Fletcher and Fletcher
[2014] FCCA 2798
•11 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FLETCHER & FLETCHER | [2014] FCCA 2798 |
| Catchwords: FAMILY LAW – Parenting – relocation – reasonable practicability –mother’s capacity to be primary parent – whether mother suffering from diagnosed depression – effect on nature of children’s relationship with the father of a relocation. |
| Legislation: Family Law Act 1975 |
| Champness & Hanson [2009] FamCAFC 96-103 G & C [2006] FamCA 994 Jones v Dunkel (1959) 101 CLR 298 Mazorski v Albright [2007] 37 FamLR 518 McCall & Clark [2009] FLC 93-405 MRR v GR [2010] 240 CLR 461 Paskandy & Paskandy [1999] FLC 92-878 [86,456] Taylor & Barker [2007] FLC 93-345 |
| Applicant: | MS FLETCHER |
| Respondent: | MR FLETCHER |
| File Number: | MLC 1833 of 2014 |
| Judgment of: | Judge McGuire |
| Hearing date: | 26 & 27 November 2014 |
| Date of Last Submission: | 27 November 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 11 December 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dickson, QC |
| Solicitors for the Applicant: | Coulter Roach |
| Counsel for the Respondent: | Mr Nehmy |
| Solicitors for the Respondent: | Schetzer Constantinou |
ORDERS
The parents have equal shared parental responsibility for the children X born (omitted) 2006 and Y born (omitted) 2008.
The mother be and is hereby restrained from moving the permanent residence of the children from the (omitted) area without the express written consent of the father.
Subject to paragraph 2 herein the children live with the mother.
The children spend time and communicate with the father as follows:
(a)During week 1 from the conclusion of school Wednesday to 5.00p.m Sunday;
(b)During week 2 from the conclusion of school Thursday to 8.00p.m save that in the event that the children participate in Auskick on a weekday then on that weekday from the conclusion of school to 8:00p.m;
(c)At Christmas as agreed between the parties but failing agreement:
(i)From 3.00 p.m Christmas Eve to 3.00 p.m Christmas Day 2014 and each alternate year thereafter;
(ii)From 3.00 p.m Christmas Day to 3.00 p.m Boxing Day 2015 and each alternate year thereafter;
(d)Provided that in any event the children spend time with the mother from 3.00 p.m Christmas Day to 3.00 p.m Boxing Day 2014 and in each alternate year thereafter and from 3.00 p.m Christmas Eve to 3.00 p.m Christmas Day in 2015 and in each alternate year thereafter.
(e)During Easter at times to be agreed upon and failing agreement:
(i)From 3.00 p.m Easter Sunday to 3.00 p.m Easter Monday commencing 2015 and each alternate year thereafter; and
(ii)From 3.00 p.m Easter Saturday to 3.00 p.m Easter Monday commencing 2016 and each alternate year thereafter.
(f)On Father’s Day from 5.00 p.m from the day prior until 7.00 p.m on Father’s Day provided that if the children are otherwise with the father pursuant to these orders on the mother’s day weekend then his time finish at 5.00 p.m on the Saturday.
(g)On the children’s birthdays:
(i)From 3.00 p.m to 7.00 p.m if the birthday(s) falls on a non-school day; and
(ii)From 5.00 p.m to 7.00 p.m if the birthday(s) falls on a school day
(h)On the father’s birthday:
(i)From 3.00 p.m to 7.00 p.m if the birthday falls on a non- school day ; and
(ii)From 5.00 p.m to 7.00p.m if the birthday falls on a school day;
(i)For one half during each of the three mid-year school term holidays at times to be agreed and failing agreement:
(i)For the first half during each of the three mid-year school term holidays during 2015 and each alternate year thereafter; and
(ii)For the second half during each of the three mid-year school holidays commencing 2016 and each alternate year thereafter;
(j)for one half during the long school summer holidays at times to be agreed and failing agreement:
(i)for the first half of the 2014/2015 long school summer holidays and each alternate year thereafter; and
(ii)for the second half of the 2015/2016 long school summer holidays and each alternate year thereafter;
(k)such further times or variation of the above as may be mutually agreed upon.
IT IS NOTED that publication of this judgment under the pseudonym Fletcher & Fletcher is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1833 of 2014
| MS FLETCHER |
Applicant
And
| MR FLETCHER |
Respondent
REASONS FOR JUDGMENT
Applications
These proceedings concern the parties' two children, X born (omitted) 2006 (aged eight years) and Y born (omitted) 2008 (aged six years). Financial matters were also at issue but, to their credit, the parties had agreed orders prior to the taking of evidence.
There are no extant orders in respect of X and Y.
The mother is the applicant. She seeks orders whereby X and Y live with her but she be permitted to relocate them from (omitted) to (omitted) which is near (omitted), approximately one hour travel south-west of Sydney.
The father opposes the relocation. There is, however, no issue as to who should be the primary parent of the children given that the mother concedes that she will remain living in (omitted) if the court does not permit the relocation.
Both parties seek orders for equal shared parental responsibility.
The father proposes that the children remain living in (omitted) and spend time with him on a two-week cycle of after school Wednesday to 5 pm Sunday in week one and from after school Thursday until 8 pm in week two. He proposes that the school holiday time be shared.
The mother seeks orders whereby the children live with her in (omitted) and that the children spend time with the father twice per month during 2015 alternating between (omitted) and (omitted). From 2016 her proposal differs in that the children would spend half the school holidays with their father but time during school term be limited to one weekend in each term plus the Queen's birthday weekend with other time in Sydney at the father’s election. The mother says that she would be responsible for the costs of travel in 2015 but costs to be shared thereafter.
Background
The wife is 37 years of age. The husband is 40 years old. They commenced cohabitation in 2000 or 2001 and married on (omitted) 2003. The wife had been previously married.
The parties lived initially in (omitted) but moved to (omitted) in 2008 and apparently for convenience of access to an airport which might have assisted the father in his employment travel and the mother in her travel to New South Wales to visit relatives.
The wife is an (occupation omitted). She runs her own firm and employs four people. Her unchallenged evidence is that the nature of her business is of minimal face-to-face client contact and she says that she could maintain her business, which has offices in (omitted) and Perth, whilst living in New South Wales.
The father is also self-employed. He is in a partnership as an (occupation omitted).
The father's extended family live mainly in the (omitted) area. The mother says that she has historically enjoyed a good relationship with them.
The mother's extended family live in the (omitted) district of New South Wales. She has two sisters who live adjacent to her parents' home. She has a brother in Tasmania. The sisters have young children.
It is unchallenged that the mother suffered post-natal depression following Y's birth in 2008. She now says that she again suffers from depression and following the breakdown of the marriage. Her evidence is that she has been medicated for this condition since October 2013 and has consistently had psychological assistance. The force of the evidence suggests that the mother has been able to continue the management of her business.
The children attend school in (omitted). The evidence suggests that they are progressing satisfactorily both academically and socially. Both children suffer from a form of dyslexia.
There is no evidence that the father has re-partnered although he volunteered in evidence that he has had "girlfriends" since separating from the mother. The mother admits to being in a relationship with a man known only as "Mr A". Her evidence in cross-examination was that she would continue the relationship with Mr A should the relocation not be permitted but anticipated the demise of that relationship should she and the children relocate to New South Wales. Mr A did not provide an affidavit. The mother and Mr A do not live together.
The mother's parents are both retired. The maternal grandmother is a retired (occupation omitted) with expertise with (omitted). The evidence is that the maternal grandparents have travelled regularly to (omitted) to support their daughter, both actually and emotionally. The mother has also travelled regularly to New South Wales.
The issues
The mother says that she is desirous of physical and emotional support from her family in New South Wales. Her counsel in opening, however, did not anticipate argument that the mother could not 'cope' if not permitted to relocate with the children. As he put it, "This is a second string of argument". Rather, the argument on behalf of the mother was mounted in a positive sense, that the children would benefit by their mother being happier in her environment and having available support, physically and emotionally, from various members of her extended family.
The implication of the mother's argument is that she is and has been the unchallenged primary parent for X and Y and that she wants freedom of movement to pursue her happiness to its fullest potential and that this would vicariously be in the children's best interests.
The mother argues that the children have a strong and established relationship with their father and that she will facilitate and encourage regular time between them during both school terms and school holidays and that her proposal in this regard is reasonably practicable.
Conversely, the father argues that the mother not only has no 'compelling' reasons for a relocation but that her mere preference as to her living arrangements is contrary to the children's best interests. He argues that the children are young and would benefit by greater frequency of time with him than the mother's proposal allows. He says that the mother's proposed orders do not allow for his involvement in the children's schooling and extra curricular activities or for spontaneous and flexible time with the children.
The father argues that the mother's proposals for the children's travel between New South Wales and Victoria are expensive and impractical and, in any event, so onerous as to be contrary to the children's best interests.
The evidence
The mother relied on her trial affidavit sworn 12 November 2014. She also adduced evidence from her father, Mr T. His affidavit was sworn 11 November 2014. Both the mother and Mr T were cross-examined.
The mother prepared a spreadsheet in respect of travel times and airline costs. That document was received in evidence as an exhibit. She also caused to be tendered some email communications between the parties in respect of a dispute as to whether or not the father requested extra time with the children.
The father relied on his trial affidavit sworn 12 November 2014. He adduced no further evidence other than exhibits also being email communications on the same point.
In respect of the parties' credit, I am satisfied that they were both generally witnesses of the truth. I observed the mother, however, to be understandably keen to shore up her own case at every opportunity and, at times, her evidence, both in cross-examination and in her affidavit, was selective, if not misleading.
I observed the father to be a witness of the truth. He was, at times, assertively defensive in his responses in cross-examination and it is clear that he remains unhappy and perhaps embittered by the demise of his marriage.
The paternal grandfather was understandably partisan in his evidence and in favour of his daughter. Nevertheless, I am satisfied that he is supportive of Ms Fletcher and the grandchildren and would continue to be so whether they live in New South Wales or Victoria.
Family report
Dr J, clinical psychologist, provided a family report and psychological assessment in this matter. She interviewed and observed the parties and the children on 23 May 2014 and completed psycho-metric testing in respect of the parents on that day.
The parties' history was reported to Dr J consistent with their affidavits. The general quality of these parents is recognised by Dr J at page 17 of her report and in accordance with my observations and findings, as follows:
It is a great credit to these parents that they appear to have raised their children to be so happy, settled and content, despite the recent conflicts and disagreement in their family. Neither child shows any awareness of the present disagreements between their parents over the proposed relocation, and both children are confident, capable and apparently resilient children. Mr and Ms Fletcher appear to have protected them from their conflict in an admirable way and the children appear oblivious to the present dispute.
Dr J observed Mr Fletcher as follows and also reported on page 17:
Assessment of Mr Fletcher suggested that he is a loving and dedicated parent who is suffering considerable adjustment issues arising from his separation with Ms Fletcher. He conveyed that he finds Ms Fletcher's actions over their separation and since to be incomprehensible and he described her as acting in unusual ways. His conceptualisation of his problems with Ms Fletcher suggested that he had a level of confidence in Ms Fletcher before the separation that is now shattered because of her perceived actions since that time. Mr Fletcher often seemed to take an unconscious superior stance with Ms Fletcher that suggested to me he may lack insight about his own contributions to the conflicts and problems in the relationship.
In respect of Ms Fletcher on the same page, Dr J opined:
Ms Fletcher impressed as a sophisticated woman with some tendencies to over-accommodation of others and disinclination to recognise her own needs. She impressed as a high achiever who may have some underlying confidence issues. She appeared to be suffering some symptoms of depression and there were some indications that these may be more significant than she is prepared to admit. While Ms Fletcher suggested that she has consistently taken an appeasing approach with Mr Fletcher, I noted that she made various admissions about her actions in different situations (eg: her participation in developing a school in (omitted), visiting her family in Sydney, and the way she separated from Mr Fletcher) which, from a different perspective, could be seen as provocative rather than conflict-avoidant. In these examples she suggested that she continued in her actions despite knowing of Mr Fletcher's opposition. I am not sure that Ms Fletcher has appreciated how her actions have apparently contributed to the dynamic between her and Mr Fletcher.
Dr J observed X as a happy, spirited, vivacious, confident child. She suggested that X had close and intimate relationships with both parents and extended family members on both sides.
Dr J observed Y as enjoying relationships with both parents and developing satisfactorily. Both children impressed Dr J as resilient and optimistic.
Dr J conducted psycho-metric testing on each of the parents. The results in respect of Mr Fletcher were unremarkable.
Dr J concluded a clinical profile in respect of Ms Fletcher showing "a single significant elevation on the Depression Effective Scale" suggesting "feelings of dysphoria and unhappiness without any particular cognitive targets".
In respect of the mother's personality profile Dr J concluded:
Outside of these results, Ms Fletcher's PAI scores also suggested that she generally has a stable and positive self-evaluation, that she is normally an outwardly confident and optimistic person and has a clear sense of purpose and distinct convictions.
Dr J considered and addressed the various issues now before this court and arising from the mother's proposed relocation of the children. She noted:
·That the children are happy, well-behaved and developing well and with loving, trusting and confident relationships with each parent;
·That both parents are capable of providing for the children's needs;
·That she harboured concerns as to whether Ms Fletcher's proposal for the children to travel from (omitted) to (omitted) once per month is a feasible arrangement for these young children "who should be considered in the lower ranges of emotional development for their ages";
·That the children would struggle to travel independently and that the cost of an accompanying parent may make such travel impractical;
·That a relocation will necessarily affect to a degree the children's relationship with their father and "their lovely confidence and surety about their place in the world". Issues of the father's physical absence, a sense of distance from him/unavailability, and practical issues preventing his participation in their daily life would all be experienced by the children adversely;
·Nevertheless, the children's confidence and good development suggests resilience and adaptability;
·That the children's relationship with their father is well established and time-with could be supplemented by electronic means of communication;
·Dr J was "most concerned" about Ms Fletcher's mental health and that, should she be not permitted to relocate, then "her prognosis should be considered poor" and it is "likely that her depression will intensify" which would negatively impact on her parenting of the children;
·Dr J also harboured concerns as to Mr Fletcher's emotional capacity to deal with any potential relocation of the children and she anticipated the need then for therapeutic assistance for him;
·That should the children relocate then regular time with the father should take place but travel for the children could prove onerous;
·That should the children remain living in (omitted) then a regime continuing the current arrangement would be in the children's best interests.
The relevant law
Part VII of the Family Law Act 1975 ("the Act") provides for parenting orders. Significantly, there is no specific reference in that part of the Act to the concept of "relocation". Rather, the Court, in all parenting matters, is mandated to determine orders which are in the best interests of children and reasonably practicable in their operation.[1] It follows, therefore, that a relocation of children is neither prohibited in the Act nor is there a presumption against it. A proposal to relocate children will permeate the numerous considerations that the Court is required to reference in respect of the parties' proposals and the evidence before the Court in arriving at orders which are, on balance, in the best interests of the children. It is these best interests of children which is the Court's paramount consideration.[2]
[1] MRR v GR [2010] 240 CLR 461
[2] Section 60CA of the Act.
In determining children's best interests the Court is mandated to reference a number of factors set out in section 60CC of the Act. The framework for those pragmatic considerations is provided in the objects and principles of the legislation set out in section 60B of the Act which provides:
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).
There is a presumption in the Act that parents will have equal shared parental responsibility for their children.[3] Parental responsibility is defined[4] as "...all the duties, powers, responsibilities and authority which, by law, parents have in relation to children". This responsibility normally manifests in the important long-term decisions to be made for children in matters such as education, religion, medical procedure and the like.
[3] Section 61DA(1) of the Act.
[4] Section 61B of the Act.
The presumption of equal shared parental responsibility does not apply if there are reasonable grounds for the Court to find that a parent of a child has engaged in abuse of the child, another child in that home, or in family violence (within the broad definition of that term in the Act).[5] Matters of family violence do not feature in this matter. Alternatively, however, the presumption of equal shared parental responsibility may be rebutted by evidence satisfying the Court that it would not be in the best interests of the children for their parents to exercise that responsibility.[6]
[5] Section 61DA(2) of the Act.
[6] Section 61DA(4) of the Act.
In the matter now before me, each of the parties proposes an order for equal shared parental responsibility. The significance, however, is that upon the presumption applying and not being rebutted, the Court is obliged to consider specific parenting regimes for the children and to determine whether those regimes be both in the children's best interests and reasonably practicable. Firstly, the Court is to consider whether the children spending equal time between their parents is in their best interests and reasonably practicable. If the answer to either of those questions is in the negative then the Court turns to consider whether the children spending "substantial and significant time" between their parents is both in their best interests and reasonably practicable. "Substantial and significant time" is defined in the Act[7] as follows:
[7] Section 65DAA(3) of the Act.
For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) The time the child spends with the parent includes both:
(i) Days that fall on weekends and holidays; and
(ii) Days that do not fall on weekends or holidays; and
(b)The time the child spends with the parent allows the parent to be involved in:
(i) The child's daily routine; and
(ii)Occasions and events that are of particular significance to the child; and
(c)The time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The current arrangements for these children fit with the definition of "substantial and significant time". The father seeks a continuation of these orders. Neither party proposes a regime of equal time. The mother, however, on account of her proposed relocation, seeks orders that do not fit with either definition of "equal time" or "substantial and significant time".
Matters coming before the Courts, therefore, involving a proposed relocation of children tend to highlight the difficulties for the Court's consideration where factors of distance, geography, and travel logistics usually render regimes of "equal time" or "substantial and significant time" impracticable. Nevertheless, the Court's mandatory pathway of consideration remains.
Given that a proposal by one parent to relocate children is just one of the numerous considerations to be undertaken by the Court and relevant to the children's best interests, it is not proper to separate the issues of, firstly, with whom a parent should live and then, secondly and separately, whether a relocation should be "permitted".[8]
[8] Paskandy & Paskandy [1999] FLC 92-878 [86,456] and Taylor & Barker [2007] FLC 93-345
Superior Courts have over the years attempted to develop a set of principles or considerations relevant to matters involving a proposed relocation of children. It appears that those principles survived the significant amendments to the Act in 2006 and can be summarised as follows:
(1)The children's best interests remain the paramount but not the sole consideration for the Court, and such interests must be considered within the context of section 65DAA of the Act (reasonable practicability);
(2)A parent wishing to relocate children does not need to demonstrate "compelling" reasons;
(3)The trial judge must consider each of the parties' proposals together with their advantages and disadvantages but the Court may also formulate its own determination outside of the parties' proposals;
(4)Neither party carries an onus of proof to convince the Court either for or against a proposed relocation;
(5)The children's best interests must be weighed and balanced against the "right" of a proposed relocating parent's freedom of movement but that must ultimately defer to the children's best interests.
Best interests – section 60CC factors
Primary considerations
Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of the children's parents
Each of these parents acknowledges that X and Y has a well-developed, attached, loving and successful relationship with the other parent.
Despite some mutual criticism, I am satisfied that each of these parents have been involved with the children both before and after separation. The observations of Dr J of the children with each of the parents was entirely complimentary and positive.
The father argues that a relocation of the children will impact negatively on his established and meaningful relationship with X and Y. He notes their relative young ages. Dr J describes them both as being at the "lower end of emotional development" and "these kids are young for their age and not street wise at all". Dr J was of the view that the children would suffer a "sense of loss" if distance and less frequent contact is imposed on the relationships with their father. At page 18 of her report Dr J says:
More significantly, allowing the children to relocate with Ms Fletcher is likely to affect to some degree their relationship with their father and their lovely confidence and surety about their place in the world. Their relationship with their father appeared to be a very important component of the confidence and sense of security that they conveyed to me. The physical absence of their father, an expected sense of distance from him and accompanying perception of his unavailability, and the practical issues preventing Mr Fletcher participating and sharing in their daily life, are all likely to be experienced by the children adversely. I would also expect that there would be some considerable adjustments to be made simply because the children have spent most of their life in the known and familiar environment of their community in (omitted).
However, Dr J continues:
At the same time, the children's confidence and good development also suggests that they could make some of those adjustments more easily than other children might do so.
I would also emphasise that the children's relationship with their father appears to be very well established and is likely to remain so on a schedule of seeing him each alternate weekend as proposed by Ms Fletcher, and perhaps supplemented by electronic means of communication. Of course, living in Sydney will not allow Mr Fletcher to participate in the children's school and daily life to the extent that he might if they are living closer to him.
It has been observed that the Act itself does not offer a definition of "meaningful" relationship. In McCall & Clark[9] the Full Court, in accepting the views of judges at first instance,[10] observed that the task for the Court in this consideration is both a qualitative and prospective one. That is, the Court is not occupied in simply allocating quantities of time in weeks, days and hours. Rather, each matter is considered on its own facts and in respect of the current and potential quality of a relationship between child and parent. In this sense, the children's ages, levels of cognitive development, proposed frequency of contact, and the nature of the current relationship are all considered in determining whether or not the children's relationship with the remaining parent can endure a relocation and flourish. As a generalisation, however, it is fair to say that strong and established relationships are more likely to endure and lend support to a proposed relocation whereas a still-developing or problematic relationship between child and remaining parent might argue against a relocation.
[9] [2009] FLC 93-405
[10] Brown J in Mazorski v Albright [2007] 37 FamLR 518 and Bennett J in G & C [2006] FamCA 994
Whilst the father understandably placed significant emphasis on this factor, it is but one of the numerous mandatory considerations for the Court to undertake under section 60CC of the Act. Certainly, it is not in itself determinative of the result. As the Full Court in Champness & Hanson[11] noted:
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, s.60CC(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.
Section 60CC(2)(b) – the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
[11] [2009] FamCA FC 96-103
Fortunately for X and Y, issues of family violence do not feature in this matter.
Section 60CC(3)(a) – any views expressed by the children and any factors (such as the children's maturity or level of understanding) that the Court thinks are relevant to the weight it should give the children's views
To the credit of each of these parents and demonstrating their insight into children's needs and their objectivity, X and Y remain oblivious to the mother's proposal to relocate to New South Wales. These children are still young. They are described as being at the lower end of emotional development for their ages. They have not, and would not be expected to, express views or preferences as to their living arrangements. These children are fortunate in continuing to enjoy successful and comfortable relationships with both of their parents despite the marriage breakdown.
Section 60CC(3)(b) – the nature of the relationship of the children with each of their parents and other persons (including any grandparent or other relative of the children)
The evidence satisfies me that X and Y are fortunate in enjoying loving and frequent relationships with members of their extended families on both the mother's and father's sides. Relatives visit regularly from (omitted) and New South Wales. The parents and the children benefit by the emotional and physical support given to them by extended families. Indeed, the thrust of the mother's case is that she seeks and requires both physical and emotional support from her family in New South Wales.
The nature of the children's relationship with each of their parents is set out above. It has been regular, frequent and enjoyable for both the children and the parents. There was some dispute and cross-examination of the parties at the trial in respect of whether the mother offered the father more time with the children in recent months and/or whether the father declined to take up extra time with the children. I place little store on this issue and prefer that the mother is understanding of the children's needs to have a relationship with their father and would facilitate and encourage that relationship whether she lived in (omitted) or (omitted). Similarly, I am satisfied that this father would reasonably take up any time with his children. When challenged in cross-examination, the father gave plausible explanations as to why his time with X and Y was relatively limited following separation.
Undoubtedly, the nature of the children's relationship with their father would change significantly if the relocation is permitted. Frequency of time would be reduced. The opportunity for extended time on weekends as now takes place would be lost. Importantly, the opportunity for spontaneity, flexibility and involvement in the children's schooling and extra curricular activities would not be available.
Suggestions were made in final submissions that the children's time with their father could be supplemented by other media such as Skype and telephone. Whilst this is undoubtedly true, it is generally accepted that such media are no substitute for direct contact.
Submissions were also made that the children will take on other commitments, interests and relationships that will conflict them in any requirements to travel from New South Wales to Victoria should they relocate. This would be inevitable whether or not the children live in New South Wales or Victoria. This issue is often seen to compound the effects of a relocation on the nature of relationships between children and parent. Nevertheless, I take the view that such an issue when it eventuates involves the skills of parents. If Court orders are made then they should be adhered to. If the parties, or often the children themselves, wish to vary from those orders then it is a matter of parental negotiation, compromise and skill. The tenor of the Act and the authorities, however, have always emphasised that the relationship between a child and a parent is a priority.
Section 60CC(3)(c) – the extent to which each of the children's parents has taken, or failed to take, the opportunity:
To participate in making decisions about long-term issues in relation to the children; and
To spend time with the children; and
(iii)To communicate with the children
As mentioned above, each of the parties was subjected to some criticism in this regard in cross-examination. On reflection, however, I see this as only an attempt to shore up each party's case. I repeat that these are good and altruistic parents who prioritise their children and as demonstrated by the children's close and easy relationships with each parent.
The mother was criticised for "unilaterally" moving herself and the children from the home at separation and whilst the father was on a business trip to Queensland. Separation is almost always a difficult logistical exercise. I find no justifiable criticism of the mother.
Similarly, the father was criticised for not always taking up extra or flexible time offered by the mother. I accept his plausible explanations of suffering an illness, having the responsibilities of his business, and dealing with the separation. As such, I place little or no weight on these issues of dispute between the parents.
Section 60CC(3)(ca) – the extent to which each of the children's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the children
The father was subjected to some small cross-examination in this respect. Both parties earn a reasonable income. The father has contributed to the children's school fees. Generally, I am satisfied that each of these parties has discharged their responsibilities for financial support of X and Y. Financial considerations do not feature in the mother’s application to relocate.
Section 60CC(3)(d) – the likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from either of their parents or any other child, or other person (including any grandparent or other relative of the child) with whom they have been living
This is an important consideration but effectively dealt with above. The children currently spend four nights per fortnight with their father but, on my calculations, time on six days per fortnight with him. The relationship is frequent and regular. There is no evidence that the transitions have presented any logistical or actual problem for the children or the parents.
The mother’s proposed relocation would bring numerous changes for these children. There would be a change of school. They would be removed from their current peer group relationships. There might be a change in the extracurricular activities, such as surfing, that they enjoy with their father. Whilst the thrust of the evidence suggests that these children are other than resilient and adaptable and their existing comfortable and dependent relationships with their parents could only ease such changes, the mother herself volunteered a statement during cross-examination that might give another slant to this issue. Importantly, given other comments in these reasons as to the mother’s inclination to give evidence that tends to favour her case, this statement ought be considered in that light. The mother was being challenged by counsel for the father in respect of the children possibly spending an extra overnight with him during the off-week (currently limited to evening time) and her spontaneous response was to the effect that Y was or would suffer ‘separation anxiety’. This evidence was not challenged or further pursued or elaborated on. It must be considered, therefore against the force of evidence then these two young children who are on the “lower end of emotional development” have established and attached relationships with both parents based on regularity of direct contact. The question for the Court, therefore, is whether there might be separation anxiety manifest on the mother’s proposal and in respect of their relationship with the father when the changes and gaps in time are more dramatic than the change contemplated by the father on each second Thursday?
The significant change for them from a relocation would be in respect of maintaining their relationship with their father. Substantial and onerous travel is introduced into the equation. The duration of time with their father during school terms would become limited to weekends and reduced in time. On the mother’s proposal, frequency of time for the children with the father is reduced.
These are, however, children who appear to have negotiated their parents’ separation successfully and there is no evidence to suggest that they would not deal with other changes similarly successfully.
Section 60CC(3)(e) - the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
Both parents were at pains in their affidavits to provide the results of their times/costing research into the travel for the children to see their father if they are relocated to New South Wales. The court was provided with miniscule detail including spreadsheets. Flight and train timetables were put in evidence. Mileage calculators and costs per kilometre of travel were included. Unsurprisingly, however, each of the parties put their best endeavours to mathematically emphasise their own argument being, in the case of the mother, as to the ease and cost-effectiveness of regular travel for the children to Victoria and, in the case of the father, the heavy travel and dollar costs of the exercise.
On anyone’s version, however, I am satisfied that the mother’s proposal presents some onerous travel for these young children. They are young. They are described as being at the lower end of emotional development. The mother’s proposal involves taking them out of school early on Fridays. Travel would occupy a number of hours involving road and air travel. Substantially, the Fridays and Sundays of time with their father would be highlighted by travel and preparing for it. School holidays, of course, would lessen the load and allow the children to settle into their father’s home. Dr J says at page 18 of her report:
At a practical level, I have some concerns about whether Ms Fletcher’s proposal for the children to travel to (omitted) once per month to see their father for the weekend is a feasible arrangement for these young children, who should be considered (to) be in the lower ranges of emotional development for their ages. They would struggle to do it independently, and the cost of one or other of the parents accompanying them may make it impractical.
And at page 19 of the report:
If the children are living in Sydney, the arrangements should allow the children to see their father as regularly as possible and practical. I would suggest that arrangements to fly the children to Victoria and travel to (omitted) frequently seem onerous for children of this age and level of emotional development, and Ms Fletcher’s proposal for Mr Fletcher to fly to Sydney each month would reduce the physical, social and emotional toll on the children. It would also have the advantage of allowing Mr Fletcher to be more actively involved in the children’s social and school lives.
Dr J’s comments above seem to assume that Mr Fletcher has such flexibility in his working week that he would be able to spend weekdays in the vicinity of (omitted). The evidence that I have heard does not satisfy me that this is the case. He is in the throes of managing and developing a new business together with his partner. When challenged in cross-examination, Mr Fletcher responded that any flexibility in his employment revolves within particular days and not within weeks.
Dr J’s suggestion of time for the father and the children in “Sydney” would necessarily involve them taking accommodation and bringing with it the difficulties of time/with taking place away from the father’s home. It is generally accepted that children benefit from enjoying time with a parent in that parent’s own home and familiar surroundings.
Section 60CC(3)(f) - the capacity of each of the children’s parents and any other person to provide for the needs of the children, including emotional and intellectual needs.
Both parents are self-employed. They have demonstrated capacity to attend to the children’s physical needs.
The mother puts her own capacity to care for the children before the court as the force of her argument to relocate. She says that she suffers and has historically suffered from depression. She says she feels lonely, isolated and unsupported in her parenting of the children in (omitted). She says that her parents offer, and she desires, their emotional support and their physical assistance in her caring of the children.
Whilst the mother’s emotional heath dominated the evidence in the trial, Dr J also commented on the father’s emotional or psychological health. Although his psycho-metric testing was unremarkable, Dr J comments at page 19 of her report in respect of Mr Fletcher as follows:
At the same time I also have some concerns about Mr Fletcher’s emotional capacity to deal with any potential relocation of the children. If this occurs, I would recommend that he avail himself of some individual therapeutic assistance and perhaps re-consider his stance on moving too.
The mother gives evidence that she is suffering from depression. She is, of course, not a doctor able to make such a diagnosis. Her evidence does, however, note that[12] “as a result of the stress and anxiety, I began to suffer from the following symptoms on a regular basis”:
[12] affidavit of Ms Fletcher sworn 12 November 2014 at paragraph 109
difficulty sleeping;
difficulty concentrating (which impacts on my ability to be effective at work);
easily brought to tears;
some days I do not want to get out of bed and have to force myself to keep going;
head spins; and
anxiety.
In or around October 2013, I sought medical help from Mr A for the stress and anxiety I was suffering.
I was prescribed Zoloft in October 2013. In addition, I was prescribed sleeping tablets to help me sleep. The lack of sleep was exacerbating the symptoms I was having. I continue to take the antidepressants but I am no longer taking sleeping tablets as I have been informed by my doctor that they are addictive if taken for long periods.
I was also referred to Psychologists, Mr S (“Mr S”) for counselling to assist me to develop strategies to assist with the stress and anxiety. I continue to have counselling with Mr S on a weekly basis.
With the assistance of counselling, I now understand that I am a personality type who will continue to meet the demands placed upon me regardless of the consequences this has on my mental and physical health. Regardless of how I am feeling emotionally, the children are and will continue to be, my priority. I am, however, concerned that I am having difficulty managing the demands made on me and that I risk having a breakdown if I continue to suffer from depression and anxiety.
Dr J provided a forensic family report for the court. In doing so, however, she conducted psycho-metric testing on the mother. Under the heading “Personality Profile - Ms Fletcher” at page 16 of her report, Dr J says:
When compared with other defensive respondents (my emphasis) Ms Fletcher's PAI clinical profile indicated that a single significant elevation on the Depression Affective Scale (SD = 2.5).
Her scores on the “Depression Affective Scale” suggests that she is likely to be suffering feelings of dysphoria and unhappiness without any particular cognitive targets. This scale tends to be one of the most direct measures of happiness with life and her scores indicate a high level of distress. Other indications (a relatively high “Dominance Scale” and normal range “Warmth Scale”, SD =1.5 and 1 respectively) suggested that she may be someone who enjoys being in and feeling in control.
Outside of these results, Ms Fletcher's PAI scores also suggested that she generally has a stable and positive self-evaluation, that she is normally an outwardly confident and optimistic person and has a clear sense of purpose and distinct convictions.
In addition, Ms Fletcher responded to the PAI in ways that suggested that she is generally friendly and extroverted in her personality style. Her results suggested that she is likely to present as cheerful and positive in the presence of others, communicate her interest in others in an open and straightforward manner and enjoys social activities rather than solitary pursuits. Her results suggest that she probably sees herself as a person with many friends and as one with comfortable (sic) in most social situations.
In her summary and recommendations Dr J says in respect of Ms Fletcher at page 18:
Ultimately, however, I am most concerned about Ms Fletcher’s current mental health. Although I consider that she is a dedicated and conscientious parent who will not easily let any potential mental health problems compromise her parenting of the children to any significant degree, if she is not allowed to move to Sydney and obtain the support of her parents and family, her prognosis should be considered poor.
My assessment of Ms Fletcher suggested that she is someone who does not easily recognise or acknowledge problems with her mental health as her self-identity appears to be founded in concepts about her coping. I consider it likely that her depression will intensify if she is prevented from relocating with the children and I expect that this would have a direct influence on her parenting of the children. The children, of course, are likely to benefit from their mother not being depressed.
A cursory reading of the above is suggestive of Dr J concluding that Ms Fletcher suffers from a diagnosed depressive illness. However, in cross-examination Dr J confirmed that she did not make that or any diagnosis of Ms Fletcher and that it was not her role to do so in a family report.
Further, the mother adduced no evidence from her general practitioner or psychologist, both of whom she deposes to have been consulting for some time. Evidence from these two professionals would have provided suitably expert evidence as to whether or not the mother has a diagnosis of depression. A close reading of the mother’s sworn trial affidavit is helpful. At paragraph 99 she says unequivocally, “I was diagnosed with post natal depression ... in or around March 2008 ...” This is an uncontroversial fact. It is the mother’s claimed “depression” from 2013 which is, however, relevant to my consideration. In that sense, her affidavit is not so equivocal. She says at paragraph 110 that in October 2013 she sought medical help for “stress and anxiety”. She says that she was prescribed Zoloft in October 2013 together with sleeping tablets. She says that she was referred to a psychologist. She says at paragraph 113 “... that I risk having a breakdown if I continue to suffer from depression and anxiety”. Nowhere, however, in her affidavit can I find a statement from her in respect of her current diagnosis, if any, and in the unequivocal terms of her statement in relation to her 2008 depression.
Similarly, the unchallenged evidence of Dr J’s as to Ms Fletcher’s reporting of her own history is also unequivocal when read carefully. On page 9 of her report Dr J says of Ms Fletcher:
When asked about her psychiatric history, Ms Fletcher indicated that she believed that she has depression, but expressed a disinclination for medication.
Notably, Ms Fletcher is reported as expressing her “belief that she has depression” rather than unequivocally telling Dr J that she has been diagnosed with the condition.
Some clarification came from Dr J who opined, but without a diagnosis, that Ms Fletcher’s results on the testing scale were elevated only in respect of “effective symptoms” of depression being the “low mood ratio”. The results were not elevated on either the physiological or cognitive scales.
Consequently, and whilst I accept the mother’s evidence as to her “unhappiness”, I am obliged to consider and analyse what seems to be Dr J’s presumption of depression in Ms Fletcher. To this end, I find there to be some merit in the submission of counsel for the father that the court should, pursuant to the principles in Jones v Dunkel,[13] draw a negative inference from the unexplained failure of the mother to adduce evidence from her treating professionals. The inference being that the evidence of those professionals would not have assisted the mother’s case. To my mind, the mother’s mental health is squarely put at issue by her and, as such, the state of the evidence leaves open the “Jones v Dunkel” inference. She has been receiving ongoing assistance from a general practitioner and a psychologist. Together they might provide evidence of a diagnosis. This was not Dr J’s role. It was not within the mother’s own expertise. The collateral evidence does not exist.
[13] (1959) 101 CLR 298
Whilst I may not be satisfied that the mother suffers a diagnosed condition of depression, there is sufficient evidence to show that she in unhappy in her current circumstances. Her counsel in his final submissions invited me to make findings as such from my own observations of the mother in the witness box and in court. I observed her to be teary and upset on occasions when giving her evidence and when seated in the back of the court but, having been invited to do so, it is proper that I also note my observations of the mother being at times overly-dramatic in her body language and emotions and engaging in what may be interpreted as an effort to ingratiate herself with the court or, alternatively, to elicit the court’s sympathy. Certainly, her tearfulness in the witness box was inconsistent and often ended abruptly.
There are, however, remaining difficulties with the mother’s evidence in respect of her alleged unhappy demeanour which demonstrate her capacity to be selective or embellishing of her evidence generally.
Dr J’s testing of the mother suggested that “she is likely to be suffering feelings of dysphoria and unhappiness without any particular cognitive targets”. Dr J agreed that it is entirely consistent and understandable that a person may be suffering from dysphoria (unease or dissatisfaction) and unhappiness if they express a keen desire to achieve a result such as a relocation of children and at least until that result is known. Ms Fletcher’s testing was validated against “other defensive respondents”, given Dr J’s “validity scale” and noted on page 16 of her report as follows:
Ms Fletcher’s scores on the validity scales indicated that she may not have been completely candid and there were indications of defensiveness ... This pattern of results with a normal range ... tends to suggest that she may have employed some effortful positive distortion strategies designed to improve her impression, such as failing to admit common shortcomings and providing an overly idealised account of her functioning. Due to these indications, Ms Fletcher’s results could only be interpreted in a limited way with other similarly defensive respondents in the PAI normative sample.
In a more empirical sense, I have some concerns as to the selectiveness of Ms Fletcher in that Dr J reports Ms Fletcher at page 7 as follows:
To explain her proposals to relocate, Ms Fletcher emphasised that she feels isolated, alone and unconnected in (omitted).
Whilst it was clear that there is no extended family on either side in (omitted), significantly in my view, Ms Fletcher apparently neglected to tell Dr J of the number of friendships she has developed in the (omitted) community, together with her association with the (omitted) Church, and her membership of Boards. To put it bluntly, the tenor of Ms Fletcher’s evidence in this respect under cross-examination in the witness box was at odds with what she reported to Dr J above.
In summary, therefore, I cannot be satisfied on the evidence that Ms Fletcher suffers a diagnosis of depression. It follows as a matter of logic, therefore, that I have no evidence of any probity as to her prognosis. I am satisfied upon the evidence and from my observations, however, that she is unhappy in (omitted) and has a desire to move to New South Wales to be close to her family.
Ms Fletcher says that she wants and requires the assistance of her family in her care of the children. I have no doubt that this is the case but it should be seen in the context of Ms Fletcher being a successful businesswoman who owns and manages her own accounting business and employs four staff. Her own evidence is praiseworthy of the recent development of that business. Further, all of the evidence impresses me as to her skills and devotion as a parent. Put simply, Ms Fletcher has been able to raise two very stable and successfully developing young children whilst also commendably running and developing her successful business.
She has, of course, had assistance. There is the assistance available to her from the father who currently has the children on four nights per fortnight but over six separate days. Ms Fletcher’s family have also been frequent visitors to (omitted) to assist her. Her father, Mr T, gave every indication that his unconditional support would continue to be forthcoming for his daughter whether she live in (omitted) or (omitted).
Some criticism was levelled at the mother’s case by counsel for the father in that the mother did not adduce evidence from her own mother or her sisters. In a related sense the court was urged to find some doubt in the stability of the relationships between the mother and her own parents and her own sisters. I reject those submissions.
These proceedings were conducted in Melbourne. The court had the benefit of evidence including the cross-examination of the mother’s father, Mr T. He was able to give admissible evidence (albeit hearsay) in respect of other family members generally. I am satisfied that they are a close and supportive family unit as demonstrated by the close proximity of the two sisters and the evidence of Mr T that he offers support to all four of his children.
In summary, therefore, the consideration for the court is whether the mother’s mental health, be it depression or unhappiness, is such that the children’s best interests might be impacted negatively by their primary parent remaining unhappy in (omitted) or whether the children’s interests would be enhanced by the mother’s own happiness by living in proximity to her parents in New South Wales. Again, this is simply one consideration amongst the melting-pot of mandatory considerations for the court.
Section 60CC(3)(g) – The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the Court thinks are relevant.
The evidence only references this consideration in respect of the children’s level of emotional development, as noted by Dr J.
Section 60CC(3)(h) – If the children are Aboriginal or Torres Strait Island
Not relevant.
Section 60CC(3)(i) – The attitudes of the children, and the responsibilities of parenthood, demonstrated by each of the children’s parents.
This consideration is often referenced in matters involving a proposed relocation of children. Allegations of self interest over and above children’s best interests regularly arise. Significantly, however, the Act does not prohibit courts taking into account the interests of parents, rather, it simply makes the children’s best interests paramount over all others. As such, it is entirely reasonable that this mother have a particular preference as to her own living arrangements which, in this case, are in New South Wales. She should not be criticised per se. Similarly, it is understandable that the father should be reluctant to lose proximity to his children and the advantages that flow. There is, of course, also an element of self interest in such a stance but one which equally should not be criticised.
Overall, these two parents have demonstrated a commendable attitude to their children and perhaps best emphasised by not involving the children in the dispute and in respect of an issue where parents all too often attempt to elicit support for their particular case from the children without thinking of the ramifications for those children.
Section 60CC(3)(j) and (k) – Issues of family violence and family violence orders.
Not relevant.
Section 60CC(3)(l) – Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.
The very nature of family law orders is that they are prospective and project parents and children into a field of unknowns. In this matter, the mother proposes to move herself and her children to New South Wales to live in the vicinity of and with the practical support of her parents. She has not lived with her parents for some 17 years. The children have not lived apart from their father. The children have not experienced the travel logistics necessary on the mother’s proposal. It is a possibility that the mother’s confidence and ambitions on her proposal may be unfulfilled. The children may not deal well with the change in the nature of their relationship with their father. The father may not cope with the changes in those relationships. Conversely, however, if the mother is to remain in (omitted) with the children then her own candid opinion as to her ability to cope may also prove overly optimistic and her unhappiness might compound. These are all unknowns and, in a sense, are speculatively based on the empirical evidence now available. As such, further litigation is always a possibility if such contingencies present themselves. It is, however, the obligation for parents to accept that these courts receive evidence and make determinations based on the court’s view as to the best interests of their children moving forward. It is then incumbent on the parents to parent accordingly.
Findings, Discussion and Conclusion
Relocation matters are generally considered amongst the more difficult children’s issues coming before these courts. Whereas a common parenting dispute might involve discrete degrees such as, for example, the number of nights a child may spend with each parent over a week or fortnight, matters involving relocation of children introduce issues of distance, travel, communication and fundamental changes in children’s and parents’ relationships. Notions of “equal time” and “substantial and significant time” are usually no longer realistically available if the relocation proceeds. It follows that one or other of often excellent parents will be left unhappy, bitter or aggrieved.
If these children are permitted to relocate then it would be entirely understandable for the father to suffer a sense of loss. Similarly, if the relocation is not permitted where this mother, as the unchallenged primary parent, is obliged to live in a place and situation other than her preference, then she would also be aggrieved. Issues of blame often accompany the bitterness, resulting in a loss of previous good communication, cooperation and trust.
I am satisfied on the evidence that X and Y have well established and meaningful relationships with both of their parents.
I am satisfied that these children are oblivious to the major issue before this Court and, in any event, are not old enough or have sufficient emotional maturity to have expressed any view or preference to which the Court would attribute weight.
I am satisfied that each of these parents has shown considerable insight and an ability to prioritise their children’s needs and that each provide for those needs, both physical and emotional. They have both been active and involved in the children’s lives and development.
I do not find justification in criticism of either parent, be it the father in not taking up extra time with the children, or the mother in allegedly offering extra time only on conditions.
I accept the evidence of Dr J that these children are “young for their age” and at the “lower end of emotional development”.
I am satisfied that the proposals of each of the parties are reasonably practicable but with the caveat that the mother’s case to relocate the children would create some onerous travel for the children and would operate to give a fundamental and important change in the nature of the children’s relationship with their father. Spontaneity and flexibility within that relationship would inevitably be lost. The cost and effort of the children’s travel is workable but must be seen within the context of the nature of their relationships with their father.
I am satisfied that this mother has the physical and emotional capacity to continue to be a good and capable parent to X and Y, whether she lives in New South Wales or Victoria. She has said that she would “cope” with living in (omitted). I am satisfied on the evidence, and despite the tenor of her application, that she does have support networks and friendships in (omitted). She has lived there for six years. She is a successful businesswoman and active in the community. She was able to name her friends and she is involved in her community and church interests.
I am not satisfied on the evidence, as detailed and considered above, that this mother suffers from a diagnosed condition of depression. I repeat my observations and conclusions in respect of Dr J’s evidence accordingly. I do accept, however, that the mother is unhappy in (omitted) and anticipates that she would be happier if able to live in New South Wales proximate to her parents and sisters. I have no medical or psychological evidence in proper form as to whether or not her unhappiness would degenerate into some diagnosable condition if she does not relocate to New South Wales.
The mother’s counsel invited me to consider my own observations as to the mother’s demeanour in court. I do so in the context of her evidence generally including her affidavit material. I conclude that this mother (understandably) made every attempt to put her best case which, of course, was with emphasis on her unhappiness if required to remain in (omitted). She was tearful at times in the witness box and emotional in the back of the court. Overall, she, however, impressed me more as being stoic and of strong character. Her affidavit evidence and her reporting to Dr J was selective in some areas such as in telling Dr J that she felt “isolated and lonely” in (omitted), but without perhaps being completely frank as to the relationships she has in that city.
I have considered the mother’s status as the unchallenged primary carer of X and Y and that there is merit in her having a “freedom of movement”. She is an ambitious and successful adult in many of her pursuits in life and at least being in her parenting of X and Y. I accept that vicariously these children would reap some benefit from their mother being happy and content in her personal life.
The support mechanisms available to the wife are impressive. The father, himself, is able to provide support and respite to the mother as primary carer on his own proposal which would see him spending time with these children on six separate days each fortnight and four overnights. Despite the negative slant in the mother’s affidavit material and the father’s tendency to rigidity and assertiveness in the witness box, these parents have generally been cooperative and altruistic in their parenting of X and Y since separation.
Further, the mother’s own father was convincing in his offers of support (and on behalf of other family members) should the mother continue to reside in (omitted). I am confident on the evidence that the mother’s parents and sisters would continue to be regular visitors to (omitted) and there would, of course, be nothing to prevent the mother and the children regularly visiting New South Wales. She also professes to a good and supportive relationship with the father’s own extended family and they too seem to visit regularly.
There are a number of advantages and consequent disadvantages with each of the parents’ proposals.
The mother being happy in her own life and with the freedom of movement would assist her parenting. She would have proximate support from her family. These children have an established and comfortable relationship and, in my view, those relationships would be likely to endure any relocation and continue to be meaningful. A long line of authority establishes that the mother does not need to present “compelling reasons” for her to be able to relocate and does not carry any onus to convince the court. I am also confident that, whatever the children’s living arrangements, these two parents will continue to communicate and generally cooperate in respect of any matters arising for X and Y. These are all factors which argue in favour of the mother’s case.
Conversely, however, there are negatives to the mother’s proposal which in turn favour the father’s arguments. These children are still young and at the lower end of emotional development. They currently have a frequent relationship with their father which has the potential to be flexible and spontaneous. Certainly, the father’s proposal allows him to participate fully in the children’s schooling and other activities consistent with the definition of “substantial and significant care” in the Act. The father’s proposal obviously removes the relatively onerous travel for the children. Whist, the strength of their current relationship and attachment would continue any relationships as “meaningful the mother’s proposal would inevitably bring quantum changes to the very nature of those relationships.
As with many matters which get to the stage of judicial determination and involve relocation, the making of final orders is finely balanced. I emphasise that the court is mandated to follow a pathway of consideration following an order for equal shared parental responsibility. Neither party seeks to leave “equal time” to the court and in those circumstances and given the recent history of the children’s care, I do not propose to make such an order. I must, however, consider whether the children continuing to enjoy “substantial and significant time” between their parents is in their best interests.
After some reflection, I determine that such orders are in the best interests of X and Y. They enjoy and benefit from that arrangement currently. The strength and nature of the relationships with each parent as observed by the family reporter are clearly evident. “Substantial and significant time” is not available under the mother’s proposal. I place some weight on Dr J’s evidence as to these children being “young for their ages” and “at the lower end of emotional development” and see greater frequency of time as an important element of the very nature of their relationships. I accept that Ms Fletcher has legitimate preferences to move to New South Wales and would be subjectively happier in doing so. Nevertheless, I place weight on my finding that this mother will continue to be capable and successful if required to remain in (omitted). I am also satisfied that she will continue to receive adequate support from the various sources. Whilst this mother, as primary parent of X and Y, does not have to show compelling reasons for a relocation, the reasons she does offer do not, in my view, outweigh the benefits which accrue to these children by spending substantial and significant time with both parent.
On balance, therefore, I am of the view that the children should remain living in (omitted) and I will make orders in accordance with the father’s application.
I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 11 December 2014
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Family Law
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Injunction
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