Godfrey & Sanders
[2007] FamCA 102
•23 February 2007
FAMILY COURT OF AUSTRALIA
| GODFREY & SANDERS | [2007] FamCA 102 |
| APPEAL – CHILDREN – Relocation – Appeal against orders of Federal Magistrate which prevented the mother relocating with the children from country Victoria to Brisbane – Father spent time with children every third weekend and periods of holidays, with no desire for an increase – Mother proposed to set aside proceeds of sale of her new husband’s home as a travel fund so that children could spend time with the father almost as frequently as before the move – Federal Magistrate considered the mother unlikely to keep her pledge and that it would not be in the children’s best interests in any case when neither party had any other assets or income of significance – Federal Magistrate considered that the children’s ability to have a meaningful relationship with their father would be at risk if they spent less time with him. HELD – the legislative changes wrought by the Family Law Amendment (Shared Parental Responsibility) Act 2006 do not cast an onus of proof on the relocating parent and the child’s best interests remain the paramount consideration – The evidence in this case indicated that the children would retain a meaningful relationship with their father if relocation were permitted provided some monies were set aside to secure regular travel – Federal Magistrate failed to adequately explore the possibilities of different arrangements for the children to spend time with their father as described in A and A: Relocation approach (2000) FLC 93-035 – Children to travel to Victoria four times a year and the father come to Brisbane twice a year if he so desires – Appeal allowed – Discretion re-exercised. |
| Family Law Act 1975 (Cth) |
A and A; Relocation approach (2000) FLC 93-035
AMS v AIF (1999) 199 CLR 160
M and S (formerly E) [2006] FamCA 1408
| APPELLANT: | MRS GODFREY |
| RESPONDENT: | MR SANDERS |
| INDEPENDENT CHILDREN’S LAWYER: | JACQUELINE BILLINGS |
| FILE NUMBER: | DGM | 1584 | of | 2002 |
| APPEAL NUMBER: | SA | 69 | of | 2006 |
| DATE DELIVERED: | 23 FEBRUARY 2007 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | THE HONOURABLE JUSTICE KAY |
| HEARING DATE: | 15 FEBRUARY 2007 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 19 OCTOBER 2006 |
| LOWER COURT MNC: | [2006] FMCA 532 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | MR WILLIAMS |
| SOLICITORS FOR THE APPELLANT: | ROBIN HARRISON & ASSOCIATES |
| COUNSEL FOR THE RESPONDENT: | IN PERSON |
| INDEPENDENT CHILDREN'S LAWYER: | MS BRENNAN |
Orders
The appeal be allowed.
Order 1 of the orders made by Federal Magistrate Riley on 19 October 2006 be set aside.
Upon the mother placing the sum of $20,000 into an interest bearing bank account to be drawn down only for the purposes of funding the travel referred to in these orders, and upon the mother providing the father with details of the account number and the institution where the account has been opened, the mother be permitted to relocate to Brisbane with the children T born in June 1995 and C born in August 1999.
That upon the mother relocating to Brisbane with the children paragraphs 4, 11 and 12 of the orders made 28 February 2003 be discharged.
That upon the mother relocating to Brisbane the father spend time with the children as follows:
(a)for five consecutive nights in the Queensland first term school holidays;
(b)for nine consecutive nights in each of the Queensland second and third term school holidays;
(c)for ten consecutive nights in the Queensland long summer school holidays commencing in each alternate holidays on a day between the last day of the school term and 24 December and in the next summer on the first Thursday in January;
(d)in the event that the father is in Queensland at any time then on such dates and between such times as may be arranged between the parties and in any event on not less than two occasions in each year for a period of no less than four consecutive days on each occasion;
(e)in the event that the father changes his place of residence to a place from where it is convenient to enable the children to readily spend more time with their father then as may be agreed between the parties and in the event that the parties are unable to agree the father be at liberty to apply for orders to increase the amount of time that the children should spend with him.
That the father be at liberty to communicate with the children
(a)by telephone or video link via the internet at all reasonable time.
That the mother be responsible for the payment of
(a)to enable the children to travel to and from Melbourne on four occasions each year; and,
(b)to enable the father to travel to and from Brisbane on two occasions each year
In order to facilitate the acquisition of low cost airfares the parties are to communicate with each other well in advance of any proposed contact period to determine a range of dates that may be suitable for the contact to take place and the time each flight is to occur, the flight times to be arranged, where possible, to maximise the time the children might spend with their father on any day they are due to travel.
In the event that the father commences to reside in Brisbane then the mother shall be at liberty to draw down the balance of the monies held in the investment account earlier referred to in these orders. Otherwise the said monies are to remain in the account to be applied only in accordance with these orders for the provision of necessary airfares to enable the children to spend time with their father and the father to spend time with the children.
The parties be at liberty to apply to a Federal Magistrate for further directions or orders necessary to implement these orders.
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 69 of 2006
File Number: DGM 1584 of 2002
| MRS GODFREY |
Appellant
And
| MR SANDERS |
Respondent
REASONS FOR JUDGMENT
This is the mother’s appeal against orders that were made by Riley FM on 19 October 2006 restraining her from relocating the residence of two children, T and C beyond 200 kilometres from the Melbourne Central Business District. The mother’s appeal is supported by the Independent Children’s Lawyer.
I heard this appeal sitting as a single judge of the Family Court pursuant to arrangements made under s 94AAA(3) of the Family LawAct 1975.
The proceedings before the Federal Magistrate consisted of the father’s application seeking the restraint that was granted and the mother’s application seeking permission to relocate to Brisbane with the children and setting out proposals for the time that the children should spend with their father in the event that the mother was allowed to relocate.
Background
The parties are the parents of T born in June 1995 and C born in August 1999. The mother also has two other children from a previous relationship living with her, namely L born December 1990 and K born July 1992. L and K have no relationship with their own father.
The parties to this appeal began to live together in March 1992, were married in June 1994 and separated in November 2001. K was born several months after the parties commenced to live together.
The parties divorced in May 2003 and in November 2003 the mother married Mr Godfrey. Throughout her marriage to Mr Godfrey the mother has lived at M. The father lives at K, some 1½ hours distance by road from the mother’s home.
Several months after the parties separated the father commenced to regularly see the children. There were orders made by consent on 28 February 2003 that provided for the children to reside with the mother and for the father to have contact with them:
i. every third weekend;
ii. from Monday to Sunday in the first school term holidays;
iii. from Good Friday until Easter Monday in each alternate year;
iv.for eight nights in each of the second and third school term holidays; and,
v. for nine days in January.
As at the time of the trial in September 2006 that contact had been regularly exercised in accordance with the orders.
At the time of the trial the mother was receiving minimal child support for all of the four children in her care. She and Mr Godfrey were both unemployed and were anxious to move to an area where they could both find employment. The mother was keen to move to a warmer climate and to a city where there was an established congregation of her particular church. The mother and the father had long been members of the church although the father had left the church in May 2001. The mother, Mr Godfrey and the children continued to be members of the church and the father expressed no objection to that membership. The Federal Magistrate accepted that the branch of the church in Brisbane had a congregation and facilities that would make it more congenial for a young family than the church in Melbourne or in O.
The father was self-employed mowing lawns. He had a small clientele of about 60 clients. He indicated that his obligations to his clients made it difficult for him to increase the amount of contact time with his children over the school holidays. He indicated further that he was perfectly satisfied with the amount of contact that he was presently having, namely once every three weeks plus the school holiday contact, and was anxious to maintain that regular and frequent contact without increasing it.
In her application the mother proposed that she would arrange for the children to fly down from Brisbane to see their father on the last weekend of each month, plus on four or five occasions during the various school holiday periods. She indicated that she would be responsible for the necessary airfares and would fund them from an anticipated $60,000 being the proceeds of sale that Mr Godfrey expected to receive from selling his home in M.
Neither she nor Mr Godfrey appeared to have any other capital or income apart from social security and meagre child support payments to support themselves and the four children.
In the course of the proceedings the mother put forward an alternate proposal that in lieu of flying the children down on the last weekend of each month, the children would be sent down for two long weekends during the year in addition to the school holiday trips, such weekend periods to be four days each in duration (even though this might mean missing one or two days of school) and that she would fund the father’s airfares to come to Queensland on two occasions each year if he so desired. Whilst the father conceded that such arrangements would be appropriate if the mother was allowed to leave for Queensland, he persisted with his opposition to the proposed move.
In the course of his evidence the father indicated that his main opposition to the relocation was the effect it would have on the children in terms of travelling times involved and the effect it would have on his opportunity to take the children to visit his (and their) extended family who lived some three hours drive from Melbourne. He further indicated that whilst he had not as yet established regular telephone communication between himself and the children and he did not have access to the internet at the moment, he was hopeful that he would be able to start communicating with the children both by way of telephone and the internet.
The judgment
After setting out the parties competing proposals and the background, the Federal Magistrate commenced to analyse the mother’s reasons for wishing to move saying:
23.The authorities show that the relocating parent’s subjective reasons for wishing to relocate are virtually irrelevant, except in as much as they have a bearing on the best interests of the children. Nevertheless, the mother in her affidavit evidence put some emphasis on her reasons for wishing to relocate with the children to Brisbane. Accordingly, it is appropriate that those reasons be addressed by the court.
Her Honour cited a number of authorities bearing on the significance of the mother’s reasons for wishing to move referring to AMS v AIF (1999) 199 CLR 160 at 179 per Gleeson CJ, McHugh and Gummow JJ; A & A: Relocation Approach (2000) FLC 93-035 at 87,548; (2000) 26 Fam LR 382 at 403 per Nicholson CJ, Ellis and Coleman JJ; Gummow and Callinan JJ (with whom Gleeson CJ agreed) in U v U (2002) 211 CLR 238 at 262; D & SV (2003) FLC 93-137 at 78,290; (2003) 30 Fam LR 91 at 106; Powell & Ptolemy (2005) FLC 93-239 at 79,942; (2006) 34 Fam LR 340 at 347.
She then cited extensive passages from AMS v AIF and A and A and KB v TC (2005) FLC 93-224, (2005) 33 Fam LR 471 before noting that since those cases were decided there had been significant changes to the parenting provisions of the Family Law Act1975 (Cth) (“the Act”). Her Honour set out those sections in Part VII of the Act that she felt had a bearing on the outcome of the proceedings drawing particular attention to ss 60B, 60CA, 60CC, 61EA and s 65DAA.
[noting at para 52
In the present case, the parents since separation have had equal shared parental responsibility for the children, to use the current terminology. There is no suggestion there should be any change in that arrangement and in my view it should continue.]
Her Honour rejected what she termed to be an implied suggestion that as the father did not seek to spend large amounts of time with his children, he had no right to seek to prevent the other parent relocating with the children to another state. She said:
55.…The object of the present proceeding is not to reward a “deserving parent” or punish an “undeserving parent” for their past or possible future actions. It is to achieve an outcome that gives primacy to the benefit to the children in having a meaningful relationship with both of their parents, while giving proper weight to all of the other relevant considerations stipulated by the legislation. Depending on the circumstances, that may mean that it is appropriate to enable children to spend a great deal of time with a parent who has shown little or no interest in them in the past.
Her Honour then analysed the mother’s proposals concluding that it would cost somewhere between $7700 and $9400 to pay all the airfares required in any one year in relation to the trips that she had outlined in her original application.
She then outlined the amended proposals that had emerged during the course of the hearing but made no further calculation as to the effect that those amendments would have on reducing the costs as earlier calculated. She noted that the father said that he would consider moving to Brisbane if the children moved there and that the father was agreeable to travelling to Brisbane twice per year to spend time with the children if he stayed in Melbourne.
Her Honour then turned to discuss the costs of travel and in particular a change in the mother’s original proposals that she would ensure that the $60,000 was made available for the provision of airfares. Her counsel, in final address submitted that the mother should be trusted to meet the airfares based upon her word that she would do so. Her Honour noted that the proposed source of funds for the airfares was to come from monies belonging to Mr Godfrey and said:
81.…Any orders that the court might make binding the mother to pay for the airfares will be to little avail if she does not have the requisite funds at her disposal.
After expressing some grave doubts about the genuineness of the mother’s stated intention to fund the travel brought about because of the change in the submissions that had been made on her behalf by her counsel, her Honour queried in any event whether the expenditure of the only available capital of this family on airfares would be in the best interest of the children. She said:
84.…While the mother and Mr [Godfrey] can of course spend their money as they see fit, it is difficult to see how it is in the best interests of the children to spend $60,000 on airfares when there is insufficient money at present to buy a house to accommodate them, and where the mother is generally in modest financial circumstances.
Her Honour next turned to deal with evidence that had been given by Dr J, a psychologist, who had been retained by the parties and the Independent Children’s Lawyer to prepare a report for the assistance of the court. Her Honour cited significant passages from the report. The report had been written at a time when the proposal being made by the mother was for there to be contact each month as well as school holiday contact. Dr J noted that the proposal did not appear to be a significant departure from the current arrangement, and if put into action “would not do anything other than maintain and develop the children’s relationship with their father”. It was Dr J’s conclusion that there was no reason why the children should be prevented from living with their mother in Queensland.
The Federal Magistrate was critical of that conclusion saying that there were substantial reasons to doubt that the mother would actually bear the financial burden of the travel costs for the next ten years or thereabouts. She was further critical of the opinion of Dr J saying:
91.It is of concern to the court that the psychologist’s report in this case was based on his express opinion that:
“anyone, including parents should have the right to live any place of their choosing, and for any reason, as long as appropriate arrangements are made for the children to maintain the relationship with their non-relocating parent.”
92.That opinion does not take account of the new parenting provisions which require the court in most circumstances to consider the children spending equal time with each parent and, failing that, substantial and significant time with each parent. The psychologist thought it was sufficient to maintain “a relationship” when the new parenting provisions are at pains to promote “a meaningful relationship” between the children and each of his or her parents.
93.More fundamentally, however, the psychologist’s opinion does not take account of the authorities to the effect that in any parenting matter, the court is to give paramountcy to the best interests of the children. The psychologist’s opinion appears to give paramountcy to a parent’s freedom of movement. The obligation on the court to ascertain whether, and, if so, how, the best interests of the children could be accommodated consistently with the proposed relocation does not alter the fact that the result must be one which is in the best interests of the children. For these reasons, the court is unable to give substantial weight to the recommendation of the psychologist.
Her Honour then examined the evidence of the psychological effects on the mother not being allowed to relocate concluding that the psychologist’s evidence was that the mother would be disappointed but resilient and her parenting ability would not be impaired. Similarly she noted that the psychologist had said the children would be disappointed and might be resentful of their father for several months.
Her Honour then turned to focus upon her consideration of what she described as the relevant factors set out in s 60CC of the Act saying (inter alia):
The benefit to the children of having a meaningful relationship with both of their parents
100.It would clearly be of very great benefit to the children to continue to have a meaningful relationship with both of their parents.
Their mother and father both appear to be capable and loving parents. They each have different and important contributions to make to the children’s long term development and well-being. To maintain a meaningful relationship with the children requires both parents to spend a considerable amount of time with the children. This is particularly so in the case of [C], who is only seven years old. This factor is given primacy in this decision.
The willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent
105.In the past, both parents have facilitated a close and continuing relationship between the children and the other parent. However, the mother’s proposed move to Brisbane would create some considerable physical burdens for the children in maintaining a meaningful relationship with their father. The mother asserts that she is willing to pay for the additional costs necessitated by the move to Brisbane. However, the submissions of her counsel seriously undermine that assertion.
The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:
(i)either of their parents; or
(ii)any other child, or other person (including any grandparent or other relative of the children), with whom they have been living
106.The proposed relocation will put a large physical distance between the children and their father and their extended family. Although it is proposed that funds be made available by Mr [Godfrey] to enable the children to spend time with their father, there is considerable doubt that those funds will actually be used for that purpose. Accordingly, there is a real risk that, if the relocation proceeds, the children will see their father considerably less often than the mother’s proposal would suggest. That would not be in the children’s best interests.
The practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis
107.As discussed above, the frequent travel between Brisbane and Melbourne will be at a substantial cost by any standards. In view of the limited financial resources of the mother and the risk that the mother will not actually pay for the airfares, the expense is a very weighty factor against the children relocating. As discussed below, there is no evidence on which the court could conclude that the father has sufficient funds to pay for the airfares.
108.There is also a significant practical difficulty in the children embarking on fairly frequent trips comprising five hours of travel, each way, door to door. While a two hour plane trip may be exciting if it is part of an occasional holiday, the ten hour round trip required in this case, on a regular basis, could prove oppressive for the children
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 children.
114.It would be preferable in the circumstances of this case to make orders that would be the least likely to result in the institution of further legal proceedings. The proposal of the mother’s counsel that the father could apply to the court, if the mother failed to pay for the airfares, in circumstances where the mother opposed orders being made that would minimise the need for such an application, highlights that further legal proceedings may well flow from the children relocating to Brisbane. That would not be in the best interests of the children.
Any other fact or circumstance that the court thinks is relevant
115.The court accepts that it would be of benefit to the children to live in a large city, as opposed to [M]. The father’s proposal would not prevent the mother relocating to Melbourne. Her husband said he would consider Melbourne as an option, subject to discussing it with his family.
116.The Melbourne option appears to have much to commend it. It is surprising that the mother does not show more consciousness of the benefits to her children of moving to Melbourne. Be that as it may, the court accepts that life in a large city would offer the children benefits that a small town, such as [M], would not. Given that rural life also offers benefits to children, albeit different benefits, the court gives this matter some weight, but not substantial weight.
The extent to which each of the children’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 children’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 children; and
(ii) to spend time with the children; and
(iii) to communicate with the children; 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 children; and
(ii) spending time with the children; and
(iii) communicating with the children; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the children
117.The father has not participated in the children’s school lives and in particular has not attended parent teacher interviews. He says, and I accept, that he will do that when the children are in secondary school, if they do not relocate. As it would take the father three hours to travel to and from parent teacher interviews, it is understandable that the father has not attended them while the children are at primary school. Otherwise, the father has spent time with the children every third weekend and for a part of each school holidays.
…
119.On the whole, both parents have facilitated the involvement by the other in the children’s lives. The mother’s proposed relocation would, of course, change the structure of the father’s involvement in the children’s lives. Depending on whether the airfares were actually paid by the mother, and depending on whether the children found the amount and duration of travel oppressive, the relocation could considerably reduce the children’s ability to spend time with their father.
…
121.The father was assessed for the period 19 August 2005 to 18 November 2006 on a taxable income for the 2004/2005 year of $25,000. He lodged an estimate of income for the period 18 July 2006 to 18 November 2006 based on an annual income of $15,895. His monthly child support liability was thereby reduced from $259.58 per month to $54.75. This is clearly a very small amount to pay towards the upkeep of two children.
The events that have happened, and circumstances that have existed, since the parents separated
124.The events that have happened since separation have been described elsewhere in this decision. Essentially, there has been a stable arrangement for the children to spend time with their father. The children are well-adjusted and resilient, and have a good relationship with their mother and father.
Her Honour then reached her conclusion under the general heading “Resolution” saying.
125.In all the circumstances of this case, it is not in the best interests of the children that they relocate to Brisbane. For a family of modest financial means, the cost of the travel in this case would be a very weighty financial burden. The orders that have been proposed give the court no confidence that the mother will pay all of the travel costs or even a substantial part of them. If the mother does not pay the travel costs, or a substantial part of them, there is no reason to suppose that the father would have the capacity to make up the difference.
The result will be that the children will not spend time with their father, or, at least, a sufficient time to maintain a meaningful relationship with him.
126.The father did say in evidence that if the children relocated to Brisbane, he would consider moving there. However, there is no basis on which the court could conclude that there is any reasonable likelihood of that actually happening. As a result, the court must, in the best interests of the children, discount that possibility.
127.Even if Mr [Godfrey] were willing to bind himself to spending the bulk of the proceeds of the sale of his house in airfares, the proposed relocation would not be in the children’s best interests. For a family of modest means, the $60,000 would be better spent in more basic aspects of the children’s needs than frequent air travel, in circumstances where the move to Brisbane offers only marginal benefits to the children.
128.As has been made clear by the High Court, the mother’s freedom of movement must yield to the best interests of the children. Those interests primarily require that the children be able to maintain a meaningful relationship with their father.
129.The proposed relocation would jeopardise that relationship to an extent that is unacceptable. Accordingly, there will be orders restraining the mother from relocating the residence of the children more than two hundred kilometres from the corner of Bourke and Elizabeth Streets in Melbourne.”
The appeal
The Notice of Appeal contains 26 grounds and 11 sub-grounds asserting errors on behalf of the Federal Magistrate. The oral hearing of the appeal was not conducted on a basis of an address on each of the grounds but I invited counsel for the appellant, supported by counsel for the Independent Children’s Lawyer, to identify where there was a crucial error in the reasons for judgment that would indicate that it was appropriate for an appellate court to interfere in a discretionary judgment. It seemed to me that many of the grounds of appeal were inappropriate and unfairly critical of the way in which the Federal Magistrate had undertaken her difficult task.
Relocation cases are notoriously difficult. Both parties have valid claims of right. The legislation requires the Court to regard the best interests of the child as the paramount consideration but what is in the best interests of the child is not a matter about which there may be universal agreement. Further, as Kirby J said in AMS v AIF at 207-208:
…a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule.
The very many authorities that discuss the appropriate principles to be applied in relocation cases and as cited at the commencement of the Federal Magistrate’s judgment (see par 14 above) are all decisions that were made before the substantial amendments to the Act in July 2006. My research has only located one decision in which the effects on previous decisions relating to relocation cases as a result of the new amendments has been analysed by a Judge of this Court. That is a decision of Dessau J in M and S (formerly E) [2006] FamCA 1408.
That case concerned a proposed move to England from Australia by the mother of the child which would severely impact upon the existing arrangements that saw the child spending time with her father on two weekends per school term and half the school holidays. Her Honour said:
26.There is no explicit relocation provision in the new legislation, although one was considered. Recommendations of the House of Representatives Standing Committee on Legal and Constitutional Affairs’ Report on the exposure draft of the Bill (“the Report on the Bill”) recommended that the Act be amended to include a provision that, where there is a proposal for any change in the child's living arrangements that would substantially affect the child’s ability to reside or spend time regularly with the other parent or extended family, the court “must be satisfied on reasonable grounds” that such relocation would be in the child’s best interests. The recommended provision would have effectively placed an onus of proof on the moving party, and as such would have been a significant shift from existing case-law. The proposal was not adopted, although in second reading speeches there was discussion about possibly incorporating it into the Act after a report from the Family Law Council on relocation. For completeness, I note that the Family Law Council report was published in May 2006. The Council concluded that the best interests of the child should remain the paramount consideration in relocation cases, with the factors in s 60CC to be considered.
27.The amended Act has one reference to a parent moving away from another, in s 4, where “major long-term issues” are defined as including:
“(e)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.”
Save for underlining the significance of such a move as an important issue for parents to decide, that definition does not assist further as to the correct approach in such cases.
28.Although there is nothing in the new legislation explicitly altering the previous approach to relocation whereby the court was obliged to consider the child’s best interests as the paramount consideration, the amended Act does provide a context, through its objects, principles, and particular considerations, that is substantially different from the context in the previous legislation. As the Full Court in Goode’s Case [(2006) FamCA 1346] observed (at para 72):
“… it can fairly be said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children…”
29.Before July 2006, the object of Part VII was expressed in s 60B(1) as follows:
“The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
30.In the recent amendments, s 60B(1)(a) provides that the objects 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;”
In the revised explanatory memorandum to the Bill, it was noted (at para 52) that the object was consistent with the introduction of a presumption in favour of equal shared parental responsibility.
31.The principles underlying the objects are similar to the previous version, but s 60B(2)(b) is now more specific about the right of children not just to have contact with both their parents and other significant people, but to “spend time …” and to “communicate” on “a regular basis” with both parents and other significant people “such as grandparents and other relatives”.
32.The matters for the court to consider in determining a child’s best interests, as now set out in s 60CC, are also different in part from those set out in the previous s 68F(2) of the Act. In particular, there are two considerations expressed as “primary considerations”, the relevant one being:
“…the benefit to the child of having a meaningful relationship with both of the child’s parents…”.
There are then “additional considerations”, including a newly expressed consideration:
“(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;”
33.The revised explanatory memorandum noted (at para 49) that the intention of separating the primary considerations from the additional considerations was to:
“…elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act.”
The memorandum went on to explain (at para 52) that they were elevated as they deal with “important rights of children and encourage a child-focused approach”, although it was acknowledged (at para 51) that there may be some instances where the secondary considerations outweigh the primary ones.
34.In the second reading speech in the Senate on 11 May 2006 (at page 55), it was noted that the Report on the Bill referred to the primary considerations in s 60CC(2) as intended to “draw appropriate attention to the objects’ provisions in a positive way”, and likely to assist in directing the court’s attention to those objects, “particularly in relocation cases”. That point, however, was not expanded upon further.
35.The Attorney General’s submission to the House of Representatives’ Standing Committee on Legal and Constitutional Affairs noted that the primary considerations were “almost certainly” likely to have an impact upon the way in which relocation cases were decided, in particular, the emphasis on maintaining a meaningful relationship with both of the parents (see page 51 of the Report). Again, there was no further discussion or elaboration.
36.Although not in relation to relocation, Goode’s Case is of assistance, in underlining the legislative intent in favour of substantial involvement of both parents. The Full Court made it clear that in interim hearings, instead of simply preserving a status quo, the court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child. In paragraph 65 of Goode’s Case, the Full Court sets out the pathway for the court to follow. I am satisfied it is also the appropriate pathway in this case.
37.As noted, Counsel for both parties in this case agree that whether O lives in Melbourne or the UK, neither the concept of equal time nor substantial and significant time is a reasonably practicable outcome, so that, as set out in paragraph 65.8 of Goode’s Case, the issue is then:
“…at large and to be determined in accordance with the child’s best interests.”
And
“9.The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.”
38.Counsel for the father submitted that the new Part VII provisions effectively cast an onus of proof on the applicant for relocation. They do not, and it is clear that was not the intent of the amendments. The legislature has not explicitly prohibited the relocation of a child away from one parent. It has not introduced a specific presumption against it, nor an onus of proof on the moving party. Nor has it suggested that just because the relationship between a child and a parent will inevitably be affected by a move away, that in itself should preclude the court from permitting the relocation. Otherwise, given the inevitability of some change to the nature of the child/parent relationship when the structure of the time spent together is changed, virtually all requests for relocation would as a matter of course be disallowed. Had that been the intention, the Act would have been amended accordingly.
39.The objects and principles of the Act, the primary and additional considerations under s 60CC, together with the various provisions in relation to equal shared parental responsibility, direct the court squarely to maintaining the important relationship between a child and his/her parents. But the child’s best interests remain the court’s paramount consideration (s 60CA). In the opening words of the objects provisions in s 60B(1) of the Act, and again in s 60B(2) where it is stated that the principles set out there apply “except when it is or would be contrary to a child’s best interests”, the legislature has not diminished the best interests test as integral to any parenting issues, including the difficult issue of relocation.
I provided each of the parties with a copy of her Honour’s reasons for judgment and invited submissions from them as to whether they sought to address me on reaching a different conclusion to that reached by Dessau J. Counsel for the mother and for the Independent Children’s Lawyer understandably did not submit that I should reach a different conclusion on the law to that expressed by Dessau J. The respondent father as a self-represented litigant was unable to advance the discussion any further.
Without the benefit of a reasoned contradictory argument, I see no reason to depart from the conclusions reached by Dessau J that whilst the various provisions of the Act, as amended, emphasise the importance of maintaining an appropriate relationship between a child and its parents, the best interests of the child remain the paramount consideration.
The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.
In this case all the evidence, especially that of Dr J, clearly indicates that the children have already established a meaningful relationship with their father and that the relationship will be likely to be maintained even if the mother moves with the children to Queensland provided that arrangements can be properly made to ensure regular visits of adequate duration.
The Federal Magistrate was in my view appropriately critical of the proposals that were being put by the mother to commit the modest capital that she and Mr Godfrey had entirely towards the provision of airfares for the children in the ensuing years when the money may better have been directed to providing for their welfare. There was however an alternative route that was clearly available namely the provision of part of those monies, as a pre-condition to the relocation being permitted, to ensure that at least for the foreseeable future, say the next four or five years, adequate funds would be set aside to enable the children to visit their father on say four occasions each year and for the father to visit them on two occasions each year if he so desired. There was no evidence to suggest that a meaningful relationship could not be maintained between the children and their father in such circumstances. Of course, such visits could well be supplemented by telephone and internet communication.
It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
Whilst the Federal Magistrate was correct in her conclusion that if the mother was unable to pay a substantial part of the travel costs the result might be that the children would not spend sufficient time with their father to maintain a meaningful relationship with him, there were clearly ways and means by which provision of some of the funds as already discussed could have been secured to avoid that eventuality happening, at least in the foreseeable future.
The Federal Magistrate ought to have weighed very heavily into the equation the desire of the primary caregiver of these children (and indeed their siblings) to move on to a better life than she and Mr Godfrey and the children were presently enjoying. The Godfrey household could not look to either father of the children living in their household to provide any meaningful support for the children. Mr and Mrs Godfrey were each looking for better financial prospects than were available to them in the Latrobe Valley. Mrs Godfrey sought to move to a warmer climate. The Godfrey family sought the comfort of their church and it was common ground that such comfort was readily available in Brisbane. Finally, there was the prospect that the father himself indicated that he might follow the family to Brisbane, although he was hesitant to do that in case things did not work out for the Godfreys in Brisbane and they sought to move yet again.
The Full Court in A and A; Relocation approach (2000) FLC 93-035 at 87,553 said (inter alia):
“In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposed for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity. If the court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the court to order a regime which would best met the right of the child to know and have physical contact with both of its parents.”
In this case, the Federal Magistrate was distracted from following that path by the various suggestions that had been put forward by the mother which the Court found to be unrealistic and unacceptable. The Federal Magistrate did not go on to attempt to devise a regime which would meet the criteria described in A and A.
As Kirby J said in AMS v AIF at para 193:
[For relocation within Australia] the attention of the decision maker should ordinarily be to the possibility of formulating different arrangements for access and contact which would meet that child’s welfare.
Then, at para 196:
Any such alteration [of place of residence], with its practical consequences for the access to, and contact with, the father … required consideration in that context, of the acceptability of the alternative proposals which [the mother] advanced for different, but longer, periods of contact between the child and the father. If this was not judged satisfactory, it possibly necessitated consideration of whether a different regime, devised by the Family Court, would adequately fulfil the child’s rights to regular contact with his father although no longer living permanently in close physical proximity.
The approach of Kirby J in AMS and AIF was emphasised by the Full Court in D & SV at para 63 where they said:
In a case like the present one, where there is no or no credible alternative proposal with respect to residence advanced by the non-residential parent the correct approach to adopt is the one identified by Kirby J in AMS v AIF that the focus of
... the attention of the decision maker should ordinarily be at a possibility of formulating different arrangements for access and contact which would meet the child’s welfare.
In my view the Federal Magistrate erred in this case in failing to adequately explore the possibility of formulating different arrangements for the children to spend time with their father and in reaching a conclusion, contrary to the evidence, that the children would be unable to maintain a meaningful relationship with their father if the mother was permitted to move the children to Brisbane. She further erred in concluding that the maintenance of that meaningful relationship, by continuing the contact at its present level, was necessarily more significant to the welfare of the children than allowing their primary caregiver to get on with her life as she chose and to endeavour to maximise the opportunities for the children to be adequately supported.
Re-exercise of discretion
At the hearing I inquired of the parties as to whether I should re-exercise the discretion or remit the matter for rehearing in the event that I concluded that the appeal should be allowed. All of the parties urged me not to remit the matter but to decide the outcome myself.
I then inquired of the parties whether they wished to lead any further evidence and save that the father drew my attention to some small difficulties that had arisen in contact on two occasions since the judgment was delivered there were no such matters that he wished to rely upon. The mother wished it to be known that she was in a position to provide by way of security for the provision of future airfares for the children monies that had previously been discussed.
I am of the view that the best interests of the children will be served by the making of orders that will enable the mother to relocate with them to Brisbane whilst at the same time ensuring that the children, at least for the foreseeable future, have an opportunity to maintain a meaningful relationship with their father. This can be achieved by orders which will require the mother to ensure the children are sent to Melbourne at her expense on at least four occasions each year to coincide with the children’s school holidays and for the provision by her of airfares for the father to come to Queensland on at least two other occasions each year to visit the children. If, of course, the father moves to be sufficiently close to where the children are living so as to facilitate more frequent opportunities to be in face to face contact with them then the matter will have to be either renegotiated or looked at afresh by another court.
In order to overcome the reasonable concerns of the Federal Magistrate that the mother would be in a position to actually bear the financial burden of travel costs at least for the foreseeable future it is appropriate that as a precondition to her moving from Victoria she deposit in a secure fund the sum of $20,000 which fund may only be drawn down upon for the purpose of providing airfares for the children and any adult who must necessarily accompany them on their travel and airfares for the father as is envisaged by these orders. Such a fund should be sufficient to provide travel funds for the next four or five years. If the father decides to move to Queensland on a permanent basis to be near the children then the balance in the fund can revert to the mother or be disbursed at her direction.
In her Notice of Appeal the mother proposed that school holiday visits should take place:
(a)for five consecutive nights in the Queensland first term school holidays;
(b) for nine consecutive nights in the each of the Queensland second and third term school holidays;
(c)from the first Monday after school finished for the school year until the evening of Boxing Day; and
(d)for a further ten consecutive nights commencing the third Thursday of the Queensland long summer school holidays.
It seems to me that having regard to the financial circumstances of the parties, four trips per year rather than five would be an appropriate obligation to impose upon the mother. The opportunity for the children to spend part of Christmas with their father could be accommodated by ensuring that in the long summer school holidays each alternate year the time that they spend with their father is calculated from some period prior to Christmas. In other years it can commence in January.
The father had indicated in his evidence that he would find it difficult to take further time off from his work commitments to enable the school holiday periods to be extended beyond the existing arrangement which was for six nights in the first term school holidays, eight nights in each of the second and third term holidays, and nine nights in January, as well as Easter in each alternate year. Consistent with my view that the opportunities for the father to spend time with the children should be maximised, notwithstanding the difficulties the father says he has with the proposed increase in time during the school holidays, I propose to make orders that will coincide with those offered by the mother. The parties are, of course, free to reach agreement about other arrangements but given that the purchase of non-refundable advance airfares is required for each trip, any such arrangements should be made well in advance.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kay
Associate:
Date: 23 February 2007
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