Judd and Cabelka
[2008] FMCAfam 1469
•15 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JUDD & CABELKA | [2008] FMCAfam 1469 |
| FAMILY LAW – Children – parenting orders – relocation – best interests. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65AA |
| Davis & Spring [2007] FamCA 1149 Freedom of Movement in an Era of Shared Parenting: The Difference in Judicial Approaches to Relocation Patrick Parkinson, Federal Law Review Vol. 36, 145 |
| Applicant: | MR JUDD |
| Respondent: | MS CABELKA |
| File Number: | CRC 140 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 22 & 23 September 2008 |
| Date of Last Submission: | 23 September 2008 |
| Delivered at: | Coffs Harbour |
| Delivered on: | 15 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Priestley |
| Solicitors for the Applicant: | Fishburn Watson O’Brien |
| Counsel for the Respondent: | Mr Theobald |
| Solicitors for the Respondent: | Slater & Gordon |
ORDERS
That the parties have equal shared parental responsibility for the children [W] born in 2001, [X] born in 2002, [Y] born in 2004 and [Z] born in 2005.
That the parties have sole parental responsibility for the children while the children live with them.
The respondent mother is restrained from removing the said children from the Coffs Harbour area until 30 December 2008.
Whilst the mother resides in the Coffs Harbour area the said children are to live with the mother and spend time with and communicate with the father as follows:
(a)Every second weekend from 5:00 pm on Friday afternoon until 5:00 pm on the Sunday;
(b)On the following Wednesday afternoon with the father collecting the children at 5:00 pm and returning them to the mother’s residence at 6:30 pm;
(c)On the other Wednesday from 5:00 pm to Thursday morning at 8:50 am, being the beginning of the school day;
(d)For half of each school holiday period as agreed between the parties. If no agreement is reached then for the first half of each school holiday period in even-numbered years and the second half of each school holiday period in odd-numbered years and alternating thereafter;
(e)Liberal email contact; and
(f)Liberal telephone contact with the father to initiate the call to the mother’s landline.
From and after the time that the mother and children relocate to the [N] area the children are to live with the mother and spend time and communicate with the father as follows:
(a)For two weekends each school term as agreed between the parties. For the purpose of changeover the parties are to meet at an agreed half way location. Alternatively, if agreed between the parties, one party is to drive to the other party’s home at the commencement of contact and the other party is to return the children to the first party at the end of contact;
(b)At any other time when the father is in the [N] area with the father to provide the mother with two weeks’ written or emailed notice of his intention to spend time with the children;
(c)For half of the Spring and Autumn school holiday periods with changeovers as arranged and agreed between the parties;
(d)For the entire period of the Winter school holiday period;
(e)For the Father’s Day weekend in each year.
(f)Liberal email contact; and
(g)Liberal telephone contact with the father to initiate the call to the mother’s landline and if the children request to telephone the father, then the mother is to initiate the call to the father’s landline.
The children are to spend the period from 30 December 2008 to
5 January 2009 with the mother and for this purpose the mother is to collect the children from the father and deliver to the father or otherwise as agreed between the parties.
The children are to live with the mother on the Mother’s Day weekend in each year.
Neither party is to administer to himself or herself any illicit drug at any time when any of the children is in his or her care or for any period of twelve (12) hours beforehand.
If the father relocates out of the Coffs Harbour area the parties are to arrange and attend mediation to discuss changes to these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Judd & Cabelka is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT COFFS HARBOUR |
CRC 140 of 2008
| MR JUDD |
Applicant
And
| MS CABELKA |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the father of four children, aged from just under eight years down to just under three years, for orders that the parents should have equal shared parental responsibility for the children, that they should live with the mother provided she continues to reside in the Coffs Harbour area, and that they should spend defined periods of time with the father. The father has sought an interim order restraining the mother from removing the children from the Coffs Harbour area.
The mother wants to move to the [N] area with the children. [[N] is located approximately 474kms from Coffs Harbour.]She has formed another relationship and wants to get married. The orders that she seeks are set out in her Amended Response that was filed on 25th August 2008. Essentially, she seeks orders that the children live with her in [N] and spend defined periods of time with their father. She also seeks orders to cover the situation whilst she is still living in Coffs Harbour.
Issues
The mother wants to marry Mr B, a [agricultural worker] of [N]. She wants to live with him once they are married and she wants the children to live with her as well.
The father, on the other hand, wants the children to remain living in the Coffs Harbour area, whether or not the mother moves to [N]. If she were to move to [N], he would want the children to live with him.
The mother, however, is adamant that if she cannot move to [N] with the children, she will stay in Coffs Harbour. She has no intention of leaving the children.
Background
The parties lived together from June 2000 until 30th October 2006.
The father was born in 1962, so he is now 46 years old. The mother is rather younger, having been born in 1977. She has only recently passed her 31st birthday.
There are four children of the relationship, three girls and a boy.
They are:
(1)[W], born in 2001;
(2)[X], born in 2002;
(3)[Y], born in 2004; and
(4)[Z], born in 2005.
The children all live with the mother. The two older children attend school and the two younger children attend day care two days each week. The mother and the children live in the house in Coffs Harbour where they all lived together as a family until separation, when the father moved out. He now lives in a single bedroom unit. The father purchased a motor car for the mother in 2007.
The father continued to see the children on a regular basis. In March 2008 the father became aware of the mother’s plan to relocate to [N] with the children. On 2nd April he commenced proceedings in the Local Court of New South Wales at Coffs Harbour, seeking, amongst other things, orders restraining the mother from removing the children from the Coffs Harbour area.
On 4th April 2008 the Local Court at Coffs Harbour made interim orders by consent restraining the mother from relocating the children from the Coffs Harbour area for a period of 21 days. On 30th April 2008 the Local Court made interim orders by consent, again restraining the mother from relocating the children from the Coffs Harbour area.
On 20th May 2008 this Court ordered a Family Report and made orders by consent, again restraining the mother from relocating the children from the Coffs Harbour area.
Evidence
The father, the mother and the mother’s fiancé, Mr B, all gave oral evidence. The writer of the Family Report, Mr Paris, was also cross-examined.
It was the father’s evidence that he left the family home on
30th October 2006but that he still tried to see the children on most days. He claimed that between October 2006 and February 2008 he saw the children on about 200 or 250 occasions and the children stayed overnight with him on approximately 56 occasions.
The father claimed that the mother would not allow him to take the children away on various occasions, including:
(a)a visit to his sister at Byron Bay;
(b)a visit to his parents on the Gold Coast;
(c)a place at Moonee in January and February 2007; or
(d)his parents’ home in Sawtell.
The father said that he was able to take the two eldest children to Fiji for a holiday in July 2007.
The father deposed in his affidavit filed on 25th August 2008 that he first heard that the mother was planning to move away with the children in January 2008.
The father claimed that the relationship between the mother and himself has been acrimonious, as has his relationship with the mother’s fiancé. He says that he has a very poor relationship with each of them. He sets out in his affidavit examples of occasions when he claims that the mother has not complied with the consent orders relating to the time that the children should spend with him.
The father deposed that the child [Y] is developmentally delayed. Although she is four years old, she is still not speaking and has “issues with her motor skills”[1]. He expresses concern over what he sees as the mother’s failure to give this matter more attention.
[1] Father’s affidavit filed 25 August 2008 at paragraph [50]
The father deposed in his affidavit filed on 25th August that he has formed another relationship and the children spend time with him at her home. There is no affidavit from this lady and she did not give evidence. The father is currently residing in a one bedroom unit at Sawtell owned by his parents. Since March 2008, the father has stayed at his woman friend’s house when the children are with him.
That house has 6 bedrooms. His friend has five children who play with his children.
The mother confirms that the relationship between the father and herself is “vitriolic” and says it has been that way since the father found out that she was seeing Mr B. She said that on contact changeover, when the father is to collect the children, she leaves the children’s bags at the front gate of her home and she stands on the veranda. Similarly, she said that she no longer allows the father to enter the front gate of her residence because of the arguments that have taken place on those occasions. She expressed the view that the arguments were started by the father’s negative comments. She denied the father’s claim that she was not giving enough attention to [Y]’s issues and said that she was conducting daily therapy with the child.
The mother conceded in cross-examination that if the children moved to [N] with her could mean they would see their father less frequently. She expressed the view that she and the father should be able to have a good relationship for the sake of the children. She cited the separation of her own parents as an example of the way that a separation could be handled for the benefit of the children. She said that her own father had attended court to support her in these proceedings.
The mother’s fiancé, Mr B, gave oral evidence. He is a [agricultural worker] on a property that has been in his family for three generations. He wishes to marry the mother, whom he has known since they were fifteen years old. He lives in a five-bedroom house and has painted the bedrooms that the children would use. He deposed that he has commenced learning Mandokot sign language to assist in communicating with [Y].
Mr B confirmed that there had been some acrimonious exchanges between him and the father over the telephone. He went on to say, however:
I appreciate that Mr Judd is the father of Ms Cabelka’s children and it is important that he remains an integral part of their lives. I think it is important for fathers to spend time with their children. I am happy to facilitate Mr Judd spending time with the children if the children were to relocate to [N]. I am happy to assist with arrangements for Mr Judd to spend time over week ends and during school holidays period with the children.[2]
[2] Affidavit of Mr B filed in court on 23 September 2008 at paragraph [18]
In cross examination, Mr B told the Court that it was still his intention to marry the mother even if she had to live in Coffs Harbour. He said that they would “get married and appeal the decision”. He confirmed that he had firm commitments in [N]. He said he was a third generation [agricultural worker] and his family had been living there for a hundred years.
The Family Report
A Family Report was prepared by Mr Nick Paris, who interviewed the father, the mother, Mr B and the two elder children, [W] and [X].
The report sets out the issues between the parties. Whilst the central issue is the mother’s proposed relocation to the [N] area, the report also identifies these issues:
· The father’s parenting capacity
· The father’s desire to provide appropriate care and accommodation for the children whilst in his care – The father’s inability to provide appropriate accommodation for his children certainly remains questionable, particularly given the father’s high income and other financial assets[3].
· Whilst the mother has been the children’s primary carer since birth, the father has expressed his desire to remain significant in his children’s lives, but – his ability to singularly care for the children in the designated times also remains questionable[4].
[3] Family Report at 5 [15]
[4] Family Report at 5 [16]
The Family Report acknowledges that the mother has been the children’s primary carer before and since the parents’ separation. However, the father has had the two eldest children in his overnight care for a substantial period and, during the six months prior to the preparation of the report, has adhered to his commitment of having the children fortnightly and on a mid week basis.
The Report expresses some concerns about the father’s parenting ability:
However, there appears[5] to be some identifiable concerns about the father’s approach to some issues, particularly in how he related to his historical use of cannabis, and what appeared to be a less than honest account of his association with this substance. The father also specifically omitted aspects of his mental health history, and did not indicate to the Family Consultant that he suffered from depression and had been medicated accordingly. Of some significance is the father’s inability to provide appropriate accommodation for his children during the last twelve months when he has spent time with them. This appears somewhat inexplicable, particularly given his level of income, and this would clearly indicate that he has not identified this issue as a priority for the psychological and physical wellbeing of his children. As an alternative, it appears that the father during the time which he has spent with his children has often shuffled the children around to other extended family members and a recent woman friend, without having provided them a stable second family home. The father must recognise the importance of this, and must make this a priority upon the conclusion of these proceedings. There appears little doubt that the father wishes to have a significant and ongoing relationship with his children, but it does no appear likely, given his commitment to his employment and its associated demands, that the father is likely in the future to be able to spend time with the children on an equal time basis.[6]
[5] sic
[6] Family Report at 15 [63]
The report describes the mother as perceiving that the relocation for the children would only have a minimal impact on any loss in their relationship with their father and goes on to say that “She has drawn this conclusion based on her own individual experience as a child and subsequently as an adult, having experienced something similar herself. However, it remains difficult to extrapolate that this may necessarily be the experience of her four children if they were to be relocated to [N].”[7]
[7] Family Report at 15 [64]
The report expresses some doubts about the desirability of removing the children from the Coffs Harbour area, giving these reasons:
· The mother and Mr B may have known each other for many years, their current relationship has only been on foot for ten months and they have not cohabited on a full time basis.
· The children have positive experiences with both of their parents, and in particular with the father’s extended family network.
· It is likely that the children would suffer significant loss in the time they spend with the paternal side of the family.
· The father/children relationships are well established and of significance to the children.
It is for these reasons that the report concludes:
Given the ages of the children, and the importance of their current developmental stages, removing them from the Coffs Harbour area at this point in time would not appear to be in their best interests.[8]
[8] Family Report at 16 [67]
Accordingly, the report recommends that the children should live with their mother in the Coffs Harbour area and that the father spend time with them every fortnight weekend from Friday afternoon until Sunday afternoon, as well as each Wednesday on an overnight basis and for one week in each of the school holidays.
Mr Paris was cross-examined by Mr Theobald of counsel, who appeared for the mother. He criticised the father for not being “upfront” about his use of cannabis. He also noted that the father did not see his accommodation as a significant issue, saying:
Here is a parent who says he wants an increased amount of time with the children and he appeared to have no insight into the need to provide a secondary home for the children. That he doesn’t have insight into that issue takes away from his parenting capacity.
Mr Paris said that there was no evidence that Mr B was attempting to “usurp” the role of the father and said, in answer to a question from counsel for the father, that Mr B to date had not had a significant relationship with the children.
Mr Paris expressed the opinion that, given the children’s formative ages, it would not be healthy for the children to be located so far away from their father. He pointed out that the children were still very young, as [Z] had only just turned three and [Y] had just turned four.
Mr Paris also stated that acrimony between parents at contact changeover was one of the most destructive things for children and was always unhealthy for them.
Submissions
Counsel for the mother, Mr Theobald, submitted that this is not a case about who the children should live with, because if the mother were to be living in Coffs Harbour the children would be with her. The mother had said unequivocally that she would live in Coffs Harbour if she could not relocate with the children to [N]. In other words, the children would live with the mother in either Coffs Harbour or [N].
He also submitted that this is a case where it is appropriate for there to be equally shared parental responsibility, because bother parents have demonstrated an interest in the children.
There is no application by the father for the children to spend an equal amount of time with him. The children could spend a significant amount of time with him and still relocate to [N]. He referred the Court to the decision of Davis & Spring[9], where the Court considered the definition of the term “meaningful relationship” as it appears in
s.60CC(2) of the Family Law Act.
[9] [2007] FamCA 1149
Mr Priestley of counsel, who appeared for the father, correctly submitted that the Court cannot make an order as to where a parent should live, but only where the children should live. He submitted that the children should live in Coffs Harbour with their mother.
He submitted that the Court should prefer the father’s evidence to that of the mother, as the father had given his evidence in a sincere way. The mother had placed obstacles in the way of the father spending time with the children since she decided she wanted to move to [N].
Mr Priestley drew the Court’s attention to the decision of Lapthorn FM in Manzer & Almy[10], where his Honour set out the issues for consideration in a comprehensive, and, with respect, helpful way.
[10] [2008] FMCAfam 901
Conclusions
I have considered a recent paper by Professor Patrick Parkinson on this issue, entitled Freedom of movement in an Era of Shared Parenting: The Differences in Judicial approaches to Relocation[11] which offers a most comprehensive overview of a number of recent decisions.
[11] Federal Law Review, Vol. 36, p.145
The place to start in making any parenting order is Part VII of the Family Law Act. The Court must regard the best interests of the child as the paramount consideration (ss.60CA and 65AA). In determining what is in the best interests of the particular child or children, the Court must consider the matters set out in s.60CC of the Act.
The primary considerations are the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm arising from abuse, neglect or family violence (s.60CC(2)).[12]
[12] Talcott & Oblander [2008] FMCAfam 1135 at [16]
It is also important to note that when making a parenting order the Court must apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility for the children (s.61DA). This presumption does not apply in cases involving child abuse or family violence and it may be rebutted where the Court is satisfied that equal shared parental responsibility would not be in the best interests of the child concerned.
It should be stated here that there is no suggestion of child abuse or family violence in this case.
The best interests of the children – primary considerations
The Court must consider the benefit to the children of having a meaningful relationship with both parents. The mother has been the children’s primary carer throughout their lives, and she remains their primary carer. It is the parties’ intention that she should remain their primary carer. There is evidence that the father has spent time with the children, on occasions overnight, since the parties separated, although the parties’ accounts differ as to how much time he has spent with the children. Nevertheless, it is the case that the children have positive relationships with both parents and with the father’s extended family.
The mother’s proposal would see the children moving away from the Coffs Harbour area to [N], which would increase the distance between them and their father. His evidence is that he cannot move to be nearer to the children because of his work commitments, although his work allows him to travel out of Coffs Harbour reasonably frequently. His reasons for not moving did not appear to be either compelling or convincing, not that he is required to provide compelling or convincing reasons, and it would appear that he just does not wish to do so. He has now formed a relationship with a woman in Coffs Harbour, about whom he has provided very little evidence, and it is virtually impossible for the Court to assess the strength of this relationship or what benefit the father’s relationship with this lady would be to the children. The lady concerned remains a mystery.
At the same time, the mother’s proposed move is only to [N], another country town within the State of New South Wales. It is not as if the children would be living in another state or another time zone, and the distance between Coffs Harbour and [N] is not vast; it is a matter of about five and half hours’ drive.
It is significant that the mother made it clear in her evidence that
Mr B was not taking on the role of the children’s father and
Mr Paris said there was no evidence that he was attempting to “usurp” the father’s role with the children. Both the mother and Mr B made it clear in their evidence that they accepted the father’s place in the children’s lives.
The other primary consideration is the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. There is no suggestion of violence or physical abuse.
The mother has accused the father of abusive and argumentative language at contact changeover, and the father has made similar allegations about the mother and Mr B. There are allegations of repeated telephone calls by the father and acrimonious words over the telephone. The Family Report refers to comments by a psychologist, Ms M, who saw the parents together on two occasions. Ms M described the parties’ interaction as “explosive” and stated that they had “non existent and no respectful communication”. Ms M described the father as appearing a little “passive aggressive” and the mother as “verbally aggressive towards the father”.[13]
[13] Family Report at 14 [60]
In his oral evidence, Mr Paris told the Court that acrimony between parents at contact changeover was most destructive and unhealthy for the children.
The mother introduced a system at contact changeover where the father was not to come in the front gate of her residence and she would remain on the veranda so as to put some distance between herself and the father in order to avoid unpleasant exchanges. It may well be that the mother’s move to [N], which would put some distance between her and the father, may act to reduce the level of her antagonism toward the father.
There are no specific orders that need to be made to protect the children from physical or psychological harm.
The best interests of the children – additional considerations
Subsection 60CC(3) sets out a number of additional considerations for the Court to take into account when determining what is in the children’s best interests.
The Court must consider any views expressed by the children and any relevant factors, such as the children’s maturity and level of understanding. The views of the two older children, [W] and [X], are set out in the Family Report.
[W] described having a positive relationship with both parents and added that neither of her parents denigrated the other to her. She said she had fun with both parents.[14] She said that she would miss her father if she moved to [N].
[14] Family Report at 13 [55]
[X] was described as being generally positive about both parents but he suggested that he would like to spend more time with his father in order to do more things with him.[15] He appeared to be very attached to his father.
[15] Family Report at 13 [57]
The Family Report does not set out any views by [Y] and [Z], due to their young age. However, the father was described as having a “warm” and “affectionate” relationship with all four of the children.[16] The mother’s relationship was also described as “most warm” and “appropriately instructional and educational with them”.[17]
[16] Family Report at 13 [58]
[17] Family Report at 13 - 14 [59]
The Family Report describes the children and Mr B as “interacting positively”.
[W] told the Family Report writer that she and the other children had spent a lot of time at her paternal aunt’s home in Byron Bay.
Both parents showed a willingness and ability to encourage a close and continuing relationship between the children and the other parent, even though the father complained that the mother had been difficult in the past about his contact with the children. It is to the parties’ credit that neither one denigrated the other to the children, notwithstanding their acrimony towards each other. It is also to the credit of the mother and Mr B that they have acknowledged the father’s place in the children’s lives and have made no steps to place Mr B in the role of the father.
The significant issue, in my view, is the likely effect of any changes in the children’s circumstances, including the likely effect of on the children of any separation from either of the parents (s.60CC(3)(d)).
It is not the case that the children would be separated from any of their siblings. They have spent time with the father’s extended family in Coffs Harbour and in Byron Bay, where the father’s sister lives.
The children are still young, and regular communication with each parent is important. Whilst Coffs Harbour and [N] are five and half hours apart by car, which is a significant distance, it is not, in my view, a distance so great that the relationship with their father will be placed in jeopardy. Obviously, there is a need for time to be spent with the father on some weekends and a significant period of time in the school holidays.
Of course, that is not the only change that is contemplated. The mother plans to marry Mr B and take the children to live with him on his property in the [N] area. He has given evidence that he has painted the bedrooms that the children will use and it is clear that he is making the necessary arrangements for the mother and the children to be comfortable. It would take time for the children to get used to the new arrangements, and the mother and Mr B will need to be sensitive to this issue.
The Family Report writer was somewhat lukewarm about the mother’s marriage plans, saying:
Despite having known each other for many years, it is reasonable to state their relationship at this stage has only been going for ten months, and yet they have not cohabited on a full time basis. It would appear that the mother’s stated desire to relocate in January of this year may have been premature. Clearly the ongoing vitriol between the parents may have been an added factor for the mother in motivating her desire to relocate, as no doubt greater proximity to her extended family remains significant to her.[18]
[18] Family Report at 15-16 [65]
With respect, it is hardly a criticism of the mother that she and
Mr B have not yet cohabited on a full time basis. Even in the first decade of the 21st Century, some couple still elect not to live together until they marry. In any event, the mother has been restrained by Court orders not to relocate the children out of Coffs Harbour.
The mother has chosen to marry a man whom she has known for many years, even though they did not become “an item” until late 2007 or early 2008. I had the opportunity to observe and listen to them both in the witness box and I am satisfied that they exhibit genuine feelings for each other and an awareness of the sensitivities involved in marrying and taking the children to live in a new family environment. Mr B, in particular, was an impressive witness. He came across as a straightforward man who had a realistic idea of the situation. Whilst Mr B is not intended as a replacement for the children’s father, it would appear that it an ongoing association with him is likely to be of benefit to the children.
The Court must consider the practical difficulty and expense of the children spending time and communicating with a parent and whether that difficulty or expense would substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis (s.60CC(3)(e)).
This is another part of the same issue. Clearly, the distance is the significant factor. The mother intends to marry Mr B, whether or not she is permitted to relocate the children to [N]. If she were not free to relocate to [N] with the children, she would remain with the children in Coffs Harbour. No doubt she would be unhappy and dissatisfied. Mr B has said that they would appeal. It should be made clear that parties who are dissatisfied with a court’s decision are entitled to exercise their right of appeal, and it is a matter of no concern to this Court whether parties choose to do so or not. It plays no part in the court’s consideration of the issues.
In my view, the distance between [N] and Coffs Harbour is not so great as to be prohibitive. Provided the children are able to spend ample time with their father on a regular basis in suitable surroundings, and are able to speak to him by telephone regularly and frequently, the physical distance would not be so great as to outweigh what appear to be the benefits of the children moving with their mother into a settled loving relationship.
The Court must consider the capacity of each of the child’s parents and any other person, including any grandparent or other relative, to provide for the needs of the children, including emotional and intellectual needs (s.60CC(3)(f).
The mother comes across as a committed, loving parent who has placed great importance on the needs of the children. The father has criticised the mother for what he views as her failings in dealing with [Y]’s developmental delay issues, but I am not satisfied that this criticism has been made out. The mother has given evidence of involving herself in daily therapy with [Y] to assist her and has learned sign language so she can communicate more with her. The father has not learned sign language. The mother, through her counsel, made it abundantly clear that one option that the Court need not consider was that of the mother moving to [N] to marry Mr B and leaving the children in Coffs Harbour. The mother has “put her cards on the table” in saying that she will not leave her children, which means that she is effectively putting the children’s needs above her own wishes.
Whilst there is no doubt that the father has a warm and affectionate relationship with the children, he has been strongly criticised by the Family Report writer for his inability to provide appropriate accommodation for the children during the previous twelve months. The Report says:
This appears somewhat inexplicable, particularly given his level of income, and this would clearly indicate that he has not identified this issue as a priority for the psychological and physical wellbeing of his children.[19]
[19] Family Report at 15 [63]
The Report goes on to describe the father shuffling the children around to other extended family members and “a recent woman friend”[20] during the time he has spent with them, without having provided them with a stable second family home. In the witness box, Mr Paris reiterated that the father did not see the question of accommodation as a significant issue and said:
Here is a parent who says he wants an increased amount of time with the children and he appeared to have no insight into the need to provide a secondary home for the children. That he doesn’t have any insight into that issue takes away from his parenting capacity.
[20] Ibid
In my view, this is a serious criticism of the father to which I have attached a lot of weight.
The court is required to consider issues such as the maturity, sex, lifestyle and background of the children and of either of their parents
(s.60CC(30(g)). The only significant factor here, in my view, is the fact that the children are still young.
In considering the attitude to the children and the responsibilities of parenthood demonstrated by each of the child’s parents (s.60CC(3)(i)), the mother’s wish to marry and relocate to [N] to live with Mr B is a significant factor. It is no criticism of her to say that she wishes to do so. The Family Report contains rather of a criticism of her, saying:
Whilst the mother perceives that the relocation for the children would only have a minimal impact on any loss in their relationship with their father, it would appear fair to say that she has drawn this conclusion based on her own individual experience as a child and subsequently as an adult, having experienced something similar herself.[21]
[21] Family Report at 15 [64]
With respect, it seems to be hard to criticise the mother for basing her opinion on her own personal experience of being a child of separated parents. Having been in that situation, she has an entitlement to speak from experience. The mother gave evidence of having retained a positive relationship with her father throughout her life, notwithstanding the fact that her parents separated when she was only two years old. She told the Court proudly that her father had come to court to support her in this matter, which would appear to be a demonstration of the strength of her relationship with him. In my view, the mother has been given a positive example by her own parents in maintaining a relationship with her even though the marriage ended in divorce and she intends to follow that example.
It is also a matter for consideration that the mother has made it abundantly clear that she would continue with her plan to marry Mr B but would remain in Coffs Harbour with the children if she were not permitted to relocate their home to [N]. This shows a commitment to the children over her own desires to live in [N]. I accept the fact that Mr B is more or less tied to the rural property in [N] which has been in his family for three generations. He cannot realistically relocate.
The father has been criticised for his lack of insight into providing suitable and stable accommodation for his children in the Coffs Harbour area for the times when they are with him. Whilst he may have been waiting on the outcome of the Court proceedings, this does not excuse his failing in this regard. He has been relying on his extended family to some extent, which is not necessarily a matter for criticism, but he has also been relying on taking the children to the home of his lady friend.
The evidence about the father’s friend is sketchy, at best, and is most inadequate when compared with the mother’s evidence about Mr B, who was interviewed for the family report, provided affidavit evidence and made himself available for cross-examination. As a result, the Court has gained a comprehensive view about Mr B, who impressed as a responsible person with a commitment to the mother and sensible of the issues involved in marrying a woman with children from a previous relationship.
There are no family violence issues.
Judicial approaches to Relocation
In his helpful article, Professor Parkinson describes relocation as one of the most controversial and difficult issues for family courts. As he puts it:
At the heart of the problem of relocation is the tension between the children’s right to maintain a relationship with both parents, and the freedom of movement of the children’s primary carer.[22]
[22] Parkinson at 146
Parkinson considers a number of decisions, such as CH and TW[23], Bale and Jenkins[24], A v A (Relocation Approach)[25], Bolitho v Cohen[26], Taylor v Barker[27], M v S[28] and Godfrey and Sanders[29] dealing with this issue. He reaches this conclusion:
In many cases, there will be a direct conflict between the best interests of the child as discerned by application of the s.60CC considerations, and a relocating parent’s freedom of movement. This is particularly likely where there are no issues of violence, abuse or intractable conflict, it is not reasonable or practicable to expect the other parent to move, and the proposed move is a substantial distance away.[30]
[23] [2006] FMCAfam 607
[24] [2007] FamCA 809
[25] (2000) 26 Fam LR 382
[26] (2005) 33 Fam LR 471
[27] (2007) 37 Fam LR 461
[28] (2006) 37 Fam LR 461
[29] [2007] Fam CA 102
[30] Parkinson at 169
There is no presumption either against relocation or in favour of relocation. Each case must be looked at on its merits, bearing in mind the matters for consideration in s.60CC. Professor Parkinson suggests this approach, which is entirely consistent with the objects and principles of Part VII and with the primary considerations of s.60CC:
In determining whether a parent’s proposed change of location is in the best interests of the child in cases where:
The parents have or will have equal shared parental responsibility
(i)the child has been consistently spending time on a frequent basis with both parents; and
(ii)the child will benefit from maintaining a meaningful relationship with both parents,
(iii)an outcome that allows the child to continue to form and maintain strong attachments with both parents, and to spend time on a frequent basis with both parents, even if it is not as frequent as before, shall be preferred to one that does not.[31]
[31] Parkinson at 170
With respect, this proposed approach is quite helpful.
In the matter before the Court, the children have been consistently spending time on a frequent basis with both parents. The children will benefit from maintaining a meaningful relationship with both parents. Clearly, the proper outcome is one that will allow them to continue to form and maintain strong attachments with both parents and spend time on a frequent basis with both parents.
There are no issues of violence or abuse. Whilst there is at present an acrimonious relationship between the parents, it is not fair to say that there is an intractable conflict between them. They are able to consider the children’s interests and refrain from denigrating each other to the children. The mother and her fiancé are conscious of the father’s position in the children’s lives and are not seeking to place Mr B in that position.
I am not entirely satisfied that the father could not relocate from Coffs Harbour, but he clearly does not wish to do so. The mother’s wish to marry Mr B is not unreasonable and her proposal to live with him on his property would seem to offer the children comfort and stability.
Mr B impressed the Court as a person with a lot to offer the mother and the children.
The proposed move to [N] is a significant distance but not, in the circumstances, such a distance as to make frequent contact between the children and their father impossible or unreasonably difficult. It would involve a reduction in the frequency with which the children see their father, but that can be largely compensated for by having the children spending a substantial time with the father during the school holidays. However, the father is going to have to make a reasonable effort to provide proper accommodation for the children, which he has conspicuously failed to do so far.
In my view, the children will benefit from seeing their mother living happily in a married relationship with Mr B.
For these reasons, despite the recommendations to the contrary in the Family Report, I am satisfied that it is in the best interests of the children for the mother to be permitted to relocate their home to [N].
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 4 February 2009
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