LOVATT & DOWLING

[2019] FCCA 714

FEDERAL CIRCUIT COURT OF AUSTRALIA

LOVATT & DOWLING [2019] FCCA 714

Catchwords:
FAMILY LAW – Relocation – two good parents – young child – other aspects of child, life including commencing first year of school – positive and negatives of proposed relocation.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases cited:

Bale & Bale (2016) FCCA 680

Taylor & Barker (2007) FLC 93-343
MRR & GRR (2010) 240 CLR 461
Paskandy & Paskandy (1999) FLC 92-878
Woodham & Erickson [2018] FCCA 3785

Applicant: MS LOVATT

Respondent: MR DOWLING

File Number: MLC 11918 of 2018

Judgment of: Judge McGuire

Hearing date: 5 February 2019

Date of Last Submission: 5 February 2019

Delivered at: Mildura

Delivered on: 5 February 2019

REPRESENTATION

Counsel for the Applicant: Ms Campbell

Solicitors for the Applicant: Rebecca Boreham Barrister & Solicitor

Counsel for the Respondent: Mr Pavone

Solicitors for the Respondent: Martin Irwin & Richards

ORDERS

1. The mother and father have equal shared parental responsibility for the child [X] born … 2014 (“the child”).

2. The child live with the Mother.

3. The child’s residence with the mother be confined to the Town F municipality unless otherwise agreed in writing between the parties.

4. The father spend time and communicate with the child on a two week regime:

   (a)In week one from conclusion of school Thursday until Sunday; and

   (b)In week two from conclusion of school Wednesday until 9am Thursday.

5. The child spend one half of each Victorian gazette school holiday with each parent by agreement, failing agreement, on a week about basis.

6. At such other times as agreed between the parties.

7. The time between [X] and the father pursuant to Order 4 hereof be suspended during school time pursuant to order 5 hereof.

8. Pursuant to ss.62B and 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Lovatt & Dowling is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11918 of 2018

MS LOVATT

Applicant

And

MR DOWLING

Respondent

REASONS FOR JUDGMENT

(Delivered Ex-Tempore)

1. These are parenting proceedings in respect of the parties’ one child, [X], born … 2014. The applicant is the mother; the respondent the father. Let me comment from the outset that, as I have said a number of times in interrupting the cross‑examination and helpful submissions of counsel, that [X] is one fortunate four year old within the scheme of children generally, not just four year olds who come before this court. [X] has the benefit of two competent, skilled, loving parents. 

2. The pity is that circumstances intervene such as there is a dispute between those fundamentally good parents such that, unfortunately, I am left to determine, despite what might be obviously – hopefully was obviously – my efforts to encourage and cajole the parents themselves to focus on their dispute, and [X], to reach a solution. I do not criticise them in not being able to do so because the issue, whilst a not uncommon one in the 21^st century, is an extremely difficult one. That is, whether [X] live with the mother in Town A in South Australia which is near Town B or with the father (or the mother) in Town F.

3. The parents separated, I think, in 2014, or there is a suggestion 2015. It matters little. What is important is that they separated in Town F and, without the need for court intervention, were able to reach agreement, as I would fully expect of such capable loving parents, in respect of [X]’s parenting. The result was that this young child developed relationships with both her parents whereby she lived primarily with her mother, but to a stage of spending regular and frequent time with her father up to, I think, about four days and nights per fortnight.

4. The result of that for [X] has quite obviously been, from the material before me, not least the Family Report, a situation where young [X], at just four years of age, has managed to develop strong attachments, bonds and loving and successful relationships with each of her parents, and I dare say with those parents’ current partners, who were also impressive individuals within difficult circumstances of giving evidence to this court.

5. The unfortunate situation that has developed is that [X]’s mother, Ms Lovatt, has determined to move on with her life, again, not unusually, whereby she would like to relocate herself and young [X] to live in the Town B area in South Australia, a place called Town A. That’s where her current partner lives. He has a job – successful job, stable and presented as a stable character. It is not unusual that Ms Lovatt would wish to pursue her life to the fullest of her ambitions. As the primary and delegated primary carer of [X], it is her strong preference that [X] accompany her. The application is opposed by the father for obvious and very good reasons, just as the reasons for the mother’s wanting to relocate are quite obvious and very good reasons.

6. The mother is placed in an awful quandary. She wishes to pursue her life, her relationship, her personal ambitions and her parenting of [X], but she has, to her enormous credit, and I just can’t imagine the quandary of a mother who will stand up in this court, in front of [X]’s father, and say, “Okay, Judge, if you do not agree that it is in [X]’s best interests to relocate to Town A, then I will stay in Town F.” That just speaks volumes of her insight, devotion, and skill. Further, the evidence of her partner, Mr C, is that, should the Court not permit [X]’s relocation then he too would suffer a change in employment to be with Ms Lovatt and their infant child in Town F if possible.

7. As I have said a number of times, the people sitting in the back of the court probably come here once in their lives. I have the great misfortune to spend my working life in this place, and I do not, as a matter of practice, see parents who have the capabilities of [X]’s parents.

8. The mother relies on her affidavit of 30 January 2019, and she also relies on an affidavit of Mr C affirmed 25 January 2019. As I have already said, both Ms Lovatt and Mr C were impressive witnesses. I have no doubt that [X] benefits by having relationships with those two people and having them in her life.

9. Similarly the father relied on his affidavit of 29 January 2019 and an affidavit of his partner, Ms D, sworn 28 November 2018. I can make the same comments. [X] benefits by having both of those people in her life. The situation is that geographically the parents want to live in different locations.

10. Each of the parties is represented. Each was cross‑examined, albeit briefly, and I like to say relevantly to the point without a focus on criticism rather than the issues before the court. I congratulate the counsel accordingly.

11. I just want to borrow from, as a matter of convenience on circuit, and given that these reasons are given ex tempore, from one of my own judgments, and for the benefit of counsel, it's a decision of Woodham & Erickson.[1] I will read the following into these reasons because it is very relevant.

    [1] [2018] FCCA 3785.

    In Bale & Bale at [64] –

    and for the benefit of counsel that's (2016) FCCA 680 –

    I note generally in respect of matters involving a proposed relocation of children, and pertinent to this matter:

    Matters involving a proposed relocation of a child, and in particular a young child, are among the more difficult ones coming before these courts. Unlike the majority of parenting matters which often involve only discrete disputes as to actual time between children and parents, the relocation of a child will inevitably leave the remaining parent aggrieved and with a significant sense of loss. The nature of the relationship between the child and the parent will almost surely be changed in its frequency and, therefore, in its nature. Relationships for the child with extended family members will be impacted. The feelings of loss will often be accompanied by a sense of bitterness toward the parent successful in the relocation of the child resulting in future mistrust, communication difficulties, lack of flexibility and lack of cooperation. The remaining parent will be denied a relationship of flexibility or spontaneity. Opportunities for involvement in the child’s schooling and extracurricular activities will be made more onerous and often lost altogether. Practical issues arise in respect of travel and the costs of such travel. Children, as they grow older, develop personal relationships which test the durability of any court ordered time – with arrangements.

    To the contrary, however, orders obligating an unsuccessful applicant to live in a location other than their preferred one will inspire similar loss and bitterness. Feelings of blame might understandably be placed on the other parent and again resulting in a loss of trust, flexibility and cooperation. A parent left without perceived family or other support may suffer consequent difficulties in their own parenting capacities, and the nature of the relationship of the child with the parent may also be negatively impacted. As such, the nature of parenting matters involving a relocation inevitably bring with them a sense of ‘win’ or ‘lose’. The court is therefore left with little or no room for subtle construction in its orders.

12. I dwell to say that those comments are completely relevant to the issues in this matter. In respect of the relevant law, it is notable that the Family Law Act 1975 itself is silent as to the notion of relocation. It follows that 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 simply one factor to be considered among a plethora of considerations in arriving at orders which, on balance, provide for the best interests of the children.

13. In this sense, the Full Court of the Family Court in Taylor & Barker (2007) FLC 93-343, confirmed an earlier authority of Paskandy & Paskandy (1999) FLC 92-878, that there can be no dissection of a parenting matter into discrete issues of, firstly, with whom the child shall live and then a further or separate issue as to whether a relocation should be permitted.

14. The point that I make here is that I have to make a determination as to ultimately what is in [X]’s best interests in a global sense. This is not a matter where I actually consider as a discrete issue whether the mother should be permitted to relocate with [X]. The issue is that the mother seeks an order that [X] live with her, and the mother’s proposal involves her living in Town A.

15. Matters involving relocation of children have most notably been considered by the High Court of Australia in MRR & GRR (2010) 240 CLR 461, where their Honours emphasised the dual requirements of parenting orders to be both in the child’s bests interests and reasonably practicable.

16. Such considerations are to be seen within the context of trial judges being legislatively mandated, upon the finding, or the making of an order, for equal shared parental responsibility – which is not an issue before this court, however and where the presumption applies, firstly, to determine whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time between her parents. If the answer to either of those questions is in the negative, then the question for the court is whether it is both in the child’s best interests and reasonably practicable for the child to spend substantial and significant time between the parents.

17. Without going into too much of the legal definition, orders sought by the father here sit fairly and squarely with the definition of substantial and significant time as set out in the Family Law Act 1975, where by reason of her application and reason of geography, the mother’s proposals seek orders out of necessity which are of the more traditional types where [X] would live primarily with one parent and spend weekend and holiday time with the other parent.

18. For the benefit of trial judges such as myself, and even following significant amendments to the Family Law Act 1975 in 2006, various Full Courts of the Family Court have over some years compiled a list of so‑called principles which are extremely helpful to trial judges in respect of matters involving a proposed relocation of a child. Those principles can be summarised as follows:

    (1)Relocation matters are to be determined generally with reference to part 7 of the Family Law Act 1975 and the paramount consideration for the court in the best interests of the child.

    (2)The child’s best interests remain the paramount but not the sole consideration for the court.

    (3)A relocation proposal is to be evaluated within the context of the necessary findings in relation to the child’s best interests and, where appropriate, reasonable practicality.

    (4)The court must consider the party’s proposal, including the advantages and disadvantages of a proposed relocation, but may be required to formulate proposals itself in the best interests of the child.

    (5)Neither party bears an onus of proof to establish that a relocation or a continuance of an existing regime will best promote the interests of the child.

    (6)An applicant for relocation need not show compelling reasons in support of the relocation but, in my view, must provide probative evidence which permits the court, on balance, to find that a parenting order involving a relocation is in the best interests of the child.

    (7)The child’s best interest must be weighed and balanced with the so-called right of the proposed relocating parent’s constitutional freedom of movement but that such adult right must ultimately defer to the child’s best interest.

19. In determining the best interests of [X], I am required to reference the probative evidence in the parties’ proposals to the numerous mandatory considerations set out in section 60CC(2) and (3) of the Family Law Act 1975. The first such consideration is at section 60CC(2)(a) where I must make orders which benefit children having meaningful relationships with both of the children’s parents. This is a consideration which is relevant here. [X] is a young child. She is only five years of age. The social science that assists these courts almost universally agrees that in younger children there is a need for a high frequency of direct contact between a child and a parent to establish and maintain attachments and bonds. Social science suggests that a young child has a limited memory, a limited ability to act independently, is reliant on parents whereas old children can endure more reasonable large gaps of time away from parents.

20. Interestingly, in respect of young [X], what is notable is that she has a strong bond and attachment and relationships with both of her parents such that the mother might argue that [X] could perhaps endure the changes which will come in a move for her to Town A and a change in the nature of her relationship with her father. The evidence before me suggests, however, that the court should be very cautious in decreasing the frequency of relationships of direct contact between young children and their parents.

21. The second consideration is that the court should make orders where there is a need to protect the children from physical or psychological harm, or from being subjected to, or exposed to, abuse, neglect or family violence. I have gone to some trouble to be complimentary of these parents. They are, and I am not exaggerating, on the range of people who come before this court, extremely good parents. The pity is that these proceedings themselves will almost certainly drive something of a wedge between them, and it will be difficult for them to move forward and cooperatively and objectively parent their young girl to the extent that they have done until these court proceedings. 

22. That difficulty, in my view, will be unnecessarily compounded by the fact that issues of family violence have been canvassed in material before this Court. I am not in a position to make findings in respect of family violence in such a situation except to say it appears the raising of matters of family violence in family law disputes are no doubt impacted by the public perception and the public notoriety of family violence. In my experience family violence is abhorrent, and that is family violence, whether it be physical, emotional, financial or whatever. Whilst not diminishing the mother’s complaints, matters of family violence do not feature highly here within the context of the cooperative parenting history of these parents and also within the context of the proposals for [X]’s parenting arrangements.

23. Pursuant to section 60CC(3)(a) of the Family Law Act 1975, I have to take into account any views of the child as to her living and parenting arrangements and attribute weight to those views. Something was made again in cross‑examination of the parents speaking to young [X] about the subject matter of this litigation. I have little doubt that both parents are culpable to a degree and it is only natural that they do it. Frankly, in my experience, to expect the parents to remain absolutely 100 per cent silent, either directly or indirectly, or subconsciously or subliminally, is an unreasonable expectation. The fact remains that despite whatever influence has been impacted on young [X], she retains a terrific and loving relationship with each of her parents. [X] is four years of age. She is not of an age where she can maturely rationalise her own preferences or views as to her living arrangements. I expect if I had asked her she would just tell me she loved both parents.

24. At section 60CC(3)(b) of the Family Law Act 1975, I am to reference the nature of the relationship of the children with each of their parents. The nature of the relationship for [X] is that it is a frequent and regular relationship with each of her mum and her dad. She sees them both with only a few days gap, if that. All of the indications for [X] are that of a successful relationship with her mother and father. Consideration for the court, of course, is what I have said earlier, which is that the mother’s proposal would inevitably decrease the frequency of those relationships. There are, of course, in the 21^st century, as I mentioned earlier today, tools such as emails and facetimes and phones and the like but according to experts, they are no substitute for direct face-to-face time for children with a parent and with other important persons in their lives.

25. Section 60CC(3)(c), requires me to reference the extent to which each of the children’s parents has taken or failed to take the opportunity to participate in making decisions in respect of the child and to spend time and communicate to the child and maintain the child. There is no evidence before me such that I need reference that section.

26. Significantly at subsection (3)(d) I am to reference the likely effect of any changes in the child’s circumstances, including the likely effect of the child of any separation from either of the parents. This is the crux of the father’s case. [X] has an established relationship with him based on an expectation of seeing him frequently. She does not need to travel to see the father. She is enduring a milestone event this year, namely her first year at school. The mother’s proposal will inevitably bring significant changes for [X] to negotiate on top of the fact that she is entering her first year of school. The family reporter thought this to be a significant, if not determinative, consideration in his report and his recommendations, and I agree that it is a matter that assumes some significance for this young child, despite the strong nature of her relationship with her father.

1. The next and also relevant consideration is the practical difficulty and expense of children spending time and communicating with a parent and whether that difficulty and expense will substantially affect the child’s right to maintain personal relationships and direct contact with both parents on a regular basis. There lays the difficulty in matters such as this now before the court.

2. As I said when reading my preamble from another decision to these reasons, whilst a child may have an established relationship and endure a relocation or a move away from a parent, there are matters that follow, and assume importance such as a reduction in or removal of flexibility and spontaneity in those relationships. To put it bluntly, if [X] is at school in Town B and the teacher says, “You are getting an award tomorrow, [X]”, it is unlikely that the father will be reasonably able to get there to enjoy such events. Flexibility and spontaneity are important aspects of parenting, and they are important aspects from a child’s perspective, particularly where the parents are separated. They will inevitably be lost or reduced by the placing of geographical matters into the equation. 

3. At section 60CC(3)(f), I am to consider the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs. I have already said what I think about these parents. They are capable, good parents. The only pity is that they needed to come to this court albeit with a problem that is a most difficult one. They are both very capable parents. The only caveat I put on that comment is that their personal relationship remains, on my observations, acrimonious, and one can only hope from [X]’s perspective that they are able to work through those personal difficulties and communicate and cooperatively parent their child.

4. I am to consider the maturity, sex, lifestyle and background of the child and of either of the child’s parents. The only relevance here is [X]’s young age in the context of the parties’ proposals as well as the implications of anticipated travel and other logistics.

5. I am then to consider any issues of family violence. I have already made comment in that respect.

6. Then I am to consider at subsection 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. The orders that I am to make now are of a different type than judges make in most courts in this land. These orders that are made are retrospective. Something happens, a crime, an event, and a judge imposes a penalty or a compensation or whatever. The orders that judges make in these courts are prospective. They are into the future. I am not a fortune teller or a soothsayer. I do not know what is going to happen in the future. The best that I can do is that I make orders which I do according to the best I can for [X]’s best interests and each of you then move forward to parent from a base of those orders.

7. There are, as I have indicated, both positives and negatives in each of the parties’ proposals. There are a number of positives on the mother’s proposal, including, but not limited to, she is the primary parent and an adult of this country in the 21^st century with prima facie freedom of movement. We have fast planes, quick cars, lots of media. It is not the 1950s. As she has a freedom of movement as an adult enshrined in the constitution of this country, she should be able to live, all things being equal, where she wants. You heard me challenge the father, and I did it deliberately, because I wanted him to think of this. What happens if he says, “Right. I've got a job offer in Brisbane”? Does the mother have to live around the corner from him? It is a nonsense. Freedom of movement is a very important consideration.

8. Ms Lovatt has been the primary carer for [X]. She is the delegated primary carer. I am not criticising the father in this respect. He did not see the need to come to this court before to challenge the status. He was happy for the mother to take on this primary carer role. If the mother is not happy in her own personal life and circumstances, then there is a strong chance that this will translate on to the child if the person who is looking after her is not happy. That is a positive of the mother’s case.

9. The mother herself has another child who is two months old. So she has a partner, a very impressive young man, a positive for [X]’s life. They have ambitions to move on together and include [X] but not to the exclusion of [X]’s father. These matters are relevant considerations as is the importance of that family unit. 

10. The mother makes much of the fact her own family support is in the Town B area. She is however not an 18 year old with a baby on the hip and barefooted with no support. She is a very competent young person. That does not mean that I exclude or underestimate family support. Family support is going to be important for her. She is a mother of two young children. She is negotiating the separation from [X]’s father. It is important to not underestimate the importance of her physical and emotional support.

11. The mother’s partner, Mr C, is established in the Town B area in employment. He can understandably have ambitions in respect of his own child’s relationship of frequency of contact for this infant such as Mr Dowling enjoyed for four years with [X]. I can understand that Mr C wants to achieve the same sort of relationship with his child. They are all the positives in the mother’s case.

12. Having said that, there are also positives for the father’s case. [X] is established in a shared care relationship of frequency between her parents. She spends two periods of time each fortnight with her father. There are short gaps only in that direct contact, and its frequency and the benefits for [X] are obvious. You do not need to be a child psychologist to understand that the success of [X]’s relationships between her parents and with her parents is due to its high frequency. 

13. [X] has had both of her parents thus far immediately proximate. I listened to the argument that the child may travel anyway to Town A with the mother if I do not permit the relocation. She may, but there is a difference between making a conscious decision on a week-by-week, fortnight-by-fortnight, or month‑by‑month basis to being obliged by reason of a court order regardless of what other circumstances might arise. 

14. The proposed travel itself would be relatively onerous. It is at least a three or three and a half‑hour drive each way for a child over a weekend. The rhetorical question which has to be asked is on a cost benefit basis of what is the benefit for [X]. It is a lot of travel. It is for a child negotiating her first year of school and, again, it has the potential to raise conflict between the parents in respect of the child. Again, a rhetorical question, what happens if I make an order that [X] travels on a certain weekend to see her father as the court ordered, and [X] gets an invitation to her first five year old’s birthday party, sleepover, whatever five year olds do? These are the conflicts that will inevitably and more frequently arise as a consideration.

15. As I have said, [X] is young. She is just four. She would ordinarily benefit from a high frequency of relationships with both her parents. [X] also, on the evidence before me, has established and high frequency relationships with her extended paternal family. And, adding to this is that [X] has commenced school this year. As I have said, it is a big deal for a four year old to endure that change in her life. It is an important but stressful and delicate milestone for this young girl.

16. Consequently, there are many other pros and cons on both sides, and I expect everyone in this room could add to those lists. The basis of my consideration remains on the balance of what is in the best interests for [X]. It is not what is in the best interests of each of the parents, although I do take their interests into account.

17. It is proper that I say that the decision that I make here is an extremely difficult one. It is finding the balance as to what is ultimately in [X]’s best interests. On balance I am of the view that [X]’s best interests are served by her remaining in Town F and continuing living between her mother and her father. And I say that with emphasis placed on the fact of stability; it being her first year of school; the onerous travel on the mother’s proposal; the successful nature of her current relationships which may well be troubled, and in that respect I adopt the matters set out under the heading of “Evaluation” in Mr E’s very helpful Family Report, and I was helped by that family report; and also noting the admirable commitment to the mother by Mr C to move himself to live in Town F if the Court is against the relocation of [X]. I intend to make orders accordingly.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  21 March 2019