M and G - [2002] FMCAfam 80

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M & G

[2002] FMCAfam 80

FAMILY LAW – Relocation – best interests of the child the paramount but not the sole consideration – freedom of movement.

Australian Capital Territory Self Government Act s.69

AIF v AMF 199 CLR 160, (1999) FLC 92-852

Applicant:

S J M

Respondent:

K J G

File No:

ZC 3391 of 2001

Delivered on:

30 April 2002

Delivered at:

Canberra

Hearing Date:

12 March 2002

Judgment of:

Brewster FM

REPRESENTATION

Counsel for the Applicant:	Mr Arthur
Solicitors for the Applicant:	David Lardner PO Box 5251 KINGSTON ACT 2604

Counsel for the Respondent:

Ms Burgess

Solicitors for the Respondent:

Legal Aid Office (ACT)
4 Mort Street
BRADDON ACT 2601

ORDERS

THAT from the date the mother’s mother completes the purchase of the house she is buying in W, all previous orders in relation to residence and contact concerning the child R J M born 11 August 1999 be discharged.
THAT from the date referred to in Order 1 the following orders become operative:
(a)THAT the child reside with the mother.
(b)THAT the child shall have contact with the father as follows:
(i)Each alternate weekend from Friday afternoon until Sunday afternoon, the exact times to be agreed between the parties or in default of agreement as determined by this court;
(ii)For one half of each school holiday period at times agreed between parties, but failing agreement for the first half of such holidays in odd-numbered years and the second half of such holidays in even-numbered years;
(iii)By telephone at any reasonable time.
(c)THAT the mother be restrained from moving from the home referred to in Order 1 without the consent in writing of the father or order of this court.
(d)THAT the mother keep the father informed of her residential address and contact details at all times.
(e)THAT the father keep the mother informed of his residential address and contact details at all times.
THAT for the purposes of contact the parties shall meet at the commencement and conclusion of contact on each occasion in C unless otherwise agreed.

AND IT IS NOTED:

THAT it is the intention of the parties to explore the possibility of entering a child support agreement which would take into account the increased travel costs to the father associated with the mother’s relocation.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

ZC 3391 of 2001

S J M

Applicant

And

K J G

Respondent

REASONS FOR JUDGMENT

Introduction

This matter involves competing applications concerning the father’s contact with the child of the parties’ relationship, R J M, born 11 August 1999. Involved with the issue of contact is an issue of relocation by the mother.

Background

The father is 28 years of age and the mother 22. They commenced to live together in October 1997 and, as indicated, the only child of their relationship, R, was born 11 August 1999. The parties separated on

7 October 2001 when the mother left the home the parties were then living in.
After the parties separated, R lived with the mother but the father had frequent contact with him. This comprised contact each alternate weekend from Friday afternoon until Monday morning and overnight contact on two evenings per week, usually Wednesdays and Fridays. This contact diminished after a time and by December when the matter came to court, the Friday night contact on the non-contact weekend was not occurring.
The father filed an application in this court on 14 December 2001. That application sought interim orders that the father have contact with R each Wednesday night and each alternate weekend from Friday afternoon until Monday morning. It further sought an order that R reside in the Australian Capital Territory. The impetus for this application was a belief by the father based on conversations he had had with the mother that she proposed to relocate to Sydney. It is common ground that she had formed a relationship with a man named D H who resides in Sydney. It transpired at the hearing that this relationship is now at an end.
The father’s application also sought final orders in similar terms to his application for interim orders, except in lieu of the Wednesday contact he sought contact on Tuesdays and Thursdays and holiday contact as agreed.
The mother in her response sought orders that the father have contact with R each alternate weekend from Friday afternoon until Sunday afternoon and during school holidays. It transpired from her affidavit that she proposed to relocate but not to Sydney. Instead she proposed to relocate to W. W is a small town in the New South Wales South Coast area. It is situated near the P Highway and is approximately halfway between B and M.
The mother proposes that the hand-over for fortnightly contact periods occur at C. C is 117 kilometres from Canberra but as the father lives in the southern suburbs of Canberra the actual distance he would be required to travel would be a little less than this. I would estimate that it would be no more than an hour from his home to C. The distance from W to C is a little further than the distance the father would have to travel, but the fact that the trip from W to C involves travelling through the B Valley in part on minor roads and travelling up and down B Mountain means that it would take significantly longer than the trip from the father’s residence to C. The mother suggested that the driving time from W to C is about two hours.
When the matter came before the court on 17 December the parties agreed to orders which reflected the status quo, that is that the child would continue to reside in the ACT until further order and that until further order the father would have contact each alternate weekend from Friday evening until Monday morning and each Wednesday evening.
Contact has proceeded in accordance with these orders except for one weekend during February which was missed. At that time the father had obtained employment with a road-making firm and was working in T.
He commenced this employment on 11 February but gave it up on

26 February. The reason he gave for resigning from this employment was that it would interfere with his contact with R. However whether it was in reality the interference with contact or the fact that he perceived that any uncertainty as to his ability to exercise contact might compromise his case is uncertain.

Discussion

I make it clear at the outset that this case is not about giving the mother permission to relocate. It concerns what orders should be made as to contact. If contact orders were made in accordance with the father’s application or in terms of the status quo, the practical effect would be that the mother would be precluded from moving any significant distance from Canberra. If I were to make orders as sought by the mother there would be no impediment to her relocating. When in this judgment I use the word “permit” or similar words they are to be read in this context.
The Family Law Act requires that, in making a decision in this case, I am to regard R’s best interests as the paramount consideration. The backdrop to this exercise is section 60B of the Act which sets out the principles and objects of the Act in relation to children. Insofar as those principles and objects are relevant to this case they provide that children should receive adequate and proper parenting to help them achieve their full potential and that, unless it would be contrary to a child’s best interests, children have a right to be known and cared for by both their parents and have a right of contact on a regular basis with both their parents and with other people significant to their care, welfare and development. Subsection 68F(2) of the Act sets out the matters that I am to have regard to when assessing what is in R’s best interests and I will deal with each of these matters set out in that subsection in turn.
Given that this case involves a relocation proposal I bear in mind the guidelines set out by the Full Court of the Family Court in A v A, Relocation Approach (2000) FLC 93-035. I summarise those which apply to this case as follows:
(a)The best interests of the child is the paramount consideration but is not the sole consideration. In particular rights of freedom of movement are not to be ignored.
(b)An applicant for orders permitting relocation need not show compelling reasons before such an order will be made. Indeed neither party bears an onus, that is to say neither parent has the onus to establish that a change in current contact arrangements or a continuation of those arrangements will best promote the interests of the children.
(c)The reasons for a parent wishing to relocate with a child is but one of the matters to be considered and should not be dealt with as a separate issue.
(d)I must identify the competing proposals and evaluate how each proposal will hold advantages and disadvantages insofar as the best interests of the child are concerned.
(e)I am to indicate which matters are of greater weight and explain how matters balance out.
Notwithstanding paragraph (c) above it is convenient if I set out at this point the reasons why the mother wishes to move to W.
The first reason for wanting to move is financial. The mother’s proposal is that she move to W to live in a house which her mother is purchasing as an investment. Her mother lives, and has lived for about the last two years in C, a small town about 15 kilometres west of W. At present the mother is living with her sister. This involves her and R sharing a room. She currently pays her sister $100 a week for the occupation of this room. She states that this arrangement cannot be long-term as her sister lives in this house with her partner and that they do not wish to have to share the house indefinitely. If she is able to occupy her mother’s home in W she will pay rent of $120 per week.
The father occupies the residence in which the parties formerly lived. He pays rent of $150 a week. There is no long-term lease, the term of the lease having expired and the father is now holding over. Rent is paid weekly and so the situation is that he has a week-to-week tenancy. He says that he has recently received a letter to the effect that the rent will not change.
The father maintains that at some unspecified date he had a conversation with the mother in which he offered to help her out with the rent if she were to move back into his house. It was put to him by counsel for the mother that this is in the context of a reconciliation but whatever the context of that conversation, the father in the witness box reiterated that he would be prepared to assist the mother with rent if she moved into the house and in those circumstances he would move out of the home and leave the furniture in it at least for the time being. When pressed as to precisely what assistance he would give, he said he would pay half the rent, that is $75 a week.
The mother claims there are other economic benefits or potential benefits in moving to W. She is undertaking studies in Community and Youth Services through the Canberra Institute of Technology. She says that she has been accepted for an interview for a position as a personal carer in the W area. She says that she understands this to be casual work but she could work almost as much as she chose. The details of this position were not fleshed out in evidence. Her mother works in the welfare area and it was suggested that this would enhance her prospects of obtaining employment in this field.
Whether or not the mother’s mother’s employment will enhance the prospects of the mother in relation to obtaining employment is, in my view, no more than speculation. Given that the mother has not been offered a position, I regard the contention that her employment prospects are better on the South Coast than in Canberra as not having been established.
The mother also maintains that she needs to move from Canberra to put distance between her and the father. It seems common ground that the parties had a volatile relationship during their time together. The mother maintains that the father was verbally abusive but very fairly concedes that there were occasions when she resorted to punching him. She says that there were also occasions when he put his hands around her throat in a stranglehold and says that on several occasions he, I quote, “kicked me out of the house when I had no clothes on and would not let me back in for a few minutes at a time”. The precise nature of this last-mentioned conduct or its context was not explained. In any event the mother instituted proceedings under the Domestic Violence Act against the father. These were resolved on the basis of mutual undertakings being given and there is no longer any order in force under that Act. I will address this issue later in this judgment.
I will now consider the matters set out in subsection 68F(2).
Paragraph 68F(2)(a) concerns the wishes of the child. This is not a factor in this case.
Paragraph (b) requires me to have regard to the nature of the relationship of the child with each of the child’s parents and with other persons.
There is no evidence to suggest that R has other than a strong and secure attachment to both his parents. The evidence is not sufficient to enable me to make a finding as to his relationship with other persons but I am prepared to assume that he would have a good relationship with both his paternal and maternal grandparents. His paternal grandparents live in Canberra and appear to have had a reasonable involvement in his life to date. His maternal grandmother lives in C and if the mother relocated to W she would play a greater role in R’s life than hitherto.
Paragraph (c) requires me to have regard to the likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his parents or any other person with whom he has been living.
R has not been living with any other person who is relevant to his upbringing. In the context of this case it is the separation from his father to which I have regard. I shall expand on this later in this judgment.
Paragraph (d) requires me to consider the practical difficulty and expense of a child having contact 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. This is a significant factor in this case. It is not merely a question of expense but mainly a question of difficulty. All parties concede that it would be impossible for the father to have the weekly contact, in fact contact extending over five nights per fortnight, that he presently enjoys if the mother were to move to W. In reality the only contact that would be feasible is that set out in the mother’s proposed orders.
Paragraph (e) requires me to consider the capacity of each parent or any other person to provide for the needs of the child including emotional and intellectual needs.
In the context of this case I am not required to consider the capacity of any person other than the parents to make provision in the way indicated. There is no evidence that would indicate that both parents are not capable of adequately meeting R’s emotional and intellectual needs.
Paragraph (f) requires me to consider the child’s maturity, sex and background and any other characteristics that I think are relevant and deals with matters of aboriginality. This has no application in this case.
Paragraph (g) deals with issues of violence. Paragraphs (i) and (j) address the same issues.
Notwithstanding the incidents to which I have earlier referred and the fact that that there have been proceedings under the Domestic Violence Act between the parties, I do not consider that these matters have any relevance in this case. I think it likely that in the emotionally charged circumstances in which the parties lived together they both behaved in a manner which was inappropriate from time to time. In evidence both parties conceded this. I think their actions were out of character and confined to the volatile circumstances in which they found themselves.
I do not accept that the mother is genuine when she says that she needs to put distance between her and the father. Her proposals in relation to contact will involve the parties in a good deal of face-to-face contact at fortnightly hand-overs. She has not sought orders designed to eliminate or reduce the possibility of conflict on such occasions.
Paragraph (h) requires me to consider the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents.
I believe the father is vulnerable to criticism under this heading. The evidence indicated that he was prepared to consent to the mother relocating to W provided that she would not “go him” in the future. Under questioning it was not apparent what this meant. It was suggested by the mother that he had agreed that she could relocate to W provided he did not have to pay child support. He denied this but gave an unconvincing explanation of what he meant by this term. It was clearly a reference to financial matters. I am left with an uneasy feeling that in making these statements the father was not having regard to R’s best interests. Nevertheless I am satisfied that he now is motivated by R’s best interests and he has offered to provide financial assistance to the mother if she remains in Canberra.
Paragraph (k) requires me to consider 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.
If I were to make an order which would have the effect of permitting the mother to relocate to W, I think it would be unlikely that further proceedings would occur between the parties. It was suggested that this might be the case in the event that the mother’s mother did not in fact purchase the property that she proposes to buy. She has not actually bought this property and gave evidence that it is anticipated that contracts would be exchanged for its purchase on 15 March. Any risk of this problem occurring could be eliminated by addressing it in the orders I might make. For example I could make an order which was conditional in its operation upon the completion of the purchase of the property by the mother’s mother.
If I were to make orders which would have the effect of preventing the mother relocating and if I were to make those orders conditional upon the father contributing to the mother’s rent in the manner which he has indicated he was prepared to do, there would be a risk of further litigation. The father’s capacity to make these payments is not obvious. If he were to fail to comply with orders that I might make, then the mother might well bring further proceedings. This however might be prevented if I were to make orders which were in effect self-executing. This is not a complete answer however. If the father failed to make payments as ordered, the mother may be precluded from moving to W for some time if her mother’s house there were rented to some other person at the time.
If I make orders which will preclude the mother from relocating to W, there may be further litigation at some stage in the future. The father’s case is a strong one because of R’s age. The reasons for this will be referred to later in this judgment. If R were older, say of school age, the benefits of the frequent contact that is possible if both parties live in Canberra will be less significant. It is entirely possible that in such circumstances the mother would apply again in due course for permission to relocate.
Paragraph (l) refers to any other fact or circumstance I consider relevant. Such matters as fall within this heading will be found in what follows.

There are matters that indicate that R’s best interests would be best served if I made orders which would permit the mother to relocate. These are
(a)While it is untested, I think it likely that the mother would be happier living in W than if she had to remain in Canberra. This may have an impact on the child. However I do not believe that her degree of unhappiness if she were precluded from relocating would be such that R’s best interests would be compromised in any significant way.
(b)The mother would be living near her mother and R would probably see more of his maternal grandmother in these circumstances.
(c)She may be resentful of the father if she is forced to remain in Canberra against her will. This is not something which would be in R’s best interests.
(d)While the economic benefits of living in W in the form of cheaper rent do not apply if the father subsidises the mother’s rent in Canberra there can be no guarantee that he will be able to honour this commitment.
(e)The prospect of further litigation between the parties is reduced if the mother is able to relocate.
The disadvantage of the mother’s proposal is that the contact R has with his father will be affected. As indicated earlier, at present the father has contact with R each alternate weekend from Friday to Monday morning and on Wednesday evenings. If the mother were to reside in W, the Sunday and Wednesday evening contact would be impractical. R is aged two years and eight months. For a child this age frequent contact is desirable if the relationship between that child and the “non-residence” parent is to be optimised.

Conclusion

While the case is a very finely balanced one, if I were to have regard only to R’s best interests and to no other consideration, I would be inclined to make orders that R have contact with his father from Friday to Monday each alternate weekend and on Wednesdays. The benefits to R of this degree of contact marginally outweighs the matters referred to in paragraph 40. Such an order would, of course, preclude any relocation by the mother to W. However, whilst R’s best interests are the paramount consideration, they are not the only consideration. As indicated above, freedom of movement is a relevant factor. In this case that freedom of movement is guaranteed by section 69 of the Australian Capital Territory Self Government Act which (mirroring section 92 of the Constitution) provides that trade commerce and intercourse between the Territory and a State shall be absolutely free.
The equivalent provision in the Northern Territory Self Government Act was discussed by the High Court in AIF v AMF 199 CLR 160, (1999) FLC 92-852. That case indicates that restrictions on movement between a State and a Territory may be validly imposed by a statute if those restrictions are in the nature of a non-discriminatory and incidental burden imposed in the course of regulating a subject matter other than State/Territory movement. However such a statute, or orders made under it, must go no further in restricting movement than is reasonably necessary to attain its objects. Insofar as the Family Law Act is concerned those objects are to promote the best interests of children. It is in R’s best interests that he have a close and secure relationship with his father. It seems to me however that it is not permissible to restrict movement in order only to create, in the words of Voltaire’s Candide, “the best of all possible worlds”. In the best of all possible worlds R would enjoy the frequent contact that can occur if both parties were to reside in Canberra. But this ideal situation is not necessary in order to provide adequately for R’s welfare. If the mother were to reside in W, R would be able to see his father each alternate weekend as well as for block periods during the year. There is no reason why, although it is not the optimum arrangement, this contact should not adequately serve to build a close and secure relationship between R and his father.
For these reasons I propose to make orders substantially in terms of those sought by the mother.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Brewster FM

Associate:

Date: