Milne and Becker
[2009] FMCAfam 715
•9 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MILNE & BECKER | [2009] FMCAfam 715 |
| FAMILY LAW – Parenting orders – child aged 7 years 5 months – currently living predominately with the father in Newcastle and spending time with the mother in Brisbane – mother seeking to relocate child to Queensland permanently – consideration of “meaningful relationship” – best interests of the child – relocation refused. |
|
| A v A Relocation Approach (2000) 26 Fam LR 382 AMS and AIF (1999) 24 Fam LR 756; FLC 92-852 D v SV (2003) 30 Fam LR 91; FLC 93-137 Goode & Goode [2006] Fam CA 1346; 36 Fam LR 422; FLC 93-286; G & C [2006] FAM CA 994 In the Marriage of Hall (1979) 5 FLR 609 and FLC 90-713 Taylor & Barker [2007] Fam CA 1246; (2008) 37 Fam LR 461; Sealey & Archer [2008] Fam CAFC 142; Mazorski & Albright (2007) 37 Fam LR 518; M & S (formerly E) [2006] Fam CA 1408; (2007) FLC 93-313; McCall & Clark [2009] Fam CAFC 92 P v P [2006] FMCA Fam 518 U v U (2002) 29 Fam LR 74; FLC 93-112 |
| Applicant: | MR MILNE |
| Respondent: | MS BECKER |
| File Number: | NCC 742 of 2007 |
| Judgment of: | Coakes FM |
| Hearing dates: | 9, 10 & 11 March 2009 |
| Date of Last Submission: | 11 March 2009 |
| Delivered at: | Newcastle |
| Delivered on: | 9 November 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Givney |
| Solicitors for the Applicant: | Campbell Paton & Taylor |
| Counsel for the Respondent: | Ms Nash |
| Solicitors for the Respondent: | Kim Monnox & Associates |
ORDERS
That the father and the mother have equal shared parental responsibility for the child [X] born [in] 2002 (“[X]’).
That the parents are to consult each other in relation to any long term issues in relation to [X] and are to make a genuine effort to come to a joint decision about issues concerning his care, welfare and development of a long term nature which include (but is not limited to) issues of that nature about:
(a)His education (both current and future);
(b)His religious and cultural upbringing;
(c)His health;
(d)His name;
(e)Changes to the living arrangements for him that make it significantly more difficult for him to spend time with a parent.
That each parent is to have sole responsibility for making decisions concerning [X]’s day to day care, welfare and development whilst he is in his or her care respectively.
That [X] live with the father.
That [X] shall also live with and spend time with the mother to include not less than the following periods:
(a)
From no later than 5.00pm Friday until 6.00pm Sunday on weekends commencing on the Friday falling closest to
12 February, 27 March, 15 May, 5 June, 31 July, 21 August,
30 October and 4 December of each year;
(b)
From no later than 5.00pm Friday to 6.00pm on the following Tuesday on the Friday’s falling closest to 6 March, 26 June,
18 September and 13 November of each year;
(c)From no later than 5.00pm on the first Friday of the second and third school term Queensland school holidays until 5.00pm on the first Tuesday of the said holidays;
(d)From after school Friday to before school on Monday on such weekends nominated by the mother providing the father with three (3) weeks prior notice in writing, such weekend time to occur within 50 kilometres of Newcastle;
(e)From 5.00pm on the first Friday until 5.00pm on the second Monday of the New South Wales first, second and third term school holidays;
(f)From 10.00am on the first Sunday of the New South Wales Christmas school vacation for 20 consecutive nights concluding at 5.00pm on the day after the 20th night commencing in 2009 and each alternate year thereafter;
(g)From 10.00am 4 January until 5.00pm 25 January commencing in 2011 and each alternate year thereafter;
(h)Such other times as may be agreed between the parties.
To give effect to Order 5 the following shall apply:
(a)The times referred to in Orders 5(a), 5(b), 5(e), 5(f), 5(g) and 5(h) save for the period referred to in Order 5(c) and 5(d) will take place in Brisbane or such other place in Australia as determined by the mother;
(b)The time specified shall refer to the time the child is delivered to the airport nearest the party who has the care of the child prior to his time with the other party.
For the purposes of implementing the time that [X] is to spend with the mother in Queensland the following provisions shall apply:
(a)By the father delivering [X] to Williamtown Airport (Newcastle) and doing all acts and things as may be necessary to ensure [X] is placed on a flight from Williamtown Airport (Newcastle) to Brisbane Airport Domestic Terminal and with the father to ensure that he collects [X] from Williamtown Airport (Newcastle) at the conclusion of [X]’s time with the mother;
(b)By the mother collecting [X] from Brisbane Airport Domestic Terminal when he arrives to spend time with her and by the mother returning the child to the same Brisbane Airport Domestic Terminal at the conclusion of her time spent with [X] and by doing all acts and things that may be necessary to ensure that [X] is placed on a flight from Brisbane Airport Domestic Terminal to Williamtown Airport (Newcastle);
(c)The father is to provide to the mother not less than six (6) weeks written notice prior to each period of time [X] is to spend with the mother, such notice to be given by email to the mother’s notified email address, or other means of contact as agreed between them of the travel details including the name of the airline, the departure time from Williamtown Airport (Newcastle), the flight number and the arrival time at Brisbane Airport Domestic Terminal of [X]s flight from Williamtown Airport (Newcastle) to Brisbane Airport Domestic Terminal;
(d)The mother is to provide to the father not less than six (6) weeks written notice prior to each period of time [X] is to spend with the mother, such notice to be given by email to the father’s notified email address, or other means of contact as agreed between them of the travel details including the name of the airline, the departure time from Brisbane Airport Domestic Terminal, the flight number and the arrival time at Williamtown Airport (Newcastle) of [X]s flight from Brisbane Airport Domestic Terminal to Williamtown Airport (Newcastle).
(e)The father is to pay the cost of travel of [X] from Williamtown Airport (Newcastle) to Brisbane Airport Domestic Terminal;
(f)The mother is to pay the cost of travel of [X] from Brisbane Airport Domestic Terminal to Williamtown Airport (Newcastle).
Between 1 January and 15 January in each calendar year commencing in 2010 the parties are to exchange a calendar of dates in accordance with the dates nominated pursuant to these Orders so as to determine the dates when [X] is travelling to and from the mother’s care during that calendar year.
The father is restrained from drinking more than two (2) schooners of full strength beer during the period of forty eight (48) hours prior to [X] being returned to his care, and in any twenty four (24) hour period when [X] is living with him.
Not later than 4 December 2009 the father is to make contact with Denise Witt of Unifam Newcastle on 02 4925 6000 to arrange an appointment for [X] for Unifam’s Supporting children after separation (SCAPS) programme, and is to ensure [X] receives such counselling as is recommended.
For a period of three (3) years from the date of these orders the father is restrained from changing [X]’s place of residence from the place where he currently lives to a place outside the municipal areas of Lake Macquarie City Council and Newcastle City Council and the mother is restrained from changing [X]’s place of residence with her during the times he stays with her from her current place of residence to a place outside a radius of 30 Kilometres from such current place of residence.
That in each case the parents may consent in writing to the other parent changing his or her place of residence to a place outside the municipal areas of Lake Macquarie City Council and Newcastle City Council or a radius of 30 kilometres provided that such consent is not required if the proposed new place of residence of either parent lies upon the axis between the main Post Office at [B] North New South Wales and the main Post Office in [J] Queensland.
IT IS NOTED that publication of this judgment under the pseudonym Milne & Becker is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 742 of 2007
| MR MILNE |
Applicant
And
| MS BECKER |
Respondent
REASONS FOR JUDGMENT
Introduction
[X] was born in 2002 and is the only child of the relationship between the parties. Following the separation of his parents in early 2006 he lived primarily with his mother in the Newcastle district until April 2008 when the mother moved to Brisbane permanently. From that time, [X] has lived with his father in the Newcastle district.
The mother has two other children from a previous relationship with Mr D namely [Y] who was born in 1991 and is now eighteen years of age, and his younger brother [Z] born in 1992 who is now seventeen years of age.
[Y] was born with autism, cerebral palsy and intellectual disabilities and is non verbal. He continues to suffer from intellectual and physical handicaps and attends a special needs school five days per week.
It is the wish of the mother that [X] live with her and [Y] and [Z] in Queensland.
The mother wishes the children to be reunited. Her son [Z] is an able swimmer and hopes to train successfully for the Olympics in 2012 or 2016. The mother asserts there are better services available in Brisbane for [Y]’s special needs.
The father opposes [X] moving to Brisbane.
The father filed his initiating application for final parenting orders on 14 May 2008 and the mother filed her response on 26 August 2008.
Both parents subsequently revised the orders being sought with further revision at the time of the hearing to be found in the respective outline of case documents prepared by Counsel for each of the parties.
Background facts
The father is now 32 years of age and is a self employed [tradesman] in full time employment.
The mother is 42 years of age, was born in California and has lived in Australia permanently since November 1989 except for a period of about 10 months in 1998/1999.
The father lives in rented accommodation in [B] with [X] who since 2007 has attended [B] school where he is now in year 2.
The mother lives in rented accommodation at [J], a Brisbane suburb with [Y], for whom she receives a carer’s pension, and [Z] who is in year 12 at high school.
The parents commenced cohabitation early in 2000, were married in November 2000 living in the Newcastle district before moving to Orange in 2001 where [X] was born in May 2002 when the family returned to Newcastle in about 2003 until separation on 6 January 2006. After separation, all three children lived predominately with the mother, who was employed in various jobs and with the father spending time with [X] on a regular basis but with the parents having difficulty making consistent arrangements.
The mother moved to Queensland with [Y] and [Z] in April 2008 and [X] remained living with the father in the Newcastle area. On 5 June 2007 an Order for a Divorce was made which became effective on 6 July 2007.
Between May and July 2008 the mother spent time with [X] both in Newcastle and Queensland.
On 27 June 2008 the father was charged with driving a motor vehicle with a mid range prescribed concentration of alcohol to which he subsequently pleaded guilty and was disqualified from holding or obtaining a driving licence for a period of six months commencing
27 June 2008.
On 28 August 2008 orders were made by consent pending further order and the final hearing that:
1.That pending further Order the mother and the father retain equal shared parental responsibility for the long term care welfare and development of the child [X] born in 2002 (“the child”).
2.That pending further Order the child live with the father
3.That pending further Order the child spend time with the mother as follows:
3.1After school on the last day of term 3 until 8.00pm on the day preceding the first day of term 4 in 2008;
3.2For a period of three weeks to commenced 26/12/2008;
3.3.For three weekends during school term in 2008, such weekends to be nominated by the mother providing no less than 14 days notice, and to commence from after school on the school day preceding the weekend nominated and to conclude on the first day of school following the weekend at 8.00am;
3.4From 3.30pm to 8.00am on 28/08/2008 to be implemented by the mother collecting and returning the child from and to the father’s residence;
3.5 Otherwise as agreed between the parties.
4.That pending further Order each party pay one half the cost of [X]’s travel from Brisbane to Newcastle and return in accordance with Order 3.1, 3.2, 3.3 and 3.5and unless otherwise agreed:-
4.1The mother no less then 21 days prior to a proposed flight advise the father in writing of the proposed flights and the costs relating to those flights.
4.2Within seven days of the mother advising the father in accordance with Order 4.1, the father to pay the mother one half of the cost of the airfares for [X] to travel to Brisbane and return to Newcastle.
5.That pending further Order unless otherwise agreed the father do all acts and things to collect the child from the Airport in Newcastle and deliver the child to the airport in Newcastle to put into effect Order 3.1, 3.2, 3.3 and 3.5.
6.That pending further Order each party have sole responsibility for making decisions about the child’s day to day welfare care and development when the child is in his or her respective care.
7.That pending further Order unless other agreed the mother do all acts and things to deliver and collect the child to and from Brisbane Airport to put into effect Order 3.1, 3.2, 3.3 and 3.5.
On the evidence before me neither parent has repartnered.
The respective applications
At the time of the hearing the father sought the following orders:
1.The child [X] born in 2002 shall live with the father.
2.The said child shall live with the mother and such time shall include:-
i)
From no later than 5.00pm on Friday to 6.00pm Sunday on weekends commencing on the Fridays falling closest to
13 February, 27 March, 15 May, 5 June, 31 July, 21 August, 30 October and 4 December of each year.
ii)
From no later than 5.00pm on Friday to 6.00pm on the following Tuesday on the Friday’s falling closest to
6 March, 26 June, 18 September and 13 November of each year.
iii)From no later than 5.00pm on the first Friday of the second and third school term Queensland school holidays until 5.00pm on the first Tuesday of the said holidays.
iv)From after school Friday to before school on Monday on such weekends nominated by the mother providing the father with three weeks notice. Such weekend time to occur within 50 kilometres of Newcastle.
v)From 5.00pm on the first Friday to 5.00pm on the second Monday of the New South Wales first, second and third term school holidays.
vi)From 10.00am on the first Sunday of the New South Wales Christmas school vacation for 20 consecutive nights concluding at 5.00pm on the day after the 20th night commencing in 2009 and each alternate year thereafter.
vii)From 10.00am on 4 January until 5.00pm 25 January commencing in 2011 and each alternate year thereafter.
viii)Such other times as may be agreed between the parties.
3.To give effect to Order 2 the following shall apply:-
i)The times referred to in Orders 2.1, 2.2, 2.5, 2.6, 2.7 and 2.8 save for the period referred to in 2.3 and 2.4 shall take place in Brisbane or such other place in Australia as determined by the mother.
ii)The time specified shall refer to the time the child is delivered to the airport nearest the parties who has the care of the child prior to his time with the other party.
4.The parties shall each bear one half of the cost of the airfares for each of the periods of time referred to in the orders.
5.
The parties shall exchange a calendar of dates in accordance with the dates nominated in accordance with the orders between
1 January and 15 January so as to determine the dates when [X] will travel to and from he mother’s care during that calendar year.
6.The father is restrained from drinking more than 2 schooners of full strength beer in any 24 hour period when [X] is in his care.
At the time of the hearing, and during the course of the hearing the mother sought the following orders, which, to a very large extent were a mirror image of those sought by the father:
1.The child [X] born in 2002 shall live with the mother.
2.The said child shall live with the father and such time shall include:-
i)
From no later than 5.00pm on Friday to 6.00pm Sunday on weekends commencing on the Fridays falling closest to
13 February, 27 March, 15 May, 5 June, 31 July, 21 August, 30 October and 4 December of each year.
ii)From no later than 5.00pm on Friday to 6.00pm on the following Tuesday on the Fridays falling closest to 6 March, 26 June, 18 September and 13 November of each year.
iii)From after school Friday to before school on Monday on such weekends nominated by the mother providing the father with three weeks notice. Such weekend time to occur within 50 kilometres of Brisbane.
iv)From 5.00pm on the last day of school preceding the term holidays to 5.00pm on the second Monday of the Queensland first and third term school holidays each year.
v)From 5.00pm on the last day of school preceding the term holidays to 5.00pm on the last day of the Queensland second term school holidays each year.
vi)From 10.00am on the first Sunday of the New South Wales Christmas school vacation from 20 consecutive nights concluding at 5.00pm on the day after the 20th night commencing in 2009 and each alternate year thereafter.
vii)From 10.00am on 4 January until 5.00pm 25 January commencing in 2011 and each alternate year thereafter.
viii)Such other times as may be agreed between the parties.
3.The parties shall each bear one half of the cost of the airfares for each of the periods of time referred to in the orders.
4.
The parties shall exchange a calendar of dates in accordance with the dates nominated in accordance with the orders between
1 January and 15 January so as to determine the dates when [X] will travel to and from the mother’s care during that calendar year.
5.The father is restrained from drinking more than 2 schooners of full strength beer in any 24 hour period when [X] is in his care.
The evidence
The father relied on the following documents:
1.His amended application filed 3 October 2008;
2.His affidavit sworn and filed 26 November 2008;
3.The Affidavit of his mother Ms M sworn 19 December 2008 and filed 23 December 2008;
4.The affidavit of his father Mr M sworn 19 December 2008 and filed 23 December 2008.
The mother relied on the following documents:
1.Her amended response filed 28 November 2008;
2.Her Affidavit sworn and filed 28 November 2008
3.Her affidavit sworn 3 March 2009 and filed 5 March 2009.
I also had the benefit of a Family Report prepared by Ms Lara Turley who interviewed the parents and [X], the paternal grandparents and the half sibling [Z] on 1 December 2008.
I also had the benefit of listening to and observing the parents and their witnesses required to give evidence both in chief and in cross examination.
I also had the benefit of listening to the evidence of Ms Lara Turley who was cross examined by Counsel for both parents.
There were a number of exhibits.
I also had the benefit of carefully prepared submissions by Mr Givney and Ms Nash.
The issues
It seems to me the issues are these:
1.What are the appropriate parenting arrangements for [X] and in particular should he continue living with his father in Newcastle or be enabled to relocate to Brisbane to live with his mother and [Y] and [Z].
2.What is the consequence for [X]’s relationship with his father if [X] is enabled to relocate to Brisbane to live with his mother.
3.What is the consequence for [X]’s relationship with his mother if he continues living with his father in the Newcastle area and spends time with his mother.
4.Are there any factors which affect adversely the father’s ability to care of [X] as a full time parent.
5.Given the respective proposals of the parents, should the Court endeavour to formulate different arrangements for the time [X] is to spend with each parent.
The relevant law
I have regard to Part VII of the Family Law Act and in particular the amendments which came into being following the Family Law Amendment (Share Parental Responsibility) Act 2006. The significant sections are, and to which I must have regard, s.60CA which provides that:
“In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration”.
I must consider, in determining a child's best interests, the matters set out in s.60CC. They are broken down into two primary considerations. Firstly:
“(2) The primary considerations are:
a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”
There are a number of additional considerations in s.60CC(3) to which I must have regard insofar as they are relevant and I must also have regard to s.60CC(4).
I must also have regard to s.60B which sets out the objects of part VII and the principles underlying those objects. I must have regard to s.61DA which provides for a presumption of equal shared parental responsibility when a parenting order is made, save that the presumption does not apply when there are reasonable grounds to believe that there has been abuse of the child or family violence. The presumption may also be rebutted if there is evidence to satisfy the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
The relevance of the presumption of shared parental responsibility where it does apply or is found to apply is that the Court is then obliged to consider making an Order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable, the Court must go on to consider making an Order, if it is consistent with the best interests of the child and reasonably practicable, for the child to spend substantial and significant time with each of the parents[1].
[1] Subsection 65 DAA
It is also necessary for me to consider in the context of this case established case law in relation to relocation and the effect, if any, of the amending legislation upon such case law. It has been held that relocation cases are not a special category of case. The Family Law Act 1975 does not specifically mention relocation either in Part VII as it was or pursuant to the amending Act. Cases involving relocation are best described as parenting cases where the proposal of one of the parties involves relocation[2].
[2] Pascale v Pascale (1999) 25 FLR 607 and FLC 92-878 at para.40.
In A v A Relocation Approach (2000)[3], the Full Court of the Family Court of Australia summarised the guidelines to be applied in the determination of a parenting case involving a proposal to relocate the residence of a child. That summary, in effect, is this.
i)the welfare or best interests of the child as the case may be remains the paramount consideration but is not the sole consideration;
ii)a Court cannot require the applicant for the child's relocation to demonstrate compelling reasons for the relocation;
iii)the Court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into a discrete issue, namely a primary issue, and a further or separate issue as to whether the relocation should be permitted;
iv)neither party bears an onus to establish that a proposed change to an existing situation or the continuation of an existing situation will best promote the best interests of a child;
v)a parent's rights as to freedom of movement are not to be ignored.
[3] A v A Relocation Approach (2000) 26 Fam LR 382
The Full Court said later in the case of A v A[4] that it was suggested that three practical steps should be followed by a Court in considering a case which involved relocation.
[4] A v A Relocation Approach (2000) 26 Fam LR 382
I also have regard to the High Court decision in U v U (2002)[5] in which the High Court said that:
“Whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration of the welfare of the child if that were to be adversely affected by movement of a parent.”
[5] U v U (2002) 29 Fam LR 74; FLC 93-112
In D v SV (2003)[6], the Full Court commented on the need to:
“Evaluate all options to determine if the welfare of the children could fit into the mother's right to live where she pleased.”
[6] D v SV (2003) 30 Fam LR 91at 78290; FLC 93-137
The Full Court of the Family Court of Australia late in 2007 gave consideration as to the effect of amending legislation upon relocation. It is reported as Taylor v Barker[7]. In that case Brewster FM permitted the mother to relocate with a 9 year old child to North Queensland from Canberra. The Full Court found that when considering the application of s.65DAA the matters which the Court has to consider under that section, being equal time or substantial and significant time, must initially be considered without regard to any relocation proposal which might also be before the Court.
[7]Taylor & Barker [2007] Fam CA 1246; (2008) 37 Fam LR 461;
The Full Court went on to say that any relocation proposal will then have to be balanced against the option of equal time or of substantial and significant time if either of those options has been found to be in the child's best interests, with the outcome normally emerging from a consideration of whether such an arrangement was reasonably practicable. The Full Court went on to say in paragraph 82:
“We also acknowledge that this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter and that, at least prior to the 2006 legislative amendments, the preferred approach was not to consider a relocation proposal separately from other proposals in relation to the child's living arrangements.”
At paragraph 83 the Full Court said this:
“However, consistently with what the Full Court said in Goode, the options of the child spending equal time or substantial and significant time with each parent must now be given separate and real consideration notwithstanding that a relocation proposal may also have to be given subsequent consideration with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an equal time or substantial and significant time arrangement. Not to approach a case involving a relocation proposal in this way would devalue the imperative imposed by the Act to consider whether it is in the best interests of the child in the case to spend equal time or substantial and significant time with each parent.”
In P v P[8], Brown FM gave very careful consideration to the word "meaningful" in the context of s.60CC(2)(a) and said as follows:
“256. In the context of s.60CC(2)(a) the use of the word "meaningful" by the Legislature is interesting. The ordinary definition of "meaning" and "meaningful" when it is attached to an idea or some object is denoting of the significance or importance of that idea or object. It seems clear that the Court is only to consider whether a relationship is meaningful to the child concerned after it has assessed the benefit or advantage such a relationship will bestow on the child concerned. Accordingly, it seems clear that the Legislature intends the Court to consider the significance of the child concerned having a relationship with both his or her parents in a positive or beneficial sense.
257. The practical underpinning of how a relationship for a child with one or either of his or her parents is to be rendered meaningful in the context of a parenting order is provided by s.65DAA. The emphasis is on time, but not merely on the extent of that time but rather on its quality and the manner of its utilisation with the child or children concerned. In this context the Court is to consider the parent concerned spending time that falls on weekends, holidays, week days and perhaps most importantly time that allows that parent to be involved in a child's daily routine and occasions of particular significance for both the parent and child.
258. The rationale of s.65DAA is that children benefit in an emotional and developmental sense from feeling that their parents are involved in all aspects of their care which flows from them being exposed to their parents in a variety of settings. These settings include fun activities on holidays and weekends, essentially interacting with their parents in a relaxed setting as well as the day to day reality of the child's life such as supervising homework and bed times, imposing day to day discipline, collection and delivery to school and sports training, essentially spending time with parents in more mundane situations. In this way the child is likely to have a more balanced and richer relationship with the parents concerned.”
[8] P v P [2006] FMCA Fam 518 at para.256 to 258
It seems to me that there is a shift toward the Court being required to consider in a much more practical manner how a child's development can be nurtured and promoted by being exposed to and enjoying in a beneficial sense all the aspects of living with each parent. It seems to me that this requires an involvement in the whole of the ordinary household routine where it is appropriate. See the Full Court decision of Goode v Goode[9].
[9] Goode & Goode [2006] Fam CA 1346; 36 Fam LR 422; FLC 93-286;
I have considered also the decision in Mazorski and Albright[10], another case involving relocation where Her Honour Justice Brown after setting out the definition of “meaningful” and “meaning” said at paragraph 26:
“What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantities one. Quantities concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant”.
[10] Mazorski & Albright (2007) 37 Fam LR 518; at 526
Section 60B (1) (a) in my view leaves no doubt as to the role to be played by either parent in having a meaningful relationship in the lives of their children.
Her Honour Justice Bennett discussed the terminology in G & C[11] finding that the enquiry was a “prospective” one which requires the Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[11] G & C [2006] FAM CA 994
In the recent full Court decision of McCall & Clark[12], their Honours Bryant, Faults and Boland concluded that there are three possible interpretations of s60CC(2)(a) at paragraph 118:
[12] McCall & Clark [2009] Fam CAFC 92
One interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
A second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
The third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”)”.
The Full Court concluded that the preferred interpretation of benefit to a child of a meaningful relationship in s.60CC (2) (a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant[13].
[13] Paragraph 119
The Full Court rejected the interpretation in sub paragraph (b) finding that if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption, then it would have said so in clear and unambiguous language[14].
[14] Paragraph 120
The Full Court accepted as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazurka, and consistently with their conclusions also agreed with the reasoning of Bennett J in G & C (supra).
The Full Court also said[15]:
“In reaching these conclusions, we also considered the legislation requires a Court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft Orders to foster a relationship with one parent if this would not be in the child’s best interests.”
[15] Paragraph 122
Consequently, I conclude that I am bound by the existing authorities, some of which I have referred to in the preceding paragraphs, and subject to the facts of this particular case. It seems to me the amending legislation provides a new focus and emphasis on both parents being not only involved but substantially involved with the lives of their children except when it is or would be contrary to the child's best interests.
The Family Report
Ms Turley found [X] at the time of the interviews on 1 December 2008 to be a confident and assertive child who did not present as being comfortable discussing his family situation and answered many questions put to him in single word responses. [X] appeared to
Ms Turley to present developmentally within normal parameters[16].
[16] Paragraph 64 of the Family Report
Ms Turley identified [X]’s developmental needs as being a safe and nurturing home environment on the premise that children of this age are still attached to and dependent on their parents but can usually maintain longer periods without direct contact with a parent[17].
[17] Paragraph 66 of the Family Report
Ms Turley identified a number of developmental tasks that [X] has to accomplish at that age for example, increasing independence, enhancing socialisation skills and learning to self regulate feelings and behaviours. For [X] to be able to continue to adequately meet these milestones, he needs security and consistency in his care environment. The current litigation and the mother’s move to Brisbane has created a sense of instability and uncertainty in [X]’s life[18].
[18] Paragraph 67 of the Family Report
It was clear to Ms Turley that [X] did not want to be seen as making a choice between his parents.
I conclude from Ms Turley’s report that [X] has no significant criticism of either of his parents, enjoys spending time with each of them and moves between their respective homes with relative ease, enjoys spending time with [Y] and [Z] and has a close attachment to the paternal grandparents, who live near Orange but see him from time to time.
[X] told Ms Turley that he thought it would be better if the mother moved back from Brisbane to the Charlestown area because then they would be much closer. He told Ms Turley, of his mother,
“I didn’t want her to go up there. I had to go on a plane by myself and the first time was scary.”[19]
[19] Paragraph 72 of the Family Report
Ms Turley spoke to [X]’s school teacher who reported that [X] was academically achieving solidly in the “sound”/average category and did not have any adverse behavioural problems. [X]’s school teacher found [X] to be more settled in the second half of 2008 and considered that the routine of being in the one household may have been beneficial. The teacher commented additionally that [X] appeared much happier with the school work he had produced during the second half of the year[20].
[20] Paragraphs 79 and 81 of the Family Report
In her evaluation, Ms Turley concluded that it would appear [X] is functioning well at an emotional, behavioural and academic level which is suggestive that the current care he is receiving from the father is adequate[21].
[21] Paragraph 83 of the Family Report
Ms Turley concluded that [X]’s awareness of the different surnames by which he is referred in each household was expressed as a concern for [X], and is an example of the conflictive situation he is dealing with. Ms Turley concluded that the issue of the name by which a child is known is fundamental to their sense of identity, and ambiguity about this can create significant distress for a child[22].
[22] Paragraph 84 of the Family Report
Ms Turley concluded that [X] appears to have a close and positive relationship with both parents but that the reality of the geographical distance between the parents means that unless either parent is prepared to reside in reasonable close proximity to the other then [X] will suffer a significant loss in terms of his attachment relationship to the parent with whom he does not reside[23].
[23] Paragraph 85 of the Family Report
In my view, Ms Turley fairly identified the difficult issue that the Court is required to decide when she observed that the impact of the mother’s proposal on [X] would equate to a significant loss for [X] in terms of his relationship with the father, a loss which is likely to be even more profound given that [X] has been in the primary care of his father for the past eight months and the reality of the geographical distance will mean significantly less time between [X] and the father. Ms Turley concluded that the mother’s proposal will also reduce the opportunity for the father to engage in a meaningful parental role[24].
[24] Paragraph 86 of the Family Report
Ms Turley observed that the mother’s proposal will result in a change of school and community for [X], with the consequent loss of opportunity to spend time with the paternal family also likely to impact adversely as to [X]’s relationship with them if he were to live with the mother in Brisbane[25].
[25] Paragraph 87 of the Family Report
Against that, Ms Turley correctly observed that the impact of the father’s proposal, if the mother chooses to remain in Brisbane is that [X] will be separated from his mother who had been his primary carer for the first six years of his life. Ms Turley concluded that the significance of such loss should not be underestimated, and if not managed effectively could have implications for [X]’s long term emotional and psychological well being.[26]
[26] Paragraph 88 of the Family Report
Ms Turley also concluded accurately in my view that the father’s proposal would mean that [X] would be separated from his two siblings with whom he has lived for the first six years of his life, it being acknowledged that sibling relationships often play a significant function in times of family crisis, parental conflict and parental absence. Ms Turley thought that separation of [X] from his siblings however needs to be considered in light of the developmental stage and specialised needs of his two older siblings[27].
[27] Paragraph 89 of the Family Report
Ms Turley was cross examined extensively by both Mr Givney and Ms Nash.
In response to questions from Mr Givney, Ms Turley said that [X] has quite a well established relationship with both his mother and father and suffered significant grief when his mother moved to Queensland. When asked whether he would suffer further grief if the mother’s application for him to live with her in Brisbane was successful and he was removed from the care of his father Ms Turley said:
“I think that [X] will grieve the relationship from whichever parent he is separated.”
Ms Turley did not agree with Mr Givney’s proposition that the mother before moving to Queensland had concluded that [X]’s relationship with her was more important than [X]’s relationship with his father.
Ms Turley thought that the mother was trying at that time to weigh up what the relationship had been prior to her move and what it was going to be like after she had moved. Ms Turley said that the mother left her with the sense that a few weekends during the school term and the whole of the holidays would be sufficient to enable [X] to maintain a relationship with his father.
Ms Turley did not see that as the mother prioritising her relationship with [X] above [X]’s relationship with the father but that the mother was trying in some sense to justify to herself the move to Queensland while also providing what she thought was enough time to enable [X] to maintain a relationship with his Dad.
When asked by Mr Givney whether [X] was likely to have adjusted to the circumstances of now living with his father and knowing that he would see his mother on a regular basis, Ms Turley said that [X] sees that with some prediction as part of his routine but could not say with any certainty that he would have made an emotional adjustment, that is the emotional adjustment of the significant loss of relationship with his mother. She thought it is unlikely that he would have any sense of stability or permanency about the present arrangement, partly as a consequence of the continuing litigation.
Ms Turley thought that [X]’s comment that he would like his mother to move back to Charlestown was indicative of him wanting closer proximity to his mother. Equally, Ms Turley thought if [X] where living with his mother he would want close proximity with his father as well.
Ms Turley gave very careful consideration to Mr Givney’s proposition to her that it was difficult for her to say one way or the other whether [X] has adjusted to living with his father and the loss of his mother or was still adjusting. Ms Turley concluded from the observation at the time of the Family Report early in December that [X] was still having some difficulties in terms of his relationship with his mother, based particularly in [X]’s reluctance to farewell his mother and the mother had mentioned to her that [X] demonstrated behaviour indicative of anxiety by wanting to know where she was all the time, not being able to leave her.
Ms Turley also thought that the fact [X] was not discussing his emotions about missing his mother or what that now meant for him openly in the father’s household was indicative of some psychological emotional difficulties adjusting to his new relationship of living with his father and spending occasional time with his mother. Ms Turley thought that ideally he wanted a relationship with his mother and his father.
When asked as to the risk for [X] if he were to commence living with his mother, Ms Turley thought that represented a considerable risk in being required to face another significant adjustment after a period of about 12 months living with his father, but not because of attachment given that [X] was then at an age where he had well established primary attachment relationships to both his mother and his father, and a move would not affect those attachments. It would however impact significantly on other developmental aspects of his life around his behaviour and academic achievement, and if some of those things started to suffer Ms Turley thought his relationships with his peers and with other people could be quite challenging.
When asked by Ms Nash as to the consequence of the loss of [X]’s relationship with his siblings and the disruption of that relationship, given they had lived together for the whole of [X]’s life until April 2008, Ms Turley agreed that he would be missing his siblings and that such disruption has some ramifications for him potentially giving rise to some issues associated with anxiety. Ms Turley thought that a further significant risk arose if the loss of those relationships was not dealt with appropriately. If he was not able to deal with and to articulate his feelings in a way that he finds some resolution to the problem
Ms Turley thought that would have implications for both for his academic progress and in terms of being able to meet some emotional developmental milestones including negotiating peer relationships and becoming more independent of his mother and father.
Ms Turley did not conclude the aspects she observed of [X]’s behaviour was indicative of anxiety as she saw him as being somewhat angry and confrontational with his mother, as if he did not quite know how to deal with saying goodbye but he managed that by acting out with some anger.
Ms Turley thought it was likely that when the father did not arrange for [X] to spend some time with his mother shortly after she moved, and it was a period of between six and eight weeks before the mother saw [X] after she had moved, and the father thought there was no adverse reaction or behavioural display of distress of not coping, Ms Turley thought the father may have underestimated to some extent internally what was going on for [X].
Ms Nash suggested that the mother’s description of [X]’s anxiety when spending time with her and sleeping in his mother’s bed could be indicative of [X] not spending sufficient time with his mother to meet his needs. Ms Turley did not agree with that proposition concluding that in all probability [X] wanted what was in place after the parents separated and before the mother moved to Brisbane, and that he wanted a regular meaningful and stable relationship with both his parents.
Ms Turley thought that some of the anxiety based behaviours or insecure behaviours were predominately as a result of the separation from the mother and separation from [Y] and [Z] and consequently that did not equate to [X] needing more time with his mother. It was more likely that [X] was not prepared for the separation in April 2008 and the consequences which flowed.
Ms Turley said that with a change of school for a child of [X]’s age, current research indicates that there is a risk for children in the seven to twelve age group of particularly negative implications for both academic and behavioural outcomes for children who are relocated when their parents are separated but agreed much would depend upon how such an adjustment was managed, and for it to be successful, would depend very largely upon the cooperation between the mother and the father, especially given [X]’s relationship with his parents and his deep loyalty to each of them.
When Ms Nash suggested that the father did not have the same ability or perhaps the same degree of certainty to meet [X]’s emotional needs as the mother, Ms Turley said this:
“I would not agree with that because I believe that [X] has developed well and is the confident, lovely child he is because of the input from both parents. He’s also done, or at least my understanding is that he has done very well in Dad’s care both at school and behaviourally so I think that is a credit to what his father has been able to do. I do appreciate that in the last 12 months, particularly just after the mothers move to Brisbane that the father did not demonstrate as high a level of promotion and support about his relationship with the mother prior to the Court orders being put into place.”
When asked directly by Ms Nash as to whether she had any concerns about the father’s ability to meet [X]’s emotional needs Ms Turley said:
“Not in general terms. In relation to issues resulting from the separation from his mother since April 2008 I do think that the father needs some additional support or advice in assisting [X] to manage some of those issues.”
Application of section 60CC
As to section 60CC I make the following observations and findings:
(2) The primary considerations are:
a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
I find there is no doubt on the evidence before me that [X] is loved very much by both his father and his mother.
I am satisfied on the evidence that both parents care about him very much and would like an outcome that ensures that he has a continuing relationship with each of them.
I find on the evidence that [X] will continue to have a meaningful relationship with each of his parents, irrespective of with whom he lives ultimately, and that it is of considerable benefit for him to continue those relationships.
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I am satisfied on the evidence before me that neither parent will willingly expose [X] to risks of this nature. I am equally satisfied that if such risk arose each parent would protect [X] accordingly.
I am satisfied on the evidence that whilst the parents may have had some minor arguments from time to time [X] has not been exposed to such arguments or affected by them.
There is no apprehended violence order in place.
Additional considerations are:
a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
[X] is not of an age where he is able to express a view to which I could attach any considerable weight. Further, Ms Turley commented upon [X]’s discomfort discussing his family situation and commented later to Ms Turley about his preference that his mother lived closer to where he lives rather than Brisbane.
Given [X]’s age and given the very good relationship he has with each of his parents, it is not surprising that he finds it very difficult to talk about his family situation and does not express any view at all as to a preference. It is clear from Ms Turley’s interview with him that he enjoys living with his father and no doubt looks forward to seeing his mother and [Y] and [Z].
b)the nature of the relationship of the child with:
(i) each of the child's parents; and
I am satisfied on the evidence that [X] has a very close and loving relationship with both of his parents. It is to the credit of each of them that with very few exceptions, both parents have ensured from the time of separation until the mother moved to Brisbane in April 2008, and from that time that each has acknowledged that it is important for [X] to spend time with the other parent and has ensured it occurs. There were some difficulties for a period of about two months following April 2008 which I find on the evidence was caused by a failure on the part of each parent to appreciate what was occurring at that time and the reasons for it but once a settled status was recreated both parents again ensured that [X] continued to have a close and continuing relationship with each parent.
(ii) other persons (including any grandparent or other relative of the child);
I am equally satisfied on the evidence that [X] has a very close and loving relationship with [Z] and [Y], subject to the limitations imposed by the personal challenges [Y] faces everyday with his various difficulties.
I am equally satisfied on the evidence that [X] has a strong and continuing relationship with his paternal grandparents whom he sees from time to time even though they live some distance from the Newcastle area.
It is significant, in my view, that Ms Turley commented upon the father speaking very positively about [Z] and [Y] and expressed to her strongly his feelings of missing both boys. Ms Turley commented also on the positive things being said by [Z] about the father. In the same vein the mother expressed very fond feelings to Ms Turley about the paternal grandmother although acknowledged that some adverse feelings implied conflict with the paternal grandfather.
It is significant in my view that Ms Turley found that both parents reported having a fairly positive and amicable post separation relationship with the other and could talk about a number of matters successfully although there were occasional challenges to suggestions.
It seems to me, and I find on the evidence that the ability of the significant adults in [X]’s life to converse and engage with each other successfully will enable [X] to have a continuing and strong relationship with each of them and will ensure that [X] is not faced with any challenging behaviour likely to undermine his relationship with any of the significant adults in his life.
c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
I am satisfied on the evidence that both parents are not only willing and able but ensure that [X]’s relationship with the other parent is facilitated and encouraged and that [X] continues to enjoy a close relationship with each parent as a consequence of the approach adopted by each of them.
Whilst there was a period of about 2 months following April 2008 when the father’s willingness to facilitate and encourage a close and continuing relationship between [X] and his mother was less than strong, and to some extent his answers in cross examination about this issue reveal a lack of insight as to [X]’s loss of the relationship with his mother, I am satisfied that the father is now well aware of the obligation he has if [X] is to continue to live with him.
The evidence establishes that the father is aware that [X] enjoys the time he spends with his mother and [Y] and [Z] and I am satisfied that the father will continue to ensure that those relationships will continue if [X] lives with him.
Equally, I am satisfied that if [X] lives with the mother she will also ensure that [X] maintains the relationship that he has now developed with his father. The mother acknowledges the very significant role the father has played since she has moved to Brisbane and describes the relationship with [X] and his father as having flourished.
Whilst the mother said in cross examination that she does not necessarily accept that the father has changed his drinking and gambling habits to the extent the father claims, I am satisfied on the evidence that the father has addressed his consumption of alcohol and gambling. Whilst I do not necessarily accept altogether the father’s evidence as to these activities and that he minimised his consumption of alcohol, it is not established on the evidence before me that those social activities he enjoys have in any way impaired his parenting ability toward [X] or affected adversely the role which the father has adopted of being [X]’s primary carer and all the practical difficulty that entails as a working parent.
I take into account in particular the father’s conviction for driving with a prescribed concentration of alcohol in June 2008 which I find on the evidence served as a salutary experience to him when he lost his driving licence for six months that is most likely to be a very significant deterrent to any further relapse. I note also the father’s willingness to consent to an Order as to limiting the consumption of alcohol whilst [X] is with him.
Whilst Ms Nash for the mother cross examined the father very extensively about his consumption of alcohol, gambling and visits to clubs and licensed premises, nothing flowed from that evidence from which I could make a finding other than that which I have made above.
d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
i) either of his or her parents; or
This consideration is central to the present dispute between the parents.
Pursuant to the mother’s proposal there would be a very significant change for [X] if he were to live with her involving not only a move from his father’s home to her home but a very considerable reduction in the amount of time he currently spends with his father, change of school, loss of his current peer group both at school and in his extra curricular activities and the inevitable uncertainty of settling into a new school and making new friends. Against that, he would be living with his mother which would no doubt give him a lot of comfort and also spend a lot more time with [Z] and [Y].
I am not able to ignore Ms Turley’s evidence as to the risks involved for [X] if he were to move to Brisbane especially that of suffering further grief as a consequence of the loss of the residential relationship with his father and the quite possible and negative implications for both his academic and behavioural outcome of changing school, irrespective of how it was managed. Further, I take into account the father’s ability to meet [X]’s emotional needs.
I also take into account Ms Turley’s evidence of [X]’s present development and his confidence and the input he has received from both his parents and his present stability in his father’s care and his progress both at school and behaviourally.
It seems to me that there would be a significant risk of loss for [X] if he moved from his father’s care to his mother’s care and that there is a very real risk that his present stability and development would be significantly destabilised and this would again subject him to a deal of confusion.
ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
A move to Brisbane could well result in [X] seeing less of his paternal grandparents but the evidence does not enable me to conclude safely as to the extent that this would occur.
In any event, I am satisfied that if [X] lived with his mother in Brisbane, his father will spend frequent time with him and that the paternal grandparents would ensure they visit the Newcastle area when [X] is spending time with his father.
Consequently, it seems to me unlikely that [X]’s relationship with his paternal grandparents will be significantly affected or affected at all while he is living in the Newcastle area or in Brisbane.
The significance of [X]’s relationship with [Z] and [Y] is not to be underestimated.
The mother gave detailed evidence as to the very significant achievements [Z] has made educationally at his new school and his commitment to training to be an Olympic swimmer involving about
35 hours a week optimally both early in the morning and after school, coupled with some recent part time employment he has secured and occasional time, but quite frequently, with his biological father, Mr D.
I find that the reality is that [Z] will spend more and more time away from his mother’s home, and when he is at home he is committed significantly to his Higher School Certificate studies, and more likely than not will attend University which may involve leaving home except for semester breaks.
Consequently, whilst the relationship between [X] and [Z] is significant and they miss each other I am not able to ignore the reality of their age difference and significantly different pathways from hereon. It seems to me that whether [X] is living with his father in the Newcastle area or his mother in Brisbane that he will nevertheless be able to maintain the well established relationship with [Z].
As to [Y], if [X] remains living in the Newcastle area, and given [Y]’s special education needs and the challenges he faces, the now well established relationship between them will not be affected adversely whether [X] is living in the Newcastle area with his father or in Brisbane with his mother.
e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
There is a significant practical difficulty and expense given the distance between Newcastle and Brisbane. However, I take judicial notice of the number of Airlines flying between Williamtown Airport and Brisbane Airport, the frequency of flights, the advantageous fare structures now available to travellers and the reasonable proximity of the respective airports to the homes of the parents.
Whilst neither parent could be described as wealthy, I note that each has been able to afford to fly [X] to and fro and I am satisfied on the evidence before me that each parent is able to afford to continue to do so, and will make provision for that cost.
f) the capacity of:
i) each of the child's parents;
ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
I am satisfied on the evidence before me that both parents are able to provide for [X]’s day to day physical needs and his emotional and intellectual needs.
g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
[X] is a young boy who on the evidence before me is confident and assertive and meeting his developmental milestones.
Ms Turley referred to the grief he is likely to be suffering consequent upon the loss or very significant change in the relationship with his mother and I propose to follow Ms Turley’s recommendation that the father arrange for [X] to receive some grief counselling. Whilst some time has elapsed since the mother moved to Brisbane, it is clear [X] was suffering from emotional difficulties at the time Ms Turley saw him in December 2008 and that if left unaddressed, those emotional difficulties may be compounding.
As to his parents, I am satisfied that neither parent has any lifestyle matters that affect adversely their ability to care for [X] and meet his needs.
h) if the child is an Aboriginal child or a Torres Strait Islander child:
i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
ii) the likely impact any proposed parenting order under this Part will have on that right;
On the evidence before me, this paragraph has no application.
i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
I have referred to this to a large extent earlier in these short reasons for judgment and no further comment is necessary.
j) any family violence involving the child or a member of the child's family;
No further observation or finding is necessary.
k) any family violence order that applies to the child or a member of the child's family, if:
i) the order is a final order; or
ii) the making of the order was contested by a person;
On the evidence before me, there is no current family violence order in force.
l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
In framing the Orders I propose to make, I will endeavour to avoid the need for further proceedings. I will adopt the submission made by
Ms Nash that both parents should be restrained from changing [X]’s place of residence for a period of three years unless with the prior written consent of the other and unless one parent moves closer to the other along the axis joining Newcastle and Brisbane.
m) any other fact or circumstance that the court thinks is relevant.
On the evidence before me, I am satisfied that the mother considered carefully all the consequences of moving to Brisbane before she did so and was motivated principally by the needs of [Y] and [Z]. Whilst the father did not necessarily oppose her moving, it seems to me that when the father realised [X] was also going which was something perhaps to which he had not given a lot of thought, he kept [X] with him to the dismay of the mother and when she was committed to moving and could not, for a number of reasons, reverse her decision.
The mother gives evidence that the move for both [Z] and [Y] has been of significant benefit, both in relation to their educational needs and achievements and also their stability and the resumption of more frequent time with their biological father.
Whilst the mother has changed her employment as a consequence of circumstances apparently outside her control, I am satisfied that the mother is able to work as a [omitted] and is no doubt successful at her occupation albeit it comes at a cost as far as working hours and the times of day which she works both in the very early morning and the late afternoon.
I am satisfied on the evidence that it is most unlikely that the mother would contemplate returning to the Newcastle district to live. The mother has had a number of moves in the past and she left me with the distinct impression that this move has been more successful for her particularly for her children’s stability and achievements but also for her.
Equally, I am satisfied that the father would not contemplate moving from the Newcastle area to the Gold Coast or Brisbane, and that his stability, both for employment purposes and emotionally lies in the Newcastle area and from which he is able to access support from his parents when necessary.
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(iv)participating in making decisions about major long term issues in relation to the child; and
(v)spending time with the child; and
(vi)communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
I have considered these matters at some length earlier in these reasons and no further observation is necessary save that the father is to be criticised for not having submitted income tax returns for a number of years which has put the responsibility of paying Child Support in issue. There was some evidence about Child Support, and the father does not receive any Child Support from the mother. In all the circumstances, I do not attach any significance to these passages of evidence when I come to weigh the overall commitment of both parents to their responsibilities as a parent to [X] and the discharge of those responsibilities.
Section 61DA
When making a parenting Order the Court is required to apply a presumption that it is in the best interests of the child for the child’s parents to have equally shared parental responsibility for the child, subject to the presumption not applying or being rebutted under circumstances provided in this section.
Whilst neither parent specifically proposed equal shared parental responsibility, and whilst that, by itself, is not a reason to make such Order I am satisfied from my observations of the parents whilst giving evidence, and the evidence of Ms Turley that it is appropriate to make such an Order.
I am satisfied having listened to each of them that in relation to major considerations each parent will be able to put any continuing personal issues aside to confer and in all probability agree about major decisions. I believe the cessation of litigation will enable them to focus more upon [X]’s needs to the extent, which has been limited, they have not been able to do so in the past.
I will set out the matters about which they are required to consult with each other so that there is no doubt as to their reciprocal obligations.
Section 65DAA
Consequent upon making an Order for equal shared parental responsibility the Court must then consider making an Order for a child to spend equal time or substantial and significant time with each parent in certain circumstances.
When I take into account the matters that I am required to take into account under section 65DAA (5), and given the distance between Newcastle and Brisbane, this is a matter where practical considerations require substantial and significant time with the other parent.
To that extent, the proposals put forward by each parent at the time of the hearing I find appropriate. I note also that Ms Turley supported those proposals.
The issue of relocation proposed by the mother
If [X] lives with his mother in Brisbane, the advantage for him is that he is reunited with his mother on a residential basis and is able to resume living with [Y] and [Z] as he did until April 2008.
The very significant disadvantage of such proposal is that [X] would be separated from his father for significant periods and would be required to change school and meet new friends with the consequent disadvantages and uncertainty to which I have referred in more detail earlier in these short reasons for judgment. Given that the mother does not propose to return to the Newcastle area and the father does not propose to move to the Gold Coast or Brisbane area, this is the only way in which [X] could achieve a relationship with his mother which he enjoyed prior to April 2008.
If [X] remains living in the Newcastle area with his father, he would continue to live predominately with his father whom it is established on the evidence is able to meet his day to day needs and with whom he has a very close relationship.
The disadvantage of [X] remaining in Newcastle is that he will continue to grieve, on Ms Turley’s evidence, the loss of the relationship with his mother. That can be addressed, to some extent by some counselling and about which I will make an Order.
Whether [X] lives in Newcastle or Brisbane, he will continue to have a relationship with his other parent.
Final conclusion
When I compare the respective proposals and the advantages and disadvantages my conclusion at the end of the day is that I give greater weight to [X]’s present stability with his father and the now demonstrated ability the father has not only to provide for [X]’s day to day physical needs but also his emotional needs and the continuing fostering of his relationship with his mother.
I am not able to ignore as a distinct disadvantage the inevitable disturbance to [X]’s present education and peer group and the need to re-establish those basic aspects of his day to day life.
I am satisfied that [X]’s present good relationship with his mother will be maintained if he continues to live with his father in Newcastle.
I accept that the mother will be, in all probability disappointed with my decision but I take into account her evidence and her willingness to continue the relationship she has with [X].
I have taken into account the right of both parents to choose their place of residence and their freedom of movement.
I take into account particularly the risk of [X] suffering further grief if he were to leave his father given the strength of that relationship. That risk is not warranted and is to be avoided.
I have considered very carefully whether it is possible for the Court to formulate different arrangements for the time [X] is to spend with each parent and I conclude that it is not possible for me to do so given the parties respective circumstances.
Having concluded that [X] should remain living in the Newcastle area, and primarily with his father, I find on the evidence that the amount of time [X] should spend with his mother should be as proposed by the father through his Counsel at the time of the hearing.
This will ensure [X] spends time with his mother, [Y] and [Z] on a frequent basis which will involve a little more travelling for [X] but on the evidence before me, there is nothing to indicate that he would not be able to cope with the increased travel and will no doubt look forward to spending time with his mother. In coming to this conclusion, I find that it is of significance to [X] to be able to maintain the existing meaningful relationship he has with his mother and to ensure its continuing significance for him. In my view, that is of considerable benefit for [X]. This may entail some short absences from school during some of the periods he spends with his mother in Queensland. I am of the view that such absences will be of no great significance for [X]’s education and are more akin to a day or so lost through illness.
For reasons given earlier, it seems to me necessary to make an Order restraining each parent from changing [X]’s place of residence for a period of three years, but to allow each parent some restricted movement within their current districts of residence, or otherwise along the axis between Newcastle and Brisbane. This will ensure some stability for [X], but more importantly, the ability of each of the parents to facilitate his transport between them.
I do not propose to make any specific order as to communication by telephone. I am satisfied that both parents have the good sense to ensure this occurs and will not obstruct its facilitation.
For these reasons I make the following Orders.
I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for judgment of Coakes FM
Associate: J. Manners
Date: 5 November 2009
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