Lawlor and Lawlor
[2008] FMCAfam 1042
•3 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LAWLOR & LAWLOR | [2008] FMCAfam 1042 |
| FAMILY LAW – Parenting orders – relocation – Wife seeking to relocate to [D] with parties’ two children aged four and two – Husband seeks Wife be restrained from removing children from Melbourne Metropolitan area –developmental needs of young children in consolidating relationship with Husband – ordered Wife restrained from relocating with children until October 2009. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 65DAA |
| D & SV (2003) 30 Fam LR 91 E. Mavis Hetherington & John Kelly, For Better Or For Worse: Divorce Reconsidered 88 (2002) |
| Applicant: | MR LAWLOR |
| Respondent: | MS LAWLOR |
| File Number: | MLC 7284 of 2008 |
| Judgment of: | Bender FM |
| Hearing dates: | 22 & 23 September 2008 |
| Date of Last Submission: | 23 September 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 3 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Smallwood |
| Solicitors for the Applicant: | Septimus Lee & Jones |
| Counsel for the Respondent: | Ms Stewart |
| Solicitors for the Respondent: | Kenna Teasdale Lawyers |
ORDERS
The parties have equal shared parental responsibility for the children of the marriage [W] born in 2004 and [X] born in 2006 (“the children”).
The Wife be restrained from relocating the residence of the children from the Melbourne Metropolitan area until October 2009 after which date she be permitted to move with the children to [D] in the State of Victoria.
Whilst the children reside in the Melbourne Metropolitan area they shall live with the Husband as follows:
(a)from 4.00 pm Friday to 6.30 pm Sunday on the first, second and third weekends in a continuous four weekly cycle;
(b)for four one week extended holiday periods at times agreed between the parties;
(c)by telephone at times agreed between the parties;
(d)on the children’s and the Husband’s birthdays at times agreed between the parties;
(e)on Christmas Day and at Easter at times to be agreed between the parties;
(f)on Father’s Day at times to be agreed between the parties; and
(g)for such further and other times as agreed between the parties.
Whilst the children reside in [D] they shall live with the Husband as follows:
(a)each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday, or 5.00 pm Monday if it is a long weekend or school curriculum day, being the first and third weekends in a four week cycle, in the Melbourne Metropolitan area or such other location as agreed between the parties;
(b)for an additional weekend in each four week cycle from 5.00 pm Friday to 5.00 pm Sunday in [D] upon the Husband giving the Wife seven days notice;
(c)for one half of all school term holidays and the long summer vacation on dates and times as agreed between the parties;
(d)by telephone, Skype communication, email and other electronic communications no less than every second day at times agreed between the parties;
(e)on the children’s and the Husband’s birthdays at times to be agreed;
(f)on the Father’s Day weekend from 5.00 pm Friday to 5.00 pm Sunday;
(g)on Christmas Day and at Easter at times to be agreed; and
(h)for such further and other times as agreed between the parties.
The children shall live with the Wife at all other times.
The children’s time with the Husband shall be suspended for the Mother’s Day weekend and they shall spend an additional make-up weekend with the Husband on a weekend agreed between the parties.
Upon the children relocating to [D], if the children’s weekend with the Husband pursuant to order 4(a) herein does not fall on a gazetted long weekend, the Husband shall be at liberty to nominate that one of the two weekends in the four week cycle be altered so that the children are with him for that gazetted long weekend.
The Wife shall be responsible for all travel associated with the children spending time with the Husband in Melbourne and the Husband shall be responsible for all travel associated with spending time with the children in [D].
The parties shall keep each other informed at all times of their current residential addresses and contact telephone numbers.
The parties shall consult with each other in relation to all aspects of the children’s education including the choice of kindergarten and schools the children are to attend and shall ensure that they receive all relevant notices, reports, photographs and newsletters and are authorised to attend all teacher interviews, concerts, sports days, speech nights and events usually attended by parents.
Each party shall immediately advised the other of any serious illness, injury or accident of the children or either of them whilst in their care.
Pursuant to ss.62B and 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Lawlor & Lawlor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 7284 of 2008
| MR LAWLOR |
Applicant
And
| MS LAWLOR |
Respondent
REASONS FOR JUDGMENT
Introduction
In these proceedings, the Husband is seeking orders restraining the Wife from relocating to [D] (approximately 300kms from Melbourne) with their children [W] born in 2004 and [X] born in 2006.
The Wife seeks to be permitted to move to [D] with the children.
Both parents are devoted and capable parents and both acknowledge there is no issue of parental capacity in this case.
The Husband also applied to have residence of the children in the event the Wife was not successful in her application and still chose to relocate. The Wife in her evidence indicated if unsuccessful in her application, she would not move so this aspect of the Husband’s application was not pursued.
The parties commenced cohabitation in mid 2001 and married on
27 September 2003. They separated under the one roof on 17 March 2008 and the Husband vacated the former matrimonial home on
30 March 2008.
Background
The Husband was born in 1968 and is 40 years of age. He is employed full-time as the National Manager of [omitted] by [omitted].
The Wife was born in 1974 and is 34 years of age. She is engaged full-time in home duties. It was common ground that both parties had agreed when the children were born they did not want the children in care and they adopted a “traditional” family structure with the Husband as the “bread winner” and the Wife as the children’s primary home based carer.
It was common ground that the parties’ marriage was unhappy for some time prior to separation, with the parties attempting counselling in an attempt, unsuccessfully, to save their marriage.
Prior to separation, the parties agreed that upon separation the children would live with the Wife and spend time with their father each alternate weekend and during holiday time. However, shortly after separation, the Wife commenced weekend employment and the children actually spend three weekends out of four with their father from Friday evening to Sunday evening.
The parties resolved property matters through direct negotiation and on 3 June 2008, entered into a Binding Financial Agreement following advice from their respective legal advisors. I will expand further on the financial aspects of the parties’ relationship later in this judgment.
In March 2008, the Wife commenced an internet relationship with Mr S.
Mr S, who separated from his Wife in November 2007, lives in [D] and has two children from his marriage, [Y] aged six and [U] aged four. They live with him at [Property B] [D] each alternate week.
The relationship between the Wife and Mr S developed very quickly. They met face to face for the first time in April 2008, and in May 2008 introduced themselves and their children to each other and determined their relationship was a committed and ongoing one and they wanted to live together in [D].
On 13 July 2008, the Wife met with the Husband to advise him of her new relationship and her wish to move with the children to [D]. The Husband was very distressed when advised of this by the Wife.
A series of discussions ensued between the parties. It is disputed as to whether the Husband agreed to the Wife moving with the children to [D]. The Wife’s evidence is she believed the Husband had given “tacit” approval to her move, and accordingly terminated her lease on her Melbourne property on 27 July 2008, and had her lawyers write to the Husband a letter of that date advising of her intended move to [D] on 18 August 2008.
The Husband’s evidence is he never agreed to the move, though his initial legal advice was he could do little to prevent the move, advice he relayed to the Wife and from which she inferred he was “rolling over” and agreeing to the move.
On 11 August 2008, the Husband commenced these proceedings.
On 16 August 2008, the Wife relocated to [D].
An interim hearing took place on 27 August 2008, and by consent, the Wife and children returned to Melbourne pending the final hearing. She and the children have taken temporary accommodation in a cabin at [omitted] Caravan Park, Warrandyte.
During this period, and to their credit, the parents continued to cooperatively co-parent, including arranging for the Wife and children to go to Adelaide for a wedding and for arrangements for the children’s birthdays in September.
Wife’s proposals
The Wife seeks orders that she be permitted to move to [D] with the children and that the children spend time with the Husband on alternate weekends in Melbourne, an additional weekend in [D] on the Husband choosing to do so, half school holidays and special occasions. The Wife proposes to do all the travel for one out of two of the weekend visits and to meet the Husband half way on the other.
The Wife indicated she was amenable to being flexible in these arrangements so that the children’s weekends with the Husband be altered so that any long weekend was spent with him as well as additional time in the school holidays.
Consent to relocation
It was the Wife’s case that she terminated her lease in Melbourne and arranged to move to [D] in August 2008 because she believed the Husband had consented to her relocating to [D]. The Husband denied he ever gave such consent and was critical of the Wife for terminating her lease and moving the children.
In the Wife’s affidavit filed on 19 August 2008 (“the Wife’s first affidavit) in paragraph 3(l), the Wife said:
“By the time we spoke on Wednesday 23 July 2008, our discussions had reached the stage where it was agreed that my husband would not oppose my moving with the children.”
In her second affidavit filed on 18 September 2008 (“the Wife’s second affidavit”) in paragraph 8(a) the Wife says:
“I maintain that tacit agreement had been reached (as to her moving to [D] with the children) on or about 23 July 2008.”
It was common evidence of both parties that there was a telephone conversation between the Husband and the Wife in which the Husband told the Wife his legal advice was he had little chance of preventing the Wife and children from moving to [D] and that he may as well “roll over”. It is also common ground the parties also had discussions on possible arrangements for the children’s time with the Husband upon their moving to [D], including a request by the Husband that the Wife forego a final $5000 payment due under the financial agreement to offset his travel costs in seeing the children.
The Wife interpreted these conversations with the Husband as an “agreement” by him to the move.
Criticism can be levelled at the Wife for moving with the children to [D] on or about 18 August 2008, in the face of the Husband’s then clear opposition and after being served with his Application seeking orders preventing her from doing, however I accept she had by then terminated her lease in Melbourne and at all times kept the Husband appraised of her movements.
I also accept at no time did the Husband want the Wife and children to move from the Melbourne metropolitan area and it is why this matter is before the Court.
Wife’s Financial Circumstances
The Wife argued that a move to [D] would be more financially secure for her and the children. It was her evidence that after the parties signed the Binding Financial Agreement the Husband “consistently tried to minimise the funds and resources he provided me” (as set out in paragraph 3(h) of the Wife’s first affidavit) and by way of example cited the Husband’s refusal to pay $250 kindergarten fees as the catalyst for her decision that she needed to move. The Wife’s financial vulnerability in Melbourne was vigorously challenged by the Husband.
In paragraph 3(h) of the Wife’s first affidavit, she states:
“We did not negotiate the property settlement through representatives but rather had our representatives codify the agreement. Throughout that process, and since the Agreement has been executed, my husband has consistently tried to minimise the funds and resources he provides to me. For example, although it was noted that he would pay the children’s school fees, he refused to pay [W]’s kindergarten fees for the second half of 2008, placing financial pressure on me that I could ill afford.”
In paragraph 8(v) of the Wife’s second affidavit, the Wife stated:
“I admit that I received 70% of the proceeds of the sale from the home however I was required to pay money back to my parents from these funds. The Applicant refused to pay kinder fees for Term 3 2008 even though they were only $250 per term.”
It is agreed that at the 13 July 2008 meeting between the parties, the Wife told the Husband she had invested in property in [D]. In the letter from the Wife’s Solicitors to the Husband dated 27 July 2008 (Exhibit JRL1 to the Husband’s Affidavit filed on 11 August 2008), the Wife Solicitors in paragraph 2 indicate:
“Our client and the children will be living permanently with her partner Mr S at [Property B], West [D] from on or about
16 August 2008. This four year old, four bedroom executive home, which our client has invested in since her settlement with you, has excellent facilities available for the children…”
In the Husband’s affidavit filed 9 September 2008 in paragraph 13(gg) he says:
“I also question what property [Ms Lawlor] has invested in. She has previously suggested it is [Mr S]’s property…”
Annexed to that affidavit is a title search conducted by the Husband’s Solicitors on 25 August 2008. Accordingly, the Husband knew in mid-August that the Wife had invested in Mr S’s property.
The Wife was cross-examined at some length by Counsel for the Husband as to why she hadn’t initially told the Husband that it was
Mr S’s property in which she had invested. Her answer that she did not think it was any of his business as they were separated and had achieved financial settlement. Whilst this is true, it raises the question as to whether she on some level felt she had acted somewhat hastily in involving herself in Mr S’s financial affairs.
Under cross-examination, the Wife gave evidence that she received the funds payable to her under the terms of the financial agreement dated
3 June 2008 on 4 June 2008, and that on 12 June 2008 she advanced the sum of $60,000 to Mr S to enable him to settle matters between his former wife and his father that allowed him to retain the property in [Property B], [D].
On the first day of the trial, the Husband’s Counsel specifically cross-examined the Wife as to whether she would be able to obtain financial assistance from her parents to enable her to obtain accommodation in Melbourne, either by way of purchasing a property or by way of rental. The Wife conceded that this assistance would be available to her. Counsel then specifically raised with the Wife whether her parents, who had advanced the sum of $60,000 to the parties to assist them in the purchase of the former matrimonial home, which amount was repayable to them under the terms of the financial agreement entered into by the parties, would re-advance her those funds in the event that she had real need. The Wife in evidence said:
“I am simply trying to work out in my head what my parents would say if I went back to ask them for $60,000 but, yes, the funds would be available somehow.”
The cross-examination of the Wife resumed the following day and it was only when confronted with the wording contained in the agreement between herself and Mr S (Exhibit W3) which reads as follows:
“We affirm that the total sum was made up in the following payments:
$60,000 cheque endorsed by Ms Z and Mr Z and deposited into MR S’s personal bank account on Friday 6 June 2008.”
that the Wife in her evidence indicated that:
“the money in question was a cheque written up at settlement to go back to my parents. That money was then gifted across to me.”
Under the terms of the Binding Financial Agreement, the Wife was to receive approximately $50,400 which was her 70% of the net proceeds of sale of approximately $72,000. From this amount, she paid some $10,000 to Mr S and was otherwise unable to account for the balance.
Her evidence in relation to not being able to afford $250 kindergarten fees shortly after the receipt of the funds payable pursuant to the Binding Financial Agreement and that she was financially insecure in Melbourne and that was one of the main reasons for her needing to move to [D] was overstated. In relation to the monies advanced to Mr S, the Wife mislead the Court.
I find that there is no financial impediment to the Wife being able to continue to reside in Melbourne.
The Husband’s Proposals
The Husband seeks orders restraining the Wife from relocating the residence of the children from the Melbourne metropolitan area and that the children live with him three weekends out of four from 4.00pm Friday to 6.30pm Sunday, half of school holidays and on special occasions.
In his evidence, the Husband confirmed that he has a significant relationship with both his children and they are soundly attached to him.
He spoke positively of the Wife as the mother of his children and of her parenting skills. He similarly spoke positively of their ability to communicate with each other in relation to their children and that post-separation, they have continued to be able to do this, albeit with more difficulty since the Wife advised him that she wanted to relocate to [D].
The Husband acknowledged that the Wife will continue to encourage the relationship between him and his children and that his opposition to the relocation did not arise from any concerns that there would be an overt attempt to undermine his relationship with the children, but that the relationship would be diminished because of the distance between Melbourne and [D].
The Husband gave evidence that in the event the children were to relocate to [D] he would, within the constraints of his employment, endeavour to attend special sporting and school events as well as visit them from time to time in [D]. However his real concern was that this was not something he would be able to do with any regularity and that as the children got older, there would not be the opportunity for an expansion of his time with them beyond weekends and school holidays.
The possibility of the Husband moving to [D] was not explored in the event that the Wife was permitted to relocate there with the children and in the absence of such evidence I have concluded that this is not an option that the Husband has considered, either because it is not something he is prepared to do or it is not possible given his current employment.
Dr Simon Kennedy
Dr Kennedy is a psychologist who prepared a detailed family report in which he confirmed that the children have a strong and meaningful relationship with both their parents and confirmed that both parents seem to cooperate well with each other in relation to their co-parenting of the children.
Dr Kennedy was strongly of the view that it would not be in the best interests of the children to relocate as that would have a detrimental effect on the ongoing relationship between the children and their father.
This is not the only consideration I need to take into account.
Dr Kennedy was concerned about the young ages of the children, particularly in relation to their developmental stages and how that impacts on their attachments with their parents. In his evidence,
Dr Kennedy said:
“From my experience with families with children between the ages of 2 and 4, and certainly from the literature in this area, it’s clear that in order for them to fully establish their relationship with parents that they need to have regular contact, regular time with that parent.”
When asked to define “regular time”, Dr Kennedy said:
“In general I would consider that the children would need to see each parent during each week and that might be for a period of time on each weekend or whatever, but that each week there should be some time spent between the children and that parent, and a significant period of time, not just an hour or two. The reason being of course is that children at this age have greater difficulty maintaining the relationship internally as opposed to children once they get to be older.”
Dr Kennedy also expressed concern about the number of significant changes that were happening in the children’s lives in such a short period of time, being the separation of their parents, that they were seeing their father less often, the development of their mother’s new relationship and the introduction of Mr S into their lives, the introduction of Mr S’s children into their lives, the possibility of living in a new family unit and sharing their mother with Mr S and his children, and moving from Melbourne to [D] away from family and friends.
It was Dr Kennedy’s view that the children would deal better with these changes if each was introduced gradually and separately with sufficient time for them to adjust.
It was Dr Kennedy’s evidence that it would be in the best interests of the children if they were not to relocate ever, but if they were to relocate that that should not take place until they were at least 10 years of age.
When challenged that his evidence seemed to lead to a conclusion that he would not support relocation in any circumstances, Dr Kennedy denied this but was unable to give an example of any circumstance where he thought relocation would be in the best interests of the children.
Dr Kennedy gave evidence that there would be a negative impact on the primary carer seeking to relocate and that in not being able to relocate and not being able to pursue a new adult relationship could be detrimental on the children. In this case, his solution was for Mr S to move to Melbourne. He gave no weight to the realities of Mr S’s obligations to his own children and did not seem to consider the possibility that perhaps the Husband could be the one to move to be closer to the children.
Mr S
Mr S’s evidence was that he and the Wife are in a long-term committed relationship and it is his hope that he and his children and the Wife and her children will form a family unit in his home in [D].
In his report, Dr Kennedy stated:
“With respect to the proposed arrangements with the children, it would appear that Mr S sees himself quite actively involved in the court proceedings. It appears that he might be taking the role of being firm about offers and negotiations.”
When asked to expand on this, Dr Kennedy, in his evidence, indicated that he thought Mr S saw he and the Wife creating an intact family for the children. He indicated it was not his impression that Mr S would stop the children or make it difficult for the children to see their father, but that if [X] and [W] were living in a situation where Mr S was effectively the father-figure, that the Husband would inevitably be somewhat sidelined and they would develop a stronger relationship with Mr S than with their father. However, Dr Kennedy did indicate there was no reason why the children couldn’t have a positive relationship with both Mr S and their father.
Best interests of the child
Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)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
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
However, the best interests of the child are not the only consideration.
It is established law that in relocation cases the best interests of the children remain the paramount consideration. However, that is not the sole consideration and a parent’s wish to relocate and rights of freedom of movement are also very relevant considerations.
In this case, both parties agree that they should have equal shared parental responsibility for the children. The co-operative co-parenting that the parties have put in place since their separation confirms that such an order should be made in this matter. However, there are important consequences which flow from such an order.
Where the parents have equal joint parental responsibility for a child, s.65daa of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent.
It provides as follows:1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
There is no application by either party that the Court make such an order, whether the Wife is permitted to relocate or not. Given the age of the children, the undisputed reality that the Wife is their primary carer and the Husband’s considerable work commitments, it is my view such an order would not be in the best interests of the children.
Sections 65daa (2) and (3) of the Act provide as follows:
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The application of the Husband is that he spend three weekends out of four with the children from Friday evening to Sunday evening, half school holidays and special occasions such as birthdays, Father’s Day and Christmas. Whilst he flagged that sometime in the future his time with the children may include school events and the possibility of additional time with the children, and this was something posited by
Dr Kennedy into the future, the Husband, despite being offered an opportunity to see the children during the working week, has not been able to spend time with the children other than in accordance with his proposals. It is therefore arguable that the Husband himself concedes that it is not practicable for him to do so at this time, even whilst the Wife and children reside in Melbourne.However, in the event the Wife and children were permitted to relocate to [D], the capacity for the Husband to attend special school and mid-week events would be severely curtailed.
When determining what is in the children’s best interests, the Court must consider the matters set out in ss.60cc (2) and (3) of the Act. Each of the matters contained in the subsections must be considered and assessed in the context of each of the party’s behaviours and proposals and a determination made of which party’s proposals best meet the children’s best interests.
Section 60cc(2) of the Act sets out the primary considerations which are as follows:
Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Whilst both parties have at times suffered from depression, this has in no way impacted on their ability to care for their children. Nor is there any issue whatsoever that the children are in need of protection from physical or psychological harm as a result of being subjected to abuse, neglect or family violence.
It is therefore the benefit of the children having a meaningful relationship with both of their parents that is the primary consideration to be considered. Both children currently have a meaningful relationship with both parents. There is no doubt however that the Husband’s relationship with the children will be impacted in the event that they are allowed to relocate as he will have less capacity to be involved in the children’s school life and extra-curricular activities into the future because of the physical distance between the parties’ homes.
Section 60cc(3) of the Act sets out the additional considerations to be taken into account which I will consider in turn.
Section 60cc 3(a) any views expressed by the child 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
[X], at the age of two, is not in any position to express a view in relation to the arrangements that are made for his care by his parents.
When seen by Dr Kennedy, [W] told him that she was really sad because she didn’t live with her dad, that she missed him so much, that she doesn’t see him as much and that she misses him because he is her friend.
Dr Kennedy pointed to this as one of the reasons he did not think it would be in the children’s best interests to relocate as he was of the view that for a child as young as [W], she needed to be seeing her father frequently and perhaps as often as twice weekly. When it was pointed out to Dr Kennedy that there was no application in those terms before the Court and that [W] had made the statements to him in circumstances that reflected the parties’ agreed arrangement since separation, Dr Kennedy conceded that it may be that [W] is responding to the loss of her father following the separation and not necessarily to the proposed relocation per se.
Section 60cc 3(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
Both parents agree that the children have a close and loving relationship with both of them. In addition, the children are close to their grandparents. They regularly visit the maternal grandmother in Paynesville and spend time with their paternal grandparents when seeing their father.
The children’s relationship with Mr S and his children is still in its early stages. Dr Kennedy observed that the relationship between Mr S and the children appeared to have developed well in a short period of time.
Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Both parents spoke very positively of the other in terms of facilitating and supporting the children’s relationships with each of them.
The Husband believes that the Wife will do all that she is promising to do to facilitate his relationship with the children in the event that she is allowed to relocate to [D] and that her desire to relocate to [D] is to pursue her relationship with Mr S and is not motivated in any way to undermine his relationship with the children.
His opposition to relocation is based on the concern that the distance will prevent him from being able to easily and spontaneously involve himself in the children’s day to day lives and the negative impact of having to travel up to seven hours each alternate weekend up and down the Hume Highway will have on the quality of the time he has with the children and on their willingness to undertake that journey on an ongoing basis over many years.
Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
If the Wife is permitted to relocate with the children to [D], there will be significant changes to the children’s circumstances. The children will be changing residence, towns, kindergarten for [W] and their proximity to their father. The distance between Melbourne and [D] is some 300 kilometres, and whilst this is not overseas or to the other side of the country, it will require the children to spend some three to three and a half hours in the car or on the train, one way, in order to see their father every second weekend. It will also prevent the Husband from being actively involved in kindergarten and school activities during the week on any kind of regular basis.
It will also limit special occasion contact such as birthdays if they were to fall mid-week.
Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There are obvious practical difficulties and expenses that will arise if relocation is permitted.
The Wife is prepared to undertake the bulk of the travel associated with ensuring the children spend regular time with the Husband. It is her proposal that the children see their father every second weekend during school term and that for one of those weekends, she will do all the driving, and for the other of those weekends, she will meet the Husband halfway at [omitted]. In addition, she has suggested she is amenable to delivering the children earlier on a Friday and to varying the weekends so that any long weekends are spent with the Husband. Her proposal is that the children spend half the school holidays with the Husband and again she has indicated a willingness for that time to be even longer if the Husband so desired and was able to accommodate same within his work commitments.
The Wife also indicated that she would be more than willing for the Husband to have an additional weekend with the children in [D] so that the existing pattern of three weekends out of four would continue. This would involve the Husband doing the travelling to [D] once a month, though the practicalities of where he could stay was not fully explored in the Wife’s proposal.
The Husband raised the concern of the impact of all this travelling on the children and in particular, the impact that would have on his relationship with the children. He was concerned that they would resent the travelling and associate that negative experience with their time with him.
The Wife’s evidence was that the children are good travellers and that she has many strategies in place, including DVD’s, colouring books, special games, talking books, singing etc to while away their time in the car.
Section 60cc 3(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Both parents have the capacity to provide well for the children’s physical, intellectual and emotional needs and have done so to date.
Dr Kennedy was critical of the Wife in that he concluded as follows:
“Ms Lawlor was allocating the father’s role with the children as relatively secondary in comparison to the establishment of the home and her new relationship. She was prepared to admit that the arrangement of her living in [D] would ultimately have an impact on the father’s relationship with the children and as such, appeared to be allocating this issue at a lower level of importance than what she wished for with respect to her own circumstances, current and future.”
Dr Kennedy was also concerned that the formation of the Wife’s new relationship with Mr S, and the speed to which she was asking the children to adjust to the changes that that was imposing on them was happening at a pace that was too fast for the children to cope with.
All parents have to balance their needs with those of their children. The Wife concedes that the speed at which the change is happening is very fast. I consider the pace of change is too fast for the children, particularly at their young ages, and it is incumbent upon the Wife to slow down a little to give them time to adjust.
Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The major issue relevant to this consideration is the relatively young ages of the children and how that impacts developmentally on the relationships that they are establishing with their parents and in particular with their father, who is not their primary carer.
I asked Dr Kennedy whilst he was giving his evidence whether it would be of assistance to the children if I were to allow the mother to relocate with them, but to delay that relocation. Dr Kennedy indicated that it could be of assistance, but that it would be impossible with children as young as [W] and [X] to say whether that would be in twelve months or eighteen months or some longer time because of the developmental issues. Dr Kennedy indicated that many developmentalists consider the ages of five or six and above as a period by which time they are able to hold relationships both in terms of their memory and emotional life.
Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parties have demonstrated a positive and appropriate attitude to the responsibilities of parenthood. The only possible criticism of the Wife is the haste with which she has imposed change upon the children.
Section 60cc 3(j) any family violence involving the child or a member of the child’s family
Not relevant.
Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
Not relevant.
Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It is difficult to assess whether any particular orders are less likely to lead to the institution of further proceedings between the parties.
Counsel for the Husband in closing submissions put that it was much better for the welfare of the children if the current status quo was to continue and that a ‘wait and see’ approach be adopted, particularly as to the durability of the relationship between the Wife and Mr S. It was the Husband’s position that if the relationship between the Wife and
Mr S was still strong in say a couple of years time, and the relationship between the children and the Husband could be shown to have been cemented, then the matter could be looked at again at that time, but to make orders in anticipation that that might happen would be premature.
I am not attracted to this ‘wait and see’ approach as it leaves everyone in limbo and does not enable either party to move on in their lives.
Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant
As the children’s primary carer, the happiness and wellbeing of the Wife is a relevant factor to the welfare of these children.
If I accept, which I do, that the mother is in a committed relationship with Mr S, and that she sees a long term future with him, then requiring her to stay in Melbourne permanently or for a long and indefinite period of time must have a negative impact on her happiness and sense of well-being. She is a young, attractive woman who has the opportunity to move on in her life with a good man who, similarly, wishes to be able to commit himself to that relationship.
Dr Kennedy, albeit somewhat reluctantly, conceded that there was research, and in particular as put to him by Counsel for the mother, being that of E. Mavis Hetherington & John Kelly, For Better Or For Worse: Divorce Reconsidered 88 (2002), that a happy parent will parent better and that children will obviously then do better.
Is this a relocation or variation of existing arrangements?
Counsel on behalf of the mother submitted that a move by the mother to [D] did not constitute relocation, but rather a variation of the existing arrangements in relation to the time the children spent with their father. In support of this, she cited the case of D & SV (2003) 30 Fam LR 91. That matter involved a move by the mother of some 115 kilometres. In that matter, their Honours held as paragraph [37]-[40]:
“Where the move is over a relatively short distance such as this one, we would caution against the making of orders that restrict the residence parent’s freedom of movement. The inquiry should be directed more at alternative contact or shared residence arrangements.”
“Clearly the less distance involved in the move, the more readily satisfactory alternative contact arrangements or logistical arrangements for shared residence are likely to be available…”
“The amount of emphasis to be given to one or other of the competing matters in a relocation case will change depending on the degree of relocation involved and the degree of interference with the existing arrangements.”
“Where a move interstate or overseas requires a dramatic and drastic change in the nature of the manner in which the parents share in their children’s lives, much emphasis might be given to the deleterious effects of such a move on the relationship with the other parent. Where the move is within the same state or certainly within the same city resulting in room for significant contact, such a move might well face less resistance from the court.”
A move that involves the children being some 300 odd kilometres from their father and which will involve at least six to seven hours of travel in order for the children to spend time with their father, and doesn’t enable him to spend mid-week time with them is clearly relocation.
Conclusion
In balancing the best interests of the children, and in particular, the impact of any move to [D] on their ability to continue their relationship with their father in a meaningful way with the freedom of movement of their primary carer, the mother and her happiness and the impact this will have on her parenting capacity, I am of the view that it would be in their best interests to allow the mother to relocate with the children to [D].
In forming this view, I am satisfied that the Wife will continue to facilitate the children’s relationship with the Husband and will do everything within her power to ensure that the travelling experience for the children is a positive and pleasant one.
Whilst the Husband’s concerns that his relationship with the children will be diminished and that his ability to be involved in the children’s future school and extra-curricular activities will be curtailed in the event that they were permitted to move, the existing arrangements for the time that the Husband spends with the children and his proposal into the future is for weekend time only.
This is in no way a criticism of the Husband, nor is it meant to be any inference that the Husband does not want to spend significant and substantial time with his children, but rather an observation that his work commitments are such that it would be extremely difficult for him to care for his children during the working week.
I also accept the Husband’s evidence that he would do everything within his power to ensure that he made arrangements with his employers to avail himself of the opportunity to attend any special school or other extra-curricular or sporting activities of his children as they get older.
However, the evidence of Dr Kennedy in relation to the age of the children and the impact of that on the development of their attachment with their father, as well as the benefit for the children in being able to adjust to the myriad of the proposed changes in their lives more slowly are such that I intend to injunct the Wife from relocating with the children until October 2009.
This allows the children a further twelve months to consolidate their relationship with their father and to adjust to the break-up of the relationship of their parents. It will enable the Wife and Mr S to consolidate their relationship and to confirm to each other and to the Husband that their relationship is a committed and long-term one. It will allow the relationship between Mr S and the children to grow and develop and will also allow the children, and Mr S’s children, time to adjust to the new relationships between their mother and father, and to get to know each other better.
In addition, the date chosen will enable [W] to have a term in a [D] kindergarten to make some friends to start primary school with in the following year.
I am satisfied that the Wife has the requisite financial support, through her parents, to be able to establish a household for herself and the children in Melbourne for the next twelve months pending her relocation.
Finally, I am satisfied that the parties, to their credit, will continue to communicate with each other in a positive, co-operative and flexible way to ensure that they will continue to co-parent and co-operatively make arrangements for the care of their children that will be child-focussed and in their best interests.
I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Bender FM
Associate: Sarah Hession
Date: 3 October 2008
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