Jobe and Dakin
[2010] FMCAfam 10
•12 January 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JOBE & DAKIN | [2010] FMCAfam 10 |
| FAMILY LAW – Children – mother wishes to relocate the residence of child from Tasmania to Melbourne. |
| Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 65DAA Federal Magistrates Court Rules 2001 (Cth), r.15.07 |
| P & P [2006] FMCAfam 518 Morgan & Miles (2007) FLC 93-343 AMS v AIF; AIF v AMS (2007) FLC 93-343 A v A; Relocation Approach (2000) FLC 92-035 U v U (2002) 211 CLR 238, (2002) FLC 93-112 Bolitho and Cohen (2005) FLC 93-224 R and R: Children's wishes (2000) FLC 93-000 H v W (1995) FLC 92-598 W and W: Abuse Allegations; Expert Evidence (2001) FLC 93-085 |
| Applicant: | MS JOBE |
| Respondent: | MR DAKIN |
| File Number: | LNC 476 of 2009 |
| Judgment of: | Roberts FM |
| Hearing dates: | 19 & 20 November 2009 |
| Date of Last Submission: | 20 November 2009 |
| Delivered at: | Launceston |
| Delivered on: | 12 January 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Weil |
| Solicitors for the Applicant: | Berry Family Law |
| Counsel for the Respondent: | Mr Tucker |
| Solicitors for the Respondent: | Grant Tucker |
ORDERS
That MR DAKIN (“the Father”) and MS JOBE (“the Mother”) have equal shared parental responsibility for [X] born [in] 1998 (“the child”).
That the child is to live with the Mother.
That the Mother has leave to relocate with the child to Melbourne, Victoria.
That the child is to spend time with the Father as agreed between the Father and the Mother, but failing agreement as follows:
(a)In Tasmania for half of all the child’s school holidays, being the first half of all such school holidays that start in even numbered years and the second half of all such school holidays that start in odd numbered years;
(b)In Tasmania for not less than three weekends during each school term;
(c)By telephone, Skype or internet video conferencing for reasonable periods at reasonable times.
That the Mother is to book and pay for the child’s return air travel between Melbourne and Launceston in order to comply with paragraphs (a) and (b) of Order No. 4 hereof.
IT IS NOTED that publication of this judgment under the pseudonym Jobe & Dakin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
LNC 476 of 2009
| MS JOBE |
Applicant
And
| MR DAKIN |
Respondent
REASONS FOR JUDGMENT
In my opinion, the difficulties inherent in applications to relocate children could not have been better stated than by Brown FM in P & P[1], when he said:
Relocation cases are invariably very difficult for all concerned, involving as they do two competing and irreconcilable claims of right. These claims of right arise when the parents of a child have separated and for legitimate reasons wish to take different directions as to where they will live in future. On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees fit, both as a parent and as an individual, separate from the other parent concerned. On the other hand, it is the right of a child to maintain a meaningful relationship with both his or her parents, in the now changed circumstances of his or her parents’ separation.
[1] [2006] FMCAfam 518
This case is no different. It involves an application by MS JOBE (“the mother”) to relocate the residence of [X] born [in] 1998 (“the child”) from northern Tasmania to Melbourne. The application is opposed by MR DAKIN (“the father”).
In summary, the mother seeks orders:
a)that the parents have equal shared parental responsibility for the child;
b)that the child live with her;
c)that she be permitted to relocate the child’s residence to Melbourne; and
d)that the child spend time with and communicate with the father on a regular basis, including each second weekend and half her school holidays.
The father seeks orders that would provide for the following:
a)that the parents have equal shared parental responsibility for the child;
b)that the relocation of the child to Melbourne be denied;
c)that if the mother relocates to Melbourne;
i)that the child live with the father; and
ii)that the mother spend time with and communicate with the child for half of each Tasmanian school holiday period as well as by telephone, Skype or internet video conferencing at reasonable times.
d)that if the mother does not relocate to Melbourne, the child live with the mother and spend time and communicate with the father as follows:
i)each second weekend from after school on Friday until Monday morning;
ii)in the “off week” on Mondays to be able to take the child to school;
iii)each Wednesday or Thursday night until school the next day;
iv)for half of all school holiday periods; and
v)at other times as agreed, including by telephone, and on special occasions such as Christmas Day, birthdays and the like.
Brown FM had also said earlier in P & P[2] that “there is no satisfactory outcome in this case. The various options available cannot be manipulated like the surface of a Rubik’s Cube to reach a perfect result.” Again, I say that this case is no different.
[2] At paragraph 21
In my view, relocation cases are made even more difficult when both parties are clearly very good parents (as in this case). In contested family law matters, courts seldom get an opportunity to congratulate both parents upon the quality of their parenting, but this is one of those occasions. Even though the mother and the father have different views about whether the child should live in Melbourne or northern Tasmania, they are both very good parents and should be congratulated for that.
Relevant law
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act 1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration[3].
[3] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
children have the right to know and be cared for by both their parents; and
children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
parents should agree about the future parenting of their children[5].
[5] See subsection 60B(2)
In determining what is in a child’s best interests I must consider the matters set out in section 60CC. It refers to “primary considerations” and “additional considerations”.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence[6].
[6] Subsection 60CC(2)
The court must also take into account those of the “additional considerations” that are relevant[7].
[7] Subsection 60CC(3)
The law in relation to relocation of children is very fully set out by Boland J in Morgan & Miles[8]. I do not propose to restate all of what her Honour said. However, I think that it is worth restating what she said at paragraphs 80 and 81:
[8] (2007) FLC 93-343
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.
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.
Those “earlier core principles” to which her Honour referred come from decisions such as AMS v AIF; AIF v AMS[9], A v A; Relocation Approach[10] and U v U[11].
[9] (1999) FLC 92-852
[10] (2000) FLC 92-035
[11] (2002) 211 CLR 238, (2002) FLC 93-112
In a 2008 paper, Professor Patrick Parkinson said[12]:
The best interests of the child remain, of course, paramount, but they are not at large. The decision about the future of a child in a parenting matter is not a personal decision of the judge but a judicial decision. There is not a hierarchy of considerations, paramount, primary and additional. Rather, the assessment of the best interests of the child in a given case relies upon a reasoned assessment of the primary and additional considerations in s.60CC, and the other considerations such as in s.65DAA, taking into account the objects and principles of Part VII of the Act.
[12] Prof. P Parkinson, “Relocation in the Era of Shared Parental Responsibility”, May 2008, Sound Education in Family Law
In my view, that is a succinct statement of the law in relation to relocation applications.
As Professor Parkinson said in another paper on relocation:
Relocation cases cause considerable conflict between parents and the nature of long-distance relocation cases is that there is little room for compromise. Those conflicts inevitably have deleterious effects on children. Relocation cases also cause significant financial stress, not only in terms of the cost of litigation but also, if the relocation goes ahead, the costs of travel.[13]
[13] “The realities of relocation: Messages from judicial decisions.” Australian Journal of Family Law - May 2008
It is clear that the court is not bound to follow either of the parents’ proposals. The Court must do what is in the child’s best interests. See Bolitho and Cohen[14].
[14] (2005) FLC 93-224
The evidence
The mother relied upon one affidavit each by:
a)herself;
b)her fiancé;
c)a friend; and
d)a psychologist.
The father relied upon two affidavits by himself and one by his partner.
A Family Report had been prepared by a Family Consultant and released to the parties on 20 October 2009 (“the Family Report”). It also forms part of the evidence.
Apart from the mother’s friend, all the persons referred to above also gave oral evidence.
Background
The parties met in Melbourne and started living together in 1994. They married in 1995 and the child was born in 1998. They separated in 2000, shortly after the child’s second birthday.
The parties do not agree about how involved the father was in the care of the child prior to separation or how much time he spent with her following separation. However, it is not necessary for me to decide which version is correct because it is quite clear that the father has been spending significant periods of time with the child in more recent years. The father describes his current time with the child as follows:[15]
[15] Paragraph 3 of the father’s second affidavit.
Presently, (the child) is spending time with me as follows;
a. Every second weekend from Friday after school (where I collect her from) until I take her back to school on Monday morning, or Tuesday morning if a long weekend
b. In the off week, I pick [X] up on Monday morning from her mothers (sic) house and take her to school.
c. Additionally, I have her either a Wednesday or Thursday night every week and have her overnight and take her to school the next day.
d. I also have her for extended periods during the school holidays including one week in May, all the Easter holidays, one week in September and a month at Christmas.
e. I also have her at other times as agreed on special occasions such as Christmas Day, Birthdays and the like.
f. Whilst (the child) does not have a mobile phone, I do ring occasionally during the week to say hi to her as well.
The father has re-partnered. He says that his relationship with his new partner (“Ms A”) is stable and has been of five years duration. Ms A has a son (“[Y]”) who is only two weeks older than the child who is the subject of this relocation application. In 2009 they were in the same grade at school, but in different classes.
At the time that the parties met, the mother was working in a [business omitted] owned by the man to whom she is now engaged to be married (“Mr B”). The mother and Mr B rekindled their friendship at the end of 2007 and the mother has been visiting Melbourne, or Mr B has been visiting her in Launceston, on a regular and frequent basis.
The mother has indicated strongly that she will not relocate to Melbourne without the child. She said:[16]
[16] Paragraphs 26 and 27 of her trial affidavit.
Mr B has asked me to move in to live with him into his home to cement our relationship. I have told Mr B that I would dearly like to do that but that is subject to (the child) also moving in with us. I will not and can not go to Melbourne without (the child).
Mr B and I are now engaged to be married.
The mother is currently an [occupation omitted] but, if she is allowed to relocate to Melbourne with the child, she will work in one of Mr B’s two [businesses].
The father is an [occupation omitted] and Ms A is a [occupation omitted].
I will refer further to the facts of this matter in my consideration of the Section 60CC factors below.
Primary considerations
The benefit to the child of having meaningful relationships with both parents
There is no doubt that the child has strong, loving and meaningful relationships with both of her parents. Indeed, the Family Consultant reported that the child made it clear that she loves her parents equally and has very good relationships with each of them.[17]
[17] Family Report, paragraphs 23 and 31.
Clearly, if the mother relocates to Melbourne with the child, the nature of the child's relationship with her father will be altered, at least in relation to the time that she spends with her father. For example, if the child is in Melbourne and the father is in northern Tasmania, it will not be possible for the father to take her to school on two mornings per week as he does now. However, that does not mean that her relationship with her father will necessarily be diminished. In this regard, in M & S[18], Dessau J said at paragraph 45:
I am conscious that a long-distance relationship, with longer but less frequent times spent together, is inevitably different from a relationship where people live closer together with regular face to face contact. But it does not in itself mean it cannot be meaningful.
[18] (2007) FLC 93-313
In a similar vein, in the relocation case of Godfrey & Sanders[19], Kay J (sitting as the Full Court) said:
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
[19] [2007] FamCA 102
However, Professor Richard Chisholm[20] (a former judge of the Family Court of Australia) was clearly critical of Kay J’s comments as referred to above. He said:
In my view, with respect, this is an unhelpful way of looking at it, and it led the appeal court into error. It suggests that the legislation seeks to ensure that children have a meaningful relationship with parents, but nothing more. This is not so. The Act does not aspire to anything: it speaks of the benefit to the child of a meaningful relationship. Thinking in terms of various grades of relationships can lead to the mistaken conclusion that the legislative intention is satisfied provided that ultimately the child still has a ‘meaningful relationship’ with the non-relocating parent. Since it is plausible to say that visits every few months, plus electronic communications, can often sustain a ‘meaningful relationship’, this approach would suggest that so long as this minimal threshold is met, the court should routinely permit relocations. In my view that would be an erroneous interpretation, and would deflect the court from the careful analysis that the legislation requires.
What I see as the mistake made in the appeal judgment might have been influenced by the fact that in her comprehensive and admirable trial judgment, her Honour tended to characterise the problem as being whether the children would have a meaningful relationship with the father if the relocation were allowed. This approach created the opportunity for the appeal court to find, rightly or wrongly, that there was ‘no evidence to suggest that a meaningful relationship could not be maintained between the children and their father in such circumstances’, losing sight of the key task of considering, and giving particular importance to, the benefit of that meaningful relationship. (Footnotes omitted) [21]
[20] Hon Prof, Faculty of Law, University of Sydney, Visiting Fellow, Australian National University
[21] (2008) 22 Australian Journal of Family Law : “The meaning of ‘meaningful’: Exploring a key term in the Family Law Act amendments of 2006”, commencing at page 193
In my view, the Court needs to balance any benefit to the child of relocation against any reduction in the quality of the relationship with the non-relocating parent.
In this matter, both parents appear to accept that it is in their child’s interests to maintain a meaningful relationship with the other parent and each puts forward a proposal to provide for generous “contact” with the other.
The need to protect the child from harm from abuse, neglect or family violence
There is absolutely no suggestion that the child requires any such protection in this matter.
Relevant additional considerations
Any views expressed by the child
This “consideration” also includes the words “and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views” so clearly Parliament had in mind sentiments of the sort expressed in decisions such as R and R: Children's wishes[22] and H v W[23].
[22] (2000) FLC 93-000
[23] (1995) FLC 92-598
The Family Consultant reported that the child presented as a sensible and articulate girl who was aware that her mother had been wanting to move to Melbourne for some time. She also reported:[24]
(The child) reported that she enjoys being in Melbourne for a holiday but she does not want to live there. She explained that Tasmania is her home and she cannot imagine that Melbourne would ever feel like home to her. (She) said that she feels like she sees her father every week and that she likes her father taking her to school on Thursday and each alternate Monday morning. (The child) does not believe that flying to see her father each alternate weekend would be sufficient time in Tasmania and with her father. (She) reported that she does not feel comfortable about flying by herself this often.
The consultant told (the child) that her mother had said she will not move to Melbourne without her and then explored with (her) her alternatives if her mother were to move. (The child) cried when she considered this possibility. (She) said she would choose to stay with her father in Tasmania. (The child) said that she knew she would miss her mother but being separated from her mother was a better alternative than to leave Tasmania and her father. (The child) made it clear that she loves her parents equally. (She) said she would want to visit her mother in Melbourne often but she was not sure how well she would manage flying each alternate weekend to do so.
[24] Family Report, paragraphs 22 and 23.
The Family Consultant went on to say:
(The child) said she understands her mother’s desire to move given that Melbourne would feel like home to her. The consultant explored with (the child) her feelings if she had to move to Melbourne with her mother. (She) responded, “I’d be sad, I’d miss here (Tasmania)”.
It is important to note that the child was only told about the parents’ dispute about possible relocation shortly before her interview with the Family Consultant. The father's oral evidence was that he had spoken to the child about the issue during the weekend before that interview. In his second affidavit he said the following:
7. I have discussed this whole relocation issue with (the child). She has made it very clear to me that she wants to remain within Tasmania, by her words and actions. Whilst not usually an emotional child she was tearful when the topic was raised between us. I believe that I raised the issue with her in a sensitive and caring way.
8. I had offered (the mother) that I would go to her house prior to the appointments for the Family Report so that we could jointly let (the child) know what was happening in the sense of the competing proposal, so that she knew what was going on. It was my intention that we would jointly be able to give her permission to express her views without fear or favour. I say that we had an agreement to do it jointly, but in the end (the mother) didn’t want to discuss it together.
9. I therefore raised it with (the child) myself, with the assistance of my partner.
10. I note from the Family Report that the author has made the finding that (the mother) and I raised the issue with her appropriately and so I see no issue in that regard. However, I thought it was important that she know what this was all about and I gave her permission to say what she wanted to do, and informed her that there was no pressure on my part. Given her age and level of maturity, I felt that it was (the child’s) choice what she wanted to do.
While I am sure that the father raised the issue with the child as sensitively as he could, I am also sure that the child must have known that the father was opposed to her relocation. She would also have been aware that he would be saddened by such a move. It is therefore important to keep in mind that the interview with the Family Consultant took place only days after the child's tearful discussion about the issue with her father.
It was the Family Consultant’s opinion that the child “has sufficient maturity to be able to consider the benefits and drawbacks for her in relocating” but added that “her wishes should also be considered along with an objective analysis of the considerations in this regard”.[25]
[25] Family Report, paragraph 28
The child’s relationships with the parents and other people
It is clear from the Family Report and the other evidence that the child has strong, warm and loving relationships with each of her parents and she also has close relationships with Ms A, Mr B and [Y].
It is clear from the father’s own evidence that he acknowledges that his relationship with his daughter is sufficiently strong to withstand her moving to Melbourne if relocation is permitted. He said: “… I would have been very sad but believe my relationship with her would have survived and I would have dealt with it.”[26] I appreciate that he made that comment in relation to what he sees as the child’s wish not to move to Melbourne, but it is illustrative of a strong relationship between father and daughter.
The willingness and ability of the parents to facilitate and encourage the child’s relationships with the other parent
[26] Paragraph 11 of his second affidavit.
Irrespective of where the child lives, I have no doubt that each parent will promote her relationship with the other parent. See paragraph 31 of the Family Report.
As mentioned above, both parties are putting forward proposals that provide generously for the time that the child should spend with the other parent. Indeed, it is to the father's credit that he proposes that, if the mother is living in Tasmania, the child should live predominantly with her. Clearly, the father recognizes that the child has benefited from such an arrangement in the past and would do so in the future.
The mother's psychologist also reported that the mother is fully aware that the child loves her father and needs to have regular contact with him and his partner.
I do not accept Mr B’s description of the relationship between the mother and the father as “acrimonious”. The Shorter Oxford English Dictionary’s definition of that word is “bitter and irritating in disposition or manner” and that is not an appropriate description of the parties’ relationships with each other. Certainly, there may be some tension between them generated by these proceedings. However, the parties have been able to cooperate in the interests of their child for years and I am confident that that will continue in the future, irrespective of the orders that I make.
The likely effect of any change in the child’s circumstances
Although the Family Consultant reported that the child had said she would be sad if she had to move to Melbourne, she also observed:
(The child) is a well balanced girl who would adjust and cope if she were to move to Melbourne with her mother. (She) has a good relationship with her mother, she likes (Mr B) and no doubt her mother would provide for her extremely well in Melbourne as she does in (Tasmania).[27]
[27] Family Report, paragraph 32
I am of the view that I also need to consider the likely effect of the child remaining in Tasmania. That too will involve some change.
Clearly, one effect of the child remaining in Tasmania will be that the mother will be saddened by the fact that she cannot live with the man she loves. The Family Consultant reported that the mother “is desperate to move back to Melbourne, where she was raised, and to live with (Mr B) …”[28]. To date the mother has been able to shield the child from her distress about that. However, it seems likely to me that there will come a time when the child will feel some guilt about being the reason why her mother was denied her happiness. One is often prone to underestimate how astute children are, and children of all ages are generally able to sense when their parents are unhappy.
[28] Family Report, paragraph 16
Having said that, however, I would not put it as strongly as it was put by the psychologist when she said the following in her report:
However, when (the child) is older I wonder how she might judge her father, when she works out that he denied her mother the chance of having a fulfilling life …
I will make further comments about the psychologist’s evidence below.
No matter what I order, there will be changes in the child's life and she will need to cope with those changes. For example, the father and his partner have purchased a home outside Launceston which will necessitate longer travel times between the father's home and the child's school and extra curricular activities. In addition, the child and [Y] will not be at the same school this year because [Y] has made a decision to change his school to one much closer to the new home. However, changes in circumstances like these are typical in children's lives and I am quite sure that this particular child will cope very well. Indeed, the father and Ms A are to be congratulated for involving the child and [Y] in the decision to purchase the new home.
The practical difficulty and expense of the child spending time with and/or communicating with a parent
If the child is to live in a different State from one of her parents, it is inevitable that there will be cost and inconvenience associated with the child spending time with the parent in the other State.
In this particular matter, one needs to remember that the mother and
Mr B have been travelling regularly between Melbourne and northern Tasmania, so it is not surprising that the mother put forward a proposal that she should be responsible for paying the airfares for the child to travel back to Tasmania for a weekend each fortnight. Early in the hearing I expressed a view that fortnightly travel for the child between Victoria and Tasmania was excessive, and I am still of that view. That view is not related to the expense of such travel, but relates instead to the stress that it will cause to the child, particularly as she moves into secondary schooling, becomes more involved in extra curricular activities and makes teenage friendships.
I must say that I was not impressed with the manner in which Mr B attempted to downplay the difficulties of air travel between Melbourne and Tasmania. I also do not believe that he can get to Tullamarine airport from the Camberwell area quite as quickly as he says he can, and in relation to that I note that the mother's counsel appeared reluctant to adopt the travel times that Mr B had suggested.
However, having said that, one should not forget that northern Tasmania and Melbourne are not very far apart. In AMS v AIF; AIF v AMS at paragraph 147 Kirby J said the following that is relevant:
In evaluating disputes concerning an expressed desire of a custodial or residence parent to relocate the residence at which the child will reside, circumstances which necessarily diminish the opportunities of other parent to have access to and contact with the child, courts have suggested, rightly in my view, that a more relaxed attitude should be adopted to relocation within Australia than relocation overseas. This approach is connected with the ready availability of reliable transport and telecommunications, social and cultural factors, the absence of many dangers which exist in other parts of the world and notions of national community.
In my view, what Kirby J was saying there was essentially no more than that the practical difficulties and expense of travel within Australia are generally less than those associated with overseas travel.
The capacity of the parents to provide for the child’s needs
I have no concerns about the capacity of the mother or the father to provide for the child's needs. As I said above, these are two parents who should be congratulated for the quality of their parenting of this child. Clearly, both are well supported in that by their new partners.
In relation to that, I note that Mr B is prepared to fund the child's private school education irrespective of whether she lives in Melbourne or Tasmania. I also note that when I questioned him about how much that might cost in relation to a particular Melbourne private school, he could not remember the exact cost but thought that the fees could be as much as $25,000 per annum. In my view, his willingness to pay such fees demonstrates Mr B's commitment to his relationship with the mother and to the child, and I have no reason to doubt his sincerity in relation to that.
The attitudes of the parents to the child and to parental responsibilities
Given what I have said above about the quality of the parties parenting of the child, I feel that further comment under this heading is unnecessary.
Whether it is preferable to make an order that is least likely to lead to further litigation in relation to the child
It is not hard to understand the father's reasons for opposing the relocation of the child to Melbourne. He loves her dearly and her relocation will mean that he will not be able to see her weekly as he does now. Apart from his absolute love for her, his resistance to her relocation appears to be based upon the views expressed by her and upon the recommendations of that Family Consultant.
In my view, one needs to take a longer term view than one based almost entirely upon the child's current views. One needs to be mindful of the fact that the child is 11 years old and that the views of children in their pre-teen years often fluctuate. Further, the views expressed by the child to the Family Consultant must be seen in the light of the facts that:
·the interview took place only days after an emotional discussion with the father about relocation; and
·the Family Consultant explored with the child the option of the mother leaving her in Tasmania even though that is not an option that the mother is contemplating.
I repeat that the Family Consultant said that the child “is a well balanced girl who would adjust and cope if she were to move to Melbourne with her mother”.
I also note that the psychologist said:
Many children (the child)’s age resist change, but when gently pushed, cope very well and grow emotionally from the experience. She is also still at the stage of development where children are egocentric and so finds it difficult to see anything from other people’s perspective.
However, it is important to note that the psychologist did not speak to this particular child so her comments as quoted above are presumably generic in relation to 11 year old children.
The psychologist’s evidence
In my opinion, the evidence of the psychologist was flawed. Counsel for the father described her as “a hired gun” and, while I would not use that description, it is clear that she stepped well outside the role of an expert witness and assumed the role of advocate for the mother's cause.[29] For example, it was not her role to advise me about times it takes to drive between one northern Tasmanian location and another, or whether that would create difficulties in relation to a parent attending an extra-curricular activity of the child.
[29] See Re W and W: Abuse Allegations; Expert Evidence (2001) FLC 93-085
The mother was referred to the psychologist by her doctor in relation to generalised anxiety (which I infer is associated with these court proceedings) and she had only seen the mother on three separate occasions when she provided a report to the mother's solicitors. Unfortunately, her report was clearly biased in favour of relocation by the mother and the child to Melbourne. Consequently, I found her report to be only peripherally helpful rather than specifically so.
I note that the letter of instruction from the mother's solicitors to the psychologist suggests that she was provided with a copy of the relevant Rules in relation to expert evidence.[30] Rule 15.07 of the Federal Magistrates Court Rules 2001 refers expert witnesses to the Federal Court practice direction guidelines for expert witnesses and the Rule contains the following specific notation:
[30] Exhibit “M1”
Note: While not intended to address all aspects of an expert's duties, the key points in the guidelines are:
· an expert witness has a duty to assist the Court on matters relevant to the expert's area of expertise
· an expert witness is not an advocate for a party
· the overriding duty of an expert witness is to the Court and not to the person retaining the expert ….
It is clear that the psychologist did not pay that notation sufficient attention, if any.
Should relocation be permitted?
This is clearly the type of case that Gaudron J had in mind when she said:
It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated.[31]
[31] U v U at paragraph 37.
Although she was giving a dissenting judgment in that case, it is well accepted that in relocation cases the parties competing proposals should be carefully examined.
The mother's proposal is that she relocate with the child to Melbourne on the basis of the father maintaining frequent and regular contact with the child. However, it is clear that such contact could not be face to face each week as it is now.
On the other hand, the father puts forward two proposals. They are essentially that the child should live predominantly with the mother if the mother does not move to Melbourne, but if she does move there, then the child should live predominantly with him. Put another way, it is clear that the father has no criticism of the mother's parenting of the child and he is prepared to leave things as they are if the mother stays in Tasmania.
In essence, the father's response to the mother's application is to seek no change. Unfortunately, the mother's relationship with Mr B has brought about a change of circumstances that cannot be ignored and the father's desire to see no change in the child's residential arrangements will only cause the mother unhappiness. It is very likely that such unhappiness will have an impact upon the child. This is not uncommon and was commented upon by Kirby J in his dissenting judgment in U v U as follows:[32]
As has been noted by this Court and courts in other jurisdictions, significant effects on the mother's emotional, residential, economic, employment and personal life have an inevitable impact on the happiness and best interests of the child.
[32] Paragraph 143 (footnotes omitted).
If the mother is not allowed to relocate to Melbourne with the child, it will have “significant effects on the mother's emotional, residential, economic, employment and personal life”.
As the mother is clearly not contemplating a move to Melbourne without the child, I am of the view that it was unfortunate for the Family Consultant to conclude that …(the child) would adjust more easily and most probably be happier in the longer term if she were to live with her father in Tasmania compared to if she were to move to Melbourne with her mother. (Her) sadness about her mother’s absence would be buffered by her good relationship with her father…[33]. If the mother will not move without the child, there is no basis for such a conclusion.
[33] Family Report, paragraph 33.
When I consider the parties competing proposals I conclude that it is in the child's best interests to continue living predominantly with her mother, but in a happy household. That can only be achieved by permitting the mother to relocate with the child to Melbourne.
The orders
In this case the presumption of equal shared parental responsibility is clearly not rebutted and both parties are seeking an order to that effect. That is very appropriate.
Although the law requires me to consider whether or not the child should spend equal time with each parent, that is quite clearly not practicable if one parent is living in Victoria and the other is living in Tasmania.
Similarly, it is not really practicable to make orders for the child to spend “substantial and significant” time with the father as defined in subsection 65DAA(3) of the Act. I will therefore make orders similar to those sought by the mother except that I will only order that the child spend time with the father during school terms for not less than three weekends. I note that in 2010 the first Victorian State school term is quite short and three weekend visits during that term will approximately equate to fortnightly visits and in the short term that should assist the child with the adjustment that will be necessary in relation to the move. However, the other three terms are longer and three visits in each of those terms will mean that the child will see her father approximately once every three weeks.
I will make orders to take account of the matters set out above and because arrangements will now need to be made in relation to the child’s schooling in Victoria this year, I will arrange for a special sitting to deliver these Reasons.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
Date:
[4] See subsection 60B(1)
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