Mulham and Watts
[2014] FCCA 2731
•5 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MULHAM & WATTS | [2014] FCCA 2731 |
| Catchwords: FAMILY LAW – Parenting – relocation – mother proposes a move to (omitted) – whether the child can maintain a meaningful relationship with his father if the relocation is permitted – best interests of the child. |
| Legislation: Family Law Act 1975 |
| Champness & Hanson [2009] FamCA FC 96 G & C [2006] FamCA 994 Mazorski & Albright [2007] FamCA 520 Mcall & Clark (2009) FLC 93-405 Paskandy & Paskandy (1999) FLC 92-878 Taylor & Barker [2007] FLC 93-345 |
| Applicant: | MS MULHAM |
| Respondent: | MR WATTS |
| File Number: | MLC 4514 of 2010 |
| Judgment of: | Judge McGuire |
| Hearing date: | 17 November 2014 |
| Date of Last Submission: | 17 November 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 5 December 2014 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Solicitors for the Respondent: | In person |
ORDERS
That all previous orders in respect of the child X born (omitted) 2007 (“X”) be discharged.
That the parties have equal shared parental responsibility for X.
That X live with the mother.
That the mother be permitted to relocate X’s primary residence to (omitted).
That X spend time and communicate with the father as follows:
(a)Each second weekend between Fridays at 6.00 p.m. until Sundays at 5.00 p.m. or otherwise as agreed between the parties;
(b)For one half of each Victorian gazetted school term holiday period as agreed between the parties but failing agreement being the first half in 2015 and each alternate year thereafter and the second half in 2016 and in each alternate year thereafter;
(c)For one half of the Victorian gazetted summer holidays commencing at 12 noon on Boxing Day 2014 and in each alternate year thereafter and at 12 noon on 24 December in 2015 and in each alternate year thereafter or otherwise as agreed between the parties;
(d)Such other time as agreed between the parties from time to time;
(e)By telephone, Skype or email at any reasonable time; and
(f)That X’s time with the father on weekends be suspended during school holiday periods.
That for the purpose of X’s time with the father, the mother will deliver X to the father’s home at the ordered time and the father return X to the mother at a mutually agreed point in (omitted) at the conclusion of each time.
IT IS NOTED that publication of this judgment under the pseudonym Mulham & Watts is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 4514 of 2010
| MS MULHAM |
Applicant
And
| MR WATTS |
Respondent
REASONS FOR JUDGMENT
Applications
These proceedings concern the living and parenting arrangements for the parties’ one child, X, born (omitted) 2007 (aged seven years).
The mother is the applicant. She seeks orders whereby she be permitted to relocate with X to (omitted). She currently lives in (omitted), which is an outer Melbourne suburb.
The mother’s proposal is that X would spend each second weekend with his father from Friday afternoon until Sunday evening, and for half of each Victorian school holidays. The father, Mr Watts, lives in (omitted), a Melbourne suburb.
The father opposes the application. He proposes final orders inter alia, for X to be with him as follows:
a)Each second weekend from after school on Friday (or Thursday in the event of Friday being a non-school day) until the commencement of school on the Monday (but extended to Tuesday in the event of Monday being a non-school day).
b)In the other week from Thursday after school until the commencement of school on the Friday.
c)For one half of each school holidays.
Previous final consent orders were made on 27 May 2010 providing, inter alia:
a)That the parents have equal joint parental responsibility for X.
b)That X live with the mother.
c)That X spend time with the father, inter alia, as follows:
i)During week one of the two week cycle from the conclusion of crèche/school on Wednesday until the commencement of crèche/school on Thursday.
ii)In week two of the cycle from 5.30 pm Friday until 4.00 pm Sunday.
iii)On special days.
X was only two years of age when those orders were made and they clearly did not anticipate school holiday time in the short term. The evidence is, however, that the parties have varied from those orders. There was a period of time when weekends continued until the Monday morning, albeit returning to early Sunday night endings on Mr Watts’ unilateral election earlier this year. I am also satisfied that the mother has offered longer periods of time during school holidays and recent interim orders have made provisions for school holiday time.
Background
The mother is a (occupation omitted). She also has part time employment as a (occupation omitted). Her primary employment now occupies four days per week on a short term arrangement with her current employer. The mother’s evidence is that “it is likely” that this arrangement will no longer be offered as of February 2015 when she will be required to work full time.
The mother lives with X in (omitted). She uses the assistance of her father who lives in (omitted) for some pre and after school care for X, or otherwise uses a professional carer if her father is unavailable. X goes to school in (omitted), a short walking distance from the maternal grandfather’s home.
The mother has re-partnered with Mr D. He lives in (omitted) and is employed as a (occupation omitted). Mr D has three children. They live primarily with their mother at (omitted). He spends time with those children each second weekend and for school holidays. The evidence is that Mr D’s time with his children is spent variously at (omitted) (at his parent’s home); at (omitted) with Ms Mulham and X; or at (omitted) also with Ms Mulham and X.
The evidence suggests that Ms Mulham and Mr D spend each weekend together and on alternate weekends X is with them. Further, Mr D commutes between (omitted) and (omitted), usually on three nights per week. Consequently, Ms Mulham and Mr D normally spend six nights per week together although they both give evidence that the travel for Mr D is onerous.
Mr D provided an affidavit (initially annexed to the mother’s trial affidavit) and was cross-examined.
The mother anticipates obtaining employment in her profession in (omitted) and hopefully on a flexible basis so as to accommodate X’s attendance at school.
Mr Watts is employed as a (occupation omitted). He too has re-partnered with Ms N. Ms N did not provide an affidavit. Mr Watts works in (omitted) with (employer omitted). He lives in (omitted) which is approximately 30-40 minutes travel from (omitted). Mr Watts has some flexibility in his employment allowing him to collect X from school in accordance with the current orders.
The parties commenced their relationship in (omitted) 2002. They separated in January 2010 and were divorced in September 2011.
The Issues
The evidence exposed the following as the major issues between the parties:
a)Should the mother be permitted to relocate with X from (omitted) to (omitted);
b)If the mother does relocate then where changeovers occur? The mother’s proposal is that the parties would meet at a half-way point and share the cost and effort of travel. The father’s proposal, should the relocation be permitted, is that the mother deliver X to him at (omitted) and collect him from (omitted) on each occasion.
The Evidence
The mother relied on her trial affidavit affirmed 21 October 2014. She had annexed an affidavit of Mr D to her affidavit. Objection was understandably taken. Mr D was, however, at court and on condition of him being made available for cross-examination, that affidavit was read into evidence.
The father cross-examined the mother and Mr D. Mr Watts relied on his affidavit affirmed 3 November 2014. He adduced no other evidence. Both parties represented themselves at the trial. It is understandable that both had some difficulty with the procedure and in isolating the relevant issues for the Court in what is obviously an emotional and complex issue for them involving a potential relocation. The mother became emotional at times, but overall both parties conducted themselves in a proper and courteous manner. Pursuant to the requirements of Re F – Litigants in Person Guidelines[1] the Court took considerable care in explaining the procedure to Ms Mulham and Mr Watts with an invitation to seek assistance in this respect at any time. Each party was provided with copies of the relevant parts of the Family Law Act 1975 (“the Act”).
Relevant Law
[1] (2001) FLC 93-072
Part VII of the Act provides for parenting orders. Significantly, there is no specific reference to “relocation” in the Act itself. Rather, as in any parenting matter, the Court is to determine orders which are both in the best interests of the child and reasonably practicable in their operation. It follows that the relocation of the child is neither prohibited in the Act nor is there a presumption against it. Rather, any proposal to relocate a child will involve the Court referencing the evidence and the parties’ proposals, including a relocation proposal, to the mandatory considerations in section 60CC of the Act and ultimately arriving, on balance, at orders which the Court considers to be in the best interests of the child. It is those best interests which constitute the Court’s paramount consideration.[2]
[2] Section CA of the Act
The framework for the Court’s consideration is provided in section 60B of the Act which sets out its object and principles as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CC of the Act provides a number of mandatory considerations for the Court’s attention and divided into “primary” and “additional” considerations, although not divided in any hierarchical sense of importance and none being determinative of the orders. Recent amendments to the Act, however, require the Court to place “greater weight” on the considerations of family violence and child abuse set out in section 60CC(2)(b).
Section 61DA(1) of the Act gives a presumption that parents have equal shared parental responsibility for their children. Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[3] Such responsibility normally manifests in decisions of a more important and long term nature for children in matters such as education, religion, medical procedure and the like, contrasted to day-to-day decisions that parents will normally make for their children.
[3] Section 61B of the Act.
In the matter now before me, both parties propose a continuation of the equal shared parental responsibility orders which have stood since 2010. There are no issues of family violence which would cause the presumption not to apply. The historical and current evidence assists me in accepting that it would be in X’s best interests for his parents to continue to equally share his parental responsibility.
The significance, however, of an order for equal shared parental responsibility is that the Court is then obliged to enter upon a pathway of consideration of options for X’s parenting. Firstly, the Court is obliged to consider whether it is in X’s best interests and reasonably practicable for him to live in an equal time regime between his parents. Neither party argues for orders in these terms.
If the Court determines that equal time is either not in X’s best interests or not reasonably practicable then it turns its mind to considering whether orders for X to spend “substantial and significant time” with each of the parents is both in his best interests and reasonably practicable. [4]
[4] Section 65DAA(1) and (2) of the Act.
“Substantial and significant time” is defined in the Act[5] as:
[5] Section 65DAA(3)
a)The time that the child spends with the parent includes both:
i)Days that fall on weekends and holidays.
ii)Days that do not fall on weekends or holidays.
b)The time the child spends with the parent allows the parent to be involved in:
i)The child’s daily routine.
ii)Occasions and events that are of particular significance to the child.
iii)The time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
X currently spends time with the father each second weekend and on the Thursday in the off week overnight. Mr Watts says that this allows him to collect X from and take him to school on a number of occasions each fortnight thereby allowing him direct involvement with X’s education. Mr Watts’ proposal of continuing this regime therefore fits squarely with the definition of “substantial and significant time”.
The orders that the mother seeks therefore do not sit with either of the mandatory options of equal-time or “substantial and significant time”.
Section 60CC(2) and (3) of the Act are as follows:
(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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) 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;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents 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;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(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;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(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;
(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;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
Consequently, matters involving the proposed relocation of the child highlight the difficulties for the Court’s consideration where factors of distance, change and travel logistics often render proposed orders for equal time or substantial and significant time impracticable on a party’s proposal. Significantly, however, the proposal by a parent to relocate a child is just one of the numerous considerations relevant to that child’s best interests. It follows that it is not proper to separate the issues of, firstly, with whom the child should live and then, secondly and separately, whether a relocation should be “permitted”.[6]
[6] Paskandy & Paskandy (1999) FLC 92-878 [86,456] and Taylor & Barker [2007] FLC 93-345.
A long line of authority in superior courts in this jurisdiction have assisted in extracting a set of principles relevant to matters involving a proposed relocation of a child. Importantly, those general principles survived the significant amendments to the Act in 2006. Those principles can be summarised as follows:
a)The child’s best interests remain the paramount but not the sole consideration for the Court, and such interest must be considered within the context of section 65DAA of the Act (reasonable practicability).
b)A parent wishing to relocate a child does not need to demonstrate “compelling” reasons in support of the application.
c)The Court must consider all of the proposals together with their advantages and disadvantages but is not bound simply between the options offered by the parties and may itself formulate proposals in the children’s best interests.
d)Neither party carries an onus of proof to convince the Court either for or against a proposed relocation. Rather, the relocation is just one of numerous factors to be addressed in ultimately determining the child’s best interests.
e)The child’s best interests are to be weighed and balanced with the “right” of a proposed relocating parent’s freedom of movement, but such adult “right” must ultimately defer to the child’s best interests.
X's Best Interests – Section 60CC Factors
Primary Considerations
Section 60CC(2)(a) – The benefit to the child of having a meaningful relationship with both of the child’s parents
Unsurprisingly, Mr Watts argues that the mother’s proposed relocation of X will either impact negatively on or prevent X from having a meaningful relationship with him.
The evidence of both parents is that X is a confident and happy child who is settled in his relationships and households with both parents. The father gave evidence as to the attached, successful and bonded relationship between he and X. From the witness box, he particularised their lives together in a most positive fashion.
The Full Court in McCall & Clark[7], after noting that the Act does not assist with the definition of “meaningful”, referred to two decisions of judges at first instance[8], concluding that the task for the Court was both a qualitative and a prospective one. That is, the Court must look at the quality of the relationship between child and parent and not simply allocate an amount of time. Obviously, factors such as whether a relationship of quality is already established; the age of the child; the proposals for time and communication; all enter the consideration. Secondly, the Court is to make orders which assist the maintenance and flourishing of relationships into the future. Nevertheless, in doing so the Court must consider the current nature of such relationships.
[7] (2009) FLC 93-405
[8] G & C [2006] FamCA 994 and Mazorski & Albright [2007] FamCA 520
It is often underestimated common sense that a child might more successfully endure a relocation away from the remaining parent where that child has an already established, strong and successful relationship with the parent, rather than one where the relationship is troubled, problematic or in its developing stages.
The tenor of the father’s argument was to direct the Court to this consideration. Indeed, it is a primary consideration for the Court. It is, however, only one of the numerous considerations to be addressed and is certainly not determinative of the substantive issue. In Champness & Hanson[9] the Full court observed:
The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial judge to make orders most likely to ensure that the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make orders most likely to promote the child’s best interests. In seeking to achieve that objective, S60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with those parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors.
[9] [2009] FamCA FC 96 at 103
I am satisfied that X has an established, attached, comfortable and successful relationship with each of his parents. The mother’s proposal would disturb the frequency of that time in that it would remove the current Thursday overnight time each second week. X is just seven years of age. The question for the Court is to whether the longer gaps in time between X and his father would impact negatively on their current meaningful relationship?
Section 60CC(2)(b) – The need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
Family violence and child abuse did not feature in the evidence.
Section 60CC(3)(a) – Any views expressed by the child and any factor (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it would give the child’s view
X was just six years of age when trial directions were made. He had not yet reached seven years by the time of the evidence. The issues between the parties were discrete and did not involve the all too common allegations of family violence, mental illness, and/or substance abuse. Consequently, the parties, with my agreement, did not seek to obtain a family report.
Neither party gave or adduced evidence in respect of X’s views or preferences. Again, to the credit of both parents, their own emphasis was on the good relationships that he enjoys with each of them. In any event, at just six or seven years or age it would be unlikely that X would have the maturity to be able to rationally inform his own preferences as to his living and parenting arrangements. I am happy to presume that he wishes to continue his good relationship with each of his mother and his father.
Section 60CC(3)(b) – The nature of the relationship of X with each of his parents and other persons
It is clear that X’s mother has been his primary carer. I am satisfied that Mr Watts has confidently delegated that role to her. This implies no criticism of Mr Watts. He is constrained to a degree with his employment. In cross-examination, he volunteered his view of the mother as an excellent parent.
The mother was critical of the father in her questioning in cross-examination and in respect of offering him extra time with X or, alternatively, requesting his assistance with X only for the father not to always take up those opportunities. I am satisfied with the father’s explanations in that he, on a number of occasions, did answer those requests positively, but on others was obligated by his employment. I find no criticism of Mr Watts to be justified.
Nevertheless, for X, his formative years have been with an understanding of his mother as his primary parent. Notably, the father made only cursory suggestions of a change in primary home parent for X and made no such submissions in his final address. Again, I see this as being to the credit of Mr Watts rather than any implied criticism.
The mother, being of late a sole parent and trying to maintain her responsible employment, has enlisted the assistance of the maternal grandfather. Whilst I did not hear from this gentleman, I am satisfied on the evidence that he is an important person in X’s day-to-day life and takes him to and from school regularly. In fact, Mr Watts acknowledged the same in a valid argument that X has good relationships with extended family on both sides and that these would be negatively impacted by a move to (omitted). The maternal grandfather lives in (omitted).
The nature of X’s relationship with his father is discussed above. Suffice to say that it is clearly a settled, happy and mutually satisfying relationship. Again, despite some direct and implied criticism from the mother, I am satisfied that Mr Watts attempts to have some involvement with X in his schooling and with his friends in so far his relatively limited time and his employment permits.
The nature of X’s relationship with his father now is of some frequency. He spends every second weekend with his father (and until recently until Monday mornings) as well as Thursdays overnight in the other week. The parties live in relatively close proximity and I feel that movement for X between his parents’ homes is relatively simple and that changeovers often happen at his school.
Section 60CC(3)(c) – The extent to which of the child’s parents has taken, or failed to take, the opportunity:
(a) To participate in making decisions about long-term issues in relation to X.
(b) To spend time with X.
(c) To communicate with X.
As mentioned above, I find any criticism in respect of Mr Watts in this regard to be unjustified. I prefer that he has, on occasions, taken up the opportunity to spend more time with his child, but has been forced on other occasions to refuse due to his other commitments. In respect of this issue, I found his answers in cross-examination to be plausible, consistent and impressive.
Section 60CC(3)(ca) – The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parents obligations to maintain the child
There was some focus from the mother in this respect and some criticism in her cross-examination of the father of his historical child support payments. The evidence is that Mr Watts stopped his employment for a period so as to obtain a (qualifications omitted). He says that this was at a time when he was assisting in the care of his late father. He has returned to productive employment and pays child support accordingly. I, again, find any criticism of Mr Watts in this regard to be unjustified but, in any event, I find the relevance to the issues before me to be tenuous at best.
Section 60CC(3)(d) – The effect on any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents or any other child, or other person (including any grandparent or other relative of the child), with whom he has been living
The father also argues that the mother’s proposal represents a significant change for X. The parents agree that X is settled at school and progressing well, both academically and socially. He is seven years old and therefore of an age where he is establishing particular peer group friendships. The father says that such a change and the introduction of more onerous travel commitments will impact on his future interests in extracurricular activities and particularly those which take place on weekends. The mother’s proposal creates a change in the frequency of time and would produce gaps of some 11 days in X spending time with his father during school terms. These are all considerations raised by the father.
The mother uses the same argument in that X is a socially and academically adjusted young boy who has also successfully and easily endured his parents’ separation and, therefore, is adaptable and resilient and would be able to deal with the changes for him proposed by the mother. She also says that the loss of the father’s one overnight with X each second week can be compensated by block periods in school holidays (which has not always been available or taken up). This, however, begs the argument and distinction as to “quantity and quality” set out above.
Section 60CC(3)(e) – The practical difficulty and expense of the child spending time 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
For practical purposes, the mother’s proposal would deny X the overnight with his father on each second week. There are practical implications for X’s time with the father on each second weekend if the mother is permitted to relocate. Those, however, stem mainly from the positions of each parent in respect of changeover locations should the relocation occur. Despite her application to relocate X and disturb the status quo, the mother was adamant in her final submissions that changeovers on each second weekend should take place at a half-way point between (omitted) and (omitted).
Although it was a feature of her evidence in support of the relocation that she hoped to obtain employment in (omitted) consistent with X’s school hours, in her final submissions, the mother said that she also wanted to obtain part time work as a (omitted) and that apparently Friday afternoons and Sunday afternoons are popular occasions for such activity. Despite good authority and good reason for both parents making an effort and contributing to changeovers for children, I gleamed a certain self-interest in the mother’s attitude in this respect. Certainly, there was little sympathy from her in respect of the father’s more onerous situation should she be permitted to relocate X. Undoubtedly, Mr Watts’ seniority in his work allows him some flexibility. Nevertheless, the mother’s stance would require the father to leave his employment early and to travel through Melbourne in peak hour in order to get to the mother’s proposed collection point between Melbourne and (omitted). There is, of course, no evidence of any certainty before me that the mother will obtain the employment she seeks or any employment and/or her part time employment as a (omitted).
The mother’s proposal also introduces some onerous travel for X himself. The mother herself argued that the current logistical weekday arrangements for X are “exhausting” for him. This involves a relatively short trip from his home to his grandfather’s and/or some after school care with the grandfather or a professional carer. My impression generally of the mother’s evidence is that she was at pains to shore up her case at every opportunity to the stage of embellishing and being selective in her evidence. Her criticisms of the father in affidavit material and in her cross-examination took a similar tone. Nevertheless, I accepted that the mother is without legal representation and anxious to relocate to (omitted) and it is not unusual for unrepresented litigants (and some legal representatives!) to misunderstand the nature of the family law proceedings thinking that the “least bad” parent wins the day.
X’s situation is complicated by that of Mr D’s children. X and Mr D’s children coordinate their time with the mother and Mr D. This, however, involves regular travel for X to (omitted) where Mr D often enjoys time with his children. The father argues, with some merit, that the added travel for X on his weekends from (omitted) to Melbourne and return would be overly and unnecessarily onerous for the child. Interestingly, and when cross-examined on this issue, the mother was now at pains to tell the Court that X had handled that travel thus far without difficulty and there was no suggestion that he was “exhausted” by this process.
Section 60CC(3)(f) – The capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
Again, and despite criticism by the mother, I am satisfied that Mr Watts has demonstrated a capacity to attend to X’s physical, emotional and intellectual needs. I observed him as an interested and understanding parent. As mentioned above, he should not be criticised for delegating the primary care role to the mother.
The issue here is the mother’s capacity to care for X. She is and has been his primary carer. She has entered into a new relationship. I accept that her partner is based in (omitted). The mother is obviously desirous of pursuing her relationship with Mr D to its fullest. Both Mr D and the mother gave evidence that the current arrangement of Mr D to travel regularly during the week from (omitted) to (omitted) is “unsustainable”. Whilst I do not necessarily accept that to be the case, I do understand that they wish to establish a family unit in the traditional sense and that the current arrangements are less than perfect and are certainly onerous. They currently maintain two homes which would impose some financial impost. I accept that Mr D is able and willing to take on a greater supportive role for the mother and X within a family unit based in (omitted). All of this understandably impacts on the mother’s happiness which, in turn, has the potential to impact on her parenting capacity and then on X himself. The mother’s actual capacity to care for X is not challenged and emphasised by the father delegating that primary role to her.
Section 60CC(3)(g) – The maturity, sex, lifestyle and background (including lifestyle, culture and tradition) of the child and either of the child’s parents, and any other characteristic of the child the Court thinks relevant
The evidence did not address this consideration.
Section 60CC(3)(h) – If the children are Aboriginal or Torres Strait Islander
Not relevant.
Section 60CC(3)(i) – The attitude to the child, and the responsibilities of parenthood demonstrated by each of the child’s parents
Both parents have historically showed a commendable attitude to X’s parenting. This court fully understands the difficulties created by a proposed relocation of the child. It is not a criticism to say that there must be an element of self-interest in each parent. The father, in this case, does not want to reduce his time with his son. The mother wants to pursue her personal relationship. Such attitudes are perfectly understandable. The focus for the Court, however, must remain firmly on X’s best interests, whilst still taking into account the interests of the parents.
Section 60CC(3)(j) – Any family violence involving the child or a member of the child’s family
Not relevant.
Section 60CC(3)(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
The very nature of family law orders is that they are prospective and therefore subject to changes in the circumstances of a child, either parent, and the usual vicissitudes of life. Matters involving the proposed relocation of the child are among the more difficult coming before the Courts. Disputes in respect of parenting orders more commonly involve the discrete apportioning of children’s time between parents, whereas an issue of relocation brings in considerations of geography, travel logistics and significant change for child and parents. As Mr Watts argued before me, opportunities for spontaneity and flexibility in time and interaction with the child are lost by a relocation of the child away from one parent. Involvement in schooling and extracurricular activities is often not practical.
Consequently, if a relocation is permitted then the remaining parent is often left embittered and with a sense of loss. It is difficult to predict whether the child (or the parent) will adapt successfully to a new environment and a new lifestyle. A failure to adapt or a change in the child’s views might often result in further litigation. Conversely, if a relocation is not permitted and, as is the case here, that parent is the unchallenged primary carer then that parent is left aggrieved and unhappy.
The result, either way, can be a loss of communication and cooperation between the parents as anger, blame and other emotions present. Further, the requirements for children and parents to travel for the purposes of spending time with the other parent often conflict with other commitments of the child or the parent. All of these factors have the potential to lead to further litigation. However, it is for these parents to understand that courts make orders which, on balance, are in the best interests of their child. It is not the role or ambition of the court to produce an ideal or optimum solution. This is simply unattainable given the recipe of facts and circumstances presented to the courts. Once a determination is made, it is then for the parents to parent their child to the best of their ability and to discharge their parental responsibilities accordingly.
Findings, Discussion and Conclusions
I am satisfied that X has an attached, beneficial, successful and enjoyable relationship with each of his parents and each of their partners. I am satisfied on the evidence before me that X is a settled but robust young boy who is easily able to negotiate issues such as his parents’ separation and the making of new relationships with their new partners.
I am satisfied that both Ms Mulham and Mr Watts are capable, devoted and loving parents. It is not in dispute that Ms Mulham has been X’s primary parent. I am satisfied, after reading the affidavits and seeing both Ms Mulham and Mr D in the witness box, that they have a committed relationship and Mr D offers a generous and beneficial role in any family unit with X.
There are a number of advantages for X on the father’s proposal of retaining the status quo. X’s relationship with his father would be more frequent given the Thursday overnights in the off-week. On the mother’s proposal, gaps in time would increase from seven days at most to eleven days. X is settled and succeeding in his school and socially. The father’s proposal would not impose the extra travel obligations on X which would accompany the mother’s proposed relocation. Similarly, travel for the parents themselves is increased on the mother’s proposal. If he remains at (omitted) then X has much closer proximity and access to members of his extended family.
There are also factors which favour the mother’s argument. She is the unchallenged primary parent and should ordinarily have her right of “freedom of movement” and to pursue her own life given some weight. If she remains in (omitted) then the relationship between her and Mr D will involve the maintenance of two homes and will be tested by its own onerous travel obligations. There is potential vicarious impact on X himself.
The relationship between X and his father seems an extremely strong one. Both parties agreed that this was so. X is, by all accounts, a relatively mature, adaptable and resilient young boy. The mother’s proposal would still allow weekend time fortnightly as is the current arrangement, and the only loss of time would be for the one overnight in each week. As such, I am satisfied that X and his strong relationship with his father would endure the change in regime suggested by the mother. Mr Watts impressed me as a devoted and mature parent and I am satisfied that he too would adapt to any potential conflicts which might occur between his time with X and any extracurricular activities that X might take up. If this was to occur, however, then the mother would need to understand that the any orders of the Court are not open to unilateral change and are made to enshrine the important relationship between the child and the parent.
The consideration for the Court at arriving at X’s best interests is one of attributing weight to particular considerations and balancing all of those considerations. In this matter, I do not see the change anticipated by the mother’s application to impose a significant impact on the relationship between X and his father. That relationship is strong. It can remain frequent. X is of an age where other avenues of communication would be open to use. I give some real weight to the current strong and successful relationship between father and son. I also attribute weight to the mother’s right to a freedom of movement and to pursue her own relationship within the context of the move of a relatively short distance and one which will maintain fortnightly weekend time. I see advantages for X in his mother’s happiness being enhanced by pursuing her own relationship with Mr D in a traditional family unit.
Taking all of these matters into account, and on balance, I am satisfied that X’s best interests are served by his mother being permitted to relocate with him to (omitted). Given my comments in respect of the travel and changeover arrangements below, I am satisfied that such orders would be reasonably practicable. X is a child not unfamiliar with travel. I am satisfied that he copes with travel. The distance between (omitted) and Melbourne creates some onerous and perhaps inconvenient travel obligations but is not prohibitive of the mother’s proposal.
Nevertheless, and taking all of the above considerations into account, I am of the view that the mother should be responsible for the travel at the commencement of each period of time. There is no evidence of any certainty before me that the mother has or will have employment obligations which would prohibit her in travelling. Certainly, the orders that I am about to make should henceforth influence any employment that she does take up. The father is employed. That employment must be impacted to a degree on the mother’s proposal which would obligate the father significantly on Friday afternoons. However, on the Sunday returns I favour the parties each contribute to the travel and propose (omitted) as the appropriate meeting point. This will obligate the mother with slightly more travel on the Sunday but will also involve a contribution by the father.
It is, of course, the mother’s application which serves to impose these travel obligations, although I accept that any such order is a parenting order and must have X’s best interests as the focus.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 5 December 2014
Key Legal Topics
Areas of Law
-
Family Law
0
2
2