GALLIGAN & SEEVERS
[2020] FCCA 2914
•5 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GALLIGAN & SEEVERS | [2020] FCCA 2914 |
| Catchwords: FAMILY LAW – Parenting – relocation. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA(1) |
| Cases cited: Paskandy & Paskandy (1999) FLC 92-878 MRR & GRR (2010) 240 CLR 461 Champness & Hanson [2009] FamCAFC 96 McCall & Clark (2009) FLC 93-405 |
| Applicant: | MR GALLIGAN |
| Respondent: | MS SEEVERS |
| File Number: | LNC 29 of 2020 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 7 & 8 October 2020 |
| Date of Last Submission: | 8 October 2020 |
| Delivered at: | Hobart |
| Delivered on: | 5 November 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Hoskins |
| Solicitors for the Applicant: | Walsh Day James Mihal Pty |
| Counsel for the Respondent: | Ms K Mooney |
| Solicitors for the Respondent: | McVeity Dean |
ORDERS
That the parents have equal shared parental responsibility for the child X born in 2013 (“X”).
That X live with the mother.
That each of the parents be and are hereby restrained from relocating X’s principal place of residence from the Region B of Tasmania without Court order or express written consent of the other parent.
That X spend time with the father as follows:
(a)Fortnightly between Friday, at the conclusion of school or 4.00p.m. if not a school day and Monday at the commencement of school or 9.00 a.m. if not a school day;
(b)For one half of each Tasmanian gazetted school holidays as agreed between the parties but failing agreement then for the first half of term holidays being from the conclusion of school or 4.00p.m. on the first Friday until 12.00 noon on the second Saturday and on a week-about basis during summer holidays;
(c)On special days and such other times or variations of the above as agreed between the parties from time to time; and
(d)That weekend time pursuant to these Orders be suspended during all school holidays.
That pursuant to S65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure “A” and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Galligan & Seevers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BURNIE |
LNC 29 of 2020
| MR GALLIGAN |
Applicant
And
| MS SEEVERS |
Respondent
REASONS FOR JUDGMENT
Applications
The father is the applicant in an application filed 23 January 2020 he now seeks orders pursuant to a later amended Initiating application in respect of the parties’ child, X, born in 2013 (aged seven years) that X live in an equal shared time arrangement between the parents on a week-about basis.
The mother is the respondent and in her Response filed 3 March 2020 she raised financial issues and seeks an order inter alia that she be permitted to relocate with X to Town C which is a town on the Region D in Victoria and approximately 30 km from City E. She also sought an order for sole parental responsibility to her for X.
The parties, to their great credit, were able to settle financial matters prior to the taking of evidence.
At the commencement of the trial, the wife was still seeking an order for sole parental responsibility in her for X. During the course of the evidence she instructed her Counsel that her application be amended to one for equal shared parental responsibility.
The issue for the Court, therefore, is whether X's best interests and reasonable practicability are served on the mother’s proposal of she relocating with X to Victoria and the father's time being less frequent and necessarily focused on school holidays with perhaps one visit to Tasmania each school term or, alternatively, the father's proposal that X's best interests be for him to live in a week-about arrangement between the parents.
Background
The mother is 41years of age. The father is 39.
There are no extant orders in respect of X but an historical informal arrangement where X has lived with the mother and spent time with the father each second weekend from Friday afternoon until Monday morning and on each Wednesday overnight.
Both parties currently live on the Region B of Tasmania and are employed as allied health workers.
There is no evidence that the applicant father has re-partnered. The mother has commenced a relationship with a Mr F. He did not provide an affidavit. The mother deposes that Mr F would consider moving to Town C if the Court permits X to relocate with the mother.
Mr Galligan lives in the former matrimonial home at Town G. He shares that home with his adult son, Mr H.
The mother has children from a previous relationship being Mr J (aged 21), K (aged 16), L (aged 14) and M (aged 13 years).
The parties commenced cohabitation in 2012 and were married in 2013. They separated on 10 June 2019.
The younger three of the mother's children live in rented accommodation at Town N with the mother and X.
Between 1995-2001 the mother lived with her aunt Ms O in Town P, Tasmania. The mother's aunt Ms O now lives in Town C and the mother maintains that they continue a close and supportive relationship.
The Evidence – Credit
Both parents provided affidavits, gave evidence and were cross-examined. I had the advantage of seeing and hearing the parties cross-examined. I consider that both were witnesses of the truth. They were each able to be appropriately objective and complimentary of the other. Of some significance was that I was able to view and hear the personality of each of the parties. The mother was more assertive and of vibrant and outgoing personality. To the contrary, the father was quiet and introspective with a staid and sedate manner. It is unsurprising, therefore, that each of the parties understood and conceded a difference in their personality and parenting style. The father admitted that he was more conservative in respect of his expectations for the children and their discipline. The mother was perhaps more adventurous and laissez-faire in her parenting. I stop to say that this is not a comment on the quality of the parenting styles and models rather simply that there is substantial discrepancy between these two parents.
The maternal grandfather, Mr Q, provided an affidavit affirmed 21 September 2020. He gave evidence and was briefly cross-examined. He presented as supportive of his daughter and grandchildren. He indicated that he and his wife may themselves consider moving to the City E area should the Court accede to Ms Seevers' application.
Similarly, the paternal grandmother, Ms R, gave evidence and was cross-examined. Her affidavit was affirmed 21 September 2020. She also presented as supportive of her son and her grandchildren and became somewhat upset when giving evidence as to the apparent demise, since separation of the parties, of her relationship with Ms Seevers’ older children who had known her as their grandmother.
The family consultant, Ms S, gave evidence by telephone and was briefly cross-examined. Her Child Dispute Conference Memorandum of 31 March 2020 was read into evidence. Ms S had interviewed the parents on 26 March 2020. She noted that Ms Seevers alleged some family violence during the relationship including verbal, sexual, coercive and social isolation forms of violence. The father alleged against the mother verbal, physical, financial and coercive abuse. This issue did not occupy the focus of either of the parents during the hearing of this matter and I do not understand the mother to be relying on any issues of family violence as grounding her application for or desire to relocate with X to Victoria. However, Ms Seevers in her evidence maintained a concern as to the father's harsher forms of discipline than she uses in her household.
Father's Case
The father argues that equal time for X between the parents and hence X not being permitted to relocate to Victoria will assist in X developing a quality relationship with each of his parents. The implication of the father's argument is that X's relationship with his father is not yet fully developed and that at such a young age the relationship, as it currently exists, would be further jeopardised by the relocation.
The father says that the parties live in relative close proximity on the Region B of Tasmania and an equal time arrangement would give each parent the ability to participate fully in X's schooling and extra-curricular activities. The father says that each of the parents acknowledge that they have different parenting styles and that X would benefit by the positives of each parenting style if able to live in an equal time arrangement between his parents and then establish a routine consistent with the divergent parenting styles.
The father's evidence is that following separation his relationship with X became dependent upon the mother's other priorities for the child involving extra-curricular activities with the implication that the mother might not have the insight to prioritise that relationship should she be permitted to relocate with X from Tasmania.
Mother’s Case
The mother says that she is and has been X's primary parent. She says that she has a long held desire to live in the Town C area where she has the support of her aunt Ms O with whom she is very close and with whom she has previously lived for approximately nine years in Town P, Tasmania. The mother says that the wish to move to Town C is one shared by other members of her family including her children and her parents who would also contemplate the move.
The mother also raises the issue of the parents’ divergent parenting styles but suggests that the father's authoritarian style is not conducive to an equal time arrangement and that, in fact, X would benefit by more exposure and routine to the mother’s more flexible and less harsh parenting style.
Further, the mother says that an equal time arrangement for X would be disruptive to her household where he has a close relationship with his siblings as a member of that household.
The mother says that the relationship between X and the father is an established and strong one and would endure a move for X to Victoria which would necessitate less frequency of direct contact time between father and son. She says that she would contribute to the costs of travel and that X is of an age where the use of media would be a sufficient and adequate, if not perfect, substitute for direct time.
The mother also suggests that the father himself might contemplate a move to City E where his ties to Tasmania are not binding.
Relevant Law
The orders that I am asked to make are parenting orders and hence I am to have X's best interests as my paramount consideration pursuant to s.60CA of the Family Law Act 1975 ('the Act'). In determining those best interests I am to reference the probative evidence and the parties’ proposals to the numerous considerations set out in s.60CC(2) and (3) of the Act against a background of the objects and principles of the legislation in s.60 B which provides as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
S.61DA of the Act offers a presumption that it be in a child's best interests for his/her parents to exercise equal shared parental responsibility for the child. Parental responsibility is often defined as the long-term duties, powers and responsibilities which parents hold in respect of their children by reason of law and manifest in decisions such as education, religion, medical procedures and the like. The presumption at s.61DA is not applicable if the Court is satisfied that there has been family violence or abuse of a child. Alternatively, the presumption of equal shared parental responsibility may be rebutted by evidence satisfying the Court that such an order would not be in the child's best interests. In the matter now before me, and despite the mother's initial application, each of the parties asks for an order for equal shared parental responsibility in respect of X. This is the case despite the mother, in particular, raising issues consistent with the broad definition of family violence and in the Family Law Act. However, as mentioned above, these issues were not emphasised or the focus in the evidence before me.
As raised by Counsel for the father in his submissions, should the presumption of equal shared parental responsibility apply and not be rebutted or such an order be made, in any event, by the Court, then the legislation provides a statutory and intellectual course of consideration in respect of the child's best interests and living and parenting arrangements. Firstly, pursuant to s.65DAA(1) the Court is to consider whether the child living in an equal shared time regime between the parents is both in the child's best interests and reasonably practicable. This, of course, is the primary position put by the father in this matter. If the Court is not satisfied that an equal time arrangement for the child is both in the child's best interests and reasonably practicable then the Court must consider whether the child living in a regime of 'substantial and significant time' between the parents is both in the child's best interests and reasonably practicable. The term 'substantial and significant time' is defined in the Act as including time for the child with parents that involves both weekday and weekend time and also permits the child and the parent to participate in mutual events and occasions of special significance to them.
By the very nature of her application, the orders that the mother seeks do not fit with the definition of either 'equal time' or 'substantial and significant time'. The mother seeks orders whereby X's time with the father would be limited to periods of school holiday and the occasional weekend.
It is important to understand in respect of the mother's application that the Act itself is silent as to the notion of 'relocation'. It follows that the relocation of a child is expressly neither prohibited by law nor is there a presumption against it. That is, a proposal by a parent to relocate a child is simply one of the factors to be considered amongst the numerous others in arriving at orders which, on balance, and after consideration of the mandatory factors in s.60CC(2) and (3), are in the best interests of the child. Further, it is important to emphasise that the Courts’ consideration is not to be conducted by a dissection of the matter into discrete issues of, firstly, with whom the child shall live and then secondly or separately an issue as to whether the relocation of the child should be 'permitted'. That is, the primary issue for this Court is a consideration of the mother’s holistic proposal that X's best interests are served by living with her and that he relocate with her to live in City E[1].
[1] Paskandy & Paskandy (1999) FLC 92-878
In respect of the consideration of equal time and specifically as to best interests and practicability, the High Court had cause to consider this matter in MRR & GRR[2] where their Honours noted [15]:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s65DAA(1) is not determinative of the questions arising under s60DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would parenting would only be feasible in this case if both the parents remained in (location X), (the trial judge) was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
[2] (2010) 240 CLR 461
Trial judges dealing with matters involving a potential relocation of a child have had the benefit of a number of principles extracted from decisions of superior Courts. They can be summarised as follows:
·Relocation matters are to be determined generally with reference to Part VII of the Act;
·The child's best interests remain the paramount but not the sole consideration;
·A relocation proposal is to be evaluated within the context of the necessary findings in relation to the child's best interests (s.60CC matters) and, where appropriate, s.65DAA (reasonable practicability);
·The Court must consider the parties’ proposals, including the advantages and disadvantages of the proposed relocation, and may be required to formulate proposals itself in the best interests of the child;
·Neither party bears an onus to establish that a relocation or a continuation of an existing regime will best promote the interests of the child;
·An applicant for relocation of a child need not show 'compelling reasons' in support of the relocation but must produce evidence of sufficient probity which permits the Court, on balance, to find that a parenting order involving a relocation of a child is in the best interests of that child; and
·The child's best interests must be weighed and balanced with the 'right' of the proposed relocating parent's freedom of movement but such an adult 'right' must ultimately defer to the child's best interests.
In the matter now before me the mother has candidly stated that she would not herself relocate from Tasmania if X's relocation is not to be permitted. As such, whilst the primary issue for the Court overall is X's best interests, the mother's proposal is that those best interests are served by X living with her in Town C but if not permitted to do so then a continuation of the existing regime which fits comfortably into the definition of 'substantial and significant time'. The father's proposal is that X's best interests are served by living in an equal time arrangement between his parents which necessarily involves a refusal of the mother's application to relocate.
Evidence and s.60CC factors
s.60CC(2)(a) - the benefit to the child of having a meaningful relationship with both parents
This factor is at the crux of the father's argument. He suggests that his relationship with X is not yet fully developed by reason of the mother prioritising X's time with matters other than the relationship with the father. It follows that the father argues that a relocation of X away from Tasmania will reduce the frequency of visits between child and father and hence either damage or fail to allow to flourish that relationship. There is merit on the evidence in respect of this argument. It is clear that X's primary carer and major source of support and attachment is his mother with whom he has lived since separation. X has just turned seven years of age. He is negotiating the early years of his schooling as well as the separation of his parents. Nevertheless, and whilst this is a ‘primary’ consideration under the Act it is not determinative of my ultimate findings as to X's best interests but rather is simply one factor to weigh and balance together with many others in ultimately deciding as to X's best interests[3].
[3] Champness & Hanson [2009] FamCAFC 96
The adjective ‘meaningful’ is important in a consideration of this sub-section. The Full Court in McCall & Clark[4] saw the adjective in qualitative rather than quantitative terms and was of the opinion that the enquiry for the Court is to be a 'prospective' one in respect of future arrangements for the child but also, in a practical sense, a consideration of the evidence as to its current nature of the relationship between the child and the parent. That is, the father's argument under this sub-section is not so simplistic as to simply relate to the decrease in frequency of time but rather its impact on the quality of his relationship with his child.
s.60CC(2)(b) - the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
[4] (2009) FLC 93-405
The mother's affidavit material and her report to the family consultant in March 2020 raise issues of family violence within the definition in the Family Law Act. She alleged stalking, intimidation and control.
The father is reported by the family consultant as alleging verbal abuse, physical abuse and financial abuse at the hands of the mother during the relationship and post-separation.
As mentioned above, neither party emphasised these inter-personal issues in Court or in their Counsel’s submissions. Certainly, when asked directly from the bench as to her rationale for wanting to relocate to City E, the mother gave no indication of wishing to flee the husband's behaviour.
There was some emphasis, however, placed during the evidence on the father's asserted authoritarian parenting style manifested in his discipline towards X and the mother’s other children. The father conceded that he has a different parenting style to the mother. He described his approach as being more 'conservative' rather than authoritarian. Whilst a difference in parenting styles is common and often seen as being beneficial to a child, the divergence in style and attitude of these parents is pronounced and is a relevant consideration in respect of X's living arrangements and where the father proposes that he live in an equal time arrangement between the parents.
s.60CC(3)(a) - any views expressed by the child and any factors (such as his maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views
X has just turned seven years of age. He would not ordinarily be understood to be able to formulate or rationalise any mature preferences or views as to his living and parenting arrangements. The evidence before me of both parents suggests that X has a good and loving relationship with each of his mother and his father.
s.60CC(3)(b) - the nature of the relationship of X with each of his parents and any other persons including grandparents or other relatives
In many ways X is a fortunate young man. He has loving parents and by all accounts receives love and affection from his extended family on both sides, including grandparents, and the siblings in each of his father’s and mother's homes.
The evidence is clear that the mother has assumed the role of primary carer for X. The father is generally complimentary as to the mother's parenting of his son with perhaps the exception of the mother not to necessarily prioritising X's relationship with the father post-separation.
The thrust of the evidence, however, supports the father's contention that X's relationship with him is perhaps not as fully developed and attached as is the child's relationship with the mother. The father explains this by reason of a simple lack in the frequency and consistency of direct contact between X and the father post-separation. The mother's proposal to relocate with X to Victoria would further reduce the frequency of time and the question for the Court is whether X's relationship with the father could fully develop or even endure such a change?
If the child was permitted to relocate with the mother then the nature of X's relationship with the father would be changed in other ways. Geographical limitations would almost inevitably remove the opportunity for flexibility and spontaneity in that relationship including the ability to be involved in schooling and extracurricular activities on anything other than the most basic level.
s.60CC(3)(c) - the extent to which each of X's parents has taken or failed to take the opportunity to participate and make decisions about long-term issues in respect of X; to spend time with X; and to communicate with X; and the extent to which each of X's parents has fulfilled or failed to fulfil the parents’ obligations to maintain him
The only issue here is the father's claims in his affidavit that the mother prioritised other activities for X post-separation over and above X’s time with the father. X would have been just five years old when the parties separated in July 2019. The father says in his trial affidavit at [23] and following:
At first I was able to see X for a reasonable amount of time.
We had a verbal agreement that I would seem every second weekend and every Wednesday until the following day.
X was playing a lot of sport at the time however and whenever he was playing sport I was not allowed to see him. He was attending meets mostly in Town N and sometimes in Launceston, Town T and Hobart. The two younger children were also enrolled in the sports program. The other children were playing sports (indoor sports) and that he would attend as well. Sports is played weekly on a Friday from 4.00 PM to 8.40 PM and this would sometimes interfere with my pickup of X …
…
During the relationship the mother and I attended the children's sporting events together. After separation the mother told me I wasn't allowed to go to these events. She told me that my being there was 'invading a space'.
On or about a couple of years ago, the mother became a timekeeper for the Sports Association. This meant that she was obliged to attend meetings in Hobart, Launceston, Town N as well as Town T. She took X to all these meetings and some of them were on my weekend. On these occasions I would not get to see X.
X was attending a sports meet every weekend during the season and sometimes during the week. At the end of last season I noticed he was very tired. …
…
At this stage X was only 5, turning 6 years of age last October. I could see that the constant travel was wearing him down.
I am not against him attending sport however I believe it should be balanced.
Although we had an agreement that I saw X every second weekend and every Wednesday night, I only got to see X when the mother agreed, or wasn’t otherwise attending a sports event.
The mother in her affidavit addresses these issues as follows from [15]:
Mr Galligan has incorrectly made it out to be my choice that X attends extra sporting events. Before our separation Mr Galligan was supportive of X doing all the sports he wanted. X is very athletic, plays many sports. To help the club out I volunteer as a parent to help with roster duties. Mr Galligan used to do the same before we separated, and we used to attend X's club meets as a family.
After we separated Mr Galligan stopped taking X to his sporting commitments as he was working. X is a “rising star” in that he does really well in his sports, so he was selected to represent the club in state championships I supported that. X loves his sport and has always been keen to attend his training and meets.
Most of the time Mr Galligan spent with X on each second weekend and each Wednesday but there were times in the initial months of separation when the time that he spent with Mr Galligan was sporadic because of X's commitments.
s.60CC(3)(d) - the likely effect on any changes in X circumstances, and the likely effect on X of any separation from either of his parents, or any other child, or any other person (including grandparent or other relative) with whom he has been living
The inevitable result for the seven-year-old X of a relocation to Victoria would be an impact on his relationship with his father as set out above but also in respect of his half-sibling, Mr H and his extended paternal family. The paternal grandmother gave evidence as to a frequent and positive relationship for X with her. To the contrary, she was obviously saddened in the witness box by the apparent demise of her relationship with the mother’s children despite continuing to live in close proximity. Again, however, the question for the Court is in respect of the durability and quality of the relationship between X and his father and paternal family rather than simply an equation of time.
Certainly, however, X's relationship with his parents is currently one of easy and proximate transition. That would not be so if X was to move to Victoria.
There would be other changes for X. The current proximate living arrangements of his parents allows X to attend school from each parent's home and to maintain peer group relationships from each of his parents’ homes.
s.60CC(3)(e) - the practical difficulty and expense of X spending time and communicating with his remaining parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relationships and direct contact with both parents on a regular basis
Relatively to the current situation, the mother's proposal would impose expense and logistical difficulties in X maintaining a relationship with the father. This would involve airfare travel from Melbourne to Region B Tasmania. It would be likely to involve train travel from City E to Melbourne or alternatively motor vehicle travel from City E to Tullamarine airport. As such, the parties would need to consider on a cost-benefit basis the options of weekend time for X in Tasmania. Similar logistical and financial considerations would be relevant to school holiday time but, of course, the benefits would be of longer block periods of time.
The father says that his finances are limited although he remains in full-time employment. The mother says that she would contribute to the costs of travel between Victoria and Tasmania.
Whilst the mother offers time for the father in Town C, similar financial and logistical considerations would be relevant to the father's ability to travel to Victoria where there is no indication that he has family or other accommodation available to him.
s.60CC(3)(f) - the capacity of each of the parents to provide for X's needs, including physical, emotional and intellectual needs
The father generally does not criticise the mother's parenting capacity and describes her as a 'good mother'. She says that she has had a long-term ambition to live in the Town C area with the implication that she would be happier if that ambition is fulfilled and in turn her parenting capacity for X would be enhanced and X himself more content. Nevertheless, and conversely, there is no indication supported by probative evidence that the mother's parenting capacity would be compromised if required to remain in Tasmania. To the contrary, she presented as a very capable mother and socially adjusted adult who currently has a strong family support network in Tasmania.
The father's capacity as a parent is criticised discreetly by the mother in respect of his authoritarian views as to parenting style and discipline. She does not, however, argue that her concerns, such as they are, should result in the Court imposing conditions or restraints on the father's parenting. My observations of Mr Galligan were of a caring and devoted father albeit of somewhat dour personality and consistent with his own conservative views of parenting and life in general.
A consideration for the Court, of course, is if the frequency and nature of X's relationship with the father is reduced or changed then the father might not have the opportunity to properly explore his parenting abilities and potential.
s.60CC(3)(g) - the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child's parents and any other characteristic of the child that the Court thinks relevant
X is just seven years old. He is negotiating the early years of his schooling and in the process of developing peer group relationships. The changes proposed by the mother would prove disruptive, at least in the short term for X, but he otherwise presents as a socially adjusted child who engages in a number of sporting team pursuits and arguably is therefore socially robust and adaptable. On the mother's proposal, however, he will need to deal with the travel logistics between Victoria and Tasmania as well as a change in the nature of his relationship with his father.
s.60CC(3)(h) - if the child is Aboriginal or Torres strait Islander
Not relevant.
s.60CC(3)(i) - the attitude to the child, and the responsibilities of parenthood, demonstrated by each of the child's parents
The issue and evidence in this respect is focused on the mother's insight in understanding the priority of X's relationship with his father following the parents’ separation. The father complains that the mother has prioritised X's sporting and extracurricular activities over the relationship with him. There is some evidence to give credence to the father's concerns. The relevance, of course, is then if X does relocate with the mother to City E then inevitably conflicts will arise in respect of X's own relationships and extracurricular activities in City E with commitments to travelling to Tasmania to visit his father.
s.60CC(3)(j) and (k) - any family violence involving the child or any members of the child's family and any family violence orders that are applicable
These matters have been dealt with above.
s.60CC(3)(l) - the order that would be least likely to lead to the institution of further proceedings in respect of X
Family law parenting orders are prospective in their nature in that they are understood to operate into the future. Variables and unknowns then come to the fore and any significant or material change in the circumstances of either of the parents or X may lead to further litigation. The relevance here is that the mother proposes to remove both herself and X from historical residence and relationships in Tasmania. She has not previously lived in Victoria although she has a close relationship with an aunt in Town C. The mother's proposal will present substantial changes for X in his relationship with his father and perhaps also with his mother who will become a more primary source of his support and attachment.
Findings and Consideration
Matters involving a proposed relocation of a child present as some of the more difficult coming before these Courts. Unlike in the majority of parenting applications which involve only discrete disputes as to the distribution of time between a child and the parents, an order permitting the relocation of a child, particularly interstate and with the logistics relevant to Tasmania, will inevitably leave the remaining parent aggrieved and with a sense of loss. As mentioned above, the nature of the relationship between the child and the parent will almost certainly change in its frequency and therefore in its nature. Relationships for the child with extended family members will also change. It would only be natural for the feelings of loss in the remaining parent to be accompanied by a sense of bitterness towards the parent successful in the application for relocation and then resulting in mistrust, communication difficulties, lack of flexibility and cooperation all of which are desirable traits in parents. Any relationship between the child and the remaining parent of flexibility and spontaneity will be lost as will opportunities for involvement in the child's schooling and extracurricular activities. Practical and logistical issues of travel and costs of travel will become relevant. As the child grows older it is reasonably expected that he/she will develop personal relationships and commitments in the new location which will test the durability of any Court ordered time-with for the child with the remaining parent.
On the other hand, orders obligating an unsuccessful parent to remain in a location other than their preferred one will bring similar loss and bitterness. Almost inevitably, blame will be focused on the other parent again resulting in a loss of trust, communication and cooperation. The freedom of movement of an adult within Australia is well accepted and expected.
Consequently, parenting matters involving a proposed relocation of a child will often be accompanied by a sense of ‘ win’ or ‘loss’ at the trial where Courts are left with little or no room for subtle construction in the orders that it makes.
There are a number of positives or advantages for X in the mother's proposal. Firstly, she is and has been X's primary carer. She has had a 'dream' for a long time to move to the Town C area of Victoria. All indications are that this is an ambition which fulfilled would leave her happy and content in herself and therefore as a parent. Conversely, as with most people, an ambition left unfulfilled may impact on her happiness. It is easy to conclude that X's best interests are best served by him living with a content, happy and adjusted parent.
Secondly, the mother proposes that she contribute significantly to X maintaining a relationship with his father with an open offer for the father to spend further time with X in Victoria at his discretion. In this sense she says that X is a relatively mature and socially adjusted child who has a sufficiently developed relationship with his father such that the relationship between father and son would endure and continue to flourish by reason of block periods of quality time punctuated by weekends either in Tasmania or Victoria and supplemented by the frequent and open use of various media.
The mother says that she has her aunt in Town C and with whom she has previously lived in Tasmania who would offer both the emotional and actual support for the mother. Further, the mother's own parents would be likely to make the same move from Tasmania if the mother is permitted to relocate with X.
Although not the subject of express submissions, the implication of the mother's case is that X might benefit from a greater exposure to her parenting style or, more particularly, not being exposed to the diverse parenting styles of she and the father by reason of frequent changeovers including during the school week.
To the contrary, however, there are disadvantages, both actual and potential, in the mother's proposal to relocate with X. Firstly, the father says that the relationship between he and X is not yet a fully developed one. X has just turned seven years of age during the reserving of this judgment. It is obvious that his primary carer has been his mother. There is some merit to the father's evidence that X's relationship with him post-separation has not perhaps taken the priority that it should from the mother's viewpoint.
The father agrees that there are different parenting styles and philosophies between he and the mother. The implication of his argument, however, is that X will benefit by exposure to the diversity of those styles or perhaps, more particularly, that X will benefit from the father's style where perhaps the father's influence would not be so relevant should X become more of a ‘visitor’ to the father's home rather than a frequent resident.
The father argues that the mother is again prioritising her own wishes and ambitions the over the needs of X and in particular the continuing establishment of a meaningful and successful relationship with his father.
The father says that should X relocate to Victoria then the father's financial situation might not allow the high frequency of contact offered by the mother. Importantly he also argues that his relationship with X would take on a different nature by reason of the loss of spontaneity and flexibility currently enjoyed where the father might not then be able to participate in X’s education and extracurricular activities without the significant logistical and financial impost.
The father argues that the mother has support currently available to her in Tasmania and X also has the benefit of extended family on both sides in Tasmania which would be similarly negatively impacted by a move to Victoria.
As with the majority of parenting matters involving a relocation, the consideration for the Court here is finely balanced. On the one hand, the mother has been the primary parent for X. She has generally and expects to have a freedom of movement at least within Australia. She is relatively altruistic in her proposals for X's time with the father. Nevertheless, there remain matters of concern. Firstly, there is merit to the father's concern as to the mother’s prioritising of X's other interests over and above his relationship with his father. This situation might well be compounded should the vagaries of distance and logistical hurdles be added to the equation. Secondly, X is still a young child and negotiating his early years of school. Importantly, the evidence strongly suggests that X's relationship with his father is still a developing one and probably contributed by the fact that the mother has been the primary parent, that X's relationship with his father was not prioritised in the post-separation period, and that the parents have offered very different parenting styles for X. The mother has legitimate and understandable rationale for wanting to move from Tasmania to Victoria although those reasons could in no way be termed 'compellable' and in my view, do not reach the status of 'persuasive' generally in respect of X's best interests. In summary, and considering both the positives and the negatives of the mother’s proposal, I place greater weight on the issues of the developing relationship between X and his father and the impact on that relationship, actually and potentially, of a loss of frequency in direct contact together with the loss of spontaneity and flexibility in that relationship. The mother retains support in Tasmania. She has habitually lived in Tasmania. Her primary support networks are in Tasmania. My observations of the mother in the witness box were such that she is a competent parent with an outgoing personality. She has current employment in Tasmania. In all of those circumstances I am of the view that the mother would cope easily and adequately with her ‘dream’ of moving to Victoria not being realised and hence I am not satisfied that it is in X's best interests for him to be relocated away from Tasmania.
I am left, therefore, with the question of X's ongoing parenting regime between his mother and his father. As mentioned above, the mother has historically been X's primary parent. She is quite obviously his first source of support and primary attachment. Both parties candidly concede that they have very diverse parenting styles and philosophies broadly but specifically manifested in areas of discipline. They present as different role models. X is still a young child and hence vulnerable and easily influenced. Their mutual communication and trust levels are not high. They are of different personality types. In all of those circumstances, I am not satisfied that the father's application for an equal time arrangement between the parents would be in X's best interest. I prefer that those interests are served by a continuation of the status quo. This permits X to have the benefit of a stable home base while still having a high degree of frequency of direct contact with his father. This will in turn allow the father to fully develop his parenting skills and insight and hence his relationship with X. It will allow the father to engage in X's education and extracurricular activities. I will order accordingly. I will also provide for block periods for X with the father during school holidays.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Associate:
Date: 5 November 2020
Key Legal Topics
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Family Law
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Jurisdiction
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