H & H
[2007] FMCAfam 27
•25 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| H & H | [2007] FMCAfam 27 |
| FAMILY LAW – Children – relocation – presumption of equal shared parental responsibility – rebuttal of presumption. |
| Family Law Act 1975, ss.4, 60CC, 61DA, 65DAA |
| A v A: Relocation Approach (2000) FLC 93-035 AMS v AIF and AIF v AMS [1999] HCA 26 Cowling v Cowling (1998) FLC 92-801 Goode and Goode [2006] FamCA 1346 P & P [2006] FMCAfam 518 U and U (2002) FLC 93-112 |
| Applicant: | H |
| Respondent: | H |
| File number: | BRM5565 of 2004 |
| Judgment of: | Altobelli FM |
| Hearing date: | 23 November 2006 |
| Date of last submission: | 23 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 25 January 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Brasch |
| Solicitors for the Applicant: | Harrington Family Lawyers |
| Counsel for the Respondent: | Mr Burke |
| Solicitors for the Respondent: | Michael Hefford Solicitors |
ORDERS
That the mother have sole parental responsibility for the two children R and J.
That the children live with the mother.
That until such time as the mother relocates with the children from Brisbane to Cairns, the time that the father spends with the children shall be governed by the orders than were made by consent on 20 September 2005. As from the date that the mother and the children leave Brisbane to permanently reside in Cairns, those orders are vacated, and the following orders apply:
That the children spend such time with the father as may be agreed between the parties but failing agreement as follows:
i.For one week during each school holiday periods in Cairns with the father to provide to the mother one calendar month’s written notice of his intention to spend time with the children during these school holiday periods, such notice specifying the start date of the time.
ii.That upon the father’s arrival in Cairns and presentation to the mother of his return airfare receipt the mother forthwith pay to the father the cost of the return airfare;
iii.That at the same time as providing written notification of his intention to spend time in Cairns, the father also notify the mother of the address at which he will be residing for the duration of the periods and provide written confirmation in the form of a receipt that such accommodation has been reserved.
iv.That the child J return home each night to sleep at the mother’s residence with the mother to arrange for the collection of J from the father at 5:00pm each day and to return to the father’s residence at 9:00am the next morning.
If the father is unable to spend time with the children as per order 4 above, during the Easter and/or September/October school holiday period that the father spend time with the child R at all such times as may be agreed but failing agreement to include:
i.During the Easter and September/October school holiday periods for one week in Brisbane with the father to provide the mother with one calendar month’s written notice of his intention to spend time with R during this period. The father shall arrange and pay for R’s airfare from Cairns to Brisbane.
ii.That upon receiving the father’s written notice of time pursuant to this order, the mother shall arrange for and pay for R’s return airfare from Brisbane to Cairns.
The mother and father will do all things necessary to facilitate and encourage the following communication taking place between the children and the father:
i.By email, letter and text message at any reasonable time that the children and the father decide; and
ii.By telephone each Tuesday and Thursday and on Father’s Day, the father’s birthday, the children’s birthdays, Easter Sunday and Christmas Day between 6:00pm and 8:00pm with the father to initiate the call on Tuesdays and the other days referred to, and the mother to facilitate the children initiating the calls on Thursdays.
Without limiting the generality of the orders referred to above the obligation of the mother in Order 6 extends to either providing the children with a mobile telephone or providing to the father her home telephone number from time to time, and the obligation of the father to provide one calendar month’s notice in Orders 4 and 5 is regarded as an essential one to the intent that strict compliance with the time frame is required and failure to do so means that the time between the father and the children does not occur in accordance with these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRM5565 of 2004
| H |
Applicant
And
| H |
Respondent
REASONS FOR JUDGMENT
Introduction and Background
This is a difficult application for a parenting order initiated by the applicant mother, which, if granted, would result in relocation of the children and the mother from Brisbane to Cairns.
The matter was heard before me on 23 November 2006 when I was sitting at Brisbane. The mother was represented by her barrister,
Ms Brasch. The respondent father was represented by his barrister,
Mr Burke.
The orders sought by the applicant mother are contained in her amended application filed on 6 November 2006. The orders sought are as follows:-
(1)That the mother have sole parental responsibility for the 2 children,.
(2)That the children live with the mother.
(3)That the children spend such time with the father as may be agreed between the parties but failing agreement as follows:
(i)For one week during the December/January school holiday period and June July school holiday period in Cairns with the father to provide the mother one month’s written notice of his intention to exercise contact during these school holiday periods;
(ii)That upon the father’s arrival in Cairns and presentation to the mother of the return airfare receipts the mother forthwith pay to the father the cost of the return airfare;
(iii)That at the same time as providing written notification of his intention to exercise contact in Cairns, the Father also notify the mother of the address at which he will be residing for the duration of the contact period and provide written confirmation in the form of a receipt that such accommodation has been reserved;
(iv)That the child J return home each night to sleep at the mother’s residence with the mother to arrange for the collection of J from the father at 5.00pm each day and to return to the father’s residence at 9.00am the next morning
(v)That the father spend time with the child R at all such times as may be agreed but failing agreement to include:
(vi)During the Easter and September/October school holiday period for one week with the father to provide the mother with one month’s written notice of his intention to exercise such contact and simultaneously to provide the mother with return air tickets for the child R to fly from Cairns to Brisbane and return to Cairns.
It is significant that the mother has sought an order for sole parental responsibility for the children, as well as that the children live with her. The effect of this is to ask me not to apply a presumption of equal shared parental responsibility as would otherwise be the case in accordance with s 61DA of the Family Law Act. As I will discuss in the section dealing with the applicable law, I believe this was the correct legal approach to deal with this application.
The mother's evidence consisted of her affidavit filed on 31 October 2006, and an affidavit of her husband, M, also filed on that date. Both the mother, and M, gave evidence in person and were cross-examined.
The orders sought by the respondent father were not actually contained in any response that has been filed in these proceedings, but was set out in the outline of case document filed on his behalf. I set out the effect of the orders that he sought at the hearing here:
The father wished to have the children reside with him on alternate weekends, as well as spending time with the children two evenings per week, from 4:00pm till 8:00pm. Where he was unable to spend time with the children on these evenings, he would give the mother 24 hours notice via text message and would instead initiate contact by telephone for a one-hour period on those evenings. The father also wished to have the children spend time with him for up to six weeks per year, to coincide with his annual leave and flextime arrangements, with the mother to be given 2 weeks notice of this. Furthermore, the father wished to spend the day with the children on Father’s Day, and spend half a day with the children on Easter Sunday, Christmas Day, his birthday, the children’s birthday’s and the children’s siblings’ birthdays.
It is significant, however, that the only response in fact filed by the father in these proceedings was filed on 18 May 2006. Whilst it is a document that was obviously prepared by the father personally, the effect of the orders sought in that response would be to give permission for the mother to relocate with the children to Cairns. As I will discuss the significance of this below, I set out the orders sought in the father's response filed 18 May 2005:
(1)The consent orders that are current with the Redcliffe Court stay as is until the child support has been cancelled in my name and until relocation takes place.
(2)I give permission for Sto relocate with my daughters R and J to Cairns on the following conditions that we verbally agreed on:
(a)Child support to be cancelled immediately (not on arrival at Cairns).
(b)Telephone contact to be at reasonable times and days,
(c)Visits to Cairns to be made on one months advance notice- as per verbal agreement. Airfares and accommodation to be paid in equal parts by Sonja H and Paul H before commencement of visit to Cairns.
The evidence filed on behalf of the father consisted of his affidavits filed on 7 November 2006 and 21 November 2006. In addition, an affidavit was filed by A, the wife of the respondent father, that affidavit having been filed on 21 November 2006. Both the father and A gave evidence and were cross-examined.
I had the benefit of quite comprehensive case outline documents for both the applicant mother and the respondent father and, in addition, I had the benefit of the applicant mother's written submissions that had obviously been prepared before cross-examination took place.
In evidence, also, was a family report dated 17 August 2006 prepared by a family consultant, Ms B. Ms B gave evidence and was cross-examined.
Despite the complexity of the issues raised in this case, the matter was conducted very efficiently and was quite comfortably completed within one day. Regrettably, my own workload made it impossible to deliver this judgment before this date.
The Family Report accurately records the biographical details of this family, and the relevant background. The applicant mother is currently 36 years old. Her husband is 35 years old. The mother and the father married in 1991, but had been cohabiting since October 1989.
There are two children of the marriage, R who who is now 12 years old, and J who is now 10 years old. J is severely disabled as a result of suffering cerebral palsy. Both the mother and the father have remarried and the father and his new wife have a daughter C who is four years old.
Previous Orders
There are two sets of previous orders in this matter, but only the more recent one is relevant for present purposes. The first set of orders relating to the children was made in the Redcliffe Magistrates Court on 17 December 2003. The second set of orders, also made in that Court, are dated 20 September 2005. The orders in question are annexed to the affidavits of both parents. I will not reproduce the orders because of their length, but make some observations about them.
I dare say that any experienced family lawyer not familiar with this matter and its history would, on reading the orders in question, immediately conclude that these parents were having considerable problems so far as the children spending time with their father is concerned.
The first indicator of this is that the contact (I will use that terminology as it reflects the document itself) is to occur on two levels - level 1 contact (providing for each alternate weekend from 9 am to 5 pm on Saturday and Sunday, together with one or two afternoons each week from 4 pm to 8 pm) and level 2 contact (the first Sunday in each month between the hours of 9 and 5).
Order 3.3 explains that if the father fails to exercise contact over any six month period for at least six scheduled contact periods then level 1 contact is suspended until such time as the father provides to the mother two weeks prior written notice of his intention to resume such contact on an ongoing and consistent basis.
Order 4 stipulates with great particularity where the father is to collect the children from: “the property line of the mother's residence”. Various other orders deal with other aspects of parental responsibility, including facilitating communication, authorising the provision of school reports and similar information to the father, consulting medical practitioners, et cetera.
Order 9 obliges each parent to keep the other notified of current mobile telephone numbers, and addresses. There is a notation about using best endeavours to give strict compliance to contact changeover times and to ensure that neither will be more than 30 minutes late for a contact changeover.
Bearing in mind that these are Consent Orders, the impression created is that there has been a history of problems so far as contact is concerned and, in particular, one of the issues for the parents has been the father not exercising contact for extended periods of time.
It soon became apparent during the course of this hearing that the current arrangement for the children to spend time with their father is simply not working. As will be seen, the reasons for this are complex, have much to do with high levels of conflict between the parents to which they have both contributed, and the unworkability of the current arrangements is part of the reason why the applicant mother wishes to relocate to Cairns. The parties currently reside in Brisbane.
Family Report
The family report dated 17 August 2006 provides the only clear and reliable information and insights into these parents, and this family. There is much evidence of the father and mother which conflicts and even the skilful cross-examination of both counsel was not able to result in my forming a clear view of where the truth lay as between conflicting material.
There are a number of significant matters that emerge from the family report and I briefly identify them, and discuss them below:
a)The father views his time with his children as a right. He has an inflexible view about this. If the father perceived that the mother denied him his rights to see the children that was wrong. However, if the father chose to see the children for less time than prescribed by the orders, or if the father failed to spend the time with the children as required by the orders, he was merely being flexible, and there was nothing wrong with this. A significant lack of insight into the effects of this behaviour on the children, and their mother, was manifest.
b)The father was confused and indecisive about whether to permit the relocation to Cairns as at the time of the interviews on 1 August 2006 and 2 August 2006. He acknowledges that allowing the children and their mother to go to Cairns will probably remove the high level of conflict that already exists. Of course, he is mindful of the impact of such a move on the relationship between the children and himself.
c)On balance, the oldest child R has expressed a desire to move to Cairns, even though she said to the family consultant that it would be better if I, as the judicial officer, made the decision.
d)R is acutely aware of her father's inconsistency with spending time with her and J, but understands that it is because of the need for him to work. She would prefer to spend overnights with her father, but understands that that is not something that her father can offer. R also has an acute insight into the conflict that is going on between her parents.
e)J and R have a strong relationship. J's ability to communicate is impaired by her cerebral palsy. While she enjoys a good relationship with her father she was sad that when she saw her father it was for the purposes of the interview as she had not seen him for a long time.
f)The mother was assessed with adequate parenting skills and the capacity to provide appropriately for the children's physical, practical, social and emotional needs. The children are primarily attached to the mother, but R has a strong relationship with her father.
g)The family consultant was of the view that neither an equal time living arrangement, nor a substantial and significant time arrangement, would be suitable for the family.
h)The mother and the father are embroiled in ongoing conflict over seemingly minor issues which, fuelled by mistrust and suspicion, have become exaggerated and taken on mammoth proportions. However, the family consultant observed that the mother and her new husband were able to demonstrate some awareness of the effect of the high conflict on the children, whereas the father and his new wife showed little or no insight into the impact on the children of their behaviour. Indeed, to use the words of the family consultant, they “appeared energised by” such conflict.
i)The family consultant seemed confident that the mother would continue to support and promote the children's relationship with their father, if the family relocated to Cairns. The family consultant recommended that the relocation be allowed to take place. The family consultant saw real benefits to the children as a result of having to restructure and regulate the arrangement for the father to spend time with them as a result of the move to Cairns. The family consultant saw a considerable benefit to the children in that they would be far less likely to witness or become involved in the periphery of the hostility and unresolved conflict between the parents.
The family consultant was cross-examined. She accepted that there was bitterness on both sides - in other words, that the mother was an active contributor to, as well as a participant in, the conflict. She was acutely aware of the changes in the relationship that would occur between the children and their father if they were permitted to relocate to Cairns, but she stressed that this needed to be balanced by the benefits to the children of minimising the conflict between the parents.
The family consultant acknowledged, however, that there is still a chance that the conflict would be there notwithstanding the distance, but it would be minimised because of a restructured arrangement for the children to spend time with their father. She agreed, however, that the parents would argue about just about anything, and would allow minor issues to become major issues. The family consultant was resolute, notwithstanding the cross-examination, that a meaningful relationship between the children and the father would continue notwithstanding their move to Cairns, but that in any event the benefits to the children of reducing the conflict to which they are being exposed is of significant benefit to the children.
I asked the family consultant several questions myself. She was confident that the existing connectedness between the father and the children would survive a lower frequency of time spent, particularly if R played a significant role in ongoing communication between the times when the children could physically spend time with their father. She felt that R would take responsibility for wanting to have that ongoing connectedness with her father and that it wasn't too much responsibility to put on her shoulders.
I put to her, however, that this ongoing connectedness between the children and their father would still depend, in part, on the mother's cooperation, and pointed out that the history of this family indicates a very poor record of cooperation, the chances of the ongoing connectedness being continued would be quite low. She acknowledged that it would be potentially problematic, but was of the view that creating distance between the mother and the father would reduce the conflict and therefore increase the likelihood of cooperation.
By way of a summary, notwithstanding the cross-examination, the family consultant remained firmly of the view that there were greater benefits to the children, particularly in the long-term, from being permitted to relocate away from Brisbane, to Cairns, particularly as it better protected them from the conflict that existed between their parents.
Evidence
The mother's evidence-in-chief was premised in effect on the
non-contentious base that she was, and would continue to be, the primary carer for the children. There is no issue in this case of the mother relocating to Cairns without the children. Either they relocate together, or they remain in Brisbane together. I acknowledge that the mother’s application is for sole parental responsibility and does not refer to Cairns as such. On the evidence presented the effect of the order would be to permit relocation to Cairns. Her affidavit sets out extensive evidence under the heading of "family violence" and it is clear that there is a long record of aggressive behaviour and harassment between the parents, including protection order applications.
It is perhaps the case that this evidence was intended to convince me that section 61DA(2) applies, i.e., the presumption of equal shared parental responsibility does not apply because of abuse and/or violence. It fails in this regard, however. It fails principally because the wife was such an active participant and protagonist in all of the very behaviour that she seeks to attribute exclusively to the father in order to negate the presumption of equal shared parental responsibility.
As became manifestly apparent in the mother's cross-examination, she “gave as good as she got”. Even the mother's counsel, in her closing submissions, could not resist the conclusion that the mother was an active and willing participant in the conflict and its perpetuation. They are certainly not the words used by counsel for the wife, but the evidence is so clear in this regard that there is only so much that counsel can say in a closing submission.
However, much of the mother's evidence in her affidavit also goes to the rebuttal of the presumption on the basis that it is not in the best interests of the children. This is, of course, a much broader approach to the issue and thus, for example, the active participation of the mother in the conflict becomes a relevant consideration, rather than the focal point. Her evidence here is extensive and points to the father's financial irresponsibility in maintaining the children, the mother's eventual bankruptcy as a result of the father's inability to service a loan, the father's inconsistency in terms of spending time with the children and the considerable pressure that placed on both the mother and the children, the father's role in the conflict and so forth.
The evidence the mother gives about the proposed relocation to Cairns has satisfied me that she had made adequate inquiries and that the welfare of the family consisting of the children and herself would be more than adequately taken care of as a result of such move.
The cross-examination of the mother included her frank admission that she “gave as good as she got”, that she participated in many arguments in front of the children, that she had been inflexible as regards the father spending time with the children at times, as well as demonstrating a significant lack of insight in terms of the father's right to know and to be consulted about major decisions relating to the children's life.
The clearest example of this is when it was put to her that the father had to find out about J's personal injuries settlement by reading The Courier-Mail. The mother said words to the effect “I didn't think he needed to know about the settlement.”
Despite leaving me with concerns about her own lack of insight into the impact on the children of her role in the conflict, there are other aspects of her evidence that became very clear. I accept her evidence that since the orders were made in 2005 there have been several periods where the children and the mother had not heard from the father for up to six weeks. I also formed the impression after the
cross-examination of the mother that one of the main reasons for her wanting to move to Cairns, if not the single and most significant reason in her mind, was to get away from the conflict with the father.
The mother's new husband, M, also swore an affidavit and was cross-examined. I was impressed by his evidence and I think there is every chance that he will have a positive and stabilising influence on the mother and the children.
The affidavits filed on behalf of the respondent father were very comprehensive and, in fact, told me far more about the family than did the mother's evidence. However, as I indicated above, the mother's evidence was premised on the uncontested basis that she was and would continue to be the primary carer for the children. In actual fact, the father's evidence really went to the need to maintain the relationship between the children and himself. It is clear that he has a strong relationship with both children, but it is equally clear that he has been an active participant and protagonist in the conflict with the mother, relating to them. Even on his own evidence, however, his work did prevent him from seeing the children, or from spending the whole amount of the time with the children that was permitted under the orders.
There are aspects of the cross-examination of the father that leave me quite concerned. For example, his explanation about the response filed 18 May 2006, the effect of which was to give permission for the mother to relocate with the children to Cairns, was unsatisfactory. The father agrees that he wrote the document and signed the document. At first he said that it was the mother's idea to, in effect, waive child support in consideration of giving permission to relocate. Just a little later in the cross-examination, however, he said something slightly different - to the effect that it sounded like a good idea at the time, but since then he had changed his mind.
Apart from the response, which was six months old as at the date of the hearing, the only firm indication I had of his firm opposition to the relocation is his two affidavits, both of which were filed in the weeks leading up to the hearing. Moreover, I note that there was no amended response and, indeed, the orders sought by the father were set out in his outline of case document. There is an ambivalence about the father's opposition to the relocation to Cairns. The family consultant certainly picked this up in her interviews with the father, and the response is further evidence of this ambivalence.
In the father's cross-examination he demonstrated a real lack of insight so far as overnight time with the children was concerned. He simply did not seem to have any appreciation of the special opportunities that would be afforded to both the children and himself as a result of overnight time with them. He seemed to justify this by reference to the fact that he was living in his current wife's home and he wanted to keep that address secret. It was clear that overnight time had not occurred since February 2004, and it was clearly not on his agenda to reinstate it.
The father is totally pessimistic about the possibility of the level of communication between the mother and himself improving. He describes his relationship with her as “It's just terrible, it's unbearable to talk to S about the children.” Indeed, both parents were pessimistic about the current state of their relationship, and the only reason the mother was optimistic about the future, was if the future involved the children and herself in Cairns.
I was concerned at the priority that the father places on his work commitments. A comment he made in cross-examination was to the effect that:
There is nothing more enjoyable to have my children from 9 to 5, but due to my shift work and what I do I'm trying to be flexible here. I love my kids dearly and I like to see my children and my work as well because I couldn't afford to lose my job.
From this I formed the impression that whilst both work and spending time with the children are important, where they conflict work comes first. This not only demonstrates a lack of insight into the responsibilities of parenthood, but also leads me to think (on top of an overall assessment of his evidence) that where the mother and father's evidence conflicts about when he has turned up to spend time with the children and for what periods of time, it is probably more likely than not that the mother's evidence is to be preferred. His lack of insight is also evidenced from his use of the term that he is “trying to be flexible here.” His idea of flexibility seems to involve having the freedom not to spend time with his children, or not to spend the full amount of time with his children, irrespective of the impact of this on the children and their mother.
I have lingering doubts about whether the husband's recollection of events is accurate, when it comes to the issue of whether the mother had told him about their change of address. This was a major topic on cross examination. The mother maintains that she told him of her new address by text message. The father denies this. And yet he seems to recall receiving text messages from the mother on other far less important aspects of parenting. I cannot make a positive finding in this regard, but as I say I have lingering doubts.
I have concerns about his explanation for not seeing the children on J's birthday. This was another major topic of cross examination. Again, his explanation is that he did not know where the children lived. Indeed, the context of this evidence is the father's assertion that the mother has denied him time with the children on such an important occasion for the children. Curiously, on the one hand the husband denies getting yet another text message advising him of where they were living. His evidence is “I didn't receive that. Why would I not turn up to see the children on their birth date?”. And yet, a little later on in his cross-examination he acknowledges that he was working on J's birthday. His evidence was to the effect “If I would have known S's address and telephone number I would have simply said to S 'I can't have the girls on the birthday because I am working.”
I am left wondering whether it was convenient for the father not to know, or to pretend not to know, where the children were living. This would both somehow fuel the conflict that existed between the mother and the father, as well as enable him to justify working on a date that is significant to the children.
Another aspect of the father's evidence that puzzled me was his acknowledgement that at the time the orders were actually entered into he was already working shifts and therefore knew that it would frequently be the case that he could not honour the commitment he was making in the consent orders. Of course, in all likelihood the mother knew that this was going to be the case as well, but her responsibility was to make the children available, a responsibility that I am satisfied she acquitted more often than not. It seems possible that the father either entered into the commitments embodied in the consent order in question either capriciously or with no real sense of the commitment that he was making. Whichever way one looks at it, his actions do not reflect well on him.
The father's new wife, A, also provided an affidavit and was cross-examined. There is little doubt that her relationship with the mother is a non-existent one, to use her own words. Unlike M, the mother's new husband, the father's new wife does appear to have bought into this conflict and she freely acknowledges that permitting relocation solves the conflict between the adults, but “does not help the children and the father.” Overall, I think the family consultant's assessment of A was an accurate one.
Applicable Law
To the best of my knowledge, the Full Court of the Family Court of Australia has not yet determined whether the amendments to the Family Law Act 1975 enacted on 1 July 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 have led to a change in the law relating to relocation. However, the Full Court’s recent decision in Goode and Goode [2006] FamCA 1346 does provide guidance as to how the new Part VII of the Act is to be interpreted and applied. That decision is, for the time being, the only authoritative guidance on the effect of the changes. Whilst the context of the decision was interim parenting orders, it is nonetheless a useful starting point to consider relocation after 1 July 2006.
Before considering Goode & Goode, however, the law as it existed before 1 July 2006 should be summarized. The three most significant decisions in recent times have been the High Courts decision in AMS v AIF and AIF v AMS [1999] HCA 26; the Full Court’s decision in A v A: Relocation Approach (2000) FLC 93-035; and the High Court’s decision in U and U (2002) FLC 93-112. There is an excellent and succinct discussion about the law emerging from these cases in the Family Law Council’s Discussion Paper on Relocation in paragraphs 3.14 to 3.35. For present purposes the summary set out at 3.35 will suffice:
In summary, the “general consistency of approach” that can be drawn from the discussion above about the legislative provisions and case law regarding the best interests of the child is as follows.
·Relocation cases are not a special category of cases. The Family Law Act does not specifically mention ‘relocation’ and the cases are best described as “parenting cases where the proposal of one of the parties involves relocation”.[1]
·The best interests of the child is the “paramount consideration, but not the sole consideration”. For example, the interests of the parents can be considered if they are relevant to the best interests of the child.
·The court must consider the competing proposals for the future care of the child, but is not limited to the proposals presented by the parties. All the proposals need to be evaluated in terms of the advantages and disadvantages for the best interests of the child and the court should explain why a particular proposal is preferred.
·The issue of relocation cannot be separated from the issue of residence and the best interests of the child. The relevant factors in subsection 68F(2) must be considered and the weight given to each should be explained by the court. The object and principles in section 60B provide guidance for this exercise.
·A court cannot require the person who wishes to relocate to demonstrate “compelling reasons” for relocation as this would incorrectly focus on the parent’s interests instead of the best interests of the child.
·It should not be assumed that the contact parent cannot relocate as well, as the interests of the child (not the parent/s) must be paramount.[2]
[1] A v A: Relocation approach (2000) FLC ¶93-035 at 87,541, quoting Paskandy v Paskandy (1999) FLC ¶92-878 at 86,453.
[2] Family Law Council Discussion Paper, Relocation, Canberra, February 2006.
The changes that came into effect on 1 July 2006 are substantial. It is possible that the cases referred to above are still useful but no longer determinative of how relocation cases are to be decided. In the judgment of Kirby J in AMS v AIF[3], His Honour sets out nine general propositions derived from the authorities spanning thirty years. His Honour’s first proposition, set out at paragraph 86,401, is as follows: “First, each case depends on the application of the governing legislation which, in turn, is in a constant state of amendment and re-expression.”[4]
[3] AMS v AIF and AIF v AMS [1999] HCA 26
[4] AMS v AIF and AIF v AMS [1999] HCA 26 at 86,401.
In referring to legislative change, Kirby J may well have had in mind the substantial changes brought about by the Family Law Reform Act 1995. It is possible that the Shared Parental Responsibility amendments to the Act in 2006 were even more substantial than its predecessor about a decade earlier. The substantive point made, however, is that the starting point is legislation. In the metaphorical kingdom of family law, legislation reigns supreme. If the legislation has changed significantly, it may well be that the existing cases provide far less guidance than they once did.
The Full Court in Goode provides several key guiding principles. The first on is found at paragraph 10:
Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration (as they did prior to the amending Act – see B v B: Family Law Reform Act 1995 (1997) FLC 92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.[5]
[5] Goode and Goode [2006] FamCA 1346 at 10.
The Full Court states the key principle that in all decisions relating to particular parenting orders, including of course one that would involve relocation, the individual child’s best interests remain the paramount consideration. This is what s.60CA states. The Full Court then uses the words “framework” and “context”. Section 60CC sets out the framework in which best interests are to be determined. The objects and principles found in s 60B provide the context in which the s.60CC factors are to be examined, weighed and applied. The dichotomy therefore is: framework and context. The s.60CC framework, however, in fact has two levels to it – the primary considerations referred to in s.60CC(2), and the additional considerations referred to in s.60CC(3). Parkinson has an interesting approach to conceptualizing the relationship between the sections referred to above. In “Decision-making about the best interests of the child: the impact of the two tiers” he states:
One way to conceptualise the relationship between the objects, the primary considerations and the additional considerations is in terms of taking a photograph of a distant scene. The objects and principles (s 60B) and the primary considerations (s 60CC) provide the general directions in which the camera should be pointed, while the additional considerations are the means by which the camera can be focused on the scene to provide a clearer picture. Another way of conceptualising the relationship is that the objects and primary considerations set the direction of judicial decision-making but do not dictate the route. [6]
[6] (2006) 20 Australian Journal of Family Law 179 at 183-184
Parkinson’s way of conceptualising these matters does not appear to be inconsistent with the Full Court’s conceptualisation of framework and context.
It is noteworthy that the presumption in s.61DA is considered by the Full Court as part of the framework for determining parenting orders or in other words it is part of the overall s.60CC exercise to determine what is in a particular child’s best interests. Sections 61DA and 65DAA are both new and highly significant in the present context. Even in a relocation case, s.61DA is an important piece of the framework and if it is not rebutted s.65DAA becomes another important piece of the framework. Even in a relocation case, if the presumption is not rebutted, the court must consider the practicality of equal time if it is consistent with the child’s best interest and reasonably practicable, and following that, substantial and significant time. There are probably few relocation applications that are consistent with maintaining equal time or substantial and significant time after relocation unless both parents move. In theory, substantial and significant time as defined in s.65DAA(3) could be achieved even after relocation, but in practice it is unlikely that it could occur regularly. It is somewhat unusual that s 65DAA(3) does not import any notion of frequency or regularity. It could be satisfied, in theory, by an order for time that only occurs four times a year, provided that the definition of time incorporates the features referred to in paragraphs (a), (b) and (c) of s.65DAA(3).
I doubt if such a legalistic interpretation of substantial and significant time was intended by the legislature. Such a narrow definition would sacrifice substance to form and would be clearly inconsistent with the objects of the legislation. In other words, the framework would be inconsistent with the context.
If I am correct, and the decision-making process gets as far as a consideration of s.65DAA, and the evidence is that the non-relocating parent cannot move, or it is not reasonable to expect them to move, then it is hard to imagine how relocation could be allowed. This conclusion is made clearer as a result of the Full Court’s examination of the meaning of “consider” in the context of s.65DAA. After reviewing how the word was interpreted in two Federal Court administrative law decisions the Full Court concluded at paragraph 64 as follows:
While these observations of the Federal Court are of some assistance, we do not think that the meaning of “consider”, when applied to consideration of administrative law as in the cases referred to, is entirely apposite to the meaning of the word in s 65DAA. This is so because the juxtaposition of ss 65DAA(1)(a), 65DAA(1)(b) and 65DAA(1)(c) suggests a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in s 65DAA(1)(a), being the best interests of the child, and s 65DAA(1)(b), reasonable practicability, are met. The same considerations apply to s 65DAA(2).[7]
[7] Goode and Goode [2006] FamCA 1346
Thus the word ‘consider’ in s.65DAA is given a narrow contextual application – it is not to consider at large, but rather to consider a reasonably narrow range of results specified in s.65DAA.
Given the narrow interpretation of to ‘consider’ in s.65DAA, it must be the case that if a relocation case gets as far as a determination of the impact of s.65DAA, and the other parent cannot move, the relocation is not likely to succeed. In these cases therefore, the real focus seems to be s 61DA and whether the presumption can be rebutted. As the Full Court indicated at paragraph 43 in Goode, in a final hearing the presumption will not apply if there is abuse or violence (s.61DA(2)) and may be rebutted if the Court is satisfied that it would conflict with the child’s best interests (s.61DA(4)). If the presumption of equal shared parental responsibility is not rebutted, however, relocation is an unlikely result.
This means that the focal point for relocation cases that do not involve abuse or violence is s.61DA(4) and, being able to satisfy the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility. This must necessarily lead back to s.60CC and the framework for determining best interests.
A detailed analysis of all of the relevant primary and additional considerations needs to be undertaken here. This analysis however occurs in a specific context in relocation cases – to rebut the presumption of equal shared parental responsibility.
At this point the Full Court’s next guideline to understanding Part VII becomes relevant. At paragraph 72 the Full Court was considering the continued application of the principles in Cowling v Cowling (1998) FLC 92-801 and makes the following observations:
In our view, it can be fairly 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, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, 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.[8]
[8] Cowling v Cowling (1998) FLC 92-801 at 72.
Given the ‘legislative intent evinced in favour of substantial involvement of both parents in their children’s lives’ it is hardly likely that s.61DA(4) will become an easy, readily available escape clause from that legislative intent. Rebutting the presumption needs strong, clear evidence. Given the overall context (s.60B) in which the framework (s.60CC) appears, it is hardly likely that a statutory scheme that so strongly encourages shared parenting is to be easily subverted. Indeed, the Full Court has demonstrated its willingness to consider context (i.e. the objects in s.60B), in cross-checking whether its interpretation of framework and process was correct. For example, at paragraph 80 the Full Court states:
We have earlier touched upon this matter. Even absent the application of the presumption and thus the requirement to consider equal or substantial and significant time where it is not contrary to the child’s best interests and otherwise practicable, the addition of sub-section (a) to s 60B(1), which is to ensure that children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests, is not necessarily consistent with a preference at an interim stage in favour of maintaining a status quo. That is not to say that maintenance of a stable arrangement will not be in the best interests of children in a particular case, but it will be one of the factors to be considered pursuant to the additional considerations in s 60CC(3) and to be determined in conjunction with the primary consideration in s 60CC(2)(a) of the benefit to the child of having a meaningful relationship with both of the child’s parents.[9]
[9] Goode and Goode [2006] FamCA 1346 at 80
In Goode the Full Court demonstrated a willingness to change well-established principles relating to interim parenting applications because of the substantial changes to the governing legislation. It is likely, I respectfully suggest, that the Full Court will do likewise in the context of relocation. This is not because the mobility of the Australian population has changed, or because of societal attitudes towards relocation. It is purely and simply because the legislation has changed. The Full Court in A v A: Relocation Approach[10] clearly recognised the centrality of legislation at paragraph 108 of its judgment when it referred to the necessity “to follow the legislative directions espoused in s.60B and s.68F”. The Full Court also there recognized that the “object and principles of s.60B provide guidance to a court’s obligations to consider the matters in s.68F(2)…”. The reality is that, to use the words of the Full Court, the “legislative direction” has changed. Indeed the change is quite substantial, particularly in view of ss.61DA and 65 DAA. Nonetheless, it is not my task in this case to anticipate what a future Full Court might say in a relocation case. It is my responsibility, however, to apply the current law as I understand it.
[10] A v A: Relocation Approach (2000) FLC 93-035
To complete this overview of the applicable law in the context of a parenting case that might result in relocation, it is necessary to consider a key concept found in the Act. In s.60B(1)(a), there is reference to the concept of “meaningful involvement”. In s.60CC(2)(a) the first of the primary considerations, there is reference to the concept of “meaningful relationship”. The concepts are probably the same in substance. In each case there is a strong link between the best interests of a child on the one hand, and meaningful involvement and meaningful relationship on the other hand. It may well be that absent abuse and violence, in order to rebut the presumption under s.61DA(4) some consideration needs to be given as to how a relocation impacts on meaningful involvement and meaningful relationship as these concepts are so clearly linked to the best interests of a child. In other words s.61DA(4) takes one back to s.60CC(2) with its emphasis on meaningful relationship. So what do these terms mean?
Parkinson discusses this in his article at pp184-185:
Section 60CC clearly indicates that the court should so exercise its discretion in relation to post-separation parenting arrangements that meaningful relationship between parents and children are maintained, in the absence of violence or abuse. A child will almost always benefit from a meaningful relationship with both parents in the absence of violence, abuse, or very high conflict. Where there is ongoing violence or intractable conflict, the interests of the child may best be served by restricting the contact with the non-resident parent or preventing it entirely. As a general rule, then, the primary considerations reflect the findings of a very large body of social science research on parenting after separation.
Having said this, courts cannot by order, create meaningful relationships between parents and children; they can only create or maintain the circumstances that make meaningful relationships possible. In an individual case, the evidence may indicate that the child will not in fact benefit from such a relationship with both parents, or that such a benefit is incapable of realisation in the circumstances of the case. [11]
It is also instructive to set out a footnote to the above passage:
On what constitutes a meaningful relationship see P Amato and J Gilbreth, ‘Nonresident Fathers and Children’s Well-being: a Meta-analysis’, (1999) 61 J Marriage & Fam 557. In a meta-analysis of 63 prior studies on parent-child visitation, Amato and Gilbreth confirmed that frequency of contact in itself does not appear to be associated with better outcomes for children. However, emotional closeness, and in particular, authoritative parenting, is highly beneficial to children. Authoritative parenting included helping with homework, talking about problems, providing emotional support to children, praising children’s accomplishments, and disciplining children for misbehaviour. The researchers concluded that ‘how often fathers see children is less important than what fathers do when they are with their children’ (at 569). On authoritative parenting, see D Baumrind, ‘Authoritarian v Authoritative Control’ (1968) 3 Adolescence 255. The term refers to a style of parenting which is neither authoritarian nor permissive.[12]
[11] Parkinson, P ‘Decision-making about the best interests of the child: The impact of the two tiers’ (2006) 20 Australian Journal of Family Law 2
[12] Ibid.
It is interesting in the present context to note that the social science research emphasises emotional closeness and authoritative parenting more than frequency of contact, in terms of better outcomes for children. Arguably though, without frequent time between non-resident parents and their children, the emotional closeness and authoritative parenting cannot be developed. There are certainly shades of what the social scientists call “emotional closeness and authoritative parenting” in the definition of substantial and significant time in s.65DAA(3).
Brown FM considered the meaning of ‘meaningful’ in the context of s.60CC(2) in P & P [2006] FMCA Fam 518 at paragraphs 256-258.
256. In the context of section 60CC(2)(a), the use of the word “meaningful” by the legislature is interesting. The ordinary definition of “meaning” and “meaningful”, when it is attached to an idea or some object, is denoting of the significance or importance of that idea or object. It seems clear that the court is only to consider whether a relationship is “meaningful”, to the child concerned, after it has assessed the benefit or advantage such a relationship will bestow on the child concerned. Accordingly, it seems clear that the legislature intends the court to consider the significance of the child concerned having a relationship with both his or her parents in a positive or beneficial sense.
257. The practical underpinning of how a relationship for a child with one or either of his or her parents is to be rendered “meaningful”, in the context of a parenting order, is provided by section 65DA. The emphasis is on time, but not merely on the extent of that time, but rather on its quality and the manner of its utilisation with the child or children concerned. In this context, the court is to consider the parent concerned spending time that falls on weekends; holidays; weekdays; and perhaps most importantly, time that allows that parent to be involved in the child’s daily routine and occasions of particular significance, both to parent and child.
258. The rationale of section 65DAA is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flows from them being exposed to their parents in a variety of settings. These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting; as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in more mundane situations. In this way, the child is likely to have a more balanced and so richer relationship with the parents concerned.
His Honour correctly links the concept of ‘meaningful’ to s.65DAA, and points out both the quantitative and qualitative aspects of it. I will add my own observations about the concept of meaningful involvement or meaningful relationship. It is a multi-faceted concept, spanning more than one dimension. For example, as FM Brown correctly points out, it is both quantitative and qualitative in nature. The concept is not a “one size fits all” concept. What is ‘meaningful’ to a baby, toddler, school-age child and teenager may, indeed probably will, be different in each case. The concept needs to not only take into account the capacity, developmentally and otherwise, of a child to receive the benefits of meaningful relationships and involvement, but the capacity of a parent to actually provide the same as well. Accordingly, the concept also takes into account the history and quality of the relationship between parent and child, and the quality of parenting. The past and present are often the only reliable indicators of the future.
Relocation cases raise all of these issues. These are difficult cases to decide. FM Brown in P & P [2006] FMCAfam 518 succinctly describes some of these difficulties when he said at paragraph 21 “there is no satisfactory outcome in this case. The various options available cannot be manipulated like the surface of a Rubik’s Cube to reach a perfect result.” He goes on to say:
If I make the orders the father wishes, T will continue to see him regularly, but the mother will be unhappy and frustrated at this outcome. She is likely to feel bitterly disposed towards Mr P. Her level of frustration and unhappiness may have implications for her future psychological health and her capacity to parent T to the full extent of her potential.
If I make the orders the mother wishes, T will loose the opportunity to have regular interaction with his father, because he will be living far away from him and the father will be upset and sad at the separation. In addition, arrangements for T to spend time with his father are likely to be limited and difficult. The parties’ currently disastrous financial situation will stand in the way of T being able to spend frequent periods of time with his father. There may well be difficulties in T maintaining a relationship with his father, through the telephone or other electronic means, given his level of language skills. As a result of these factors, T may feel that his father is not an integral part of his life and, as a result, the paternal relationship between T and his father may not be as warm and spontaneous, as it might otherwise have been.
Regardless of the outcome in this case, one or other of the parties will feel hard done by. In either case, the consequences of the problem and its resolution may well be a source of continuing bitterness between the parties, one of whom will almost certainly feel harshly treated. I say this at the outset because I think it right to acknowledge and express my regret for the inevitable distress the resolution of this problem will bring, whatever the outcome. I hope that the parents will each cope with the situation as well as possible, so that the difficulties for T will be minimised and his relationships with each of his parents maintained, as well as the circumstances permit.
Relocation cases are invariably very difficult for all concerned, involving as they do two competing and irreconcilable claims of right. These claims of right arise when the parents of a child have separated and for legitimate reasons wish to take different directions as to where they will live in future. On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees fit, both as a parent and as an individual, separate from the other parent concerned. On the other hand, it is the right of a child to maintain a meaningful relationship with both his or her parents, in the now changed circumstances of his or her parents’ separation.[13]
Many of these difficulties are present in this case.
[13] P & P [2006] FMCA Fam 518 at 21.
A closing thought in this overview of the law post 1 July 2006 deals with the role of the freedom of movement consideration in relocation cases. Is it time to reconsider the significance of freedom of movement after the Shared Parental Responsibility amendments to the Act?
FM Brown articulates the freedom of movement argument, and the dilemma it creates in relocation cases, in these terms at paragraph 13 in P & P:
Australia is a free and democratic society which prizes the rights of its citizens to live where and how they choose. At the same time, children have a right to maintain and develop relationships, within their families, which are likely to be significant to them, both in the short and long term.[14]
[14] P & P [2006] FMCA Fam 518 at 13.
The fourth general proposition enunciated by Kirby J in AMS v AIF relates to freedom of movement. It states:
Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.[15]
[15] AMS v AIF and AIF v AMS [1999] HCA 26 at 145
It is important to note that Kirby J described freedom of movement not as a right, but rather a ‘freedom’ to which society attaches high importance. Be that as it may, Kirby J reminds us that relocation cases are to be decided by reference to the “touchstone” being “the welfare or best interests of the child and not, as such, the wishes and interests of parents.” It seems that if there is to be a hierarchy of considerations in determining relocation cases, in that hierarchy notions of freedom of movement must be subsumed to the best interests of the child. The Full Court in A v A[16] expressly acknowledged this when it states at p 87,552 that “the ultimate issue is the best interests of the child and to the extent that the freedom of movement impinges upon those interests then it must give way”.
[16] A v A: Relocation Approach (2000) FLC 93-035
In U v U[17], the majority judgment again addresses the freedom of movement issue, at pp 89,090-1). In the majority judgment their Honours observed as follows:
Whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent… ‘Contact’ with both parents is desirable and important. So too is the presence of a ‘stress-free environment’ for the child, to the extent of course, that it is possible for it to exist in a fractured emotional relationship. It is unlikely that many of such situations will admit of perfect solutions.… The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.”[18]
[17] U and U (2002) FLC 93-112
[18] U & U (supra) at 89,090-1
It may be unfortunate, perhaps, that the majority described freedom of mobility as a right, thus creating the expectation in some litigants that it is a right that can be enforced by the courts exercising jurisdiction under the Family Law Act. It clearly is not an enforceable right in this context. But as the High Court again clearly articulates that whatever the status to be given to freedom of movement – “it must defer to the expressed paramount consideration.”
It is possible that in some cases the notion of freedom of movement on the one hand, and the paramount considerations of the child’s best interest on the other hand, have been put in the metaphorical balance which occurs as judgment is being exercised in these very difficult cases. If that is the case there must be serious concern about putting such different notions “in the balance”. It is more akin to comparing apples to oranges, than apples to apples. Indeed, there is no comparison because the High Court and the Full Court have repeatedly stated that the notion of freedom of movement defers to the paramount consideration of the best interests of a child. There is a place for considering freedom of movement in the difficult exercise of judgment that occurs in relocation cases. However, the consideration is not a weighty one. Far more weight must be attributed to the expressly articulated considerations referred to in s.60CC, than to the unarticulated interest of the parent’s’ freedom of mobility that has somehow crept into the Part VII exercise of judgment. If the legislature had intended to somehow elevate parental mobility to an equivalent status with the existing considerations in s.60CC it could have done so. Clearly the post 1 July 2006 amendments do not. Some may regard this as harsh and disappointing. Some might say that it disregards the clear statistics indicating that the Australian population as a highly mobile one (see, for example, Family Law Council Discussion Paper on Relocation at paragraphs 1.1-1.3 and the April 2006 HILDA survey “Families, Incomes and Jobs: A statistical report of the HILDA survey” which is discussed briefly in the Editorial in (2006) 20 Australian Journal of Family Law at 113-114). Nonetheless, the Family Law Act is silent about a parent’s freedom of movement. Indeed, arguably the Act imposes a fetter that did not exist before 1 July 2006 by saying that shared parental responsibility carries with it the obligation to make decisions jointly, and to consult and make a genuine effort to come to a joint decision, in relation to major long-term issues: s.65DAC. The definition of major long-term issues in s.4(1) includes issues about changing the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
The High Court identified in AMS v AIF and AIF v AMS [1999] HCA that parenthood has always had an impact on the wishes and mobility of parents. It is not just freedom of mobility that is affected by parenthood – many other personal freedoms are likewise affected. Family law in its broad sense already recognises that parenthood carries with it responsibilities irrespective of the nature of the relationship between the parents of the child. For example there are obligations to financially provide for the children. Howsoever one might have perceived a person’s freedom to deal with their finances as they wish before parenthood, once they become a parent it is an unquestionable incident of parenthood that that very same freedom is not just curtailed, but converted into a legal obligation. Can’t the same be said for freedom of mobility? In any event, to describe it as a ‘freedom’ is, in my opinion, highly problematic. The emotive use of the word itself tends to assert a certain superiority and precedence over other obligations in a context where there is no objective basis for it. It would be equally emotive and problematic to reconceptualise the notion of freedom of movement into the freedom to disrupt the relationship between child and parent. And that is one reason why contemporary Australian family law asserts the primacy of the best interests of the child, even in parenting cases where the proposal of one of the parties involved relocation. I acknowledge, however, that the freedom of movement was not raised with any force by the mother’s counsel.
Application of the law to the facts
As I indicated in the discussion of the applicable law above, I believe that under Pt VII of the Act in most cases in most cases a relocation would not be permissible unless the presumption of equal shared parental responsibility in s.61DA of the Act is rebutted. As I indicated earlier in the judgment, I do not believe that the presumption has been negated pursuant to s.61DA(2) not only because the mother has been such an active participant and protagonist in the abuse and violence to which she refers in justification of negating the presumption, but also because both in a qualitative and quantitative sense it may well be that the conduct that has been engaged in by these parents does not quite meet the threshold of abuse or violence.
The real issue in this case is whether the presumption has been rebutted because it is not in the best interests of the children for their parents to have equal shared parental responsibility. I think it is a rare case that will meet the relatively high threshold set in s.61DA(4).
I say a high threshold because overall Pt VII of the Act so strongly encourages shared parenting, that it is not likely that this can be easily subverted. However, I think this is one of those rare cases. The level of parental conflict is so high and the potential adverse implications for the children if they are not shielded from it is so great, that rebutting the presumption is appropriate, even though it will result in a relocation from Brisbane to Cairns.
I am very conscious of the fact that, in my opinion, the mother has been such an active participant and protagonist in the conflict. She helped create the very conflict which she now asserts to justify her removing the children and herself from the conflict. But such thinking is inconsistent with the paramountcy of the best interests of children. As I said to the parents at the hearing, I have to do what is best for their children. It is not about punishing either parent for their failures as a parent, or rewarding them for the things they have done well as a parent. Really, Pt VII is about doing the best I possibly can for these children. Sometimes, that needs to be done in spite of what the parents have done or failed to do.
In rebutting the presumption under s.61DA(4) I need to address the issues referred to in s.60CC(2) and (3) and I will proceed to do so.
Section 60CC(2)(a) – One of the primary considerations is the benefit to the children of having a meaningful relationship with both of their parents. I have discussed elsewhere in my judgment what this means. The first matter that I observe is that the family consultant is confident that the meaningful relationship between the children and their father can be maintained if, and after, they are permitted to relocate. I agree with her assessment.
In any event, the benefit to the children of the meaningful relationship with their father must be understood in the context of the history of their relationship to date. He has been inconsistent, and at times erratic about spending time with the children and either justifies this by reference to his work commitments or because of problems that he attributes solely to the mother and not himself.
The father's affidavit contains extensive evidence about the history of the making of both sets of previous orders in relation to the children, the problems that arose in implementing those orders, and the many occasions when he was not able to spend time with the children. Of course, he blames the mother for many of these, and his evidence in this regard is discussed elsewhere in this judgment.
What is quite clear, however, is that even on his own evidence there were many, many occasions when he could not see the children because of a choice that he made to work. The existing relationship between the children and their father is a fractured one. I am not attributing this solely to the father - by no means. It is hardly what I would call a meaningful relationship and I am, accordingly, satisfied that the children actually have a far better prospect of a meaningful relationship with their father if they are allowed to relocate to Cairns with their mother, and the time that they spend with their father is restructured.
Section 60CC(2)(b) – The need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence – I have commented elsewhere in my judgment about this primary consideration. Even though the mother is an active participant in a conflict with the father that is inevitably having adverse psychological impacts on the children, this provision requires me to look at the impact on the children. The clear message from the family consultant is that a relocation to Cairns helps to protect the children from their parents' conflict and, accordingly, I am satisfied that the move is in accordance with this consideration.
Section 60CC(3)(a) – Whilst J is not able to express a view, I accept the family consultant's evidence that R has expressed a view in favour of relocating to Cairns, partly because she feels it will take them away from the conflict.
Section 60CC(3)(b) requires me to look at the nature of the relationship between the children and their parents and other significant persons. The children have a very strong bond with their mother as she has been their primary carer for most of their lives. The children also have a strong relationship with their father but, as I have described it above, it is a fractured one, partly because of the husband's own set of priorities that ranks his work commitments above spending time with his children. The option of the father moving to Cairns was simply unrealistic from his perspective. It was inconsistent with his work commitments and the obligations he feels towards his new family. The possibility of the father’s move to Cairns would not, in my opinion, have been in the children’s best interest as it simply provides for a fresh venue for the conflict to be played out.
I am satisfied that a relocation to Cairns is not going to adversely impact on the relationship between the children and their father. Indeed, I share the family consultant's hope that such a move may enhance the relationship, particularly if it is successful in minimising the conflict.
Section 60CC(3)(c) refers me to the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the children and the other parent. It is hard not to be critical of both parents as regards this consideration. The family consultant, and, indeed each parent, agree on the intensity and entrenched nature of the conflict and how it was undermining relationships between the children and their father.
I am satisfied that keeping the children in Brisbane which is, in essence, the father’s proposal, will change nothing so far as this family is concerned. In my opinion the orders proposed by the father are a recipe for disaster for these children. They are deeply enmeshed in conflict and they will continue to be so. However, I am satisfied that with a set of closely structured orders the mother will continue to facilitate a relationship between the children and their father if they are permitted to relocate to Cairns.
I agree with the family consultant's assessment that this will remove the stress of the conflict and provide an opportunity for the mother to be far more supportive of the time the children will spend with their father. I accept that there is the risk that much of this responsibility will fall on R's shoulders, but I am satisfied that the mother will not hinder this, if it is the case. The family consultant believes that R is able to deal with this responsibility.
Indeed, my assessment is that there is some risk that the father will simply "give up" in terms of spending time with his children, but this risk is less than the risk of the mother failing to facilitate that time occurring. This is the father's choice, however. It would be a terrible tragedy for the children if he decided to simply give up. They need him. He needs them. But it is simply not working in Brisbane.
Section 60CC(3)(d) invites me to look at the likely effect of changes in the children's circumstances. I am satisfied that the mother has made the appropriate investigations to ensure that every aspect of the needs of the children in a physical sense, including the specialised health needs of J, will be provided for in Cairns so to that extent the inevitable changes that occur in relation to them will not have an unnecessarily adverse impact on them. R is going into high school in 2007 anyway. Overall, and having regard to all the other matters I refer to in this judgment, I am satisfied that the changes for the children will be for the better, particularly in view of taking them away from the conflict.
Section 60CC(3)(e) talks about the practical difficulty and expense of children spending time with their father. There is no doubt that the relocation to Cairns will make it logistically more difficult, as well as expensive, for the father to spend time with the children. But this needs to be contrasted to the current unsatisfactory state of the arrangements to spend time. I hope the new arrangements will provide much greater certainty, and therefore a greater likelihood of the time actually occurring, even if this comes at the price of greater practical difficulty and expense. The expense will be shared.
Section 60CC(3)(f) refers to the capacity of each parent to provide for the needs of the children. The mother is the undisputed primary carer of these children but there is no criticism of the father's standard of care when the children are with him. Accordingly, I am satisfied that he has the capacity to provide for the needs of the children during the times when they will spend time with him.
Section 60CC(3)(g) refers to the maturity, sex, lifestyle and background of the child and either of the child's parents. This consideration is covered in many of the other considerations referred to in these my reasons.
Section 60CC(3)(h) only applies if the child is an Aboriginal child or a Torres Strait Islander child.
Section 60CC(3)(i) refers me to the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents. As I have indicated at several points above, the high level of conflict between these parents means that they rate poorly under this consideration. Both parents have allowed their attitudes towards each other to get in the way of their responsibilities as parents and this is one of the main reasons why the relocation to Cairns will be permitted.
Section 60CC(3)(j) and (k) each refer to family violence and the terms of family violence orders. I am not sure, and do not need to decide, whether the text message wars that both parents engaged in, and the abuse and harassment to which they were both parties, falls within the definition of family violence in s 4(1) of the Act. If it is family violence, then both parents were perpetrators and victims and I am satisfied that a relocation to Cairns will ameliorate the situation.
Section 60CC(3)(l) refers to the need to make orders that are least likely to lead to the institution of further proceedings in relation to the children. There is no guarantee that the orders that I will make will provide peace to this family. I am satisfied, however, that a relocation to Cairns will provide less chance of litigation than if they simply remained in Brisbane.
Section 60CC(4) focuses on the failure of both parents to fulfil their responsibilities as parents. They are both equally deficient in this regard. Again, I am satisfied that a relocation to Cairns provides a hope of peace for this family, as well as for a meaningful relationship between the father and the children, that would not occur in Brisbane.
This is a sad and difficult case. Whilst it is still relatively early in the history of the new Part VII of the Family Law Act, it may well be that there will be very few cases where s.61DA(4) is successfully invoked. In this case, however, it has been successfully invoked. It is in the best interests of R and J that the presumption of equal shared parental responsibility is rebutted. It is in their best interests that I order their mother to have solely parental responsibility, which thus gives her the freedom to move to Cairns. As I said to the parents in my closing words during the hearings – the conflict has to stop before the damage to the children is irreparable.
Whilst I am not entirely satisfied that the conflict will stop in its entirety as a consequence of the orders that I make, I am satisfied that there is a greater chance of this occurring than if they were to remain in Brisbane. The father will have an opportunity to build a relationship with his children that is, potentially, even more meaningful than it has been whilst they were living in Brisbane. For the sake of his children, I hope that he embraces this opportunity.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Lisa Molloy
Date: 25 January 2007
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