HAMMER & PALMER
[2011] FMCAfam 14
•17 January 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HAMMER & PALMER | [2011] FMCAfam 14 |
| FAMILY LAW – Parenting – relocation. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| AMS v AIF (1999) 24 Fam LR 756 King & Finneran [2001] FamCA 344, (2001) FLC 93-079 Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 |
| Applicant: | MS HAMMER |
| Respondent: | MR PALMER |
| File Number: | NCC 1669 of 2007 |
| Judgment of: | Lapthorn FM |
| Hearing date: | 22 December 2010 |
| Date of Last Submission: | 22 December 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 17 January 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kelly |
| Solicitors for the Applicant: | Bridge St Lawyers |
| Counsel for the Respondent: | N/A |
| Solicitors for the Respondent: | Rice More & Gibson Solicitors |
ORDERS
That the existing orders dated 28 May 2008 be discharged.
That the mother and father have equal shared parental responsibility for the long term care, welfare and development of the child, [X] born [in] 2004.
That the child [X] born [in] 2004 live with the mother.
That the mother be permitted to relocate the child’s primary place of residence to [B] in the State of Victoria.
That the child spend time and communicate with the father as follows:
(a)On the fifth weekend of each school term in Melbourne from Friday 6.30pm to Sunday 5.00pm;
(b)From 12 noon on the first day after the child’s last day at school for terms one and three each year until 12 noon on the day immediately prior to the day on which the child is required to return to school for the commencement of terms two and four;
(c)For ten days at the end of the second term each year from 12 noon on the first Monday of the holidays to 12 noon on the tenth day thereafter;
(d)For half of all Christmas school holidays being the first half in even numbered years and the second half in odd numbered years;
(e)By telephone and internet communication at all reasonable times;
(f)Other times as agreed between the parties.
That for the purposes of facilitating the father’s time with the child, the mother or her nominee shall meet the father or his nominee at Sydney Airport at the start and end of each period of time spent in order 5(b), (c) and (d).
That for the purposes of the father spending time with the child in order 5(a), the mother or her nominee shall meet the father at Southern Cross Railway Station in Melbourne at the start and conclusion of the time spent.
That each party bear their own costs in delivering/collecting the child to/from Sydney Airport and Southern Cross Railway Station in Melbourne.
That each party within 28 days of the mother relocating the child to Victoria, shall install a camera and Skype program at their own expense to enable the father and child to communicate via Skype.
That the mother and father each:
(a)Give all consents and authorities to allow the school of the child to provide to each parent any school photographs, reports, notices or newsletters specific to the child;
(b)Forthwith notify the other parent of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the child when the child is in their care and provide the name of the hospital, treating medical practitioner and/or medical facility that provided the medical treatment for the child;
(c)Give all consents and authorities to any treating medical practitioner to provide any medical information for the child to the other parent;
(d)Not prevent or hinder each party from attending at the child’s school for any functions relating to the child;
(e)Not denigrate the other party or the other party’s family or the other party’s associates to the child or in the presence of the child, nor allow any third party to denigrate such persons to the child or within the presence of the child;
(f)Keep the other party advised of any changes to their residential address and telephone contact numbers within 7 days of any change.
IT IS NOTED that publication of this judgment under the pseudonym Hammer & Palmer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
NCC 1669 of 2007
| MS HAMMER |
Applicant
And
| MR PALMER |
Respondent
REASONS FOR JUDGMENT
Introduction
[X] is the 6 year old child of Ms Hammer and Mr Palmer. The mother wishes to move with the child from [K] near [T] in New South Wales to [B] in Victoria. The child’s father, who lives in [A], opposes this move.
Background
The parties who are first cousins commenced to live together in 1998 and separated in 2007. The father is 39 and the mother is 31 years of age. The child was born [in] 2004.
The father has an older child, [Y], from another relationship, who he has not seen for many years. He is currently seeking orders in this Court to resume a relationship with [Y].
In April 2006 the maternal grandmother was diagnosed with a malignant brain tumour.
On 28 May 2008 I made final orders by consent between the parties that provided for: the parties to have equal shared parental responsibility for the child; the child to live with the mother; the mother be permitted to relocate the child’s residence from [A] to [T]; and provided the father remained within 150km of the [T] Post Office the child was to spend time with him each alternate weekend from Friday afternoons to Sunday afternoons and for one week in each of the school holidays.
These orders provided for the mother and child to be permitted to travel to Victoria in cases of family or medical emergency for periods of up to 4 weeks. In the event the father moved to an area greater than 150km from the [T] Post Office the spending time with orders would be discharged and in their stead the child would spend time with the father for one week during the school holidays and the mother and child would be permitted to relocate away from the [T] area.
The current proceedings were commenced by the mother on
11 October 2010. In her Initiating Application filed that day the mother sought orders permitting her to relocate the child’s primary residence to [B]. Her proposed orders sought to vary the time the child would spend with her father to periods of time during the school holidays and on other occasions in the [B] area. At the conclusion of the hearing the mother tendered a minute of order[1] which provided for the father to spend time with the child for 10 days in each of the mid year school holidays and for half of the Christmas school holidays as well as a weekend in Melbourne on the fifth weekend of each school term.
[1] Exhibit M1
The father in his response filed 10 November 2010 and amended on 14 December 2010 sought a continuation of the orders made in 2008 but with an increase in his school holiday time with the child during the Christmas school holidays. Although he sought orders that the child live with him if the mother relocated the case proceeded on the basis that the mother would not relocate if the child was not permitted to move to [B].
The matter was granted expedition and heard on 22 December 2010.
Issues
In determining what parenting orders would be in the child’s best interests the court was asked to consider a number of issues the most significant being:
a)The effect on the mother should she not be permitted to relocate;
b)The ability of the child to maintain a relationship with her father and maternal grandmother if she was to live in Victoria; and
c)The desirability of the child developing a closer relationship with the maternal grandmother by living in [B].
The evidence
In support of her application the mother relied on her affidavit filed 10 December 2010 and the following affidavits:
a)Mr J filed 10 December 2010;
b)Ms D field 10 December 2010;
c)Ms C filed 10 December 2010;
d)Ms J filed 10 December 2010; and
e)Ms V Hammer filed 10 December 2010.
In support of his case the father relied on his affidavit filed 10 November 2010 and a further affidavit filed by leave on 22 December 2010 as well as an affidavit of Ms A Palmer filed 10 November 2010.
Although both parties gave evidence of events that occurred prior to the making of the consent orders on 28 May 2008 they did so by way of providing background detail. The matter proceeded on a consideration of the evidence of events since that time.
Somewhat unusually the matter proceeded without the benefit of the family being assessed through the preparation of a family report. This approach was by agreement between the parties. When I set the matter down for trial I was also satisfied that such report would not be of significant assistance in determining the dispute especially since both parties agreed the child had a good and positive relationship with both parents and that given her young age her wishes would not be determinative of the matter. The parties saw a Family Consultant on
1 November 2010 who prepared a Memorandum to the Court.[2] This memorandum confirmed the nature of the dispute; did not recommend a family report but recommended a judicial decision be made as soon as possible.
[2] Exhibit C1
Apart from the evidence of the mother, father and paternal grandmother the evidence was taken by telephone. All witnesses impressed as honest and forthright in their evidence.
The mother gave evidence of wanting to move to [B] to be nearer her mother who has a brain tumour. According to Associate Professor K, who is the treating neurologist for the maternal grandmother, the tumour is not operable. It is slow growing and causes the maternal grandmother to suffer epileptic seizures which are difficult to control. In addition to the regular seizures she has suffered two grand mal seizures in the last 18 months and there is a risk that such a seizure could be fatal. His evidence was that her speech is affected by her condition. This was evident when Ms Hammer was giving her evidence. According to Professor K the medication the maternal grandmother is currently using has caused the maternal grandmother a number of side effects including tiredness, weakness, forgetfulness, tremors and blurred vision. He was not able to give a prognosis of life expectancy although he was hopeful of some years subject to any grand mal seizures. He saw her condition as likely to deteriorate over time with a corresponding greater reliance on assistance to support her.
The mother wishes to be there to provide that assistance. She would like to live on the family property which is a farm of some 1,780 acres with another 1,100 acres leased. Her father and brother work the farm. The maternal grandmother’s evidence was that the mother and child could live in their home rent free. The maternal grandmother’s evidence, which I accept, was that she is experiencing trouble doing common housework tasks and would like the assistance of her daughter both physically and emotionally. She said she has some good days but there are other days when she is just unable to do housework.
The mother’s proposal would not see her being present with her mother full time as she has a job offer at [a] store in [B]. Ms C, the proprietor of that store gave evidence of needing assistance in the store as her husband has cancer requiring her to be away from the business at times. She had difficulty finding someone suitable until she interviewed the mother. She was aware of the maternal grandmother’s health and that there may be times when the mother would need to provide assistance to her mother.
The mother has not had full time permanent employment since she relocated to the [T] area in 2008. She has been assisted in finding work through her case worker at Jobs Australia, Ms D. Ms D was not required for cross-examination. She gave evidence of the mother being proactive and diligent in seeking employment and completing courses but being only able to obtain short term casual contract work. Although she has been able to work for a significant period in 2010 I am satisfied the job offer in [B] would provide the mother with full time permanent employment and place her in a better financial position than she currently experiences. This is especially so given she will be able to live rent free on her family’s property. In making that finding I have taken into account the financial support the mother’s family have given her since separation and are likely to continue to do so whether she is living in [T] or [B].
The father has not been paying sufficient child support however I am satisfied he has tried to remedy that with the Child Support Agency.
A significant aspect of the mother’s case is her need for emotional support from her family. She said she feels lonely and isolated in [T]. She has no family ties in the area although she has had a good relationship with the paternal grandmother until recent times. The mother says she is sad that she is not able to be closer to her mother to support her through her illness. The mother has been seeing psychologist, Ms J since February 2010. Ms J was of the view that the mother has experienced situational stress which is unlikely to lessen unless she is living closer to her mother. Her opinion was formed solely on the mother’s self report and her observations of the mother. She did not consider the mother to be suffering from depression as defined in the DSMIV but has suffered from depressed moods. She did not consider the mother to be embellishing her symptoms in any way as she has seen a consistent presentation through out nine sessions. I find that the mother has found life in [T] isolating since her separation from the father. Despite not living with her parents since she was around 16 years of age she is seeking emotional support from them and also to provide emotional and physical support to her mother. There is no evidence the mother’s ability to parent the child is currently compromised. However I find that the mother’s emotional welfare would improve if she was living with her parents and working full time. This would have a positive flow on effect for her parenting of the child.
The father is fearful that his relationship with the child would be adversely affected if he does not get to see her each alternate weekend. He presented as sincere in that belief. He spoke from experience, not having had a regular relationship with his father whilst growing up. He gave evidence of the child enjoying a close and loving relationship with his mother. This evidence was confirmed by the paternal grandmother.
The father’s evidence, which I accept, was that he has never sought to stop the mother travelling to [B] to assist her mother at times of need. The consent orders made in 2008 provided for that. His primary concern is in relation to a permanent relocation.
Although the father has some cousins living in the [B] area he is not close to them and he would not consider moving there because he believes there would be a lack of employment opportunities for him. He suffered an injury in 2008 and was unemployed for about 18 months. He currently works full time as a [tradesman]. The father has also commenced proceedings to resume a relationship with his other child, [Y] who lives in the [S] area of New South Wales. He is concerned that should he move to live in Victoria any chance of properly re-establishing a relationship with this child would be compromised. I find that the father is not in a position to move to [B] at this stage in his life.
Ms A Palmer who presented as a very impressive witness, gave evidence of being supportive of the mother moving to [B] when the parties first separated but is now fearful of the child losing her relationship with the father and herself.
Legal approach
Parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975. In determining their outcome the Court must consider the best interests of the child as the paramount consideration.[3] Whilst that is the paramount consideration it is not the only consideration. In AMS and AIF his Honour Justice Kirby held: [4]
[144] ……a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.
[3] S 60CA
[4] (1999) 24 Fam LR 756 at page 792
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[5]
[5] S 60B lists the objects and principles for Pt VII.
In determining what is in a child’s best interests the court must consider the matters set out in s.60CC. Before doing so however, given parenting orders were made by consent in 2008, it is necessary to consider whether it is appropriate to reconsider those orders.
A Court is usually reluctant to entertain a fresh application for parenting orders because it is rarely in a child’s best interest to have ongoing litigation about his or her care and wellbeing. The Full Court of the Family Court in Rice v Asplund[6] held:
“The court should not lightly entertain an application to reverse an earlier custody order. It would need to be satisfied by the Applicant that there was some changed circumstance which would justify such a serious step, some new factor arising, or, at any rate, some factor which was not disclosed at the previous hearing which would have been material. These are not necessarily matters for preliminary submission, but they are matters that the judge should consider in his reasons for decisions.”
[6] (1979) 6 FamLR 570; FLC 90-725
It is for the court to exercise its discretion in deciding whether to embark upon a full hearing of a matter or to determine the ‘threshold’ issue as a discreet point by way of preliminary determination.[7] His Honour Justice Warnick in SPS and PLS[8] considered the term ‘threshold’ in this context to mean:
“…’the first question to be determined’ and which, depending on the answer to it, may be dispositive of an application for parenting orders, irrespective of when in a hearing it is posited and answered.”[9]
[7] Bennett (1991) FLC 92-191, D & Y (1995) FLC 92-581
[8] [2008] FamCAFC 16
[9] ibid at paragraph 13
His Honour Justice Collier in King and Finneran said:
“To apply the test in Rice v Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of the litigation, to allow further proceedings. In arriving at such a decision the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children.”[10]
[10] [2001] FamCA 344 at paragraph 44, (2001) FLC 93-079
His Honour also said:
“The rule in Rice v Asplund is a rule evolved to protect children from involvement in further unnecessary litigation. To require a court to make a detailed determination of the matters set out in S 68F would defeat the purpose of that protection.”[11]
[11] ibid at paragraph 41. His Honour’s reference to s.68F was to the Family Law Act as it was prior to the 2006 amendments. See s60CC.
Although this case proceeded to final hearing without first giving consideration to the ‘threshold’ issue I am required to consider the issue in these reasons. Although the maternal grandmother had been diagnosed with the brain tumour prior to the mother and father entering into the consent orders in 2008, a fact taken into account in the provisions of those orders, and the mother had wanted to relocate to [B] prior to those orders being made I find there has been a significant change of circumstances warranting a reconsideration of the consent orders. I have arrived at that finding on the basis that the maternal grandmother’s condition has worsened over time; the mother has not been able to obtain full time employment in the [T] area but has been offered such a position in [B]; and the mother has been experiencing stress associated with being a long distance away from her family. When I take those factors into account along with the fact that the hearing was concluded within two and a half months of the filing of the Initiating Application and the child was not required to take part in a family report assessment I am satisfied that it is in the best interests of the child to reconsider the 2008 orders.
When making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[12] This presumption may not apply or may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s best interests for it to apply.[13]
[12] S 61DA
[13] S61DA(2) & (4)
In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[14] If the court finds that equal time is not in the child’s best interests or reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[15]
[14] S65DAA(1)(a) & (b), MRR v GR [2010] HCA 4
[15] S65DAA(2)(c) & (d)
This legislative approach must be followed in all parenting cases.[16]
[16] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
This particular case has as one of its elements the issue of relocation. Much has been written and said about relocation cases such that there may be a perception that they are a unique type of case to be determined differently from others. The jurisprudence however is clear that such cases remain to be determined like all parenting matters by considering the best interests of the child in the context of the legislative framework.[17] In Taylor v Barker[18] their Honours Bryant CJ and Finn J said:
[53] …… when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible: see U & U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.
[17] B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755; Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343
[18] (2008) 37 Fam LR 461 at page 475
Their Honours went on to say:
[83] However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or substantial and significant time” with each parent.[19]
[19] ibid at page 480
Presumption of equal shared parental responsibility
Both parties sought orders for equal shared parental responsibility. The 2008 orders made provision in similar terms. Although the mother made historical allegations of family violence which were denied by the father I am satisfied that there was no evidence warranting a displacement of the presumption.
Despite both parties giving evidence of their ability to communicate effectively being more difficult since the mother raised her desire to relocate in early 2010 I am satisfied that they have generally managed to discuss their daughter’s needs when necessary and will be able to do so in the future. Accordingly I find that it is in the best interests of the child for both parents to equally share the parental responsibility for the child and will make an order accordingly.
Consideration of equal time or substantial and significant time
Having indicated I will make an order for the parties to equally share parental responsibility I am required to give consideration to the provisions of s.65DAA. Neither party seeks an equal time order. Even if such an arrangement was in the child’s best interests, under either proposal it would not be reasonably practicable for the child given the geographical distance between the two homes. The parties currently live in different cities about one hour and 20 minutes apart. The father’s proposal would see that continue. If the mother relocates to [B] they will live nearly 1,500km apart.
In considering whether it is in the child’s best interests and reasonably practicable for the child to have substantial and significant time with each parent I will consider the factors set out in s.60CC.
Determining the best interests of the child – the s.60CC considerations
The court is required to determine a child’s best interests by considering a number of factors set out in s.60CC. In order to limit duplication I propose to group together a number of these factors.
The child’s relationships
S.60CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child’s parents;
S.60CC(3)(b) The nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
S.60CC(3)(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;
S.60CC(3)(d) The likely effect of any changes in the child’s circumstance, 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
There was no doubt in this case that the child has a close and loving relationship with both parents. Neither party sought to argue otherwise. The mother has been the child’s primary carer all of her life and as such is likely to be the child’s primary attachment figure. The significant involvement by the father in the child’s life has helped her to develop that close relationship they enjoy.
It was also clear that the child enjoys a close and loving relationship with the paternal grandmother developed when the parties were living together and since separation. Although the child has a relationship with the maternal grandparents, it is not as close as that which she enjoys with the paternal grandmother because she has never lived in close proximity to the extended maternal family seeing them only on holiday visits.
The mother’s proposal would provide an opportunity for the child’s relationship with the maternal grandparents to develop by living in the same household.
The child enjoys a more distant relationship with her paternal grandfather as she sees him for a few days each school holiday period that the father is able to take the child to Queensland where he lives.
The father is most concerned that the mother’s proposal would see the child’s relationship with him and the paternal grandmother compromised because they will not get to see each other every fortnight as they do now but would have only holiday time and one weekend a school term if he could afford to travel to Victoria.
There can be no doubt that the child would benefit from having a meaningful relationship with both her parents. Care needs to be taken however when considering this factor. A “meaningful relationship” is not necessarily one that is achieved by ensuring a child spends a certain amount of time with a parent. It is more likely to be achieved by the quality of that time. In Mazorski v Albright[20] Brown J said:
[26] ………I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible in their best interests, substantial and significant.
[20] (2008) 37 Fam LR 518 at 526 [26]
Given the child is six and a half years of age and has a close relationship with the father I am satisfied she would be able to maintain a close relationship with him if she saw him for extended periods of time during the school holidays. If she was much younger or had not already established the close relationship this might not be possible. The solicitor for the father argued that: “If it isn’t broken don’t fix it” in relation to the child’s relationship with him. Whilst there is always merit in taking such a conservative approach and there will be times when such an approach outweighs all other considerations the court must consider the child’s best interests in the context of the parent’s circumstances including their legitimate interests and desires.
The father was concerned that the mother may not be willing to promote the relationship between him and the child especially if she is living interstate. I saw no evidence to warrant such a finding although I accept the father honestly holds that view no doubt formed in the context of his separation from the mother.
When I weigh all of these considerations I am satisfied that the child is likely to maintain her relationship with her father under either proposal albeit if the mother’s proposal is adopted the time the child spends with the father will by necessity take on a different form.
Risk of harm
S.60CC(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
S.60CC(3)(j) Any family violence involving the child or a member of the child’s family
S.60Cc(3)(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;
(ii) The making of the order was contested by a person
This is not a relevant consideration in this case. Although the mother gave evidence of family violence from an historical perspective, and the father denied the allegations, it was not necessary to determine this issue as both parties agreed there had not been any incidents since the last orders were made. Neither party sought a consideration of family violence in order to determine the current dispute.
I am satisfied the child is safe in either household.
The child’s views
S.60CC(3)(a) Any views expressed by the child and any factors(such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
Given the young age of the child any views expressed by her would not be determinative of the dispute.
Practical difficulties
S.60CC(3)(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
This is a significant issue in this case. The distance between [B] and [A] is about 1,500km. The geographic distance and the fact that neither party is in a strong financial position will make moving the child between the two homes problematic if the mother’s proposal is accepted.
If the mother and child were living in [B] and the parties were to drive the child between the two homes there would be a number of different ways they could travel but all would involve overnight stays and long hours of driving. The cost of fuel is high.
If the child was to fly between the two homes she would have to be driven a couple of hours to Melbourne to catch a flight initially to Sydney and then another flight to [A]. The costs of flights during school holidays would be expensive and I find out of the reach of the father if he was to also travel to Melbourne one weekend a school term as proposed by the mother. The father proposed that should the child live in [B] the mother pay for her flights to Sydney, no doubt with the assistance of her family, and he would collect her and drive her to [A]. This would involve a lot less car transport for the child than driving the whole distance and would be less expensive for the father. Although the mother is not in a strong financial position I am satisfied her family will assist her to transport the child to Sydney and back during the school holidays.
Although the mother’s proposal raises the significant practical considerations I am not satisfied they are insurmountable such that the child would not be able to spend time with the father on a sufficient regularity to maintain her relationship with him. Having said that the father’s proposal would not see any change in the current circumstances and the weighing of the two proposals in this context would see the father’s proposal as the preferable one.
Both parties expressed an interest in obtaining a camera for their computers so that the child could ‘Skype’ the other. This technology could be used regardless of whether the child continued to live in [T] or [B].
Parental capacity and responsibility
S.60CC(3)(f) The capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
S.60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
S.60CC(4) The extent to which each of the parents has fulfilled or failed to fulfil, his or her responsibilities as a parent
Both parties are able to meet the child’s day to day needs along with her emotional and intellectual needs.
Since the father returned to work in July 2010 he has not been paying the correct amount of child support to the mother that he would be if assessed on his income because of some confusion with the Child Support Agency. Although it was suggested by counsel for the mother that the father could have done more to ensure she received child support direct from the father, a most valid criticism, I am satisfied the father has taken steps to rectify this as he does not want to be left with significant arrears.
I am satisfied both parents have done and will continue to ensure this child’s needs are met and they will meet their responsibilities as parents appropriately.
The mother has been receiving therapeutic assistance in relation to stress associated with the breakdown of her relationship with the father, her feeling of isolation from her family and her difficulties in obtaining full time employment in [T]. Whilst there is no evidence to suggest her parenting of the child has been compromised in any significant way by these issues, I am satisfied the mother is likely to benefit emotionally if she was to live with her mother and accordingly she will be in a better position to parent the child without the added burden of these stressors.
Background issues
S.60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
S.60CC(3)(h) if the child is an Aboriginal child or Torres Strait Islander child
These is not a relevant considerations to this dispute.
Limiting further proceedings
S.60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Although the maternal grandmother’s treating neurologist was unable to give a prognosis of life expectancy he was able to say her health is likely to deteriorate over time and as such will require more assistance. If the mother remains in [T] now there is some prospect of her bringing further proceedings sometime down the track as her mother’s health deteriorates. It was submitted that the father is not unreasonable and he would assess the circumstances as they arose. Whilst I accept that I find that there is a risk of further proceedings in the future if the mother is not permitted to relocate now.
Discussion
Relocation cases are often difficult cases to determine. This case is no exception. The father is most concerned his relationship with his daughter will be adversely affected by any move further away. His view is understandable and legitimate. The mother wishes to be able to support her mother as her health deteriorates as well as being in a position to be able to financially support the child through full time employment. Her position is also understandable and legitimate. Ultimately my decision must be based on the best interests of the child.
Turning to the issue of the child spending substantial and significant time with the parents, I find that it would be in her best interests to do so. She has a close and loving relationship with them both. They both have lots to offer her. By living in the relative close proximity to each other that the current circumstances allow, substantial and significant time is more achievable than it would be if the child was to live in [B].
A child is taken to spend substantial and significant time with a parent if they not only spend weekend and holiday times with that parent but also other times, and the times enable the parent to be involved in the child’s daily routine and special occasions and events for both child and parent.[21] The mother’s proposal could not be said to be one providing substantial and significant time between the father and child. The current arrangements might be said to be closer to that definition although given the distance between [A] and [T] it is difficult for the father to be involved in the child’s daily routine. Although I have found it to be in the child’s best interests to spend significant and substantial time with both parents I find it is not reasonably practicable in the circumstances especially if the mother’s proposal is adopted.
[21] S65DAA(3)
I find that the child’s best interests would be served if she continues to live primarily with her mother. I am also satisfied the mother would be relieved of stress if she was living with her mother and working in permanent employment. Such relief would be of great assistance in her parenting of the child which would have a flow on benefit to the child. The child would also benefit from developing a closer relationship with her maternal grandparents if she and the mother were able to live with them in [B]. The child’s relationship with the father should be able to be sustained given her age and development and the current strength of that relationship. The practical difficulties in moving the child between the two homes whilst significant can be overcome as the mother is confident of assistance from her family. When I weigh all of these considerations I am persuaded it would be in the child’s best interests to live with her mother in [B].
I am persuaded the child should spend extended block periods of time with the father during the school holidays as well as mid term weekend. The mid term weekend would need to take place in Melbourne or another place close to [B] so that the child is not burdened with significant travel for only a short period of time with her father. I propose to order the father be responsible for the costs of transporting himself to Melbourne and the mother is to ensure the child is delivered to the father and collected from him at her expense.
I am persuaded the child should spend virtually all of the holiday time with the father at the ends of terms one and three and for 10 days at the end of term two. Ordinarily a child should spend holiday time with their primary carer as well as their other parent but in the circumstances of this case I am persuaded the child’s best interests require her to spend as much time with her father as can be realistically arranged. The evidence of Ms C was that she would not require the mother to work on weekends so the child would benefit from spending regular time with her mother then. In relation to the Christmas school holidays I am persuaded they should be split equally to enable the child to have block holidays with each parent. The costs associated with school holidays should be met by the mother paying for any transport from [B] to Sydney and return and the father paying for the costs of any transport from Sydney to [A] and return.
For these reasons I make the orders set out at the commencement of this judgment.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Lapthorn FM
Date: 17 January 2011
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