not an unreasonable person, some of her past actions since separation show a lack of insight into their effect on the children. She finds it hard to accept any responsibility for the highly conflictual nature of the current relationship with the father and, whilst articulating a desire for improvement, she was unable to identify any personal strategies to achieve it. This is a little surprising when she has demonstrated an almost obsessive capacity to focus on goals and strive for them, such as her study and training for the Police Service, etcetera.
She is, I assess, clearly devoted to her children and somewhat protective of them and is anxious to move on with her career in the Police Service which she sees as offering for her and her family a better financial future and a happier and more challenging opportunity for her personally. The high levels of conflict made it difficult for her to make any real concessions about the parenting style of the father.
Mr K has been in a permanent live-in relationship with the mother for some two to three months arising from a slightly longer personal relationship. He has a strong desire to enter the Northern Territory Police Service and I assess it was this relationship and his desire which has been the catalyst of the mother's decision to alter her previous career path from her current qualifications as a hairdresser or primary school teaching to the Police Service.
Mr K has the current full-time care of his three children from his earlier marriage. The children, twins, N and N (aged 9) and M (aged 4) are clearly the most important factor in his life. He impressed me with his thoughtful and child focused responses. I assess him to be a very positive influence on the mother and capable of at least moderating some of her entrenched views and reactions. He is unlikely, in my view, to expose his children to a new family environment with the mother with all the identified stresses of the relocation unless he was confident of being able to deal with those issues for the children's benefit. I assess him to be more realistic than the mother in the likely issues to arise. I take comfort from the role he has played as a sole parent to the three children with apparent support from his former partner.
The father presented in the witness box as an equally intense person as the mother with fairly strong and rigid views about events of the past and causes of those events and what should happen in the future. It is not hard to see how this couple could easily erupt into a non compromising disagreement, firmly positioned as they are so often. He has been clearly hurt by the breakdown of the relationship with C. It is causing him a lot of pain. He places responsibility for this situation squarely at the feet of the mother. He likewise finds it hard to accept any responsibility for contributing to the high level of conflict that has been created.
The events since separation have hardened the father in such a way that he at times demonstrates, like the mother, a lack of insight and child focus. He is clearly devoted to his children, and in the circumstances where he has, with some frustration and sadness, had no recent opportunity to exhibit that devotion in ongoing contact to C. He has clearly focused all his energies upon his relationship with A.
This sense of loss of a relationship with C provides momentum for his opposition to the relocation by the mother holding, as he expresses, a fear that he will ultimately also lose his cherished and important bond with A. The father offered evidence from his partner of some two years, W, however she was not required for cross-examination. I have no reason to not accept her evidence as offered, namely that of a supportive partner to the father possessing, like Mr K, a capacity to be a little more objective about the current situation and with well developed parenting skills.
Perhaps reflective of the manner in which this matter has been litigated, the father also offered evidence by the former partner of Mr K, Ms K. This evidence was produced late in the proceedings and brought a late response by the mother through the evidence of her current partner. Little really turns on her evidence, she not being required for cross-examination other than Ms K has some concerns about Mr K relocating to the Northern Territory with their three children. That matter is not before me, however, I accept the confidence of Mr K that the issue between them is likely to be resolved as well founded based on what I was told about the history of their relationship post separation and the role he has played in his children's life.
A Mr M of the Northern Territory Public Service gave evidence by telephone. The purpose of his evidence was to try and ascertain with any degree of certainty the likelihood of the mother and her partner being offered positions in the intake recruitment for the next round for the Northern Territory Police Service. It is clear, it seems to me, from his evidence that one should have some confidence that the mother and Mr K will shortly receive an offer to take up a contract which is apparently a pre-condition to commencing recruitment into the Northern Territory Police Service as a probationary constable for some years, such recruitment likely to take place during the month of April 2002.
Mr Mangan provided the court with details of the likely rosters that probationary constables were likely to be required to work, together with details of the policies which might be applied for persons such as these where both are likely to be probationary constables. It seems to me that the best way to describe the policies are that they seem to be family friendly.
The child representative presented evidence from consultant social worker, Sean Moriarty in two reports dated 30 May 2001 and updated on 11 October 2002, as well as current school reports in the usual manner through the principal of the children's school, Mr S.
I should at this point record the great assistance I derived in this difficult matter from the presentation of the respective cases of the parties. There is really nothing more that Mr Westbrook for the father could have said or done to advance the position of his client and, as I have observed, the mother ably presented her evidence and cross examined with some focus. The role of a child representative is a very important one in matters such as these and Mr Slack distinguished himself with a very clear and neutral presentation of the evidence produced.
Mr Moriarty was subject to cross-examination. He acknowledged his initial report was more focused on the dilemma involving the breakdown of the relationship between C and her father, whilst his second report clearly examined more fully and completely the mother's proposal to relocate to the Northern Territory. This changed emphasis, coupled with his more direct exploration of current events and positions compelled him to change his initial recommendations questioning the viability of the mother's move to an ultimate view that it would be in the best interests of both C and A that they be permitted to relocate with the mother to the Northern Territory.
I do not propose to recite in this extempore judgment, passages from Mr Moriarty's report as it has been read by all the parties, and little of the background observations or assessments he made were the subject of criticism by the parties. I do, however, believe it is important and appropriate to record some of his oral testimony given of relevance to determination of these issues by me as follows:
a)His view was that both parents blamed the other for the regrettable level of conflict which exists resulting in no functional communication between them at all;
b)C's strong alignment with the mother at separation, coupled with her witnessing of conflict since separation has merely accelerated any potential polarisation of her views to full support of the mother;
c)C is an active and assertive child (described by both parents as a “drama queen”) whose current views about her father are firmly entrenched. It places the father in a "no win situation" and he should be given credit for the painful decision (seemingly also motivated by some personal counselling) not to press for C's separation from the mother if the mother goes to the Northern Territory;
d)Even though C has such strong views, A’s strong attachment to his father has not been contaminated by those views;
e)He strongly opines that the sibling relationship is fairly normal and that the children should not be split;
f)The mother has the capacity to act in a "high handed" and "autocratic" manner, however she is not dismissive of the relationship between the father and A, nor has she actively alienated C from the father. He did not sense that the mother was trying to harm the father or hurt his relationship with his children but is likely to be more focused on what she sees is best for her career which will offer in her mind greater stability for the family and make her a happier parent;
g)That the strength of A's relationship with his father is such that it is likely to be sustained with regular quality holiday contact. At his age, he is capable of coping with the separation likely to occur. Mr Moriarty couldn't discount as a possibility that C may be encouraged by the joy likely to be experienced by A in exercising contact with his father in Hervey Bay so as to consider having contact with him as she gets older. He believes the mother would encourage that to occur;
h)Ultimately, the final conclusion is based on a view that A would be more adversely affected by the change in the relationships with his mother and sister if he stayed in Hervey Bay with the father than he would be by the change in relationship with his father provided extensive holiday contact occurred if he moved to the Northern Territory with his mother and sister.

I should indicate that my assessment of the evidence and the observation of the parties under cross-examination leads me to accept the assessments of the parties and the dynamics of the relationships made by Mr Moriarty.

Section 68F(2) factors

I propose to make a comparison of the two competing proposals within the matrix of the relevant section 68F(2) factors.

(a) Wishes

The ages of the children mean that I should not attach significant weight to any wishes expressed by them. Certainly, as indicated by Mr Moriarty, C has a strong view of remaining with the mother. Perhaps the only reliable and, in a sense, independent view of A's position in the matter could be gleaned from the report of his school teacher where she identified how he had discussed with her, she apparently being a former resident of the Northern Territory, the type of excitement he was expecting to have by moving to the Northern Territory whilst, at the same time, maintaining longer holiday contact with his father.
In all the circumstances I am satisfied that neither the mother or the father have sought to impose upon the children the most destructive obligation or having to make a choice. They deserve credit for that.

(b) Relationships

The assessments by Mr Moriarty are supported in my view by the evidence, that is, that the primary attachments for A are his mother, his father and his sister. Mr Moriarty, as I've already indicated, formed the view that to split the two children at this stage of their development where they enjoy a fairly normal relationship may well divide their loyalties. This may be given momentum when one takes into account what appears to be a view or perception held by C that in some way the father has acted differentially and more favourably towards A than he has towards her. In some sense, the mother in her evidence seemed to support this by her observations. The father says that he did “girl things” with C and “boy things” with A.
It is easy, of course, for children when they are confronted by parents in this highly conflictual situation to form a view about favouritism. My assessment of the father is that, given the opportunity of having contact to C, it is unlikely that he would show that favouritism. Nonetheless, the relationships are such that as Mr Moriarty has suggested, the loss of the primary attachments to the mother and the sister may have a greater adverse effect upon A than might be the change in the relationship to the father associated with the relocation to the Northern Territory.
I should for completion note that I am satisfied that A and C are fairly well adjusted children who, as a result, have found it reasonably easy to form secondary attachments to Mr K and his children and Ms W and her children. These ongoing relationships will of course be important to them as they are supported, it would seem, to a large degree by the mother and the father in their respective family environments.

(c) Consequence of change

In cases like this, this factor, in my view, has increased significance. In fact it was, to be fair, probably the strongest submission made by Mr Westbrook on behalf of the father. He indicated during his final submissions that the mother has adopted a fairly naive view about the difficulties that will be encountered by the family if they relocate to the Northern Territory. He identified issues such as the weather, change of schooling, adjusting to the recently blended family, separation from parents and friends and the like.
Mr Slack, on behalf of the children, said that unlike many cases where relocation is being promoted by one parent, this was a case where I should find that the mother has spent some time assessing the likely opportunities, effects and issues which the children will face in a practical sense when they move to the Northern Territory. I believe that to be the case.
I am not as satisfied, however, that the mother has fully appreciated the emotional issues which the children will suffer. But supported by Mr K, as I believe she will, particularly in circumstances where to some degree his own children will be undergoing a similar transition, I have taken the view that I should find that the mother will adjust appropriately so that the children do not suffer distress as a result of any such change.
Whilst there are uncertainties, there is nothing in the demeanour of the children in the report of Mr Moriarty which would suggest to me that the children with appropriate support from both parents would not be able to cope with that change.
Obviously if the child, A, remains with the father in Hervey Bay, he will have the benefit of continuity and stability in his current school and, no doubt, peer friendships which he has developed at that school. This will give him some comfort to what I assess, and supported by Mr Moriarty in this regard, the sense of loss he will feel of the primary attachment to his mother and his sister.
I would assess that the father would use his best endeavours with all his skills to try and deal with the difficulties which A may suffer. However, confronted in circumstances with no relationship with his daughter at this stage, there is a risk in my view on the evidence, and considering the demeanour of the parties in the witness box, that he may overcompensate and in fact may get to a position where the child, A, is less likely to seek out the type of relationship with his mother and sister which would be a natural consequence of his history to date.
I am reluctant to categorise this as a “tit for tat” situation, however, there is in my view on all the evidence at least the risk, in view of the current hurt which the father feels for his loss of relationship with C, that he may seek some compensation in having a similar relationship with A which does not include or at least minimises the relationship that the mother may continue to have with him if they are separated.

(d) Parental capacity

The mother acknowledged in a sense that she had no difficulties with the father being the full-time parent or being the parent to A if in fact that was the decision of the court. It was perhaps a little regrettable that when confronted with having to at least give absolute support to that proposition, she sought to identify trivial issues such as sunburn and diet as the only basis upon which she held a concern.
The mother has demonstrated, it would seem to me, a capacity to provide for the children and the fact that the children to date do not reflect more behaviourable problems as a result of the high conflictual nature is in some way, in my view, a testimony to the mother's capacity to provide a nurturing and loving environment. I also acknowledge that, to some degree, notwithstanding the high level of conflict that has occurred, that the father has made his own contribution to this by trying to minimise the extent to which conflict takes place more recently in the presence or awareness of Amos.

(e) The practical difficulty and expense of exercising contact

Clearly if the parties were separated, as appears to be the case, there will be practical difficulties to be overcome in relation to any extensive level of contact. Ultimately, such contact could only be holiday contact. The mother indicated that she had made investigations in relation to possible cheaper airfares with Virgin Airlines and indicated that they could be at a level of approximately $500 return Brisbane to Darwin.
Furthermore, as was identified by Mr Westbrook, there would be additional costs being incurred for the child or children, if C can be encouraged to exercise contact, travelling from Brisbane to Hervey Bay. Also I must anticipate that during the course and tenure of these orders, there may be additional costs associated for the mother in bringing the children from their point of station in the Northern Territory to Darwin. That could be a very real possibility after the initial two year probationary constable period.

Conclusion

It is trite to say these matters are difficult. This is finely balanced. The parties' position reflect a polarisation. Essentially both have shown and at times reacted in a way which reflects a lack of child focus. In many ways the position has become more difficult because of the breakdown in the relationship between the father and his daughter, C. Although there is some evidence to suggest that the child had some difficulties with some examples of discipline in the family prior to separation, Mr Moriarty identifies the most important factors to C as being, in addition to the conflicts prior to separation; the tensions post separation; the view that C appears to hold that the father favours A over her; examples which she recollects of what she perceives to have been excessive disciplining; and the fact that she is so closely bonded to the mother.
I think it is also worth noting that the internal examination by C at or about the time of the initial contact visit I sense has had a significant impact upon C. Whether she blames the father or not for that examination is not known, but I must say that I was quite surprised, in fact horrified, when I was told by the father that not only did he not know that the child had been examined, but that he gave no authority for that examination to take place. I found it difficult to accept that evidence.
I particularly found it difficult when I put that matter to Mr Moriarty and he indicated that in his experience, which included a period of some three years with a child protection unit, that he could never recall a situation where a child had been the subject of examination in such circumstances without some foundation having been placed upon the authorities.
I think the father needs to consider that event as one of the events which must be dealt with ultimately before he can move forward with his daughter. Having said all that, I cannot see any reason in the evidence that I have seen in this court or the demeanour of Mr Mengel which would suggest to me that C would be harmed from redeveloping her relationship with her father who clearly wishes that to occur and is, I suspect, prepared to look at his past actions after this litigation is over with a view to making that the result of one of his focuses.
It was mentioned more than once during the course of these proceedings that the parties must take positive steps to reduce the conflict that is in existence between them; to improve the communication and to show this change to their children. Only in that environment is it likely that the children will reach their full potential and develop into the well adjusted adults I am sure both parents seek C and A to become.
I have reached the conclusion that the mother is likely to go to the Northern Territory and that it is in the best interests of C and A that they go with her. A shall have contact until he commences secondary school for all of April, two weeks in June, for all of the September holidays and half of the Christmas holidays. The parties shall contribute to the costs of travel between Darwin and Brisbane as to two thirds by the mother and one third by the father. This reflects their likely income in my view.
I should note at this stage that the mother, I think with some sense, indicated that perhaps the costs of transportation of the children could be a matter of agreement between the parties for child support purposes. The parties might find that it will reduce a further level of conflict if they are able to agree on the payment of these expenses as part of full child support arrangements.
As I have already indicated, I accept that the father will incur some additional costs associated with bringing A from Brisbane to Hervey Bay in what may be eight trips a year and I have made allowance for that in the manner in which I have ordered that the parties will contribute. When A commences secondary school, I propose that the father have contact as agreed but at least half of the June and Christmas school holidays with travel between Darwin and Brisbane to be shared equally. I have taken this view because it seems to me natural and logical to assume that by that time, A will have developed some further relationships in the Northern Territory and that it will be important to his long term development that he continues to further his peer relationships during opportunities of the shorter school holidays.
I propose to order that the father shall have contact to C at all times as may be agreed between the father and C and if she travels with A, as is hoped, then the parties shall contribute to her costs of travel in the same way as for A. There is no reason on the evidence that I should support the mother's application for sole responsibility for the long term decision making. The mother must accept that the father is entitled and desires to have an ongoing role in important long term decisions for his children and she must involve him in that.
The children are entitled to expect their parents to try harder in this regard. The father shall have liberal telephone contact. Specific issues orders relating to the sharing of medical, educational and residential details will also be made by me. So the orders I propose to make are in these terms and are at the beginning of these reasons.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Baumann FM

Associate:

Date: