KIDD & KIDD
[2011] FMCAfam 537
•2 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KIDD & KIDD | [2011] FMCAfam 537 |
| FAMILY LAW – Parenting – two excellent parents – relocation Brisbane to Sydney – best interests. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| A v A: Relocation Approach (2000) FLC 93-035 AMS v AIF; AIF v AMS (1999) FLC 92-852 MRR v GR [2010] HCA 4 |
| Applicant: | MS KIDD |
| Respondent: | MR KIDD |
| File Number: | BRC 3334 of 2007 |
| Judgment of: | Coates FM |
| Hearing date: | 7 April 2011 |
| Date of Last Submission: | 7 April 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 2 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms J McArdle |
| Solicitors for the Applicant: | Barry. Nilsson Lawyers |
| Solicitors for the Respondent: | Self represented |
ORDERS
That the mother and father have equal shared parental responsibility for the long-term care, welfare and development of the children, [X] born [in] 1996, [Y] born [in] 1998 and [Z] born [in] 2000 (“the children”).
That the children live with the mother.
That the children be permitted to relocate with the mother to New South Wales.
That the children spend time with the father as agreed and failing agreement on one weekend each month, with the mother to pay the children’s travel expenses to and from Brisbane.
That the children spend time with the father one weekend each month in Sydney, upon the father’s travel to Sydney.
That the children spend time with the father, should the father travel to Sydney, upon the father providing the mother with seven (7) days notice.
That the children spend half of the school holidays with each of the mother and father, with the mother and father to share equally the costs of the children’s return travel to Brisbane.
That the children communicate with the father by telephone, email and Skype.
That in the event that the father relocates to New South Wales, Order 3 of the Family Court of Australia at Brisbane dated 17 July 2007 be reinstated and the children spend time with the father pursuant to that Order.
That each party shall immediately notify the other in the event of an emergency relating to the children or any hospital admission or other serious matter.
That the parties shall keep each other informed and up to date in relation to any medical issues related to the children and, within seven (7) days of the date of these Orders, shall sign all documents and do all necessary acts to authorise the other parent to liaise with and receive information from all of the children’s medical providers.
That each party shall keep the other informed of their current address and contact telephone numbers and advise the other of any changes to those details as soon as practicable prior to or immediately after any chance occurring.
That the parties acknowledge that the time the children will spend with each of the parents in accordance with these orders will be exercised with a degree of flexibility, recognising that the children’s best interests will be served by being able to spend additional individual time with each parent, and by generally altering the arrangements under these Orders at times, and that the parties will make all reasonable efforts to ensure that this occurs.
IT IS NOTED that publication of this judgment under the pseudonym Kidd & Kidd is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 3334 of 2007
| MS KIDD |
Applicant
And
| MR KIDD |
Respondent
REASONS FOR JUDGMENT
Before me were two intelligent and good parents who cannot find any way of agreeing on where their three children will live.
The mother’s application is for [X] born [in] 1996, aged 14 years, [Y] born [in] 1998, aged 13 years and [Z] born [in] 2000, aged 11 years, be allowed to relocate with her from their home town of Brisbane to Sydney.
The Respondent father is totally opposed to such a move.
When I describe the parents as good parents that description is offered as both parents meeting the objects and principles of the Family Law Act 1975 (the Act) stated at s.60B and on the basis that the parents, in unison, have actively shielded these children from the adult separation disputes as far as is possible with children of these ages. It has to be said though that the children know of the dispute and they have been and will be affected to some extent by the adult choices.
My description is also offered from the aspect that there was no evidence whatsoever that either of the parents or their extended families have taken steps, by act or omission, to undermine the parental role of the other parent.
From that perspective, I agree with the position adopted by the family consultant, psychologist Mr W, at paragraph 111 of his report where he said:
“This is a very difficult matter for me to consider and for me to make firm recommendations upon”.
Both parents present cases which show their world to some extent is falling apart because of their lack of ability to reach an agreement on the future living arrangements for their children and it is perhaps that aspect of their evidence, the human interest narrative, which makes relevant the Family Court’s comment in A v A: Relocation Approach (2000) FLC 93-035, referring the High Court decision in AMS v AIF; AIF v AMS (1999) FLC 92-852, that the “best interest of the child … remains the paramount consideration but not the sole consideration” which leads underlines again the view taken by the High Court in MRR v GR [2010] HCA 4, that parents also have legitimate interests and a freedom of movement under The Constitution which has to be accounted for.
All else has failed in this matter in relation to the parents being able to resolve the issues they face, therefore the legislative pathway must be followed and the statements of law applied to the evidence.
Section 60CA of the Act does not allow for any parenting order to be made unless the court has regard to the best interests of the chid as the paramount consideration.
That decision is arrived at after an application of the considerations.
The primary considerations are set out in s.60CC(2) which are the benefit to children having a meaningful relationship with both parents and the need to protect children from physical or psychological harm from being subject to or exposed to abuse, neglect or family violence.
The Act notes that making s.60CC(2) the primary consideration is consistent with the objects set out under ss.60B(1)(a) and (b).
Section 60B are the objects and the principles underlying them.
The objects are to ensure that the best interests of children are met by:
a)ensuring they have the benefit of both their parents having a meaningful involvement in their lives but with this right – only to the maximum extent consistent with their best interests;
b)protecting children from physical or psychological harm;
c)ensuring that children receive adequate and proper parenting to achieve their full potential; and
d)ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of the children.
The principles are that:
a)children have a right to know and be cared for by both parents;
b)children have a right to spend time on a regular basis and communicate on a regular basis with both parents and other significant people in their lives;
c)parents should jointly share duties and responsibilities concerning the care, welfare and development of the children;
d)parents should agree about future parenting arrangements, and
e)children have a right to enjoy their culture if there is a cultural issue.
The considerations including the additional consideration in ss.60CC(3) and (4), against which the evidence is assessed, are no more than the application of common sense principals in the context of the child or children at the centre of parental disputes.
I am to apply the presumption of equal shared parental responsibility stated in s.61DA, that is, where both parents, together, make all of those important decisions for the long term care, welfare and development of children.
That presumption does not apply against a parent when there are reasonable grounds to believe there has been family violence or other circumstances which would allow for the rebuttal of the presumption.
If an order is made for equal shared parental responsibility, then the living arrangements have to be determined under s.65DAA of the Act.
I will not repeat the considerations verbatim, but refer to any particular consideration with a reference in square brackets, so that the parties know I have taken into consideration their evidence.
At this point the full proposals of the parties should be set out, which I will do subject to recognition that both parties agree, and their evidence is, that their arrangements have always been flexible. There is no reason to doubt that their capability of remaining flexible in whatever the future circumstances are, which reflects favourably their discharge of parental responsibility, will remain [ss.60CC(3)(f) and (i)]. They have shown then that communication in relation to the children has been achieved, an indication that they can provide for many of the needs of the children emotionally and intellectually [s.60CC(3)(f)] and their attitude to the responsibilities of parenthood is not an issue [s.60CC(3)(i)], which recognises that they have a responsibility in developing the nature of the relationship they have with their children [s.60CC(3)(b)].
The orders sought by the mother are contained in her outline of case document e-filed on 31 March 2011.
She seeks an order for equal shared parental responsibility but that the children live with her.
She seeks that they be allowed to relocate with her to Sydney.
If that occurs she seeks that the children spend time with the father as agreed or on one weekend each month and she would be responsible for the children’s travel expenses to and from Sydney.
She seeks that another weekend in the month would be available if the father visits Sydney.
She seeks orders for the school holidays to be shared and both parents share the cost of travel.
She seeks communication orders by telephone, email and Skype.
In the event the father relocates to New South Wales she seeks that order 3 of orders made on 17 July 2007 be reinstated. That order was made by consent and stated that the children live with the mother and unless there was agreement to a spend time with and communicate with the father;
a)on the first weekend of each fortnight from after school on Friday until Monday morning;
b)each Wednesday night after school until Thursday morning, and
c)on one weekend per month or two by agreement. The father may spend time with one child individually.
The mother also sought ancillary orders relating to keeping each other informed of issues about the children, about addresses and telephone numbers – that type of order which merely allows information to be shared and easily obtained.
She sought a non-denigration order but that was probably more out of precaution than anything else given their ability to co-operate with each other.
The father also sought an order for equal shared parental responsibility.
His orders are outlined both in his response filed 6 June 2007 and through oral submission in court.
His final position was that the eldest child [X] live with him regardless of where the mother lived, but he opposed the children being relocated to Sydney.
If the mother lived in Brisbane then the two boys should live with her but if she chose to relocate he said the three children should live with him.
He otherwise sought liberal time for the children, for the children to be with him and if all else failed every second weekend and half of the school holidays providing the mother was living in Brisbane. He also included the continuation of Wednesday overnight Thursday arrangements.
Again his orders must be viewed against the evidence that the parties have a history of being able to be extremely flexible with the arrangements.
The mother is aged 40 years, and the father is aged 39 years.
They married [in] 1994 in Brisbane and separated in July 2005.
The parties went their separate ways although there seems to be no ultimate event which led to the separation.
There is dispute over the views expressed by the children [60CC(3)(a)] and their wishes.
The child [X] adamantly expressed to Mr W that she does not want to move to Sydney, so much so that when she commenced her interview she stated:
“I don’t want to go to Sydney. I am positive…I want to stay in Brisbane because I have friends and family here”.
She told Mr W that if the mother and the brothers relocate then she wants to live with her father.
So much of the evidence is agreed.
But the father confirmed [X] has told him that she wants to live with him, a position the mother does not accept and one which is not backed by Mr W, whose oral evidence was that [X] expressed a desire to spend more time with her father but otherwise wanted the living arrangements to remain the same. Her statement about living with the father was a fall-back position if the mother goes to Sydney.
In considering this evidence it appears to me that whatever the final decision, the living arrangements cannot not remain the same and this inescapably is a major issue in determining this case.
The children lived with the mother in a unit at [Brisbane suburb omitted] and from there [X] and [Z] attended school at [P] School and [Y], who is autistic, attends at [J] School.
The mother was employed and according to the evidence had always earned more than the father but her employment ceased and she said she has been struggling financially.
She moved to her parent’s residence at [Brisbane suburb omitted] with the children, a short term move because of the possibility of going to Sydney where she will take up residence with her partner of four years, Mr F.
So whether she relocates to Sydney or not the fact is that whatever [X]’s views are of arrangements remaining the same, those arrangements must change because the mother will have to find alternative accommodation.
The evidence I accept is that the mother’s ability to provide materially for the children would be affected by the decision [s.60CC(3)(f)].
While [X] has given every indication that she opposes a move, the mother had a view that if she is allowed to relocate, despite opposition from [X], [X] would go with her and her brothers to Sydney. This is intuitive evidence from a parent about the views of her child [s.60CC(3)(a)] and it is evidence I will give weight too.
If the decision is to allow the relocation then perhaps the plan will depend on [X] because the mother is adamant that she will not move away from the child.
She views the nature of the relationship [s.60CC(3)(b)] as one where [X], at the age of 14, requires her mother.
The mother described the issues she sees for [X] in that being extremely intelligent, [X] was accelerated into Year 11 and her peer group is aged between 12 months and possibly two years older than herself.
The mother states that [X] has expressed to her that some of the things she likes doing such as [omitted] work would not be “cool” with her peer group and friends from Grade 11.
The mother said the peer group and friends have developmentally passed the point where [X] is and for this reason the mother said that [X] is not as in touch or influenced by her peer group as the evidence of Mr W or the father would suggest.
The father gives different evidence to the effect that [X] has a good relationship with her peer group and appropriately mixes with them.
Mr W had not necessarily formed a view other than what [X] had told him as to whether the acceleration of her into a higher class was good or bad and he said such events can have positive effects, as they can have negative effects.
The mother was also of the view that [X], being in the top 99 percentile academically, should be allowed to relocate to New South Wales where she would intend keeping her back a year at school, specifically taking into her account her age and developmental stage in comparison with what she is experiencing at school at present.
The mother in my view has shown a very deep insight into her view of [X]’s needs as in fact she has of all of the children especially in relation to [Y] [s.60CC(3)(i)].
Equally impressive were the father’s views of what these children need to ensure that they develop to their full potential and although there was some dispute that perhaps the father may be a little lax in regard to allowing [X] going to parties, I formed the view after hearing Mr W that there were different parenting styles. Mr W eloquently expressed that different parenting styles expose children to different views in life. This was not a detrimental development.
I find no issue on that matter which would be harmful to the children or that the nature of the relationship [s.60CC(3)(b)], based on parenting styles alone, is an issue which alone would sway the decision one way or the other.
The father’s view of the nature of the relationship is expressed in simple but important terms and that is if the children go to Sydney he will not have the same relationship, the close relationship which he has with them now and that to an extent he was supported by Mr W.
His evidence as to the views of [Y] and [Z], because they had expressed to Mr W some desire to go to Sydney, was described as being a repeat of the views of the mother.
Mr W said that he would be surprised if [Z] had the same view about a possible move to Sydney on any particular day given his age and [Y]’s view, taking into account his autism and usual resistance to change, was one where he could cope simply because he was not opposed to a change of location. [Y] was very excited about the change in location, although I accept he could not appreciate what such a change may mean for him in relation to seeing both parents [s.60CC(3)(g)]. Nor could [Z] for that matter.
But what Mr W is stating is that although the views of [Y] and [Z] have to be accounted for, there are other factors which have to be taken into consideration as to the forming of their views.
In the case of all three children I do consider the expressed views and factors such as their maturity and level of understanding but the decision as to the best interests could not necessarily be made on an application of the considerations isolated one from the other. There was no evidence to the effect that the children were parroting the views of the mother as a result of a coaching situation, but would they do so because they find security in her? The answer may well be in the affirmative.
There was nothing in the evidence then to show that the nature of the relationship of the children s.60CC(3)(b) was anything but solid and healthy with each parent.
While the mother said that she was the primary carer, this evidence was disputed by the father who says that he has been the primary carer.
Both parties base the assertion of primary care on different factors, the mother I think on her experience and her commitment to the children, which was recognised by the father, and the father on the fact that the mother was often travelling in her work.
Mr W cleared the air when he stated that primary care has different meanings to different people.
Primary care is a concept which in my view is more usefully measured with very young children who need a carer at all times and that the term when applied to children of this age looses some significance. However it is a concept which still needs to be applied because children need care and decisions made for them in various aspects where they cannot make such decisions on an informed basis whatever their age, and children like [Y] who suffers from a lack of capacity or diminished capacity because of autism does need regular care.
It is the mother’s case that a move to Sydney would allow her to be employed in her partner’s company on a wage of about $150,000.00 per year and that she could work from home and that she would be available to give that commitment to the children which on the evidence she has done in the past.
She is stating she will have better capacity [s.60CC(3)(f)] to provide materially for the children and in [Y]’s case, for his emotional and intellectual needs, and that she has the ability and attitude and has demonstrated the responsibilities of parenthood [s.60CC(3)(i)] required in relation to [X] and [Z] in the context that [Y] has made life difficult at times.
The father recognises her commitment there and told Mr W that the mother has poured her heart and soul into caring for [Y] and planning for [Y].
In cross-examination the mother said she needs to be in a position to prepare [Y] to be self sufficient in that he will have to attend at employment at some stage and she wishes to be able to set up a support network for him.
She said she has always done so in the background although the children and [Y] especially have not realised that and again such evidence indicated that the mother, with the support of the father, has taken every opportunity available to fulfil responsibilities of parenthood in relation to major long term issues for each of these of these children [s.60CC(4)(i)].
The mother gave a compelling description of her need to set up a support network for [Y] to allow him eventually to travel alone. She recognised this as a necessity as [Y] grew older. She said he was very eager to be able to travel on his own on public transport and she wanted to organise people, like local shopkeepers, whom [Y] could identify so that he could move freely in his local area, in a setting where he knows both landmarks and people.
The deep commitment and thinking about [Y]’s needs are not fanciful in my view, but a calculated response to [Y]’s disability which will set up the optimum circumstances in the future and caters for his safety while allowing him some latitude of freedom of movement. It was evidence of the mother’s capacity [s.60CC(3)(f) and of her responsibility [s.60CC(3)(i)] in responding to the needs of her child who suffers from a mild disability. It is also an indication of the nature of the relationship [s.60CC(3)(b)] in that she has the skills to ensure he is not left helpless and totally dependent as he grows older.
The father is not unaware of these issues and is not opposed to supporting the mother, he merely wants all of this done in Brisbane and he states there is nothing that can be achieved in Sydney that cannot be achieved in Brisbane.
This is where the parties disagree.
The mother’s case is that her partner, Mr F, has been assisting her financially and Mr F’s evidence confirmed that, but the economic conditions he faces have now limited his ability to give the same amount of financial assistance or perhaps any assistance at all. This limits the mother’s ability to provide for the material needs of the children [s.60CC(3)(f)] and it is a consideration going to the likely effect of changes [s.60CC(3)(d)] which are going to occur whether the mother stays in Brisbane or not.
Mr F is part owner of a company which [occupation omitted].
There are plans to further [occupation omitted] but Mr F also now has an interim liability of $2,000.00 per week for spousal maintenance for his former wife and an economic slowdown is affecting his ability to assist the mother.
Although the father has no evidence that Mr F has been assisting the mother, I do not doubt the evidence on the basis that the mother herself is not earning money, that she is supporting children and that children cost money [s.60CC(3)(m)].
That is not to recognise the father’s commitment to pay their school fees and his commitment in meeting other expenses where he can for his children.
The mother’s proposed move would allow her to settle the children and [Y], on the evidence, in a house with Mr F at [suburb omitted] in Sydney and she gave evidence of having looked at a large home which they could afford, one which would provide materially [s.60CC(3)(f)] for the children in that each could have their own room. She said [X] and [Z] could then have some time away from [Y] who on the evidence I would describe as a raucous child and one whose demands are high, simply because of his disability.
To stay in Brisbane she said was difficult when she was working because she said she was going backwards financially and she had to sell her town house at [Brisbane suburb omitted].
The father’s evidence and view was that the mother could get a job again in Brisbane and provide what she had provided for the children, but on this issue I would have to say that the evidence of her financial circumstances in Brisbane compared with what it could be in Sydney, because she and Mr F intend marrying, is just not the same.
I accept the father’s submission that it is not merely a question of finance and money when all of the considerations in the Act are applied, as I have done, but it is inescapable that financial opportunities can make family life easier and in this case for the mother and of course for the children. The evidence is that it would allow her to spend that time with the children, both in the morning and the afternoon, on their travels to and from school and after school, in a situation where she could assist them.
She said that in Brisbane she was so worn out from work that she could not give to them what she thought she needed to in terms of time and effort.
I have concentrated on the mother examining these issues but the father’s evidence was, which I accept, that he also contributes to the upbringing of the children and he knows that [Y] requires extraordinary care.
On this point his evidence was not that he could provide that extraordinary care because his case was that the boys live with the mother, but that should continue in Brisbane. It cannot be said that he was not alive to the issues I have addressed, but in his view the benefit of a meaningful relationship between the children and himself could only occur to the extent that it was occurring if the children remain in Brisbane.
His evidence was that the effect of changes [s.60CC(3)(d)] would be such that his role would be diminished to a great extent which would not occur if the children lived in Brisbane.
On this issue the geographical distance identified the costs and practical difficulty [s.60CC(3)(e)] of a relocation. The father effectively brought out the travel times for the children if the children went to Sydney. All up, travel between [Sydney suburb omitted] to the father’s home at [Brisbane suburb omitted] would mean that the children would travel from after school on a Friday until about 7.00pm to 9.00pm at night. Then there was the return trip on a Sunday.
That is going to be an obvious outcome if the children move to Sydney, despite the mother’s case that the children are used to travelling because they have to get from [suburbs omitted] for school in peak hour traffic, a distance of 26 kilometers.
The father also raised the issue of the expense of travel and he indicated that his wages are about $80,000.00 per year.
He has also borrowed money from relatives and from credit facilities to pay for their school fees and his case was that with the expense of spending time if the children live in Sydney that there may be a cutback in other expenditure, an inescapable change [ss.60CC(3)(d) and (f)]. The father was not being contrary here, merely realistic, but as he said, the question does not solely rely on the financial considerations.
He currently pays school fees at [P] School for two children and he has questioned the child support ruling but he was not all that clear in evidence that should the children relocate to Sydney whether he would continue paying school fees.
However the evidence of his history is that he will pay what he must pay for his children and more and that even though he is in debt for school fees he said they are, in context, short term debts, and he will financially support the children in whatever manner he can.
Of all the considerations the issue of costs and difficulty of spending time are the most pronounced for the father. It is correct when he states his relationship will not be the same because visiting Sydney would entail hotel or serviced apartment type accommodation which would not be ideal in the sense of having the children stay with him. It would certainly not be the as having the children in his home, a unit at [suburb omitted].
I am just going to return to the primary consideration here and that is the consideration of the benefit of a meaningful relationship with a parent.
The father’s view is that he will not have the same relationship, but, in the legal sense, that is not the same as having the benefit of a meaningful relationship, one which is the child’s right, not the parental right. I have no doubt at all that both parents have shown the willingness and ability to facilitate the relationship [s.60CC(3)(c)] although the father now approaches that consideration from the point of view, or intermixed with the difficulty and expense of spending time, and he views the willingness of the mother to be now somewhat limited because of her proposal to move to Sydney.
As much was apparent from inadmissible questions, for example for Mr F, to the effect of what he thought about a parent being denied access to a child. That type of questioning indicated to me that the father is having some difficulty in coming to terms with both the separation or the reasons for separation and the fact that the mother wants to move to Sydney, which even she states was not even contemplated at the time of separation.
I also need to state that the father at no stage showed any disrespect in the witness box for either the mother or Mr F, nor did they show any disrespect for the father and although some of the father’s answers were delivered strongly at one stage when he said the proposed move to Sydney was arrogant of the mother, that does not change my view that these parties have always been respectful and appreciative of the other’s role as a parent and what they have done in order to progress the parenting of these children.
My view is that the case is finally balanced.
There is no definition of what the circumstances of best interests are, as there is no definition of what is the benefit of a meaningful relationship and what circumstances create the benefit to a child of having a meaningful relationship with a parent.
Ms McArdle for the mother submitted that I should consider the optimum arrangement which in her case was the move to Sydney, based on the mother’s relationship with Mr F, the financial advantages for her and the children and the easier role she would benefit from as a parent.
Opposed to that was the father’s view that the optimum arrangement was for the continuation of current circumstances or that the children live with him.
I turn to the cases.
There was no issue of culture raised if culture in the Act goes to ethnic roots, which I think it does [s.60CC(3)(g)].
However, while an argument could be mounted that culture of a place is part of a child’s background, the father’s case is that the children have no connection with the proposed locale in Sydney. Locality can be important but it is no ore or less important than considering the proposals of both parties and tasking into account all of the evidence against the considerations stated in the Act. In this case, a cultural location takes into account the children’s schools, peer group and relatives in Brisbane but they alone are not determinative of the case.
I am not dismissing that evidence by any means, I am merely stating that other considerations [s.60CC(3)(m)], including the making of that order least likely to bring the matter back to court [s.60CC(3)(l)] are applicable in taking into account the family background and their geographical location.
That of course shows that the primary and additional considerations stated in the Act can and often are interconnected and in most matters it would be quite wrong to try and arrive at the best interest decision looking at the considerations in isolation of each other.
The mother does not propose to severely limit the father’s time with the children in Sydney in that if he could be there on more than one weekend in a month, then she would not object to time.
She and Mr F’s would also supply what they could, for example, a car while he was there.
There was dispute over the amount of time each parent has spent with the children in the last few years, but I think attempting to determine this matter on mere time would be to ignore the considerations going to a best interests decision.
Time in itself is not an indicator of the closeness of a relationship and in any case, the evidence of the parties themselves and the evidence of Mr W shows the close relationships.
The father’s sport coaching of the children, and other commitments he has involved himself in would be disrupted if the mother relocated the children, but the issue is will that affect the children to such an extent that their best interests will not be served by a move?
The father is concerned about being able to contact the children’s school and carers, and attend personally at functions, but the mother’s evidence was that much discussion with schools occurs by email and telephone, which I accept, keeping in mind that the father would be denied some personal times at school and functions.
Would the father consider moving to Sydney? He gave a categorical no as his answer.
Would the mother go without the children? She gave a categorical no as the answer.
She said under no circumstances would she leave [X] to go to Sydney as this was important time in her life and she needed mother.
Could the father take the children to allow the mother to go to Sydney? Apart from her answer that she would not move without [X], I take it that her decision would go for each of the children, I was not satisfied that the father could adequately house for a lengthy time the children in his unit. There was little evidence of that but that is the impression I got.
An issue of the availability of [Y]’s psychologist arose, considering that with autism, he did not like change, in relation to routine and people. On the evidence I was satisfied that appropriate professional assistance would be available for [Y] in either Brisbane or Sydney.
I formed the view that while both parents provide as much as they can for the children, the mother has provided primary care in the sense that she offers continuity of security for them. That is a changeable concept as the children grow older and it may be that [X] is beyond needing a primary connection, although I cannot state that with any certainty given the mother’s evidence that she views that her peer group would think some of her activities as being “uncool”.
There is no question that the presumption of equal shared parental responsibility has not been exercised, successfully, by both parents and I would make the order both say I should make.
That means I have to consider the s.65DAA matters, from shared care through to significant and substantial time with the non-caring parent.
The High Court in MRR v GR [2010] HCA 4 stated that the practicability of arrangements had to be accounted for. The court stated:
“Section 65 DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s.61DA(1) is not determinative of the questions arising under s.65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mt Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal parenting was reasonably practicable”.
This appears to me to restate in different words the High Court’s decisions referring to The Constitution, which allows freedom of movement and which prevents orders which tie a parent to one locality if under all of the circumstances, such would not be in the best interests of the children.
The practicability in this matter requires me to take into account the circumstances of both parents in relation to their children, applying as I have done the considerations in the Act, to come to the best interests of the children.
Considering all of these issues, I am of the view that the mother should be allowed to relocate the children to Sydney.
The father has an excellent relationship with his children and while the relationship will change and may be different, it will not be one where the children do not have the benefit of a meaningful relationship.
The proposals of the mother for [Z] and especially [Y] are compelling, she needs to be able to have that financial stability and support of Mr F to plan and raise these two children.
She believes [X] will go to Sydney and the fact that the mother said she was prepared to sacrifice her relationship with Mr F, or at least from the point of view of being together, displays her total commitment to properly raising these children. It shows the primary connection aspect which I referred to earlier.
That is not to say the father is not as equally important, but it is to recognise that the relationship may change, but the benefit will not be denied to the children.
It is an unfortunate side effect that when people separate and go their own way, decisions such as this have to be made.
When examining the proposals of both parties, I cannot conclude that the father’s proposal for the daughter to live with him is in her best interests. She may be strong minded, she may express views strongly, she could be looked upon as a 14-year-old child who knows her own mind, but the evidence did not persuade me that her disconnection from the mother’s care at this stage ought to depend on a decision by me.
The mother’s view that the child needs her mother is the persuasive evidence upon which I have made that decision – keeping in mind that the child’s will may prevail, but is yet to be tested.
As to the three children living together with the mother, I accept the evidence that the mother’s employment was ending and that she was having difficulty making ends meet in Brisbane.
I accept that she cannot live with the children forever in her parent’s home and financially, her proposals would leave her and the children in a far better position then if I prevented her relocation of the children.
This is not a judgment against either parent and should not be viewed as such, it is a decision though on what arrangements will be in the best interests of these children, to ensure they develop according to the objects set out in s.60B of the Act. It is also a decision in which the family consultant identified that he could not make a recommendation. Like me, he could also see that these parents have been rather remarkable in shielding their dispute from their children.
I have not referred to any of the s.60CC(4) factors, but the evidence is that all of those issues which the section addresses have been complied with by the parents.
I will make orders as the mother sought.
There are some orders which were not specifically addressed in questioning, such as when the children should be allowed to relocate and what arrangements should be put in place should the father decide to relocate to Sydney. I was satisfied that I could leave the decision to the mother as to when it would be suitable to relocate the children, taking into account her awareness of education issues. I will revert orders to former orders made in the Family Court if the father relocates, but again, I have no doubt that these parents will put into place workable arrangements for their children’s best interests.
I certify that the preceding one hundred and forty-six (146) paragraphs are a true copy of the reasons for judgment of Coates FM
Date: 2 June 2011
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