Fawkner & Kado
[2020] FCCA 1535
•23 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAWKNER & KADO | [2020] FCCA 1535 |
| Catchwords: FAMILY LAW – Parenting – relocation. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC,65DAA |
| Cases cited: Paskandy v Paskandy (1999) FLC 92-878 Taylor v Barker (2007) 237 FamLR 461 MRR & GRR [2010] 240 CLR 461 Champness & Hansen (2009) FamCAFC 96 |
| Applicant: | MS FAWKNER |
| Respondent: | MS KADO |
| File Number: | LNC 609 of 2019 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 2 & 3 June 2020 |
| Date of Last Submission: | 3 June 2020 |
| Delivered at: | Launceston |
| Delivered on: | 23 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms J Higgins |
| Solicitors for the Applicant: | Bishops |
| Counsel for the Respondent: | Ms R Brown |
| Solicitors for the Respondent: | Legal Solutions |
ORDERS
That all previous parenting orders be discharged.
That the parents MS FAWKNER (“the applicant mother”) and MS KADO (“the respondent mother”) have equal shared parental responsibility for the child X (“X”) born in 2018.
That X live with the applicant mother, MS FAWKNER for three (3) nights per week from 3.00 p.m. Wednesdays until 4.00 p.m. Saturdays.
That X live with the respondent mother, MS KADO at all other times.
That the child spend such other time between his parents, or variations of the above, as may be agreed between the parents from time to time.
IT IS NOTED that publication of this judgment under the pseudonym Fawkner & Kado is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
LNC 609 of 2019
| MS FAWKNER |
Applicant
And
| MS KADO |
Respondent
REASONS FOR JUDGMENT
Applications
These are parenting proceedings in respect of the parties’ child X born in 2018 (aged two years). The parties were in a same-sex relationship between 2014 and March 2019.
The proceedings were commenced on an application by Ms Fawkner following the unilateral removal of X from Tasmania to Victoria by Ms Kado.
Ms Kado, the respondent, now seeks orders whereby X live with her and that she be permitted to relocate to Town A, Victoria with X. Conditional upon the applicant, Ms Fawkner, determining to also relocate to Town A, Ms Kado proposes alternate regimes of time for X with Ms Fawkner which would, within the definition in the Family Law Act (1975) (‘the Act’) be described as 'substantial and significant time'. Should Ms Fawkner not decide to relocate to Victoria then Ms Kado proposes frequent time in Tasmania or Victoria with equal contributions to the travel.
The applicant, Ms Fawkner, has a primary position that the respondent's proposal to relocate with X to Victoria be denied and that the parties effectively share the care of X preferably with the child spending three nights per week with Ms Fawkner and four nights per week with Ms Kado.
Both parties propose orders for equal shared parental responsibility. They also agree time for each of them with X on special days and the sharing of school holiday time when that eventuates.
Background
The applicant is 33 years of age and the respondent 28 years.
The parties met via the Internet in about 2014 and began a face-to-face relationship in 2015 with Ms Kado coming to Tasmania for a holiday and then mutually travelling between Victoria and Tasmania. Ms Kado relocated to Tasmania for the purposes of pursuing the relationship with Ms Fawkner and the parties began living together in 2015.
The parents separated in March 2019 but remained living under the same roof until August 2019 when Ms Kado unilaterally removed herself and X to Victoria.
An order was made by consent on 28 August 2019 for X to be returned to Tasmania. Ms Kado also returned.
Ms Fawkner works for Employer B. Ms Kado has more recently been unemployed but has previously held jobs in retail and in some customer service roles.
There is no evidence before me that either party has re-partnered.
Ms Fawkner's extended family live in southern Tasmania but she herself has resided in the Launceston area for some time and prior to the relationship with Ms Kado.
Ms Kado's extended family live in the Town A area of Victoria.
Since about March 2020 Ms Kado has consulted with a clinical psychologist, Mr C, on a referral from her general practitioner and suffers a diagnosis of 'reactive depression'. She continues to see Mr C.
X currently lives in a regime between his parents spending three days and two nights each week with Ms Fawkner and the remainder of the week with Ms Kado.
The Applicant's Case
Ms Fawkner argues that she has an established and attached relationship with X with frequency in direct contact. She says that should X, at two years of age, relocate to Victoria then his memory retention together with the logistical and geographical problems of travel will damage that relationship.
Ms Fawkner says that, although not being her primary position, should the Court determine that X’s best interests are served by him relocating with Ms Kado to Victoria then she too would consider relocating to Town A although the evidence suggests that she has no previous history with the area and with no visible support networks. Ms Kado will not herself relocate without X.
The Respondent’s Case
Ms Kado argues that she feels isolated, lonely, unhappy and depressed in Tasmania and that she craves the support of her extended family in Victoria. She considers herself to be X’s primary parent with the implication that X's best interests would be attended by his primary mother being happy and content in her own life and hence in her parenting of the child. She says that she has a friendship and family network of support in Town A and that she can readily obtain accommodation and employment. She says that she will continue to support X's relationship with Ms Fawkner and, if necessary, contribute financially to travel for the child between Town A and Launceston or, alternatively, should Ms Fawkner move to Town A then the current arrangement of shared care on a 5/2 day weekly basis continue, or alternatively, there be other arrangements such as X spending fortnightly time with Ms Fawkner between Thursday and Monday.
The Issues
Whilst X's best interests are obviously the paramount consideration for the Court, this matter effectively involves a consideration and balance of two major issues being: –
(a)If X is permitted to relocate with Ms Kado from Tasmania to Victoria then will his relationship with Ms Fawkner suffer contrary to his best interests?
(b)If X is not permitted to relocate with Ms Kado to Victoria then will Ms Kado’s mental health be such that her parenting and hence her own relationship with X suffer contrary to his best interests.
There is, of course, the remaining option for the Court in accepting Ms Fawkner's alternative the position of her too moving to Town A. Such a proposal, whilst admirable, must be considered in a realistic sense and whether or not such could be sustained so as to attend to X’s best interests.
The Evidence – Family Report
The Court has enjoyed the benefit of a family report prepared by Family Consultant Ms D and dated 10 March 2020. The report was prepared after interviews with the parents and observations of the X with each on 29 January 2020.
The family reporter is equivocal in respect of her recommendations and not unusually so given the primary dispute between the parents as to whether or not X be permitted to relocate from Tasmania to Victoria. Ms D's recommendations appear at page 25 of her report as follows:
84.It is recommended that, in the event that the parties live in close proximity, they maintain the current care arrangements for the foreseeable future.
85.It is recommended that, in the event that the parties live at a geographical distance, care arrangements allowing for both regular bi-weekly FaceTime and/or phone call contact be provided with opportunity for X to spend regular block time with his non-residential parent, taking into account his young age and capacity to spend extended time away from his primary carer.
86.If the parties continue to reside in Tasmania consideration may be given to revisiting the proposal of a relocation to Victoria once X reaches school age should this still be desired by Ms Kado.
87.It is recommended that Ms Kado engage with appropriate services to support her socially and more generally. In Tasmania, this may be accommodated by engaging with E Playgroup, with F Family Services and the Circle of Security program or with G Family Services.
88.That both parties complete the Parenting Separately (Parenting Orders Program) via Relationships Australia to assist them with their co-parenting relationship and communication and to reconcile their experiences of the relationship.
Ms D identifies the primary issues and considerations for the Court at [83] where she says:
It appears that the current arrangements are working well, so there seems to be no need to change these if the parties continue to reside in close proximity. Ms Kado’s proposal to relocate may result in an improvement in her wellbeing and, associated with this, her parenting which would likely be beneficial for X. While there is no overt indication that she is not coping currently, how she manages in the long term is unknown. If Ms Kado is supported to relocate to Victoria this will likely have an impact on Ms Fawkner’s relationship with and parenting of X. Given X’s young age maintaining his relationship with Ms Fawkner would require the ongoing support of Ms Kado, both practically, with financial support for costs of travel and accommodation for Ms Fawkner to maintain regular face to face contact with X, and emotionally with support from Ms Kado in keeping Ms Fawkner present for X in her physical absence, for example by talking with X about her and having photos of her in the home. Regardless of the supports provided for this relationship, it is likely that the reduced contact between Ms Fawkner and X would have an impact on the maintenance and development of this relationship, with Ms Fawkner likely to maintain a close relationship with X but not the significant care relationship afforded by the regular contact accommodated by the current care arrangements.
Ms D summarises her observations and opinions at [75] of the Report as follows:
It appears that X has a safe and strongly developed care relationship with both Ms Fawkner and Ms Kado and has been minimally impacted by his parents’ separation. Given that young children X’s age are still developing their primary attachment relationships it is difficult to determine the impact of a possible relocation to Victoria with Ms Kado at present. It is generally understood that children can better tolerate arrangements where they reside with one parent and spend block time with the other parent after their primary care relationships are firmly established when they reach around three to four years of age. It would be likely beneficial to X if any separation from a parent necessitated by relocation was deferred until he is school age.
Ms D gave evidence and was cross-examined at the trial of this matter. Her evidence and opinions were in accordance with the above.
Applicant – Ms Fawkner
Ms Fawkner was an impressive witness. She gave her evidence in a mature, considered, informed, and child focused manner. I have no doubt that she is legitimate in her statement that she would consider moving to Town A should the Court allow the relocation of X. This demonstrates a high degree of child focus and prioritisation. She did not give responses negative to Ms Kado and I gleaned that she is generally supportive of Ms Kado in the parenting relationship and despite the demise of their own personal relationship.
The Respondent's Evidence
Ms Kado was equally as impressive a witness as was Ms Fawkner. She demonstrated similar traits of maturity and being child focused. I have no doubt from her evidence that she is legitimate in her feelings of loneliness in Launceston and has a real desire and preference to reside closer to her extended family and older friendships in Victoria. Nevertheless, I also detected a respect by Ms Kado for the parenting relationship between X and Ms Fawkner and a genuine desire to support that relationship. She did not give evidence in any way personally critical or derogatory of Ms Fawkner.
It was something of an unusual pleasure in these Courts to hear a parenting application where the focus of both participants was firmly on the best interests of X and where they did not lapse into personal deprecation and disparagement and where the focus remained on their young son rather than on any personal residual animosities. I am sure that X will continue to benefit by two such loving and altruistic parents.
Witness – Mr H
The applicant adduced evidence from her brother, Mr H, who provided an affidavit of 4 March 2020. He was cross-examined briefly. He presented as supportive of his sister and X. His evidence was otherwise unremarkable.
Witness – Ms J
The respondent adduced evidence from her mother Ms J. Her affidavit was sworn 13 September 2019. She too was cross-examined briefly. Ms J was supportive of her daughter without being critical of the Ms Fawkner. She confirmed that she is willing and able to give actual, emotional and financial support to Ms Kado and X.
Witness – Mr C
Mr C is a clinical psychologist. He gave evidence on behalf of Ms Kado who has been his client/patient since March 2020. Ms Kado was referred to him by her general practitioner and the relationship has been one of therapist and patient. He did, however, provide an assessment report on Ms Kado dated 21 March 2020. He confirmed a diagnosis of 'Depression and Anxiety'. He viewed this as being Reactive Depression with a basis of Ms Kado's feelings of loneliness and isolation in Tasmania together with the breakdown of her relationship with Ms Fawkner. He describes Ms Kado as presenting at the interview 'as sad and anxious'. He says that she scored very high on the scales of depression, stress and moderately for anxiety.
Mr C was cross-examined. He agrees that, as Ms Kado's therapist, his history and the veracity of that history is only so good and accurate as provided by Ms Kado. Indeed, in his evidence he admitted that he was unaware of Ms Kado’s work and social history in Tasmania.
In his report Mr C opines in the final paragraph:
Ms Kado’s mental health, should she be obliged to remain in Tasmania, will continue at current levels of Depression and stress. Should there be movement in these mental health areas in the future, it is more likely that they will deteriorate than improve. Apart from brief contacts with Ms Fawkner at handovers and with other mothers at playgroup, Ms Kado has little contact with others. She is not made any friendships in Tasmania other than with her ex-partner, a relationship that is now distant and cold. Ms Kado came to Tasmania to be with Ms Fawkner and, following the failure of that relationship, Ms Kado has no interest in or desire to be in Tasmania.
Should Ms Kado be obliged to remain in Tasmania she will continue to feel trapped, friendless, and isolated from a loving and supportive family.
Mr C notes that Ms Kado has not previously suffered any mental health disturbance and confirms that the current diagnosis is solely reactive/situational.
In his evidence in Court, as well as admitting not being informed of Ms Kado's previous work and social history, Mr C stated that there had been improvement in Ms Kado's mental state during his therapy with her and 'that she was heading in the right direction'. He agreed to an extent that Ms Kado presented as a mature 28 year old with significant skills including but not limited to continuing to be an excellent parent for her child and despite her depression and anxiety. Specifically, Mr C stated that these very litigious proceedings themselves are a causal element of Ms Kado's current mental state and that the simple conclusion of the Court proceedings will be of some benefit to her. Whilst confirming Ms Kado’s likely continued unhappiness, Mr C stated that Ms Kado would ‘cope’ if required to remain in Tasmania.
Mr C recommends continued therapy for Ms Kado and is willing to conduct this at least for the remainder of this year.
Relevant Law
Whilst the wishes and preferences of each of the parents are obvious in the cases that they mount, it is proper and trite to observe that it is X's best interests that are the paramount consideration for this Court pursuant to s.60CA of the Act.
It is notable that the Family Law Act itself is silent as to the concept of 'relocation'. It follows that a relocation of a child is neither expressly prohibited by law nor is there a presumption against it. That is, any proposal by a parent to relocate a child is just one of a plethora of factors to be considered, given weight and balanced by trial judges in arriving at orders which, on that balance, meet the child's overall best interests.
It is proper to emphasise in matters involving a proposed relocation of a child that any consideration of parenting orders should not dissect the matter into discrete issues of, firstly, with whom the children shall live and then, secondly, a further or separate determination as to whether a relocation should be 'permitted'[1].
[1] Paskandy v Paskandy (1999) FLC 92-878; Taylor v Barker (2007) 237 FamLR 461
The Full Court in Taylor v Barker (supra) noted:
In our view, his Honour dealt with the relocation proposed in the context of his considerations of s 60CC and s 65DA at least insofar as it was possible to do so. It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, so far as is possible, in the context of the making of the necessary findings in relation to s 60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s 65DA.
S.61DA of the Act offers a presumption that parents have equal shared parental responsibility for a child. 'Parental responsibility' is defined in the Act as ' … all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.' In a practical sense, parental responsibility rests in the making of long-term and important decisions for a child and usually manifesting in matters such as education, religion, medical procedure and the like and as distinct from the more mundane day-to-day decisions that parents would normally make for their children.
Each of the parties concedes an order for equal shared parental responsibility. The relevance, therefore, is that an order for equal shared parental responsibility then mandates the Court to follow a statutory and intellectual course of consideration where, firstly, the Court is to determine whether it is both in the child's best interests and reasonably practicable for the child to spend an equal time arrangement between the parents. If the answer to either of these questions is in the negative then the Court must move to then considering whether it is both in the child's best interests and reasonably practicable for the child to live between the parents in a regime of 'substantial and significant time'. Such is defined in the Act as time with a parent that includes both weekdays and weekends and that allows the child and the parent to mutually enjoy each other's activities. In a realistic sense, the proposals of Ms Fawkner sit comfortably with a regime of 'substantial and significant time' which, of course, would also be the case should she relocate to Town A. However, the proposal of Ms Kado absent Ms Fawkner moving to Town A would not fit comfortably with either equal time or 'substantial and significant’ time regimes. Again, in a practical sense, once X becomes of school age then his time with Ms Fawkner, if in Tasmania, would probably be limited to school holidays or perhaps some odd weekends.
The High Court in MRR & GRR[2] dealt with a parenting application involving a proposal to relocate a child. In that matter there were similar issues of the mother feeling isolated and lacking a support network and hence wishing to relocate with the child. Their Honours noted at [15]:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in X, (the trial judge) was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
[2] [2010] 240 CLR 461
Given that the concept of 'relocation' is not given statutory effect in the legislation, superior Courts have developed over time a set of principles so as to assist trial judges in dealing with parenting matters involving the proposed relocation of a child. Those principles can be summarised as follows:
(a)Relocation matters are to be determined generally in accordance with Part VII of the Act and within the context of making the necessary findings relevant to children's best interests with reference to the factors in s.60CC of the Act but also within the context of s.65DAA considerations of equal time or 'substantial and significant time' and ‘reasonable practicability’;
(b)The child's best interests remain the paramount but not the sole consideration;
(c)Neither party bears an onus to establish that the relocation or a continuation of an existing regime will best promote the interests of the child;
(d)An applicant for relocation need not show 'compelling reasons' in support of the relocation but must, in my view, give or adduce probative evidence which permits the Court, on balance, to find that a parenting order which involves a relocation of a child is in that child's best interest;
(e)The child's best interest must be weighed and balanced with the open 'right' of a parent’s freedom of movement but such right must ultimately defer to the child's best interest;
(f)The Court must consider the advantages and disadvantages of each of the parent’s proposals including the proposed relocation and may, if required, formulate proposals itself in the best interests of the child.
The child's best interests are determined on a weighing and balancing of the probative evidence and the parents’ proposals with reference to the mandatory considerations set out in s.60CC(2) and (3) of the Act. Those pragmatic considerations are based upon the objects and principles of the Act set out in s.60B as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) 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 to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly 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; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The s.60CC factors are divided into ‘primary’ and ‘additional’ considerations at subsections (2) and (3). Nevertheless, there are no hierarchical distinctions or priorities of those considerations and each matter must be considered in respect of the particular evidence and the proposals of the parties.
Section 60CC Factors
s.60CC(2)(a) - the benefit to the child of having a meaningful relationship with both parents
In a practical sense this is the consideration that focuses the case of the Ms Fawkner. She argues that X is of such a young age that his relationship with her will suffer by reason of removal of its frequency because of the geographical and logistical considerations.
It is important, however, to note that whilst this consideration is a 'primary one', it is not in itself determinative of the dispute or the best interests of X. The Full Court in Champness & Hansen[3] considered a submission in this regard as follows:
The submissions of Counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial judge to make orders most likely to ensure the children had a 'meaningful relationship' with both parents. This is an incorrect assumption. The Court’s obligation is to make orders most likely to promote the child's best interests. In seeking to achieve that objective, s60CC(2)(a) directs the Court to consider 'the benefit to the child' of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors.
[3] (2009) FamCAFC 96
Both parents concede X has an established, successful, comfortable and attached relationship with the other.
The family reporter opines at [64] – [66]:
X has reportedly experienced a close care relationship with both Ms Fawkner and Ms Kado since birth. He has experienced extended periods of up to 7 days with each parent and has reportedly coped with these well and with the separation from the other parent. While X presented as having a close and strong relationship with both mothers, extended time away from either may be experienced as difficult for him. X is at an age where he does not have the capacity to tolerate long periods away from a care giver and would have significant difficulties holding a care giver in his mind if there were extended periods of time away from their care.
….
X is at an age and developmental stage where it would be difficult for him to maintain a developing and significant relationship via phone or video applications.
s.60CC(2)(b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Pleasingly and fortunately, matters of family violence do not feature highly in the matter now before me. Each of the parents make references to ‘controlling’ behaviour by the other. Neither was cross-examined to any great extent in respect of this issue. To the contrary, and again, I observed a mutually respectful relationship between Ms Fawkner and Ms Kado. I expect any such issues are simply situational upon the breakdown of their relationship and perhaps this Court case.
s.60CC(3)(a) - any views expressed by the child and any factors such as the child's maturity or level of understanding
X is just two years of age and not able to formulate views and preferences as to his living arrangements.
s.60CC(3)(b) - the nature of the relationship of the child with each of the parents and any other persons
All of the indications, and the concessions of both parents, are that X has developed a comfortable and dependant relationship upon each of his mothers. The observations of the family reporter are that he transits easily between them. The issue for the Court, therefore, is a consideration of the impact on the nature of that relationship with Ms Fawkner should X relocate with Ms Kado to Victoria and Ms Fawkner not follow? The family reporter indicates that frequency of time between young children and a parent is directly related to the quality of those relationships.
s.60CC(3)(c) – the extent to which each of the children child's parents has taken, or failed to take, the opportunity to participate in making decisions about long-term issues in respect of the child and to spend time and communicate with the child and the extent to which each of the child's parents has fulfilled, or failed to fulfil, the obligations to maintain the child
Some reference was made to the fact that Ms Fawkner is in employment, whereas Ms Kado is unemployed but there is no child support paid. It seems, however, that there is some mutual agreement between the parties in circumstances where Ms Kado has not made an application for child support assessment. In any event, I expect that each of the parents contributes to the child's daily needs when he is with that particular parent.
In all other respects I find each of these parents devoted to their son and to his needs.
s.60CC(3)(d) - the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of the parents or any other person with whom he has been living
This consideration is at the crux of my determination. X currently spends time with each of his mothers during each week. His familiarity and comfort with each mothers is apparent from the observations of the family reporter. Without Ms Fawkner following, Ms Kado's proposal represents a significant change for X in his living arrangements. That is, he would move from effectively a shared care arrangement, to one where Ms Kado would become his primary parent. Conversely, his time with Ms Fawkner would reduce significantly in quantum and also in its frequency.
s.60CC(3)(e) - the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain that personal relationship and direct contact with both parents on a regular basis
This is a significant consideration. Ms Kado is currently unemployed although she has ambitions of work in the family company at Town A. Nevertheless, she supports her application to relocate with X by offering to meet six return trips for the child to Tasmania each year. At such a young age, X would need an accompanying adult which, of course, incurs further costs. On a longer viewpoint, when X attends school then such opportunities to visit Tasmania would be limited to school holidays.
Ms Fawkner says that she would herself move to Town A if the Court allows X to move with Ms Kado. On reflection, however, this might simply create the same difficulties that now confront Ms Kado and the Court where she would be relocating to a town where she has no prior connection, no support network, no employment and no housing. There is some irony in Ms Kado asking the Court’s imprimatur to move from Tasmania because of the loneliness and feeling isolated but then supporting Ms Fawkner to make a move in similar circumstances. Realistically, a move for X to Town A without the move by Ms Fawkner will inevitably present logistical and financial hurdles for these two young mothers into the future.
s.60CC(3)(f) - the capacity of each of the parents and each other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
All of the evidence suggests that prima facie each of Ms Fawkner and Ms Kado are very capable parents for X. The issue for the Court is the impact, if any, on Ms Kado's capacity to care for X should she be required to remain in Launceston. She is diagnosed with reactive depression and anxiety. She says that she is lonely and socially isolated. Nevertheless, her psychologist Mr C says that there is no observable impact to date on her parenting capacity. She is and remains an excellent parent for X. Although he says that she is improving in her mental health, Mr C's concern is that Ms Kado’s symptoms may be exacerbated and entrenched if she is 'forced' to remain in Launceston. To the contrary, however, my observations of Ms Kado in giving her evidence were of a mature, intelligent and capable individual. She has lived away from her family for many years. She has now lived in Tasmania for almost 5 years. She has obtained employment and previously made social contacts. She maintains some of those contacts through a mothers group. When pressed, Mr C conceded that, on balance, he was of the view that Ms Kado would 'cope' if required to live in Tasmania. It is notable that much of her isolation and loneliness rest with her ambitions to return to Victoria. That is, she has not actively sought employment of late. It is understandable that she chooses not to enter into friendships. Undoubtedly, her preferences is to move away from Tasmania and she would consider obtaining employment and pursuing friendships to be something of a futile exercise. However, my observations of Ms Kado remain in accord with those of her psychologist. Her evidence to me suggested a person of some robustness in her personality. She was confident and forthright in her responses in Court. She did not seek to embellish or 'plead' her case. She came across as a person of some strength of character and she herself did not plead any current compromising of her parenting abilities despite what are undoubtedly her ambitions to move from Tasmania.
Again, of course, the 'symptoms' now experienced by Ms Kado may well become apparent in Ms Fawkner should she herself move to Town A and there will then arise questions as to her capacity, circumstantially and situationally, to care for X.
s.60CC(3)(g) - the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child or either of the parents
The relevance here is X's young age. He is just two years of age. The issues before me bring into question his ability to have memory retention; his ability to negotiate onerous travel and logistics; the impact on his well-established relationship with both of his parents. I note in this respect that the family reporter provides a suggestion that the issue of Ms Kado's relocation with X might be 'reconsidered' when he is older and perhaps of school age.
s.60CC(3)(h) - if the child is Aboriginal or Torres Strait Islander
Not relevant.
s.60CC(3)(i) - the attitude to the child and the responsibilities of parenthood demonstrated by each of the child's parents
These reasons should not be read in any way critical of Ms Kado's desire to return to Town A. She was raised in the Town A area. Her family and more established friendships remain in that area. That is where she lived until 2015. She is undoubtedly experiencing some form of loneliness and isolation following the demise of her relationship with Ms Fawkner. Nevertheless, her attitude remains forthright and her priorities centre on X's best interests.
The position taken by Ms Fawkner that she would consider moving to Town A herself should the Court accede to Ms Kado's application speaks volumes of Ms Fawkner's attitude to the best interests of her son.
s.60CC(3)(j) and (k) - any family violence involving the child or members of the child's family and any family violence orders that are applicable
Not relevant.
s.60CC(3)(l) - whether it would be preferable to make the order that would be less likely to lead to the institution of further proceedings in relation to the children.
Orders made in family law proceedings are by their very nature prospective with a hope and expectation that they will operate successfully into the future. Nevertheless, there are always unknowns and inevitably changes of circumstances of either the parents or the child. An obvious example, is Ms Fawkner’s generous concession that she might consider moving to Town A if the relocation of X is permitted. This would create numerous 'unknowns' for her and the parallels with Ms Kado's current issues are transparently obvious. As such, together with the issues of travel costs and logistics, further litigation is always a possibility in such matters. However, it should not be lost on the parents that the Court is making orders now which, so far as it can, deal with the child's best interests prospectively on the basis of a weighing and balancing of current and past circumstances. Family Law litigation is commonly a destructive process in itself for children and it therefore beholds these parents to embrace the orders and findings of the Court so as to then move forward and parent their child.
Findings and Conclusions
I am easily able to find that X has a well-established, successful and meaningful relationship with both of his mothers.
Despite the failure of their own relationship, I am satisfied that each of these mothers remains respectful of the other and of the other’s relationship with X.
I accept that Ms Kado has an understandable desire to move back to Town A where she has the approximate support of family and friends and that circumstantially she now feels isolated and lonely in northern Tasmania.
I note and accept Ms Fawkner's offer that she too would move to Town A if the Court permits Ms Kado and X to relocate. Nevertheless, I do not accept that such would represent an 'easy' solution in this matter. I fear a strong likelihood that Ms K would then potentially experience the same difficulties as now complained by Ms Kado.
Should X relocate to Town A with Ms Kado but Ms Fawkner remain (or return) in Tasmania then there would necessarily be travel and logistical problems that may test the resourcefulness of both of these good mothers. Travel between Town A and Tasmania requires both aeroplane and train travel and would be onerous accordingly and particularly so for a young child. The expenses of such travel would test the financial resources of each of these mothers. As X moves into school and develops peer group relationships then again further conflicts might easily arise.
Matters involving the proposed relocation of a child are amongst the more difficult of cases coming before Family Courts in Australia. Whereas the majority of parenting cases call upon a Court to be creative in constructing orders with fine discretions in distributing children's time between their parents, matters involving relocation are more stark and limited in the options available for the Courts. If a Court makes an order allowing a child to relocate then inevitably the nature of the child's relationship with the remaining parent will be fundamentally changed and possibly negatively impacted. Opportunities for high frequency, flexibility and spontaneity in contact between the child and the remaining parent will be lost. Contact between the child and the parent might be substituted by the use of media but the experts suggest that this is not always an adequate option and certainly not for a child as young as X. It follows that the 'remaining' parent will often be left understandably aggrieved with a sense of loss and possibly leading to residual bitterness between the parents themselves.
Conversely, however, the refusal of a parent’s application to relocate a child can equally result in that parent being left aggrieved, bitter and unfulfilled in their ambitions. The impact on a child of living with an unhappy and possibly depressed parent are obvious. Ms Kado’s current issues may be compounded accordingly.
There are obvious benefits and detriments to each of the parents’ proposals. There is merit to Ms Kado's argument that she would be happier if she returns to her preferred area of abode in Town A. She will have familiar networks of support. It is easy to logically conclude that if she is happy then there will be consequent positives for her parenting and for X himself.
The negatives of Ms Kado's proposal are the positives for Ms Fawkner's argument. That is, X is still a young child and has developed a meaningful and attached relationship with both of his mothers. He is of an age where that relationship with Ms Fawkner might reasonably be expected to suffer if it changes in nature and type because of the geographical constraints caused by a relocation to Victoria.
Not unusually in such matters my determination is very finely balanced. Of course, if both parties decided objectively to move to Victoria without the compulsion of the Court orders then that might ultimately be of benefit to X. That is not, however, the situation. Ms Fawkner's concession is based only on me first determining that X be permitted to move to Victoria.
After lengthy reflection and consideration, I am of the view that X’s best interests are served by him remaining in a proximate location to each of his parents and hence being allowed a high frequency of contact with each. Whilst I accept as legitimate the mother's preferences and current issues with loneliness and isolation, I was impressed with her as a witness and saw traits of strong character and resilience. She is soon to be 29 years old. She shows some real maturity. She has had the benefit of improvement in her situation with the assistance of Mr C the psychologist. This mother has previously demonstrated her resourcefulness in obtaining employment, joining sports teams, and friendship groups including the mother's group of which is still a member. Mr C gives evidence that the mother is moving forward and in the right direction in dealing with her issues. Significantly, however, there is no evidence that she would not 'cope' personally or in her parenting if her ambitions to return to Town A are denied. She is an excellent parent and all of the indications are that she will remain so. I am confident, after seeing and hearing Ms Kado give evidence, that she would return to the workforce and establish friendship relationships in Tasmania. Further, she still has the benefit of a supportive family. Her mother was impressive in her willingness to support her daughter. Ms Kado herself would be able to travel on occasions to Victoria because she would, of course, have the continuing assistance and support of Mrs Fawkner in her parenting of X.
The to the contrary, to allow X to move to Victoria would have significant impact on him and, in particular, in his relationship with one of the most important people in his life namely Ms Fawkner. That relationship would inevitably change in character and in type. He is of such a young age that it is unlikely that the relationship in its current form would endure the change in circumstances. His relationships with his mothers are the two most important and beneficial relationships currently in his life. He derives benefit from both. He looks to both for support. Put simply, any geographical change which would not permit the continuing of those two beneficial relationships would be contrary to his best interests.
I intend to make orders which therefore continue X’s current high frequency of relationships between his parents. I note that he currently spends two nights but three days with each of his mothers. Ms Fawkner seeks to extend that but only so far as to add an extra night. Such might allow Ms Kado more access to part-time employment in the fields in which she has previously been employed and in any event there is little or no difference in the capacities or resources of these two excellent mothers. I am confident, in any event, that they are so respectful of each other that they will permit and allow any adjustments in the duration of X’s time between them that attend to his best interests. In that sense, I prefer the proposals of Ms Fawkner but fully expect that there will be adjustments negotiated between these parents when X reaches school age.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Associate:
Date: 23 June 2020
Key Legal Topics
Areas of Law
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Family Law
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