M & S
[2006] FamCA 1408
•21 December 2006
FAMILY COURT OF AUSTRALIA
M & S [2006] FamCA 1408
CHILDREN - With whom a child lives - Relocation
Family Law Act 1975 (Cth) Goode & Goode (2006) FamCA 1346
A&A (Relocation Approach) (2000) FLC 93-035
Bolitho & Cohen (2005) FLC 93-224
U&U (2002)FLC 93-112
APPLICANT: M
RESPONDENT: S (formerly E)
FILE NUMBER: MLF 1317 of 2005
DATE DELIVERED: 21 December 2006
PLACE DELIVERED: Melbourne
JUDGMENT OF: Dessau J
HEARING DATE: 6 September 2006, 27,28,29 November 2006 & 19 December 2006 REPRESENTATION
COUNSEL FOR THE APPLICANT: Mr Wraith
SOLICITOR FOR THE APPLICANT: Eales & McKenzie
COUNSEL FOR THE RESPONDENT: Ms Stoikovska
SOLICITOR FOR THE RESPONDENT: JC Lawyers
Orders
1. That the father and the mother have equal shared parental responsibility for the child O born in February 1998 (“the child”)
2. That the child live with the mother.
3. That the mother be permitted to relocate the residence of the child to the Untied Kingdom until 21 December 2009.
4. That the mother cause the child to resume living in Australia no later than 21 December 2009.
5. That during times the child lives in Australia the child spend time with the father as follows:
(a) From 22 December 2006 until 10 January 2007;
(b) In the event that the mother has not relocated with the child on or before 4 February, from 26 January 2007 until 28 January 2007;
(c) For one-half of every school holiday period being the first half including Christmas Day in every even numbered year and the second half in every odd numbered year, save that in respect of the July (or mid year) term holiday the husband have the first 10 days in even number years and the last 10 days in odd numbered years; and
(d) On three weekends during every Victorian school term as follows:
(i) From Friday until Sunday in New South Wales (or Canberra) on one week-end;
(ii) From Thursday until Sunday , or Friday until Monday in New South Wales (or Canberra) on one weekend (with the day of school missed, if any, not to be a day upon which O has an important school test, event or extracurricular activity); and
(iii) From the conclusion of school Friday until not later than 7 pm Sunday in Melbourne on one weekend.
(e) At other times to be agreed between the parties.
6. That for the purposes of the previous paragraph:
(a) The father provide to the mother a travel itinerary by email at least 14 days prior to the commencement of every school holiday period referred to in sub-paragraph 5(a);
(b) In the event that the child is to spend time with the father in NSW:
(i) The mother or her nominee take the child to the nominated airport in Victoria and ensure that the child is placed on the aircraft for travel to Canberra. The father or his nominee shall ensure that he or his nominee is at the airport in Canberra to collect the child;
(ii) The father or his nominee take the child to the Canberra airport at the conclusion of all visits and ensure that the child is placed on the aircraft for travel to Melbourne. The mother shall ensure that she or her nominee is at the airport to collect the child;
(iii) The mother ensure that the child is available to take telephone calls from the father as soon as practicable before her departure for Canberra and after her arrival in Melbourne and provide a telephone number for that purpose.
(iv) That in the event that either of the father or the mother are not personally transporting the child to or from the airport, they advise the other party in advance of the identity of the person who will be doing so;
(c) The father provide the mother with notice of his intention to spend time with the child pursuant to sub-paragraph 5(d) by e-mail at the beginning of each school term;
(d) That the father is permitted to include the weekend of Father’s day as one of his weekends, and is not permitted to include the weekend of Mother’s day as one of his weekends.
(e) The father shall meet the costs of all travel by the child and/or the father for the purposes of the child spending time with the father, and the parties intend that any Child Support assessment of the father shall take these payments into account pursuant to the Child Support Assessment Act.
7. That during period the mother lives with the child in the United Kingdom, child spend time with the father as follows:
(a) For 21 days in Australia during the English July (or summer) holidays, commencing in Canberra, Australia on the 4th day of the holiday;
(b) For 21 days in Australia commencing in Canberra on or about 7 January 2008;
(c) For 21 Days in Australia commencing in Canberra on 23 December 2008;
(d) For a further period of 21 days in each calendar year to commence and conclude in the United Kingdom each year, and to be exercised in the United Kingdom or Europe, upon the father giving the mother 60 days notice. Such period not to incorporate any part of United Kingdom summer school holiday; and
(e) As the parties may otherwise agree.
8. That for the purposes of the previous paragraph:
(a) The mother be responsible for ensuring the child is transported to and from the Canberra airport accompanied by an adult at the commencement and conclusion of contact in Australia, including the costs of same;
(b) The father be responsible for the cost of his travel to and from the United Kingdom for the purposes of time spent with the child in the United Kingdom (or Europe), and he be responsible for the cost of his and the child’s accommodation and travel during such time; and
(c) That in the event that either of the father or the mother are not personally transporting the child to or from the airport, they advise the other party in advance of the identity of the person who will be doing so.
9. That during times the mother and child live in Australia the father communicate with the child by telephone and / or Skype as follows:
(a) Every Monday, Wednesday and Friday between 5:00pm and 6:00pm, with the father to initiate the call;
(b) At any other times when the child wishes to telephone the father;
(c) The mother shall ensure that the father is informed of the telephone number upon which O can be reached at those times, and ensure she is available and ready to receive the call; and
(d) The mother shall allow the child privacy during the call and will not interrupt O during the call.
10. That while the child and mother live in the United Kingdom the child communicate with the father by telephone and / or Skype three times every week at the following times:
(a) Every Monday, Wednesday and Friday between 7 and 7:30 am Australian Eastern Standard time during the Australian summer daylight savings period;
(b) Every Monday, Wednesday and Friday between 7:30 am and 8 am Australian Eastern Standard Time outside the Australian summer daylight savings period;
(c) At any other time the child wishes to communicate with the father;
(d) At such other times as may be mutually agreed;
(e) The mother shall allow the child privacy during the call and will not interrupt O during the call; and
(f) For the purposes of subparagraph (a) and (b) the mother cause the child to phone the father on a land line number provided by the father, save in the event that the father notifies the mother of his desire to have the communication occur using Skype, in which case the mother ensures that communication by that means occur at the times specified.
11(a). That when the child spends time with the father during holiday periods pursuant to these orders the mother be permitted to communicate with the child on the same days and at the same times as the father communicates with the child when she is in the care of the mother.
11(b). The father shall allow the child privacy during the call and will not interrupt O during the call.
12. That the father communicate with the child by e-mail on a liberal basis and the mother maintain an e-mail address for the child for that purpose. In the event that such email service is interrupted the mother ensure the father is forthwith advised of same.
13.That with a denial of the necessity for same the mother be and is hereby restrained from enrolling the child in school and otherwise using any surname for the child other than E-M.
14. That the mother authorise any school attended by the child to:
(a) Provide the father with copies of the child’s school reports, notices, other publications and any information he may request about the child;
(b) To attend school functions and activities usually attended by parents; and
(c) Make the child available for collection by the father from school when she is to spend time with the father in Victoria pursuant to these Orders.
15. The mother keep the father advised of significant school and extra-curricular activities undertaken by the child, and the father be permitted to attend same.
16. Without limiting the obligations created by order 1 hereof:
(a) That the parties consult with each other in relation to any proposed changes, or other significant decision in relation to the child’s schooling; and
(b) That the parties consult with each other in relation to the child’s religious upbringing.
17. That the mother and the father inform each other as soon as practicable of any medical emergency involving the child.
18. That the mother authorise any medical practitioner, psychologist or other health care professional upon whom the child has attended, to communicate with the father and to provide the father with information about the child and any consultations and treatment she receives as requested by the father at his expense.
19. That the parties each keep the other informed of their current residential addresses, home telephone numbers, mobile telephone numbers and email addresses.
20. That the applicant father sign all documents, give all consents and do all necessary acts and things as requested by the respondent mother to enable the child to be issued with an Australian Passport within 7 days of being provided with the necessary documents by the wife.
21. That in the event that the husband fails to comply with order 19 hereof pursuant to s.106A a Registrar of this court be authorised to sign all documents and give all consents and do all necessary acts and things to cause the said passport to issue.
22. There be a departure from administrative assessment of chid support for the period 21 December 2006 until 21 December 2009, and during such period the father’s child support be assessed at nil.
23. That pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “A” and these particulars are included in these orders.
24. Certify for Counsel for the husband and the wife.
25. All extant application be otherwise dismissed.
FAMILY COURT OF AUSTRALIA AT MELBOURNE FILE NUMBER: MLF 1317 of 2005
M Applicant
And
S (formerly E) Respondent
REASONS FOR JUDGMENT
INTRODUCTION
1.Eight-year-old O’s parents separated when she was several months’ old. Since then she has lived with her mother.
2.O saw a great deal of her father until her mother relocated with her from Canberra to Melbourne in April 2002. Her father moved to Melbourne for several months in early 2003 and O spent substantial time with him during that period. He then returned to live in Canberra. She currently spends time with him there on two week-ends per school term and for half the school holidays. She also has contact by telephone and email.
3.The mother now wants to relocate O for about three years, to live in the United Kingdom, where her husband took up employment early this year. The father wants O to remain in Australia and for his time with her to be increased.
BACKGROUND
4.O’s father is Mr M. He is a 38-year-old public servant. Her mother, Ms S, is 40. She works part-time but is mostly engaged in home duties. In October 2004 she married Mr S, an IT expert, with whom she has been living since 2002. He is working for I, earning approximately $250,000 per annum (compared with $100,000 in his job with C before he left Melbourne).
5.O was born in February 1998. She is currently in Grade 3 at school.
MATERIAL RELIED UPON AND ORDERS SOUGHT
6.This case was heard as part of the Children's Cases Program and Child Responsive Model Pilot. On the first day of hearing, a list of issues was determined, and the witnesses and the manner in which they were to give evidence was also decided.
7.The father relied upon his amended application for final orders filed 25 August 2006, his affidavit filed 14 November 2006, and the witness statement of his mother Mrs M. Mrs M was not required for cross-examination.
8.The mother relied upon her amended response to an application for final orders filed 30 August 2006, her affidavit filed 13 November 2006, her husband’s affidavit filed 13 November 2006, an affidavit of his manager Mr T filed 13 November 2006, and an affidavit of her general practitioner Dr Z filed 16 November 2006. Mr T and Dr Z were not required for cross-examination.
9.The material before me otherwise included a Preliminary Report dated 7 August 2006 from Family Consultant Mr A, and his Family Report dated 15 November 2006. By way of background, the parties gave me a report prepared by social worker Mr J dated 7 December 2005.
10.The father sought a restraint against the mother from relocating O to live in the UK. He also sought an increase in his time with O, to three week-ends per term (one in Melbourne), and for a slightly extended time on one of the three week-ends. He sought particular orders for time with O in the event she relocates, and various other detailed orders to which I will return as relevant.
11.The mother was clear that she would not relocate without O, and the father did not pursue his application for O to live with him in Australia.
12.The mother sought orders to permit her to relocate O to the UK for a period of not less than three years. She proposed she would pay for the child’s accompanied return to Australia to spend time with her father for three weeks in both January and June of each year, and that the father could otherwise spend a few weeks with O in the UK, on dates to be agreed and at his expense. Again, there were various other detailed proposals to which I will return.
RELEVANT LEGAL PRINCIPLES
13.Part VII of the Family Law Act1975 was substantially amended in July 2006 by the Family Law Amendment (Shared Parental Responsibility) Act. Section 60B(1) sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:
“(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
14.Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):
“(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
15.In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations for the court in determining what is in the child’s best interests. I will return to the detail below. Section 60CC(4) provides that the court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and the court must have regard in particular to events that have happened and circumstances that have existed since separation (see s 60CC(4A)).
16.There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent. In this case it is agreed that the parents will retain that shared parental responsibility.
17.The court is then required to consider whether the child spending equal time with each parent would be in the child’s best interests (s 65DAA (1)(a)), and whether it is reasonably practicable (s 65DAA (1)(b)), and then consider an order for equal time (s 65DAA (1)(c)). The parties have not proposed equal time in this case. It is not reasonably practicable whether O lives with her mother in Melbourne, or the UK.
18.If the court does not make an order for equal time, it must consider whether the child spending substantial and significant time with each parent would be in the child’s best interests (s 65DAA (2)(c)), and whether it is reasonably practicable (s 65DAA (2)(d) ), and then consider an order for substantial and significant time (s 65DAA (2)(e)). “Substantial and significant time” is defined in s 65DAA(3), and s 65DAA(5) deals with “reasonable practicability,” providing that the court must have regard to:
“(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.”
19.Counsel in this case agree that, whether O remains in a different city from her father or relocates overseas, the distance will mean that it is not reasonably practicable for her father to be involved in her daily routine, so as to spend “substantial and significant time” with her, as envisaged in s 65DAA(3)(b)(i) of the Act. That still leaves the difficult question for me as to which of the parents’ proposals I should choose, with O’s best interests as my paramount consideration.
20.Before July 2006, there was authoritative case law as to the court’s approach in cases with a proposed relocation. There is as yet no binding decision as to the effect of the recent amendments. I could not find, nor could Counsel, any first instance decision that was helpful in extending significantly beyond the particular facts of the particular relocation case. Subsequent to the hearing however, on 15 December 2006, the Full Court handed down a decision in Goode and Goode [2006] FamCA 1346. Although in relation to interim hearings, and not relocation, the Full Court, comprising Bryant CJ, Finn and Boland JJ did discuss some more general aspects of the amendments. Accordingly, I listed this case for mention on 19 December 2006 for counsel to make further submissions.
21.I turn first to the established relocation case-law, before considering the impact of the recent amendments. In an effort to distil the complexity of the law, the Full Court had set out the applicable principles and the approach for a trial Judge in A and A (Relocation Approach) (2000) FLC 93-035 (considering the binding authority of the High Court in AMS v AIF; AIF v AMS (1999) FLC 92-852). It provided three steps for the judge (at para 82):
"1.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 regard 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 sole consideration."
22.Expanding on the second step, the Full Court in A and A added:
·As one, but only one, of the matters considered under s. 68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 (1997) FLC 92-755 is no longer an accurate statement of the law.
·The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
·Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.
23.The Full Court emphasised that none of the parties bore an onus to establish that the relocation would promote the best interests of the child, and the applicant could not be required to demonstrate “compelling reasons” for the relocation. Significant weight had to be attached to the parent’s right to freedom of movement, but subject to the child’s best interests, which remained the paramount though not the sole consideration. And, in deciding best interests, the court had to consider the arrangements each parent proposed for the child to maintain contact with the other and if necessary, devise a regime which would adequately fulfil the child's right to regular contact with a parent no longer living permanently in close physical proximity.
24.In Bolitho and Cohen (2005) FLC 93-224, the Full Court noted that the High Court in U and U (2002) FLC 93-112 had reaffirmed that the “overarching issue” in relocation, was to ensure that any parenting order was in the best interests of the particular child. It noted too that U and U “… ameliorated the somewhat rigid and/or formulaic approach set out in A and A.” The Full Court (at para 72) referred to the High Court having said:
“…that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s 68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.”
25.The Full Court also observed in Bolitho and Cohen that a trial Judge was entitled to look beyond the proposals of the parties in making a particular order. Counsel in this case agreed that approach is open to me, and that was confirmed in Goode’s Case.
26.There is no explicit relocation provision in the new legislation, although one was considered. Recommendations of the House of Representatives Standing Committee on Legal and Constitutional Affairs’ Report on the exposure draft of the Bill (“the Report on the Bill”) recommended that the Act be amended to include a provision that, where there is a proposal for any change in the child's living arrangements that would substantially affect the child’s ability to reside or spend time regularly with the other parent or extended family, the court “must be satisfied on reasonable grounds” that such relocation would be in the child’s best interests. The recommended provision would have effectively placed an onus of proof on the moving party, and as such would have been a significant shift from existing case-law. The proposal was not adopted, although in second reading speeches there was discussion about possibly incorporating it into the Act after a report from the Family Law Council on relocation. For completeness, I note that the Family Law Council report was published in May 2006. The Council concluded that the best interests of the child should remain the paramount consideration in relocation cases, with the factors in s 60CC to be considered.
27.The amended Act has one reference to a parent moving away from another, in s 4, where “major long-term issues” are defined as including:
“(e)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.”
Save for underlining the significance of such a move as an important issue for parents to decide, that definition does not assist further as to the correct approach in such cases.
28.Although there is nothing in the new legislation explicitly altering the previous approach to relocation whereby the court was obliged to consider the child’s best interests as the paramount consideration, the amended Act does provide a context, through its objects, principles, and particular considerations, that is substantially different from the context in the previous legislation. As the Full Court in Goode’s Case observed (at para 72):
“… it can fairly be 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…”
29.Before July 2006, the object of Part VII was expressed in s 60B(1) as follows:
“The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
30.In the recent amendments, s 60B(1)(a) provides that the objects are to ensure that the best interests of children are met by:
“(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;”
In the revised explanatory memorandum to the Bill, it was noted (at para 52) that the object was consistent with the introduction of a presumption in favour of equal shared parental responsibility.
31.The principles underlying the objects are similar to the previous version, but s 60B(2)(b) is now more specific about the right of children not just to have contact with both their parents and other significant people, but to “spend time …” and to “communicate” on “a regular basis” with both parents and other significant people “such as grandparents and other relatives”.
32.The matters for the court to consider in determining a child’s best interests, as now set out in s 60CC, are also different in part from those set out in the previous s 68F(2) of the Act. In particular, there are two considerations expressed as “primary considerations”, the relevant one being:
“…the benefit to the child of having a meaningful relationship with both of the child’s parents…”.
There are then “additional considerations”, including a newly expressed consideration:
“(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;”
33.The revised explanatory memorandum noted (at para 49) that the intention of separating the primary considerations from the additional considerations was to:
“…elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act.”
The memorandum went on to explain (at para 52) that they were elevated as they deal with “important rights of children and encourage a child-focused approach”, although it was acknowledged (at para 51) that there may be some instances where the secondary considerations outweigh the primary ones.
34.In the second reading speech in the Senate on 11 May 2006 (at page 55), it was noted that the Report on the Bill referred to the primary considerations in s 60CC(2) as intended to “draw appropriate attention to the objects’ provisions in a positive way”, and likely to assist in directing the court’s attention to those objects, “particularly in relocation cases”. That point, however, was not expanded upon further.
35.The Attorney General’s submission to the House of Representatives’ Standing Committee on Legal and Constitutional Affairs noted that the primary considerations were “almost certainly” likely to have an impact upon the way in which relocation cases were decided, in particular, the emphasis on maintaining a meaningful relationship with both of the parents (see page 51 of the Report). Again, there was no further discussion or elaboration.
36.Although not in relation to relocation, Goodes’ Case is of assistance, in underlining the legislative intent in favour of substantial involvement of both parents. The Full Court made it clear that in interim hearings, instead of simply preserving a status quo, 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. In paragraph 65 of Goode’s Case, the Full Court sets out the pathway for the court to follow. I am satisfied it is also the appropriate pathway in this case.
37.As noted, Counsel for both parties in this case agree that whether O lives in Melbourne or the UK, neither the concept of equal time nor substantial and significant time is a reasonably practicable outcome, so that, as set out in paragraph 65.8 of Goode’s Case, the issue is then:
“…at large and to be determined in accordance with the child’s best interests.”
And
“9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.”
38.Counsel for the father submitted that the new Part VII provisions effectively cast an onus of proof on the applicant for relocation. They do not, and it is clear that was not the intent of the amendments. The legislature has not explicitly prohibited the relocation of a child away from one parent. It has not introduced a specific presumption against it, nor an onus of proof on the moving party. Nor has it suggested that just because the relationship between a child and a parent will inevitably be affected by a move away, that in itself should preclude the court from permitting the relocation. Otherwise, given the inevitability of some change to the nature of the child/parent relationship when the structure of the time spent together is changed, virtually all requests for relocation would as a matter of course be disallowed. Had that been the intention, the Act would have been amended accordingly.
39.The objects and principles of the Act, the primary and additional considerations under s 60CC, together with the various provisions in relation to equal shared parental responsibility, direct the court squarely to maintaining the important relationship between a child and his/her parents. But the child’s best interests remain the court’s paramount consideration (s 60CA). In the opening words of the objects provisions in s 60B(1) of the Act, and again in s 60B(2) where it is stated that the principles set out there apply “except when it is or would be contrary to a child’s best interests”, the legislature has not diminished the best interests test as integral to any parenting issues, including the difficult issue of relocation.
THE ISSUES
40.The agreed list of issues on the first day of hearing was as follows:
(a)The impact on O, and on her relationship with her father in the event that she were to live overseas with her mother for up to a three-year period;
(b)The mother’s attitude to the father’s role in O's life;
(c)The step-father’s role in O’s life and whether or not the father is marginalised or being valued;
(d)The ability of the father to respect the mother’s new family unit and O’s role within it;
(e)Each party’s capacity to co-operate and facilitate all aspects of contact;
(f)The costs of contact travel and how such costs are to be met;
(g)The likely impact on the mother if she is unable to relocate with O and in turn any likely impact on O; and
(h)O’s views.
41.The parties in their written and oral evidence specifically addressed those issues. For convenience, I will consider them within the framework of matters I am obliged to consider under s 60CC of the Act. I will deal first with the primary considerations under s 60CC(2), then the additional considerations under s 60CC(3), taking into account how each parent has fulfilled or failed in their parental responsibilities thus far, as required under s 60CC(4) of the Act.
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
42.I am satisfied that O currently enjoys a meaningful relationship with both her parents. They adore her and it is obvious that she loves both of them. Mr A, the Family Report writer, described O in glowing terms. Overall she is happy, secure in the love of both parents, and flourishing. There is one rider to that. O feels torn between her parents, particularly in the context of this difficult on-going dispute as to whether or not she will relocate for a period in the UK with her mother and Mr S.
43.The mother is adamant that she has promoted and will continue to promote O’s meaningful relationship with her father. Her father challenges that, and claims that the mother’s attitude is creating some distance or reticence on O’s part. I will return to that.
44.The father wants to maintain his meaningful relationship with his daughter. There is no dispute about that, although it appears in the past the mother questioned his commitment. That too will be discussed below.
45.I am conscious that a long-distance relationship, with longer but less frequent times spent together, is inevitably different from a relationship where people live closer together with regular face to face contact. But it does not in itself mean it cannot be meaningful. The likely impact of the relocation on O’s relationship with her father is integral to my decision in this case. It is important for her overall well-being and healthy development that she is able to enjoy their relationship, to experience his input into her upbringing, and to develop her own sense of identity through him and the paternal family.
46.It is a difficult case, made the more difficult by the intemperate language in the December 2005 report of social worker Mr J. He was not a witness and his report was not relied upon as such by either party. But it was produced for completeness, because it featured in various references in Mr A's Family Report, and in the cross-examination of the parties. Mr J had expressed the opinion that a proposed relocation may “effectively extinguish the relationship” between father and child, that a likely scenario was that “following a series of fits and starts the relationship will eventually wither”, and that the “likely prognosis for O and her father in the event of relocation is relationship atrophy.”
47.Mr J did not have the benefit of hearing the detailed evidence that has been explored before me. His language was extreme, and in the light of the detailed evidence, it was in my view misplaced. In any event, I am not asked to consider his report to assess his opinion on relocation. The relevance is the impact of his report on the parties. The father was alarmed to have his worst fears confirmed, that a meaningful relationship with his daughter would not be possible if she were overseas for a period. The mother was alarmed by the negative light in which she was cast.
48.I note that Mr A had concluded in his written report that if O were to relocate with her mother for a lengthy period, there was “…the risk of her relationship with her father diminishing…”. He wrote that O’s relationship with her father was then likely “to resemble one of a distant uncle.” Mr A largely resiled from that opinion once the more detailed evidence was put to him in cross-examination. Again I mention it at this stage only to highlight the alarm it caused the parties. This aspect so lies at the heart of the case – and cast such a long shadow over the proceedings - that I will consider it from various points of view below.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
49.It was agreed that fortunately this is not a concern in this case.
50.I must now consider the additional considerations under s 60CC(3) of the Act.
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
51.Mr A asked O if she had a message for the judge or any thoughts about what the judge should decide. She commented that she thought she should go and that she wanted to go [to the UK]. When drawn, she spoke of English movies she liked such as “Harry Potter” and “Lizzie McGuire”. Asked about how she would feel about leaving her pet cat at home in Australia, O told the Family Consultant that the cat had died, and that was another reason she wanted to go to the UK, in order to acquire another cat. She told him that she wanted to visit different countries because she has only stayed in one place.
52.O was offered the opportunity to think about other options. In response, she suggested she would like her father “…to live with us in England in a different house because it would be easier…[she] could go [to visit him] for few days every two weeks…”. To explain her feelings she pointed to a “face” which explained she was “satisfied”. She said that meant “…happy or a little bit more than happy…”. She said if her father were to relocate to the UK that “…we will all be happy…[and]…dad would be happy cos he gets to see me more, I would rather he comes to England than have short visits. When asked how she would feel if the judge allows her to relocate but her father is unable to go, she said “…I feel guilty, sometimes I feel it’s my fault because I was born…”.
53.When O was asked about how she felt about her stepfather being away, she was clear that the “…family is not back [together]… it’s not really a family…”.
54.Asked what she might think and feel if the decision were made that she could not go to the UK, O was unequivocal and said she will feel “…let down and hurt cos I’m excited about maybe going…”. She spontaneously requested to select a facial expression to indicate how she might feel if she were allowed to go to the UK, and she selected “a relieved face”. When Mr A asked her to explain what “relieved” meant, she said it meant that “…finally…[she] will be relieved if it’s all over and when it’s all over and I’m relieved I’ll probably be happy if I can go…relieved and happy…[and] if I can’t go…[I’ll be]…relieved and hurt…I just want everybody to be happy…”.
55.Finally, as the Family Consultant was concluding the interview, O raised the issue of her visits to see her father in Australia in the event she is allowed to relocate. She stated that if she is allowed to relocate she could stay with her father for three weeks at Christmas, but if not able to go the UK, her preference is to have a two-week visit with him.
56.Mr A noted O’s preference to go to the UK. However, quite reasonably, that has not been emphasised by the mother as the basis for me to decide the case in her favour. Her approach is realistic, given O’s age. Having observed that “[O] has a poise, presence and maturity about her, which belies her eight years...” Mr A then said (at para 67):
“…Despite [O’s] poise and her views articulately conveyed to the Family Consultant, [O] is after all eight years and in the Family Consultant’s view, not considered developmentally mature enough to understand the longer term implications should she relocate with her mother…”
57.Sadly, O’s views are notable for another reason, as to the conflict she feels. Mr A makes the point that she dearly needs the stability of certainty from the resolution of this case. So do her parents. The conflict she feels is something I will discuss further below.
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
58.O has always lived with her mother. They share a loving relationship. She is evidently close to her mother, secure, and well supported in her care.
59.O has also enjoyed a loving relationship with her father, despite living in a different city for a significant part of her life. Her father has expressed a concern that O’s relationship with him has been changing: she can be a little distant when they first meet, a little reticent about contact. Mr A noted that O appeared reserved and ‘stilted’ at first in her approach to her father in the counselling section, although he observed that O leaned closely into her father’s personal space to exchange greetings, and although the interaction was contained and reserved, it appeared warm and comfortable nonetheless.
60.Although the father agrees that he has a close and loving relationship with O, he raises her reticence as proof of the mother’s interference with their relationship, and his marginalisation from his daughter’s life, suggesting that it would be significantly worse if she were to live overseas. The mother denies any such marginalisation, and offers other possible explanations, including the impact on O of her father’s obvious anxiety and distress at the prospect of her relocation, and the pressure he wittingly or unwittingly imposes. I will consider those alternatives in detail shortly.
61.O is fortunate to enjoy the close, extended family of her father. Usually when she visits her father in Canberra, they drive several hours to Y, to be with his mother and other family members. They obviously love and are close to O. She also has loving extended family on her mother’s side.
62.Mr S is an important part of O’s life with her mother, although in the UK for most of this year. O shares a fond relationship with him. He acts responsibly and well towards her, with generous financial and emotional support. He appears clear about his role, which he describes as “a caretaker father’s role,” and understands that the father is and remains O’s father. The father asserts that the stepfather contributes to his marginalisation in O’s life. I will also return to that.
63.O is also close to her stepfather’s children, 17-year-old L and 14-year-old CL. They stayed in the S household on a regular basis, and continue to visit even in their father’s absence.
(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;
64.This is an important consideration. It lies at the heart of the father’s concern that it would not be in O’s best interests to spend a period of time in the UK with her mother. His claim, that the mother has not and will not promote his relationship with O, was appropriately a major focus of Mr A's Family Report. It was largely because of a concern that she would not, that Mr A concluded in his written report that the mother should not relocate O. Conversely, it was largely because of an amelioration of that concern when cross-examined that Mr A changed his opinion. He had quite properly acknowledged in his report that the parents’ respective views needed to be tested in evidence.
65.In summary, the father’s position is that the mother has never truly appreciated or respected his importance in O’s life. She moved from Canberra when O was young. She has stood in the way of their relationship. She has made contact difficult. She has not facilitated proper telephone and email contact. She has not been flexible in allowing him to spend time with O above and beyond the precise court orders. She and Mr S have promoted their new family unit above O’s relationship with him.
66.In summary, the mother’s position is that the father’s account and assessment is entirely unfair. She has always encouraged the relationship, and she points to the best proof being O’s strong and loving relationship with her father. Her position is that her father has not “moved on” or accepted her re-marriage, and that he perceives the importance of his relationship with O above and negating all her other relationships.
67.Each party feels hardly done by. They are now polarised, each with their myopic perspectives that cloud their capacity to fully appreciate the other’s position. It is clear that this relocation issue, and the current court case, have added to difficulties in the parties’ capacity to communicate. They have differing views as to how well they communicated before that. The mother said that they were managing the relationship reasonably well and it is only this dispute that has caused real difficulties. The father’s view is that things were not going well in any event. Whichever version is true, they had managed to negotiate some years of contact before this issue brought them to court.
68.Although each parent claims to fully respect the other’s role in O’s life, and each seeks to lay most of the blame at the foot of the other, neither claim is entirely correct. In fact there is some truth in the criticism that each makes of the other. At times, each has exhibited a high-handed attitude to the other, or unnecessary intransigence and/or insensitivity to the other’s position.
69.For her part, the mother may not have shown sufficient sympathy to the effect on the father when she moved to Melbourne to be with Mr S in 2002, or at least not in a way that was apparent to the father, who must have been desperately worried and sad at the prospect of spending significantly less time with his little daughter.
70.She does not seem to dispute that she was quite outspoken in her criticisms of the father when talking to Mr J, referring to his “selfishness, arrogance, financial miserliness and so on.” And she does not deny telling Mr J something to the effect that “whether it is [the father] or someone else suitable who performs the role of father in [O’s] life, what matters most is that she is raised in a two-parent family.” In her evidence she explained that she does believe it is beneficial for O to be in a two-parent family, and she believes O is thriving in that context. She tried to explain that she did not mean that the father should be excluded, but her form of expression to Mr J must have left the father with the impression that he was not considered an important part of O’s life, and it raised that concern for me. Similarly, at one point in evidence she said that she did not see the move as a “huge issue”, so far as the father’s relationship with O goes. At best, that is an insensitive statement. At worst, it suggests a lack of understanding as to the possible impact of the move. And a description that she agreed she gave to Mr J, that the father’s attitude to contact in the past had been “lukewarm”, was unfair. He had consistently sought time with his daughter.
71.I note too that even though they live in different States, the mother could have consulted more on decisions, for example in relation to schooling. She claims the father is wrong in saying she never discussed the choice of O’s primary school, but there is support for his version by her evidence about proposed secondary schooling which I am satisfied she has not raised with him.
72.The father is certainly not without blame himself. Although keen to blame the mother and her husband for interfering with his time with, and his relationship with his daughter, he overlooks his own contribution. There is a stark example, relating to the “Skype” technology, provided to him by Mr S and the mother. It enables video conferencing via computer. In the context of the father’s repeated complaints that the mother has stood in the way of his regular telephone and email contact with his daughter, his excuses for not having set up or even unpacked this Skype technology are lame. He says it would cost $200 or $250 to obtain the necessary broadband access, but it is apparent that he has not seriously examined any expense or difficulty of installation. He also claims that as other forms of telephone or email contact have been blocked by the mother, he does not believe Skype has any chance of success, even though the mother voluntarily supplied the equipment. That is not a fair account, as I will discuss shortly.
73.The mother’s claim that the father has found it difficult to accept her new relationship is supported by an incident in September 2005 when the father refused to allow Mr S to collect O from the airport in Melbourne on a day when the mother was working. He insisted that only the mother could collect her. That was an unnecessarily restrictive view, as Mr S was living with and contributing to O’s day to day care. Objectively, there could be no concern with him collecting O. The father was being obstructive.
74.Having observed that each parent has faults, it seems that of the two, the mother has the greater insight and the greater capacity for introspection. That was Mr A’s view expressed in his evidence. He noted her capacity for self-reflection as “very positive,” and he considered that she had shown some recognition that sometimes she had been unfair on the father. He found her the more open and spontaneous of the two parents.
75.A substantial part of the evidence before me was about various incidents referred to by Mr J in his report, and later by Mr A in the Family Report, raising concerns as to whether the mother’s attitude to O’s contact with the father gives rise to a risk of the relationship between father and child being significantly diminished if O spends up to three years away in the UK. There were several quite florid incidents that appeared to reflect poorly on the mother, until explored further in evidence.
76.One incident occurred in March 2005, when the mother travelled to Canberra with O, unbeknownst to the father. She did not contact the father for him to see O. That suggested the mother’s serious disregard for the importance of O’s relationship with her father and her opportunity to see him while visiting the city in which he lives. The context casts it quite differently. First, O was going to see her father the following week-end in Canberra. Secondly, the mother was travelling to Canberra for a specific family reunion. Sometime prior to that week-end, she had been hurt and upset when the father had been inflexible and refused to change a contact week-end so that O could see her maternal grandfather on one of his rare visits to Melbourne. Any lack of generosity of spirit on her part, (and it would have been preferable for her to ensure that O was able to “touch base” with her father whilst in Canberra) no doubt reflected her perception of a similar lack of generosity of spirit on the father’s, and a genuine desire that O have the opportunity to spend meaningful time with her maternal relatives with whom she is able to spend comparatively little time.
77.In a number of places and in a number of ways, the father referred to his hurt and distress at a sexual abuse allegation raised by the mother. He gave the impression that such a cruel and unfounded allegation illustrated her negative attitude towards him and his role in O’s life. In his affidavit (at para 21) he swore:
“…In October 2003, she suggested that I might sexually abuse [O]. There was no substance to this at all and this appalling suggestion needs to be addressed through counselling as it has caused me a great deal of hurt and distress….”
In his evidence he told me that the allegation was the most important thing to rectify as “hanging over my head every single day that I breathe.” Again, the context casts this matter in a different light.
78.In or around October 2003, O had been with her paternal grandmother in Y, and purportedly said words to the effect “When I am playing with [L] and [C] I don’t like it when they pull my panties down.” The grandmother’s immediate reaction was to contact a Sexual Abuse Counselling Service for advice. When the mother telephoned her home soon afterwards, the grandmother told her about O’s comment and suggested that the mother should contact the counselling service herself. Understandably, the mother was horrified and disbelieving. It transpired that what had occurred was a childish game of “dakking” rather than anything untoward. The references to a sexual allegation abuse against the father turned out to be in the form of a comment by the mother to the father, when discussing this later. She was pointing out to him the upheaval that had been caused in her household, and went on to say that someone had even suggested to her that he, the father, might be the problem. There was no more discussion, no allegation beyond that, no reports, and no interruption to his time with O.
79.The father’s account of an unfounded sexual abuse allegation against him is in itself unfounded, and bound to have left the wrong impression that the mother would stop at nothing to interrupt and undermine his relationship with O.
80.Another example of the disconnect between the father’s claim and the reality, is in relation to telephone and email contact. On his account it would seem that until recently (when he would have it that the mother has been on her best behaviour to leave a good impression for the court – and she would have it that both have probably been trying to do that – the latter in my view being the more open and realistic assessment) the mother has stood in the way of telephone and email contact. Again, without detailed analysis, his version suggested that he had been thwarted in pursuing the telephone contact permitted by court orders, and email contact.
81.The evidence satisfies me that there has been significant telephone contact, indeed going beyond that permitted by orders, sometimes several times in one day. I accept that it has more particularly been the case in recent months. I also accept that there are times when it is difficult for the father to engage O on the telephone. But in fairness, the blame does not necessarily lie with the mother. Given O’s own comments to the Family Consultant, it seems there are times when, like other children, she does not want to be distracted from watching television or engaging in normal childhood activities, or she is busy getting ready for school.
82.As for the emails, the mother produced records which show that between July 2005 and November 2006, O sent 97 emails to her father. As she was aged only seven or eight years’ at the time, it cannot lead me to conclude that the mother has stood in the way of email communication. I note too that in the months where there has been more telephone contact there has been less email contact. That appears logical and reasonable. There have been glitches with MSN contact, the mother being anxious about abuse by internet “lurkers”. Whether or not that is in fact a problem, any impression that the mother has been stopping the child from contacting her father is not borne out by the evidence.
83.Finally, although the father complains that until recently the mother has not permitted him to spend time with his daughter beyond the specific court orders, he cannot suggest that she has not complied with orders for face-to-face time. He is critical that there has not been more time, when the orders allow for more time if mutually agreed. The reality is that it has not been mutually agreed. The reality too is that for a significant period, this dispute has been on foot. It does not provide a good breeding ground for mutual co-operation. I note that when the mother went overseas to see her husband in the 2006 Term 2 school holiday, she did not offer the father the chance to look after O in her half of the period. At least she did agree to it, when the father requested that time.
84.The father is critical too that when the mother first moved to Melbourne, and he then moved to Melbourne to be close to his daughter, she stood in the way of his contact. Again the reality is different. It is true that she did not agree to his proposal that he would see O on an ad hoc basis. However, she did suggest that he spend alternate week-ends with O, and every Tuesday and Thursday afternoon, collecting her from crèche and keeping her with him until after dinner and bath-time. He agreed to that arrangement.
85.In assessing the willingness and ability of the mother to facilitate and encourage a close and continuing relationship between O and her father, the “proof of the pudding is in the eating.” O does have an excellent relationship with her father. She has at all times lived with her mother, for a considerable period interstate from her father. Had the mother (or for that matter, her husband) consciously or sub-consciously wanted to alienate the child from her father, or undermine her relationship with him, there has been ample opportunity. The reality is that she has not. In cross-examination, Mr A arrived at the same conclusion.
86.The father blames the mother and Mr S for the reticence or distance O sometimes displays at the start of his time with her. In my view, he is overlooking other potential causes, although there is one that he does acknowledge. O is often disappointed to leave home if L and CL are due at her home on the week-end that she is away. That is not the fault of the mother and I accept the mother’s account that she always encourages O that she will have a great time with her father. But there is another likely cause for any discomfort on O’s part. She may feel emotional pressure from her father, as discussed under s 60CC(3)(f) below.
87.I conclude that the father has exaggerated and over-dramatised his claims that the mother cannot be trusted to facilitate a meaningful relationship while overseas. The mother’s past conduct, with some limitations to which I have referred, overall leaves me confident that she is willing to facilitate and encourage O’s relationship and time with her father. I am fortified by Mr A’s positive comments about her capacity for insight, honesty, and change. I accept she did some soul-searching after the shock of Mr J’s critical report.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
88.There is no question that a change in O’s circumstances, from living in Melbourne, to living for a period of up to three years in the UK, is substantial. It was to the mother’s discredit that in the course of answering a particular question in cross-examination, she suggested anything to the contrary. She is so desperately keen to join her husband, and garner the benefits she sincerely believes await the family in the UK, that she was clearly under-emphasising the import of the change. It was at odds with her evidence overall which acknowledged the change for O, and her proposals for O to spend substantial and significant blocks of time with her father.
89.If she is in the UK, O will see her father and his family less frequently than under the current arrangements. However, she will spend substantial blocks of time with him both in Australia, and if he chooses, in her temporary home environment in the UK, for a number of days comparable to the number of days she sees him now in the course of a year. She will see maternal and paternal family during return trips to Australia in June and January, and will be able to show the father her environment and her routine, when he visits there. She will have good opportunity for Skype, email, and telephone contact. Although the contact is different in nature to that which she currently enjoys, she is already experiencing a long-distance relationship with her father, and although it is less long-distance than what is proposed, the fact that it is not in the same city cannot be overlooked altogether.
90.One other consideration is that Mr S’s children are important to O. L will be with the family in the UK. It is now uncertain whether CL will be there. It had been the plan, but the uncertainty of this case has left it unclear. It remains to be decided.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
91.The mother will be able to afford the trips to Australia as proposed, given her husband’s high income-earning capacity in the UK. She will be able to travel with O, and although the issue arose as to whether or not it would be appropriate for the mother to arrange for a friend to travel with O in the event that she has a baby and is unable to fly with her, upon reflection, it is somewhat of a “red herring”. If and when that situation arises, I am confident that, as a caring and responsible parent, the mother would either travel with O herself, or only permit her to travel with someone in whom she has confidence and with whom O is comfortable.
92.I am satisfied too that the father will be able to afford one trip to the UK each year. Mr S and the mother are prepared to do all things necessary to ensure that there is no child support obligation enforced against the father, to free up the funds for his trip. And he will not be paying for around 12 return trips between Melbourne and Canberra as he currently does on an annual basis. There is no real dispute that between airfare and reasonable bed-and-breakfast accommodation, he could enjoy up to several weeks with O in the UK for around $5,000.
93.I accept that other methods of communication, via telephone, email, MSN, or Skype, are no substitute for face to face contact. However, they are useful tools and means by which to lessen the tyranny of distance, and in this case they are within the grasp of the parties. At least Skype enables the conversants to see each other. All these methods of communication are familiar to O. They are already a normal part of her life.
94.Mr A reasonably points out that the rigours of travel for O should not be underestimated. That is true. That is why it would be important for one trip each year to be undertaken by the father, so that O would travel only twice to Australia. As the proposed periods are each three weeks long, she would have ample time to get over the journey. In his own application, the father suggested that if O relocated, she should travel back three times per year.
95.It is important to note that O is used to a long-distance relationship with her father, and to commuting. She has not lived in the same city as her father since she was very young. And she undertakes regular trips involving travel to the airport, a plane ride from Melbourne to Canberra, and after that a drive of at least two hours to the father’s family in Y, and then the same in reverse just a few days later. I am not suggesting there is a direct comparison between that travel and longer overseas travel, or monthly visits as opposed to visits with some months in between. But the impact is likely to be less than the impact that could be expected when a child has lived very close to a parent, been able to see him every few days, and has never commuted.
(f)the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
96.Both parents have the capacity to meet O’s needs, except in one respect. She is feeling the pressure of her parents’ conflict, particularly surrounding the issues in this case. Poignantly, she told Mr A “…I feel guilty, sometimes I feel it’s my fault because I was born…” and, when she emerged from the counselling play-room with a picture she had drawn, she appeared paralysed as to which parent to give it to.
97.It is inevitable that the parents, with their strongly held views about relocation, have conveyed some of the tension to O. The mother is apart from her husband, and faces either the prospect of a prolonged separation, or if he returns, the conflict of having him precluded from what he so wants to do in working abroad, advancing his career, and providing for the future and security of his blended family. Not unreasonably, she feels like the “meat in the sandwich”, as she will not leave O, but has been forced to cause tensions within her marriage because of the current dilemma. For the father’s part, he fears that his relationship with his daughter will be significantly diminished, even extinguished, if she goes overseas.
98.Of the two parents, it is the father who has been less capable of shielding O from his emotions. O confirmed to Mr A that both parents talk to her about the proposal to relocate, although her mother does so less than her father. When she was asked what it was like for her when the father speaks with her about moving, O said she felt upset when he raises the issue. He says, for example, “If you go I won’t be able to see you for a long time” and O indicated that at times he made a disconcerting sound and then took a deep breath. Asked if she had a preference about talking about the issues with her father or not, O was clear she preferred not to talk about it. When asked how she thought her father felt about the possibility she may move, O considered that her father probably felt sad. When offered a facial expression chart, O chose the “sympathetic” face, to reflect how she felt, knowing how her father was feeling.
99.There was also a reference during the brief interviews for Mr A’s Preliminary Report of 7 August 2006, that O complained to the counsellor that she felt uncomfortable when her father knelt down to discuss these issues with her. The father’s intensity and angst on the topic were obvious throughout the hearing. That, coupled with what O has conveyed, suggest that the intensity with which the father has conveyed his feelings to O impedes his capacity to provide well for her emotional needs in that respect, and may well be the source of her recent reticence that he has observed.
100.As to the capacity of other people to provide for O’s needs, it is important to recognise that the paternal relatives have apparently been involved in her care, and seem capable of contributing towards her needs. So are some maternal family members.
101.The stepfather has also been actively involved with O on a day to day basis. He has performed an important role as a parental figure since 2002. Even while he is away, O frequently communicates with him by Skype, chipping in and out of her mother’s daily conversations with him. He has demonstrated a capacity to care for her responsibly and well. It is a credit to him that he has borne the lion’s share of her financial support (the father paying small sums of child support, and meeting the costs of air travel). Despite the father’s claim to the contrary, I am satisfied that Mr S has not attempted to over-step the mark with O. He seems to straddle the difficult role between providing care to his wife’s daughter, whilst recognising that she has her own father. He seems to be understanding of the father’s position, in light of his own role as a loving but part-time father to his own children L and CL.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
102.Although Mr S and the mother argue that O’s exposure to life overseas, and the various new experiences it will offer, will be to her benefit, it is an issue upon which different people will have different views. Mr A’s perspective is that O is likely to gain less than at a later stage in her life. In my view there are bound to be gains from interesting and new experiences, but such gains need to be weighed against the primary consideration as to the effect on O’s relationship with her father.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
103.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;
104.This has mainly been dealt with under other headings above. Overall, both parents have been vigilant in meeting parental responsibilities, with some exceptions to which I have already referred.
105.The mother and Mr S have supported O and demonstrated an impressive and responsible approach in that regard. The father has made financial contributions. At times, they have been limited. His present financial contribution by way of child support is low but takes into account that he is paying the air fares between Canberra and Melbourne.
106.It is important to recognise the lengths to which the father has gone throughout the years that O has lived in Melbourne to ensure that their relationship has been maintained. Initially he moved to Melbourne. He left again as he thought his work prospects were better in Canberra. In the past the mother criticised him for that. On the one hand that was a little unreasonable given she was the one who had moved the child away from where he was living. On the other hand, there is an irony in that he sees it as reasonable that he moved back in order to better his work prospects (and that he had moved away briefly prior to that to live in Sydney for work), but he cannot understand Mr S’s need to further his own prospects in order to support this blended family, including O.
(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, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
107.Fortunately these aspects are not relevant in this case.
(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;
108.It is important for O to be free from the rigours of more litigation. Her parents managed to avoid litigation until this difficult conundrum arose, and created an impasse with no common ground. This litigation has clearly been emotionally and financially crippling. They must each be aware of the terrible effects on O. Although my decision will inevitably upset one of the parents, I am confident that what-ever I decide, neither parent will be keen to start more litigation in the future.
(m)any other fact or circumstance that the court thinks is relevant.
109.I have considered the effects on O from the changed circumstances, should she go to the UK. I have not dealt specifically with the effects on O if her mother is restrained from going.
110.I emphasise that the fact that Mr S has already started his job in the UK does not sway me, either for or against this application to relocate. I do not proceed on the basis that he was wrong to go pending this case, nor that I am now bound by a “fait accompli.” He and his wife quite properly approached the father to indicate their proposals and to ask for his agreement. When an agreement was clearly not possible, the mother, again properly, remained in Australia with O, awaiting a court decision. They decided that during the inevitable and relatively lengthy delay, Mr S should take up this employment opportunity, at least initially with just a short contract. They say that if the mother is not permitted to take O to join him, he will either return, or he may stay on for 6 to 12 months, to clear debt arising from this case. They have not made a final decision.
111.I am concerned by the likely impact on the mother if she is not permitted to take up this opportunity. If as a couple they decide that Mr S needs to remain overseas just to clear debt, there is likely to be an enormous strain on their relationship. But if Mr S returns, given the career opportunities for him in the UK, what he sees as his capacity to enhance his future career opportunities in Australia if he is in the UK for a few years, and his capacity to earn a significantly higher income in the UK than in Australia, he will be understandably frustrated and the relationship still put under pressure.
112.Mr S has been paying more than $1,500 per month by way of child support for his own children. He has been supporting his wife, and largely supporting O. His need, not only for professional fulfilment, but also for the opportunity to get ahead financially, and to set himself up for better jobs in the future, is a reasonable one.
113.Mr S and the mother say that they would like to be in the UK for a further three years. They want to pay back the debt from this case (which has followed shortly upon legal proceedings in relation to his property settlement from his previous marriage), buy a home in a suburb close to where they are currently living in Melbourne, and fund private schooling for O’s secondary education. The mother does have an interest in an investment property in Canberra and that cannot be overlooked as something that could be used towards the aims outlined above. But I do not know the extent to which it would assist in achieving those aims, and the aims do not strike me as unreasonable or avaricious.
114.It is unrealistic to overlook the financial rigours of litigation for both these parents, and in Mr S’s case, two bouts of litigation. It is especially unrealistic to overlook his need to support a number of people, including O. His obvious frustration at not being able to pursue his career, and to pursue a very particular opportunity to assist his family financially, is palpable. It is important because it impacts on the mother.
115.She describes herself as the “meat in the sandwich,” and says that the only tension and arguments between her and her husband relate to this issue. Mr A confirmed there is that obvious stress in her life. The fact that she has been “teary, anxious and depressed” is corroborated by her general practitioner, Dr Z. I accept her evidence that, try as she might, she gets short and testy with O. Her sadness is obviously clear to O. And O describes it as “not being a family” without Mr S at home.
116.In this case I need to assess various risks. It strikes me as a reasonable risk that Mr S and the mother’s relationship may be impeded if they live in different countries, or if Mr S faces the frustration of the financial impost of a child who is not his biological child, without being able to earn a maximum income now, and in the future back in Australia.
117.Another risk to consider is whether the family will return to Australia if permitted to spend time overseas. The evidence supports their claim that they will. Mr S and the mother have consistently spoken of their future in Australia, their desire to save for a home here, and for O’s senior schooling to commence here in Year 7, in three years’ time. Any orders that I make would permit the mother to have O in the UK only for a specified period of time. She has complied with court orders, which is a good indicator that she will comply with a court ordered return to Australia. In addition, the UK is a Hague Convention country, and that fortifies me in my view that she will return.
CONCLUSION
118.This is a difficult case. I have needed to carefully weigh the competing factors in determining O’s best interests. It is her best interests which must remain paramount, even above her mother’s freedom of movement. I am satisfied that those best interests dictate that her mother be permitted to take her to the UK for a specified period of time. I know the father will be disappointed but I hope he will soon be able to understand that he is in no way losing his daughter.
119.O is fortunate in having a well-established, meaningful, and loving relationship with her father. It is not new or tenuous. It is long-standing, and any recent reserve on O’s part is most likely referable to the rigours of this litigation, and her father’s understandable angst, rather than systematic interference or undermining on the part of the mother and Mr S. They have overall complied with court orders and the evidence supports that they will continue to do so. Indeed, O and her father formed their bond and meaningful relationship over many years without any court orders at all. That reflects well on both parents, and on the mother’s capacity to encourage and facilitate O’s relationship with her father even without outside compulsion.
120.It is fortunately a case where each year the adults will be able to afford and facilitate O spending two substantial blocks of time with her father in Australia in his home environment, and one substantial block of time in the UK, for her father to experience and share her day to day life, including her schooling, first-hand. Though different in nature to the present arrangement, it is not much different in terms of time. Just as she currently spends time with her father within the constraints of “reasonable practicability”, so she will do so from the UK. In neither instant is it “substantial and significant time” within the meaning of s 65DAA(2) of the Act, but it is as substantial and significant as is reasonably practicable in the circumstances, weighing various considerations, including the rigours of travel for O.
121.The option for the father to spend up to three weeks with O in the UK augments his involvement in her day to day life by allowing him to participate with her in her environment, and to be part of her school and other activities. Although I heard in evidence that he has recently visited Melbourne for one particular activity in which O was involved, they mainly share only week-end or school holiday time at the moment.
122.It is obvious that other means of communication are no substitute for face to face contact, but they will be easily available to O, who is savvy in how to use them, by virtue of already sharing a long-distance relationship with her father, and more recently, with her step-father.
123.Weighing the risks for O, I am satisfied that there is a lower risk of harm to her from opening this opportunity to her mother, than from closing it down.
124.If she cannot relocate, the mother is put in a terrible position of torn conflict and loyalty, and her secure marriage relationship potentially imperilled by stress. It is a relationship in which O is supported and nurtured and able to flourish. The capacity of her mother to support her emotionally, and Mr S’s capacity to continue to welcome O into his household, and to support her wholeheartedly emotionally and financially, should be promoted. Any significant damage to their respective capacities must inevitably rebound on O. I am satisfied as to the genuine depth of their desire to avail themselves of this opportunity, and as to the heartache, frustration and resentment they are likely to feel towards the father, and potentially each-other, if they are not able to do so.
125.Both counsel agree that the authorities give me the power to make orders different from those sought by either party, an approach again confirmed by the Full Court in Goode’s Case (at para 47), albeit in a different context from relocation. I have turned my mind to an order permitting the mother to relocate O for a period less than three years. I bear in mind her rough estimate that somewhere around a further 12 months in the UK would enable the family to clear their debts. On reflection, it seems counter-productive to allow them to be away just long enough to put them back into the position they were in before this case started. They had initially sought three years away in order to “get ahead” as they perceived it, and for Mr S to establish his work credentials. That is the opportunity I propose to allow, with the symmetry that O will return to Australia for her secondary schooling.
THE ORDERS
126.It was agreed that the detail of orders will await further submissions, it being difficult for counsel to obtain instructions as to the minutiae of arrangements, without knowing where O would be residing. Some details were agreed. Others were not addressed. For example, I am not able to conclude orders as to the date of departure for the UK, the time O will spend with her father until then, or the proposals for the time to be spent together when she returns to live in Australia. I will ask Counsel to take instructions and to prepare draft orders, and/or to make any necessary submissions about them.
127.I propose a discharge of previous orders so that there will be only one set of orders. They will permit the relocation, and provide for O to spend time with her father in Australia for 3 weeks in June and January, to be brought to Canberra by the mother or her agent at her expense; for the father to be permitted to visit her in the UK for one 3 week block in each year, at his expense; and otherwise for regular communication by email, telephone and Skype. The orders also need to provide for O’s time with and communication with her father once the relocation period has ended.
I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau
Associate:
Date: 21 December 2006
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