Glover and Taylor
[2007] FMCAfam 926
•18 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GLOVER & TAYLOR | [2007] FMCAfam 926 |
| FAMILY LAW – Relocation – mother’s new partner in Navy and posted to Western Australia from New South Wales – relevant factors. |
| Family Law Act 1975, ss.60B, 60CC, 60I, 61DA, 65DAA Bolitho & Cohen (2005) FLC 93-224 |
| Applicant: | MS GLOVER |
| Respondent: | MR TAYLOR |
| File Number: | WOC 335 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing date: | 19 September 2007 |
| Date of Last Submission: | 19 September 2007 |
| Delivered at: | Wollongong |
| Delivered on: | 18 December 2007 |
REPRESENTATION
| Applicant: | Self Represented |
| Respondent: | Self Represented |
ORDERS
The parents have equal shared parental responsibility for the Child J born in January 2000 (‘the Child”).
(A) Should the Mother continue to reside in or around N:
The Child live with the Mother.
The Child spend time with the Father as follows:
(a)Every third weekend (calculated to coincide with the existing cycle of weekend time based on previous orders) from 6.00pm Friday to 5.00pm Sunday except when there is a long weekend in which case the Child’s time with the Father is extended to include either the preceeding Friday or the succeeding Monday as the case may be; and
(b)The whole of the Easter or April school holidays from 6.00pm the Monday after the conclusion of school to 6.00pm on the Friday before school resumes; and
(c)One half of the June/July and September/October school holidays, calculated as seven (7) nights from 6.00pm on the Monday after the conclusion of school; and
(d)For four weeks of the December/January school holidays commencing from 6.00pm on the Monday after the conclusion of school until 6.00pm on the Monday four weeks later; and
(e)At all other times as agreed between the parents from time to time; and
(f) If the Father is to spend time with the Child in N, he is to give the Mother two weeks notice in writing, and such additional time is to commence at 6.00pm on the Friday and conclude at 6.00pm on the Sunday.
(g)For the purposes of implementing these orders the parents will arrange to transport the Child to McDonalds Family Restaurant at N.
The Mother is hereby restrained from removing the Child from the N district without the prior consent of the Father or an order of the Court.
(B) Should the Mother relocate to Perth:
The Mother is hereby restrained from removing the Child from the N district without the prior consent of the Father or an Order of the Court.
The Child live with the Father.
The Child spend time with the Mother as follows:
(a)The whole of each school holiday except for the December/January school holidays commencing from 6.00pm on the Monday after the conclusion of school; and
(b)Commencing in 2007, and alternating thereafter, for the first four weeks of the December/January school holidays to include Christmas, Boxing Day and New Year’s Day commencing from 6.00pm on the Monday after the conclusion of school until 6.00pm on the Monday four weeks later; and
(c)Commencing in 2008, and alternating thereafter, the last four weeks of the December/January school holidays, to exclude Christmas, Boxing Day and New Year’s Day commencing from 6.00pm on the third Monday after the conclusion of school, and concluding at 6.00pm on the Sunday immediately preceeding the recommencement of school.
(d) As agreed between the parents from time to time.
The Child is to communicate with the Mother as agreed between the parties, but failing agreement, in the following manner:
(a)By telephone three nights per week between 5.30pm and 7.45pm New South Wales time; and
(b)By webcam or equivalent visual internet communication two nights weekly before 7.30pm New South Wales time on weeknights; and
(c) By email and mail.
The parents are both to do all things necessary to implement Order 8 above and to facilitate the Child’s communication with the Mother.
Order 8 shall also govern the Child’s communication with the Father when the Child is with the Mother.
To implement Order 7, the following provisions apply:
(a)The stated commencement time is the time the Child should, if possible, arrive in Perth.
(b)The stated time of conclusion is the time the Child should, if possible, arrive in W.
(c)The Father will deliver the Child into his Mother’s care by arranging for the Child to travel by air from W to Perth and the Mother will deliver the Child into his Father’s care by arranging for him to travel by air from Perth to W.
(d)The Father is to make and pay for all flight arrangements in accordance with these orders, and notify the Mother of these within 24 hours of their making. The mother is to reimburse the father within seven (7) days for one-third of the total cost.
The mother have responsibility for the day to day care of the child when he is spending time with her, and the father have responsibility for the day to day care of the child at all other times.
Each parent is to provide the other parent as soon as possible after such occurance, details of any illness or injury to the child whilst in their care.
The father will facilitate the mother’s access to school reports, notices and advices concerning the child and make available to the mother order forms for school photographs of the child.
That in the event the parents cannot reach a joint decisions about:-
(a)a major long-term issue involving the Child; or
(b)the interpretation of these Orders; or
(c)the implementation of these Orders; or
(d)the enforcement of these Orders; which involve the child,
each of the parents will do all things necessary to participate in Family Dispute Resolution at an Organisation recognised under the Family Law Act.
That before an Application is made to a Court for a variation of these Orders to take account of the changing needs or circumstances of the Children or of the parties, each of the parents is to take the following steps:-
(a)The Father and the Mother shall each do all things necessary to attend Counselling or Mediation with an Organisation recognised under the Family Law Act; and
(b)The Father and the Mother shall each participate in Family Dispute Resolution with an Organisation recognised under the Family Law Act.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
WOC 335 of 2007
| MS GLOVER |
Applicant
And
| MR TAYLOR |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about J, who was born in January 2000 and who is seven years old. J currently lives with his mother, Ms Glover, his stepfather Mr G, and his half brother T (two years old) in N. J's father, Mr Taylor, lives in W, which is about 400 kilometres away from N. J's mother would like to relocate with J to Perth where her husband is about to be posted with the Royal Australian Navy. J's father opposes the move because of the impact on the relationship with him. His preference is that J stays with his mother in N but, in the alternative, that J comes to live with him in W.
This type of case is frequently described as a relocation case. In reality it is an application for a parenting order which would have the effect of enabling J to move to Perth with his mother. Relocation cases are very hard to decide.
Background
J's parents lived together in W between May 2001 and June 2003. His father is an electrician employed in the family business in W. Mr Taylor has been cohabiting with Ms H since August 2004. They became engaged in January 2007 and are planning to marry in April 2008. Ms H is a self-employed hairdresser working out of the home that is occupied by the father and herself, in W. J's mother is a parent and homemaker and is engaged full-time in that role. Shortly after separation the mother met Mr G, repartnered with him, and their son, T, was born in October 2004. Mr G is a helicopter mechanic in the Royal Australian Navy. His posting to Western Australia is imminent, and he will then be deployed to the Middle East for a six-month term early in 2008. Mr G's family is based in Perth. Both the mother and the father's family is based in W, or in the vicinity of W.
There have been a number of previous court orders relating to J. The first one appears to be an order that was made in Wagga Local Court on 6 August 2003, shortly after J's parents separated, at a time when he was three years old. It provided for equal shared care of J, week-about between his parents.
On 20 October 2003 the Family Court of Australia at Canberra made an order that J live with his mother, but have contact with his father each weekend from 5 pm Friday to 8 am Monday. By consent, the parents also agreed that J could not be removed beyond 25 kilometres of the W post office.
On 29 September 2004 the Family Court of Australia at Canberra made further orders. J was to reside with his mother in N and have contact with his father. Until J attended school in 2006, J was to have contact with his father every third week from Friday 6 pm to the following Friday at 6 pm. However, once he commenced school, he was to have contact with his father every third weekend from Friday
6 pmthrough to Sunday at 5 pm. The orders also provided that after J commences school he would spend the whole of the Easter school holidays, one half of the June/July and September/October school holidays and four weeks during the Christmas school holidays, with his father. There was a further proviso that if J's father was able to have contact with J in N he may do so on any weekend, subject to his giving J's mother two weeks' notice in writing of his intention to have such contact. As the father was living in W, and the mother in N, the orders specified that each of the parents will arrange to take J to McDonald's Family Restaurant at Y, which was the designated changeover point. There was also an order that specifically restrained J's mother from removing herself, or J, from the N district without prior order of the Court, or consent of the father.
It is common ground between the parents that both parents have diligently complied with the orders made on 29 September 2004, apart from the father not taking up the additional optional time with J in N.
It is an unfortunate fact that for a considerable part of J's short life his parents have been litigating in relation to him. What is very unusual, in this case, is that J shows no signs of any adverse impacts as a result of this. Indeed, he seems to be thriving under the love and care that is provided to him by both of his parents, their respective partners, and the broader families.
Parents' Proposals
Both parents agree that there should be an order for equal shared parental responsibility and I agree that is appropriate under the circumstances. The mother proposes that if she is given permission to relocate to Perth with J, that J will spend time with his father during all of each school holiday period except the Christmas holidays, when it would be four weeks, alternating between the first and the last four weeks. She proposed that J would communicate with his father by telephone, internet and web cam several times weekly. She would deliver J from Perth to W, and proposed that the father return J to Perth, but she would pay two-thirds of the cost of his flights.
The father's proposal is, in the first instance, that the mother's application simply be dismissed, and the current arrangement remain in place. However, if the mother proposed to move to Perth, J was to live with him in W and he made proposals for J to communicate and spend time with his mother in almost identical terms to that suggested by the mother.
The Alternatives
I explained to J's parents, both of whom represented themselves in these proceedings, that I was not bound by their proposals for J, and that I thought I would be considerably assisted if they would join in with me in trying to establish all of the possible alternatives that were available to me. They willingly participated in this process. Of course it is not possible to be exhaustive and whilst five possible alternatives were identified, it is easy to see that within each individual alternative there are a number of variations. The alternatives that were identified, however, were as follows:
a)J moves with his mother to Perth and spends time and communicates with his father as proposed by her.
b)That J and his mother remain in N, irrespective of whether or not Mr G is posted to Western Australia and/or remains there.
c)That J moves to W with his father, if the mother moves to Perth.
d)That J's father relocates from W to Perth so that he can continue to be close to him and spend at least as much time with his as he currently does.
e)That the mother and J relocate from N to W irrespective of whether Mr G is posted to Western Australia and irrespective of how long this might be.
The Issues
Both parents agreed that I needed to make a decision that was in J's best interests. Indeed, that is what is required under the Family Law Act. In order to answer the question: what is in J's best interests, having regard to those competing proposals, there are a number of more specific questions that I need to answer, having regard to the Family Law Act. The relevant questions that I need to answer on the facts of this case are as follows:
a)Which of the proposals is most conducive to J having the benefit of a meaningful relationship with both parents? (Section 60CC(2)(a))
b)Has J expressed views relevant to the proposals and what weight, if any, should I place on those views? (Section 60CC(3)(a))
c)What is the nature of the relationship that J has with his parents and the other significant persons in his life, and what impact would each of the proposals have on this relationship? (Section 60CC(3)(b))
d)Having regard to the proposals, are there any issues about his parents' willingness, ability and attitudes about parenthood that bear on J being able to have a close and continuing relationship with each parent? (Section 60CC(3)(c)(i) and (4))
e)What is the likely effect on J of the changes that might flow to him from each proposal, especially in terms of separating J from one of his parents, or some other significant person in his life? (Section 60CC(3)(d))
f)What are the practical difficulty and expense issues that arise from each of the proposals, and do these issues substantially affect J's right to maintain personal relations and direct contact with both parents on a regular basis? (Section 60CC(3)(e))
g)Having regard to each proposal, what order is least likely to lead to further litigation? (Section 60CC(3)(l))
h)Does the presumption of equal shared parental responsibility in s.61DA apply to this case?
i)If the presumption does apply, what is the impact of each proposal on the requirement to consider time in accordance with s.65DAA?
I record that there are some questions that I do not need to answer in this case. There are no issues about J needing to be protected from abuse, neglect or family violence (s.60CC(2)(b)). There are no issues about the capacity of each parent to provide for J's needs (s.60CC(3)(f)), or of their maturity, sex, lifestyle and background (s.60CC(3)(g)). There are no cultural or family violence issues (s.60CC(3)(h), (j) and (k)).
Applicable Law
Even in a relocation case the orders sought are governed by Part VII of the Act. The objects and principles underlying Part VIII are set out in ss.60B(1) and (2):
(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):
e)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
f)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
g)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
h)parents should agree about the future parenting of their children; and
i)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The child’s best interests are paramount: s.60CA. How a child’s best interests are determined is set out in s.60CC. I must consider these matters. There are primary considerations set out in s.60CC(2):
(2) The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are additional considerations set out in s.60CC(3):
(3) Additional considerations are:
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;
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);
c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
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;
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;
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;
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;
h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
j)any family violence involving the child or a member of the child's family;
k)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
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;
m)any other fact or circumstance that the court thinks is relevant.
As I am required to make a parenting order, a presumption of equal shared parental responsibility applies, subject to the terms of s.61DA:
(1) When making a parenting order in relation to a child, 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.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
b)family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
As this section states, the presumption may be negated under subsection (2) if there are reasonable grounds to believe that there is abuse or family violence. The presumption may be rebutted under subsection (4) if it is not in the best interests of the child for there to be equal shared parental responsibility. The effect of subsection (4) is to require consideration of the primary and additional considerations in s.60CC(2) and (3).
If, as in many cases, the presumption of equal shared parental responsibility applies, either because that is what the parents agree to, or it is not negated or rebutted, then I am required to apply s.65DAA and to consider the child spending equal time, or substantial and significant time, with each parent.
(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.
Substantial and significant time
(2) If:
d)a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
e)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; and
the court must:
f)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
g)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
h)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:
i)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
j)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
k)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.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(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.
It is apparent from this section that, once again, I must consider what is in the child’s best interests (pursuant to s.60CC(2) and (3)) and what is reasonably practicable (as defined in s.65DAA(5)).
In my previous decisions of J & R [2007] FMCAfam 181, H & H [2007] FMCAfam 27, and M & K [2007] FMCAfam 26 I set out my understanding of the effect of this legislation on the law relating to relocation. There have been a number of later Full Court cases, and I discuss those below.
I adhere to the discussion in these earlier cases of the meaning of the term “meaningful involvement”, though I recognise that in the Full Court’s decision in Godfrey & Sanders (2007) FamCA 102 Kay J, sitting as the Full Court, made obiter comments at paragraph 36 suggesting a different interpretation. His Honour suggested that the legislation aspires to promote a meaningful relationship, not an optimal one, and that a diminution in the quality of the relationship does not necessarily mean it is no longer meaningful. I accept that the differences in approach are significant. One of the differences is that my interpretation of what constituted a meaningful relationship is based on the social sciences, as I set out in my earlier judgments. In each case it will be a question of assessing the nature and quality of the relationship between parent and child, and the degree to which the relocation diminishes that relationship. On the facts of some cases, the meaningful relationship is not diminished at all. An example of this is the decision of Dessau J in M & S [2006] FamCA 1408. In Godfrey & Sanders (2007) FamCA 102 Kay J obviously found that any post-relocation diminution of relationship was not, on those facts, significant. I very much doubt if His Honour meant his comments to apply generally. The children in that case were 11 and 7. But if the children were much younger, for example, relocation might have caused a greater diminution in the quality of the relationship between them and the non-relocating parent. It is also unfortunate that His Honour did not have the benefit of contrary submissions as to what constituted a meaningful relationship on the facts of that case.
It is also relevant to consider whether a meaningful relationship can be maintained through what has been described as “virtual visitation”. The term was used in two recent articles appearing in volume 36 Family Law Quarterly[1] and encompasses the use of telecommunications technology such as webcam and email. Innovation in telecommunications has resulted in children being able to communicate with their parents orally, visually, and in writing, almost at will. Virtual visitation orders are not uncommon, even in relocation cases. Dessau J in M & S (2006) FamCA 1408 accepted this form of communication at paragraph 93 of her judgment.
[1] Sarah Gottfried, Virtual Visitation: The wave of the Future Communication Between Children and Non-Custodial parents in relocation cases 36 Family Law Quarterly 475, Kimberly Shefts, Virtual Visitation: The next Generation of Options for Parent-Child Communication 36(2) Family Law Quarterly 303
On the facts of that case it was clearly appropriate as the child in question was not only familiar with but experienced in virtual visitation.
There is a real danger in relocation cases in putting too much weight on the availability of virtual visitation. Can a child have a meaningful post-relocation relationship with the non-relocating parent when that relationship depends on virtual visitation? The Family Law Council had some real concerns about virtual visitation at paragraph 4.12 of its Relocation report dated May 2006[2]. I doubt very much whether the social science approach to meaningful relationship, that emphasises emotional closeness and authoritative parenting in the diverse contexts of parent-child interaction, lends itself to virtual visitation.
[2] Family Law Council Report, “Relocation”, Canberra, May 2006.
From a legislative perspective, s.60CC(3)(e) seems to emphasise “personal relations” and “direct contact” rather than impersonal and indirect forms of contact. Moreover the definition of “substantial and significant time” in s.65DAA(3) emphasises not just the quantitative aspect of time, but the qualitative aspect of opportunities to be involved in daily routines and special events.
Virtual visitation, for some children, in some cases, may be a way of lessening the impact of relocation where relocation is otherwise in their best interests. The availability of virtual visitation is not a reason to allow relocation in and of itself.
A number of recent Full Court decisions on relocation establish the following principles:
a)If the presumption of equal shared parental responsibility applies, even in a relocation case the court must consider whether equal time or substantial and significant time is in the child’s best interests and is reasonably practicable: Morgan & Miles [2007] FamCA 1230 at paragraph 54, citing Goode & Goode (2006) FLC 93-286 and Newlands & Newlands [2007] FamCA 168; Taylor & Barker [2007] FamCA 1246 at paragraph 58.
b)There is no “right” to relocate, in the sense that there is nothing in the legislation which provides that a parent who has an existing order which provides that the child spend 50 percent or more of their time with that parent has a unilateral right to move the child: Morgan & Miles[3].
c)For the time being, the Family Law Act does not treat relocation cases as a special category of parenting orders. The court is deciding with whom a child should live and spend time: Morgan & Miles[4].
d)In a relocation case there are no presumptions either in favour or against relocation: Morgan & Miles:
74. The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtain such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.
[3] [2007] FamCA 1230 at at 55
[4] Ibid at 72
It is relevant to consider the issue of parental responsibility in the context of a relocation case. The Full Court in Morgan & Miles[5] at paragraphs 75-77 described it in these terms:
75. It is clear that if a parenting order for equal shared parental responsibility has been made prior to any parenting application involving a relocation, the parties have a primary duty under s 65DAC to determine jointly if proposed living arrangements for a child would make it significant more difficult for that child to spend time with the “left behind” parent.
76. If no order for equal shared parent responsibility has been made and s 61C governs the situation, the parties can exercise parental responsibility either jointly or severally.
77. The requirements of s 65DAC, properly observed, therefore require parents to consult and make a genuine effort to agree about a move which would make it significantly more difficult for the child to spend time with the “left behind” parent. The operation of s 65DAC, when applicable, clearly precludes a unilateral move by one parent without notice and consultation with the other parent.
[5] ibid
Section 60I requires parents to make a genuine effort to resolve their dispute with a family dispute resolution practitioner unless the exemptions available under that section apply. This applies to relocation cases as well: Morgan & Miles[6].
[6] ibid at 78-79
The impact of the most recent amendments to the Act in relocation cases has been described in the following terms in Morgan & Miles[7] at paragraphs 79-81:
[7] ibid
79. In considering whether the child should live with the parent who proposes to relocate a court:
· Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
· Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
· Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
· If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
· In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
· When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
· Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
·that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
·that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
·that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
·the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
· Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
80. It follows from my exposition of the legislation, that earlier core principles:
· that the child’s best interests remain the paramount but not sole consideration;
· that a parent wishing to move does not need to demonstrate “compelling” reasons;
· that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
· the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement, remain valid.
81. What the legislation now requires is:
· consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
· if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
The distance involved in a proposed relocation does not necessarily involve different considerations. The Full Court in Morgan & Miles[8] described it in these terms at paragraphs 91-92:
91. The artificiality of determining a parenting application involving relocation on the basis of distance is well demonstrated by the example given in the Family Law Council report (see paragraphs 2.28 to 2.32). This leads me to conclude that it is not distance per se which should be the determinative criteria. In many cases what is relevant is the consequence of the move or proposed move. The issues to be determined may be quite different for example, for an infant or toddler developing attachments, to those of older children; or for economically impoverished families where fuel costs may be unaffordable thus impeding maintenance of a meaningful relationship. Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non relocating parent particularly if the child has a history of living predominantly with the relocating parent, and spending time with the other parent where, with alternate arrangements, the child’s relationship with the non relocating parent can be maintained and fostered.
92. Sensibly, the legislation does not seek to define “local”, intrastate, interstate or international moves. Rather, it requires a judicial officer to consider, on a case by case basis, the effect of a move on the particular child in determining the overall parenting application (see particularly s 60CC(2)(d) and (e), and if applicable s 65DAA(1)(a) and (b), s 65DAA(2)(a) and (b) and s 65DAA(5)), and affords the opportunity to craft orders which are in that child’s bests interests.
[8] Ibid
In dealing with a relocation case, the court must consider the proposal for relocation as one of the proposals for a child’s future living arrangements. It is also relevant to consider other proposals and alternatives including, for example, that the parent opposing the relocation in fact relocate: U & U (2002) 211 CLR 238; (2002) FLC 93-112; Bolitho & Cohen (2005) FLC 93-224; Taylor & Barker [2007] FamCA 1246 at paragraph 53.
There is, in general, a preferred approach to applying the relevant provisions of Part VII of the Act in relocation cases. This is described by the Full Court in Taylor & Barker[2007] FamCA 1246 at paragraphs 62-63:
62. The legislation gives no express direction or guidance on this issue. However given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsection (2) (“primary consideration”) and subsection (3) (“additional considerations”) of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.
63. We make it clear, however, that a failure to follow what we see as the logical approach would not lead to appealable error unless such error arose from a failure to give adequate reasons or to have regard to the matters which the legislation requires must be considered.
The obligation to consider equal time or substantial and significant time in s.65DAA does not require the court to consider reasonable practicality if it finds that a proposal would not be in the child’s best interests. In Taylor & Barker[9] the Full Court expressed this in the following terms at paragraph 74:
74. In our view, the common sense construction of s 65DAA(1)(c), and also of s 65DAA(2)(d), must be that it is only necessary for a Court to consider whether it would be “reasonably practicable” for the child to spend “equal time” with each parent, or “substantial and significant time” as the case may be, if the Court has already concluded that it would be in the child’s best interests to spend “equal time” with each parent, or “substantial and significant time” (as the case may be).
[9] [2007] FamCA 1246
The obligation to “consider” equal time or substantial and significant time in the context of a relocation case clearly requires the weighing up of the advantages and disadvantages of a parent’s proposal to relocate against the advantages and disadvantages of the maintenance of the status quo: Taylor & Barker[10]. Each of the proposals needs to be considered through the framework of s.65DAA and its core concepts of “equal time”, “substantial and significant time”, “best interests” and “reasonable practicability”. In this regards the Full Court in Taylor & Barker[11] noted at paragraphs 82-83:
82. We also acknowledge that this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter, and that at least prior to the 2006 legislative amendments, the preferred approach was not to consider a relocation proposal separately from other proposals in relation to the child’s living arrangements.
83. However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.
[10] ibid at 75
[11] Ibid
But these sections do not mandate the making of orders in one or other of the terms, only that genuine consideration is given to them. The ultimate question is one of best interests: Goldrick & Goldrick [2007] FamCA 1260 at paragraph 43.
The likely response of the partner of the parent proposing relocation in the event that the court does not permit relocation is not a determining factor in these cases, but may be a factor taken into general consideration: Taylor & Barker[12].
[12] [2007] FamCA 1246
In some cases, the happiness or unhappiness of a parent proposing relocation may be an important consideration. Whilst clear evidence about this is preferable, sometimes happiness is a state of mind to be inferred from the evidence eg based on reasonable inferences. See Taylor & Barker[13]. However, the Act does not prescribe parental happiness, as such, as a factor in determining the best interests of a child: see the dissenting judgment of Faulks DCJ at paragraph 127. In any event, if parental happiness is a relevant consideration, it must surely be that the happiness of both parents is relevant.
[13] Ibid at 106 and 109
In some relocation cases, s.60CC(4) may be relevant. However the focus is always on a person’s capacity to parent. The Full Court in Goldrick & Goldrick[14] described it in these terms at paragraphs 40 and 41:
[14] [2007] FAMca 1246
40. The full terms of the subsections are:
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) 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; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A) If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
41. In our view, it is clear that, while the impact of any parent’s relevant actions should, if the evidence permits, be identified, the references to “fulfilled, or failed to fulfil responsibilities as a parent” and “…facilitated, or failed to facilitate” demonstrate that the actions of each parent in the relevant respects are to be evaluated for something beyond consequence alone; namely what those actions say of the person’s capacity to parent.
The framing of orders in relocation cases is important for the reasons set out by the Full Court in Sampson & Hartnett [2007] FamCA 1365 at paragraphs 9-14:
9. In many cases, a primary parent (a reference to the parent with whom a child has primarily lived before the litigation) will wish to relocate, but will say that she/he will not do so if the Court rules that relocation should not occur.
10. In another “type” of case, the primary parent may indicate an intention to relocate with or without the child, or prevaricate about his or her intention. In either of these type of cases, a court may conclude that a child should stay in a particular location. If the primary parent wishes to also stay, then the child lives with that parent. If the primary parent wishes to leave, the child lives with the other parent. Such rulings will properly include findings that each of the particular proposals is in the best interests of the child, if the circumstances activating the proposal come about. In these two “types” of case, directing an order to the issue of where the primary parent lives serves little or no purpose. The orders are better directed to parental responsibility for arrangements for a child, hence orders that a parent not remove a child from a nominated town; or an order that a parent return a child to a particular location, together with orders that if the parent also returns to that location, the child live with that parent; or if that parent does not return, the child live with the other parent.
11. While such orders may indirectly affect a parent’s freedom of movement, they do not direct a parent to discharge parental responsibility in a manner or in a location which is not one of the options put forward by one party at least, nor do they deprive a parent of choice about where he or she lives.
12. Consequently, such orders do not expose a parent to sanction if that parent chooses not to continue the anticipated parental involvement post-judgment. For example, the primary parent restrained from changing the residence of a child from a particular location following a case in which that parent proposed remaining as primary parent in such an event, is nonetheless free to hand over the child to live with the other parent. In other words, the primary parent, who by order will retain that position depending on his or her choice about where he or she lives, will “choose” the degree, if not the location of parental involvement.
13. Orders so limited in their impact on the freedom of choice of parents about the location, manner and degree of parental involvement are consistent with the law’s approach to family life. For example, leaving aside responsibilities imposed by criminal law, which apply to a parent whether separated or not, when parents separate, each is generally regarded as free to leave a child with the other to discharge the primary parenting role. No court order is necessary. As seen in the example above, even if after a contested hearing, orders establish a primary residence for a child with a particular parent, that parent is “free” to hand the child over to the other parent.
14. Not surprisingly, orders going further than the types so far discussed in their impact on the choice of a parent about the degree and/or location of his or her parenting have traditionally been avoided. There have probably been many reasons for this; concerns about power, whether intrinsically and/or from the shadow of s 92 of The Constitution; concerns about, even if within power, the extent to which a court ought dictate to parents the manner and place in which they discharge their responsibility; and consequent issues about enforceability.
The Full Court in Sampson & Hartnett[15] concluded at paragraph 25 that power exists to make orders effectively, though indirectly, restraining the movement of a parent. This means that the Act does empower orders to directly restrain a parent from relocation or to directly require relocation: paragraph 33, but see the discussion of the principles behind this conclusion at paragraphs 19-32. That power is found in s.114(3) of the Act, as the Full Court concludes at paragraphs 57-59:
57. If it is within power to order a person not to relocate, it would be surprising if it was not within power to order a person to relocate, although one would imagine the exercises of power to the latter effect would be even more rare, because the effect is more drastic. The person being ordered not to move at least has chosen that location as some stage and for reasons which one assumes at leats once existed. This contrasts with a person who may not wish to go some where and therefore the order is much more of an imposition on that person’s freedom.
58. However, we conclude there is power under s 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare, because:
(i) the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and
(ii) in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent’s choosing.
59. The prospect of ordering a parent to relocate and in effect “parent” in a situation not of that parent’s choosing, legitimately gives rise to concerns, particularly in respect of enforcement. What if the parent, in response to such an order, simply hands the child to the other parent, perhaps in circumstances such as in the instant case, where for whatever reason, there is not a well-established relationship between the child and the other parent? Will the primary parent be punished? The fact that such vexing questions arise does not mean that the power does not exist and may be rightly exercised at times. Enforcement is discretionary and may be rare in the situation exemplified. On the other hand, enforcement may be appropriate if a primary parent ordered to relocate, simply did not do so.
[15] [2007] FamCA 1365
Before making an order requiring a parent to relocate, the court must be satisfied that there is capacity to do so. The Full Court in Sampson & Hartnett[16] described this at paragraph 75:
75. To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move. One would therefore reasonably expect a close analysis of the moving party’s capacity and/or the other parties’ capacity to provide for such practicalities having regard to the orders proposed by the court. It is probably only in the circumstance of significant wealth of both parties that it might reasonably be inferred that the practicalities of life could be met without detailed inquiry.
[16] ibid
In a minority judgment, Kay J doubted whether there is a power to require a parent to relocated other than in the most exceptional circumstances[17].
[17] I bid at 121
The Evidence
Both the father and the mother provided affidavits that contained their evidence, and gave oral evidence. So too did the mother's husband, Mr G, and the father's partner, Ms H.
In addition I was assisted by way of the Family Report that was prepared by Mr L, a Regulation 8 Family Consultant. Mr L is a psychologist who interviewed the parents, their respective partners, and J, and provided a report to the Court dated 10 September 2007. Mr L provided evidence which was, in my opinion, independent, expert evidence. He gave oral evidence and was cross-examined. I provide an overview of his evidence, but I will then deal with his evidence, as well as the evidence of the parties and the other witnesses by reference to the questions that I have set out above.
The Family Report and the Evidence of the Family Consultant
Paragraphs 36-39 of the Family Report succinctly sets out the Family Consultant's observations and his evaluation arising:
36. It is clear that J has benefited from the care and attention provided to him by the adults in his life. Apart from indicating anxiety about the possibility of spending less time with his father he appeared to be emotionally secure. He is happy in his mother’s care, and he looks forward to spending time with his father.
37. Nothing emerged from this assessment to suggest that J’s parenting arrangements should be changed. A productive status quo seems to have been established which meets the child’s need to be involved with both parents in an environment free from exposure to conflict and hostility. If it is determined that J should live with his father it was apparent that Mr Taylor would be able to parent for him with affection and care. But, given the attachment the child has for his mother, and her role as his primary carer, the positive relationship he has with Mr G and the connection he has with T, this assessment indicates that such a major change is the least desired option.
38. It is considered that J has a well established and enduring perception of his father. If Ms Glover were to move away, and thus relegate her son’s involvement with his father to school holidays, J would be able to maintain a clear recollection of Mr Taylor and retain the value he now places on him. J was effusive about his father and about the activities they pursue together. He has plainly identified with him. He placed him at the top of his list of preferred people, and he enthusiastically interacted with him when both were observed together.
39. Notwithstanding J’s well developed perception of his father and his probable capacity to retain his father’s significance and importance, the child would have a considerable adjustment task, and experience loss, if he were to be moved to Perth. He is emotionally close to Mr Taylor, he is used to weekend contact with him, and he indicated he would like more time with him. It is in the child’s interest to maintain a regular and predictable involvement with his father, an adult figure to whom he is significantly attached. J spent a large proportion of his time with Mr Taylor during his first five years. Thus, he would have developed a significant attachment for his father, and the basis for his present relationship would have been formed.
Mr L's concluding statement at paragraph 40 of his report expresses concerns about how the relocation to Perth might threaten what he perceived to be a current well-balanced family dynamic:
40. Mr Taylor questioned the imperative nature of Ms Glover’s desire to move. He believes that Mr G is ready to leave the military and can therefore remain in NSW. Judicial scrutiny may determine the reality of Mr Taylor’s claim. It is noted, however, that Mr G said that his family may return to N if “J could not handle being away from his dad”. This statement suggests some measure of flexibility in Mr G’s commitment to his family’s continued life in Perth. But, if the Court finds that Ms Glover has no choice but to move to Perth, then J’s opportunity to develop an already solid relationship with his father would be diminished. He would feel his father’s absence between school holiday times and his relationship with his mother may, consequently be undermined. He has already told Ms Glover that it is unfair that he has to spend more time with her than with his father. Thus, depending on the strength of the child’s feelings, the present well balanced family dynamics may be threatened.
At other parts of his report it is clear that Mr L had noticed, and was clearly impressed by the ability of both J's parents to communicate with each other regarding J and his needs, and their relatively amicable relationship. He was also clearly impressed by J who he described as "an articulate and intelligent seven year old".
Mr L's oral evidence was also very useful. He described J as follows, in this extract from transcript:
J is indeed an impressive eight or nine-year old. He is articulate, he has confidence, he appears not to have any - suffer from any particular anxieties, and that to me indicates that he is a child that has gone through the normal attachment processes and has had the benefit of parents that love him and care for him and nurture him. When he spoke to me he answered my questions quite endearingly in some ways. He nominated his father as his favourite person and his mother as second favourite person, and indicated he has a great time with his father during the contact - did I say "contact"? No - time he spends with the father and that he would like to spend more time with him. And, if he does have worries, his worry is that he may not see his father as much in the future.
I specifically asked Mr L to explain to J's parents, and myself, the impacts of relocation to Perth. The transcript of his answer is set out below:
My view is that if J were to have to forego the third weekend arrangements he would notice the difference and need to adjust to his father's absence. However, I think the child's relationship with him is sufficiently substantial for him to maintain a perception, knowledge and understanding of who is father is and the importance of his father to him, if he were to be living in Perth. Having said that though, his departure to Perth would present for him, I think, a difficulty in regard to him foregoing the regular involvement he has with his father.
Mr L referred to the possibility of J "acting out", and I asked him what he meant by that. He said:
Well, "acting out" is sort of a generic term that refers to behaviour that is a consequence of a child being in an environment they find difficult to negotiate and they feel perhaps unloved or misunderstood or deprived if there's not an object, and that could be behavioural problems at school, possession(?), bedwetting, sleep problems; in a general sense, those issues.
It is quite apparent that in his oral evidence, the Family Consultant maintained his concerns about J coping with the move to Perth. However, it was also quite apparent from the evidence that he thought that removing J from his mother's care would be the least desirable option, because she clearly has been his primary carer. He explained that if J were to leave his mother's care, his adjustment task would be bigger than if he were to live with his mother and away from his father. Nonetheless, he added that he was of the view that if it became necessary for J to stay with his father, his father would have the capacity to meet his physical and emotional needs.
Both parents had the opportunity to ask questions of the Family Consultant. The mother was concerned that if she remained in N, and Mr G took up his posting to Western Australia, there would be no male figure in the home on a regular basis. She was clearly concerned about this, and put this concern to Mr L. His answer was that he observed J to have a good relationship with Mr G and he was sure that J would miss him if he was not around. However, he thought the more important question was J's relationship with his father, and the ability to continue that. There was little doubt that the Family Consultant prioritised J's relationship with his father, over that of Mr G.
I asked the Family Consultant to comment on the mother's proposal for J to spend time with his father if a relocation were permitted. Specifically, I asked whether the proposal meets the criteria referred to in paragraph 39 of his report for J to "maintain a regular and predictable involvement with his father". He explained, that given the child's relationship with his father and his reliance on his weekend involvement with him, he did not think that the program of involvement is predictable enough to satisfy the child's need to maintain his relationship with his father. However, he did add that if J had to go, he would probably eventually adjust.
I accept the evidence of the Family Consultant. His oral evidence, in particular, was very helpful to the Court and, I suspect, to J's parents. His evidence was not seriously challenged, except in relation to various statements made by J expressing a view, to which I will shortly refer. The recommendations contained in the Family Report, and his observations of this family, is significant evidence in this case.
Meaningful Relationship
Which of the proposals is most conducive to J having the benefit of a meaningful relationship with both parents? It is beyond doubt that J has a meaningful relationship with both parents, at this time. Clearly, J's father believes that a relocation to Perth by J and his mother jeopardises this meaningful relationship. The mother is not concerned, and believes the meaningful relationship can be continued even though face-to-face time is reduced, particularly with other forms of communication are implemented are implemented.
Does the reduction in the frequency of face-to-face time necessarily result in a reduced meaningful relationship between J and his father? The proposed change is a very significant one. In her evidence the mother accepted the correctness of the father's records of the time that he has spent with J since October 2004, this record being the annexure RT13 to the father's affidavit filed 18 April 2007. Indeed, the mother acknowledged that it was possible that the father had understated the time he spent with J in this document. Based on my examination of this document, it indicates that J has never experienced a period longer than 21 days between spending time with his father. This is a credit to both J's mother and father who, cumulatively, have spent many hours travelling to facilitate this. I have no doubt that both the frequency, and the duration, of J's time with his father has led to the meaningful relationship that exists between them. The Family Report speaks in glowing terms of this meaningful relationship.
The mother's proposal would convert the current arrangement from at least once every three weeks to once every school term, or about 12 weeks. This is a dramatic change for J that, in my opinion, is not conducive to the ongoing benefit to him of the meaningful relationship that he enjoys with his father. The mother's evidence tended to minimise the impact on J, and his relationship with his father, of the change she proposes. In a case in which it is very difficult to find anything to criticise about how J's mother and father have parented him, or how they have conducted these proceedings, the mother's minimisation of the adverse impacts on J of her proposal was one of the few instances where I thought she lacked insight.
Of course, J's meaningful relationship with his father would be preserved if his father relocated to Perth. He gave evidence that he had considered this possibility and had ruled it out for two reasons. First, he is involved in what appears to be a well-established, successful family business operating in W which, he anticipates, he will take over in time. He was concerned not just about the dislocation to these plans that would arise as a result of moving to Perth, but the impact it would have on both his father, and his brother, both of whom were involved in the business. Second, he gave evidence about what he considered to be the extensive family support network that both he and J enjoy in W as a result of his parents, siblings and extended family. Indeed, he gave evidence that J has more time with the mother's extended family in W when J is with him, than J does through his own mother. Accordingly, the father's evidence was that relocating to Perth to be close to J was not an option for the reasons set out above. I accept the reasons the father gives as being sincere and compelling from his perspective. The reasons were not seriously challenged by the mother.
I would share the same concerns about J's meaningful relationship with his mother if she chose to relocate to Perth without J. The infrequency of time proposed by the father on his proposal, and the unsatisfactory nature of the relationship that can be maintained through virtual visitation such as telephone, email and web cam, means that his meaningful relationship with his mother would also be disrupted. Whilst I understand her reasons for wanting to be with her husband in Perth, if she left without J I would be concerned about the meaningful relationship that exists between them.
If the mother moved to W with J, then the meaningful relationship that both parents have with him would be preserved. The mother gave evidence that this is not an option for her. The evidence that she gave about the relationship that she has with her mother, father and brother indicates that these relationships are fractured. Indeed, there was some evidence that indicates that Mr G and the mother's brother were involved in an unfortunate physical altercation. This merely demonstrates the depth of the relationship problems that exist between the mother and the brother. She is not presently on speaking terms with her mother, and sees her father quite rarely. Accordingly, from the mother's perspective, the presence of her family in or around W is actually a reason, from her perspective, of not moving there. The family support that might otherwise be a good reason for moving to W is, for all practical purposes, illusory.
I conclude that the mother's reasons for not wanting to move to W, and the father's reasons for not wanting to move to Perth are both reasonable, and valid under the circumstances. Whilst both of these options preserve a meaningful relationship between J and his parents, they are not viable ones on the evidence before me and I am not satisfied that the parents would make these moves even if I ordered them. For all practical purposes, therefore, I rule out these alternatives.
The alternative of J moving to Perth with his mother presents an unacceptable impact on the benefit he currently enjoys of a meaningful relationship with his father. The alternative of J's mother moving to Perth, and J moving to live with his father in W presents an unacceptable interruption to the benefit he has of a meaningful relationship with his mother.
Thus, viewed purely from the perspective of the benefit to him of a meaningful relationship with both parents, the best alternative from J's perspective is that he remains in N with his mother. In her evidence, the mother acknowledged that she would not relocate to Perth without him. That is clearly not her preferred position, but it was her realistic position.
Even though meaningful relationship is categorised as a primary consideration under s.60CC(2), it is important to examine the other additional considerations because these are inextricably interwoven with the concept of meaningful relationship and could, in theory, result in an analysis of considerations leading to another conclusion.
J's Views
Has J expressed views relevant to the proposals, and what weight should I place on these views?
The Family Consultant's oral evidence summarises the views expressed by J during his meeting with the Family Consultant. The transcript records as follows:
I don’t think these views indicate too much except that he's got a package of people that care for him and love him and who he appreciates, and, although he's put his father first, it doesn't mean that he's furlongs ahead of his mother. And I think that this view may change from time to time, depending on how the child's feeling about either parent. Nevertheless, they were the responses at the time of the interview. He says that his view is he likes to spend time with his father, and he expressed a view that he was happy but that when he worries he worries about not seeing his dad often.
An issue arose as to how much weight I should put on these views. Mr L believed that as J is a very mature seven year old with a level of maturity beyond his years, he is at an age where his views should be taken into account. The father strongly believed that this should be the case, particularly as the views expressed by J to the Family Consultant were, according to the father, consistent with the views that J had expressed to the father. The mother, however, argued that very little weight should be placed on his views principally because of his age, but also because he had expressed an inconsistent view, ie that he does not like to travel. Mr L agreed that J was expressing what seemed to be two opposing views – on the one hand, a desire to spend more time with his father, but on the other hand, a dislike of the travel. The Family Consultant explained it in the following terms:
I guess J holds, like any of us, two opposing views which create some tension but don't stop us from wanting to do something … J finds travelling to Y boring, not something he wants to do, it takes too much time, but he likes to see his dad; so he holds these two things together. And, as I understand it, his Honour needs to consider the views of children in these matters and put some weight on how much he should take notice of these views.
I accept that J has said certain things to both his father, and the Family Consultant, which could be construed as a view on his part that does not favour any proposal which sees him spending less time with his father. However, because of J's age, I am not prepared to place significant weight on these views. I take them into account together with all the other considerations to which I refer in this case.
The Nature of J's Relationships
What is the nature of the relationship that J has with his parents, and the other significant persons in his life, and what impact do each of the proposals have on this relationship? It is clear from the evidence that J has a good relationship with both parents, their respective partners, and T. It also seems as if he has a good relationship with the extended family, on both sides, but this relationship is not nearly as strong as the others referred to.
Relocation to Perth maintains his relationship with his mother, his stepfather Mr G and T, but comes at the expense of J's relationship with his father, and the other extended members of his family.
I accept that Mr G is a significant person in J's life and I am concerned about the impact on this relationship if J either remains in N, or comes to live with his father in W. However, the fact is that Mr G will be deployed to the Middle East for a period of six months next year. His evidence is that he will have no physical contact with his family once he is deployed, and the only communication will be electronically about once every three weeks. Thus, J's relationship with Mr G is going to be affected by his deployment whether or not J relocates. This fact is unaffected by any of the proposals.
One of the reasons that the mother advanced for moving to Perth was that she, J and T would have the benefit of the support from
Mr G's family whilst he was deployed. On the facts of this case Mr G's family are not significant other persons in J's life. The mother's evidence is that J has met Mr G's family no more than four times, and communicates with them by telephone more frequently.
In reality, the most significant relationships for J are with his parents and T. Clearly the alternative that sees the least impact on his relationships is the status quo, ie J, his mother, and T remain in N.
Attitudes About Parenthood, and Willingness and Ability to Facilitate Relationship
Having regard to the proposals, are there any issues about J's parents' willingness, ability and attitudes about parenthood that bear on him being able to have a close and continuing relationship with each parent? I find there to be no such issues in this case. I am satisfied that whatever order I make both parents will faithfully adhere to it, in the interests of J.
The Impact of Changes on J
What is the likely effect on J of the changes that might flow from each proposal, especially in terms of separating him from one his parents, or some other significant person in his life? There is no doubt that maintaining the status quo results in minimal or no change to J in a direct sense. In an indirect sense, however, I have no doubt that the mother would be deeply disappointed and this could have an impact on her relationship with J and, to a lesser extent, her ability to parent him. If the mother cannot relocate to Perth because J will not be able to go with her she will miss out on all the benefits that she thought would flow to J, T, Mr G and herself as a result of that move.
In the mother's evidence she felt that there are a number of clear benefits to J, and herself of course, of moving to Perth. I briefly identify and discuss these perceived benefits:
a)The mother gave evidence about the benefit of having the support of the father's extended family in Perth, particularly whilst he was deployed overseas. For example, they would be able to provide practical assistance in caring for J and T, as well as emotional support. The reality is, however, that I have no evidence about this. Thus, for example, I do not know about whether Mr G's family is ready, willing and able to provide this support and if so, to what extent. I had no evidence about, for example, where they lived in relation to where the mother proposed to live. All I know is that J has only met these people four times, and I infer that if the mother has met them more often than that, it is not significantly more often.
b)The mother felt that a move to Perth actually results in less travel time for J, and freeing up his weekends to undertake other weekend activities, including sports, scouts, playing with friends, etc. I think the mother has seriously minimised the potential impact on J of transcontinental travel, particularly once the novelty has worn off and he becomes older and less tolerant of travel. Moreover, the mother agreed in cross-examination by the father that there really was no reason why J could not be playing weekend sports, attending scouts, and playing with friends under the current arrangement. Indeed, the evidence indicates that the mother was asserting benefits to J that he could easily enjoy now but which, for some reason, he has not enjoyed to date.
c)In her evidence she asserts that she has some friends already in Perth, and there are better educational opportunities there, but this evidence was tenuous, and not credible. There was no submission or evidence, for example, that J did not have educational opportunities whilst living in N, or that the mother did not have a network of friends where she currently lives.
d)The mother asserted that in Perth, as a result of Mr G's posting, they would have the assistance of various Defence community organisations, but the evidence indicated that the family derives these benefits wherever they live, for as long as Mr G is a member of the Defence Force.
e)She also asserted that they would be better off financially in Perth because Mr G would be earning more money. Not only did I not have evidence about this, but indeed, the preponderance of the evidence from Mr G indicated that there is the distinct possibility that he could leave the Navy within 12 to 18 months, and whilst he would then be hopeful of getting employment in Perth, it could hardly be said that there was certainty of an improved financial position.
In short, the positive benefits to J that the mother asserts logically flows from the relocation to Perth have simply not been established. Indeed, the evidence leads me to conclude that the perceived benefits are probably quite illusory.
Even if I am wrong, however, the positive benefits that would be said to flow to J as a result of the proposed changes would not, in my opinion, outweigh the disadvantages to him of changing schools, changing friends, changing communities, as well as the significant change to his relationship with his father.
I shall need to consider the possibility that J will come to live with his father in W. This is a significant changed in his life. It will only occur if the mother moves to Perth without J. Whilst this is the least preferred alternative, I believe from all the evidence that J would cope with the changes. The evidence indicates that Ms H will become quite involved in his life. She is willing to do so. J will have the direct support of his father and Ms H, as well as the availability of the broader support of the extended family networks on both sides of the family.
Practical Difficulty and Expense Issues
What are the practical difficulty and expense issues that arise from each of the proposals, and do these issues substantially affect J's right to maintain person relations and direct contact with both parents on a regular basis? Again, the status quo seems to be the proposal that presents the least change to the current level of difficulty that J's mother and father experience in facilitating his time with his father. It forms the baseline, so to speak, of practical difficulty and expense. All the other proposals will have the tendency to increase this. The mother argues that relocation to Perth means fewer trips, but they will be over much, much longer distances. She asserts that the expense to her of funding two-thirds of the cost of the travel from Perth to W is roughly equivalent to the current cost she incurs in facilitating J's time with his father. I had no specific evidence about this and I am sceptical about the correctness of what the mother asserts. I am concerned about the practical reality of the mother's proposal which involves her funding two-thirds of the cost of J's travel. There was no evidence before me of the actual cost. In view of Mr G's evidence about his likely resignation from the Navy, in due course, there has to be an element of financial uncertainty about their household. I take judicial notice that the cost of travelling during school holidays is higher than the cost at other times. On balance, having regard to this consideration, the status quo is the one that creates the least difficulty and expense for both parents, and has the least impact on J's relationship with his father. If, however, J lived with his father in W, and had to travel from there to Perth, I am more satisfied about the financial stability of the father, and his own capacity to fund his share of the costs of travel.
Order That Is Least Likely To Lead To Further Litigation
Having regard to each proposal, what order is least likely to lead to further litigation? I note that there appears to have been no problems with the current arrangement. Any proposal that involves J in transcontinental travel involves the risk of future litigation. My experience in this jurisdiction, both before my appointment and afterwards, tends to suggest that the more complex the arrangements for a child to spend time with a parent, the more likely it is for problems to arise. For example, the practical reality of J travelling between his father's home in W and his mother's home in Perth is that he would have to get from either home to the airport, travel between capital cities, change planes at Sydney to then travel to W, and thereafter travel to his father's home. Changing financial circumstances might cause a parent to revisit a commitment to pay their share of the cost of travel. The risk of contravention applications is a real one. As J goes through developmental stages, some of the issues involved in complex travel arrangements are exacerbated. This raises the spectre of applications to vary the orders, as well as possible contravention applications. I believe that maintaining the status quo is the alternative that presents the least likely prospect of future litigation.
Any Other Relevant Fact or Circumstance
Is there any other fact or circumstance that is also relevant in the present context? It is relevant to consider the circumstances of Mr G's posting to Perth and its implications on the mother, J and T. It is clearly the mother's preferred position that she be allowed to relocate to Perth with J, to be with her husband during this posting, and notwithstanding the fact that he will be deployed overseas for six months. One can readily understand and sympathise with her desire as it enables her to keep her new family together. As the evidence was presented, however, it became quite apparent that Mr G could still be posted to Western Australia, and this would not necessarily require the mother and her children to move there with him. Indeed, the totality of the evidence creates the impression that whilst the posting to Western Australia was a necessary incident of Mr G's position in the Royal Australian Navy, coincidentally it is also the state where his family lives and where he would like to remain. The impression I formed is that relocating to Perth, from the mother's perspective, was not just because of her husband's posting, but it would fulfil what I would reasonably infer was a desire to do this quite independently of the posting.
In the Family Report the Family Consultant raised as an issue whether, in fact, it was imperative for the mother to relocate to Perth based on Mr G's posting. This became an issue in this case. I had the evidence of Mr G about his posting, as well as tendered documents originating from the Department of Defence. There is no doubt that Mr G was posted to Western Australia, and that he would be deployed to the Middle East, and all of this was a necessary consequence of his position with the Navy. However, the evidence indicates that he could have requested a deferral of this posting on compassionate grounds and, for example, requested a posting somewhere where it would not be necessary for his family to relocate. However, a posting request on compassionate grounds would, at most, result in a deferral for a period of up to 12 months.
I was provided with very little evidence relating to the process leading to his actual posting, but the documents produced by the Department of Defence clearly indicate that in all posting considerations, a sailor's personal preferences or desires are given a high priority. I had no evidence about what these preferences or desires were stated to be.
The evidence also indicated that pursuant to what was described as the "Family Stability Initiative for Defence Force", as Mr G was a member of the Defence Force with dependants he would be entitled to travel unaccompanied to his posting whilst his family continued to get a rental allowance to occupy a service home, and he would be entitled to six reunion visits per annum, subject to operational requirements.
In other words, Mr G's conditions of service in the Navy expressly contemplate and provide for the alternative that his family remain in N whilst he is in Western Australia, and facilitates his ongoing relationship with them.
In evidence the mother indicated that she did not think that six flights a year was an adequate time for her to spend with her husband, nor for her husband to spend time with T. The dilemma that is raised in these cases, of course, is that the reverse proposition is equally true – for J to see his father six times a year is equally unacceptable for the child.
Mr G gave evidence that if the mother stayed in N, once he completed his posting in Western Australia he could be posted back to N. He expected that he would have to stay in Western Australia for 12 months, six of which would be overseas.
Mr G gave evidence that he has 25 days annual leave and that his normal working week is typically five days, with every second Friday taking a half day. He agreed that on these weekends, in theory, he could travel back to N, but he had real concerns about whether it would be necessary for him to request leave in order to take advantage of free travel. In other words, he was not sure whether the free travel benefits could be used on weekends, or whether he would need to take leave. The documents produced in evidence by the Department of Defence shed no light on this issue.
It was clear from Mr G's evidence that there was a real chance that he would resign from the Navy after his deployment to the Middle East and that he would then prefer to stay in Perth. The evidence also indicated, however, that if he indicated that he wished to leave the Navy, the Navy would try to retain him and that one of the scenarios was that he would remain in the Navy provided he was posted back to N.
By way of overview of this evidence the reality seems to be that during the next 12 months Mr G will be absent overseas for six months and at other times will have the opportunity to take advantage of service benefits that enables him to travel back to N to be reunited with his family up to six months in a 12-month period. When he is not deployed on a ship overseas he works regular hours and has accumulated leave benefits. He could be posted back to N after his posting to Western Australia and, indeed, as a condition of remaining in the Navy after the end of his normal period of service he could also negotiate to be posted back to N.
One of my concerns in this case has been the impact of any order I make not just on J and his father, but on J's mother and his half brother T. Having regard to the evidence above, I am far less concerned about the impact of not permitting relocation and preserving the status quo because I can be reasonably confident that the Glover family's relationship can and will be maintained notwithstanding the posting and the deployment. This makes the decision to not permit J's relocation a slightly easier one to make. It is another factor that I take into account, but it is not as significant as the other factors to which I have referred above. It is not in J's interest that he be permitted to relocate with his mother to Perth.
Presumption of Equal Shared Parental Responsibility
There was no issue raised by either parent about this issue. Clearly the presumption of equal shared parental responsibility does apply. There is no evidence to indicate that it should either be negated under s.61DA(2) because of abuse or violence, or rebutted under s.61DA(4) because it was not in the best interests of J.
Considering Equal Time or Substantial and TS
Neither party suggested that equal time should be applied in this case, so s.65DAA(1) does not apply. I am required to consider whether substantial and significant time is in J’s best interests, and whether it is reasonably practicable: s.65DAA(2). The current arrangement is, for all practical purposes in this case, a well established substantial and significant time arrangement in which J has thrived. It is both in J’s best interests and is reasonably practicable. If the mother relocates to Perth with J this will disrupt this well established substantial and significant time arrangement. If the mother relocates to Perth without J, it has the same practical result viewed form the perspective of substantial and significant time. It is clearly not the best option as the time J would have with his mother is not, in my opinion, substantial and significant time. As I find that substantial and significant time between J and his father is both in his best interests and reasonably practicable, it follows that the best proposal in this regard is in which J remains in N with his mother.
Conclusion
The preponderance of the evidence indicates that the best outcome from J's perspective is that his mother and J remain in N. However, should she decide to move to Perth anyway, J will need to live with his father in W. This is not the best alternative and I doubt if it is the alternative that the mother will choose, based on her own evidence. Nonetheless, she will have that choice.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Lisa Molloy
Date: 18 December 2007