Gordon & Gordon
[2007] FamCA 361
•27 April 2007
FAMILY COURT OF AUSTRALIA
| GORDON & GORDON | [2007] FamCA 361 |
| FAMILY LAW - CHILDREN - With whom a child shall live - Relocation |
| APPLICANT: | Mrs Gordon |
| RESPONDENT: | Mr Gordon |
| FILE NUMBER: | TVF | 2274 | of | 2006 |
| DATE DELIVERED: | 27 April 2007 |
| PLACE DELIVERED: | Townsville |
| JUDGMENT OF: | Monteith J |
| HEARING DATE: | 13, 14, 15 & 21.03.2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Betts |
| COUNSEL FOR THE RESPONDENT: | Ms Pagani |
| FAMILY COURT OF AUSTRALIA AT TOWNSVILLE |
FILE NUMBER: TVF 2274 of 2006
| Mrs Gordon |
Applicant
And
| Mr Gordon |
Respondent
REASONS FOR JUDGMENT
Introduction
This case involves an application by the mother to relocate three children, the elder son, born in September 1995, the younger son, born in October 1997 and the daughter, born in April 1999 with her to Canberra.
I heard the case on 13, 14, 15 and 21 March of this year and reserved my Judgment.
There was evidence from the mother that, in the event that I allowed the relocation, she had enrolled the children in schools in the Canberra area. In the event of me allowing them to be relocated, they were to commence at their new schools after the Easter school holidays.
Having decided that it was appropriate to order that the mother be allowed to relocate the children to Canberra, I decided to make orders which I delivered on 10 April 2007, so that the children could commence at their new schools after Easter. I indicated that I would deliver reasons for making those orders thereafter.
The orders that I made are as follows:
“1.The Mother, […] be allowed to relocate to Canberra with the children, [the elder son], born [in] September 1995, [the younger son], born [in] October 1997 and [the daughter], born [in] April 1999.
2.The children, [the elder son, younger son and daughter, live with and spend time with the mother.
3.Both parents share joint responsibility with respect to the long term decisions effecting the care, welfare and development of the children.
4.Each parent be responsible for making day to day decisions for the children whilst they are in their respective care.
5.The father spend time with the children as is agreed between the parties and in particular as follows:
(a) For the entire Easter holiday period in 2007 and each alternate year thereafter.
(b) For the entire June/July school holiday period each year.
(c) For the entire September school holiday period each year.
(d) For the first half of the Christmas school holiday period in 2007 and each alternate year thereafter, and the second half of the Christmas school holiday period in 2008 and each alternate year thereafter.
6.For the purposes of spending time with the children in 5 above, the father pay for the children’s flights from Canberra to Mackay and the mother pay for the children’s flights from Mackay to Canberra.
7. Telephone contact at any time.
8.The father shall be at liberty to spend time with the children on his five rostered days off with the giving of one month’s notice of his intention to do so. For the first six visits in any calendar year, the cost sharing arrangements in paragraph 6 shall apply. Over and above six visits, the father shall be responsible for the costs.
9.For the purpose of calculating periods, school holidays should include public holidays and pupil free days and shall be the gazetted school holidays as for the Australian Capital Territory.
10.The mother shall authorise the school where the children attend to provide to the father copies of report cards, certificates, correspondence and letters in relation to the children.
11.Without limiting the parental responsibilities of either party pursuant to these orders, each parent shall keep the other parent informed and properly consult with the other about any significant parenting issues affecting the child.
12.For the purpose of these orders, parenting issues include:
(a) Any medical or health matter concerning the child.
(b) Any medical or health matter affecting either parent which may affect the ability of that parent to care for the child.
(c) Disciplinary matters other than of a trivial nature.
(d) Matters concerning the social development and sporting activities of a child.
(e) Change of place of domicile or telephone numbers of either parent.
(f) Any intended changes of the surname which appears on the child’s birth certificate.
(g) Generally any matter regarding the child in respect of which a parent should be informed about or consulted with having regard to the provisions of the Family Law Act.
13.That pursuant to s.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.”
MY REASONS FOR JUDGMENT
COMPETING PROPOSALS
The mother’s proposals are set out in the orders that I have made save that she, in the alternative, sought that she be allowed to relocate to either Brisbane, Townsville or Mackay.
These alternatives I think can be accurately described as a “scatter gun” approach and when explored in the evidence were in my opinion quite fanciful.
The orders that she sought were contained in an amended Application for Final Orders, which became Exhibit C in these proceedings.
On the other hand, the father sought orders which were set out in his Summary of Argument filed on 27 November 2006 and which became Exhibit 7 in these proceedings.
Those orders provided that the children live with the father and that the mother spend time with the children one weekend each month, for the entire Easter period in 2007 and each alternate year thereafter, for the entire June/July school holiday period each year, for the entire September school holiday period each year and for the first half of the Christmas school holiday period in 2007 and each alternate year thereafter and for the second half of the Christmas school holiday period in 2008 and each alternate year thereafter.
The only other significant order sought by the father was, hat in the event that the mother was to e to the Mackay area, that the children live with each parent for equal time in periods of seven (7) days each provided, however, that the residence of the children be in the Mackay area.
Each parent sought, in their proposals, that the parties shared joint responsibility for the long term decisions affecting the care, welfare and development of the children.
BACKGROUND
The mother in her Case Outline sets out a convenient chronology which is basically uncontentious and I adopt for the purposes of these reasons.
CHRONOLOGY
| April 1964 | Father born – turns 43 this year |
| April 1968 | Mother born – turns 39 this year |
| December 1990 | Mother’s daughter, (the children’s half sister), is born – turns 17 this year |
| 1994 | Parties commence cohabitation |
| September 1995 | Parties’ first child, the elder son, is born – turns 12 this year |
| 1996 | Parties live in G for a year before returning to the M area |
| October 1997 | Parties’ second child, the younger son, is born – turns 10 this year |
| 22.08.1998 | Date of marriage |
| 1998 | This same year, the father becomes a train driver and thereby has more time to spend with the children. Previous to this, he had been working 6 ½ days per week as a technician |
| April 1999 | Parties’ third child, a daughter, is born – turns 8 this year |
| June 2001 | Mother has spinal surgery |
| June 2002 | Mother has further spinal surgery |
| February 2004 | Parties separate |
| March 2004 | Mother commences relationship with her fiancé, Mr S |
| January 2005 | Mother becomes engaged to Mr S. Around this time, the father’s partner, Ms B commences cohabitation with the father. Ms B has 3 children, namely C, B and T who are known to the children of these proceedings and of similar ages |
| Mid 2005 | Some correspondence is exchanged concerning a possible relocation by the mother |
| 08.07.2005 | Father files application to stop mother relocating |
| August 2005 | Date of divorce |
| December 2005 | The mother’s partner obtains his “dream job” with the Australian Public Service. He puts off commencement of training for a short period because of the uncertainty about the mother and children being able to relocate with him |
| 08.03.2006 | Consent Orders whereby the children are to live with the mother and spend time with the father on his days off. Mother agrees not to relocate from M at that time. |
| March 2006 | The mother’s partner relocates to Canberra for training and starts commuting back to M to see the mother and the children |
| June 2006 | The mother’s partner moves to Sydney with the Australian Public Service and continues to commute |
| 28.08.2006 | Mother takes children to Ms G for some group counselling as to issues the children are having with the father and with his partner at that time |
| 07.09.2006 | Further group counselling session |
| 08.09.2006 | Counsellor meets with children alone |
| Late Sept., 2006 | Correspondence exchanged in relation to possible relocation. Father makes it clear that he does not agree |
| 26.09.2006 | Mother files Application seeking to be able to relocate |
| 12.10.2006 | Mother amends application |
| 17.11.2006 | Date of first Family Report |
| 28.11.2006 | Interim hearing before Monteith J. Pending a final hearing of the mother’s application to relocate, orders are made that the children are to live with the father in M and spend time with the mother in New South Wales from January 2007 |
| Dec., 2006 | Mother moves to N, New South Wales to take up residence with her partner and to pursue her career |
| 06.01.07 – 27.01.07 | Mother spends time with the children at N |
| 16.02.07 – 19.02.07 | Mother spends time with the children at M |
| Last week | Date of second Family Report |
| 12.03.2007 | Mother spends time with the children in Townsville |
| 13.03.2007 | Matter comes on for final hearing |
From the chronology, it becomes obvious that there was an interim hearing before me. In fact, it took place over two days, 27 and 28 November 2006.
It is convenient to set out here some of the transcript for those proceedings.
“HIS HONOUR: [Mrs Gordon] I want to have a chat to you but I want to do it with you under oath, do you understand?---Yes, your Honour.
And I want the legal advisors to understand that I’m adopting this course on the basis that these proceedings are proceedings relating to parenting issues and as the High Court and the Full Court have made clear, they are not of themselves completely adversarial in nature but involve, to some extent, an inquisitorial role and a Judge is entitled to run the trial slightly differently to what he would do in the case of what is a clear adversarial trial.
What I am about to do is something similar to what the legislation provides for, since it’s been amended, this case doesn’t fit within those parameters because it was issued before the 1 July this year but that does not mean that I cannot, as the presiding Judge, take a more interventionist role than I would do so if this was a clear adversarial trial. I propose to adopt that course for the moment and counsel can address me after I have done that if they wish.
[Mrs Gordon] I’ve read pretty much all the material now and I’ve heard your evidence and I’ve heard you cross-examined in part. I don’t know what else there is to come out of the cross-examination yet. Whether it would influence me much I can’t yet determine but as I understand it, it’s your position that you want to get on with your life, you want to move on?---Yes, your Honour.
Is that correct?---Yes, your Honour.
Moving on for you involves taking I suppose, some risks, do you agree with that?---Yes, your Honour.
To some extent life’s about taking risks, isn’t it?---Yes, your Honour.
If you don’t take risks you stay still, correct?---Yes, your Honour.
The risks that you want to take to move on involve changing your residence?---Yes, your Honour.
They involve seeking employment, which is, at the moment, although offered to you, not secure, do you agree with that? It’s not secure employment that you’re going to, it’s a prospect that they may continue to employ you?---Yes, your Honour.
But it’s something that you want to do?---Yes, your Honour.
Because you see that where you presently live, there isn’t much future for you in the employment stakes, is that right?---Yes, your Honour.
So for you this is a big step which gives you an opportunity to get back into the workforce that you think you wouldn’t have unless you pursued it?---Yes, your Honour.
You’ve also formed a new relationship?---Yes, your Honour.
But haven’t spend a lot of time living together as yet, have you?---Six days out of seven in my home, but not actually as a defacto, I suppose you could class it.
Yes, but you and [your partner] and the children haven’t spend a lot of time together in the scheme of things, correct or not?---I don’t believe so, your Honour.
Well how long? I rather got the impression it was about six months?---Well from when we started going out together he’d stay one or two nights after the children got used to [him] being my partner.
Yes?---And then it grew from there, probably mid 2004 to where he’s there nearly every night of the week bar one, when he’d go back to his home to just check on things and so forth and then he’d be back the following evening after work.
And then you’ve been largely separated because of his work for nearly nine months?---Yes, your Honour, he’s home every five days off he has, he flies home.
I’m not intending to put, to use an expression “the mos” on this but these are still early days in a relationship aren’t they, it may not work out, no one knows?---That’s true, your Honour.
And he’s just got himself employment with the Australian [Public Service]?---Yes, your Honour.
And it’s your hope and expectation that he will be able to obtain a transfer to Canberra?---Yes, your Honour.
But there’s no way that you can satisfy me, is there, that that’s a certainty?---I don’t have much to do with that side of it. [My partner] has actually organised that.
Yes. What I want to suggest to you is this. You understand that my role is one in which I have to put the children’s interests before yours and before the father’s?---Yes, your Honour.
Do you understand that?---Yes.
Now I don’t for a moment think that either of you are being selfish in terms of wanting to put your interests before your children’s, I’m sure that each of you think what you are doing is for the best for them. But you each have a different view about what’s best for them, don’t you?---I believe so.
He thinks it’s best that they remain in their present environment, which has been their environment all their lives, you think it’s best for them to be with you in this new and exciting stage of your life, correct?---Yes, your Honour.
The problem for you is that this new and exciting stage of your life contains a number of risks, doesn’t it, that I’ve just identified?---Yes, your Honour.
One of the things that I need to consider is whether I should expose the children to those risks at this time. In other words one of the things that perhaps I should consider is allowing you to pursue your new and exciting life and see whether it turns out as you hope it will. Your contract is a three months non-renewable one, correct?---Yes, your Honour.
Do you know, and I’m not sure that I’ve been told, when you can start that?---They’re waiting on to find out what these proceedings were before they gave me a start date.
But do you understand in effect it’s up to you, you can start when you want or is that the case?---Yes, your Honour.
Yes?---Yes I understand it’s up to me but I was waiting on what happened here to know what was going to happen.
The school year, I haven’t got them directly that I can put my hand on at the moment but the children must finish school very soon?---15th.
Is that right?---Yes, your Honour.
Couple of weeks?---Yes, your Honour.
And then they’re off for about eight weeks or something?---Six weeks, yes your Honour.
I don’t know whether you’ve given any thought to this, how long would it take you to relocate yourself to Canberra and commence employment in Canberra, do you believe?---Is that in respect sir, taking gear from [M], like everything?
Yes, just you?---Just me and my clothes.
You, yes?---Probably a couple of days.
Have you thought about, it was something that didn’t appeal to me when I first read it in the family report, but when I read it last night with much more care and when I put it together with some of the other pieces of evidence that are in these proceedings, it occurred to me that this wasn’t a case, initially I thought this was a case, to use an expression that I like, all duck or no dinner, do you understand what that means?---Yes your Honour.
I thought that in a sense you didn’t have anything to lose by these proceedings, that they could simply just proceed on, I’d either give you leave to take the children with you and that’s what you’d do, or I wouldn’t and you remain?---Yes, your Honour.
It strikes me that there is another course available which may be to your advantage in the sense that it gives you the opportunity to take advantage of these opportunities that have been caste before you, without exposing the children to the risks that I’ve just indicated but without you losing any major role in the short term. In other words there’s the school holidays coming up, the children could resume their schooling in February or late January whatever it is in [M], whatever it’s called?---[M], your Honour.
You could go to Canberra, take up your employment opportunities and see how they went?---Yes.
Look for accommodation that would suit you and the children and Mr – sorry?---[your partner].
[Your partner] could seek to get a transfer, you could investigate the schools?---Yes.
See what facilities they have, see what extra curricular activities were available?---Mm.
Obtain evidence about all of that. I could adjourn the further hearing of these proceedings until late March. I can’t do it before then because in February I’m sitting in Cairns for the whole of February. I come back here in March and I’m sitting here in March and I can give this case two or three days in March. You would need that amount of time because we could need to have another family report prepared, children will need to be interviewed again, questioned about whether that’s what they want to do, live with you and live in Canberra or not, having regard to the experiences they’d have because they’d spend some of the time with you over this period in Canberra. We could see whether the employment opportunity had worked out or not?---Yes.
Whether [your partner] had got a transfer or not, what schools were available if you came back then with what I might call viable proposition for relocation as distinct from what it is now, I think, a proposition for relocation that is more one of hope over experience, if you understand what I mean?---Yes.
You would be in a very strong position to be able to persuade me that I should in the circumstances allow the children to be relocated to Canberra. On the present state of the evidence, it’s going to be very hard for me to make such an order because to do so is going to expose the children to all the risks that I’ve just indicated which I’m not sure that I should do when I can avoid that by lettering you run the risks. If it comes off, terrific, if it doesn’t come off you go back to [M]. Do you follow my point?---Yes I do your Honour.
The only thing that would need to be worked out if this was a solution that appealed to the parties, would be for me to make some interim orders in relation to the children and the report writer suggested that they should simply mirror what you suggested so that’s where I would start from if the parties couldn’t come to some agreement. But I would put in place some interim orders until the matter is bought back before me in late March and I’d make some orders in relation to a further family report and the filing of further material along the lines of what’s happened to your employment, what’s happened to [your partner’s] employment, what’s happened to your housing, what’s happened with schooling, what sort of schools, et cetera?---Mm.
In the event that I was persuaded then that, most of the risks had been eliminated and everything looked solid for them, that their wish was still that’s what they wanted to do, because they are at an age where their wishes are significant, then you would stand a pretty good chance of me allowing the children to be relocated to Canberra and that could be done so that it occurred at the Easter school holidays. Do you follow that?---Yes I do your honour.
Do counsel want to say anything to me about anything I’ve just said to the witness?
[MS C]: I think it’s a very good suggestion myself but I will have to talk to my client.
HIS HONOUR: Just for the moment do you want to say anything?
[Ms C]: No, thank you.
[Mr M]: I’m not sure of this inquisitorial process and your Honour will pull me up if what I say is not what your Honour is asking for, but my client’s position, my client’s read the Family Report. The possibility of this type of interim order is something that we’ve discussed.”
The reference by Mr M in the last passage of that transcript refers to a family report prepared by Ms S dated 17 November 2006 and annexed to an affidavit of hers filed 20 November 2006.
In paragraph 41 of that report, she recommends:-
“41.I am recommending that serious consideration be given to a relocation application from [the mother] once she has established herself in new employment, a new home and a new relationship with [her partner]. Again, I assert that with the passage of time, counselling and [the mother’s] efforts in establishing a suitable environment of stability and security for the [parties’] children, it would be possible for [the parties] to mediate an outcome regarding relocation that will reflect a business-like relationship between the parents. I am suggesting that [the mother’s] proposed pattern of contact for [the father] in her current application be exercised by herself while she is in this period of establishing a life elsewhere in Australia. My reasons for this suggestion are as follows:
·The [the parties’] children would not be subjected to the stresses of the relocation where so much uncertainty and insecurity is a feature of [the mother’s] plans.
·[The mother] would have the opportunity to settle and work through her own issues relating to making a clean break from a very long period of her own personal history.
·[The mother] and [her partner] would have the opportunity to work through the issues relating to a critical period in their own relationship as well as major career changes.
·The [parties’] children would have the opportunity to rebuild their relationship with [the father] as I fear that there has been some process of alienation and tests of loyalty that have been constructed.
·[The father] would have the opportunity during the period of [the mother’s] re-establishment elsewhere in Australia, through counselling and a break from ongoing conflict to relinquish his passive role, to learn to manage his anger and to take a more business-like approach to the parenting of the children from his marriage to [the mother].
In summary, [the mother’s] aspirations should not be hindered once she has re-established herself in new life circumstances. During the time of this re-establishment, the [parties’] children should reside with [the father] and the schedule of contact proposed by [the mother] for [the father] in her application should be made available to her.”
As a result of that hearing and those recommendations, I made orders on 28 November 2006. I set out the orders hereunder.
“IT IS ORDERED UNTIL FURTHER ORDER THAT:
1. The Orders of the Federal Magistrate made 8 March 2006 shall continue until 6 January 2007 but thereafter the children, [the elder son] born [in] September 1995, [the younger son] born [in] October 1997, and [the daughter] born [in] April 1999 shall live with the Father.
2. The said children shall spend time with the mother from 6 January 2007 until 27 January 2007 in Canberra, with the mother to collect the children from [M] and fly with the children to Canberra.
3. In addition to the Orders above, the mother shall spend time with the children at all times as agreed between the parties, but failing agreement on one (1) occasion each calendar month from Friday at 3.00 pm until Monday 8.00 am, upon the mother giving the father one (1) month’s notice in writing.
4. The father shall collect the children from Canberra on 27 January 2007.
5. The mother can communicate with the children by telephone at all reasonable times.
6. For the purpose of Order 3, the father shall pay half the mother’s travel to [M] and return on one occasion each month.
7. This matter be adjourned to the Registrar on a date to be fixed by him, for him to do a compliance check and set the matter down for further hearing in late March 2007 for three (3) days.
8. All further affidavits including an updated Family Report are to be filed and served prior to the said hearing before the Registrar.
9. Costs reserved.
10. That pursuant to s.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.”
The matter then resumed before me on 13 March 2007 and was heard on 13, 14, 15 and 21 March.
THE LAW
The law with respect to relocation cases since the amendments to the Family Law Act has recently been considered by the Full Court constituted by Justice Kay in Godfrey & Sanders [2007] FamCA 102. In the course of his reasons, his Honour cites with approval a decision of Justice Dessau in M & S (formerly E) [2006] FamCA 1408.
His Honour said:
“29.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.
30.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 a parent 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 set 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.
31.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.
32.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.
33.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.”
After discussing some of the facts peculiar to the Appeal, his Honour at paragraph 36, said:
“36. 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.” (my emphasis).
THE EVIDENCE
The mother moved to Canberra in December 2006 and took up a position as an Administrative Support Officer with the Australian Public Service on 2 January 2007. Her fiancé, commenced working with the Australian Public Service in Canberra on 28 January 2007 and has a permanent position with the Australian Public Service working at the Canberra Office.
The mother’s position with the Australian Public Service was for a period of three months but on 26 February 2007, her contract was officially renewed for an additional three months, taking it up to 1 July 2007. She has been advised that this position will be advertised on a full-time basis at that time, and there are also other positions coming up, that she will be able to apply for.
She and her partner earn approximately $2,300 per fortnight together, which does not include overtime, and she deposes that with this income, they will be able to support the children financially.
They are currently renting a four-bedroom home in N in New South Wales and they have taken out a 12-month lease on this property.
She deposed that, if the children were to be allowed to relocate and live with her, her two sons would share a room and her daughter would have her own room.
She deposed that her relationship with her partner was solid and they have been discussing buying their own home within the next 12 months.
The children were enrolled at the N Public School and were able to commence school immediately if allowed to relocate to Canberra. She had also enrolled the children in before-and-after-school-care, which is connected with the school and on the school grounds.
She had made enquiries with respect to the children attending sporting activities but she was unable to enrol them until they actually moved into the region.
She deposed that since the orders were made in November, she had spent from 6 to 27 January at N with the children and from 16 to 19 February in M with the children.
In the original orders, it was provided that the father and the mother were to accompany the children in relation to travel between M and Canberra, but the parents made subsequent arrangements and it was agreed that the children would travel between Sydney and Mackay as there was a direct flight and as a result, there was no need for the children to be accompanied. It was agreed that the costs of air travel would be shared equally.
She deposed that since the children had been living with their father, they had not telephoned her at all and she had had to instigate all telephone calls.
She deposes that the children had expressed to her a very strong wish to live in Canberra.
She also deposed that her daughter, the children’s half sister, had a very close relationship with the three children, the subject of these proceedings, and was desirous of them all being together.
She deposed that she would encourage the children to visit their father and communicate with their father on a regular basis if I allowed them to be relocated to Canberra.
She gave evidence that she had applied for permanent positions with the Australian Public Service in Canberra and that there were about four permanent positions on offer and she intended to apply for all of those.
She said she intended to permanently reside in the Canberra area and they were looking to buy a house in Canberra. She felt that her prospects and her partner’s prospects were much better in Canberra because of their career paths with the Australian Public Service.
She said that she did not like Mackay, that it was a coastal town which was muggy and it had no appeal.
She said that she would come back to Queensland, where she could get work, which would be in Brisbane or Cairns, if I was to order the children to live with their father. She said she hadn’t considered moving to Mackay and she definitely would not move back to M. She said there was nothing for her in M.
She said that she thought it was in the best interests of the children for them to move to Canberra. She said she was prepared to pay half of the air fares involved in travel and she would find a way to pay those air fares with overtime and with her partner’s help. I accept her on those matters.
The mother’s partner deposed that he commenced working with the Australian Public Service in Canberra on 8 January 2007 and he has a permanent position working at the Canberra Office. He said he currently has a base salary of $34,700 per year but in evidence it appeared that in eight and a half months, he had earned $43,126.96 gross which indicated the amount of overtime and penalties that he was paid.
He said that he had applied to join the Australian Capital Territory Public Service with the Australian Public Service and to become involved with community work and if he was accepted into that, he would be stationed in Canberra. He said that he could apply to the Queensland Public Service but it would be a big step to join the Queensland Public Service and there would be no guarantee that he would be successful. If he did apply and was accepted, he could then apply to the Queensland Public Service for a transfer to Mackay, if such a position became available. However, he made it clear that he would like to live in Canberra as he regarded it as a very nice town and with a lot to offer.
The father has re-partnered with Ms B and they have been living together since the beginning of 2005. She has three children, C, B and T, who are aged 11, 9 and 6. She is employed as a teacher’s aide.
They reside at M, in a four-bedroom house. When all the children are together, there are six children in the house.
During the marriage, the father worked full time and the mother was predominantly the carer for the children. He has been employed with a transport service for the entire period of his relationship with the mother and up to the present. He cannot foresee any other employment for himself. He drives coal trains and is a tutor driver. He earns $69,700 gross per annum.
He gave some evidence that he could apply for a transfer to J which is half-an-hour from Mackay where he could also drive coal trains, or he could also apply for a transfer to driving coastal passenger trains. However, there is a salary differential in favour of a coal train driver of about $20,000 gross per annum.
There would be some difficulties in him obtaining a transfer.
Under cross-examination, he said that it was his view that the mother harboured bitterness towards him, had not been supportive of him seeing the children and that she just wanted to get out of town and take the children out of his life. He said that he didn’t like the mother’s partner because of what he was doing and repeated that the mother was trying to take the children out of his life.
He said that he had told the children that he did not like the mother’s partner and what he had done to their lives.
He agreed that he had questioned the children about their mother and her partner and further agreed that the children’s half sister was very important in the children’s lives, being their, in effect, big sister.
He agreed that he said what was recorded in paragraph 37 of the first Family Report, namely “if the kids want to go to Canberra, then I’ll let them go…I honestly think that it will screw them up…[the elder son] will be under the thumb…of [their half sister]…”. However, he went on to say that he no longer holds that view.
He volunteered that he thought that the mother was teaching the children to hate him.
I formed the view, after seeing the father in the witness box, that he was much more self-focused than child-focused.
In the last question in re-examination, he said “The children have told me they want to live with me”.
This created difficulties in the management of the trial which I will deal with shortly.
The father’s partner was not required for cross-examination.
Ms S, who is a psychologist practising in the state of Queensland, prepared two Family Reports, one dated 17 November 2006 which was annexed to an affidavit of hers filed 20 November 2006 and the further report which was undated but annexed to an affidavit filed 12 March 2007.
In her first report in paragraph 4, she said:
“4. [The elder son, younger son and daughter]: All three children stated that they want to live with their mother, […] and her fiancé, [sic] [Mr S] in Canberra. All three children expressed some dislike of [the father’s partner] and the children of [the father’s partner] with whom they also live while they reside with their father, […]. All three children expressed their concern about the emotional reaction of their father to their moving to Canberra and the impact that the relocation will have on him.”
I have already set out her conclusions earlier in this Judgment. It was as a result of those conclusions, inter alia, that I made the interim orders.
In her final Family Report annexed to her affidavit filed 12 March 2007, she set out her recommendations. They are as follows:
“16.I am satisfied that [the mother] has made substantial progress in establishing a new family home in [N], NSW. It appears to me that she has good prospects of becoming a permanent employee in the Australian Public Service or at least of having continuing employment. [The mother] has also been able to identify the resources that the three children will require in terms of education, health care and personal development activities in [N] and the environs. The insecurity and uncertainty in [the mother’s relocation plans that were originally a concern to me have largely been resolved. I am not of the opinion that relocation will be an unmanageably stressful event in the lives of the three […] children. It is my opinion that the three […] children should be allowed to relocate with [the mother] as it will be in their best interests. The Easter school break is an ideal opportunity for relocation to take place. The [parties’] children will be able to join their respective classes without too much of the school year having elapsed. A timely relocation will ensure that the [parties’] children will be able to develop new friendships and find their places in the [N] community. They will also not be disadvantaged in terms of exposure to different curricula at their respective schools.
17.[The mother] has put forward a schedule of visits to allow the [parties’] children to spend time with [the father]. I believe that this represents a gesture of goodwill and cooperation on the part of [the mother]. I urge [the father] to consider this schedule of visits carefully and to negotiate any modifications to accommodate his work schedule. I would also urge [the father] to establish and maintain a regular pattern of telephone communication with the three children. I do not believe that [the father] risks loosing [sic] his relationship with the three children, as he has expressed this fear, should he remain a cooperative and positive partner in parenting post-divorce.
18.I am encouraged that [the father] and [mother’s partner] have reconsidered their wedding plans to accommodate the many changes that they have both experienced in relation and the establishment of a new family life. This will give the family members a chance to relax and enjoy their new circumstances without too many competing demands on their time, interests and finances. I am also encouraged that [the father] has been in contact with a counsellor. I recommend that he sustains a commitment to attending further sessions in order to work through the issues that will arise through the relocation of [the three children].”
In her first report, Ms S noted the father’s pervasive negative view of the state of affairs since the original orders were made and recommended counselling for both parents. In her last report, she noted that the father had had a counselling session with Ms H and he advised her that the outcome of this session was that “I’m pretty normal”. Ms S in paragraph 5 of her last report said “It is my opinion that [the father] will have to make a commitment to ongoing counselling to address his issues of anger and passivity”.
The difficulty that I referred to earlier in this Judgment as a result of the answer given by the father in the last question in re-examination, namely that the children had told him that they wanted to stay with him, arose in cross-examination by Ms Pagani, on behalf of the father, where it became clear that Ms S had not re-interviewed the children for the second report. She had simply interviewed the father and the mother by telephone.
The fact that there was now evidence before me, albeit coming from the father, that the children had changed their wishes created a forensic difficulty in the running of the trial.
Once it became clear that Ms Pagani was going to challenge the witness on this basis, I concluded that the only way to resolve it was to order that the children be re-interviewed. Ms Pagani objected to Ms S being the interviewer on the basis that she alleged bias. In all the circumstances and having regard to the fact that the trial was almost concluded the following exchange took place:
“HIS HONOUR: In circumstances that have arisen in this case now, namely, that this witness has relied upon what the children told her back in November, she has not reinterviewed them since then and the father has given evidence that the children have told him they want to live with him, I am left in the position now, am I not, of trying to find out insofar as I can, what their true wishes are now.
MR BETTS: Your Honour - - -
HIS HONOUR: You cannot escape that, can you?
MR BETTS: Well, your Honour - - -
HIS HONOUR: I may not be able to, but I have to try.
MR BETTS: There are a few things I say in response. One is that was the last answer in re-examination - - -
HIS HONOUR: I made that point.
MR BETTS: The second point is that this witness was about to tell your Honour why she did not think that that was a good idea. And I do not – she was not given the answer – the opportunity to respond. I do not know why that happened, I cannot remember, but she was going to give reasons and your Honour should at least her her reasons - - -
HIS HONOUR: Well, I will do that. But I will tell you – one, it is quarter past 1 and what I am really thinking about is this was listed in this way because it is a relocation case, and because the urgency, and because if the children are to be relocated Easter is an appropriate time to do that, and that would give me an opportunity to write a judgment and deliver it before Easter if we complete this trial in a timely way. Now, tomorrow I have got a couple of small matters. I have got to deliver a judgment, but that is written so it will just be handed down. I have got, I think, a defaulter and a passport application or something like that. And I rather had other plans for the day, however, in the interests of justice the other plans might have to evaporate.
Mrs Pagani has some concerns about (indistinct) this witness. On the other hand I am very reluctant to bring another consultant into this trial at this stage. It would be extremely difficult and it would necessarily mean that the matter would have to be adjourned over and then re-listed at some time in the future. There would not be another way of resolving it. So although I have only previously done it once in my judicial career, and actually in a similar situation, I think that the solution to this in the event that it – Mrs Pagani wants to pursue it, is for me to interview the children in my Chambers with this witness present.”
As a result, that is what I did and the witness was re-called later in the afternoon and gave the following evidence:
“HIS HONOUR: Could you please tell the Court what’s happened since the adjournment. I take it the children were bought to you?---Yes that’s correct.
By whom?---The children were bought to me by the - - -
By my Court Officer?---The Court Officer, [Mr X].
What did you do with them?---We went into one of the rooms, room number 7 and I asked them if they remembered who I was and they said that they did. They remembered me from the interviews in Mackay without any prompting. They told me that’s where they knew me from. I told them that the Judge wanted to speak to them, that they weren’t in trouble and that they needed to speak up for themselves and to tell their side of the story. I asked them if they felt all right about that and they all indicated that they felt okay. [The younger son] looked a little bit anxious and I asked him if he was okay, if everything was all right and he said yes that he was. The children didn’t cling to each other or to me. They weren’t nervous around me at all. We were playing for a while together and they seemed to be actually all right. We spoke about what they’d been watching on Foxtell. They’re lively, friendly, and energetic; I can’t indicate any developmental delays or deficits and they interacted with each other in nice friendly co-operative play.
Now my Court Officer brought you and the children around to my chambers?---Yes.
You introduced them to me?---Yes.
I had my Associate with me?---Yes.
Can you tell the Court what happened?---The children were asked by yourself where they wanted to live and they all volunteered that they wanted to live with their mother. [The daughter] said that it’s boring, we’re used to it and we know everything there.
Referring to?---Referring to [M]. Both [elder and younger sons] stated, “Yes” that they wanted to live in [N]. The children variously referred to Canberra and [N]. [the elder son] said, “I want to live in [N] with mum”. [The daughter] said, “I want to live in Canberra” and [the daughter] and [younger son] both then reiterated that they wanted to live in Canberra with mum when they were asked if they were quite certain about where they wanted to live. They were asked if they had been there and [the elder son] said that they had been there for three weeks and they were asked about the sort of activities that they were involved in while they were in [N]. They had a late Christmas. [The daughter] fell off the bicycle in the sandpit and the children were quite forthcoming. They weren’t hesitant about their answers. Their non-verbal behaviour was a little bit closed. The boys were a little bit closed. The eldest, [son], sat with his arms across his chest but they sat at a distance from each other on the sofa. They weren’t clinging to each other. Certainly there were no tears. [The daughter] was quite confident and quite forthcoming.
What did she do?---She climbed all over the lounge chair in your office and reminded the boys that you wanted to shake their hands when they were leaving. Yes, we spoke about some of the current things like, I believe it was [the younger son] who said that he didn’t want to go back to [M] but he didn’t make a mention of his father in that statement. [The elder son] explained that they had to go to [S] to pick up the children of [the father’s partner] and he complained that it was a seven and a half hour drive. [The daughter] brought up the subject of the grewees (?) which I remember from the initial interview was how she referred to [the father’s partner’s] children and they didn’t say anything against their father or [his partner] but they did state quite clearly that they wanted to live with their mum in [N] or Canberra. They didn’t mention [the mother’s partner] but they focussed on their mum in terms of their comments. They did mention their half sister, […] and they were talking about the water park.
That’s here isn’t it?---Beg your pardon?
They were talking about the water park here?---Here, yes in Townsville and they told us that they were staying at [W] and I told them to say “Hi” to [K] who works there.
How did you assess their behaviour with me?---They were confident, relaxed and forthcoming. I think they were able to speak their minds.
In your opinion am I entitled to rely on the views as they expressed to me as being genuine?---Yes, yes, there was nothing that seemed to be coaxed, coerced, rehearsed. They were quite spontaneous.”
BEST INTERESTS OF THE CHILDREN
Section 60CC provides how a Court determines what is in a child’s best interests. I am directed under ss 1 that I must consider the matters set out in ss 2 and ss 3.
Subsection 2 sets out the primary considerations. It is as follows:
“(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.”
On the evidence before me, I am not persuaded that there is any need to protect the children from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence. Consequently, as a primary consideration, I am left with considering “the benefit to the child of having a meaningful relationship with both of the child’s parents”.
It is important, I think, to highlight what Justice Kay said in Godfrey and Sanders at paras 33 and 36. I set them out here, again, for emphasis:
“33.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.
…
36.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.”
Although much time during the trial was expended in exploring various possibilities with respect to alternative proposals, including me giving the parties considerable time to discuss various options, outside the Court, I am persuaded, on the evidence before me, that there are only two viable options available at the present time. Either the children live with the father in M and spend block time with the mother in Canberra/N or alternatively, the children live with the mother in Canberra/N and spend block time with the father in M. Whichever of those options is adopted, it is possible to tinker with the time spent so that time may be spent with one of the parents travelling to or from M or Canberra/N.
I accept the recommendations of Ms S set out in her report annexed to her affidavit filed 12 March 2007 and in particular:
“The insecurity and uncertainty in [the mother’s] relocation plans that were originally a concern to me have largely been resolved. I am not of the opinion that relocation will be an unmanageable, stressful event in the lives of the three […] children. It is my opinion that the three […] children should be allowed to relocate with [the mother] as it will be in their best interests.”
Then a little later, she says:
“[The mother] has put forward a schedule of visits to allow the [parties’] children to spend time with [the father]. I believe that this represents a gesture of goodwill and co-operation on the part of [the mother]. I urge [the fathewr] to consider this schedule of visits carefully and to negotiate any modifications to accommodate his work schedule. I would also urge [the father] to establish and maintain a regular pattern of telephone communication with the three children. I do not believe that [the father] risks losing his relationship with his three children, as he has expressed this fear, should he remain a co-operative and positive partner in parenting post-divorce.” (my emphasis)
The additional considerations that I am required to consider are set out in subsection 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;
The children are of an age at which I should give their wishes, in my opinion, considerable weight. All three children told Ms S, back in November 2006, that they wanted to live with their mother and her fiancé in Canberra. They all expressed some dislike of the father’s new partner and of her children. When I interviewed the children in the presence of Ms S, all of the children expressed the view that they wished to live in Canberra/N. They were certain that they wanted to live not only with their mother, but in Canberra/N and also were of the view that they did not wish to live in M. I asked Ms S in evidence “In your opinion, am I entitled to rely on the views as they expressed to me as being genuine?---Yes, yes, there was nothing that seemed to be coaxed, coerced, rehearsed. They were quite spontaneous.”.
(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);
The children have a good relationship with both parents. They appear to have a good relationship with the mother’s partner. Some difficulties seem to have arisen, however, in their relationship with their father’s new partner and her children. There is also evidence, which I accept, that the children have a close bond with their half-sister who lives with their mother and her partner in Canberra/N.
(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;
I am satisfied on the evidence before me that the mother is willing and able to facilitate and encourage a close and continuing relationship between the children and the father. On the evidence, I am by no means sure that the same applies to the father. The evidence with respect to his negativity, anger and approach to cooperative parenting. Some of the evidence with respect to his failure in the past with respect to telephonic communication gives rise some concern.
(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
Although the children expressed to Ms S in her first report some concerns about the emotional reactions with their father to their moving to Canberra and the impact that that relocation might have on him, it was nevertheless clear that the children’s wish was to move to Canberra and N although recognising that that may upset their father. In addition, the evidence establishes that they had a close relationship with their half sister and that if left with their father, that relationship would be diminished.
(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 rights to maintain personal relations and direct contact with both parents on a regular basis;
Because in my view the only present viable parenting arrangement involves either the children living in M or Canberra/N, there are practical difficulties and expense in the children spending time with the parent with whom they do not live. The tyranny of distance means that the practical difficulty involves air transport and the expense involves the cost of same. These matters were explored in some detail in the evidence. However, I am satisfied that both parents can afford to share the costs as has been proposed and that this will enable the children 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;
I find that both parents have the capacity to provide for the needs of the children including their emotional and intellectual needs save that, in my opinion, the mother is better placed to do this. I find that because of the report from Ms S together with evidence, particularly with respect to the relationship between the children and their mother and her partner as compared to the relationship of the children with their father and his partner and her children.
(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;
On the evidence, I do not find that there is any material which has a bearing upon these considerations.
(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;
None of these children are Aboriginal or Torres Strait Islander.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
I believe that I have sufficiently covered these matters under other paragraphs.
(j)any family violence involving the child or a member of the child’s family;
I do not consider that any of the evidence led before me has any real significance under this hearing.
(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;
There is no evidence of any such order.
(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;
Assuming there are no changes to the present circumstances, I consider that the orders I have made are least likely to lead to the institution of further proceedings.
(m)any other fact or circumstance that the court thinks is relevant.
All the matter that I think are relevant I have already dealt with.
In considering the additional considerations under ss 3 as I have just done, I have taken into account the legislative directions given in ss 4 and ss 4A.
PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY
Section 61DA applies as both parents seek equal shared parental responsibility and neither contends to the contrary. Further, not only was there no contention to the contrary, but no evidence was led seeking to rebut it.
Since the presumption applies and has not been rebutted, I must consider making an order that the children spend equal time with the parents unless it is contrary to the child’s interests as a result of considerations of one or more in the matters in s 60CC, or impracticable. It is clear having regard to the fact that this is a relocation case and I have found that the only viable proposals are that the children either live with the father in M or with the mother in Canberra/N, it is clearly impracticable for the children to spend equal time with the parents and equally impracticable for the children to spend substantial and significant time as define in s 65DAA(3).
That being the case, then I must make such orders as in my discretion are in the best interests of the children as a result of consideration of one or more of the matters in s 60CC.
CONCLUSIONS
Having regard to all of the evidence and in particular, my findings under s 60CC, I have concluded that it is in the best interests of the children to make the orders that I have set out at the beginning of this Judgment.
I certify that the preceding 79 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Monteith
Associate:
Date: 27/4/07
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as GORDON & GORDON
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