Narris and Pedron
[2020] FCCA 2717
•30 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NARRIS & PEDRON | [2020] FCCA 2717 |
| Catchwords: FAMILY LAW – Parenting – Mother’s Application to relocate with the parties’ two daughters aged eight and six from Town B/Town C to Town D– the Father opposes orders being made permitting the children’s relocation to Town D – where Mother wishes to move to Town D to be with her new partner –where both parties are loving, caring parents. HELD – Relocation allowed – parties to have equal shared parental responsibility – children to live with the Mother in Town D commencing at the end of the 2020 school year – children to spend time with the Father for three consecutive weekends in each four weekends and half of school holidays. |
| Legislation: Family Law Act 1975 (Cth) Federal Circuit Court Rules 2001 |
| Cases cited: Taylor v Barker [2007] 37 Fam FLR 461 |
| Applicant: | MS NARRIS |
| Respondent: | MR PEDRON |
| File Number: | MLC 1361 of 2019 |
| Judgment of: | Judge Bender |
| Hearing date: | 9 June 2020 |
| Date of Last Submission: | 11 September 2020 |
| Delivered at: | Melbourne (By Video Conference) |
| Delivered on: | 30 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Tim Puckey |
| Solicitors for the Applicant: | Morrison and Sawers |
| Counsel for the Respondent: | Rory McIvor |
| Solicitors for the Respondent: | Kate Freshwater Lawyer |
THE COURT ORDERS THAT:
The parties have equal shared parental responsibility for the children X born in 2011 (“X”) and Y born in 2012 (“Y”).
X and Y live with the Mother.
The Mother be restrained from relocating X and Y’s residence from Town B/Town C until the end of the 2020 school year, at which time she is permitted to relocate X and Y’s residence to Town D.
X and Y spend time and communicate with the Father, unless agreed otherwise in writing, as follows:
(a)During the school term:
(i)pending relocation, in a two-week cycle:
A.in week one from the conclusion of school Thursday until the commencement of school Monday; and
B.in week two from the conclusion of school Thursday until the commencement of school Friday.
(ii)upon relocation, commencing the second weekend of each school term, for three consecutive weekends in each four weekends, from the conclusion of school Friday until 5:00pm Sunday;
(b)For half of each of the school term holidays as agreed, and in default of agreement from 5.00pm on the middle Saturday until the commencement of school on the first day of the school term, and upon relocation to 5.00pm on the last Sunday of the holidays;
(c)For half of the long summer school holidays as agreed and in default of agreement the second half commencing at 5.00pm on the middle day and concluding at 5.00pm on the last day of the holidays;
(d)From 4.00pm on 24 December to 4.00pm 25 December in 2020 and each alternate year thereafter;
(e)From 4.00pm on 25 December to 4.00pm 26 December in 2021 and each alternate year thereafter;
(f)For Easter, in odd years, from the conclusion of school on Maundy Thursday, or 3:20pm if not a school day, until the commencement of school the following Tuesday, or 9:00am if not a school day;
(g)On the Father’s Day weekend in each year from after school Friday until 5.00pm on Father’s Day;
(h)For the Father’s and children’s birthdays from the conclusion of school until 7.30pm if a school day, and from 9.00am until 7.30pm on a non-school day;
(i)By telephone/facetime/skype at all reasonable times.
The time the Father spends with X and Y shall be suspended as follows:
(a)the Father’s time with X and Y pursuant to order (4)(a)(i) herein shall be suspended during all school holiday periods and shall recommence with the Father spending the first weekend with the children upon the commencement of each term;
(b)the Father’s time with X and Y pursuant to order (4)(a)(ii) herein shall be suspended during all school holiday periods and recommence on the second weekend of the school term;
(c)from 4.00pm on 25 December to 4.00pm 26 December in 2020 and each alternate year thereafter;
(d)from 4.00pm on 24 December to 4.00pm 25 December in 2021 and each alternate year thereafter;
(e)for Easter, in even years, from the conclusion of school on Maundy Thursday, or 3:20pm if not a school day, until the commencement of school the following Tuesday, or 9:00am if not a school day;
(f)on the Mother’s Day weekend in each year from the conclusion of school Friday until 5:00pm Sunday;
(g)for the Mother’s birthday from after school until 7.30pm on a school day, and from 9.00am until 7.30pm on a non-school day.
The Mother be permitted to communicate with X and Y when they are in the Father’s care by telephone/facetime/skype at all reasonable times.
Where changeover does not occur at X and Y’s school, unless otherwise agreed in writing:
(a)pending relocation, changeover shall occur at the McDonalds Town B carpark; and
(b)upon relocation, the Father is to collect X and Y from the McDonalds Town D carpark at the commencement of time, and the Mother is to collect X and Y from the Father’s residence at the conclusion of time.
The parties communicate with each other with respect to issues concerning X and Y via the MyMob app, or similar app, as may be agreed from time to time.
The Mother and the Father:
(a)keep the other advised at all times of their respective residential addresses and landline and mobile telephone numbers;
(b)advise the other immediately in the event that X and Y or either of them suffers any serious illness or injury;
(c)authorise any medical practitioner upon whom X and Y, or either of them, may attend from time to time, to communicate with the other in respect to X and Y’s medical condition and/or requirements;
(d)advise the other of any medical, dental or allied health appointments scheduled for X and Y and each parent be at liberty to attend such appointments;
(e)advise the other of all sporting and extra-curricular activities in which X and Y, or either of them, are involved and permit the other to attend such functions;
(f)authorise all schools at which X and Y may attend, from time to time, to:
(i)provide the other, at the expense of the other, copies of all school reports, school notices and school photographs in relation to X and Y;
(ii)communicate with the other, either by telephone, in writing or by personal attendance, in respect to X and Y’s progress at their respective schools;
(iii)permit the other to attend all school function to which parents are normally invited, including but not limited to the first day or the school term each term;
subject to any school policy in relation thereto;
The Father, his servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the Mother or any member or her household or family in the presence or hearing of X and Y or either of them or from permitting any other person to do so;
The Mother, her servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the father or any member or her household or family in the presence or hearing of X and Y or either of them or from permitting any other person to do so.
AND THE COURT NOTES THAT:
A.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Narris & Pedron is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1361 of 2019
| MS NARRIS |
Applicant
And
| MR PEDRON |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter is what is often termed a “relocation case”. Such matters involve one of the parties seeking permission to move the parties’ children to a location which, because of the distance involved, impacts on the amount of time the children can spend with the other parent. They are amongst the most difficult cases to determine.
These cases are very difficult because one or the other of the parties is by necessity disappointed in the decision made. Either relocation is allowed and results in a diminution in the time the children can spend with the parent they move away from or the relocation is not allowed and the party seeking to move has their plans for their future frustrated.
Such cases very often involve families where there are two capable and protective parents whose children are loved and well cared for.
These are the circumstances in this case.
In this matter the Mother is seeking to relocate with the parties’ two daughters X born in 2011 (“X”) and Y born in 2012 (“Y”) from Town B to Town D.
If permitted to relocate to live in Town D, the Mother proposes that during the school term, X and Y spend three weekends out of four with the Father from after school Friday to 4.00pm Sunday, half of the school holidays and special occasions.
The Mother has advised the Court that if relocation is not allowed, she will remain living in Town B and proposes the current living arrangements continue whereby X and Y live with her and spend time with the Father from after school Thursday to before school Monday in week one, from afterschool Thursday to before school Friday in week two, half of school holidays and special occasions.
The Father opposes the Mother’s Application to relocate to Town D with X and Y. He seeks they remain living with the Mother and spend time with him in a block of six nights in each fortnight as well as half the school holidays and special occasions.
If the Mother, X and Y are permitted to relocate to live in Town D, the Father seeks orders they spend time with him three out of four weekends from afterschool Friday to 5.00pm Sunday during the school term, for 12 days in the term holidays, for 4 weeks in the long summer holidays and on special occasions.
Both parties are seeking orders they have equal shared parental responsibility for X and Y.
Background
The Mother was born in 1981 and is aged 39 years. She is a self-employed tradesperson. The Mother has re-partnered with Mr E, a farmer. She is seeking to move to Town D in order to live with Mr E.
The Father was born in 1980 and is aged 39 years. He is employed on a full time basis as a factory worker with Employer F in Town B. The Father works Monday to Friday on a three week rotating roster. In week one he works Monday to Friday from 7.00am to 3.00pm. In week two he works from 11.00pm to 7.00am commencing Sunday night. In week three he works Monday to Friday from 3.00pm to 11.00pm. Each fortnight the Father has a rostered day off. It is his evidence that he takes his rostered day off every second Friday to coincide with the weekend X and Y are with him. The Father has re-partnered with Ms G. The Father and Ms G do not live together. The Father lives with his Mother at Town H, some 35 kilometres from Town B.
The parties commenced cohabitation in 2002 and married in 2006.
The parties’ evidence differs on when they separated. It is the Mother’s evidence the parties were separated under the one roof for most of the two years before their physical separation on 1 January 2018. It is the Father’s evidence the parties separated briefly in 2016 but reconciled until their final separation on 1 January 2018 when settlement of the sale of the former matrimonial home took place. After 1 January 2018, the Father moved to live with his mother in Town H. The Mother moved into rental accommodation in Town B.
Between January and October 2018, the parties disagree what the living arrangements for X and Y were. It is the Father’s evidence that X and Y lived equally with he and the Mother. It is the Mother’s evidence that X and Y spent equal time with the parents during the school holidays but otherwise lived with her and spent four nights a fortnight with the Father during the school term.
In March 2018, the Mother commenced her relationship with Mr E. In mid-2018 the Father commenced his relationship with Ms G.
In October 2018 the parties entered into an informal arrangement whereby X and Y lived with the Mother and spent five nights a fortnight with the Father; from Thursday to Monday in week one and Thursday to Friday in week two, half of school holidays and on special occasions.
The Mother issued an Initiating Application in February 2019 seeking property orders only. In his Response filed in March 2019, the Father sought both property and parenting orders for shared care.
On 24 April 2019, the Mother filed a Reply in which she sought orders for X and Y to live with her and that she be permitted to relocate with them to Town D.
Final property orders and interim parenting orders were made on 24 July 2019. The interim parenting orders reflected the informal parenting arrangements the parties had in place from October 2018.
The parties divorce became final on 12 July 2019. X and Y were with the Father and he held a “divorce party” which involved the girls baking a cake and singing “happy free day” to the Father the video of which was posted by his partner on social media (and quickly withdrawn).
From the monies received from her property settlement, the Mother purchased an investment property in Town D which is tenanted. In April 2020, the Mother vacated her rental property in Town B. It is her evidence that she could not afford to continue to live there as her entire income from her employment had disappeared due to COVID-19 and the Father had been assessed as not being required to pay child support in January 2020, when losses from his farming activities were offset against his income from his factory job.
The Mother based herself, X and Y in Mr E’s home in Town D when they were in her care whilst they were being home-schooled. With face-to-face schooling resuming, the Mother is living in Town B with her Mother.
X was diagnosed with level 2 autism by her psychologist, Dr J in May 2020. At the time of the final hearing of this matter, X was on the waiting list to see Dr K, a paediatrician at Region L Child Health.
The Evidence
The Mother
The Mother relies on her trial affidavit sworn 12 May 2020. The Mother also gave viva voce evidence at the final hearing.
The Mother also relies on the affidavit of her partner Mr E sworn 12 May 2020. Mr E gave viva voce evidence at the final hearing.
The Mother is seeking orders that she be permitted to relocate to Town D with X and Y in order to live with her partner Mr E.
If permitted to relocate the Mother’s initial proposal was for X and Y to spend alternate weekends with the Father as well as half the school holidays and special occasions. However, when discussing her proposal with Mr M the report writer, the Mother expressed a willingness for X and Y to spend three out of four weekends with the Father. At the conclusion of the final hearing, the Mother advised the Court she agreed with the Father’s proposal that X and Y spend three out of four weekends with him if relocation was permitted.
Where the Mother differs from the Father’s proposal in the event she is able to relocate is that she seeks school holidays be shared rather than X and Y spending additional holiday time with him. She argues that X and Y should be afforded the opportunity to spend holiday time in Town D and socialise and interact with their friends in that area during school holidays as well as during the school term.
Whilst the Mother expresses concerns about the Father over involving X and Y in adult issues, for example involving them in what she termed the ‘divorce party’, she describes him as a good father and says that X and Y love him and enjoy their time with him.
The Mother agrees that X and Y would probably prefer to remain in Town B and continue at their school where they are both progressing well. She also agrees that a move to Town D will initially be difficult for X and Y and they will require assistance and support whilst they adjust to a new school and a new home. It is the Mother’s evidence that she took X and Y to a counsellor in Town D to assist them after the parties separated and she will ensure they engage with their counsellor in the event relocation is allowed in order to assist them to adjust to the move.
It is the Mother’s evidence that she has made enquiries with N School in Town D and that she took X and Y to see this school in late 2019. It is her evidence that if the relocation is permitted, she proposes X and Y attend this school and accepts that she will be responsible for their fees if the Father is not willing to contribute. It is noted the Father expressed a willingness to contribute to X and Y’s fees at N School if relocation is allowed.
In the event relocation is allowed, the Father proposes that relocation not take place until the end of 2020 so that X and Y can finish out their school year. The Mother agrees to orders being made in these terms.
It is the Mother’s evidence that Mr E is not able to move to Town B / Town C to live with her because of his work commitments and because his four children live in Town D and spend time with him each alternate weekend from Thursday to Monday as well as half of all school holidays and special occasions.
It is the Mother’s evidence that if she is not permitted to relocate, she will continue to reside in the Town B / Town C area. It is the Mother’s evidence that she and Mr E will continue their relationship, but it will be made much more difficult by her not being allowed to relocate to live with him as a couple.
It is the Mother’s evidence that whilst relocation will change how X and Y currently spend time with their Father, she is of the view that them spending three weekends out of four as well as half of school holidays and special occasions will ensure that they are able to maintain their current close and loving relationship with him. She notes that the Father will be able to attend X and Y’s school on the Fridays that he drives to Town D to collect them as he will be able to come earlier in that day and participate in reading or any other activities that the school allows parents to be involved with.
The Mother agrees with the Father’s evidence that they do not have a good relationship and that they struggle to communicate with each other. It is her evidence however that they are able to communicate using the ‘My Family Wizard’ application when necessary to put in place arrangements for X and Y. This includes both of them engaging with X’s treaters because of her recent diagnosis of autism.
It is the Mother’s evidence that she doesn’t believe that a shared care arrangement would be in X and Y’s best interests in the event that relocation is not allowed because of the difficulties in the parties’ communication. It is her proposal that in the event that relocation is not allowed, the current living arrangements should continue as X and Y are settled in this routine and it is structured around the Father’s availability to care for the children in the context of his work commitments.
Mr E
Mr E is the Mother’s partner. He swore an affidavit on the 12th of May 2020 and gave viva voce evidence at the final hearing.
It is Mr E’s evidence that he is a farmer. He operates a farm in conjunction with his parents, but his main form of employment is his contracting business which involves him contract spraying, contract harvesting as well as carting hay and machinery.
It is Mr E’s evidence that he travels to wherever the work is, however 90% of his work is around Town O. It is his evidence that he is away from home 1 – 3 nights per week pursuing his employment, with October through to January being his busiest period.
It is Mr E’s evidence that he does not work weekends and arranges his work to ensure he is available when his children are with him pursuant to the orders that are in place for their care.
It is Mr E’s evidence that he and his former wife had a very acrimonious separation and that during lengthy family law proceedings she made various unsavoury allegations against him which were found not to be true. It is his evidence the orders that provide for his children to live with him 4 nights per fortnight is proof of the Court’s finding he poses no risk to his children.
It is Mr E’s evidence that he currently lives in a 5 bedroom home which has more than adequate accommodation for X and Y as well as his children when they are all there.
It is Mr E’s evidence that X and Y have a very positive relationship with him as well as his children, especially his younger two who are of a similar age to X and Y.
It is Mr E’s evidence that because of his employment and the living arrangements for his children, it would not be possible for him to move to Town B/Town C in the event that the Mother was not permitted to relocate to live with him in Town D.
It is Mr E evidence that if the Mother isn’t allowed to relocate, his relationship with the Mother will continue as they have been making it work for the past two and a half years. Understandably, this is not his preferred option.
The Father
The Father relies on his affidavit sworn the 26th of May 2020. The Father also gave viva voce evidence at the final hearing.
The Father is strongly opposed to the Mother’s application to relocate with X and Y to Town D. He wishes for them to remain in the Town B/Town C region and for them to live with him 6 nights in each fortnight.
It is the Father’s evidence that he is a very hands on Father and has been for the entirety of X and Y’s lives. It is his evidence that prior to separation he was their primary carer, despite being in full time employment. It is his evidence the Mother lead a party lifestyle, was unfaithful to him and would go away on holiday leaving X and Y in his care. The Father’s evidence in this regard is strongly refuted by the Mother.
It is the Father’s evidence that since separation he has continued to be a hands-on Father, adjusting his work commitments in order to be able to take X and Y to school. It is his further evidence that he attends at the girls’ school up to 3 times a week to participate in reading, school assemblies and other activities in which parents are regularly involved.
It is the Father’s evidence that if X and Y were to relocate to Town D his capacity to be involved in their day to day activities and particularly their school life will be severely limited as his time with them would be restricted to weekends and holidays only.
The Father agreed in cross examination that if relocation is allowed he would ensure that he continued to take his fortnightly rostered day off on Friday so he could travel to Town D earlier in the day in order to be able to attend at X and Y’s school to assist in reading and other activities, subject to the school’s approval.
The Father argues that relocation cannot be seen to be in X and Ys best interests given that they have lived all their lives in the Town B/Town C area, are both very settled in their schools and happily so and have all their friends and social activities in that area. Most importantly their extended paternal and maternal families live in that area including their grandmothers, his brothers and their children and the Mother’s sister and her children, noting the Mother’s sister is a teacher at X and Y’s school.
It is the Father’s strongly held view that relocation would severely impact on the very close and loving relationship that X and Y have with him because of the diminution in the time they would be able to spend with him and his inability to be actively involved in all of their day to day activities.
He expresses the view that the Mother’s wish to relocate to Town D is completely focused on her relationship with Mr E and not on what would be in the best interests of X and Y.
It is the Father’s evidence that he is in a committed relationship with his partner Ms G, though they have no immediate plans to live together. Ms G has a four year old son who has Autism and ADHD.
It is the Father’s evidence that he and Ms G spend most weekends together and that she has a very good relationship with X and Y.
After physical separation, the Father moved to live with his Mother in Town H which is approximately 35 kilometres from Town B. It is the Father’s evidence that he intends to continue to live with his Mother for the foreseeable future. When X and Y are in his care, they too live with their paternal grandmother. The Father agrees that his mother assists him in caring for the girls when they are with him, particularly on those occasions when his work roster makes him unavailable.
The Father was asked whether he would consider relocating to Town D to be closer to X and Y in the event relocation was allowed. After some consideration the Father indicated that it would not be feasible for him to relocate to Town D. It is unlikely he would find employment in the Town D area that is as well remunerated as that which he currently has in Town B given that he has no professional qualifications. Further, he has always lived in Town B and his family and friends are in that region, he is now engaged on weekends assisting in the management of the farm that his mother owns and Ms G would be unable to relocate to Town D given her son’s special needs and the services that she has in place in Town B to assist him.
The Father agrees with the Mother that they are unable to communicate well and that theirs is a very strained relationship. He agrees that the communication is limited to exchanges on the app that they have both downloaded and that they very rarely speak face to face or by telephone.
The Father’s partner Ms G swore an affidavit in support of the Father’s case on the 26th of May 2020. Ms G was not required for cross examination. In her affidavit Ms G confirmed that she and the Father have been in a relationship since mid to late 2018, that she and the Father spend most weekends together and that she has developed a close, loving and comfortable relationship with X and Y as has her son P. Ms G deposes that she would be unable to move to Town D if the Father was to move there and if he were to move that would be the end of their relationship.
Mr M
Mr M is a social scientist and Regulation 7 Family Consultant who prepared a family report at the joint request of the parties pursuant to rule 15.10 of the Federal Circuit Court Rules 2001. Mr M’s report dated 11 October 2019 is annexed to his affidavit sworn the 14th of October 2019. Mr M also gave viva voce evidence at the final hearing.
In his family report Mr M noted both parents to present well and to be cooperative and engaged in the assessment process.
Mr M observed X and Y with both of their parents as well as with Mr E and he expressed that those interactions were positive and that he has no issues of concern. His observations showed a close, loving and warm relationship existing between the children and both their parents and that their dealings and relationship with Mr E is also positive.
Mr M notes that at the end of the interview day Mr E politely walked up to the Father to introduce himself and to make a genuine effort to engage in light and appropriate conversation with the Father. He observed the Father to be uncomfortable with Mr E approaching him.
When commenting on his discussions with X, Mr M reports in paragraph [69] that X told him that she has attended the same primary school since prep but that “overall she did not convey a sense that school was positive”.
Mr M reports that X told him she would like to spend additional time with her Father and that if she was to spend less time with him she would feel “a little sad”. In response to a suggestion that she spend two additional overnights with her Father she told him that she would feel “more happy”.
In paragraph [79] Mr M notes that X told him that her Mother had told her that they may move to Town D and attend “this Jesus school” which she was not happy about. Mr M reports X told him she doesn’t want to move schools and “firmly advised that she wished to remain at her present school.” X also told Mr M that she has told her Father that she doesn’t want to move but she has not told her Mother this because she believes her Mother will “become sad”.
When discussing his interview with Y, Mr M notes Y told him she lived with each of her parents equally but then advised him she would like to spend additional time with her Father beyond the current arrangements.
In paragraph [86] Mr M reports that Y told him her Mother had not said anything about moving but that she would not be happy if she had to move and disliked the notion of having to start a new school. Mr M states that Y conveyed a sense of sadness if she moved and had to spend less time with her Father as she firmly conveyed a desire to spend more time with him.
Under the heading evaluation, Mr M at paragraph [103] reports as follows:-
“Mr Pedron impressed at interview as an extraordinarily involved, dedicated father, who took great pride in being active and regularly involved in his children’s lives. Mr Pedron also lives with the paternal grandmother, who provides an additional facet of support for the children”
In paragraph [106] Mr M observes:
“It would appear any relocation would negatively impact upon the parenting arrangements as such would bring an end to Mr Pedron spending time at the children’s school three times per week helping with their reading, and time together would practically need to be reduced. The commitment by Mr Pedron to actively support the children’s reading and to be an active part of their education, is commendable and demonstrates the extent of his commitment as a parent to the children.”
Mr M observes that Mr E explained to him that he was not prepared to relocate from Town D to be with the Mother in Town B as he did not wish to move away from his children. Mr M states that whilst he has no criticism of Mr E’s position, he observes that what the Mother is seeking to do in respect to X and Y is actually what Mr E is not prepared to do in respect to his children.
In paragraphs [110] and [111] Mr M expresses his views in relation to the proposed relocation as follows:
“110. In this Family Consultant’s opinion, it would appear the current parenting arrangements have afforded the children a sense of stability, predictability and routine. They have benefited from having the active and regular involvement of both their parents, plus the added benefit of their Father’s commitment to their education by regularly attending their school three days per week to help with reading. The Family Consultant is also of the view that Ms Narris does not appear to be genuinely focused upon what is best for the children in the circumstances and is exceedingly focussed upon her subjective views and interest of wishing to consolidate her relationship with Mr. E. Whilst she recognises the children greatly enjoy time with their Father and do not voice any concerns therein, she does not appear in the Family Consultant’s opinion, to particularly value the children’s relationship with their Father or prioritise such. Moreover, both she and Mr. E do not wish to drive the 150km between their respective residences, but are prepared to place the children in a position where they will need to do so on a regular basis to continue spending time with their father. This does not appear to be a child focused consideration.
111.This Family Consultant is of the opinion that it would not be in the children’s best interest to relocate with their Mother to Town D. Such an outcome is assessed to likely result in a negative impact upon the children, negatively impact upon their relationship and time with their father and not afford the children the benefit of their father’s regular commitment and involvement with their education.”
Mr M considered the Father’s proposal for an equal shared care arrangement being put in place in the event relocation was not allowed in paragraph [105] as follows:
“A week-about or equal shared-care parenting arrangement requires several core ingredients to be successful from the perspective of children. Such necessitates a high level of positive communications between parents, a high degree of cooperation, a strong sense of working together, a preparedness to consider the other when faced with parenting decisions, etc. Unfortunately, it does not appear Mr Pedron and Ms. Narris maintain any semblance of these ingredients to allow them to effectively share the care of the children. To put them in a position of having to do so may likely result in a destabilisation of the parenting arrangements, further struggles with the children noting different parenting styles and within an environment of poor communications, unilateral parenting decisions being made could not be excluded from possibilities.”
Under the heading “Recommendations”, Mr M sets out the following:
“114.Based on the aforementioned and in the absence of any other information to the contrary, it is respectfully recommended Mr. Pedron and Ms. Narris equally share parental responsibility regarding both subject children. X born in 2011 and Y born in 2012.
115. X and Y to remain living with Ms. Narris.
116.This Family Consultant is unable to support Ms. Narris relocating with both children to Town D. It is further recommended she be restrained from moving any further than a half-hour drive from the children’s school.
117.X and Y to remain enrolled in and continue attending their current school for the duration of their primary school education, unless both parents agree otherwise in writing.
118.Mr. Pedron to spend time with the children from the conclusion of school on Wednesday to the commencement of same the following Monday morning each fortnight, plus in the intervening week on a Thursday overnight.
119.Mr. Pedron and Ms. Narris to equally share all school holidays, Christmas, Easter, the birthdays of both children and their parents, and any other significant events.
120.Mr. Pedron to be at liberty to continue attending the children’s school to participate in the children’s reading and any other education support. Furthermore, both parents to be at liberty to attend the children’s school as and when most parents would ordinarily do so to participate in the school community.
121.Mr. Pedron and Ms. Narris to refrain from denigrating one another in the presence of the children and ensure such does not occur by any third party.
122.Mr Pedron and Ms. Narris to participate in and complete a post-separation parenting program for the purposes of enhancing their understanding of the benefit to the children in maintaining an ongoing relationship with their mother and father following separation.”
When giving his viva voce evidence, Mr M was asked to clarify his comment in paragraph [110] of his report where he stated that he was “of the view that Ms. Narris does not appear to be genuinely focused upon what is best for the children in the circumstances”. Mr M was asked in particular whether the point he was making was the Mother’s relocation proposal was not in the best interests of the children and to the extent that she was focussing on that, she was not focussing on what is best for the children. Mr M responded “yes”.
Mr M was then asked whether his comment was intended to be a criticism of the Mother as a parent. He replied “no not all” and agreed that his comment was purely a criticism of her proposal.
Having confirmed that the bond between X and Y and the Father was very strong, Mr M was asked whether the nature of the bond between X and Y and their Father was such that reducing his time with them to alternate weekends would “not place that relationship or that bond at risk”. Mr M responded:
“You’re correct…we’re not talking about a situation where one parent is seeking to relocate to Darwin, and you would only be looking at school holiday time. The impact on the relationship between dad and the children is not something that I would be concerned of” [sic].
Mr M was cross examined by Counsel for the Mother at some length about his opinion expressed in paragraph [111] that it would not be in the children’s best interests to relocate with their Mother to Town D and his comment that “such an outcome is assessed as likely to result in a negative impact upon the children, negatively impact upon their relationship and time with their father.”
The following interaction then ensued between Counsel for the Mother and Mr M:
Counsel: “So Mr M what that sentence is referring to is…the negative impact on the children is a reduction of time with their father. Is that right?”
Mr M: “Yes. And the capacity that the current arrangement affords.”
Counsel: “Now we’re all quite clear that your view is the bond or attachment between the girls and the father is certainly not going to be damaged or severed or anything of that nature by a relocation, by a reduction of that involvement.”
Mr M: “Yes”.
Counsel: “Can I suggest that from a social work or child perspective, we’re talking about an optimal arrangement. That is, your perspective is that these children, all children should have as much time as possible with both parents”.
Mr M: “Yes.”
Counsel: “But it doesn’t follow that if as much time as possible amounts to alternate weekends and a visit to the school on Fridays when – on the alternate Friday when the father has an RDO, for example it doesn’t follow that this lacks any meaningfulness for the children.”
Mr M: “Correct.”
Counsel: “It certainly doesn’t follow that the suboptimal arrangements of spending a little bit less than in an ideal world is going to have any negative impact on the children’s wellbeing or attachment with their father.”
Mr M: “Correct. As I indicated earlier,.. there is every indication that the relationship is quite intact, quite positive and we’re not looking at a substantial disruption in that relationship.”
Counsel: “And if Mr Pedron’s evidence is that in the event that there’s a relocation occurs, the children are attending a school at Town D called N School and he has an RDO which he’s able to structure so that it falls on his weekend, that he would propose to travel up to Town D to collect the children from school. And he would have the capacity to come early and, in his words, “if necessary, sit around all day”. But the point being he would be – he would have the capacity to structure his employment so that he could continue to attend their school, and he would do that on a Friday for his weekend. Does that give you some comfort about the relocation proposal?”
Mr M: “It assists the situation. It’s encouraging. On face value, I think it in some ways goes to demonstrate the interest, involvement and commitment that Mr Pedron has. And if that’s a decision or an outcome from the court for this matter, it’s – it’s quite nice to hear that he has the capacity and is prepared to do that.”
Counsel: “Well, can I suggest that my question was not about Mr Pedron. It was about the children. And what I’m suggesting is that from a social worker’s perspective or a family report writer’s perspective, it would have to – if that were the practical arrangement that was likely to flow, it would have to diminish your concerns about the negative impact on the children of the relocation, wouldn’t it?”
Mr M: “Yes. I see what you’re saying. Yes.”
Counsel: “Yes. Okay. Because if we were to apply the theory that you espouse literally – that is, that we should maximise children’s immersion with both parents – we simply wouldn’t have relocation – relocations full stop, right?”
Mr M: “I’m – I don’t quite follow.”
Counsel: “Well, any relocation, if the other parent doesn’t follow, results in a reduction in time?”
Mr M: “Yes, it does.”
Counsel: “And what you’re saying is that that is a suboptimal outcome?”
Mr M: “Yes”
Counsel: “And what I’m suggesting is that if it is ameliorated by a continued involvement on a fortnightly basis, then that would go some significant way to diminishing the concerns that you’re raising about the negative impacts to the children?”
Mr M: I understand a little better. Thank you. In – in my view, it would – it would go some way. It would assist the situation. It would help improve the arrangements. And it would be a positive experience for the children, if the relocation was to go ahead, that they would know that the father each fortnight when it’s a weekend with dad that dad would be at school and participating in reading or assistance or to various activities that parents occasionally participate in at school, and could go far to help maintain and further foster that relationship.
Counsel: “All right. And thank you. And then, lastly, when that is occurring off the base of a very strong attachment and a very closely involved father, that also argues well for the success of that relocation, doesn’t it?”
Mr M: “Yes”.
Given the opinion expressed by Mr M in his report that the parties do not have the kind of relationship that would allow them to share the care of X and Y, he was asked why he was recommending an 8/6 arrangement, as to quote the Mother’s Counsel, “ this would be splitting hairs” as there is little difference between 6/8 and 7/7.
Mr M stated:
“if both parents are placed in a positon of co-parenting and sharing equally parenting time and responsibility.. so that across the board there is not a primary residence and another parent spending significant and substantial time, the level of conflict between the parties is as such that their capacity to equally share and make joint decisions in care and attention to communication in all aspects of caring for the children would be significantly limited.”
Mr M observed that a 6/8 shared care arrangement could be viewed as splitting hairs and would not provide an arrangement that would see an absence of the issues identified by him as not supporting a shared care arrangement for X and Y.
Mr M explained that he had made that recommendation on the basis that both parents had indicated the current arrangements are working comfortably and because both X and Y expressed a desire to spend some more time with the Father.
As Mr M was concluding his evidence he was asked that if relocation was allowed, would an arrangement where X and Y spent three out of four weekends be better than them spending alternate weekends. Mr M responded “Yes. No question.”
The Law
In this matter the Mother is seeking to relocate with the parties’ daughter’s X and Y from Town B to Town D.
Whilst relocation cases are often discussed as if they form a discreet subset of parenting cases that should somehow be determined differently to other parenting matters, the jurisprudence makes it clear that this is not so and that a relocation matter is to be determined in the same way that all parenting matters are determined, that is, by following the legislative framework prescribed under the Family Law Act to determine what orders are in the child’s best interest.
The Full Court in Taylor v Barker [2007] 37 Fam FLR 461 at 475, held:
“When dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible: see U v U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74;
(2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.”The Family Law Act does not address the concept of relocation. However, over time the superior courts have set out a number of principles to assist Judges when they are dealing with parenting matters where relocation is in issue. In paragraph [44] of Fawkner v Kado [2020] FCCA 1535, Judge McGuire summarised those principles as follows:
“(a)Relocation matters are to be determined generally in accordance with Part VII of the Act and within the context of making the necessary findings relevant to children's best interests with reference to the factors in s.60CC of the Act but also within the context of s.65DAA considerations of equal time or 'substantial and significant time' and ‘reasonable practicability’;
(b)The child's best interests remain the paramount but not the sole consideration;
(c)Neither party bears an onus to establish that the relocation or a continuation of an existing regime will best promote the interests of the child;
(d)An applicant for relocation need not show 'compelling reasons' in support of the relocation but must, in my view, give or adduce probative evidence which permits the Court, on balance, to find that a parenting order which involves a relocation of a child is in that child's best interest;
(e)The child's best interest must be weighed and balanced with the open 'right' of a parent’s freedom of movement but such right must ultimately defer to the child's best interest;
(f)The Court must consider the advantages and disadvantages of each of the parent’s proposals including the proposed relocation and may, if required, formulate proposals itself in the best interests of the child.”
Best Interests of the Child
Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
“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 60CA of the Act provides that:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
To determine what is in the best interests of the child, the Court must consider the matters set out in Section 60CC(2) and Section 60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the Court must be considered and assessed in the context of each of the parties’ proposals. The Court should then make a decision as to which of the parties proposals or such other arrangements as the Court determines given the Court is not bound by the parties’ proposals (see AMS v AIF (1999) 199 CLR 160, U & U (2002) 211 CLR 238), is in the children’s best interests.
Section 60CC (2)
Section 60CC(2) of the Act sets out the primary considerations that the Court must take into account when determining what is in the child’s best interests. They are as follows:
Section 60CC(2)(a) – The Benefit of the Child having a meaningful relationship with both of the child’s parents
In Heath v Hemming(No.2) [2011] FamCA 749, Justice Kent in paragraph [104] reviewed the authorities relating to parenting cases involving proposed relocation. In subsection (a) of paragraph 104 His Honour considered Section 60CC(2)(a) and summarised the case law in relation to the benefit of the child having a meaningful relationship with both of the child’s parents as follows:
“(a) s60CC(2)(a) expresses the primary consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents. Similarly, s60CC(3)(b) requires the Court to consider the nature of the relationship of the child with, inter alia both parents and the objects and principles expressed in s60B also contain various references to the involvement of both parents in the life of their child.
In Sigley & Evor (2011) 44 Fam LR 439 the Full Court recently considered what is required by the term “meaningful relationship” in s60CC(2)(a). The Full Court:
(i)approved the interpretation that a “meaningful relationship” is one which is important, significant and valuable to the child (citing Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 per Brown J and McCall v Clark [2009] FamCAFC 92; (2009) FLC 93-405 per the Full Court);
(ii)concluded that the preferred interpretation of “benefit to the child of having a meaningful relationship” in
s60CC(2)(a) 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 (referred to by the Full Court as “the prospective approach”). However, the Full Court noted that s60CC(3)(b) requires a Court to explore existing relationships between a child and the child’s parents and other persons and thus, depending upon the factual circumstances, examination of the evidence as to the nature of the child’s relationships at the date of hearing (referred to by the Full Court as “the present relationship approach”) may also be relevant, for example where a significant relationship had not been established between a child and a parent at the date of trial;(iii)confirmed that the legislation aspires to promote a meaningful relationship, not an optimal relationship. (Citing M v S [2006] FamCA 1408; (2007) FLC 93-313 per Dessau J at [38]-[39]; Godfrey v Sanders [2007] FamCA 102 per Kay J at [33]-[36] and Champness v Hanson [2009] FamCAFC 96; (2009) FLC 93-407 per the Full Court at [103]);
(iv)concluded that “meaningful relationship” is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a meaningful relationship;
Clearly, if it is determined that a meaningful relationship with both parents is in the child’s best interests the starting point will be to consider whether such a relationship is already established. If not, whilst all factors must be weighed in the balance, it may be a determinative factor in assessing a proposed relocation. If such a relationship is already established, the consideration will be whether such a relationship can be promoted in the context of the proposed relocation. In either case, factors such as the child’s age and level of maturity (s60CC(3)(g)) may assume particular importance. This may also lead a Court to consider some proposal other than that of either party, for example, providing for some period of time before the relocation is permitted to occur during which a “meaningful relationship” with the non-relocating parent may be established or further established or to allow the child to reach an age where it is likely that a meaningful relationship will be maintainable.”
X and Y have a close loving and meaningful relationship with both of their parents. The Mother and the Father both agree that X and Y love them both and have a very good relationship with each of them.
In his family report and viva voce evidence, Mr M confirms the loving and meaningful relationship that X and Y have with both of their parents.
It is Mr M’s viva voce evidence that if relocation is allowed the relationship and bond between X and Y and the Father would not be disrupted because of the strength of their relationship and their bond. He expressed no concern that their relationship with the Father would be substantially disrupted by the relocation.
The Father and Mr M are both concerned that a relocation from Town B to Town D will limit the Father’s capacity to engage regularly at X and Y’s school as is his current practice. This is something X and Y both told Mr M they really enjoy the Father being able to do. The Father agreed that if relocation is allowed he could and would travel to Town D earlier on the Fridays he is to collect X and Y to avail himself of the opportunity to assist them with reading or in any other way their school will allow.
Section 60CC(2)(b): the need to protect the child from physical and psychological harm from being subjected to or exposed to abuse, neglect or family violence
This is not a matter to which this subsection applies.
Whilst it is very apparent that these parties struggle to communicate effectively, it is to their credit that neither X or Y appear to be overly aware of the discord between their parents. Both parties are to be commended for ensuring that they have not exposed X and Y to the conflict between them and it will be vitally important that they continue to shield X and Y from adult issues.
It will be important however that both parties take active steps to improve their communication. This is going to be particularly important in the future given the recent diagnosis that X is autistic. It will be vital that the parties work together to ensure that they both follow any directions for consistent parenting for X across both of their households.
Section 60CC (3)
Section 60CC(3) of the Act sets out the additional considerations the Court must consider when determining what is in X’s best interests.
Each of the matters set out under that section will be considered in turn where applicable to this matter.
Section 60CC(3)(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
In his Family Report Mr M states X told him she would like to spend additional time with her Father and that she would feel “a little sad” if she was to spend less time with him.
Mr M also reports that X told him that her Mother had told her that they may move to Town D and that she would attend “this Jesus school” which she was not happy about. X told Mr M she didn’t want to move schools and that she does not want to move from Town B.
Mr M further reports that when speaking to Y she was unaware of the possibility of relocation. When Mr M raised it with her she told him she would not be happy if she had to move and she did not like the notion of having to start a new school. In his report he states that Y “conveyed a sense of sadness if she would move and potentially spend less time with her Father, when she firmly conveyed a desire to spend more time”.
Mr M does not cite the views and wishes of X and Y as part of his reasons for not supporting the relocation. However, when asked why he had recommended a slight increase in the time that X and Y spend with their Father if they do not relocate, he explained part of his rationale was because both girls had expressed a wish to spend more time with their Father.
X and Y are only eight and six. Whilst their apprehension about moving and changing schools is understandable, their young ages and lack of maturity mean their wishes and views are not factors which will be given considerable weight.
Section 60CC(3)(b): the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparents or other relative of the child)
As has been set out in this judgement, X and Y have a close and loving relationship with both of their parents.
X and Y speak well of both of their parents’ new partners and clearly enjoy positive relationships with both of them. The only complaint that X makes is that sometimes Mr E tickles too hard.
The parties extended families live in the Town B area and it is apparent that X and Y enjoy positive relationships with them. They are very close with both their grandmothers given the Father has been living with his mother since the parties’ physical separation and the Mother now lives with her mother when not with Mr E in Town D.
Section 60CC(3)(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
Both parties are full participants in the lives of their daughters.
Section 60CC(3)(ca): the extent to which each of the child’s parents have fulfilled, or failed to fulfil, the parent’s obligation to maintain the child
At the beginning of 2020 the Father received a child support assessment of nil as he had been able to offset his income from his factory employment with losses that had been incurred in the farming enterprises that he runs with his mother.
This assessment was reversed after the Mother sought a review of that decision by the Child Support Agency.
This resulted in the Mother not receiving child support from the Father for a period of approximately four months.
It is the Mother’s evidence that this is one of the reasons she gave up her lease on her rental premises in Town C in April 2020 as she could no longer afford her rent and internet expenses, particularly when COVID-19 meant she was unable to earn any income from her employment.
When cross examined about this period, the Father’s evidence is that he cooperated fully with the review by the Child Support Agency. He explained he did not offer any financial assistance to the Mother during this period as she did not tell him of her difficulties.
Section 60CC(3)(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 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
If relocation is allowed, the capacity of the Father to be involved in X and Y’s school and mid-week activities is what will be most impacted.
It is the Father’s evidence that he currently attends X and Ys school up to three times per week where he assists with reading, attends school assemblies and otherwise interacts with them.
Both Y and X clearly enjoy their Father’s attendance at school and spoke positively of this when meeting with Mr M.
Mr M seems most impressed with the extent of the Father’s involvement in X and Y’s school and raises it on quite a number of occasions, both in his written report and in his oral evidence.
Whilst the Mother agrees that the Father attends X and Y’s school for reading purposes, it is her evidence it is only very recently that he has been attending three times per week. It is also the Mother’s evidence that she too is heavily involved with X and Ys education. She is a member of and spokesperson for the Parents and Friends Committee, is heavily involved in all major fundraising efforts for the school, attends assemblies each week where she often speaks, volunteers for the school breakfast club on a fortnightly basis, participates in the children’s morning fitness activities and volunteers at sports days and other activities. Mr M makes no mention of the level of the Mother’s involvement in X and Y’s education in his report and does not praise her for her involvement in their school.
It is the Father’s evidence that if relocation is allowed, he will continue to arrange to take his fortnightly RDO on a Friday so that he can travel to Town D during the school day and participate in any school based activities that X and Y’s school allow parents to be involved in.
Section 60CC(3)(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
It is apparent from the Mother’s evidence and the email tendered into evidence from her team leader that the Mother has informed her employer of her plans to relocate to Town D to be with her partner if allowed to do so by the Court. Therefore, her having obtained the position at Employer R does not prevent her from moving to Town D if permitted to relocate.
For these reasons, the fresh evidence adduced by the Father does not alter the findings and conclusions reached by me in paragraphs [168] – [205] above and the Mother will be permitted to relocate to Town D with X and Y at the end of the 2020 school year.
I certify that the preceding two hundred and forty eight (248) paragraphs are a true copy of the reasons for judgment of Judge Bender
Associate:
Date: 30 September 2020
Key Legal Topics
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Family Law
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Injunction
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