LONDON & LONDON
[2019] FCCA 2948
•23 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LONDON & LONDON | [2019] FCCA 2948 |
| Catchwords: FAMILY LAW – Parenting – relocation. |
| Legislation: Family Law Act 1975 (Cth), ss.60B. 60CA, 60CC, 61 DA, 65DAA |
| Cases cited: Paskandy & Paskandy [1999] FLC 92-878 MRR & GRR [2010] 240 CLR 461 |
| Applicant: | MR LONDON |
| Respondent: | MS LONDON |
| File Number: | AYC 49 of 2019 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 17 & 18 September 2019 |
| Date of Last Submission: | 18 September 2019 |
| Delivered at: | Launceston |
| Delivered on: | 23 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Southey |
| Solicitors for the Applicant: | Belbridge Hague |
| Counsel for the Respondent: | Ms Dart |
| Solicitors for the Respondent: | Tarella Law |
ORDERS
That the parents have equal shared parental responsibility for the child [X] born … 2012 (“[X]”).
That [X] live with the mother.
That [X] spend time and communicate with the father as follows:
(a)during school terms each second weekend between Friday at the conclusion of school or 3.00 p.m. if not a school day until the Monday at the commencement at school or until 5.00 p.m. if not a school day;
(b)on each Wednesday from the conclusion of school or 3.00 p.m. if not a school day until Thursday morning at the commencement of school or 9.00 a.m. if not a school day;
(c)during each term school holiday from the second Monday at 5.00 p.m. until the following Monday at the commencement at school or 9.00 a.m. if not a school day;
(d)in the summer school holidays in 2019/2020 and in each alternate year thereafter for:
(i)weeks 3, 4 and 7 of such holidays with the week being from Friday at 5.00 p.m. until the following Friday at 5.00 p.m.;
(e)in the summer school holidays in 2020/2021 and in each alternate year thereafter for:
(i)weeks 1, 2 and 5 of such holidays with the week being from Friday at 5.00 p.m. until Friday at 5.00 p.m.; and
(f)At such other times and variations of the above as may be agreed between the parties from time to time in writing.
That in any event [X] have reasonable telephone communication with the parent other than the parent with whom she is living with from time to time.
That for the purposes of these orders, weekend and Wednesday time for [X] with the father be suspended during all school holidays.
IT IS NOTED that publication of this judgment under the pseudonym London & London is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ALBURY |
AYC 49 of 2019
| MR LONDON |
Applicant
And
| MS LONDON |
Respondent
REASONS FOR JUDGMENT
Applications
These are proceedings in respect of the parties’ only child, [X] born … 2012, (“[X]”) aged 7 years.
[X] currently lives primarily with her mother in Town A and spends time with her father each second weekend from after school on Friday until 5:00pm Sunday and each Wednesday overnight together with block periods during school holidays.
The father is that the applicant. He proposes an immediate extension of the [X]'s time with him on weekends so as to conclude on the Monday morning and then for [X] to then live on a week about basis between the parents from the start of the term one of the 2020 school year.
The mother in her Response asks for orders whereby she be permitted to relocate with [X] to Perth, Western Australia and that [X]'s time with the father then take place during each school holidays and during any reasonable time when he can travel to Western Australia.
Should the Court not accede to the mother's application for the relocation of [X], then the mother takes a more conservative view of [X]'s time with the father but with [X] to remain living primarily with the mother.
Both parties asked for orders for equal shared parental responsibility for [X].
The Issues
The major issues for the Court to determine are the following:
a)Are [X]’s best interests served by her being permitted to relocate with her mother to live in Perth or to remain living in Town A; and
b)the terms and nature of [X]'s time with the father whether or not she be permitted to relocate to Perth. Specifically, whether it is in [X]'s best interests to live in an equal time arrangement between the parents should she remain living in Town A.
Background
The parties commenced a relationship whilst they were still in the high school. They started living together in 2005 and married on … 2010.
[X] was born on … 2012.
The parties separated for a time between May 2016 and July 2017, reconciled, and then finally separated in February 2018.
[X] has remained living primarily with the mother since separation. The father's time with [X] was initially relatively limited but extending to the current arrangements set out above and confirmed pursuant to interim orders of 1 April 2019.
The parties, to their credit, have resolved their financial issues by way of final orders made 14 June 2019.
The Court has the benefit of a family report prepared by Ms B and released 12 August 2019.
The father has re-partnered with Ms C and has cohabited with Ms C since December 2018. Ms C has no children. She is apparently employed as a Manager in Town D. Ms C did not provide an affidavit for these proceedings.
There is no evidence that the mother has re-partnered.
During the relationship the parties lived something of a nomadic lifestyle. They have lived in Town E, Queensland and apparently consistent with the mother's long-held desire to live by a beach. They have lived in Town F. The mother has pursued some studies in Melbourne which required her to be in Melbourne for at least a number of days each week.
Both parties now live in the Town A area having moved in and out of Town A on a number of occasions.
The mother's parents, although separated, live under the one roof in Perth, Western Australia. They have also lived in Town A at times. The evidence is that the maternal grandmother is a carer for the grandfather.
The mother has a sister who lives in Melbourne. The father's extended family live in the Town A area.
[X] has attended G School in Town A since her prep year in 2018.
The father is self-employed as a tradesman. His business is developed to the stage where he employs others and effectively operates as the Manager/Administrator of the business. That business is based in Town A.
The mother is employed as a customer service representative with Employer H in Town A on a casual basis. She is trained as a technician but has not practised in her trade for some years.
The Evidence
Both parties provided affidavits, gave evidence, and were cross-examined. Neither party adduced any evidence from any other persons.
The father was an impressive witness. He gave his evidence in a considered, informed and child focused manner. He was responsive in cross examination. Notably, he was able to be spontaneously complimentary of the mother herself and in her parenting. His criticisms of the mother, in so far as there were any, rested in her apparent reluctance to facilitate what he thought to be reasonable or increasing time for [X] to spend with him.
The mother was not so impressive a witness. She was at times emotional. Whilst it was abundantly clear to the Court from the commencement of the evidence that the mother has a strong desire to live in Perth, she was at pains to emphasise this point at all times and also ready to criticise the father personally and in respect of his parenting commitments at every opportunity so as to shore up her case.
Whilst noting the difficulties that parents endure in wishing to relocate with children following separation for all the variety of reasons, the mother states that she is committed to remaining in Town A with [X] should the Court not be inclined towards her application to relocate [X] to Western Australia. It is clear, however, that such a prospect is not one that this mother would favourably embrace.
The Family Report
The author of the family report, Ms B, gave evidence and was cross examined briefly. Ms B’s report is non–committal in respect of the mother's proposal to relocate with [X] to Perth. She does, however, insightfully note at [45] – [46] the following:
Matters of relocation involving significant geographical distance are complex and challenging in nature. Maternal reasons for proposing relocation to Perth appear understandable in the circumstances. The impact of improved maternal emotional health and happiness are acknowledged, this being of benefit to [X]. However, paternal reservations and fears of losing the emotional connection and bond with his younger daughter are also considered reasonable and not without merit. It appears unlikely that the parties will be able to reach agreement in respect of the proposed maternal relocation, each having strongly held personal views.
It is considered that maternal relocation will have certain consequences for [X]. The opportunity to continue spending weekly time in paternal care will cease with more limited planned arrangements in place such as during school holidays or when additional visits are possible. Whilst weekly telephone or other electronic forms of communication are useful tools that can be utilised to maintain contact between father and daughter, it is considered that there are limitations as a consequence of an absence of direct personal interactions. The opportunity for paternal involvement in [X]'s day-to-day life including school and sporting or recreational activities are also limited.
Ms B makes recommendations as follows from [47]-[50]:
·that both parties continue to have equal shared parental responsibility for [X];
·that [X] remain in primary maternal care;
·that [X] continue to have the opportunity of maintaining a meaningful parental relationship with the father;
·if the mother remains living in the Town A area, the current arrangements to continue with consideration of an additional overnight on alternate weekends to include Sunday with changeovers taking place at school;
·overnight on Wednesdays with changeovers occurring at school;
·additional block time during school holidays and on special occasions with the opportunity for telephone contact with each parent.
It (sic) the event of maternal relocation to Perth, that [X] have the regular opportunity during the week to communicate by telephone or other electronic means with the father and to spend planned time as a minimum during school holiday periods; once every school term with the mother travelling to Town A with [X]; once every school term with the father travelling to Perth and other times as agreed between the parties.
That the parties communicate by text and emails in respect to [X] only.
That [X] not be exposed to parental or family conflict or expressed negative comments in relation to the other parent or extended family members.
That the parties attend a Post Separation Parenting Orders program to assist in the area of future decision-making and communication.
The Father’s Case
The father says that he has a good and established relationship with [X] which is based on a high frequency of time between them. He says that this relationship will be jeopardised by the mother's proposal to put distance between he and [X] and hence lessen the frequency of such contact. The father argues that the mother has historically attempted to frustrate a full and flourishing relationship between he and [X]. The father says that the mother's motivation for relocating with the [X] to Western Australia is a personal one, and not one based on [X]'s best interests in that he says that the mother has always disliked Town A and has always wanted to live ‘by the beach'.
The Mother’s Case
The mother agrees that she dislikes Town A. The mother says that she has expressed these sentiments to the father since early in their relationship and such is evidenced by the many moves that the parties have made. The mother says, however, that her prime motivation is to both support her ageing parents and to have their support for her personally and in her parenting of the [X]. The mother says that no such family support exists in Town A for her. The mother says that she will encourage, facilitate and effectively be financially responsible for [X] travelling to Town A to be with her father for each school holiday period and that the relationship can be maintained by skype and other media. The implication of the mother's argument is that it would be in [X]'s best interests for her primary carer, namely the mother, to be happy, settled and comfortable in her parenting of the child.
Relevant Law
It is proper to observe that in parenting cases such as this involving the anticipated relocation of a young child are among the more difficult and complex matters coming before the family Courts. Whilst the majority of parenting matters will involve disputes of only relatively discrete degree of ambit where the issues might be the number of nights in a fortnight for a child between his/her parents, the prospect of a relocation of a child will almost inevitably leave one or other of the parents aggrieved by the result. That is, if the relocation is permitted, then the remaining parent will understandably suffer a significant sense of loss and angst in the perceived loss of a frequent relationship and the practical difficulties in maintaining a relationship with the child. The nature of that relationship between a child and parent will be substantially changed in its nature, frequency and regularity where the expected parental enjoyment of spontaneous and frequent involvement will be lost.
Conversely, however, should a Court not permit the relocation of a child, then the primary carer parent will feel the 'right' of freedom of movement to be thwarted and they will also be left aggrieved. That parent will be effectively 'forced' to live in a locality contrary to their preference. Their own personal ambitions may be lost. They may be deprived of the physical and emotional support from family and friends. Expectations will remain unfulfilled.
As such, whatever the decision made by the Court, it is likely that any existing communicative and cooperative relationship between the parents themselves will be tested and replaced by a sense of distrust, a lack of cooperation and difficult communication.
Nevertheless, against such a background, it is important to understand that the Family Law Act 1975 (“the Act”) does not itself deal with any specific category of 'relocation case'. Indeed, the Act itself is silent as to the notion of 'relocation'. It follows, therefore, that a relocation of a child is neither expressly prohibited by law nor is there a presumption against it. That is, a proposal by a parent to 'relocate' a child is just one consideration in the plethora of factors to be taken into account in the overall task for the Court in determining the best interests of the child in respect of the child's living and parenting arrangements. It is the best interests of the child that is the Court is paramount consideration.[1]
[1] Section 60CA Family Law Act 1975 (Cth)
Significantly, relevant Full Court decisions in Paskandy & Paskandy[2] and Taylor & Barker[3](which traverse the significant amendments to the Act made in 2006) agree that there can be no dissection of a parenting matter into discrete issues of, firstly, which parent a child shall live with and, secondly, a separate issue as to whether the relocation should be permitted. The Court in Taylor & Barker observed at [60]:
…In our view, his Honour dealt with the relocation proposed in the context of his consideration of s60CC and s65DAA, at least in so far as it was possible to do so. It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the relevant s60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s65DAA.
[2] [1999] FLC 92-878
[3] [2007] FLC 93-345
Section 61DA of the Act provides a presumption that it be in a child's best interests for both parents to have equal shared parental responsibility for that child. That presumption does not apply if the Court is of the view that there has been family violence or abuse in respect of the child. Alternatively, the presumption may be rebutted on evidence that equal shared parental responsibility is not in the best interests of the child. In the matter now before me, I am satisfied that it is in the child's best interests for the parents to exercise equal shared parental responsibility as, indeed, it is the position of each of the mother and the father.
Importantly, however, upon the presumption applying or the Court ordering equal shared parental responsibility, a mandatory course of statutory and intellectual consideration follows in respect of the child's living and parenting regimes. Firstly, the Court is to consider whether it is in a child's best interests and reasonably practicable for the child to live in an equal shared care arrangement between the parents. In this sense, the peculiarities of matters involving a relocation have been visited upon by the High Court in MRR & GR[4] where their Honours emphasised the dual requirements of parenting orders to be both in the child's best interests and reasonably practicable. At [15] their Honours observed:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s61DA(1) is not determinative of the questions arising under s65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in X was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
[4] [2010] 240 CLR 461
Consequently, and following from their Honours’ comments in MRR & GRR, it is obvious that a relocation of a child of any significant distance from the remaining parent effectively does not allow for a regime of 'equal time'. Similarly, if the Court is of the view that a regime of 'equal time' is either not in the child's best interests or is not reasonably practicable then the Court is called upon to consider whether the child living in an arrangement of 'substantial and significant time' between the parents is both in the child's best interests and reasonably practicable. The same prohibitions apply if the position of one of the parties is to relocate a significant distance from the other parent.
These difficult matters of the potential relocation of children have troubled Courts over many years. However, a course of Full Court authority has elicited a set of historical 'principles' which remain valid and of considerable assistance to trial judges.[5]
[5] Sealey & Archer [2008] FamCAFC 142; Starr & Duggan [2009] FamCAFC 115; McCall & Clark [2009] FamCAFC 92
Those 'principles' can be summarised thus:
a)relocation matters are to be determined in accordance with the provisions of Part VII is of the Act;
b)the child's best interests remain the paramount but not the sole consideration;
c)a relocation proposal is to be evaluated within the context of the necessary findings in relation to a child's best interests (section 60CC factors) and where appropriate section 65DAA (reasonably practicable);
d)the Court must consider the parties’ proposals, including the advantages and disadvantages of the proposed relocation and may be required to formulate proposals itself in the best interests of the child;
e)neither party bears an onus to establish that a relocation or a continuation of an existing regime will best promote the interests of the child;
f)an applicant for relocation need not show 'compelling reasons' in support of the proposed relocation but must produce probative evidence which permits the Court, on balance, to find a parenting order involving a relocation be in the child's best interest; and
g)the child's best interests must be weighed and balanced with the 'right' of the proposed relocating parent’s freedom of movement but that such a 'right' must ultimately defer to the child's best interests.
The child's best interests being the paramount consideration, such interests are determined by referencing the probative evidence and the parties’ proposals to the numerous considerations set out in s.60CC(2) and (3) of the Act. Such considerations are to be seen against the broad objects and principles of the Act set out in s.60B as follows:
(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 60CC(2) and (3) considerations are divided into 'primary’ and 'additional' considerations. Section 60CC(2)(b) provides a primary consideration that the Court make orders where necessary to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. To the credit of these parents, such issues do not arise in the matter now before me, despite the relationship between the parents being non-communicative and relatively antagonistic.
The other primary consideration is that the Court should make orders which consider ‘the benefit to the child of having a meaningful relationship with both of the child's parents’. This consideration obviously assumes some real importance in the father's case now before me are and usually does so in matters involving a potential relocation of a child. Importantly, however, and whilst this is a primary consideration for the Court, it is not a determinative one as the Full Court in Champness & Hanson[6] observed as follows:
103.The submissions of Counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s60CC(2)(a)directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors.
[6] [2009] FamCAFC 96
Section 60CC Factors
Section 60CC(2)(A) – the benefit to the child of having a meaningful relationship with both of the child's parents.
This is a consideration which grounds the much of the father's argument against [X] relocating to Perth. The father says that he currently has an established and meaningful relationship with [X] but that this will be severely and negatively impacted by the change in the nature and frequency of the relationship by the mother's proposal.
Perhaps surprisingly and contrary to the tenor of the father's evidence, the mother volunteered in the witness box that she considered [X]'s relationship with the father to be a 'developing one'. Similarly, to the family reporter, the mother described [X]'s relationship with the father as “developing, they are getting to know each other, [X] wants to spend positive time with him and enjoys this.”
Whilst the definition of 'meaningful' does not perhaps enjoy universal agreement among academics and judicial officers, I am content to engage synonyms such as 'successful', 'comfortable', 'established’, and the like. Whilst to the authorities make it clear that the consideration for the Court accordingly is in respect of the quality of time for children with a parent rather than simply the quality of such time, it is equally clear that aspects such as the frequency, regularity and type of contact between a child and a parent serve to contribute to its 'meaningful' is nature.
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 a matter in which Counsel for either party make submissions in respect of this factor.
Section 60CC(3)(a) – any views expressed by the child and any factors bracket 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] is just seven years of age and might not ordinarily be understood to be able to rationalise an informed preference as to her living and parenting arrangements. Some insight into the maturity of this young girl are, however, evidenced from the family report. At [32] it reported as follows:
[X] was willing to spend time with the Report Writer on the day. She impressed as a bright girl able to verbally express some of her thoughts and feelings in relation to her family circumstances appropriate to her age. [X] was able to describe the current parenting arrangements. She commented that she enjoys her school, particularly liking the playground, reading and going to the library. She stated that she has friends at his school. [X] expressed positive comments in relation to spending time with her father adding that she likes him picking her up from school. She described 'feeling good' spending time in paternal care. She added that she enjoys visiting extended paternal family members such as her grandparents who own a hotel at Town F, her cousins and being with the dog '…'. [X] described the paternal partner, Ms C as 'nice' adding that she has 'fun’, ‘dad tells funny jokes and I have my own room' in the paternal home. [X] made comment that she thought her time with her father felt 'just right’ and I have a really good time.
[X] also made comment in respect of her mother at [33] of the report as follows:
[X] described her mother as 'nice' and that they like dancing and singing to the radio. [X] commented that her maternal grandmother lives in Western Australia and that she misses her. She added that she talks to her maternal grandparents often by telephone and that she has visited them in Perth. [X] recalled her parents ‘fighting, it may be feel sad, I want them to talk not using angry words, I wish they could talk to each other using nice words'. It is noted that [X] did not talk of the maternal proposition to live in Western Australia or offer thoughts in relation to this issue.
[X] was observed with the parents and at [36] and [37] and noted was comfortable in the presence of each of her parents and transitioned easily between them.
Section 60CC(3)(b)(i)– the nature of the relationship of the child with each of her parents.
Significantly, both the mother and the family reporter identify [X] as being in a 'developing' relationship with the father. [X] is just seven years of age. Specifically, the family reporter [43] opines:
It is considered Mr London’s relationship with is (sic) [X] strengthening post separation due to spending planned, focused and positive time with her'.
Experts often advise these Courts that relationships between younger children and a parent develop and strengthen by way of a higher frequency of contact. The mother's proposal, of course, will significantly lessen than that frequency of contact. Whilst the loss of direct contact might be supplemented by the use of various media, it is also generally accepted by those experts that this is not an adequate or optimum substitute for the benefits of direct contact between a young child and a parent.
The mother's proposal would also impact the nature of the relationship between the father and the child in various ways moving forward. Obviously, the opportunity for flexible and spontaneous contact such as participation in school events would be lost for all practical purposes. Further, from [X]'s perspective, the relationship with both of her parents would change measurably. Firstly, she would come to see her mother, and rely on her, very much as a primary parent and attachment figure. Conversely, she would become more of a visitor to her father's home by reason of the loss of frequent direct contact.
Section 60CC(3)(c) – the extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about long-term issues in relation to the child; spend each time with the child; and communicate with the child.
The mother is critical of the father's ‘hands on' involvement with [X] prior to separation. He is reluctant to make any admissions accordingly. Nevertheless, both the mother and the family reporter observed [X]'s relationship with her father to be 'developing' which might give some corroboration to the mother's version of history, whereby she assumed a greater day-to-day role in the parenting and care of [X]. This in turn may give some explanation to what I observed to be some reluctance in the mother to extend [X]'s time with the father to any great extent. Having said this, I do not see any ulterior or sinister motives in this mother in her proposed relocation of [X] to Western Australia. Rather, I am of the view that the mother was indeed the primary attachment figure and day-to-day carer for [X]. [X] is an only child, and I expect the attachment and dependency between mother and child is strong and mutual. Nevertheless, I repeat the father was impressive in his evidence and I am satisfied that he is genuine in his desire to maximise his relationship with his daughter.
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.
The evidence satisfies me that both the mother and the father have been responsible and diligent parents for their daughter.
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 either of her parents or any other person (including grandparent or other relative of the child) with whom she has been living.
This consideration is very much at the crux of the father's case. Again, he says that the [X]’s relocation to Perth would seriously diminish his actual and frequency of direct contact with her at a formative period of her life and their relationship. Again further, the changes anticipated by the mother's application would remove the opportunities for easy involvement by the father in [X] school and extracurricular activities. The opportunity for spontaneous involvement and flexibility in arrangements will be lost. However, all of these factors must be considered within the context of the importance of 'quality' time, rather than simply 'quantity'.
[X], of course, has grandparents in both Perth and in the Town A area. The indications are of a close and loving relationships with them all. She currently maintains those relationships by some visits to Perth and telephone contact with her grandparents. If the [X] has been successful in respect of her relationship with the maternal grandparents, then I expect that she would be able to adapt to similar arrangements with the paternal grandparents.
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.
Undoubtedly, the mother's proposal to relocate [X] from Town A to Perth will create logistical issues between two parties who readily volunteer that they do not communicate well or comfortably. The mother's proposal is to fly [X] from Perth to Town A during each of the four school holiday period. Initially, at least, the mother proposes to travel with [X] herself and remain in Town A during those block periods. The mother's evidence was not impressive in respect of any pre-planning by her in this respect. She currently works only casual. Whilst it is understandable that a person awaiting Court order to be able to relocate to another city might not be able to commit to employment or accommodation in that place that, this mother does not present as having immediate access to employment. She has most recently worked casually for Employer H. She has qualifications as a technician but has not worked in that trade for many years. Whilst her confidence in the witness box is admirable, the fact remains that the Court does not have evidence from the mother that she will be in a strong financial position in the foreseeable future if she is to move to Perth. The travel to Town A would be onerous and expensive. There are no direct flights between Perth and Town A. I expected that the flights would have to be via Melbourne or Sydney. They would be lengthy and tiresome for a young child. They would be understandably expensive for the mother given her current financial circumstances. Further, the mother also seemed somewhat ambitious in her plans to be able to both obtain remunerative employment in Perth and to be able to spend block periods of time on four occasions each year in Town A whilst [X] enjoys time with the father. Frankly, the logistical hurdles opposed by the mother's application are substantial and not well mitigated by the mother in her evidence before this Court.
Section 60CC(3)(f) – the capacity of each of the child's parents to provide for the needs of the child, including emotional and intellectual needs.
The thrust of the mother’s case is that to her own parental capacity will be enhanced by her having the support of her parents in Perth. This argument must be seen within the context of no psychological evidence being adduced in respect of any potential incapacity of the mother as a parent should she not be able to move with [X] to Perth. Nevertheless, it is now well-established that a primary parent’s happiness is generally seen as vicariously beneficial to the child in that parent’s care. The mother is undoubtedly unhappy in Town A and has been for some considerable time. The mother does have some support network in Town A but it is understandable that she would be happier herself with the proximate support from her own parents.
In all other respects, and whilst the mother is hesitant and reticent, and at times with a tendency towards the critical in her views of the father's capacity, the objective evidence satisfies me generally that these parties are capable and dedicated parents who are each child focused despite continuing to struggle with the residual difficulties of their own relationship breakdown.
The father runs his own business and is obviously hard-working. He volunteers that his usual work hours are 5:00am until 5:00pm but being self-employed he professes a degree of flexibility in his work hours. In addition, he has a new partner although unfortunately the Court has not had the benefit of any evidence from Ms C and despite what the father obviously anticipates would be some increasing role for her in his new family unit with [X].
Again, the evidence easily persuade me that the mother's capacity in a practical sense as a parent cannot be impeached. The question remains as to her insight into [X]’s needs in respect of the child's relationship with the father and whether the mother objectively acknowledges the actual and potential difficulties for [X] if there is to be a relocation to Perth.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child's parents, and any other characteristics of the child that the Court thinks are relevant.
The relevance here is that [X]’s still young at seven years of age and arguably in the throes of a developing relationship with her father. She is also in the process of establishing friendships and peer group relationships. She is, however, clearly primarily attached to her mother and of an age where her mother's personal happiness will no doubt impact on the happiness and welfare of [X] herself. Conversely, however, the mother's proposal would have [X] enduring some onerous travel for the purposes of maintaining a relationship with her father which might present some short and long-term and difficulties for a child so young.
Section 60CC3)(h) – of the child is an aboriginal child or Torres Strait Islander
Not relevant.
Section 60CC(3)(i) – the attitude to the child, and the responsibilities of parenthood, demonstrated by each of the child's parents.
The mother is critical of the father's lack of total commitment to the care of [X] prior to the parties’ separation.
The father argues that the mother's motivations to move from Town A to Perth are out of self-interest where the mother herself candidly concedes a long held dislike of Town A and a wish to live by a beach and evidenced to a degree by some of the previous moves made by these parties. Nevertheless, this is not the only reason proffered by the mother for her proposed move.
Generally in such matters there is usually a degree of self–interest. This is evidenced in the father not wanting a change in the frequency of his relationship with his child. Despite the evidence that suggests he has previously been prepared to delegate that primary responsibility to the mother. Certainly, the mother's personal desires and ambitions might sit in conflict with the generally held the notion that each parent to should prioritise a child’s ongoing relationship with the other parent.
Section 60CC(3)(j) and (k) – issues of family violence and family violence orders
Neither party make these matters relevant to for my consideration.
Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead the to the institution of further proceedings in relation to either.
The father's Counsel points to the historical transient nature of these parties and of the mother’s extended family with the implication that should I permit the mother and [X] to relocate to Perth then there is some likelihood that the mother will later again move on. Frankly, this is always a possibility. This is not a matter, however, where I find any malafides or ulterior motives in the mother’s application. She is candid in her dislike of Town A and similarly so in her wish to live near a beach and, importantly, to be closer to her parents. I accept that she does so with an intention of being settled and cannot find any real propensity in this mother to do otherwise.
There is a further difficulty looking into the future in respect of the orders which put geographical distance between young children and the remaining parent. Whilst the Court can always make detailed orders including for time for children in school holidays and/or weekends, such a geographical move can present conflicts for the child into the future where there is an obligation to travel and spend time with the parent as against that child developing peer group relationships and sporting/extracurricular activities and interests in the new location. These are issues that might not always be anticipated at the time of the hearing of the application but certainly will come to fruition in the future and then test the skills of both parents and perhaps the durability of the relationship between the child and the remaining parent.
Findings and Considerations
I am easily able to find on the evidence that these are two good and loving parents for their seven-year-old daughter, [X]. I am equally satisfied that [X]’s primary attachment, achieved during her younger years, sits with the mother.
Taking the evidence as a whole, I accept the views of the mother and the family reporter that [X]’s relationship with her father is more of a 'developing’ one at least relative to that of [X] with her mother. Nevertheless, it is a successful, happy and comfortable one for [X] and one undoubtedly where she thrives and desires a high frequency of time with her father.
The evidence unfortunately leads me to find that the personal relationship between the mother and the father remains poor. They do not to communicate easily and even about [X]. There is a deal of the suspicion remaining from their relationship breakdown and in respect of either party’s motives in relation to [X]. The mother says that the father does not understand or accept her good reasons for the wanting to move to Perth including to be with her parents. The father says that the mother does not to accept the importance of his relationship with [X] and despite paying lip service to it and, by implication, suggest that the mother is prepared to put to her own interests before those of [X]. There is some degree of truth to the positions taken by both parties in this respect.
I am satisfied generally that both the mother and the father are capable parents and limited only by the mutual suspicions and residual animosity.
I am satisfied that the mother is candid and genuine in her rationale for wanting to move with [X] to Western Australia. She does not and has not liked Town A for some time. She candidly says that she has always desired to live by the beach. I find her to be genuine in the desire to have mutual support with her ageing parents. Certainly, I detect no ulterior motives in her application such as to our remove [X] from any real and meaningful relationship with the father.
Similarly, I accept that the father is not in a position where he could reasonably be expected to move to Western Australia himself. He is in in a relationship with a woman from Town A. His own extended family live in Town A. He owns and conducts a business in Town A being a business which employs a number of other people.
There are obvious advantages for [X] in the move to Perth proposed by the mother. In the main, such a move would make the mother happier in herself and vicariously therefore contribute to [X]’s own happiness. There is no dispute that the mother is unhappy in Town A where she has only a limited social networks support. Nevertheless, the mother impressed me as a mature and very capable person in herself and as a parent. Indeed, her own Counsel in final submissions conceded that this was not a case based on the mother’s inability to 'cope' should she not be permitted to relocate with [X] to Perth. I agree.
There would be an advantage to the mother and also for [X] in the mother being proximate to her own parents. The maternal grandparents are not young and not well. It is understandable and admirable that the mother would like to provide some support to them. Similarly, they would be able to provide some actual and emotional support for the mother and [X].
The mother has personal ambitions, including to complete her studies which might more be more readily and conveniently available to her in Perth as opposed to Town A where she has previously been obliged to travel to Melbourne to attend classes.
The mother puts forward a proposal for time for [X] with the father on each school holiday. Realistically, therefore, the gaps in time for [X] with the father might only extend at most to about 10 weeks. [X] is not an infant. She is comfortable with the father. She is described as being relatively mature. There is the availability of modern technology to maintain those relationships to a degree. I am satisfied that the mother would facilitate to these communication relationships between [X] and the father.
As against the above advantages of the of the mother's proposal, there are also disadvantages for [X] in such a move which must be weighed and balanced. First and foremost and of concern for the Court is the description by the mother herself of [X]’s relationship with her father being a 'developing' one. Should [X] have reached an age or otherwise have a fully established relationship with her father then she might more easily endure the changes to that relationship and the logistical hurdles that would be posed by the parties living on opposite sides of the country. Again, the experts speak of the advantages of 'frequency of contact' for the establishment and maintenance of relationships between young children and their parents. The mother's proposal potentially puts periods of 10 weeks between direct contact between [X] and her father. The family reporter also speaks of the relationship between [X] and her father as ‘developing’.
The current frequent relationship between [X] and the father will be disturbed and there will be lost the opportunity for spontaneity and flexibility in that relationship. This again is a disadvantage that might be accentuated by the 'developing' is nature of the relationship between child and father.
The logistics of the mother's proposal are problematic. Whilst it may be difficult to obtain employment and accommodation pending a judicial decision of an application to relocate, the impression I glean from the mother's evidence is that she has not put her mind to any great extent to these practical issues. Put another way, the mother’s preparation in anticipation of a successful application seems to be seriously lacking. Similarly, her evidence as to meeting the logistics and the costs of air travel for [X] and herself again gave the impression of a lack of detailed consideration. In any event, these expenses and logistics are likely to be considerable and the mother's current circumstances cause some concern as to the longevity of her current ambitions in these respects.
At a more simple level, the mother's proposal will cause some significant disruption for [X]. She will be removed from her school and her established peer group relations. Her familiarity is with the Town A area and this is where she has frequent and close relationships with her paternal extended family.
Not unlike many matters involving a potential relocation of a child, this matter is difficult in the extreme and finely balanced. Again, not unusually in such matters, the Court is confronted with two excellent parents and without the 'usual suspects' in parenting matters that come before this Court such as family violence, mental illness and substance abuse. Rather, the Court is to determine with a child's best interests and balanced to an extent with the understandable desires of parents to move on with their lives following separation whilst maximising their relationship with the child.
On balance, I have determined that [X]'s best interests are served by remaining living in Town A. I place considerable weight on the evidence of the 'developing' nature of the relationship between [X] and the father, which does not sit easily with the considerable logistical issues which would become apparent on the mother's proposal. Whilst I find the mother to be genuine in her rationale for wishing to move to Perth and emphasising that she does not need to show compelling reasons for her move, I must weigh those reasons against my observations of this mother herself where I have found her to be a most capable and mature parent who will 'cope' more than adequately if required to remain in Town A. I also remain concerned that the mother’s proposals to maintain [X]’s relationship with the father in Town A are overly ambitious and not well thought through. This situation can be mitigated to a reasonable extent by the Court making orders which will permit the mother and [X] to travel for relatively lengthy block periods of time during school holidays to Perth if the mother so desires. I note that the mother has lived in Town A for some time and admits that she has some support networks here. I am satisfied that the nature of this developing relationship between [X] and her father would be impacted to such a degree by the child moving to Perth and the changes that this would bring to the frequency of the relationship that such a move is not in [X]’s best interests.
Parenting Orders
Given that I will not be permitting the mother to relocate with the [X] to Perth, the father now argues for a change to the current arrangements for his time with [X]. The father argues for a move whereby he return [X] to the mother on the Monday of the weekends when that changeover currently occurs on the Sunday evening thereby adding an extra night per fortnight to his time with [X] and then moving to an equal time arrangement. Given my reasons above and noting the family reporter’s considered rejection of this proposal and with some real emphasis on the palpable poor communication and personal relationship between these parents, I agree with the family reporter that the mother and the father here do not present as being easily able to accommodate an equal time arrangement for [X] between them. Their communication remains poor and their evidence does not give me great confidence as to any immediate change in that circumstance. Their mutual relationship remains suspicious and not completely cooperative. The father's personal circumstances, including his work hours do not lend to an equal time arrangement. I determine, therefore, that [X] should remain living primarily with the mother but with some increased time with the father extending the weekend until the Monday morning. I am of the view that [X] should also spend each Wednesday night overnight with her father therefore giving her five nights per fortnight with the father during school terms.
Given the flexibility of the father’s self-employment, I will order that [X] spend block periods of time with the parties during school holidays. However, the term school holidays are to be weighed in favour of the mother to allow her and [X] to travel to Perth. Similarly, summer school holidays will provide the mother with the opportunity to travel to her family although the father should be given a similar opportunity. I therefore propose that each parent enjoy one two week block of time I assume over generally six weeks of summer holidays.
I certify that the preceding eighty eight (88) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Associate:
Date: 23 October 2019
Key Legal Topics
Areas of Law
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Family Law
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