F v F
[2008] FMCAfam 1368
•19 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BADCOE & BADCOE | [2008] FMCAfam 1368 |
| FAMILY LAW – Parenting – relocation – best interests of the child – willingness and capacity to promote child’s relationship with the other parent – meaningful relationship with both parents. PRACTICE & PROCEDURE – Application to re-open. |
| Family Law Act 1975, Part VII, ss.60B (1), 60CC, 60CC (1), (3) (c) – (g), (i), 60CC (4), 61DA, 65DAA, 65DAA (1) & (2) |
| AMS v AIF, AIF v AMS (1999) 199 CLR 160 P. Easteal & K. Harkins, “Are we there? An analysis of relocation judgments in light of changes to the Family Law Act,” (2008) 22 Australian Journal of Family Law 259-278. |
| Applicant: | MR BADCOE |
| Respondent: | MS BADCOE |
| File Number: | CAC 47 of 2008 |
| Judgment of: | Neville FM |
| Hearing dates: | 10 July & 21 October 2008 |
| Date of Last Submission: | 7 November 2008 |
| Delivered at: | Canberra |
| Delivered on: | 19 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hodgson |
| Solicitors for the Applicant: | Nicholl & Co Lawyers |
| Counsel for the Respondent: | Ms Snelling |
| Solicitors for the Respondent: | Stacks Southern Lawyers |
ORDERS
All previous Orders in relation to the children, [X] born in 2001 and [Y] born in 2006 be discharged.
The parents have equal shared parental responsibility for the children.
The children live with the Mother.
The Mother be at liberty to relocate with the children from [G] to the Central Coast.
The children spend time with the Father as follows:
(a)Each alternate weekend of the school term, commencing at 6:00pm Friday until 4:00pm Sunday;
(b)During each New South Wales school term holiday period, from 6:00pm on the first Sunday to 6:00pm on the last Friday;
(c)During the New South Wales Christmas school holiday period for four weeks as agreed between the parties;
(d)Such other and alternative times as agreed by the parents in writing.
Unless otherwise agreed in writing, the children shall spend time on the Mother’s Day weekend with the Mother and the Father’s Day weekend with the Father, from 5pm on Friday until 5pm on Sunday, regardless of where they would otherwise be living in accordance with these Orders.
Unless otherwise agreed in writing and regardless of where they would otherwise be living in accordance with these Orders, the children will spend time with the Mother and Father on Christmas Day as follows:
(a)In odd numbered years with the Father from 5pm Christmas Eve until 1pm on Christmas Day;
(b)In even numbered years with the Mother from 5pm Christmas Eve until 1pm on Christmas Day.
For the purposes of facilitating changeover for the time the children shall spend with their parents, the changeover location shall be at a point approximately half way between the permanent residence of the Mother and Father or as otherwise agreed.
Should the Father travel to the Sydney or Central Coast area and wish to spend time with the children on one weekend per month when the children would not otherwise be spending time with him pursuant to these Orders, and upon providing the Mother with 14 days notice of his intention to spend time with the children, the Mother will make the children available to spend time with the Father.
Neither party shall allow the children to come into contact with the Paternal Grandmother’s partner, Mr J at any time.
The children communicate with their parents as follows:
(a)The Father may telephone the children at any time between 9:00am and 7:00pm;
(b)The Mother may telephone the children at any reasonable time when they are spending time with the Father;
(c)At any reasonable time that the children request to telephone the parent with whom they are not otherwise living or spending time with;
(d)The Father may communicate with the children via email at any time.
In the event the Father resides within reasonable distance of the Mother’s permanent residence and any school or childcare centre attended by the children, the children shall spend time with each parent equally on an alternating week-about basis.
The parents shall ensure that they keep the other informed of their current mobile or landline telephone number and email address.
The parent with whom the children is living with or spending time with shall deliver and collect the children to and from any extracurricular activities or sporting activities as agreed upon between the parties, during the time that the children lives or spends time with that parent.
The parents are not to denigrate or otherwise speak ill of the other parent in the presence of the children, and they must use their best endeavours to ensure that no other person does so.
The parents are not to discuss legal proceedings in relation to the children in the presence of the children, and must use their best endeavours to ensure that no other person does so.
Both parents do all things necessary to authorise the children’s school to provide the other parent with copies of all school and pre-school reports, memorandum, letters and notes in relation to the child’s schooling.
Both parents shall keep the other parent informed of all significant education, social, sporting or other extracurricular events in which the children are involved and that both parents are at liberty to attend such events.
Both parents shall keep the other informed of any difficulty the children have at school so as to ensure each parent has the opportunity for equal input into resolving the difficulty.
The parties shall keep the other informed of any major medical issue involving the child, particularly of any medical attention or treatment received by the child, any medication requirements or medical appointments and provided that this notification shall be as immediate as practicable in the event of an emergency.
All parties notify each other of any change in residential address 28 days before that change of address is known. If the address is not known to the parent 28 days prior to the date of change, as soon as practicable.
Pursuant to section 65DA(2) and section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order, are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
If the parties experience difficulties with the implementation of these Orders, they agree to contact a Family Relationships centre or similar family mediation service to discuss a resolution of their difficulties and the cost of such mediation is to be met equally by the parties.
IT IS NOTED that publication of this judgment under the pseudonym Badcoe & Badcoe is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 47 of 2008
| MR BADCOE |
Applicant
And
| MS BADCOE |
Respondent
REASONS FOR JUDGMENT
Introduction
This relocation case concerns two young boys ([X], aged 7, and [Y], aged 2) who, fortunately, have a good, established relationship with both of their parents. Also fortunately, both parents have developed a relatively good, business-like relationship that enables them to communicate and otherwise deal quite well with issues that concern the boys. There are no issues of violence or, subject to what is said later and generally speaking, any concerns in relation to their care and welfare.
In the light of the good relationship between the boys and their parents, and between the parents, and with no issues concerning their safety and well-being, the range of matters in dispute is rather narrower than often is the situation in relocation cases.[1]
The fundamental issue in this case is whether Ms Badcoe should be permitted to relocate to the Central Coast of New South Wales and do so with the boys. If so, the next issue to determine concerns what orders should be made relating to the time that the boys spend with their Father, who remains intent on staying, and is very well settled, in [G] ([G] is located within the Southern Tablelands of New South Wales).
Procedural History & Other Considerations
It is convenient and important to note that I have already delivered two interim judgments in these proceedings: the first in January this year in which I ordered Ms Badcoe to return to the [G] area from the Central Coast of New South Wales prior to the final hearing.[2] The second interim judgment, which was delivered in March, outlined the parenting orders that were to operate until the final orders. In the March judgment I outlined most of the issues then in play. Essentially, what I said then in relation to the issues for determination remain the central questions around which the delicate balance of factors oscillate in the current proceedings.
One final observation should be made. I have recently delivered two judgments in relocation cases: Christie & Balkin and Illidge & Norton.[3] In the former, at [70], I referred to the importance of the Mother in that case having the opportunity to “re-establish her mental and emotional equilibrium.” I gave the parties in the current proceedings the opportunity to provide any further submissions they might wish to make in the light of that decision. Ms Snelling, for Ms Badcoe, did so.
My judgment in Illidge & Norton was delivered after the Full Court relocation case of Wiley & Wiley.[4] The Full Court did not disturb the course taken by FM Brewster, which was similar to that which I took in Christie & Balkin. I repeat here what I said in Illidge & Norton, quoting the Full Court not only in Wiley, but also in Taylor & Barker.[5] At [14] and [15] of Illidge & Norton, I said:
For the purposes of these proceedings, the most relevant Full Court decisions remain Taylor v Barker and the very recent judgment in Wiley & Wiley. In the former case, the Court (Bryant CJ & Finn J) said, at [111]: “The factual matrix in which his Honour’s conclusions were reached, namely that the mother had a child and wished to marry the father of that child and live with him and both children in a family unit, was an important background.” After referring to the `difficult and finely balanced decision’ of FM Brewster, their Honour’s went on to say, at [113]: “In such a case one factor will usually become decisive. In this case his Honour determined that that factor was the mother’s happiness and contentment.”
In the latter, most recent case, the Full Court unanimously took a similar approach, notably in relation to passages quoted from
FM Brewster’s judgment at first instance. At [32] of the Full Court’s judgment, the following passages are taken from his Honour’s judgment. They are instructive not only for the Court’s consideration of and comment on them, but also because I respectfully and gratefully adopt their application in this case. As quoted by the Full Court, his Honour said:
55. … On balance I am of the opinion that the impact on the children (albeit that my findings as to that impact are based on inference and not objective evidence) were the mother forced to remain in [T] dictates that their best interests would be served were they to live with their mother in [S].
56. I acknowledge that the conclusion I have outlined in the previous paragraph is laconic in the extreme. I state a conclusion but do not explain how that conclusion was arrived at. But I do not believe I can do better than I have. I have to balance the advantages, insofar as the best interests of the children is concerned, of the mother (and of course the children) remaining in [T] with the advantages of the mother (and the children) living in [S]. But how do you compare them? It is akin to comparing apples and pears. It is impossible to qualitatively compare the two. The decision as to where the balance lies falls to me to assess. I have found that it lies in favour of the mother being permitted to relocate. Essentially that is a value judgment which is incapable of analytical explanation. It is, to quote Kirby J in AIF v AMS [sic] (1999) FLC 92-852 at p 86,043 a situation where there is a great deal of “judgment, discretion and intuition” involved.
Also in Illidge & Norton I remarked on the Mother in that case sacrificing her life for the sake of the children and their relationship with their Father. To some degree, the same comment applies here.
All of this is to say that there have been, in quite quick succession and in the very recent past, three judgments of this Court and one of the Full Court of the Family Court in all of which three matters in particular may be highlighted. First, the Courts have almost invariably noted the very delicate and finely balanced range of factors that have been present in each of the cases under consideration.[6] More often than not, one factor has ultimately tipped the balance in favour of, or against, relocation. Secondly, to some degree at least, either implicitly if not explicitly, the Courts have acknowledged the important point noted by Kirby J in AMS v AIF, at [145],[7] about the importance of freedom of movement of parents and the opportunity they should usually be afforded to re-establish their lives [relatively] free from judicial and other interference. All of this, of course, is subject to the paramount interests of the child. And of course, this is not to imply that there is any automatic right to relocate.[8]
The third matter that has been patent in these very recent cases, to which I have already adverted, is the import and particular significance that each Court has attached to the detrimental effect on the parent wishing to relocate not being able to do so, and the consequential risk this poses to the care and well-being of the children involved, that is, the risk it poses to the best interests of the boys. In my view, the current proceedings fall directly into this same category of case.
In many respects, like Christie & Balkin, Illidge & Norton, and Wiley & Wiley, the present case is delicately balanced, but my decision ultimately turns upon the concern expressed by the experienced Family Consultant, Ms Michelin, about the capacity of Ms Badcoe to continue to survive in [G]. Her emotional well being and in turn her capacity to care for the boys, especially [Y], for whom she is, in large measure, the primary carer, according to Ms Michelin, risked being significantly compromised. Mr Badcoe properly conceded in cross-examination that the youngest child, [Y], was primarily attached to his Mother,
Ms Badcoe.[9]
Having had the benefit of seeing the parents on a number of occasions in Court, including of course their time in the witness box, I share
Ms Michelin’s concerns. Ms Badcoe repeatedly and clearly exhibited a fragility that was clearly not feigned.[10] She has literally endured her time in [G] for the boys’ benefit, as well as for the benefit of
Mr Badcoe and the boys’ relationship with him,[11] and obviously in conformity with this Court’s orders. She remains clearly and significantly uncomfortable in the milieu of [G] and longs for distance from a time and place of largely unhappy memories, and even more importantly to enjoy the support of her family who live on the Central Coast of NSW. Her sister has assured her of employment as a [omitted]. She has, from time to time, worked for her in the past.
As will be seen when I examine the evidence, Mr Badcoe conceded that his former wife is pretty much isolated in [G]. She has been unable to obtain much, or certainly any lasting, employment.[12] She has certainly been isolated from the small circle of friends with whom she used to associate when married to Mr Badcoe. She is concerned, quite reasonably so, not only of her own falling self-esteem in her inability to obtain employment, but also her deep anxiety arising out of her sons seeing her unable to obtain work and that this continues to occur. When in Sydney, she had held a quite senior position. These and related matters I will return to in more detail shortly.
Although I have already intimated my ultimate decision to allow
Ms Badcoe to relocate with the boys, I need to proceed more formally to a consideration of the evidence of the parties and crucially that of Ms Michelin, and the “legislative pathway” as prescribed in Goode v Goode.[13] I will proceed as indicated after I have detailed the respective proposals of the parties.
Proposals of the Parties
In an amended minute of final orders filed on 7 August 2008, the Mother sought that the children reside with her and that she be permitted to relocate with the children to “anywhere within the Greater Sydney Area including the Illawarra, the Central Coast and the Blue Mountains.” During the Mother’s evidence, and in written submissions prepared by Counsel for the Mother filed on 7 November 2008, the Mother’s relocation destination was narrowed to be at a location within the Central Coast area.[14]
The Mother proposes that the Father spend time with the children each alternate weekend from 6:00pm Friday to 4:00pm Sunday; for the entirety of the school term holidays and for four weeks during the Christmas school holiday period. It is proposed by the Mother that the parties share the travel, with changeover to occur at a mid-way point between their respective residences. The Mother seeks that she and
Mr Badcoe share parental responsibility for the children.
In a Minute of Orders Sought filed on 9 July 2008, the Father proposes that he share parental responsibility for the children with Ms Badcoe, and that the children live with each of their parents on a week-about basis. The Father also seeks an order restraining both parties from changing the children’s residence from the [G] Shire, and from changing the school attended by [X].
Evidence of the Parties
Because (a) there has already been significant Court attention to this matter, (b) I regard the parties as essentially honest and straightforward in their evidence, (c) the issues in dispute are quite confined, and (d) the more crucial evidence in the finely balanced range of factors to be considered is that of the Family Consultant Ms Michelin, it will suffice for these reasons to provide not much more than a summary of the basic evidence.
Evidence of Mr Badcoe
Mr Badcoe confirmed that the parties had lived in [G] only since 2006. They moved to [G] primarily to be with a friend or friends of
Mr Badcoe, although it would appear that Ms Badcoe was a promoter of the move to [G]. Mr Badcoe works, primarily on a self-employed basis, as a [omitted].
Mr Badcoe stated that he did not think that the reason for his former wife’s unhappiness in the latter months of their relationship had anything to do with living in [G].[15] Unless he was genuinely oblivious to Ms Badcoe’s unhappiness, a fact a little hard to accept given that they went to counselling a number of times prior to their separation, such a statement had a significant degree of unreality about it in the light of the total evidence. He did concede that he and Ms Badcoe had no family in [G] and that, apart from Mr Badcoe’s close friends
[name omitted], they had no other close friends in the area, save that Mr Badcoe had obviously met people over the couple of years they had lived in [G].[16]
Mr Badcoe also acknowledged that his friends, [name omitted], had employed Ms Badcoe but had later sacked her. He also conceded, in a manner of speaking, that Ms Badcoe’s reputation in the local community had diminished. I say “in a manner of speaking” because although
Ms Michelin’s first Report confirms him saying that this was the situation, during cross-examination he acknowledged the difficulties experienced by Ms Badcoe, across a number of areas, either hesitantly or questioningly. Such an attitude, while generally understandable, was not untypical of Mr Badcoe in his answers in relation to a number of matters. This is to say that Mr Badcoe exhibited either a reluctance or an inability to appreciate fully the range and significance of difficulties encountered by his former wife living in [G] since the breakdown of the marriage, or if he did, he saw them as fundamentally matters that were no longer his concern even if they impacted on the well-being of the boys. This is not to suggest that Mr Badcoe has not and does not have difficulties too, but it is clearly the case that he does not do so anywhere near the degree or of the kind experienced by Ms Badcoe.While in no way did I perceive Mr Badcoe as being deliberately obstructionist in his answers, he consistently gave the impression of someone who is content with his general lot in life as it is at the moment but who does not have a ready facility to appreciate other sensitivities. I will expand on this shortly. In saying this I should not be taken as being hypercritical of Mr Badcoe. Rather, it is simply an observation about his capacity to appreciate certain things.
Two examples might highlight this.
In the early days of their separation, and after I ordered Ms Badcoe to return to [G], the parties shared the former matrimonial home, but in a slightly different manner. The boys stayed in the home and the parties themselves moved in and out during the time that the boys spent with them. On each occasion prior to Ms Badcoe returning to the residence, Mr Badcoe would dismantle the former marital bed and bring in a single bed for her to use. He reasoned that since she had left the marriage, she should not use the marital bed.[17]
While this may, as some form of logic be understandable from
Mr Badcoe’s perspective, it could hardly be calculated to promote a conciliatory atmosphere in which the boys were living or in promoting a workable relationship with Ms Badcoe in relation to matters concerning the boys. Fortunately, for the most part, they seem to have moved beyond such problems.
The second example relates to Ms Badcoe’s employment capacities. Mr Badcoe acknowledged, again somewhat reluctantly because he said that he did not recall the history clearly, that Ms Badcoe was employed in Sydney, for approximately 10 years, as an [occupation omitted]. More recently in [G], she had obtained a few shifts as a casual worker at the [omitted]. While he conceded that the work she had done in Sydney and the work she did at [omitted] were different, he seemed to struggle over accepting that there was a qualitative difference in the two positions.[18] Although the matter was not pursued following objections by Mr Hodgson, it was not untypical of Mr Badcoe’s more limited capacity to see perspectives and issues outside his own range of vision. I repeat, I say this without criticism; it is intended as a statement of fact.
Apart from a general discussion with Mr Badcoe of some communication issues in relation to which, by and large, he confirmed that he and
Ms Badcoe were communicating well, the only other issue of any moment from his cross-examination related to the detail of his understanding and appreciation of [Y]’s allergic reaction to antibiotics.Again, by way of summary, he confirmed that he did not know what antibiotics [Y] was allergic to, or a number of details regarding this allergic reaction about which he was advised by Ms Badcoe. Not unreasonably he stated that if there was ever a problem, presumably with any illness or adverse reaction to medication, he would contact a doctor.[19]
I mention this aspect of the evidence simply to note that Ms Badcoe appears to have been the person primarily responsible for attending to the medical (and of course other) needs of the boys. And again, I say this in no way to be critical of Mr Badcoe. It is simply the fact that, like many parents, one person’s attention to certain details in the care of the children can often be both more natural and more attentive, while the other parent is somewhat more mechanical in approach (rather than intuitive and anticipatory) and somewhat dependent on the other for such details and attention.[20] In my view, this is the case here. In saying this, it should not be taken that there is any less concern and love provided to the boys by either parent. That is certainly not the case.
Evidence of Ms Badcoe
Early in her cross-examination Ms Badcoe was taken systematically through the range of matters recorded in the Family Reports regarding, for example, how the boys have a deep affection for both parents, that their development is age-appropriate, and that they have a secure relationship with both parents. She agreed readily with all of these things.[21]
Ms Badcoe agreed that she and Mr Badcoe are, for the most part, cordial in their relations, which have improved (for the most part) over time, and that this was in the boys’ best interests.[22]
Equally systematically, Ms Badcoe was taken through the range of difficulties that would likely be encountered should she be permitted to relocate, including adjustment for the children (especially [X]) in changing schools, leaving current friends in [G], and more significantly, the change to the time that the boys would spend with their Father, who she acknowledged was a central figure in their lives.[23] She had also previously confirmed that the care arrangements for the boys was a 4/3 arrangement, that is, four nights with their Mother and three with their Father. The parties had tried a shared care arrangement but that proved unsatisfactory for both boys but especially for [Y] given his young age. Ms Badcoe also agreed that [Y] is `deeply dependent on both of his parents,’ and that lessening the time with one parent would likely result in a `grieving process.’[24]
Ms Badcoe agreed that the current arrangements serve the children well, and she acknowledged that there was a risk to the children’s relationship with their Father should she be permitted to relocate away from the [G] region with them. Somewhat surprisingly, in
re-examination she was not asked the converse question about the risk to the children’s relationship with her if she was not allowed to relocate. Perhaps that was taken to be a self-evident proposition. It was canvassed briefly in cross-examination of Ms Michelin, who conceded that it was possible that the stability in [Y]’s relationship with his Father by virtue of him (i.e. [Y], and his Mother and brother) remaining in [G] could be offset by the negative impact on his Mother being required to remain in that city.[25]
Another matter to note, and to which reference has already been made, is Ms Badcoe’s isolation in [G]. Related to this is the fact that although she has sought some employment (without much success) she has not pursued her employment search until knowing the outcome of these proceedings. Mr Hodgson very fairly acknowledged that this was a perfectly reasonable stance to take, especially in the light of Ms Badcoe indicating that she would not wish to commence a job and then leave it a short while later in the event that she was permitted to relocate.[26]
There is one important, final matter to note here in relation to
Ms Badcoe’s evidence. She confirmed that she would not move without the boys.[27] This is to say that she would sacrifice her happiness and desire to be with her family for the sake of the boys. On the other hand, Mr Badcoe confirmed that if the boys relocated with their Mother, he would not move so as to be closer to them. While an understandable position to adopt, it was somewhat instructive at least in relation to the appreciation of the sacrificial nature of parenthood that Ms Badcoe manifests and which Mr Badcoe has seemingly not developed, or for which he does not have the capacity, or has it in a different and more discreet way.[28]
Before considering the evidence of Ms Michelin I need to deal briefly with an application of Ms Snelling to re-open when the matter returned to Court on 21st October. I granted the application, with Mr Hodgson observing that if the evidence ultimately proved to make little or no difference to the ultimate result he would seek to press an application for costs.
Application to Re-Open
The relevant principles in relation to applications of this kind are set out in many places. Two will suffice for immediate purposes. The High Court in Smith v New South Wales Bar Association and the Full Court of the Federal Court in Londish v Gulf Pacific Pty Limited outlined the basic considerations relevant to applications to re-open.[29] Stated in the most summary way, Courts have treated each application to re-open on its merits, thus there is no fixed rule. And, in all instances, especially as stated by the Full Court of the Federal Court in Londish, the over-riding criterion is whether the interests of justice are served by granting the application.
In my view, the interests of justice warranted the application being granted, at the same time acknowledging the proper course adopted by Mr Hodgson with respect to costs.
Both Ms Badcoe and Mr Badcoe gave brief evidence over a few recent, and not so recent, incidents. They concerned, for example, what clothing had been provided for [X] by Mr Badcoe. I do not need to make any formal findings about the matters raised.
In my view, the “new matters” raised were essentially `of a kind’ that were already before the Court. However, there was one matter that was important to emerge, although no findings ultimately turn on it. This concerns the fact that Ms Badcoe had begun a new relationship only a few weeks before the proceedings resumed. She said that she did not know if her new partner would be likely to move to the Central Coast with her, but whether he did or not, she remained determined to move there – subject of course to the orders of the Court.[30] As already intimated, precisely because it is such a new relationship it is impossible to comment other than to observe, as Mr Hodgson did, that if Ms Badcoe relocated, her relationship with her new partner and his relationship with the boys would be another factor with which to contend, to some degree at least. Ms Michelin basically took the same view and rightly stressed that because the relationship was so new it would be far too speculative to comment on it one way or the other.
Evidence of Family Consultant
The Family Consultant, Ms Michelin, provided two written reports in these proceedings, which were released on 12th March and 23rd June 2008. She also gave oral evidence on 21st October. A number of the matters canvassed in cross-examination with Ms Badcoe, noted above beginning at paragraph [28], were largely taken from Ms Michelin’s reports. They need not be repeated.
In her first report of March 2008 Ms Michelin stated (p.4): “…
Ms Badcoe may experience difficulty in establishing herself in this [[G]] community and this may have negative effects on her parenting capacity and her emotional well being.” She continued:
If the children were to relocate to the Central Coast and Mr Badcoe remained in [G] their relationship with their father would in all likelihood be compromised. There are strategies that could be employed to maintain a closer link with their father; however, these strategies would not be a substitute for spending frequent time with him. At the Central Coast Ms Badcoe would, by her own report, feel emotional and financially settled and therefore available to provide optimum parenting to the boys.
If both parents were able to relocate to the Central Coast the children may be blessed by receiving the best of everything that the parents can offer. [X] and [Y] could have the opportunity of spending regular frequent time with each parent. In addition they would have more opportunity to spend time with members of their extended family. Both parents would be able to avail themselves of family support more readily.
In her second report of last June, Ms Michelin stated:
Of concern is the mother’s emotional stability if she is not allowed to move to where her emotional supports are, namely the Central Coast. If Ms Badcoe continues to feel socially isolated there is a chance that she herself may become less emotionally available to the children due to the distress that she experiences. The area of social isolation is related to Ms Badcoe’s inability to gain appropriate employment which to date has evaded her.
Ms Badcoe maintains her desire to relocate with the boys to the Central Coast. Her feeling of isolation has not decreased since her return to [G] nor has her frustration at trying to establishing [sic] herself financially without appropriate employment. Ms Badcoe’s purported limited employment opportunities in [G] appear to be disadvantaging her capacity to offer the children housing stability and financial security. Conversely, Mr Badcoe appears to be well imbedded [sic] in the [G] community, he is both financially and socially secure. It is curious that
Mr Badcoe has stated that he would forgo the intensity of his relationship with the boys in order to maintain the security of employment and the financial status that he enjoys in [G]; both of which Ms Badcoe is struggling to attain in the same city. (emphasis added)I agree with these observations and assessments of Ms Michelin. I also agree with Ms Michelin that there are risks both ways: that is, there are risks for the boys if their Mother does not relocate, and there are risks for them if she does not.
On balance, in my view, the greater risks are associated with
Ms Badcoe not being able to relocate with the boys. As she stated in her second Report (p.5): “… there are … certain risks in Ms Badcoe not being allowed to relocate, namely her emotional and financial security, which may threaten her capacity to parent the children at the same high level which she is currently doing.”
Ms Michelin also noted the usual capacity of children as they grow to deal with changes in their parenting relationships, such as in relocation situations, accepting too that here the children are still quite young, especially [Y]. She observed (Second Report, p.5):
Their capacity [ie. young children’s] to maintain relationship [sic] is based on engaging with each parent frequently. As a child matures they are not only able to internalise the relationship with each parent and therefore reducing the frequency of visits, they also develop the capacity to maintain relationship through means other than face to face contact.
In the course of her evidence Ms Michelin also noted: “… in the assessment for both of these reports it was my perception that
Ms Badcoe was predominantly the person who kept the sense of continuity of medical care, educational care, and that she was the person who was probably the knowledge bank in the family about what was happening with the children in those areas.”[31] In my view, this assessment is very important.
In addition to the above, Ms Michelin observed that she also had concerns about the risk of depression for Ms Badcoe once the court case was over and she was not permitted to relocate. Her apprehension was that the litigation had a self-sustaining dimension, which she likened to an “adrenalin rush of trying to get to the finishing line.” However, once it is over “her present is really going to be her future because there does not appear to be any glimmers of hope in relation to employment for her.”[32]
Ms Michelin noted that [X] had good social skills that would help him through the adjustment required in moving to the Central Coast. She also felt that Ms Badcoe had the requisite skills to help him adapt to a new environment.[33]
Jurisprudential Considerations
There are two aspects to be considered here. First, earlier in this judgment I referred to a number of very recent relocation cases of this Court and the Full Court of the Family Court. I need not repeat what was said there. I need only refer to the basic principles that are to be found there and in other cases, perhaps most fulsomely gathered in
F v Fand Morgan v Miles.[34]
The second matter to consider relates more particularly to the “legislative pathway” prescribed by Part VII of the Family Law Act (“the Act”) and by pre-eminent judicial authority to determine what is in the particular child’s best interests. In this regard, again I take my lead from the judgment of Brown J in Mazorski v Albright in which her Honour neatly summarised the legislative prescriptions in Part VII of the Act.[35] Beginning at [3], her Honour said:
3. The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
4. When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
5. There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
6. If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
In considering the best interests of the children, as indicated by Brown J in Mazorski v Albright, and before that by the Full Court in Goode v Goode,[36] I can note the following.
I have already observed that there are no protective issues in this case regarding the boys [X] and [Y] and that they have a very good (“meaningful” – as described in the Act) relationship with both parents. In such circumstances, I do not see that there is any basis for not ordering that there be equal shared parental responsibility as between the parents. There will be such an order.
The boys are too young to express any significant views that can or should be taken into account.
While there was little exploration of it during the trial, it should at least be formally noted, and to which reference has already been made because it may ultimately be of some relevance over time, that there is no family of either parent in the [G] area. Of immediate relevance and importance is the fact that Ms Badcoe’s family is located at the Central Coast. As well, Mr Badcoe’s mother resides in Sydney, and as noted by Ms Michelin, she regularly visits the boys while they are in [G]. They will be somewhat closer to her with the move to the Central Coast.[37]
I have already canvassed in various contexts the essentially business-like, even generally cordial, relationship of the parents in dealing with matters that concern their children, and in relation to promoting their relationship with the other parent. Similarly, I have already addressed the likely impact of the relocation on the boys’ relationship with their Father in the light of Ms Michelin’s observations, notably to the effect that as the boys grow older their capacity to deal with a longer-distance relationship usually increases. While there are risks in relation to all of the proposals before the Court, the greater risks primarily for the boys in the light of the Mother’s parenting capacities, as I have said, in my view, are with Ms Badcoe being forced to remain in [G].[38]
Less a “risk” and more directly relevant to issues of “practicality,” and thereby no less so in relation to the consideration of s.65DAA, is the geographical distance between the Central Coast and [G]. While obviously not as far away as, for example, Cairns or areas more remote, the logistics of travel and the time involved therein – in the absence of Mr Badcoe either moving closer to the Central Coast or at least going to Sydney to see his Mother and thereby also being more accessible to the boys – is a consideration under s.60CC(3)(e).
To interpose the s.65DAA issues here, the geographical distance precludes, as a matter of “reasonable practicality” an equal time arrangement, as it does an order for substantial and significant time.
I refer to paragraph [27] and the evidence of Ms Michelin more generally, by way of having already considered the additional considerations referred to in s.60CC(3)(f), (g) and (i), those sub-paragraphs being, in my view, the only other additional considerations relevant to these proceedings. The same paragraphs just noted, together with the evidence of both parties of course, are also germane to my consideration of s.60CC(4).
Conclusion
I repeat what I said in F v F, at [8], as relevant and applicable here:
In addition to the above, it is essential to note the cautionary and critical observation of Gummow and Callinan JJ in U v U [92] which, in many respects, underlies the principles enunciated above:
“The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.”
To this I would only add that, in certain respects, one responsibility of the Court is to apportion, according to principles of justice and equity in the context of what is in the best interests of the particular children involved, in what proportion, and how, the sacrifices will fall on each of the parents of the children. In saying this, the apportionment of the moral and legal obligations of parenthood should not be seen by either party as an apportionment of blame, and still less of “guilt”.
As I adopted in Illidge & Norton, so too here I adopt FM Brewster’s comments as quoted by the Full Court of the Family Court in Wiley & Wiley, which were set out in full earlier in this judgment beginning at [6].
There remain two final observations. First, in U v U Kirby J enjoined Courts like this one, and others too of course, in the following terms. His Honour said: “It is … highly desirable that courts, such as this Court and the Family Court of Australia, should consider such cases in accordance with principles that are consistent, conformable to like legislation and attentive to the paramount consideration of the best interests of the child, viewed in the long term and not just the short term.”[39] I consider the orders I am making here to be in the best interests of the boys primarily as directed by Kirby J.
Secondly, in all that has been said, no one should take the view that I have sought to be hypercritical of either parent. That has not been my intention or object in any way. Within their respective capacities both parties have endeavoured to put the boys’ interests first. Not surprisingly, the choices taken or avenues pursued have not always achieved optimal results. Such is the nature of much of human endeavour. Indeed, as Ms Michelin remarked in her second report (p.2), “[X] and [Y] are delightful boys who were well behaved and fun loving, they are a credit to their parents.”
I have no doubt that Ms Badcoe in particular will use her utmost endeavours to ensure that, whatever the short-term adjustments that arise out of the relocation, the laudatory remarks of Ms Michelin would be found were she to review this family’s situation in the years ahead. Likewise, I am reasonably confident that Mr Badcoe will adjust to the living situation of the boys, primarily because he will, perhaps not immediately, recognise that the orders made today are ultimately in their best interests.[40] And because of my confidence in both parents, the orders I make today are, in my view, those that are least likely to result in further litigation in relation to [X] and [Y].
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: Renee Davidson
Date: 19 December 2008
[1] For recent surveys and analysis of relocation cases, see P. Parkinson, “The Realities of Relocation: Messages from Judicial Decisions,” (2008) 22 Australian Journal of Family Law 35-55, P. Easteal & K. Harkins, “Are we there yet? An analysis of relocation judgments in light of changes to the Family Law Act,” (2008) 22 Australian Journal of Family Law 259-278 and P. Parkinson, “Freedom of Movement in an Era of Shared Parenting: The Differences in Judicial Approaches to Relocation,” (2008) 36 Federal Law Review 145-171.
[2] This course was essentially in conformity with the principles articulated by Boland J in Morgan & Miles (2008) 38 Fam LR 275 at p.289 [74] & [77].
[3] [2008] FMCAfam 665 and [2008] FMCAfam 1255 respectively.
[4] Wiley & Wiley [2008] FamCAFC 153.
[5] Taylor & Barker (2007) 37 Fam LR 461.
[6] The studies referred to in footnote 1 above were obviously written before these most recent judgments were delivered. Professor Parkinson’s article in the Federal Law Review warrants careful and detailed attention. It remains to be seen if his concerns have been palliated or aggravated by the recent Full Court decisions in Wiley & Wiley and Winter & Winter [2008] FamCAFC 159.
[7] See also on freedom of movement the comments of Gleeson CJ, McHugh & Gummow JJ in AMS v AIF (1999) 199 CLR 160 at [40] – [45], and Gaudron J at [96].
[8] Such a right or presumption is addressed directly by Parkinson in his article “Freedom of Movement…” op. cit., 36 Federal Law Review at pp.154-157.
[9] Transcript (10th July 2008) p.41.
[10] She broke down a couple of times in the course of cross-examination. I note this without any hint of criticism of Mr Hodgson’s cross-examination.
See here Ms Badcoe’s evidence about the need to “pick your battles”, one of which she confirmed was the importance for the children of seeing her work co-operatively with Mr Badcoe rather than their parents fighting. Transcript (10th July 2008) p.53. In this respect, as with quite a number of others,
Ms Badcoe showed greater insight into parenting responsibilities than Mr Badcoe. I say this not to be critical of him, but simply to note the different parenting capacities and insights of the two. In evidence, Ms Michelin said: “I believe there’s been to some degree a change in both parties, but I believe that the weight of it has landed on Ms Badcoe to change her behaviour.” Transcript (21st October 2008) p.37.
[12] See, for example, Mr Badcoe’s evidence, Transcript (10th July 2008) p.7.
[13] (2007) 36 Fam LR 422 at [72].
[14] Transcript, (10th July 2008) p.50. During cross-examination, the Mother said she had “no intention of going to the Blue Mountains…St George or Illawarra”, and that Bateau Bay on the Central Coast is “where I want to be”.
[15] Transcript (10th July 2008) p.7.
[16] Ibid., p.8.
[17] Transcript (10th July 2008) pp.17-18. Children’s clothes, among other things, were also separated between the parties. Mr Badcoe changed the locks on the house also, but did it when the boys were not there. Ibid., p.20.
[18] Transcript (10th July 2008) pp.9-10.
[19] Transcript (10th July 2008) pp.39-41.
[20]
Issues of parental capacity were explored with Ms Michelin in the context of a number of incidents already recounted here. It is sufficient to note some references of Ms Michelin’s evidence in this regard. See, for example, Transcript (21st October 2008) pp.37-40. Later in her evidence, in the context of a discussion about `quality of time’ between parent and child as well as issues of communication and capacity to put the child’s interests as paramount, Ms Michelin spoke of the importance of “flexibility of thought” and that a parent “is able to locate where the child’s emotional and intellectual functioning is and level it at the same degree and therefore make the child feel warm and fuzzy.” Transcript (21st October 2008) p.53. Ms Michelin seemed at least to imply that
Ms Badcoe was the parent who best had this capacity. For my part, that would also be my assessment from the evidence of the parties and having observed them on a number of occasions throughout the various court events during this year.
[21] Transcript (10th July 2008) pp.51-52.
[22] Transcript (10th July 2008) p.54.
[23] Transcript (10th July 2008) p.55.
[24] Transcript (10th July 2008) p.56.
[25] Transcript (21st October 2008) p.49.
[26] Transcript (10th July 2008) p.63.
[27] Transcript (10th July 2008) pp.57-58.
[28]
Ms Michelin’s first, but necessarily brief, report, dated 11th March 2008, records that she explored with Mr Badcoe him moving to the Central Coast. If this was to happen, she said “[h]is mother, who visits him regularly and cares for the boys, would be much closer to him approximately one hour drive if he were living on the Central Coast.” Report, p.2. Ms Michelin also recorded in that report that
Mr Badcoe insisted that he did not wish to be a “weekend dad”, and that he agreed with Ms Badcoe’s assessment that “her reputation has been diminished in the local community and that she may struggle to find employment.” Ibid. Her second report, dated 19th June, states: “Mr Badcoe is intending to purchase the family home and is therefore unwilling to move out of the area regardless of whether the children are allowed to move to the Central Coast.” Second Report, p.1.
[29] Respectively (1992) 176 CLR 256 & (1993) 45 FCR 128.
[30] See Transcript (21st October 2008) pp.18ff.
[31] Transcript (21st October 2008) pp.41 & 50.
[32] Transcript (21st October 2008) p.45.
[33] For the sake of completeness I should note that the evidence confirmed that because Mr Badcoe’s work commitments required that when the boys were in his care they spent significant time in day care (in [Y]’s case) and went to work with Mr Badcoe (in [X]’s case) until school time or he was taken by a friend to school. Also for the sake of completeness I should also mention that a third option very briefly canvassed at the trial was that Ms Badcoe could live on the Central Coast when the boys were not with her and return to [G] when they were to be in her care. Given their young ages and their respective needs, I do not consider that this option is or was genuinely feasible.
[34] Respectively (2008) 38 Fam LR 52 and (2008) 38 Fam LR 275.
[35] (2007) 37 Fam LR 518.
[36] (2007) 36 Fam LR 422.
[37] I need not explore the need for the continuance of a protective order regarding Mr Badcoe’s step-father and that the boys not come into contact with him. The previous order that I made in this regard will be continued.
[38] Such matters are, of course, in response to sub-paragraphs (c) and (d) of the “additional considerations” in s.60CC(3).
[39] (2002) 2111 CLR 238 at [164], emphasis added.
[40] Should it be relevant I also note that the parties have settled all property issues between them.
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