Howard & Howard
[2016] FamCA 455
•8 June 2016
FAMILY COURT OF AUSTRALIA
| HOWARD & HOWARD | [2016] FamCA 455 |
| FAMILY LAW – CHILDREN – RELOCATION – Parenting Orders – Where the mother wishes to relocate to the UK – Where there is no unacceptable risk of harm – Where neither party assets that family violence should mean the presumption of equal shared parental responsibility is displaced – Where the mothers parenting capacity would not be adversely affected if she were not permitted to relocate – Where fathers relationship with the children would be dramatically diminished – Where father wants equal shared parental responsibility – Where mother accepts father would not relocate – Where the children’s views are given little weight due to their cognitive capacity – Where neither the mother nor father have the capacity to fund regular travel between the two countries – Where difficult circumstances would arise if relation was permitted given the time difference and using Skype – where there is no order for relocation – where there is an order for equal shared parental responsibility |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC |
| Banks & Banks [2015] FamCAFC 36 Malcolm v Munro (2011) FLC 93-460 Mauldera & Orbel (2014) FLC 93-602 Morgan & Miles (2007) FLC 93-343 S v Australian Crime Commission (2005) 144 FCR 431 Wacando v The Commonwealth (1981) 148 CLR 1 |
| APPLICANT: | Mr Howard |
| RESPONDENT: | Ms Howard |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Wright |
| FILE NUMBER: | CSC | 494 | of | 2015 |
| DATE DELIVERED: | 8 June 2016 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 20 and 21 April 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Betts |
| SOLICITORS FOR THE APPLICANT: | Newman Family Law |
| SOLICITORS FOR THE RESPONDENT: | Sandra Sinclair Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Ms Lawrence |
| SOLICITORS FOR THE RESPONDENT: | Murray Lyons |
Orders
Prior Orders:
That all previous parenting orders be forthwith discharged.
Parental responsibility and related orders:
That the parents have equal shared parental responsibility for the major long-term issues of the children B (born …, 2005) and C (born …, 2007).
That in the exercise of their equal shared parental responsibility pursuant to paragraph 2 of these orders:
(a)the parents will consult with each other in relation to any major long-term issues for the children that may arise. The consultation is to occur in writing if a parent requests it;
(b)the parents will act reasonably and will use their best endeavours to reach agreement;
(c)the parents will attend family dispute resolution in the event that they are unable to reach agreement.
These orders authorise the children’s schools to provide to each parent (at that parent’s expense) any and all information about the children’s educational progress, school related activities, copies of school reports, photographs, photograph order forms, certificates, awards obtained by the child and other school communications ordinarily provided by the school/s to parents.
These orders authorise each of the children’s medical practitioners (including allied health practitioners such as counsellors and psychologists) to provide to each parent (at that parent’s expense) information about the children’s medical condition, treatment and copies of medical records and reports.
Each parent will ensure that a certified copy of these orders is provided to:
(a)any school/s attended by the children;
(b)the children’s usual General Practitioner.
The parents are to keep each other informed of their respective contact addresses, telephone numbers, mobile telephone numbers or e-mail addresses and notify the other within forty-eight (48) hours to any changes to same.
Children’s living arrangements during school terms:
That for the three months immediately following these orders, the children are to spend equal time with each parent in each fortnight, according to a 4 nights with the mother and 3 nights with the father, 3 nights with the mother, 4 nights with the father regime, with changeovers on school days to occur at the conclusion of school, but otherwise at the Suburb E Shopping Centre, or at some other public place in the D Town area as may be agreed in writing.
That thereafter during school terms, the children live with the parents on an alternating weekly basis with the changeover to occur at 3.00 pm Friday of each week at the children’s school/s.
End of term 1 and end of term 3 school holiday periods:
During the end of term 1 and end of term 3 school holiday periods:
(a)in even numbered years, the children will spend the first half of the holiday period with the mother and the second half with the father;
(b)in odd numbered years, the children will spend the first half of the holiday period with the father and the second half with the mother.
For the purposes of paragraph10 of these orders:
(a)the end of term 1 and end of term 3 school holiday periods are deemed to commence at the conclusion of school on the last day of term 1 or term 3 respectively, that the children are required to physically attend at school;
(b)the mid-point of the end of term 1 holidays and the end of term 3 holidays is deemed to be 6pm on the middle Saturday of the holidays;
(c)the holidays are deemed to end at the commencement of the first day of term 2 or term 4 that the children are required to physically attend school.
End of term 2 school holiday periods:
The children will spend the whole of the end of term 2 school holiday period in each year with the father.
For the purposes of paragraph 12 of these orders, the end of term 2 school holiday period is deemed to commence at the conclusion of school on the last day of term 2 and is deemed to end at the commencement of the first day of term 3 that the children are required to physically attend school.
Christmas school holiday periods:
If the Mother intends travelling overseas with the children, she shall give the Father written notice on or before 1 October each year, then the following shall apply:
(a)In even numbered years, the children will spend time with the father for the first and last weeks of the school holiday period, excluding Christmas Day. The children will otherwise spend time with the mother for the balance of the school holiday period.
(b)In odd numbered years, the children will spend time with the father from after school on the last day of term until 9am on Boxing Day. The children will otherwise spend time with the mother for the balance of the school holiday period.
If the Mother does not give such notice on or before 1 October, then the following shall apply:-
(a)The children shall spend week about with each parent with the changeover to occur at 6.00pm each Saturday;
(b)Notwithstanding above, the children shall spend from 11.00am Christmas Eve to 11.00am Christmas Day with the Father and 11.00am Christmas Day to 11.00am Boxing Day with the Mother in even numbered years and from 11.00am Christmas Eve to 11.00am Christmas Day with the Mother and 11.00am Christmas Day to 11.00am Boxing Day with the Father in odd numbered years.
Children’s living arrangements on special occasions:
If pursuant to these orders the mother would not have the children on the Mother’s Day weekend, then the children will spend Mother’s Day with the mother, from 9am on Mother’s Day until commencement of school Monday.
If pursuant to these orders the father would not have the children on the Father’s Day weekend, then the children will spend Father’s Day with the father, from 9am on Father’s Day until commencement of school Monday.
If pursuant to these orders the father would not spend time with the children on the father’s birthday, then the children will spend time with the father on his birthday:
(a)if a school day, then from after school that day until commencement of school the following day (or 9am if the following day is weekend);
(b)if a non-school day, then from 9am that day until 9am the following day (or commencement of school if the following day is a school day).
If pursuant to these Orders, the Mother would not spend time with the children on the Mother’s birthday, then the children will spend time with the Mother on her birthday from 9.00am that day until 9.00am the following day.
(NOTING that the Mother’s birthday falls on …., which will always be a non-school day, and NOTING that if the Mother travels overseas with the children over Christmas then she will have the children for her birthday in any event.)
If pursuant to these orders a parent would not spend time with the children on one of the children’s birthdays, then the children will spend time with that parent on the child’s birthday:
(a)if a school day, then from after school until 7pm;
(b)if a non-school day, then from 1pm until 7pm.
Telephone and electronic communication:
The children will communicate with the parents by telephone (or by other forms of electronic communication if available) as follows:
(a)the parent who has the children in their care is to provide the children with the use of a telephone so that the children can speak with the other parent on up to two (2) occasions per week for no longer than fifteen (15) minutes duration each child.
Changeovers:
That changeovers for the children are to occur at:
(a)the children’s schools whenever changeovers are at the commencement or conclusion of school; or
(b)in any other case, at Suburb E Shopping Centre or at some other public place in the D Town area as agreed in writing.
Restraints:
Whilst in the presence or hearing of the children, the parents are restrained from speaking, or allowing the children to remain in the presence of someone else who is speaking, in a negative, offensive, or disrespectful manner towards:
(a)the other parent or a member of his/her family; or
(b)the other parent’s partner or a member of his/her family
At changeovers, the parents are restrained from behaving in an aggressive, confrontational or argumentative way towards:
(a)the other parent; or
(b)any other person who is in the company of the other parent.
The parents are restrained from removing the children, or attempting to remove the children, from the Commonwealth of Australia otherwise than in accordance with paragraphs 26 and 27 of these orders.
Overseas travel with the children:
Each parent may travel overseas with the children during times that that parent has the children pursuant to these orders, or during such other times that the parties may agree to in writing.
For the purposes of overseas travel with the children:
(a)the travelling parent will meet the costs of and incidental to such travel personally;
(b)the travelling parent is to provide the other party with a copy of the children’s itinerary including departure dates and return dates prior to the children’s departure;
(c)the travelling parent will keep the other party advised as to all contact details including telephone numbers, addresses and e-mail addresses during such travel;
(d)during any absence from Australia that the travelling parent will be responsible for ensuring the children have telephone/skype contact with the other party no less than twice per week at the cost of the travelling parent.
Passports for the children:
That the parents ensure that the children have valid passports at all times, with both parents to complete all necessary application forms and the costs of same to be shared equally.
That the children’s passports be held at the Family Law Registry in Cairns, or at some other institution as agreed in writing, with such passports to be:
(a)released to the travelling parent no earlier than seven (7) days before the commencement of travel;
(b)returned by the travelling parent to the Family Law Registry in Cairns, or at the other institution as agreed in writing, no later than seven (7) days after the children’s return to D Town.
Extra-curricular activities for the children:
In addition to payment of any child support as administratively assessed, the Father will solely meet the costs of one agreed extra-curricular activity per child per year, NOTING that the parties have been sharing equally in the cost of the children’s extra-curricular activities since separation.
Other orders
The Independent Children's Lawyer is forthwith discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.
Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Howard & Howard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC494/2015
| Mr Howard |
Applicant
And
| Ms Howard |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These proceedings relate to the parenting arrangements for the parties’ two children, being B, born in 2005 and hence presently 11 years of age, and C, born in 2007 and hence presently 9 years of age (“the children”).
As ultimately formulated, Mr Howard (“the father”) sought orders that the parties have equal shared parental responsibility for the children, who would live with the parties in D Town on a week about basis, with the parties sharing the term one and term three school holidays, and the children spending all of their term two holidays with the father. He proposed that the Christmas holiday period should see different regimes in alternate years. In even numbered years, it was proposed that the children would spend the first and last weeks of the Christmas holidays with the father, but the intervening four with Ms Howard (“the mother”) it being anticipated that she would travel to the UK in that time. In odd numbered years the father proposed that the children spend time with him until 11:00am on Boxing Day, save that there were special arrangements proposed for Christmas day itself. He also proposed various orders for special days, and telephone and electronic communication when the children were in the care of the other parent.
For her part, the mother also supported orders for equal shared parental responsibility, but proposed that the children would live with her in the UK, and each alternate year travel to Australia to spend between four or five weeks of time with the father in Australia. She also proposed that the father could spend blocks of time with the children in the UK if he travelled there. In the event that the father also relocated to the UK, then she proposed a continuation of the presently existing equal shared time arrangement, which saw the children alternate between the parties on a two night, three night, two night basis.
In the event that she were not permitted to relocate, then the mother sought orders that the children spend five nights per fortnight with the father, and nine nights with her. She proposed that in each of the shorter school holiday periods, the children spend the first five days with the father, and the remainder with her. In the Christmas school holidays, she proposed that the children would spend a block of two weeks in the second half of those holidays with the father in each odd numbered year, and in even numbered years if the mother did not travel to the UK. In the event that the mother did travel to the UK in even numbered years, then she proposed that the children spend the whole of the Christmas holiday period with her.
In substance the Independent Children's Lawyer supported the position of the father.
BACKGROUND FACTS
The father
The father was born in Australia in 1979 and hence is presently 37 years of age. He grew up with his siblings in the D Town region and attended school there. At some point after he completed his schooling he left the D Town region, and was living in Melbourne when, at the age of 20 he commenced a relationship with the mother in December 1999.
The mother
The mother was born in the UK in 1975 and hence is presently 41 years of age. However when she was about five or six years old, her parents and the balance of her minor siblings relocated to a village called F Town in the UK. The mother completed her schooling in that vicinity, and then went to the UK equivalent of a TAFE College where she completed a two year course leading to the equivalent of a Diploma. Aged 18, she left that college and thereafter worked in the UK for about nine or ten years.
When she was 24 years old, an employer with whom she was finishing up gave her a return ticket to Australia. She arrived in Melbourne in November 1998 and obtained a job in that city. It was whilst on that working holiday that she met the father on 17 December 1999, when she was aged 24.
The relationship
The parties agree that their relationship commenced about two or three days after they first met. Although they did not then live together, they both thereafter regarded themselves as in an exclusive relationship. The mother left Australia in November 2000, but the parties kept in touch. There is a slight disagreement whether their relationship continued notwithstanding the physical separation, but nothing turns upon that.
The mother again obtained employment in the UK, and last worked in that role in April 2003.
In 2001 the father travelled to the UK and stayed for a few weeks. Some time later he again returned to the UK and stayed there for approximately two years. The parties agree that they lived in a de facto relationship during that time. The father did not need a UK visa because by virtue of his maternal descent, he has a European passport.
Whilst in the UK the father worked as a salesman.
The parties were married in the UK in 2002. A number of the father’s relatives from Australia travelled to celebrate that occasion.
The parties began to discuss moving to live in Australia. There is some disagreement as to whether it was intended that that move would be permanent or whether the mother indicated that she always intended to return to live in the UK.
It appears as though both parties quit their employment in April 2003, and then spent the next six weeks staying with the mother’s parents in F Town. They left the UK on 16 June 2003 and by August had purchased a house in D Town and were living there. The mother obtained employment and the father obtained employment in the hospitality industry.
The parties returned to the UK in November 2003 and stayed for about three weeks, the primary purpose of that visit being for the mother and father to attend the mother’s niece’s wedding.
In 2004 the mother fell pregnant with B, who was born in 2005 in D Town. By this time the father had established his own business.
In about 2006 the parties relocated with B to live in G Town. Although the plan was that the father would go into business with his own father in a another business, that proved unsuccessful and the father again obtained employment as a salesman. C was born whilst the parties were in G Town in 2007. Both children commenced their schooling whilst the parties were living there.
Difficulties began to surface in the relationship by at least 2014, and worsened when in that year the father discovered that the mother was having intimate communication with an ex fiancé in the UK.
Towards the end of 2014 the parties agreed to leave G Town, and move back to D Town in an effort to give their relationship a fresh start. However the mother planned, before moving to D Town, to travel with the two children to the UK, and did so. Whilst she was away the father packed up the parties’ house, moved their belongings to D Town and took on the lease of a unit which was intended to be their initial accommodation.
Whilst the mother was in the UK she commenced to suggest to the father that she might stay there with the children, and rather than the parties relocating to D Town, they might relocate to the UK instead. The father did not agree to this, and the mother and children eventually returned to Australia on 14 January 2015. The parties both agree that on that day their relationship finally terminated. They have not cohabited since.
Post-separation
Things did not get off to a good start when, having told the mother that the relationship was over, the father then proceeded to take one of the child’s passports and deposited it with his lawyer. Plainly he did not trust the mother to remain in the country.
On16 February 2015, whilst the children were spending time with the father under the parenting arrangements which the parties had fashioned post-separation, the mother became aware that in fact he was intending to go to a P&F meeting at the children’s school, leaving them in the care of his mother. The mother objected to this. Ultimately she drove to the paternal grandmother’s home, apparently bringing with her some of the father’s possessions. There was an unpleasant scene, although ultimately nothing turns upon the events of that night and I do not need to discuss them further.
In March 2015 the parties attended mediation, at which it was agreed that they would have equal shared parental responsibility, and the children would spend equal time with each parent on a 2-3-2 rotation. That arrangement continued as at trial. Although the mother wished to relocate overseas, that could not be agreed either way at the mediation.
On 1 July 2015 the children were due to change into the father’s care. Pursuant to the parties arrangement, the parties were attending to a changeover at a shopping centre car park, when the mother commenced to engage with the father in relation to her desire to relocate to the UK, given her own mother’s declining health. The father either declined to discuss the matter, or refused to agree to the mother’s request. The mother concedes that she became upset and started to cry. She says that she had her car keys in her hand and threw her hands up in frustration as she turned to walk back to her car. She says that in so moving, she accidentally scratched the bonnet of the car which the father was driving, which in fact was the paternal grandmother’s car. She only took a momentary look at the scratch that resulted, but said to the father “I am really sorry, get me some quotes.”
Photographs of the scratch to the grandmother’s care were in evidence.[1] They in fact show three scratches which, albeit of different lengths, appear to be roughly parallel to each other. One of the scratches is far longer and deeper than the others, at least from my impression of the photographs. The longest scratch spans both sides of the bonnet and appears to go (roughly) from one side to the other.
[1]Exhibit 5.
The mother claims that she was not responsible for that scratch, but only the middle of the three scratches. She has no explanation for how the other two scratches occurred, but logically they must have either been pre-existing, or placed there after the event by persons unknown. However the critical fact to my mind is that all three appear to be roughly parallel, and it is absurd to suggest that, fortuitously, the mother managed to scratch the car accidently in a way that went roughly parallel to one or two pre-existing scratches, and there is no basis to suggest that anyone after the mother scratched the car, applied one or two further scratches to the bonnet. I am satisfied that all three scratches were made by the mother.
The difficulty for the mother in that conclusion is that the length and depth of the longest of the scratches precludes any suggestion that it was the result of her throwing her hands up in frustration whilst turning. I reject the mother’s evidence, firstly, that she only caused one scratch, and secondly, that the scratches are the result of an accident. I am comfortably satisfied that the mother deliberately keyed the car.
Events then took an unfortunate twist. Shortly after the scratches were applied the father telephoned his mother and told her of the events. She was angry, and perhaps understandably so. When the father arrived at her home with the children some little time thereafter, he and she agreed that the father would go to the police. He did so, and the mother was charged by police with wilful damage. In due course the mother pleaded not guilty to the charge.
It might be pertinent to at this point to observe that the paternal grandmother is a lawyer and in a position of authority. She concedes that she contacted the police to request that they not interview the mother in the presence of the children. It is not suggested that she otherwise sought to influence the course of the criminal investigation or ensuing proceedings.
By the time of the trial before me, the criminal proceedings had resolved, or at least were shortly to resolve, on the basis that the charges would be dismissed. That was in consequence of a successful mediation in which the mother apologised to the paternal grandmother for damaging her car, and agreed to pay for the costs of the repair to the panel (about $1,500.00 to $1,600.00). However unfortunately that has not really seen an end to the matter. For her part the paternal grandmother remains incensed that the mother pleaded not guilty to the charge, and still claims that the scratches were accidental. She said the mother’s story in that respect is unbelievable, and as has been seen, I am satisfied that indeed it is. She therefore thinks that the mother’s apology to her is insincere, or at least incomplete.
For her part, the mother is plainly incensed that the paternal grandmother, involved the police and had her charged with a criminal offence. She seems to think that was a disproportionate response to the (on her evidence) accidental damage. Perhaps indeed there was a degree of over reaction on the paternal side in elevating the mother’s poor conduct into a criminal charge, but as I said to the parties during the course of the hearing, it seems to me that the paternal family were concerned that the mother’s conduct was escalating, and sought to stop it from escalating further by underscoring the seriousness, or at least potential seriousness, of the path she appeared to be going down.
In December 2015 the mother and children travelled to spend time in the UK. Precisely what they did there was unclear, but it does not appear as though they lived with the maternal grandparents for that time.
As at the time of trial before me the father was engaged in his business, and the mother had some part-time employment. Although initially funding the accommodation costs in Australia of the mother and children, from about November 2015 the father ceased doing so, and submitted to a child support assessment which saw him liable to the extent of $20.47 per week for both children. He also equally contributes to school fees, school books and extra curricular activities for the children.
At the time of trial the children were spending equal time with the parties on the basis I have previously outlined.
The children
The parties are agreed that both children are quite different. It is said that C takes more after her mother, whereas B is more of an anxious child. Both appear to be active, intelligent and well adapted children. Ms H, the Family Report writer, said that they were both psychologically healthy.
C, even at the age of 9, has expressed a strong antipathy towards eating meat (the mother is a vegetarian) and this has led to some issues from time to time when she attends restaurants, at least with the father’s side of the family.
THE ISSUES
With the assistance of the parties, during the course of the trial I identified that the following are the issues likely to substantially impact upon the determination of these proceedings.
1.What is the nature of the relationship between the children and each parent.
2.Would the children benefit from a meaningful relationship with each parent, and if so, how might it best be facilitated.
3.What, if any, risk does each parent pose to the children.
4.What benefits would relocating to the UK have for the mother, particularly in relation to:
(a)Her financial circumstances;
(b)Her family support;
(c)Her parenting capacity.
5.What effect would staying in Australia have upon the mother’s parenting capacity.
6.What would be the effects on the children of relocation to the UK, particularly by virtue of:
(a)The change in their relationship with the father and his family;
(b)Any improvement in the mother’s parenting capacity.
7.Is it reasonably practicable for the father to relocate to the UK or the UK generally.
8.If relocation to the UK were permitted, would the mother facilitate the children having or maintaining a meaningful relationship with the father and his family.
Once I have discussed the relevant statutory provisions and legal principles, I shall address those issues in advance of a traverse of any unaddressed relevant s 60CC factors, and then consider the appropriate parenting orders in this case.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; 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 (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA(1) of the Family Law Act provides that the court must 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.
However s 61DA(2) provides that the presumption does not apply if 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 either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to section 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
In the event that equal shared parental responsibility is ordered, then if it is both in the child’s best interests and reasonably practicable, the court is obliged pursuant to s 65DAA(1) to then consider whether the child should spend equal time with each of the parents. If it does not so order, then it is obliged pursuant to s 65DAA(2) to then consider, if it is both in the child’s best interests and reasonably practicable, whether the child should spend substantial and significant time with each of the parents. In either case, the matters which the court must have regard to in assessing reasonable practicability are enumerated in s 65DAA(5).
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must consider in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
Relocation
The application of these provisions in the context of relocation cases has been discussed by many authorities. In the decision of Malcolm & Munro (2011) FLC 93-460 the Full Court approved the earlier decision of Boland J in Morgan & Miles (2007) FLC 93-343, and particularly at paras 79 to 81, where her Honour said as follows:
79. In considering whether the child should live with the parent who proposes to relocate a court:
·Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
·Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
·Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
·If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
·In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
·When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
·Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
- that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
- that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
- that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
- the non-relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
·Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
80. It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount but not sole consideration;
- that a parent wishing to move does not need to demonstrate “compelling” reasons;
- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.
81. What the legislation now requires is:
- consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
- if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
NATURE OF RELATIONSHIP BETWEEN CHILDREN AND EACH PARENT
Neither party contended that the children did not enjoy a good relationship with the other. They were supported in that by the evidence of Ms H. However she emphasised that the children enjoyed different relationships with their parents based upon their individual personalities. Particularly there are three issues worthy of comment. The first is that both children perceive that the father favours C over B, although the father did not concede that in fact he did. The second is that C identifies that she had similar personality traits to the mother, and particularly that they were both prone to angry outbursts during which they would say or do things which they did not really mean.
The third matter is that the mother perceives that she has a “stronger” relationship with the children than does the father. She points to the fact that during cohabitation, the father was working away from the house for much of the day, and that when he returned at night, he would attend to his own activities and hobbies, rather than be intimately involved in family life. Whilst the father does not concede that, it is plain that whatever be the truth, the mother has indeed spent considerably more time with the children than the father has.
However there is a somewhat unusual aspect to the mother’s relationship with the children, in that, at least according to her evidence, the children do not like being away from her for any length of time (seemingly with the exception of holidays) and that they wish to maintain regular communication with her, even when they are with the father. Ultimately it became plain that there have been few, if any, days in the children’s lives when they have either not been spending time with the mother, or she has not telephoned to speak with them.
This was an issue at one stage post-separation, in that the mother would telephone the children of an evening when they were with the father, such conversations going for perhaps as long as one hour and twenty minutes. Although ultimately those calls have been truncated to ten minutes at the father’s insistence, it seems plain that the mother has some reluctance to move the children towards any degree of independence from her. The father contends that the mother is emotionally dependent upon the children; the Family Report writer did not go so far as to agree with him, but did query whether the level of contact and communication between the mother and the children was more about her needs rather than theirs.
This issue achieved some significance in that the father opined that, in the event that the mother were permitted to relocate, the prospect of the children in fact spending a long period of time away from her whilst in Australia visiting him, was unlikely. He was not alone in those concerns. In her Family Report interviews Ms H explored with the children whether they had contemplated, in the event they relocated, that spending time with the father in Australia would see them spend no time with their mother for four weeks. Both children at that point descended into considerable grief and tears, to the point where Ms H even contemplated concluding the interview. Although Ms H’s point in relaying that information was more directed towards the fact that the children had not really thought through their expressed preference to relocate with their mother to the UK, nonetheless it is also informative of the nature of the relationship which they have with her.
One noteworthy feature of the father’s relationship with the children is that it regularly involves members of his extended family. That is nigh inevitable because the father lives on property which is owned by the maternal grandmother and her sister, on which a number of other family members either live or regularly congregate. I infer that there is little distance between the father’s house on that property and his mother’s. Moreover, the paternal grandmother still has two children living with her, albeit that they now attend university.
However notwithstanding the individual characteristics of the relationships, I am comfortably satisfied that both children enjoy a good relationship with each of their parents.
WOULD CHILDREN BENEFIT FROM MEANINGFUL RELATIONSHIP WITH EACH PARENT
There is no contest between the parties in relation to this issue. Both concede that the children would indeed benefit from a meaningful relationship with each parent, and they are supported in that by Ms H. Her evidence was also that each relationship would best be facilitated by the children spending regular face-to-face time with each parent. No direct challenge to that was made by the mother, however her proposal seeks to reduce that regular face-to-face time, to a four or five week period each alternate year in which the children would spend holiday time with the father in Australia, together with any further time that may be availed of by the father if he travelled to the UK.
The mother proposed that in between those visits, the relationship would be supported by Skype or like communication and telephone calls. However Ms H did not say that Skype was an adequate substitute for regular face-to-face time, nor was it suggested to her. Indeed she was of the view that there would be difficulty in the father engaging with the children in the way that he does presently by Skype, because a lot of what he does with them involves mutual activities. For instance he will engage with the children in their various athletic interests, it being plain that both are very active, athletic children. Correctly Ms H noted that it would be difficult for the father to engage in those sorts of activities via Skype. Moreover the time difference between Australia and the UK would also mean father would have to Skype during early morning or at night.
I am well satisfied that the children would indeed benefit from a meaningful relationship with each parent, and that it would be best facilitated by regular face-to-face time between each parent and the children.
RISK POSED BY EACH PARENT
Although both parties alleged that each posed some risk of harm to the children, neither asserted that such risks were unacceptable. Rather the risk of harm was said to be at a much more subtle level, comprising, from the mother’s perspective, that the paternal family has sought to influence the children against her, and from the father’s perspective, that the mother has sought to align the children with her in relation to her proposal for relocation.
The evidence does not permit me to conclude that either of the parties, or their extended family, have sought to actively enlist the children in their respective causes. However I am well satisfied that the children are aware of the antipathy between the respective sides of their family, and do perceive that the father and paternal grandmother dislike the mother, and that the mother is unhappy being restricted presently living in Australia where she has no family whatsoever.
For her part Ms H was of the view that the mother had indeed included the children in her relocation proposal, and described the mother as having “porous boundaries” in relation to involving the children in such adult issues. I accept that evidence; it was not challenged. However plainly neither parent poses any risk of harm to the children of a kind which might disentitle them from spending time or communicating with them.
BENEFITS OF RELOCATION FOR MOTHER
Overview
The mother principally argued that she would benefit from emotional support from her family and friends if she were permitted to relocate. Although not pressed strongly, her case at times also appeared to assert that there would be an improvement in her financial circumstances upon relocation, and that her parenting capacity might improve in consequence of those two matters. I will discuss those matters individually, and then evaluate the benefits more broadly in due course.
Mother’s financial circumstances
The mother presently works about eight or nine hours per week. Although Ms H was somewhat critical of her not having sought to obtain greater employment, this was not explored in cross-examination. Moreover the mother’s evidence as to any improved financial opportunities in the UK was somewhat light on. She proposed that she would live with her parents in F Town, and during the initial period of settling in, did not appear to contemplate that she would be employed. She seemed to accept that any employment prospects would likely lie in City I, a city about thirty minutes to the south of F Town. She contemplated that she would likely obtain employment in the service industry again, or perhaps in retail. However she had made no inquiries of the employment opportunities in either of those fields in I City I, her explanation being that she had not done so because she was waiting to see whether she was permitted to relocate.
The evidence does not permit me to conclude that the mother would have any substantially improved financial circumstances if she were to relocate to the UK. However I accept that she might.
Family support
The mother comes from a family of six children, two of whom were much older than the others. The mother’s parents are presently in their eighties, and in good health, save that her father has in the recent past had an injury to his hip from which he has apparently wholly recovered, and the mother suspects that her mother is in the early stages of dementure. The mother proposes that, in the short term, she and the children would move in to live with her parents in F Town, but that she would as soon as possible thereafter obtain independent accommodation. It is plain that the mother wishes to maximise the time that she spends with her aging parents, and to give the children the opportunity of knowing their grandparents prior to them potentially falling into ill health or inevitably passing away.
Moreover the mother has other family living in the F Town district, and has siblings living throughout the UK. Inevitably there are a number of nieces and nephews and cousins with whom she would propose to interact, and from whom she would derive support.
However both the father and Ms H pointed out that her increased interaction with her family may not necessarily be a one way street in her favour. For instance the father pointed out that in the past the mother has had some conflict with family members, and on occasions when she had holidayed in the UK during the course of the marriage, had expressed a desire to come home, or at least said that she was impatient to do so. For her part, Ms H questioned whether the mother had really thought through how the children would live in the grandparents’ home in F Town. Particularly she had the view that the children’s level of activity – for instance doing hand stands inside the house and running about – may be incompatible with the grandparents’ expectations as to how their household would conduct itself.
Be that all as it may, the mother has no family living in the D Town region, or indeed Australia, and I am quite satisfied that she does feel very isolated and unsupported here. Whilst during the course of the marriage she was able to obtain what appears to have been adequate support by going on regular holidays to see her family in the UK, that was in the context where she was also obtaining emotional support from the father. That support has now not only ceased, but such support as she had previously obtained from the father’s extended family has not been enjoyed by her, at least after the episode where she keyed the paternal grandmother’s car.
That is unfortunate. Whilst the paternal grandmother expressed great regret about the fact that the mother had ceased virtually any contact with the father’s family other than the father himself, and expressed the view that her family would be willing to support the mother in any respect if only she asked, the difficulty is that the mother and grandmother have reached something of an impasse in consequence of the keying of the grandmother’s car. Whilst suggesting (sensibly) that the mother and she should put the matter behind them and re-establish their otherwise good relationship, the paternal grandmother was unable to really suggest any plan for doing so other than “going out for coffee.” Whilst it is to be hoped that indeed the mother and paternal grandmother can in due course bury the hatchet, I am quite satisfied that the mother does not presently perceive that she has any family support at all from the father’s family in Australia.
On the other hand, if the mother were to relocate to the UK, I am satisfied that she would enjoy greater family support, and perhaps more significantly, perceive that she has greater family support, and hence is likely to be to some degree happier. Moreover, I am confident that part of the mother’s present unhappiness lies in the fact that she perceives that she is restricted to living in Australia against her will. The removal of that perception is likely to also be of some assistance to her, irrespective of whether in fact the anticipated family support eventuates.
Mother’s parenting capacity
The mother did not run her case on the basis that she has diminished parenting capacity in Australia. That was a sensible decision on her part, because the evidence would simply not support it. She has been an exemplary mother to these children, and that was conceded by both the father and paternal grandmother in their evidence. She is a loving, devoted and successful parent, who has her children’s interests at the forefront of her mind.
Therefore this case is not one of those international relocation cases where the mother called evidence from a psychologist or counsellor as to her poor mental health (accepting that Ms H did conjecture that the mother may have in the past been suffering from depression which caused her to react angrily, for instance keying the paternal grandmother’s car). Nor did the mother assert that she had ever been so emotionally distressed at the prospect of staying in Australia that she had been unable to get out bed or properly attend to the children’s needs from time to time. Rather her case was that, inferentially, by virtue of either her perception of, or the reality of, increased family support in the UK, her parenting capacity would likely improve to some degree. That might be so. It might also not prove to be correct, and in that regard I note Ms H’s evidence that whilst there might be an initial honeymoon period upon the mother’s relocation, the long term effect of relocation on her was unknown and somewhat unpredictable. If there were to be any increase in the mother’s parenting capacity, in my view it would be marginal.
Evaluation
The only tangible benefits that I can perceive the mother will derive from relocation is increased emotional support, derived from her closer proximity to family and friends, and her perception that she is no longer trapped in Australia. However I am not satisfied that there is likely to be any measurable increase in her parenting capacity in consequence, although I accept that she is likely to be somewhat happier, and perhaps the children would perceive her as being happier than they presently perceive her. However this is not a case where I am satisfied that the mother’s parenting capacity would be adversely affected in any material respect if she were not permitted to relocate.
EFFECT OF STAYING IN AUSTRALIA UPON MOTHER’S PARENTING CAPACITY
The mother told Ms H that in the event that she were not permitted to relocate she would “cry, appeal and get on with it.” In her oral evidence Ms H said that the mother would be upset, but would ultimately accept that relocation was beyond her control and would indeed get on with her life. She was not challenged in this respect by the mother’s lawyer. I accept that evidence, and find that the mother would be upset in the event that she were not permitted to relocate, and that upset may be of some duration, but I am far from satisfied that she would suffer impaired or diminished parenting capacity in consequence.
EFFECTS ON CHILDREN OF RELOCATION
Overview
For her part the mother emphasised that the children had expressed a desire to live in the UK and experience their maternal family relatives. She also faintly pressed an argument that there would be benefits to the children from her improved parenting capacity. For his part the father emphasised that the children’s relationship with him would be dramatically diminished, both in quality and in the amount of time that they are able to spend together. I will discuss each of these before evaluating the net benefits, if any, of the children relocating.
Children’s wishes
It is plain from the Family Report interviews that the children have expressed wishes to relocate to the UK. They have some experience of living there, as they have regularly holidayed there since they were young. However it appears as though most of their holidays have been around Christmas, and it is clear that they have never in fact lived in the UK, but only holidayed there.
Ms H was of the view that the children’s cognitive development was not sufficient in either case to enable them to truly appreciate the consequences of their decisions. I have already discussed that, when Ms H raised with them the prospect that, when spending time with the father in Australia, they would be precluded from spending time with their mother for perhaps as long as five weeks, they descended into tumultuous tears, indicative of the fact that they had never appreciated what was likely to in fact ensue from relocation.
Although the mother opined that the children do indeed understand the implications of their expressed wishes, Ms H’s evidence as to their cognitive development was not challenged.
The father, and to a lesser extent Ms H, also opined that the children’s expressed wishes are the product of a degree of alignment with the mother. There is some support for that, in that the children perceive that the mother is sad that she is not able to relocate to the UK, and that they perceive it as unfair that the father has extended family closeby where he is living in Australia, but the mother does not.
Whilst it is possible that in the short term the children would indeed experience a degree of happiness consequent upon relocation to the UK, I am far from persuaded that either they properly understand the adverse consequences of relocation, or that when those adverse consequences are visited upon the children, they would nonetheless be happier than they presently are. Particularly I am unpersuaded that the children appreciate that their presently good relationship with the father, which sees them spending face-to-face time with him for seven days a fortnight, would be dramatically curtailed, and that their experience of him would largely be replaced with an electronic one. Moreover, I am comfortably satisfied that the children do not appreciate the likely stresses and strains of being absent from the mother for as long as 5 weeks while visiting the father in Australia.
Change in relationship with father
It is inevitable, if the present 26 weeks a year that the children spend with the father are replaced with, most likely, four or five weeks every two years, that the nature of the relationship between them and the father will dramatically change. Whilst I accept Ms H’s evidence that there is no suggestion that the children would wholly lose their relationship with the father – they are simply too old for that – their experience of it and him will be markedly different. He will not be a regular presence in their day-to-day lives. He will not be able to engage with them in the way in which he presently does. Moreover, as Ms H remarked, the relationship with the father would thereafter become a “clunky” one. Her unchallenged evidence was that it would become “clunky” because inevitably the children’s and father’s experience and memory of each other would tend to be that of the last occasion when they spent face-to-face time together, which means when they next did so, they would need to re-adjust their perception of each other because of the inevitable changes that would have occurred in the interim. Whilst that may be more the case in relation to the children than the father, I accept that nonetheless it would run both ways.
That is in marked difference to the present relationship, which sees the children living with the father for one half of their time; there presently is no such “clunkiness”.
Moreover, the children would also suffer diminished relationships with the father’s extended family more generally. In this respect it seems clear that the paternal grandmother and her family do pride themselves on having regular connection with extended family, particularly at Christmas. The father correctly pointed out that, even on the mother’s proposal, the children would never get to spend Christmas with him or their extended paternal family, as the four to five weeks which the mother proposed the children would spend with the father in Australia were during Summer holidays in the northern hemisphere.
This was perhaps a somewhat unexpectedly strong plank in the father’s case. He emphasised that there is a long standing family tradition of all of the paternal family gathering at the property and having, not only the traditional Christmas lunch, but lingering on during the afternoon and having a dinner of left-overs, after having engaged in joint family activities during the course of the afternoon. Whilst the mother’s case is that the children have to date never in fact enjoyed such a Christmas, that does not really answer the father’s point, that they would benefit from a knowledge of that aspect of their family life.
I am well satisfied that the effect of relocation would be a substantial diminution in the quality and regularity of the children’s experience of the father and vice versa, and with the paternal family more generally. I do not overlook that the mother proposes that the father could spend additional time with the children in the UK, but as I shall shortly discuss, the reality is that the financial circumstances of these parties is not such as to make that reasonably practicable.
Improvement in mother’s parenting capacity
I am satisfied that there may be some marginal improvement in the mother’s parenting capacity, but I accept Ms H’s evidence that the mother is presently doing well, and that these are psychologically well children. In fairness to the mother, she did not suggest the contrary. I am not satisfied that there would be any material benefit to the children consequent upon any improvement in the mother’s parenting capacity that followed from relocation.
Evaluation
Whilst the children may suffer some short term increase in happiness if their expressed wishes to relocate were acceded to, I am satisfied that the main effect of relocation would be the substantial disruption of their relationship with the father and the paternal family. It would become a relationship that was a “clunky” one, and would see the removal of the father as a regular part of the children’s day-to-day lives. The father gave some good illustrations of that, such as his concerns that the children would never experience a Christmas with him. Further, he pointed out that unless he travelled to the UK, he would never get to share a birthday with the children face to face. Ms H accepted that a parents’ presence at a child’s birthday is important to them.
I am satisfied that the effect on the children of relocation to the UK is likely to be a negative one, in that the father and his extended family will substantially be removed from their day-to-day lives.
REASONABLY PRACTICAL FOR FATHER TO RELOCATE
The mother contended that the father could obtain employment in the UK as a salesman. However she accepted that it was most unlikely that the father would indeed relocate. For his part, whilst not saying that he could not obtain employment in the UK, the father pointed out that such employment would likely see him working long hours for six or seven days a week, as that was his experience of the industry when he last worked in it.
The mother put on no material from an employment consultant or like as to available employment within the F Town or City I districts, and absent such evidence, I am not prepared to infer that such employment would be readily available for the father. Certainly I am not able to make any assessment as to whether the income that the father might earn – whether by retainer or commission – would be sufficient to support him in accommodation in the UK of a kind which would see him able to properly provide for himself and the children when they were living with him.
On the other hand, the father did not run a negative case which asserted it was not reasonably practicable for him to relocate. For instance he did not call any evidence as to the absence of employment opportunities in City I. It may fairly be said that the mother ran her case on the assumption that the father would not relocate in any event, and indeed the father’s case was to that effect.
Given the state of the evidence, I am not satisfied either that it is reasonably practicable for the father to relocate, or that it is not reasonably practicable for him to do so. The evidence is neutral. That said, I am satisfied that indeed the father would not relocate, even if the mother were permitted to relocate with the children. Whilst ordinarily this may be a major focus of a trial, this case is unusual in that the mother accepted that the father would not relocate, or was at least highly unlikely to. To an extent therefore, I am absolved from further inquiry by the concession.
The concession seems soundly based. The father has a long association with the D Town district, and much of his family lives within the region. He presently lives in a home on the paternal grandmother’s property and has an established a business in the D Town region. Moreover, one could scarcely imagine two more disparate climates than the UK and tropical North Queensland, and I accept that the father is likely to find, particularly during the winter months in the northern hemisphere, the short days and the cold weather difficult to adapt to. Certainly the mother accepts that during the time that the father and she were living in the UK, he was unhappy with the climate and anxious to return home.
WOULD MOTHER FACILITATE MEANINGFUL RELATIONSHIP BETWEEN THE CHILDREN AND FATHER
Up until the final day of trial, it may fairly be said that the mother’s proposals as to the father spending time with the children, whether in Australia or in the UK, were parsimonious. The best illustration of that is that even if the father did relocate to the UK and lived within 30 minutes of the children, the mother proposed only that he would spend alternate weekends with the children, together with Wednesday night in the “off week”. Against a background that, post-separation the children have always spent equal time with each parent, the justification for such a dramatic change was not readily apparent in the evidence, and is difficult to discern. Ms H was critical of the mother’s position at that point, in that it provided no incentive whatsoever for the father to relocate.
Even though on the final day of trial the mother’s position in that respect changed dramatically, it was still difficult to discern her reasoning behind the proposals. That is because although she proposed, if the father relocated to the UK, that the present arrangements would continue (ie equal time), if relocation were not permitted, and the mother and children remained in Australia, she only proposed a five/nine split. I confess to having great difficulty in understanding the justification for that difference in position, even accepting that the mother suggested that the equal time arrangement in the UK might only be “short term.”
The father also relied upon the fact that the mother’s primary proposal would see the children never spend Christmas with him or his family, and the father and children never spend their birthdays together unless the father happened to travel to the UK for that purpose.
Further, the father emphasised the mother’s unreasonableness in relation to her Christmas proposals, even if relocation were not permitted. The unchallenged evidence is that the father’s family gathers together at 11:30am and their celebrations continue until the evening. The mother’s proposal was that, even if the children were spending Christmas lunch with the father, it should stop at 2:30pm and the children then go into her care. The father suggested that the mother was deliberately “spoiling” his enjoyment of Christmas with the children, and I accept that there is a degree of truth to that.
Further, the father points to the fact that the children have, in Family Report interviews, expressed a desire to spend less time with him, or at least more time with the mother, and for the number of changeovers which they experience to be reduced. I must say I have great sympathy with the children in relation to the latter, in that the 3-2-3 arrangement which they presently have sees, at least on my assessment, far too many changeovers. What the father says, however, is that the mother is influencing the children to express these wishes, which again is an indication of her lack of desire to facilitate his relationship with the children.
Ms H did not appear to accept that the mother had, post-separation, in fact failed to facilitate a relationship between the children and the father, but rather emphasised that in the event that she were to relocate, continued facilitation of that meaningful relationship would be hard work, and the mother may not be sufficiently keen to put her shoulder to the wheel in order to maintain it. In this regard she pointed particularly to the lack of enticement in the mother’s then proposal.
Whilst I am not positively persuaded that the mother would consciously work to sabotage the presently good relationship between the father and the children if they were to relocate to the UK, I am not persuaded that the mother would enthusiastically work to maintain the relationship in the difficult circumstances that would then prevail. I say difficult circumstances because principally of the time difference between the two countries, and the likelihood that the children would only be able to spend any extended time Skyping with the father on weekends, when of course they are likely to have other activities which they wish to engage in. In this regard the mother’s evidence that her relationship with the children is a “stronger” one is a little troubling, in that it suggests that she perceives that relationship as being one of greater significance, and hence worthy of priority over that of the father’s.
Ultimately I have real concerns that, from the UK, the mother would be willing to, or able to, achieve the maintenance of the meaningful relationship between the father and the children which they presently enjoy.
SECTION 60CC CONSIDERATIONS
It will be appreciated that I have already discussed both primary considerations, and a number of the additional considerations, articulated in s 60CC. However I make the following further observations.
Both children have expressed the desire to relocate, however I give those views little weight because I am satisfied that they do not have the cognitive development to properly understand the consequences of any accession to those wishes, as is evidenced by their distress in interviews with Ms H.
I am satisfied that the children have good relationships with their extended family both in Australia and in the UK, however they probably have better relations with the paternal family, because they see them more regularly and live close by them.
The father’s payment of child support at present does not seem generous, although I accept that it is the amount assessed by the Child Support Agency, that the father is not in receipt of great income, and that the children remain in his care for the same amount of time as they live with the mother.
Neither the mother nor father have the capacity to fund regular travel for themselves or the children between Australia and the UK. Whilst the mother has some apparently reasonably well-to-do relatives, and there is some wealth in the father’s family, the material does not really permit me to conclude that these children or the parties will be able to travel at will, or regularly, between those countries. Inevitably this means that if the children were to live in a different country to one of their parents, there will be practical difficulties in them spending time with that parent, and hence maintain a meaningful relationship with them.
The father asserts that the mother has engaged in family violence, either by putting some of his possessions in a puddle of water after separation, or by keying the paternal grandmother’s car. For her part the mother says that the father smashed two phones during the course of the relationship in front of the children. The father concedes he did that.
However as I pointed out to the parties during the course of the trial, the way in which family violence plays out in this case is by no means clear. Neither party says that the asserted family violence should mean that the presumption of equal shared parental responsibility is displaced, as both seek equal shared parental responsibility. At best both parties seem to think that the family violence issues related to credit, however it is difficult to see how questions of credit loom large in this case. I have determined the facts in relation to the episode where the mother keyed the maternal grandmother’s car by the implausibility of the mother’s story, not her credit generally.
Although I am satisfied that there was family violence of the kind discussed above, it does not seem to be of a character, or entailing consequences of a kind, that informs the exercise of my discretion in this case.
The mother has the right to travel and live wheresoever she may choose.
PARENTAL RESPONSIBILITY
Both parties accept that, irrespective of the question of relocation, there should be an order for equal shared parental responsibility. I am well satisfied that it would be in the children’s best interests for both parents to have equal involvement in decision making in relation to their lives. To date they have been able to discharge equal shared parental responsibility without any particular difficulty, and there is no reason to think that they could not continue to do so, or that the children would not benefit from each parent having that involvement. There will be an order for equal shared parental responsibility.
LIVING ARRANGEMENTS OF CHILDREN
Because I propose to order equal shared parental responsibility, it is incumbent upon me under s 65DAA(1) to consider whether the children spending equal time with each of the parents would be in their best interests, and whether it is reasonably practicable, and if so to consider making an order for equal time.
Both the father and the Independent Children's Lawyer contend that it would be in each child’s best interests to spend equal time with each of the parents, but the mother’s position is inconsistent. She apparently concedes it would be in the children’s best interests to spend equal time with the father if they were living in the UK, but does not concede it if they were living in Australia. I have already adverted to the difficulty in understanding the reasons for the mother’s differing positions in this respect.
The only explanation which the mother was able to give for reduction in the children spending time with the father from seven nights per week to five was that the children have expressed that wish. However I am far from persuaded that the children fully understand what they are asking for, particularly given the inevitable dislocation in their lives consequent upon the current number of changeovers, and further, the fact that, to a degree, they appear to have become involved in advocating for the mother’s preferences, at least in relation to relocation.
Both children are flourishing under the present arrangements, and save for the number of changeovers, I am satisfied that indeed spending equal time with each of the parents would be in their best interests. I place little weight upon their expressed wishes in this respect.
It is difficult to argue that it is not reasonably practicable for the children to spend equal time with each of the parents, because that is what they have done since the parties separated in January 2015. The only reason why it might not be reasonably practicable is if the mother were permitted to relocate. In that respect she does not expect the father to relocate as well, and even if he were to relocate, the evidence as to where he would live, how he could obtain employment and the like is so light on, as to not be able to found a conclusion that it is reasonably practicable for the children to spend equal time with the parents if they were to relocate to the UK.
It is therefore incumbent upon me to consider whether making an order for equal time should be made. In this respect the mother’s application to relocate looms large.
The following are the factors in favour of the mother’s relocation with the children to the UK:
·She is likely to have increased family support and support from friends, in consequence of which she is likely, at least in the short term, to be happier;
·She is likely to no longer have the feeling that she has been trapped against her will in Australia;
·The children have expressed a desire to relocate, although they do not have the cognitive development to properly appreciate the consequences of their wishes.
On the other hand the following points weight against the mother’s relocation with the children:
·Unless the father also relocated, it is likely to result in a substantial dislocation and diminution of the children’s relationship with, and experience of, their father;
·I am not persuaded that it is reasonably practicable for the father to relocate to an address within the UK which would enable equal time;
·The parties’ resources are not sufficient to maintain anything other than relatively scant face-to-face time between the father and children, perhaps as little as four or five weeks every two years;
·I am not persuaded that the children’s relationship with the father could be maintained at its present level by scant face-to-face time augmented with Skype and other electronic communication;
·There is some question mark as to whether the mother would indeed, in any event, be prepared to make the considerable effort required to maintain a meaningful relationship between the father and the children using Skype and other electronic means from the UK.
Weighing those factors in the balance in my view tells strongly against the mother relocating. I am not merely not satisfied that it is in the children’s best interests to permit relocation; I am positively satisfied that relocation is contrary to the children’s best interests. I decline to make an order for relocation.
In those circumstances I am satisfied that an order for equal time is in the best interests of the children, and is reasonably practicable. I am therefore satisfied that there should be an order for equal time, as indeed there has been since the parties separated in January 2015.
However I am not persuaded that the present regime is satisfactory, in that although it does afford equal time, it involves far too many changeovers. I accept Ms H’s evidence that there should be a staged progression to week about time, and do not accept the father’s proposal that should happen immediately in combination with seven day block time over holidays. There will therefore be an order for the staged progression to week about time between each parent. For three months it will be a 4:3:3:4 fortnightly split, and then move to a 7:7 split.
That then brings me to a consideration of school holidays. I am satisfied that indeed it is in the children’s best interests that they have the opportunity to travel to the UK for the entirety of every alternate Christmas school holidays, and I am satisfied that the quid pro quo for that, to achieve equal time, should be that the father has all of the mid year school holidays with the children, both in even and odd years.
For these reasons there will therefore be orders substantially in the terms sought by the father, save that there will be an order for progression to the week about time.
The only remaining matter in dispute is Christmas. I am satisfied that the proposal that the father makes in relation to Christmas is in the children’s best interests because it will enable them, in alternate years, to experience their extended family Christmas, which will be of benefit to them in understanding their cultural roots on their father’s side.
OTHER ORDERS
Otherwise I am persuaded that the orders as sought by the father and Independent Children's Lawyer are in the children’s best interests and will make them. Further, I am satisfied that the mother should not be able to either call the children every day, or talk to them for lengthy periods of time, when they are in the father’s care.
CONCLUSION
For these reasons there will be orders pronounced as set out at the commencement of these reasons.
I certify that the preceding one hundred and twenty six (126) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 8 June 2016.
Associate:
Date: 8 June 2016
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