HOLZMANN & HOLZMANN
[2017] FCCA 1639
•14 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOLZMANN & HOLZMANN | [2017] FCCA 1639 |
| Catchwords: FAMILY LAW – Parenting – relocation – parenting capacity of the mother is compromised by her deep unhappiness in Darwin and the children will be adversely affected in the long term – relocation permitted. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D(1), 65DAB, 65DAA |
| Cases cited: Morgan & Miles (2007) 312 FLR 114 Palmer & Hammer (No.2) [2011] FamCAFC 196 Starr & Duggan [2009] FamCAFC 115 |
| Applicant: | MR HOLZMANN |
| Respondent: | MS HOLZMANN |
| File Number: | DNC 147 of 2015 |
| Judgment of: | Judge Young |
| Hearing dates: | 7 & 8 December 2016 |
| Date of Last Submission: | 19 January 2017 |
| Delivered at: | Adelaide |
| Delivered on: | 14 July 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Oakley |
| Solicitors for the Applicant: | Terrill & Associates |
| Counsel for the Respondent: | Mr Mort |
| Solicitors for the Respondent: | Darwin Family Law |
ORDERS
That the Orders of 29 February 2016 be discharged.
That the parents have equal shared parental responsibility for [X] born (omitted) 2009 and [Y] born (omitted) 2013 ("the children").
That the parties shall make a general effort to come to a joint decision about all major long term issues including:
(a)the children's education;
(b)the children's religion and cultural upbringing;
(c)the children's health; and
(d)any change to the children's living arrangements in the event that they impact upon one parent's ability to spend time with the children.
That the mother be permitted to relocate to Town A in Western Australia with the children in January 2018.
That the children live with the mother in Town A in Western Australia.
That the children spend time with the father:
(a)For 10 days in Darwin (not including travelling days) for each of the West Australia school holidays, except the Christmas school holidays.
(b)For one half of the Christmas school holidays in each year being the first half in each year ending in an even number and the second half in each year ending in an odd number.
(c)For the purpose of all travel the mother shall take the children to the Perth Airport and put them on the plane to Darwin and the father shall send the children back to Perth with the mother to collect them at the Perth Airport.
(d)That the father shall pay for all flights to Darwin and the mother shall pay for all flights from Darwin for the children.
(e)That until such time as [Y] can travel on an unaccompanied basis the mother or her agent shall travel with the children to and from Darwin at the mother's cost.
(f)Should the father travel to Perth, provided that he gives the mother no less than 7 days’ notice of his intention to travel to Perth or Town A, in Perth or Town A for no more than 7 days. The mother is to take the children to Perth from Town A and to collect them from Perth at the end of the time if the father elects to stay in Perth.
The children shall be at liberty to speak with either parent on the telephone or by Skype at all reasonable times and each parent shall facilitate the children speaking to the other parent at all reasonable times having regard to the children's ages but not less than 3 times each week.
The parties will keep each other promptly informed about any emergency, illness or medical concern in relation to the children in a timely manner and, if there are any matters of an urgent nature, the parent who has the care of the children will notify the other parent immediately.
That the parents will both be entitled to attend any of the children's school or extra-curricular activities to which parents are ordinarily invited to attend.
That each parent shall be entitled to obtain copies of the children's school and health care records and to discuss matters with the children's medical practitioners and specialists and each parent shall sign any necessary authorities to ensure this information can be freely disclosed to each parent.
That each parent shall keep the other informed of their residential address, postal address (if different), landline telephone number, mobile telephone number and email address at all times and shall notify the other of any changes to their contact details within 3 days of any change.
That neither parent shall drink alcohol to excess when the children are in their care.
Each of the parents shall be restrained from making critical or derogatory remarks about the other parent or members of the others family in the presence of or within hearing of the children.
Each of the parents shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other or members of the others family in the presence or hearing of the children.
IT IS NOTED that publication of this judgment under the pseudonym Holzmann & Holzmann is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
DNC 147 of 2015
| MR HOLZMANN |
Applicant
And
| MS HOLZMANN |
Respondent
REASONS FOR JUDGMENT
This is a parenting case concerning two children, [X], aged seven, and [Y], aged four. They live with their mother and spend five nights a fortnight with their father. The mother wishes to relocate with the children to Town A in Western Australia and have the father spend time with the children four times a year during school holidays. The father opposes relocation by the mother and seeks a continuation of the existing arrangements.
Background
The parties met in Town A in 2005. They began living together and moved to Darwin in 2006 where the father commenced a (omitted) business. The parties married in 2008. The mother worked as a (occupation omitted) until the birth of the parties’ first child, [X]. She was born in (omitted) 2009 and [Y] was born in (omitted) 2013. The parties separated in July or August 2013. Informal arrangements were made for the children to spend time with the father. Initially [X] spent four nights a fortnight with the father and [Y] spent time with the father when the mother needed a break. By 2014 the children were spending four or five nights a fortnight with father.
In April 2015 the father commenced a relationship with Ms U and began to live with her and her three children who are now about 14, 10 and eight years old.
In mid-2015 the mother began to consult a psychiatrist, Dr H. According to Dr H she had been on antidepressants for some years and wished to better manage her depression. She consulted Dr H by “telehealth” between Darwin and Sydney on eight occasions until September 2016. Dr H said the mother identified feelings of lack of support and demoralisation about the future and a sense of isolation and loneliness in Darwin. She wanted to return to live in Town A.
On 4 December 2015 the parties entered into consent orders to resolve property matters. The recitals to the orders said that the net value of the assets of the parties was $1.6 million and the wife was to receive approximately 62.5% of the net value of the assets ($1 million). The principal asset transferred to the wife was the former matrimonial home. No parenting orders were made.
In early February 2016 the mother’s solicitor wrote to the father’s solicitor asking the father to agree to the mother’s relocation with the children to Town A. The letter said that the mother was deeply unhappy in Darwin and was concerned that her unhappiness would “impact negatively” on the children. The letter also asserted that the mother had been diagnosed with “(omitted)” and needed treatment under the supervision of a Dr E, said to be a “leading Australian specialist” who lived in Perth. The letter said there was no (omitted) specialist resident in Darwin. It was said that the treatment, during which the patient needed close emotional and social support, necessitated the mother’s relocation to Town A. The letter suggested retaining Mr L to prepare a private family report on the relocation proposal.
A couple of days later the mother booked a flight for 15 February 2016 to Perth with the children. A return flight was booked for 13 March 2016. The mother did not tell the father about the proposed journey and he learnt from her a couple of hours before her departure when she sent him an e-mail and a copy of the ticket. The mother said by way of explanation “I had to get away for a bit. There really isn’t anything in Darwin for me. I’m so bored and lonely, it just seems ridiculous to sit around by myself there”. [X] was removed from school and the mother made arrangements for the school to send her materials.
The father responded on 18 February 2016 by commencing parenting proceedings seeking a recovery order and orders that the children live with him and spend time with the mother. The mother filed responding material acknowledging that she had acted badly and agreeing to return to Darwin. She sought orders that the children live with her and that she be permitted to relocate to Town A. On 29 February 2016 interim consent orders were made that the parents would have shared parental responsibility and the children would live with the mother. The children were to spend five nights a fortnight with the father. These orders remain in place although the parties have departed from the orders by agreement to provide for consecutive days in the fortnight. The mother said the father had requested that the arrangements be varied to provide for the children to spend four nights a fortnight with him at one point but the arrangement had returned to five nights a fortnight about a month before the trial.
In March 2016 the mother sold the former matrimonial home and purchased a house in Town A. She and the children moved into rental accommodation in Darwin.
On 1 April 2016 the family report was released. The family consultant recommended that the mother not be permitted to relocate with the children. That evening the mother sent the father an e-mail which attached various media articles about cases of mothers murdering their children and committing suicide. The children were with the father at the time. The father saw the emails the next morning and responded by telephoning the mother and asking how she was. The mother responded with a number of text messages including:
I don’t want to see you a couple of times a week. I don’t want to see you ever. You have ruined my life. And I hold you responsible for my recent unhappiness because you are controlling my life and where I choose to live. I want to get out of here. I want to leave. You won’t let me. So that is the consequence.
The father responded by withholding the children and asking the mother to provide a medical report about her mental health. He said he would return the children if she was well. On 11 April 2016 the mother’s solicitor provided a short report from Dr H, the mother’s treating psychiatrist. Dr H said that the mother’s depressive disorder remained in remission and she continued to take sertraline (Zoloft) 150 mg daily. He said that the mother had commenced counselling “recently” and found it emotionally useful. She was unhappy in Darwin and wished to relocate back to Town A. The report said that the mother had reacted to the family report and had commenced drinking and became intoxicated. She then sent the media articles to the father. Dr H said that he had done a risk assessment and did not regard the mother as being at risk of suicidal behaviour. He said that he did not have the impression that she had been entertaining thoughts of harming her own children. He said that “Ms Holzmann does regard her pattern of being emotionally hurtful to other people while intoxicated as being a problem and has resolved to avoid further alcohol use”. The father agreed to the children returning to live with their mother.
In June 2016 the mother reduced her dosage of antidepressant medication.
Issues at trial
At trial the father’s position was that if the mother remained living in Darwin the children should live with the mother under existing arrangements and moving towards an equal time arrangement in 2018. He said that if she chose to live in Town A the children should live with him in Darwin.
The mother’s position was that she should be permitted to relocate with the children to Town A and the children spend holiday time with the father in Darwin four times a year.
The father said that if the children were to relocate to Town A they would lose the benefit of a meaningful relationship with him. He was concerned that [Y] especially, who was only three years old at the time of trial, would not be able to maintain an adequate bond with him, even with regular electronic communication. He expressed concern about the mother’s history of depression and the mother’s drinking and said that he would not be able to play a protective role if the children lived in Town A. He said that he did not believe that the mother’s family in Town A would inform him if something was wrong. The father said that his sister lived in Darwin and the children regularly spent time with their cousins who are aged 16, eight, six, five years and one year old. He said his father lives for six months a year in Darwin and the children have a good relationship with him. He also said the children have a good relationship with his present partner’s children who are aged 14, 10 and eight years. He said he was supportive of the mother and would continue to be so. The mother told the family consultant that the father was supportive of her. Although the mother’s counsel attempted to suggest this was not the case in cross-examination of the father I am satisfied that the father has been supportive of the mother both in her parenting and personally, subject to the obvious qualification that he has a new partner and altered family responsibilities.
The father said that although he had worked long hours in the past he had rearranged his priorities and was available on the weekends to be with the children. He was challenged in cross-examination about that claim on the basis of earlier affidavit material where he said he worked up to 70 hours a week at times. The father said he no longer worked such long hours. He said that when the children were at day care or school during the week he or his partner Ms U collected them from school and they would spend some time in the office with him before going home. He said that he had set up a television, games and somewhere for the children to rest in his office after school before returning home. I accept the father’s evidence that he is available for the children to spend time with him on the weekends.
The father said that it was not reasonably practicable for him to relocate to Town A. He said his (omitted) business was very successful. He said he employed 7 to 10 staff. He said there was no comparable prospect of employment in Town A. His evidence about that was not challenged.
The father conceded in cross-examination that the mother is unhappy in Darwin. He also told the family report writer that he was concerned that the mother’s distress was affecting the children. He was aware that on occasions the mother had been tearful in front of the children and [X] has expressed concern about her mother.
The father’s partner, Ms U, said she has a good relationship with the children and the children have a good relationship with her children. She said that [X], in particular, has a very close relationship with her daughter [A], who is approximately the same age. She said the children are happy in the melded family and would miss her children if they relocated to Town A. Ms U was not cross-examined. Although Ms U said nothing in her trial affidavit about her relationship with the mother the family report indicated that she and the mother appear to have a civil and mature relationship directed towards cooperative arrangements for the benefit of the children.
The mother described the children as “emotionally stable … happy, content children. The children have quality and meaningful relationships with both [parents]”.
The mother said in her trial affidavit that a “summary of the reasons why I seek to relocate are (sic) as follows:
a. I am deeply unhappy and isolated in Darwin, and I’m concerned that my unhappiness may impact negatively on the children in time.
b. I have very few friends in Darwin, no family support, but I have a huge family and large friendships networks in Town A.
c. Darwin is extremely expensive to live in, and my employment prospects in Darwin are not good, they are better in Town A.
d. I find the weather in Darwin much of the extremely oppressive (sic), and I find difficult to find things to do with the children outside because of the heat. I grew up in Town A and I know that quality of life there is better in my opinion.
e. I have been diagnosed with (omitted) and as detailed below would be best if my treatment for that was supervised from Perth.
The mother expanded on these points, with the exception of her feelings about the weather, in her affidavit. In relation to her feelings of unhappiness and isolation she said that after separation she lost many of her friends, who had been the father’s friends too, and the father’s relations, with whom she and the father had frequently socialised, did not keep up the connection. She was reliant for support on her mother who often travelled from Town A to Darwin. She said she commenced taking antidepressants after the birth of her first child and continued to take antidepressants. She reduced the level of her medication in June 2016. She said she attended two sessions of counselling but “did not find that helpful”. This would appear to be the counselling referred to in Dr Hs report as “emotionally useful” according to the mother. The mother said that despite efforts to be more active and social she had made few new friends.
The mother described her family in Town A as including her mother and her mother’s partner of 20 years. She said she has seven aunts and uncles living in Town A and 13 cousins. She described herself as being very close to one of her cousins, Ms D. She described herself as being very close to one of her aunts. She said her biological father lives not far from Town A and her sister and her sister’s husband and their children live in Perth. She says she still has many friends from her school years living in Town A.
She said that her employment prospects are better in Town A. She referred to the possibility of working in a (omitted) store owned by her cousin, Ms D. She mentioned the possibility of studying for a Certificate III in bookkeeping. She said she believed she could obtain work as a (omitted) in Town A. The mother did not attempt to address her employment prospects in Darwin. It might be thought that Darwin, being much larger than Town A and with a low unemployment rate, would have employment prospects at least as good as Town A.
The mother also asserted that the cost of living was cheaper in Town A. She asserted that the cost of housing was much less than in Darwin. The mother also said that after buying the house in Town A she had about $400,000 left in the bank and a further $60,000 was due to be paid to her by the father as part of their property settlement. The mother said she was in a good financial position. In these circumstances it is difficult to see that the question of the cost of living has much relevance.
The mother also claimed to have been diagnosed with “(omitted)” and to require treatment by her “specialist” Dr E who is “located in Perth”. Dr E provided an affidavit in which he described himself as a “leading Australian medical practitioner with a special interest in (omitted)”. Reference to his curriculum vitae indicated that he is a Fellow of the Royal Australian College of General Practitioners but not a member of any other specialist medical college. In her affidavit the mother said that she had started treatment (which appears to principally consist of antibiotic treatment) for “(omitted)” with the assistance of an appropriately experienced nurse in Town A but had stopped this treatment because there was “not a nurse or medical practitioner qualified to assist me in Darwin” and she found the treatment so debilitating she could not continue it without the support of her mother. In cross-examination it was revealed that Dr E visited Darwin regularly as part of his practice and the mother had consulted him three times in Darwin. It was also revealed that the nurse who had assisted her in Town A no longer lived in Town A. A formal concession was ultimately made by counsel for the mother that the medical treatment of the mother’s “(omitted)” did not require the mother’s relocation. The resolution of this issue did not reflect well on the credibility of the mother. Her affidavit was misleading on this point.
Another issue relating to “(omitted)” was alluded to in the family report. The author of the family report, a clinical psychologist, noted that the condition is the subject of dispute in the field of medicine in Australia. He pointed out that the matter is the subject of an inquiry by the Senate Community Affairs References Committee. It appears that the concept of chronic “(omitted)” is not accepted by most conventional medical practitioners. It is not necessary to pursue the topic further.
The mother relied on an affidavit from Dr H. As mentioned, Dr H said the mother had consulted him by “telehealth” on eight occasions between mid-2015 and September 2016. He said that the mother had identified as a key issue that her friendship circle had dramatically declined since the separation from the father and that she remained very close to family and friends in Town A. She said she was isolated and often lonely with very few people, if any, to turn to for support in Darwin. She felt trapped in Darwin. Dr H said that over the period the mother had consulted him:
…her mood had improved and she became free from depression … [as] a result of her decreased alcohol consumption, ongoing use of the antidepressant sertraline, an emerging confidence in healthy self-assertion, realistic rational evaluation of her life circumstances and the support of family members.
He said she had also made an effort to make new friends and increased involvement with neighbours through barbecues and the like. He said the mother, however, continues to feel deeply unhappy about living in Darwin.
Dr H said that he is:
… optimistic that the [mother] will in time fully overcome her depressive disorder. This positive prognosis would be, in my view, even more positive if [the mother] felt that she had good prospect of moving to Town A with the children sometime in the not too distant future. The [mother] regularly returns to Town A. This improves her emotional well-being. It has helped deliver an improved sense of social connection and being supported by family members…. I believe that [the mother’s] happiness will improve if the court permits her to relocate the children to Town A.
Dr H said that he did not believe the mother needs “additional outside counselling”.
After the mother confirmed that she did not rely on some relatively minor aspects of Dr H’s affidavit he was not required for cross-examination by the father.
A family report was prepared by Mr L, a clinical psychologist, on 31 March 2016. Mr L noted that the father described the mother as a “good mother”. The father acknowledged that the mother was “somewhat isolated and disconnected from others” but doubted whether the mother moving to Town A would have a beneficial impact for her. He said the father:
… expressed concern about the mother’s mental health and its impact upon the children. He described [X] as becoming increasingly aware of the mother’s unhappiness and her lack of friends in Darwin, stating that she contrasted her experience spending time with him and a high level of social activity with that of being in the mother’s home where there were very few visitors and social activity was very limited. He expressed concern about the impact of this upon [X] who had witnessed her mother’s sadness and tears at times. He said he had spoken to the mother about the impact of the depressed mood upon [X] and said that he was fearful that the mother’s mental health was causing [X] to be anxious and worried.
Mr L recorded that the father questioned the level of support that the mother might experience from her family living in Town A although he acknowledged that the maternal grandmother was able to “sort out” the mother when she was depressed and struggling.
Mr L noted his observation that the mother was still struggling with the breakdown of her marriage. He said the father’s commencement of a relationship with Ms U soon after the separation had added to the mother’s deep distress. He said the mother felt “replaced” and she struggled with the constant reminder of this when she had to deal with the father and Ms U.
Mr L observed the children. [Y] was not interviewed due to her young age but [X] was able to enter into a conversation with Mr L. Using cards designed for that purpose [X] identified the common emotional states displayed by her parents. She described her father as “happy” and “angry” at times and described her mother as “happy” and “angry” and “sad” at times. [X] referred to her mother as tearful and sad at times:
as no one came to visit her and she was on her own. This was contrasted with her father’s situation noting the presence of Ms U and the children and many visitors to the family home.
Mr L noted the children are described by both parents as doing well in the current situation and are viewed as happy to be moving regularly between the parents’ households. He went on to say:
Apart from [X]’s awareness of her mother’s unhappiness, both girls are viewed as well-adjusted, happy and healthy young children. They both appear to enjoy a secure attachment to each of the parents and are dearly loved by both.
In his evaluation Mr L said the father’s position was that the children required the presence of both parents in their life and should not be denied the ongoing positive relationship they currently enjoy with him. The mother’s position was that the children need two “functional” parents and that she cannot be effective in her parenting role while she is unhappy and isolated from family and friends living in Darwin.
The mother said that she would not relocate to Town A without the children and, if the court denied the mother’s application to relocate, Mr L identified the extent to which that outcome would diminish the mother’s parenting capacity as a key issue for the court to consider. Mr L addressed this issue in detail. He said that although the mother is clearly unhappy and alone and suffers from depressed mood at times it appears that her depression is well controlled by prescribed medication. He said she does not suffer from anxiety and generally her day-to-day functioning is not significantly diminished by the state of her mental health. He said that until mid-2015 she had not actively sought any assistance for her mental health and had only recently participated in Skype sessions with a psychiatrist with a view to reducing her antidepressant medication. He said that the mother is a bright, outgoing and engaging woman who has the potential to form new friendships if she should seek to do so. However, she gave the impression of resisting engagement with others on the basis that she will hopefully be leaving Darwin in the near future. He thought the mother was still dealing with issues of grief and loss and would benefit from counselling in relation to these issues and post-separation adjustment.
Mr L also observed that the father is not “encumbered by any issues arising from the breakdown of the marriage” and appears to have moved on and rebuilt a life for himself and the children but he remains concerned and frustrated by the mother’s unhappiness and her desire to distance the children from him.
Mr L noted that the issue of [Y]’s young age and the impact of relocation on her is a matter that has been raised by both parents as a troubling issue. He said “At barely 3 years of age [Y]’s relationship with her father and his family are still in its formative stages”. He said that:
… the process of bonding and attachment at this stage of her life is still ongoing. In my opinion her experience of her father’s care has been highly positive, but possibly not sufficient to sustain an enduring positive attachment to her father should she be living distant from him and limited to school holiday time with her father. The maintenance of a meaningful, positive relationship with the father is at risk if she is distanced from her father by relocation to Town A. I am inclined to believe that at this early stage the life she stands to benefit more from the active presence of both parents in her life, notwithstanding the mother’s unhappiness at being required to remain living in Darwin for this purpose.
Mr L considered that the effect of relocation by the mother with the children is speculative. He said he had no doubt that the mother would feel “more comfortable and less burdened by negative emotions and separation issues if she were to be living among family and friends in Town A”. The children would have greater engagement with the maternal grandmother and other nearby family and “view their mother as happier and more settled than is the case at present. Beyond this though there is little that can be reliably said about the benefits of the children living in Town A”. As opposed to the speculative effects of relocation Mr L said that it is known that the children:
… are doing very well in the current parenting arrangement, even though [X] harbours some anxiety in relation to her mother’s unhappiness and the fact that her mother is alone. The children have positive loving relationships with each of their parents, and a stable network of family and friends are important to them. They also have regular contact with their maternal grandmother who has been an active and positive presence in their life.
He also observed that the benefit to the children of having both parents in their day-to-day life is also well established within the professional literature.
Mr L was cross-examined by counsel for the mother about issues of attachment. It was put to him that the age for consolidation of attachment is from nine months to 30 months. Mr L said this refers to the “critical phase” of attachment but said that attachment is ongoing with young children. He said attachment in children depends upon their awareness of their environment, the carers around them and who is best able to care for them. He said they have a secure attachment to their father but they are still young and implied that the process is still continuing. He said they have many friends and relatives around them in Darwin and will miss them. He was asked, given the young ages of the children, at what age they could relocate. He said “I can’t really say”. It was put to him that relocation, if it were to occur, would be best for [Y] before she began school and formed a routine. Mr L said that it was “hard to say” because as well as school the child may experience loss and grief leaving friends and family in Darwin.
Mr L said that the mother’s mental health and her capacity to cope should her application to relocate be denied was also an important issue for the court to consider. He expressed the view that the mother does not have a mental health problem per se but is still recovering from the natural grief and loss arising from the end of her marriage. He observed that she has had little treatment in relation to any underlying health issue. He said she is largely free of symptoms of depression although she suffers from low mood. He said that, in his opinion, the mother has the capacity to cope with an adverse outcome from the current proceedings although it would be deeply painful and distressing for her. He said an important factor in her coping with such an outcome would be attendance at counselling for the purpose of dealing with issues arising from marital breakdown, particularly the unresolved sense of grief and loss that she currently harbours. In response to a proposition put to him in cross-examination, based on Dr H’s evidence, that further counselling was not needed Mr L disagreed. He said that the mother would benefit from face-to-face counselling, as opposed to counselling by Skype, and that different skills were involved in face-to-face counselling.
Mr L concluded that the children remaining living in Darwin with the mother is more likely to promote their long-term best interests than an order permitting relocation with the mother to Town A. He said he based this view on the following observations:
a) at this time in their life the children are likely to benefit from the active involvement of both parents in their life.
b) The relationship between the parents is positive and, despite some underlying tensions, they are able to communicate and cooperate effectively in relation to the children.
c) Both parents acknowledge the children are progressing well under the current arrangement.
d) The children have an established network of family and friends living in Darwin and would be deeply distressed if these relationships were diminished by time and distance.
e) The mother’s satisfaction in life could be enhanced through the participation in counselling and through greater social and community engagement.
f) The mother has the personal qualities to be able to adjust to a decision that requires her to remain living in Darwin in the foreseeable future although this decision would be deeply upsetting for her.
g) The mother’s diagnosis of (omitted) does not seem to be a compelling reason for relocation of the children to Western Australia.
The points at a), b), c) and d) were not in real dispute in the trial and I accept Mr L’s observations on these matters. Point g) was conceded by the mother.
Many of the difficulties in this case centre around points e) and f). It was common ground that the mother is in remission from her depressive illness and it is well controlled by medication. In cross-examination the mother conceded that she needed counselling but that she had found earlier counselling disappointing. She said she had become aware of Mr L’s recommendation for counselling with a psychologist and agreed she would benefit from such counselling. She agreed she would do this for the sake of her children.
Notwithstanding this acknowledgement by the mother of the potential benefits to her directly, and indirectly to the children, of psychological counselling I have real reservations about its likely effectiveness in changing the mother’s point of view. The mother is deeply entrenched in her view that she cannot find happiness in Darwin. It is suggestive of an article of faith. The mother was asked in re-examination about her oral evidence that there was “a lot was to be gained” for the children by a move to Town A. She replied that “Town A has a wonderful lifestyle, we go to the beach every day. I want them to have what I had, a village of people around them”. I asked the mother why those matters produced an advantage over the present situation of the children in Darwin and why that was relevant given that the children would see the father, and other people to whom they were close, less. The mother replied “Because it impacts on my happiness”. I considered that the mother’s answers, focusing on relatively superficial matters such as lifestyle and visits to the beach, indicated that the mother’s own sense of unhappiness, at times, overwhelms her capacity to focus on the children and her ability to identify what is really relevant to their welfare.
There is other evidence to support this view. The mother’s decision to sell her home in Darwin and purchase a house in Town A was impulsive given that it was far from certain that she would be allowed to relocate with the children. Her decision in February 2016 to take [X] out of school and move to Town A at short notice was similarly impulsive. Although the mother purchased return tickets at that time I suspect her intentions, to the extent that she had carefully considered them, were more fluid.
Dr H gave evidence that the mother’s mood had improved and she had become free from depression as a result of decreased alcohol consumption and ongoing use of the antidepressant sertraline as well as an emerging confidence, healthy self-assertion, realistic rational evaluation of life circumstances and the support of family members. Nevertheless, there was evidence of the mother experiencing periods of tearfulness in front of [X] and [X] being anxious about her mother. Mr L said that [X]’s awareness of her mother’s unhappiness, should it continue, would only become more developed as she grew older. The genuineness of the mother’s unhappiness in Darwin was not in dispute but it was asserted, by Mr L, that it could be successfully addressed, and diminished, by counselling and greater social involvement. The father, in substance, asserted that the mother’s unhappiness was outweighed by the benefit to the children of remaining in close proximity to him and others.
I am not satisfied that the mother’s serious unhappiness in Darwin, which I accept is largely the result of a sense of grief and loss following the breakdown of her marriage, can be successfully addressed by counselling or greater social involvement. Although it is necessarily a speculative assessment I find on the balance of probabilities that the mother is likely to remain seriously unhappy should she continue to reside in Darwin.
The father’s assertion that the mother’s unhappiness is outweighed by the benefit to the children of remaining close to him as well as the mother rests on an assumption that the mother’s unhappiness will not significantly undermine her capacity as a parent, including her ability to protect the children from the consequences of witnessing her unhappiness. Again this is a speculative assessment but I find on the balance of probabilities that as the children become older they are likely to be adversely affected by witnessing their mother’s unhappiness. There is already evidence that [X] is anxious because of her mother’s unhappiness.
The question of the children’s, particularly [Y]’s, developing attachment to the father and how that will be affected by relocation to Town A is another important consideration. I accept the evidence of Mr L that attachment is ongoing with young children and the process of [Y]’s bonding and attachment to her father is a critical issue. Unfortunately Mr L was not able to say at what age an enduring positive attachment is least likely to be threatened by a move away. There was no other evidence on the issue. At the time of the family report [Y] had just turned three years old. She is now four years and three months. If the mother is permitted to relocate for the beginning of the 2018 school year [Y] will be almost five years old.
The legislative pathway
In a relocation case the court is bound to follow the same legislative pathway as in other parenting cases. Relocation is not to be treated as a discrete issue in the making of parenting orders[1]. The core principle to be applied is the “paramountcy principle”. The court must have regard to the best interests of the child as the paramount, but not sole, consideration: Starr & Duggan[2]. The competing proposals are to be separately evaluated: Sayer & Radcliffe[3].
[1] Morgan & Miles (2007) 312 FLR 114, [72], [73]; Palmer & Hammer (No.2) [2011] FamCAFC 196, [28].
[2] [2009] FamCAFC 115.
[3] (2012) 48 Fam LR 298, [80].
The objects of Part VII of the Family Law Act 1975 (the Act) are set out in section 60B(1). Subsection (1)(a) provides that it is an object of the Act to ensure that the best interests of children are met by:
ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;…
Section 60B(2) provides that the principles underlying the objects of the Act (except when it is or would be contrary to the child’s best interests) include:
a) children have the right to know and be cared for by both of their parents …; and
b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development …; and
c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children …
Section 60CA requires that a court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations to be taken into account in determining what is in the child’s best interests are listed in section 60CC. Section 61DA requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or family violence.
Section 65D(1) provides that the court may make such a parenting order as it thinks proper, subject to the provisions of sections 61DA and 65DAB (concerning parenting plans).
Section 65 DAA(1), which is headed “Equal time”, provides:
… if a parenting order provides (or is to provide) the child’s parents are to have equal shared parental responsibility for the child, the court must:
a)consider whether the child spending equal time with each of the parents would be in the best interest of the child; and
b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
c)if it is, consider making an order to provide (including a provision in the order) the child spend equal time with each of the parents.
Section 65 DAA(2), which is headed “Substantial and significant time”, provides:
… if
a)a parenting order provides (or is to provide) the child’s parents are to have equal shared parental responsibility for the child, and
b)the court does not make an order (included provision in the order) for the child spend equal time with each of the parents;
the court must:
c)consider whether the child spending substantial and significant time with each of the parents would be in the best interest of the child; and
d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
e)if it is, consider making an order to provide (including a provision in the order) the child spend substantial and significant time with each of the parents.
Section 65DAA(5) provides that in determining what is reasonably practical for the purposes of subsections (1) and (2) the court must have regard to:
a) how far apart the parents live from each other; and
b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial significant time, with each of the parents; and
c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind: and
d) the impact that an arrangement of that kind would have on the child: and
e) such other matters as the court considers relevant.
Consideration
The competing proposals were, for the father, that the mother and the children remain living in Darwin and, for the mother, that she and the children be permitted to relocate to Town A. The father sought, as an alternative in the event that the mother relocated, that the children live with him. However, he did not seriously argue in the conduct of his case that the primary care of the children should be transferred to him and did not challenge that the mother was a satisfactory primary carer.
Section 60CC(1) provides that in determining what is in the child’s best interests the court must consider the matters in subsections (2) and (3). Subsection (2) provides that the primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection (2A) provides that in applying the considerations in subsection (2) the court is to give greater weight to the considerations set out in paragraph (2)(b). In this case there is no risk to the children from abuse, neglect or family violence.
The father submitted that the primary consideration of benefit to the children of having a meaningful relationship with both of the childrens’ parents could only be satisfied by orders requiring the children, and by necessary implication, the mother to remain living in Darwin. His reasons were substantially the same as those offered by Mr L in support of his recommendation in the family report. The mother was critical of the approach adopted by Mr L in the family report and submitted that Mr L’s approach was not consistent with the law. It was submitted that Mr L impliedly interpreted or assumed an interpretation of the word “meaningful”, where it appears in sections 60B(1)(a) and 60CC(2)(a), in a way that is inconsistent with the decisions of the Full Court of the Family Court in cases such as Sigley & Evor [4] and McCall & Clark [5]. In Sigley & Evor the Court noted that the Act does not define the word or the phrases in which it appears. The Court approved of the meanings adopted by Brown J in Mazorski v Albright[6] of “significant”, “important” or “of consequence”. The Court also approved of observations made by Kay J in Godfrey & Sanders[7]:
… the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case…
Even if the move results in diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
[4] (2011) 44 Fam LR 439, [131] – [136].
[5] (2009) 41 Fam LR 483; [2009] FamCAFC 92.
[6] (2007) 37 Fam LR 518.
[7] (2007) 208 FLR 287, [33], [36].
The Court referred to observations of the Full Court in Champness & Hanson[8]:
The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure that the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. (See Bennett J’s analysis in G & C [2006] Face 994.) (emphasis in original).
[8] [2009] FLC 93-407, [103].
The Full Court also observed[9]:
The first and very important observation we would make about this complaint is that the expression “meaningful relationship” is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.
[9] [2009] FLC 93-407, [83], [513].
The submissions of the father may have suggested at times an assumption that it was obligatory for the court to make the orders most likely to ensure that the children have a “meaningful relationship” with both parents by ensuring that the children remain living in Darwin. I do not accept that Mr L made such an assumption. Mr L was of the opinion that it was in the best interests of the children to remain living in Darwin. He was most strongly influenced in reaching this opinion by his concern, in particular, that [Y]’s attachment to the father was not sufficiently well founded to withstand her relocation to Western Australia. He considered that the mother did not have a mental illness but was suffering grief and loss for the breakup of the marriage that could be properly addressed by counselling and other measures. He believed the mother had the resilience and capacity to adapt to remaining in Darwin. In my view Mr L correctly identified these as critical issues.
In determining what is in the children’s best interests in this case it is necessary for the court to consider as a primary consideration the benefit to the children of having a meaningful relationship with both of their parents. As the case law referred to above demonstrates this does not mean that it is obligatory to make orders that make for the “optimal” or best possible relationship between the children and each of the parents. In this case I have no doubt that it is in the children’s best interests that they have a meaningful relationship with their father as much as their mother. In the circumstances of this case where there is a danger that [Y]’s attachment to the father may not endure relocation to Western Australia the primary consideration of a meaningful relationship with both of the children’s parents in determining the children’s best interests might mean that the mother should not be permitted to relocate with the children or should be permitted to relocate only at a later time. On the other hand, if there is a danger that the parenting capacity of the mother as primary carer, particularly her ability to protect the children from anxiety and concern about her sadness and loneliness, is compromised that may not be in the best interests of the children.
In determining what is in the best interests of the children the court must, in addition, consider the matters set out in subsection 60CC(3). These are:
(a) any views expressed by the children…
The children have not expressed any views.
(b) the nature of the relationship of the child with:
(I) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
The children have a close and loving relationship with each parent. They live in the primary care of the mother but spend five nights a fortnight with the father. The children have important relationships with the paternal grandfather and the maternal grandmother who each visit Darwin regularly. It does not appear to be challenged that the children have affectionate relationships with their cousins in Darwin and Ms U’ children with whom they share a household for a significant part of each fortnight. If the children relocate to Town A their relationship with their father will change. In the case of [Y], in particular, there is a risk to the endurance of her attachment to her father.
(c) the extent to which each of the child’s parents have taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
The parents have each taken the opportunity to participate in decision-making about the children, spend time with the children and communicate with the children.
(ca) the extent to which each of the child’s parents have fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
Each parent has fulfilled their obligation to maintain the children.
(d) the likely effect of any changes in the child circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative the child), with whom he or she is been living;
Having regard to the young age of the children, in particular, I am satisfied that a separation from either of the children’s parents is likely to have a deleterious effect on the children’s relationship with that parent. In particular, I am satisfied that there is some risk to [Y]’s attachment to her father by relocation to Western Australia with her mother and sister. Although other factors must be considered I am satisfied that the relocation of the children to Western Australia is not likely to produce the “optimal” or best relationship between the children and their father over time.
(e) the practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
If the children were to relocate to Town A the children would be able to spend time with the father only during school holidays. At other times communication could only be by electronic means. I am satisfied that if that were to happen it would substantially affect the children’s right to maintain personal relations and direct contact on a regular basis with their father. The mother’s proposal is that the children spend holiday time with the father on four occasions each year. The likely cost of this will be somewhere in the region of $6000-$10,000 a year. The parties can afford this. After [Y] turns five years old the children are apparently able to travel unaccompanied between Perth and Darwin.
(f) the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative the child;
to provide the needs of the child, including emotional and intellectual needs;
In broad terms each of the children’s parents have the capacity to provide for the needs of the children, including their emotional and intellectual needs. Both parents are competent and are usually able to effectively cooperate with each other to advance the children’s best interests. However, there is real doubt about the mother’s capacity to deal with her deep sense of unhappiness and isolation living in Darwin. As noted above, the parents and Mr L have expressed concern about the mother’s tearfulness in front of [X] and [X]’s anxiety about and growing awareness of her mother’s unhappiness. If the mother remains in Darwin and her deep unhappiness continues then the children are likely to be adversely affected although it is not possible to say in precisely what way.
(g) the maturity, sex, lifestyle and background … of the child and of either of the child’s parents…
This is not relevant.
(h) if the child is and Aboriginal child or a Torres Strait Islander child…
This is not relevant.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Both parents are devoted and loving towards the children. The impulsivity and focus on her own interests sometimes demonstrated by the mother appears to reflect her unhappiness living in Darwin.
(j) any family violence involving the child or a member of the child’s family;
This is not relevant.
(k) if a family violence order applies…
This is not relevant.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
This is not relevant.
(m) any other fact or circumstances that the court thinks is relevant.
There are no other relevant factual circumstances.
Both parties proposed that there be equal shared parental responsibility and I am satisfied that it is in the best interests of the children for the parents to have equal shared parental responsibility.
Consequently it is necessary to consider the provisions of section 65DAA.
Neither party suggested that there ought to be an immediate order for equal time although the father proposes that there be an order for equal time in the future.
Because I do not propose to make an order for equal time it is necessary to consider the provisions of section 65DAA(2). The correct approach is to consider whether spending substantial and significant time with each of the parents would be in the best interests of the children and, if so satisfied, to then consider whether the children spending substantial and significant time with each of the parents is reasonably practicable: MRR v GR[10].
[10] (2010) 240 CLR 461.
Subject to the matters to be discussed below, I am satisfied that it would be desirable for the children to spend substantial and significant time with the father. That would constitute a continuation of existing arrangements.
Since such parenting will be possible only if the mother remains in Darwin it is necessary that I consider the circumstances of the parties, particularly those of the mother, to determine if the arrangement is reasonably practicable[11]. In determining whether it is reasonably practicable the court must have regard to the factors set out in subsection 65DAA(6) including how far apart the parents live from each other, their current and future capacity to implement the arrangements, their current and future capacity to communicate with each other to resolve difficulties, the impact of the arrangement on the children and other relevant matters.
[11] Ibid, [15].
An arrangement for substantial and significant time is possible only if the parties continue to live in Darwin. The question of the parents’ current and future capacity to implement the arrangement depends critically on the whether the mother’s present unhappiness is likely to continue in the long term and whether it is likely to adversely affect the children in a way that leads to a conclusion that it is not in their best interests that she remain living in Darwin.
For the reasons I have given above I have found that the mother is likely to remain seriously unhappy should she continue to reside in Darwin. I am not satisfied that her serious unhappiness will be adequately ameliorated by counselling or other means. I have found that as the children become older they are likely to be adversely affected by witnessing their mother’s unhappiness. I find that the need to safeguard the mother’s parenting capacity as primary carer outweighs the desirability of the children remaining in Darwin close to the father. Accordingly, I find that continuation of the existing arrangements is not reasonably practicable. I find that it is in the best interests of the children that the mother be permitted to relocate to Town A with the children. I find that the risks to [Y]’s enduring attachment to her father can be ameliorated, although not removed, by not permitting the mother’s relocation to Town A until January 2018.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Young
Date: 14 July 2017
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Family Law
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Statutory Interpretation
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