GARVELL & GARVELL
[2016] FCCA 1833
•22 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GARVELL & GARVELL | [2016] FCCA 1833 |
| Catchwords: HELD – Relocation not in children’s best interests – continuation of existing shared care arrangement is in children’s best interests. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: AMS v AIF (1999) 199 CLR 160 U & U (2002) 211 CLR 238 Taylor & Barker (2007) 37 Fam FLR 461 MRR v GR [2010] HCA 4 Cowley & Mendoza [2010] FamCA 597 Heath & Hemming (No 2) [2011] FamCA 749 |
| Applicant: | MS GARVELL |
| Respondent: | MR GARVELL |
| File Number: | MLC 7210 of 2015 |
| Judgment of: | Judge Bender |
| Hearing date: | 20 June 2016 |
| Date of Last Submission: | 21 June 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 22 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Wheeler |
| Solicitors for the Applicant: | Cahill & Rowe Family Law |
| Counsel for the Respondent: | Mr Allen |
| Solicitors for the Respondent: | Wightons Lawyers |
ORDERS
The parents have equal shared parental responsibility for the children of the relationship X born (omitted) 2005 (“X”) and Y born (omitted) 2009 (“Y”).
X and Y remain in the greater (omitted) area and live with each parent on a week about basis with changeover to be at the conclusion of school Friday (or 3:30pm if a non-school day).
X and Y’s time with each parent shall be suspended as follows:
(a)for a maximum of seven days over the long summer holidays at such times as agreed between the parties to enable each parent to holiday with X and Y for a maximum of 14 days;
(b)from 3:00pm Christmas Eve until 3:00pm Christmas Day 2016 with X and Y to be in the Father’s care and from 3:00pm Christmas Day until 3:00pm Boxing Day 2016 with X and Y to be in the Mother’s care and thereafter such arrangement to alternate each year;
(c)from 6:00pm on the Saturday before Mother’s Day or Father’s Day until 9:00am the following Monday with X and Y to spend time with the parent to whom such celebration relates;
(d)for a minimum of two hours on each of X and Y’s birthday where same falls on a school day and for a minimum of four hours where same falls on a non-school day or weekend with the parent not then caring for X and Y to spend such time with X and Y at times to be agreed between the parties and failing agreement such time will commence at 4:00pm on that day;
(e)if X and Y are not living with a parent on that parent’s birthday, then on that parent’s birthday for a minimum of two hours where same falls on a school day and for a minimum of four hours on a non-school day with such parent at times agreed between the parents and failing agreement such time will commence at 4.00pm on that day; and
(f)such other times as agreed between the parties in writing.
Changeover shall occur at X and Y’s schools on a school day and for all other occasions the Mother shall collect X and Y from the Father’s residence at the commencement of her time and the Father shall collect X and Y from the Mother’s residence at the commencement of his time unless otherwise agreed between the parents in writing.
The Mother be at liberty to telephone or Skype X and Y on two occasions each week whilst they are in the Father’s care.
The Father be at liberty to telephone or Skype X and Y on two occasions each week whilst they are in the Mother’s care.
The parents shall facilitate X or Y contacting the other parent upon X or Y’s reasonable request to do so.
Each parent forthwith notify the other parent of any serious illness or injury to X or Y whilst in their respective care and each parent shall notify the other of any medical professional, counsellor or other health service provider upon whom either X or Y attend and each parent shall be at liberty to attend upon such professional either with or in the presence of X and Y or either of them.
The parents shall exchange information pertaining to X and Y and their needs in writing either by email, text or fax save in the event of an emergency when such communication shall occur by telephone.
Neither parent will expose X and Y to adult issues and conflict and both parents are restrained from requiring X and Y to communicate information to the other parent.
Each parent keep the other informed at all times of their current residential address and contact telephone number.
Each parent be and is hereby restrained from:
(a)discussing with X and Y or with any other person in X and Y’s presence details of these proceedings; and
(b)denigrating each other to X or Y or speaking with X or Y or to any other person in X or Y’s presence in derogatory terms about the other parent or members of the other parent’s household.
Neither parent shall bring X or Y into contact with any person affected by illicit substances or to illicit substances and the equipment associated with their use during any period of time when they are responsible for X and Y’s care.
The Father be restrained from bringing X or Y into contact with Mr J.
Each parent:
(a)attend the Parenting Orders Program at (omitted) (“the Program”) (phone: (omitted)) for assessment and family counselling;
(b)follow the recommendations of the Program administrator; and
(c)complete all aspects of the Program required by the Program administrator.
On the day either parent first attends the Program for assessment, that parent provide to the Program administrator a copy of the Family Report prepared by Ms K dated 16 May 2016.
IT IS NOTED that publication of this judgment under the pseudonym Garvell & Garvell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 7210 of 2015
| MS GARVELL |
Applicant
And
| MR GARVELL |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter relates to the Mother’s application to relocate with the parties’ children X born (omitted) 2005 (“X”) and Y born (omitted) 2009 (“Y”) from (omitted) in Victoria to (omitted) on the (omitted) of New South Wales.
In the event the Mother is either not permitted to relocate to (omitted) or is permitted to relocate and the Father also moves to (omitted), the Mother is seeking that the current parenting plan between the parties whereby X and Y live week about with each of the parties be varied such that X and Y live with her and spend time with the Father each alternate weekend from after school Friday to 5:00pm Sunday, each Wednesday from after school to 7:00pm, for half of the school holidays and that special occasions be shared.
The Mother indicated to the Court that if X and Y are not permitted to relocate, she will remain living in the (omitted) area.
The Father opposes the Mother’s application both in relation to relocation and for any variation of X and Y’s living arrangements.
Background
The Mother was born on (omitted) 1975 and is aged 40. She is employed on a part-time basis (occupation omitted) at (employer omitted) Monday to Wednesday and as a (occupation omitted) on Thursdays. She earns approximately $610 per week. The Mother has not re-partnered.
The Mother has lived in the (omitted) region all her life save for five years in her 20’s when she lived overseas.
The Father was born on (omitted) 1976 and is aged 40 years. He is employed in his own business (business omitted). He also works part-time as a (occupation omitted). He earns between $770 and $960 per week. The Father has not re-partnered.
The parties’ relationship was somewhat ‘on and off’. They first commenced cohabitation in February 2000 and separated in August 2000. They resumed cohabitation in November 2004 and separated in August 2006. During this period X was born. The parties again reconciled in 2008, married on (omitted) 2009 and separated in July 2012. During this period Y was born.
After the parties’ 2012 separation X and Y spent time with the Father on two nights each week from September 2012. Because the Father was then working shift work, the nights X and Y spent with the Father were adjusted to accommodate his shifts.
The parties attempted a further reconciliation between August and December 2013 but did not cohabit. They did however spend considerable time together with X and Y in each other’s homes.
The parties’ attempted reconciliation broke down in December 2013 when they agreed that their relationship was over once and for all.
After the parties’ final separation in December 2013, X and Y lived with the Mother and again spent two nights each week with the Father on those days he was not working.
In November 2002 the Mother built a unit on land gifted to her by her parents next to their home in (omitted), a suburb of (omitted). When the parties reconciled in 2004 the Father moved into the Mother’s unit.
In December 2005 the Mother’s parents lent the Father $44,000 to assist him in setting up his (omitted) business. The Father repaid this loan.
In 2007 whilst the parties were separated the Wife sold her unit and purchased a block of land at Property A, (omitted). She built a home on this property which she and X moved into. When the parties reconciled in 2008 the Father moved into this property.
In late 2011/early 2012 the Father obtained employment at (employer omitted) working shift work. He worked two night shifts from 7:00pm to 7:00am followed by 24 hours off. He then worked two day shifts from 7:00am to 7:00pm followed by three days off. He would return to night shift on the fourth day.
The Mother’s brother Mr G moved with his family to Northern New South Wales in November 2012.
Between 2012 and 2014 the Mother retrained in child care.
In January 2014 shortly after the parties agreed their relationship was finally over the Mother advised the Father that she wished to relocate to (omitted) with X and Y, as her brother and his family were living there and her parents had built a home with the intention of retiring there.
The Father advised the Mother he did not agree with her moving to (omitted) with X and Y.
Between April and June 2014 the parties attended mediation. On
17 June 2014 the parties signed a parenting plan. The plan provided as follows:
·
the parties would begin to transition to equal time from
20 October 2014 noting X and Y were currently with the Father according to the time his roster allowed;
·upon the Father finishing at (employer omitted) (in August), X and Y would spend time with the Father alternate weekends from Friday to Monday and for dinner on Wednesday night in one week and Thursday night in the other;
·from 20 October 2014 the transition to equal time would occur with 12 hour increases each week until shared care was in place;
·there was provision for the sharing of special days including Christmas, birthdays, Easter, and Mother’s and Father’s Day.
In October 2014 at the Mother’s request the week about arrangement was put in place without the transition period that had been agreed to by the parties in the parenting plan.
In January 2015 the Mother again wrote to the Father expressing her wish to relocate with X and Y to (omitted). The Father again expressed his opposition to the Mother relocating with X and Y.
In March 2015 the Mother commenced a relationship with Mr B who resided in (omitted).
In April 2015 the Mother contacted the Father indicating she did not believe Y was coping with the shared care arrangements as he was sleeping in her bed and not wanting to go to the Father’s home. The Father refuted Y was not coping as he was displaying none of these behaviours when in his care.
In May 2015 whilst the Mother, X and Y were holidaying with her brother and his family in (omitted), Y was having a shower with his four year old cousin A. The Mother walked in on the children and found A with Y’s penis in her mouth.
The Mother’s sister-in-law was most upset by this incident and asked the Mother, X and Y to leave their home. The Mother, X and Y went to Mr B’s home.
Upon being advised of this incident the Father contacted the Centre Against Sexual Assault (“CASA”) for counselling and for assistance for the parents and Y in putting in place strategies to assist Y. Both parties attended counselling with CASA and co-operated in putting in place the strategies suggested by them.
After the May incident Y’s behaviour at school deteriorated. Y was lashing out and swearing at other children and disrupting his class. The parties engaged with Y’s school and Y was linked to counselling with the school counsellors.
On 5 November 2015 the Wife filed an Initiating Application seeking orders she be permitted to relocate with X and Y to the (omitted) in New South Wales and that on an interim basis X and Y live with her and spend alternate weekends and Wednesday overnight with the Father. Her application was returnable on 3 February 2016.
In her Initiating Application the Mother also sought orders the Father be restrained from bringing X and Y into contact with his friend Mr J. It is the Mother’s evidence Mr J is a known drug dealer and he and his associates are not appropriate persons for X and Y to associate with.
On 3 February 2016 the matter was listed for final hearing and an interim order made restraining the Father from bringing X and Y into contact with Mr J. The Father denied the necessity for that order. The parties otherwise agreed that the existing shared care living arrangements for X and Y would continue.
Because she was struggling to service the mortgage on her property at Property A, the Mother has sold that property and it is to settle on
4 August 2016. The Mother will receive approximately $225,000 less sale costs from the sale of her home.
The Evidence
The Mother
The Mother relies on her affidavits sworn 4 November 2015 and
30 May 2016. The Mother also gave vive voce evidence at the final hearing.
The Mother also relies on the affidavit of her father Mr D sworn 16 November 2015, the affidavit of her brother Mr G sworn 20 May 2016 and the affidavit of her mother Ms C sworn 30 May 2016. All of these witnesses gave vive voce evidence at the final hearing.
The Mother
The Mother is seeking orders for the parties to have equal shared parental responsibility for X and Y.
The Mother is seeking orders that X and Y live with her and that she be permitted to relocate to the (omitted) in Northern New South Wales.
The Mother proposes that if permitted to relocate, X and Y spend time and communicate with the Father as follows:
·in Victoria as follows:
§ from 2 September 2016 to 4 September 2016 (Father’s Day);
§ from 29 September 2016 to 9 October 2016 (New South Wales school holidays);
§ from 11 November 2016 to 13 November 2016;
§ from 21 December 2016 to 20 January 2017 (school holidays and Christmas);
§ from (omitted) 2017 to (omitted) 2017 (the Father’s birthday);
§ from 15 April 2017 to 25 April 2017 (Easter and New South Wales school holidays);
§ from 9 June 2017 to 12 June 2017 (Queen’s Birthday);
·from June 2017 all school holidays be divided equally with the Mother having the first half in all odd-numbered years and the Husband having the first half in all even-numbered years (including long summer holidays);
·by Skype and/or telephone with the Father to initiate the call each Sunday and Thursday at 7:00pm;
·in New South Wales at times to be agreed between the parties upon the Father giving the Mother four weeks’ written notice of his intention to travel to New South Wales;
·
the Wife be responsible for all travel expenses up until
31 December 2016 and from January 2017 onwards the parties share the travel expenses of the children; and
·at all other times as agreed in writing between the parties.
It is the Mother’s further proposal that in the event the Father relocates to the (omitted) Shire in New South Wales or she is not permitted to relocate with X and Y that they live with her and spend time with the Father as follows:
·each alternate weekend from after school Friday until 5:00pm Sunday;
·every Wednesday from after school until 7:00pm;
·for one half of each school holiday period;
·for half of birthdays and other special occasions; and
·as otherwise agreed in writing between the parties.
It is the Mother’s evidence that she has been wishing to relocate to Northern New South Wales for a considerable period of time and particularly since her brother and his family relocated there and her parents indicated their plans to move there upon their retirement.
The Mother first raised the prospect of relocation with the Father in early 2014 and again in early 2015 and on each occasion the Father’s opposition to such relocation was made very clear to the Mother.
It is the Mother’s evidence that she believes a relocation to Northern New South Wales will be in X and Y’s best interests as it will enable her to continue to parent X and Y to the best of her ability as she will be supported both emotionally and practically by her parents and will be in a position to better establish herself financially.
It is the Mother’s evidence that upon relocating she, X and Y will live with her parents rent-free which will enable her to better financially support herself and will allow her to work towards financial independence.
It is the Mother’s evidence that her brother, who is a (occupation omitted), is involved in property development in Northern New South Wales and she will be able to invest the funds received by her from the sale of her property at Property A in one of her brother’s property developments where there is real potential for her to make considerable financial gain.
Whilst giving her viva voce evidence, the Mother produced to the Court correspondence from the director of a company called (omitted) which was a letter of offer for the Mother to be employed in a part-time position as (occupation omitted) for between 12 and 18 hours a week at the rate of $20 per hour. The Mother also deposed that she has always run a (omitted) business and that she would be able to pursue this activity in Northern New South Wales by making and selling (omitted) throughout the year at the various weekend markets in that area.
Whilst at the commencement of these proceedings the Mother deposed in her affidavits to a burgeoning relationship with a gentleman in Northern New South Wales by the name of Mr B, at the final hearing the Mother indicated that the relationship was not ongoing as Mr B did not want to become embroiled in these proceedings.
It is the Mother’s evidence that she, both before and after separation, has always relied heavily upon the support of her parents in her care of X and Y.
It is the Mother’s evidence that it is her parents and particularly her father, who is retired, who care for X and Y when her work and study commitments made her unavailable to care for X and Y herself.
It is the Mother’s evidence that until the shared care arrangements were put in place in October 2014, the Father was much more interested in pursuing his own interests such as (hobbies omitted) and hanging out with his friends than his commitment to his children. She deposes in her affidavit material that in their early lives her father and brother Mr G, were X and Y’s primary male role models as the Father spent limited time with them as when he was not working he preferred to be socialising with his friends and drinking.[1]
[1] Paragraph (46) of the Mother’s affidavit sworn 4 November 2015; paragraph (80) of the Mother’s affidavit sworn 30 May 2016.
In cross-examination, the Mother however conceded that from September 2012 the Father spent two nights each week with X and Y, although those nights were not the same each week as they had to be adjusted to accommodate the Father’s shift work with (employer omitted).
Whilst highly critical of the Father in her affidavit material for not involving himself with X and Y’s medical care or being actively involved in their education, in cross-examination the Mother conceded that since the shared care arrangement was put in place in October 2014, the Father has taken X and Y to all medical appointments when they are in his care and that he has been actively involved in X and Y’s school, including being the assistant coach of X’s (hobby omitted) team.
The Mother also conceded that the Father was unable to attend a recent important medical appointment for Y as she forgot to advise him of that appointment until the very last minute.
The Mother agreed that the maternal family do not hold the Father in very high regard and consider him to be somewhat of a disappointment.
In the affidavit material filed by the Father, he raises concerns about X and Y being exposed to arguments between the maternal grandparents and to them being exposed to excessive swearing by the maternal grandfather. The Father in particular makes reference to there being a swear box in the maternal grandparents’ home and that prior to Christmas 2015, X and Y were able to share over $150 between them from the contents of the swear box.
The Mother agreed that the Father had raised with her his concerns about X and Y being exposed to inappropriate language in the maternal grandparents’ home.
The Mother also gave evidence that there have been occasions when her parents have argued in front of X and Y and that she has raised with this with her parents on a couple of occasions. It is the Mother’s evidence that she has explained to X and Y that all families argue at times but that they still love each other.
In her trial affidavit sworn 30 May 2016, the Mother raises concerns about the Father using drugs, drinking to excess and continuing to allow X and Y to have contact with Mr J when they are in his care despite the order restraining him from doing so which was made 3 February 2016.
When cross-examined, the Mother conceded that she had no evidence that the Father used illicit substances, drank to excess when X and Y are in his care or that he had associated with Mr J when X and Y are with him or at all since the making of the order restraining him from doing so.
It is the Mother’s evidence that she bases her belief that the Father is drinking to excess on a comment X had made about his Father having a can of XXXX beer.
In relation to drug use, it is the Mother’s evidence that both she and the Father used marijuana and on a rare occasion ecstasy whilst they were together before the birth of their children. It is her evidence that since that time she had never seen the Father use drugs.
In relation to her concerns regarding Mr J, it is the Mother’s evidence that she just does not believe the Father when he says he has not seen Mr J.
The Mother agrees that when X and Y are in their Father’s care, they are well looked after by him. They are always on time for school, well-clothed, well-fed and they both report enjoying their time with the Father.
It is the Mother’s evidence that she and the Father are unable to communicate and that she feels the Father does not respect her or her opinions in relation to what is in the best interests of X and Y. It is her evidence this has particularly worsened since the commencement of these proceedings.
The Mother agrees however that when the incident in May 2015 occurred when Y and A were found behaving inappropriately in the shower, she and the Father were united in their efforts to properly deal with this matter and that they jointly engaged with CASA and co-operatively followed the recommendations to assist Y through this period.
After the parties agreed to this, the Mother, X and Y returned from New South Wales after this incident, she and the Father agreed that it would be good for X and Y to immediately spend some time with the Father.
When the maternal grandfather contacted the Father and told him this was not going to take place in the belief that the behaviours exhibited by Y had to be as a result of something that had happened when Y was in the Father’s care. The Mother to her credit intervened and told her father not to interfere and made sure that X and Y were able to spend time with their father as had been arranged between the parties.
It is the Mother’s evidence that X and Y love the Father and she agrees that if permitted to relocate, X in particular will initially find this very difficult and will miss his Father.
It is the Mother’s evidence however that she believes that her proposal for the time that X and Y are to spend with the Father and communicate with him if relocation is allowed will enable them to maintain the loving relationship that they currently have with him.
It is the Mother’s evidence that in the event she is not allowed to relocate she will remain in the (omitted) area with X and Y. The Mother was asked how she thought she would cope if required to remain in Victoria. Whilst she initially indicated that she could not remain in the (omitted) area and raised the possibility of moving to (omitted) where she has a close friend, she ultimately indicated that she would remain in the (omitted) area.
When asked about current friends and supports, the Mother somewhat surprisingly indicated that she had no real friendships with the parents of X and Y’s friends and that she did not have the kind of contacts that would enable her to call on other parents to assist her in their care if she was running late for work because “she was a working mother”.
This was somewhat surprising given her evidence that on at least two occasions when X and Y are in her care she is able to drop them off and pick them up from school and that she does not work at all on Fridays.
The Mother was asked whether she would accept the Father’s offer to assist in X and Y’s care whilst they were with her, for example by picking them up after school if she were running late. It is the Mother’s evidence that she does not believe that she and the Father have that kind of relationship and she was adamant she would not accept his offer of assistance even if she had no other option.
Mr D
Mr D is the maternal grandfather. Mr D swore an affidavit in support of the Mother’s application on 16 November 2015 and also gave viva voce evidence at the final hearing.
It is the maternal grandfather’s evidence that he and his wife have long wanted to retire and relocate to (omitted) in the (omitted) and that they have built a home in this area which they intend to retire to.
It is the maternal grandfather’s evidence that he and his wife currently have their home in (omitted) on the market for sale with the intention of putting their retirement plans into action.
It is the maternal grandfather’s evidence that they have been very involved in the lives of their grandsons since their birth and that they have provided considerable financial, emotional and practical support to the Mother both during and after the breakdown of her relationship with the Father.
It is the maternal grandfather’s evidence that he has been the primary male role model for X and Y.[2]
[2] Paragraph (8) of the affidavit of Mr D sworn 16 November 2015.
When giving his viva voce evidence the maternal grandfather explained how in response to a comment made by X that Mr J was now a reformed character, he had sat X down and explained to him that Mr J was a ‘bad person’ and then discussed in some detail with him the reasons for this was including Mr J he is ‘a crook’ and someone who ‘broke the law’.
The maternal grandfather was asked whether he had raised with either of the parties that he was going to have this discussion with X. He indicated that he had not done so, firstly because he didn’t see why he should need to do that and secondly because X had broached the subject and he had to put his mind right on this and because “I thought it was ok for me to do this because I have been the male role model for X from the year dot”.
It was put to the maternal grandfather in cross-examination that he does not have a good view of the Father. He responded: “I don’t think he is what he could be”.
The maternal grandfather was then asked: “you don’t think he is a good role model do you?” to which the maternal grandfather responded “no I don’t”.
The maternal grandfather was asked whether he saw himself as having a parenting role with X and Y. The maternal grandfather responded by saying that he has a “mentoring role” with them. When questioned as to whether he thought the Father was “up to having a mentoring role” with X and Y, the maternal grandfather indicated that he did not think he was.
The maternal grandfather was questioned in relation to the Father’s concerns about his swearing in front of X and Y and the swear box that had been established in the maternal grandparent’s home. It is the maternal grandfather’s evidence that he tries not to swear in front of X and Y and if he does so he uses innocuous words like ‘shoot’ or ‘far out’ and that the swear jar was something of a joke and was really a means to raise pocket money for X and Y in the lead up to Christmas.
In contrast to the Mother’s evidence, the maternal grandfather denied that he and his wife have ever argued in front of X and Y and that if they do argue it is done behind closed doors away from the rest of the family.
The maternal grandfather was asked whether he and the maternal grandmother would still move to (omitted) if the Mother was not permitted to move there with X and Y. The maternal grandfather indicated that there is always a ‘plan B’ and if there was a decision that did not allow the Mother to relocate with X and Y to (omitted) it would change their plans considerably.
Ms C
Ms C is the maternal grandmother. She swore an affidavit in support of the Mother on 30 May 2016 and gave viva voce evidence at the final hearing.
The maternal grandmother confirmed that she and the maternal grandfather had given considerable financial, emotional and practical support to the Mother, X and Y both during the parties’ relationship and since their separation.
The maternal grandmother is still working and in those circumstances indicated that the maternal grandfather has had the role of picking X and Y up, caring for them after school and the like as he is retired. She describes he, X and Y as being very, very close.
When asked whether she liked the Father, the maternal grandmother indicated that she “feels sorry for him” and whilst she thinks deep down there is a nice person in there, that nice person has not come to the fore. She described him as “not a bad person”, just somewhat mixed up and that it has taken him a long time to step up as a father.
The maternal grandmother described the Father as a psychological bully towards her daughter and she believes that “he picked every good thing out of her daughter”.
Mr G
Mr G is the maternal uncle. Mr G swore an affidavit in support of the Mother on 20 May 2016 and gave viva voce evidence at the final hearing.
It is Mr G’s evidence that prior to relocating to Northern New South Wales in 2012, his observations of the Father as a parent were not flattering and he did not witness the Father ever putting the children’s needs ahead of his own.[3]
[3] Paragraph (33) of the affidavit of Mr G sworn 20 May 2016.
Mr G agreed that he had not had any interaction with the Father since he relocated to New South Wales and was not in a position to comment first-hand on the Father’s parenting or his involvement with X and Y since that date.
It is Mr G’s evidence that he has seen X and Y at least five times per year since his move to Northern New South Wales and that he and his daughters A and B who are close in age to the boys, have a close and loving relationship with them.
Mr G confirmed that after the May 2015 incident, his daughter A received counselling and that there has been no repeat of any sexualised or other concerning behaviour by her since that time.
It is Mr G’s evidence that he and his former partner are now separated and that he has moved out of his parents’ home in (omitted). Mr G has formed a new relationship and he is now living with his new partner and her two children in her home in the (omitted) area. He has a shared care arrangement with his former partner in relation to his daughters and they live with him on a week about basis with a night with the other parent in the off week.
Mr G is a (occupation omitted). It is Mr G’s evidence that he has completed two profitable property developments in the (omitted) area since he moved there and he has plans to embark on further developments into the future. It is his evidence that the Mother would be able to invest in those future developments. Mr G agreed that the Mother did not need to be resident in the (omitted) area in order to be able to invest in his property developments. He spoke of possible returns on these developments taking anywhere from 2-10 years to eventuate depending on the size of the development.
The Father
The Father relies on his affidavits sworn 24 February 2016, 6 June 2016 and 16 June 2016. The Father also gave viva voce evidence at the final hearing.
The Father also relies on the affidavit of the paternal grandmother, Ms P sworn 24 February 2016. Ms P was not required for cross-examination.
The Father
The Father is opposing the Mother’s application to relocate to the (omitted) Shire in Northern New South Wales with X and Y and seeks that the current shared care arrangement remain in place save that each party have an opportunity for a two week vacation during the long summer holidays.
The Father had proposed that in the event the Mother relocates that X and Y remain living in Victoria with him and spend regular time with the Mother. Given the Mother’s indication that she would not leave the (omitted) area if X and Y were not permitted to relocate, this was not something that needed to be pursued.
The Father adamantly denies the Mother’s allegations that he was not an involved and hands-on father from the time of X and then Y’s birth. It is his evidence that X and Y spent two nights per week with him during periods of separation up until the time the parties commenced mediation in 2014. He agrees that the time he spent with X and Y when he was working at (employer omitted) could not be pinned down to any regular night each week because of his work commitments and that the arrangements did need to accommodate his shift work.
It is the Father’s evidence that he, X and Y have a very close and loving relationship and that he is very much a hands-on father who is involved in all aspects of their care when they are living with him.
It is the Father’s evidence that he regularly speaks to X and Y’s school, particularly Y’s teacher and counsellors given the concerns about his behaviour since commencing primary school in 2015.
It is the Father’s evidence he is also actively involved in the boys’ extra-curricular activities and he is the assistant coach for X’s (hobby omitted) team.
It is the Father’s evidence that whilst the Mother raised with him her concerns that Y was not coping with a shared care arrangement, his experience of Y when in his care was that he displayed none of the disturbing or disrupted behaviours described to him by the Mother and that he therefore did not believe Y was not coping with the shared care arrangement.
It is the Father’s evidence that he believes that Y’s difficulties arose primarily as a result of him struggling with adjusting from moving from kindergarten to primary school and that he and the Mother have worked closely with the school to assist Y in addressing those behaviours.
It is the Father’s evidence that the school has recently introduced a star reward system for Y and that this has seen a measurable improvement in Y’s behaviour at school. It is the Father’s evidence that he has adopted that system in his home to reinforce positive rewards for good behaviour.
It is the Father’s evidence that he contacted the Mother to suggest she too might like to adopt the star reward system, but that she indicated that she didn’t believe it was necessary in her home.
In his trial affidavit, the Father deposed to X and Y not having a particularly close relationship with the maternal grandmother and to X in particular expressing some reluctance to spending as much time as he does at the maternal grandparents’ home.
However, in his viva voce evidence the Father agreed that X and Y have a very close relationship with both the maternal grandfather and grandmother and expressed appreciation for the support they have offered X and Y over the years.
The Father did however confirm his concerns that X and Y were exposed to the maternal grandfather’s swearing and to arguments between the maternal grandparents when in their home.
The Father agreed that he and the Mother’s communication is poor. It is his evidence that the Mother will become abusive if he does not agree with her and he responds to this by trying not to communicate with her. He agreed the Mother would see this as he being dismissive of her views.
It is the Father’s evidence he is more than willing to participate in any form of counselling that may assist he and the Mother in improving their communication going forward. The Father noted that he and the Mother have been able to communicate well when there has been some crisis or emergency involving X and Y as was evidenced in the manner in which they jointly dealt with the May 2015 incident.
In relation to the evidence of the Mother and the maternal grandmother in particular that he does not have a close relationship with his extended family, the Father was adamant in his denial of this. It is his evidence that he, X and Y spend time with his mother and her now-husband, affectionately known as “(omitted)” by the boys, at least once in the week that they are in his care and that he also spends time with his extended family who live in the (omitted) area, including his siblings, cousins and their children.
It is the Father’s evidence that he believes the Mother will be upset if she is not permitted to relocate but that she will be able to manage to continue living in the (omitted) area given that she has lived in the area all her life and has friends and extended family being cousins, aunts and uncles who will continue to live in the area.
It is the Father’s further evidence that he is more than willing to assist the Mother in picking up X and Y from school or otherwise when they are in her care.
Ms P
Ms P is the paternal grandmother.
In her affidavit sworn 24 February 2016, and in contrast to the negative picture painted by the maternal family of the Father, the paternal grandmother refers to both parties being good and committed parents and deposes to observing the Mother having provided lots of affection and cuddles to X and Y.
The paternal grandmother deposes to seeing X and Y at least once per fortnight when they are in the Father’s care and that during that period she has never seen or heard the Father denigrate the Mother or her parents.
The paternal grandmother also deposes that she has seen X and Y interacting with the maternal grandparents and makes the observation “I believe Mr D adores the children and they interact well with him. I am aware that he takes them for walks and transports them to their activities.”
The paternal grandmother observes the Father to have a very strong relationship with both X and Y, who adore their father as they do their mother. She refers to her son as being a dedicated and committed father and that X and Y would be devastated should they not be able to spend time with their father as currently occurs. She also makes the observation she doesn’t believe that X and Y in particular fully understand the impact that the Mother’s proposal would have on their relationship with their father.
As noted, the paternal grandmother’s evidence was not challenged and she was not required for cross-examination.
Ms K
Ms K is a Regulation 7 Family Consultant with the Federal Circuit Court. Ms K prepared a family report in this matter dated 16 May 2016 and gave viva voce evidence at the final hearing.
In her family report of 16 May 2016 under the heading “Evaluation” Ms K reports the following:
43. The current proceeding concerns two young boys, aged six and ten who present as happy and delightful children. Despite this parenting dispute and other times when the parents have been in conflict, the parents have both been involved, nurturing and attentive to the children's needs. Although the mother has at times questioned the father's capacity to be an involved and responsible parent, it does appear that the father has increased his level of involvement with the children and is offering them a home life that provides a stable routine and positive environment. It would seem the mother holds concerns about the father but this was not reflected in the way the boys described their father, which was overall positive
…
As such shared care appears to be working well and the children have developed a meaningful relationship with each parent which will contribute to a positive outcome for the children in terms of their ongoing emotional adjustment related to the separation.
44. The mother however wants to relocate and her view is that the children's best interests will be served by her being based in (omitted), NSW so as to remain close to the maternal extended family who will also move there soon. Currently the maternal extended family offer much support with the children. Although she believes the father's relationship with the children is important, she considers the children's relationship with her parents to be of equal or greater value to the children and believes the continuing presence of the maternal grandparents in the boy's lives to be important for their health, development and adjustment. It is also evident that their presence would support her parenting of the boys and offer her financial benefits including housing.
45. Parenting on her own and being financially independent has been challenging and Ms Garvell has received invaluable support from her parents which she will miss when they move to NSW. The children do appear to have a close relationship with the maternal grandparents but this is secondary to their relationship to the father who has been a constant and significant parental figure in their lives and more recently (over the past 14 months) has taken on the responsibility of equal share of the children. Although the mother believes the father has not always been an active participant and positive role model for the children it appears he does have a close and connected relationship with the children and is now demonstrating parenting that appears to be positive and attuned to their needs. Accusations about his drinking and poor choice of friends cannot be substantiated but the children's recent settled and stable behaviour indicates that they are receiving good quality care from both parents.
46. In criticising the father, it appears that Ms Garvell is not trying to deliberately undermine the father's role but perhaps is prioritising her need for support and closeness to the maternal family. Ms Garvell does appear to want the father's involvement in the lives of the boys and to have a major role in their care and upbringing as long as her confidence in him as a parent increases.
…
It appears that if she were to relocate to NSW, she would include the father in their lives and support his relationship with the boys.
…
48. In meeting the children's current developmental needs, the parents would ideally continue shared care of the children with the assistance of the extended families because both parents have the ability and desire to provide a secure and consistent home life for the boys. This is reflected in the children's recent behaviour which indicates their needs are being met in all ways and they are feeling settled and content with the current arrangements. The boys are also strongly connected to and familiar with their local community in (omitted) and enjoy the benefits of the primary school and friends and family who live in the area. It is unfortunate the maternal grandparents are moving interstate because this changes the community of care for the boys and possibly reduces the mother's capacity to participate in shared care of the boys because she does not have any other family members available to assist her. The father also has limited capacity to assist the mother due to work commitments and as such did not offer to be more involved in their care beyond his allocated week.
49. Although the parents have been critical of each other and are not communicating well, compromising their co-parent relationship, they have managed to protect the children somewhat from their hostilities and maintain communication even though it is mainly by text messaging. Prior to this dispute their ability to collaborate about the children was positive and this has most likely assisted the children to adjust to the separation. Hopefully the parents can return to this way of communicating once this dispute is over regardless of their parenting schedule. On the basis of this the children would continue to thrive if shared care continued and shared parental responsibility was retained.
50. In the event that the mother does relocate to NSW with the boys and the father remains in Victoria, the children will be negatively impacted particularly X who is at an age where he appreciates and needs the positive elements of a male role model, ideally this being his father. He is close to his father and being separated from him will be distressing and upsetting for him. The importance of nurturing this relationship with the father is vital to the boys healthy development and sense of security and trust in relationships. If Court supports the mother's relocation, it is essential that the children have regular and frequent contact with the father so that they can maintain this positive relationship and Y in particular has the opportunity to continue to build on developing a close bond with the father. As the mother states that she would prefer that the father relocated to NSW, she demonstrates that she wants the father to be a constant parental figure in their lives and will not gate keep his involvement to the detriment of the children. The parents demonstrate a commitment to support the other parent's close involvement in the children's lives which would ameliorate, somewhat, the impact of them living in different states.
51. One could argue that if the mother is better supported by moving to NSW and has improved financial and living conditions, the boys will benefit from this and benefit from their mother being happier thus enhancing her parental responsibilities. The mother has also shown some emotional vulnerability in the past and therefore the grandparent's and paternal uncle's support is important for her and her ability to remain an attuned and happy parent. The maternal extended family have been a constant support in the boys lives and so living in NSW will provide a continuation of this level of quality support.
52. This needs to be weighed against the impact on the boys of being separated from their father. The compromise for the children is that they would miss their father greatly, especially X and the bond that they have developed may be disrupted. The father would not have the opportunity to be involved in their everyday routine, school activities, friendships and sport. This is a great loss for the boys who will be impacted by their father's distant involvement in their lives. Whilst X is at an age that he can hold an image and memory of his father which would protect their relationship during times of absence he would be distressed and concerned about his father. This may impact on his level of happiness and possibly even his trust and security in relationships.
53. Y does not have this depth of relationship with the father and although he may cope better with being separated from the father, the distance and lack of involvement from the father will disrupt their developing bond. Y's relationship with the father is less developed and so his relationship will most likely be compromised more due to his young age and ability to hold the level of familiarity and memory that X is capable of.
54. The boys will also miss the opportunity to develop further their relationships with the paternal extended family. At best the children's relationship with their father will be reliant on telephone and internet and extended holidays. Regardless of the final decision, it is imperative that the mother and father manage this sensitively, providing the boys with information about what the parenting plan will look like without blaming the other parent or giving cause for the boys to worry about the more distant parent. X is a highly responsible boy and is likely to take on the burden of the parent's emotional wellbeing unless this issue is managed by the adults sensitively and thoughtfully. The boys are well adjusted however and currently enjoy positive relationships with both parents and extended families on both sides. This will protect them from negative long-term consequences if their circumstances do change.
55. Whatever decision is reached by court it is imperative that the changes allow for the continuation of involvement of both parents and considers ways of overcoming the disadvantages to the children of experiencing life in a long distance parenting arrangement. Balancing the costs to the children of relocating or not relocating is vital given the risk factors involved in both scenarios. It is widely accepted however that children of separation show best short-term and long-term adjustment when they enjoy high quality relationships and have high involvement from both parents especially under conditions of low parent conflict.
Under the heading “Recommendation” Ms K sets out the following:
58. If Ms Garvell and children relocate to New South Wales:
· X and Y live with the mother
· The children communicate with the father at least twice a week by telephone or Skype and that they spend time with the father every school holidays and other times as agreed between the parents.
59. In the event that Mr and Ms Garvell remain living in close proximity to each other, whether that be in Victoria or New South Wales, that the children continue to spend equal time with each parent on a week about basis.
60. It is recommended that the parents attend post parenting separation courses if they have not already done so.
It is Ms K’s viva voce evidence that in her discussions with the Mother for the preparation of the report, the Mother did not raise with her that she had any current concerns that Y was not coping with the shared care arrangement. It is Ms K’s evidence that the Mother spoke more historically of concerns that Y experienced with separation anxiety firstly at kindergarten and then when he first started school and that the Mother did not necessarily put the blame or explanation for that behaviour on the introduction of the shared care arrangement.
It is Ms K’s evidence that she got the impression from the Mother that she generally felt that both X and Y were now coping quite well with the shared care arrangement.
In her family report, Ms K indicated that she had spoken to the principal of X and Y’s school. The principal had indicated that they had no concerns whatsoever with X but that Y was still “on the radar” even though his behaviours had improved from 2015.
Ms K was asked what additional time with the Mother would look like if the Court determined that was in Y’s best interests that shared care continue. Ms K replied as follows:
Look, I think that, you know, my impression is that his behaviours have improved … It did feel like things had settled to a certain extent, and I know he’s still on the radar, and so on, according to the teachers, but things were better. So I think as he matures he is probably going to – is coping better with a shared-care arrangement. Now, ideally the parents would, you know, improve their relationship – their co-parenting relationship and communication. But, you know, I think if he was younger, yes, perhaps, but now that he’s in that routine it’s going on to two years now that they’ve been in a shared-care situation, that I probably would think that it might be best to continue that, if they were to stay in the (omitted) region.
Ms K was asked about her views as to the Mother’s willingness to promote X and Y’s relationships with the Father, particularly given her application to reduce the time X and Y spend with him to two nights per fortnight in circumstances where they had never spent less than four nights per fortnight with him since the parties separated in 2012.
It is Ms K’s evidence that the fact the Mother wanted the Father to move to New South Wales if relocation was allowed demonstrated that the Mother did not want to limit the Father’s time with the children, but rather her application to reduce time was a reflection of her concerns in relation to his parenting capacity. It is Ms K’s evidence that the Mother actually talked about a return to shared care if she felt more confident that the Father had addressed the concerns she had about his parenting.
Ms K did however agree with the proposal that was put to her by the Father’s Counsel that as far as the pecking order goes, the Mother sees her parents as equally, if not more important, than the Father in X and Y’s lives.
Ms K was asked what sense she got of the Mother’s real unhappiness in the event she was required to remain in the (omitted)/(omitted) area with X and Y. It is Ms K’s evidence that she only got a sense of that from what the Mother said and whilst she could not recall whether she used the word ‘devastated’, the Mother had indicated that she would greatly miss her parents’ support and she did say “I don’t know how I’ll cope without them”. Ms K further stated that the Mother indicated that she would miss her parents’ assistance and that she would do so much better financially if she were to move to New South Wales.
Ms K stated on to note as follows:
I don’t know, she might do better than she expects she will if she was to stay in Victoria without her parents. She is – you know, she is 40 years of age. She’s not a really young mum. So perhaps she would do better than that. So it’s very hard to, you know, without having a crystal ball, to know how well she would do really.
The Legal Approach
It is the Mother’s application in this matter that she be permitted to relocate to (omitted) in Northern New South Wales with the parties’ children, X and Y.
Relocation cases are often discussed as if they form a discrete subset of parenting cases that are to be determined differently to other parenting matters. The jurisprudence makes it clear however that this is not so and that a relocation matter is to be determined in the same way that all parenting matters are determined, that is by following the legislative framework prescribed under the Family Law Act 1975 (Cth) (“the Act”) to determine what order is in a child’s best interests.
In Taylor v Barker (2007) 37 Fam FLR 461 at 475, their Honours Bryant CJ and Finn J said:
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: see U v U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74;
(2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.In Cowley & Mendoza [2010] FamCA 597, His Honour Murphy J succinctly stated as follows:
A “relocation case” is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.
A relocation case falls to be determined like any other parenting case.[4]
[4] At paragraph 31.
Best Interests of the Child
Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
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).
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
To determine what is in the best interests of the child, the Court must consider the matters set out in Section 60CC(2) and Section 60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the Court must be considered and assessed in the context of each of the parties’ proposals. The Court should then make a decision as to which of the parties’ proposals, or such other arrangements as the Court determines given the Court is not bound by the parties’ proposals (see AMS v AIF (1999) 199 CLR 160, U & U (2002) 211 CLR 238), is in the children’s best interests.
Section 60CC(2)
Section 60CC(2) of the Act sets out the primary considerations that the Court must take into account when determining what is in the child’s best interests.
Section 60CC(2)(a): The Benefit of the Child having a meaningful relationship with both of the child’s parents
In Heath v Hemming(No.2) [2011] FamCA 749, Justice Kent in paragraph 104 reviewed the authorities relating to parenting cases involving proposed relocation. In subsection (a) of paragraph 104 His Honour considered Section 60CC(2)(a) and summarised the case law in relation to the benefit of the child having a meaningful relationship with both of the child’s parents as follows:
(a) s60CC(2)(a) expresses the primary consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents. Similarly, s60CC(3)(b) requires the Court to consider the nature of the relationship of the child with, inter alia both parents and the objects and principles expressed in s60B also contain various references to the involvement of both parents in the life of their child.
In Sigley & Evor (2011) 44 Fam LR 439 the Full Court recently considered what is required by the term “meaningful relationship” in s60CC(2)(a). The Full Court:
(i) approved the interpretation that a “meaningful relationship” is one which is important, significant and valuable to the child (citing Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 per Brown J and McCall v Clark [2009] FamCAFC 92; (2009) FLC 93-405 per the Full Court);
(ii) concluded that the preferred interpretation of “benefit to the child of having a meaningful relationship” in s60CC(2)(a) is that the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (referred to by the Full Court as “the prospective approach”). However, the Full Court noted that s60CC(3)(b) requires a Court to explore existing relationships between a child and the child’s parents and other persons and thus, depending upon the factual circumstances, examination of the evidence as to the nature of the child’s relationships at the date of hearing (referred to by the Full Court as “the present relationship approach”) may also be relevant, for example where a significant relationship had not been established between a child and a parent at the date of trial;
(iii) confirmed that the legislation aspires to promote a meaningful relationship, not an optimal relationship. (Citing M v S [2006] FamCA 1408; (2007) FLC 93-313 per Dessau J at [38]-[39]; Godfrey v Sanders [2007] FamCA 102 per Kay J at [33]-[36] and Champness v Hanson [2009] FamCAFC 96; (2009) FLC 93-407 per the Full Court at [103]);
(iv) concluded that “meaningful relationship” is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a meaningful relationship;
Clearly, if it is determined that a meaningful relationship with both parents is in the child’s best interests the starting point will be to consider whether such a relationship is already established. If not, whilst all factors must be weighed in the balance, it may be a determinative factor in assessing a proposed relocation. If such a relationship is already established, the consideration will be whether such a relationship can be promoted in the context of the proposed relocation. In either case, factors such as the child’s age and level of maturity (s60CC(3)(g)) may assume particular importance. This may also lead a Court to consider some proposal other than that of either party, for example, providing for some period of time before the relocation is permitted to occur during which a “meaningful relationship” with the non-relocating parent may be established or further established or to allow the child to reach an age where it is likely that a meaningful relationship will be maintainable.
There is no issue that until October 2014 the Mother was X and Y’s primary carer and it is to her that they have their primary attachment.
Since October 2014 X and Y have lived in a shared care arrangement with both parents and as such have developed a very close attachment to and a loving relationship with the Father.
In her family report Ms K, when discussing the impact of relocation at paragraphs (52) and (53), states that X in particular would miss his Father greatly. Ms K is concerned that the bond X and Y have developed could be disrupted if relocation occurs.
Ms K states in paragraph (52) of her family report that whilst X is at an age where he can hold an image and memory of his Father which would protect their relationship during times of absence, he would be distressed and concerned about his father which could impact on his level of happiness and even his level of trust and security in relationships.
In paragraph (53) of her family report, Ms K states Y not to have the same depth of relationship with the Father as X and states that whilst he may cope better from being separated from his father, the distance and lack of involvement from the Father will disrupt their developing bond. Ms K also notes that because Y’s relationship with the Father is less developed, his relationship will most likely be compromised more due to his young age and his lack of ability to hold the level of familiarity and memory that X is capable of.
Section 60CC(2)(b): The need to protect the child from physical and psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
The Mother raises concerns about the impact on Y of the shared care arrangement and is concerned that he has not coped and is not coping with that arrangement.
It is clear from the Mother’s evidence that there were some issues with Y suffering from separation anxiety when he first started kindergarten as well as some concerns about his interaction with other children in the first half of his kindergarten year in 2014. These issues clearly predate the introduction of the shared care arrangement.
It is the Mother’s evidence that Y settled in the second half of the year at kindergarten and was ready to transition to school at the end of that year.
It is also clear from the evidence that Y did not initially adjust well to a change from kindergarten to primary school and that there has been real concerns in relation to Y’s behaviour both at school in addition to the incident with his young cousin in May 2015.
There have been a large number of very significant changes for Y in the last two and a half years of his very young life. His parents finally separated, he started kindergarten, he moved from the primary care of his mother to a shared care arrangement with his father, he transitioned to primary school and was then faced with the possibility of relocation.
It is not at all surprising in these circumstances that Y has struggled, has shown some insecurities and that his behaviour at school and at times out of school has been of real concern.
Ms K quite properly observes in her viva voce evidence that it is very difficult to ascertain or pinpoint any one of these factors as being the cause for Y’s at times unacceptable behaviour.
It is Ms K’s evidence however that she believes that Y is starting to settle and that he is now sufficiently mature and familiar with the shared care arrangement for that arrangement to continue in place.
The Mother also raises concerns about the Father’s parenting and in particular allegations that he drinks to excess, uses illicit substances and associates with inappropriate persons and in particular Mr J.
These concerns appear to be primarily based on the Mother’s experience of the Father prior to their separation and more particularly in the early part of their relationship.
The Mother cannot place any current evidence before the Court of illicit substance use or excessive alcohol consumption by the Father.
The Mother’s concerns in relation to the Father’s association with Mr J and more particularly that this association places X at risk were addressed by the order that was made by consent in February 2016 restraining the Father from bringing X and Y into contact with Mr J.
Whilst the Mother does not believe the Father when he says he has complied with that order, she was unable to place any proof whatsoever before the Court that he had not complied with that order since its making.
Whilst the Father refutes the necessity for the order and does not accept that Mr J presents any risk to X and Y, he, to his credit, indicated during the hearing that he would agree to a continuation of that restraining order to appease the Mother’s concerns in relation to Mr J.
Accordingly, I am satisfied that neither party poses any risk either emotionally or physically to the wellbeing of X and Y.
Section 60CC(3)
Section 60CC (3) of the Act sets out the additional considerations the Court must consider when determining what is in the child’s best interest. Each of the matters set out under that section will be considered in turn where applicable in this matter.
Section 60CC(3)(a): any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
In paragraphs (41) and (42) of her family report Ms K sets out the following discussions she had with X and Y:
41. When interviewed on their own, X and Y were asked to draw a good day with the family and a bad day. Whilst Y just focussed on positive experiences such as the trampoline and sport, X focused his attention on negative feelings about the prospect of moving to New South Wales. He told this consultant that he was adamant that he does not want to live in NSW because he would miss his friends, paternal cousins and miss his father. Y responded by saying that he is happy to go because he’ll see his maternal cousins more often and there is an indoor play centre that he likes attending. X asked Y if he would miss their dad and Y said they’d still see him so it wouldn't be so bad. When asked what X’s biggest worry would be about living in NSW he said he would be worried that the father would be "lonely" because no one would be living with him. When Y was asked what it would be like to move to NSW, he said he would be "sad and crying" if he could not see the father.
42. When asked if there were any positive things about relocating with the mother, X identified that it might be less stressful because the maternal grandparents can help out and so “mum won’t stress so much...... there’s a lot going on with mum’s work, before school care and stress”. They both said that if they stayed living in (omitted) they would want to continue living week about as they thought this was working well. X appeared upset about the prospect of leaving his father and said he tries not to think about it too much especially when he is at school. X showed maturity and honesty in expressing his opinions and views about the parenting plan. He was open with this consultant and expressed points of view that did not appear to be influenced by others.
When giving her vive voce evidence Ms K was asked whether she formed the view that given that X is 10, part of his response to the questions put by her was that he was trying to be fair to both his parents. She responded as follows:
…that is probably part of his desire not to go to New South Wales, that he wants to be fair, as often children are. But I also felt that he would miss his dad, you know. And he did state at one stage that, you know, he worries that his dad would be lonely, which again is a very – you often – I often hear that from children, that they do worry about the parents that will be left. So, yes, I think there are all those factors involved.
In relation to Y, Ms K was asked whether she felt he had any real understanding of what it would mean to be separated for long periods from his father. It is Ms K’s evidence that she did not think Y really comprehended this as he is far too young and a little bit immature for his age.
Whilst X is only 10, he was quite clear when speaking with Ms K that he did not want to move to New South Wales because he would miss his friends, his school and his father.
Whilst Ms K explained that X’s wishes in this regard can in part be attributed to his concerns that his father will be lonely, there is no doubt that he is old enough to understand that relocation means that he will see much less of his father and he will be moved away from the friends and school he has attended since he was five.
Given Y’s very young age, he is not old or mature enough to have any considered views on the issue of where he lives or what his living arrangements should be.
Section 60CC(3)(b): the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child).
X and Y have a close and loving relationship with both of the parties.
It is also apparent that the maternal grandparents have been closely involved in the care of X and Y since their birth and are very close to X and Y and enjoy a close and loving relationship with them.
It is of concern that the Mother and the maternal grandfather seem to view X and Y’s relationship with the maternal grandfather as being of greater import than their relationship with the Father and that the maternal grandfather is the better role model for the two boys.
It is quite apparent from the evidence of Ms K that X and Y do not share their mother and maternal grandfather’s view of the Father and they and in particular X, see him as their main male role model and that they view him as a positive and appropriate father figure.
It is also apparent that X and Y have a loving relationship with the paternal extended family, despite the somewhat disparaging and less than flattering observations made by the extended maternal family in that regard.
Section 60CC(3)(c): the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child;
(iii) to communicate with the child.
Whilst the extended maternal family’s major criticism of the Father is he failed to step up as a parent and was not actively involved in X and Y’s lives, particularly when they were younger, this does not seem to be borne out in the evidence, at least since the parties’ separation in 2012.
It is common ground between the parties that X and Y spent two nights each week with the Father albeit that time was fitted around his work commitments until October 2014 when the current shared-care arrangements were put in place.
Whilst again there is criticism by the Mother of the Father failing to be responsible for medical and school commitments for X and Y, it is common ground that at least since October 2014 both parties have been actively involved in all aspects of X and Y’s lives.
Section 60CC (3)(ca): the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.
It is apparent from the parties’ evidence that money has been a source of friction between the parties for the entirety of their relationship.
The Mother makes no complaint about the Father’s payment of child support whilst he was employed by (employer omitted) and from that I can only assume that he paid child support as assessed by the Child Support Agency during this period.
Since the parties have put in place a shared care arrangement, they have each been responsible for X and Y whilst in their care.
The Mother complains that despite shared care she has been primarily responsible for the payment of extra-curricular activities and for the bulk of their school expenses and clothing. The maternal grandparents depose to buying clothes and other things for X and Y throughout their lives.
The Father deposes to supporting X and Y when with him, including providing necessary clothes and other items.
On the whole, I am satisfied that both parties have contributed appropriately to the maintenance of their sons.
Section 60CC(3)(d): the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
In the event that X and Y are permitted to relocate to Northern New South Wales, they will not be able to live in a shared care arrangement with each of their parents.
The Mother’s proposal would see X and Y spending holiday time in Victoria with the Father and some special occasion time between now and July 2017.
The Mother is amenable to the Father spending whatever time he can with X and Y in the event he is able to travel up to New South Wales to see them.
It is the Mother’s evidence that she is prepared to put aside $10,000 from the proceeds of sale of her Property A property to assist in the costs of X and Y spending time with the Father. Given that a return airfare between (omitted) and Melbourne will be no less than $250 per child and that Y will not be able to travel as an unaccompanied minor for at least three years, $10,000 will not go a long way towards meeting the costs of X and Y spending time with their Father for very long.
Whilst the Father works three jobs in order to support himself, X and Y, the reality is he only earns between $45,000 and $50,000 per year. Similarly the Mother’s current job prospects in Northern New South Wales appear to be employment in which she will earn approximately $240-$300 per week. It is therefore apparent that neither party has the financial resources to enable time to be spent with any degree of frequency in the event of relocation.
It is the Mother’s evidence that she believes X and Y will be able to maintain a meaningful relationship with the Father in the event of relocation on the basis that they spend time with the Father in what will probably be four times a year.
It is the Father’s evidence that he does not believe that a meaningful relationship can be maintained in those circumstances, particularly given that for the last two years X and Y have been living in a shared care relationship with both their parents.
It is Ms K’s evidence that whilst X is at an age where he can hold an image and memory of his father which would protect their relationship, during times of absence he would miss his father greatly and the bond that they have developed may be disrupted.
In relation to Y it is Ms K’s evidence that he does not have the same depth of relationship with the Father as X does and that the distance and lack of involvement with his father will disrupt their developing bond and that Y’s relationship with the Father is likely to be compromised due to his young age and his inability to hold the same level of familiarity and memory that X is capable of given his older age.
Whilst the Mother is proposing there be regular Skype and telephone communication, it is the Father’s evidence that neither X or Y enjoy speaking on the telephone or by Skype and that on those occasions they have travelled to Northern New South Wales to spend time with the maternal uncle, their communication with him has been infrequent and limited. In these circumstances the Father does not believe the use of electronic communication will support an ongoing relationship between himself, X and Y.
It is the Father’s evidence, supported by the paternal grandmother, that when X and Y are in his care they spend regular time with the extended paternal family. Any relocation will of course disrupt this relationship.
Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.
If the Mother is permitted to relocate to Northern New South Wales with X and Y then quite clearly they will not be able to spend regular time with their father, let alone the current shared care arrangement.
It is the Mother’s proposal that from June 2017 there be a sharing of school holidays between the parties and otherwise her proposal would appear to be that any additional time between X, Y and the Father will take place in Northern New South Wales in the event the Father is able to travel up there.
If however, the Mother, X and Y remain living in (omitted) or close proximity thereto, there is no practical difficulty in the current shared care arrangement continuing.
Section 60CC(3)(f): the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
I am satisfied in this matter that both parties are able to meet X and Y’s emotional and physical needs.
It is apparent that the Mother relies upon and is greatly assisted by her parents in the care of X and Y. She is understandably concerned how she will manage in caring for X and Y when they relocate to Northern New South Wales if she is required to remain living in or around (omitted) without their assistance.
It is apparent from the Mother’s evidence, perhaps in part because she has always had her parents’ assistance, that she has not sought to develop a support base outside of her parents to assist her in caring for X and Y when they are in her care. If she is not permitted to relocate then this is something she should do. Given her evidence that both X and Y have many school friends with whom they share play dates it is not hard to imagine that there are parents of X and Y’s friends who will be able to assist her if she asks for their assistance.
It is also the Mother’s evidence that she has made no enquiries as to the cost of before or after school care. Whilst it is her evidence that she can’t afford it, it is somewhat difficult to know if that’s a reality given she hasn’t made those enquiries.
The Father has offered to be of assistance to the Mother in picking up the boys from school if she finds herself unable to do so when they are in her care. The Mother has rejected the Father’s offer of assistance. Once this matter has finalised and if the boys are required to remain in the (omitted) area, the Mother is strongly encouraged to overcome her current reluctance and take up any offers of assistance offered by the Father.
Whilst the Mother and the extended maternal family are critical of the Father’s parenting, they concede that particularly since shared care was introduced the Father has “stepped up”. This is confirmed by the feedback from X and Y’s school who when speaking to the report writer indicated they had no concerns about the care of X and Y by either of their parents. The school notes both parents to be engaged with the school and willing to follow their directions, particularly in assisting Y.
Section 60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant.
Not relevant.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.
Whilst the Mother and extended maternal family are very critical of the Father’s parenting and in particular his commitment to the children particularly when they were younger, the evidence is that since separation he has spent regular time with X and Y and more so since the shared-care arrangement was put in place nearly two years ago.
Accordingly, I am satisfied that both parents have and are fulfilling their responsibilities as X and Y’s parents.
Section 60CC(3)(j): any family violence involving the child or a member of the child’s family.
Section 60CC(3)(k): if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter.
Not relevant.
Section 60CC (3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
Until the Mother filed her application for orders that permitted her to relocate to Northern New South Wales, the parties had been able to reach agreement between themselves as to X’s and Y’s living arrangements, initially by direct negotiation and in 2014 with the assistance of mediation.
It is therefore open to suggest that but for the question of relocation these parties would not have needed to have recourse to the Court.
It can therefore only be hoped that once the question of relocation has been resolved these parties will not need to have recourse to the Court into the future.
Section 60CC (3)(m): any other fact or circumstance that the Court thinks is relevant.
Whilst it is Ms K’s evidence that she believes the Mother to be supportive of X and Y’s relationship with the Father and that her proposed relocation is in no way a reflection of the Mother trying to remove the Father from X and Y’s lives, it is very clear from the Mother’s evidence that she views X and Y’s relationship with her parents and her brother and his children as being of greater importance than X and Y’s relationship with the Father.
When giving her viva voce evidence it was put to Ms K that the tenor of her report was that she had formed the view that the Mother put X and Y’s relationship with the maternal grandfather before their relationship with the Father. Ms K agreed with that proposition. It was then put to Ms K that this was not the Mother’s evidence at the final hearing. Ms K responded to this statement as follows:
I recall her saying that – and she stated it quite adamantly – that the children would be – or it would be traumatic, I think she used that word, for the children to be separated from the maternal grandparents if they were not able to move up to New South Wales. But she … she never referred to the – as being separated from the father as being traumatic ... that was kind of the flavour of the whole interview, that, you know, the maternal grandfather and uncle were extremely important in these children’s lives, and had been more consistently and responsibly involved … with the children.
The maternal grandfather’s evidence was at best “damning with faint praise” when discussing the Father and he was generally highly critical of him as a father. It was the maternal grandfather’s clear evidence that he considers himself to be the primary male role model for X and Y and that the Father is incapable of being that role model or as he described it: “an appropriate mentor for them”.
In circumstances where it is the Mother’s proposal that upon relocation they live with the maternal grandparents for some considerable period of time, there has to be real concern about X and Y being exposed to the negative views of and lack of respect shown to the Father by the maternal family and in particular the maternal grandfather.
Further, despite Ms K’s observation that she believes the Mother to be supportive of a relationship between X, Y and the Father, the Court must also have concerns about the importance the Mother places on that relationship for X and Y in comparison to the greater importance she places on X and Y having a relationship with her extended family and her father and brother in particular.
Presumption of Equal Shared Parental Responsibility
In this matter both parties propose that they have equal shared parental responsibility for X and Y.
Section 61DA of the Act provides that the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This presumption is rebutted if there are reasonable grounds to believe that either of the child’s parents have engaged in abuse of the child or family violence or where there is evidence that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for the child.
Both parties give evidence of their current difficulty in communicating with each other, particularly since the Mother filed her application to relocate. It is apparent however that when there is a crisis involving either of X or Y they have been able to put aside those difficulties to communicate with each other and jointly address the problems that either X or Y are facing.
Further, whilst Y has had some real issues adjusting to the changes in his life over the last two and a half years, it is the evidence of the parties, their teachers and of Ms K that X and Y are developing appropriately and this is a reflection of the positive parenting they have received from both of the parties.
In these circumstances I am satisfied that an order for the parties to have equal shared parental responsibility, as is both parties’ proposal, is in the best interests of both X and Y.
Consideration of Equal Time or Substantial and Significant Time
Where the parents have equal joint parental responsibility for a child, section 65DAA of the Act requires the Court to consider the child spending equal time, or a substantial and significant time, with each parent.
Section 65DAA(1) provides as follows:
1. If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Sections 65DAA(2) and (3) of the Act provide as follows:
2. If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3. For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Section 65DAA(5) of the Act provides as follows:
5. In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
In the matter of MRR v GR [2010] HCA 4, the High Court considered the interrelationship between section 60CA, section 61DA(1) and section 65DAA of the Act.
In MRR v GR (supra), the High Court held at paragraph 9:
Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", [i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents.
The High Court then held at paragraph 13:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
The High Court further held at paragraph 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 s61DA(1) is not determinative of the questions arising under s.65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.”Thus, the Court must consider not only whether it is in the child’s best interests to spend equal or significant and substantial time with each of their parents but also whether it is reasonably practicable for the child to do so.
If the Court was satisfied that it is in the best interests of X and Y to relocate with their mother to Northern New South Wales, then it is quite obvious that it would not be reasonably practical for X and Y to spend equal or significant and substantial time with the Father.
In the event that X and Y remain in Victoria and more particularly in the (omitted) region then the question of whether equal time or some other arrangement becomes live.
In this matter X and Y have been living in a shared care arrangement with both of their parents for nearly two years.
Whilst it is the Mother’s evidence and her genuine belief that this arrangement has not worked well for Y in particular, it is the evidence of Ms K that with the passage of time and Y’s increased maturity, a continuation of the shared care arrangement is the best way forward for both X and Y.
It is the Mother’s proposal that if she remains living in close proximity to the Father, whether that be in Victoria or because the Father has moved up to New South Wales after she has been allowed to relocate with X and Y, that the current living arrangements should be altered such that X and Y live in her primary care and that they only spend time with the Father each alternate weekend from after school Friday to 5:00pm Sunday.
The Mother’s proposal does not equate to even significant and substantial time as defined under section 65DAA(3) of the Act and that proposal cannot be seen to be in the best interest of X and Y in circumstances where since September 2012 neither Y or X have spent less than four nights per fortnight with the Father save for a very brief period in early 2014.
Conclusion
This matter relates to the Mother’s application firstly to relocate with the parties’ children X aged 10 and Y aged 6 from (omitted) to (omitted) in Northern New South Wales and if that relocation is not permitted, for there to be orders made altering the current shared care agreement so that X and Y live in her primary care and spend alternate weekends with the Father from after school Friday to 5:00pm Sunday and for dinner each Wednesday night.
The Father opposes the Mother’s application to relocate with X and Y to Northern New South Wales and seeks that there be a continuation of the existing shared care arrangement whereby X and Y live week about with each of the parties.
It is common ground between the parties that throughout X and Y’s lives, the parties and since separation the Mother, have been greatly assisted by her parents in the care of X and Y. Currently the maternal grandfather collects X and Y from school on two evenings when they are in the Mother’s care, as well as offering support generally on weekends and other occasions when the Mother’s commitments make it difficult for her to be able to care for X and Y.
In 2012 the Mother’s brother and his family moved to (omitted) in Northern New South Wales. It is also common ground that the Mother’s parents have long held plans to retire to (omitted) and in fact already own a home in that area which they are hoping to be able to move to by the end of this year.
It is the Mother’s evidence that she has wanted for some time to relocate with her family to Northern New South Wales. The Mother raised the question of relocation with the Father on two occasions, in early 2014 and again in early 2015. On each occasion the Father indicated to the Mother his strong opposition to any relocation of X and Y from the (omitted) area.
It is the Mother’s evidence that she believes it is in the best interests of X and Y to be able to relocate with her to Northern New South Wales. It is the Mother’s evidence that relocation will enable her to establish herself financially as she, X and Y will be able to live rent-free with the maternal grandparents for as long as necessary while she establishes herself financially.
It is the Mother’s further evidence that a relocation to Northern New South Wales will enable her to continue to have the emotional, financial and practical support from her parents that they have provided to her since X and Y were born.
It is the Mother’s evidence that X and Y have a very close relationship with her parents and particularly her father and that in the early stages of their lives it was the maternal grandfather who was their male role model as the Father put his own needs ahead of his responsibilities as a father.
The Mother has sold her home in (omitted) as she was unable to service the mortgage and settlement of that sale takes place on 4 August 2016. It is therefore the Mother’s evidence that whatever the outcome of this matter, X and Y will be moving house.
It is the Mother’s evidence that she believes that she will struggle to find an affordable home and properly parent X and Y if she is required to remain in Victoria without the support of her parents.
It is the Father’s evidence that he believes it is in X and Y’s interests to remain living in Victoria and in particular in or around (omitted).
It is the Father’s evidence that X and Y have a close and loving relationship with him and they are now well-settled into the routine of a shared care arrangement whereby they live with each of their parents on a week-about basis.
It is the Father’s evidence that X and Y are well established in their school and in their community as they have lived in (omitted) and attended (omitted) Primary School from the commencement of their school life.
It is common ground between the parties that Y has exhibited some behavioural difficulties, particularly since starting primary school. It is the Father’s evidence that things have started to settle for Y and he believes that to move Y from his current school and from the supports that have enabled him to settle cannot be seen to be in his best interests and may lead to deterioration in his behaviour and emotional wellbeing.
It is the Father’s evidence, somewhat supported by the Mother that the cost of housing and rental in or around (omitted) is similar to that in (omitted) albeit the Mother would have the benefit of free rental accommodation with her parents at least initially if permitted to relocate.
It is the evidence of Ms K that if relocation is allowed Y and X, and particularly X, will miss the Father greatly and there is a risk that the bond that has been developed between the boys and their father would be disrupted.
It is Ms K’s further evidence that whilst X is at an age that he can hold an image and memory of the Father in the event of relocation which would protect their relationship during the times of absence, he would be greatly distressed and concerned about his father and that this could impact on his level of happiness and possibly even his trust and security in future relationships.
Ms K’s evidence is that Y does not have the same depth of relationship with his father as X does and that although he may cope better with being separated from his father, the distance and lack of involvement with the Father will disrupt their developing bond such that his relationship will most likely be compromised more than that of X given his young age and inability to hold the same level of familiarity and memory that X is capable of.
Whilst the Mother’s proposal would see X and Y spending time with their Father for six occasions between now and June 2017, her proposal thereafter is for X and Y to spend time with their Father only four times per year for half of the school holidays and otherwise when the Father is able to travel to Northern New South Wales to see X and Y.
Given both parties’ relatively small incomes – neither earns more than $45,000 to $50,000 per annum – it is difficult to see how frequent travel could be afforded to enable X and Y to spend time with their father much more than four times per year in the event relocation were allowed.
As has been previously set out in this judgment, whilst Ms K holds no concerns that the Mother would not support a relationship between the Father and X and Y, there is a genuine concern about the importance that the Mother and the extended maternal family place on that relationship for X and Y.
It is quite apparent from the evidence of the Mother and particularly that of the maternal grandfather that the Mother and extended maternal family all consider X and Y’s relationship with the extended maternal family and in particular the maternal grandfather as being of more importance to X and Y that their relationship with the Father because of their belief that the maternal grandfather is a better male role model for X and Y than is the Father.
This raises a genuine concern about the impact on X and Y of them being exposed to the negative views held by the extended maternal family toward the Father, given that if permitted to relocate she, X and Y will reside with the maternal grandparents for some considerable period of time while the Mother attempts to re-establish herself financially.
The maternal grandfather when giving his evidence was specifically asked what would be the impact on his and the maternal grandmother’s plans if it was the decision of the Court that the Mother, X and Y were not permitted to relocate. The maternal grandfather’s response was there would be a ‘plan B’ and that such a decision would considerably alter his and his wife’s current plans.
The tension between a parent’s wish to pursue their own life and happiness and the entitlement of children to have a meaningful relationship with both of their parents lies at the very heart of the real difficulty this Court faces when determining matters of this type.
This tension becomes even more pronounced the greater the distance of the relocation because of the practical difficulties in putting in place arrangements that will enable a child to spend regular weekly or even monthly time with both of their parents and to enable both parents to have an active involvement in their children’s day-to-day lives.
Ultimately however, the living arrangements for, in this case X and Y, must be determined in accordance with the provisions of the Act and therefore on the basis of what is in their best interests.
In this matter the Mother is understandably most distressed at the idea of losing the day-to-day physical presence and support of her parents in the event they relocate to Northern New South Wales. She has long harboured the desire to be able to move with her family to Northern New South Wales in order to be able to continue to have that support emotionally, practically and financially.
The Mother has struggled to parent X and Y without her parents’ support and it is accepted that if they move to Northern New South Wales either permanently or for a greater proportion of the year, the Mother will find parenting X and Y in their absence very challenging.
However, as was noted by Ms K in her evidence, the Mother may well do better than she expects if required to stay in Victoria without her parents as she is 40 years of age and not a young mother.
Whilst I have no doubt that the Mother will comply with any orders made for X and Y to spend time with the Father if allowed to relocate, I have a genuine concern that if permitted to relocate the Mother and the extended maternal family, particularly the maternal grandfather will continue to reinforce their belief that X and Y’s relationships with them is of much greater importance than their relationship with the Father.
In all these circumstances I am of the view that it is not in X and Y’s best interests that they be not permitted to relocate to Northern New South Wales with the Mother.
There is no doubt that the Mother will be very distressed and upset by this decision and may, at least initially, struggle to manage without the emotional and practical support of her parents if they continue with their plans to move to Northern New South Wales.
It is apparent from the evidence of the maternal grandfather that he and the maternal grandmother will continue to provide the Mother with financial, emotional and practical support. Given the maternal grandfather’s evidence of there being a “plan B” in the event the Mother, X and Y are not permitted to relocate, it may well be that they will adjust their current retirement plans in such a way that they share their time between Victoria and Northern New South Wales so that they are able to offer support to both the Mother in Victoria and their son in Northern New South Wales.
It is the Mother’s application that if not permitted to relocate to Northern New South Wales that the current shared care arrangement be varied so that X and Y live in her primary care and spend alternate weekends with the Father from after school Friday to 5:00pm Sunday and for dinner each Wednesday night.
It is the Mother’s evidence that she does not believe that Y has coped emotionally with the shared care arrangement that was put in place in October 2014. It is her evidence that she believes many of the behavioural difficulties that Y has exhibited, particularly since starting primary school in 2015 are as a result of the introduction of shared care at a time when Y was too young to cope with that arrangement given she has been Y’s primary carer.
Whilst conceding that X would prefer the shared care arrangement to continue and that he is genuinely content with that arrangement, it is the Mother’s evidence that she does not want X and Y to have separate living arrangements and that in the circumstances the time that both X and Y spend with the Father should be significantly reduced.
It is the Father’s evidence that whilst Y has exhibited behavioural difficulties, particularly since starting school and the May 2015 incident, he believes that these behaviours primarily arose as a result of Y not coping with the transition from kindergarten to primary school.
It is the Father’s evidence that he and the Mother have worked very closely with Y’s school in assisting Y in addressing these behaviours and that there has been a gradual improvement in Y’s behaviour, particularly in the last couple of months since there has been the introduction of the star reward system at school, which the Father has adopted at home.
It is the Father’s evidence that none of the clinging and separation anxiety behaviours that the Mother attests that Y exhibits when in her care have been observed by him when Y is with him and so on some level he struggles to fully take on board the Mother’s concerns about those aspects of Y’s behaviour.
It is the Father’s evidence that he believes that both X and Y are now well settled into the routine of shared care as it has been in place now for nearly two years and that it is in their best interests that that arrangement should continue going forward.
It is the evidence of Ms K that she believes that it is in the best interests of X and Y that the shared care arrangement should continue. It is her evidence that with the improvement in Y’s behaviour, his greater maturity given he is now some two years older than when shared care was first introduced and the stability of what is now a long-standing routine of care for X and Y, that such an arrangement going forward is in their best interests.
Y has undergone considerable change in the last two and a half years of his very short life. He has had to adjust to his parents’ permanent separation, to starting kindergarten, to the introduction of shared care, to starting school and then the uncertainty of whether he and X would be remaining in Victoria or moving to New South Wales.
In these circumstances it is difficult to know whether the cause of Y’s concerning behaviours is because shared care was introduced perhaps a little too early, or whether it is a combination of all of the considerable changes he has had to accommodate at a very young age.
However, the shared care arrangements have now been in place for nearly two years, both boys are settled into that routine and Y is now 6, not 4 and therefore that little bit older and better able to manage the separation from his primary carer. It is apparent from the evidence Y has a positive and loving relationship with both the Mother and the Father.
Finally, in the event the maternal grandparents retire to Northern New South Wales, a shared care arrangement will be of genuine assistance to the Mother in terms of assisting her to arrange her working life and other commitments to better support herself, X and Y in Victoria.
In all these circumstances I am satisfied that it is in X and Y’s best interests for the shared care arrangement to continue going forward.
The Father’s proposal that each of the parents be afforded the opportunity to have a two week vacation in the long summer holidays makes sense to me and orders will be made that reflect that proposal.
Both parties are in agreement that there should be a sharing of special occasions such as Christmas, birthdays, Easter, Father’s Day and Mother’s Day and orders will be made for that to continue going forward.
It is also common sense that the shared care arrangement continue during the term school holidays with both parties being at liberty to make some minor adjustments to reflect proposed holidays.
Both parties concede that their capacity to communicate has been severely impacted by the Mother’s application to relocate.
Both parents have been able to rise above those difficulties and work cooperatively when the circumstances of either X or Y have required them to do so. The best example of this is their joint response to the incident in May 2015.
It is the recommendation of Ms K that both parties would benefit from attendance at a Post Orders Parenting program to assist them in finding ways to better communicate as X and Y’s parents going forward. The Father expressed a willingness to engage in such counselling.
If the maternal grandparents choose to relocate to Northern New South Wales then the necessity for the parents to better communicate becomes even more marked. It is apparent that the Father is more than willing to assist the Mother in her care of X and Y and the Mother needs to be able to accept those offers of assistance, something she is currently struggling to do.
In these circumstances orders will be made for the parties to attend a Post Orders Parenting program at (omitted).
I certify that the preceding two hundred and ninety two (292) paragraphs are a true copy of the reasons for judgment of Judge Bender
Date: 22 July 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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