J & R
[2007] FMCAfam 181
•18 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| J & R | [2007] FMCAfam 181 |
| FAMILY LAW – Relocation – impact of travel on meaningful relationship. |
| Family Law Act 1975, ss.60CC, 65DAA |
| A v A: Relocation Approach (2000) FLC 93-035 AMS v AIF [1999] HCA 26, (1999) 199 CLR 160 Hall (1979) FLC 90-713 Matthews v Kennedy [2007] FMCAfam 26 R and R: Children’s Wishes (2000) FLC93-000 U and U (2002) FLC 93-112 |
| Applicant: | J |
| Respondent: | R |
| File Number: | SYM5566 of 2006 |
| Judgment of: | Altobelli FM |
| Hearing date: | 6 March 2007 |
| Date of Last Submission: | 6 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 18 April 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jamieson |
| Solicitors for the Applicant: | Zerrin Jamieson |
| Counsel for the Respondent: | Mr Macpherson |
| Solicitors for the Respondent: | R & M Legal |
| Solicitor Advocate for the Independent Children’s Lawyer: | Mr Meehan |
ORDERS
The Child live with the Mother.
The parents are to have equal shared parental responsibility for the long term care, welfare and development of the Child.
Each party shall be responsible for making decisions concerning the day to day care, welfare and development of the Child at those times when the Child is spending time with that party.
The Child spend time with the Father as follows:
(a)Subject to Order 5(a) From after school Friday to before school Monday each weekend.
(b)If a period when the Child is to spend time with a parent in accordance with this Order occurs on a day adjacent to a public holiday, it shall be extended to include the public holiday. If the public holiday is a Friday it shall start at the usual time on the Thursday. If the public holiday is a Monday it shall conclude at the usual time on the Tuesday.
(c)In even numbered years for the first half of all gazetted New South Wales school holidays, and in odd numbered years for the second half of all gazetted New South Wales school holidays.
(d)On the Child’s birthday as agreed between the parties but in the absence of such an agreement, from after school until 6.30pm if the birthday falls on a school day.
(e)In odd numbered years from 3.00pm on Christmas Day until 5.00pm on Boxing Day and in even numbered years from 5.00pm Christmas Eve until 3.00pm Christmas Day.
(f)On father’s Day each year from 9.00am until 4.00pm.
(g)Reasonable telephone communication as agreed between the parties but not more than twice per week unless initiated by the Child.
(h)Such further time as the parties agree.
Notwithstanding Order 4 the Child spend time with the Mother as follows:
(a)One weekend of every month as agreed between the parties but failing agreement, on the last weekend of each month, and otherwise on the same terms as Order 4(b) above.
(b)Mother’s Day each year from 9.00am until 4.00pm.
(c)In odd numbered years for the first half of all gazetted New South Wales school holidays, and in even numbered years for the second half of all gazetted New South Wales school holidays.
(d)Reasonable telephone communication as agreed between the parties, but not more than twice per week, unless initiated by the Child.
(e)In even numbered years from 3.00pm on Christmas Day until 5.00pm on Boxing day and in odd numbered years from 5.00pm Christmas Eve until 3.00pm Christmas Day.
Neither party is to relocate the Child more than an hour’s drive from N without the written consent of the other party or the approval of the Court.
Both parties are restrained from speaking or permitting any other party to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the Child’s hearing.
That each party authorise any relevant health or educational professional to provide the other with copies of school reports and any other information or documents relating to the health and education of the Child.
Each party is to take all reasonable steps to keep the other party informed of any significant developments in relation to the health and education of the Child.
Each party will provide the other with twenty-eight (28) days written notice of their intention to change any of the following particulars:
(a)Home telephone number; or
(b)Address; or
(c)The Child’s schooling arrangements.
Neither party is to consume alcohol to excess while the Child is in that person’s care, or allow the Child to come into contact with persons who have consumed alcohol to excess.
Both parties are to contribute equally towards the costs of the Independent Children’s Lawyer.
Both parties are to endure that the Child attends his weekend sporting commitments.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM5566 of 2006
| J |
Applicant
And
| R |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter related to the parenting orders that should be made in relation to A born who is currently 6 years old. A is a very fortunate boy. He has a mother and father who both love him very much and who are very much concerned for his best interests and welfare. Even though they cannot agree on the precise details of how much time he should be spending with each parent, they are clearly committed to the principle of shared parenting.
Discrete issues for determination
At the commencement of this case I was informed by counsel for both parents that, in fact, I was only going to be asked to adjudicate on a few discrete issues. This was because the parents, capably assisted by their solicitors and barristers, had managed to reach agreement on the vast majority of the issues that might otherwise have been in dispute. The fact that the parents have reached agreement on so many issues really does reflect well on their parenting capacity and confirms in my mind what a fortunate boy A is.
Accordingly, the specific issues I am asked to decide are as follows:
a)Should A spend time with his father from after school Friday to before school Monday as his father prefers, or should it be through to Sunday evening as his mother prefers?
b)Should A spend time with his father every weekend during the school term, as preferred by his father, or should it be every weekend except the last weekend of the month, as preferred by his mother?
c)Should A’s mother be restrained from moving with A more than one hour’s drive from N as his father prefers, or should any restraint allow the mother to relocate to S, as the mother prefers?
Background
A’s mother is L is 35 years old, and currently lives in NSW, and is engaged to be married. L is the Applicant in this case. A lives with her during the week and spends time with his father from after school Fridays to Sunday at 5pm each week.
A’s father is T who is 36 years old and currently lives near N. He is married to R who has two sons from a previous marriage.
A’s parents separated in about April 2003, and whilst he lived with his mother he regularly spent time with his father. Indeed this shared parenting arrangement worked for several years without any need for court orders until 11 August 2006 when interim orders were made, the effect of which were to require both parents not to move outside of the N district.
Material before the Court
I had the benefit of much useful material to help me decide this case. Mr Jamieson who was the mother’s counsel, and Mr Macpherson who was the father’s counsel, both provided extensive and very helpful case outline documents. I had available to me a comprehensive report dated 2 March 2007 from Dr S, the court appointed Child and Adolescent Psychiatrist. I had the benefit of the very helpful submissions of Mr Meehan who was the Independent Children’s Lawyer. I was also able to read all of the affidavits filed by or on behalf of both parents.
The parents decided that after I heard the evidence of Dr S, and each counsel had the opportunity to ask her questions, the matter would then proceed by way of submissions only. In other words the parties decided that having regard to the relatively narrow ambit of the dispute between them, and the potential harm to their relationship as parents that might be brought about through cross-examination, it was better that I decided the case based on all the material before me, even though some important aspects of the evidence would be untested. This meant that whilst all of the evidence was important, even they recognised that Dr S’s evidence was going to be very important.
Evidence of Dr S
Dr S’s comprehensive report refers to all of the materials she had available to her in conducting her assessment, and lists the conferences she had with all of the relevant people in this case. Of course her written report was prepared before she became aware of the considerable narrowing of the ambit of the dispute between the parties.
Dr S’s summary following her evaluation of the relevant persons is found at page 12 where she states:
The child appears to have a secure attachment to all family members apart from the mother to which he may have an insecure, anxious/ambivalent attachment. This is evidenced by his relative anxiety in her presence and his sensitivity to her mood and comparative role reversal with the child wanting to remedy the mother’s mood. He frequently had to jump up and give her hugs and kisses and appeared edgy. This was in stark contrast to his behaviour with the father and the other family members with whom he was extremely relaxed and secure.
In the father’s evidence, he raises concerns about the mother’s past mental health issues. Dr S’s opinion about this issue is found at page 17 of her report:
Although the mother has had some mental health issues in the past and has some personality traits this does not make her a completely inadequate parent. There are no grounds to remove the child from her care or change residence to the father’s family. I believe that if residence was to be changed that the child would suffer.
Dr S was obviously positive about and supportive of the current shared parenting arrangement, and was concerned about the impact on this of a relocation to S. For example at page 17 she states:
It was clear that in the past an amicable arrangement was in effect and this shows that it can be that way again in the future. This would be ideal for the child’s social and emotional development. I do not believe that with the mother and her partner living in S that the contact arrangements could be easily facilitated and that this would unnecessarily put a strain on the families in keeping contact regular. I therefore would not recommend the mother to move more than an hour from N. This would facilitate the child to be able to participate in weekend sporting programs even though he was living with his father on the weekend.
Dr S’s recommendations were quite clear and forthright in her written report. She states at page 18:
On the basis of the assessment and the affidavit material, contacting the health care professionals involved I would suggest that both families are of equal importance to this child. I would not suggest that residence be shifted from the mother to the father at this stage. I do not believe that her mental state is currently unstable and there are no grounds to remove him currently.
I do not think that the mother should move more than an hour’s drive from N. This could include the S or perhaps the I areas. It would appear unrealistic for contact to be maintained if the child were to be living in S.
The handover on Sunday evenings has not been working well and I would suggest that they return to the previous arrangement of the father or stepmother dropping A to school on Monday morning. This alleviates the parties having any contact with each other apart from telephone or email.
I do not believe that increasing the weekend contact with the mother would be beneficial to the child as it would get him out of a routine and prevent him from the possibility of doing a regular Saturday morning activity such as sport which will be important for him over the next few years.
The examination of Dr S commenced with Mr Meehan, the Independent Children’s Lawyer, explaining to her the points of agreement, and issues in dispute. He also explained to Dr S that the mother’s proposal to relocate now involved moving either to in S suburbs, rather than in S’s northern suburbs. Dr S’s views were, however, unchanged. Setting the tone for the rest of her oral evidence she was quite resolute in her view that the distance would create difficulties in maintaining the regular pattern of shared parenting, and that A should not be spending long periods of time travelling. Mr Meehan explored with Dr S the importance of the mother maintaining her mental health and being stable, something that would be enhanced through her relationship with her fiancé and being able to live happily together where they chose to. Dr S acknowledged the importance if the mother’s mental health and emotional stability, but also stated that whilst there was no certainty that the mother’s relationship will remain stable, there was more certainty in the proposition that if parents remain proximate to each other, the prospects for the well-being of a child are clearly enhanced. Dr S also remained clearly of the view that changeovers should be on Mondays rather than Sundays as there would be less opportunity for conflict between the parents, even if there were some logistical challenges in implementing such an arrangement. She also emphasised the importance to A of continuity of weekends with his father and suggested that spending a weekend with his mother was not going to be that helpful.
Mr Macpherson’s examination of Dr S explored the fragility of the relationships the mother formed with the men in her life, the potential impacts of this fragility on her relationship with A, thus leading to the importance of A having a meaningful relationship with and involvement in his father’s life, and vice versa. Dr S stressed the importance to A of his father, and the strength of the relationship with him. She explained that her recommendation of moving no more than one hour from N was designed to preserve such a relationship. Dr S also mentioned the importance to A, or likely future importance to him, of participation in team sports, and this was one reason for ensuring continuity of weekends with the father.
On behalf of the mother, Mr Jamieson carefully probed Dr S on the practical and theoretical differences from A’s perspective of travelling up to one hour each way in order to spend time with his parents, and travelling, for example, up to two hours each way with the potential for a changeover half way. Despite Mr Jamieson’s patient and persistent probing, Dr S could not be persuaded to prevaricate even partially. She was resolute – an hour is a long time for a six year old boy – more than an hour makes it difficult to sustain long-term ongoing relationships. She emphasised the increased risk of problems when travelling times are increased. Dr S acknowledged that she was not suggesting that all six year old boys should not travel more than one hour to see the other parent. To paraphrase her views about this: “Sometimes time in a car is good time. Sometimes it’s a pain. It’s the whole package, not just part of it.” I took her comments to mean that the real issue about travel was not just the impact of travel to see a parent on one isolated weekend, but the combined, cumulative impact of travel time sustained over 12 or 13 weekends during an entire school term. I found her views quite persuasive in this regard.
Mr Jamieson also sought to examine Dr S on the possibility that not allowing relocation would impact on the mother’s relationship with her partner, and that this impact had, perhaps, not been adequately considered by Dr S. Dr S observed, however, that the mother and Mr N had not married, they had not purchased property in S, and that mere hypotheticals about what might happen to the Mr N and the mothers’ relationship with each other needed to be contrasted to the non-hypothetical ie the concrete need for A to have strong relationships with both parents. In summary, not even Mr Jamieson could shift Dr S on the views she had expressed.
At the end of Dr S’s examination, I formed the clear view that she was an impressive witness whose professional views could not, for the most part, be shaken. The only aspect of her evidence I thought could have been tested more in examination related to her view that A should spend every weekend with his father during the school term.
Dr S seems to have based this view on the need for continuity, and the future likelihood that A would play sport on the weekends. And yet one weekend a month with his mother as opposed to the father is hardly, with respect to the learned doctor, likely to disrupt continuity. Even if A does participate in weekend sporting commitments, there is no reason not to require his mother to take him there. A weekend with his mother creates opportunities for the mother and A to engage in a range of activities that might not otherwise be possible during the week, or even during the school holidays.
The submissions by counsel
Mr Meehan as the Independent Children’s Lawyer made submissions that were, in effect, at odds with the evidence of Dr S. His submissions were that, from A’s perspective, the emotional stability of his mother was extremely important, and that stability is tied to her relationship with N, as well as where she lives. Mr Meehan diplomatically suggested that Dr S had over-emphasised the issue of the child spending time in the car travelling between parents whilst under-emphasising the importance of the mother’s emotional stability. He urged me to take a very practical approach to the issue and to move, in effect, “beyond the intellectual to reality.” He supported an outcome whereby the mother could move to S, that travel arrangements would be shared between the parents, and that because of the logistical issues, A’s time with his father should end on the Sunday night.
Mr Jamieson on behalf of the mother also urged me to use my own experience in this matter and thus, in effect, to filter Dr S’s concerns through the lens of experience. He supported Mr Meehan’s proposal that the mother be permitted to move to the S, with shared travel arrangements as between the parents, and with A’s time with the father ending on Sunday nights. He emphasised the direct benefits to A of living in S, particularly having regard to the presence of an extended family for the mother in S, the support of Mr N as well as financial benefits.
Mr Macpherson on behalf of the father sought to reinforce Dr S’s report on the basis that she is the independent expert whose evidence was tested by examination and was not found to be wanting in any respect. He emphasised that her recommendations were unequivocal, and that she steadfastly adhered to them during her examination. He submitted that Dr S’s report was clearly based on the past care arrangements in relation to A; the strength of his relationships with both parents; the concerns about how the mother’s move away from N might impact on the father’s relationship with A; the strength of the relationship A has with other members of the broader family including Harley; as well as the impact of travel
Discussion
One of the major issues in this case is the weight I should place on
Dr S’s report. This is particularly the case because the parties chose to conduct the matter on the basis of examining Dr S only, and otherwise making submissions based on the evidence, including the untested evidence of the parties and their witnesses.
The Full Court of the Family Court’s decision of Hall (1979) FLC 90-713 contains an authoritative statement about how reports such as Dr S’s should be treated in proceedings such as this one. The relevant passage is found at pp 78,819-20:
In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a) There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. Wood (1976) FLC ¶90-098 at p. 75,447; Harris and Harris (1977) FLC ¶90-276; (1977) 29 FLR 285.
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e) Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
(g) It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.
(h) Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation…
(i) Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied…
I observe that in this case Dr S’s report and evidence was tested by each of the parties, but she remained resolute in her recommendations. Insofar as Dr S’s report depended on assessments of the parents or other witnesses, each party had the opportunity to, firstly, challenge those assessments and, secondly, to actually call the parents or other witnesses so that the assessments could be found deficient. The parties chose not to.
A peculiar feature of this case is that not only the mother but the Independent Children’s Lawyer urged me to depart from Dr S’s recommendations in part (about Sunday nights, and relocation) but not in whole (because Dr S supported no change in residence). I was urged to take a practical approach, and not a theoretical approach – the implication being that Dr S’s approach as regards time travelling for A was an impractical one.
I think I should be very careful, indeed very reluctant, to substitute my own views for those of Dr S on those central issues of her expert evidence that remain contentious between the parties. Dr S’s concerns about how distance and travel time creates difficulties in maintaining the regular pattern of shared parenting for A seem to be well-founded and understandable concerns and consistent with the experience of this Court. Her desire to remove the parents from having direct physical contact with each other, and thus minimise the potential for conflict between them, is also well-founded and understandable. The fact is that her report is and remains highly influential in terms of the decision I make in this case. If I were bold enough to substitute my views for hers as to the impact of travel time on A, and the medium-to-long term sustainability of lengthy travel on the shared care arrangement that exists, why should I accept any part of her evidence including the recommendation that A remains living with his mother? Putting aside this hypothetical, Dr S’s evidence is the only tried, tested and uncontroverted evidence in this case. I must give it the substantial weight it deserves having regard to this.
To relocate or not?
The mother clearly conducted her case as a “relocation case” in the popular sense of the phrase. Mr Jamieson for the mother referred me to and relied on in submissions a number of authorities including the often cited cases of AMS v AIF [1999] HCA 26, (1999) 199 CLR 160; A v A: Relocation Approach (2000) FLC 93-035 and U and U (2002) FLC 93-112. He stressed the factual matters supporting a relocation including that the mother had no family or ties in N and had no work or employment prospects in this area, and that she was in an economically poorer situation there. By contrast, he argues, the mother and her fiancé intended to purchase property in S, she had prospects of finding employment there, and there was family support available there for the mother. The difficulty, of course, is that none of this evidence was tested, and, in any event, the mother’s proposal as to where she was going to live in S was in a state of flux. Whilst it was clear she was no longer proposing to move to S’s northern suburbs, it was by no means clear whether she was proposing to move to S’s far south, or somewhere further north but still in S’s southern suburbs. This meant I had no clear evidence about where A would live, where he would go to school, what his curricular and extra-curricular activities would be etc. Against all of this uncertainty of course, I had the very clear and certain evidence of Dr S that A needed to reside within an hour of N for the reasons discussed above.
In my recent decision of Matthews v Kennedy [2007] FMCAfam 26, I discussed the applicable law relating to relocation since 1 July 2006 and I incorporate that discussion into these reasons. I observe that neither party in this case sought to rebut or negate the presumption of equal shared parental responsibility and, indeed, I could see no evidence to indicate that this was likely. This means I need to consider equal time (not sought by either party) or substantial and significant time as defined in s.65DAA(3). The proposal by both parents arguably satisfies the definition of substantial and significant time having regard to the inclusion of at least Fridays in both proposals. There is no real issue of reasonable practicality for the purposes of s.65DAA(5) because whether or not relocation is permitted substantial and significant time is still, arguably, reasonably practicable having regard to the mother’s proposal. Ultimately there are competing proposals for a substantial and significant time arrangement that is reasonably practicable. I must decide which is in A’s best interests.
This, of course, is determined by reference to s.60CC, having regard to the specific issues I was asked to determine in this case. I find that A has a meaningful relationship with both parents: s.60CC(2)(a). I accept the evidence of Dr S that if I allowed the mother to relocate to S, the impact of this would be, over time, to potentially undermine A’s relationship with his father. I find that there are no issues of abuse, neglect or family violence in this case that have an impact on the issues I am asked to decide: s.60CC(2)(b).
To the extent that A has expressed views to Dr S in this case, for the purposes of s.60CC(3)(a) his maturity and level of understanding, and the other matters referred to in Dr S’s report (particularly at pp13-15) all suggest I give minimal weight to those views. This is also consistent with the Full Court’s decision in R and R: Children’s Wishes (2000) FLC93-000. I find that A has a strong relationship with both of his parents and the other significant persons referred to by Dr S in her report: s.60CC(3)(b). The mother’s proposal to relocate presents the greatest chance for these relationships to be adversely affected. I find that both parents are willing and able to facilitate and encourage a close and continuing relationship between the child and the other parents: s.60CC(3)(c). Whilst it is a matter of degree only, the mother’s proposal presents, according to the evidence of Dr S, the greatest future potential for that continuing relationship to be undermined.
For the purposes of s.60CC(3)(d), I do have concerns about the effect on A of the changes proposed by his mother. Dr S expresses her concerns about these changes in her report and in her evidence. There is the clear threat to disruption of existing relationships. I also do not have any clear evidence from the mother about where, exactly, she proposes to relocate to and the detailed living arrangements that would pertain to A. In the face of that uncertainty I cannot possibly prefer the unknown to the known.
Section 60CC(3)(e) refers to the practical difficulty associated with A spending time with both parents. The existing arrangements are clearly working well. On the mother’s proposal, however, A would clearly be spending at least two hours travelling to and from spending time with a parent. I find for the reasons extensively referred to by Dr S in her evidence that the mother’s proposal would be impractical from A’s perspective and potentially threatens his right to maintain a relationship with his father. I find that both parents have the capacity to provide for A (s.60CC(3)(f)), and that there are no ss.60CC(3)(g),(h),(i),(j) or (k) factors that are relevant to my decision that have not been considered elsewhere.
On balance, having regard to these matters, I find that it is not in the best interests of A that his mother be permitted to relocate to S. She will be permitted to relocate within one hour of N, and that may well provide her with some, if not many, of the benefits that she hoped for in moving to S.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Lisa Molloy
Date: 18 April 2007
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