Marcus and Ellis
[2014] FCCA 582
•25 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MARCUS & ELLIS | [2014] FCCA 582 |
| Catchwords: FAMILY LAW –Interim arrangements for care of child aged 21 months – until November of 2013 both parents lived in (omitted) in rural South Australia – mother has unilaterally moved from (omitted) to (omitted) in metropolitan Melbourne in face of father’s strenuous opposition – mother asserts she feels isolated and unhappy in (omitted) and (omitted), Melbourne offers her better opportunities – father seeks return of child to South Australia – nature of interim hearing – should final hearing be expedited – principles related to relocation considered particularly unilateral ones – age of child – meaningful relationship – consideration of section 60CC factors – best interests. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA |
| B v B: Family Law Reform Act 1995 (1997) FLC 92-755 Russell & Russell & Anor [2009] FamCA 28 Goode & Goode (2006) FLC 93-286 C & S [1998] FamCA 66 D and S V (2003) FLC 93-137 Godfrey v Saunders 208 FLR 287 Morgan & Miles [2007] FamCA 1230 U & U (2002) FLC 93-112 |
| Applicant: | MR MARCUS |
| Respondent: | MS ELLIS |
| File Number: | ADC 18 of 2014 |
| Judgment of: | Judge Brown |
| Hearing date: | 18 March 2014 |
| Date of Last Submission: | 18 March 2014 |
| Delivered at: | Adelaide |
| Delivered on: | 25 March 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Phillips |
| Solicitors for the Applicant: | Andersons Solicitors |
| Counsel for the Respondent: | Mr Eid |
| Solicitors for the Respondent: | CE Family Lawyers |
ORDERS
THE COURT ORDERS:
The mother return the child X born (omitted) 2012 hereinafter referred to as “the child” to (omitted) in the state of South Australia, by 5:00pm on 11 April 2014.
UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:
In the event the mother elects to live in (omitted), pending final hearing, the child live with the mother and spend time with the father on three occasions each week for periods of up to four hours at times to be agreed between the parties and in the absence of such agreement as follows:
(a)each Saturday between 10:00am and 2:00pm; and
(b)each Tuesday and Thursday between 2:30pm and 6:30pm.
In the absence of agreement between the parties, as to a suitable handover point, the child be exchanged between them in order to give effect to order (2) hereof at the home of the maternal grandmother in (omitted).
In the event the mother elects not to return to live in (omitted), pending the final hearing of this matter, the child live with the father and spend time with the mother at times to be agreed between the parties or as otherwise directed by the court.
In the event the mother fails to comply with order (1) hereof, a recovery order issue in the normal form authorising the Marshall of the Court and officers of the Australian Federal Police to locate the child and deliver her to the father.
An injunction issue and each party be restrained from changing the child’s place of residence to one outside the township of (omitted) without the written consent of the other.
An injunction issue and each party be restrained from denigrating or rebuking the other or discussing these proceedings in the presence of or hearing of the child.
The mother and father shall:
(a)Keep the other parent informed at all times of his/her residential address and contact details including mobile and landline telephone numbers and email address;
(b)Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the child and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the child; and
(c)Inform the other parent as soon as is reasonably practical of any medical issue, significant health issue or significant illness or injury suffered by the child. This order authorises any treating medical practitioner to release details of the child’s medical condition and/or injury to the other parent.
The matter is fixed for final hearing before Judge Brown on 7, 8 and 9 October 2014 at 10:00am NOTING 3 days allowed.
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a family consultant nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 4 July 2014.
The Family Report to deal with the following matters:
(a)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of the said child.
The proceedings be listed for further directions and if necessary, trial directions pending release of the family report herein on 28 July 2014 at 9:30am.
IT IS NOTED that publication of this judgment under the pseudonym Marcus & Ellis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 18 of 2014
| MR MARCUS |
Applicant
And
| MS ELLIS |
Respondent
REASONS FOR JUDGMENT
Introduction
This case relates to what lawyers categorise as an interim unilateral relocation case. Such cases arise when one parent moves away with a child far from the other parent concerned without any proper process of consultation having taken place or any plan having been agreed upon as to how the child involved will interact in future with the parent left behind.
Inevitably these cases precipitate extreme emotion in the parties concerned and those associated with them. Very often the parent who has left asserts that he or she had little choice other than to move and it would be difficult, if not impossible, to return to the location left behind. It is frequently said that the move occurred in response to a crisis arising in the family concerned.
On the other hand, the parent left behind fears that the resulting move will have deleterious implications for the quality of any future relationship between him or her and the child and very often as a consequence of the precipitate and unilateral nature of the move concerned, calls into question the commitment of the relocating parent to maintaining and supporting a proper level of relationship between him and her and the child in future.
These issues are difficult to sort out at the interim stage where the evidence available takes the form of affidavits often hastily prepared usually soon after the relocation has taken place when the emotions of those affected are at their most extreme.
In such circumstances, it is difficult if not impossible for the court to make concluded findings of fact about the issues in dispute between the parties. But nonetheless the urgency of the situation requires that a decision be made by the court which for the parties concerned, is inevitably both highly significant and controversial.
In addition, at the interim hearing stage it is rarely the case that the court has available to it a detailed and independent expert assessment of the needs of the child concerned whose best interests remain the court’s paramount or most important consideration.
One of the more important components of a child’s best interests is the benefits he or she is likely to derive from having a meaningful level of relationship with not just one but both of his or her parents. For obvious reasons, distance creates implications for how often and easily a child can interact with a parent and indeed with other relatives who have the potential to be important to a child as he or she grows to maturity.
Issues relating to parental interaction are particularly sensitive in the case of young children who are developmentally immature and so have difficulty sustaining significant and intimate relationships over distance.
The possible danger of relocation for a child is that such a child may not have a clearly defined appreciation, in the case of a parent left behind, of the identity of that person and the importance of his or her role in the life of the child concerned.
As such if a relocated child does not see and interact with the parent left behind frequently, the danger is that the child’s recollection of that parent may diminish over time to the child’s ultimate detriment. Essentially, the child may be deprived of the opportunity to have an intimate and comfortable relationship with the parent concerned.
In the case of young children they are likely to benefit from being able to see and engage with both their parents frequently and regularly in relatively short blocks of time, rather than through longer and more widely dispersed periods. Contact of this type enables a child’s parental relationships to be constantly refreshed and enhanced, benefitting the child concerned.
Frequent periods of contact between a parent and child can become problematic if relocation occurs. These difficulties become more intense the greater the distance arising from the move involved. Very often a parental relocation will have significant financial implications for the parents concerned particularly if a parent or a child has to travel a significant distance to enable a parental relationship to be maintained.
In addition, apart from psychological issues of this kind, relocation cases also have the potential to create complex and conflicting legal issues concerning the parties themselves and their obligations to their child which the court must consider and balance.
On the one hand Australia is a free country whose citizens are entitled to live how and where they choose. On the other hand, pursuant to the provisions of the Family Law Act 1975, children have an entitlement to have a meaningful level of relationship with both their parents. For obvious reasons, there is a correlation between the level of meaning in a parent/child relationship and the frequency of interaction between the two.
In relocation cases, these competing considerations collide. In such cases, although the court cannot ignore the reasonable expectations of the parents concerned, it must remain focussed on the best interests of the child affected by the move.
Because of the difficulty inherently arising in relocation cases, they invariably require a close and intricate analysis of the pros and cons of either allowing a move or otherwise from the perspective of the parent wishing to move; the parent proposed to be left behind; and particularly the child herself.
In the absence of a detailed examination of all the evidence likely to become available, particularly in the form of a family assessment, it is very difficult to provide the careful analysis which relocation cases demand particularly to ensure that the interests of the child who will be affected by the proposed move will be best served.
For these reasons, the court is usually loath to deal definitively with relocation issues on a provisional basis where the evidence available remains un-tested and often incomplete. That is the situation here. Both parties’ cases are far from complete and their affidavits apparently quickly prepared. In addition, there is likely to be more evidence forthcoming from other interested persons particularly grandparents. There is no family report.
All these difficulties are intensified in the case of so-called unilateral relocations. That is cases where a parent moves without properly securing the consent of the other parent concerned or does so secretly or deceptively in the perception of the parent left behind.
In those circumstances such as these, the court must be careful not to condone parental self-help. That is, one parent taking it into his or her mind to take a significant or major parental step, regarding a child independently of the other parent concerned. Ideally parents should share in the making of major long term decisions about their children.
Accordingly, the court must be particularly careful about the unilateral relocation of a child far away from the other parent concerned. If the court is to be called upon at the final hearing stage to adjudicate the issue of relocation, it is usually better that this be done on a level playing field not one skewed to the advantage of an individual parent who has moved in a process which has not been properly discussed with and approved by the other parent concerned or the court.
For those reasons the general rule is that the court should not subsequently ratify a relocation of a child at an interim stage unless there are circumstances of such particular emergency that the unilateral move of the child can be justified as being in the child’s best interests.
This is the nub of the present case which contains many of the difficult circumstances set out above. The applicant asserts that he made it clear to the mother that he did not agree to the subject child moving from South Australia to Victoria. He fears that his relationship with the child will be jeopardised by what he characterises as a precipitate and unilateral relocation from South Australia by the mother.
The respondent agrees that she did not have the applicant’s approval to move the child interstate but she says that her difficult and conflicted circumstances at the time justified the move and it would not be in either her or the child’s best interests to return to an unhappy situation in South Australia particularly when from her perspective, she and the subject child are now well settled and happy in Victoria.
Obviously the parties’ current circumstances have released powerful emotions for each of them. Regrettably, against this difficult background the court must make a decision notwithstanding the limited nature of the evidence available to it.
Background
Mr Marcus “the father” and Ms Ellis “the mother” are the parents of X born (omitted) 2012. Accordingly, X is currently aged around twenty-one months of age. As such, her level of relationship with both her father and mother is far from being fully formed.
The father lives in (omitted) which is a small town located on the (omitted) approximately 85km from Adelaide. He owns a house in (omitted) and works as a (occupation omitted) with a firm based in the town. The father’s immediate family also live in (omitted). From Mr Marcus’s perspective, (omitted) is his home and he has no desire to live anywhere else.
The mother moved to (omitted) in 2001. (omitted) is the birthplace of her mother who had decided to retire to the town. As a consequence of her mother’s retirement, Ms Ellis lived in (omitted) between 2001 and 7 November 2013 when she moved to (omitted), an outer suburb of Melbourne.
Besides X, the mother has two other children from an earlier relationship. They are Y, who is around eleven years of age and Z, who is aged around eight years of age. Y and Z’s father has lived in Queensland since 2011. As a consequence, he does not interact often with Y and Z.
X, Y and Z are now living with their mother in (omitted), Melbourne. Accordingly, as at the date of the hearing of the parties’ competing interim applications, they had been living in (omitted), Melbourne for around five and a half months.
From the mother’s perspective, this is a significant period of time. It is her case that (omitted), Melbourne offers her and all her children including X, infinitely more opportunities than does (omitted) which she categorises as a small and isolated country town. She deposes that she felt unhappy and unsupported in (omitted) where she alleges that the father and members of his family behaved aggressively towards her.
Underpinning her case is her assertion that she and the children are now happy and well settled in (omitted), Melbourne and it would be grossly dislocating to all concerned to be uprooted and compelled unwillingly to return to either (omitted) or some other location within South Australia at the father’s behest, particularly as she would characterise Mr Marcus as a parent lacking in insight who has hitherto had limited involvement with X.
The parties met in (omitted) in 2009. They have never been married. On both parties’ cases the relationship between them was not a particularly stable one. The parties apparently shared the same premises for about five months during which period the mother fell pregnant with X.
Accordingly, the parties were not living together when X was born. As such, they have no shared history of providing care for X. The father characterises the mother as being hyper-protective of X. It is his perspective that she neither encourages nor facilitates a close relationship between him and X.
On the other hand, the mother’s perspective is that Mr Marcus has serious psychological issues related to habitual drinking. It is her case that his use of alcohol causes his behaviour to become erratic. She alleges that on one occasion when he was angry the father grabbed her tightly causing bruising to her upper arm.
The mother categorises X as being a difficult baby who did not sleep or feed easily. It is also her case that X suffers from extreme separation anxiety and is only comfortable in the care of her mother. In these circumstances she asserts that the father has “spent minimal time with X”. [1] She does however depose that she did her best to encourage a relationship between X and her father. The import of this evidence appears to be that there is currently no viable relationship between father and child.
[1] See mother’s affidavit filed 19 March 2014 at paragraph 17
The father doubts that X suffers from any form of separation anxiety and in this regard points to the lack of any expert evidence supporting the claim. It is his evidence that whenever he has interacted with the child she has been happy to play with him. It is also his case that he has constantly asked the mother to be allowed to spend more time with X particularly in his home but his requests in this regard have been rebuffed. He deposes as follows:
“I would sit on the floor with X and play with her clapping hands or with her toys. At those times the mother would always hover over me and often remove her from our games.
The mother never allowed me to change her nappy, bath or feed her despite my attempts to do so. I would often ask the mother if I could take X out for a walk in the pusher but these requests were refused.
I have always been made to feel like a visitor and not a father to X.”[2]
[2] See father’s affidavit filed 6 January 2014 at paragraphs 25 – 27
Accordingly, the parties agree that the father has had limited time with X up to this stage and this time has always taken place at the mother’s home and in her presence. However, the parties disagree as to why this has been so.
From the father’s perspective, it has been because of the mother’s unduly protective attitude, from the mother’s perspective it has been because of X’s vulnerability and because the father’s home is not child focussed and is untidy being usually littered with beer cans.
The father’s case is that in somewhat difficult circumstances and notwithstanding the mother’s passive resistance, he has spent as much time as he possibly can with X. This time has occurred at the mother’s home on two occasions each week. Underpinning Mr Marcus’s evidence is his wish to be a loving and closely involved father in X’s life.
The father’s evidence is that around twelve months ago he purchased all the necessary prerequisites to enable X to stay at his home. These include a stroller, car seat, toys and other items. In order to progress his plans in this regard, he attempted to engage the mother in a process of mediation to which he asserts she was resistant.
The father categorises the mother as being mentally unstable, alleging she suffers from anxiety and depression. The mother refutes these allegations, countering with her allegations concerning the father’s amphetamines use. The father denies that he uses illicit drugs and categorises himself as a responsible drinker of alcohol.
The mother’s departure from (omitted)
In September of 2013, whilst the father was working in (country omitted) which he does twice per year, the mother took a short holiday to (omitted), Melbourne to visit members of her family. It is her evidence that she was impressed by the opportunities available both to her and her children in a more suburban setting than (omitted).
It is her evidence that as a consequence in mid-October, she raised with Mr Marcus the prospect of moving to Victoria with X and her other children. Ms Ellis concedes that Mr Marcus was not receptive to her proposal. The parties agree that the topic was again discussed between them during the father’s visit to X on 23 October.
They also agree that the meeting between them did not go well. Mr Marcus concedes that he became upset but denies threatening Ms Ellis or her children. The mother alleges that she became frightened by what she characterises as the father’s irate and abusive conduct.
She also alleges that later that day the father’s mother attended at her home and commenced pounding on her front door demanding entry. Ms Ellis asserts that she and her children were frightened by the incident which was reported to the (omitted) police.
The mother also alleges that she was followed by the paternal grandmother at school collection times which was said to be distressing to Y. Again, it is asserted that this incident was reported to the (omitted) police.
The paternal grandmother has not as yet provided her version of these events. In addition, I have not been provided with any documents from the police indicating what action if any the authorities considered necessary.
The father accepts his mother did visit Ms Ellis’ home in an attempt to discuss the mother’s plans to move but it is his understanding that the mother declined to come to the door. As such he asserts there was no incident arising between his mother and Ms Ellis.
There is no evidence to indicate that any person has been charged in respect of these various incidents. To the contrary it is the father’s evidence that neither he nor his mother have been questioned by police in regards to the allegations raised.
The father’s evidence is that his understanding of the mother’s position from what she had told him was that she intended to move to Victoria on 28 December 2013. This has the ring of truth to me given that the move also concerned Y and Z who are school aged children.
In these circumstances in early November, he consulted solicitors who wrote to Ms Ellis indicating Mr Marcus’s empathic opposition to X moving to Victoria and requesting a formalisation of arrangements for him to spend time with her.
The letter was sent on 6 November. Solicitors based in Victoria responded to the letter on 18 November, indicating that their client had already left (omitted) as a result of being “virtually driven out of town by the conduct of your client’s mother, in particular her stalking of our client.”
In my assessment of the evidence currently available, the mother is not in a position to deny that she was well aware prior to her departure from (omitted) that Mr Marcus did not agree to X leaving the town. She concedes as much in her own affidavit material when she deposes as follows:
“Through careful consideration and family discussion I came to the decision that it would be in the best interests of my family to move back to Victoria, in spite of Mr Marcus’ concerns.
Mr Marcus and his mother became very intimidating and I decided to seek legal advice in regards to my move and the situations surrounding it. My daughters were becoming increasingly troubled by Mr Marcus and his mother so on the advice of my lawyer I began to make arrangements to move immediately.”[3]
[3] See mother’s affidavit filed 19 March 2014 at paragraphs 30 – 31
Given the relevant legal principles applying to relocation particularly at the interim stage, this advice if given was brave indeed. In addition, although it may be a matter of insignificance, the use of the phrase move back to Victoria, by Ms Ellis, strikes me as unusual, given that the mother had lived in (omitted) for approximately twelve years; her mother continues to live in (omitted); and all of her children had been born whilst she lived in the town. In these circumstances, I am concerned that her statements as quoted above have the flavour of a piece of post event rationalisation or some form of subsequent self-justification given Mr Marcus’ actions since her move.
Apart from the mother’s assertion there is no evidence to support her allegation of consistent harassment, stalking or threats of violence emanating from the father or members of his family. It is also I think, noteworthy that the mother elected to move speedily without first exploring the possibility of gaining protection for herself and her family through obtaining some form of family violence intervention order.
In addition, the connection between the mother’s recent visit to Victoria and the favourable impressions so created with her decision to move is a striking one. Given the father’s clear communication to her that he did not agree to the move, it is difficult to rule out at this stage his contention that the mother wished to present him with a fait accompli regarding her desire to move as quickly as she could.
The parties’ respective applications
On a final basis, the father seeks that the parties should hold equal shared parental responsibility for X. Further, in the event that the mother resides in the State of South Australia, Mr Marcus proposes that X should live with her mother and spend times with him at such times and on such conditions as the parties agree from time to time.
On a final basis, in the event that Ms Ellis elects to live in Victoria permanently, Mr Marcus proposes that X live with him and spend time with her mother as the court should determine. His application is silent regarding the possibility of him moving to live in Victoria in order to be geographically closer to X should the mother’s relocation be approved.
Mr Marcus commenced his proceedings on 6 January 2014. It is his case that he did not institute the proceedings sooner because he believed at least initially, that the mother’s plan was to move permanently at the end of December.
For reasons which are unclear to me but perhaps because there was no covering letter requesting an abridged hearing, the registry staff allocated the application a routine first return date of 6 March 2014.
In my view, it was regrettable that the application was not perused by a registrar of the court with a view to the time for its first return being abridged. This oversight, if it be such is in no way attributable to the father.
Mr Marcus’ proposals for interim parenting arrangements for X are not well developed in his application. He proposes that pending final hearing X should live with him and to effect such an outcome a recovery order issue. He has no proposals for X to spend time with her mother in this eventuality.
Given X’s tender years; the fact that Ms Ellis has been the child’s primary carer up to this stage which, when coupled with the undisputed evidence that Mr Marcus has never provided care for X in the absence of her mother or overnight; this seems to be an ambitious position which cannot be described as being inherently child focused.
Accordingly, during the interim hearing of 18 March 2014 counsel for Mr Marcus submitted that his client was open to X continuing to live with her mother pending final hearing, provided that Ms Ellis lived either in (omitted) or the Adelaide metropolitan area. The rationale for both such locations being that it would be manageable for Mr Marcus to spend regular and frequent periods of time with X in either such location given the distance between Adelaide and (omitted).
The chief detriment of the father’s position is that it is one which can only be achieved through the tacit compulsion of the mother to return to South Australia which is axiomatically not her preferred outcome. This is because the court has no explicit authority to direct Ms Ellis personally as to where she is to live.
On 3 March 2014, Ms Ellis had not formally responded to the father’s application. In these circumstances, the matter was fixed for interim hearing on 18 March 2014. In addition, it was agreed that Mr Marcus would spend three hours with X on 8 March, with this time to be supervised by the paternal grandfather or paternal step-grandmother in the absence of any other person. The time concerned was scheduled to take place in (omitted), a suburb of Adelaide.
The mother filed her responding documents on 19 March 2014. On a final basis she seeks the allocation of joint parental responsibility for X and that the child live with her. She seeks to be excused from further particularising her final orders until the completion of a family report in the matter.
On an interim basis, she seeks the following orders:
“The parties have joint parental responsibility for the child of the relationship X born on (omitted) 2012.
That the child live with the mother.
The child spend supervised time and communicate with the father as follows:
For three hours on a day and time to be agreed once every three weeks with such time to take place at the home of the maternal grandmother;
For two hours per day during one week of each of the Victorian short school terms holidays at times to be agreed with such time to take place at an agreed venue in (omitted).
Communication by way of “Skype” or “Facetime” or similar face-to-face electronic communication at 6.30pm each Sunday or Wednesday.
In (omitted), Melbourne at the expense of the father at times to be agreed for a period of three hours on not more than two consecutive days in any week.
The mother send the father by email or text message photos of X on a weekly basis and the mother show X any appropriate photograph sent to her for X by her father.”
As is clear from these proposed orders Ms Ellis has not factored into her position the possibility that the court may order X to be returned to either Adelaide or (omitted) pending final hearing. I can understand why this would be so. For obvious reasons, parties in relocation cases invariably focus on their preferred outcome and do not actively consider any disagreeable alternative.
This lack of detail has the potential to create its own dilemmas for the court. The court has no authority to compel the mother to live anywhere. Its authority only extends to making parenting orders in respect of X which obviously when made, will have implications for the parties themselves.
For reasons outlined above, it is likely to be unpalatable for the court to make orders placing X in Mr Marcus’ primary care given the previous arrangements for the child’s care and because it would be difficult to justify an abrupt change in the child’s primary care as being in her best interests.
In such circumstances, it is a common phenomenon that the court provides a relocating parent with an unpalatable choice – either orders are made for the child concerned to live with the parent who has previously been the primary provider of care but in a location convenient to the other parent concerned or otherwise an order is made that the child live with the other parent in the location which the relocating parent has left behind if that parent elects to remain in the new locale.
Necessarily there is a certain level of artificiality about such orders which are often advocated by neither party concerned. Rather, particularly at the interim stage, they rest on the assumption that the parent who wishes to relocate will altruistically subordinate his personal expectations to what the court has found to be in the overall best interests of the child concerned and so will return, albeit unwillingly, to a place which is unpalatable to him or her in order to continue to provide a stable emotional basis on which the child is concerned.
The situation in which the court offers parents such choices is easier to justify at the interim stage as such an outcome is provisional in nature and will be subject to review at a later stage when more evidence is likely to be to hand. In addition, the parent whose living preferences are so subjugated is not placed in a position where such an outcome is necessarily likely to be viewed as permanent or even semi-permanent.
At this stage, it is clearly Ms Ellis’ position that she is unwilling to return to South Australia either provisionally or permanently. She has not turned her mind as to how she would respond to an order directing X to live in South Australia either on an interim or final basis, particularly whether she would consider returning to the State in tandem with X or would elect to remain in (omitted).
Underpinning her position at this stage, is her proposal that she would visit (omitted) with X every three weeks to enable the father to spend time with her, at the home of X’s maternal grandmother. In addition, Ms Ellis proposes returning to (omitted) for one week during each short school term holiday during which periods Mr Marcus could spend daily two hour periods with X.
Ms Ellis concedes that she is not in a strong financial position herself. As such, she is not in a position to be able to fund the extent of travel envisaged by her proposal. In these circumstances, she relies on evidence from her father Mr G who indicates that he is prepared to pay the costs of some flights for the mother and X to fly to Adelaide so that Mr Marcus can spend time with X.[4]
[4] See affidavit of Mr G filed 7 March 2014 at paragraph 3
The mother herself has provided information about the costs of commercial air travel between Melbourne and Adelaide. The cheapest fare is around $49.00, the most expensive around $500.00 for a one-way ticket.
As I understand it, discounts are available when fares are booked well in advance of proposed dates of travel. At this stage there has been no detailed analysis of how sustainable, as well as how logistically feasible are the mother’s proposals in the short to medium term.
If the court accedes to the mother’s interim position, she proposes that she would stay with her mother Ms D at her home in (omitted). In this context, the maternal grandmother has deposed as follows:
“I have indicated to Ms Ellis that in the event that she is permitted to remain living in (omitted), Victoria pending the final hearing of this matter (and, if need be, after that time) I am prepared to offer my home as a venue for the applicant father, Mr Marcus (“Mr Marcus”) to spend time with X when Ms Ellis is in (omitted) with her. I am also prepared to act as supervisor for that time if need be.” [5]
[5] See affidavit of Ms D filed 7 March 2014 at paragraph 2
However, the maternal grandmother has also deposed that her home is too small to provide accommodation for the mother and her family. I have not been provided with any detailed evidence regarding the ease with which accommodation can be obtained in (omitted).
It is however the mother’s position that she has let go her previous accommodation in (omitted) and she believes that it would be difficult for her to obtain alternative accommodation in the town. However, for obvious reasons, the mother is hardly likely to be enthusiastic about her accommodation prospects in (omitted).
One common response to the dilemmas thrown up by relocation case at the interim stage, is for the court to expedite the final hearing. In this case, neither party advocates such an outcome. The chief benefit of expediting a hearing is that it emphasises to the parties concerned the highly provisional nature of any interim orders made.
The mother’s case
Ms Ellis is enthusiastic about the opportunities which Victoria in general and (omitted) in particular offer her and her family. These can be summarised as follows:
·Her family, apart from her mother and her husband, live in Victoria;
·Her father is unwell with cancer and she wishes to be closer to him;
·It will be easier for her to obtain qualifications in child care, an area of employment in which she is interested in Victoria than in (omitted);
·Her sister runs child care centres in Victoria which will assist Ms Ellis in obtaining employment in her chosen field;
·Y was being bullied at school in (omitted). She has been able to make a new start at an excellent school in (omitted) Melbourne;
·Educational and extra-mural activities are superior for both Y and Z in (omitted) Melbourne.
·In (omitted) Melbourne she lives a short distance from her brother and one of her sisters. As a consequence Y, Z and X are able to live in proximity to their cousins.
In short, Ms Ellis sees only positives for herself and the children in (omitted) Melbourne. On the other hand, she has only negative views of (omitted) which she describes as small, parochial and isolated. It is her evidence that she has no friends in the town and because she does not drive she feels socially cut off.
A further and significant advantage of (omitted) Melbourne, from Ms Ellis’ perspective is that she has been able to consolidate a relationship with Mr M who lives in (omitted) Melbourne. The mother has known Mr M for approximately seventeen years. During 2013, she reconnected with him via the internet. She now describes him as her partner and lives with him and his twelve year old son in Mr M’s home in (omitted) Melbourne.
Ms Ellis describes Mr M in the following terms:
“Mr M has proven to be a strong role model for my girls. He has raised his own child by himself for the past 11 years and shows a caring, understanding and nurturing nature to my children. My daughters have already formed a strong bond with him and he always makes time to assist them in their school work, making time to take them to their extracurricular activities and involving himself in their lives. The relationship formed between Mr M and X has been such a benefit to X. After much persistence from my partner to make her at ease she has found great comfort in him. He often cannot leave the house without X demanding to go with him for a car ride and my partner involves himself in as many aspects of X’s life as possible doting over her whenever they spend time together. Having previously worked in a (omitted) organisation with the (omitted) for several years he is very understanding of young people’s natures and how to interact with them. My daughters and my partner’s son have also formed quite a strong bond and X can often be found shadowing and playing with him.”[6]
[6] See mother’s affidavit at paragraph 34
Needless to say, Mr Marcus is both upset and sceptical about this description. He is concerned that the mother is intent on replacing him in X’s life as a father figure with Mr M. He believes that the only rational explanation for Ms Ellis’ precipitate departure for (omitted) Melbourne can be her desire to further her relationship with Mr M.
In all these circumstances, he urges the court to approach Ms Ellis’ assertion that X has a strong relationship with Mr M but has only an anxious and limited relationship with him with extreme caution. This indeed is Ms Ellis’ case. She asserts that X continues to suffer anxiety when separated from her mother.
It is Ms Ellis’ case that it would be incredibly disruptive to return to (omitted) even in the short term. She describes herself as having blossomed in Melbourne, whilst having previously felt trapped in (omitted). It is her case that she, Y, Z and X are now well settled in (omitted) Melbourne.
The father’s case
It is Mr Marcus’ case that the mother has up to this stage declined to support the establishment of a bond between him and X. In these circumstances, the court needs to be very cautious in respect of the mother’s evidence particularly in terms of her professed willingness to support X’s paternal relationship if she is able to remain living in Victoria.
In this context, Mr Marcus describes it as being extremely upsetting to read that the mother has encouraged a relationship between X and Mr M, whereas from his perception he and his family have been given no chance to properly bond with X.
From Mr Marcus’ perspective, it would be extremely difficult for him to move away from (omitted) where he has been employed for many years and is purchasing a home for himself. In addition, it is his case that members of his extended family need to be able to interact regularly with X so that she can develop a sense of connection to her wider paternal family, particularly her grandparents who live close by to him.
Mr Marcus asserts that Ms Ellis has overstated the benefits of (omitted) Melbourne for herself whilst having maximised the deficiency of (omitted). In this regard he points to the fact that Ms Ellis has lived in (omitted) since 2001 and her mother continues to live in the town. As such, it is his case that the evidence available to the court clearly establishes that Ms Ellis is capable of functioning adequately as a parent in (omitted).
In all the circumstances of the case, particularly the recent development of Ms Ellis’ relationship with Mr M, he asks the court to doubt the mother’s bona fides in leaving (omitted) so hastily in the face of his strenuous objections to the move.
Mr Marcus also has a grave reservation about the workability of the mother’s proposals for him to spend time with X in the event that she lives predominantly in Victoria. It is his case that X needs to spend two days per week with him in order to develop an appropriate level of paternal relationship with him.
The legal principles applicable
Interim hearings do not determine long term arrangements for children. That is the function of final hearings. However, the same principles apply at both the interim and final hearing stage.
In deciding whether to make any particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount or most important consideration [Family Law Act section 60CA].
The matters which the court must take into account in deciding how a child’s best interests are to be served are set out specifically in the Act in section 60CC.
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations which are set out in section 60CC(2)(a)(b) namely:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to in a number of decisions of the Family Court as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Other specific criteria relating to how the court is directed to consider how the best interests of any children concerned may be served by any order which is made, are set out in section 60CC(3). There are fourteen such criteria which are categorised as being additional considerations.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice for the child affected in every case.[7]
[7] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[8] As such the various factors in section 60CC are inclusive but not exclusive of one another.[9]
[8] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[9] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
Given the importance which the applicable legislation places on the co-involvement of parents in their child’s life and development, there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption of equal shared parental responsibility is rebutted if it is found on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so in all these circumstances prevailing [section 61DA(3)].
In the case of Goode & Goode[10], the Full Court of the Family Court has laid out a pathway for the determination of interim hearings such as this one.
[10] Goode & Goode (2006) FLC 93-286
In determining interim parenting matters after identifying the competing proposals of the parties, the issues in dispute and any agreed issues the court should:
·consider the section 60CC matters relevant and, if possible, make any relevant findings of fact;
·decide whether the presumption in section 61DA should be applied or if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or, in interim proceedings only, if it would not be appropriate to apply the presumption.
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time if the court considers it to be in the best interests of the child concerned.
Given the structure of Part VII of the Family Law Act cases involving one parent wishing to move a major distance away from the other parent concerned raise significant issues for the court and the parties concerned. Such cases throw up competing principles which are difficult to reconcile.
On the one hand, one of the purposes of the Family Law legislation is to provide former partners with mechanisms to enable them to lead separate lives from one another in future and make arrangements for the care of their children in the now changed circumstances following the end of the marital or de facto relationship between them. There is no principle of law that requires separated parents to live indefinitely in close proximity to one another.
On the other hand, pursuant to the principles contained in the Family Law Act, it is the entitlement of a child to have a meaningful relationship with both his or her parents regardless of the fact that the parents concerned chose not to live together. It has been said that relocation cases need careful analysis.[11]
[11] See C & S [1998] FamCA 66
Accordingly, it is usually considered preferable that issues of relocation not be decided at the interim stage particularly as decisions regarding relocations may have potential serious ramifications for the children concerned, especially when those children are young, in terms of their ongoing parental relationships.
The consequence of any proposed move does not turn on the distance involved alone. In determining the consequences of such a move, what is likely to be highly relevant is the age of the child concerned.
For obvious reasons, the move of a baby or pre-schooler in terms of the development of parental attachment will be very different to those for a teenager whose parental relationships are likely to be well established.
In addition, there may be financial considerations arising from the move. Wealthier families are able to cope more easily with issues of relocation because of their greater financial resources. Less financially well-equipped families may struggle to meet the fuel or other transport costs arising from relatively short moves.
In many circumstances, children are frequently able to maintain their relationships with significant people including a parent, by less frequent periods of quality time spent in school holidays which is supplemented by other forms of communication such as telephone, webcam or letters.[12] As Kay J pointed out in Godfrey v Saunders[13] “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”.
[12] See D and S V (2003) FLC 93-137 at 78, 280
[13] See Godfrey v Saunders 208 FLR 287 at 298
It is a common occurrence in contemporary Australia for a parent to move voluntarily away from a child or children concerned after a relationship breakdown. In addition, children are often relocated away from one of their parents as a result of a consensual decision made by the parents concerned. Often financial imperatives are involved.
These types of situation come about because of the high level of mobility in Australian society and the reality that many parents wish to pursue career and personal opportunities in a different place to that in which they lived whilst in a relationship with the other of their child’s parents. High rates of divorce and relationship breakdown are also an incident of modern Australian life.
Although the shared parenting legislation has added emphasis to the principle that children benefit in their emotional and social development by having as extensive a relationship as possible with both their parents, there is no principle of law that the parents of children are required to live indefinitely close to one another in order to ensure that such an optimal outcome is achieved. The recent legislative amendments have not changed this situation.
Pursuant to rights read into the Australian Constitution, Australians have a right to live how and where they choose. Australia is a free and democratic society which prizes the freedoms of its citizens. Accordingly, the court cannot ignore the legitimate expectations of parties who come before it regarding these personal freedoms.
However, the best interests of any child concerned remain the paramount consideration in the outcome of every type of parenting case including a relocation one. As one of the components of a child’s best interest is the right to have a meaningful relationship with both his or her parents, I must consider the adequacy of the arrangements proposed by the relocating parent for any child concerned to spend time with the other parent involved.
The provisions of the Family Law Amendment (Shared Parental Responsibilities) Act have added emphasis to the importance of a child maintaining a meaningful level of relationship with both of his or her parents.
However, they have not specifically prohibited the movement of a child away from one of his or her parents or placed some specific evidentiary onus upon the parent wishing to relocate. If the legislature had intended to prohibit such relocations, it would have specifically done so.
Rather, what the court is required to do is to weigh and balance the primary considerations and the additional considerations contained in section 60CC in respect of the parties’ competing proposals to determine the best outcome for the child concerned.
In so doing, it cannot ignore a parent’s entitlement to freedom of movement. In my view, it is incumbent upon the court to consider these various principles at both the interim and final stage. I think this follows from the directions provided by the Full Court in Goode & Goode.
However, given the more limited evidence usually available at the interim stage, the court must exercise considerable caution in respect of such relocation issues when the evidence before it is necessarily provisional and untested.
Accordingly, the Full Court of the Family Court has indicated that it is preferable that issues relating to relocation should not be determined against a background of recent development which significantly alters the relationship of the child concerned in regard to one or other of his or her parents, particularly if that recent development has been created by the actions of one parent alone.[14]
[14] See C & S [1998] FamCA 66
In Morgan & Miles,[15] which was a case which arose after the shared parental responsibility amendments were implemented, Boland J confirmed that the court should be reticent to determine issues of relocation at the interim stage. She said as follows:
“It is highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined an abridged interim hearing, and these are the types of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me that the comments of Warnick J in C and S remain apt and relevant to determination of these cases.”
[15] Morgan & Miles [2007] FamCA 1230
Section 60CC
X is not yet two years of age. It seems clear from the evidence available to me, that her relationship with her father is far from being fully developed. This is as a consequence not only of her tender years, but also because father and child have not been able to interact extensively together. It also seems clear that Ms Ellis does not have a great deal of confidence in Mr Marcus’ parenting capacity and as a consequence, she has restricted the extent of time he has been able to spend with X.
I accept that Mr Marcus loves X and is interested in every aspect of her future development. Accordingly, X has at least the potential to benefit from knowing her father well and having a warm and intimate relationship with him. Parental relationships are important to children at all stages of their development.
Given X’s age at present, the best opportunity for X to have a meaningful level of relationship with her father is if the two are able to interact frequently with one another so that father and child become easy and comfortable in each other’s presence. The creation of such relationships relies on the extent, quality and regularity of interaction between parent and child. In the case of younger children, regularity of time is invariably a more important consideration.
For obvious reasons, the distance arising from the mother’s unilateral move from (omitted) to Victoria prevents father and child from having the most conducive circumstances in which to form a strong and permanent parental bond together. Notwithstanding the mother’s recently professed commitment to X having a meaningful relationship with her father, I am concerned that Ms Ellis’ move is not calculated to be helpful in this regard.
To a large degree Ms Ellis justifies her hasty move to (omitted) Melbourne because of concerns relating to family violence raised by her. These relate to allegations that both the father and his mother behaved in an aggressive manner towards her and her other children shortly after she raised her desire to move to Victoria with them.
At this stage, the mother’s allegations are denied by Mr Marcus and are not supported by any independent source of evidence. In all these circumstances, I do not consider that issues relating to the need to protect X from being exposed to family violence should be at the forefront of the court’s deliberations in this matter.
It is I think only to be expected that the mother’s desire to move away with X would precipitate a strong reaction from her paternal family in (omitted). The expression of such strong emotions by Mr Marcus and his mother are not in my view congruent with the definition of family violence contained in the Family Law Act.
In assessing the rationale for what is clearly a unilateral decision on Ms Ellis’ part to relocate X interstate, the court is required to look at the objective circumstances facing the mother at the time of her move. In my view, given the father’s unequivocal objection to X moving interstate which was formally communicated to Ms Ellis, it cannot be said that she faced a situation of such extreme emergency to justify her unilateral relocation of the child.
Even if Ms Ellis was frightened by the conduct of Mr Marcus and those associated with him, it was open to her to seek the assistance of a domestic violence restraining order or some other form of police intervention. In my view, moving from (omitted) to (omitted) Melbourne was not a commensurate response to the level of threat faced by Ms Ellis in (omitted).
Although it is difficult to form a concluded view at this stage, it seems more likely than not that Ms Ellis was driven by considerations of her own needs particularly to pursue her relationship with Mr M rather than any need to protect X from coming to harm in her decision to depart from (omitted). It also seems probable given her position was that she would be leaving (omitted) at the end of 2013, that she wished to steal a march on Mr Marcus by leaving earlier.
I accept that at present X’s most significant relationship is with her mother who has been her primary provider of care up to this stage. As previously indicated, her relationship with her father is in its nascent or developmental stage. However, given the overall structure of the Family Law Act, X’s paternal relationship and indeed her relationship with other members of her paternal family has the potential to be very significant to her.
Ms Ellis has deposed forcefully in respect of the disruption which will be occasioned to her and her other children if she is compelled to return to live in Adelaide or (omitted) Melbourne, pending finalisation of the parties’ competing applications. She has been equally eloquent in setting out why (omitted) Melbourne is superior to (omitted) Adelaide as a place in which to live both for herself, Y, Z and X.
I accept that it is likely to be disruptive for Ms Ellis to return either to (omitted) or Adelaide. Ms Ellis does not have an obvious source of accommodation in either location. She is not well resourced financially. It will also be unsettling for her older children to have to leave school if Ms Ellis elects to live in South Australia pending the final hearing.
I also accept that Ms Ellis is likely to be deeply resentful towards Mr Marcus for compelling her to return to a location which is unpalatable to her. She will also be upset that her relationship with Mr M is placed under threat by what they both will regard as an unscheduled and unexpected intrusion into their lives by Mr Marcus.
In such circumstances, she is hardly likely to be well disposed towards Mr Marcus. Nor is she likely to be well motivated towards supporting X’s relationship with her father in what she will regard as difficult circumstances engineered by Mr Marcus.
In such circumstances it may possibly be the case that if Ms Ellis feels compelled to parent X even for a limited period of time in an environment which is difficult for her (Ms Ellis), her capacity to parent X adequately may be compromised to X’s detriment.
Due to her self-help, Ms Ellis has been living in (omitted) with X for a period approaching five months. It is a significant period of time from X’s perspective. However, I accept that this situation has not come about as a consequence of any deficiency attributable to Mr Marcus. He acted promptly in bringing his application before the court.
However, on any view, to compel X to return to South Australia – either to (omitted) or Adelaide – has the potential to be extremely problematic. As previously indicated, if Ms Ellis declined to return in tandem with X, I would have grave reservations that to place her in the immediate care of her father would be a satisfactory outcome for X. However, it seems unlikely that Ms Ellis would surrender X’s care to her father in such circumstances.
However, given the susceptibility of X’s paternal relationship to the stresses of distance, I am also gravely concerned about potentially devastating consequences for X if the court puts in place orders in line with Ms Ellis’ application.
Given the lack of any history of consensual parenting by the parties concerned of X and the obvious deficits in communication between them, I am concerned that there is at least a possibility that the distance between (omitted) and (omitted) Melbourne will lead to the possibility of X having an extremely truncated relationship with her father as she grows to maturity or even no relationship at all.
In my view, the case exhibits all the problems which arise when one parent exercises self-help in respect of parenting arrangements for a child. If I do what the mother wishes, the father will feel bitter and unregarded. He will inevitably believe that the court has rewarded the mother for taking things into her own hands and deprived the case of the close analysis which it warrants particularly given X’s tender years.
On the other hand, if I do what the father wishes, the mother will feel that X’s well-being is being jeopardised by another change in arrangements for her care which will be temporary in nature and so deeply unsettling for X as well as being prejudicial to Y and Z. In addition, Ms Ellis will feel her understandable aspirations to live how and where she wishes have been unheard by the court and made subservient to the aspirations of Mr Marcus who has never been X’s primary carer.
In short, the current situation is a mess which provides no obvious solution for the court. On the one hand, the court should not be seen to tacitly endorse Ms Ellis conduct. On the other hand, notwithstanding the court’s disapprobation of Ms Ellis’ behaviour, it may be prejudicial to X to compel her return to South Australia and deeply inconvenience and unsettle her primary carer or even in extreme circumstances disrupt that primary relationship.
In these circumstances, the court must closely assess the mother’s proposal for the father to spend time with X pending final hearing. In this context, the court should also examine the prospects of expediting the final hearing which appears unavoidable. However, the court must also be careful not to anticipate the outcome of any such final hearing and so potentially render it otiose.
Since the mother left (omitted) in early November of 2013, X has spent time with the father on one occasion only. This occurred on 8 March 2014, following court order. The mother drove from Victoria to facilitate the time which occurred in the lead up to the recent interim hearing.
From the father’s perspective, this period of time was not without incident. It is his perspective that it is unsafe for mother and child to drive such long distances particularly at night. The mother agrees that in future if her application is successful, it will be necessary for her and X to travel to South Australia by air.
The mother is not herself able to fund frequent air travel between Melbourne and Adelaide. She relies on her father in this regard. However, Mr G commits himself to funding some of the trips required. In addition, over time it is impossible to calculate what is the likely cost of the travel to which the mother has committed herself.
At the final hearing stage the adequacy of any proposal by a relocating parent for a child to spend time with a parent left behind, is invariably central to the success or otherwise of an application for relocation. In this case, the mother’s proposals for the father to spend time with X are untested. In my view, they are also ambitious in their extent particularly given the mother’s lack of financial resources.
In all these circumstances, I fear that there is a very real chance that the mother’s proposals for X to spend time with Mr Marcus will breakdown. I am also concerned that the proposal has come forward only in response to Mr Marcus’ application and has therefore not been subject to considered thought by either Ms Ellis or her family and certainly not to any extensive scrutiny by the court.
In my view, the distance between Adelaide and Melbourne is a significant one. Inevitably, if Mr Marcus remains living in (omitted) and X remains living in (omitted), it must have implications for the level of meaning in the relationship between the two and how that relationship is to be maintained over distance.
This is precisely the type of issue which behoves close and intricate examination by the court without the influence of any episode of self-help on the part of one of the parties concerned. In my view, this is a major factor militating in favour of X’s return to South Australia, notwithstanding the upset to her care in the short to medium term which will be precipitated by such a result.
Although it is not his preference, it may be the case that at final hearing stage, the court gives some consideration to the prospect of Mr Marcus moving to live closer to X, rather than confining the case to issues of either allowing the mother’s relocation or restraining her from moving away from South Australia.
The High Court of Australia considered the question of relocation in U & U.[16]The circumstances of that case were very different to the present one. For one thing it concerned a potential international relocation. One parent wished to restrain the other parent concerned by means of an injunction from taking the child outside of Australia.
[16] See U & U (2002) FLC 93-112
In the case the High Court held that the court was not bound to consider only the proposed arrangements put forward by each of the parties concerned. Rather, as the best interests of the child concerned remained the paramount consideration, it was open to the court to consider other potential outcomes.
Justice Gaudron expressed the issue as follows:
“…it is noteworthy that in this case there was no consideration of the possibility that the father could return to India permanently to avail himself of frequent and regular contact with his daughter. The failure to explore that possibility, particularly given the father's origins, his professional qualifications and family contacts in India, seems to me to be explicable only on the basis of an assumption, inherently sexist, that a father's choice as to where he lives is beyond challenge in a way that a mother's is not.”[17]
[17] Ibid at page 89,081
These comments appear apposite to this particular case. Although it may not be his preference, it is not beyond the bounds of possibility that Mr Marcus himself could move to Melbourne at some stage in the short to medium term to advance his relationship with X if the court ultimately determines that it is in the child’s best interests to remain living predominantly with her mother who may ultimately be adjudged to be able to parent the child most effectively in the location of her preference.
Just as Mr Marcus asks Ms Ellis to subjugate her preferences in life to what he perceives to be X’s best interests, so to Ms Ellis could ask Mr Marcus to do the same. In U v U Justice Hayne put it this way:
“If effect is to be given to those principles, [the principles underlying Pt VII of the Act] it must not be assumed that one parent (the father) cannot move and the that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in the place of his choosing. It is the interests of the child which are paramount, not the interests or needs of his parents, let alone the interests of one of them.”[18]
[18] U v U (supra) at p 89,103
Tension in the case arises from the mother’s unilateral action which at first blush does not appear to be child focussed but rather more motivated by the mother’s own personal interests. However, it also represents a dilemma for the court to restrict Ms Ellis’ entitlement to freedom of movement without there being any similar restriction being applied to Mr Marcus. Clearly this is the case. Necessarily part of the duty statement of being a good parent is the consequence that one’s personal hopes and plans become subservient to what is best for one’s child.
At this stage, I have grave reservations that for X to be able to interact for a period of three hours every three weeks or so would be adequate to enable X to maintain a meaningful level of relationship with her father, even if I was satisfied that the mother would be able to fulfil her commitment to such an arrangement.
In this context, X’s age and lack of a relationship with her father are highly relevant considerations. At this stage, I do not have any independent expert assessment of how X’s paternal relationship may be best sustained over distance.
Conclusions
At this stage, I do not consider that it is appropriate to apply the presumption of equal shared parental responsibility to the circumstances of X’s care. The parties do not communicate well and clearly have no current capacity to jointly parent X. In these circumstances, the focus for the court must be on where X should live pending final hearing and whether that hearing should be expedited.
It is likely to take approximately fourteen to sixteen weeks to prepare a family report in the case. In my view, given X’s age and the uncertainty about the quality of her relationship with her father, such a report is likely to be essential to the court in determining what is likely to be the best outcome for X given the unfortunate muddle that now surrounds her.
Thereafter, the court would be able to accommodate a three day final hearing on 7, 8 and 9 October 2014. In my view, it is better that there be a final hearing about the relocation issue as soon as is practicable. It is a period of around six months.
It is a period of significant length given X’s age. It is also potentially an important period in her development during which she will begin to form and consolidate relationships with other individuals important to her apart from her mother. The period of time before a child attains the age of three years is often central in this regard.
I have grave reservation that the mother’s proposals for time are neither sufficient for X to form a proper level of relationship with her father nor are reasonably practicable to put into operation. They are untested and unscrutinised. I also have fears that the mother is not likely to be well motivated in this regard. I am also uncertain as how much money Mr G is able to put towards funding the mother’s proposals for time.
The mother’s actions in moving to (omitted) Melbourne were reactive and ill-considered. Clearly, the father made it abundantly apparent to the mother that he did not agree with her plan to move X far away from him and his family, particularly at a time when he felt it was ripe to begin extending his time with X. The mother chose to ignore the father. In addition, there is some evidence that she actively deceived him. There are perils arising from such precipitate and possibly disingenuous conduct.
The case creates a dilemma for the court. Whatever is done the outcome will entail some threat to X’s best interests in some form or other in both the short and medium and also possibly longer term. It is best that these difficult decisions be made as fairly as possible and in a forum in which both parties are able to present all relevant evidence effectively and without one having an advantage over the other.
In my view, the provision of such a forum for adjudication to the parties will provide the most suitable mechanism to ensure that X’s best interests are preserved in the long term and her parents are given the best opportunity to have a workable parenting relationship into the future regardless of what is the outcome of the final hearing.
On balance, after what I hope is close consideration, I have come to the conclusion that it would not be in X’s best interests for the issue of her relocation to be pre-empted by the mother’s unilateral actions which do not appear to me to have been motivated by any significant crisis in her life.
Rather the difficult issue of relocation demands a thorough and considered hearing in which all the competing considerations can be weighed and balanced against one another. It would not be in X’s best interests for this process to be conducted against a background which the mother has engineered to her advantage through a process of self-help.
For all these reasons pending final hearing I have come to the conclusion that X should return to live in South Australia, notwithstanding the obvious disruption this will cause to her mother and older siblings. I am not disposed to giving the mother the opportunity to relocate to Adelaide if she elects to return to South Australia. Rather, I propose directing the return of X to (omitted).
The evidence indicates that the mother knows (omitted) very well indeed as indeed do her two other children. She has sources of familial support in the form of her mother in the town. This is also a more convenient location for Mr Marcus and will enable him to interact more readily with X if she continues to remain in the mother’s care.
I acknowledge that I have no authority to order the mother’s personal return to South Australia. However, if Ms Ellis elects to return to (omitted), I will order that X continue to live with her. The Victorian school holidays commence shortly. In these circumstances, 11 April 2014 is a reasonable timeframe to allow the mother to return X to (omitted) and determine what her own personal course of action will be pending final hearing.
In order to give consequence to these orders, if the mother elects to continue to live in (omitted), I will order that X come into the care of the father from 5:00pm on 11 April 2014. If the mother disregards the order for the child to be returned to (omitted) by this date, a recovery order will issue in respect of the child.
In the event that Ms Ellis does elect to return to (omitted) in tandem with X, I will order that Mr Marcus regularly spend time with her for regularly defined periods of time of moderate duration, not encompassing overnight time. In my view, such a regime will be commensurate with X’s current stage of development.
In this regard, I have in mind three periods each week of up to four hours in duration. This arrangement is another factor which militates against the mother being authorised to live in Adelaide rather than in (omitted).
In the absence of any agreement between the parties, in respect of when these periods should be scheduled I propose each Saturday between 10:00am and 2:00pm and each Tuesday and Thursday between 2:30pm and 6:30pm.
In the absence of agreement between the parties as to a suitable handover point, I will direct that the child be exchanged at the home of the maternal grandmother in (omitted).
I concede that these orders will have dramatic implications particularly for Ms Ellis in the short term. In addition, I regret any dislocation likely to be occasioned to Y, Z and Mr M. However, when Ms Ellis moved so precipitately she gave little consideration to the feelings of Mr Marcus and those associated with him. Such hasty actions have the potential to create extreme responses.
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 one hundred and ninety-four (194) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 25 March 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Jurisdiction
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Remedies
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Procedural Fairness
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