G and M
[2002] FMCAfam 364
•1 October 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| G & M | [2002] FMCAfam 364 |
| FAMILY LAW – Children – application to remove child interstate – parenting orders – contact orders – mother the in challenged residence parent – planned relocation of mother – place of residence of child when on parent wishes to relocate to another state – proposals of parents about residence of child and contact with child – bests interests of child paramount consideration. FEDERAL MAGISTRATES COURT – Practice and procedure – children – parenting orders – proposals of parents – powers or discretion of court not confined by proposals of parents. WORDS AND PHRASES – “Compelling reasons”. |
The Constitution s.92
Family Law Act 1975 (Cth) ss.60B; 65E; 68F(2)
AMS v AIF v AMS [1999] HCA 26; (1999) 24 Fam LR 756; FLC 92-852
U v U [2002] HCA 36; (2002) 29 Fam LR 74
A v A: Relocation Approach [2000] FamCA 751; (2000) 26 Fam LR 382; FLC 93-035
H v L [2000] famCA 752; (2000) FLC 93-036
Paskandy & Paskandy (1999) 25 Fam LR 607; FLC 92-878
SMG v RAM [1999] FamCA 1845; (2000) FLC 93-020
Martin v Matruglio (1999) 25 Fam LR 510; FLC 92-876
B and B: Family Law Reform Act 1995 (1997) 21 Fam 676; FLC 92-755
| Applicant: | G S G |
| Respondent: | K M |
| File No: | PAM 1059 of 2002 |
| Delivered on: | 1 October 2002 |
| Delivered at: | Parramatta |
| Hearing Dates: | 18, 19 & 26 September 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Sansom |
| Solicitors for the Applicant: | Watts McCray |
| Counsel for the Respondent: | Mr Heazlewood |
| Solicitors for the Respondent: | McGrath Dicembre & Co |
| Counsel for the Child’s Representative: | Mr Clakre |
| Child Representative: | Watson Stafford |
ORDERS
The Orders made on 17 June 2002 are discharged.
The child B E G born 3 March 1997 is to reside with the Respondent Mother.
The Mother is restrained from causing the said child to reside outside the S metropolitan area until 20 January 2003.
Until 19 January 2003, the Applicant father is to have contact with said child as follows:
(a)each alternate weekend during school term time from 6.00 pm on the Friday to 5.00 pm on the Sunday, commencing on Friday
11 October;(b)for a period of three (3) days including three (3) nights during the December School holidays;
(c)for a period of four (4) days including four (4) nights during the month of January 2003;
(d)from 1.00 pm to 6.00 pm on Christmas Day 2002; and
(e)by telephone on one occasion each week.
From and after 20 January 2003, the Applicant Father is to have contact with the said child as follows:
(a)for the first week of each Victorian school holiday period with the exception of the December/January school holiday period;
(b)for a week during the January school holiday period commencing on the first Saturday after New Year’s Day;
(c)by telephone on at least one occasion in each week, on Father’s Day, on Christmas Day and on the child’s birthday each year;
(d)at other times when the Father is visiting M as the parties shall arrange PROVIDED THAT the Father gives the Mother 21 days notice of his intention to exercise contact in M; and
(e)on 23 February 2003 on the occasion of the Father’s wedding.
For the purpose of exercising contact pursuant to Order 5 the Mother shall deliver the said child to the Father’s residence at the commencement contact period and shall collect the said child from the Father’s residence at the conclusion of each contact period.
The Father shall ensure that either Nicole Ann P or his mother J E G is present at all times during contact.
The parties are to share equally the costs and expenses of airfares involved in the child’s travel between M and S for the purpose of exercising contact pursuant to these Orders.
The Father is restrained from:
(a)allowing the said child to attend any function organised by the B m c c;
(b)allowing the said child to attend any premises occupied by the B m c c; or
(c)allowing the said child to come into contact with any members of the B m c c with the exception of the occasion of the Father’s wedding.
The Father is restrained from administering to himself any prohibited drug during or for twelve (12) hours prior to any period of contact or from permitting the said child to remain in the presence of any person administering to himself or herself any prohibited drug.
The Mother is to give the Father 14 days written notice of her intention to reside with the child in any State of Australia other than Victoria.
The parties are to notify each other within 6 hours of any illness or injury sustained by the said child requiring either treatment at a hospital or attendance upon a specialist medical practitioner.
The Mother is to authorise the principal of each school attended by the said child to provide to the Father on a regular basis copies of all school reports concerning the said child and copies of all school bulletins and newsletters as are normally provided to parents of children attending the child’s school, such authority to be given by the Mother within seven (7) days of the child commencing to attend the school.
The Mother is to authorise the principal of each school attended by the said child to forward to the Father all necessary information about school photographs of the child on a regular basis and permit the Father to obtain copies of such photographs as he may wish at his own expense.
The Mother is to notify the Father of the name and address of each school attended by the said child no later than 48 hours before the child commences to attend such school.
The Mother is to notify the Father of her landline telephone number in M within 7 days of her arrival in M.
The Mother is to make all necessary arrangements to obtain an email facility so that the said child may communicate with the Father by email by 30 June 2003.
All documents produced on subpoena with the exception of exhibits are to be returned.
The Father and the Mother are each to pay the sum of $1500.00 towards the costs of the Child’s Representative in these proceedings within six (6) months from the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 1059 of 2002
| G S G |
Applicant
And
| K M |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the father of the child B E G born 3rd March 1997 for the following orders:
a)that the child reside with the mother;
b)that the father have contact with the said child:
i)each alternate weekend;
ii)for half of each school holiday period;
iii)each alternate Boxing Day;
iv)each Father’s Day;
v)on the child’s birthday;
vi)by telephone at reasonable times and no less than twice a week;
a)that the father return the child to the mother at 9.00 am on Mother’s Day;
b)other incidental contact orders and specific issues orders; and
c)that the mother be restrained from changing the child’s place of residence outside the S metropolitan area.
In her Amended Response, filed on 30th August 2002, the mother seeks orders to the following effect:
a)that the child reside with her;
c)that the child be permitted to reside in M with the mother from on or about 1 October 2002;
d)that the father have contact until the end of the year 2004 as follows:
i)the fourth weekend of each alternate month (to include any public holiday Monday);
ii)overnight contact for two nights if the contact weekend falls during a Victorian school holiday (other than the December/ January school holiday);
iii)overnight contact for three nights if the contact weekend falls during the December/January school holiday;
iv)contact in M one weekend each month on the father giving two weeks’ notice in writing;
a)after the end of 2004, the father to have contact for one week of each school holiday;
b)the parties to share the costs of the child’s air travel;
c)contact to be supervised by the father’s fiancee or his mother;
d)an order restraining the father from allowing the child to attend any functions organised by the B Motorcycle Club, or attending any premises occupied by that club, or associating with any members of that club; and
e)an order restraining the father from taking any prohibited drug during or for twelve hours before any contact period, or permitting the child to remain in the presence of anyone taking any prohibited drug.
As the father is not seeking that the child reside with him, the issues are whether the mother should be permitted to relocate to M with the child and whether the child should be allowed to come into contact with the members of the B Motorcycle Club.
Background
The father was born on 15th November 1973. He will attain the age of 29 years in a few weeks’ time. The mother is aged 27 years, having been born on 27th February 1975. They commenced to live together in 1996, and the mother gave birth to the child B on 3rd March 1997.
The relationship was often stormy, as the mother did not approve of the father’s involvement in the B Motorcycle Club. The parties separated in January 1998.
The father was involved in a serious motor cycle accident in November 1999, which required him to remain in hospital or in a rehabilitation unit until September 2000. The father’s injuries were so severe that he became a quadriplegic, and he is confined to a wheelchair. He also has a carer to assist him in various everyday activities.
Each of the parties has formed a new relationship. The father has become engaged to N P, and intends to marry her in February 2003. Ms P has two children from a previous relationship, K aged 6 years and C aged 5 years. Both of those children live with her.
The mother has now become engaged to I M. He has moved to M, where he has employment and a house. The mother wishes to move to M with the child and reside with her fiance.
There have been disagreements between the parties about the amount of contact that the father is to have with the child. The father commenced proceedings in this Court on 26th March 2002. On 17th June 2002, after an interim hearing, the Court made orders to this effect:
a)the child is to reside with the mother;
b)the father was to have contact with the child, first from 9.00 am to 5.00 pm on two Saturdays (but no overnight contact), and each alternate weekend thereafter. There was also to be regular telephone contact;
c)for the purpose of the contact arrangements, the mother was to deliver the child to Ms P’ home at the commencement of each contact period, and collect her from there at the conclusion of contact;
d)the father was to ensure that either his mother or Ms P were present at all times during contact;
e)the father was restrained from allowing the child to attend any functions organised by the B motorcycle club, or from allowing her to attend any premises occupied by the club;
f)the father was restrained from administering to himself any prohibited drug during or before any contact period or permitting the child to remain in the presence of anyone administering a prohibited drug to themselves; and
g)the mother was restrained from causing the child to reside outside the S metropolitan area.
For the purposes of the final hearing of these matters, the Court ordered a Family Report. The Court also ordered that the child should be legally represented for these proceedings.
Evidence
The parties gave evidence by affidavit. The father was cross-examined at some length by Mr Heazlewood of counsel, for the mother, and (at less length) by Mr Clarke of counsel for the child’s representative. The cross-examination went to the topics of the father’s involvement with the B, the use of violence, the use of prohibited drugs, and whether or not the father had a close relationship with the child.
In the course of cross-examination, the father admitted that he had on one occasion a pistol in a bag of his, and that there had been some trouble between motorcycle gangs. The father agreed that he still maintained contact with his former colleagues in the B. The father said that he had had regular but infrequent contact with the child since he sustained his injuries, and that his fear was that he would lose contact with the child – “I’m just frightened that if my daughter goes to M, I’ll lose contact with her”.[i]
The father’s mother, and the father’s fiancee, both gave evidence. The father’s mother expressed the opinion that the father has a good relationship with the child, and she used to take the child to see him regularly whilst he was either in hospital or in a rehabilitation unit.
The father’s fiancee, Ms P, gave evidence that had observed that the father had a loving relationship with the child and appeared to enjoy spending time with her. She said that her daughter was only a year older than the child B, and the two girls had a good relationship with each other and enjoyed playing together.
The mother gave evidence that, if she moved to M, the child could communicate with her father by e-mail, especially with a video camera attached. Her proposal is that she could move to M almost immediately, she had made arrangements to enrol the child in school, and that the father would see her on weekends six times a year. This contact would involve the child flying to S, accompanied by the mother. It became clear that the mother had already taken steps to commence to move to M, by resigning from he job, and arranging to start in a new job in M on 1st October. She was currently staying with her sister whilst she waited to move to M. It was her view that the child did not have a close relationship with her father. The mother did not wish to disclose her address in M.
The mother’s fiance, Mr M, gave evidence by telephone from M. He initially did not wish to disclose his surname, although the father managed to find that out, nor his address, for fear of the father and his former colleagues in the B. He made his antagonism to the father very clear in his evidence, saying:
“I have strong views about B being exposed to the B. I have met Mr G once. He is not well-liked or well-respected by every member of K’s (the mother’s) family. They repeatedly told me to watch my back.”[ii]
The Family Report
A family report pursuant to the provisions of s.62G of the Family Law Act was prepared by a Court Counsellor, V S. The report was based on interviews with the child, with the parties and their respective affianced partners, and with the paternal grandparents. The counsellor observed the child with both parents and their respective partners, and also with Ms P’ two children.
The counsellor noted that the child seemed “off-hand” with her father when they were together, and became distressed and teary after a short while, asking for her mother. The child eventually agreed to return to the room when she was accompanied by Ms P and her two children. The counsellor noted a positive relationship between the child and Ms P and, later, with her paternal grandmother.
The counsellor’s observations and assessment were quite significant:
This assessment indicated that B has a strong attachment to her mother and needs to be with her on a day to day basis. She also seemed positively attached to I and to regard him as part of her immediate family. Her attachment to her father seems less strong and secure. Indeed, B’s happiness when with her father seems dependent mainly upon the presence of Ms P and to a lesser extent, the presence of Mrs Gardiner Senior, K and C. B also exhibited a positive attachment to Ms P as she looked to her for comfort and security when feeling distressed.”[iii]
The counsellor’s recommendations did not favour the mother’s proposal to relocate to M in early October. She took the view that, as the child had experienced difficulty in adjusting to the contact regime that has been in force since the orders of 17th June, that a move interstate at this stage would be likely to result in emotional turmoil for the child. The counsellor also took the view that the child’s age and developmental stage were such that the previous two months of regular contact had not been sufficient to allow her to develop a relationship with her father “to the point where she is entirely comfortable in his presence alone.”[iv]
It was the counsellor’s recommendation that it would be preferable for the child to remain in S with her mother, to give her more time to adjust to regular contact with her father. This would, hopefully, reach a point where, eventually, the child “may be able to cope with a change to the contact regime which involves a week-long stay.” [v]
The counsellor was cross-examined in some detail by Mr Clarke, counsel for the Child’s Representative. She expressed the view that the child’s attachment with the father seems less strong and secure because of the fact that she had seen her father less. The counsellor said she believed that the child would develop a comfortable relationship with the father if she were to stay in S, and that if the child were to be prepared to go to M she would need a little longer. If she were held back until 2003, with regular contact in the meantime, it would be helpful for the child.
The counsellor suggested that contact for 2 to 3 days would be suitable for the child over the imminent school holidays, then 4 to 5 days early in the next school holidays, followed by a week just before she went to M.
If the departure were delayed for a full year, there would be a possibility that the child could be affected at her mother’s disappointment at not being able to go to M and get married. This could well have a negative impact on the child and impinge on her relationship with her father. The counsellor felt that it was harder to predict what would happen over a period of a year. The counsellor held to her belief that the mother was “child-focussed”.
In cross-examination by Mr Sansom of counsel, for the father, the counsellor noted the child’s distress after returning from contact, but commented that she was doing well at school. Most children are often unsettled after they return from contact and take some time to settle back into the primary residence parent’s household. She felt that the father’s relationship with the child would become stronger over time given regular contact.
Principles to be applied
The principles which apply to matters of this nature are well-settled, and recent decisions have not altered the attitude that the Court should take in any significant way. Section 60B of the Family Law Act sets out the overall objects in relation to parenting orders. The object of Part VII of the Act is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Sub-section 60B(2) sets out the principles underlying the object of part VII, which are, except when contrary to the child’s best interests:
“(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married, or have never lived together; and
(b)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children.”
In this matter, as in any matter where the Court is required to make parenting orders, the Court “must regard the best interests of the child as the paramount consideration” (s.65E). Section 68F sets out the matters which the Court must consider in order to decide what the child’s best interests are.
The High Court of Australia has considered the relocation question in AMS v AIF; AIF v AMS (1999) 24 Fam LR 756; FLC 92-852. It is an error for a court to require the party who wishes to relocate with the child to demonstrate “compelling reasons” to justify the proposed relocation. The welfare of the child is the paramount, but not the only, consideration. At the same time, it is equally an error for a court to require the other party to provide compelling reasons, or at least a preponderance of reasons, for not permitting the party who wishes to relocate to do so (SMG v RAM (2000) FLC 93-020).
The Full Court of the Family Court has more recently considered the issue in A v A: Relocation Approach [2000] FamCA 751; (2000)
26 Fam LR 382; FLC 93-035, where the court considered the earlier decisions of Paskandy v Paskandy (1999) 25 Fam LR 607; FLC 92-878 and Martin v Matruglio (1999) 25 Fam LR 510; FLC 92-876. The principles to be applied are, in summary:
a)the best interests of the child are the paramount, but not the only consideration;
b)a court cannot require the parent who wishes to relocate with the child to demonstrate “compelling reasons” for the relocation;
c)the court has to evaluate each of the proposals advanced by the parties;
d)relocation cannot be separated from the issue of residence and the best interests of the child;
e)the evaluation of the competing proposals must weigh the advantages and disadvantages of each proposal for the best interests of the child; and
f)the court must consider the relevant s.68F(2) matters in respect of each proposal.
It is no longer the case that the court should consider whether the reasons to relocate are genuine, whether they are optional or whether they are seen as important or essential for the orderly life of the parent, as was previously held in B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC 92-755 (at paragraph 9.63). It is still a consideration, however, that in evaluating the competing proposals, the may consider evidence that the proposed relocation would be of benefit to the child as much as to the parent, whilst the inability of a party to move may impose significant pressures upon that parent:
“A very important aspect of a child’s best interests is to live in a happy family environment…Ordinary common experience indicates that long-term unhappiness by a residence parent is likely to impinge in a negative way upon the happiness and therefore the best interests of children who are part of that household” (at page 84,222).
The High Court of Australia again considered the question of relocation in U v U [2002] HCA 36; (2002) 29 Fam LR 74, where a mother wished to leave Australia with the child to return to her country of origin. The Court is obliged to give careful consideration to the proposed arrangements of the parties, but is not bound by those proposals. The court has to look at the matters set out in s.68F. The objective is always to achieve the child’s best interests.
The competing proposals in the light of Section 68F(2)
I am required to give consideration to the relevant s.68F(2) factors as they apply to the parties’ proposals. It is a constant factor that the mother is, and will be, the unchallenged residence parent. The father does not suggest that the child should reside with him.
The father’s position is that the mother should not relocate to M with the child, but should remain living in the S metropolitan area. This, and only this, the father argues, will ensure that he does not lose his relationship with his daughter and that contact will continue on a regular basis. The father’s quadriplegia makes it very difficult for him to travel. Whilst the mother wishes to remarry, she has had two other relationships with men which have ended badly. If she does wish to marry Mr M, he should relocate back to S.
The mother’s position is that she wishes to marry Mr M, and live in M with him. He has employment there and the availability of a house. He has extended family in M. The child has a close relationship with her, but a distant relationship with the father. She would facilitate contact by travelling to S with the child on a regular basis. The father could also exercise contact whenever he chose to visit M.
Section 68F(2)(a) – any wishes expressed by the child. The child was born on 3rd March 1997, so she is only 5 years and 6 months old. Little weight should be given to her wishes.
Section 68F(2)(b) – the relationship of the child with each parent. The mother has a close and warm relationship with the child. The father’s relationship is neither close nor strong, and the child appears to rely on her good relationship with the father’s fiancee or her paternal grandmother.
Section 68F(2)(c) – the likely effect of any change in the child’s circumstances. There is no question about separating the child from her mother, but the move to M would mean that the child would see her father less frequently. The father fears that he will lose his relationship with his daughter if she moves to M. If the child remains living in S, she would see less of her mother’s fiance, Mr M, at least in the short run, until he could move back to S. The child appears to have a good relationship with him, although her primary focus is her mother.
If the mother were permitted to relocate with the child to M, she would be reunited with Mr M, who has already gone. They would be able to live together as a family. If the mother were not permitted to do this, her disappointment may affect the child’s happiness.
Section 68F(2)(d) – the practical difficulty and expense of having contact. The father’s proposal would effectively mean that the present contact arrangements would continue. On the other hand, the mother’s proposal to move the child to M would mean that contact would require regular interstate travel, which would involve time and expense.
Section 68F(2)(e) – the capacity of each parent to provide for the needs of the child. The mother appears to be a loving, child-focussed person, who can provide for the child’s needs. However, her actions in proceeding with her plans to move to M in some haste have seen her criticised by Mr Clarke for failing to consider the emotional effect of this matter on the child. The father has physical limitations on his capacity, but he exhibits a willingness to spend time with his daughter.
Section 68f(2)(f) – the child’s maturity, sex and background. The child is a little girl aged 5 years and 6 months.
Section 68F(2)(g), et al – the need to protect the child from physical or psychological harm, family violence etc. The mother’s dislike of the B m c c and the violence she associates with it is a relevant factor. The father says that he is no longer involved, but that he maintains some old friendships.
Conclusions
As I said earlier, the mother is the unchallenged residence parent. There is no proposal for the child to reside with the father on a full-time basis. The competing proposals involve the mother relocating to M with the child, or remaining in S.
The Court is not bound to accept either proposal. There are disadvantages in each. The father’s proposal would maintain the contact in a similar way to the present arrangements, but the relationship between father and child needs to build up. The child is not able to spend any block period of contact with the father; she does not feel secure and settled with him. Paradoxically, the argument against the mother’s relocation with the child to M stems not from the fact that the child has a strong relationship with the father, but because she does not have a strong relationship with him. Whilst the expectation is that the relationship will grow with regular contact, the move to M will inhibit the relationship.
Against this, the mother wishes to move to M to live with and marry a man with whom she has a relationship. The evidence is that he has a good relationship with the child, and the plan is that the mother, Mr M and the child will live in a family group. It appears that this would be a desirable course. However, the mother seems to have rushed into this idea without considering the effects on the child, especially on the child’s relationship with the father. A further period of time in S would allow the father/daughter relationship time to grow and reduce the risk that block contact would not be a happy experience, notwithstanding the child’s confidence in her grandmother and her father’s fiancee.
Mr Clarke, for the Child Representative, has expressed concerns about the father’s involvement with the B with its attendant risk of exposure to violence. As the father has had to retire, so to speak, because of his disability, I am not persuaded that the risk is as great as has been submitted. I am certainly of the view that, on the whole, it would be a desirable thing for the child to attend the father’s wedding in the new year, even though some of the guests may be members of that organisation.
I am satisfied, after considering the competing proposals and weighing up their advantages and disadvantages for the child, that the mother should, in the long run, be permitted to relocate to M with the child. The mother’s proposed time scale, with an intended commencement date on 1st October 2002, was precipitate, and hardly in the child’s best interests, even if this were what the mother would fervently wish. I would see that a stay in S until the New Year would allow some time for the father’s relationship with the daughter to grow. If the mother and child were to move to M in late January, the child would be able to commence at a new school at the beginning of the school year, so she would start on more or less equal terms with the other students.
It is for these reasons that I consider that the mother should be permitted to relocate with the child to M on or after
20th January 2003, and that there should be a graduated program of contact in the meantime.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 13 October 2003
[i] Transcript 18/9/2002, page 29.
[ii] Oral evidence of I M, 26 September 2002.
[iii] Family Report, page 8.
[iv] Ibid, page 9.
[v] Ibid, page 10.
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