J and J
[2001] FMCAfam 11
•22 January 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| J & J | [2001] FMCA fam 11 |
| RELOCATION – ss 60B and 68F(2) of the Family Law Act. |
| Applicant: | S G J |
| Respondent: | K L J |
| File No: | CA 1617 of 1999 |
| Delivered on: | 22 January 2001 |
| Delivered at: | Canberra |
| Hearing Dates: | 16 & 17 January 2001 |
| Judgment of: | Brewster FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Brzostowski |
| Counsel for the Respondent: | Mr Doig |
ORDERS
That from the date of these Orders that C have contact with the father each alternate weekend from 6.00pm Friday to 6.00pm Sunday.
That prior to C starting school the father have holiday contact as follows:
(a)In 2001:
(i)From 3.00pm Good Friday until 6.00pm on Easter Monday;
(ii)In substitution for two of the contact periods referred to in Order 1 for two periods, the first of three days and the second of four days at times to be agreed between the parties and in default of agreement to be the first contact period in June and the contact period that encompasses Fathers Day from 6.00pm Friday to 6.00pm Monday and Tuesday respectively;
(iii)From 3.00pm 25 December 2001 until 6.00pm on
29 December 2001.(1)In 2002 and until C commences school :
(a)From 5.00pm on Easter Sunday until 6.00pm on the following Friday;
(b)For six days in the June/July and September/October school holiday periods to be agreed between the parties and in default of agreement to be the six days that end on the second Sunday of the holidays;
(c)From 9.00am on 20 December until 4.00pm on 25 December;
(d)For one period of seven days in January 2003 at times to be agreed between the parties and in default of agreement to be the seven days that end two clear days before C commences school. This contact is to be in substitution for, not in addition to, one of the weekend contact periods that would otherwise take place in this period.
That when C commences school:
(a)Except in school holidays each alternate weekend from
5.00pm Friday to 6.00pm Sunday;(b)For the first half of all school holidays that commence in odd numbered years;
(c)For the second half of all school holidays that commence in even numbered years;
(d)That not withstanding any other Order C will have the weekend with the father on Father’s Day and if this weekend would otherwise not have been a contact weekend the father will forego his weekend contact on the following weekend and thereafter the usual weekend contact will continue.
That not withstanding any other Order if Mother’s Day occurs on weekend contact when C would otherwise be exercising contact with his father, weekend contact for that weekend will be suspended and make up contact will occur the following weekend, with the usual weekend regime to continue thereafter.
That not withstanding any other Order, the parent with whom C is living or exercising contact on his birthday each year will facilitate C spending 4 hours with the other parent, or 2 hours on a school day, at times to be agreed and failing such agreement to occur from 4.00pm until 6.00pm if a 2 hour contact period and from 4.00pm until 8.00pm if a 4 hour contact period.
That until the protection order against the father is lifted C’s paternal grandfather will be responsible to delivering C to each of the parents for the purposes of these Orders.
That the father will notify the mother as to where the child is exercising contact if that contact involves staying overnight away from Canberra.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CA1617 of 2001
| S G J |
Applicant
And
| K L J |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns the father’s contact with the child of the parties’ marriage C J, born 9 July 1998. The mother wishes to relocate with the child to Brisbane and seeks contact orders that would permit her to do so. The father opposes this relocation and seeks contact orders which, if made, would preclude this occurring.
Background
The parties were married on 11 October 1997 in Canberra. They lived together prior to the marriage although there is some difference as to the length of time they had done so. It is not necessary to make a finding in relation to this. They finally separated in August 1999.
The mother has another child, a daughter S who is presently aged 9. This child lives with the mother. S’s father has agreed to the mother moving to Brisbane with her.
On separation C lived with the mother. On 16 September 1999 the father filed an application for both interim and final orders in the Family Court of Australia. It should be noted that one of the interim orders sought was that the mother be restrained from changing C’s residence from the Australian Capital Territory without his consent or an order of the Court. When the matter came before the Court on 18 October 1999 orders were made concerning contact between the father and C. These provided for a graduated regime of contact starting with 3 hours each Sunday increasing eventually to contact from 10.00am each alternate Saturday to 4.00pm the following Sunday. There were other periods of contact provided for in relation to Christmas and other special days which I need not set out. Since those orders the father has had contact substantially in accordance with their provisions.
The father in his Form 7 sought he have weekend contact from Friday evening to Monday morning and extended periods of contact in blocks of one or two weeks at a time for up to four weeks a year. The mother in her initial response sought orders that weekend contact be from 10.00am Saturday to 4.00pm Sunday. The proceedings were subsequently transferred to this Court.
Subsequently the father filed an amended application which sought orders different, although not radically different, to those sought in his original application.
When the matter came before me the competing proposals were as follows :
(2)The father sought :
(a)Contact each alternate weekend commencing on Friday evening and concluding on Sunday evening for a period of 6 months and then thereafter concluding on Monday;
(b)Contact every alternate Tuesday from 5.00pm to 7.30pm;
(c)Periods of block contact increasing each year until C started school and upon his starting school half of all school holidays; and
(d)Contact on Father’s Day and the child’s birthday.
(3)The mother’s proposals were as follows :
(a)Her primary proposal is that she reside in Brisbane and that the father have contact with C for two block periods of four weeks each year. She proposed that until C commenced school he travel between Brisbane and Canberra by air and that upon commencing school the travel be by road with the parties affecting a handover at Tamworth. She proposed that transport costs be shared equally by the parties;
(b)Her proposal in the event that she was unable to obtain orders which would permit her to relocate is for weekend contact from Friday evening to Sunday evening, block contact prior to C commencing school up to one week at a time and, after C commences school half the school holidays. She also sought orders in relation to special days.
It is common ground that the wife’s wish to relocate to Brisbane is long standing. The father states that during the relationship she had spoken of her wish to move to Brisbane and the mother claims that there was an agreement that they would make this move. It was for this reason that he sought the injunction referred to in paragraph 4.
The mother’s opportunity to relocate came about as follows. In late 1999 she met W B a member of the regular Australian Army. They shortly afterwards formed a relationship and later commenced to live together. Last year Mr B decided if possible to leave the regular army and to obtain a position with the Army Reserve. To this end he applied for an appointment to the Army Reserve in Canberra and this course was recommended by his superior officer to those in the army who make decisions in relation to these matters. Subsequently however Mr B withdrew this application and applied to for an appointment to the Army Reserve in Brisbane. This application was successful. In evidence he said that if orders were made which were such that the mother would not be able to relocate to Brisbane he would not move to Brisbane and would reactivate his earlier application to be employed by the Army Reserve in Canberra. He said that he expected that any such application would be successful.
Recently the mother’s father bought a house in Brisbane and the proposal is that the mother and Mr B rent this property. They would pay $160.00 per week, the same amount they are paying in Canberra. The mother in her affidavit referred to the possibility of her father moving to Brisbane but her father, who filed an affidavit in these proceedings, does not mention this.
The mother has family in Brisbane. Both her grandmothers reside there as well as a brother and sister-in-law.
As mentioned above if the mother is unable to relocate to Brisbane Mr B will remain in Canberra and would apply to be a member of the Army Reserve in Canberra. There is a risk however that he would not be successful in obtaining this position and this is a matter I must have regard to because, if so, there is a risk that he would be unable to obtain other employment. However I think this is unlikely. Mr B expressed confidence in being able to obtain a position in the Army Reserve in Canberra. If he does not I am satisfied it is likely that he will have no real difficulty obtaining other employment. He is qualified as a driver holding a number of licences including a licence to drive a coach with up to 54 passengers. He struck me as an impressive man who would make a good impression at any job interview. I do not believe there is any realistic prospect that he would unable to obtain employment in Canberra.
The law
The law to be applied, and the approach to be taken, in cases where a party with whom the child resides wishes to relocate as summarised by the Full Court of the Family Court in A v A 2000 (FLC) 93-035. The approach to be taken is as follows:
(1)The best interests of the child is the paramount consideration;
(2)That is not to say however that this is the sole consideration. In particular the court should recognise the importance of a person’s right to freedom of movement and to organise his or her life as he or she wishes;
(3)Neither party bears an onus. That is in this case the father does not bear any onus of having to persuade me that I should refuse to make orders permitting relocation nor does the mother have any onus to persuade me to the contrary;
(4)In coming to my decision I should be guided by the principles set out in Section 60B of the Family Law Act and in determining what the best interests of the child are should be guided by the criteria set out in Section 68F(2) of that Act;
(5)I am required to look at and compare the two competing proposals, that is on the one hand the proposal by the father for weekend and midweek contact and for block periods of contact a number of times a year and on the other hand the mother’s proposal which would involve less frequent longer periods of contact and determine which of these proposals are in C’s best interests. In this respect I am not bound to follow either proposal precisely and I am at liberty to devise a regime which may not be as sought by either party but which I consider to be in his best interests.
Discussion
The advantages of the mother residing with the child in Brisbane is that it is likely that she would be happier in that environment. She says that she prefers the climate in Queensland and that she has family there who she will be able to rely on for support if needed. It is clearly beneficial for C that the parent with whom he primarily resides is living a happy and fulfilled life. If she is forced to remain in Canberra she will not experience the same level of contentment.
The problem with the scenario in which the mother resides with C in Brisbane is that the contact that C will have with his father will be substantially reduced and there will be long periods of time between each contact period. The mother believes that if the father utilises the time properly and keeps in contact with C by telephone and letter that this will compensate for the reduction in time and infrequency of contact. I do not agree. The other disadvantage of her proposal of two blocks of four weeks is that C is, in my opinion, too young at this stage to be separated from his mother for such a period of time. In this respect I rely on the evidence of Ms Sue Connor, a psychologist and former counsellor with the Family Court who provided two reports and gave evidence on behalf of the father in these proceedings. Any proposal to increase the number of times C sees his father beyond that proposal put forward by the mother encounters the problem of cost. Neither party would appear to have significant surplus income to enable more frequent air travel and the mother recognises that, at this stage any rate, travel by road (assuming for the moment that this would be cheaper) would be very onerous on C. Any proposal to reduce the time C would remain away from his mother for any one period must involve reduced contact with his father.
The benefit to C of remaining in Canberra is that he would be able to have frequent and regular contact with his father. In addition he will have the benefit of having frequent contact with his paternal grandparents who live in Canberra and with whom the father presently resides and with his maternal grandfather who also lives in Canberra.
I now turn to the provisions of the Family Law Act.
Section 60B of the FLA provides firstly that the object of the Act in so far as it deals with children is to ensure that those children receive adequate and proper parenting to help them achieve their full potential and that the principles underlying those objects are that, except where it be contrary to a child’s best interests, children have the right to know and be cared for by both their parents and have a right of contact on a regular basis with both their parents and with other people significant to their care welfare and development. Section 68F2 sets out the criteria for determining what is in the child’s best interests. These criteria and my comments on them are as follows:
(1)The first matter to be considered is any wishes expressed by the child. There is no evidence as to what C’s wishes are and in any event at his age, even if he had expressed a wish, he would not be capable of understanding the implications of what is involved in giving effect to it;
(2)The next matter to be considered is the nature of the relationship of the child with each of the child’s parents and with other persons. In this respect I accept that C has a good relationship with both parents and also with his paternal grandparents and maternal grandfather;
(3)The next matter to be considered is the likely effect of any change in the child’s circumstances including the likely effect on the child of any separation from either of his parents or from any other person with whom he has been living. In this respect I am concerned as to the effect on C of prolonged separation from his father. He has been having regular contact with his father and the proposal that this be reduced to twice a year is a significant and untested change. I am not so concerned about prolonged separation from his grandparents but I believe there are benefits in C having frequent contact with those people;
(4)The next matter to be considered is the practical difficulty and the expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis. This is a significant factor in this case. As mentioned above until C starts school the mother proposes that he travel to and from Canberra by air. This will involve significant expense and, as indicated above, I am satisfied that the two trips a year that she proposes probably represents the limit of what the parties could afford in this case. When C commences school she proposes contact three times a year with the parties travelling by road. I am not sure that this would involve a significant reduction in the costs involved given that the distance between Brisbane and Canberra and the necessity to stay overnight in Tamworth or some other place. There may be practical difficulties and expense in contact more than the presently proposed twice a year;
(5)The next matter to be taken into account is the capacity of each parent to provide for the needs of the child including emotionally and intellectual needs. There is no evidence that each parent is not capable of adequately providing in this respect;
(6)The next matter referred to in the subsection is the child’s maturity, sex and background and any other characteristics that the Court thinks relevant. I do not believe this has any application in the present case;
(7)Section 68F(2)(g) deals with the need to protect the child from physical or psychological harm caused, or which might be caused, by being subjected to ill treatment or violence or exposed to ill treatment or violence. Subsection (i) returns to this theme and addresses any family violence involving the child or any of the child’s family. In this respect there is evidence of at least one violent altercation between the mother and the father. The incident or incidents occurred around the time of the parties’ separation when doubtless emotions were running very high. Having seen and heard from the father I believe that his behaviour at the time was out of character. I do not believe that this incident or incidents have any long term implications insofar as C is concerned;
(8)Sub-section (h) refers to the attitude to the child, and to the responsibilities of parenthood, demonstrated by either parent. I believe both parents have done their best to display a proper attitude to the child and to their responsibilities as his parents;
(9)Sub-section (k) requires the court to consider whether or not it would be preferable to make an order that would be least likely to lead to further litigation. In some respects making an order which would enable the mother to relocate would minimise the risk of further litigation but in the context of this case I do not believe significant weight should be placed on this matter.
Conclusion
I am satisfied that the mother’s reasons for wishing to relocate are genuine and not motivated by any desire to reduce the input of the father in C’s life. I am satisfied that she would be happier and more content in Brisbane and that this is in C’s best interests. However, I am concerned as to the impact that such a move would have on the father’s relationship with C. I am further concerned that the contact regimen proposed by the mother for the next two years would impose stresses on C in being separated from his mother for such a long time. In this respect I note that Ms Connor in one of the reports annexed to her affidavit says, in relation to the mother’s proposal for contact that she “would be concerned regarding him being away from his primary attachment figure, in this case his mother, for such long periods of time. For a young pre-school child any contact regime must be viewed in the light of the developmental need to maintain a quality relationship with the primary residential parent. Failure to be allowed to do so can result in an unattached unbonded and insecure child.” She further expressed concern that “the lengthy periods between such contact visits would not allow his father to establish a sufficiently strong relationship with him and C’s life would be fretful and distressed about the separation from his primary carer making the contact distressing and unsettling for him, rather than an enjoyable experience. Given the distances involved in Ms J’s proposed relocation, it is hard to see how Mr J’s role in his son’s life can be adequately developed and maintained especially while C is so young.” I adopt those views. I believe that a contact period of four weeks is too long. On the other hand if I made orders for shorter periods this would mean that C would spend less time with his father and this would impact on the relationship between the two. In my opinion C needs to have regular and frequent contact with his father to optimise the relationship between them.
If the mother moves to Brisbane with C she will probably be happier and this will have a positive impact on C. However the relationship between C and his father will be affected. If she remains in Canberra her happiness will be compromised to a degree but C will have the opportunity to develop an optimum relationship with his father.
In my opinion, whilst it is true that the mother would probably be happier and more content in Brisbane than in Canberra, there is no evidence she would be so stressed or unhappy by being forced to remain in Canberra that there would be an impact on C or on her ability to properly care for him. In my opinion the adverse consequences to C of having the circumscribed contact with his father that a move to Brisbane dictates outweigh the benefits he would obtain by being with his mother in Brisbane. In my opinion, considerations such as freedom of movement must give way to C’s best interests. For these reasons I do not propose to make contact orders which would permit the mother to re-locate.
The issue now arises as to what contact orders should be made. Each party has submitted proposals which are not far apart. Each party agrees that weekend contact should be extended to include Friday night. The father wishes to have orders made that would permit him to have C on the Sunday night also after six months. He also seeks mid-week contact. Whilst I understand his reasons for this I am not convinced that this is appropriate at this stage. Overall I believe the regimen proposed by the mother in this respect would be the most appropriate. Insofar as block contact is concerned I propose to make orders that will commence with a period of block contact of 3 days increasing over time by increments of one day to periods of one week. I assume that in 2002 he will attend pre-school so block periods will be during school holidays. I then adopt the orders sought by the mother in respect of the period after C starts school.
The orders I propose to make are as follows :
(1)That from the date of these Orders that C have contact with the father each alternate weekend from 6.00pm Friday to 6.00pm Sunday;
(2)That prior to C starting school the father have holiday contact as follows:
(a)In 2001:
(i)From 3.00pm Good Friday until 6.00pm on Easter Monday;
(ii)In substitution for two of the contact periods referred to in Order 1 for two periods, the first of three days and the second of four days at times to be agreed between the parties and in default of agreement to be the first contact period in June and the contact period that encompasses Fathers Day from 6.00pm Friday to 6.00pm Monday and Tuesday respectively;
(iii)
From 3.00pm 25 December 2001 until 6.00pm on
29 December 2001.
(b)In 2002 and until C commences school :
(i)From 5.00pm on Easter Sunday until 6.00pm on the following Friday;
(ii)For six days in the June/July and September/October school holiday periods to be agreed between the parties and in default of agreement to be the six days that end on the second Sunday of the holidays;
(iii)
From 9.00am on 20 December until 4.00pm on
25 December;
(iv)For one period of seven days in January 2003 at times to be agreed between the parties and in default of agreement to be the seven days that end two clear days before C commences school. This contact is to be in substitution for, not in addition to, one of the weekend contact periods that would otherwise take place in this period;
(3)That when C commences school:
(a)Except in school holidays each alternate weekend from 5.00pm Friday to 6.00pm Sunday;
(b)For the first half of all school holidays that commence in odd numbered years;
(c)For the second half of all school holidays that commence in even numbered years;
(d)That not withstanding any other Order C will have the weekend with the father on Father’s Day and if this weekend would otherwise not have been a contact weekend the father will forego his weekend contact on the following weekend and thereafter the usual weekend contact will continue.
(4)That not withstanding any other Order if Mother’s Day occurs on weekend contact when C would otherwise be exercising contact with his father, weekend contact for that weekend will be suspended and make up contact will occur the following weekend, with the usual weekend regime to continue thereafter.
(5)That not withstanding any other Order, the parent with whom C is living or exercising contact on his birthday each year will facilitate C spending 4 hours with the other parent, or 2 hours on a school day, at times to be agreed and failing such agreement to occur from 4.00pm until 6.00pm if a 2 hour contact period and from 4.00pm until 8.00pm if a 4 hour contact period.
(6)That until the protection order against the father is lifted C’s paternal grandfather will be responsible to delivering C to each of the parents for the purposes of these Orders.
(7)That the father will notify the mother as to where the child is exercising contact if that contact involves staying overnight away from Canberra.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Brewster FM
Associate:
Date:
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