Jardine & Overton

Case [2021] FCCA 1574

FEDERAL CIRCUIT COURT OF AUSTRALIA

Jardine & Overton [2021] FCCA 1574

File number(s): SYC 2511 of 2012
Judgment of: JUDGE BECKHOUSE
Date of judgment: 13 July 2021
Catchwords: FAMILY LAW – PARENTING – relocation – where the mother seeks to relocate the child to Perth, Western Australia – where the mother has been offered employment in Perth – where the father opposes relocation – where COVID-19 impacts plans – mother’s right to freedom of movement – best interests of child– relocation not permitted.  
Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA
Cases cited:

A v A:Relocation Approach (2000) 26 FAM LR 382

AMS & AIF (1999) 24 Fam LR 756

Hardie & Capris [2010] FamCA 1046

Collu & Rinaldo [2010] FamCAFC 53

Morgan & Miles [2007] FamCA 1230

MRR & GR (2010) 263 ALR 368

S & W [2012] FMCAFam 1127
Number of paragraphs: 102
Date of hearing: 9 July 2021
Place: Sydney
Counsel for the Applicant: Mr Harper
Solicitor for the Applicant: Clinch Long Woodbridge Lawyers
Counsel for the Respondent: Mr Maurice
Solicitor for the Respondent: Fox & Staniland Lawyers

ORDERS

SYC 2511 of 2012
BETWEEN:

MS JARDINE
Applicant
AND:

MR OVERTON
Respondent

ORDER MADE BY:

JUDGE BECKHOUSE

DATE OF ORDER:

13 JULY 2021

THE COURT ORDERS THAT:

1.The Orders of 21 November 2013 remain in force.

2.The mother’s application filed on 4 May 2021 is dismissed.

3.Within 21 days of today’s date, the father shall provide to Chambers written submissions in relation to costs. If no submissions are received the matter will be finalised.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Jardine & Overton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

INTRODUCTION

  1. These are parenting proceedings with respect to the child X born 2008 who is aged 12.

  2. The mother is proposing to move to Perth, Western Australia with X, as she has been offered a more secure position of employment. The father is opposed to this and wants the current parenting arrangement to stay in place.

  3. These reasons explain why I have decided that X should remain living in Sydney, NSW with the mother.

    ISSUES

  4. The issues requiring determination are:

    (a)Whether X is permitted to relocate to Perth and if so;

    (b)What time should the father spend with X?

    BACKGROUND

  5. The mother was born 1967 and is aged 53 years.

  6. The father was born 1967 and is aged 53 years.

  7. The parties commenced a relationship in January 2004 and cohabitation in June 2005.

  8. X was born 2008.

  9. The parties separated on 21 May 2010.

  10. On 2 May 2012 the father commenced proceedings in the Family Court seeking final property orders. The matter was transferred to the Federal Magistrates Court (as it was then known) on 25 January 2013.

  11. On…

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AGLC
Jardine & Overton [2021] FCCA 1574
Case
[2021] FCCA 1574
Decision Date

CaseChat Overview and Summary

In the matter of *Jardine & Overton*, heard by Judge Beckhouse, the applicant mother sought permission to relocate with the child, X, to Perth, Western Australia, due to a job offer. The respondent father opposed this relocation. The dispute centred on whether the child's best interests would be served by permitting the move, which would significantly alter the existing parenting arrangements.

The court was required to determine two primary legal issues: firstly, whether the mother should be permitted to relocate with X to Perth, and secondly, if relocation were permitted, what specific time X should spend with the father. The court considered the mother's right to freedom of movement against the paramount consideration of the child's best interests, particularly in the context of maintaining meaningful relationships with both parents.

Judge Beckhouse reasoned that while the mother's desire for financial independence and her concerns about her current employment situation were valid, the evidence did not sufficiently demonstrate that relocation was in X's best interests. The court noted X's expressed desire to remain in Sydney and maintain his existing relationships, including with his father and half-siblings. The judge also highlighted the strong and positive relationships X had with both parents and the father's significant involvement in X's life, including coaching his sports team. The court found that the potential detriments to X of relocation, such as disruption to his established life and relationships, outweighed the potential benefits to the mother.

Consequently, the court ordered that the existing parenting orders of 21 November 2013 remain in force, and the mother's application to relocate with X to Perth was dismissed. The father was to provide written submissions regarding costs within 21 days.

Orders

Orders of the court

SYC 2511 of 2012

BETWEEN:

MS JARDINE

Applicant

AND:

MR OVERTON

Respondent

ORDER MADE BY:

JUDGE BECKHOUSE

DATE OF ORDER:

13 JULY 2021

THE COURT ORDERS THAT:

1. The Orders of 21 November 2013 remain in force.

2. The mother’s application filed on 4 May 2021 is dismissed.

3. Within 21 days of today’s date, the father shall provide to Chambers written submissions in relation to costs. If no submissions are received the matter will be finalised.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The issues requiring determination are:(a)Whether X is permitted to relocate to Perth and if so;(b)What time should the father spend with X?BACKGROUND The mother was born 1967 and is aged 53 years. The father was born 1967 and is aged 53 years. The parties commenced a relationship in January 2004 and cohabitation in June 2005. X was born 2008. The parties separated on 21 May 2010. On 2 May 2012 the father commenced proceedings in the Family Court seeking final property orders. The matter was transferred to the Federal Magistrates Court (as it was then known) on 25 January 2013. On 23 October 2013 the parties entered into a Binding Child Support Agreement. Pursuant to this agreement, the father provides child support through payment of X’s school fees and related expenses. The mother maintains X’s private health insurance. The agreement stipulates that the father pay child support as assessed by the Child Support Agency in the event that the mother’s gross income falls below $30,000 per annum. On 21 November 2013 final consent orders were made by Judge Scarlett with respect to both parenting and property. Notably, the parenting orders provide for equal shared parental responsibility, for X to live with the mother and spend time with the father for two nights each week, half the school holidays and on special occasions. The mother commenced working at Employer A as a manager in January 2015. She was promoted to her current role in early 2019. It seems that since 2018 Employer A has responded to budgetary shortfalls by offering redundancies. At a work meeting in December 2020 the mother was advised that her team would be restructured and redundancies made available. The mother provides evidence that she has unsuccessfully applied for a range of roles commensurate with her experience since 2018. In February 2021 the mother applied for the position of manager at Employer B in Perth and advised the father that she had done so. They communicated further on the issue. On 14 March 2021 the father sent an email to the mother indicating that he did not agree to the proposed relocation. His position was reaffirmed in a letter sent by his solicitor to the mother on 16 March 2021. On 24 March 2021 the father was contacted by a mediator arranged by the mother about the possibility of participating in family dispute resolution to resolve the matter. The father declined to participate. On 14 April 2021 the mother was formally offered the position at Employer B. On 21 April 2021 the mother was advised by Employer A that her position was being disestablished and her role would be made redundant. The mother commenced proceedings on 4 May 2021 by way of an Initiating Application seeking to relocate with X to Perth. The matter was placed in the National COVID-19 list and was brought before a Registrar. The Registrar made orders for the parties to attend a Child Inclusive Conference and listed the matter for interim hearing before me on 11 June 2021. The interim hearing did not proceed on 11 June 2021 because the legal representatives submitted that they would prefer that the Court make a final determination on the issue. The matter was set down for a 1 day final hearing on 9 July 2021 on the basis that it could be contained to one day.

Evidence

Evidence Before The Court

The agreed facts are that: (a)These are high functioning parents.(b)There are no risk issues.(c)To date, the parents have been able to resolve parenting disputes in an amicable matter.(d)X has thrived in their care.(e)X has a positive relationship with both parents.(f)X knows that he is loved by both his parents.(g)X loves both of his parents.(h)X knows that both of his parents want to do what is best for him.(i)If the mother is not permitted to relocate to Perth with X, she will remain in Sydney.THE POSITION OF THE PARTIES AND THE EVIDENCE Both parties were legally represented. Cross-examination of both parties occurred. Each of the parties provided Case Outline Documents setting out the material relied on. I have also had regard to the material marked and tendered as exhibits. The Orders sought by the mother are annexed to her Case Outline Document filed and dated 7 July 2021. In summary she seeks:(a)that she be permitted to relocate with X to Perth, Western Australia.(b)that X spend time with the father in Sydney as agreed between the parties and failing agreement:(i)for six weekends during the year;(ii)half of the Term 1, 2 and 3 school holidays; and(iii)that the Term 4 school holidays be shared equally in alternate years. The father’s proposal is contained in his Response filed 31 May 2021. He seeks that the mother’s application be dismissed and an order be made for costs. The actual status of the mother’s employment and job security was the source of some controversy during the hearing. On 9 June 2021 the legal representatives for the mother provided to the father a letter from Employer A. That letter confirmed that a workplace restructure proposal affecting the role held by the mother had been approved and her current position “will be redundant”[1].[1] Exhibit 1, p.25. When a subpoena was issued to Employer A and the same letter produced, it became apparent that a paragraph had been omitted from the letter served on 9 June 2021. The letter had been edited by the removal of an additional paragraph. That paragraph indicated if the mother was unsuccessful in securing another position in the workplace restructure, she would then be provided with a formal notice of retrenchment on 5 July 2021. She was unable to produce a formal notice of retrenchment at the time of the hearing. The mother gave honest evidence about her removal of the paragraph from the letter. She admitted cutting out the paragraph and rescanning it because “it was not true”. These actions do not bode well for the mother. It was put to her that it amounted to forgery. While I found her evidence on the issue to be truthful, the alteration of the letter left me with doubts about the honesty of the evidence she gave on her ability to find other suitable roles either with her current employer, or outside of her organisation. And this was a problem because her case relies on me accepting the proposition that she has little alternative but to relocate to Perth with X.

Decision

Reasons for decision

If X is not permitted to relocate to Perth the detriments would be that:(a)The mother may become unemployed or have to settle for a lessor paid job. In that event she fears the impact this will have on her ability to meet her current ongoing expenses. In that event she foreshadows the sale of her home where she lives with X. This would potentially see X living in a suburb much further away to the father or his school. Currently X can walk home from school to the father’s home.(b)The parties entered into a Binding Child Support Agreement in 2013. Under the Agreement the mother receives no child support from the father but in lieu he meets all of X’s educational expenses. The mother foreshadows that with change to her financial circumstances she may need to seek a variation of the Agreement.(c)The mother suffers from debilitating migraine headaches brought about by stress. She currently reports suffering them 4 -6 times per month with them varying from 6-18 hours in duration. She is concerned that upon being made formally redundant her stress levels will increase and this will impact negatively on X.CONCLUSION I find having considered, weighed and assessed the evidence and balanced the best interests of the child with that of the mother’s freedom of movement that X not be permitted to relocate to Perth. Relocation cases are inherently difficult because ultimately one party will feel aggrieved by the decision and feel that some of their fundamental rights are compromised. This is certainly the situation here for X’s parents. The reflections of McGuire FM (as he was then known) in S & W [2012] FMCAFam 1127 at [20] are worth including here:…proposals of the parents are often finely balanced and see two otherwise good parents unable to negotiate and compromise what can be a life-changing issue for them and their child. Changes in the practical nature of relationships between children and parents will inevitably result from a relocation. One parent will assume a more primary role and time with a remaining parent becomes less frequent if a relocation takes place. Matters of communication, cooperation and sharing and travel come to the fore…Whatever determination a Court ultimately makes will almost certainly leave one of the parents… aggrieved. If a relocation of a child takes place, then the remaining parent will suffer feelings of loss and perhaps bitterness. There will need to be a significant adjustment in that parent’s own life. On the other hand, an order which effectively prevents a parent from relocating with the child will similarly cause grief, unhappiness and adjustment. This too is a finely balanced case. I have no doubt that the mother, who has acted in good faith, will resent the father’s opposition to her application and be bitterly disappointed that he has deprived her of the opportunity to gain greater financial independence in Perth. One of the mother’s biggest concerns is her financial security and the negative impact on her living arrangements, mental health and wellbeing should her financial security be eroded. But ultimately there was little evidence before me on this.

Ratio Decidendi

Legal Principle Established

I find that it is in the best interests of X for these meaningful relationships to be maintained and nurtured.ADDITIONAL CONSIDERATIONS X is 12 years old and is acutely aware of the parental conflict on this issue. Counsel for the father argued that “X does not want to relocate to Perth”. I am not sure his views are that equivocal. X indicated to the Family Consultant that his ideal situation would be to stay in Sydney and for his mother to find a good job here.[9] [9] CIC Memorandum (n 3) paragraph 18. He has expressed a wish to continue to spend time with his father and siblings if he moved to Perth, including joining them on camping trips. The mother indicated that she had discussed the potential move with X who said, “I don’t want to live with Dad but I do want to keep seeing him and my half siblings. I want to stay living with you and so I’m happy to move to Perth.”[10][10] Affidavit of Ms Jardine filed 4 May 2021, paragraph 33. If the Court permits the mother to take X to Perth, he would prefer to move as soon as possible, before his relationships with new friends develops further. X’s views are an important consideration. X has tried carefully to navigate sensitively, between his parents on this issue. And his views cannot be said to provide unequivocal support for either option. The Family Consultant observed that: “[b]oth parents acknowledge the love and care that the other provides for X. They described a history of working together and resolving conflict. Both parents agreed that the current arrangements had worked well for the past 10 years.”[11] [11] CIC Memorandum (n 3) paragraph 7. X enjoys a close relationship with both his parents. The mother is his primary caregiver and his preference is to remain living with her. There was absolutely no criticism made in the hearing about the mother’s parenting of, or relationship with X. Nor would this have been appropriate. She has done, and will continue to do, an excellent job as his primary carer and mother. The father has remarried. There is no dispute that X enjoys an affectionate and loving relationship with his father. His bond is also strong with the father’s new wife, Ms E and his two brothers F who is 3 ½ and G who is 22 months old. Of his brothers, X has said to his father, “the highlight of my day is when F and G have cleaned their teeth and they cuddle and kiss me before they go to bed”.[12] Annexed to the father’s affidavit is an eloquent and affectionate memoir written by X about the day he met F at the hospital.[12] Affidavit of Mr Overton filed 31 May 2021, paragraph 6 (“Father’s Affidavit”). The father gave evidence that he was an active participant in X’s primary school activities and attended parent teacher interviews and assisted X to complete assignments. X has a dedicated study space at the father’s home and the father is concerned that he cannot provide the same support and oversight to X if he were to move to Perth. Impressively, the father has also been the coach of X’s sports team for five seasons. This has meant that during the sports season X sees his father up to twice each week for training sessions as well as for the game on Saturdays.