Maynard and Bullen
[2008] FMCAfam 1312
•9 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAYNARD & BULLEN | [2008] FMCAfam 1312 |
| FAMILY LAW – Child aged 8 – planned relocation by mother of child from Adelaide to Sunshine Coast – application of presumption of equal shared parental responsibility – father seeks shared care arrangement – necessarily such an arrangement has implications for mother’s plans to move to Sunshine Coast for employment and personal reasons – child’s entitlement to have a meaningful relationship with both parents – freedom of movement – evaluation of parties’ competing proposals – best interests. |
| Family Law Act 1975, ss.4; 60B; 60CA; 60CC; 61DA; 65D; 65DAA; 65DAC Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 McIntosh, J and Chisholm, R (2007) Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research Australian Family Lawyer Volume 20 No. 1 |
| B v B [2006] FamCA 1207 Goode v Goode (2006) FLC 92-286 AMS v AIF; AIF v AMS (1999) FLC 92-852 A v A: Relocation Approach (2000) FLC 93-035 U v U (2002) FLC 93-112 Bolitho & Cohen (2005) FLC 92-224 M & S (2007) FLC 93-313 Fragomeli & Fragomeli (1993) FLC 92-393 B & B: Family Law Reform Act 1995 (1997) FLC 92-755 D & S V (2003) FLC 93-137 Godfrey v Saunders 2008 FLR 287 Morgan & Miles [2007] FamCA 1230 H v W (1995) FLC 92-598 R & R: Children’s Wishes (1999) 25 Fam LR 712 |
| Applicant: | MS MAYNARD |
| Respondent: | MR BULLEN |
| File number: | ADC 1297 of 2008 |
| Judgment of: | Brown FM |
| Hearing dates: | 29 & 30 September 2008 |
| Date of last submission: | 30 September 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 9 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Whittle |
| Solicitors for the Applicant: | Howe Martin & Associates |
| Counsel for the Respondent: | Mr Bullen in person |
ORDERS
The parties have equal shared parental responsibility for the child [K] born in 2000 (hereinafter referred to as “the child”).
The child live with the mother.
From after 23 January 2009 the mother be permitted to relocate the child’s place of residence permanently to the Sunshine Coast area in the State of Queensland.
The father spend time with the child as follows:
(a)for the first three weeks of the forthcoming December/January South Australian school holidays;
(b)for four weeks of the Queensland December/January school holidays in each year commencing from 2009 onwards so that the four week period does not include Christmas Day in 2009 and each alternate year thereafter but includes Christmas Day in 2010 and each alternate year thereafter;
(c)for one half of each of the April and September/October Queensland school holiday periods from 9:00am on the first day of such school holiday period until 5:00pm on the day of the midpoint of such school holiday period;
(d)For the June/July Queensland school holiday period from 9:00am on the first day of such school holiday period until 5:00pm on the last Sunday of such school holiday period; and
(e)Such further and other times as may be agreed between the parties during such Queensland school holiday periods.
The mother be responsible for paying for the child’s necessary return airfares between Brisbane and Adelaide to facilitate the periods of time specified in order 4(a), (b), (c) and (d).
The mother be responsible for booking the child’s necessary airfares for the travel as set out in orders 4(a), (b), (c) and (d) with the mother to advise the father in writing or by email of those arrangements, including details of flight arrival and departure times and flight numbers fourteen (14) days prior to the date of such travel.
In addition to the periods of time specified in order 4(a), (b), (c) and (d) above the child spend one weekend per school term with the father in Adelaide from 5:00pm on Thursday until 5:00pm the following Monday (or Tuesday in the event that Monday is a public holiday in the State of Queensland) provided the father gives fourteen (14) days notice in writing or email of his intention to spend time with the child and is responsible for booking and paying for the child’s cost of return travel between Brisbane and Adelaide.
The father communicate with the child liberally by telephone, email, webcam, skype or other electronic means and both parties shall do all things necessary to facilitate such electronic communication.
The mother authorise the principal of each school attended by the child from time to time to send to the father:
(a)a photocopy of each school report concerning the child;
(b)an order form for each school photograph of the child; and
(c)any other relevant documents pertaining to the child’s school attendance, including academic records, progress cards, school magazines and information related to school related sports activities.
Each party has the right to attend at the child’s school for all events that are routinely attended by parents.
Should a medical emergency arise in relation to the child whilst the child is in the care of either of his parents then the parent concerned shall notify the other parent as soon as practicable of the time and nature of such medical emergency, the name and address of any treating medical practitioner and the hospital attended by the child and the location of the child.
The father and mother shall have the right to communicate with and obtain any information concerning the child’s physical and mental health and welfare direct from any medical practitioner, specialist medical practitioner, psychologist, psychiatrist, other health professional, counsellor and/or social worker.
The application and response herein be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Maynard & Bullen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 1297 of 2008
| MS MAYNARD |
Applicant
And
| MR BULLEN |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a relocation case. Ms Maynard "the mother" and Mr Bullen "the father" are the parents of [K] born in 2000. This case is about final arrangements for [K]’s care.
Ms Maynard would like to be able to live with [K] in the Sunshine Coast. The prospect of [K] living far away from him in Queensland fills Mr Bullen with dismay. Mr Bullen cannot easily leave Adelaide.
The parents in this case separated prior to [K]’s birth. They have never married and did not live together for any extended period. There were issues about [K]’s paternity, which were resolved through parentage testing.
Accordingly, for a number of intensely personal and historical reasons, Mr Bullen and Ms Maynard do not have an easy relationship with one another. Notwithstanding these difficulties, it is clear to everyone concerned that [K] has a close and loving relationship with both his parents.
From the mother’s perspective, she believes that she has done all that is practically possible to ensure that [K] has a viable paternal relationship. It is her position that she has done the "hard yards" of parenting [K], with only the barest of financial support from the father, whom she believes has been disinterested in major aspects to do with [K]’s life. This has led to some resentment, on her part, towards Mr Bullen.
From the father’s perspective, he believes that the mother is dismissive of his role in [K]’s life. As a result, he feels he has had to struggle with her to incrementally increase the time he has been able to spend with [K] and so extend and cement his relationship with his son, in what he views as an unconducive parenting environment, largely created by the mother. This has led to some resentment, on his part, towards Ms Maynard.
Mr Bullen is from Queensland, where he and Ms Maynard originally met, in April 1995. They were both involved in the hospitality industry at the time. Ms Maynard is originally from Adelaide, where she has strong family connections.
Ms Maynard returned to live in Adelaide in January 1997.
Mr Bullen remained in Brisbane and then went overseas, until he came to Adelaide, briefly, in early 1999. [K] was conceived later that year.
The parties have no lengthy history of living together, as a family, in the period after [K] was born. Although they did reconcile, for [K]’s sake, for around six months, in 2004. Otherwise they have lived apart. These various factors do not help them to have a consensual parenting relationship in respect of [K].
Accordingly, Mr Bullen did not have any strong connections, in Adelaide, before [K]’s birth and never planned to live here. Rather, he has chosen to settle in Adelaide because of [K] and his desire to have a close relationship with him.
From Mr Bullen’s perspective, the time is now right for [K] to be parented in an equal time arrangement [Family Law Act section 65DAA(1)].[1] It is also his position, which is not disputed by
Ms Maynard, that he and she should have equal shared parental responsibility for [K] [section 61DA].
[1] Hereafter, each reference in [] is a reference to the Family Law Act 1975 (Cth).
Currently, Mr Bullen sees his life unfolding in Adelaide. He has formed a significant relationship with Ms T, to whom he is engaged. More importantly, he and Ms T have a child, [L], who was born in 2007. They have also jointly purchased a house at [P], which is near to where [K] and Ms Maynard currently live in [N].
Ms T has lived in Adelaide for most of her life. She has a good job as a [omitted]. She has hopes of a promotion with the S.A. Department of [omitted]. She does not want to uproot herself and [L] away from Adelaide. For obvious reasons, Mr Bullen does not believe that he can live away from Ms T and [L].
In July of 2007, Ms Maynard became involved with Mr W. The two are engaged to be married. Their marriage is scheduled for October 2008. Mr W has lived at Pelican Waters, in south-east Queensland, for around six years.
Mr W is well settled there. He owns a large and comfortable house at Pelican Waters, in which he lives. He owns another investment property in nearby Caloundra. Mr W has an interest in the [omitted] industry, although currently he is employed as a [omitted]. Mr W has aspirations to open his own [omitted] business on the Sunshine Coast and sees his future there.
Needless to say, Mr W is an enthusiast for the climate, opportunities and way of life offered by the Sunshine Coast, an enthusiasm now shared by Ms Maynard. As a result of her relationship with Mr W, she now wishes to move to Pelican Waters, with [K], so that she can pursue her life and destiny with Mr W there.
Necessarily, such a move will have implications for [K]’s level of relationship with his father and his half‑brother, [L]. An equal time arrangement will be impossible. In these circumstances,
Ms Maynard proposes that [K] spend time with his father for around half of each school holiday period and for two extended weekends, during each school term.
Her proposal would involve [K] making twelve air flights each year between Brisbane and Adelaide. She proposes that she would pay for eight of them and Mr Bullen for four. It is her position that she is committed to [K] maintaining his relationship with his father and that her proposal, although not perfect, will ensure that this occurs.
There is no question of Ms Maynard moving interstate without [K]. She would not countenance a situation whereby [K] lived predominantly with his father and saw her during school holidays. In particular, she does not believe that such an outcome would be in [K]’s best interests because she has been his primary carer up to this stage of his development.
Because of his level of commitment to Ms Maynard, Mr W will move to Adelaide, if Ms Maynard and [K] are unable to relocate to Pelican Waters. However, from his perspective, a move to Adelaide will be seriously detrimental financially, as he will have to sell his properties in Queensland. In addition, such an outcome would not be his personal preference and would have implications for his own family, particularly with his son [X].
It is also an outcome which is hardly likely to make either he or
Ms Maynard well disposed towards Mr Bullen. Inevitably, they will think that Mr Bullen is dictating to them how and where they should lead their lives for the indefinite future.
For his part, Mr Bullen is vehemently opposed to [K] moving far away from where he, [L] and Ms T live. He asserts that the mother’s proposals for [K] to spend time with him, in the event of the relocation, are too arduous for a child of [K]’s age and potentially too expensive to be viable in the long run.
More importantly, he fears that such an outcome will result in his relationship with [K] becoming stilted and distant rather than ensuring that it maintains its current level of meaning and intimacy. He will be a "holiday dad" rather than a fully involved parent of [K], who interacts with him on a daily basis.
In the event that Ms Maynard is unable to move with [K] to Queensland, she would oppose him being parented in an equal time arrangement by her and Mr Bullen. It is her position that her and the father’s parenting styles are too incompatible and their level of communication too poor to make such an outcome either practicable or likely to be in [K]’s best interests.
Needless to say, Mr Bullen has a different take on this issue, believing that it is illustrative of the mother’s dismissive and uncooperative attitude towards him and so an indication of her poor attitude towards the responsibilities of being a parent, one of which is to ensure that any child concerned has a meaningful relationship with the other of his or her parents.
As this brief introduction shows, this is a complex case. Because the primary emphasis, in children’s cases, is on the best interests of the child concerned [section 60CA], it is usual for an independent expert to be commissioned to provide evidence to the court about the needs of any child involved and, if appropriate, for the child’s views about an appropriate outcome to be canvassed.
Such a report was prepared in this case, by an experienced psychologist, Ms Kerry Cavanagh. Ms Cavanagh does not recommend that Ms Maynard and [K] move to live in Queensland. Rather, she recommends that [K] live with each of his parents, on an equal shared care basis, from the beginning of the forthcoming summer school holidays.
Ms Cavanagh based her recommendations on her perception and opinion on a number of salient issues in the case. These can be summarised as follows:
·[K] told her clearly and unequivocally that he wishes to remain living in Adelaide.
·[K] has an excellent relationship with each of his parents.
·[K] has a loving and protective relationship with [L].
·[K] is happy at his current school, where he is well liked and has made many friends.
·Mr Bullen has seen [K], on a regular basis, since his birth. As such, he is to be regarded as a "significant presence" in [K]’s life.
·It is Ms Cavanagh’s perception that Ms Maynard is dismissive of the relationship between [K] and [L]. For her part, Ms Cavanagh believes that the relationship between the two siblings is highly important to each of them, both now and, most likely, for the remainder of their lives.
·As such, Ms Cavanagh is concerned that the proposed relocation has the potential to significantly damage this important relationship in both [K] and [L]’s lives.
·In addition and more importantly, Ms Cavanagh believes that the relocation has the potential to "demolish" [K]’s life, particularly so far as his relationship with his father is concerned.
·By necessary implication, Ms Cavanagh was not particularly impressed with Ms Maynard’s motivation for wanting to move to Queensland, particularly that it related to "lifestyle" changes.
·In addition, Ms Cavanagh believes that the travelling between Queensland and South Australia advocated by Ms Maynard is unnecessarily arduous for a child of [K]’s age and development.
Ms Cavanagh’s recommendations can be summarised in the following extract from her report:
"I am not convinced that a good lifestyle is an adequate substitute for a loving, caring and close relationship between [K] and his father..."[2]
[2] See family report at page 10.
For obvious reasons, Mr Bullen is content to accept Ms Cavanagh’s recommendations in this case. Ms Maynard asserts that the report is misconceived, particularly in terms of its assessment of her relationship with [K]. In addition, she asserts that Ms Cavanagh has failed to consider what are the likely implications, for her capacity to parent [K] effectively, if she is compelled to live in an environment which she believes is not conducive to her and Mr W’s level of personal contentment.
It is clear to me that both Ms Maynard and Mr Bullen wish to play as large a role as possible in [K]’s life, as he grows to maturity. Both of them wish to be involved in every aspect of their child’s life - his sporting activities; his education; his intellectual and social development; as well as having the opportunity to just "hang out" with [K]. These mutual parental aspirations are reflected in recent amendments made to the Family Law Act 1975 (Cth).
Concurrently with these aspirations, Ms Maynard wishes to live in Pelican Beach, where she believes she will be more financially secure and happy, as she will be pursuing career, relationship and lifestyle opportunities of her own choosing, untrammelled by interference from Mr Bullen. These are legitimate expectations, on her part, which the court is required to consider.
Mr Bullen does not wish to move away from Adelaide, where he is now well settled with Ms T and [L]. Ms T has a good job. She and Mr Bullen have bought a house together. For obvious reasons,
Mr Bullen does not want [K] to live outside of Adelaide. He wants [K] to be as close to him as possible, in both geographical and emotional terms.
However, if Ms Maynard feels that she has been compelled to remain living in Adelaide, because of the father and the satisfaction of his aspirations, at the expense of her own, she will be unhappy and potentially rendered more bitterly disposed towards Mr Bullen, which cannot be a satisfactory outcome so far as any cooperative arrangement for the parenting of [K] is concerned.
In addition, such a decision will have ramifications for Mr W, who is happy and well settled in Pelican Waters. He does not want to move and disrupt his teenage son [X], who is currently living with him and needs his support as he is about to start an apprenticeship in Caloundra.
Mr Bullen’s parents, although separated, live in Queensland. As such, it is Ms Maynard’s position that her proposed move will enhance the potential for [K] to have a close relationship with his paternal grandparents.
Mr and Mrs B Senior do not accept that Ms Maynard is well motivated towards them and the development of their relationship with [K]. They support their son and his wish for [K] to remain living in Adelaide.
Ms Maynard’s parents live in South Australia. I have no reason to think anything other than that they, too, love [K]. However, as is invariably the case in matters such as this one, they support their daughter and want the court to make the orders which will best suit Ms Maynard.
Accordingly, 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. The various options 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 a child have separated and, for legitimate reasons, wish to take different directions as to where they will live in future.
On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees fit, both as a parent and as an individual separate from the other parent concerned. On the other hand, it is the right of a child to maintain a meaningful relationship with both his or her parents, regardless of the state of the relationship between the parents concerned.
However, there is no principle of law that requires separated parents to live indefinitely in close proximity to one another. Such a principle would offend our conceptions of personal freedom and be unduly restrictive.
These proceedings are directed to resolving this complex dispute between the parties. When parents, who no longer live together, ask the court to determine where their child should live, it is the best interests of that child which are paramount. The court must decide which of the parties’ competing proposals is most likely to advance the best interests of the child concerned.
It is also open to the court to consider other outcomes, which it considers likely to achieve this goal, independent of the positions of the parties themselves. However, at the same time, the court cannot overlook the legitimate expectations of a parent, as to where he or she wishes to live in future.
The balancing of these considerations has been described by Warnick J as both "a delicate interplay of concepts" as well as "an imbroglio of principles."[3] The level of complexity is intensified by the fact that the Commonwealth parliament has recently passed the provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006.
[3] See B v B [2006] FamCA 1207 (delivered 15 November 2006) at paragraph 1.
Accordingly, the law relating to arrangements for the parenting of children is not well settled, particularly in regards to the issue of parental relocation. For obvious reasons, such issues are likely to precipitate significant controversy between the parents specifically involved in any proposed relocation and amongst members of the community generally.
For all these reasons, this is a difficult case, which presents no ready or obvious solutions. Whatever is the ultimate outcome, it will have significant deficits so far as [K] is concerned. In these difficult circumstances, I must remain focused on [K]’s best interests, which remain my paramount concern.
Legal principles applicable
Part VII is the part of the Family Law Act which deals with orders relating to children. The service of [K]’s best interests is the most important consideration in this case [section 60CA].
The aims and principles of Part VII [section 60B] emphasise the desirability of a child’s parents being as closely involved as possible, in a meaningful way, in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm arising from the child being subjected to abuse, neglect or family violence.
These principles also speak of the entitlement of a child to spend regular periods of time with those who are significant to them. Obviously these people include parents, but also other relatives, including half‑siblings and grandparents [section 60B(2)(b)].
Given the importance of both parents being closely involved in their child’s life, the starting point for any parenting order is for the court to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA].
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 [section 61DA(4)].
As previously indicated, regardless of the outcome, of the mother’s application to move interstate, it is agreed between the parties that they should have equal shared parental responsibility for [K].
However, the presumption itself does not determine the extent of time the child concerned should spend with each of his or her parents. This is determined by section 65DAA.
If the presumption applies, the court is required to consider firstly whether the child should live with his or her parents for equal periods of time, provided that such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, on either of these grounds, it is then required to consider the child spending time with each of his or her parents for "substantial and significant" periods. Again, such an outcome is subject to considerations of the child’s best interests and reasonable practicability.
The family law legislation emphases the importance of parents being actively involved in their children’s lives - in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions - so long as this involvement is commensurate with protecting the children concerned from harm.
The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly, a court must be satisfied that such arrangements are likely to be in the best interests of the children concerned and, secondly, the arrangements are likely to be reasonably practicable to put into operation.
In considering any child’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matters I must consider - primary considerations and additional considerations.
There are two primary considerations - firstly, the need to ensure that any child concerned has a meaningful relationship with both his or parents - secondly, the need to ensure the child is protected from harm, both physical and psychological harm, which may arise if he or she is exposed to any kind of abuse or neglect, including family violence.
One of these primary considerations is not to be regarded as being pre‑eminent to the other. Which consideration is to be given pre‑eminence must depend on the overall circumstances of the case involved. Thankfully, in this case, there are no issues raised relating to family violence or any neglect or abuse of [K], who is a much loved and well cared for child.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
In assessing the various considerations arising under section 60CC(3) the court is required to assess the degree of participation or otherwise of the parents concerned in the lives of their child both before and after separation.
This assessment includes how much time and communication each parent has had with the child concerned; the degree of their involvement in long‑term decision‑making; and their fulfilment of financial obligations towards the child concerned [section 60CC(4) & (4A)].
In addition, the court is also required to consider how the parents have each facilitated the involvement of the other in these aspects of their child’s life. These considerations emphasise the benefits for children of effective co‑parenting and the obligations on parents to facilitate it.
In this particular case, Ms Maynard places particular emphasis on these provisions. It is her case that Mr Bullen has been derelict in the provision of financial support for [K] and has left decision‑making, particularly in regards to [K]’s education, to her.
For his part, Mr Bullen asserts that Ms Maynard has not willingly facilitated his involvement in [K]’s life but has sought, either actively or passively, to exclude him from it, culminating in her desire to move [K] away from Adelaide to the Sunshine Coast.
Issues of practicality, in implementing either a shared time or substantial and significant time arrangement, are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement a shared care‑type arrangement for their child; the parties’ ability to communicate with one another and to solve parenting problems consensually; and more importantly, the likely impact of such arrangements on the child concerned.
If, for whatever reason, the court reaches the conclusion that the presumption of equal shared parental responsibility does not apply and so there is no need for it to actively consider either an equal time or substantial and significant time arrangement, the court is still required to put into place the outcome which it considers will best serve the interests of any child concerned, according to the various criteria set out in section 60CC and subject to the objects and principles contained in section 60B. Pursuant to section 65D, the court is empowered to make whatever parenting order it thinks proper.[4]
[4] See Goode v Goode (2006) FLC 92-286 at 80,899 [paragraph 65].
The application of the presumption of equal shared parental responsibility and the parenting arrangements which flow from it are rendered particularly problematic in cases involving one parent wishing to relocate permanently any child concerned far away from the other parent involved. Obviously, in such circumstances, an equal time, or a substantial and significant time arrangement, becomes highly impracticable, if not impossible.
In practice, regardless of the application of the presumption arising under section 61DA, the optimal parenting arrangements, envisaged by the legislation concerned, become redundant, unless restrictions are placed by the court on the freedom of movement of either one or both of the parents concerned. This, of itself, raises complex constitutional and legal issues.
Pursuant to rights read by the High Court into the Australian Constitution, Australian citizens, and those resident in this country, have a right to freedom of movement, both internally within Australia and indeed overseas. Australia is a free and democratic society, which prizes the rights of its citizens to live where and how they choose.
These principles are often difficult to reconcile, in relocation cases such as this one, with the entitlement children have, pursuant to the Family Law Act, to maintain and develop relationships within their family, which are likely to be significant to them, both in the short and long term.
In brief, the High Court has determined that although the child’s best interests are the paramount consideration, they are not the sole consideration for the court. A parent’s aspirations as to where and how he or she proposes to live in future is something which the court is required to take into account. However, these expectations must yield to the child’s ultimate best interests.
In AMS v AIF; AIF v AMS[5] Kirby J set out nine general propositions, derived from the relevant authorities, concerning relocation, which can be summarised as follows:
[5] AMS v AIF; AIF v AMS (1999) FLC 92-852 at 86,041-86,043
·Each relocation case is unique and so the facts of each such case require a careful and delicate analysis;
·As a result, no single factor will be dispositive in a relocation case. Each case requires the application of an individualised judicial discretion. Although the child concerned’s welfare is the paramount consideration, it is not the only consideration for the court;
·Accordingly, the court cannot ignore the legitimate expectation of a parent that he or she should be free to live how and where he or she chooses in future. There is no universal rule that requires separated parents to live in close proximity with one another to ensure that their children have the optimal relationship with both their parents;
·Democratic societies, for obvious reasons, place a high store on the entitlements of adults to decide where they will live. Accordingly, courts are reluctant to interfere with a parent’s right to freedom of movement, particularly if that parent is the unchallenged custodian of the child concerned. Interference, by court order, in the life of such a parent, may lead to resentment on that parent’s part, which, of itself, is likely to have negative implications for the child concerned;
·However “the touchstone” remains the best interests of the child concerned and not the wishes and interests of parents;
·One of the primary functions of Family Law legislation is to provide mechanisms for separated spouses to begin a new life for themselves, independently of their former partners. Accordingly, any legislative rule regarding the right of a child to maintain frequent and direct relations with both parents cannot be interpreted as an absolute one;
·Courts in Australia have a more relaxed attitude to relocations within Australia, when compared to overseas relocations, because of the availability of reliable transport and telecommunication facilities within Australia and because of the homogeneity of social and cultural factors in this country;
·When considering a relocation application, the court will be required to assess the adequacy of new contact arrangements with the other parent concerned, and particularly whether those arrangement are in the best interests of the child concerned.
·The court retains the discretion to depart from the norm of shared parental responsibility, in appropriate cases.
In A v A: Relocation Approach,[6] the Full Court of the Family Court, following the decision of the High Court, stipulated that certain guidelines should apply to the determination of a parenting case that involves a proposal to relocate the residence of a child.
[6] A v A: Relocation Approach (2000) FLC 93-035
It held that the best interests of the child remained the paramount consideration but not the sole consideration. As such, the court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation. It is necessary for the court to evaluate each of the proposals advanced by the parties.
That evaluation must assess the advantages and disadvantages, for the child’s best interests, of each proposal and consider each relevant section 60CC factor. When evaluating the proposals, the court must have regard to the fact that neither party bears an onus (the court must have regard to the whole of the evidence relevant to the best interests of the child) and the importance of a party’s right to freedom of movement.
In particular, the court should be careful not to fall into the error of dissecting a relocation case into separate or discrete issues, namely who of the parties concerned should have primary responsibility for the care of the children concerned and secondly whether that parent should be “permitted” to relocate with the child.
The High Court again considered the question of relocation in U v U.[7] This was an international relocation case. In the case, the High Court again reiterated that a first instance court was obliged to give careful consideration to the proposed arrangements put forward by each party, but was not specifically bound by them.
[7] U v U (2002) FLC 93-112
As the best interests of the child concerned remained the paramount consideration, it was incumbent upon the court to investigate the possibility of the other parent moving to be closer to the child concerned, rather than first considering restraining the parent who wished to relocate the children from moving.[8]
[8] U v U per Hayne J at 89,103
This was so because proceedings concerning the welfare of a child are not exclusively adversarial proceedings. Accordingly, the court could examine outcomes, independent of the positions primarily put forward by the parties themselves. This was said to be a prelude to the “deeper inquiry” of what will best serve a child’s best interests.
Courts, such as this one, have also recently been cautioned about applying a too formulaic approach to relocation cases. Rather, it has been said that the proper approach is to weigh and assess each of the competing proposals of the parties, against the yardstick provided by section 60CC and consider all the other relevant factors, including the right of freedom of movement of the parent, who wishes to relocate. However the court must always bear in mind that ultimately the decision it makes must be the one which is in the best interest of the child concerned.[9]
[9] See Bolitho & Cohen (2005) FLC 92-224 at 79,699
As a result of these considerations, I conclude that the main thrust of the enquiry, in this case, remains what outcome is likely to best serve the [K]’s best interests. The recent amending legislation has not specifically prohibited a parent relocating with a child because such a move will have implications for the nature of the child/parent relationship with the other parent concerned nor has it imposed any special onus on the parent wishing to relocate.[10]
[10] see M & S (2007) FLC 93-313 per Dessau, J. at 81,386
The best interests of a child are ascertained by a consideration of the objects and principles contained in section 60B and the various considerations listed in section 60CC(2) and (3). Accordingly, the best interest test remains “integral” to the determination of any parenting issue, including the difficult issue of relocation.[11]
[11] ibid at 81,386
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 thus 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.
If such a principle was indiscriminately applied, in children’s cases, it would necessarily result in the negation of a parent’s entitlement to freedom of movement. Parents would never be able to move with their children following relationship breakdown. The court cannot ignore this entitlement. If the legislature intended to curtail this right, it would have specifically done so.
Of itself, a parent’s freedom of movement may have implications for the welfare of the child concerned, particularly if that parent has principle responsibility for the care of the child, who is subject to the relocation. For obvious reasons, a parent’s ability to function effectively, as a parent, is likely to be important to the child’s welfare.
It is often said to be axiomatic that a happy parent is likely to be a more competent parent. Essentially, if the court unduly interferes with the way of life which a “custodial” parent legitimately wishes to adopt, the resulting frustration and bitterness may adversely affect the child concerned.[12]
[12] See Fragomeli & Fragomeli (1993) FLC 92-393 at 80,023
As the child’s best interests remain the paramount consideration in the outcome of any relocation proposal and as one of the components of a child’s best interests 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 the child to spend time with the other parent concerned. Such considerations may be crucial in determining whether a particular relocation is likely to be in a child’s best interests and so should occur.
The potentially deleteriously consequences, for children, of locating away from one of their parents, compound with the distance involved. The tyranny of distance develops by degree.[13] For obvious reasons, it is likely to be more difficult for a child to maintain a meaningful relationship with a parent, if an international relocation is involved or the move involved is to a far distant part of Australia – say from Cairns to Hobart or Broome to Bairnsdale.
[13] See B & B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,196
The age of the child concerned may also be a relevant consideration, as is the state of development of the child/parent relationship involved and the parties’ financial capacity to maintain such a relationship, over distance [section 60CC(3)(e)]. It is a common occurrence for a parent to move voluntarily away, from the 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. For obvious reasons, one of the frequent consequences of marital breakdown is that parties concerned form new relationships. Accordingly the interests of new partners become involved.
In such 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.[14] As Kay J pointed out in Godfrey v Saunders[15] “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”.
[14] See D and S V (2003) FLC 93-137 at 78, 280
[15] See Godfrey v Saunders 2008 FLR 287 at 298
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. Rather, what the court is required to do is to weigh and balance the primary considerations and the additional considerations in respect of the parties’ competing proposals.
Depending on factors such as the age of the child, the wishes of the child, the nature of the relationship between the child and the parents concerned, the proposals of the parties, or indeed the proposals found by the judicial officer concerned to be in the child’s best interest, it is open to the court to make any of the following orders:
·the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
·the child lives with the non-relocating parent and spends time with, and communicates with, the other parent;
·the child lives equally with the parents concerned in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
·the non-relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with the one parent and spends time with the other.[16]
[16] See Morgan & Miles [2007] FamCA 1230 per Boland J at paras. 58-59
In conclusion, the case requires no ready solution. Every relocation case is different and requires careful analysis. As is apparent from this survey of the law, the exercise I must undertake is “to attempt a resolution of often irreconcilable considerations”[17], which arise from complex issues.
[17] See AMS v AIF (supra) per Kirby J at 86,041
However, the ultimate issue in the case is the best interests of the children concerned. In this regard, the parties’ competing proposals and any other outcomes which are reasonably open to the court must be weighed and assessed, against the yard stick provided by section 60CC and the principles which underpin it.
In addition, in performing this function, the court itself may have to form its own proposals, independently of those of the parties themselves in order to achieve the best outcome for the child concerned. However, such assessment must not occur in a vacuum, isolated from any considerations of Ms Maynard’s right to freedom to movement.
The documents relied upon
The mother relies on the following documents:
i)an affidavit of herself filed on 4 September 2008;
ii)an affidavit of Mr W filed 5 September 2008; and
iii)an affidavit of Dr W filed 10 September 2008.
The formal orders, which the mother seeks in these proceedings, are as set out in her further amended application filed 7 August 2008. The orders sought are comprehensive and I will not set them out verbatim at this stage. They are annexed to these reasons for judgment at Schedule A.
Essentially, the mother wishes orders to be made which would allow her and [K] to live permanently together on the Sunshine Coast. In this eventuality, she would propose [K] spending half of the April and September/October school holidays; the majority of the mid year school holiday; and an alternating yearly regime of either four or three weeks during the end of the year school holidays; with the father in Adelaide.
In addition, she proposes that orders be made which would allow [K] to spend time with his father on up to two extended weekends per school term. As previously indicated, she is willing to assume financial responsibility for eight return flights per year for [K] to fly between Brisbane, Adelaide and return provided Mr Bullen pays for the remaining flights required.
Ms Maynard’s amended application did not deal with the orders she would propose in the eventuality the court was not disposed to accede to her primary position. This issue is dealt with in her case outline document. If she is not able to live with [K] in Queensland, she proposes that [K] should continue to live predominantly with her and spend alternate weekends from after school on Thursday until the commencement of school the following Monday during the school year and for one half of each school holiday period.
In both eventualities, Ms Maynard concedes that the parties should have equal shared parental responsibility for [K] but it is her view that it would not be in [K]’s best interests for there to be either an equal time or substantial and significant time arrangement in respect of him.
The father relies on the following documents:
i)two affidavits of himself filed on 16 May and 22 September 2008 respectively;
ii)an affidavit of Ms T filed 22 September 2008;
iii)an affidavit of his mother, Ms B, filed 22 September 2008;
iv)an affidavit of his father, Mr B, filed 23 September 2008.
The final orders sought by the father are set out in his response filed 16 May 2008. Essentially he wishes the court to make orders which would not allow [K] to live permanently outside of Adelaide. Accordingly, in the event that Ms Maynard does decide to live in Queensland, he would want orders made that would see [K] living with him and spending time with his mother, in Queensland, at times to be agreed between the parties.
As previously indicated, it would be his position that, if Ms Maynard elects to remain living in Adelaide, [K] should spend equal periods of time with both his parents. He and Ms Maynard agree that, whatever is the outcome, they should have equal shared parental responsibility for [K].
Mr Bullen acted on his own behalf in these proceedings. In a formal sense, he has not turned his mind to the orders, which he would seek, if the court allows [K] to live in Queensland. In this eventuality, he would want to spend as much time as possible with [K], although he is concerned that the mid term proposals made by Ms Maynard are both impracticable and likely to be too arduous for [K].
Mr Bullen has seriously considered the possibility of moving to live in Queensland in tandem with Ms Maynard. But due to the implications of this move for Ms T and the importance of his relationship with her to them both, he has ruled out this possibility as being realistically achievable in the foreseeable future.
Of the witnesses outlined above, all but Mr and Mrs B Snr and Dr W gave additional oral evidence and was cross examined. The only other witness called in the proceedings was the family report writer, Ms Cavanagh. Again, she was cross examined by both parties.
In these reasons for judgment, finding of fact made on the balance of probabilities, following my observations of each of the witnesses concerned. In what follows, statements of fact constitute findings of fact.
The evidence
This was an emotionally gruelling case for all concerned, myself included. From both parties’ perspectives, there is much at stake and both believe that their future chances of happiness are likely to depend upon its outcome. As such, I did not doubt for a moment the sincerity of the positions advocated by either Mr Bullen or
Ms Maynard.
Ms Maynard did not chose to fall in love with a man from Queensland for any sinister or ulterior motive. Although she can now see much to be critical of in her current circumstances, particularly that her home is small and in an area bedevilled by a high rate of crime, she has not long harboured a desire to leave Adelaide, where she has previously been contented. This decision has come about because of her love and commitment for Mr W and her genuinely held view that she and [K] will be better off in Queensland.
Accordingly, I do not think that the mother’s motivation for bringing these proceedings stems in any way from some unresolved sense of grievance against Mr Bullen or flows from the parties’ unsatisfactory post separation politics. Rather, the difficult situation has come about because of unforeseen exigencies in Ms Maynard’s life, particularly that she would meet and fall in love with Mr W.
There can be no doubting the sincerity of Mr Bullen’s distress at the thought of [K] living far away from him in Queensland. He broke down on several occasions during the proceedings. As such his devotion to [K] is beyond question. Accordingly, I have no doubt that he sincerely believes the plan for [K] to leave Adelaide is just not a good idea, from [K]’s point of view.
Mr Bullen has no great regard for Ms Maynard perhaps an inevitable consequence of these proceedings - but, like her, I do not think that he has been motivated by any sense of long held grievance against Ms Maynard to adopt the position, which he has done, in these proceedings. I did not perceive that Mr Bullen was indifferent to the intense difficulties that the case presents for Ms Maynard. As such, Mr Bullen harbours no ambitions to sabotage Ms Maynard’s happiness or future plans to satisfy his own emotions.
Accordingly, in my assessment, both the father and mother were honest witnesses, who attempted to tell the truth, as they each saw it, about their relationship with each other and with [K] and what was likely to be best for [K].
Unfortunately, but for obvious reasons, the parties in adversarial proceedings, such as these, tend to emphasise, in the presentation of their respective cases, the failings of the other party concerned and minimise their own. In addition, the extreme emotions created by such proceedings very often blur perceptions and recollections of past events.
I believe that both parties, in this case, have followed this very human tendency. The mother’s commencement of these proceedings has inaugurated a freezing of whatever previous cordiality was present in the parties’ parenting relationship and now each views the other with a marked level of suspicion and each is searching for some failing or lapse of parenting in the other to buttress their respective position in this case.
As a consequence, neither Ms Maynard nor Mr Bullen can find much to commend in the other’s parenting of [K], although to their mutual credit, both acknowledge that [K] loves the other very much indeed. Child support is a particular bone of contention between the parties.
Ms Maynard sees Mr Bullen as emotionally needy and too dependent upon [K]. As such, she believes that she is better qualified than Mr Bullen to determine what is likely to be in [K]’s best interests. On the other hand, Mr Bullen finds Ms Maynard to be dictatorial in her attitude towards him and his interactions with [K]. In his words, he “always felt it was [Ms Maynard’s] way or no way.”
I have no reason to doubt the personal validity of either party’s view of the other. They most certainly do not have an easy or empathetic relationship with one another. However, I do not think that
Mr Bullen has ever been disinterested in [K]. Nor do I think that
Ms Maynard has actively worked to exclude Mr Bullen from [K]’s life.
Necessarily the parties have quite different personalities and, accordingly, bring different attributes and strengths to the parenting of [K]. As such, both have much to offer him. However, their mutual poor regard for one another has caused them both to have a long list of grievances, both significant and petty, to hold against the other.
Neither Ms Maynard nor Mr Bullen are wealthy people. They are each to be regarded as low or middle income earners. Ms Maynard, to her credit, like many parents, aspires to [K] having access to the best things in life, particularly in respect of his education. As a result, she has made many personal and financial sacrifices for [K].
It is her perception that Mr Bullen has not matched her level of sacrifice and has chosen to minimise his income by working in lowly positions. As a result, she feels hard done by, particularly now as Mr Bullen has stepped in to frustrate her ambitions to achieve greater financial security for herself by moving to Queensland.
For his part, Mr Bullen asserts that he has done nothing, either morally wrong or illegal, in respect of how he has chosen to earn his living and the personal priorities he has followed in life. He asserts that he has always paid the amount of child support assessed of him. In Ms Maynard’s view, it was always open to him, if he was genuinely committed to [K], to get a “proper” job, as she sees it.
However, notwithstanding her many entrenched criticisms of
Mr Bullen, Ms Maynard conceded that Mr Bullen was generally a good man and [K] “worships his dad”. I accept that this is so and also that [K] has a deep and secure affection for his mother, who has been his principal provider of care for the vast majority of his life to date.
a)Background
Ms Maynard was born in 1969. Like Mr Bullen, she has a history of working in the hospitality industry. Currently, she is employed at the [omitted] in Adelaide in a management position. Her income is $36,000 per annum.
Mr Bullen was born in 1972. He is employed as a casual [omitted] at the [omitted]. Currently, he works between 15 and 35 hours per week but generally around 20 hours. Ms T is engaged in full time employment. Accordingly, Mr Bullen devotes much of his time to providing care for [L].
For the year ending 30 June 2008, Mr Bullen’s taxable income was just under $34,000. This was down on his income for the previous financial year, which was $45,760. It is his position that Ms T is the main breadwinner in his family and he discharges more of the parenting responsibilities for [L] in particular and for [K], when he is visiting.
The parties had an intermittent relationship with one another from 1995 onwards. As has previously been indicated, for long periods of time they lived in separate States. There was some dispute regarding [K]’s paternity, which was resolved through DNA testing. Thereafter, when [K] was very young, Mr Bullen began to spend brief periods of time, up to one hour per week, with [K], in
Ms Maynard’s presence.
Following [K]’s first birthday, this time was gradually increased and by the time [K] was two, the father was spending two nights per fortnight with him. When [K] started school, the time was changed again to an alternate weekend regime.
I have no doubt that Mr Bullen was desirous of spending as much time as possible with [K]. In early 2005, the parties reconciled their relationship but did not live together. The impression I have is that this was done for [K]’s benefit. However, the reconciliation did not work out.
Thereafter, from August 2005 onwards, [K] spent alternate weekends from 3.00pm on Friday until 4.00pm on Sunday with
Mr Bullen, as well as from after school on Tuesday until the commencement of school the following Wednesday in each week. This regime has remained in place until the present time, although it is Mr Bullen’s position that from mid-2007 onwards he has been pressing Ms Maynard to allow him to spend more time with [K].
Given these arrangements, I have no doubt that Mr Bullen has been an active and constant presence in [K]’s life up to this stage. This must be accounted as being to the credit of both his parents.
The impression I have is that Ms Maynard has been somewhat protective of [K]. Certainly, Mr Bullen feels that he has had to struggle to increase his time with [K] and demonstrate his bona fides. In addition, he complains that he has assumed more of the responsibility for [K]’s travel arrangements to spend time with him.
Accordingly, it seems to me that the parties’ parenting relationship has been riven by many tensions and has waxed and waned in its potential to be a co-operative one. Mr Bullen has felt that he has had to struggle for proper recognition as [K]’s father, whilst
Ms Maynard has felt she has received only tokenistic support from Mr Bullen.
b) Child Support
Mr Bullen has had a number of jobs in the hospitality industry since [K] was born. He has been, in the main, a casual worker. Initially, he paid child support directly to Ms Maynard but he fell behind with it. Accordingly, since that time, he has always arranged for child support to be deducted directly from his wages.
Currently, Mr Bullen is assessed to pay Ms Maynard $11.00 per week child support for [K]. In the past, due to disparity in their respective incomes, Ms Maynard was assessed to pay Mr Bullen $2.00 per week child support. In addition, Mr Bullen has provided estimates of his anticipated income to the Child Support Agency, on which assessments of child support have been based.
The issue of financial support for [K] has long been a bone of contention between the parties. Mr Bullen acknowledged that he kept “tabs” in respect of his liability to pay child support. It is Ms Maynard’s perception that Mr Bullen has arranged his affairs so as to ensure that he pays her the minimum amount possible of child support notwithstanding that he knows [K] is currently receiving a private education and she herself is not in a particularly strong financial position.
I have been provided with a print out of all child support paid in respect of [K] between 31 August 2000 and 29 September 2008.[18] This indicates that a sum of $21,628.78 has been paid. On my calculations, this equates to an average amount of $225 per month or around $52.50 per week. On this basis, it appears irrefutable that the greater proportion of the burden of providing for [K]’s financial needs has fallen on Ms Maynard’s shoulders. Obviously, she has not been in a position to tailor her affairs to escape this responsibility.
[18] see Exhibit D
Mr Bullen’s case is that he has always paid the child support which has been assessed against him and he has been a lowly paid worker, who has tailored his hours of work to enable him to spend as much time as possible with [K]. Ms Maynard’s position is that Mr Bullen is a capable and intelligent person, who could have got better paying jobs if he had wanted to.
The dynamics of the parties’ relationship have been poor more often than not. It is Mr Bullen’s perception that he has been excluded from playing as a full a role as he would have wished in [K]’s life. In such circumstances, it is perhaps to be expected that he would not be as proactive in respect of the provision of child support for [K] as he otherwise might have been notwithstanding his devotion to the child.
Certainly, it is my finding that Mr Bullen could have done better in respect of the provision of financial support for [K] but was disinclined to do so because of his antipathy towards Ms Maynard, particularly his perception that she dictated to him the times and conditions on which he would be able to see [K] – invariably less than he would have wished. A state of affairs of which she was well aware but was disinclined to remedy, whilst she perceived the payment of child support to her was either irregular or insufficient.
This state of affairs confirms my view that individually both parents have much to offer [K] but they have extreme difficulty working together or seeing the other’s point of view about issues to do with [K]. Rather, each parent feels hard done by their respective perceptions of the other’s behaviour. Theirs is not a relationship with any great potential for empathy.
These issues add a level of complexity to the already difficult issue of relocation. In such circumstances, Ms Maynard is likely to feel aggrieved at what she sees as Mr Bullen’s gratuitous insertion of himself into her affairs, particularly a decision which she perceives will render her more financially secure. For his part, Mr Bullen will think that Ms Maynard is intent on excluding him as much as possible from [K]’s life.
c) Education issues
It is the mother’s case that she began to make inquiries as to the appropriate school for [K] to attend towards the end of 2002.
I accept that this was so. From her point of view, the right school for [K] was a very important decision indeed. I also accept that she informed the father of the schools in which she was interested and he attended at least one interview at one of the schools concerned.
However it is clear to me that she had the pre-eminent role in selecting [K]’s school. [K] began at [S] School in June 2005. The mother has paid the fees involved in [K] attending at the school. This represents a significant investment for her. She is critical of Mr Bullen that he has not spontaneously offered to assist her with this commitment.
The father’s position is that, as he was not asked about the school fees and he pays the amount of child support assessed in respect of [K], he has discharged his obligations in respect of the issue. From Ms Maynard’s point of view, the issue rankles. I can understand why. Again, the way the issue has been handled seems to be symptomatic of the parties’ poor relationship with one another and the significant deficits they suffer in their capacity to communicate with one another.
However I do not think that it necessarily follows from this state of affairs that the father is disinterested in [K]’s level of education. To the contrary, it is my impression that he is vitally interested in these issues and attends at [S] School to discuss [K] with his teachers, whenever he is able.
Bones of contention frequently arise between the parties as to what information is necessary to be exchanged between them regarding [K]’s education and sporting activities and the proper frequency of such exchanges. Mr Bullen complains that the mother has not properly authorised the school concerned to release [K]’s school reports and other information to him. Ms Maynard indicates that she has done what is necessary and suggests that Mr Bullen is not sufficiently proactive with the school.
These are common complaints in cases where the parents concerned have no experience of parenting their child together and have a poor relationship with one another. Mr Bullen complains that he was not told about the arrangements for [K] to be involved at an Auskick display at AAMI Stadium. Ms Maynard says the fault was with the coach concerned or with Mr Bullen for not listening or making his own inquiries.
Ms Maynard complains that Mr Bullen elected for [K] to start at Auskick but failed to follow through with payment of the necessary fees involved, causing the mother considerable embarrassment as she was approached for payment. The father asserts that he was always willing to pay one half of the fees involved and says the mother refused to respond to his correspondence about the issue.
In 2006 and 2007, [K] displayed some worrying behavioural issues at his school. He began to indulge in temper tantrums. The mother personally consulted a psychologist, Mr B to obtain guidance as to how to deal with this behaviour. The father complains that he was not told specifically about Mr B and was not given the opportunity to attend upon him. He was also worried that [K] himself had been assessed by Mr B and he had not been told about this.
As things turned out, the father was labouring under a misapprehension. [K] has never been examined by Mr B. Rather the mother was looking for guidance for herself in managing [K]’s behaviour. In this regard she says she passed on Mr B’s advice to Mr Bullen so that he could adopt the same strategies as she. As such, she says there is nothing untoward in her conduct, although
Mr Bullen sees it otherwise.
The father points to various activities he has funded for [K] which include horse riding; tae kwon doe; guitar lessons; gym; and football. He also indicates that during his weekends with [K] the two go camping, hiking and on other excursions together. He complains that the mother involved [K] in a scouts group without informing him. The mother asserts that the father is disinterested in the scouting group concerned.
The mother is critical of the father for being late at handover appointments. She describes herself as being “tolerant” of what she clearly regards as rude behaviour on the father’s part, which is indicative of both his lack of planning and consideration for her. She also asserts that the father allows [K] to convey information between his parents regarding the correct time for his collection.
The father does not accept these criticisms of him. Rather, the theme of his evidence is that the mother is unreasonable and uncommunicative about these issues and it she who uses [K] as a messenger between the parties and it is she who abusively over-reacts when messages go awry.
The father complains that until fairly recently it was he who bore the burden of travelling to collect [K] in order to spend time with him. The mother says that when the father raised the issue directly with her at the start of 2008 she was willing to compromise.
Much time was spent on an issue concerning [K]’s football gear. It was left behind at his mother’s home on the weekend of 4 July 2008. From the father’s perspective, this was the mother’s fault and it was incumbent on her to correct her error and deliver the gear in question to his house. The mother apparently said she would leave outside her front door for the father to collect. Something at which the father took umbrage, as it was inconvenient to him.
It seems to me that these petty inconveniences and mistakes are likely to be part and parcel of any shared parenting regime. As [K] grows older, it is likely that he will engage in more and more extramural activities. In addition he will have more homework and so more books and other equipment to carry around with him.
If [K] is a typical child, he is likely to forget some of these items from time to time and will be reliant on his parents to solve what will seem to him to be major problems, which flow from these omissions. How the parties reacted to the forgetting of the football gear is not a promising omen as to how they will solve similar problems in the future.
I find it unnecessary and indeed counter-productive to allocate specific fault in regards to these various issues. The father has enrolled as a registered volunteer at [K]’s school. He religiously attends [K]’s football games. In such circumstances, it is clear he does care about how [K] performs at school and at his other extramural activities. No doubt he could be more pro-active in terms of assisting Ms Maynard with the payment of some of [K]’s school expenses.
Ms Maynard does provide information to Mr Bullen about [K]’s schooling and other activities. It cannot be said that she is actively colluding with anyone to exclude Mr Bullen from these important issues. However she too could be more pro-active in her communications with Mr Bullen about [K]. In my assessment there is likely to be fault on both sides and both parties are likely to harbour some level of resentment at how he or she perceives the other has behaved.
However, regardless of my unwillingness to allocate specific fault in respect of one parent over the other, it is my finding that
Ms Maynard has borne a disproportionate burden of the responsibility for providing for [K]’s education. In so doing, she may have elected to suffer in silence and adopt a martyr’s stance knowing that Mr Bullen was unlikely to be either willing or able to make any significant contribution to her. These are not personality traits or a situation that are likely to predispose her to thinking well of Mr Bullen in future. In such circumstances, she is unlikely to be overly accommodating about including Mr Bullen in the decision making process in respect of [K].
For his part, Mr Bullen has done little to discharge Ms Maynard’s preconception of him as being content to leave the major burden of providing for [K] to her. Both seem to have fumed in isolation about the other and done little to improve their relationship with one another. The fact remains both dearly love [K] and both are fundamentally interested in all aspects to do with his care. Their relationship with one another is very poor indeed and likely to remain so, whatever is the outcome of these proceedings.
d) Dr W
The mother suffers from a number of gynaecological complaints, particularly endometriosis. It is her view, supported by her gynaecologist, Dr W that her condition is exacerbated by stress. She suffers from recurrent pain. Dr W opines that if her level of pain persists, the mother may have to undergo a hysterectomy.
The mother is anxious to avoid surgery. It is her view that her present circumstances with Mr Bullen heighten the level of stress in her life and so make the possibility of surgery higher. She believes that, if she is able to move to Queensland, her mood will lighten and her condition will be alleviated.
Mr Bullen chose not to cross examine Dr W. As such I accept her diagnosis and the connection between the pain the mother currently suffers and her presently stressful life circumstances. It must be very difficult for the mother not to be able to plan her future life and know where she will be living with Mr W following their marriage.
One would expect this level of stress to recede somewhat, once the outcome of these proceedings are known. For obvious reasons the mother is likely to be happiest if she able to pursue the life of her choosing in Queensland. If she feels she is compelled to continue living in Adelaide, effectively against her will, this is hardly likely to assist in the speedy resolution of her symptoms. If the mother does have to undergo a hysterectomy in Adelaide in the medium term, she is likely to hold Mr Bullen, at least in part, responsible for it. Again these are not factors which are likely to assist the parties to have a better parenting relationship with one another.
e) Ms B
Ms B is [K]’s paternal grandmother. Mr Whittle, counsel for the mother, choose not to cross examine her. As one would expect, she is closely aligned with her son and his preferred outcome in this case, although she herself lives in Boondall in Queensland.
Mrs B is enthusiastic about the father’s level of love and commitment to [K]. It is her perception that Ms Maynard has not been supportive of her relationship with [K] and she has only been able to see him when he has been in his father’s care.
For her part, Ms Maynard does not see it currently as part of her role to ensure that [K] maintains connections with his paternal family. It is her position however that she has been cordial, when required, to members of Mr Bullen’s family and has invited them into her home on a few occasions in the past.
Ms Maynard has deposed that one of the advantages of her proposal is that it will mean [K] will be able to spend more time with members of his paternal family, other than his father. Obviously there is the potential for this to happen but I have some reservations that Ms Maynard is fully committed to it occurring.
On 17 August 2008 [K] attended a film at a shopping centre with his paternal grandmother and one of his friends, [J]. During this occasion [K] and [J] apparently became separated from Mrs B, whilst she left the cinema to go to the toilet and buy a birthday card for a party [J] and [K] were to attend later in the day.
When the film ended and the children exited the cinema, they could not find Mrs B and so apparently approached one of the attendants at the cinema, who telephoned the mother on their behalf. Mrs B devotes half of her twenty eight paragraph affidavit to this incident. Ms Maynard devotes eleven paragraphs of her affidavit to it.
I am not greatly interested in what occurred and whether anyone is particularly at fault. [K] came to no harm and was separated from his grandmother for a short period of time. Even the most organised of carers are capable of being separated from their juvenile charges in a shopping centre or cinema complex.
Both Mrs B and the mother felt the need to vindicate their behaviour in their respective affidavits and by implication accuse the other of overreacting. These are not happy circumstances to support the mother’s assertion that she will be supportive of the child spending time with Mrs B in future.
f) Mr B
Mr Bullen is [K]’s paternal grandfather. He too lives in Queensland, although he is separated from Ms B. However, like her, he is complimentary about how the father interacts with [K]. He is impliedly critical of Ms Maynard, particularly that she has not been supportive of [K]’s relationship with him and other members of the paternal side of his family.
g) Mr W
Mr W was a pleasant and honest witness. His background is in the [occupation omitted]. Upon his discharge in 2002, he settled on the Sunshine Coast, although he is originally from Mittagong in New South Wales.
In the past Mr W has been an [occupation omitted]. Currently he is employed as a [occupation omitted]. His income is somewhere around $60,000.00 per annum. In the past it has been higher. Mr W owns two properties on the Sunshine Coast.
He values his home at somewhere in the vicinity of $580,000.00. He owes about $280,000.00 on this. His investment property is worth around $410,000.00. It is negatively geared and he owes somewhere around $315,000.00 on it. From his point of view,
Mr W sees his financial security in the form of his two properties on the Sunshine Coast. He is reluctant to sell either of them but believes it will be necessary if he is compelled to relocate himself to Adelaide, as it would be impracticable for him to move into the mother’s current accommodation. He is concerned about the prospect of selling either property in a falling market.
Accordingly, Mr W believes moving to Adelaide would be financially detrimental to him and so to his new wife and [K]. He believes he will be able to earn a more comfortable income in Queensland, either in his present field or as a fitness consultant than he would in Adelaide.
Mr W has two children from an earlier marriage. These are [Y] who is eighteen and currently living with her mother in New South Wales and [X] who is seventeen. [X] is currently living with his father in Pelican Waters. [X] seems to be a vulnerable child, who has not done particularly well at school.
Mr W has recently helped [X] obtain an apprenticeship in Caloundra. From Mr W’s point of view, this is a promising sign so far as [X] is concerned. He hopes that [X] is able to keep up the apprenticeship and make something of his life. He would be worried to leave [X] to his own devices in Queensland, without paternal support from him, if he was compelled to move to Adelaide to be with his new wife.
On the other hand he would be worried for [X] if he was to relocate to Adelaide with him because he may not be able to secure a similar apprenticeship or job opportunity in this city. [X] may go backwards in Adelaide and be bitter at having to move from where he is settled. Accordingly, for all sorts of reasons, the case presents all manner of dilemmas for Mr W, just as much as for the parties themselves.
In the longer term, Mr W would like to start his own business as a [omitted]. He competes in triathlons and is obviously very fit indeed. He has recently completed a number of courses to equip him for this proposed endeavour.
As can be readily imagined, Mr W is a great enthusiast for the climate and lifestyle of the Sunshine Coast. He sees it as a Mecca for fitness enthusiasts like himself. He believes that his proposed business is likely to be successful in Queensland but not necessarily in Adelaide, which is cooler and perceived by him to be less evolved in the fitness area than the Sunshine Coast.
For all these reasons, he sees his future life and happiness in Queensland, where he is well settled. He would be loath to move away from the Sunshine Coast and sees all manner of pitfalls for himself in such a move. But if it is the only means of consolidating his relationship with Ms Maynard, he will do so, albeit with reluctance.
Of all the parties in the case, he is the one who seems most open to subjugating his preferred outcome to compromise. This is to his great credit and speaks eloquently of his level of commitment to
Ms Maynard. I accept that the two are devoted to each other and very much in love. In these circumstances, it is hardly surprising that Ms Maynard herself has also become an aficionado for the Sunshine Coast.
With the commencement of her marriage with Mr W I can understand why she would want, in effect, to have a new start in a new place. If both she and Mr W feel that their mutual ambitions have been thwarted, this is not likely to be conducive to a happy start to their marriage or make either of them particularly well disposed towards Mr Bullen. For his part, Mr W has said that he would be extremely upset if he had to move away from Queensland.
There is nothing to indicate any other than that Mr W enjoys a satisfactory relationship with [K]. Mr W describes this state of affairs as being “a blessing for me and [Ms Maynard]”. This statement, I think, indicates the sensitivity with which Mr W approaches the prospect of being placed in a role of quasi-parental significance so far as [K] is concerned.
[K] has apparently experimented with calling Mr W “Dad”. Mr W has not been comfortable with this state of affairs and has encouraged [K] to desist from it. In Mr W’s expression, he “appreciates the sensitivity of the issue” so far as Mr Bullen is concerned. In the past he has lived apart from his children due to marriage failure and knows the importance of retaining contact with them.
It is Mr W’s evidence, which I accept, that he and Ms Maynard will join their finances upon their marriage. He has been regularly commuting between Brisbane and Adelaide to maintain his relationship with Ms Maynard over the last few months. As such, he has gained some insight into the likely costs of airfares between the two locations at present.
The most expensive tickets are in the $400.00 return mark. The cheapest are at $69.00 one way. The average would be somewhere around $120.00, again one way. Mr W has sworn that he and Ms Maynard would be prepared to commit up to $5,000.00 per annum to ensure that [K] is able to travel to Adelaide to spend time with his father. I do not doubt the sincerity of this commitment on Mr W’s part. In his words, “it is paramount that [K] maintains his relationship with his father”.
I accept that these bonds can be regularly refreshed though regular visits during school holidays and perhaps during school terms. However, in a qualitative sense, these relationships are likely to be changed significantly. The case hinges around the implications of Ms Maynard’s entitlements to freedom of movement being denied and how an acceptable level of meaning may be maintained in [K]’s important paternal family, particularly with his father and [L].
For the reasons already provided, I do not believe that Ms Maynard is particularly well disposed towards Mr Bullen personally. However, I consider that she realises the central importance to [K] of his relationship with his father. As such, I believe that she is capable of keeping Mr Bullen’s spirit or presence alive, in her home, in the event that she and [K] relocate to Pelican Waters. I do not think that she would allow herself to either subconsciously or actively demonise Mr Bullen to [K] or relegate him to a category of persons who are not to be mentioned in her household.
Ms Maynard has deposed that she has no personal curiosity about [L], a child she has never met and has no desire to meet. Her attitude, in this regard, is likely to emphasise to [K] the essential schism which exists in his family, through no fault of his own. This is a cause of some concern to me, as it was to Ms Cavanagh. One of the significant detriments of Ms Maynard’s proposal is the consequences it is likely to have for the level of relationship between [K] and [L].
However, on balance, I think it more likely than not that [K] would be able to cope with the change involved in moving to live in Queensland particularly because of the support which will be available to him from his mother. For her part, Ms Maynard is likely to become a more fulfilled and happy parent in Queensland. In this regard, I do not think that she has any unrealistic or necessarily idealised views of what life will be like in Pelican Waters.
On the other hand, I think there are a number of likely detrimental consequences if there is a change in [K]’s circumstances to inaugurate the shared care regime advocated by Mr Bullen. The poor level of communication between the parents will remain but Ms Maynard will feel unhappy and thwarted by such an outcome. She will feel that she is a prisoner in Adelaide and that Mr Bullen is her gaoler.
[K] will have to move regularly between two households which are severely at odds with one another. The level of parental conflict is likely to increase. This cannot be good for [K]’s sense of emotional equilibrium. Rather than feeling he is richly shared between his parents, he is likely to feel he is deeply divided between them.[26]
e) The practical difficulties and expense of the child communicating and spending time with each of his parents
[26] See McIntosh, J and Chisholm, R (2007) Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research Australian Family Lawyer Volume 20 No. 1 at 14
It is a very long way from Brisbane to Adelaide and return. The mother proposes twelve trips each year. In the short to medium term, it seems unlikely that the cost of air travel will fall appreciably. [K] is likely to be travelling at times when the demands for seats are at their highest. Accordingly, the cost of the required return air tickets each year is likely to represent a very significant sum of money to the parties, regardless of their individual circumstances.
Mr Bullen is not well off financially. The mother proposes that he should pay for four return trips each year. She is prepared to assume responsibility for another eight return flights each year. She and
Mr W have indicated a willingness to allocate up to $5,000.00 per annum in order to fulfil their obligations to ensure that [K] maintains an appropriate level of relationship with his father.
The mother’s proposals are criticised by both the father and
Ms Cavanagh as being unduly onerous for a child of [K]’s age. It is a three hour flight between Adelaide and Brisbane and other time would be taken up getting to and from the Sunshine Coast. The proposed mid-term trips are likely to disrupt [K]’s sporting and other extra curricular activities and impact upon his new friendship groups.
Factors such as these may make [K] resistant to wanting to fly to Adelaide during the school year. In addition, the financial burdens involved may make the trips difficult to organise. Essentially,
Mr Bullen asserts that Ms Maynard is being unduly optimistic about what can be realistically accomplished during school terms in her haste to relocate with [K]. He fears that when [K] has actually moved there will be a high probability that the proposed mid-school term visits will fall by the wayside and, at best, he will only be able to see [K] for longer periods of time during school holidays.
I think there is some substance to Mr Bullen’s concerns. In my view, it will be difficult to organise twelve trips between Brisbane and Adelaide each year, particularly whilst Mr Bullen continues to work part-time as a bar attendant. In such circumstances, I think there is a grave risk that, in the main, [K] will only be able to maintain his direct relationship with his father through periods of holiday time the two spend together.
These periods are likely to be augmented by telephone, email and webcam communication – so called “electronic visitation”. However, such media, although sophisticated and available, are no substitution for direct physical exchanges between parent and child.
The future cost of air travel in Australia is uncertain. It is dependant, to a very great degree, on the price of oil, which in turn is dependant on matters of global politics and economics. However, over the course of the next ten years or so, it seems unlikely that there will be any significant decline in the cost of domestic air travel.
Mr Bullen is a modest wage earner. So currently is Ms Maynard. I accept that Mr W is committed to ensuring that [K] maintains his current level of relationship with his father and, as such, is prepared to contribute towards the cost of [K]’s air travel. However, notwithstanding the good intentions of both Ms Maynard and Mr W, I am concerned about their ability to finance this commitment over the long term.
Travel by air is now easily accessible to all Australian citizens and is the preferred mode of transport for those wishing to travel between Australia’s major cities. Air travel is now common place and increasingly caters for a mass market. From the point of view of the major commercial airlines, currently operating in Australia, this mass market includes unaccompanied children, over the age of five, who have a need to travel.
At the same time as the Australian population has become more mobile, there has been an increase in the level of marital breakdown. Increasingly children not only have to deal with the consequences of the separation of their parents, but also of the fact that their parents wish to pursue opportunities and lifestyle choices in different parts of Australia and increasingly the world.
As a result of these various matters, in my view, unaccompanied travel by children by air, cannot be regarded as unusual or an aberration from the norm. As such, I have no reason to believe that [K] personally will not be able to accommodate travelling unaccompanied by air between Brisbane and Adelaide. Certainly, I do not think that there is any significant risk of him coming to any harm if he travels in this way.
It is a truism that all children, like all adults, have individual characteristics and personalities. Some are shy and retiring. Some children may be over awed at the prospect of travelling alone and daunted at the prospect of having to ask a stranger for assistance, say to go to the toilet or for a drink.
Other children may regard the prospect of travelling alone, over great distances, a great adventure and a sign of their special maturity. I do not know at which end of the spectrum [K] fits. However, I note that he has travelled on airplanes before.
Ms Cavanagh believes that [K] may become distraught at the prospect of separating from one or other of his parents, at the airport and may feel upset and abandoned during the ensuing flight. I am not able to rule out this as a potential consequence, but do not consider that this concern alone should militate against the mother’s proposals. Overall, I think the likely cost of the travel is a far more important consideration.
f) The capacity of the parties to provide for the child’s emotional and intellectual needs
i) The attitude to the child and the responsibilities of parenthood, demonstrated by the parties
These criteria are so closely linked that it is convenient to consider them together. In my view, the mother has demonstrated herself as being attuned to [K]’s emotional and intellectual needs. In particular, the quality of [K]’s education has been a matter of great concern to her.
I do not think that Ms Maynard can be characterised as being an irresponsible or selfish parent because of her wish to live with [K] in Queensland. Rather, she has come to a difficult decision and determined that both her and [K]’s interests will be best served, if she and he are able to relocate to the Sunshine Coast.
Ms Maynard does not dispute that this is a difficult issue for [K]. It is her evidence that [K] is in two minds about the move and alternates in his preferences. Certainly, it cannot be said that
Ms Maynard is attempting to convey any rosy impression, on [K]’s part, of the move to Queensland.
My impression is that [K] is a much loved child in both his mother and his father’s households. As such, his emotional needs are appropriately met by both his parents. It also seems to be the case that Mr Bullen, in conjunction with Ms T, assists [K] with his homework and reading.
Both parties seem to me to be committed to [K] having a rich and varied childhood, which includes exposure to all manner of extra mural activities. [K] has played a variety of sports and has learnt a musical instrument. He is well liked at school and seems to be emotionally stable.
In this case, I am satisfied that [K] will receive a high level of parenting, in both his parents’ homes, whatever is the outcome of these proceedings. [K] is much loved. He is well fed, well housed and well parented. These factors increase the degree of difficulty in this case.
g) The child’s maturity, sex, lifestyle and background
[K] is just over eight years of age. As such, his relationship with his father is likely to be vulnerable to the stresses inherent in living a long way away from him. In addition, it seems to be the case that [K] strongly identifies with his father. In the longer term, it is likely to be helpful to [K] if he is exposed to strong male role models. The best such role model for [K] is likely to be his father. This is a major detrimental consequence of the mother’s proposal.
h) Aboriginality
This is not a relevant consideration in this case.
j) Family violence
k) Any family violence order
There are no considerations pertaining to family violence in this case. As far as I know, no relevant family violence order has ever been made between the parties in this case.
l) Whether it will be preferable to make the order that would be the 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.
Whatever is the outcome of these proceedings, one of the parties will be bitterly disappointed. This can only lead to an escalation in the level of tension between the parties, which is already unacceptably high. These are not happy indicators, so far as the likelihood of there being no further proceedings between the parties.
In my view, the matters which fall for consideration under this heading are not central to the outcome of the case. Certainly, it cannot be said that either of the parties has demonstrated an over-readiness to resort to litigation, when issues relating to [K]’s parenting have arisen between them in the past. To the contrary, it is only when the difficult issue of relocation has arisen the parties have felt compelled to come to court.
m) Any other relevant issue
One of Ms Maynard’s major reasons for wanting to move to the Sunshine Coast is so that she can have a new start in life, in a new environment, with her new husband, Mr W. These are understandable human aspirations and cannot be easily dismissed. If denied, Ms Maynard is likely to feel aggrieved towards
Mr Bullen, from whom she has been separated for many years. As such, she is likely to feel that her past and the involvements she formed in it prevent her having a viable future, certainly one of her own choosing.
It is difficult to quantify personal happiness. Ms Maynard no longer feels happy in Adelaide. She wants to move. I accept that personally she is likely to be happier if she lives on the Sunshine Coast, rather than in Adelaide. That is certainly the case, so far as Mr W is concerned. The level of Ms Maynard’s happiness is likely to be inter-dependent with that of Mr W.
In my view, if Ms Maynard feels personally happy and fulfilled, this is likely to have significant flow on effects for [K]. On the other hand, if Ms Maynard feels frustrated and unhappy, this will not assist her to be a good parent or to improve her level of relationship with Mr Bullen.
In a financial sense, it is Ms Maynard’s case that she and Mr W will be better off, if they are able to live as a family in Queensland.
Mr W will not have to sell either of his properties. He will be able to remain in his current employment and continue to explore the possibility of opening his own personal training business.
On balance, I accept that a move to Queensland will benefit
Ms Maynard both emotionally and financially. This is likely to be a good thing, so far as [K] is concerned. Ms Maynard and Mr W will be able to merge their finances. As such, there will be more financial resources available for [K].
Of the adults concerned in this case, Mr W is the only one who has given any indication that he will sacrifice his own personal ambitions if necessary. In my view, this is a sign of his devotion and commitment to Ms Maynard. If necessary, he is prepared to sell up in Queensland and move to live in Adelaide. This would not be his preferred option and he sees considerable pitfalls in it both for [X] and so far as his own finances are concerned. I accept his reservations in both these regards.
I have no reason to doubt the sincerity of Ms Maynard’s and Mr W’s mutual regard for one another. How could it be otherwise, given that they have committed to marriage with one another. However, I am concerned that the circumstances of Mr W and Ms Maynard having to begin their marriage together, in circumstances not of their choosing, may not be the most conducive environment for that marriage to prosper and grow. If Ms Maynard’s relationship fails with Mr W, this cannot be a good thing for [K]’s sense of security.
I accept that Ms Maynard has some significant health issues, as described by Dr W. I accept that if Ms Maynard feels stressed or unhappy these factors are likely to exacerbate her symptoms and make the possibility that she will have to undergo surgery more likely. Again, if Ms Maynard’s health is compromised, this will not be a good thing from [K]’s point of view.
Conclusions
Relocation cases are very difficult. At the end of the day, it is necessary for the court to weigh up the pros and cons of each feasible outcome and focus on how it believes the best result may be achieved for the child concerned.
[K]’s best interest remain the paramount consideration in this case, but not the only one. I must not lose sight of the fact, that as a citizen of a free and democratic country, Ms Maynard has an entitlement to live how and where she chooses.
Ms Maynard has formed a significant relationship with Mr W, who is well settled in Queensland. For natural and understandable reasons, Ms Maynard wishes to be with the man she loves in his home. These expectations, held by Ms Maynard, are a legitimate matter for the court to consider.
Australia, which occupies a large land mass and where language and cultural orientation are largely homogenous, is a country whose citizens frequently move within it. 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 are also an incidence of modern Australian life.
A settled and happy parent is likely to be a parent who is functioning at the upper range of his or her capacity as a parent and obviously, this is a factor of prime importance to any child involved, particularly if that parent is the one who has had the majority of responsibility for caring for the child concerned.
In this case, Ms Maynard has provided far more of [K]’s care since his birth. In my view, she has shown herself to be an exemplary parent, who is prepared to sacrifice her own needs in order to service [K]’s interests. This is most obviously demonstrated by her assuming the greater proportion of the financial responsibility for [K], including his school fees, with only modest assistance from
Mr Bullen.
For understandable reason, including financial ones, she now wishes to live in Queensland with Mr W, where she believes she will be happier and where [K] will have many opportunities. I find
Ms Maynard to be the parent who is the better placed of the parties to provide a home for [K]. In reaching this conclusion I rely not only on the past care regime for [K] but also the father’s degree of involvement in providing for [K]’s financial and educational needs, which has been modest.
In my view, the various pros and cons of each of the parties’ proposals are finely balanced. Factors in favour of the status quo being maintained include [K]’s reticence about the proposed move; the expense and difficulty of [K] visiting his father, particularly during mid-term weekends; and above all the impact the move will inevitably have on the level of relationship [K] presently enjoys with his father and [L].
The parties agree that the presumption of equal shared parental responsibility should be applied to [K]. Accordingly, the court is required to consider [K] firstly spending equal periods of time with each of his parents and then, if this is ruled out, [K] spending substantial and significant periods of time with each of them. Clearly, the application of the presumption has implications for
Ms Maynard’s desire to live with [K] in Queensland.
Mr Bullen aspires to having the optimal level of relationship with [K] envisaged by the Family Law Act – an equal time regime, based on equal shared parental responsibility. Putting aside the issue of relocation, I am not persuaded that such an outcome will either be in [K]’s best interests or reasonably practicable.
The parties’ relationship with one another is poor. They do not communicate well. As such, I have grave reservations about their current and future capacity to implement the shared care type arrangement advocated by Mr Bullen and supported by
Ms Cavanagh.
The major negative implication of the court making a shared parenting order, in respect of [K], is that this outcome can only be achieved at the price of a complete negation of the mother’s freedom of movement. In a practical sense, this cannot provide an appropriate setting for the orders proposed by Mr Bullen.
There is some level of overlap between the factors which determine the reasonable practicality of any shared parenting arrangement or substantial and significant time arrangement and whether such arrangements will be in the best interests of the child concerned. In my view, it would be in [K]’s best interest if he continued to live predominantly with his mother, the situation which has prevailed for most of his life to date and in which situation he seems to have thrived.
As such, the mother is not required to provide compelling reasons to support her wish to move interstate with [K]. However, in my view, her reasons are valid and do not come from any malign intent on her part. As the parent, whom I have determined is the better placed to provide the majority of [K]’s care, her personal level of happiness and ability to fulfil her aspirations in future are relevant considerations. If Ms Maynard is unhappy and feels thwarted, this will not be of assistance to the service of [K]’s best interests. She will not be able to parent [K] to the full extent of her potential capacity.
There is no ideal age for a child to relocate away from one of his or her parents. It is, I think, generally recognised that the most problematic age for relocation is when a child is very young, and as a result, does not have an ability to talk on the telephone or any well developed cognitive skills.
As such, memories of a parent may fade for a very young child between infrequent visits and the potential for a parental relationship to be one characterised by intimacy and spontaneity may be lost, perhaps forever to such a child.
[K] is eight years of age. He knows his father very well. The relationship between the two is secure and well developed. [K] is not likely to forget his father during periods between school holidays, if he moves to live in Queensland with his mother.
As such, I do not consider that, if [K] moves to the Sunshine Coast and Mr Bullen remains in Adelaide, the relationship between the two will be leached of all meaning. [K] will know who his father is and the significance of Mr Bullen in his life.
I accept Ms Maynard’s evidence that she will maintain and welcome the father’s “spirit” in her household. I do not find it to be the case that Ms Maynard has ever attempted to negate the importance of
Mr Bullen in [K]’s life. To the contrary, it seems to me to the case that she has attempted to facilitate [K]’s paternal relationship, albeit not as quickly as Mr Bullen would have wanted.
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.[27] As Kay J pointed out in Godfrey v Saunders,[28] whilst speaking of the Shared Parental Responsibility legislation, “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”.
[27] See D and S V (2003) FLC 93-137 at 78, 280
[28] See Godfrey v Saunders 208 FLR 287 at 298
The recent amendments to the Family Law Act 1975 are significant ones and far reaching. However, in my view, they do not enshrine a principle that separated parents are obliged to remain indefinitely living in close proximity to one another, to ensure that their children maintain an optimal level of relationship with them both. Practical considerations may make such an outcome unworkable, particularly if it results in the effective negation of a parent’s rights, as a citizen, to live how and where he or she chooses.
In my view, the best interests of [K] dictate that he should continue to live predominantly with his mother and she should be entitled to move to live on the Sunshine Coast with him. This move will not result in the extinction of [K]’s relationship with his father. [K] will be able to see his father frequently. This may not be for periods as frequent or as long as the father would wish, but will enable [K] to maintain a sufficient level of relationship with his father.
To prevent the mother moving [K] to Queensland can only intensify the level of ill will currently existing between the parties. This must reverberate with [K]. If Ms Maynard is unable to move, she will think that she is a prisoner in Adelaide and that Mr Bullen is her gaoler. If her health deteriorates or her marriage with Mr W founders, she is likely to blame Mr Bullen.
One of the relevant considerations concerning whether a proposed relocation is or is not in a child’s best interests, is the impact that relocation will have on the ability of the child concerned to maintain contact with the other of his or her parents. This is a major concern in this case.
Ms Maynard and Mr W have indicated a willingness to put aside $5,000.00 per annum to pay for the costs of [K]’s airfares between Brisbane and Adelaide. In my view, such a sum should go a considerable distance to paying for [K]’s necessary return airfares at the beginning and end of each school holiday period. As such, I proposed making orders that the mother be responsible for booking and paying for each of the necessary airfares concerned so that [K] can spend a significant proportion of each school holiday period with his father and [L].
For the reasons previously provided, I have some concerns about the workability of [K] travelling interstate on up to two occasions during each school term. I do not think that this is likely to be sustainable in the longer term and, as such, is likely to intensify the level of ill will between the parties. As such, I propose making orders that will enable [K] to spend one extended weekend per term in Adelaide.
I propose that this visit should occur on the father’s nomination, after he has given a reasonable period of notice to the mother and at his expense. Although this cannot be regarded as the optimal level of contact between the two, I am satisfied that it will ensure that [K]’s paternal relationship remains viable, both now and in the longer term.
These periods of holiday time can also be augmented by so called “electronic visitation”. In this day and age, there are few homes in Australia, which do not have access to a computer and the internet. I appreciate that skype and video are no substitute for personal contact but such media will ensure that [K]’s relationship with his father remains alive to both of them in between periods of holiday contact.
The great unknown, in this case, is the consequences of [K]’s relocation on his relationship with [L]. Necessarily, this relationship is still in its developmental stages. [L] is very young. I accept that inevitably [K]’s relocation must have serious implications for the level of intimacy for the relationship between the two. In his most formative years, [L] will be growing up in a different household to his half brother.
However, significant as those consequences are likely to be, I do not think that they are of such weight that they counterbalance the other considerations in this case, particularly the implications for
Ms Maynard’s happiness and capacities as a parent, if she is unable to move, as she wishes.
An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [Family Law Act section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Although the parties parenting relationship is currently very poor and likely to remain so, for the indefinite future, I consider that they should consider to have responsibility for making major long-term decisions, so far as [K] is concerned.
Mr Bullen will always remain vitally interested in all matters to do with [K], particularly issues to do with his education and health. Modern means of communication, particularly emails, enable parents to exchange information about their children, particularly over distance and where other forms of communication are stilted and prone to miscarry.
I will make orders which will provide for Mr Bullen to be provided with information about [K]’s education and ensure that Mr Bullen receives all necessary information about how [K] is progressing at school, including receiving copies of his reports and other information. I will also require each of the parties to keep the other informed so far as all relevant health issues are to do with [K].
I will also make orders that will enable [K] to have liberal forms of electronic communications with his father, including by telephone, email, webcam and skype.
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 four hundred and twenty-two (422) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 9 December 2008
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