Macrae and Macrae
[2017] FCCA 2301
•22 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MACRAE & MACRAE | [2017] FCCA 2301 |
| Catchwords: FAMILY LAW – Competing applications for final parenting orders in respect of children aged 10 & 7 – application by mother to move children’s place of residence from Adelaide to Hobart – application opposed by father – father seeks shared care regime based in Adelaide – mother proposes father spend regular periods of time with children during school holidays and during the school year – both parties capable and loving parents – no issues of family violence, neglect or abuse – both children well-loved children – presumption of equal shared parental responsibility applies – best interests – meaningful level of relationship – consideration of equal time regime in Adelaide – impact on mother – mother has formed relationship with resident of Tasmania – substantial and significant time regime based on children living in Hobart and father living in Adelaide – considered – what is reasonable and practicable – logistical consideration relating to travel – equal time regime if father moves to Hobart – finely balanced case – no obvious or preferred solution. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: B v B: Family Law Reform Act 1995 (1997) FLC 92-755 Russell & Russell & Anor [2009] FamCA 28 MRR v GR (2010) 240 CLR 461 C & S [1998] FamCA 66 AMS v AIF; AIF v AMS (1999) FLC 92-852 Goode & Goode (2006) FLC 93-286 Morgan & Miles [2007] FamCA 1230 Taylor & Barker [2007] FamCA 1246 U v U (2002) FLC 93,112 Fragomeli & Fragomeli (1993) FLC 92-393 B & B: Family Law Reform Act 1995 (1997) FLC 92-755 D and S V (2003) FLC 93-137 Godfrey v Saunders (2008) FLR 287 Mazorski v Albright (2007) 37 FamLR 518 Astor & Astor [2007] Fam CA 355 Fragomeli & Fragomeli (1993) FLC 92-393 |
| Applicant: | MS MACRAE |
| Respondent: | MR MACRAE |
| File Number: | ADC 1314 of 2015 |
| Judgment of: | Judge Brown |
| Hearing date: | 24 April 2017 |
| Date of Last Submission: | 24 April 2017 |
| Delivered at: | Adelaide |
| Delivered on: | 22 September 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Tinning |
| Solicitors for the Applicant: | Norman Waterhouse Lawyers |
| Counsel for the Respondent: | Ms Lewis |
| Solicitors for the Respondent: | Barnes Brinsley Shaw Lawyers |
ORDERS
It is ordered:
The parties to these proceedings Ms Macrae (hereinafter referred to as “the mother”) and Mr Macrae (hereinafter referred to as “the father”) have equal shared parental responsibility for the children of the marriage X born (omitted) 2007 and Y born (omitted) 2010 (hereinafter referred to as “the children”).
The mother be at liberty to relocate the children’s place of residence from the State of South Australia to the State of Tasmania on or after (omitted) 2018 provided she informs the father of the children’s proposed date of departure to Tasmania twenty-one (21) days beforehand.
Prior to the mother’s departure with the children pursuant to order (2) hereof, the children live with the parties, subject to the existing orders; as follows:
(a)With the father:
(i)in week one of each fortnight from the conclusion of school on Thursday until the commencement of school the following Friday;
(ii)in the second week of each fortnight from the conclusion of school Thursday until the commencement of school the following Monday;
(iii)during the September/October 2017 school holiday from 9:00am on Monday of the second week of such school until the commencement of school on the first day of school term following provided subparagraphs (i) and (ii) will recommence in the new school term, as if there were no interruptions by the school holiday period;
(iv)during the Christmas school holiday from the conclusion of school on Thursday 15th December 2017 until 5pm Friday 5th January 2018.
(b)With the mother at all other times.
Upon the mother’s relocation to Tasmania, with the children, the children live with each of the parties as follows:
(a)With the father in the event he elects to remain living in Adelaide:
(i)In 2018 on two weekends, during each school term, the weekends to be agreed between the parties and failing agreement to be the third and sixth weekend of each school term, in Adelaide, with the children’s flight from Tasmania to depart on Friday afternoon and the children’s flight from Adelaide to depart on Sunday afternoon of each such weekend, unless such weekends are long weekends when the weekend will conclude on the Monday public holiday;
(ii)In 2019 on one weekend, during each school term, the weekend to be agreed between the parties and failing agreement to be the fourth weekend of each school term, in Adelaide, with the children’s flight from Tasmania to depart on Friday afternoon and the children’s flight from Adelaide to depart on Sunday afternoon of each such weekend, unless such weekend is a long weekend when the weekend will conclude on the Monday public holiday;
(iii)For the first half of each of the April and September/October school holiday periods unless the parties agree otherwise with the children’s flight to depart from Tasmania on the first Saturday of the school holiday period where possible in morning and with the children’s flight from Adelaide to depart on the middle Sunday of the school holiday period;
(iv)For one half of the July school holiday period at times to be agreed and failing agreement to be the first half with the children’s flight to depart from Tasmania on the first Saturday of the school holiday period where possible in the morning and with the children’s flight from Adelaide to depart on the second Wednesday of the school holiday period;
(v)For one-half of each of the Christmas school holiday periods at times to be agreed and in default of agreement:
A.The second half in the 2018/2019 Christmas school holidays concluding on the last Sunday of the school holidays; and
B.For the first half in the 2019/2020 Christmas school holidays commencing on the first Saturday of the school holidays;
(vi)On any other weekend specified by the father to the mother during which he envisages he will be in Tasmania, provided such visits only take place at the father’s sole expense.
(vii)At any other times as may be agreed be the parties from time to time.
(b)With the mother at all other times.
In the event the father elects to relocate to live permanently in Tasmania, the children live with each of the parties as follows:
(a)With the father:
(i)For the balance of any school term in which the father relocates (and in the event that he relocate after week 7 of any term, then for the balance of that term and all of the following term:
A.In week one from the conclusion of school Thursday until the commencement of school Monday;
B.In week two from the conclusion of school Thursday until the commencement of school Friday;
(ii)Thereafter for the next two school terms:
A.In week one from the conclusion of school Wednesday until the commencement of school Monday;
B.In week two from the conclusion of school Thursday until the commencement of school Friday;
(iii)Thereafter during school terms on a week-about basis with handovers to occur at the conclusion of school each Friday;
(iv)For one-half of the April and September/October school holiday periods;
(v)For one half of the July school holiday period save and except that it in the event the father elects to travel with the children to Adelaide during said school holiday period for more than five days, then such visit be extended such that it conclude at 5:00pm on the Thursday of the second week of the school holidays;
(vi)During each of the Christmas school holidays in accordance with paragraph 4(e)(A) &(B) hereof.
(b)With the mother at all other times.
That notwithstanding any other provisions of these orders, the children spend the following special occasions with the parties as follows:
(a)On Father’s Day with the father between 10am and 5pm;
(b)On Mother’s Day with the mother between 10am and 5pm;
(c)On each of the children’s birthdays, with the parent in whose care the children will not otherwise be on that date, for a period of two hours on a school day and a period of three hours on a non-school day at times to be agreed between the parties;
(d)At Christmas:
(i)With the mother, from 12 noon 24 December until 3pm 25 December in 2018 and each alternate year thereafter and from 3pm 25 December until 5pm 26 December in 2019 and each alternate year thereafter;
(ii)With the father from 3pm 25 December until 5pm 26 December in 2018 and each alternate year thereafter and from 12 noon 24 December until 3pm 25 December in 2019 and each alternate year thereafter
That for the purpose of the children’s airflight to Adelaide and return to Tasmania to give to the orders in the event that the father remains living in Adelaide so that the children may live with the father both during school terms and during school holidays as specified by these orders:
(a)That the mother do cause the children to travel as unaccompanied minors and to meet the entire costs of the children’s air travel and any additional fee associated with their travel as accompanied minors.
That until such time and as the father may elect to relocate to Tasmania, the children communicate with the father each week by Skype, other electronic means including telephone at times to be agreed between the parties.
That the mother consult with the father as to the appropriate school for the children to attend in Hobart and in the event that the parties are unable to agree, the mother be authorised to enrol the children at (omitted) Primary School for the balance of their education up to and including Year 10 and thereafter at (omitted) School for the balance of their secondary school education.
That both the mother and father be at liberty to obtain direct from any school at which the children may attend from time to time the following:
(a)School reports, merit cards and any material pertaining to the children but not limited to academic progress and extracurricular activities;
(b)School photographs provided any party meet the expense of same;
(c)All material relating in relation to the child publish by the school including but not limited to parent-teacher notices, school newsletters and the like.
That each parent is at liberty to attend all school functions and activities including parent-teacher nights, sports day, school concerts, excursions, classroom activities and any other festivities, activities or events to which parents are normally invited to participate and attend.
That the mother and father do:
(a)Keep the other informed at all times as to their residential address, contact mobile and landline telephone numbers and email contact address;
(b)Keep the other informed as to any illness or accidents suffered by the said children and do authorise the other to consult with and obtain advice from the said children’s medical or other treating practitioners including any allied health practitioners;
(c)Forthwith advise the other in the event of any sudden illness or accident suffered by any of the said children which requires them to be hospitalised or receive other emergency medical treatment and in such circumstances each parent permits the other to attend at or be in contact with any hospital or other facility at which any of the said children have been so admitted or treated and in order to either visit the said children or receive information as to their diagnosis, prognosis and treatment.
All applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Macrae & Macrae is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 1314 of 2015
| MS MACRAE |
Applicant
And
| MR MACRAE |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Macrae and Mr Macrae are the parents of X “X” X, born (omitted) 2007 and Y, born (omitted) 2010. They have been divorced since November of 2015.
These proceedings primarily concern where X and Y should live, on a final basis – whether in Hobart, Tasmania; or in Adelaide, South Australia; and, depending on the location concerned and how each parent responds to that situation, what periods of time they should spend with each of their parents.
This in turn depends on where each of the parties will be living vis-à-vis the children. The father’s contention is that a proper consideration of their best interests dictates that the children should live in what is commonly called a share care regime, spending approximately equal periods of time with each of their parents.
Necessarily this would require the parents to live in the same location. The father’s preference would be that this location should be Adelaide. However, as a matter of last resort and necessarily under a significant degree of sufferance, he is prepared to, at least, consider moving to Hobart. It is his case that such an outcome would cripple him financially and deprive him of a reasonable opportunity to earn his living in the field in which he is qualified and which he enjoys.
Ms Macrae wishes to move with the children to Hobart where she has family and romantic connections. The children have hitherto lived in Adelaide. Mr Macrae does not want to move to Hobart. His life is based in Adelaide. Accordingly, to some extent, it is implicit in his case that the court should, in some way, restrain Ms Macrae from moving with the children.
Accordingly, this is what lawyers categorise as a relocation case. Such cases arises when one parent, very often for legitimate and understandable reasons, wishes to move far away, with the children concerned, from where the children have hitherto lived and so potentially far distant from the other of the children’s parents, if that parent does not also move.
For obvious reasons, relocation cases precipitate extreme emotional reactions in the parties affected by them. The parent proposed to be left behind resists the move proposed by the parent wishing to move because of the obvious implications the move will have on the type of relationship that parent will have with the children, in future, if the move proposed occurs and that parent remains behind.
Although the parent wishing to move may have powerful incentives to move, relating to employment opportunities and the pursuit of a new relationship, the other parent concerned very often does not have such incentives. Rather, the prospect of moving, in tandem, with the other parent concerned, is daunting because it will involve the abandonment of the security provided by existing and familiar accommodation, familial and employment arrangements. Moves are, by their nature, disruptive.
A person in such a situation is naturally inclined to think that it is deeply unfair that, in order to maintain a satisfactory level of relationship with the children concerned, he or she has to move to a location not of his or her preference and throw his or her life out of kilter. Naturally, he or she will resent the implication that he or she must live to the dictates of the other parent concerned, particularly in regards to something as fundamental as place of residence.
In such situations, the parent resisting the move may seek an order that the court restrain the other parent from relocating with the children. The argument being that maintaining an existing place of residence, with its concomitant circumstances of school and friendship groups, is the least disruptive option for the children concerned.
In so doing, the parent wishing to move may be faced with an invidious choice – pursue the new opportunities thrown up by the move and go, leaving the children to the care of the other parent; or give up the opportunities offered by the move and remain. Both such alternatives are calculated to inculcate feelings of bitterness and resentment, unless the parent concerned has unusual stores of forbearance.
In such a scenario, the parent in such a dilemma very often places his or her obligations to the child concerned, above personal preference, and elects to stay. However, in such circumstances, it is inevitable that the individual effectively restrained, at the bidding of the other parent, will perceive that he or she is not able to lead the life of his or her choosing, but must remain beholden to a person with whom he or she no longer holds a relationship, other than as separated parents.
In such circumstances, that parent (and indeed the court) may be inclined to ask of the other parent – if your devotion to the children is so great, why should not consideration be given to you making a gesture of magnanimity and making the move as well, so all in the family can adjust together in a new location and the children concerned may remain intimately linked with each of their parents.
All these elements are present in the current case, which is to be categorised as an extremely difficult and finely balanced matter, with no obvious solution presenting itself. The parties concerned are each decent and good individuals, who are fine and loving parents. X and Y are well parented and much loved children.
On both their paternal and maternal aspects there are grandparents who are deeply involved in Tasmania and Adelaide respectively. It is impossible that the interests and expectations of everyone concerned in X and Y’s lives can be fully satisfied.
Although the temptation is to consider that the dilemma thrown up by this case, is one which deserves its own specific characterisation, the Full Court has indicated that there is no special species of case known as a relocation case. As such, as with all parenting cases, the specific determinant of a case, with a relocation element, is the best interests of the child concerned.
Accordingly, in deciding the present case, the court must determine what it considers is the best possible outcome for X and Y. This process involves a close and delicate analysis of both the pros and cons of each possible permutation arising in the case from the perspective of the children’s best interests. However, that is not to say, in so doing, the court can ignore the legitimate interests of others who will inevitably be affected by the ultimate decision which must be made.
Australia is a free country, whose citizens have an entitlement to live how and where they choose. This principle of freedom of movement is relevant when consideration is given to one of the primary purposes of the Family Law Act, which is to finalise both parenting and financial issues between individuals whose marital or de facto relationships have ended.
In the current matter, the marital relationship between Mr Macrae and Ms Macrae has come to an end. For obvious reasons, they now wish to lead lives of their individual preference, largely separate from the concerns of their former partner. However, they remain linked as the parents of X and Y.
In this case, the court is presented with three main permutations, so far as the outcome of the case is concerned, each with its obvious positives and negatives, not only for the parents concerned but also X and Y. The options (and their various deficits) can be summarised as follows:
·The children remain living in Adelaide and a regime is put in place which sees X and Y continuing to spend substantial and significant time with each of their parents;
o As the mother has said she cannot contemplate leaving Adelaide without the children, such an outcome is achievable only by Ms Macrae giving up her aspiration to live in Hobart. This is likely to lead to her feeling some level of resentment against Mr Macrae and may have implications for her psychological wellbeing and capacity to parent the children to her maximum capacity;
o In addition, the father is not actively seeking that he should be the children’s primary provider of care, as he recognises the strong relationship X and Y have with their mother as a consequence of their care arrangements both before and after separation;
o The major benefit of such an outcome being that there would be no major disruptions for the children in terms of their school and extracurricular activities and both parents would remain an active and daily presence in their lives.
·The children move to live in Hobart, with Ms Macrae and a regime is put in place which sees the children spending time with their father during school holidays and possibly on specified occasions during school terms;
o If Mr Macrae remains living in Adelaide, he will not be able to be as significantly involved in caring for the children, on a day to day basis, as he has up to this stage. As such, there may be a risk that X and Y’s relationship with him will lose its sense of immediate intimacy and warmth;
o Arrangements for Mr Macrae to interact regularly with the children are likely to be expensive and logistically challenging to implement;
o The children will not be able to interact as freely with their paternal grandparents as they have hitherto;
o On the other hand, the children will be more exposed to their extended Tasmanian family;
o Ms Macrae will be happier as she will be able to pursue her career and relationship aspirations in the location of her preference. On her case, she will have greater financial security and is more likely to be in a position to purchase her own home.
·The parties move to Tasmania in tandem or Mr Macrae moves there within a defined period of time;
o The shared care regime, to which Mr Macrae aspires, can be implemented, leading to the children having an equally meaningful level of relationship with each of their parent;
o However, Mr Macrae is likely to feel bitter that he is compelled to abandon his aspirations, particularly in respect of his career and his home, so that his former wife can live in the location of her preference;
o Such an outcome is not likely to be calculated to provide a firm base on which to construct a constructive and cooperative parenting regime.
Before turning to the legal principles applicable to the case, in more detail, it is now necessary to outline the various factors which have brought the family to the current impasse.
Background
The mother was born in Tasmania on (omitted) 1980. She went to school in the State and has many connections there, particularly her parents who own a house in (omitted) and are in the process of retiring there. Her elderly grandparents and many relatives live in the (omitted) area.
The father was born in Adelaide on (omitted) 1973. He holds tertiary qualifications in (qualifications omitted). He is a (occupation omitted), working in the (omitted) industry. Currently, he lives next door to his parents, in (omitted), a suburb of Adelaide.
The parties met in Brisbane in 2002 and began to live together shortly afterwards. Both were working in Brisbane at the time – the mother as an (occupation omitted) for (employer omitted); the father as a (occupation omitted) at a (employer omitted). They married in Brisbane on (omitted) 2004.
Until October of 2011, the family lived in Brisbane. The mother’s parents also lived in Queensland, firstly at (omitted) and then (omitted). In mid-2011, following a holiday in Adelaide, the parties began investigating the possibility of moving to live in South Australia. From the father’s perspective, Adelaide was home. The mother indicated that she liked Adelaide and considered it more homely than Brisbane.
The father’s parents offered a powerful incentive for the move. They offered to sub-divide their large home in (omitted), so that the parties could build a house on it. They offered the land as a gift. In October 2011, the family moved to Adelaide. They lived in rented accommodation. Ms Macrae was able to transfer her employment, with (employer omitted), from Brisbane to Adelaide. Mr Macrae got a redundancy in Brisbane and secured work in his chosen field in Adelaide.
The parties separated in June of 2014. The father moved in with his parents. The mother rented accommodation. Shortly afterwards, Mr Macrae commencing building a house on the (omitted) land. He did much of the work himself but had to borrow a significant sum to fund the construction costs. He moved in to the house constructed in (omitted) 2016.
Following their separation, the parties were able to agree on arrangements for the settlement of their property and care for X and Y. Mr Macrae retained the (omitted) land and paid Ms Macrae the sum of $90,000.00. The children initially lived week about with each of their parents. The separation, although emotionally difficult was well handled and the parties remained reasonably friendly with one another.
Ms Macrae has been living in rented accommodation in (omitted), which is close to (omitted). It is her position that she cannot afford to purchase a property in Adelaide and is, in any event, deeply unhappy in the prospect of living indefinitely in Adelaide, where she feels isolated from her family and with few, if any, really close friends.
In early 2015 or thereabouts, the father commenced a romantic relationship with Ms H. This added a layer of complexity to the parties’ post separation relationship. From the mother’s perspective, the children were not coping well with the shared care regime, particularly the extent of time they spent away from her. It is one of the essential underpinnings of her case that she has historically been the children’s main provider of care of major source of emotional support.
In these circumstances, the parties elected to engage an experienced child psychologist, Ms A for professional advice on an appropriate regime for the care of the children. After consultation, with Ms A, it was agreed that, in the first week of each fortnight, X and Y would spend from after school on Thursday until the commencement of school the following Friday, with their father; and in the other week, from after school on Friday until mid-afternoon on the following Sunday.
It was Mr Macrae’s understanding that this would be a temporary regime until things settled down and the shared care regime could resume. It is his evidence that the children missed him just as much as their mother and pleaded with him for more time. In March of 2015, the parties agreed that the father’s time, in the second fortnight, would be extended to the commencement of school the following Monday or if that Monday was a public holiday, until 5.00 pm on that day.
This regime of five days per fortnight, during school terms, has continued until the present time. The parties have been able to reach agreement in respect of special occasions and school holidays. The children have regularly visited Tasmania and spent roughly half of each holiday period with their parents.
Mr Macrae ended his relationship with Ms H in early 2016. It is his position that this relationship added stress to his parenting relationship with the mother, who found it difficult to adjust to the fact that he had formed an emotional attachment to another person. In these circumstances, he considered it better for the children if he ended it. It is his case that this is one of many examples of him putting the needs of the children before his own.
The mother has been working for (employer omitted) for many years. She is a well-regarded employee. (employer omitted) prides itself on being a family focussed enterprise, which offers its employees flexible working conditions. In addition, much of the mother’s work can be done online and so it does not matter physically where she is located.
It is Ms Macrae’s evidence that she could easily transfer her employment to Tasmania, particularly as (employer omitted) has entered into a joint venture with another (omitted) company, (omitted), which has offices in Tasmania. Ms Macrae believes that she would be able to get ahead financially in Tasmania if she transfers her employment there. In particular, she believes that she will be able to purchase some form of accommodation for herself and the children there.
More importantly, she believes that she herself will be much happier in Tasmania. It is her case that she is currently at the end of her tether emotionally whilst living in Adelaide and her unhappiness has implications for her capacity to parent X and Y appropriately. She has consulted, a psychologist, Ms T in regards to her emotional health.
Ms Macrae was a student at (omitted) School. In 1995, she was in Year 11 at the school. In this year, she met Mr T, who was boarding at the school in the year above her. They formed an intense teenage relationship which ended when Ms Macrae took an exchange scholarship to (country omitted) in 1998.
Since 1998, Mr T has acquired qualifications as an (occupation omitted). He has always lived in Tasmania. Currently, he works for (employer omitted), as the (occupation omitted) on the (employer omitted) and the (employer omitted). He has a home, in (omitted) a suburb of Hobart.
Mr T also has significant family connections in Tasmania. His parents live in the State, as does his brother. More significantly, he has three children A aged 12 and twins B and C aged 10, who also live in Tasmania. As a consequence, Mr T cannot easily move interstate. In addition, it is his evidence that his qualifications and work experience are not easily transferable from Tasmania.
In 2011, Ms Macrae and Mr T reconnected via facebook, initially as old friends catching up with one another. Later they arranged to meet. After Ms Macrae had separated from Mr Macrae, she and Mr T embarked on a more serious and committed romantic relationship.
Mr T has been, until recently, regularly visiting Adelaide where he has been undertaking an (course omitted) through the (school omitted). During his visits to Adelaide, the relationship between Mr T and Ms Macrae has burgeoned. In addition, Ms Macrae and Mr T have taken holidays together which have included X and Y.
Whilst Mr T was completing his (course omitted), he visited Adelaide approximately once per fortnight. With the completion of his degree, the travel is no longer necessary. It is Ms Macrae’s position that a long distance relationship, with Mr T cannot work. Both she and Mr T aspire to a more permanent and solidified relationship. As Mr T cannot move to Adelaide, this can only be in Hobart.
Mr Macrae has been employed in the (omitted) industry since he completed his university qualifications. It is his evidence that the industry in Australia is small and confined to a number of specific locations which include Adelaide. It is his position that his type of job which deals with interacting with the (businesses omitted), which put it together and the logistics arising from that cannot be done remotely.
Recently, in April of 2017, Mr Macrae accepted the position of (occupation omitted) at (employer omitted), which is a small company involved in (business omitted). The company also (business omitted). It has (employment omitted) premises in (omitted) suburban Adelaide.
Mr Macrae knows the two proprietors of (employer omitted) well through their shared involvement through the (occupation omitted) industry, both at university and later in the workplace. Mr Macrae’s contract with the firm is for a period of two years but he anticipates that there is a strong possibility that he will be able to negotiate a partnership with the firm’s existing owners and become a third proprietor. His starting salary is $85,000.00 per annum.
From Mr Macrae’s perspective, the opportunity to join (employer omitted) is a golden opportunity. It is his evidence that there are no comparable opportunities for him in Hobart where there is no similar (omitted) industry.
As such, if he moved to Tasmania, he would have to seek employment in some completely different area of endeavour from what he has done in his professional life to date. For obvious reasons, such a prospect fills him with dismay.
Although Mr Macrae has moved into the (omitted) premises, much remains to be done to complete its construction. Given his close involvement in the project, Mr Macrae feels an acute sense of ownership of his home and does not wish to leave it. It is also his position that X and Y similarly enjoy living there.
In all these circumstances, Mr Macrae has no wish to pull up stumps and move his life from Adelaide to Hobart. He feels that such an outcome would be deeply unfair to him and not congruent with X and Y’s best interests.
One of the attractions for him of the (omitted) property, is its close proximity to his parents’ home. They are reasonably elderly but enjoy good health. It is Mr Macrae’s view that the children benefit from being able to interact regularly and easily with their paternal grandparents.
X is a child with some special needs. He has been diagnosed with dyslexia and has learning disabilities and issues with his concentration, particularly in the classroom setting. More recently, it has been conjectured that he may have an auditory processing disorder.
Since X began primary school, his parents have searched for an appropriate school for X to attend which cater for his special needs. Currently, he is attending (omitted) Primary School, after previously attending two others. In addition, he attends sessions at (omitted) SA, which is an acronym for Specific Learning Difficulties Association.
It is Mr Macrae’s perspective that X has made great progress at (omitted), with the assistance of (omitted). As such, he is apprehensive about the prospect of the child commencing a new school in Tasmania, where he may not be able to access the assistance currently available to him in South Australia.
As this brief summary indicates, each party can muster powerful arguments both in favour and against any possible move of X and Y from Adelaide to Hobart. Ms Macrae’s position can be summarised in the following terms:
·She is deeply unhappy living in Adelaide.
·She misses her mum. She finds herself crying frequently. Although she tries to protect the children from her distress, she fears they may be affected by it in the longer term.
·She feels financially trapped in Adelaide. She does not get on well with Mr Macrae and perceives that he is controlling of her future.
·She wants to get on with the rest of her life, in a place of her own choosing rather than a location, which was acceptable to her when she and Mr Macrae were married but is no longer given her circumstances have changed so dramatically.
·In Adelaide, she will be doomed to rent accommodation for the indefinite future. In Hobart, she will have financial assistance from her parents and this is likely to make it easier for her to purchase accommodation for herself within a reasonable timeframe.
·She is from Tasmania. It is her home. It is a wonderful place to live and for children to grow up in. In Tasmania, X and Y will have access to a wide extended family, particularly their maternal grandparents who have been very closely involved in parenting the children up to this stage, and with whom X and Y have an especially close relationship.
·In Tasmania, she will be able to pursue her relationship with Mr T. He has the potential to provide her with a comfortable home and financial security. Mr T is the real thing. She does not want to lose him.
·However, if she remains in Adelaide, Mr T cannot move and inevitably the relationship between the two will wither and die. This will be a blight on her future happiness.
·She will be able to transfer her employment without any significant disruption from Adelaide to Tasmania – either working from home or from the premises of (business omitted).
To her credit, Ms Macrae acknowledges that the children share a close and loving relationship with their father, which will be somewhat disrupted by her proposed move. However, it is her position that she, in conjunction with Mr T, will be able to facilitate the children spending regular time with their father during school holidays as well as regularly during the school term. It is her position that she and Mr T are likely to be well resourced financially and so able to bear the cost of frequent air travel between Adelaide and Hobart.
In this context, it is Ms Macrae’s evidence that both children are adept and experienced air travellers. As such, she believes that they will be able to easily accommodate travelling between their parents respective homes. In addition, she points to the fact that Mr T has a wealth of frequent flyer points which can be utilised for the children’s travel.
On the other hand, Mr Macrae’s position can be summarised in the following terms:
·He and the children share a close relationship with one another, which is based in Adelaide. Ms Macrae was happy to come to Adelaide in 2011 and has demonstrated an ability to function in the city in the period since.
·The benefits of the children living in Tasmania are largely hypothetical. On the other hand, the benefits of them continuing to live in Adelaide are a known quantity. In particular, X will continue to be able to attend (omitted) Primary School and have the benefits of (omitted).
·The children will be able to continue with their existing circle of friends and maintain their close relationship with their paternal grandparents.
·There is little impediment to the maternal grandparents being able to visit Ms Macrae in Adelaide, which they have done over the past few years. As such, Ms Macrae will be able to access familial support.
·Mr Macrae acknowledges that Adelaide is not Ms Macrae’s preferred choice of home. However, it is his position that she has demonstrated an ability to function away from her parents and Tasmania over very many years.
·She has been an exchange student in (country omitted) and lived in both Queensland and South Australia. In support of this contention, he points to the fact that currently Ms Macrae is not actively seeking psychological treatment from Ms T.
·Ms Macrae can pursue her chosen career in either Adelaide or Hobart. He is not in such a happy position. If he moves to Hobart, he will have to seek employment, possibly of an unskilled nature, outside of his area of expertise and preference in the (employment omitted) industry.
·He does not believe that Ms Macrae’s proposals for the children to regularly visit Adelaide in the event of relocation are feasible. In addition, he does not believe that he personally would be able to afford to visit Hobart regularly, particularly during school terms, and fund accommodation for himself and the children near to their proposed home in the Hobart area.
·He has no wish to sell his home at (omitted), which was partially gifted to him by his parents and in which he has devoted much personal effort and invested a significant sum of money. It is his position that the home represents suitable accommodation for both him and the children and he has no wish to abandon it.
Although it is Mr Macrae’s strong personal preference to remain living in Adelaide, his relationship with X and Y is of paramount importance to him. If it be the court’s decision that it is more likely than not to be in the children’s best interests to live with their mother in Tasmania, he would reluctantly follow them there and do his best to reshape his life and career in the new environment of Tasmania.
However, it is Mr Macrae’s position that the move is clearly not in the best interests of either X or Y. Rather, it is his assertion that the best outcome for the children is if they can have a relationship with each of their parents based on an equal time regime. It is his case that the most logical location for such an equal time regime is Adelaide. Necessarily, such an outcome would involve the potential restraints of Ms Macrae living the life of her preference in Hobart.
It is Ms Macrae’s position that the children will be able to have an optimal level of relationship with their father if they move with her to Tasmania and Mr Macrae elects to remain behind in Adelaide. This relationship could be facilitated through extended school holiday time, augmented by some form of visitation during school terms.
However, Ms Macrae is not naïve. She appreciates that there is a possibility that the court may not accede to her preferred position. In these circumstances, it is her position that she would not countenance moving to Tasmania without X and Y. In these circumstances, she would reluctantly commit herself to remaining living in Adelaide on the basis that she was the children’s primary provider of care.
However, from her perspective, such an outcome would be inherently unfair to her and would result in Mr Macrae being placed in the position of being able to direct her as to where she is to lead her life, notwithstanding that the marriage between the parties has ended.
In effect, Mr Macrae would be her metaphorical gaoler, compelling her to live somewhere unpalatable to her, away from the person she loves. It is her submission that such an outcome is hardly likely to be well calculated to ensuring the children receive the optimal level of parenting from each of their parents.
As this introduction shows, this is a complex case in legal terms which does not present any obvious preferable outcome. Although the individual preferences of the parents concerned are an important consideration in any case, with a relocation aspect, the main focus is on the best interests of the children concerned [see Family Law Act section 60CA].
As a consequence, in such cases, it is usual for an independent expert to be commissioned to provide evidence to the court about the needs of any children concerned and, if appropriate, for the children’s views about possible outcomes to be canvassed.
Such a report was prepared in the current matter. The report was prepared by Ms M, an experienced psychologist. She interviewed the parties, as well as X and Y, in October of 2016. She also observed the children interacting with each of their parents.
Ms M was not in favour of the children moving to Hobart and so potentially living far away from their father. She opined as follows:
“… X and Y presented as well cared for and well loved children, who overall are travelling reasonably well (even taking into account X’s learning issues) and they also both described themselves as quite happy. That is, it is not clear how, even if Ms Macrae feels personally happier as a result of the relocation, this will translate to a significant advantage to the children. Not only is she clearly doing a good job with them despite what she experiences as difficulties being here, but the cost to them of disrupting their relationship with their father, would be in my view, as suggested above, considerable and possibly disadvantageous for them.”[1]
[1] See affidavit of Ms S filed 31 January 2017 – Annexure B at page 12
There can be no doubt that Ms M’s assessment of X and Y, as well cared for and well-loved children, is a correct one. Both parties are good parents who love X and Y and want them each to have the best possible lives as they grow through childhood to maturity and beyond. This is not a case to do with abuse or neglect or family violence, as are many cases, which frequently come before the court.
In these circumstances, it is doubtful that, other than for this complex family law problem either Mr Macrae or Ms Macrae would ever have found themselves, as litigants, in proceedings before a court. They are each honest and law abiding individuals, who have hitherto led happy and ordered lives centred on caring for their children.
There can be no outcome in this case which will be satisfactory to all the parties involved and to all those who will be affected by the outcome, including X and Y. The various options potentially available to the court, in the outcome of this case cannot be manipulated, like the surface of a Rubik’s Cube, to reach a perfect result.
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 children 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 children to maintain a meaningful relationship with both their parents, regardless of the state of the relationship between the parents concerned.
In theoretical terms, these issues are to be resolved, ultimately, by what, on balance, is likely to be best for X and Y. However the reality is that these issues are largely insolubly and there is no better outcome for the children, whose future prospect are hedged with uncertainty. The only good thing is that they are much loved children and are likely to be well parented and safe whatever is the court’s ultimate decision.
The issues arising are also highly subjective from the perspective of each of the individuals affected by them. The father believes the mother is upsetting the apple cart to pursue her own selfish desires. The mother believes the father is selfishly ignoring her personal suffering in Adelaide by his intransigence in the case. Both parties view the other as stubborn and absorbed by concerns about self, rather than X and Y.
These proceedings are intended to resolve this dispute between the parties. However, no matter how the case is ultimately resolved, one party will inevitably feel harshly treated by the court’s decision. This, of itself, has the potential to drive further conflict between them, which will have ramifications for the emotional well-being of the children into the future.
If I do what Ms Macrae wishes, Mr Macrae will feel that he is compelled unfairly, to make all the necessary sacrifices so that the children may maintain the best possible relationship with both their parents. If financial circumstances are such that it is logistically and financially impractical for him to move to Hobart, he will feel that the court has unfairly confined him to the artificial and limited role of being a holiday dad, in circumstances where no equivalent sacrifice has been sought of Ms Macrae. Inevitably he will feel bitter and both unheard and disregarded.
On the other hand, if I do what Mr Macrae proposes, Ms Macrae will feel her modest aspirations to pursue her aspirations and be with the man she loves can be achieved only if she renounces her role as the main provider of care for X and Y. A role which she has hitherto discharged capably and unselfishly.
She will feel that her desire to move on with the next phase of her life and escape a place which currently has unhappy associations for her has no validity when compared to the aspirations of Mr Macrae. Again, with such an outcome, it is inevitable she will feel bitter and both unheard and disregarded.
In these circumstances, whatever is the outcome, it can hardly enhance the viability of the parenting relationship between these two clearly competent and capable parents. This, in turn, is not calculated to be of assistance to X and Y.
I say this, at the outset, because I think it right to acknowledge the distress the resolution of the case will bring, regardless of what is its ultimate outcome. I hope that each of the parents will try to cope with the resulting situation so that any difficulties for X and Y may be minimised and they will be able to maintain their hitherto excellent relationship with each of their parents in whatever new circumstances prevail.
The evidence
The parties themselves, Mr T, Ms T and Ms M were the only witnesses who gave evidence in the proceedings. There are few, if any, issues of significant evidentiary moment arising in the case. What differences there are turn on issues of perception and emphasis rather than on findings of credit. In my estimation, both Mr Macrae and Ms Macrae and indeed Mr T are honest and truthful individuals whose evidence is to be accepted.
Ordinarily, a court such as this one, should refrain from making adverse comments about a parent in the proceedings before it, unless it is specifically necessary to do so. It does not help children if the relationships between those who are influential to their care are inflamed by hurtful findings of fact, as a result of the court process itself.
I am well aware that it is difficult for me to form an accurate appraisal of the respective motivations of each of the parties in this case through the imperfect tool of assessing evidence provided in the artificial (and to many, intimidating) confines of the witness box and through the reading of formal and often professionally prepared affidavits. However these are the only tools I have.
Although sharing the same traits of honesty and transparency, the parties presented markedly differently in the witness box. Mr Macrae was calm, measured and somewhat phlegmatic and stoic by nature. That is not to say that he is not an emotional person. My impression is of a sensitive and kindly father who broke down when he was asked to contemplate life without being able to see X and Y with the same degree of regularity as he does currently. As with many individuals of his age and sex, he attempted to conceal his tears but his heartache was obvious to all. In these circumstances, I accept that X and Y are everything to Mr Macrae, as he put it.
Mr Macrae did not appear to me to be a vindictive person. Rather, he seemed to me to be a problem-solver and conciliator by disposition. If it was reasonably open to him to compromise these proceedings, I am satisfied that he would do so. His is not a selfish or narcissistic personality. In these circumstances, I am satisfied that his opposition to the move is rationally based, particularly that it would be a financial and career disaster for him to move from Adelaide to Hobart at the present time and for the foreseeable future.
In contrast, Ms Macrae did not present calmly in the witness box or during the proceedings generally. She sobbed, seemingly inconsolably, throughout the majority of the case. Hers is a labile and reactive personality. Some of her evidence was marked by a degree of hysterical hyperbole. In these circumstances, on balance, it seems more likely that Mr Macrae has a more objective view of what is going on in the parties’ parenting relationship and how the children are currently coping and will cope in future.
It is also apparent to me that Mr Macrae has far more coping skills and is a more adaptive person than is Ms Macrae. Mr Macrae is likely to approach a setback with a stiff upper lip and work out ways to deal with it in a calm and methodical manner. Ms Macrae may react in a more emotional manner. In short, the father seemed to me to have far more internal emotional resilience than the mother. Ms Macrae is likely to view the circumstances surrounding her through the prism of self.
I also acknowledge that each of the parties must inevitably be under an enormous amount of stress as a consequence of these proceedings, given their moment for each of them. They are likely to demonstrate this stress in different ways. In such circumstances, it is only to be expected that the mother, given her personality, would be predisposed to demonstrate her distress in such a dramatic manner; whilst the father attempted to contain his. These differences in presentation are not particularly helpful in making findings as to credit, although they may assist in assessing how each may respond to future adversity.
Although the parties have different personalities, they also have much in common. They have similar values in respect of the upbringing of X and Y. They both aspire to have happy, well-parented and well-adjusted children who will achieve their full potential as adults. However, in the circumstances of this case, their different dispositions, in my view, do have some relevance as to what is likely to be the best outcome for the children concerned.
Necessarily and inevitably, one party is going to be deeply disappointed with the outcome of the case. In these circumstances, the court must give some consideration as to who of the parties has the greater stores of magnanimity and internal fortitude to deal with adversity and so the capacity to soldier on, with a brave face, in the best interests of the children concerned.
Mr Macrae is decent and dependable. He is also resourceful and self-contained. He is a doer. Ms Macrae presents as much more brittle and strident. She, ostensibly at least, appears far less self-reliant. In strictly moralistic terms, it may seem deeply unfair that considerations such as these are regarded as being relevant to the relocation issue. However, the children are not to be awarded as a prize to the more deserving parent. The central question for the court is what is best for X and Y.
Adopting this perspective, three central evidentiary questions seem to arise:
·What are the benefits of the status quo? Who will adapt to its maintenance more easily? This seems to be the perspective of Ms M, who asks why change an arrangement, which seems to be working for X and Y. The father agrees. From the mother’s perspective, she asserts that she is at the end of her tether with the arrangement, which no longer suits her emotional needs.
·If there is to be a change, Ms Macrae asserts that the father has the capacity to adapt to the change, either by moving to Hobart himself or by spending regular time with the children in school holidays and on specified occasions during the school year. This may not be perfect, for either the father or the children, but it is workable and has the benefit of shoring up her capacity to parent the children, which must be a significant factor given her prior role as their major provider of care.
·Ms Macrae asserts that it is both unfair and not child focussed to expect her to soldier on with the current regime. In these circumstances, she submits that the court needs to consider Mr Macrae’s capacity to adapt and make alternative arrangements, which may be unpalatable for him, work for the sake of the children. Implicit in her case is her assertion that Mr Macrae has this capacity in greater stores than she has.
After making these general evidentiary comments, I will now turn to the evidence of each of the witnesses concerned in greater detail. However, it is also necessary for me to point out the individuals who were not called to give evidence. Most significantly these persons include each set of grandparents. I accept, in general terms, that no adverse conclusions can be drawn from their collective absence. I also accept that, on both their paternal and maternal aspects, the children enjoy a close and loving relationship with their grandparents.
a)The mother’s evidence
The mother was born on (omitted) 1980 in (omitted), a country town located a relatively short distance from Hobart. In 1990, she moved to (country omitted), with her family so that her father could pursue an employment opportunity there. He is an (occupation omitted), who works in the area of (employment omitted), particularly in remote areas.
In 1993, the mother returned to Hobart where she attended boarding school. In 1994, she and her family moved to (omitted), where she boarded once again, whilst her parents pursued careers in remote areas of northern Queensland and (country omitted). She spent two years, as a student at her boarding school in (omitted).
In 1996, the mother and her mother returned to live in Hobart, whilst her father continued to work in (country omitted). In the late 1990s, the mother was an exchange student, in (country omitted) for approximately one year. She completed her final year of school in 1999 and commenced her employment with (employer omitted) the following year. She has remained in the firm’s employment ever since.
Ms Macrae’s father obtained employment on (omitted). As a consequence, Ms Macrae’s parents returned to live in Queensland. The mother herself moved to Brisbane, so she could be nearer to her parents. As previously indicated, it was in Brisbane that she met Mr Macrae. After X’s birth, Ms Macrae’s parents moved to (omitted) to be closer to the family.
Accordingly, it is clear that Ms Macrae has had something of a peripatetic childhood and early adulthood, which has involved her adapting to two boarding schools; living as an exchange student overseas; and moving with her parents. It also is clear that she is a well-regarded and longstanding employee of (employer omitted). I also accept that Ms Macrae has a close and mutually supportive relationship with her parents.
The parties met in Brisbane in mid-2002. The family lived in Brisbane between that date and 2011, when Mr Macrae lost his employment in Brisbane. This was the catalyst for the family’s move from Brisbane to Adelaide. Given their high regard for Ms Macrae, (employer omitted) were prepared to create a position for her in its Adelaide office. Ms Macrae is a (occupation omitted) at the firm.
Prior to the family’s departure from Brisbane, it is Ms Macrae’s case that both her parents were closely involved in X and Y’s care, particularly at times of family crisis, one of which occurred when X was seriously ill. When X was five and a half years of age, he flew unaccompanied to Brisbane to spend Christmas with Ms Macrae’s parents. I accept that both children have a close relationship with their maternal grandparents but, in my assessment, the children’s most significant relationships are with their parents and with one another.
It is Ms Macrae’s evidence that she and the children are particularly close to her parents. She also asserts that she only agreed to move to Adelaide reluctantly and with some apprehension at the prospect of being separated from her parents. I consider that this is likely to be something of an overstatement of her feelings at the time.
In my assessment, Ms Macrae has demonstrated a reasonable level of capacity to live independently of her parents and cope with a variety of life circumstances independently of them. Essentially, up to this stage of her life, Ms Macrae has demonstrated an ability to adapt to changing circumstances as an individual in both a professional and personal setting. Ms Macrae is be regarded as a shy and sensitive person, but she is also one who is attractive, articulate and successful in the various activities which she has undertaken in her life to date.
During the period the family lived in Adelaide, Ms Macrae worked on a part-time basis for approximately twenty-five hours per week. Following separation, as a consequence of financial pressures, she returned to the full-time work force. She is currently earning somewhere in the vicinity of $95,000.00 per annum. As a mark of her value to (employer omitted), the firm has offered Ms Macrae flexible working hours and is more than happy for her to work remotely or from Tasmania, if that is her preference. It is a significant fact that Ms Macrae has remained employed by the same firm for around seventeen years.
Following the birth of each child, Ms Macrae took extended maternity leave to care for them. It is also her position that, apart from some periods of unemployment, Mr Macrae was very heavily involved in his career and, as a consequence, she was more involved in the day to day parenting of the children. In this context, she deposes as follows:
“I was and remain generally responsible for organising the children’s care arrangements from week to week, and their private health insurance, immunizations, doctors’ appointments, dental appointments and the like. On occasions when the children were sick and one of us was required to have leave from work to care for them, I was usually the parent who did so.”[2]
[2] See affidavit of Ms Macrae filed 18 January 2017 at paragraph 49
As previously indicated, on the parties’ separation, they agreed to adopt a week about care arrangement for the children. It is Ms Macrae’s position that the children did not cope well with this arrangement, becoming teary and distressed, on any extended period of time.
Against this background, the parties sought professional advice and subsequently agreed to shorten the time the children spend with their father. In my assessment, this is to Mr Macrae’s credit, as it demonstrates a capacity to focus on the needs of the children concerned, rather than on his own emotional concerns.
It is my impression that the focus of why Ms Macrae wishes to move from Adelaide to Hobart has changed during the course of these proceedings. Initially, the emphasis was on the closeness of her relationship and that of the children with her parents. In her trial affidavit, Ms Macrae deposes as follows:
“The emotional support provided by my parents to me plays a pivotal role in my ability to be happy. Since first moving out of home I have always remained in close contact with my parents. I would telephone, email or text message my mother on almost a daily basis and communicate with my father on a usual weekly basis depending on his work schedule. My father is a “fly in fly out” (occupation omitted) on a rotating two weekly basis.”[3]
[3] See affidavit of Ms Macrae filed 18 January 2017 at paragraph 62
It is difficult to gauge the accuracy of this statement in the absence of evidence from the mother’s parents. I accept that Ms Macrae is close to her parents and does frequently communicate with them, particularly by telephone. However, the fact remains that she has lived independently from them for many years and has been able to cope in doing so, particularly in regards to pursuing her career and raising her family successfully.
The mother’s parents have recently purchased a house in (omitted), which they plan to utilise in retirement. The mother’s father continues to work in remote Queensland, on a fly-in/fly-out basis. His wife can also easily transition to retirement if she has not already done so.
In her affidavit evidence, the mother catalogues a long list of relatives, including her grandparents who live in the (omitted) area and with whom she asserts she has a particularly close relationship. There are over thirty such named individuals, one of whom is identified as being like a second mother to Ms Macrae. Accordingly, I accept that Ms Macrae does have many relatives in Tasmania and has an obvious and strong preference to live in that state where she has previously been happy and with which she strongly identifies.
However, in my assessment, there is a level of hyperbole about her protestations in this regard. In this context, I am concerned that Tasmania and Hobart in particular have assumed Elysium proportions in Ms Macrae’s view. Essentially, she can see no negative aspects of her and the children’s move to Hobart. In this regard, I am concerned that her evidence is lacking in balance.
X has been diagnosed as suffering from dyslexia. As a consequence, she has consulted a variety of specialists, which include a physical therapist; audio processing specialist; a psychologist; and a tutor. As well as (omitted). Ms Macrae has deposed that it will be relatively easy for X to access similar services in Tasmania. She has made inquiries in this regard in Hobart.
In particular, she asserts that there is program operated by an organisation known as (omitted), which is similar to (omitted). She has also proposed that the children attend school at (omitted), an (omitted) suburb of Hobart. This would be convenient to Ms Macrae’s proposed place of employment in Hobart and is also a school attended by some of the children’s cousins.
In the presentation of her case to the court, Ms Macrae placed significant emphasis on her burgeoning relationship with Mr T. The two rekindled their teenage relationship in the period after the parties separated. This has coincided with Mr T’s regular visits to Adelaide to complete his (course omitted).
The two have spent regular holidays together, both in Tasmania and overseas. Ms Macrae has accompanied Mr T to (omitted), where he regularly works. Mr T shares some familial attributes with Ms Macrae. Like her, he has a large extended family based in Tasmania. Like her, he enjoys the activities of the Tasmania outdoors, which he has shared with X and Y. As is to be expected, Ms Macrae is entirely positive about her relationship with Mr T and his relationship with the two children concerned, which both describes as being close and loving.
Ms Macrae concedes that her relationship with Mr T is in its infancy and because of the complexities of her situation she and Mr T have not had in depth discussions about its future. Candidly, Ms Macrae concedes that a long distance relationship between her and Mr T, will not work.
Ms Macrae describes herself as an emotional person. She also accepts that she cries easily and frequently. This accords with my own impression of her in court. It is Ms Macrae’s perspective that currently the major trigger for her to cry is her distress at having to remain living in Adelaide. Ms Macrae emotionally deposed that she misses her mum and this causes her to become distressed.
When Ms Macrae does become distressed, which appears to be relatively frequently, she indicates to X and Y that she is suffering from hay fever. In my view, in the longer term, it seems improbable that Ms Macrae will be able to maintain this subterfuge successfully, so far as X and Y are concerned. Without wishing to be pejorative, Ms Macrae does wear her heart on her sleeve. If she does lose her relationship with Mr T, I judge it improbable that she would be able to shield the children from her distress at such an outcome.
Ms Macrae has been able to receive regularly emotional sustenance from both her parents, particularly her mother. In the past year, she has been able to visit Adelaide regularly. In addition, as previously indicated, the two remain in touch regularly via telephone. Accordingly, it is something of an exaggeration to say that Ms Macrae is totally emotionally isolated in Adelaide, at present.
In addition, although Ms Macrae may perceive that her closest emotional friends are in Tasmania, in my assessment, she does have the capacity to make friends, although her personality is more introverted than otherwise. In this context, Ms Macrae describes her current boss, in Adelaide, as being very supportive. In addition, I find that Ms Macrae has at least one friend whom she sees at school drop off and pick up and attends a (hobby omitted) class with. Ms Macrae describes her current situation as being one of coping as best she can.
The impression Ms Macrae was at pains to present to the court was of a person who was just holding things together psychologically, whilst she awaited the outcome of these proceedings. She described herself as struggling emotionally and becoming increasingly frazzled and on edge. In this context, she described her relationship with Mr Macrae as being not very friendly.
In this context, I consider it more likely than not that, if the case does not go in the manner of Ms Macrae’s preference, she is likely to be very bitterly disposed towards Mr Macrae. Although in her evidence she indicated that she would do her best to shield the children from her feelings, I consider that it more likely than not that she would struggle to do so. Certainly, I do not assess her to be endowed with unusual stores of magnanimity, which would cause her to forgive and forget what she will inevitably view as a significant setback in her life which has been engineered by her former husband.
Ms Macrae concedes that on one recent past occasion, Mr Macrae changed a flat tyre for her which she categorised as a kind gesture. However, it is her perspective that whenever the parties discuss future arrangements for the children, it inevitably dissolves into argument. She asserts that she no longer trusts Mr Macrae.
One of the major motivating factors for Ms Macrae’s wish to relocate is a financial one. Currently, she is paying approximately $20,000.00 per annum in rent. She deposes that her parents will assist her on her relocation to Tasmania by providing accommodation. In the longer term, she believes that she is likely to be able to move into Mr T’s home. However, in this regard, she deposes that she and Mr T intend to take it slowly whilst they see how things turn up.
Given the nature of her relationship with Mr Macrae at present, Ms Macrae believes that any shared care arrangement for the children would be a disaster. She deposed that Mr Macrae’s history of full-time work has never been family friendly. She believes that Y, in particular, wants to spend more time with her than presently occurs. However, Ms Macrae is open to an equal time arrangement in school holidays on the basis that holiday time is significantly different to term time. In term time, it is her position that the children need a firm and secure home base, which she is better placed to provide.
It is Ms Macrae’s evidence that X strongly identifies as a Tasmanian and has a particularly close relationship with his maternal grandparents. In addition, Ms Macrae asserts that she assists X with his homework, which is important given his educational special needs. I have no difficulty in reaching the conclusion that both children share a close and loving relationship with their mother and indeed with one another.
By virtue of her long term employment relationship with (employer omitted), Ms Macrae believes that she will be easily able to transfer her employment to Tasmania. She deposes that (employer omitted) is a family friendly employer. In addition, a significant amount, if not all, of her work could be done remotely. As such, Ms Macrae could work either from her home; from the offices of (employer omitted) in Hobart; or even in Launceston. As such, it is her case that she is guaranteed of financially secure and personally amenable working conditions if she is able to move to Tasmania.
Ms Macrae describes X and Y as experienced air travellers. X, in particular, at an early age, has travelled alone and unaccompanied. In addition, it appears to be common ground that the two children have travelled frequently between Adelaide and Hobart, whilst in the company of a parent. This trip requires a change of aircraft in Melbourne.
The travel time between Adelaide and Hobart is approximately 3.5 hours. There are daily flights. Ms Macrae asserts that the standard cost of the travel is $440.00 return per child. For obvious reasons, Ms Macrae is not in a position to prognosticate about the likely costs of air travel in this country over the next five years or so.
It is part of Ms Macrae’s case that either her mother or Mr T would assist in obtaining the necessary airline tickets for the children’s travel between Hobart, Adelaide and return. Both have access to healthy frequent flyer point accounts. In particular, Mr T has a balance of over one million points. I accept that the children are accomplished flyers.
In my assessment, Ms Macrae is likely to downplay the practical difficulties and expense of the children’s travel between Tasmania and South Australia, particularly if the court accedes to the level of regularity of travel which she proposes. In addition, she is more likely to have under-estimated rather than over-estimated the financial burden of the parties of this travel which, in my view, has the potential to be extremely burdensome.
However, with cooperation on both sides, I accept that regular air travel between Adelaide and Hobart is achievable for X and Y, on a reasonably regular basis.
If Ms Macrae’s application to relocate the children’s place of residence to Hobart is successful, she would propose that X and Y spend time with their father on the following basis:
·for one half of each of the April and September/October school holidays;
·during the July school holiday period for approximately nine days, departing Tasmania on the first Saturday of the holiday and returning on the second Wednesday of the school holiday period;
·for alternating halves of the end of year/Christmas school holiday period;
·in 2018 on the third and sixth weekend of each school term, with the children to depart Tasmania on Friday afternoon and return to Tasmania on the following Sunday afternoon;
·in 2019 and on the fourth weekend of each school term, with the children again departing Tasmania on Friday afternoon and returning to Tasmania on the following Sunday afternoon;
Ms Macrae proposes that she would meet the entire costs of the children’s travel pursuant to this proposal and they would travel as unaccompanied minors. She would also readily agree to the children spending time with their father, in the event that he was able to travel to Hobart, from Adelaide, in order to spend a weekend with the children, during the school term. In this context, Ms Macrae asserts that the father could readily obtain some form of holiday accommodation in the vicinity of her home in Tasmania.
Necessarily, the children will have to travel between Hobart and Adelaide return in school holiday periods. I consider that I can take judicial notice of the fact that as these periods coincide when many other Australian families take their holidays, this is likely to be a more expensive time to travel.
If the court accepts Ms Macrae’s estimate of the likely cost of each trip for the children combined ($880.00) and it exceeds to her proposal of twelve trips during 2018, the cost involved is $10,560.00, in my view, is a significant sum of money and, if Ms Macrae bears it entirely herself, would significantly undermine her contention that the move to Tasmania would be financially advantageous to her. In this context, I note that she envisages at least some of these trips being defrayed by the use of frequent flyer points. However, once again, these points are not an inexhaustible resource.
Ms Macrae has unequivocally indicated that, if she is not able to move with the children to Hobart, she will remain living in Adelaide. As indicated above, in her view, this will inevitably be the end of her relationship with Mr T, whom she loves. Ms Macrae is also vehemently opposed to there being any equal time arrangement, for the children, in this eventuality. She proposes that the children live with their father, during school terms, in the first week of each fortnight from after school on Thursday until the commencement of school the following Friday and in the other week of each fortnight from the end of school on Thursday until the commencement of school the following Monday.
In addition, and in order to maintain her mental equilibrium, it is Ms Macrae’s case that she would have to travel to Tasmania to spend time with her family during each school holiday period and this, of itself, will necessitate the children spending more time with her, during school holidays, than with their father. In this regard, she proposes as follows:
·the April school holiday be shared equally;
·she have the care of the children for the entirety of the mid-year July school holiday;
·the September school holiday be shared equally; and
·she have four weeks of each Christmas/end of year school holiday period with Christmas Day to alternate between the parties.
Interestingly, Ms Macrae is open towards working towards an equal time arrangement, commencing within a year of the father electing to relocate to Tasmania. From my perspective, it is difficult to consider this proposal as anything other than an inducement to encourage Mr Macrae to move to Hobart.
b) Mr T’s evidence
Mr T presented as a decent and sensitive person, who is thoroughly ensconced in Tasmania by reason of obligation and connection to his family and career. He has qualifications as an (occupation omitted) and has worked with his current employer, (employer omitted), since his graduation in 2003. He has done extremely well in his career and currently receives an income of approximately $200,000.00 per annum, together with other benefits.
It is Mr T’s evidence that his experience with (employment omitted) is not readily transferrable to a mainland state of Australia, such as South Australia. More particularly, his relationship with his three children precludes a move from Tasmania. It is Mr T’s evidence, which I accept, that he enjoys a good relationship with the respective mothers of A, on the one hand and B and C on the other and sees the children regularly on alternate weekends, as well as during the week.
From his perspective, it is simply impossible that he would uproot himself away from his children, who are obviously deeply entrenched in Tasmania. However, the fact was not lost on him that, in effect, this was what Ms Macrae was proposing so far as Mr Macrae and X and Y were concerned. Candidly, Mr T conceded that his relationship with Ms Macrae had placed Mr Macrae in an invidious position, which he himself would have personally found close to impossible to deal with.
My impression is that Mr T has a significant level of empathy for Mr Macrae’s situation. Certainly, he wishes him no ill-will. In this context, I accept his evidence that he will do whatever he can to ensure X and Y maintain a satisfactory level of relationship with their father, if the children move to Tasmania and Mr Macrae remains behind. Similarly, Mr Macrae presented as not being ill-disposed towards Mr T. Mr Macrae recently invited Mr T to attend Y’s recent birthday so that the two men could become acquainted. However, Mr T was unable to attend.
Mr T owns a comfortable home in (omitted), a (omitted) suburb of Hobart. He would like Ms Macrae and the children to move in with him in due course. He and Ms Macrae have discussed a period of around six months. However, this is not set in stone and will depend on how well X and Y adjust. His ownership of the property is very secure. X and Y have stayed in the house, whilst visiting with their mother during school holiday periods.
Mr T describes his relationship with Ms Macrae as committed. They have been able to maintain this relationship through Skype and regular physical contact. With the end of Mr T's (qualifications omitted) studies, it will become more difficult for them to see each other regularly, on a face to face basis. It is his evidence that he is well aware that Ms Macrae is miserable in Adelaide.
Mr T was an impressive witness. I do not doubt his commitment to Ms Macrae and accept that he loves her deeply. In addition, I accept that he is likely to be an appropriate role model for X and Y. X and he, in particular, have an interest in outdoor activities. Mr T also has a capacity to behave in an empathetic and conciliatory fashion towards Mr Macrae in what can only be regarded as difficult circumstances.
In interview with Ms M, Mr Macrae expressed his concern about the potential consequences for X and Y, if they moved to Tasmania and Ms Macrae’s relationship with Mr T did not work out after the two began to live together.
From his perspective, this would be deeply unsettling for the children, particularly X, whom he believed required a large degree of predictability and stability in his care and living arrangements. To Ms M, Mr Macrae indicated his view that it was Ms Macrae rather than he, who was the more headstrong of the two and likely to do things on impulse.
To Ms M, Ms Macrae indicated that X and Y adored Mr T but she and he were not going to do anything stupid like moving in together. However, in her evidence to the court, she indicated that it was likely that if all went well, she and Mr T would share accommodation in due course. It is a plank of her case that such a development would provide her with a large degree of both emotional and financial security.
It is difficult to assess this issue. My impression is that Ms Macrae and Mr T are deeply committed to one another. However, as with all relationships in their early stages, it cannot be guaranteed to be successful. As such, its possible failure, if the children do move to Tasmania, is a potential risk factor in this very closely balanced case.
Although it is only to be anticipated that Mr T would be positive about how X and Y, on the one hand and A, B and C, on the other have interacted with one another up to this stage, I accept that the five children have got on well with one another during the school holidays, which they have shared together. Again, how the families would blend in the longer term remains imponderable.
Neither Mr T nor Ms Macrae can see any obvious pitfalls in them joining their two families. I am unable to prognosticate, with any degree of certainty about this issue, other than to say both individuals concerned impressed me that they would approach the matter sensitively.
In his affidavit evidence, Mr T has summarised his position in the following terms:
“In the event Ms Macrae is not granted leave to relocate then we have each discussed the simple fact that a long distance relationship is difficult to maintain. Ms Macrae and I have been making every effort to have our relationship work and we have now been in this relationship for two years and in the hope that we will be able to live together in the short to medium term.
Ms Macrae and I have discussed the possibility of my relocation to Adelaide. It is not a realistic option. Ms Macrae wants to be in Tasmania with X and Y and with her family. I have an extremely stable career with promising prospects. I have three children who I have a very close and loving relationship with together with my (omitted) business and the family farm which I continue to be heavily involved in.”[4]
[4] See affidavit of Mr T filed 19 January 2017 at paragraphs 81 & 82
Ms Macrae’s proposals for the children to spend time with their father, both in Hobart and Adelaide, are both ambitious and potentially expensive. At present, the cost of a flight between Adelaide and Hobart is $440.00 return. Currently, the trip also requires a stopover in Melbourne.
It is Ms M’s view that the level of expenditure envisaged in Ms Macrae’s proposal is unviable on any long-term basis. Necessarily, she contends that Ms Macrae has not closely thought through the likely financial exigencies of the children regularly travelling between Hobart and Adelaide, over a period of up to a decade.
I agree with Ms M that it is difficult for any individual to conceptualise the degree of financial commitment such a proposal encompasses. On any view, Ms Macrae’s proposal would consume a significant proportion of her annual income, as presently calculated. I acknowledge that Mr T is both comparatively well paid and likely to be motivated to support Ms Macrae. However, it is close to impossible to predict what will be the cost of air travel, in this country, in future and, as such, difficult to assess the implications of Ms Macrae’s proposal over this period.
In general terms, I accept that Ms Macrae has considered these issues to some extent. However, for obvious reasons, at this stage she is likely to be optimistic about the viability of her proposals rather than otherwise. Similarly, Mr Macrae is likely to be pessimistic, particularly about the ease with which he would be able to travel to Tasmania to see the children from time to time, particularly during school terms.
Up to this stage of their lives, both X and Y have travelled frequently by air, to spend time with their maternal relatives, particularly in Tasmania, but also in Queensland. The children are adept travellers. In addition and more importantly, Ms Macrae has demonstrated an ability to support the children’s significant familial relationships over distance.
In these circumstances, I have no reason to doubt her commitment, professed in these proceedings, that she will ensure the children maintain a satisfactory level of relationship, with their father, in the event she and they move to Hobart and Mr Macrae remains in Adelaide.
However, I suspect that the devil will be in the detail of arranging the required travel, from time to time, particularly when Ms Macrae finds her finances to be straitened and, as would appear to be inevitably the case, Mr T runs out of frequent flyer points or the airline concerned proves itself not to be amenable to redeeming those points in the manner preferred by Mr T.
The distance between Adelaide and Hobart is a significant factor in this case, as is the cost of travel between the two locations. As such, the logistical issues arising cannot be easily dismissed. However, in all the circumstances of this case, I do not consider that the distance and the logistical issues relating thereto represent an insuperable barrier to the children maintaining a satisfactory level of relationship with their father.
Ms Macrae and Mr T, on the one hand and Mr Macrae on the other are intelligent and well-motivated individuals. As such, they are likely to be capable of working cooperatively to overcome the logistical issues of travel constructively for the benefit of X and Y. Ms Macrae has shown that she is capable of ensuring that she and the children have been able to visit their family in Tasmania regularly, whilst she has been living in Adelaide. It is her position that it is a question of needs must.
In my estimation, Mr Macrae is likely to adopt a similar approach to visiting the children in Hobart during school terms. He is an adaptable and resourceful person. Although, for obvious reasons, he sees only difficulties in him coming regularly to Tasmania, he is likely to be able to find adaptions to the current difficulties, if there is no alternative.
f) The capacity of each of the child’s parents and other persons to provide for the emotional and intellectual needs of the children
In my assessment, both parties are well-motivated, well-resourced and insightful parents who are committed to the best outcomes for their children, particularly in educational terms. Importantly, both parents are the source of unconditional love for the children who are secure in the affections of both their parents.
In such matters as X’s (omitted) project, Mr Macrae has demonstrated himself as being adept in providing patient and sustained support to X in pursuing his educational needs. This is to his credit. He would categorise himself as being more in tune with X’s need for patient consistency than Ms Macrae.
Again, this is a difficult issue to resolve definitively in the context of the current proceedings. Mr Macrae is clearly a solicitous parent but so too is Ms Macrae. This was Ms M’s assessment. It is her view, which I share, that both X and Y are doing well in respect of the emotional and educational aspects of their care under the current regime. As such, for reasons already discussed, there are significant deficits in any outcome, which sees the children spending markedly less time with one of their parents.
In particular, I do not think it to be the case that one parent is significantly better placed than the other to provide for X and Y’s emotional needs. Given the parties disparate personalities, they are likely to supply the children’s emotional needs in different ways. What is important is that each parent be given ample opportunities to express their love for the children, both in word and deed.
g) The children’s maturity, sex, lifestyle and background
The parties share a similar background and have complimentary aspirations for their children. In this regard, I do not regard either child as being inherently Tasmanian or for that matter South Australian.
h) Aboriginality
This is not a relevant consideration in the case.
i) The attitude to the children and to the responsibilities of parenthood demonstrated by each of the parties
In my assessment, both parties aspire to being the best possible parents for X and Y. It is my finding that neither has ever shirked their responsibilities towards the children. They are good parents, who want the best for their children.
j) Family violence
k) Any family violence order
There are no applicable family violence orders in these proceedings. For reasons already outlined, this is not a case concerned with the children’s exposure to any aspect of family violence, neglect or abuse.
l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
If this issue of relocation had not arisen, in my view, it is highly probable that the parties would not have had the need to seek any redress from the court. There would have been few significant parenting disputes between them which could not have been talked through between them.
As such, they are likely to have continued to parent X and Y independently of any intervention from the court, dealing with each controversy arising between them, as best they could. However, the sad reality is that the vexed issue of relocation is just too difficult for them to deal with, in any consensual fashion. As a consequence and no doubt with great reluctance, they have been compelled to become litigant, being well aware of the likely corrosive consequences of this litigation on them and their children.
As I have previously indicated, I am not strictly bound by the proposals put forward by each of the parties. In this sense, at least in theoretical terms, it is open to me to delay Ms Macrae’s potential relocation from Adelaide, until such time as the children are older and therefore it is to be assumed their relationship with the father is more resistant to the vicissitudes of distance.
In addition, such a moratorium would give Mr Macrae more time to prepare for the children’s relocation, both in emotional and financial terms. Essentially, he would have more time to decide what he wanted to do and perhaps arrange some form of employment in Hobart and make arrangements in regards to his home.
In this case, both parties have committed very significant resources to this case. They cannot be regarded as wealthy individuals. From my perspective, this is testament to the moment of the issue from each of their perspectives. The outcome of the case is likely to be a matter of daily preoccupation for both Mr Macrae and Ms Macrae. In these circumstances, in my view, it is not an issue which can be easily deferred. The issue cannot be contained. It will remain potent whatever is the outcome of the case.
From Mr Macrae’s perspective, there is not likely to be any ideal time for the children to move away from Adelaide. From Ms Macrae’s perspective, she is at the end of her tether, in emotional terms, and is not likely to be able to withstand any further delay in the resolution of the case.
If the decision of the court is that the relocation should be either declined or deferred, Ms Macrae is not likely to let the issue go. As such, such an outcome is most likely to be the precursor for further litigation of the issue down the track.
In all these circumstances, in my view, a moratorium of the issue is not calculated to be in the children’s best interested. The issue must be determined in the context of these proceedings, to which the parties have committed significant resources, in both financial and emotional terms.
In addition, in my view, the outcome most likely not to lead to the institution of further proceedings is the outcome advocated by Ms Macrae, namely relocation of the children’s residence from the start of the 2018 school year.
m) Any other fact or circumstance
Ms Macrae wishes to leave Adelaide because she wants to move on in her life, for family, professional and personal reasons. She wants to be with the person, whom she loves and to be closer to her family. She also wants to put her old life in Adelaide behind her because she is and has been unhappy there. These are understandable human aspirations, which cannot be easily dismissed.
Ms Macrae’s personal happiness is important not only to her, but also to X and Y. If Ms Macrae is happy and contented, she is likely to parent X and Y effectively. These considerations, abstract though they are, are of fundamental relevance to the best interests of X and Y.
I am not at liberty to ignore Ms Macrae’s legitimate expectations that she is entitled to live how and where she chooses, notwithstanding that she remains in a parental relationship with Mr Macrae, whose personal preference is to remain living in Adelaide. Otherwise the personal relationship between the parties as spouses has ended. As a consequence, the parties are now entitled to lead separate lives, subject only as Gummow & Callinan JJ would have it to the moral and legal obligations of parenthood.
In this context, although X and Y’s best interests are the paramount consideration for the court, they are not the only consideration. Ms Macrae’s interests and indeed those of her parents and everyone else who is involved in this difficult case are inextricably bound up with what is best for X and Y.
Conclusions
In theoretical terms, I accept that it would be in X and Y’s best interests, given the application of the presumption of equal shared parental responsibility, for the children to live in an equal time regime, particularly as there are no issues of family violence or abuse arising in the case.
Given the structure of the applicable legislation and the decision of the Full Court in Taylor & Barker, the court is required to give earnest consideration to firstly an equal time and secondly a substantial and significant time regime for the care of the two children.
However, as the High Court has established in MRR both such regime depend on a positive answer to two equally important questions – firstly, are these arrangements in the best interests of the children concerned; and secondly, are they objectively feasible to implement, in all the circumstances of the case.
In the words of the High Court itself, in determining the answer to the second limb, the court is directed to consider the reality of the situation of the parents and child. One limb is not more important than the other. As I have indicated, in purely theoretical terms, the best outcome for X and Y is one in which their excellent parents share responsibility for them and the children seeing both their father and mother every few days or so.
However, in practical terms, this option is open only if Ms Macrae is restrained in Adelaide, resulting in her unhappiness and the probable failure of her relationship with Mr T or, in due course, Mr Macrae choosing to relocate to Hobart, in tandem with Ms Macrae. It is the responsibility of the court to gauge the objective practicality of both such outcomes.
After a great deal of heartache, I have come to the conclusion that is it not reasonably practicable to restrain Ms Macrae in this way. Necessarily, she would be increasingly resentful at such an outcome and her resulting dissatisfaction, at her lot in life, is likely to have adverse implications for the children.
In my view, effective parenting is not usually posited on the restraint of one of the parents concerned. A handcuff, although a softly padded one, remains a handcuff. This is particularly so, in the case of Ms Macrae, who – and I mean her no disrespect – is not a person who is likely to suffer in silence.
In these circumstances, the parenting relationship between the parties is likely to become increasingly fractured and polarised, leading to more communication difficulties and more disagreements about parenting issues, notwithstanding the parties’ close geographic proximity to one another, in suburban Adelaide. This would not be helpful to the children. Inevitably, Ms Macrae would regard her situation as a prison and Mr Macrae as her gaoler.
As these very lengthy reasons for judgment indicate, I have found this to be a particularly difficult case, in a jurisdiction which is known for its difficult cases. The difficulty stems from the fact that each parent is both a good parent and a decent and honourable person, who has much to offer X and Y.
In addition, each has advocated a rationale and sensible outcome in the case, albeit from his or her own perspective. Essentially, I do not think that this is a case, as are many with which I have to deal, which is characterised by hidden agendas and malign motivations. The respective positions, advocated by both Mr Macrae and Ms Macrae respectively in the case, are readily understandable, both in terms of logic and their human content. The case is balanced on a knife edge.
As with most human beings, my natural inclination is to be kindly disposed to such individuals and to try and give them both what they want in the case. That is simply not possible in a case of this kind. At the end of the day, my function, under the Family Law Act, is to make a decision. Others may reach different conclusions to mine, but the decision must be made by me, invidious though that may be.
This dilemma has caused the judgment to be much delayed, which I regret and for which I apologise to the parties concerned. I appreciate that both Mr Macrae and Ms Macrae have been on tenterhooks, whilst awaiting my decision, for many months.
Although it not an excuse, I have been aware that the decision must be made in time for the 2018 school year to begin and, in this context, the coincidence of the delivery of the judgment, with the 2017 third term holiday, seemed a matter of happenstance.
I hope it is not unacceptable hyperbole, but as I have considered the case over the last few months, I have, on numerous occasions, replayed the circumstances of it in my mind and have, on occasion, reached a different conclusion to the one which I publish in these reasons for judgment. That is a testament to how fiendishly difficult the case is and how closely balanced. I have however, I hope, endeavoured to approach the dilemma represented by the case in a rationale manner, following the pathway provided by Part VII of the Act.
At the end of the day, I have come to the conclusion that Mr Macrae and the children will be able to maintain a meaningful level of relationship with one another, if the children live predominantly in Hobart. I am satisfied that the relationship can be sustained through regular school holiday periods, interspersed with electronic communications and some term time visits, in the event that Mr Macrae does not elect himself to move to Tasmania, at some stage in the future.
I will attempt to encapsulate my reasoning, for reaching the conclusions, which I have, as follows:
·The parties are good, competent parents. There are no issues of family violence and neglect. The presumption of equal shared parental responsibility obviously applies to the parties and their parenting of X and Y.
·As a consequence, the court is mandated to consider firstly, equal time and secondly, a substantial and significant time regime for the children. Both such options being subject to the satisfaction of two provisos relating to the overall best interests of the children and what is objectively practicable to be implemented in all the circumstances of the family.
·On balance, an equal time regime, posited on the indefinite restraint of the mother in Adelaide, is not calculated to be in the best interests of the children, as it will lead to heightened conflict between the parties, although it will undoubtedly also have many positive attributes for the children, given both parties’ obvious parental strengths and the fact that both children are well established in Adelaide.
·More significantly, it will not be reasonably practical to implement, as it is likely to lead to an impairment in communication between the parties; lead to them having a lesser facility to resolve controversial parenting issues; and this is, in turn, is likely to have a detrimental impact on X and Y, who are also likely to perceive their mother is unhappy and resentful about such an outcome [section 65DAA(5)].
·In addition, although it is not a factor strictly relevant to the children’s best interests, such an outcome would represent a complete negation of the mother’s entitlement to live in the location of her preference, particularly in terms of pursing her relationship with Mr T. The court is not in a position to overlook her aspirations, although they are subservient to the moral and legal obligations of parenthood.
·It is in the best interests of the children to maintain a meaningful level of relationship with their father. It is logistically feasible, although likely to be difficult and financially challenging, for the children to have a regime of substantial and significant time, with their father, if he lives in Adelaide and they live in Hobart. The regime proposed by the mother satisfies the definition contained in section 65DAA(3).
·It is both calculated to be both in the children’s best interests and reasonably practicable to implement for the children to be parented in an equal time regime posited on both parents living in Hobart.
·Such a scenario could only arise if the father volunteered to relocate to Hobart, in tandem with the mother, at the time of his preference. As such there would be a consensual basis for the regime, which would assist the parties to communicate more effectively and with a shared focus on the best interests of the children.
·It would be naïve to consider that the father would not be resentful at having such a regime effectively hoisted upon him, which necessarily must have significant and detrimental implications for him, both personally and financially.
·However, he would have a choice as to whether to accept those implications and has a disposition more amenable to adversity than the mother.
·Accordingly, the practical difficulties implicit in any shared parental regime, based in Hobart, are likely to be mitigated.
·Although it may not be the optimal outcome for the children, the regime proposed by the mother is both in the children’s best interests, in terms of them maintaining a meaningful level of relationship with their father and feasible to implement.
Ms Macrae, in my assessment, is a devoted and insightful parent. She is likely to continue to discharge her parental responsibilities, to a high degree in Hobart, where she will be a more contented and settled parent. This outcome will not result in the cessation of the children’s relationship with their father, which will remain meaningful, particularly given X and Y will continue to able to interact with the father in a variety of context and circumstances, with a reasonable level of frequency.
I appreciate, of course, that the relationship will be qualitatively different and will lose some capacity for spontaneity and intimacy. I also appreciate that this outcome will be difficult for Mr Macrae to accept and he is likely to be liable to think that Ms Macrae’s personal aspirations have been prioritised over the long-standing stability of the children and his feelings.
To a large extent, Mr Macrae’s likely feelings are inevitable and reflect the finely balanced nature of the case. One inescapable corollary of the case is that it is impossible for the court to fashion an outcome which is acceptable to both the father and the mother and those associated with them.
Accordingly, I have come to the view that I should make orders in the terms sought by the mother, which also entertain the possibility of the children being co-parented in an equal time regime, if Mr Macrae elects to move. I am satisfied that these orders reflect the best interests of both X and Y. In particular, I am satisfied that the children will be able to maintain a meaningful level of relationship, with their father, notwithstanding the significant distance between Adelaide and Hobart.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding five hundred and twenty two (522) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 22 September 2017
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