Ford and Bell
[2011] FMCAfam 635
•30 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FORD & BELL | [2011] FMCAfam 635 |
| FAMILY LAW – Parenting – relocation – insufficiency of evidence – declaration of intention by one parent to relocate regardless of Court order – procedural fairness – ‘best interest’ considerations in curial power/discretion to restrain parent from relocating – ‘best interests’ of Grandparents versus the best interests of children – nature and goal of s.69ZT of Family Law Act to facilitate child-related proceedings rather than to remedy defects in or lack of evidence. |
| Family Law Act 1975 (Cth), ss.60B(1), (2), 60CA, 60CC(1), (2), 60CC(3)(a) – (l), 61DA, 65DAA(1)-(4), 68B, 69ZT, 94AAA, 114(3) |
| Ahcraft v Haber [2010] FamCA 6 B. Fehlberg & J. Behrens, Australian Family Law: The Contemporary Context, (Melbourne: Oxford University Press, 2008) J. Behrens, “U v U: The High Court on Relocation,” (2003) 27 Melbourne University Law Review 572 |
| Applicant: | MR FORD |
| Respondent: | MS BELL |
| File Number: | CAC 741 of 2010 |
| Judgment of: | Neville FM |
| Hearing dates: | 10 & 11 February 2011 |
| Date of Last Submission: | 11 February 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 30 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Blank |
| Solicitors for the Applicant: | Skinner & Associates, Albury |
| Counsel for the Respondent: | Mr G Howard |
| Solicitors for the Respondent: Counsel for the Independent Children’s Lawyer | Farrell Lusher Solicitors, Wagga Wagga Ms J Godtschalk |
| Solicitor for the Independent Children’s Lawyer | Mrs S Rama, Harris Lieberman, Wodonga, VIC |
ORDERS
In the absence of written agreement with the Father or order of the Court, the Mother is restrained from (a) relocating to Tasmania, and (b) relocating the children’s residence outside a radius of 200 kilometres from Wagga Wagga. This Order is to remain in place until all of the children have completed their schooling.
The parties have equal shared parental responsibility for the children [X] born [in] 1994, [Y] born [in] 1996 and [Z] born [in] 1999 (“the children”).
The children live with the Mother.
The children [Y] and [Z] spend weekend time with the Father as follows:-
(a)Should [Y] or [Z] be enrolled in a winter sport, and on condition that the Mother provide to the Father written confirmation of that enrolment and the duration of the sport’s season; every third weekend from Friday 6.00 pm until Sunday 6.00 pm;
(b)At all other times, each alternate weekend from Friday 6.00 pm until Sunday 6.00 pm.
The children [Y] and [Z] spend school holiday time with the Father as follows:
(a)For three one week periods during the school holidays as follows;
(i)On two occasions, on four weeks written notice by the Father;
(ii)
In 2010 and each alternate year thereafter from 4.00 pm on 26 December for a period of seven days concluding on
2 January;
(iii)
In 2011, and in each alternate year thereafter from
24 December at 4.00 pm for a period of seven days concluding on 31 December;
(iv)At all other times as agreed.
The child [X] be invited to spend time with the Father on each and every occasion that [Y] and [Z] are spending time with the Father.
Handover is to be effected by the Father collecting the children at the beginning of each visit from the Wagga Wagga Children’s Contact Service and the Mother collecting the children at the end of each visit from the Albury / Wodonga Children’s Contact Service, at the times stipulated above or at such times as the Contact Centres can facilitate.
Each party forthwith do all such things and sign all such documents required to complete the intake procedure with both Contact Services.
Each party is authorised to contact school(s) that the children may attend to obtain copies of all reports, examples of work, newsletters, notification of all activities, parent / teacher nights, and to be informed of any emergency, remedial or correctional treatment required by the children as soon as is practicable.
Each party is authorised to contact any treating medical practitioner, hospital or medical practise that the children may attend from time to time to obtain any information regarding the children.
The parents keep one another informed of any sickness or illness of the children.
The Mother and Father notify the other party by telephone when the assistance of a medical practitioner is sought in relation to the children.
The parents keep one another informed of a contact address and telephone number at all times.
The parties shall notify each other within seven days of a change of address and within forty eight hours of a change of telephone number.
Each parent be permitted to telephone the children each Wednesday night between 6.30 pm and 7.30 pm when the children are in the other party’s care and during that time the parent whose care the children are in will ensure that the children are present and as far as practicable the landline to the home is kept free and available to receive the call.
The Mother forthwith inform the Father of the schools that the children attend and the details of such schools, as well as the medical practice and specialists that the children attend, and their contact details.
IT IS NOTED that publication of this judgment under the pseudonym Ford & Bell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT WAGGA WAGGA |
CAC 741 of 2010
| MR FORD |
Applicant
And
| MS BELL |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a tediously repetitive judgment. This is so because, although the Court was required to consider “the practicalities of life” in Tasmania – to which State the Respondent Mother, Ms Bell, wishes and intends to relocate, with or without her three children – unfortunately she failed to provide sufficient evidence for the Court to undertake the “close analysis” required.[1] Throughout these reasons I repeatedly highlight either the lack of evidence or the serious flaws in what was adduced on behalf of Ms Bell. Relocation cases are difficult at the best of times. These reasons show how much more so the task was on this occasion.
[1] The references to “the practicalities of life” and “close analysis” are taken from the joint judgment of Bryant CJ and Warnick J in Sampson v Hartnett (No.10) (2007) 215 FLR 155 ; (2008) 38 Fam LR 315 at [75].
Using standard nomenclature, as already indicated, this is a “relocation case” that involves three children – [X] (aged 16 years), [Y] (aged 15 years), and [Z] (aged 11 years). Their Mother, Ms Bell, wishes to relocate from Wagga Wagga to Tasmania to enable her, she says, to care for her aging parents. She has been the children’s primary carer and they continue to live with her and spend regular, but somewhat limited, time with their Father, Mr Ford.
Mr Ford, who lives in country Victoria, in a township called [T], does not wish the relocation to occur.[2] He says that the children should continue to live with their Mother (there is no issue that she has been their primary carer and are closely bonded to her)[3], that the children are well settled in the Wagga Wagga area, and that at least until their schooling is completed, they should not move outside the Wagga Wagga region. In his view, their stability is paramount.[4]
[2] [T] is approximately 180 kms from Wagga Wagga, and is a drive of about 2½ hours between those two centres. It is also approximately 50 kms from Albury, and is a drive of perhaps between 30 minutes to one hour from that city, depending on the route taken.
[3] Mr Ford readily acknowledged: “All the children have a great relationship with their Mother.” Transcript (10th February 2011) p.18. See also Transcript (10th February 2011) p.36.
[4] Among other places, see Transcript (10th February 2011) p.20.
The issue of “relocation” was formally raised in Mr Ford’s Initiating Application, filed on 18th March 2010. He sought an order in the following terms: “That the mother not relocate the residential address of the children without the written consent of the father or Court Order.”
Likewise, Ms Bell sought the imprimatur of the Court to relocate in her Response, filed on 1st July 2010. In terms, Ms Bell sought an order thus: “That the Mother be permitted to relocated [sic] the children’s principal place of residence from Wagga Wagga in the State of New South Wales to Tasmania.” Somewhat curiously, and like much of her evidence, there was a certain dissonance between what she stated or sought on an earlier occasion and what was said in the course of cross-examination. Thus so here: having stated in plain terms in her Response that she sought an order allowing her (and the children) to relocate, in cross-examination she agreed with the proposition that “since September [2010]” she had a “pretty crystal idea that [she] was going to Tasmania.”[5] Perhaps little turns on the difference between a document filed on 1st July and evidence in February 2011 that her intention to relocate had crystallised only in September 2010.
[5] See Transcript (10th February 2011) p.66.
Two matters should be stressed at the outset: (a) the issue of relocation was “on the table” from March 2010; (b) the order sought to authorise the relocation was of the widest possible ambit – simply “to Tasmania.”
On the first morning of the trial in Wagga Wagga, Ms Bell’s Counsel advised the Court – almost nonchalantly - of the following extra feature in relation to the relocation. Counsel said (emphasis added):[6]
[6] Transcript (10th February 2011) pp.6-7.
MR HOWARD: Before we adjourn, perhaps there is one other matter then that might be appropriate for me to have raised on behalf of my client, the respondent mother. That is that – and I have told my friends this, that she has made the very difficult decision that if your Honour will not permit the children to relocate to Tasmania, that nonetheless, she will move in order to care for her parents, her elderly parents.
HIS HONOUR: So what would happen with the children?
MR HOWARD: Well, that’s a matter for, obviously, your Honour, but my client accepts that the father can physically care for the children if that is required. I don’t think she accepts that the children would want that outcome.
The exchange continued for a little time as everyone sought to digest this “late-breaking news.” I note the following further part of that discussion (emphasis added):[7]
HIS HONOUR: So as I understand, Mr Blank’s client’s [i.e. Mr Ford] application does not include that the children live with him.
MR HOWARD: No, no, it doesn’t, your Honour. But, I mean, it may well be that as a result of the advice that I have given my friend, that his position will change. But nonetheless, that advice is that my client’s position is very simply. She is going. She has discussed it with the children. She knows what they want to do and she doesn’t expect that they would want to live with their father, but nonetheless, she accepts that he can physically care for them….
[7] Transcript (10th February 2011) p.7. At the conclusion of the trial, Counsel for Ms Bell confirmed that she would not relocate until after the Court delivered judgment. See Transcript (11th February 2011) p.46.
There ensued a brief discussion between Counsel and the Bench, the result of which was that the Court learnt that Counsel for Mr Ford had been generally advised earlier in the week of this development (but not Mr Ford himself)[8], but the Independent Children’s Lawyer only became aware of Ms Bell’s “decision” approximately 30 minutes before it was announced to the Court.[9] By any measure, the lack of this information until the morning of the trial was extremely unhelpful to everyone, including the Court.
[8] In cross-examination Mr Ford confirmed that he only heard of Ms Bell’s intention to move to Tasmania “this morning”, being the first day of the trial. See Transcript (10th February 2011) p.34.
[9] See also the following comment by Counsel for the ICL: “… All I could say is I think it is extremely unfortunate that we find out on the first day of trial, because the family reporter hasn’t had that information and, obviously, therefore, hasn’t discussed it with the children. … the ICL has spoken to the children, but that was not a suggestion. … It was not on the radar screen until half an hour ago.” Transcript (10th February 2011) p.8.
Two comments from the experienced Counsel for the Independent Children’s Lawyer (“the ICL”) are important to note here.
First, Counsel described the Mother’s ‘advice to the Court’ regarding her intention to relocate (with or without the children) regardless of the Court’s decision as akin to placing a rifle at the Court’s head.[10]
[10] See Transcript (11th February 2011) pp.8 & 51. Counsel for Ms Bell said that such a description was “offensive” to Ms Bell. Transcript (11th February 2011) p.39.
Secondly, in her closing submissions, as she did regularly in the course of the trial, Counsel for the ICL said (emphasis added):[11]
In relation to the best interests of the children, when one goes through the section 60CC factors, the primary consideration of a meaningful relationship, we would say that on either proposal the children will have a meaningful relationship with both parents.
If, of course, the mother goes to Tasmania, it won’t be an optimal one. It would be less than optimal for the father and the children, but probably still can be characterised as meaningful. So you then have to stack up the rest of the section 60CC factors under subsection (3). Can I say at this stage that probably the major problem that we can see - that the ICL and I can see in this case is the lack of proper evidence for your Honour in relation to the move to Tasmania. Now, my friend used the word “fulsome” - I think on three occasions said the evidence was “less than fulsome”. With respect, I think the evidence is pretty much non-existent, and this is really the crux of the problem.
[11] Transcript (11th February 2011) p.47.
Respectfully I agree with that assessment. This is also (or simply) to say that there was no, or significantly insufficient, evidence to enable the Court to accede to Ms Bell’s application. Moreover, as I have already intimated, this was not the first time in the trial that Ms Godtschalk objected to the lack of evidence. Indeed, “lack of evidence” was – unfortunately – a regular theme throughout the proceedings.[12]
[12] Other instances where “lack of evidence” was raised, directly or otherwise, are found at the following places in the Transcript: (10th February) pp.67ff; (11th February) pp.10, 20, 48, 49, 51 & 52. Counsel for Ms Bell, understandably in a rather sotto voce manner if not with remarkable understatement, hinted that there was a ‘perception’ among his friends at the Bar table that the evidence was “not as fulsome as it might be.” See Transcript (11th February 2011) p.39 as well as pp.42 & 44.
In addition to the matters already noted summarily, in the course of certain evidence being led in chief from Ms Bell, Counsel for the ICL objected (as did Counsel for Mr Ford) (emphasis added):[13]
[13]MS GODTSCHALK: I object to this. This is just – yes, and it’s not from the people – this is one of the major problems with this case, your Honour. It really is, it’s just the lack of information with regards to – it’s a very difficult situation and this witness cannot give that evidence.
MR HOWARD: Your Honour, I am happy to take your Honour through section 69ZT but unless your Honour applies the exception in subsection (3), then, with respect, the evidence is (a) relevant, and (b) admissible, because the evidence is caught, perhaps, by the hearsay rule, but the hearsay rule does not apply unless in the exceptional circumstances of the case if your Honour decided to apply it. So with the greatest of respect to my friend, it is both admissible and it is relevant.
MS GODTSCHALK: I did not say it was not admissible. My point is it is totally lacking in any probity because it doesn’t come from the people involved. There is no evidence from the grandparents in this case. No evidence at all, and the mother can say anything she likes but in my respectful submission, whatever she says will be of very little weight for your Honour.
HIS HONOUR: Well, my concern, amongst other things here, is that in the absence of affidavit evidence from one or both of the grandparents, we are starting to traverse areas that, in effect, catch everyone by surprise because it is not on affidavit in any shape or form.
MS GODTSCHALK: Not even from this witness.
The reasons for my concurrence with the ICL’s assessment of the lack of evidence follow.
It would not be appropriate otherwise to comment on where the responsibility for the lack of relevant evidence (and unfortunately so on many fronts) should rest. I have already noted that “relocation” was on the agenda since the commencement of the proceedings. The paucity of evidence is particularly surprising given that the solicitors and Counsel for the Respondent Mother are long-experienced in family law litigation. Certainly it may be the case, for reasons noted later, that the responsibility should remain principally with Ms Bell, given her late-breaking declaration to the Court on the first morning of the trial that she intended relocating to Tasmania – whatever the Court ordered. It may be that that position, confirmed with those advising her rather late in the piece, gave little time to adduce proper evidence. That said, relocation itself was patently the prime issue for determination since the proceedings commenced. Whatever the reason and who ever should properly have exercised responsibility for marshalling it, the fact was, as submitted by Counsel for the ICL, appropriate evidence for the Respondent Mother was significantly, if not alarmingly, lacking.
It should also be emphasised that, in my view, issues of procedural fairness (adverted to in the extracts from the Transcript noted above) also arise in circumstances where one party announces to the Court, to the other party and to the ICL, but only at the commencement of the trial, a fixed position which makes it very difficult if not impossible for the other party (and the ICL, not to mention the Court) to organise either relevant evidence and or authorities to meet the newly announced challenge.
It being the case that there was no, or significantly insufficient, evidence to support her declared position, Ms Bell’s formal application to relocate to Tasmania with the children cannot succeed. For the reasons that follow, in my view, it is not in the best interests of the children. Moreover, by order of the Court, and subject to any subsequent order or agreement in writing between the parties, she should be, and will be, restrained from moving to any area outside a 200 kilometre radius from Wagga Wagga.
These reasons proceed as follows: (a) Outline of Orders Sought; (b) Evidence of the Parties; (c) Evidence of the Family Consultant; (d) Legal Principles; (e) Discussion & Resolution. However, before proceeding as indicated, it is intended to be of benefit to set out some introductory comments specifically concerning ‘relocation cases’ in the hope that the parties (but perhaps others too) have a better appreciation of the difficulties and limitations that beset courts in cases of this kind, and especially when the Court has to assess the [conflicting, inadequate or lack of] evidence put before it in arriving at a decision that is in the best interests of the children.
Relocation: preliminary observations
I have discussed previously the vagaries of descriptors such as “relocation cases”. I note the following general comments, which are taken from the relatively recent decision of McAuliffe & Davies. [14] In that case, I said, at [2] – [10]:
[14] McAuliffe & Davies [2010] FMCAfam 1481.
[2] Superior courts insistently proclaim that there are no such things as ‘relocation cases.’ Rather, such courts maintain that ‘relocation cases’ are merely or simply (but of course importantly) a species of the genus known as ‘parenting cases’ and that there are no particular or unique principles that apply to them other than those set out in Part VII of the Family Law Act 1975 (“the Act”).[15]
[15] See, for example, as but one very recent statement in this regard, Cowley v Mendoza (2010) 43 Fam LR 436 at p.443 [31] (Murphy J). For recent appellate discussion, see the Full Court decisions in Starr & Duggan (2009) FamCAFC 115 (Boland, Thackray & Watts JJ) at [33] ff., and McCall v Clark (2009) 41 Fam LR 483 at [57] – [62] & [69] cf. Kirby J’s elaboration of nine principles that apply to “relocation of a child’s residence – general principles” in AMS v AIF (1999) 199 CLR 160 at pp.206-211 [141] – [150], admittedly in a different legislative context to that in which the decisions of the Family Court of Australia to which I have referred have been made.
[3] Accepting, unquestioningly, the correctness of this direction/ admonition, nonetheless, learned text writers and those responsible for various ‘practice text-books’ continue to deal with ‘relocation cases’ as a discrete field of inquiry, often, but not always, in the context of parenting cases and the jurisprudential principles applicable thereto.[16]
[16] See, for example, the following representative sample of leading texts: P. Parkinson, Australian Family Law In Context: Commentary & Materials, (Fourth Edition) (Sydney: Lawbook Co., 2009) “Relocation Disputes” [23.140] – [23.170]; B. Fehlberg & J. Behrens, Australian Family Law: The Contemporary Context, (Melbourne: Oxford University Press, 2008) “Relocation Disputes” [6.9.4]; L. Young & G. Monahan, Family Law in Australia, (Sydney: LexisNexis Butterworths, 2009) “Relocation Cases” [8.120] – [8.129].
[4] It is also not inapt to suggest that relocation cases have spawned, and continue to provide, a fertile field of academic inquiry such that one might be tempted to suggest that something of a cottage industry has developed in attempts to divine and analyse how and why decisions are made (and the facts, factors and principles that led to the particular result) in such cases.[17] This is so, notwithstanding many (respectfully) unequivocal, straight-forward and otherwise pellucid observations as to what happens in such trials. Thus, for example, in AMS v AIF, Kirby J simply observed that there is, in such cases, a “large element of judgment, discretion and intuition.”[18]
[17] The following is but a small sample of important studies: J. Behrens, “U v U: The High Court on Relocation,” (2003) 27 Melbourne University Law Review 572; P. Parkinson, “Freedom of Movement in an Era of Shared Parenting: The Differences in Judicial Approaches to Relocation,” (2008) 36 Federal Law Review 145; P. Parkinson, “The Realities of Relocation: Messages from Judicial Decisions,” (2008) 22 Australian Journal of Family Law 35; P. Easteal & K. Harkins, “Are We There Yet? An Analysis of Relocation Judgments in Light of Changes to the Family Law Act,” (2008) 22 Australian Journal of Family Law 259. Indeed, studies continue apace – thus: B. Horsfall & R. Kaspiew, “Relocation in separated and non-separated families: Equivocal evidence from the social science literature,” (2010) 24 Australian Journal of Family Law 34; J. Behrens, B. Smyth & R. Kaspiew, “Outcomes in relocation decisions: Some new data,” (2010) 24 Australian Journal of Family Law 97; R. Chisholm, “Unacceptable risk and relocation issues: Partington v Cade,” (2010) 24 Australian Journal of Family Law 115.
[18] AMS v AIF (1999) 199 CLR 160 at p.211 [150].
[5] In the same case, Hayne J said (internal citations omitted):[19]
[19] AMS v AIF 199 CLR at p.228 [204] & [205]. Of course, the comments by both Kirby & Hayne JJ are in a legislative context different to that which operates today. Accepting that qualification, respectfully, their Honours’ comments, in my view, are nonetheless important.
[204] The problems that family law legislation deals with are human problems: with all their attendant variety and complexity. And at the end of a court proceeding under such legislation, a judge must make an order - usually an order that says yes or no to some application. "[A] complicated mass of human experience has to be reduced to the simplest possible terms." Because the problems are human problems, because they are as varied and complicated as they are, the legislature speaks in terms more often found in statements of aspiration than legal prescription. It is, then, hardly surprising that the guiding principles prescribed by the legislation for application in cases concerning the guardianship or custody of children or related issues, are principles that seldom, if ever, permit syllogistic reasoning.
[205] Further, when considering the reasons given by a judge who has made an order in an application about the guardianship or custody of children, it is necessary to bear steadily in mind that the judge must grapple with the chaotic complexity of real life, make predictions not only of what he or she concludes may happen in future but also of what will be "best" for the child, and do so having regard to what the parties have chosen to contest or emphasise in the course of the hearing.
[6] Somewhat more recently, Warnick J said:[20]
[20] B & B (2006) FamCA 1207 at [1]. Warnick J was sitting as the Full Court, pursuant to s.94AAA of the Act.
In most cases about parenting orders under the Family Law Act there is no conceptual difficulty in the court applying the principle that the best interests of the child are the paramount consideration. However, that is not so when deciding upon orders in what have become known as “relocation cases”. That is because, when in relocation cases regard is also had to another consideration, namely the right to freedom of movement of a parent, a delicate interplay of concepts arises. That is on the most favourable view of it. On another view, that to which I incline, the result is an imbroglio of principles.
[7] Respectfully, I agree with his Honour, and the earlier statements of the High Court to which I have referred.
[8] In a number of respects, it seems to me that the concerns and observations that I have noted reflect the varied interplay of facts, circumstances, legal principle and discretion which are the warp and woof of all trials. Such matters were more elegantly and fulsomely put by the High Court in the joint judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy in that Court’s consideration of appellate intervention. Their Honours said (internal citations omitted):[21]
On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
[9] Two other preliminary comments are important to record here also. First, the Full Court observed in Wiley & Wiley (a “relocation case”):[22]
... it has to be remembered that no two cases which involve the possibility of children being moved from their established residence and from one of their parents will ever present in an exactly identical way to the judge or Federal Magistrate who has to determine such cases. In every such case, issues peculiar to that case will arise. Moreover, no two judicial officers will necessarily see the issues arising in any particular case as capable of treatment (for example within the framework of the provisions of s 65DAA) in exactly the same way.
[10] Secondly, in U v U, Kirby J emphasised the importance to consider the long-term interests of the child rather than just focusing on the short term.[23]
[21] Fox v Percy (2003) 214 CLR 118 at pp.125-126 [23]. See also the extensive discussion by McHugh J in the same case at [65] – [93].
[22] Wiley & Wiley (2008) FamCAFC 153 at [70].
[23] U v U (2002) 211 CLR 238 at p.283 [164]. His Honour said: “It is also highly desirable that courts, such as this Court and the Family Court of Australia, should consider such [relocation] cases in accordance with principles that are consistent, conformable to like legislation and attentive to the paramount consideration of the best interests of the child, viewed in the long term and not just the short term.”
I move to the ‘orders sought’, followed by a consideration of the parties’ evidence.
Orders Sought
The parties’ respective ‘orders sought’ are as follows.
Orders sought by the Father
1. That the parties have equal shared parental responsibility for the children [X] born [in] 1994, [Y] born [in] 1996 and [Z] born [in] 1999 (“the children”).
2. That the children live with the mother.
3. That the mother not relocate the residential address of the children without the written consent of the father or Court Order.
4. That the children [Y] and [Z] spend weekend time with the father as follows:-
i. Should [Y] or [Z] be enrolled in a winter sport, and on condition that the mother provide to the father written confirmation of that enrolment and the duration of the sport’s season; every third weekend from Friday 6.00 pm until Sunday 6.00 pm;
ii. At all other times, each alternate weekend from Friday 6.00 pm until Sunday 6.00 pm.
5. That the children [Y] and [Z] spend school holiday time with the father as follows:
i. For three one week periods during the school holidays as follows;
1.On two occasions, on four weeks written notice by the father;
2.In 2010 and each alternate year thereafter from 4.00 pm on 26 December for a period of seven days concluding on 2 January;
3.In 2011, and in each alternate year thereafter from 24 December at 4.00 pm for a period of seven days concluding on 31 December;
4.At all other times as agreed.
6. That the child [X] be invited to spend time with the father on each and every occasion that [Y] and [Z] are spending time with the father.
7. That handover is to be affected by the father collecting the children at the beginning of each visit from the Wagga Wagga Children’s Contact Service and the mother collecting the children at the end of each visit from the Albury / Wodonga Children’s Contact Service, at the times stipulated above or at such times as the Contact Centres can facilitate.
8. That each party forthwith do all such things and sign all such documents required to complete the intake procedure with both Contact Services.
9. That each party by this order is authorised to contact an school that the children may attend to obtain copies of all reports, examples of work, newsletters, notification of all activities, parent / teacher nights, and to be informed of any emergency, remedial or correctional treatment required by the children as soon as is practicable.
10. That each party by this order is authorised to contact any treating medical practitioner, hospital or medical practise that the children may attend from time to time to obtain any information regarding the children,.
11. That the parents keep one another informed of any sickness or illness of the children.
12. That the mother and father notify the other party by telephone when the assistance of a medical practitioner is sought in relation to the children.
13. That the parents keep one another informed of a contact address and telephone number at all times.
14. That the parties shall notify each other within seven days of a change of address and within forty eight hours of a change of telephone number.
15. That each parent be permitted to telephone the children each Wednesday night between 6.30 pm and 7.30 pm when the children are in the other party’s care and during that time the parent whose care the children are in will ensure that the children are present and as far as practicable the landline to the home is kept free and available to receive the call.
16. That the mother forthwith inform the father of the schools that the children attend and the details of such schools and the medical practise and specialists that the children attend, and their contact details.
Orders sought by the Mother
1. That the parents equally share parental responsibility in relation to the children [X] born [in] 1994, [Y] born [in] 1996 and [Z] born [in] 1999.
2. That the parties are required to make all decisions about major long-term issues in relation to the children jointly.
3. That the parties are not required to consult the other when making decisions while the children are in their care under this order about issues that are not major long-term issues.
4. That the children live with the Mother.
5. That the Mother be permitted to relocated the children’s principal place of residence from Wagga Wagga in the State of New South Wales to Tasmania.
6. That upon the Mother and children relocating to Tasmania the Father spend time with the children at all times as may be agreed, but failing agreement, as follows:
(a) At all such times during the Tasmanian Gazetted school holiday periods with the Father as the Father requests with at least 28 days written notice and providing that the Mother is able to spend at least four (4) weeks in total with the children during school holiday periods and the children spend at least every alternate Christmas and New Year with the Mother.
(b) At such times and dates agreed upon between the parties in the event that the Father travels to Tasmania to spend time with the children upon the Father giving the Mother 28 days written notice of such intention to travel to Tasmania.
7. That until such time as the Mother and the children relocate to Tasmania, the children spend time with the Father as follows:
(a) Each alternate weekend from Friday 5:30pm to Sunday 5:00pm;
(b) Upon the provision of twenty eight (28) days written notice on two occasions for one week on each occasion during the school holiday periods;
(c) In 2012 and each alternate year thereafter from 4:00pm on 26 December for a period of seven days concluding at 4:00pm on 2 January;
(d) In 2011 and each alternate year thereafter from 4:00pm on 24 December for a period of seven days concluding on 31 December;
(e) At all other times as agreed.
8. That for the purposes of Order 7 changeover will be effected by the Father collecting the children from the Wagga Wagga Police Station or the children’s sporting events at the commencement of his time with the children and the Mother collecting the children at the conclusion of each visit from the Albury Police Station.
9. That the child [X] be at liberty to decide whether or not she spends time with the Father in accordance with these Orders.
10. That the Father and children communicate with each other by telephone on Thursday between 6:30pm and 7:30pm and at all other reasonable times while the children are in the Mother’s care.
11. That the Mother and children communicate with each other by telephone on Thursday between 6:30pm and 7:30pm and at all other reasonable times while the children are in the Father’s care.
12. That the parties do all things necessary to establish a webcam and Skype connection service so that the children may communicate with their Father as requested by them through Skype and using webcams.
13. That unless otherwise agreed each party is responsible for one half of the travel costs associated with the children travelling to and from their home in Tasmania to spend time with the children with the Father as follows:
(a) If the children are to travel by air then the Father is to be responsible for arranging an paying for the cost of flights to his residence and the Mother is responsible for arranging and paying for the children’s flights back to Tasmania and each parent must provide the other parent with copies of the flight itineraries at least 7 days prior to the date of travel;
(b) If the children are to travel by means other than flying then changeover shall take place at a midway point between the two parent’s residences provided however that should the Mother be responsible for transporting the children to and from Albury then the Father must reimburse the Mother for one half of the reasonable travel expenses incurred within 14 days of the Mother providing the Father with copies of receipts for such expenses.
14. That the paternal grandparents are not to be present in the Father’s home while the children are spending time with him.
15. That each party is hereby authorised to obtain from the children’s schools all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited.
16. That the parties advise the other of any change of telephone number or residential address within 24 hours of such change occurring.
17. Any other Order as this Honourable Court sees fit.
Neither at the commencement of the trial nor subsequently did the ICL provide a Minute of Orders Sought. However, in submissions by her Counsel at the conclusion of the trial, the ICL submitted that because of the completely unsatisfactory state of the evidence the Court could not make the orders sought by the Respondent Mother in relation to the relocation sought. Moreover, in subsequent correspondence with the Court, the ICL indicated that the principal order the Court should make was to restrain Ms Bell from relocating.
Evidence of the Parties
Evidence of Mr Ford:[24] Mr Ford presented as a rather straight-forward, uncomplicated witness. He recognised and readily acknowledged both the children’s closeness to their Mother and that Ms Bell had done a “splendid job” as their Mother.[25]
[24] I should note that, while each party’s affidavit material referred to some historical matters, such as the family moving residence a number of times, and a very limited number of allegations (essentially against Mr Ford) in relation to certain parenting issues, the cross-examination of both parties focussed – understandably – on the issue of relocation. In my view, the historical matters mentioned in the affidavits were, and remain, of limited relevance.
[25] Transcript (10th February 2011) p.20.
Mr Ford works full-time as [omitted] in North Albury.[26] He has worked for this business since March 2008. I accept Counsel for the ICL’s comments on his evidence, whereby she submitted that Mr Ford was content to be, and had been, essentially a “weekend Dad” for some time.[27] I did not, and do not, take such a comment necessarily as a criticism.
[26] A letter from his employer, [omitted], regarding Mr Ford’s capacity to take holiday time was tendered: see Exhibit C.
[27] Transcript (11th February 2011) p.51.
I also accept Counsel’s submission that, notwithstanding his ‘weekend Dad’ status, he was quite insightful in relation to the needs of his children. Thus, he commented in the course of cross-examination that while he would love to spend more time with the children he recognised that, for example, if they came to live with him (which was not sought by anyone, and was not recommended by the Family Consultant) there would likely be significant problems because the children are so closely bonded to their Mother. In such circumstances, Mr Ford considered it best that they remain living with Ms Bell. He also perceived, properly so, that “… it would be very disruptive to split them [the children] up like that.”[28]
[28] Transcript (10th February 2011) p.20.
It is no criticism of Mr Ford to confirm that he is not ‘computer literate.’ This is relevant because of the suggestion put to him that, if the children relocated to Tasmania, he could communicate with them via internet services such as Skype. I accept his evidence that he does not know what such services are.[29] In this regard, I also accept his evidence that he likes/enjoys talking with his children – in this instance [Y] and [Z] – by telephone.[30] This might also be said to reflect perhaps an anachronistic (or perhaps a welcome) view that he wished to speak with his children directly (or actually) rather than “virtually.”
[29] Transcript (10th February 2011) p.29.
[30] Transcript (10th February 2011) p.30.
It was not challenged that [Y] and [Z] liked to speak, and spend time, with their Father. This is discussed later in these reasons in the light of the Family Report.
Mr Ford acknowledged that he is estranged from his eldest daughter, [X]. He also recognised that, if the children lived with him, it would place almost an almost unbearable burden on that already strained relationship. He simply said of the proposition that the children live with him: “It would leave us in a very difficult, stressful situation.” While he said that he thought that, with time, everyone might be able to adapt, in the light of the evidence of the parties and of the Family Consultant, I could not be confident in any respect that such adaptability would materialise.[31]
[31] Transcript (10th February 2011) pp.15-18.
Although Ms Bell said in her affidavit that Mr Ford ‘smoked pot’, he confirmed that (a) he did not do so now and had not done so for more than two years, (b) his former employer required regular drug screens, and (c) on his behalf, a clear drug screen test was tendered.[32]
[32] The drug screen test results for Mr Ford became Exhibit B.
It will be recalled from her ‘orders sought’ that in the event of her relocation to Tasmania with the children Ms Bell proposed that
Mr Ford have approximately eight (8) weeks of school holiday time with the children. His response to this, summarily stated, was twofold.
First, he confirmed (as did the letter from his employer) that the business closed down over the Christmas period which required him to take at least one week of his leave at that time. In a similar vein, because it was such a small business, he could not dictate when and how he took leave. While some flexibility was available to him, it was rather limited, and he invariably had to work “extra time” when, for example, he left work early to travel to Wagga Wagga.
Secondly, in response to a range of questions relating to what the children (in this case meaning [Y] and [Z]) could or would do if they spent time with their Father and it exceeded – as it would to a significant degree – his leave entitlements, he rejected the range of propositions that they (would, could or should) look after themselves either bike-riding or being at the bowling alley, or similar venues.[33] Using my words, Mr Ford stated clearly that it would be an abrogation of parental responsibility to leave his children unattended or unsupervised while he was at work.
[33] See the broad discussion at Transcript (10th February 2011) pp.23-28.
I accept Mr Ford’s evidence and his concern for the well-being, safety and supervision of his children. In this regard, it seems to me that a distinction needs to be drawn between a situation where children play and, in a sense, roam relatively free in their own town which is well known to them (in this case, Wagga Wagga); it is quite another thing for that to occur in a locality that they do not know with the same degree of familiarity as their home city of Wagga Wagga.
I also accept Mr Ford’s evidence that, in circumstances where Ms Bell and the children moved to Tasmania, it would be a financial burden on him to travel by plane (or to pay for the children to travel similarly) to ensure that he spent time with them.[34]
[34] Transcript (10th February 2011) p.37.
There was no dispute between the parties that their communication was “basic” and at quite a low level. This is also to say that while the parties communicate, it is rather sparingly so. As well, it also seemed not disputed that, until recently, Mr Ford was not receiving reports and notices from the school about his children.[35]
[35] See, for example, Transcript (10th February 2011) pp.37 & 38. The Mother’s evidence regarding the ‘low level of communication’ is found at Transcript (10th February 2011) p.60.
The Evidence of Ms Bell: It is convenient to deal with four discreet areas of Ms Bell’s testimony, all in the larger context of the proposal to relocate to Tasmania. Those areas concern (a) the children; (b) the maternal Grandparents; (c) employment; (d) housing.
By way of context and also of fact, two matters should be noted. First, apart from her parents living in Tasmania, Ms Bell acknowledged that she has no extended family in that State.[36] Secondly, I accept, but only to a degree, her position that she did not explore (either at all or in any relevant detail) a significant range of matters (e.g. schooling, employment and housing options in Tasmania) until after she knew the decision of the Court in relation to her application to relocate.[37]
[36] Transcript (10th February 2011) p.75.
[37] See Transcript (10th February 2011) p.67.
The Children: There are, of course, a number of areas to be considered here: I note the following.
Schooling: [X] has had trouble at school, with the threat of or actual suspension on a couple of occasions. Ms Bell said that, ultimately, such matters were ‘sorted out’ with the school and no other action was taken, particularly in one instance where it was an error on the school’s part. Unfortunately, none of these matters were ever communicated to Mr Ford. That said, I have no difficulty accepting Ms Bell’s more general evidence, which is consistent with that from the Family Consultant, to the effect that [X] is well settled in Wagga Wagga and that, her preference would be to remain in that city. However, [X] has indicated that she would move if required.[38]
[38] See Transcript (10th February 2011) pp.69-72 & 78-79.
On the other hand, [Z] was recently elected school vice-captain, and, as acknowledged by her Mother, she is excelling at school.[39]
[39] Transcript (10th February 2011) p.79.
Ms Bell confirmed that she had not made any inquiries about schools (e.g. range of schools in any particular area, curriculum, travel options to/from school, or sporting or social matters)[40] in Tasmania, although she said that she had made inquiries about school counselling for [Y] – but no further details were provided.[41]
[40] Transcript (10th February 2011) p.67.
[41] Transcript (10th February 2011) p.73.
Children’s relationship with their Father: In this regard it is sufficient to note that Ms Bell acknowledged that [Y] and [Z] wish to spend time with their Father and that they have a good relationship with him.[42]
[42] Among other places, see Transcript (10th February 2011) p.82.
At the same time, Ms Bell confirmed that it would not be in the best interests of the children for them to live with their Father.[43]
[43] See Transcript (11th February 2011) p.10.
The Maternal Grandparents: A significant, if not the significant, cornerstone of Ms Bell’s case concerned the necessity, as she saw/sees it, to move to Tasmania to care for her parents. Between 2007 and 2009, they lived with her and the children in Wagga Wagga.[44] Currently, they live in [S], although Ms Bell’s evidence was that she planned to move to Launceston, which is approximately a one hour drive from [S]. Accordingly, on her evidence, not only would Ms Bell relocate, but her parents would also be required to ‘relocate’ from [S] to Launceston. She said that they were content to do so. Ms Bell’s intention is to find a house large enough to accommodate her parents, herself, and the three children.
[44] Transcript (10th February 2011) p.86. Unfortunately, this information was not in either of Ms Bell’s affidavits; it only came to light in the course of her cross-examination.
Unfortunately, there was no evidence from the maternal Grandparents. Such evidence as there was may be summarised as follows.
Firstly, in relation to the health of the Grandparents – which was/is the motivating factor for Ms Bell’s decision to move to Tasmania – there was little evidence. In her affidavit of 28th January (para.46), Ms Bell said that she did not think that her parents could continue to live independently on their own for more than the next six months.
Annexure JB1 to her affidavit, e-filed on 28th January 2011, is an undated letter from Dr L, from [S] Community Health Centre. It is addressed: “To whom it may concern.” It refers in very general terms to Ms Bell’s parents having suffered (I do not necessarily draw any inference from the use of the past tense in the letter) “from multiple illnesses.”
Dr L’s very brief letter goes on to state that the maternal Grandmother “has had ischemic heart disease with angina, and has worsening her both eye sights with in particular the right sided become almost blind.” [sic] He states, with singular economy, that Mr B “is also not in good health with worsening arthritis and limited activities.”
Secondly, a slightly more fulsome letter from Dr L, but alas also undated, was tendered: Exhibit F. It was in response to a letter from Ms Bell’s solicitors, dated 21st January 2011. The letter confirmed that Dr L had only recently commenced practice at the [S] Health Centre. As a locum the previous year, and since commencing permanently at the health centre, Dr L has seen Mr B only twice. And, as Dr L made plain in his letter, his report was based essentially on the medical records of the health centre.
Apart from confirming the same matters to which he previously referred (noted above), Dr L concluded his letter in the following terms:
Mr & Mrs B live by themselves and they have informed me that they are now facing increasing difficulty with maintaining daily activities. However, as I am new to the area and have had little consultation with this couple, I feel I am unable to answer the question as to how much longer before they will be forced into assisted accommodation or nursing home.
And Ms Bell confirmed that Dr L was not her parents’ usual doctor.[45]
[45] Transcript (10th February 2011) p.87.
Such was the extent of the medical evidence in relation to the maternal Grandparents’ health, save that, in cross-examination, Ms Bell confirmed that the main “issue” for her Mother was her eye-sight and the risks of leaving alight a gas-burner on the stove.[46]
[46] See Transcript (10th February 2011) p.51.
There was no information about what, if any, inquiries had been (or could be) made, for example, for the Grandparents to be provided meals by some appropriate ‘service provider’, thus alleviating the concern about the Grandmother’s eye-sight. Nor was there any evidence about any inquiry being made about a relatively simple change in appliances in the Grandparents’ home, thus ameliorating the risk of the Grandmother suffering any burns from an exposed gas flame that had been turned down but not extinguished and not noticed by the Grandmother. No such ‘practicalities of life’ were addressed by Ms Bell.
In the course of cross-examination, Ms Bell agreed that (a) if she worked full-time in Tasmania, she would not be able to provide the care (or requisite level thereof) for her parents which is, she says, the [sole] reason for her intention to relocate, and (b) if her parents went into care (of whatever kind, or worse, died) her reason to relocate would no longer exist.[47]
[47] Transcript (10th February 2011) p.73 & Transcript (11th February 2011) p.8.
Ms Bell could also not explain, or fully so, why she would wish to move her parents from [S] to Launceston when, as noted further below, there was some possibility of Ms Bell perhaps working in [S].[48]
[48] See the discussion at Transcript (10th February 2011) p.88 and Transcript (11th February 2011) pp.13-14. For completeness, I note that Ms Bell’s affidavit filed on 28th January 2011 stated that her Mother was aged 70 and her Father was aged 74.
Ms Bell’s Employment: The next matter to consider is Ms Bell’s evidence in relation to her employment (actual or proposed) in Tasmania.
Ms Bell currently works part time as a [omitted]. Currently, she earns approximately $45,000 per year. She also receives some child support from Mr Ford. She confirmed or conceded that if she moved to Tasmania, which thereby required Mr Ford to travel there to see the children and or to pay for the children to travel to spend time with him, her child support payments would be reduced.[49]
[49] See Transcript (11th February 2011) pp.11 & 12.
In her affidavit of 28th January 2011 (par.50), Ms Bell deposed to having been offered a transfer with [company omitted], although she later confirmed in cross-examination that this would only be a part time job which would result in her income dropping to perhaps between $30,000 - $35,000. She referred in general terms to other possible positions in Tasmania, including at [omitted]. In cross-examination
Ms Bell confirmed, however, that there were no specific details about any of the jobs to which she referred.[50]
[50] Transcript (10th February 2011) pp.67 & 82-83.
Housing: In this regard, Ms Bell confirmed that her current residence in Wagga Wagga was worth approximately $230,000, although her equity in it was only in the order of about $70,000.[51] She said that she was unaware, as put to her by Counsel for Mr Ford, that the median house price in Launceston was $550,000. She said that she had seen properties that cost less than this figure.[52] A summary of general valuations of property in Launceston, Wagga Wagga and Albury was tendered by Counsel for Mr Ford (Exhibit E).
[51] Transcript (10th February 2011) pp.75-76.
[52] Transcript (10th February 2011) p.75.
In the light of her indicated and reduced Tasmanian income, and the seemingly higher Tasmanian house prices compared to Wagga Wagga (to speak generally), unsurprisingly Ms Bell was asked questions about how she would financially manage such a move, just in relation to affordable housing. Her only reply was that it was all dependent on whether she could secure a loan.[53] Ms Bell also confirmed that her parents had no capital to bring to the purchase of any property.[54]
[53] Transcript (10th February 2011) p.76.
[54] Transcript (11th February 2011) p.18.
Ms Bell confirmed that in her limited or general inquiries about real estate in Launceston, and in the light of her preference to live on “acreage” in that area, she had not made any inquiries about such properties in or around Launceston.[55] In order to try to remedy this deficiency (and more generally) Ms Bell was given some ‘homework’ overnight during the trial to obtain, if she could, some further information that might assist the Court.
[55]Transcript (10th February 2011) p.90. In a similar vein, Ms Bell conceded that such ‘acreage” would be some distance out of Launceston and therefore, if her parents lived with her (and the children), they would be further removed from any relevant care, such as doctors, etc. See Transcript (11th February 2011) p.17.
On the second day of the trial, various real estate searches concerning properties (for purchase and for rental), in Wagga Wagga, in Launceston and in Tasmania generally, were tendered on Ms Bell’s behalf. These became Exhibits G1-G7. A map of Tasmania was also tendered (Exhibit H). It is almost trite to observe that (a) requiring a witness to do ‘homework’ overnight in the course of a trial (and by implication the lawyers involved) is a less than satisfactory way to proceed, and (b) having to make such a request bespeaks [again] the unfortunately unsatisfactory state of the evidence on behalf of Ms Bell.
It is one thing to adopt a ‘wait and see approach’ as to whether the Court would allow the relocation; it is quite another thing to have next to nothing to present to the Court for consideration in relation to basic planning concerning crucial things such as options for the children’s schooling and welfare, options concerning housing and accommodation, basic details in relation to employment possibilities, and much more besides. All of these things were essentially and sadly lacking in Ms Bell’s case.
The final matters to note about Ms Bell’s evidence are: (a) she simply “assumed” that Mr Ford would have the children in the event that she went to Tasmania but was not permitted to do so with the children, and that (b) she had not thought through what might happen to the children if Mr Ford could not or would not take them, and she went to Tasmania without them.[56] To state what should have been (respectfully) obvious: relocation without relevant and appropriate consideration of the children’s best interests, and basic evidence thereof, is not something that a court could (or should), in my view, reasonably entertain.
[56] Transcript (11th February 2011) pp.7-8.
Indeed, in the light of Full Court authority previously noted in Sampson v Hartnett (No.10), and which is discussed in some detail later in these reasons (including the slightly different context of that case to the orders sought here), the Court is required to undertake a close analysis of the moving party’s capacity to provide for the ‘practicalities of life’ in the place to which that party seeks or proposes to move.
In the course of her cross-examination, and not otherwise raised previously in any affidavit material, Ms Bell said that her parents have indicated that they would not move back to ‘the mainland’, and that, in her view, there was “hostility” in the schools in Wagga Wagga and that, accordingly, it was not in the children’s best interests to remain in Wagga Wagga. I do not have any regard to this evidence, among other things, because none of it was previously given in any affidavit.
Ms Bell confirmed that she had discussed with the children – it would seem over some time and at some length – the proceedings and her intention to relocate to Tasmania.[57]
[57] Transcript (10th February 2011) pp.80-81.
I have no doubt that Ms Bell has the best interests of her children at heart in all that she does. She is, and presented as, a sincere and dedicated Mother. So much was readily acknowledged by Mr Ford. However, on the basis of her evidence, and particularly the significant lack of it presented to the Court, in my view she has shown a remarkable lack of insight on this occasion into the impact on the children, and an astounding lack of basic planning in relation to their well-being, concerning her proposed move to Tasmania. As difficult as it is to confirm, in my view she has placed the quite unsubstantiated and unexamined needs of her parents above the best interests of her children; the Court is required, of course, to place the best interests of the children as paramount.[58]
[58] See s.60CA of the Act.
Evidence of the Family Consultant
Ms D is a Family Consultant based in Albury. She prepared a comprehensive report that was released to the parties on 10th January 2011, which became Exhibit D.[59]
[59] Ms D saw the parties, and the children, at a family conference in Albury on 14th December 2010.
All Counsel [ultimately] agreed that Ms D was not required for cross-examination. The Report is relevant in a number of particular respects, not least of which is Ms D’s record of the children’s “views” about the relocation. That said, and in no way critically, there was little, or any significant, reliance by any Counsel on the Report.
Prior to dealing with the Report, I should note that, in the light of
Ms Bell’s late-breaking news about relocating to Tasmania, if necessary without the children, the ICL spoke with Ms D to seek her opinion about whether, in such circumstances, the children should live with their Father. Ms D’s opinion, communicated by the ICL, was that this would not be appropriate.
I note the following directly from the Family Report.
In relation to the child [X], Ms D notes:
[X] is aged 16 years. [X] has just finished Year 10 at [M] School, Wagga Wagga. Although [X] shed a few tears when speaking about her relationship with Mr Ford she spoke in a calm, clear and coherent manner.
[X] outlined her relationship difficulties with Mr Ford. She indicated that she feels emotionally hurt and angry because she believes that Mr Ford has not taken an active interest in her and her life. [X] cited a number of occasions when she believes that Mr Ford did not make an effort to spend time with her and/or did not seem interested in her pursuits. For instance, she said “I asked him to come and watch me ride my horse, and he watched me ride for five minutes then he took off with [Y]”. [X] also said, “he (Mr Ford) couldn’t get time off work to come and see us kids but he could get time off work to see a friend in Melbourne”.
[X] indicated that she is not willing to spend any time with
Mr Ford. She said, “I don’t want anything to do with my father, and I definitely don’t want to spend time with him”. In response to a query, [X] indicated that she is unwilling to attend joint counselling with Mr Ford in an attempt to address their relationship problems.
[X] said that she believes that Mr Ford favours her younger siblings over her particularly [Y], “because he’s a boy”. [X] has spoken to Mr Ford about this, and she identified that Mr Ford’s behaviour may be not purposeful, “Dad doesn’t realise”…
[X] indicated that she is happy living in Wagga Wagga. She said that she enjoys school and she has a part time job. She indicated that she has numerous friends, although more recently four of her friends had moved. [X] described a close relationship with Ms Bell. She also described warm relationships with the maternal grandparents who presently reside in Tasmania.
In a response to a query about the proposed relocation, [X] said “if I have to go, I’ll go”. It appears that [X] feels that she has little choice about this issue, and living with Mr Ford is not an option for [X]. Although [X]’s clear preference is to remain living in Wagga Wagga, she did make a few positive comments about the potential benefits of living in Launceston. For instance, the family may be obtaining housing on acreage so that their horses will be close by, and [X] said, “it will be good to be able to see Nan and Pop”.
In summary, [X] indicated that although not her first preference, if required, she is prepared to relocate with the mother to Tasmania.
In relation to the child [Y], Ms D notes:
[Y] is 14 years of age. Although he presented as quiet and reserved, he responded to questions in a clear and concise manner. [Y] has just completed Year 8 at [M] School, Wagga Wagga. He indicated that he has a few close friends and his interests include riding his motorbike and playing his x-box. [Y] has attended sessions with a child psychologist in relation to symptoms of anxiety which was arranged by Ms Bell and which apparently has been helpful to him. Each parent indicated that [Y] is well below average academically, he has particular difficulty with reading and spelling; Mr Ford reported that he had a similar learning difficulty.
[Y] made general positive comments about each of his parents. [Y] is fully cognisant of the parental dispute. When asked if he would like to comment on his preferred future living arrangements, [Y] indicated that he would. [Y]’s clear preference is to relocate to Tasmania. He said, “I like Tassie”. He made positive comments about his experience of Tasmania when he visited the maternal grandparents, “it’s nice over there”. [Y] elaborated that he does not have any concerns about leaving Wagga Wagga or changing schools, “moving wouldn’t bother me” and “I’ve changed schools before”. It appears that [Y] does not have any particular sense of belonging or fondness for Wagga Wagga; he said “it’s alright (Wagga Wagga), it’s not the best place in the world but it’s not terrible”.
In regards to his relationship with Mr Ford, [Y] reported that he enjoys spending time with Mr Ford, “its fun”. [Y] said that he usually spends time with Mr Ford on alternate weekends. Although he said, “I didn’t go for a couple of weekends because I was working” and “Dad didn’t seem to mind”…
In summary, [Y] confirmed, “I would like to move and I would like to see Dad on holiday times”.
In relation to the child [Z], Ms D notes:
[Z] is aged 11 years. [Z] has just completed Year 5 at [M] School. She presented as confident, bright and articulate. Reportedly, [Z] is excelling academically. She indicated that she has been chosen to be Vice Captain of the school next year.
[Z] made general positive comments about her relationship with Mr Ford. She said, “I’m his little princess”. Although she also indicated that she feels that Mr Ford spends more time involved in activities with [Y] than with her. She said, “[Y] and Dad are doing the motorbike and I’m doing scrapbooking and sometimes I feel left out and that’s why sometimes I don’t want to go”. [Z] said that she had not spent time with Mr Ford for about six weeks, “I didn’t go to Dad’s the last three weekends”. This was because she was invited to a party and “I wanted to go to Church with Nan”. [Z] explained that she does not always want to spend time at Mr Ford’s home; she said “sometimes I just don’t want to go” and “I just don’t feel like it”. [Z] said that Mr Ford “understands” if she does not wish to spend a weekend with him.
[Z] is fully cognisant of Ms Bell’s relocation proposal. [Z] said that she is uncertain about whether or not she wishes to relocate to Tasmania, “I don’t really know”. [Z] indicated that she had holidaying with her maternal grandparents in Tasmania “that was good I enjoyed it”, however she “missed” Ms Bell.
[Z] explained that her main reason for being uncertain about the relocation relates to feeling concerned about leaving her friends at her present school and whether she will form new friendships at a new school. She said, “the main thing is leaving my best friend and being worried about making new friends”. [Z] described a warm and communicative relationship with Ms Bell. She explained that she has spoken with Ms Bell about these concerns, “I talk to Mum about how I’m feeling” and “she’s very open about my opinions and stuff”.
Ms D made the following further comment regarding Mr Ford and his relationship with the child [X]:
Mr Ford has insight into his relationship difficulties with [X] because she has expressed her thoughts and feelings directly to him. Mr Ford continues to attempt to speak with [X] when he telephones the other children although he said that she often tells him, “you don’t care; you don’t want to talk to me”. Mr Ford says that he will continue to attempt to restore his relationship with [X], he said “I’ll chip away”. Mr Ford is optimistic that over time they will restore their relationship. Mr Ford said that he feels that [X]’s belief that he favours [Y] or [Z] is not valid. Mr Ford indicated that he loves all his children equally.
In summary, Ms D commented that:
At the conference, [X] indicated that although not her preference that she would relocate with Ms Bell, if so required. [Y] indicated that he would like to relocate with Ms Bell and he would like to spend regular holiday periods with Mr Ford. [Z] is uncertain about the relocation, and she has some concerns about forming new friendships in a new school. However [Z] is a confident, bright and friendly child and she will probably adapt to a change in a new environment and school and make new friends relatively easily. All the children are capable of independently maintaining a relationship with an absent parent. The regular use of a webcam, email and telephone contact between the children and their father would be beneficial for staying connected.
If the relocation is permitted, it will be important in order to protect their emotional bonds with Mr Ford that [Y] and [Z] spend regular school holiday periods with him. It would appear that Ms Bell would support and facilitate arrangements for the children to spend time with Mr Ford. However, there are significant practical issues related to Mr Ford’s availability to spend holiday periods with the children. There may need to be a level of flexibility about the timeframe that Mr Ford notifies
Ms Bell about his availability; the parents may benefit from their respective legal representatives assistance in this regard.
Mr Ford may need to consider whether it is a feasible option for him to be more assertive in his workplace about ensuring that he is available to the children on holiday periods.
Legal Principles
The following principles, which (as will be readily seen) I have drawn from a wide range of cases (including earlier decisions of my own) may be taken as the jurisprudential framework for the current matter.
In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Act. Respectfully and gratefully I adopt her Honour’s comments. Brown J said:[60]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))
[60] Mazorski v Albright (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” Beginning at [20], through to [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[61]
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[61] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In F v F, I set out a summary of relevant principle drawn from High Court and Full Court authorities in relation to relocation.[62] That summary is set out below, but with an edited selection of internal citations quoted; thus:[63]
(a) In the absence of legislative direction, no single factor is dispositive of decisions governing residence of a child in a context of the proposed relocation of the parent with whom the child resides. (AMS v AIF, Kirby J, [143]; cf. P v P, [48]).
(b) The over-arching issue is to ensure that any parenting order is in the best interests of the child. (AMS v AIF, Kirby J, [144]; U v U, Gummow & Callinan JJ, [80],[64] Hayne J, [171]; KB & TC, [71]; P v P, [40]). This is also to say that if there is a conflict between the welfare or best interests of the child, on the one hand, and the legitimate interests and desires of the parents, on the other, priority must be given to the best interests of the child. (AMS v AIF, Kirby J, [144]; Hayne J, [217-219]; cf. Goode v Goode, [72]).
(c) Freedom of movement of parents is a significant priority. That freedom is linked with the object of family law legislation to facilitate parties to a broken relationship to start a new life for themselves, including the possibility of forming a new relationship “free from unnecessary interference from a former spouse or partner or from a court.” (AMS v AIF, Kirby J, [145]. On “freedom of movement” generally, see AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [40-45]; Gaudron J, [96]; U v U, Gummow & Callinan JJ, [89]; cf. P v P, [36]). Inhibition of movement may impinge upon the happiness of the custodial parent, which may in turn be transmitted to the child. (AMS v AIF, Kirby J, [145]).[65] Freedom of movement, however, takes second place to the paramount interests of the child.
(d) There is no presumption in favour of a custodial parent to reside wherever he or she wishes. (AMS v AIF, Kirby J, [146]).
(e) The applicant who seeks to relocate need not establish “compelling reasons” for such a move. (AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [47]; Gaudron J, [92]; Kirby J, [191] & [195]; Hayne J, [209]; U v U, Gummow & Callinan JJ, [82]). Nor does either party bear an onus to establish whether to relocate is, or is not, in a child’s best interests.
(f) Transport and modern means of telecommunication may be relevant factors in making proper arrangements (“new and different facilities of access and contact … with the other parent”) as between a child and his or her non-resident parent, especially in relation to relocation within Australia. (AMS v AIF, Kirby J, [147], [148 & 192]; Paskandy v Paskandy, [57]; cf. M v S and “virtual visitation”[93]).
(g) In determining a relocation case that involves changed parenting arrangements, a court must evaluate each of the proposals advanced by the parties, without necessarily being bound by them. (U v U, Gummow & Callinan JJ, [70 & 89]; Hayne J, [171 & 172]; KB & TC, [83-85]). Put another way, without embarking upon “some roving inquiry”, and subject to the evidence led – and affording procedural fairness to all – a court will not necessarily be constrained solely by the proposals of the parties in determining what is in the best interests of the child. (U v U, Hayne J, [172]; KB & TC, [84]; P v P, [40]).
[62] F v F (2008) 38 Fam LR 52 at pp.56-58 [7]. A more abbreviated summary is provided by Ryan J in Sheldon & Weir (No.3) [2010] FamCA 1138 at [244] & [245].
[63] It will be seen that, in the light of Full Court authority which confirmed that the earlier decision of A and A (2000) FLC ¶93-035 no longer reflects the principles to be applied in relocation cases and, therefore, should not now be followed, all references to that case have been omitted. See Hepburn & Noble (2010) FLC ¶93-438 at [100], and Cales & Cales (2010) 44 Fam LR 237 at [139].
[64] It should be noted that in U v U, Gleeson CJ agreed with the judgment of Gummow & Callinan JJ, as well as with the comments of Hayne J. See (2002) 211 CLR at p.240 [1].
[65] Cf.Payne v Payne [2001] Fam 473, where Thorpe LJ, summarised, at [26], the two governing propositions under UK legislation and judicial authority over 30 years in relocation cases as (a) the welfare of the child is the paramount consideration and (b) refusing the primary carer’s reasonable proposals for relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. See also the reasons of Dame Butler-Sloss P [85], as well as the comments of Bryant CJ and Finn J in Taylor & Barker (2007) 37 Fam LR 461 at [84] – [113].
This summary of principle must, of course, be seen and understood in the light, and context, of the ‘prescribed legislative pathway’ in Part VII of the Act. Thus, as stated by Bryant CJ and Finn J, who constituted the majority in Taylor v Barker, at [53] (internal citations referring to U v U and KB & TC omitted):
We agree that when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible.
To this instruction, I note too the similar, and slightly more fulsome, remarks by the Full Court in McCall v Clark, where their Honours’ said, at [60]:[66]
In Sealey & Archer [2008] FamCAFC 142 the Full Court (Bryant CJ, Finn and Thackray JJ) said at paragraph 63:
While it has been recognised that the Act does not provide any express direction or guidance as to the overall order in which the provisions of Part VII must be applied (Taylor & Barker (2007) FLC 93-345 at [62]), the legislation does require in s 61DA that when a court makes a parenting order, it must apply the presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility for the child (unless there are circumstances in which the presumption does not apply, or in which it would be inappropriate to apply it, or it is rebutted), and it further requires in s 65DAA that if there is to be equal shared parental responsibility for the child, consideration must be given to the child spending equal time (or if not, substantial and significant time) with each parent.
And at paragraphs 66 and 67:
Again as was recognised in Taylor & Barker (supra, see in particular paragraphs 58 and 77-83), in a case which involves a proposal that there be a significant change in the place where a child lives, it is appropriate for a court in its application of s 65DAA, and particularly s 65DAA(5), to canvass the advantages and disadvantages of a proposal “to re-locate” the child. We would also expect that the court would have addressed the matters arising under s 65DAA(5) in the context of its consideration of relevant s 60CC matters.
In making the latter observation, we should say that we do not see anything said in Taylor & Barker as suggesting that a trial judge would ignore the relocation proposal when making the necessary s 60CC findings…
[66] McCall & Clark (2009) 41 Fam LR 483. See also the Full Court’s discussion in Starr & Duggan [2009] FamCAFC 115 at [38] & [39], and by Ryan J in Sheldon & Weir (No.3) at [242] – [243].
Discussion
In the light of the evidence and the legal principles to which I have referred, I make the following findings having regard to the ‘paramountcy principle’ in s.60CA of the Act.[67]
[67] Unless otherwise required, all citations hereafter should be taken to be to the relevant sections in the Act.
If Ms Bell was to move to Tasmania, there would be a number of risks. For example, there is no question that there would be a diminution in the time that the children (meaning [Y] and [Z]) spend with their Father. Given that they do not spend large amounts of time with him as it is, any further reduction would not be in their best interest.[68] While there may not be any significant diminution in the quality of the meaningful relationship which the children mentioned currently have with their Father if they moved to Tasmania, there would be, in my view, still some risk of its quality being maintained.[69]
[68] Cf. ss.60B(1)(a) & 60B(2)(a) & (b). For the record, there are no “protective” issues, such as family violence or physical or psychological harm, which need to be considered by the Court in this matter.
[69] See s.60CC(2)(a).
Having regard to the ages of the children in this case, their views (s.60CC(3)(a)) are very significant in this case. Similarly so is the view, which I also hold, that it would not be in their best interests to be ‘split up.’ Whatever the qualification of their “wishes”, [X] and [Z] expressed either a clear preference to remain in Wagga Wagga, or a significant concern about leaving that city. [Y] was more straight-forward and clear about moving. However, given the other considerations, his view seems to me to be somewhat idealistic (which is no bad thing) but rather uninformed about the realities of such a significant move. In my view, the weight of the children’s views points to a strong preference to remain in Wagga Wagga.[70]
[70] In what follows, and noting that, in my view, there is no need to consider sub-paragraphs (f), (g), (h), (j) & (k) of s.60CC(3), I should be taken to move progressively from each remaining stone or block (of whatever size) that constitutes the legislative pathway.
Given the range of issues referred to in the lives particularly of [X] and [Z], it is not, in my view, in their best interests to move away from Wagga Wagga, at least until after their schooling is finished.
There is no question of the children’s good relationship with Ms Bell, and in the case of the two younger children, equally so with their Father. It is unfortunate that [X]’s relationship with her Father is severely strained.[71] I accept Mr Ford’s persistence and hope that, over time, it may improve. Given her age, it would be rather superfluous to make orders in relation to her and the time that she might spend with her Father.
[71] I need not rehearse the background to and reasons for the estrangement; such matters are set out in the affidavit material, the Family Report, and in the Transcript (10th February 2011) at pp.34-36, 61ff., & 91ff.
There is insufficient evidence for the Court to make any findings in relation to any other relationships of significance to the children, including, but not limited to, the maternal Grandparents.
The ICL expressed reservations about Ms Bell’s capacity to facilitate and encourage the children’s relationship with their Father if there was a move to Tasmania.[72] I share the same concern. Given that the children live with their Mother, there is no issue about the Father promoting their relationship with their Mother. In any event, as I have noted, Mr Ford readily acknowledges and praises Ms Bell’s parenting of the children.
[72] See, for example, Transcript (11th February 2011) p.49.
I have already articulated my concern about the possibly adverse impact on the younger children’s relationship with their Father if the relocation were to proceed.
I accept the evidence of Mr Ford that a relocation would impact adversely on him, indeed more likely on all parties, because of the increased cost that would arise from the children spending time with their Father, whether that is in Tasmania or at the Father’s residence in [T].
There are no relevant issues about either parent being able to provide for their children adequately.
Subject to comments on a number of legal issues that follow, in my view the orders sought by Mr Ford are in the children’s best interests, and are the more likely, within the terms of s.60CC(3)(l), not to lead to further litigation.
Both parties seek an order for equal shared parental responsibility. Such an order will be made.
No party seeks an order for “equal time”, and in the light of the geographical limitations that arise from the residence of each parent, the reasonable practicability requirements of s.65DAA(5), the ‘substantial and significant time’ provisions in s.65DAA(3) have no application.[73]
[73] Regarding the appropriate consideration of s.65DAA, see the discussion by the High Court in MRR v GR (2010) 240 CLR 461 at [13] & [15].
The remaining legal issues concern: (a) whether any Jones v Dunkel inference should be drawn by the failure to adduce any evidence from either of the maternal Grandparents; (b) whether s.69ZT of the Act can (or should) operate to remedy or otherwise ameliorate any such defect in the evidence; and (c) whether, in the absence of either written agreement between the parties or subsequent order of the Court, an injunction should issue, until the children complete their schooling, to restrain Ms Bell from moving to Tasmania in accordance with the principles set out in the majority judgment in Sampson v Hartnett (No.10), and perhaps also the later Full Court decision in Cales v Cales.[74]
[74] Sampson v Hartnett (No.10) (2008) 38 Fam LR 315 (Bryant CJ & Warnick J); Cales & Cales (2010) 44 Fam LR 376 (May, Boland & Cronin JJ).
A Jones v Dunkel inference? Jones v Dunkel stands for the basic and now long-standing principle, summarised in Wigmore on Evidence (3rd Edition) as quoted by Windeyer J in Jones v Dunkel, as follows:[75]
“The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted." ([Wigmore] at p.321)
[75] (1959) 101 CLR at pp.320-321. See also similar statements by Kitto J at p.308, and by Menzies J at p.312. See too the detailed discussion in Cross on Evidence (Eighth Australian Edition) (J.D. Heydon) (Sydney: LexisNexis Butterworths, 2010) at [1215].
Windeyer J went on to say, in the same place: “This is plain commonsense.” And, typically with the support and citation of abundant authority, his Honour said (at p.321): “Unless a party's failure to give evidence be explained, it may lead rationally to an inference that his evidence would not help his case.”
The question in the current proceedings, it seems to me, is whether such an inference could or should be made regarding the failure to adduce any evidence from Ms Bell’s parents, or whether – and unfortunately so - it is nothing more than another failure in the litany of lack of evidence.
In the light of Windeyer J’s clear statement of principle, which has, of course, been regularly followed ever since,[76] as the cases make plain, of critical importance is that at no stage was any explanation given why Ms Bell’s parents did not even provide an affidavit in the proceedings. Respectfully, that omission goes beyond mere lack of preparation. In such circumstances, such an adverse inference, which was urged on the Court by Counsel for the ICL, should be drawn.[77]
[76] See the abundant citations referenced in Cross on Evidence at [1215].
[77] See, for example, Transcript (11th February 2011) p.52.
For the sake of completeness, I note that Cross on Evidence, at [1215], cites a Full Court decision of the Supreme Court of South Australia – Smith v Samuel – for the proposition that, among other things, an inference may not be drawn in circumstances where the person not called is the son of the opposing party.[78] However, it should be noted that the decision cited is (a) from a criminal appeal (rather than in civil proceedings) and (b) from the dissenting judgment of Bray CJ. And indeed, the learned Chief Justice stated: “For the unfavourable inference to be justified the witness not called must be available: it must be “in the power” of the party to call him.”[79] In my respectful view, this case does not (or would not) assist Ms Bell in relation to the Court drawing the relevant inference. The maternal Grandparents were parties who were ‘in the power’ of the Respondent, and she could have, and should have, provided appropriate evidence from them in relation to (a) their well-being (the general evidence of Dr L was patently insufficient) and (b) their circumstances in relation to housing, relocation, and the other issues raised by Ms Bell.
[78] Smith v Samuels [1976] 12 SASR 573.
[79] See the discussion at 12 SASR at p.581.
In the light of this discussion, and as previously indicated, the relevant inference should be drawn in relation to the failure (a) to call either of the maternal Grandparents, (b) to provide any affidavit evidence from either of the maternal Grandparents, and (c) to explain why there was no evidence from either of the maternal Grandparents.
Can a Jones v Dunkel inference be remedied by s.69ZT of the Act? That section provides:
Rules of evidence not to apply unless court decides
(1) These provisions of the Evidence Act 1995 do not apply to child-related proceedings:
(a) Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re-examination and cross-examination), other than sections 26, 30, 36 and 41;
Note: Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b) Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c) Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
(2) The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
(3) Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a) the court is satisfied that the circumstances are exceptional; and
(b) the court has taken into account (in addition to any other matters the court thinks relevant):
(i) the importance of the evidence in the proceedings; and
(ii) the nature of the subject matter of the proceedings; and
(iii) the probative value of the evidence; and
(iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
(4) If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.
(5) Subsection (1) does not revive the operation of:
(a) a rule of common law; or
(b) a law of a State or a Territory;
that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.
In particular, the ‘rules of evidence’ are applicable in child-related proceedings only where, pursuant to s.69ZT(3), the Court is satisfied (noting that there is no compulsion to do so) that the circumstances are exceptional, and, as noted above, the Court is also satisfied of the other matters mentioned in s.69ZT(3)(b).
In my view, the nature and degree of the lack of relevant evidence in this case would, respectfully, entitle the Court to be satisfied that it was something of an exceptional case in accordance with the section. And in those circumstances, the rule of evidence in relation to “adverse inference” could and should be made.
To speak somewhat generally, it seems to me that s.69ZT may be invoked in proceedings to remedy defects in any evidence presented. However, it would seem to stretch principle beyond its elastic limit to say that it can be invoked to remedy gaps in evidence where no evidence has been given or the evidence is of such small moment in the nature and purpose of the issues to be determined by the Court. In the present case, the extremely limited evidence of Dr L, and the few statements made by Ms Bell, fall a very long way short of appropriate evidence in relation to the issues of relocation which the Court must resolve.
Put another way, s.69ZT is intended to facilitate the conduct of proceedings in parenting cases. In my view, it is not, and should not be viewed as, a panacea for deficiencies in the evidence presented at trial. The section is facultative; it is not, in my view, remedial.[80]
[80] S.69ZT was inserted into the Act in 2006 as part of the significant amendments introduced pursuant to the Family Law Amendment (Shared Parental Responsibility) Bill 2005. The Minister’s Second Reading Speech, which understandably focussed essentially on the ‘shared parental responsibility’ details, made no mention of s.69ZT specifically and only the most general and passing reference to Division 12A. See Commonwealth Parliamentary Debates (House of Representatives) Hansard 8 December 2005, pp.9-11 (Attorney-General Ruddock). The Explanatory Memorandum is only marginally more expansive. Among other places, see generally pp.67 - 68 of the Explanatory Memorandum.
Accordingly, the answer to the question posed above is “no.”
Sampson v Hartnett (No.10) & Restraint on the Mother to Relocate: It is important to set out the basic principles here in play as described by the Full Court (Bryant CJ & Warnick J).[81] Following a discussion of “principles”, including the ambit of ss.68B and 114(3) of the Act, their Honours said, at [57] & [58] (emphasis added):[82]
[57] If it is within power to order a person not to relocate, it would be surprising if it was not within power to order a person to relocate, although one would imagine the exercises of power to the latter effect would be even more rare, because the effect is more drastic. The person being ordered not to move at least has chosen that location as [sic] some stage and for reasons which one assumes at leats [sic] once existed. This contrasts with a person who may not wish to go some where and therefore the order is much more of an imposition on that person’s freedom.
[58] However, we conclude there is power under s 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare, because:
(i) the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and
(ii) in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent’s choosing.
[81] (2007) 215 FLR 155, (2007) 38 Fam LR 315. The subject of relevant restraining orders in the light of Sampson v Hartnett (No.10) was discussed from time to time during the trial and at some length with all Counsel in the course of closing submissions. See, for example, Transcript (11th February 2011) pp.33 ff.
[82] The earlier discussion of “principles” begins at [19].
Clearly, their Honours saw a range of “issues” that could arise from a court exercising power under s.114(3). Bryant CJ and Warnick J observed, at [59]:[83]
[59] The prospect of ordering a parent to relocate and in effect “parent” in a situation not of that parent’s choosing, legitimately gives rise to concerns, particularly in respect of enforcement. What if the parent, in response to such an order, simply hands the child to the other parent, perhaps in circumstances such as in the instant case, where for whatever reason, there is not a well-established relationship between the child and the other parent? Will the primary parent be punished? The fact that such vexing questions arise does not mean that the power does not exist and may be rightly exercised at times. Enforcement is discretionary and may be rare in the situation exemplified. On the other hand, enforcement may be appropriate if a primary parent ordered to relocate, simply did not do so.
[83] See the earlier discussion by Bryant CJ & Warnick J at [9] – [18] “Different orders for different circumstances.”
In my view, of particular relevance to the current case are the further observations, at [75]:
[75] To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move. One would therefore reasonably expect a close analysis of the moving party’s capacity and/or the other parties’ capacity to provide for such practicalities having regard to the orders proposed by the court. It is probably only in the circumstance of significant wealth of both parties that it might reasonably be inferred that the practicalities of life could be met without detailed inquiry.
Two comments may be made immediately in the light of the Full Court’s discussion. First, I readily accept that the exercise of the power to which the Full Court referred, which amounts to a form of mandatory injunction, will likely only be used in rare and exceptional circumstances. However, in the current matter before the Court, it seems to me that the Court is dealing with a less rare circumstance: that is, the Court is here not proposing to order someone to relocate (as was contemplated in Sampson v Hartnett (No.10)), but rather, and more logically, in the best interests of the children, to order a parent not to relocate from their, and the children’s, established place of residence. It might therefore be said to be a rather more conventional exercise of the power conferred by s.114(3).
Secondly, as the Full Court made plain, it is incumbent on this Court to inquire rather closely (as already noted earlier in these reasons, in the Full Court’s words: “a close analysis of the moving party’s capacity to provide for such practicalities …”) of Ms Bell’s capacity to provide for the basic practicalities in Tasmania for the children, and to do so in a way that is also cognisant of the recognised [potentially] adverse impact on the children’s relationship with their Father, even if only (but likely more so and in other respects) in relation to the significantly increased financial burden that such a move would entail.
As previously noted, Ms Bell is not required to provide the Court with compelling reasons to substantiate or to justify her proposed relocation. However, she is required to provide the Court with sufficient evidence so that the Court may reasonably assess, as it is required to do, whether the relocation is or is not in the children’s best interests. Unfortunately, Ms Bell has not provided anywhere near sufficient information that would enable the Court to determine that the relocation is in the children’s best interests.
I note the following [respectfully] helpful further discussion of principle in relation to the applicability of Sampson v Hartnett (No.10) by the Full Court in Cales v Cales.[84] The following discussion is located at [78], [85] and [87] - [90]:
[84] Cales v Cales (2011) 44 Fam LR 376 (May, Boland & Cronin JJ). See also the further brief discussion by Cronin J in Halifax v Fabian (2011) 44 Fam LR 554 at [145].
[78] In their joint reasons, Bryant CJ and Warnick J in summary concluded that:
· a court may rule that a relocation should not occur (paragraph 9);
· if a parent intends to relocate regardless of whether or not the child is permitted to relocate, that the court may order the child stay in a particular location;
· if a court determines the child should not relocate, and the parent then indicates she/he will stay with the child then the child will live with that parent or if the parent does not wish to stay, then the child will live with the other parent (if both proposals are in the child’s best interests) (paragraph 10);
· if a court refuses the relocation, the order made (as explained above) does not affect the parent’s freedom of movement, because the parent can hand over the child to the other parent; and
there is little doubt that the court has power to “effectively” order a parent not to relocate by an order that the parent not change the location of the child (the situation in this case).
[85] In MRR v GR the High Court explained there is no power to make a parenting order under s 65D which provides for equal time or substantial and significant time when an order for equal shared parental responsibility has been or is proposed to be made unless the two questions in s 65DAA(1)(a) and (b) and s 65(2)(c) and (d) are answered affirmatively. In MRR v GR the High Court said, in the circumstances of that case, an equal shared time regime could only occur if both parents remained in their existing location (paragraph 11), and the error identified was that the Federal Magistrate had failed to consider whether that arrangement was reasonably practicable (paragraph 14). The High Court did not need to address the question of whether it was within power in such a situation to restrain the movement of children from their existing location and then determine reasonable practicability. But we agree with senior counsel for the mother the effect of such a restraining order could be considered as one which artificially creates an environment to allow an affirmative answer to “reasonably practicable”. However, in this case, as we will later explain, even if the movement of the children was restrained, that of itself did not mean a regime of substantial and significant time was necessarily in the children’s best interests and reasonably practicable.
[87] The requirements of s 65DAA do not, in our view, necessarily render nugatory the power of a court to make an order restraining the child’s removal from a particular location whether the order is characterised as one of the types of order which may be made under s 64B(2)(i) or whether made under s 68B. It follows from this conclusion we do not accept the limitations which senior counsel for the mother sought to read into s 68B. It is important to note that whilst sub-sections (a), (b), (c) and (d) refer to situations in which the granting of an injunction may be appropriate, s 68B(1) is not so limited referring as it does to “such order or injunction as it considers appropriate for the welfare of the child including ….” (our emphasis). See also s 68B(2).
[88] Although the majority in Sampson & Hartnett (No. 10) were dealing with the question of power to order a parent to relocate (a mandatory injunction), we think the caution expressed about making that type of order may also have resonance in the making of final orders if the power being exercised is by way of an enforcing injunction restraining the movement of children. In accordance with general principles applicable to the making of that species of injunction, many factors may require careful consideration, including the extent and duration of the restraint to be imposed.
[89] While we agree the type of order envisaged by the majority in Sampson & Hartnett (No. 10) is one which will be rarely and sparingly made, we are not persuaded, as presently advised, that as a result of MRR the decision of the majority is no longer correct law (see Nguyen v Nguyen (1990) 169 CLR 245).
[90] It follows, we do not accept there is a lack of power in a court exercising jurisdiction under Part VII to make an order restraining the removal of children from a particular location, and in this regard we note that this conclusion is consistent with the decision of the majority in Sampson & Hartnett (No. 10). We observe, however, what was not addressed directly in this appeal was the question about when the nature and scope of such an order should be considered by a court given the requirements of s 65DAA, but absent argument on this point it is unnecessary we determine that issue.
Conclusion
By way of summary, the factors that militate against Ms Bell relocating, and (if it need be said) of the children also not being relocated outside of their current residence in Wagga Wagga being in the children’s best interests are:
(a) the settled home and school environment in Wagga Wagga, which is to be contrasted to the lack of information, of any relevant sort, in relation to their living and schooling arrangements in Tasmania. Moreover, the youngest of the children, [Z], is thriving academically in Wagga Wagga and is an elected vice-captain of the school. She may well thrive similarly in Tasmania, but, at this stage and given the lack of evidence before the Court, in my view, a move to Tasmania would be a significant risk for her;
(b) the clear preference of two of the three children ([X] and [Z] – “the girls”) is to remain living in Wagga Wagga, while their brother, [Y], is content to move to Tasmania, albeit that that would seem to be predicated upon quite an uninformed, and somewhat idealistic, perception of the practicalities of life in Tasmania. For the reasons previously given, the preference of the girls should prevail;
(c) in the light of the limited evidence available, there would likely be a quite significant financial burden on either or both Mr Ford and Ms Bell should a relocation be permitted, because of the added travel costs to and from Tasmania. Certainly, on the very limited evidence of Ms Bell, her financial resources are not large, by any means; there was no evidence from
Mr Ford in relation to finances. He works full-time; the Court may, however, be able to take some “notice” that the general wage of a fitter is likely to be modest and that the cost of regular travel to and from Tasmania (either for himself alone and or for the children) would be a significant impost on him;
(d) in my view, there has been no, or insufficient, consideration of other options or alternatives, which could ameliorate
Ms Bell’s concerns in relation to the welfare of her parents. To the degree that those avenues remain unexplored, and the lack of any relevant evidence before the Court, it bespeaks Ms Bell showing a lack of insight into the best interests of her children in the light of the desired relocation, and clearly a situation where she has placed the interests of her parents above those of her children. Indeed, as Ms Bell fairly conceded, if her parents were required to go into care, her reason for relocation evaporates. In the words of Counsel for the ICL:[85]
… what is it about Tasmania that is in their best interests? Does your Honour wash your hands of the responsibility and launch the children into the wide blue yonder of Tasmania and say ‘Okay, off you go’ on such unsatisfactory evidence. And that is the major problem with this case and the major concern for the independent children’s lawyer.
[85] Transcript (11th February 2011) p.52.
For the above reasons, in my view, the orders that are in the best interests of the children are those sought by Mr Ford.
In addition to those orders, in the absence of written agreement with Mr Ford or order of the Court, Ms Bell is restrained from (a) relocating to Tasmania, and (b) relocating the children’s residence outside a radius of 200 kilometres from Wagga Wagga. Subject to the conditions noted, these orders are to remain in place until all of the children have completed their schooling.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 30 June 2011
Transcript (10th February 2011) p.47. See also Ms Bell’s confirmation to Ms Godtschalk that there was no evidence before the Court in relation to any job (or offers of same) before the Court: Transcript (10th February 2011) p.83. Ms Bell also confirmed, in answer to further questions from
Ms Godtschalk, that her parents were not on affidavit in the current proceeding before the Court. See Transcript (10th February 2011) p.88. This particular omission was the subject of certain Jones v Dunkel (1959) 101 CLR 298 submissions, which are considered later in these reasons.
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