M and L
[2002] FMCAfam 481
•2 December 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & L | [2002] FMCAfam 481 |
| FAMILY LAW – Children – Residence – application to remove children interstate – parenting orders – contact orders – both parties remarried – mother and new husband serving in the Army – posted to D – best interests of children paramount consideration – children aged 11 and 6 years |
Family Law Act 1975 (Cwlth) ss.60B; 65E; 68F
AMS v AIF; AIF v AMS (1999) 24 Fam LR 756; FLC 92-852
A v A Relocation Approach (2000) 26 Fam LR 382; FLC 93-035
U v U [2002] HCA 36; 29 Fam LR 74
Harrison and Woollard (1995) 18 Fam LR 788; FLC 92-598
Radford v Alpe (No.2) (1985) 10 Fam LR 135; FLC 91-622
R and R: Children’s Wishes (2000) 25 Fam LR 712; FLC 93-000
R and R [Children’s Wishes] (2002) 29 Fam LR 230
Joannou (1985) FLC 91-642
Jurss (1976) 1 Fam LR 11,203; FLC 90-041
Bennett (1990) 14 Fam LR 397; FLC 92-191
Raby (1976) 2 Fam LR 11,348; FLC 90-104
| Applicant: | R J M |
| Respondent: | S T L |
| File No: | PAM 2403 of 2002 |
| Delivered on: | 2 December 2002 |
| Delivered at: | Parramatta |
| Hearing Date: | 26, 27 & 28 November 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Kearney |
| Solicitors for the Applicant: | Watts McCray |
| Solicitors for the Respondent: | Lansley Lawyers |
ORDERS
The Orders made by the Family Court of Australia at Parramatta on
27 June 2000 are discharged.The children J J L born 13 February 1991 and M G L born 12 July 1996 are to reside with the Applicant mother who shall have the sole responsibility for all decisions relating to the care, welfare and development of the said children.
The Respondent father is to have contact with the said children as follows:
(a)for the whole of the Northern Territory end of Semester 1, Term 1 and Semester 2, Term 3 school holiday periods commencing on the Saturday immediately after the last day of the school term and concluding on the Saturday immediately before the day when the children are required to recommence school;
(b)for the Northern Territory end of Semester 1, Term 2 and Semester 2, Term 4 school holiday periods, as agreed between the parties and failing agreement for one half of those school holiday periods, being the first half in holidays commencing in even numbered years and the second half in holidays commencing in odd numbered years; contact changeovers are to occur on the Saturday immediately after the last day of the school term, the middle Saturday of the school holiday period, and the Saturday immediately before the day when the children are required to commence school.
In the event that a Northern Territory school holiday period does not coincide with a New South Wales school holiday period, the father may elect to reduce the period of contact referred to in Order 3 above so as to coincide with a New South Wales school holiday period.
For the purposes of contact as specified in Order 3 above:
a)the mother shall be responsible and do all things necessary to make the travel arrangements for the said children to travel to S for the commencement of contact and to travel from S back to D at the conclusion of each contact period;
b)the mother shall notify the father of the details of the children’s travel arrangements immediately those arrangements have been made and no later than one month before the commencement of the relevant contact period. At the same time that the mother provides that notification to the father, the mother is to provide to the father details of and documentation confirming the cost of the travel. The father is to meet one half of the cost of the children’s travel and for that purpose shall pay into an account nominated by the mother in writing a sum equivalent to one half of the total cost of the travel arrangements for that period, within fourteen (14) days of receiving notification from the mother of those costs;
c)the mother shall provide to the father the school holiday/Semester/Term dates for each year published by the Northern Territory Department of Education within seven (7) days of her receiving notification of those dates.
Each party shall do all things to facilitate telephone contact between the children and the parents and to permit the children to telephone the other parent at all reasonable times including birthdays, Mother’s Day, Father’s Day, Christmas Day and New Year’s Day when the children are in that party’s care.
Neither party is to telephone the children or either of them on more than one occasion each day during periods when the children are in the care of the other party unless there is good reason to do so.
The mother is to have the sole responsibility for the decisions in relation to the children’s enrolment at school.
The mother is to keep the father informed at all times of the name and address of the school the children attend and is to authorise the Principal of the school to forward to the father at his expense copies of all school reports concerning the children and applications for school photographs within seven (7) days of the children commencing to attend the school.
Each party is to keep the other party informed at all times of their residential telephone number and residential address and shall notify the other party at least fourteen (14) days in advance of any change in that residential address.
In the event that the father elects not to exercise a contact period with the children, he is to notify the mother in writing not less than six (6) weeks before the commencement of that school holiday period.
Each party is to inform the other party of any medical emergency concerning the children, or any medical specialist’s appointment or any illness or injury concerning the children requiring treatment at a hospital within a reasonable time of such event occurring.
It is NOTED that these Orders are made in circumstances where the mother and the children are moving to reside in the D area prior to the end of 2002.
Time for lodging an Appeal is not to run until publication of written reasons for these orders.
Subject to the above, the Application is removed from the Pending Cases List.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 2403 of 2002
| R J M |
Applicant
And
| S T L |
Respondent
REASONS FOR JUDGMENT
Application
By her Amended Application filed on 2nd August 2002, the Mother in these proceedings seeks orders discharging earlier Orders made by the Family Court at Parramatta on 27th June 2000 and permitting her to relocate to D with the two children of the marriage, J J L, born 13th February 1991, and M G L, who was born on 12th July 1996. Consequent upon these orders, the mother seeks that the father should have contact with the children:
a)for the whole of the Northern Territory end of term 1 and end of term 3 school holiday periods; and
b)half of the end of term 2 and end of term 4 school holiday periods.
The mother also seeks orders regarding the children’s travel to and from S, notification of school holiday and school term dates, telephone contact, schools, and other matters of that nature.
One particular order sought by the mother in her Amended Application related to the children’s paternal grandfather:
That the father shall do all things necessary to ensure that at no time is either or both of the children in the presence of the Paternal Grandfather, S L, without another adult present with them.
This particular issue was resolved by consent between the parties at the beginning of the hearing. Orders were made by consent, without admission, restraining the father from causing or permitting either of the children from being alone in the presence of the paternal grandfather or any adult male in the father’s immediate or extended family without supervision by another adult.
In his Response, filed on 20th August 2002, the father seeks to have the mother’s Application dismissed. He also seeks orders that, if the mother does relocate to D, the children should reside with him and that the mother should have contact:
a)for the whole of the New South Wales end of term 1 and end of term 3 school holiday periods; and
b)for agreed periods or, failing agreement, half of the end of term 2 and of term 4 school holiday periods.
He also seeks orders about travel arrangements, telephone contact, school and health matters.
Background
The mother was born on 9th March 1969, so she is 33 years of age. The father was born on 26th June 1967, making him 35 years of age. The parties commenced to reside together in about 1990 and were married on 18th November 1995. They separated in September 1997 and were divorced in September 1999. The two children were born in 1991 and 1996, which means that they are respectively aged 11 and 6 years.
On 27th June 2000, the Family Court made Orders by consent whereby the children were to reside with the mother and the father was to have contact on alternate weekends and during school holidays. The father later commenced residence proceedings in the Family Court, and these were settled on 9th November 2001, when the father withdrew his application. The children have continued to reside with the mother.
When the parties first met, the father was serving in the Australian Regular Army and the mother was on full time duty with the Army Reserve. The father transferred to the Royal Australian Air Force and was posted to D shortly after the child J was born. The mother resided with him in D. They returned to S in 1992. The father left the RAAF in 1994 and commenced to work as a truck driver. The parties separated in 1997, and the children remained living with her. They were divorced in 1999.
The mother transferred from the Army Reserve to the Australian Regular Army (ARA) in 2000. That same year, she met her present husband, C M, who is a sergeant in the ARA, and they commenced to reside together in January 2001. They were married on 30th June 2001. Mr M has the care of his three children from a prior relationship – B, born 24th January 1991 (now aged 11 years), C, born 20th March 1994 (now aged 8 years), and R, who was born on 7th March 1996. R is 6 years of age. All five children live with them, in Army married quarters in the S suburb of W P H.
The father, too, has remarried. He and his wife C were married on 24th August 2002. They have known each other since September 1999. Mrs L has one child from a previous relationship, a girl called R who is 10 years old. The three of them live at B, near C, New South Wales.
The factor that has brought about the mother’s application to the Court has been the imminent posting of her husband and herself to D. The Army runs on a three year posting cycle, and, as the mother and her husband are both members of the ARA, their careers are linked. This means that the posting cycle for each of them comes to an end at the end of 2002. The mother’s new husband, who is a sergeant in the Infantry, is to be posted to the 5th/7th Battalion, Royal Australian Regiment (5/7RAR) in January 2003, with a view to serving a tour of duty in East Timor from January until about April. He will then remain with the Battalion at its base, R B, near D. At the same time, the mother has been informed that she, too, will be posted to D, to work as a clerk in the Deployed Force Support Unit (DFSU). The mother and her husband wish to take all five children with them to D.
The father opposes this application, and says that the mother should either remain with the children in S, or that the two children should live with him.
EVIDENCE
The mother gave evidence by affidavit and was cross-examined by Ms Lansley, for the father. Her husband also gave evidence. There were no other witnesses for the Applicant mother. The father and his wife, Mrs C L, both gave evidence. The children’s paternal grandmother, S M L, gave evidence by affidavit and was not required for cross-examination. Affidavits by S F L and S M H were not relied upon and withdrawn.
I ordered that a Family Report should be prepared pursuant to s.62G of the Family Law Act 1975. This report was prepared by V S, a family and child counsellor, who interviewed both parents, the two children, Mr M and Mrs L. She also observed the children with the mother, with Mr M, with Mr M’s three children, the father, Mrs L, and Mrs L’ daughter R.
Ms S was required for cross-examination, and gave evidence on 28th November.
In her affidavit evidence, the mother set out the history of her relationship with the father. She described how differences occurred when they were living in D and their move to S, and their subsequent separation. She set out her role as a mother for the children and a stepmother for Mr M’s children. There have been minor arguments between the parties about the arrangements for the children attending sport.
There were three incidents which the mother raised that have caused her concern. The children were returned from contact with their father in about April 2002 and the mother says that the older girl, J, arrived home very upset. She said that the child told her that the father had made her and her sister change into different clothes at a McDonald’s restaurant, which was distressing to them both.
The second incident that the mother was concerned about was the circumstances of the father’s wedding to his new wife in August 2002. The father had told the girls they were going to a ball, but during the week he rang the mother and said that he and C were getting married and that it was a surprise for the girls. The mother says that J was very upset about this news, saying “I don’t understand why he didn’t tell us. Don’t we get any say in it?”.[i]
The mother also recounts an incident on 20th September 2002, when there had been a dispute between the parties about contact arrangements. The mother states in her affidavit that the father and Mrs L arrived at their home and spoke angrily to the girls. The mother says that when they drove off, the car, driven by Mrs L, swerved towards Mr M.
The mother gives in her affidavit a description of her current family situation, living with her current husband, her two children and her husband’s three children. It is her opinion that the two children J and M have developed a “close and loving relationship” with her husband, and that they also have a good relationship with the other three children.
The mother’s new husband, C D M, gave evidence. He describes in his affidavit how he became the primary carer for his three children after he separated from their mother about three years ago. He said that, as a result, he became non-deployable in the Army, and had to be posted to an administrative position. Now that he has married, he is again required to be deployable, and he is to be posted to an infantry unit stationed in D, 5/7 RAR (Mech). He said in cross-examination that he could not be posted to either of the two infantry battalions at H NSW, as they require parachute qualifications.
Mr M deposed to travelling to D in September to assess the available accommodation and make a decision regarding the children’s schooling. He described the housing and other facilities that they will be able to use once he is posted to D. Mr M appeared to me to be a forthright and capable person with a strong commitment to his own children and a determination to make his new blended family work. I found him to be a most impressive witness.
The Respondent father gave evidence and was cross-examined by Mr Kearney, counsel for the mother. He lives at B, near C, New South Wales. He has remarried, and his new wife has a 10 year old daughter named R. He says that R and his two daughters get along well, and he makes every effort to ensure that R is available to interact with his two girls when they come to him for contact.
The father described how he has made arrangements for the children to gave their own rooms if they were to come to live with him and his wife. He has also made arrangements for the children to attend schools in the area. He say that the children have developed a close and loving relationship with his wife, and they regard the two girls as part of their family unit.
The father sets out in his affidavit instances where he says that contact arrangements have been marked by difficulty or acrimony. He says that when he and the mother resided in D in 1991, she did not like it at all, and demanded that he get a compassionate posting out of D or she would leave him and take the child J back to S. It was also a feature of the father’s evidence that the cost of air travel between S and D would cause some financial hardship.
The father’s new wife, C L, supported her husband’s application. She supports his evidence that her child R and the two children the subject of this application have a good relationship, and confirmed her willingness for the children to live in her household if they are not permitted to move to D.
A Family Report was prepared by Court Counsellor V S, as set out in paragraphs 15 and 16 above. Ms S said in her report that the older girl, J, told her that she was looking forward to the move to D. She expressed a clear wish to remain living with her mother:
“She stated that if she were ordered to stay in S and live with her father, that she would ‘get really upset because I want to live with my Mum’”.[1]
[1] Family Report, pages 10 and 11.
The counsellor reported that J spoke of a somewhat hostile attitude towards her father and, to a lesser extent, his new wife and the child R. She was quite critical of R. She usually liked her stepmother, but was angry with her at the time of the report for having given away an item of her clothing. Ms S stated that J’s attachment to her mother was strong “and she seemed particularly fond of Mr M and his three children.”[2]
[2] Ibid, page 12.
The younger child, M, aged six, nominated her mother, her sister and Mr M as her favourite people. She spoke of Mr M’s children as part of her family unit. She, too, told the counsellor that she wanted to relocate to D with her mother, and she wished to remain living with her mother. She described her father as “nasty”. M, and her elder sister, told the counsellor of the incident involving her father, his wife, and the motor car which I set out in paragraph 20. Each child retained some anger at their father as a result of that incident.
It was the counsellor’s view that both girls are more strongly attached to their mother. “They identify strongly with her and seem to have developed a close relationship with Mr M and to his three children…Neither J nor M related as strongly to Mr L’ new blended family. J seemed to feel that she must compete with R while in Mr and Mrs L’ household.[3]
[3] Family Report, pages 15 and 16.
The counsellor took the view that J expressed clear wishes about moving to D with her mother. M’s wishes, whilst also positive, would not carry the same weight, but is most strongly attached to her mother. She has also developed a strong bond with Mr M and his three children, particularly R. If the girls are to be permitted to move to D, there would be a need for clear arrangements for on-going contact with their father.
Principles to be applied
There have been three significant decisions on the troublesome question of the relocation of the residence of the parties in recent years – AMS v AIF; AIF v AMS (1999) 24 Fam LR 756; FLC 92-582, A v A Relocation Approach (2000) 26 Fam LR 382; FLC 93-035, and U v U [2002] HCA 36 (2002) 29 Fam LR 74.
The Full Court of the Family Court in A v A Relocation Approach (supra) the matters that a court dealing with these matters must take into account:
In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas:
A. The welfare or best interests of the child, as the case may be under the relevant legislation, remains the paramount consideration but it is not the sole consideration.
B. A court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances.
C. It is necessary for a court to evaluate each of the proposals advanced by the parties.
D. A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be ‘permitted’.
E. The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages for the child’s best interests.
F. It is necessary to follow the legislative directions espoused in s.60b and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes it clear that the Court must consider the various matters set out in (a) – (l) of that Sub-section.
G. The object and principles of s.60B provide guidance to a court’s obligation to consider the matters in s.68F(2) that arise in the context of the particular decision.
It is to be expected that reasons for decision will display three stages of analysis and:
1. A court will identify the relevant competing proposals;
2. For each relevant s.68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regards to s.60B.
3. On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not the sole consideration.
The process of evaluating the proposals must have regard to the following issues:
a)None of the parties bears an onus;
b)The importance of a party’s right to freedom of movement;
c)Matters of weight should be explained.”
The court is obliged to give careful consideration to the proposed arrangements of the parties, but is not bound by those proposals (U v U (supra)). The Court has to look at the matters set out in s.68F, because the object is always is to achieve the child’s best interests.
The Competing Proposals
The mother’s proposal is that she should be permitted to relocate the residence of the children to D, where she would reside with her current husband and his three children. The father would have contact with the children during the school holidays, which would involve travelling by air from D to S.
The father sets out two proposals. The first is that the mother should not be permitted to remove the children from S to D. He considers that she should remain in S with the children, so contact could continue as before. If Mr M has to relocate to D, because of his service in the Army, he could return at regular intervals to visit the mother and the two children. The practical reality of this proposal is that Mr M’s children would have to remain in S also, to be cared for by the mother.
The father’s second proposal is that the mother can remove herself to D, and live there with Mr M and the other three children, but the two children the subject of this application should reside with the father.
Sub-section 68F(2) factors
Sub-section 68F(2) sets out the matters that the Court must consider when determining what is in the child’s best interests. Not all of the matters are relevant, but I have considered them all, and I will state my views on those matters that I consider to be relevant.
Section 68F(2)(a) requires the Court to consider any wishes expressed by the child (or children) and any factors, such as the child’s maturity or level of understanding) that the court thinks is relevant to the weight it should give to the child’s wishes. The Court should consider the children’s wishes and give them such weight as the Court considers appropriate in the circumstances.
The wishes of the child were considered in some detail by the Full Court of the Family Court of Australia in Harrison v Woollard (also reported as H v W) (1995) 18 Fam LR 788; FLC 92-598, where Fogarty and Kay JJ held:
“The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children. As a matter of practical day-to-day experience the problem in this area usually relates to the ascertainment of the wishes of the child and their interpretation and assessment in the face of conflicting evidence. Against that background the Court will attach varying degrees of weight to a child’s stated wishes depending upon, among other factors, the strength and duration of the wishes, their basis, and the maturity of the child, including the degree of appreciation of the factors involved in the issue before the Court and their longer term implications. Ultimately the overall welfare of the child is the determinant.”
Whilst the ages of the children concerned will have a bearing on the weight that the Court will give to their expressed wishes, even the wishes of relatively young children will be relevant. In Joannou (1985) FLC 91-642, the four children concerned in that case were aged eight, seven, five and four. The Full Court held that the evidence of the wishes of those children would not have been irrelevant. It may or may not have been helpful, depending upon factors which could only become clear when a counsellor had seen the children and given a report.
In R and R: Children’s Wishes (2000) 25 Fam LR 712;FLC 93-000, the Full Court held that, whilst proper weight should be given to children’s wishes, this did not mean that those wishes should not be departed from. Appropriate and careful consideration should be given to those wishes.
This issue has been considered by the Full Court more recently, in
R & R [Children’s Wishes][2002] FMCA 283; 29 Fam LR 230. In that case, the Court held that “The principle is clear that a Court must take the children’s wishes into account, but is not bound by them.”
In Radford & Alpe (No. 2) (1985) 10 Fam LR 135; FLC 91-622, the Full Court upheld a decision of the trial judge who considered the likelihood of children being resentful of being taken out of the care of one parent. The trial judge said:
“On the whole of the evidence, I am brought to the conclusion that if they were to be taken from the care of their mother their resentment would in all probability be such as to damage irreparably their relationship with their father and his present wife.”[4]
[4] At page 80,030
In the present case, the two children are aged 12 years (11 years and 10 months at the date of hearing) and 6 years. The counsellor described the elder child, J, in the Family Report as “a mature, self-confident, friendly and attractive girl”. The counsellor expressed the opinion that she “appeared to have quite a sound understanding of the implications of a move to D.”[5] J expressed a definite wish to remain living with her mother and to relocate to D. She also showed a degree of hostility towards her father. I am of the view that J’s age, maturity and understanding of the implications of the move are such that I should attach a significant degree of weight to her wishes.
[5] Family Report, page 16
The younger child, M, also expressed a clear wish to go to D with her mother. She told the counsellor that she would be sad if her mother went to D without her, and she, too, expressed some anger towards her father. At six years of age, M’s wishes would carry less weight, but they are not irrelevant (see Joannou (supra)).
The Family Report leads me to infer that the children’s wishes favour the mother’s proposal to relocate to D, and the father’s proposal that the children and their mother should remain living in S. The father’s alternative proposal, that the children should reside with him, is clearly contrary to the wishes of both children, which is a significant disadvantage.
Sub-section 68F(2)(b) requires the Court to consider the nature of the relationship of the children with each of their parents and with other persons. There is a general view that if a child’s situation is stable and the child is doing satisfactorily in that situation, it is advisable to be cautious about changing that situation unless there are good reasons to show that this move will benefit the child (Jurss (1976) 1 Fam LR 11,203; FLC 90-041). The Full Court has held that trial judges should give clear reasons if they wish to disturb a long-standing and satisfactory settled arrangement (Bennett (1990) 14 Fam LR 397; (1991) FLC 92-191).
In this case, the children have resided with the mother since the parties separated in 1997. The Family Report states that:
“This assessment indicated that both girls are more strongly attached to their mother. They identify strongly with her and seem to have developed a close relationship with Mr M and to his three children…Neither J nor M related as strongly to Mr L’ new blended family.”[6]
[6] Ibid., page 15
Whilst the father and his new wife gave evidence that the two children got on well with the child R, both girls gave a different account to the counsellor. J said that she found R “really mean” at times, and found it difficult to get along with her, whilst M spoke of R in negative terms, saying that R did not like to play with her.
It appears to me that the two girls have a relate more strongly with their mother’s blended family than with that of their father. This situation favours the mother’s proposal to relocate to D and (to a lesser extent) the proposal that the mother stay in S with the girls. It does not support the father’s proposal that the children should reside with him.
The disadvantage of the father’s proposal that the mother should stay in S with the children is not that they would be separated from
Mr M’s three children, with whom they get along with quite well, because the likelihood is that Mr M would be unable to take his three children to D with him. He would have to leave them with the Applicant. The disadvantage is that the children would be separated from Mr M, with whom they appear to have a good relationship. This may not be as strong a factor as the separation of the children from their natural father, it is still a factor.
Sub-section 68F(2)(c) requires an examination of the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents.
The mother’s proposal to relocate the children to D would have the effect of separating the children from their father, which would be a disadvantage. The father’s proposal that the mother remain in S would separate the children from Mr M, which is a slight disadvantage. The father’s proposal that the children should reside with him would have the effect of removing the children from the care of the mother, with whom they have resided since 1997 (when M was less than two years of age). This is a serious disadvantage.
Sub-section 68F(2)(d) relates to the practical difficulty and expense of the children having contact. Both the mother’s proposal that the children relocate to D and the father’s proposal that the children reside with him whilst the mother relocates to D have the disadvantage of the distance between S and D and the need for the children to travel by air for contact. This is time-consuming and expensive. The difference in the time zones between New South Wales and the Northern Territory, especially during Daylight Saving Time, has a minor inconvenience effect as far as telephone contact is concerned.
If the father’s proposal that the mother remain residing with the children in S is to be adopted, there would appear to be no practical difficulty and expense of having contact.
The mother has a proven (and conceded) capacity to provide for the needs of the children, including emotional and intellectual needs. The father’s capacity to do so on a permanent basis is untested. This would be disadvantage in respect to the father’s proposal that the children should reside with him, but there is no disadvantage with respect to the other two proposals, which involve the children remaining living with the mother.
Sub-section 68F(2)(f) requires the Court to consider the children’s maturity, sex and background. These two girls are aged 6 and 11 years. There is nothing to suggest that the girls have Aboriginal or Torres Strait Island background. There is no preference that young girls are necessarily better off in the care of their mother rather than their father (Raby (1976) 2 Fam LR 11,348; FLC 90-104). This factor does not affect any of the three proposals.
The need to protect the children from harm, the question of family violence and the consideration of any family violence orders are not relevant to these proceedings.
Sub-section 68F(2)(h) deals with the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents. The evidence shows that there are several incidents that give rise to some concern. The father’s decision to surprise the children with his re-marriage shows, in my view, an insensitivity or lack of insight on the father’s part. The view taken by the father that the mother should not have interacted with the children whilst they were at the school fete on contact with the father is a disturbing factor, and the incident in September 2002 concerning the car is still in the minds of both girls.
These instances of the father’s attitude to parenting are a contra-indication of the desirability of the father’s proposal that the children should reside with him.
There are no other relevant matters.
Conclusions
The Father’s proposal that the children should reside with him whilst the mother relocates to D offers many disadvantages. The most significant, to my mind, are the fact that neither child wishes to reside with their father, and the proposal involves taking the children out of the care of the mother, with whom they have resided since the parties separated in 1997. There is no evidence to show that this residential arrangement has not been beneficial to the children. There is nothing to recommend this proposal, as far as I can see.
Of the two remaining proposals, the mother’s proposal that the children’s residence should be relocated to D offers more advantages than disadvantages, and, indeed it offers more advantages than the father’s proposal that the mother should remain in S and the children should remain with her. The evidence shows that the mother’s new blended family with Mr M and his three children is one in which the children feel happy, even if it is a more noisy arrangement than the previous one[7]. The children have a positive relationship with Mr M, who impressed me as capable and committed parent. The disadvantage of the mother’s proposal is that of the distance between the father and the children for the purposes of contact. The Counsellor commented that regular and frequent block school holiday contact would be vital to ensure that the relationship between the father and the two girls continues to grow.
[7] Family Report, page 12 (a comment attributed to J).
I am satisfied, therefore, that the mother should be permitted to relocate the residence of the children.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 13 October 2003
(i) [i] Mother’s affidavit sworn 1 November 2002, paragraph 83(h).
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