LELE & JANACEK
[2015] FamCA 752
•11 September 2015
FAMILY COURT OF AUSTRALIA
| LELE & JANACEK | [2015] FamCA 752 |
| FAMILY LAW – CHILDREN – equal shared parental responsibility – with whom the child shall live – where the parties are to share the costs of child’s overseas travel – where the parties are to facilitate the chid maintaining contact with the other parent – where mother sought to relocate to New Zealand with the child – where the mother was relocating to New Zealand irrespective of whether the child was allowed to relocate with her –the effect on the child if relocation is considered |
| Family Law Act 1975 (Cth) s 10G s 60B s 60CA s 60CC s 61DA s 65DAA s 65DAC Evidence Act 1999 (Cth) s 140 |
| Banks & Banks [2015] FamCAFC 36 Mauldera & Orbel (2014) FLC 93-602 Wacando v The Commonwealth (1981) 148 CLR 1 S v Australian Crime Commission (2005) 144 FCR 431 Malcolm & Munro (2011) FLC 93-460 Morgan & Miles (2007) FLC 93-343 |
| APPLICANT: | Ms Lele |
| RESPONDENT: | Mr Janacek |
| FILE NUMBER: | BRC | 2683 | of | 2013 |
| DATE DELIVERED: | 11 September 2015 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 30 June, 1 and 2 July 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Alexander |
| SOLICITORS FOR THE APPLICANT: | Simonidis Steel Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Linklater-Steele |
| SOLICITORS FOR THE RESPONDENT: | MacDonnells Lawyers |
Orders
Parental responsibility
That all previous parenting orders are forthwith discharged.
That Ms Lele (“the mother”) and Mr Janacek (“the father”) have equal shared parental responsibility for the major long term issues of the child B born … 2006 (“the child”).
That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility and shall make a genuine effort to come to a joint decision, the types of decisions about which parents are required to inform and consult include but are not limited to:
(a)changing the name of the child;
(b)relocating the residence of the child so that existing parenting arrangements become impracticable;
(c)changing the school of the child;
(d)a significant medical intervention for the child.
Exchange of information
That the mother and father shall:
(a)keep the other parent informed at all times of their residential address and contact telephone number, email address and Skype address;
(b)keep the other parent informed of the names and changes of any treating medical or other allied health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child.
(c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child.
That the parents authorise the schools or day care centres attended by the child to give each parent information about the child’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the child (at that parent’s cost).
Living arrangements for the child
That in the event that the mother lives in Region C, the child shall live with the father:
(a)during the gazetted school term, each alternate week commencing from after school on Friday until after school the following Friday and each alternate week thereafter;
(b)during the gazetted school holidays, for one half of the Easter and Christmas gazetted Queensland school holiday periods being the first half in even numbered years and the second half in odd numbered years;
and otherwise live with the mother.
That notwithstanding order 6, in the event that the mother lives in Region C the child shall spend time with the parents on special occasions as follows:
(a)for Christmas Day:
(i) from 5:00pm on 22 December until 12:00pm Christmas day in even numbered years with the mother and in odd numbered years with the father; and
(ii) from 12:00pm Christmas Day until 5:00pm 28 December in odd numbered years with the mother and even numbered years with the father;
(b)on the birthday of the child (with the parent he child is not living with on that day):
(i) if a school day, from after school until 6:00pm;
(ii) if a non-school day, from 1:00pm until 6:00pm;
(iii) with that parent to be responsible to collect and return the child.
(c)on Mother’s Day:
(i) from 9:00am to 5:00pm with the mother;
(d)on Father’s Day:
(i) from 9:00am to 5:00pm with the father.
In the event that the mother does not reside in Region C, then the child shall live with the father and spend time with mother as agreed between the parties, and in default of agreement as follows:
(a)for all of the June/July and September/October gazetted school holidays;
(b)for the first half of the Easter and Christmas gazetted school holidays in even numbered years and the second half in odd numbered years.
For the purpose of orders 6 and 8, school holiday time shall commence and conclude as follows:
(a)commencement of the school holidays shall be deemed as after school on the day the school term finishes;
(b)conclusion of the school holidays shall be deemed as at 5:00pm on the day before the school term recommences;
(c)when a parent’s time falls in the first half of the holidays, commencing after school on the day the school term finishes and concluding at 5:00pm on the day calculated to be the half of the holidays;
(d)when a parent’s time falls in the second half of the holidays, commencing at 5:00pm on the day calculated to be half of the holidays and concluding at 5:00pm on the day before the school term recommences; and
(e)the number of nights in each school holiday period is to be used to calculate on half of the school holiday period, and if there is an uneven number of nights, the mother shall retain the additional night.
Should the mother not live in Region C, but visit Region C, then the child shall spend time with the mother during her visit, as agreed between the parties and failing agreement as follows:
(a)from after school Friday to before school Monday, or if the Monday is a non-school day, to before school Tuesday, with the mother to collect and deliver the child from school at the commencement and conclusion of time;
(b)from after school to 6:00pm on each Wednesday and Thursday, with the mother to collect the child from school at the commencement of time and deliver the child to the father’s home at the conclusion of time;
(c)on Mother’s Day from 9:00am to 5:00pm;
(d)on the birthday of the child (with the parent the child is not living with on the day):
(i) if a school day, from after school until 6:00pm;
(ii) if a non-school day, from 1:00pm until 6:00pm.
That in relation to any movements of the child pursuant to order 8 the:
(a)mother shall be responsible for booking and paying for the airplane ticket for the child to fly from Brisbane or D Town, Australia with the mother to advise the father of the details for the ticket no less than 14 days prior to the scheduled date of departure;
(b)father shall be responsible for booking an paying for the airplane ticket for the child to fly from City E, New Zealand to Brisbane or D Town, Australia with the father to advise the mother of the details for the ticket no less than 14 days prior to the scheduled date of departure.
That during the time the child is with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the child about personal life of the other parent;
(b)speak of the other parent respectfully;
(c)not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
Communication
That the child shall communicate with the parent the child is not living with as agreed between the parties, and failing agreement as follows:
(a)by Skype if available, or telephone if Skype is not available, each Tuesday and Thursday between 4:00pm and 5:00pm (in the time zone where the child is living) with the child to initiate the call and the parent which whom the child is living, to cause the child to do so;
(b)by Skype if available, or telephone if Skype is not available, between 9:00am and 10:00am on each special day if the child will not otherwise be spending time with that parent. for the purpose of this order, “special day or occasion” includes but is not limited to Christmas Day, Christmas Eve, Easter Sunday, the child’s birthday, the birthday or either parent, Mother’s Day and Father’s Day.
(c)by email at all reasonable times; and
(d)by post.
For the purposes of order 13, both parties shall:
(a)ensure that the child is available to receive the call;
(b)arrange for the child to initiate the Skype or telephone call to the other parent on the following night if for any unforseen circumstance, the child missed the call from the other parent;
(e)ensure the child has privacy during the calls.
That the child be at liberty to communicate with either parent via Skype or telephone at all reasonable times, and the parent with whom the child is with shall assist the child to make any calls the child requests.
Changeovers
In the event that the mother is living in or visiting Region C, where changeovers do not coincide with the commencement or conclusion of school, the father shall be responsible for collecting the child from the mother’s residence at the beginning and returning the child to the mother’s residence at the end of the child’s time with the mother.
That in the event the mother does not live in Region C changeovers shall occur with:
(a)the father causing the child to be delivered to the Brisbane or D Town airport at such time as is advised by the mother provided that day is on or after the commencement of the time with the mother;
(b)the mother causing the child to be delivered to the City E, New Zealand airport on such day and time as is advised by the father, provided that day is on the last day the child is spending time with the mother.
Passport
That the father hold the child’s passport with the passport to be released to the mother upon compliance with order 19 below, and both parties are hereby required to sign all requisite documentation to enable the child’s passport to be renewed at the appropriate time.
Travel out of the country
That save for as otherwise provided in these orders, when the child is spending time with a parent during school holidays, either parent shall be at liberty, during their school holiday time, to take the child overseas and in relation to same:
(a)the travelling parent shall provide the other parent with a copy to their itinerary for the trip including but not limited to departure and return times and dates; a contact telephone number for the travelling parent and the child and the address at which they will predominantly be based (provided that they will not be required to provide details of every address at which the child will stay) at least 21 days prior to the scheduled departure;
(b)the travelling parent shall then provide to the other parent a copy of the return air tickets for the child;
(c)during the trip the travelling parent shall arrange for the child to telephone the other parent on at least 1 occasion on each week the child is overseas; and
(d)that neither party unreasonably refuse travel.
Dispute resolution
That in the event that there is a dispute about the child or about the interpretation, implementation or enforcement of these orders, the parents before making any further application to the court shall:
(a)either attend counselling or mediation with an organisation recognised under the Family Law Act 1975 or by the Commonwealth Attorney-General; or
(b)participate in family dispute resolution with a Family Relationship Centre or a person authorised under s 10G of the Act.
Otherwise all extant applications be dismissed and the matter is removed from the list of active pending cases.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lele & Janacek has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 2683/2013
| Ms Lele |
Applicant
And
| Mr Janacek |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Ms Lele (“the mother”) seeks the court’s permission to relocate from Region C to City E in New Zealand with the parties’ only child, B, born in 2006 and hence presently 9 years of age (“the child”). Mr Janacek (“the father”) opposes that relocation. However the case did not prove to be quite that simple. There was a twist, which only came about on the last day of trial. Up until then the mother had been ambivalent as to what she would do in the event that she were not permitted to relocate with the child to New Zealand. However she changed her position, and via her counsel (she having concluded her evidence by then) told me that she was going to New Zealand irrespective of whether I permitted the child to accompany her or not. She seeks no alternative regime of orders for spending time with the child in Australia in the event that relocation is not permitted; she only seeks orders permitting her to spend time with the child in New Zealand.
The father’s position had been constant throughout the trial: he has always said that he has no intention of moving to New Zealand in the event that the child is permitted to relocate there with the mother. This case therefore throws up two starkly different options: either the mother is permitted to relocate to City E with the child, in which event the child’s relationship with the father will be substantially impaired; or alternatively the child remains in Australia, in consequence of which his relationship with his mother will be substantially impaired.
Further the parties are not agreed as to what orders should prevail on either outcome. For her part, the mother says that if she is permitted to relocate with the child to New Zealand, he should spend one half of the Easter and Christmas New Zealand school holidays with the father, and all of the June/July and September/October New Zealand school holidays with him as well. She further proposes that the father be permitted to spend time with the child in New Zealand during school terms for up to four times per year in blocks of up to two weeks on each occasion.
For his part, if relocation is permitted the father seeks orders that he only have one half of the Easter, June/July and September/October New Zealand school holidays and two weeks during the Christmas school holidays. He seeks no term time in New Zealand with the child; rather he proposes that all of those school holidays be spent by the child in Australia.
In the event that the child remains in Australia, the mother says that the child should spend all of the Easter, June/July and September/October gazetted school holidays with her in New Zealand and one half of the Christmas school holidays. She also proposes, in the event that she ever visits Region C again, that she be permitted to have an unspecified number of weekends with the child and three hours on each Wednesday and Thursday evening, together with some provision for special days. The father did not specifically traverse that proposal, no doubt because it was made only on the last day. Rather he proposed that if the child remained living in Region C, he should spend alternate week about time with the parents, save that in the Christmas school holidays, there would be a block of three weeks with each parent.
The parties are however agreed that irrespective of what orders prevail, there should be an order for equal shared parental responsibility for the major long term issues relating to the child.
BACKGROUND FACTS
The father
The father was born in 1976 and is therefore presently 39 years of age. He was born in Country G but moved with his parents to Australia in about 1980 when he was still very young. He grew up in Melbourne. He completed year 12 and immediately went into an apprenticeship. Upon completing that he set up his own business. He was running that business when he first met the mother in October 2002. He was then 26 years of age.
The mother
The mother was born in 1969 and therefore is presently 46 years of age. Although born in City E in New Zealand, she is of Country H ethnicity. She has one sister and one brother. Both of them and her mother continue to live in City E. Her father died in 2011.
The mother completed four years of high school and then did a business secretarial course. She also completed a travel consultant course but has never been employed in that field.
Her initial employment was for an insurance company, but she then moved within the organisation. She travelled overseas but returned to New Zealand and then worked in another field. She came to Australia in 2001, intending it to be a working holiday. She was 33 years of age when she met the father whilst on that holiday in 2002.
The relationship
In December 2002 the father and mother commenced living together. Initially they cohabited in rental accommodation but later moved in to live with the father’s parents in order to save for a move to Region C. They relocated to Region C in June 2004. They then set up a mobile business there.
It is not in contention that the parties separated on two occasions during the relationship. The first was for a period of approximately four months in 2009. The child was then only two years of age. During that time, the mother relocated to New Zealand with the child, and the father remained living in Australia for most of that time. They reconciled and the mother and child returned to Australia.
Then in April 2010 they commenced another separation. The child was then three years of age. There is an inconsequential dispute between the parties as to when they subsequently reconciled. The father says separation was for about one and a half years, with the parties reconciling in October or November 2011; the mother says it was for almost two years and the parties did not reconcile until February 2012. Nothing turns upon that dispute.
It is not in contention that for that period of time – irrespective of how long it was – the mother continued to live in Region C with the child. The child only spent sporadic time with the father.
Final separation occurred on 12 May 2012. the child was then 5 years of age.
Post-separation
Since separation both parties have continued to live in Region C. The father has, at least until last year, continued to operate his paint and panel business. Over time, the focus of the business changed, to become principally devoted to spray painting mining equipment. However the father asserts that he has recently injured his back in consequence of which the business needs to be restructured so that it employs contractors rather than requiring him to do much work.
After separation the mother has continued in part-time work as a book keeper with a carpet company. She is not an employee but rather a contracted consultant.
Although the father did re-partner post-separation, that relationship no longer continues. The mother has not re-partnered.
On 15 May 2013 the parties entered into interim consent orders in the Federal Circuit Court. Those orders provided for equal shared parental responsibility for major long term issues relating to the child. They also provided that the father was to spend time with the child as agreed, or failing agreement, on alternate weekends from after school on Friday until the commencement of school on Monday. Implicitly, the orders provided that the child would otherwise live with the mother.
The orders did not provide for any holiday time to be spent by the child with the father in default of agreement, or for any communication regime. However in fact the parties have been able to, from time to time, agree holiday times, and have implemented a liberal telephone communication regime.
On 28 August 2014 the orders of the Federal Circuit Court were varied to extend the father’s time on each alternate weekend from after school Friday to before school Tuesday.
Post-separation the child began to display some difficult behaviours. On 24 October 2012 he commenced seeing a psychologist, Ms I, who gave evidence before me. His initial presentation was one of aggressive, angry out-bursts at home and school, defiance and disobedience, lying, stealing and generally disruptive behaviour. It seems common ground that Ms I correctly identified that the cause of this was the child’s anger about his parent’s separation. I will detail his progress under Ms I’s care later in these reasons, but it is seemingly not in contest that his behaviour has substantially improved.
On 21 November 2012, the mother also commenced upon seeing Ms I. Although the mother had met Ms I in the context of the child’s consultations (during which Ms I noted the mother’s stress and anxiety) she was referred to Ms I by her general medical practitioner on a mental health care plan for treatment for anxiety, particularly panic attacks, and significant stress. Ms I diagnosed the mother as having “mixed anxiety and depressive disorder”. At trial that diagnosis remained. I will consider the mother’s psychological issues later in these reasons.
THE ISSUES
During the course of the trial and with the assistance of the parties, I identified the following as the substantial issues in this case, in the sense that their determination is likely to substantially bear upon the outcome. They are as follows:
1.What is the nature of the present relationship between each parent and the child.
2.How would the child benefit from a:
(a)meaningful;
(b)optimal;
relationship with each parent.
3.What benefits would relocating to City E, New Zealand, have for the mother, particularly in relation to:
(a)her financial circumstances;
(b)her family support.
4.If the mother and child relocated to City E, New Zealand, would it be reasonably practicable for the father to do so as well, and is he likely to do so.
5.What would be the effect on the father’s parenting capacity if he were to remain living permanently in Australia, but the mother and child relocated to City E New Zealand.
6.What would be the effect on the child of immediate relocation to City E, New Zealand, and particularly, what would be the effect on him of:
(a)any diminished relationship with the father;
(b)any improvement in the mother’s parenting capacity consequent upon her relocating;
(c)increased contact with the maternal family (and hence, Country H heritage).
7.If permitted to relocate with the child to City E, New Zealand, would the mother facilitate a meaningful relationship between the father and child.
8.What would be the effect on the mother’s parenting capacity if she were to remain living permanently in Australia.
9.What would be the effect on the child if the mother were to relocate to City E, New Zealand, without him.
In consequence of the mother’s changed position on the last day of trial, the following also became relevant issues:
10.Would the father facilitate a meaningful relationship between the mother and child if the child were to remain in Australia and the mother move to New Zealand.
11.What capacity does the father have to be the primary care provider for the child.
I will discuss those issues in that order in advance of a general traverse of the s 60CC factors, but after I have considered relevant statutory provisions and legal principles.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(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 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
In the event that equal shared parental responsibility is ordered, then if it is both in the child’s best interests and reasonably practicable, the court is obliged pursuant to s 65DAA(1) to then consider whether the child should spend equal time with each of the parents. If it does not so order, then it is obliged pursuant to s 65DAA(2) to then consider, if it is both in the child’s best interests and reasonably practicable, whether the child should spend substantial and significant time with each of the parents.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must consider in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
Relocation
The application of these provisions in the context of relocation cases has been discussed by many authorities. In the relatively recent decision of Malcolm & Munro (2011) FLC 93-460 the Full Court approved the earlier decision of Boland J in Morgan & Miles (2007) FLC 93-343, and particularly at paragraphs 79 to 81, where her Honour said as follows:
79. In considering whether the child should live with the parent who proposes to relocate a court:
·Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
·Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
·Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
·If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
·In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
·When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
·Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
- that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
- that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
- that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
- the non-relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
·Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
80. It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount but not sole consideration;
- that a parent wishing to move does not need to demonstrate “compelling” reasons;
- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement, remain valid.
81. What the legislation now requires is:
- consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
- if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility.
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
NATURE OF RELATIONSHIP BETWEEN CHILD AND PARENTS
With the mother
The mother has always been the primary care provider for the child. In those circumstances one might expect that the most secure attachment which the child had would be with her. However it was not controversial that in fact the child’s most secure attachment is with the father. That was the clear evidence of Ms I, who described the child’s attachment with the mother as “less secure.”
Ms I opined that the mother’s flat emotional affect was largely the cause for the lack of security in attachment.
Her opinion did not surprise the Family Report writer in this matter, Mr J. In his first Family Report, he observed that the child tended to “push boundaries and not comply immediately” with the mother’s requests. In the course of observing the mother and child whilst preparing his second Family Report, he particularly noted that the mother’s interactions with the child “did not reveal evidence of use of praise, encouragement or displays of physical affection.” He noted that the mother was not as verbally engaging as the father with the child and she “displayed a quieter interaction style.” He said “it was difficult to gauge the level of warmth and empathy from [the mother].” Nonetheless he formed the view that the child’s attachment with the mother was secure and the relationship a positive one.
Likewise it does not seem in dispute that the mother has difficulty on occasion in controlling the child. He is said to be disrespectful to her. He does not always comply with her requests. Sometimes the mother has had to seek the father’s assistance to have the child respect and behave for her. The father has apparently willingly involved himself in doing so.
With the father
As I have indicated, Ms I’s evidence was that the child’s most secure relationship is with the father. That was consistent with Mr J’s observations. In his first Family Report he observed that the father and child interacted well and clearly enjoyed the one-on-one time together. At paragraph 8.5 he said:
It was evident that there is a very positive relationship between [the child] and his father. [The father] interacted quietly with [the child] but he was appropriate in his manner in all respects. [The child] and his father thanked each other at various points.
Mr J noted that the child appeared very proud of his father, or at least what his father was able to do.
In the second Family Report interviews, much the same was observed. He said that the father made effective use of praise and encouragement when dealing with the child. He observed that “the interactions were marked by warmth and displays of empathy as well as signs of enthusiasm (laughter, smiles, voice tone, etc).”
It does not appear to be in dispute that the father can discipline and control the child when he is in his care.
In his first Family Report Mr J noted that “it was clear from [B’s] comments that he sees his mother as the person who looks after him and his father is the person he has fun with, although he also mentioned that his father reads with him.” Although perhaps less prevalent a theme in the course of the second Family Report, it remained a live issue at trial as to whether indeed that was a proper characterisation of the father’s relationship with the child.
Certainly the evidence does suggest that the father seems to engage in a far broader spectrum of activities with the child than does the mother. For instance he takes the child go-karting and to various car events. The child and father both share a great interest in motor vehicles. Whilst it would not be correct to say that the mother does not take the child on activities, it appears to be to a far less extent than does the father. In part that may be explained by her psychological state, but it may also reflect her more general approach to life and parenting. What is plain, however, is that the child associates his father with interesting and enjoyable activities, but that is not to say that the father does not also carry a proportionate burden of the less exciting aspects of the child’s life.
Discussion
I am satisfied that indeed the child’s most secure attachment is with his father, who engages with the child in a far more interactive way than does the mother.
BENEFIT TO CHILD OF MEANINGFUL/OPTIMAL RELATIONSHIP WITH PARENTS
The dichotomy between on the one hand a meaningful, and on the other hand an optimal, relationship was identified by Mr J in his Family Reports. In his oral evidence he explained that a meaningful relationship is one in which the child maintains a positive relationship with the parent, which is ongoing and stable. On the other hand he thought that an optimal relationship would involve the child having a more regular interaction with the parent, to the point where they would have a significant impact on the child’s life, bringing to it structure, enthusiasm and motivation. He said these were additional things that would be less likely to be brought into the child’s life by a parent who is seeing the child less regularly. The optimal relationship would see a greater opportunity for support and guidance. It was plain in his evidence that he acknowledged that although s 60CC(2)(a) of the Family Law Act refers to a meaningful relationship, that an optimal relationship was not necessarily thereby irrelevant.
His evidence was to the effect that the child would benefit from such an optimal relationship with the father, but thought that given the mother’s depression and what he described as a lack of insight into the importance to the child of the father in his life, the benefits derived by the child from an optimal relationship with the mother might not be as pronounced. I accept that evidence.
However necessarily this case looks to the future, and particularly therefore, brings into focus what benefits might be made available to the child from an optimal relationship with the mother if her depression was alleviated, or if she were able to develop a greater insight into the importance of the child/father relationship. I will discuss those predictions in course. For present purposes however it is suffice to say that I am satisfied that the child would benefit from a meaningful relationship with both parents, but is likely to derive greater benefit from an optimal relationship with the father, at least on the mother’s present state of psychological health.
BENEFITS TO MOTHER IN RELOCATION
Overview
The mother primarily relied upon two aspects which she said would benefit her from relocation. The first was improved financial circumstances. The second was improved family support. I will consider them individually.
Financial circumstances
The mother was adamant that her financial circumstances would improve with relocation to City E. However the evidence did not really establish any dramatic improvement was more likely than not to occur, as distinct from aspired to.
The mother was not challenged that presently she spends more than she earns; she earns $990.00 but spends $1,174.00 per week. Of that expenditure, $335.00 is attributable to rent.
To the extent that the evidence demonstrated the mother would be able to obtain employment in New Zealand, it was in her family’s business, a small retail store. In that employment, it was said that she would earn the equivalent of $616.00 per week in Australian dollars. That therefore is a decrease in earnings of about $370.00 per week. That is more than the saving in rent which she says she would have by virtue of being able to live rent free with her mother or other family members. Perhaps it is the case that there might also be savings in relation to electricity costs and phone or internet charges, but there does not appear to be any strong or overwhelming improvement in the mother’s financial circumstances likely to ensue from relocation.
In saying that I do not overlook that the mother may be able to obtain employment other than in her family business, for instance in the insurance sector where she appears to wish to be employed. However there was no evidence as to likely earnings in such employment, or the likelihood that the mother would be able to obtain such a position.
Moreover, there was the somewhat vague evidence that although the mother is presently working part time, her employer is offering her increased hours, but as a permanent employee rather than a consultant. The mother was unable to say what additional income would be earned by her; she seemed particularly focused upon the fact that her hourly rate would reduce. It is a matter of common sense that an employer is unlikely to be offering an employee more hours at a less overall take home pay. However the evidence does not permit me to go much further than making such general observations. Certainly it appears as though the mother has some prospects of obtaining increased income in Australia. However on the evidence I am not satisfied that the mother would experience any particular improvement in her financial circumstances if living in City E.
Family support
The mother grew up in a close family group. Those sorts of close connections are important to her. They are also the means by which she reaffirms her Country H identity and heritage. She has no family members living in Australia, although they do from time to time visit. She was not contradicted in her assertion that there are limited Country H cultural events and only a small Country H community in Region C. She was not challenged that if in City E, she would have much greater support and involvement with her family.
However the point made by the father was that it was by no means certain that that increased support would assist the mother’s psychological functioning. Particularly the father focused upon the fact that if not the sole trigger, then a substantial component of the mother’s stress and depression is her inability to control the child. Assuming that to be the case, then unless her relationship with the child were to improve in New Zealand, to the point where she was respected and obeyed by him, then there was no certainty that any increase in support would actually effect any real improvement in the mother’s functioning. That said, Ms I’s view was that it was more likely that the mother would recover if she had such family supports.
However in cross-examination by Mr Linklater-Steele, counsel for the father, Ms I conceded that if the child were to be relocated to New Zealand against his will, that would cause an adverse reaction in him. She went so far as to concede that it was “very likely.” This would likely cause him to act out, particularly against the mother. Necessarily that acting out, even with additional family support, is likely to be problematic for the mother. Presumably she will remain the principal disciplinarian. If the child were to resent her having relocated him to New Zealand, it may well be that he becomes far more difficult to manage that he presently is. Family support may not be sufficient to assist the mother to ensure her continued wellbeing and functioning.
Discussion
I am not persuaded that the mother would have substantially increased financial benefits upon relocation to City E, although it is possible. I am persuaded that she would have increased family support, however how that would play out on the ground if the child were to be resentful of relocation against his will, is fraught with difficulty and impossible to predict, other than to say that the child has a history of distress arising from the parties’ separation which expressed itself by antisocial behaviour, and hence it is quite likely that that would ensue again. That necessarily diminishes the value of any increased family support that the mother would have in New Zealand.
COULD FATHER RELOCATE
It was not pressed by the mother that it was reasonably practicable for the father to relocate to City E. Whilst the father does have a trade which presumably would be somehow transferrable to New Zealand, he has always been self-employed and there is nothing to suggest that he enjoys the level of contacts which he does in Region C in New Zealand. Moreover there is an issue in relation to the father’s health. It is said that he has recently had a back injury which would preclude him from heavy manual labour. Whilst the father’s counsel did not press this point with much fervour, it is a live issue on the material.
In any event, given the way the mother argued her case, it is not necessary for me to resolve this issue. However on the material before me, I could not be reasonably satisfied on the balance of probabilities that it would be reasonably practicable for the father to relocate to City E. Even if it were reasonably practicable, I am satisfied that the father would not do so, and he was not challenged in relation to his evidence to that effect.
EFFECT ON FATHER’S PARENTING CAPACITY IF CHILD RELOCATES AND HE DOES NOT
Within the confines of the limited time that he has had under the consent orders with the child, the father has been an enthusiastic parent. The only criticism mounted by the mother against his parenting is that he is a “fun dad” rather than one who does the less exciting aspects of parenting. However the mother conceded that the father and child had a loving, warm relationship and that the relationship was important. That relationship sees the father regularly involved in the child’s life and plainly he is an important figure to him.
Necessarily the question arises as to the effect on the father if the mother were to relocate with the child, in consequence of which his experience of the child would likely be substantially curtailed. In this respect, I have already observed that the mother proposed a far more generous regime of time between the child and father if relocation were permitted, than was sought by the father in that event. In part, that was because the father may have considerable difficulty, both from a time and financial perspective, in being able to avail himself of the admittedly generous scheme proposed by the mother. The mother’s proposal would see the father spending eight weeks of school holiday time with the child, together with up to as much as another eight weeks of school term time in New Zealand. Even accepting that as a self-employed business operator the father would have some job flexibility, the evidence does not persuade me that he would be able to spend eight weeks of school holiday time with the child in Australia, much less another eight weeks of term time with the child in New Zealand. Further, the amount of travel movements in the proposal of the mother would be a substantial financial impost on the father, and indeed the mother.
Accepting that the father is unlikely to be able to avail himself of the full extent of the mother’s proposal, it therefore seems likely that the father’s main experience of the child and vice versa will be during school holidays, albeit noting that there may be some school term time which the father is able to spend with the child in New Zealand. That would likely lead to a diminished range of experiences being shared between the father and child.
Overlaid on this is the father’s inevitable upset at the child being substantially removed from spending regular time with him. This is likely to lead to some resentment on his part towards the mother.
In relation to this issue Mr J opined in his oral testimony that there was a risk that if the father had less opportunity to be involved with the child, the relationship could fall down because, whether advertently or otherwise, it might begin to deteriorate. Therefore the concern was not so much one of parenting capacity, but rather the vibrancy of the relationship. I will therefore consider this when discussing the next issue.
EFFECT ON CHILD OF RELOCATION
Overview
I have already considered the benefits to the mother in relocation, and the effect on the father. However the court’s focus necessarily is largely upon the effect on the child of relocation. The father focusses upon the likely effect on the child of the diminished relationship with him. For her part the mother focusses upon the alleged improvement in her parenting capacity, and the benefits to the child of increased contact with her family, and hence Country H heritage. The father also briefly adverted to the prospect that the child would be confronted with new schooling in New Zealand, at a time of considerable distress for him.
I will consider those matters in that order.
Diminished relationship with father
The child will not see the father with anything like the frequency that he presently does if he is permitted to relocate. The compensation package offered by the mother is an increase in block time, both during holidays and school terms. I have already noted the difficulty which the father may have, both practically and financially, in availing himself of that regime. Upon balance, it seems clear to me that there will be a substantial diminution in the quality of the relationship between the child and the father, and the regularity of the experience of it.
The child is highly aware that that will be the consequence of relocation, and has both to Ms I and to Mr J voiced opposition to doing so. He specifically identifies that it is the loss of relationship with his father which motivates him in that respect. He told Mr J in the course of interviews for the second Family Report that “I wouldn’t get to see dad much” if he moved. He specifically said that “he wants to stay in Australia and see his father but he also wants to see his cousins.” However, he added that his mum and dad are “more important that anything” even though “he likes seeing his cousins.” He told the Family Report writer that he would like to spend more time with his father but was troubled about asking his mother for that because she may misinterpret that as meaning that he loves his father more than her.
At paragraph 5.22 Mr J concluded:
It was clear from his responses to questions that [the child] understands that if he lives in New Zealand, he will spend a lot less time with his father than he does now. It was also clear that the thought of this made him feels sad.
The child has also on occasion told Ms I that he would prefer to remain living in Australia where he would experience his father regularly.
It will be recalled that the child first saw Ms I because of his poor capacity to cope with his parent’s separation. It appears that he has now reconciled himself to that separation. However relocation will be likely difficult for him to cope with. Ms I was not challenged in relation to her evidence that his history of acting out at separation was a strong predictor that he would act out again upon relocation to a degree higher than an otherwise stable child would. She was unable to predict how long that would last other than to say it would be “a little while.”
The cessation of the child spending regular time with his father is all the more problematic because the most secure attachment he has is with the father. Moreover, there would be the reduction of the benefits flowing to the child from the prospect, or reality, of an optimal relationship with the father if in Australia, and at best a meaningful relationship if in New Zealand.
Ultimately the evidence only permits guarded predictions as to how the child will react, but I am satisfied that there would be a diminished quality of relationship between the father and child, and that, together with the relocation against his wishes more generally, will have an adverse impact upon the child.
Improvement in mother’s parenting capacity
I have already discussed the difficulty in making any confident prediction that the mother’s parenting capacity would improve consequent upon relocation. Particularly the improved financial circumstances that she contemplates may not eventuate, and if it be the case that a major part of her psychological ill health is founded upon the negative aspects of her relationship with the child, then family support may only go so far in alleviating her distress. Moreover, as I have just discussed, there is the problem that seems highly likely that, in the first instance, the child may regress to far more challenging behaviours upon relocation, which will need to be primarily dealt with by the mother. For that period of time at least, those increased challenging behaviours may substantially exceed any additional benefit which the mother obtains from increased family support.
Ms I, in the course of discussing the child’s secure attachment with the father and less secure attachment with the mother, was asked whether the attachment might become more secure with the mother in New Zealand, but said that it would not. The most she contemplated was that the mother’s capacity to manage the child’s worrying behaviours “might” improve in New Zealand. In part this might be because the mother felt that she would be better able to deal with it in New Zealand.
Upon balance I am not persuaded that in the short term there is likely to be any benefit to the child upon any improvement in the mother’s parenting capacity consequent upon relocation, and I cannot confidently predict any benefit after the child’s initial acting out abates.
Increased contact with family
There seems no doubt that the child greatly enjoys his cousins’ company and they are important people to him. However he himself identifies that his parents are more important than his cousins to him.
On his mother’s side the child has Country H heritage. Necessarily he will get to experience some aspects of that simply from increased time with his Country H family; however that said the mother’s evidence about her involvement with the child in Country H cultural events more broadly is a little underwhelming. It appears as though the most that she has done is engage in three cultural festivals.
It seems inevitable that the child will experience his Country H culture at some level irrespective of where he lives. I am persuaded that it is more likely to be at a some increased intensity if he were to live in City E rather than Region C, but the level of increased intensity does not seem great.
Other matters
The father cross-examined Ms I by reference to the prospect that the child may be without a male role model in New Zealand and may suffer adversely by being placed into a new school. As to the former, Ms I mistakenly thought that the maternal grandfather (who is deceased) would be the male role model for him. The mother identified that her brother and brother-in-law might be appropriate role models. I know little about either of those persons.
As to schooling Ms I agreed that in the past the child’s socialisation at school was a problem, which might re-emerge in a new school if he enters it under some emotional pressure. She sought to downplay that because the child is now more social than he previously was, but ultimately she conceded that the new school would potentially present an immense challenge to the child’s emotional resources. I accept that evidence.
Conclusion
Ms I conceded that in her view the child’s best interests would see him remain in Australia. She was not using that term in the technical family law sense, but rather on a more general level that it would be better for him. Obviously central to her thinking was the effect on his relationship with the father, and the effect of relocation generally. I am satisfied that indeed the likely net effect of relocation on the child will in the short term be a negative one, and in the medium term difficult to predict. There is certainly no clearly established benefit which would likely flow to him from relocation.
WOULD MOTHER FACILITATE MEANINGFUL RELATIONSHIP
This was a central battleground between the parties at trial. The father contended that the mother had a long history of only begrudgingly tolerating the relationship between the child and father, and excluding him from relevant therapeutic appointments, or even the knowledge that they were to be embarked upon. For her part the mother said that the father was misrepresenting the relevant events and history, and pointed to the fact that on at least five occasions she had either agreed to the father spending more time with the child, or offered such additional time herself.
The father also relied upon occasions when the child had spent school holiday periods in New Zealand when, contrary to the agreement between the parties, the child had not been made available at a particular time for a telephone call. The mother said that on those occasions she had not been able to coax the child back to take the call from his cousin’s house, nor made arrangements to have the call placed to the cousin’s house.
The father asserted that he was not viewed highly by the maternal family generally, and that the mother in that environment was subject to influence from her own mother, and perhaps other family members.
The father pointed to the fact that in order to obtain increased time with the child, he has had to bring applications, which although ultimately always consented to by the mother, only resolved at the hearing itself. He also pointed to the sometimes considerable difficulty that the parties have had in negotiating holiday time (which of course is not provided for in the current orders).
Whilst I am satisfied that there is a degree of misrepresentation in the father’s evidence as to the difficulty he has had in obtaining the time he wants with the child from the mother, there is an important piece of unchallenged evidence which speaks loudly as to how the mother views the father. It is contained at paragraph 5.10 of the second Family Report as follows:
[The child] made some further comments to suggest that he has been reluctant to ask his mother if he could spend more time with his father. However he indicated that he would like to spend more time with him. On questioning, he expressed a view that his mother might interpret his expressed wish to spend more time with his father as a statement that he loves his father more than her.
That statement was made by the child in the interview with the Family Report writer on 12 May 2015, and reported to the parties on or about 14 June by the Family Report of that date.
The mother was cross-examined as to what impact her knowledge of that wish on the part of the child had upon her, and more particularly her proposal. It seemed plain that she was unhappy with that particular piece of evidence, and certainly demonstrated no insight into the fact that the child obviously perceived her as being resistant to any increase in time with the father. To my mind, if the mother were keen to facilitate a relationship between the father and child, it would be unlikely that a child would be reluctant to ask her to spend more time. However more importantly, faced with such an expression of the child’s wishes, a parent who wished to facilitate a meaningful relationship between the child and the father would likely at least take into account the child’s wishes, and attempt to meet them. However the mother has not done so. In saying that I am conscious that the mother was faced with an imminent trial of these proceedings, which no doubt is stressful in itself and may impair sound judgment. However it speaks loudly as to the level of insight which the mother has to the importance of the relationship between father and son.
That was the criticism made of the mother by Mr J, who formed the view that she did not have much insight into the significance of the father/son relationship. Ms I conceded that perhaps the mother is jealous of the relationship between the father and the child, particularly because she does, by reference to time, most of the parenting of the child, and has limited financial assistance from the father in doing so. However whatever be the cause of the mother’s failure to appreciate the importance of the relationship between father and child and facilitate it, it nonetheless appears to be plain to the child that the mother would not support an increased relationship between him and the father.
However I am far from satisfied that the mother would seek to shut the father completely out of the child’s life if permitted to relocate. Rather I am satisfied that she would begrudgingly permit the meaningful relationship to continue, but will likely remain unappreciative of the benefits which flow to the child from such a relationship with the father.
EFFECT ON MOTHER’S PARENTING CAPACITY IF REMAIN IN AUSTRALIA
Although this had been identified as an issue during the course of the trial, it has largely fallen away by virtue of the mother’s statement that, if not permitted to relocate with the child, she will go to New Zealand anyway.
However that in itself gives rise to a new issue, namely what would be the effect on the child of the diminished relationship with the mother which would ensue in the event that she were to relocate and he were not. I will therefore consider that issue next.
EFFECT ON CHILD OF MOTHER’S RELOCATION
Because of the way in which the mother’s proposal emerged on the last day of trial, this was not a matter seriously explored in the evidence before me. At most the mother had previously expressed the possibility that she might relocate without the child, but had not expressed it as anything more than a possibility. It is not a matter specifically addressed by the Family Report, nor was Ms I cross-examined by reference to it. That said, Ms I did identify that she had discussed with the mother the possibility of such a move, but the effects on the child were not explored.
It has to be said that there was something quite unsatisfactory about the way in which the mother amended her proposal on the last day of trial in such a substantial way. It raises the prospect that the mother is seeking to bargain with the court using the child’s welfare as a chip. Plainly the mother must recognise that her relocation without the child would affect him considerably and adversely. In a sense she was saying to the court that unless it let the child relocate, she would herself effect emotional harm to him.
However even if that be the case, it does not absolve me from attempting to gauge the effect of the child of that separation. It is likely to be considerable. The child plainly loves both of his parents and expresses the view that they are the most important people in his life. He has to date been dependent upon his mother for much of his every day sustenance and support. Other than the question relating to the facilitation of the relationship between the father and the child, there is no criticism of her parenting. Indeed part of the father’s case is that the mother has been a perfectly adequate parent to the child to date.
The Family Report writer was asked in relation to this issue. He accepted that there was likely to be grief which would be normal in the circumstances but that there was nothing to suggest, given the age of the child, that he now would not adjust, particularly given the opportunity to spend significant time with the father. I accept that evidence.
There is every reason to think that the effect on the child of the removal of the mother from his life, except during holiday periods and any occasions that the mother may choose to travel back to Region C, will initially be substantial. He will doubtless need counselling support to cope. There is a live prospect that he will act out, much as he would if he were required to relocate against his will to New Zealand. However there may be an important difference. That is that indeed if he were to remain in Australia and the mother voluntarily returned to New Zealand, he would appreciate that she is doing that, rather than he being forced to do something against his will. However even if he has that level of insight – whether with or without professional assistance – there is likely to be profound sadness at the substantial reduction of the time that he spends with his mother. Beyond that the evidence does not really permit me to say.
WOULD FATHER FACILITATE MEANINGFUL RELATIONSHIP BETWEEN MOTHER AND CHILD
This appears to be uncontroversial, but untested. The father has never been the primary care provider for the child except for block holiday time. However it was not suggested to the father that he did not value the relationship between the child and the mother, and indeed he was effusive in his praise of the mother’s parenting. Of particular note is the fact that post-separation the father has on two occasions joined the mother and child for a Mother’s Day celebration at a restaurant. To my mind that is a telling illustration of the fact that the father values the mother/child relationship.
Moreover, the mother must have some confidence in the father’s desire to facilitate such a relationship given the alternative proposal she makes if relocation is not permitted.
I am satisfied that the father would facilitate a relationship between the mother and the child if the mother were to relocate without the child.
FATHER’S CAPACITY TO BE PRIMARY CARER OF CHILD
The mother opposed the father’s suggestion of equal time, not on the basis of any lack of capacity on the part of the father, but because she thought it would be destabilising for the child. Her proposal, if she is not permitted to relocate, necessarily is a concession that the father must be able to be a primary carer for the child. In the past when the father has had the child either on weekends or block holiday time, there has been no issue which would suggest a lack of capacity. In saying that I do not ignore the fact the mother says the father tires the child out by too much activity, but that does not really speak negatively to his capacity to provide.
I am satisfied that the father can adequately be the primary carer for the child.
SECTION 60CC FACTORS
Section 60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child's parents
I have already dealt with this in the discussion of the primary issues in this case.
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
This is not engaged in this case.
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
The child has expressed a desire to stay living in Australia in order to maintain a good relationship with his father. I do not have any indication of the child’s views in relation to separation from the mother. I give the child’s expressed wishes some weight, not because he necessarily appreciates the issues to a degree that would deserve much weight, but because the fact of his view is likely to in part inform his reaction to being required to relocate against those wishes.
Section60CC(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)
The only other persons relevant to the child in this context are his maternal grandparents and cousins. He appears to have some relationship with the paternal grandparents who remain living in Melbourne but it does not loom large in this case. I have adequately discussed the significance of the other relationships earlier in these reasons.
Section 60CC(3)(c): The extent to which each of the child's parents 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
This is not engaged in this case.
Section 60CC(3)(ca): The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
Considerable criticism was raised in relation to the father’s child support history. There were three main concerns. The first was that on occasions he has advised the Child Support Agency of income figures which were lower than he ought to have provided. As to that, even if it be true, nonetheless the father has then been met with substantial arrears which needed to be paid, and he has done so.
The second matter is that on occasions the child support assessment amount is plainly inadequately to in fact maintain the child. For instance, at present, the father is only paying $71.56 per month in child support, which plainly would not be sufficient to provide for the child. However that said, the father has met his assessments from time to time.
Finally it is said that the father has not declared all of his relevant income, by reference to his level of expenditure in the last two years. Unfortunately the level of generality with which those accusations were put make that conclusion impossible, at least on the balance of probabilities.
However notwithstanding the foregoing, one is left with the impression that the father has been reluctant to provide the mother with adequate financial support for the child from time to time, but that he has been prepared to directly contribute to expenses for the child.
Ultimately, notwithstanding the prominence which it had during the course of the trial, in the final analysis this matter does not loom large.
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
I have sufficiently addressed this earlier in the reasons.
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
I have sufficiently addressed this earlier in the reasons, although I should say that the evidence does not really permit me to determine the likely costs of travel between New Zealand and Australia, or the likely capacity of the parents to fund that.
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
I have sufficiently discussed this earlier in the reasons.
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
I have sufficiently discussed the child’s Country H background earlier in these reasons.
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
This is not engaged.
Section 60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
This has been sufficiently addressed earlier in these reasons.
Section 60CC(3)(j) Any family violence involving the child or a member of the child’s family
Family violence is not a factor in this case.
Section 60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child's family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
This is not engaged.
Section 60CC(3)(l): Whether it be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Plainly it would be in the best interests of these parties to have this as the final litigation between them. In that respect ultimately the mother was prepared to seek to register any judgment which permitted her to relocate to New Zealand with the relevant New Zealand Court. I am therefore satisfied that on either parties’ scenario there would unlikely be any further proceedings.
Section 60CC(3)(m) Any other fact or circumstance that the Court thinks relevant
The mother has a right to freedom of movement, and to choose her place of abode subject to domestic law. Otherwise I have sufficiently addressed the matters that I think are relevant to this case in discussing the issues.
PARENTAL RESPONSIBILITY
Both parties agree that there should be an order for equal shared parental responsibility. Irrespective of that agreement, the presumption under s 61DA would apply, and there is nothing in the material which would rebut it. I am satisfied that it is in the child’s best interests that both parents have equal shared parental responsibility for long term issues relating to him.
WITH WHOM AND WHERE SHOULD THE CHILD LIVE
The sad part of this case is that on either party’s proposal, the child will be the loser. That is because the father refused to contemplate relocation to New Zealand and the mother, albeit belatedly, now refuses to contemplate remaining in Australia. Either way, the child’s relationship with one of his parents will substantially be impaired.
The factors in favour of the father’s proposal are as follows:
·The child’s most secure attachment is with him;
·The child’s attachment with the mother is unlikely to improve with relocation;
·There is some risk that the mother will not facilitate a meaningful relationship between the father and child from New Zealand;
·In any event the child would not be able to thereafter experience an optimal relationship with the father, from which he would derive considerable benefit;
·The child is likely to react strongly to being forced to relocate against his will, which in the context of past troubling behaviours, predicts he is likely to react again, including by anti-social activity in any new school;
·The child is doing reasonably well at school in Australia, although there is still some troubling behaviour;
On the other hand the following factors are in favour of the mother’s proposal:
·There is the prospect of some improved financial circumstances for the mother in New Zealand;
·The mother will have increased family support in New Zealand;
·There is a real prospect that the mother’s emotional health will improve in New Zealand, and there is some prospect that her parenting capacity might improve in consequence;
·It would present the best opportunity for the child to have a meaningful relationship with the maternal family members generally, and experience his Country H heritage.
Weighing those factors in the balance I am persuaded that the best interests of the child lie in continuing to remain in Australia. In so concluding, I do not overlook the fact that inevitably – at least on the mother’s stated position – that will see his relationship with his mother substantially disrupted. Particularly I give weight to:
·The fact that the child’s most secure attachment is with his father;
·That on the mother’s proposal, whilst he would maintain a meaningful relationship with the father, it would not be an optimal one, and the child would obtain real benefit from such a relationship;
·The inevitable, at least short term, adverse reaction of the child to relocation.
Earlier in these reasons I have adverted to my concern that perhaps the mother’s final articulated position was more in the nature of a threat than a positive decision to relocate without the child in the event that the child were not permitted to relocate. However the mother went so far as to decline – according to her counsel, specifically on instructions – to seek orders for spending time with the child in Australia in the event that she did not relocate.
The only proposal on the table in that circumstance is therefore the father’s proposal, which would see an equal time regime. As to that, given the order for equal shared parental responsibility, I would be obliged to consider whether such a regime would be in the best interests of the child and whether it would be reasonably practicable. In the event that both of those considerations are established, then I am obliged to consider making such an order.
If the mother were to remain living in Region C plainly it would be reasonably practicable for the child to spend equal time with each of the parents. Therefore the only real question is whether it would be in his best interests. As to that:
·The child has expressed a desire to spend more time with the father;
·The father has expressed a desire for such time;
·There would be tangible practical and emotional benefits to the child in living in such an arrangement.
I am therefore satisfied that, in the event that the mother were to remain living in Region C, there should be orders for equal time as proposed by the father.
On one view making such an order would be sterile, because of the mother’s avowed intention never to avail herself of it. However in the event that the mother is indeed really seeking to call either the father’s or the court’s bluff, and she does not relocate, there would need to be further litigation between the parties. I am therefore satisfied that notwithstanding the mother’s express instructions, there should be orders as proposed by the father to cover the eventuality that the mother either does not immediately relocate to New Zealand, or does so, and returns in due course to Australia. That will mean the parties do not have to re-litigate this issue.
TIME AND COMMUNICATION
The father did not propose any orders to cover the eventuality that the mother relocated with the mother to New Zealand without the child. The only set of proposals put forward are by the mother. She wants all of the school holidays other than the Christmas school holidays, which should be split equally between the parties. She also seeks orders to cover the eventuality that she visits Region C to permit weekend time and after school time on Wednesdays, Thursdays and some special days.
As to communication, she seeks telephone or Skype calls each Tuesday and Thursday between 4:00pm and 5:00pm and between 9:00am and 10:00am on special days. Further, she seeks that the child be at liberty to communicate upon request via telephone or Skype.
The effect of the mother’s orders is that the child would never get to spend Easter with his father. In that regard I note that the father’s proposal, in the event that the mother and child lived in New Zealand, was to split the school holidays equally, whereas the mother’s proposal was that Easter and Christmas should be split, but June, July and September, October holidays spent wholly with the father.
Save for Easter, I am satisfied that the mother’s proposal is the best one to be applied to the situation prevailing assuming the mother does indeed relocate to New Zealand. That is to say that the child should spend one half of the Easter and Christmas school holidays with the mother, and all of the other school holidays with her. Particularly in my view:
·It will be essential that the child maintains the level of attachment that he has with his mother, and to the extent that it is possible, maintains a meaningful relationship with her;
·It will give the father some holiday time with the child, albeit I accept that for a period of about eight months, he will spend no holiday time with the child (ie between the end of the Easter holidays and the commencement of the Christmas holidays);
I am satisfied that the communication regime provided for by the mother is in the child’s best interests and will so order.
OTHER ORDERS
I am satisfied that the incidental orders sought by the father are appropriate and are in the child’s best interests and will so order.
CONCLUSION
For these reasons there will be orders as set out at the commencement of these reasons, and particularly:
·The orders dealing with the child’s time with the mother will be in accordance with her proposals on the scenario that the child continues to live in Region C but she does not, save that there will only be an order for the child to spend one half of the Easter holidays with the mother;
·The orders proposed by the father, should the mother not be permitted to relocate, will apply in the event that the mother chooses not to relocate;
·The incidental orders otherwise sought by the father will be made.
I certify that the preceding one hundred and forty one (141) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 11 September 2015.
Associate:
Date: 11 September 2015
Key Legal Topics
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Family Law
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Jurisdiction
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