M & K
[2007] FMCAfam 26
•14 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & K | [2007] FMCAfam 26 |
| FAMILY LAW – Relocation – shared parenting – presumption of equal shared parental responsibility – rebuttal of presumption. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 68F Family Law Amendment (Shared Parental Responsibility) Act 2006 Family Law Reform Act 1995 |
| A v A : Relocation Approach (2000) FLC 93-035 AMS v AIF and AIF v AMS [1999] HCA 26 C & G [2006] FamCA 994 (6 October 2006) Cowling v Cowling (1998) FLC 92-801 Elspeth and Peter (P)HBF150/2003 Goode & Goode [2006] FamCA 1346 P & P [2006] FMCAFam 518 Rice v Asplund (1979) FLC 90-725 U & U (2002) FLC 93-112 |
| Applicant: | M |
| Respondent: | K |
| File Number: | BRM4614 of 2005 |
| Judgment of: | Altobelli FM |
| Hearing date: | 22 November 2006 |
| Date of Last Submission: | 22 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 14 February 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Taylor |
| Solicitors for the Applicant: | Jones Mitchell Lawyers |
| Counsel for the Respondent: | Mr Hodges |
| Solicitors for the Respondent: | James Noble Family Law |
ORDERS MADE ON 25 JANUARY 2007
The father’s application for parenting orders in relation to L born
24 February 2000 is dismissed.
The mother’s application for parenting orders in relation to L as above is dismissed.
That pursuant to s.61DA Family Law Act 1975 the father and the mother have equal shared parental responsibility of the child L.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRM4614 of 2005
| M |
Applicant
And
| K |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns a relocation application relating to L who is a six year old Child. The Child’s father, who is for all practical purposes the applicant in these proceedings, wishes to relocate to Adelaide with L. L’s mother, the respondent in these proceedings, opposes the proposed relocation.
L’s Father K is 34 years old. He is now married to E. She gave evidence, as did her father, and K’s mother. L’s mother, has another child, who was born in August 2005 and who was about 15 months old at the time of the hearing. L’s mother and father started living together in August 1997 and moved to Queensland in early 1999. The parents separated in October 2001. L’s mother was struggling with alcohol addiction and depression from shortly after L’s birth. This continued for several years. Eventually from about January 2004, L came to live with the Father whilst her mother went into rehabilitation. As the mother’s rehabilitation progressed satisfactorily she began to spend more time with L and proceedings were commenced in the Federal Magistrates Court at Brisbane in 2005 to resolve the issue of where L would live on a long term basis.
This matter was first before me in November 2006 when I was sitting in Brisbane. Regrettably the pressure of work has precluded orders being made before January 2007, and the reasons for judgment being provided until this date. The applicant father was represented by his counsel Mr Taylor, and the respondent mother by her counsel, Mr Hodges. Despite the complexities of a case such as this the hearing was conducted very efficiently and it was commenced and concluded in one day. I had the benefit of an outline of case document provided by the lawyers for both parties. I had available to me an abundance of expert material, but particularly the family welfare report prepared by Ms A dated 27 November 2005, her updated report dated 22 September 2006 that was annexed to her affidavit sworn November 2006, and two reports from a consultant psychiatrist dated March 2007 and April 2006. The applicant father filed an affidavit in November 2006 as did his current wife, his mother and his current wife’s father. Each of these witnesses gave evidence in the proceedings. The mother’s evidence consisted of her affidavit of November 2005 and November 2006. There was also the affidavit of Dr R and the affidavit of the maternal grandmother filed November 2006. The wife gave evidence in her case. I mention that counsel for the Father took exception to reliance on earlier affidavit material dating back to 2005 as well as the affidavit of Dr C and in each case I ruled that the material was admissible subject to the weight that I would attribute to it.
The orders sought by the Father at the hearing were set out in his outline of case document:
1.That Orders 3, 4 and 19 of the Orders made on 10 April 2006, be discharged.
2.That the father be permitted to relocate with the Child of the relationship, L born 24 February 2000 (“the Child”), to Adelaide, South Australia.
3.That the Child spend time with the Mother at all times as may be agreed between the parties and failing agreement, to include whilst the mother does not reside in Adelaide at least the following:
a.From 15 December 2006 to 23 December 2006 and from 27 December 2006 to 13 January 2007.
b.For the school holidays at the completion of the first, second and third terms.
c.For 4 weeks during the summer school holiday periods commencing on 27 December 2007 and each year thereafter.
d.On one weekend each school term.
e.The Father will pay the costs associated with the Child’s air travel.
f.Telephone contact on Monday, Wednesday and Sunday of each week with the Mother to initiate the call and the Father to permit and encourage the Child to telephone the Mother as the Child may wish from time to time.
Or in the alternative, should the mother reside in Adelaide then:
a.From after school Thursday until 7:30pm Friday in week one; and
b.From after school Thursday until before school Monday in week two.
c.For one half of each of all school holiday periods.
d.From 9:00am until 5:00pm on Mother’s Day if the child would otherwise not be with the mother.
e.From 4:00pm until 7:30pm on the mother’s birthday.
f.From the Saturday after the child’s birthday from 10:30am until 3:30pm in 2007 and alternate years thereafter and, from after school until 7:30pm in 2008 on the child’s birthday and alternate years thereafter.
It should be noted that even though the father was technically the respondent in these proceedings it was agreed that he would be treated as applicant in so far as the effect of the order he seeks would be that L would be permitted to relocate to Adelaide.
The final orders sought by the Mother were contained in her outline of case document. I set them out as follows:
1.That the father not be permitted to relocate to Adelaide with the child and is to remain residing within a 30km radius of the Gold Coast Business District.
1b. That the child live with the mother in the event the father relocates to Adelaide.
2. That the child of the relationship, L born 24 February 2000 live with the mother and father.
3. That the mother and father have the joint responsibility in consultation with each other for making decisions regarding major long-term issues affecting the child.
4. That the party in whose care the child may be shall be responsible for all non-major issues in relation to the child.
5. That the child live and spend with the mother at all times as the mother and father agree and failing agreement as follows:
a.From after school Wednesday until 7:30pm Friday or 7:30am Saturday if the father is working (notice to be provided by the father by no later than the Monday prior) in week one;
b.From after school Thursday until before school on Tuesday in week two;
c.For the first half of the Easter, June/July and September/October school holidays commencing in 2007 and alternating to the seconds half of those holidays in 2008 and so on.
d.For the last three weeks of the December/January school holiday periods commencing in December 2008.
6. Where the Mother’s birthday falls on a day when the child is spending time or living with the Father, the Mother shall spend time with the child as follows:
a.Where the birthday falls on a school day from after school until 7:30pm;
b.Where the birthday f alls on a non-school day from 1:00pm to 7:30pm.
7. Where the child’s birthday falls on a day when the child is spending time of living with the Father, the Mother shall spend time with the child as follows:
a.Where the birthday falls on a school day from after school to 7:30pm;
b.Where the birthday falls on a non-school day from 1:00pm to 7:30pm.
8. Where Father’s Day falls on a day when the child is living or spending time with the Mother, the Father shall spend time with the child from 9:00am to 5:00pm.
9. Where Mother’s Day falls on a day when the child is living or spending time with the Father, the Mother shall spend time with the child from 9:00am to 5:00pm.
10. That the mother shall remain totally abstinent from the consumption of alcohol and the use of illicit drugs at all times.
11. That the mother shall not expose the child to any persons using illicit drugs or substances.
12. That the mother not expose the child to P’s father.
13. That the father shall not be under the influence of alcohol or illicit substances when the child is in his care.
14. That for the purposes of changeover when possible, the mother shall attend and pick up the child from school otherwise the father will deliver the child to the mother’s residence when the child is to live at the mother’s residence, with the mother to deliver the child to the father’s residence when the child is to live with the father.
15. That the parties shall utilise a communication book to be exchanged between the parties at residence changeovers which will contain factual information only as to the child’s welfare.
16. That the child’s passport shall be lodged in the registry of the Federal Magistrate’s Court, Brisbane to be released only upon the written consent of both parties or order of the Court.
17. Each party accepts that should the medical need arise that they consent to the child receiving a blood transfusion.
18. That each party keep the other advised as to any significant medical conditions suffered by the child whilst in their respective care including but not limited to the identity of any practitioner and any treatment administered.
19. That the mother and father shall keep each other informed (in writing) of any proposed change in residential address or land line or mobile number not less than 21 days prior to the proposed alteration.
20. That the mother and the father shall not denigrate the other parent, parent’s family or partner or discuss adult issues in the presence or hearing of the child nor permit others to denigrate the other parent, parent’s family or partner or discuss adult issues in the presence or hearing of the child.
21. That the mother is to have telephone communication as may be agreed between the parties but at least once each Tuesday between 5:30pm and 6:00pm with the mother to initiate the call to the father’s home with the child to receive the call in private.
22. That the parties shall not routinely use after school care other than for emergencies.
23. That the mother and father authorise the schools, doctors and other health professional attended by the child from time to time, to release school reports, newsletter and other information to the other parents and that a copy of this Order shall constitute such authority.
24. That the father authorise the school to permit the maternal grandmother and maternal aunt to collect the child from school for the purpose of spending time under these Orders for the mother in circumstances where the mother is unable to attend the school. The mother shall forward a text message to the father that she is required to call upon the maternal grandmother or maternal aunt to collect the child.
25. That the father pay the mother’s costs of and incidental to these proceedings.
Before the matter proceeded into evidence an issue was raised on behalf of the applicant father that was significant from his perspective. Mr Taylor, his counsel, described it as a procedural fairness issue. It was not until he had been served with the outline of case document that his client became aware that part of the mother’s case, if she was successful, would be to change the existing shared care arrangement in relation to L. I could not see any prejudice to the Father who was, after all, seeking the court’s permission to relocate L. Cases involving relocation clearly involve the examination of competing proposals raised by the parents, as well as in theory, even if not in practice, proposals which may be raised by the court that are deemed to be in L’s best interests. In these types of cases the final parenting order is often difficult, if not impossible, to predict. From a technical perspective, the mother was coming along to court and seeking to vary parenting orders that were only seven months old. Were it not for the fact that the effect of the father’s application is to do likewise, she might have had to deal with the issues raised in the Full Court’s decision in Rice v Asplund (1979) FLC 90-725. Overall, I felt that there was no prejudice suffered by the Father by the Mother in seeking the orders that she did at the hearing.
The First parenting orders relating to L were made by consent on 7 December 2005. I will only set out the first three orders:
1.That the child, L K, born 24 February 2000 live with the father other than as set out below:
2.That L live with her mother as follows:
a.From 7:30am Friday to 7:30pm Saturday one week to alternate thereafter; and
b.From 7:30am Thursday to 7:30pm Saturday in the second week to alternate thereafter.
3.That Dr C be appointed as single expert to enquire and report into the mother’s current state of mental health with particular reference to her prognosis in relation to drug and or alcohol consumption. The parties will liaise as to the letter of instructions to Dr C.
I observe that clearly the mother was dealing with both drug and alcohol addiction at the time, hence the involvement of Dr C and hence the rather limited shared care arrangement in relation to L. The next set of orders were made by consent in April 2006, even though described as “court orders on a final basis by consent” there is no doubt that the orders contemplated the relocation application that I in fact heard in November.
1. That the Orders dated December 7 2005 be discharged.
2. That the child, L born 24 February 2000 live with the father.
3. That the child live with the mother at all times that the mother and father agree and failing agreement as follows:
a. From after school Thursday until 7:30pm Friday or 7:30 pm Saturday if the Father is working (notice to be provided by the Father by not later than the Monday prior) in week one:
b. From after school Thursday until before school on Monday in week two, provided the Mother deliver L to school on time;
And each alternate week thereafter.
c. (i) Commencing after school on 7 April 2006 and concluding at 7:30pm on 12 April 2006, commencing after school on 23 June 2006 and concluding at 7:30pm on 1 July 2006 and commencing after school on 22 September 2006 and concluding at 7:30pm on 30 September 2006 with weekend contact to recommence on the first Thursday after the start of the next 2006 school term;
(ii) Subject to an order permitting the child to relocate, for one half of all school holiday periods thereafter.
It is clear that there were still concerns about the Mother’s alcohol and drug addiction, but it is also apparent from the orders that notwithstanding these concerns, L was going to be spending at least five nights a fortnight with her Mother, and possibly six if the Father was working. This is certainly consistent with the other evidence in this case that the mother’s rehabilitation from her drug and alcohol problems was proceeding very satisfactorily. In short, this means that L was spending at least five nights a fortnight with her mother as well as half the school holidays. One of the features of this case is that all parties concerned, including Ms A who prepared the family welfare report, agreed that the shared parenting arrangement in relation to L was working well. The only issue was relocation and, as raised in the Mothers’ outline of case document, whether she should in fact have more time with L.
It was also interesting to me that the Father did not seek an order for sole parental responsibility, nor that the presumption of equal shared parental responsibility under s.61DA be rebutted or negated because it would be in the best interests of L for this to take place. In my discussion of the applicable law in these reasons I explain why I think it is essential in most cases for the presumption to be rebutted or negated before relocation can be permitted. I have proceeded on the basis that by seeking permission to relocate with the Child the father’s application was, in effect, that the Court should make such orders as would be necessary for that to take place, including if necessary, an order for sole parental responsibility. I observe that it is still early days in terms of the interpretation and implementation of the new Part VII of the Family Law Act. There is no Full Court decision that directly provides assistance in this regard. The husband should not be prejudiced by this and the mother does not suffer any disadvantage by my treating this application in this matter. As it turns out it makes no difference.
The Father sees considerable benefit to his family consisting of L, his new wife and himself in moving to Adelaide. These benefits are set out at length in his affidavit filed 8 November 2006. He was confident of securing better employment in the hospitality industry in which he works. The family would have the benefit of living closer to his current wife’s family and this would provide, to use his words, “vital support and more of a family environment.” There was the offer of accommodation on very generous terms if they moved to Adelaide. Certainly, from the father’s perspective there would be many benefits both tangible and intangible that would stem from relocation to Adelaide, and these would flow on to L.
In the mother’s affidavit filed November 2006 she described the progress in developing L’s relationship with her, the strength of the relationship between L and her sibling P and the deep concerns she has about the impact of the relocation on those relationships. Indeed, the father’s proposals for L to spend time with her mother would result in L spending time with her mother during each school holidays and otherwise for one weekend during each school term. Of course, this would be supplemented by telephone communication, but the mother’s concern is that she would go from seeing L at least once a week, to seeing L at most one weekend during the usual ten week school term. Of course, the father offers much more generous shared parenting arrangement movement if the mother moves to Adelaide as well. The mother’s concern, of course, is that this takes her away from her existing support system and involves dislocating P, as well has herself, and L.
The issue for determination in this case involves considering the provisions of Part VII of the Family Law Act as amended by the Shared Parental Responsibility Amendments that came into effect on
1 July 2006.
The competing proposals
At the commencement of the proceedings I invited Mr Taylor, the counsel for the father and Mr Hodges, the counsel for the mother to participate with me in what was, in effect, a brain storming session that involved developing all the possible options that could apply in resolving this matter. In total there were six possible options summarised as follows:
1. The status quo, with L continuing to live with her father in Currumbin on the Gold Coast, and L spending substantial and significant time with her mother also on the Gold Coast; or
2. The status quo, with the child continuing to live with the father and the mother on the Gold Coast but on the basis of an equal shared care arrangement; or
3. The father and the child move to Adelaide, the mother remains on the Gold Coast and the child spends time with the mother: or
4. The father and the child move to Adelaide, the mother moves to Adelaide, and the shared care arrangements continue as they existed on the Gold Coast; or
5. The father moves to Adelaide, the child lives with the mother on the Gold Coast, the child spends time with the father; or
6. The father and the child move to Adelaide, the mother moves to Adelaide, and an equal shared care arrangement is implemented.
The mother’s position was summarised in 2 above: i.e. that relocation not be permitted, but that there be in effect a variation of the existing parenting orders so that she has equal shared time with L.
The father’s position was, in effect, number 3 above: i.e. that relocation be permitted, but the child spends time with the mother.
During cross-examination of the father, and his wife, it became apparent that it was unlikely that the father would move to Adelaide either with, or without his wife, should relocation of L not be permitted. The father’s evidence in this regard was quite candid. Whilst he would regard himself as, using his own words, being “forced to stay” he also agrees that he would have to “have L’s best interests at heart.” I raised with the father the possible impact of being forced to stay in Queensland on his relationship with his wife. He indicated words to the effect: “She says she will stay, I hate to think that she feels trapped in a relationship, but L is our priority.” I must say I was truly impressed with the Father as a witness, and as I indicate elsewhere in this judgment, L is a very lucky girl to have the father that she has. It demonstrated a keen realistic insight into the consequences and impacts of relocation on both parties. I have no doubt whatsoever that he will cope whatever the outcome. E was likewise an impressive witness who doubted very much whether she and L’s father would move to Adelaide if relocation were not permitted. She expressed a commitment to support her husband, but nonetheless would see benefits to the whole family of moving to Adelaide.
Also in cross-examination it became apparent that whilst the mother would find it extremely difficult to relocate from the Gold Coast to Adelaide, and it would take her away from her support system, at the end of the day she would do so simply because she could not bear the thought of being away from L. She said in cross examination, words to the effect “if L were ordered to move to Adelaide I could not live without her, I’d have no other option but to move.”
The first family welfare report prepared by Ms A is dated
November 2005, approximately a year before the hearing in this matter. It is clear from this report that Ms A had some concerns about the level of the Mother’s “personal functioning” even though the mother had undergone rehabilitation and counselling. The report writer was most conscious in fact that the mother “is still in early days of recovery”. Relocation was a live issue then, as it is now, and my assessment of her report is that, on balance, Ms A felt that the preferable outcome would be for the Father and his new wife to remain living on the Gold Coast so that L could continue to enjoy the shared parenting arrangement that existed at the time. The second report of Ms A is dated 22 September 2006. The tenor of this report indicates that L was progressing well, was strongly attached to both parents and significant extended family, and “is happy and settled in her life.” Ms A had no real concerns to express about the progress of the Mother’s rehabilitation. Her assessment of L’s views about a move to Adelaide are set out in paragraphs 8.5 and 8.6 of her report as follows:
From L’s perspective she is settled and wants to continue to have the time with both families that she presently has. She indicates that no-one has specifically spoken with her about a prospective move to Adelaide and when this was put to her she was resistant to it. She was clear and consistent in her view that she does not want to live in Adelaide with her father and stepmother, though she has obviously enjoyed time in Adelaide, such as when her father and stepmother married recently.
Obviously at L’s age she could not appreciate the implications of her expressed wishes but she clearly indicates that she would be “sad” if she had to live in Adelaide. Obviously she would be secure in her care with her father and stepmother but she would miss her mother and family terribly. She would also miss her friends at school. She indicates she does not want such change in her life.
The overview and conclusion of Ms A is, of course, a perceptive one. At paragraphs 8.7 - 8.12 she states as follows:
This is a difficult matter, as it may well be in the best interests of the father and his wife to relocate to Adelaide where they would have significant financial and family support. This would allow them to move on in their life and be successful earlier in life. It would allow the father’s wife to pursue study and not to work. It would allow them significant extended family support when they have children to their relationship.
It is noted, however, that it is the father’s wife’s extended family that is in Adelaide, not the father’s and not the mother’s. In fact, there appears to be no extended family on either parent’s side in Adelaide.
It is understood that the father and his wife feel somewhat isolated in the context of having no family support on the Gold Coast. However, it is also noted that when they pursued their relationship and lived in Brisbane and on the Gold Coast, L’s mother was settled on the Gold Coast. Clearly they recognise and continue to recognise the importance of L’s relationships and time with her mother and extended family.
Whilst it is understood that they should not be hamstrung with regard to their future their needs will need to be balanced with those of L, particularly in the context of needing significant time with her mother, her sister and extended family.
From the mother’s perspective, she is settled and progressing well, both personally and in the context of her lifestyle and family support. Given her background and functioning issues it will be important that she has significant family support herself. It would not be advisable for her to lose this family support as would be the case if L was to relocate to Adelaide with her father. The mother is unlikely to cope without maintaining significant time with L and she would likely find herself relocating to Adelaide to be close with L. This would likely not be in her best interests.
Notwithstanding the desire of the father and his wife to relocate to Adelaide, both parties indicate that the present care arrangements in place for L are positive and working well. L is obviously content, as is the mother and her extended family with the care arrangements. If the father and his wife are able to manage living on the Gold Coast they too indicate that they would be happy with the present care arrangements continuing. Neither party has raised any significant issues with regard to the other’s care of L in the context of the present care arrangements.
Her ultimate conclusions found at 8.16 and 8.17:
Both parties indicate that they cannot resolve the issue of relocation by consent. The indications are that it is an issue that may well have to be made by the Court. If the Court is minded to allow the father to relocate taking L with him, she would need to spend the majority of her holiday time with her mother and family on the Gold Coast.
At this time, however, notwithstanding the benefits for the father and his wife in moving to Adelaide, it is difficult to give support to this over and above L’s present care arrangements being maintained, such that she has significant involvement with both parents.
Ms A was examined by both counsel, by telephone. It seemed clear from the examination of Ms A that she was satisfied that insofar as L had said certain things to her that are reflected in the report of Ms A,
L had not been influenced by either of her parents or any other person. Indeed, in response to a question from Mr Hodges about whether Ms A had formed the impression that when L was talking about things, she was being genuine, Ms A said that L was being “as genuine as a six and a half year old can be.” Ms A was clearly satisfied that prior to the interview L had no prior knowledge about the relocation to Adelaide. Ms A noted in the examination that L was strongly attached to her father and similarly attached to her mother. She stressed that L was a happy little girl who is enjoying a shared care arrangement and that there was no reason to believe that it was not in her best interests for such shared care arrangement to continue. Ms A could see no reason, indeed, why extra time could not be granted to the mother given that both parties were saying that the shared care arrangement was working well.
However, and this is significant, Ms A said that the mother had indicated to her that she didn’t want more time with L, during the interviews. This is strangely at odds with the position adopted by the mother at the hearing being a position that seeks equal shared time in the event that relocation is not granted. One cannot help but feel that there was some legal opportunism evident here and that if it is the fact that the mother seriously was seeking equal time in the event of an unsuccessful relocation, she must have formed that intention at a relatively late time in the proceedings. One wonders whether there isn’t an aspect of opportunism here, the mother having received some advice in this regard, particularly after the report was obtained.
Ms A explained that it is not possible to really expect that a six and a half year old child will fully appreciate the implications of a relocation to Adelaide. She will not understand the logistical aspects of it, but, as Ms A indicated, she will certainly understand that she is not spending as much time with her mother, and she will miss her mother. Ms A indicated that L is a happy child and that any happy child would resist the move and does not want to change anything about her current happy life. She indicated that L was obviously attached to her baby sister P and had a good understanding and appreciation of the significant adults around her.
Ms A was examined about the adverse impacts of a move to Adelaide by the mother, being one of the possible scenarios in this case. Ms A thought the concern would be that the mother loses her primary support network. This destabilises her by making huge changes in her life and would have significant impacts for her. When asked whether such a move would be “too big an ask” Ms A replied “yes.” When asked to consider the benefits to the father of the move, and thus indirectly the benefits to L of the move, Ms A indicated that, “being as balanced as I can be, ideally it would be better if they can stay on the coast, but I appreciate their position.” However, she did add, “I tried to balance that against the benefit to L. It is difficult to support it one way or another. It is one of those cases where I have to leave it to the court.” At first I was quite surprised by what I initially regarded as her ambivalence given the quite clear recommendations in the report.
I think, however, viewing the evidence in its entirety, it would be unfair to label the evidence given by Ms A as being ambivalent on the topic of relocation, merely on the basis of one or two comments that she made above.
When Mr Taylor examined Ms A he succeeded in getting her to agree that the views expressed by L were simply a view to be taken into account in the context of the other layers in this matter. To quote Ms A, “What she says and what she articulates is part and parcel of who she is. She doesn’t fully understand the implications of this. In the long term there are many positives for L and she wouldn’t be damaged by the move, she would still achieve her potential, especially if anxiety, grief and de-stability could be avoided.” If she was to move, she would need significant time with her mother. She later agreed that, in the long run, L may not be compromised either way and that she, Ms A, was open to the proposition that in the long term it may in fact be in the best interests of L to relocate to Adelaide. Ms A indicated that she had not disregarded the psychological and economic circumstances of the parents and could recognise the advantages of the relocation to the father and the wife. Ms A agreed that in this particular matter, it could be argued one way or another, and it was ultimately for the Court. She was asked a hypothetical – what if the mother did not have the support she has on the Gold Coast? Would that tip things on the scale in favour of the father? Ms A indicated in the first instance it is quality time with both parents that is important and the support is secondary. The absence of support does not tip the scales either way. Ms A agreed that L had already adapted to significant changes within her lifetime because of the changes in her mother’s circumstances, particularly in the “early days.” L has come through these changes well and has adapted well and agreed that there was no reason to suggest that she would not continue to adapt to change.
Applicable law
To the best of my knowledge, the Full Court of the Family Court of Australia has not yet determined whether the amendments to the Family Law Act 1975 enacted on 1 July 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 have led to a change in the law relating to relocation. However, the Full Court’s recent decision in Goode and Goode [2006] FamCA 1346 does provide guidance as to how the new Part VII of the Act is to be interpreted and applied. That decision is, for the time being, the only authoritative guidance on the effect of the changes. Whilst the context of the decision was interim parenting orders, it is nonetheless a useful starting point to consider relocation after 1 July 2006.
Before considering Goode & Goode, however, the law as it existed before 1 July 2006 should be summarised. The three most significant decisions in recent times have been the High Courts decision in AMS v AIF and AIF v AMS [1999] HCA 26; the Full Court’s decision in A v A: Relocation Approach (2000) FLC 93-035; and the High Court’s decision in U and U (2002) FLC 93-112. There is an excellent and succinct discussion about the law emerging from these cases in the Family Law Council’s Report on Relocation in paragraph 4.52:
In summary, the “general consistency of approach” that can be drawn from the discussion above about the legislative provisions and case law regarding the best interests of the child is as follows:
·Relocation cases are not a special category of cases. The Family Law Act does not specifically mention “relocation” and the cases are best described as “parenting cases where the proposal of one of the parties involves relocation.”
·The best interests of the child is the “paramount consideration, but not the sole consideration.” For example, the interests of the parents can be considered if they are relevant to the best interests of the child.
·The court must consider the competing proposals for the future care of the child, but is not limited to the proposals presented by the parties. All the proposals need to be evaluated in terms of the advantages and disadvantages for the best interests of the child and the court should explain why a particular proposal is preferred.
·The issue of relocation cannot be separated from the issue of residence and the best interests of the child. The relevant factors in subsection 68F(2) must be considered and the weight given to each should be explained by the court. The object and principles in section 60B provide guidance for this exercise.
·A court cannot require the person who wishes to relocate to demonstrate “compelling reasons” for relocation as this would incorrectly focus on the parent’s interests instead of the best interests of the child.
·It should not be assumed that the contact parent cannot relocate as well, as the interests of the child (not the parent/s) must be paramount.[1]
[1] Family Law Council Report, Relocation, Canberra, May 2006.
The changes that came into effect on 1 July 2006 are substantial. It is possible that the cases referred to above are still useful but no longer determinative of how relocation cases are to be decided. In the judgment of Kirby J in AMS v AIF[2], His Honour sets out nine general propositions derived from the authorities spanning thirty years. His Honour’s first proposition, set out at paragraph 86,401, is as follows: “First, each case depends on the application of the governing legislation which, in turn, is in a constant state of amendment and re-expression.”[3]
[2] AMS v AIF and AIF v AMS [1999] HCA 26
[3] AMS v AIF and AIF v AMS [1999] HCA 26 at 86,401.
In referring to legislative change, Kirby J may well have had in mind the substantial changes brought about by the Family Law Reform Act 1995. It is possible that the Shared Parental Responsibility amendments to the Family Law Act in 2006 were even more substantial than its predecessor about a decade earlier. The substantive point made, however, is that the starting point is legislation. In the metaphorical kingdom of family law, legislation reigns supreme. If the legislation has changed significantly, it may well be that the existing cases provide far less guidance than they once did. In the recent decision of Benjamin J in Elspeth and Peter ((P)HBF150/2003, 21 December 2006) at paragraph 45, his Honour stated: “It is clear that the changes are substantial and will impact on decision making when parenting orders are made from 1 July 2006.”
The Full Court in Goode provides several key guiding principles. The first on is found at paragraph 10:
Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration (as they did prior to the amending Act – see B v B: Family Law Reform Act 1995 (1997) FLC 92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.
The Full Court states the key principle that in all decisions relating to particular parenting orders, including of course one that would involve relocation, the individual child’s best interests remain the paramount consideration. This is what s.60CA states. The Full Court then uses the words framework and context. Section 60CC sets out the framework in which best interests are to be determined. The objects and principles found in s.60B provide the context in which the s.60CC factors are to be examined, weighed and applied. The dichotomy therefore is: framework and context. The s.60CC framework, however, in fact has two levels to it – the primary considerations referred to in s.60CC(2), and the additional considerations referred to in s.60CC(3). Parkinson has an interesting approach to conceptualising the relationship between the sections referred to above. In “Decision-making about the best interests of the child: the impact of the two tiers” he states:
One way to conceptualise the relationship between the objects, the primary considerations and the additional considerations is in terms of taking a photograph of a distant scene. The objects and principles (s 60B) and the primary considerations (s 60CC) provide the general directions in which the camera should be pointed, while the additional considerations are the means by which the camera can be focused on the scene to provide a clearer picture. Another way of conceptualising the relationship is that the objects and primary considerations set the direction of judicial decision-making but do not dictate the route.
Parkinson’s way of conceptualising these matters does not appear to be inconsistent with the Full Court’s conceptualisation of framework and context.
It is noteworthy that the presumption in s.61DA is considered by the Full Court as part of the framework for determining parenting orders or in other words it is part of the overall s.60CC exercise to determine what is in a particular child’s best interests. This is apparent from the opening words of s.61DA(1). Sections 61DA and 65DAA are both new and highly significant in the present context. Even in a relocation case, s.61DA is an important piece of the framework and if the presumption of equal shared parental responsibility that it creates is not rebutted or negated s.65DAA becomes another important piece of the framework. Even in a relocation case, if the presumption is not rebutted or negated, the court must consider the practicality of equal time if it is consistent with the child’s best interest and reasonably practicable, and following that, substantial and significant time. There are probably few relocation applications that are consistent with maintaining equal time or substantial and significant time after relocation unless both parents move. In theory, substantial and significant time as defined in s.65DAA(3) could be achieved even after relocation, but in practice it is unlikely that such time could occur regularly. It is somewhat unusual that s.65DAA(3) does not import any notion of frequency or regularity. It could be satisfied, in theory, by an order for time that only occurs four times a year, provided that the definition of time incorporates the features referred to in paragraphs (a), (b) and (c) of s.65DAA(3).
I doubt if such a legalistic interpretation of substantial and significant time was intended by the legislature. Such a narrow definition would sacrifice substance to form and would be clearly inconsistent with the objects of the legislation. In other words, the framework would be inconsistent with the context.
If I am correct, and the decision-making process gets as far as a consideration of s.65DAA, and the evidence is that the non-relocating parent cannot move, or it is not reasonable to expect them to move, then it is hard to imagine how relocation could be allowed. This conclusion is made clearer as a result of the Full Court’s examination of the meaning of “consider” in the context of s.65DAA. After reviewing how the word was interpreted in two Federal Court administrative law decisions the Full Court concluded at paragraph 64 as follows:
While these observations of the Federal Court are of some assistance, we do not think that the meaning of “consider”, when applied to consideration of administrative law as in the cases referred to, is entirely apposite to the meaning of the word in s 65DAA. This is so because the juxtaposition of ss 65DAA(1)(a), 65DAA(1)(b) and 65DAA(1)(c) suggests a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in s 65DAA(1)(a), being the best interests of the child, and s 65DAA(1)(b), reasonable practicability, are met. The same considerations apply to s 65DAA(2).[5]
[5] Goode and Goode [2006] FamCA 1346
Thus the word “consider” in s.65DAA is given a narrow contextual application – it is not to consider at large, but rather to consider a reasonably narrow range of results specified in s.65DAA. That narrow range of results is either equal time or substantial and significant time, but in each case a decision needs also to be made about whether these results are in the best interests of the child, and reasonably practicable. In a relocation case, of course, generally there are several possible alternatives, and each of these alternatives need to be considered through the lens of best interests and reasonable practicability. One would think, however, that s.65DAA, with its clear legislative inclination towards either equal time, or substantial and significant time, would result in those alternatives being less favoured that do not result in equal time or substantial or significant time. Thus s.65DAA presents a formidable, but not necessarily insurmountable, obstacle to relocation in most cases.
Given the narrow interpretation of to “consider” in s.65DAA, it must be the case that if a relocation case gets as far as a determination of the impact of s.65DAA, and the other parent cannot move, the relocation is not likely to succeed. In these cases therefore, the real focus seems to be s.61DA and whether the presumption can be negated or rebutted. As the Full Court indicated at paragraph 43 in Goode, in a final hearing the presumption will not apply (i.e. it is negated) if there is abuse or violence (s.61DA(2)) and may be rebutted if the Court is satisfied that it would conflict with the child’s best interests (s.61DA(4)). If the presumption of equal shared parental responsibility is not negated or rebutted, however, relocation is an unlikely result.
This means that the focal point for relocation cases that do not involve abuse or violence is s.61DA(4) and, being able to satisfy the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility. This must necessarily lead back to s.60CC and the framework for determining best interests.
A detailed analysis of all of the relevant primary and additional considerations needs to be undertaken here. This analysis however occurs in a specific context in relocation cases – to rebut the presumption of equal shared parental responsibility.
At this point the Full Court’s next guideline to understanding Part VII becomes relevant. At paragraph 72 the Full Court was considering the continued application of the principles in Cowling v Cowling (1998) FLC 92-801 and makes the following observations:
In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
Given the “legislative intent evinced in favour of substantial involvement of both parents in their children’s lives” it is hardly likely that s.61DA(4) will become an easy, readily available escape clause from that legislative intent. Rebutting the presumption needs strong, clear evidence. Given the overall context (s.60B) in which the framework (s.60CC) appears, it is hardly likely that a statutory scheme that so strongly encourages shared parenting is to be easily subverted. Indeed, the Full Court has demonstrated its willingness to consider context (i.e. the objects in s.60B), in cross-checking whether its interpretation of framework and process was correct. For example, at paragraph 80 the Full Court states:
We have earlier touched upon this matter. Even absent the application of the presumption and thus the requirement to consider equal or substantial and significant time where it is not contrary to the child’s best interests and otherwise practicable, the addition of sub-section (a) to s 60B(1), which is to ensure that children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests, is not necessarily consistent with a preference at an interim stage in favour of maintaining a status quo. That is not to say that maintenance of a stable arrangement will not be in the best interests of children in a particular case, but it will be one of the factors to be considered pursuant to the additional considerations in s 60CC(3) and to be determined in conjunction with the primary consideration in s 60CC(2)(a) of the benefit to the child of having a meaningful relationship with both of the child’s parents.[6]
[6] Goode and Goode [2006] FamCA 1346 at 80
In Goode the Full Court demonstrated a willingness to change well-established principles relating to interim parenting applications because of the substantial changes to the governing legislation. It is likely, I respectfully suggest, that the Full Court will do likewise in the context of relocation. This is not because the mobility of the Australian population has changed, or because of societal attitudes towards relocation. It is purely and simply because the legislation has changed. The Full Court in A v A: Relocation Approach[7] clearly recognised the centrality of legislation at paragraph 108 of its judgment when it referred to the necessity “to follow the legislative directions espoused in s.60B and s.68F.” The Full Court also there recognised that the “object and principles of s.60B provide guidance to a court’s obligations to consider the matters in s 68F(2).” The reality is that, to use the words of the Full Court, the “legislative direction” has changed. Indeed the change is quite substantial, particularly in view of ss.61DA and 65DAA. Nonetheless, it is not my task in this case to anticipate what a future Full Court might say in a relocation case. It is my responsibility, however, to apply the current law as I understand it.
[7] A v A: Relocation Approach (2000) FLC 93-035
To complete this overview of the applicable law in the context of a parenting case that might result in relocation, it is necessary to consider a key concept found in the Act. In s.60B(1)(a), there is reference to the concept of “meaningful involvement”. In s.60CC(2)(a) the first of the primary considerations, there is reference to the concept of “meaningful relationship.” The concepts are probably the same in substance. In each case there is a strong link between the best interests of a child on the one hand, and meaningful involvement and meaningful relationship on the other hand. It may well be that absent abuse and violence, in order to rebut the presumption under s.61DA(4) some consideration needs to be given as to how a relocation impacts on meaningful involvement and meaningful relationship as these concepts are so clearly linked to the best interests of a child. In other words s.61DA(4) takes one back to s.60CC(2) with its emphasis on meaningful relationship. So what do these terms mean?
Parkinson discusses this in his article at pp184-185:
Section 60CC clearly indicates that the court should so exercise its discretion in relation to post-separation parenting arrangements that meaningful relationship between parents and children are maintained, in the absence of violence or abuse. A child will almost always benefit from a meaningful relationship with both parents in the absence of violence, abuse, or very high conflict. Where there is ongoing violence or intractable conflict, the interests of the child may best be served by restricting the contact with the non-resident parent or preventing it entirely. As a general rule, then, the primary considerations reflect the findings of a very large body of social science research on parenting after separation.
Having said this, courts cannot by order, create meaningful relationships between parents and children; they can only create or maintain the circumstances that make meaningful relationships possible. In an individual case, the evidence may indicate that the child will not in fact benefit from such a relationship with both parents, or that such a benefit is incapable of realisation in the circumstances of the case.[8]
It is also instructive to set out a footnote to the above passage:
On what constitutes a meaningful relationship see P Amato and J Gilbreth, “Non-resident Fathers and Children’s Well-being: a Meta-analysis”, (1999) 61 J Marriage & Fam 557. In a meta-analysis of 63 prior studies on parent-child visitation, Amato and Gilbreth confirmed that frequency of contact in itself does not appear to be associated with better outcomes for children. However, emotional closeness, and in particular, authoritative parenting, is highly beneficial to children. Authoritative parenting included helping with homework, talking about problems, providing emotional support to children, praising children’s accomplishments, and disciplining children for misbehaviour. The researchers concluded that “how often fathers see children is less important than what fathers do when they are with their children” (at 569). On authoritative parenting, see D Baumrind, ‘Authoritarian v Authoritative Control’ (1968) 3 Adolescence 255. The term refers to a style of parenting which is neither authoritarian nor permissive.[9]
[8] Parkinson P. “Decision-making about the best interests of the child: the impact of the two tiers” (2006) 20 AJFL 179
[9] Ibid
It is interesting in the present context to note that the social science research emphasises emotional closeness and authoritative parenting more than frequency of contact, in terms of better outcomes for children. Arguably though, without frequent time between non-resident parents and their children, the emotional closeness and authoritative parenting cannot be developed. There are certainly shades of what the social scientists call “emotional closeness and authoritative parenting” in the definition of substantial and significant time in s 65DAA(3).
In C & G [2006] Fam CA 994 (6 October 2006) Bennett J considered the meaning of the benefit of a meaningful relationship. At paragraph 48 of Her Honour’s judgment she identified two possible interpretations. On one interpretation the benefit to the child of having a meaningful relationship with both of the child’s parents is taken as a given. On another interpretation, however, the court must evaluate the nature and quality of the relationship to establish whether any benefit or meaningful relationship exists. Bennett J preferred the second interpretation. I respectfully agree with Bennett J, for the reasons she states in her judgment. I add one observation in this regard – on my reading of the social science research, no assumption is made about benefits of meaningful relationships, though there is a strong inclination towards the existence of this in most cases. As Parkinson states: “A child will almost always benefit from a meaningful relationship with both parents.”[10]
[10] Ibid.
Brown FM considered the meaning of “meaningful” in the context of s.60CC(2) in P & P [2006] FMCA Fam 518 at paragraphs 256-258:
In the context of section 60CC(2)(a), the use of the word “meaningful” by the legislature is interesting. The ordinary definition of “meaning” and “meaningful”, when it is attached to an idea or some object, is denoting of the significance or importance of that idea or object. It seems clear that the court is only to consider whether a relationship is “meaningful”, to the child concerned, after it has assessed the benefit or advantage such a relationship will bestow on the child concerned. Accordingly, it seems clear that the legislature intends the court to consider the significance of the child concerned having a relationship with both his or her parents in a positive or beneficial sense.
The practical underpinning of how a relationship for a child with one or either of his or her parents is to be rendered “meaningful”, in the context of a parenting order, is provided by section 65DA. The emphasis is on time, but not merely on the extent of that time, but rather on its quality and the manner of its utilisation with the child or children concerned. In this context, the court is to consider the parent concerned spending time that falls on weekends; holidays; weekdays; and perhaps most importantly, time that allows that parent to be involved in the child’s daily routine and occasions of particular significance, both to parent and child.
The rationale of section 65DAA is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flows from them being exposed to their parents in a variety of settings. These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting; as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in more mundane situations. In this way, the child is likely to have a more balanced and so richer relationship with the parents concerned.
His Honour correctly links the concept of “meaningful” to s.65DAA, and points out both the quantitative and qualitative aspects of it. I will add my own observations about the concept of meaningful involvement or meaningful relationship. It is a multi-faceted concept, spanning more than one dimension. For example, as Brown FM correctly points out, it is both quantitative and qualitative in nature. The concept is not a “one size fits all” concept. What is “meaningful” to a baby, toddler, school-age child and teenager may, indeed probably will, be different in each case. The concept needs to not only take into account the capacity, developmentally and otherwise, of a child to receive the benefits of meaningful relationships and involvement, but the capacity of a parent to actually provide the same as well. Accordingly, the concept also takes into account the history and quality of the relationship between parent and child, and the quality of parenting. The past and present are often the only reliable indicators of the future.
Relocation cases raise all of these issues. These are difficult cases to decide. Brown FM in P & P [2006] FMCA Fam 518 succinctly describes some of these difficulties when he said at paragraph 21 “there is no satisfactory outcome in this case. The various options available cannot be manipulated like the surface of a Rubik’s Cube to reach a perfect result.” He goes on to say:
If I make the orders the father wishes, T will continue to see him regularly, but the mother will be unhappy and frustrated at this outcome. She is likely to feel bitterly disposed towards Mr P. Her level of frustration and unhappiness may have implications for her future psychological health and her capacity to parent T to the full extent of her potential.
If I make the orders the mother wishes, T will loose the opportunity to have regular interaction with his father, because he will be living far away from him and the father will be upset and sad at the separation. In addition, arrangements for T to spend time with his father are likely to be limited and difficult. The parties’ currently disastrous financial situation will stand in the way of T being able to spend frequent periods of time with his father. There may well be difficulties in T maintaining a relationship with his father, through the telephone or other electronic means, given his level of language skills. As a result of these factors, T may feel that his father is not an integral part of his life and, as a result, the paternal relationship between T and his father may not be as warm and spontaneous, as it might otherwise have been.
Regardless of the outcome in this case, one or other of the parties will feel hard done by. In either case, the consequences of the problem and its resolution may well be a source of continuing bitterness between the parties, one of whom will almost certainly feel harshly treated. I say this at the outset because I think it right to acknowledge and express my regret for the inevitable distress the resolution of this problem will bring, whatever the outcome. I hope that the parents will each cope with the situation as well as possible, so that the difficulties for T will be minimised and his relationships with each of his parents maintained, as well as the circumstances permit.
Relocation cases are invariably very difficult for all concerned, involving as they do two competing and irreconcilable claims of right. These claims of right arise when the parents of a child have separated and for legitimate reasons wish to take different directions as to where they will live in future. On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees fit, both as a parent and as an individual, separate from the other parent concerned. On the other hand, it is the right of a child to maintain a meaningful relationship with both his or her parents, in the now changed circumstances of his or her parents’ separation.[11]
[11] P & P [2006] FMCA Fam 518 at 21.
Many of these difficulties are present in this case. A closing thought in this overview of the law post 1 July 2006 deals with the role of the freedom of movement consideration in relocation cases. Is it time to reconsider the significance of freedom of movement after the Shared Parental Responsibility amendments to the Act?
Brown FM articulates the freedom of movement argument, and the dilemma it creates in relocation cases, in these terms at paragraph 13 in P & P:
Australia is a free and democratic society which prizes the rights of its citizens to live where and how they choose. At the same time, children have a right to maintain and develop relationships, within their families, which are likely to be significant to them, both in the short and long term.[12]
[12] P & P [2006] FMCA Fam 518 at 13.
The fourth general proposition enunciated by Kirby J in AMS v AIF relates to freedom of movement. It states:
Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.[13]
[13] (2002) FLC 93-112
It is important to note that Kirby J described freedom of movement not as a right, but rather a “freedom” to which society attaches high importance. Be that as it may, Kirby J reminds us that relocation cases are to be decided by reference to the “touchstone” being “the welfare or best interests of the child and not, as such, the wishes and interests of parents.” It seems that if there is to be a hierarchy of considerations in determining relocation cases, in that hierarchy notions of freedom of movement must be subsumed to the best interests of the child. The Full Court in A v A[14] expressly acknowledged this when it states at p 87 552 that “the ultimate issue is the best interests of the child and to the extent that the freedom of movement impinges upon those interests then it must give way.”
[14] A v A: Relocation Approach (2000) FLC 93-035
In U & U,[15] the majority judgment again addresses the freedom of movement issue, at pp 89 090-1. In the majority judgment their Honours observed as follows:
Whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent… ‘Contact’ with both parents is desirable and important. So too is the presence of a ‘stress-free environment’ for the child, to the extent of course, that it is possible for it to exist in a fractured emotional relationship. It is unlikely that many of such situations will admit of perfect solutions.… The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.”[16]
[15] U and U (2002) FLC 93-112
[16] U & U (supra) at 89,090-1
It may be unfortunate, perhaps, that the majority described freedom of mobility as a right, thus creating the expectation in some litigants that it is a right that can be enforced by the courts exercising jurisdiction under the Family Law Act. It clearly is not an enforceable right in this context. But, as the High Court again clearly articulates, whatever the status to be given to freedom of movement – “it must defer to the expressed paramount consideration.”
It is possible that in some cases the notion of freedom of movement on the one hand, and the paramount considerations of the child’s best interest on the other hand, have been put in the metaphorical balance which occurs as judgment is being exercised in these very difficult cases. If that is the case there must be serious concern about putting such different notions “in the balance.” It is more akin to comparing apples to oranges, than apples to apples. Indeed, there is no comparison because the High Court and the Full Court have repeatedly stated that the notion of freedom of movement defers to the paramount consideration of the best interests of a child. There is a place for considering freedom of movement in the difficult exercise of judgment that occurs in relocation cases. However, the consideration is not a weighty one. Far more weight must be attributed to the expressly articulated considerations referred to in s.60CC, than to the unarticulated interest of the parent’s’ freedom of mobility that has somehow crept into the Part VII exercise of judgment. If the legislature had intended to somehow elevate parental mobility to an equivalent status with the existing considerations in s.60CC it could have done so. Clearly the post 1 July 2006 amendments do not. Some may regard this as harsh and disappointing. Some might say that it disregards the clear statistics indicating that the Australian population as a highly mobile one.[17] Nonetheless, the Family Law Act is silent about a parent’s freedom of movement. Indeed, arguably the Act imposes a fetter that did not exist before 1 July 2006 by saying that shared parental responsibility carries with it the obligation to make decisions jointly, and to consult and make a genuine effort to come to a joint decision, in relation to major long-term issues: s.65DAC. The definition of major long-term issues in s.4(1) includes issues about changing the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
[17] See, for example, “Discussion Paper on Relocation” (Family Law Council, February 2006) at paragraphs 1.1-1.3 and the April 2006 HILDA survey “Families, Incomes and Jobs: A statistical report of the HILDA survey” which is discussed briefly in the Editorial in (2006) 20 AJFL 113-114.
The High Court identified in AMS v AIF and AIF v AMS[18] that parenthood has always had an impact on the wishes and mobility of parents. It is not just freedom of mobility that is affected by parenthood – many other personal freedoms are likewise affected. Family law in its broad sense already recognises that parenthood carries with it responsibilities irrespective of the nature of the relationship between the parents of the child. For example there are obligations to financially provide for the children. Howsoever one might have perceived a person’s freedom to deal with their finances as they wish before parenthood, once they become a parent it is an unquestionable incident of parenthood that that very same freedom is not just curtailed, but converted into a legal obligation. Can’t the same be said for freedom of mobility? In any event, to describe it as a “freedom” is, in my opinion, highly problematic. The emotive use of the word itself tends to assert a certain superiority and precedence over other obligations in a context where there is no objective basis for it. It would be equally emotive and problematic to reconceptualise the notion of freedom of movement into the freedom to disrupt the relationship between child and parent. And that is one reason why contemporary Australian family law asserts the primacy of the best interests of the child, even in parenting cases where the proposal of one of the parties involved relocation.
[18] [1999] HCA 26
Application of the Law to the Facts
As indicated above, I believe that under Part VII of the Act, in most cases a relocation would not be permissible unless the presumption of equal shared parental responsibility in s.61DA has either been negated under s.61DA(2) or rebutted under s.61DA(4). There is no evidence to indicate that s.61DA(2) applies. The real issue is whether the presumption has been rebutted because it is not in the best interests of the child or her parents to have equal shared parental responsibility. In rebutting the presumption under s.61DA (4) I need to address the issues referred to in s.60CC(2) and (3) and I will proceed to do so.
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 60CC: How a court determines what is in a child’s best interests
2) (a) The benefit to the child of having a meaningful relationship with both of the child’s parents
Both the mother and the father agree that L’s relationship with the other is important for L. This is entirely consistent with the shared care arrangement that has existed in relation to L for quite some time. It is also consistent with what took place a year ago when the father agreed to, in effect, not pursue his relocation application back then in order to give L a chance to form a better relationship with her mother in the anticipation that she would better cope with the consequences of a relocation. It is important to note that what the parents have done is, in effect, implement a substantial and significant time arrangement in accordance with the legislation after 1 July 2006, a matter reflecting very favourably on both parents. Indeed, as I indicated to both the mother and father at the conclusion of the proceedings, L is very lucky to have two parents who love her as much as they do. There is little, indeed in reality no, serious challenge to the capacity of each parent to adequately parent L during the time that she is with them.
L’s meaningful relationship with both parents is a primary consideration. I have serious concerns about whether the proposed arrangement for the sharing of time between the mother and L, as proposed by the husband, if he relocates to Adelaide, would constitute a meaningful relationship. A meaningful relationship clearly exists at the moment but would, in my opinion, be gravely threatened on the father’s proposal.
It is not reasonable to expect the mother to relocate to Adelaide, even taking into account that a decision is being made having regard to the best interests of L, and not the best interests of the mother. A relocation to Adelaide involves not just a disruption to L, and to P, but on the scenario that her mother relocates to Adelaide as well, a further disruption which must have an impact on the mother’s ability to be an adequate parent to the children. In this way it is not in L’s best interests.
The evidence about L’s wishes in this regard are set out in the report of Ms A. Even Ms A provides limited support as to the weight be given to those expressed views, and this should be reflected in the judgment. To the extent, however, that weight is given to L’s views having regard to her age, it is probably the case that the mother’s proposal that there be no relocation better suits the views of L.
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 applicable in this case.
Section 60CC(3) Additional considerations
3)(a) Any views expressed by the child and any factors that the court thinks are relevant to the weight it should give to the child’s views
Having regard to the child’s age, I am not prepared to put any weight on any views she may have expressed on this matter.
3)(b) The nature of the relationship of the child with each of the child's parents and other persons; and
In this regard it is clear that L has a strong relationship with each of the important people in her life – certainly her father and mother, certainly P, her sister, and certainly K her father’s new wife. L’s relationship with K’s family is not a significant one when weighed in the overall balance. Her relationship with her grandmother, is slightly more significant, but I would not put it on par with the primary significant others in her life. A relocation to Adelaide undermines the relationship L has with her mother and with P her sibling. However the relocation to Adelaide will probably maintain and even strengthen her relationship with her father and with K and will provide L with a platform to build a relationship with K’s family in Adelaide. In my opinion, however, the cost of this to L in emotional terms is unacceptable. I do not accept that any disadvantage will be outweighed by a benefit.
3(c) The willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In a case where there has been a strong history of shared parenting over the last few years there is little or no evidence to indicate that there is a concern about either parent’s ability and willingness to facilitate and encourage a relationship between L and the other parent. The only issue, in this regard, is the proposed relocation. The father’s position, of course, is that the relocation will not impact on L’s relationship with her mother because of the shared time arrangements that he has proposed. But I have doubts about how all of these arrangements will actually be implemented, whether they are sustainable in the long term, particularly once she goes to school, the adverse impacts on L and to a lesser extent both her parents of implementing these arrangements and more importantly the deep concerns I have about how L’s existing meaningful relationship with her mother will survive the tyranny of distance. However, I have no doubt that if the parties remain on the Gold Coast, they will continue to encourage and support each other in terms of that meaningful relationship.
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 his or her parents any other child, or other person
This is one of the most significant concerns in this case. A relocation to Adelaide involves a change in accommodation, a change in schools, making new friends etc. More importantly it means moving away from her mother. L would spend significantly less time with her mother, and her maternal grandparents. She will not enjoy the flexibility of moving between the two households and having both parents as part of her life on a weekly basis.
But will the advantages to L of relocating to Adelaide outweigh the likely disadvantages of the proposed change? There are potential advantages, of course, particularly economic ones and psychological ones for her father, and his new wife and these flow on to L. These are all important and, arguably, a lot of the opportunities that they will have in Adelaide will take much longer to achieve on the Gold Coast. But that doesn’t mean that they won’t achieve them. I suspect that there is some substance to the concerns expressed by Mr Hodges, counsel for the mother, that the father in particular is not earning to his capacity. I don’t want to be regarded as being critical of him. He says, and I accept it, that his employment is primarily influenced by having a family focussed and friendly lifestyle. On balance I am not convinced that the anticipated changes for L outlined by the father outweigh the likely disadvantages of the proposed change.
3(e) The practical difficulty and expense of a child spending time with and communicating with a parent
The father’s evidence is that he will meet the cost of L’s flights to visit her mother (paragraphs 99-101 of his affidavit). This is consistent with the orders he seeks. I find that expenses is not an issue in this case. Of course the relevant factor here is not just expense, but “practical difficulty and expense.” On the father’s proposal L will be travelling between Adelaide – Gold Coast – Adelaide eight times each year, four times during school holiday periods, and four times during school terms. I have some reservations about whether this level of practical difficulty is manageable for a girl of L’s age, even with the best of support by her parents. Nonetheless, this factor does not weigh heavily in my judgment.
The practical difficulty and expense of L having contact with both parents in a case like this is enormous having regard to the financial circumstances of the parties and even taking into account the benefits that the father says he will derive in an economic sense from moving to Adelaide.
3(f) The capacity of each of the child's parents to provide for the needs of the child, including emotional and intellectual needs
Neither parent was critical of the other’s capacity to care for L in any sense. Both of them are equally capable.
How will the father cope emotionally if he’s not allowed to relocate? There is every indication from the evidence that he will cope very well. This is a man who is wonderfully supported by his new wife and who has already gone through a traumatic time with the mother’s rehabilitation and the impact that this has had on L. He should be able to cope. Conversely, however, and without putting too much weight on this factor, I would have greater concerns about the mother’s ability to cope with the relocation if it were granted whether or not she moved to Adelaide.
3(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents
These factors are considered elsewhere.
3(h) The child's right to enjoy his or her Aboriginal or Torres Strait Islander culture
This is not relevant in this case.
i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
There are no recent concerns in relation to this. I considered the report of Dr C, a consultant psychiatrist insofar as it talks about the risk of the mother regressing into her prior condition. I do not consider the risk of this to be one of concern in this case.
3)(j) Any family violence involving the child or a member of the child's family; k) any family violence order that applies to the child or a member of the child's family
This is not relevant in this case.
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
What orders would minimise the risk of there being further court proceedings about the children? If relocation to Adelaide were permitted, I would have concerns about further litigation. The stress on L physically, socially and emotionally would be significant, even if this is just confined to the aspect of travel. The risk of contravention proceedings arising out of a failure to travel is also there. In short, permitting relocation is conducive to further litigation between the parties.
Conclusion
As I indicated under the discussion of the applicable law above, I believe that under Part VII of the Act, in most cases a relocation would not be permissible unless the presumption of equal shared parental responsibility is negated or rebutted. Unless that occurs, the Act requires me to consider that there be equal time or substantial and significant time.
There is no evidence in this case to suggest that the presumption has been negated pursuant to s.61DA(2). Has the presumption been rebutted under s.61DA(4) because it is in the child’s best interests for this to occur? By no means. The forgoing analysis of the s.60CC considerations clearly favours the non-relocation options as being in the child’s best interests, over the relocation ones. Moving to Adelaide makes a meaningful relationship, and equal time or substantial and significant time, almost impossible for this child. Whatever benefits that flow to her as a result of the improved circumstances of her father and his new wife our outweighed by the disadvantages of the adverse impacts I have referred to for the child. Moreover in my opinion it would be neither reasonable nor responsible to expect the mother to relocate to Adelaide, and the consequent adverse impacts on the child of such a move are unacceptable from the perspective of her best interests. If relocation is not permitted, however, then all of the evidence indicates that this child will continue to enjoy all of the benefits of the current shared parenting arrangement that she presently enjoys.
I mention, however, that even if my analysis of the applicable law is incorrect, for all of the reasons set out above, I am still left with the inescapable conclusion in my mind that a relocation to Adelaide is not in the best interest of this child.
The freedom of movement argument was emphasised by the father’s counsel in his closing submission but for the reasons set out in my discussion of this argument above, it carries far less weight than what I consider to be in the child’s best interests in this case.
Was the mother entitled to raise the issue of varying the existing parenting order to move to, in effect, equal shared time, as a result of the relocation application of the father? There is no doubt that the new Part VII applies and governs the relocation application. There is probably little doubt that I could, if I were so minded, make an order that changes the substantive shared parenting arrangement that exists, whether or not I order relocation. But this application came very, very late in the piece. I am not satisfied that it represents the genuine desires of the mother. There is an element of opportunism to it and it is, in any event, unfair to the father. Apart from the expert’s report there have been no changes in circumstances. In any event, in reality there was no evidence that indicated that a shared parenting arrangement that was working so well, needed to be changed. It is true to say, however, that the report writer did contemplate the possibility of there being more time, though not necessarily the amount of time that is sought on behalf of the mother. But that is as far as it goes – it was a passing reference. On balance, if I am not prepared to order relocation, then there simply are not the circumstances to justify variation of the existing shared care arrangement. I want to stress that it is not that I do not have the power, but rather that I decide that on balance, I am not going to exercise the powers I have in this regard.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Lisa Molloy
Date: 14 February 2007
[4] Parkinson P. “Decision-making about the best interests of the child: the impact of the two tiers” (2006) 20 AJFL 179
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