Height and Rhett
[2010] FMCAfam 1268
•19 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HEIGHT & RHETT | [2010] FMCAfam 1268 |
| FAMILY LAW – Final arrangements for parenting of children aged 11 and 8 – relocation – presumption of equal shared parental responsibility – parties separated four years – mother has formed new relationship and wishes to live with new partner and the children in [C] – children and parties currently live in [B] – father seeks equal time parenting arrangement – mother will not live outside of [B] without the children – father unable to move to [C] – necessarily father’s preferred outcome necessitates either explicit or implicit restraint on mother’s freedom of movement – evaluation of parties’ competing proposals – best interests – what is reasonably practicable. |
| Family Law Act 1975, ss.4; 60B; 60CA; 60CC; 61DA; 65DAC; 65DAE; 65DAA |
| B v B [2006] FamCA 1207 C & S [1998] FamCA 66 MRR v GR [2010] HCA4 AMS v AIF; AIF v AMS (1999) FLC 92-852 Goode & Goode (2006) FLC 92-286 Taylor & Barker [2007] FamCA 1246 Morgan & Miles [2007] FamCA 1230 Fragomeli & Fragomeli (1993) FLC 92-393 B & B: Family Law Reform Act 1995 (1997) FLC 92-755 D and S V (2003) FLC 93-137 Godfrey v Saunders 2008 FLR 287 M & S (2007) FLC 93-313 H v W (1995) FLC 92-598 R & R: Children’s Wishes (1999) 25 Fam LR 712 Bright v Bright (1995) FLC 92-570 |
| Applicant: | MS HEIGHT |
| Respondent: | MR RHETT |
| File Number: | ADC 973 of 2010 |
| Judgment of: | Brown FM |
| Hearing dates: | 11 & 12 August & 2 November 2010 |
| Date of Last Submission: | 2 November 2010 |
| Delivered at: | Adelaide |
| Delivered on: | 19 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Ross |
| Solicitors for the Applicant: | Paul John Walton |
| Counsel for the Respondent: | Ms Hurley |
| Solicitors for the Respondent: | Doyle Kingston Swift |
ORDERS
The parties have equal shared parental responsibility for the children of the relationship [X] born [in] 1999 and [Y] born [in] 2002 (hereinafter referred to as “the children”).
The children live with the mother.
The mother be permitted to relocate the place of residence of the children to [C], in the State of New South Wales.
The children spend time with the father as follows:
(a)For a period of twelve (12) days in each of the short term school holiday periods commencing from the first Saturday of each holiday;
(b)For the first three (3) weeks of the Christmas school holiday period commencing in 2010 and each alternate year thereafter and for the second three (3) weeks of the Christmas school holiday period commencing in 2011 and each alternate year thereafter;
(c)For half of each Christmas Day at times to be agreed between the parties;
(d)From 10:30am Saturday until 4:00pm Sunday on the weekend of Father’s Day in each year;
(e)On two (2) occasions during each school term from 10:30am Saturday until 4:00pm the following Sunday or such other times to be agreed between the parties.
In order to give effect to orders (4)(a), (b) & (d) hereof the children are to be exchanged between the parties at a location to be agreed between them in [W] or such other location as the parties agree and each party is to bear his or her own costs in respect of travelling to and from [W].
In order to give effect to order 4(e) hereof the mother is to deliver the children to and collect them from the father in [B] and bear all the costs of transporting the children in between [B] and [C].
In the event the father is in the vicinity of [C] he be permitted to spend time with the children on giving reasonable notice to the mother.
The father be at liberty to communicate with the children on a daily basis by telephone, email, MSN, letters, photographs and through Skype computer video link.
The mother and father shall:
(a)keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;
(b)keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the children and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the children;
(c)inform the other parent as soon as is reasonably practical of any medical issue, significant health issue or significant illness or injury suffered by the children. This order authorises any treating medical practitioner to release details of the children’s medical condition and/or injury to the other parent.
The mother authorise any schools attended by the children to provide the father with information about the children’s educational progress and other related activities and supply him with copies of reports, photographs, certificates and awards attained by the children, at his own expense if he shall request same.
During the time the children are with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)speak of the other parent respectfully;
(c)not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that other persons do not denigrate or insult the other parent in the presence or the hearing of the children.
Each parent be at liberty to attend at the children’s school for all events that are routinely attended by parents, including parent-teacher interviews, sports days and concerts.
All applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Height & Rhett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BROKEN HILL |
ADC 973 of 2010
| MS HEIGHT |
Applicant
And
| MR RHETT |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a relocation case. Ms Height “the mother” and Mr R “the father” are the parents of [X] born [in] 1999 and [Y] born [in] 2002.
[X] and [Y] are much loved and delightful children. They have lived in [B] for all of their lives and have many friends and relatives in the town. Undoubtedly they are happy and well settled in [B].
Ms Height and Mr Rhett lived together from mid-1999 until they finally separated on 27 July 2006. Both parents have strong connections in [B], where they each went to school. After they separated, the parties continued to live in [B].
To the parties’ credit, they were able to agree on arrangements for [X] and [Y]’s care shortly after their separation. On 4 October 2006, the Local Court at [B] ratified their agreement with a formal order.
It was agreed that [X] and [Y] would live with their mother but spend time with their father each weekday, during school terms, from around 3:00pm until 6:00pm. It was also agreed that the children would spend one overnight period each week with their father. Usually, this has been from Friday afternoon until Saturday afternoon. School holidays were to be shared.
In February 2009 the mother met Mr H. Mr H was passing through [B] at the time. He lives in [C]. The two were attracted to one another. Afterwards, Mr H visited the mother regularly in [B]. They fell in love and now hope to marry and have children together.
Mr H is a [occupation omitted]. He has a good job in [C], which is well paid. He owns a house in [C]. It will be difficult and financial deleterious for him to leave his life and job in [C] and move to [B], so he can live with Ms Height.
Accordingly, it is Ms Height’s application that the court make orders that will enable her and the children to live in [C]. It is her position that the children get on well with Mr H and are enthusiastic about the prospect of living in [C].
It is also Ms Height’s position that she will be financially better off in [C], where she and the children will be supported and housed by Mr H, enabling her to be a stay at home parent, which she is unable to be at the present time. However, Ms Height will not leave [B] without an order being made enabling [X] and [Y] to live with her in [C].
If Ms Height is unable to obtain this order, she fears that it will not be possible for her to maintain her relationship with Mr H because of the distance between [B] and [C] and because it is impracticable for Mr H to move to [B] to live. If the relationship fails, she will be very sad and perhaps think that she has been robbed of the opportunity of being happy for the remainder of her life.
Mr Rhett is upset at the prospect of the children living far away from him in [C]. He cannot easily leave [B] and has no wish to do so. It is about 460km between [C] and [B]. It takes around five hours to drive the journey, which passes through [W].
There is no doubt that Mr Rhett has been an active presence in the lives of both [X] and [Y], whom he sees on an almost daily basis. He fears that, if [X] and [Y] live predominantly in [C], their relationship with him will inevitably diminish and it will not be in their best interests if he is not available to them to provide active parental guidance on a regular and daily basis.
The parties agree that they should have equal parental responsibility for [X] and [Y] [see Family Law Act1975 at section 61DA].[1] Such a regime can only realistically come about if there is some restriction on Ms Height’s freedom of movement or if Mr H relocates to [B].
[1] Hereinafter references in [] are to the Family Law Act 1975
Ms Height does not dispute that Mr Rhett has a close and loving relationship with [X] and [Y] and they with him. In addition, the children see their paternal grandparents on two or three occasions each week, as well as their maternal great grandparents for roughly the same amount of time. Accordingly, there is no doubt that the children are at the centre of a warm familial network, which is based in [B].
Too a large extent, the current arrangements have come about as a result of considerations of practicality and financial necessity. During their relationship, the parties and [X] and [Y] lived at Property R, [B]. In May of 2007, it was agreed that this property would be sold and the proceeds divided between the parties.
Due to factors within the [B] property market, which was depressed at the time, it took a considerable period of time for a buyer for the property to be found. It was only sold in June of 2010. Pending settlement of the sale, it had been agreed that the mother, [X] and [Y] would continue to live at the Property R property. Mr Rhett paid the mortgage on the property, although this was taken into account in his child support assessment.
Following separation, the parties found themselves in straitened financial circumstances. Mr Rhett moved in with his parents. When the children slept over, the three had to share a bedroom. Accordingly, it has been impracticable for the children to spend block periods of time, in their father’s household, other than during school holidays.
With the settlement of the sale of Property R, Mr Rhett has been able to complete renovations on a property he owns in [B]. It is a three bedroom home and Mr Rhett expects to move in shortly, if he has not already done so. The home will provide comfortable accommodation for [X] and [Y].
With the sale of the Property R property and pending the outcome of her application to the court, Ms Height has been compelled to rent accommodation for herself and the children in [B]. It is her case that she cannot afford to purchase a property for herself in [B] and the payment of rent in the town places her financial resources under great pressure. It is her position that these financial factors militate in favour of her and the children being able to move to [C], where they will be able to move into Mr H’s home.
Ms Height is currently employed as a part-time [omitted]. On Mondays, Tuesdays, Wednesdays and Fridays she works from 1:15pm until 6:15pm and on Thursdays she works from 12:00pm until 4:30pm. She receives $370.00 net per week by way of wages and receives other government assistance and child support from Mr Rhett. She is not in a strong financial position and works out of financial necessity.
Accordingly, the mother is not available to collect the children after school or tend to their needs on most, if not all, afternoons during the working week. It suits her for the children to spend time with their father and other family members during the afternoon.
Mr Rhett is employed [omitted]. He has been with the [omitted] for more than twenty years. He earns $60,000 per annum. He works from 7:00am until 3:26pm in the winter months and from 6:00am until 2:26pm in the summer months. He gets every second Friday off.
Currently [X] and [Y] attend [R] Public School, where [X] is in grade 6 and [Y] is in grade 3. The school is around 100 metres from the home of the children’s paternal grandparents, Mr R and Ms R.
Accordingly, on each Monday, Wednesday and Friday, [X] and [Y] walk from school to Mr and Ms R Senior’s home. On Tuesday and Thursday afternoon, the children’s maternal great grandparents, who live just outside [B], collect the children from school and care for them until Mr Rhett finishes work.
The children have a busy schedule of activities. On Monday afternoons they have gymnastics. On Tuesday afternoons [X] attends a dance class. On Wednesday afternoons, [Y] has a tutoring appointment, which her father has organised. On Thursdays both children have swimming. [Y] attends her dance class on Saturday morning. Notwithstanding this schedule, the children have an evening meal with their father and paternal grandparents on most days each week.
Both Ms Height and Mr Rhett agree that [X] and [Y] have thrived in this arrangement, which has suited their parents but also enabled [X] and [Y] to spend time frequently with each of their parents. Although Ms Height and Mr Rhett do not have the easiest relationship with one another, to their mutual credit, they have been able to focus on the children’s best interests and neither [X] nor [Y] has apparently been unduly affected by their parents’ separation, as a result of being exposed to parental conflict.
It is Mr Rhett’s position that it would not be in [X] and [Y]’s best interests for the court to tamper unduly with the current arrangements for their care, arrangements in which they are thriving. It is his case that he was going to broach with Ms Height the issue of him having more overnight time with the children, following the finalisation of the sale of Property R. However his approach was overtaken by events, particularly Ms Height’s wish to move the children to [C] with her and her application to the court.
In his own words, Mr Rhett puts his case as follows:
“One of the reasons that I do not want the children to move is because I want to be part of their life. I see the children regularly now and have done since their birth. I spend each day with them except Sundays. The children also have family here. They have me, my sister, my nephew [Z], their uncle, my partner, my parents and the mother’s side of the family all reside in [B]. The children have a meaningful relationship with all of their family in [B]. I am aware that the children have no extended family in [C]. I believe it is important that the children continue to see a lot of their family and continue to have a meaningful relationship with them. I believe this is especially important in relation to my parents who are in their late sixties, and also and also in relation to their maternal great grandparents, who are in their mid to late seventies …
Although I know that the mother cares very much for the children and is a good mother, I am concerned that the mother does not have the children’s best interests at heart in her application to move with them to [C]. I am concerned that the mother is allowing the interests of her and her new partner to override that of the children. I also believe that the mother is placing the financial interests of her and her partner to override what is best for the children in the circumstances.”[2]
[2] See father’s affidavit filed 30 July 2010 at paragraph 16 and paragraph 77.
For her part, Ms Height has no criticisms of the father’s parenting of the children or the care that has been provided to them by Mr and Ms R Senior. However, it is her case that she has been the children’s main provider of care, during their lives to date and, as a result, they are more emotionally attached to her and so likely to be influenced by her future level of personal happiness.
The mother now sees little future for herself in [B], particularly if she has to live in rented accommodation and her relationship with Mr H becomes strained. In her own words, Ms Height puts it as follows:
“If I am not permitted to relocate to [C] with the children I will be very disappointed and upset. I believe that this is an excellent opportunity for me to start a new life with a wonderful new partner and hopefully have more children.”[3]
[3] See mother’s affidavit filed 14 July 2010 at paragraph 69.
Given the children’s close emotional attachment to her, Ms Height believes the children will be able to adjust to any change of circumstances arising from a move to [C] and will be able to make new friends in the town and accommodate moving to a new school.
In addition, Ms Height does not see the move as resulting in the children “losing” their father or a sense of connection to him and the members of his family who will continue to live in [B]. It is her case that the children will be able to maintain an adequate level of relationship with their father, if they spend extended periods of time with him during each school holiday period. In addition, she proposes that she would visit [B] with the children on two weekends during each school term.
Ms Height would also be open to Mr Rhett spending time with the children if he was able to travel to [C]. In addition, she proposes that the children could communicate with their father daily, if necessary, by electronic means such as the telephone, webcam, Skype or Facebook.
Although Ms Height’s proposed move of the children to [C] inevitably must have some consequences for the nature and quality of Mr Rhett’s interaction with [X] and [Y], Ms Height contends that they have a strong relationship with their father and are sufficiently mature for this relationship to remain meaningful notwithstanding the interruption to it caused by the distance between [B] and [C]. It is her case that her proposals will enable Mr Rhett to continue to be a living presence in the children’s lives, notwithstanding the fact that they reside with her in [C].
As this brief introduction shows, this is a complex case. Because the primary emphasis, in children’s cases, is on the best interests of the children concerned [section 60CA], it is usual for an independent expert to be commissioned to provide evidence to the court about the needs of any children involved, and if appropriate, for the children’s views about an appropriate outcome to be canvassed.
Such a report was prepared in this case, by a social worker, Ms A.
Ms A recommends that Ms Height be able to move to [C] with [X] and [Y]. However, she recommends that this move be for a trial period of around six months, after which the children should attend a counselling session to establish how they are feeling and coping with the move.
Ms A based her recommendation on her perception and opinion on a number of salient issues in the case. These can be summarised as follows:
·Both Ms Height and Mr Rhett were effective and well motivated parents, who had communicated well up to this point;
·For obvious reasons, this relocation issue had impacted upon this previously good parenting relationship, but neither party should be criticised for this, as each genuinely believed that he or she was doing what was best for [X] and [Y];
·[X] and [Y] were equally attached to both their parents;
·The children were developing appropriately and were emotionally balanced;
·The children were well established and doing well in [B], where they had many friends and relatives;
·In this context, it was likely that an equal time parenting relationship could come into place, in due course;
·Ms Height and Mr H’s relationship was still in a fairly early stage, particularly in the sense the two had never lived together for an extended period. As such, it was impossible to determine the future of the relationship and its possible implications for [X] and [Y];
·Ms Height had had lengthy discussions with [X] and [Y] about the proposed move to [C] and these discussions may have influenced the children;
·However, both children had expressed a genuine and personal with to move to [C], which wishes were based on valid reasons.
Mr Rhett does not accept that [X] and [Y] want to move to [C] and believes that they are emotionally torn about the issue. He is also concerned that Ms Height may be prompting or coaching the children to say that they want to move to [C].
It is clear to me that both Ms Height and Mr Rhett wish to play as large a role as possible in [X] and [Y]’s lives, as they grow to maturity. Both of them wish to be involved in every aspect of their children’s lives – their sporting activities; their recreational pursuits; their education; their intellectual and social development; as well as having the opportunity to just “hang out” with [X] and [Y]. These mutual parental aspirations are reflected in amendments made to the Family Law Act.
Concurrently with these aspirations, Ms Height wishes to live in [C], where she believes both she and the children will be more financially secure and she personally will be happier, as she will be able to pursue her relationship with Mr H, the man she loves. These are legitimate expectations, on her part, which the court is required to consider.
Mr Rhett does not wish to move away from [B], where he has lived for all of his life and where his parents, who are infirm, also live. Mr Rhett has a job and house in [B]. He has spent much money and effort making his home suitable for [X] and [Y]. Mr Rhett does not want the children to live outside of [B]. He wants [X] and [Y] to be as close to him as possible, in both geographical and emotional terms.
However, if Ms Height feels that she has been compelled to remain living in [B], because of the father and the satisfaction of his aspirations, at the expense of her own, she will be unhappy and potentially rendered more bitterly disposed towards Mr Rhett, notwithstanding that the two have parented [X] and [Y] effectively in the past. This cannot be a satisfactory outcome, so far as any future arrangements for the parenting of [X] and [Y] are concerned.
In addition, such a decision will have ramifications for Mr H, who is happy and well settled in [C]. He does not want to move and lose his financial security and job prospects. From Ms Height’s perspective, one of the compelling reasons for relocation is so that she and the children may be more financially secure, as a result of Mr H’s income and that she herself will be able to withdraw from the paid workforce.
Mr and Ms R Senior did not give evidence in these proceedings. However, they sat through each day of the evidence. Accordingly, I have no reason to think anything other than that the outcome of this case is of vital importance to them.
In addition, the children have very many other relatives, who live in [B] and are likely to be vitally interested in this case. Accordingly, I am well aware of the significance of my decision for very many people.
There can be no outcome in this case, which will be satisfactory to all the parties involved and to all those who will be affected by the outcome. The various options available to the court, in the outcome of this case, cannot be manipulated like the surface of a Rubik’s Cube, to reach a perfect result.
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, regardless of the state of the relationship between the parents concerned.
However, there is no principle of law that requires separated parents to live indefinitely in close proximity to one another. Such a principle would offend our conceptions of personal freedom and be unduly restrictive.
These proceedings are directed to resolving this complex dispute between the parties. When parents, who no longer live together, ask the court to determine where their child should live, it is the best interests of that child which are paramount. The court must decide which of the parties’ competing proposals is most likely to advance the best interests of the child concerned.
It is also open to the court to consider other outcomes, which it considers likely to achieve this goal, independent of the positions of the parties themselves. However, at the same time, the court cannot overlook the legitimate expectations of a parent, as to where he or she wishes to live in future.
The balancing of these considerations has been described by Warnick J as both "a delicate interplay of concepts" as well as "an imbroglio of principles."[4] The level of complexity is intensified by the fact that the Commonwealth parliament has recently passed the provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006.
[4] See B v B [2006] FamCA 1207 (delivered 15 November 2006) at paragraph 1.
Accordingly, the law relating to arrangements for the parenting of children is not well settled, particularly in regards to the issue of parental relocation. For obvious reasons, such issues are likely to precipitate significant controversy between the parents specifically involved in any proposed relocation and amongst members of the community generally.
For all these reasons, this is a difficult case, which presents no ready or obvious solutions. Whatever is the ultimate outcome, it will have significant deficits so far as [X] and [Y] is concerned. In these difficult circumstances, I must remain focused on [X] and [Y]’s best interests, which remain my paramount concern.
The parties’ proposals
a) The mother
The mother’s primary position is that [X] and [Y] should live with her and she should be able to move with them to [C] in sufficient time to enable the children to start the new school year in 2011. This will be [X]’s first year at secondary school.
In terms of her position in respect of the children spending time and communicating with their father, she would propose as follows:
·The children spend twelve days of each short term school holiday, starting on the first Saturday of such holiday with their father;
·For alternating periods of three weeks, during the long end of year school holiday;
·For specific times on each Christmas Day, but amounting to around half of Christmas Day;
·From 10:30am until 4:00pm Sunday on Father’s Day weekend;
·For half of each of the public holidays, occurring in New South Wales each year.
In addition, during the hearing of the evidence in the case, the mother indicated that she would be willing to travel to [B] on two weekends, during each school term. She has many friends and relatives in [B] and would be happy to visit [B] on these occasions, so she could pursue her own relationships and the children could spend time with their father.
Accordingly, it is her position that the children are likely to go no longer than three or four weeks, and at the worst five weeks, without having direct physical contact with their father.
For all routine handovers of the children, Ms Height proposes that these take place at an agreed location in [W], which is the only centre reasonably close to the half-way point between [C] and [B]. It is her position that her use of [W] would result in the parties sharing in the costs of contact reasonably equally.
The mother also proposes the children communicate liberally with their father through electronic means. Both [X] and [Y] have mobile phones. The mother has a computer. The children are computer literate. In these circumstances, Ms Height proposes that the children communicate on a daily basis with their father through email, MSN, Skype and Facebook.
At present, Mr Rhett does not own a computer. Mr and Ms R Senior do have a computer, but the father’s evidence is that it is not a particularly modern one and he doubts it will be able to deal with such programs as Skype and Facebook. Accordingly, there may be some difficulties about this level of electronic communication.
As previously indicated, the mother proposes that the parties should have equal shared parental responsibility for [X] and [Y]. In these circumstances she is prepared to abide by orders that would direct her to authorise the children’s schools and medical practitioners to provide information concerning [X] and [Y] to the father.
She would have no objection to Mr Rhett attending any school functions involving [X] and [Y] in [C] or to him coming to [C] to spend time with the children provided she had received a reasonable level of notice. Essentially, it is Ms Height’s position that she would facilitate and support the children’s ongoing relationship with their father, in the event that she, [X] and [Y] are able to move to [C] in 2011.
In the event the court does not approve her proposal to move with the children to [C], Ms Height has stated that she will not move alone. I do not doubt her evidence in this regard. In these circumstances, she would want orders made that would see the children continuing to live predominantly with her and spending time with their father under the existing regime.
Ms Height is opposed to any equal time arrangement, either now or at some stage in the future. Her rationale for this position is that it would not be in [X] and [Y]’s best interests as she, (Ms Height) is the children’s primary carer. It is her position that the current regime of parenting satisfies the legislative definition of “substantial and significant” time so far as the periods [X] and [Y] spend with their father [section 65DAA(3)].
The mother has some reservations about the trial proposed by Ms A. However, she is prepared to reassess the move at some time in 2011, if necessary. It is her evidence that she would voluntarily move back to [B], in 2011, if either of the children was unhappy in [C].
b) The father
The father is vehemently opposed to the children relocating to [C]. This is his primary position. If the mother does move, he proposes that the children should live with him in [B] and spend time with their mother, in [C] during school holidays. Given Ms Height’s attitude, this seems an unlikely outcome.
In a formal sense, Mr Rhett’s response indicates he wishes orders made that would see the parties having equal shared parental responsibility for [X] and [Y] and the current regime continuing.[5] However, this was not the position advocated during the hearing of the case.
[5] See father’s response filed 22 April 2010 and the case outline document tendered on 11 August 2010
At the outset of proceedings, Mr Rhett proposed an eight day about equal time regime. This was predicated on the basis of Mr H’s [C] work roster. He works four days on followed by four days off. Mr Rhett proposed the children would continue to live in [B]. Under his suggestion, they would spend eight days with him and then eight days with their mother.
Ms Height could spend time with Mr H in [C] during this first period if she wished. Then she and Mr H could continue to be together in [B], on his rostered days off and take up the residence of [X] and [Y], before Mr H returned to [C] to complete his next four day shift.
The regime would require Ms Height to retain a residence in [B], presumably subsidised in some way by Mr H. The mother did not see this as a workable proposal, given the regular travel involved, particularly for Mr H and the costs involved in she and Mr H maintaining two households. More importantly, she did not think this would enable her and Mr H to have a proper level of family life together.
From Mr Rhett’s perspective the benefit of this regime is that it would allow the children to remain within their familiar network of family and friends in [B]; maintain equal levels of relationship with each of their parents; recognise Ms Height’s relationship with Mr H; and ensure that it was adults (in this case Mr H and Ms Height) who were doing the travelling required, rather than [X] and [Y].
Neither Ms Height nor Mr H consider this a workable proposal. In my view, the real weight of Mr Rhett’s proposal is that there should be either a week about regime or some increase in the time he spends with [X] and [Y] to include blocks of overnight time during school terms.
This arrangement would be predicated on the basis of Ms Height remaining living in [B] (given her current intention not to leave without [X] and [Y]) and would be independent of Mr H’s specific work regime.
Within the proposal, Ms Height and Mr H would have to do the best they could to advance and maintain their relationship. Either Mr H could move to live in [B] and seek employment in the [omitted] industry in the vicinity of the town or he and Ms Height could continue to have a long distance relationship of the type Ms Height would have him have with [X] and [Y].
It is Mr Rhett’s assertion that this outcome would be the least disruptive for [X] and [Y] whose best interests remain paramount. It is his case that it is more appropriate for the adults concerned –
Ms Height and Mr H – to suffer some dislocation in their lives rather than the children concerned. He would categorise the mother’s proposal as experimental and untested and as such too risky for the court to take.
The evidence
My assessment of both Ms Height and Mr Rhett is that they are each honest and decent people, who are both genuinely motivated by what they think will be best for [X] and [Y]. Regrettably, but for very understandable and human reasons, they currently have very different views as to what that should be. No doubt they come to court with reluctance to ask me to resolve the dispute between them.
In addition, both Ms Height and Mr Rhett are good parents. [X] and [Y] are lucky to have such loving parents. For both Ms Height and
Mr Rhett, [X] and [Y]’s needs come first. In this regard, I reject any notion that Ms Height is being selfish in wanting to pursue her relationship with Mr H. She could not help falling in love with him. It is neither capricious nor unreasonable that she would want to live with Mr H, particularly as the two plan to marry and have children together.
Accordingly, this is not a case which turns on credit. In any event, there are few issues of factual dispute between the parties. To the parties’ mutual credit, each of them refrained from any wholesale criticisms of the other, particularly in respect of their past parenting of [X] and [Y]. The parties’ current circumstances have thrown up a dilemma, which they are unable to resolve consensually. I am not critical of them in any way for this.
Although the parties’ parenting skills and aspirations are broadly similar, I suspect their personalities are quite different. The father is conservative and cautious. He does not relish change. The prospect of a change in his and the children’s regime disturbs him greatly. The mother seemed more confident and outgoing.
Without doubt [X] and [Y] are very close to each of their parents. However, on balance, it would seem more likely than not that currently the children are more emotionally intimate with their mother and so more likely to confide their true feelings in her. As such, I think
Ms Height is more likely to be a more reliable source of information about what the children are feeling about the proposed move then
Mr Rhett.
One of the major evidentiary issues in this case is whether Ms Height has pushed or prompted either [X] or [Y] as to what they are to say, particularly to Ms A, about the proposed move to [C]. In my view, it would be unrealistic to expect Ms Height to have kept [X] and [Y] in the dark about the proposal. Necessarily, given her circumstances, it was necessary for Ms Height to raise the possibility of a move and all it entailed with [X] and [Y].
In my assessment, she did this in an appropriate and child focussed way. Necessarily, her enthusiasm for the proposal must influence the children in some way. But I do not think that this is any way sinister or manipulative. Indeed, in my view, it was appropriate parenting for
Ms Height to have discussed the issue with the children.
Although Mr Rhett is not an overtly emotional person. In my assessment he is a sensitive individual. Similarly, it would be unrealistic to expect that the children are not aware of his view of the proposed relocation and are therefore acutely aware of how upset he will be if it comes to pass. This state of affairs is likely to influence what the children say to Mr Rhett about [C].
Apart from the parties themselves, and Ms A, the only other witnesses to give evidence were Mr H and the father’s partner Ms G. Both Mr H and Ms G are decent and honest people, whose integrity is beyond doubt. Necessarily each is closely aligned with the party in the proceedings whom they hold dear.
Mr H was a gruff, no nonsense sort of person. He seemed somewhat frustrated at the length and details of these proceedings, the outcome of which he regards as clear cut and obvious – the children and Ms Height move to [C], where he will provide comfortably for them. He is more reticent and cautious at the prospect of providing for Ms Height from a distance. I can understand why this would be so.
For obvious reasons, Mr Rhett is likely to be somewhat guarded and perhaps resentful at the prospect of Mr H playing a significant role in the children’s lives. He mistrusts Mr H. Recently Mr H purchased a [omitted] puppy, which Mr Rhett initially interpreted as an attempt by Mr H to buy the children’s affections.
I am satisfied that Mr H purchased the puppy for himself from a man in [B]. It was convenient for the puppy to remain at Ms Height’s house for a few days before going to its permanent home in [C]. Clearly children of [X] and [Y]’s age are likely to find a puppy very appealing, but I do not think there was anything sinister or manipulative in its purchase. I accept Mr H wanted a [dog] for himself.
Accordingly, there is some tension between the two men who do not know each other well, if at all. However, I have no reason to believe that Mr H is not well motivated towards [X] and [Y]. It also seemed to me that he was sensitive Mr Rhett’s role as the children’s father and had no wish to replace or supplant him in this regard. It also seemed to me that Mr H has much to offer the children, not the least of which is that he makes their mother happy.
Ms A has a marked advantage over me, in this case. She was able to interact directly with [X] and [Y] and speak to them. As such, she was able to form a direct and personally informed impression of what sort of children they are and, more importantly, what is their understanding of the difficult issues involved in this case.
On the other hand, I have never met either [X] or [Y]. I have only read and heard about them, primarily from each of their parents who, for obvious reasons, have a vested interest in the outcome of these proceedings. Ms A is independent. Accordingly, her opinion and evidence, based on her direct observations of [X] and [Y] must be given a high level of regard by the court.
All family reports must be considered a “snapshot” in time, which is taken in somewhat artificial and stilted circumstances. However, notwithstanding these axiomatic limitations, I found Ms A’s report and evidence to be thorough and well considered.
In these reasons for judgment, findings of fact are made on the balance of probability. In what follows, statements of fact constitute findings of fact.
The evidence in detail
a) The mother
Ms Height was born [in] 1974. I accept her evidence that she and Mr H wish to have children together. Without wishing to appear indelicate, the time for this is limited.
Ms Height and Mr Rhett became involved with one another, whilst both were at high school in [B]. At the time, Ms Height was living with her parents in [B]. Accordingly, the parties have known each other for a long time.
Ms Height has strong ties with the community of [B]. Her great grandparents live in the town and she has many friends there. However, her own parents are separated and live interstate.
Ms Height commenced these proceedings on 17 March 2010. The first mention of the matter was on 10 May 2010, in Broken Hill, when the case was fixed for final hearing in August and the family report ordered.
From Ms Height’s perspective, the settlement of the sale of the Property R property, in June, precipitated a financial and logistical crisis. She and the children had nowhere to live. Accordingly, she applied to the court for approval to move the children to [C] pending the trial. Mr Rhett opposed the application. I dealt with this application on 7 June 2010.
I decided that it was not appropriate that the contentious issue of relocation be decided at the interim stage, particularly as the move was likely to have serious ramifications for [X] and [Y]’s level of relationship with their father and, once the move was approved, even on a provisional basis, it would be difficult to reverse. I was also well aware of the applicable authorities, which indicate that relocation cases require delicate and thorough analysis of the evidence concerned, which is not usually possible at the interim stage.[6]
[6] See C & S [1998] FamCA 66
Due to this decision, the mother was forced to rent accommodation for herself and the children in [B], pending the resolution of the case. Currently she is paying $195.00 rent per week. I accept that this places her under a great deal of financial stress, given her modest wage.
Ms Height calculates she has only about $50.00 spare per fortnight, after the payment of her rent and other living expenses.
It is the mother’s case that a suitable house for her and the children, in [B], would cost somewhere between $180,000 and $200,000. She received $66,000 in cash, upon the settlement of the Property R property. Accordingly, Ms Height believes that she would have to borrow somewhere in the vicinity of $120,000 to buy a home for herself in [B].
It is Ms Height’s case that her current circumstances would not permit her to finance a mortgage of this magnitude. I appreciate that the mother’s current circumstances are not likely to predispose her to be active in searching for a house in [B]. However, I also accept that it is very difficult for her to purchase such accommodation and, if she and the children remain living in [B], it will mean that she is dependant upon the rental market for the indefinite future.
From Ms Height’s perspective, one of the major advantages of her moving to [C] with [X] and [Y] is that it will mean she will be able to escape from the pressures of the rental market. I accept this is so. If the relationship between Ms Height and Mr H works out, in the manner both anticipate, it will mean that Ms Height has secure accommodation, which is unlikely to be the position if she remains living in [B] and Mr H is unable to join her there.
Ms Height describes herself as [X] and [Y]’s “primary carer, both before and after separation.” By this, I take it that it is her view that she has provided more of the children’s “nuts and bolts” parenting. I accept that this is so. Although the children see their father almost daily, Ms Height puts the children to bed each evening and sees them off to school each morning.
In this sense, it is likely that the children see their home as being with their mother, where they sleep most nights and where their pets are kept. I accept, that the main weight of the children’s lives rests in the mother’s household. In my view, this is a significant factor.
I do not think that Ms Height can be criticised in any way in terms of the support she has provided to the children in order for them to maintain their relationship with their father and his family. Ms Height deposed that the children enjoy being around their father and grandparents. In this sense, her assurance that she would encourage the children to maintain contact with their father, in the event they move to live in [C], can be given credence by the court.
However, it is my sense of Ms Height’s evidence that she believes the children draw more emotional support and sustenance from her than from their father. In her words “the children prefer living with me.” The major reason that Ms Height has chosen to work part-time is so that she can be available, as much as possible, for the children.
If Ms Height is able to move to [C] and live with Mr H, she will be able to cease paid employment. From her perspective, this is a major advantage of the proposed relocation. Unlike her current situation in [B], she will be available to the children both before and after school. In addition, it is likely that she will be able to take part in more school and extramural activities, such as gymnastics, swimming and canteen duty.
Much controversy exists between the parties regarding what are the views of [X] and [Y] regarding the proposed relocation. Ms Height’s opinion is that the children are happy about the prospect of the move and are looking forward to it. It is her case that the children see the prospect of their mother being able to stop work and become a “stay at home mum” as a major advantage.
[X] was diagnosed with Type I diabetes in July 2008. She has inherited this condition from her mother, who was diagnosed as a diabetic when she was eleven years old. Both Ms Height and [X] have to check their respective blood sugar levels four or six times a day and both must inject insulin. [X]’s condition must be carefully monitored and she requires specialist check up around once a year. At present, this specialist monitoring takes place in Adelaide, but if Ms Height relocates to [C], with the children, it would most probably take place at [omitted].
Ms Height concedes that Mr Rhett has been involved in [X]’s medical management but it is her case that she takes the pre-eminent role in this aspect of [X]’s care because she suffers from the same condition.
I accept that this is so. It also seems to be likely that this shared condition between mother and child constitutes a further source of emotional connection between the two.
In my assessment, Ms Height is a highly responsible parent, so far as the treatment of [X]’s diabetes is concerned. I also accept that Mr Rhett defers to her in respect of the condition. In this regard, I have no reason to think anything other than that Ms Height would continue to ensure that [X] received appropriate medical treatment if she ([X]) lived in [C] in future.
Although it is impossible for me to assess how the relationship between Ms Height and Mr H will ultimately turn out, I do not think that
Ms Height is viewing their relationship through “rosed coloured glasses” or that it can be said that she has acted with undue haste or imprudence in respect of it. The two met in early 2009. Ms Height’s evidence is that:
“Initially I decided to see how our relationship continued before involving the children with [Mr H]. Our relationship continued to strengthen, and after about three months I introduced him to my children [X] and [Y].”[7]
[7] See mother’s affidavit filed 14 July 2010 at paragraph 35
I accept that Ms Height is now very much in love with Mr H, whom she regards as a soul mate. In her evidence, she said “I want to be with him for the rest of my life”. Ms Height further deposed that she would be “disappointed, upset and heart broken” if she lost her relationship with Mr H.
In this regard, it is a significant piece of evidence that both Ms Height and Mr H have deposed that they plan to marry and would like to have children together. As such, I accept that the relationship between the two is a very significant one for each of them. Neither Ms Height nor Mr H strike me as being emotionally imprudent people. To the contrary, both struck me as being somewhat cautious in this regard, particularly Mr H.
In this sense, Ms Height is pessimistic at the prospect of the relationship continuing if she is not able to move to [C]. As I will detail, when I come more specifically to Mr H’s evidence, he is a person who places great store on financial security. As such, he would not easily give up his well paid position in [C], notwithstanding his level of devotion to Ms Height.
Ms Height is well aware of this. She is also, in my assessment, sensitive to the feelings of Mr Rhett. As such, I do not think that her desire to relocate the children to [C] and begin a new life with Mr H can be said to be based on any selfish motivation attributable to
Ms Height.
Up to this stage, Mr H has provided some financial assistance to
Ms Height but it has not been on a regular basis, rather he has assisted her in cases of emergency, such as when she has had to replace the tyres on her car or has had an overdue gas bill.
I accept the evidence of both Ms Height and Mr H that Mr H is likely to be reluctant to provide periodic and regular amounts of financial assistance to Ms Height in order to assist her to maintain a residence in [B], whilst he continues to live in [C].
Mr H is willing to take up a significant level of financial responsibility, so far as Ms Height and the children are concerned, but he is only prepared to do it on his own terms, one of which would be that he did not perceive that he was “going backwards” financially.
Accordingly, from Ms Height’s perspective, she sees the prospect of she and the children not being able to relocate to [C] as representing the loss of a new life both for her and the children and the ability to thrive and grow together. In large part, she sees this potential growth in financial terms but also in the sense that she and the children will have a happier life in [C].
It is Ms Height’s perception that [X] and [Y] get on well with Mr H. In her words, “he gives them different opportunities”. In particular, he has taught the children to water ski and given them confidence in the outdoors and the water. I have no reason to disbelieve this evidence. Nor do I think that either Ms Height or Mr H is intent on replacing
Mr H for the father in the children’s affections.
As previously indicated, Ms Height initially moved cautiously, so far as introducing the children to Mr H was concerned, preferring to see what happened with her relationship with Mr H. However, after this initial period of caution, she and the children have visited Mr H’s home in [C] on five or six occasions. The vast majority of these visits, if not all, have happened during school holidays.
Accordingly, it cannot be said that [X] and [Y] have no understanding of what life will be like for them in [C]. Ms Height’s evidence is that [X] makes friends easily but [Y] is more reserved. Ms Height’s evidence is that [X] has already made some friends in [C] and has had a sleep over with a friend there. She concedes that [Y] has moved more slowly but indicated that she ([Y]) had made a couple of friends in the town.
I accept that the experience of visiting [C] is qualitatively different for [X] and [Y] to the experience of moving permanently there, away from their existing circle of family and friends. However, it cannot be said to be a complete leap into the dark for either child, particularly as both [B] and [C] are outback towns in Western New South Wales, albeit that [C] is somewhat smaller in terms of its population.
Ms Height refutes any suggestion that she has been “coaching” the children, in respect of the issue of them moving to [C]. She does however concede that she has had what she has describes as “open discussions” with the children about the issue. By this she means she has tried to explain to the children how the possible household with
Mr H will work and then lets the children ask any questions about this.
In Ms Height’s words, “I try not to over complicate or confuse things for the children … they can ask me anything.” The sorts of questions the children have asked their mother are as follows: When will we know we can go; which room will I get; what are the times for sport; will you have to work if we go; is there room for a pony? To this last question, Ms Height has replied “no”.
I accept Ms Height’s evidence that her conversations with [X] and [Y] about the [C] issue have been responsible ones, which have not been designed to unduly influence the children one way or the other. Clearly the children know about their mother’s relationship with Mr H and are aware that he lives in [C]. In this context, it would be unrealistic to expect that Ms Height could in some way quarantine the children from any discussion of the issue.
These discussions are also the basis of Ms Height’s opinion that [X] and [Y] “want [their mother] around full-time”. This was also an issue the children apparently raised with Ms A. In my view, there is nothing improper about the nature of these discussions between the mother and children.
At the beginning of the school year, [X] was elected the President of the SRC by her peers at her school. This was a significant achievement for [X] and mark of both her popularity and maturity in the school setting. Ms Height was criticised for being willing to cut short [X]’s tenure in the position by her wish to relocate the children in the middle of the school year.
I do not think there is much validity in the criticism. Ms Height conceded that [X] would be disappointed at this prospect but she considered that [X] would be able to come to terms with it, particularly as she and Mr H had emphasised to her, her achievement in gaining the position in the first place.
From Ms Height’s perspective, a move to [C] during the middle of 2010 would have been more convenient, particularly as it would have avoided the prospect of her having to find alternative accommodation. Ms Height also believed that it would have been better for [X] to have been able to make friends in [C] during 2010, so that she would be able to move onto high school in 2011 with some form of social network.
In any event, the final hearing scheduled for August of 2010 could not be completed in the time scheduled for it and the hearing was completed in November, when Ms A gave her evidence. Accordingly, [X] will be able to finish her SRC presidency.
I also accept that [X]’s holding of this role was one consideration, amongst many, which Ms Height had to weigh up so far as the timing of the relocation was concerned. Again, I do not think her decision in respect of the issue can be characterised as being a selfish one.
Ms Height has obtained information from the web pages of the [C] Public School and [C] High School. She has also obtained information about the facilities offered in the town by the [C] Shire Council. In addition, she has obtained information from the New South Wales Health Service as to the services available for diabetics at the [omitted] Hospital. She has been criticised for not visiting the actual schools in [C], which she proposes [X] and [Y] should attend.
The implication of this criticism is that Ms Height does not take her parental responsibility to ensure that [X] and [Y] receive a proper level of education with an appropriate degree of seriousness. Having seen Ms Height in the witness box, I do not accept that gravamen of this criticism.
In my assessment, she is a well motivated parent, who wishes [X] and [Y] to have every possible opportunity in life. In particular, it is her view that both children will enjoy a more comfortable standard of living, if she and they are able to relocate to [C].
b) Mr H
Mr H, although somewhat laconic, seemed to me to be totally honest. He was born in [N], New South Wales [in] 1971. His immediate family – his mother and three sisters, as well as several nephews and nieces live in [N] which is 130kms away from [C].
Mr H attended court, with Ms Height, on each day of the trial before me. He is not a person for profuse verbal gestures or expressions of love. In terms of his relationship with Ms Height, [X] and [Y], he says as follows:
“The children are very familiar with me and I have a good relationship with both of them. I am very fond of them both …
I want Ms Height and her two children to come and live with me at my house at [C]. I want to continue my relationship and hopefully get married in the near future.
I would like to have children with Ms Height. I do not have any children of my own.”[8]
[8] See Mr H’s affidavit filed 15 July 2010 at paragraph 9, 11 and 12.
I accept that Mr H loves Ms Height and wants to have children with her. As a corollary of this, he is also prepared to assume financial responsibility for three dependants, provided those dependants live with him in the same household. It is his view that it is unworkable in the longer term, for him and Ms Height to have separate households. His obvious preference is for Ms Height and the children to join him at his house in [C], as soon as possible, where he will become the principal bread winner for the family.
Mr H owns a modern house, located on 8 acres of land, approximately 5kms from [C]. He enjoys a rural lifestyle and keeps animals on the property. The house has two bedrooms currently but Mr H has plans to convert a large garage into another bedroom. He will do most of the work himself and it will take about two weeks. I have no reason to doubt his assurance that his home would provide appropriate accommodation for [X] and [Y].
Although Mr H has provided some financial assistance to Ms Height in the past, he is adamant he will not assist her with paying a mortgage or rent on a property in [B], which he himself will not permanently occupy. The issue of negative gearing was raised with him, but this is not a concept he has considered. Although prepared to accept
Ms Height and the children, as his dependants, he would not want this to occur in a manner in which he considers untenable in the longer term or likely to be financially detrimental to him.
My assessment of Mr H is that he is financially cautious and unlikely to act in a precipitate manner. He loves Ms Height and wishes to live with her but he will not act impulsively or, as he sees it, financially recklessly to pursue his relationship with her. He would not offer to support Ms Height and her children, if he did not think he was capable of living up to that commitment in the long term.
Mr H has worked at [omitted] at [C] since 23 May 2005. He is an [omitted]. In the middle of this year, due to a restructure of the management of the [workplace, he has been temporarily promoted to the position of [omitted]. His salary has increased from $115,000 to $144,000 per annum. The promotion is likely to be permanent.
The operation of the [workplace] was not affected by the global financial crisis. It has an operational life of around twelve years and its capacity is being currently extended. Mr H enjoys his work and believes his employment is secure. He has no active plans to seek alternative employment. From his perspective he has a secure and well paid job. He would not easily give it up. I can understand why this would be so.
That is not to say Mr H is totally closed to the possibility of moving to work in [B]. In September, October and November of last year he made some inquiries regarding employment in [B]. In particular, he made a written application to [P]. He described this as a general application. It was not successful.
Mr Rhett is critical of Mr H for not making more wide ranging applications, particularly in respect of other firms which conduct [omitted] operations within a radius of around 100km of [B]. Mr H’s response to this criticism is his view that [occupation omitted] in [B] and its environs is “not as long term as it is in [C]”. In particular,
Mr H’s experience is that experienced [workers] have been relocating from [B] to [C] rather than vice versa.
Mr H’s evidence is that he would move to [B], if he could get a job at the same rate of pay as he currently receives in [C]. I accept his evidence that he has not been able to find such a position. In addition, I have not been provided with any evidence that such positions are readily available in [B] or its surrounds.
The only evidence provided to me in respect of employment in the [omitted] industry in [B] is that [P] laid off 400 [workers] in September of 2008.[9] Mr Rhett asserts that these redundancies coincided with the global financial downturn. It is his position that [P] has been steadily re-employing [workers] in the period since.
[9] See father’s affidavit filed 30 July 2010 at paragraph 55 and Mr H’s affidavit filed 15 July 2010 at paragraph 20.
This may be so but Mr Rhett has not provided any conclusive data in this regard apart from his assertion of the fact. His counsel tendered an advertisement from the [omitted], the [B] local newspaper, for 7 August 2010, which advertisers a position vacant for an experienced [omitted].
It is unclear to me from the advertisement as to how many positions were vacant and what the level of remuneration was. Mr H conceded that he was likely to be able to satisfy the requirements of the position. He did not know of the advertisement, which Mr Rhett asserts is evidence that he (Mr H) is out of touch with the current state of the [omitted] industry in [B] and is not really serious about finding work in the town.
In my view, Mr Rhett has not been able to demonstrate conclusively that there is a wide range of positions available in the [omitted] industry in [B]. More importantly, he has not been able to demonstrate what are the applicable rates of remuneration. Mr H’s position is that he will consider a move to [B], but only if he can get a job at the same rate of pay as he does “not want to go backwards financially”.
Given Mr H’s situation, this does not seem to me to be an unreasonable position. It is clear to me that Mr H has prospects at [workplace omitted], particularly in terms of his recent promotion. On the evidence before me, I think it unlikely that he would be able to replicate such prospects for himself, in the short to medium term, in [B].
I do not question Mr H’s level of devotion to Ms Height. At present and into the future, he works to a roster of four days on, followed by four days off. He works 12 hours in a shift. He has regularly travelled to [B] on his rostered days off to spend time with Ms Height and the children. He travels to [B] on the first day of his break and returns to [C] on the fourth day.
Mr H describes this level of travel as “inconvenient, costly and time consuming”. It is his position that it is putting a strain on his relationship with Ms Height and cannot go on as it is. He is fearful that, much as he cares for Ms Height, he will not be able to keep up this regime indefinitely and the only way the relationship can be maintained is if he, Ms Height and the children live together as a family.
Mr Rhett is critical of this attitude on Mr H’s part. It is his case that
Mr H is putting his own convenience before the best interest of [X] and [Y] and is in effect condemning them to a level of travel to which he is unwilling to personally commit in the long term.
With respect to Mr Rhett, I think this is not a totally fair or accurate comparison. Neither Mr H nor Ms Height are proposing the children travelling every eight days between [C] and [B]. The proposal is for the children to travel in school holidays and on two occasions each term.
Both Ms Height and Mr H are familiar with the road between [C] and [B]. They describe it as a safe road to travel, particularly in daylight hours, as it is largely fenced. Mr H has an appropriate vehicle for the journey. He is prepared to pay for Ms Height’s share of the costs involved in the children travelling backwards and forwards between [C] and [B].
c) The father
Mr Rhett cares about and loves [X] and [Y] very much. He expresses his love and devotion very simply when he says “I want to be with the children every day.” He further deposed that he would be “heart broken” if the children moved to [C] and it would be “very unfair” for him to be forced to pay the children’s expenses in such a situation.
My major concern with Mr Rhett’s evidence and his stance in these proceedings is my perception that he is incapable of seeing the case from any perspective other than his own. Essentially, he seems unable to empathise with the position in which Ms Height and Mr H find themselves, or see the case from either [X] or [Y]’s point of view.
Apart from the fact that she wants to live with the children in [C],
Mr Rhett has no criticisms of Ms Height’s parenting of [X] and [Y]. He concedes that she has been encouraging and supportive of his relationship with the children and the current [B] regime has suited his work and living arrangements.
Up until this stage, Mr Rhett has not requested of Ms Height an increase in the time he has to spend with [X] and [Y]. I appreciate that there are pragmatic reasons why this has been so, relating to his accommodation. In my view, it is to Mr Rhett’s credit that he wanted [X] and [Y] to have as much stability in their lives as possible, in the period following their parents’ separation, particularly so far as their being able to remain living in their home at Property R.
However, up to this stage, my impression is that a shared care regime or a regime encompassing a significant level of overnight time has not been a pressing issue for Mr Rhett, who has been prepared to go with the flow of the current arrangements, which see the children living predominantly with the mother. As such he has accepted that this has been a good regime for the children.
This is not to say that Mr Rhett is not vitally interested in the children and their welfare. It is he who has arranged a maths tutor for [Y]. In addition, he takes both children regularly to their dance and swimming commitments. However, for the reasons already provided, I am satisfied that the predominant weight of the children’s lives is currently in their mother’s household.
Like Mr H, Mr and Ms R Senior attended each day of the hearing before me. Mr R senior suffers from bowel and urinary tract cancer. As such, I accept that he is currently facing very serious health issues. I am not critical in any way that the paternal grandparents have not given evidence in these proceedings. I accept they have a very close and significant relationship with [X] and [Y]. In these circumstances, there is much force in the father’s position that the children may have “limited time to spend with their grandparents.”
I accept Mr Rhett’s evidence that both [X] and [Y] are well settled in primary school in [B] and have many friends within their scholastic circle. Ms Height does not disagree with this assertion. Where the parties are in dispute is to how readily the children will adapt and adjust to a new school.
Both Mr Rhett and Ms Height describe [X] as a bright and outgoing child. [Y] is said to be more introverted, although her mother believes that she now interacts more easily with other children. I also accept
Mr Rhett’s evidence that the children are well settled in the current regime and neither has suffered any great emotional upheaval, as a result of the separation of their parents. This state of affairs is a tribute to both parents.
Although I cannot say for certain how [X] and [Y] will adjust to moving to live in [C], given their current emotional status, I am not unduly concerned that they will fail to accommodate the necessary process of adjustment to such a move.
In 2011, [X] must accommodate the transition to secondary school. As her presidency of the SRC demonstrates, she is a child with a significant level of self confidence. Both Ms Height and Mr H believe her level of confidence has grown since her election to the office. In these circumstances, I am confident she will be able to accommodate the transition.
I appreciate the situation is less clear cut, so far as [Y] is concerned. However, she will not be without emotional support in the proposed move. All concerned agree that the two children have a close relationship with one another. They are also close to their mother.
In his affidavit material, Mr Rhett expressed some concern about the level of amenity in [C]. It is a town with a population of around 5,000 compared with [B]’s of around 20,000. However, in his oral evidence, Mr Rhett indicated that he had not been to [C] for some years and as far as he could determine, the medical and other facilities in [C] “seemed appropriate”.
I accept Mr Rhett’s evidence that he has been involved in treating [X]’s diabetes in the past, particularly in terms of taking her to Adelaide for regular check ups. As such, although it remains my view that it is the mother who has assumed pre-eminence in managing [X]’s condition, I accept that Mr Rhett is more than capable of ensuring [X] receives appropriate treatment. In any event, it is clear to me that [X]’s condition is well managed and likely to remain so, wherever she lives.
[X] has recently reached menarche. This will affect her hormone levels in future and so will have implications for the management of her diabetes. Ms Height was aware of this occurrence, when it happened, from [X] herself. Mr Rhett learned about it approximately one and a half weeks later, again from [X]. This indicates a close relationship between father and child, but perhaps a closer relationship between mother and child.
Mr Rhett has re-partnered since the parties separated. His partner is
Ms G. Mr Rhett and Ms G have been significantly involved with one another for around eighteen months. They do not live together and have no plans to do so, preferring to maintain separate households.
Ms G has a holiday home at [omitted]. Mr Rhett and the children often spend weekends there, where the children enjoy fishing and canoeing. I accept that these activities and the opportunity to spend relaxed time together, in a conducive setting, are important to both Mr Rhett and the children. It is an indication of the warmth and depth of relationship between Mr Rhett, [X] and [Y].
I also accept Mr Rhett’s evidence that his current accommodation is well equipped with toys and activities for the children. When Mr Rhett moves into his new home, he will be able to provide more space for [X] and [Y], particularly in the form of separate bedrooms for them.
One of the practical bases, on which Mr Rhett puts his case for a significant increase in the time he spends with the children, is that he is now better placed to provide accommodation for them. Clearly this is the case. It is also the case that Mr Rhett is able to attend to the day to day needs of [X] and [Y]. In this regard, I find Mr Rhett to be a competent and well motivated parent.
I also accept that Mr Rhett has provided consistent and reliable financial support for [X] and [Y]. He has paid child support regularly and contributed towards the outgoings on the Property R property, when Ms Height and the children were living there. I also accept that, after the parties’ separation, Mr Rhett found himself in straitened financial circumstances and has lived very frugally since.
In his evidence to the court, Mr Rhett indicated that both children have told him they will miss him, if they go and live in [C]. From Mr Rhett’s perspective he will miss the closeness with his children which comes from the opportunity of being able to see them almost every day and to cuddle and hug them. I hope that I do not underestimate the importance of this opportunity for the children to have frequent physical interactions with their father.
It is also Mr Rhett’s view that neither child really wants to go to live in [C]. It is also his view that [X] and [Y] are excited at the prospect of moving into his new home, particularly given the extensive nature of the renovations there.
It would seem to me to be highly likely that the children have some level of excited anticipation at both the possibility of spending time at the father’s new home in [B] and at Mr H’s home in [C], which they have visited in the past. It would also seem to be inevitable that they would be torn, in some way, between the two options. In this context, I am dubious that either child has clearly indicated an unequivocal preference to Mr Rhett.
Some of Mr Rhett’s concerns about the children not wanting to move to [C] are based on text messages received by him from [X], whilst she has been at Mr H’s house in January and July of 2010.[10] As perhaps can be anticipated, Ms Height and Mr H attribute a different motivation to [X] for the sending of the messages in question.
[10] See Mr Rhett’s affidavit filed 30 July 2010 at paragraphs 63-66.
They see [X]’s messages as being the petulant response of an adolescent girl, who was annoyed that she was being disciplined for minor transgressions of the standard of behaviour required of her by Ms Height and Mr H. I accept their evidence in this regard. Accordingly, I do not think that anything significant turns on those messages.
Mr Rhett indicated that it was his view that [X] and [Y] get on well with Mr H and have fun when they go to [C], particularly when they do water sports there. Mr Rhett also indicated that he too liked camping and, if the children went to live in [C], he would make the effort to visit them there, although he was concerned about the practicality and expense involved in this. He did not think that it would be practicable for him to go to [C] to have a camping weekend with the children.
As previously indicated, Mr Rhett does not have his own computer. However, Ms G does and Mr Rhett is able to access Facebook from there. He also indicated that there were no technical difficulties with the internet, of which he was aware, in Western New South Wales.
d) Ms G
Ms G was a pleasant person. She is a [occupation omitted], who works in a [omitted] in [B]. She has four children from her previous marriage, three of whom currently live with her and who are aged sixteen, thirteen and eleven years respectively. Ms G also has a high school student boarding with her during the week. The student concerns lives on a cattle station outside of [B].
Accordingly, Ms G’s household is a crowded and busy one. She does not anticipate that she and Mr Rhett will amalgamate their respective households for many years to come. They do however spend regular Saturday evenings together and see each other often during the week.
Accordingly it is clear that Ms G knows [X] and [Y] well. It is her evidence, which I accept that [X] and [Y] have a close bond with their father and enjoy spending time with him and other members of their paternal family, particularly their grandparents, Aunt [name omitted] and cousin [Z]. [Z] is around five years of age. Ms G describes
Mr Rhett as a loving and competent parent.
Ms G also speaks fondly of the times [X] and [Y] have had holidays with her, Mr Rhett and her children at Ms G’s holiday home at [omitted]. This evidence confirms my impression that [X] and [Y] are surrounded by a warm network of family and friends in [B].
Certainly this is Mr Rhett’s position. He describes [X] as a confident and outgoing child, who is a high achiever with many friends. Although [Y] is more withdrawn, Mr Rhett indicates that she too makes friends easily. This is the basis of Mr Rhett’s case – the children are happy and well settled in [B] and it would be an unwarranted experiment to move them to a location away from this warm network of family and friends.
e) Ms A
Ms A interviewed each of the parties and [X] and [Y] on 25 June 2010. [X] was described as ‘developmentally appropriate for her age” as was [Y]. Accordingly, Ms A thought it appropriate to canvas with each of the children their thoughts about the proposed move to [C].
She did this in a way which was congruent with what she described as “child-inclusive practice”. Essentially, she invited the children to draw their respective views of who constituted their family and utilised a pack of cards, with pictures of bears on them, which displayed a variety of facial or emotional expressions.
Ms A uses the cards to help younger children, who may find it difficult to articulate their emotions, to be able to more easily show what they are feeling by reference to the particular emotional expression on one of the bear cards.
[X] said that she felt happy, when she is with her mother and that the “stuff” the two did together was good. She picked a bear with a happy face to describe how she felt about her mother. [X] described Mr H as “nice” and said he treated her and [Y] well and made things fun for them. Ms A’s view was that [X] had a “playful relationship” with
Mr H.
In terms of the prospective move to [C], [X] said she thought the move would be good, although she accepted that she would not as yet have any friends there, although she thought she would be able to make friends easily in [C]. [X] also indicated that she was aware that she would miss family and friends in [B].
[X] also selected a happy bear card to describe her relationship with her father. When [X] was asked about who of her parents she would want to care for her if she was ill, she nominated her mother. She also apparently indicated that her mother was the major carer for her diabetes. Accordingly, although Ms A considered that [X] had a close relationship with both her parents, she considered that “her bond and attachment was slightly stronger with her mother at the time …”.
[X] was able to articulate some negative emotions about the possibility of her moving to [C]. She said she would likely to feel upset and sad about the move. However, Ms A thought that [X] was largely in favour of the move, which she regarded as being good for her family as a whole, particularly in terms of her mother being happy and not having to work, but rather being able to come to her and [Y]’s school regularly.
In this context, I consider it important to record that it was Ms A’s opinion that neither [X] nor [Y] were exhibiting anxiety about the issue. Rather, she considered that [X], in particular, had thought about the topic and had come to a valid conclusion about it. However, Ms A did provide the rider that she thought it unlikely that either child had a full appreciation of the possible long term consequences of moving permanently to [C] and away from [B].
[Y] reported that she felt “okay” about the move, although she was also reported by Ms A to be somewhat unsure about what it might be like, when she actually got there. In this respect, she chose a bear card, which exhibited a bear scratching his head with a puzzled expression to indicate her feelings about the move.
In her report, Ms A expressed some concern that the children may have been “coached” by Ms Height in respect of the relocation issue. When asked what she meant by the term “coached” Ms A conceded that what she meant to convey was her view that the children had likely been influenced by what their mother had told them about the issue.
In this context, Ms A accepted that it was appropriate parenting for
Ms Height to discuss the prospect of she (Ms Height) and the children moving to [C], and as such, there was nothing obviously sinister in the fact that the children had been influenced by their mother. The implication of this being that it was both natural and to be expected that Ms Height would play some role in influencing the children’s views about the issue and it would be unrealistic for her not to discuss the matter with [X] and [Y] in some way.
The factual basis on which Ms A reached the conclusion that the children had been so influenced was the fact that each child indicated to her the view that “they would still be able to practice gymnastics in [C] at home, although [C] itself did not have any formal gymnastic classes.” Ms A was struck by the fact that the children used identical terminology about the issue, which was important to each of them.
I do not think that Ms Height can be characterised as being an irresponsible for selfish parent because of her wish to live with [X] and [Y] in [C]. Rather, she has come to a difficult decision and determined that both her and the children’s interests will be best served, if she and they are able to relocate to [C]. In my view, she has broached this issue with the children in a sensitive and child focussed manner.
I find that [X] and [Y] are much loved children in both their mother and father’s households. As such, their emotional needs are appropriately met by both their parents. I have no reason to think anything other than that this situation will continue, regardless of what is the ultimate outcome of the case.
Both parties seem to me to be committed to [X] and [Y] having a rich and varied childhood, which includes exposure to all manner of extramural activities. Both children play a variety of sports, particularly gymnastics and swimming. Both children attend dance classes. Although [C] is a smaller location than [B], I consider that the children will be able to engage in similar extramural activities in [C].
In this case, I am satisfied that [X] and [Y] will receive a high level of parenting, in both their parents’ homes, whatever is the outcome of these proceedings. [X] and [Y] are much loved. They will be well fed, well housed, well cared for and well parented by both Ms Height and Mr Rhett, who each take their parenting responsibilities very seriously indeed.
h) The children’s maturity, sex, lifestyle and background
i) Aboriginality
In the context of this case, these criteria do not appear to be specifically relevant.
j) Family violence orders
k) Any family violence order
Family violence is not a consideration in this case. There are no relevant family violence orders applicable to the parties in this case.
l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
In these circumstances, it seems to me desirable that the court should bring about, in any orders made, as stable a situation as possible for the children, which will obviate the need for any further litigation.
In my view, this consideration militates against the court acceding to Ms A’s proposal that there be a child inclusive practice review in approximately six months time. Such an intervention will not lead to the finalisation of these proceedings and, of itself, has the potential to be highly controversial and so lead to further bitter litigation between the parties.
If it be the court’s decision that the children should relocate to [C], in my view, it is preferable that this decision be made on a final rather than a conditional basis. In addition, I accept Ms Height’s indication that she would return to [B] if either child is deeply unhappy in [C]. I did not think that her statement in this regard was a cynical exercise to advance her case. Rather, I think it genuine and child focussed.
m) Any other relevant issue
One of Ms Height’s major reasons for wanting to move to [C] is so that she can have a new start in life, in a new environment, with the man she hopes will be her husband, Mr H. These are understandable human aspirations and cannot be easily dismissed.
If denied, Ms Height is likely to feel aggrieved towards Mr Rhett, from whom she has been separated for over four years. As such, she is likely to feel that her past and the involvements she formed in it prevent her having a viable future, certainly one of her own choosing.
It is difficult to quantify personal happiness in concrete terms. I accept that Ms Height personally is likely to be happier, if she lives in [C] with Mr H. For his part too, Mr H is likely to be happier if Ms Height is able to join him in [C] and so he can maintain the employment and security, which is so important to him.
As has been pointed out earlier, one of the factors which lead [X] and [Y] to favour the move to [C] is that such a move will enable their mother to change her role in their family. She will move out of the role of part-time wage earner and become a stay at home mum. By necessary implication, the children believe Ms Height will be more available to them and perhaps less stressed, both in financial and time constraint terms.
Mr H is an essential part of this transformation. He will provide
Ms Height (and indeed [X] and [Y]) with a large measure of financial security. Mr H’s financial security comes from his well paying job in [C] which, as I have found, is unlikely to be replicated for him in [B].
I accept that Ms Height will be significantly more secure financially if she is able to pursue her relationship with Mr H in [C] and take up his offer to support her and the children. For obvious reasons, such an outcome will also make it easier for her and Mr H to be able to fulfil their ambition to have a child or children together.
If Ms Height feels personally happy and financially secure, this is likely to flow through to [X] and [Y]. It is also a state of affairs, which is likely to make Ms Height a better parent. She will not feel she is financially disadvantaged. She will not feel unhappy or frustrated. In nuts and bolt terms, I accept the move will be financially advantageous for [X] and [Y].
Equal shared parental responsibility
As the presumption of equal shared parental responsibility applies in this case, I am required to give earnest consideration to the children spending either equal time or substantial and significant time with both of their parents. Both options rely on Ms Height being restrained (either explicitly or implicitly) from moving her residence from outside of [B], as Mr Rhett is not willing to consider moving to [C] and I cannot compel him to do so, even if such an outcome was reasonably feasible.
In effect, Ms Height would be shackled to [B] for the remainder of the children’s childhood, with the possibility that this will result in her losing her relationship with Mr H. In these circumstances, in my view, there exists the real possibility she may regard [B] as a prison and
Mr Rhett as her gaoler.
Although there is no evidence to indicate Ms Height is susceptible to contracting any mental illness or is anything other than normally psychologically robust, in my view, such an outcome must have implications for her emotional wellbeing and so in turn for the effectiveness of the parental dynamic between the parties, particularly in terms of the practicality of imposing, by court fiat, either an equal time regime or a substantial and significant time regime.
As a result of the two limb test contained in section 65DAA and what was said in Taylor & Baker, I must consider the question of equal time (and substantial and significant time) first, within the context of the various section 60CC factors applicable, before turning to consider whether either such outcome is reasonably practicable to put into operation.
As the Family Court has pointed out, this leads to a situation where the relocation aspect of any case comes to be considered as a separate and discrete issue. In my view, this aspect – relocation – must be considered in the context of what is objectively practicable, based on the reality of the situation in which parents and children find themselves, not what is theoretically desirable for any child concerned.[31]
[31] See MRR. v GR (supra) at paragraph 15
As part of this exercise, the court cannot ignore a parents’ legitimate entitlement to live how or where he or she chooses. In purely theoretical terms, the best possible outcome for [X] and [Y] is likely to be one in which they could spend as much time as possible, in all manner of circumstances, with each of their parents and the current harmonious parenting relationship between Ms Height and Mr Rhett could continue indefinitely.
However, in my view, such an outcome although theoretically desirable, is not now reasonably or objectively achievable given the reality of the situation which confronts the parties now the genie in the bottle of relocation has been released and Mr H has become engaged in the family’s dynamic.
The test of what is practicable, in any given case, is to be assessed by the court objectively. In making this objective assessment, the court is required to consider four specific criteria and one genetic criterion, as set out in section 65DAA(5). I turn to consider those matters now.
a) How far apart the parents live from each other
Too a large extent this is an artificial consideration. If Ms Height lives in [B] indefinitely, distance, of itself, will not provide a practical impediment to an equal time arrangement. However, this fetter on her liberty will have other practical implications for the parties’ parenting relationship. Clearly an equal time regime is impracticable if Mr Rhett lives in [B] and Ms Height lives in [C].
In addition, if Ms Height is in [C] and Mr Rhett remains in [B], the distance will preclude a substantial and significant time arrangement within the strict terms of section 65DAA(3). The children will not be able to spend time, with each of their parents, on days that fall during the school term. In addition, such a situation is likely to preclude the children from having a sense that both their parents are involved in their daily routine.
However, in my view, the regime proposed by Ms Height, if she is authorised to move to [C] with [X] and [Y], will still enable the children to spend a significant amount of time with their father. Undoubtedly he will be able to see the children regularly, although necessarily this time will be confined to school holidays and weekends and will not be as extensive as he would wish.
b) The parties current and future capacity to implement an equal time or substantial and significant time regime
Up to this stage, Mr Rhett has not sought to change the longstanding parenting arrangements for [X] and [Y] and move to either an equal time regime or one which has included more overnight time. His reasons for this are firstly his accommodation situation has precluded it previously and secondly, he did not want to rock the boat with
Ms Height. I accept the validity of both these reasons.
However, the fact remains that now, given the parties’ current circumstances, his aspiration to have an equal time regime must involve a significant level of denial of Ms Height’s personal preferences and can only come into being as a result of the court’s direct intervention. Ms Height herself is not likely to be a willing participant in such an outcome.
Such an outcome is likely to leave Ms Height feeling disregarded and unheard. If her relationship with Mr H withers, because he finds it impossible to continue his onerous travel to [B] or financial circumstances dictate that he cannot abandon his employment in [C], this is likely to make Ms Height feel bitter. In my view, this is not a situation likely to be conducive to the parties being able to implement successfully an equal time or substantial and significant time arrangement.
c) The parties’ communication skills
For over four years, the parties have been able to make the current regime, which involves the children moving frequently between their respective homes, work effectively. This indicates that they communicate well and respectfully together. I would hope that such a situation will continue, whatever is the outcome of these proceedings.
Accordingly, in theoretical terms, I believe that the parties have sufficiently well developed communication skills to make an equal time regime work. In their respective evidence, both said, in the eventuality of an outcome occurring which was unpalatable to him or her, each would nonetheless continue to remain focussed on the children’s best interests. I accept this is so.
d) Impact upon the children
[X] and [Y] are emotionally stable children, who have close and loving attachments to each of their parents. As such, again in theoretical terms, the children are likely to be able to adapt to the regime advocated by Mr Rhett.
However, the children are well aware that this is not their mother’s preference. I also accept that it is not their preference either, although [Y], in particular, has some reservations about moving to [C] permanently.
The children predicate their preference on the basis that the relocation to [C] will make their mother happy. Accordingly, it seems likely to me that, if the children perceive the shared care regime renders their mother unhappy, particularly because her relationship with Mr H does not work out, this may have a significantly deleterious effect on the children.
e) Any other relevant matter
In my view, the chief reason why the equal time regime (or strict substantial and significant time regime) to which Mr Rhett aspires is impracticable is that it has the potential to condemn Ms Height to an uncertain financial future, living in rented accommodation, for the foreseeable future, against her will.
Essentially, she will be deprived of the opportunity to secure her own personal happiness and sense of financial security, on the terms which are preferred by her. Given all the circumstances of this case, including my assessment of the applicable section 60CC factors, I do not think an equal time arrangement is a reasonably practicable outcome in this case because of these consequences for Ms Height.
Conclusions
If Ms Height had not met Mr H or his circumstances had been different, the family concerned in this case would most likely have taken a different trajectory. With the completion of Mr Rhett’s home and given his warm relations with the children and cooperative parenting relationship with Ms Height, it is highly probable that [X] and [Y] would have begun to spend more time with their father and it would have been hard to argue that this would not have been in their best interests.
But Ms Height did meet Mr H and the two fell in love. Mr H’s life and financial security are in [C] and, as a consequence, Ms Height sees her own life unfolding there. As a result of this state of affairs, the best interest considerations of [X] and [Y] must also be recalibrated and considered within the context of this new reality rather than what would have been theoretically ideal in the past.
Given the considerations engaged by section 65DAA(5) I have concluded that it would not be reasonable practicable to indefinitely restrain Ms Height from leaving [B], with [X] and [Y], so that the “ideal” parenting option, preferred by Mr Rhett, can be imposed upon her. Given the circumstances now confronting this family, such an outcome can remain ideal only in theory, on the basis of what might have been, rather than what now is.
Relocation cases are very difficult. No one factor is determinative. Necessarily they require the exercise of an individualised discretion. It has been said that they entail an intuitive synthesis. I mistrust any reference to intuition in the judicial process. The rationale of judgment is to be didactic. Although, as I have pointed out, relocation cases inevitably involve irreconcilable considerations, an attempt must nonetheless be made to reach conclusions which are amenable to the application of reason.
If Ms Height had not wished to move to [C], the various best interests factors enumerated in section 60CC and the application of the presumption of equal shared parental responsibility would most probably have steered the court in the direction of the outcome which both Mr Rhett and Ms A regard as theoretically ideal for [X] and [Y]. However, the various section 60CC factors must be examined in the light of the new paradigm of Ms Height’s relationship with Mr H.
In my view, given Ms Height’s wish to relocate, none of the applicable section 60CC factors acts as a bar to such a relocation, in the sense that the relocation cannot be described as being positively inimical to [X] and [Y]’s best interests. In summary, I have found as follows:
·The children can maintain a meaningful level of relationship with their father, if they live in [C] and he lives in [B] because:
Ø the relationship between father and child is strong and abiding;
Ø the relationship can be maintained by regular holiday contact and other electronic communications;
Ø the distance between [C] and [B] and the pragmatic difficulties arising are not so great that the relationship between father and children can be said to be under serious threat because of the move.
·The children are more in favour of the move than opposed to it.
·The children are more closely emotionally dependant on their mother and so likely to be influenced by her personal state of happiness and fulfilment.
·The mother has demonstrated in the past her commitment to the children having a significant level of relationship with their father and there is no reason to consider that she will not maintain such an attitude in future, if she moves to [C] with [X] and [Y].
Ms Height has formed a significant relationship with Mr H, who is well settled in [C]. For natural and understandable reasons, Ms Height wishes to be with the man she loves in his home, where she believes she (and the children) will be more financially secure. These expectations, held by Ms Height, are legitimate matters for the court to consider.
Australia, which occupies a large land mass and where language and cultural orientation are largely homogenous, is a country whose citizens frequently move within it. It is a common occurrence, in contemporary Australia, for a parent to move voluntarily away, from a child or children concerned, after a relationship breakdown. In addition, children are often relocated away from one of their parents, as a result of a consensual decision made by the parents concerned. Often financial imperatives are involved.
These types of situation come about because of the high level of mobility in Australian society and the reality that many parents wish to pursue career and personal opportunities, in a different place to that in which they lived whilst in a relationship with the other of their child’s parents. High rates of divorce are also an incidence of modern Australian life.
A settled and happy parent is likely to be a parent who is functioning at the upper range of his or her capacity as a parent and obviously, this is a factor of prime importance to any child involved, particularly if that parent is the one who has had the majority of responsibility for caring for the child concerned.
In this case, Ms Height has provided far more of the nuts and bolts parenting for [X] and [Y] in the period since their birth. She has shown herself to be a fine and dedicated parent in this regard. She is neither capriciously nor maliciously motivated against Mr Rhett, merely she wishes to move on with her life in a manner which she thinks will benefit her and the children.
The recent amendments to the Family Law Act 1975 are significant ones and far reaching. However, in my view, they do not enshrine a principle that separated parents are obliged to remain indefinitely living in close proximity to one another, to ensure that their children maintain an optimal level of relationship with them both. Practical considerations may make such an outcome unworkable, particularly if it results in the effective negation of a parent’s rights, as a citizen, to live how and where he or she chooses.
In my view, it is appropriate that [X] and [Y] continue to live predominantly with their mother and she should be entitled to move to live with them in [C]. I am satisfied that this move, although it will have implications for the children’s level of relationship with their father, in a strictly quantitative sense, will not necessarily diminish the quality, strength and importance of that relationship for the children.
[X] is eleven years of age, [Y] is nearly nine. They know their father very well. The relationship between the three is secure and well developed. The children will not forget their father if they move to [C] nor will they lose their love for him. Rather they will be able to see him every three or four weeks or so and keep their relationship with him refreshed.
I appreciate that this outcome will be heart breakingly difficult for
Mr Rhett and he will find it difficult to accept. Inevitably he will think that Ms Height’s aspirations and dreams have been prioritised over his own. That his not my intention. Rather it is an inevitable corollary of the fact that this case was incapable of providing an outcome which was acceptable to both Mr Rhett and Ms Height.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding four hundred and four (404) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 19 November 2010