Orbach and Schroder
[2012] FMCAfam 1324
•7 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
ORBACH & SCHRODER [2012] FMCAfam 1324
FAMILY LAW – Children – relocation allowed following interim hearing – best interests considerations – strong views of young adolescent – challenge to ‘views of the child’ as conveyed to family consultant and to ICL at interim hearing – both parents ‘in limbo’ one for health reasons the other until decision of the court – what constitutes “emergency circumstances” to determine relocation for interim hearing – separation of siblings a significant consideration – consideration of evidence from older sibling – expertise of family consultants in interviewing children – expertise and responsibilities of ICL to obtain and present views of child.
Family Law Act1975, Part VII ss.11F, 60B(1) & (2), 60CA, 60CC(1) & (2), 60CC (3)(a) – (d), (f), (i), 60CD(2), 60CD(2)(c), 61DA, 62G(3A), 65DAA (1), (2) & (5), 68L, 68LA, 68LA(5)(b), 94AAA, 94AAA(3)
Adams v Randall (2012) 46 Fam LR 453
AMS v AIF, AIF v AMS (1999) 199 CLR 160; (1999) 163 ALR 501; (1999) 73 ALJR 927
B & B (2006) FamCA 1207
Cales v Cales (2011) 44 Fam LR 376
Champness & Hanson (2009) FLC ¶93-407
Collu & Rinaldo [2010] FamCAFC 53
Cowley v Mendoza (2010) 43 Fam LR 436
Davis v Davis (2007) 38 Fam LR 671
Department of Health & Community Services v JWB & SMB (Marion’s Case) (1992) 175 CLR 218
F v F (2008) 38 Fam LR 52
Fox v Percy (2003) 214 CLR 118
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Godfrey v Sanders [2007] FamCA 102
F v F (2008) 38 Fam LR 52
Goode v Goode (2007) 36 Fam LR 422
Harrison and Woollard (H & W) (1995) 18 Fam LR 788
Keach & Keach (2007) FLC ¶93-353
Kernot v Matson (2009) 39 Fam LR 695
McCall v Clark (2009) 41 Fam LR 483
Malcolm & Monroe (2011) FLC ¶93-460
Maluka v Maluka (2012) 45 Fam LR 129
Mazorski v Albright (2008) 37 Fam LR 518
Moose & Moose (2008) FLC ¶93-375
Morgan v Miles (2008) 38 Fam LR 275
MRR v GR (2010) 240 CLR 461
Muldoon & Carlyle (2012) FLC ¶93-513
Payne v Payne [2001] Fam 473
R and R: Children’s Wishes (2000) 25 Fam LR 712
In the Marriage of R (Children’s Wishes) (2002) FLC ¶93-108
Reynolds and Reynolds (1973) 47 ALJR 499
Shaeffer v Jacobs (2011) FLC ¶93-468
Sigley v Evor (2011) 44 Fam LR 439
Starr & Duggan (2009) FamCAFC 115
Taylor & Barker (2007) 37 Fam LR 461
U v U (2002) 211 CLR 238; (2002) 191 ALR 289; (2002) 76 ALJR 1416
VW v J (2006) 34 Fam LR 499
Vigano & Desmond (2012) FLC ¶93-509
Wiley & Wiley (2008) FamCAFC 153
ZN v YH (2002) 29 Fam LR 20F. Bates, “`Completing the Charm’: The Relevance of Children’s Wishes in Contested Cases: A Contextual Commentary,” (2003) 5 Newcastle Law Review 97
N. Taylor, “What do we know about involving children and young people in family law decision making? A research update,” (2006) 20 Australian Journal of Family Law 154
P. Parkinson & J. Cashmore, The Voice of a Child in Family Law Disputes, (Oxford: Oxford University Press, 2008).
Applicant: MS ORBACH
Respondent: MR SCHRODER
File Number: CAC 1077 of 2009
Judgment of: Neville FM
Hearing date: 23 November 2012 & written submissions
Date of Last Submission: 5 December 2012
Orders pronounced at: Canberra on 7 December 2012
Reasons Delivered on: 31 January 2013 REPRESENTATION
Counsel for the Applicant: Mr R Harper
Solicitors for the Applicant: Farrell Lusher Solicitors, Wagga Wagga
Counsel for the Respondent: Mr M Anderson
Solicitors for the Respondent: Gayle Meredith & Associates, Sydney
Counsel for the Independent Children’s Lawyer Mr M Hassall
Solicitors for the Independent Children’s Lawyer Skinner & Associates, Albury ORDERS
(1)Both parties have equal shared parental responsibility for the child, [Y] born [in] 1999.
(2)The child live with the Mother.
(3)The mother be permitted to relocate with the child to the [M] area, New South Wales.
(4)The Father spend time with the child as follows:
(a)the entire school holidays at the end of term 1 and term 3 in each and every school year, commencing on the first Saturday after school concludes until the last Friday of the school holiday period;
(b)for half the June/July school holidays in every year as agreed but failing agreement:
(i)in 2013 and each alternate year thereafter, from the first Saturday until the middle Saturday;
(ii)in 2014 and each alternate year thereafter, from the middle Saturday until the last Saturday.
(c)for the first four weeks of the Christmas school holidays in 2012 and each alternate year thereafter, unless otherwise agreed in writing;
(d)for the last four weeks of the Christmas school holidays in 2013 and each alternate year thereafter, unless otherwise agreed in writing.
(e)liberal telephone communication with the child as initiated by the Father.
(f)should the Father at any stage travel to the [M] area, upon provision of seven days notice to the mother, the mother will make [Y] available to spend time with the father as agreed.
(5)For the purposes of facilitating time between the Father and the child, the Father will organise transportation of the child at the commencement of time either by collecting the child from the Mother’s residence or organising flights, and conversely at the conclusion of holiday time the Mother will make arrangements to collect the child or organise flights, whichever is more suitable to the Mother.
(6)The child have reasonable telephone, Skype or other electronic communication with the father.
(7)Each parent shall authorise any school that the child shall attend to advise the other parent of any information they require, copies of all school reports, examples of school work, school newsletters, notification of all school activities, parent/teacher nights, and inform the other parent of any emergency, remedial or correctional treatment required by the child as soon as is practicable.
(8)Each parent shall authorise any treating medical practitioner, dental practitioner, hospital or medical practice that the child shall attend from time to time to provide to the other parent any information regarding the child.
(9)If the child falls ill such that one of the parents take the child to the doctor, that parent shall notify the other parent of the doctor’s contact details, any medication prescribed and any treatment recommended. Each parent shall administer such medication when it falls due, adhere to any medical treatment plan and follow any directions from the doctor for the child. Each parent is then restrained from seeking alternate medical treatment unless the child’s condition appears to deteriorate.
(10)In the event that the children suffer any illness or injury requiring medical attention or hospitalisation whilst in the care of either parent then the parent shall immediately notify the other parent of such illness and the name of the medical practitioner or hospital to which the child/children have been taken.
(11)Each parent shall advise the other parent of any change of any landline or mobile telephone numbers within twenty four (24) hours of that change.
(12)Each parent shall notify the other parent of any change of address with seven (7) days.
(13)Both parents are restrained from saying unkind or unpleasant things about the other to the child in their presence, and will use their best endeavours to prevent any other person from doing so.
(14)Both parents are restrained from discussing these Court proceedings with the child, or doing so in their presence, and will use their best endeavours to prevent any other person from doing so.
AND IT IS NOTED THAT:
A.The parties will use their best endeavours to reduce [Y]’s travel by communicating about intended visits with extended family.
B. The eldest daughter, [X] (born [in] 1994), spend time with her Father as [X] so wishes.
C. For the purposes of time pursuant to Notation B, the Father will organise transportation of [X] at the commencement of time either by collecting [X] from the Mother’s residence or organising flights, and conversely at the conclusion of holiday time the Mother will make arrangements to collect [X] or organise flights, whichever is more suitable to the Mother.
IT IS NOTED that publication of this judgment under the pseudonym Orbach & Schroder is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRACAC 1077 of 2009
MS ORBACH Applicant
And
MR SCHRODER Respondent
REASONS FOR JUDGMENT
Introduction and Background
1.On 7th December 2012, the Court made orders largely in accordance with those sought by the Applicant Mother to relocate from [W] to the [M] area. The matter was dealt with on an interim basis. At the time orders were pronounced, the parties were advised that reasons would be provided as soon as practicable. What follows are the reasons for the orders then made.
2.In May 2012, Mrs Orbach filed an application in which she sought final orders that would enable her to relocate from [W] to the [M] area, and that she be permitted to do so with her two daughters [X] (who is now aged 18) and [Y] (who is now aged 13).
3.The Father opposes the relocation on an interim and on a final basis. As things have transpired, [X] has already moved to the [M] area and now resides with her step-Father, Mr O, who has worked there for approximately the past year as a occupation omitted].
4.The only interim order sought by the Mother in her May application was for the hearing to be expedited. The reasons for seeking expedition are set out later in these reasons. Over the opposition of the Father with respect to expedition, the matter was fixed for hearing for 6th and 7th December 2012.
5.I pause briefly here to note that there is some history to the litigation which provides relevant context to the applications now before the Court. There is reference to that history in some of the submissions now filed, and in the memorandum/family report from Ms W, dated 11th September 2012, which is now exhibit A. Not the least of that history is a contested hearing some years ago following which consent orders were made in May 2010. Under those orders it is fair to summarise that, since that time, [Y] has lived primarily with her Mother and has spent regular time with her Father each alternate weekend. Thus, it is also fair to say that at least since May 2010 [Y]’s primary carer has been her Mother.
6.By an application in a case filed on 13th November, the Respondent Father sought the following principal orders: (1) that the December trial dates be vacated, and (2) that the matter be listed for mention (emphasis added) on some future date determined by the Court. He also sought an order for costs against the Mother. The essential ground upon which Mr Schroder made his application was because of his recent ill-health.
7.In addition to his own affidavit, Mr Schroder’s application was supported by a short letter attached to an affidavit from his general practitioner who confirmed that the Father was admitted to hospital from 16th to 19th October this year. The GP, Dr S, said that while the Father’s condition will stabilise in time, he is currently not able to prepare properly for the forthcoming hearing. No time frame was given by Dr S. Given that there is little detail in his short report, I assume that he was apprised of what is generally involved in a trial. Mr Schroder is to see a specialist sometime early in 2013. The provisional diagnosis of Dr S of Mr Schroder included that it was a transient ischaemic attack, which produced ‘stroke-like’ symptoms.
8.Although opposed by the independent children’s lawyer (“the ICL”) and the Mother – among other things on the grounds that since the health episode in October the Father has (a) continued to conduct his [business omitted], (b) flown to Sydney on at least one occasion, and (c) is shortly to remarry (if he has not already done so) – the trial dates were formally vacated.
9.By way of further background and summary, it is important to note the following:
a)The Mother has had a [occupation omitted] in [M] secured now for many months but which awaits being taken up early in 2013 (hence the application to relocate);
b)The Mother has lived separately from her husband, who as previously noted, has been living and working in the [M] area since early 2012 (as [occupation omitted]);
c)The Mother’s eldest daughter ([X]) now also lives in the [M] area with her step-Father;
d)The Mother’s parents live relatively close to the [M] area (her Father suffered a stroke in 2008 and is aged 79);
e)Mr Schroder’s health is understandably uncertain, and no further detail or clarity of his diagnosis and prognosis can be known at least until he sees his specialist some time early in 2013;
f)In addition to vacating trial dates, Mr Schroder’s application and further involvement in the current proceeding is necessarily open-ended, obviously pending the outcome of his specialist appointment.
Accordingly, and by way of observation only at this stage, the current proceedings could potentially be either ‘stayed’ due to circumstances for a very long time or, worse, almost permanently on hold.
10.At the hearing of the Father’s application to vacate the trial dates, orders were made to deal with, on an interim basis, the Mother’s application to relocate. In order to deal with the matter on this basis and to attempt to do so in the most expeditious manner, orders were made for the filing of written submissions by the parties and by the ICL. Before considering them, and subject to what is said later in these reasons, one further matter may be observed here because it was a central focus of submissions, and equally a central matter for the Court’s consideration in determining the Mother’s application.
11.It is not disputed that the legislative pathway is the prescribed route by which the Court determines orders that are considered to be in the best interests of the child,[1] and that following this pathway, the Court must consider, among the many matters set out in ss.60B(1) and (2) and ss.60CC(2) and (3) of the Act, any views of the child in question.[2]
Mrs Orbach[1] See Goode v Goode (2007) 36 Fam LR 422 at p.445 [81] & [82] in relation to the “legislative pathway” and the conduct of interim proceedings, and s.60CA Family Law Act 1975 (Cth) (“the Act”) in relation to the statutory imperative that the best interests of the child must be the paramount consideration in making a particular parenting order.
[2] See s.60CC(3)(a).
12.[Y] has expressed clear views to the family consultant (which are recorded in the memorandum/report now in evidence) and to the ICL – on more than one occasion. Those views are precise and firm about her strong desire to move to, and to live with her Mother in, the [M] area, and there also to live with her sister and step-Father. Similar views in favour of her moving with her Mother to the [M] area are set out in the Mother’s material.
13.The Father contends, however, that [Y] expresses different views to him and that the views conveyed to the family consultant and to the ICL by [Y] have occurred [only] after she has been with her Mother and other members of the family. I will come back to such matters soon enough. I note it here because of its significance.
14.The immediate issue raised on behalf of the Father at the short hearing held on 23rd November, and again in his submissions, is that the child’s views as recorded by the ICL could lead to the ICL being called as a witness (so it is contended) in light of the claims made by the Father about the different views expressed by [Y] when she spends time with him. However, at the hearing on 23rd November, the Father’s experienced solicitor (acting as agent for principals in Sydney, but with the Father in attendance to provide instructions directly) confirmed that the ICL could provide to the Court [Y]’s views, not via an affidavit from the ICL, but by a statement attached to the ICL’s submissions. This is what has occurred. Later in these reasons I deal with both the attached statement, and the submissions by the Father regarding the reliability of [Y]’s views as conveyed to the Court through the detailed Memorandum from the family consultant, and through the ICL.
Orders Sought
15.Orders sought by the Applicant Mother:
1. Both parties have equal shared parental responsibility for the children [X] born [in] 1994 and [Y] born [in] 1999 (the children).
2. That the children live with the mother.
3. That the mother be permitted to relocate with the children to the [M] area, New South Wales.
4. That the father spend time with the child [Y] as follows:-
(a) for the entire school holidays at the end of term 1 and term 3 in each and every school year, commencing on the first Saturday after school concludes and concluding on the Saturday before school commences.
(b) for half the June/July school holidays in every year as agreed but failing agreement the first half in 2012 and each alternate year thereafter and the second half for 2013 and each alternate year thereafter. School holidays commence on the Saturday after school finishes and conclude on the Saturday prior to school recommencing;
(c) for the first four weeks of the Christmas school holidays in 2012 and each alternate year thereafter;
(d) for the last four weeks of the Christmas school holidays in 2013 and each alternate year thereafter;
(e) liberal telephone communication with the child as initiated by the father.
5. That should the father at any stage travel to the [M] area, upon provision of seven days notice to the mother, the mother will make [Y] available to spend time with the father as agreed.
6. That the child [X] spend time with her father as [X] so wishes.
7. That for the purposes of time pursuant to order 6 the father will organise transportation of the child at the commencement of time either by collecting the child from the mother’s residence or organising flights, and conversely at the conclusion of holiday time the mother will make arrangements to collect the child or organise flights, whichever is more suitable to the mother.
8. That each parent shall authorise any day care or school that the child shall attend to advise the other parent of any information they require, copies of all school reports, examples of school work, school newsletters, notification of all school activities, parent/teacher nights, and inform the other parent of any emergency, remedial or correctional treatment required by the child as soon as is practicable.
9. Each parent shall authorise any treating medical practitioner, dental practitioner, hospital or medical practice that the child shall attend from time to time to provide to the other parent any information regarding the child.
10. If the child falls ill such that one of the parents take the child to the doctor, that parent shall notify the other parent of the doctor’s contact details, any medication prescribed and any treatment recommended. Each parent shall administer such medication when it falls due, adhere to any medical treatment plan and follow any directions from the doctor for the child. Each parent is then restrained from seeking alternate medical treatment unless the child’s condition appears to deteriorate.
11. That in the event that the children suffer any illness or injury requiring medical attention or hospitalisation whilst in the care of either parent then the parent shall immediately notify the other parent of such illness and the name of the medical practitioner or hospital to which the child/children have been taken.
12. That each parent shall advise the other parent of any change of any landline or mobile telephone numbers within twenty four (24) hours of that change.
13. Each parent shall notify the other parent of any change of address with seven (7) days.
14. That neither parent, their agents and servants shall denigrate the other parent to the child, in front of the child or within the child’s hearing.
16.Orders sought by the Respondent Father:
1.That the mother’s Response to an Application in a Case filed 20 November 2012 be dismissed.
2.That the mother be restrained from relocating the child, [Y] born [in] 1999 (“the child”) to the [M] area in NSW
3.That in the event that the child is not permitted to relocate to the [M] area and the mother relocates to the [M] area:
4.That all previous parenting orders be discharged.
5.That the mother and father have equal shared parental responsibility for the child.
6.That the child live with the father subject to Order 6 herein.
7.That the mother spend time with the child as follows:
7.1.For the whole of the school holidays at the conclusion of term 1 and term 3 each year commencing on the first Saturday after school concludes and concluding on the Saturday immediately before school commences;
7.2.For one half of the June/July school holidays each year as agreed between the parties but failing agreement for the second half in 2012 and each alternate year thereafter and the first half in 2013 and each alternate year thereafter with the school holidays to commence on the Saturday after school finishes and conclude on the Saturday prior to school recommencing;
7.3.For four weeks during the December/January school holiday period as agreed between the parties and failing agreement for the first four weeks in 2012 and each alternate year thereafter and for the last four weeks in 2013 and each alternate year thereafter with the school holidays to commence on the first Saturday after school concludes and the school holidays to conclude on the Saturday prior to school recommencing;
7.4.During the school term, if the mother is in [W] for a period of seven days, such time to be spent in the [W] region for no more than twice each school term, with the mother to provide at least 14 days of her intention of spending this time with the .
7.5.As otherwise agreed between the parties.
8.That the mother have time with the child by telephone, Skype and Messenger Live on an unlimited basis;
9.That the mother pay for all travel costs for herself and the child to facilitate any time that she spends with the child.
10.That each party keep each other informed of their respective telephone numbers (including landline and mobile) and their addresses.
17.Orders sought by the Independent Children’s Lawyer:
1.That all previous parenting Orders relating to [Y] born [in] 1999 be and are hereby discharged.
2.That the parties have equal shared parental responsibility for the child [Y] born [in] 1993.
3.That the child live with the mother.
4.That the mother be permitted to relocate with the child to the [M] area, New South Wales.
TIME WITH THE FATHER
5.That the child spend time with the father as agreed between the parties and failing agreement:-
6.In the short school holidays at the end of terms 1 & 3 each year, from the first Saturday until the last Friday of the school holiday period;
7.In the short school holidays at the end of term 2 each year,
8.In 2013 and each alternate year thereafter, from the first Saturday until the middle Saturday;
9.In 2014 and each alternate year thereafter, from the middle Saturday until the last Saturday.
10.In the Christmas school holidays,
11.In 2012/2013 and each alternate year thereafter, for a period of four weeks, commencing on the first Saturday of the school holiday period;
12.In 2013/2014 and each alternate year thereafter, for a period of four weeks, concluding on the last Saturday of the school holiday period.
HANDOVER
13.That for the purposes of time pursuant to Order 5 the father will organise transportation of the child at the commencement of time either by collecting the child from the mother’s residence or organising flights, and conversely at the conclusion of holiday time the mother will make arrangements to collect the child or organise flights, whichever is more suitable to the mother.
COMMUNICATION
14.That the child have reasonable telephone, Skype or other electronic communication with the father.
SPECIFIC ISSUES
15.That each parent shall authorise any school that the child shall attend to advise the other parent of any information they require, provide copies of all school reports, examples of school work, school newsletters, notification of all school activities, parent / teacher nights, and inform the other parent of any emergency, remedial or correctional treatment required by the child as soon as is practicable.
16.That each parent shall authorise any treating medical practitioner, dental practitioner, hospital or medical practise that the child shall attend from time to time to provide to the other parent any information regarding the child.
17.If the child falls ill such that one of the parents take the child to the doctor, that parent shall notify the other parent of the doctor’s contact details, any medication prescribed and any treatment recommended. Each parent shall administer such medication when it falls due, adhere to any medical treatment plan and follow any directions from the doctor for the child. Each parent is then restrained from seeking alternate medical treatment unless the child’s condition appears to deteriorate.
18.That in the event that the child suffers any illness or injury requiring medical attention or hospitalisation whilst in the care of either parent then the parent shall immediately notify the other parent of such illness and the name of the medical practitioner or hospital to which the child has been taken.
19.That each parent shall advise the other parent of any change of any landline or mobile telephone numbers within twenty four (24) hours of that change.
20.That each parent shall notify the other parent of any change of address within seven (7) days.
21.That neither parent, their agents and servants shall denigrate the other parent to the child, in front of the child or within the child’s hearing.
Facts and Submissions
18.The constraints and limitations of the Court in interim hearings are well recognised in the detailed and often-referred to Full Court decision in Goode v Goode.[3] Among other things, those limitations include the inability to make findings with respect to contested facts, absent any clearly corroborated evidence.
[3] See Goode v Goode (2007) 36 Fam LR 422, especially at p.445 [81] & [82]. See also more generally Keach & Keach (2007) FLC ¶93-353 at [25] ff.
19.In relation to the facts and circumstances of this case, so as to provide the most thorough-going consideration of the respective positions of the parties, it seems best to detail as fully as possible the submissions of each of the parties and then of the ICL (although this necessarily results in some degree of repetition), then I will consider the memo/report[4] of the family consultant, Ms W. As the Full Court recently cautioned in Malcolm & Monroe, at [110] (and other authorities noted later in these reasons), the basic task of the court in applications of the kind currently before the Court is as follows (emphasis added):[5]
The comparison or evaluation of competing proposals does not involve some mechanical “checking of boxes” against physical criteria, but rather an overall and perceivable comparison of the appropriate arrangements.
[4] I use the terms memo/memorandum/report interchangeably in these reasons, recognising, of course, the distinction between them, not least in relation to those memoranda/reports prepared under s.11F of the Act, and those prepared pursuant to s.62G. In the current case, the Family Consultant’s memorandum was prepared pursuant to s.11F of the Act.
[5] Malcolm & Monroe (2011) FLC ¶93-460 at p.85,522 [110].
20.Following consideration of the family report, I consider next the relevant authorities in applications of this kind dealing with relocation, with special attention to Boland J’s seminal judgment in Morgan v Miles, and later cases that deal with relocation, such as Cales v Cales, Adams v Randall, and Malcolm & Munroe to which I have already referred.[6] Surprisingly, so far as I can see, no one has addressed the Full Court decision in Taylor v Barker which was recently considered (and unsurprisingly applied) by a later Full Court in Malcolm & Monroe.[7] And of course it is critically important for the Court also to consider the High Court decision in MRR v GR.[8]
[6] Morgan v Myles (2007) 38 Fam LR 275; Cales v Cales (2011) 44 Fam LR 376; Adams v Randall (2012) 46 Fam LR 453.
[7] Taylor v Barker (2007) 37 Fam LR 461. See Malcolm & Monroe, at [106], [107] & [122], for the Court’s consideration and discussion of Taylor v Barker.
[8] MRR v GR (2010) 240 CLR 461.
21.As already indicated, in order, I will deal with the Mother’s submissions, the Father’s submissions, the ICL’s submissions, and then the family memo/report, before turning to the relevant authorities and the legislative pathway.
Mother’s Submissions
22.The Mother’s submissions refer to the affidavit evidence before the Court (which I need not recount) as well as two family reports - that of Ms W, and a report prepared for the earlier proceedings of Ms D, dated 9th September 2009.
23.In my view, in relation to the current application, it is not appropriate for me to consider Ms D’s [earlier] report, either or both because the facts and circumstances there obtaining may and likely have changed significantly, and because there is a later report. Therefore, it should be taken that I have had no regard to any comments made in that earlier report of Ms D. If it is to be relied upon at a final hearing, proper time for submissions regarding its relevance and similar matters will be heard. The Mother’s submissions then turn to the legislative pathway and make the following general submissions in order.
24.Firstly, in relation to the primary considerations in s.60CC(2)(a), the Mother contends that the orders proposed by her upon relocation to the [M] area will enable the currently meaningful relationship between [Y] and her Father to continue. Indeed, she highlights the fact that:[9]
[Y] is of an age where her relationship with her Father can be maintained for the periods in between face-to-face time by way of telephone or internet communication.
[9] For the objects and principles set out in the Act, see s.60B(1) & (2).
25.Next, in relation to section 60CC(2)(b), which deals with the protective provisions of the Act, that is the need to protect [Y] from physical or psychological harm, or from being subjected to or exposed to abuse, neglect or family violence,[10] the Mother makes the appropriate observation that it is unlikely that the Court will be able to make any formal determination on such matters when dealing with the current application. However, it might be observed that that submission is made in the context where it is alleged in the Mother’s affidavit material that in a recent trip to Germany the Father made comments that he might, or was going to, self-harm and that these comments had been made either to or in the hearing of [Y] and her sister. Nonetheless, I agree with the submission that in the current circumstances and the nature of the application it is not appropriate to make any findings in this regard. Similarly, allegations concerning the Father having an affair, also whilst overseas with his daughters, are not matters in relation to which the Court should comment at this stage of the proceeding.
[10] See also s.60B(1)(b).
26.The next part of the Mother’s submissions deal with [Y]’s views pursuant to section 60CC(3)(a). In this respect the Mother highlights the comments made by [Y] to Ms W. In particular, the Mother notes those recorded at page 4 of the family consultant’s memo, that:
[Y] is adamant that the best arrangement for her is to move with her Mother to [M].
27.The Mother further highlights how unusual it is in an interim application such as the present where there is:
independent expert evidence of the subject child’s view about the proposed arrangement.
She notes that as recently as 11th September 2012 [Y] met with the family consultant and clearly communicated her views.
28.Next in order is consideration of [Y]’s relationships with her parents, amongst others, pursuant to 60CC(3)(b). The Mother submits that it is likely that [Y]’s strongest and most significant relationship is with her. In this regard she refers again to the report of Ms W which records [Y] as saying:
I feel more calm and relaxed around my Mum. With Dad I feel like I have let someone down if I do something wrong.
At this time and in this interim application, in my view, it is not appropriate to traverse other contentions of the Mother in relation to what is said to be [Y]’s troubled history in living with her Father from time to time.
29.The Mother notes next that [Y] has a number of other significant relationships, most obviously with her sister [X], as well as with her step-Father and other younger relatives of the family on both sides. Unsurprisingly, the Mother highlights that:
[Y] has a relationship of particular significance with her sister [X]. Ms W observed quite a strong bond between them. They articulate their close and supportive relationship with each other which [X] says has strengthened since the difficulties they have experienced together since 2009 while in the Father’s care.
This is a reference again to the family /memo report at page 4. The Mother submits that avoiding any further separation of these strongly-bonded siblings is a matter which weighs heavily in favour of making the orders sought by the Mother.
In relation to participation time and communication, the Mother submits that each of the parents have taken the opportunity to be appropriately involved in [Y]’s life and there is no reason to think that that involvement will not continue after [Y] moves.
30.In relation to obligations to maintain the child - and although this is a later amendment that, strictly speaking, does not apply to the original, initiating application, but arguably could be said to apply to the interim application to relocate - the Mother remarks that the Father does provide child support or had done so but:
at present I do not receive child support from [the Father].
Further to this, there is an annexure, MG08 to Mrs Orbach’s affidavit, which confirms that child support arrears stand at $52,216.74. In consequence the Mother submits that the Father has not appropriately met his obligations to maintain the children.
31.In relation to the consequences or the likely effects of any change in the child’s circumstances (s.60CC(3)(d)) the Mother contends that if [Y] remains living in [W] she will be unable to resume the normal day-to-day family relationship with [X] and her step-Father, and that this is likely to have a significant and detrimental impact upon her well-being. The converse, she submits, must also follow: namely, that if [Y] were to remain in [W] and live with her Father in the absence of her Mother and her sister and her step-Father, it is likely to have “a very significant and detrimental impact upon her well-being”. I assume that this submission is predicated upon the family consultant’s comments from [Y] about ‘being more calm and relaxed around her Mother.’
32.The Mother further submits that with a move to the [M] area [Y]’s relationship with her Father will not in substance be affected at all.
33.In terms of the practical difficulty and expense arising out of any relocation and any consequential change to parenting orders, pursuant to s.60CC(3)(e), the Court may take judicial notice, and both parents highlight it in any event, that the distance between [M] and [W] would necessarily impact to quite some degree upon the frequency and time that [Y] may spend with her Father. The Mother contends, however, that more than significant compensation in time is provided in her orders because of [Y] spending more of her school holidays with her Father than is currently the case.
34.Next, in relation to section 60CC(3)(f) and issues of “capacity”, the Mother simply notes that there is no issue raised by the Father in relation to the Mother’s capacity to care for and meet [Y]’s needs. She raises, but does not refer to any particular evidence about, questions about the Father’s parenting capacity, particularly as a full-time carer of [Y]. However, one might simply observe here (and previously remarked in any event) in the light of the May 2010 orders, that at least since that time, Mr Schroder has not been [Y]’s primary carer. Of course, I do not say this in any way critically of the Father.
35.In relation to section 60CC(3)(g), it is contended by the Mother that having regard to [Y]’s age and her clearly-expressed views previously noted, such matters have already been sufficiently addressed so that no further comment need be made here. Section 60CC(3)(h), (j), (k) and (l), have no particular relevance to the current application.
36.In terms of the Mother’s attitude to the child and the responsibilities of parenthood under s.60CC(3)(i), comments already made deal with there being no questions in relation to the Mother’s capacity, attitude and exercise of her responsibilities as [Y]’s Mother.
37.In relation to 60CC(3)(m), it is submitted that amongst other things the Court may have some regard to what the Mother says is her being emotionally worn out and the extremely stressful year 2012 has been.[11] It is sufficient to note here that the Mother has been living away from her Husband (and [X]), although obviously spending regular time with each of them every month by travelling up to [M], and that there was major flooding in [W] in 2012. There is no dispute that the Mother’s house was [then] flooded and, therefore, (a) for a significant period of time she was living in rented accommodation and (b) there was significant damage to the former residence. Further, the Mother deposes that her Husband had a six-day stint in hospital in the middle of the year. She says that it was feared that he had a heart attack, but fortunately it was later diagnosed as a stress-related episode.[12]
[11] Such matters are summarised in para.14 of the Mother’s affidavit filed on 20th November 2012.
[12] Although it was not so asserted, in my view, this evidence and related considerations are matters that properly come within the general ambit of the principles and discussion in the majority judgment of Bryant CJ and Finn J in Taylor v Barker (2008) 37 Fam LR 461 at [109] - [113].
38.Other considerations might properly be left to one side for the moment and be the subject of attention in the light of the jurisprudence discussed later. I have in mind here issues such as whether or not the Mother is required to establish compelling reasons for relocating (which she is not), or whether or not the Father is required to provide equally compelling reasons requiring that there be no relocation (which he is not). Likewise, the consideration of matters such as the psychological well-being and happiness of the Mother (and its possible impact on [Y]) if she is or is not permitted to relocate (and the possible adverse impact on the Father-daughter relationship if [Y] cannot live with her Mother in [M] due to resentment towards her Father), and finally, the right to freedom of movement, can also be put to one side for later consideration in the light of relevant jurisprudence.
39.The Mother further submits that:
It is not reasonable to put [Y], her sister, her Mother and her step-Father through the continued stress and uncertainty of a split household.
She then quotes from the conclusion to the family memo/report as follows:
The circumstances around the Mother’s application to relocate appear reasonable and without intent of malice towards the Father.
40.This latter comment might also be relevant to whether the family consultant detected any coaching, or anything else, which might have coloured or otherwise influenced [Y]’s views, as suggested by the Father.
41.As to the Court being likely not to disturb the existing order in relation to equal shared parental responsibility and, therefore, the consequential consideration of s.65DAA in the light of GRR v MR (discussed later), the Mother makes the following brief submissions.
42.Mrs Orbach notes that neither party seeks an order for equal time and for that reason, as well as the matters already traversed in relation to s.60CC, an equal time arrangement is not in [Y]’s best interests. Moreover, it would not in any event be reasonably practicable with the parents living in significantly distant regions. The same matters apply, she submits, in relation to s.65DAA and consideration of ‘substantial and significant time.’ The geography involved ([M] and [W]) make orders for substantial and significant time with the non-resident parent [un]reasonably impracticable in accordance with s.65DAA(5).
Father’s Submissions
43.At the outset, I simply observe that a number of what might be considered to be cautionary, if not almost minatory, comments are made in the submissions which respectfully, in my view, are somewhat out of place. Perhaps they are best considered simply as examples of supererogation.
44.For example, and presumably for more abundant caution, para.7 of the Father’s submissions submits that the Court should not have regard to the 2009 family report. As I have already indicated, I do not intend doing so.
45.In para.15 of the submissions, it is respectfully submitted by the Father that the Court would be in error if it sought to rely upon first instance decisions which predate the amendments to the Act in 2006. I assume that such a submission does not include High Court jurisprudence that continues to be cited in Full Court decisions, post 2006. Some of those decisions are noted and discussed later in these reasons.
46.Further, I am not aware that the Court was, or has been, referred to any decisions and, in particular, first instance decisions, that predate the 2006 amendments. In such circumstances, it is rather curious why such a warning or such a submission is made where I do not understand anyone to be relying upon any first instance decision prior to the 2006 amendments.
47.As a third observation, it would seem that learned counsel who prepared the submissions was not aware of the agreement by his instructor’s agent, who appeared in Court on 23rd November, who confirmed that the Father agreed to Ms Hill (the ICL) preparing a memorandum precisely for the purpose of putting the views of [Y] before the Court. In such circumstances, it is clearly a contrary submission now put that the Court may not rely upon the memorandum prepared by Ms Hill as the ICL, with which course the Father had previously agreed. I note again that the Father was present during the hearing on 23rd November.
48.Curiously too, in submitting that the Court should have no regard to the memorandum from the ICL, there is no reference to relevant sections of the Act in relation to the views of children (or the responsibilities of an ICL) and how they may (or should) properly be put before the Court, namely via an ICL and/or a family report. Thus, for example, there is no consideration of or reference to s.68L or s.68LA of the Act in the submissions from any party but, in particular, from the Father in the context and circumstances of a submission that the Court should have no regard to the memorandum of the ICL for the purposes of the interim determination, and this notwithstanding the Father’s earlier agreement to it being provided. It is worth noting (and not for the first time) that the parties themselves were in Court on 23rd November with their respective legal advisers. Indeed, on any contentious issue, such as the ICL providing a memo, specific instructions were sought (properly so) – and provided.
49.Returning then to the submissions proper, I note the following as briefly as appropriate in the circumstances.
50.Firstly, the Father confirms that he opposes the relocation of [Y] on both an interim, and also on a final, basis. He also opposes any change to the equal shared parental responsibility orders of May 2010. Here, I simply note that I am unaware of any proposal by any party that that order be altered or amended.
51.Then follows a number of paragraphs to challenge the “expert evidence of the family consultant.” Para.8 of the Father’s submissions concludes:
It is respectfully submitted that without testing of factual matters at a final hearing, it is not possible to appropriately assess the strength of assessments by a family consultant.
52.Next, in a somewhat similar way, the submissions on behalf of the Father contend (as earlier noted) that the Court:
Also should have no regard to the memorandum of Ms Hill [the ICL] since she will not be a witness and if she is to be a witness, she can no longer be the ICL. The submissions of counsel for the ICL, therefore, insofar as they refer to that memorandum should be disregarded by the court.
53.It is unclear whether the Father is here (a) challenging the ICL’s record of her discussions with [Y], (b) restating the basic submission that [Y]’s views have been influenced by spending time with her Mother and the Mother’s family, or (c) questioning whether the various conversations referred to by the ICL actually took place.
54.The submissions, at para.10, make the point to which I have already referred; namely, that the views of [Y] that have been expressed to the family consultant and “apparently also to the ICL”, have been expressed after spending significant time with the Mother in the Mother’s household accompanied by her Mother, her older sister who is residing in [M] and her step-Father, and those expressed views are not consistent with the views said to have been expressed by [Y] to her Father.
55.In relation to this submission, I observe (with more comments later) that [Y] spends this significant amount of time with her Mother (and in her Mother’s household) pursuant to consent orders entered into by the parties in May 2010. Respectfully, there is some circularity in complaining (in a manner of speaking) that [Y] spends significant time in her Mother’s household, which is said to have somehow impacted on or influenced her in her discussions with both the family consultant and the ICL, all the while knowing that these large blocks of time occur precisely because of orders with which the Father agreed in May 2010, and has apparently maintained since without challenge.
56.The Father next submits that, in fact, because of the Mother’s emotional state, and that state not being able to be quarantined from [Y], such emotional input has further coloured [Y]’s views when she has expressed a view to move with her Mother to [M].[13] The Father submits that [Y] does not want to relocate to [M] from [W] and that she does not want to have to decide where to live and hopes that her Mother will not go to [M]. Such matters are taken from the Father’s affidavit filed on 19th June 2012.
[13] Although having raised this aspect concerning the Mother’s emotional state in submissions, also at para.10, and having regard to the otherwise detailed and regular citation of diverse authority, unfortunately there is no mention anywhere of the Full Court judgment in Taylor v Barker, which deals specifically with such matters, or any subsequent cases that have considered and applied Taylor v Barker.
57.A further part of the Father’s submissions, and this is on the basis of comments made during the brief hearing on 23rd November, is that a 2009 decision of mine in Babbitt & Babbitt is distinguishable and effectively it should be not be considered in the current proceedings. Rather, the Father respectfully submits that the decision of Boland J in Morgan v Miles in one particular respect, at [91] of her Honour’s judgment, is especially apt where she states that it is not distance per se which should be the determinative criterion in relocation matters.
58.Next, the Father refers to the Full Court decision in Cales v Cales and its approval of Boland J’s judgment in Morgan v Miles. The Father further submits (Father’s submissions, para.14), relying upon the often cited and approved first instance judgment of Brown J in Mazorski v Albright, that:[14]
It is respectfully submitted that the qualitative nature of the time spent with the parent is more important and relevant than the quantitative measure.
[14] Mazorski v Albright (2008) 37 Fam LR 518.
The Father acknowledges that Mazorski v Albright has been approved, for example, by the Full Court in McCall v Clark. I discuss Mazorski v Albright later in these reasons.
59.Turning then to relocation issues, in particular, the Father submits as follows.
60.First, he contends that it is necessary to determine whether or not relocation is in [Y]’s best interests and that she spend equal time with each parent. The Court must also determine whether it is reasonably practicable for that to occur, whether the Mother lives in [W] or elsewhere, in order to fulfil properly the jurisdictional requirement identified by the High Court in MRR v GR. The Father acknowledges that if the Mother lives in [M] and the Father continues to live in [W] that an equal time arrangement is impracticable. Although not addressed directly in the submissions, presumably for the same reason, the Father would also accept that substantial and significant time, as envisaged in s.65DAA(3), would similarly be impracticable.
61.A further observation only: accepting the terms of s.65DAA, it is nonetheless surprising that such a submission is made in circumstances where (a) at least since the consent orders of May 2010 there has never been an equal time arrangement, and (b) no one seeks an equal time arrangement here – whatever the outcome of the current proceedings.
62.The Father then raises the question, or notes that the Mother has not stated whether or not she would move to [M] without [Y] if the Court did not permit her to relocate with her. The Father further submits that [Y] completed Year 7 at [W] High School last year, and both parents confirm that [Y] performs well there. She has a large number of friends in [W] which she has said she will miss, according to the Father. In such circumstances, the Father submits that it would not be in her best interests to relocate. Moreover, it does not seem to be disputed that [Y] undertakes extracurricular activities, including being a member of the local aero club.
63.The Father submits:
[Y] has a meaningful relationship and will continue to have one, with both her parents.
Such a submission might be taken in a number of ways, including that even if [Y] were to move with her Mother, the Father concedes that she would still enjoy a “meaningful relationship” with her Father.[15] I assume that this is not his primary submission. Not surprisingly, the Father also submits that there is no basis for any assertion that [Y] is at any risk in the Father’s household.
[15] In this regard I recall Kay J’s observation in Godfrey v Sanders [2007] FamCA 102 at [36], where his Honour said: “Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.” This statement was approved and applied by Young J in Davis v Davis (2007) 38 Fam LR 671 at p.741 [380] – [382]. See also the comments of Dessau J in relation to a long-distance and meaningful relationship in M v S (2007) 37 Fam LR 32 at [45]: “I am conscious that a long-distance relationship, with longer but less frequent times spent together, is inevitably different from a relationship where people live closer together with regular face-to-face contact. But it does not itself mean it cannot be meaningful.” (Emphasis added). In this regard, the important remarks of Brown J in Mazorski v Albright (2008) 37 Fam LR 518 at pp.526 – 527 [24] – [26], and their approval by, among others, the Full Court in McCall v Clark (2009) 41 Fam LR 483, in relation to the critical subject of “meaningful relationship” are set out in full later in these reasons.
64.Next, it is submitted that [Y] has been separated from her sister [X] and her step-Father and that despite the geographical distance between them has maintained a good relationship with both of them. Again I interpolate and observe that such a submission may be a double-edged sword because the converse might be asked, I hope not unreasonably: ‘if this has been the case with those members of her family, why could a meaningful relationship with her Father not be maintained with him remaining in [W] and she in the [M] area?’
65.It is then submitted, at para.20 of the submissions, that the likely effect of separation from (a) the Father, particularly given his recent health, (b) her friends and siblings in her Father’s household, and (c) given her developmental age, all such matters are likely to be psychologically damaging to [Y]. I observe here that there is no evidence before the Court to support such a contention. Indeed, as noted below in the consideration of the Memorandum from the family consultant, it is more likely than not that the reverse will apply and that [Y] would more likely become resentful of the Father if she is not permitted to move with her Mother. But more on this later.
66.The latter part of the Father’s submissions contend that the Mother and her Husband have not facilitated or encouraged [Y]’s relationship between [X] and the Father, and submit that as a result of that, or flowing on from it, there is a concern that a similar course would follow so that [Y]’s relationship with her Father would not be encouraged by her Mother (and her Husband) if she moved. Again, by way of comment, this is a very significant inference to draw particularly in proceedings of this kind in the absence of any relevant evidence. I suggest also that such a submission may be difficult to sustain given that [X] herself has chosen to move to [M]. I do not understand there to be any suggestion of influence or coercion to have influenced [X]’s move away from [W].
67.Finally, the Father submits that the impact upon [Y] of an interim relocation would likely be adverse to her best interests. The complete opposite submission, of course, is put, not only by the Mother but also by the ICL, which is also supported by the family consultant.
68.The Father further contends that the Mother and her Husband have not exhibited the capacity to communicate with him to resolve difficulties that might arise in implementing an arrangement for [Y] to spend substantial and significant time with him. In this regard, there would seem to be little dispute that there is a significantly strained and discordant relationship between the parents.
69.Then the Father submits that a trial judge is not bound to make a decision in accordance with the views of a child and, indeed, by reference to the recent decision of the Full Court of Vigano & Desmond, submits that the best interests determination comprises a much broader range of considerations than just the child’s views.[16] Later on in these reasons I will set out in full that paragraph and the context of it. While I do not disagree in substance with the submission made, in my view it needs to be placed in the more detailed context of the Full Court’s decision and other relevant jurisprudence.
[16] Vigano & Desmond (2012) FLC ¶93-509 at [110].
70.In conclusion, the Father submits that an interim order permitting relocation is unlikely to promote stability which, he says, has been lacking most recently in [Y]’s life and is an option that is not in her best interests. He contends that “the effects of that instability on [X] have not been positive according to the Mother’s evidence.”
71.Respectfully, I consider this last submission to be rather opaque, especially since, on one view at least, [X] has “voted with her feet” and moved to live with her step-Father rather than with her Father. In such circumstances, one might ask, again I hope not unreasonably, why would [X] choose to move to [M] if it did not provide, in her view, [greater] stability for her life as opposed to continuing to live in [W]?
72.Further, other than the somewhat global rejection of the Memorandum from the Family Consultant on the basis of the consultant not yet being able to be cross-examined, the Father’s submissions do not deal with [X]’s negative comments about the Father and his household and the risks of [Y] living there.[17] Similarly, I do not understand the Father’s submissions to have addressed, or to have done so in any thorough-going way, the importance of [X]’s and [Y]’s relationship, in accordance with ss.60CC(3)(b)(ii) and 60CC(3)(d).
[17] See p.4 of the Memorandum.
The ICL’s Submissions
73.Leaving to one side the helpful background that is provided in the first six paragraphs of the submissions prepared by the ICL regarding the relationship and litigious history of the parties, the submissions proper are stated solely to address the ICL’s assessment of the best interests of [Y]. In this regard, as with the Mother, there is detailed attention and specific reference to the “legislative pathway” under the Act.
74.The submissions of the ICL begin with the views expressed by the child, both by reference to (a) the memo of Ms W (exhibit A) and (b) the memorandum which is annexure A to the ICL’s submissions headed “ICL’s Memorandum of Communications with [Y]”. It is signed by the ICL and dated 30th November 2012.
75.First, it is submitted that in communications with the family consultant and the ICL [Y] has clearly and unambiguously articulated a wish to be permitted to relocate to the [M] area with her Mother in accordance with the Mother’s proposal. References are then given to paragraph and page numbers in both documents, thus: paras.3, 6, 9 and 11 in the ICL’s memorandum, and page 4 of the family consultant memorandum, where [Y] “explained clearly and calmly that she wanted to relocate with her Mother and sister”, and was “adamant that the best arrangement for her is to move with her Mother to [M]”. The ICL further submitted that [Y]’s age at 13, and her level of maturity as displayed to both the ICL and to Ms W, is such that the Court should have significant regard, or should attach significant weight, to her clearly articulated wishes.
76.Next, the ICL responds to the Father’s assertion that [Y] articulates her wishes differently to him and responds as follows. Firstly, [Y] stated to the ICL:
I know Dad thinks Mum influenced me but she hasn’t … I did have second thoughts but then I thought he might have another stroke and I can’t do anything about it.
77.[Y] also told Ms W, “I have told him [the Father] that I want to move to [M]. He doesn’t like it”. [Y] told the ICL that she felt that this was her choice and she wanted her Dad to understand that. In the light of these comments, the ICL submitted that the Father’s position thus reflects his inability either to recognise, or alternatively to accept, [Y]’s preferred position rather than any ambivalence on [Y]’s part.
78.Turning then to the primary considerations in section 60CC(2), the ICL makes the following submissions.
79.First, she notes that the Mother’s relocation proposal means that [Y] will cease regularly to spend time with her Father on alternate weekends, but will spend all, rather than only half, of the mid-year school holidays with her Father. The ICL submits that the Mother’s relocation proposal will not prevent [Y] from continuing with a currently meaningful relationship with her Father, and notwithstanding evidence of some past difficulties between the Father and [Y], noted for example in Ms W’ memo, the relationship appears well established and [Y] has articulated enthusiasm for seeing the Father during the holidays saying “I know I will miss him”, “I will look forward to seeing him” and “I will enjoy visiting”.
80.The ICL submits that the proposed relocation may, in fact, be a benefit to the relationship between [Y] and her Father given that she is likely to be resentful of him if the relocation is not permitted, and given that the relocation may reduce her exposure to recurring conflict between her parents. For my part, and subject to more considered comments later, in my view these are significant considerations.
81.Next, the ICL comments in relation to the protective responsibilities referred to in section 60CC(2)(b) in the following terms. Firstly, she says that there is some evidence to indicate that if the Mother’s relocation application is refused and the Mother decides to relocate by herself so that [Y] lives with her Father, she may be at risk of psychological harm from being subject either to abuse or neglect where there is reference [the ICL submits “evidence”] to where (as ventilated in earlier proceedings) the Father removed [Y] from the house on the basis of a suspicion of sexual misconduct. Secondly, there is evidence, and this is reflected in earlier orders of the Court, that if the Father wished to have [Y] psychiatrically assessed, then he was to do so or he was to make an application within a certain prescribed time, which ultimately did not occur.[18]
[18] This reference is to orders dated 17th December 2009. They obviously pre-date the consent orders of May 2010.
82.Next, the ICL refers to the Mother’s affidavit material, which seems not to have been specifically denied by the Father, where in a recent trip to Germany with [X] and [Y], it is contended that the Father had an affair and threatened to self-harm.[19]
[19] There is some reference to such matters in p.4 of the Memo from the family consultant. It seems not disputed that [X] has significant knowledge of the ‘affair incident’ in Germany and that [Y], fortunately, does not. Indeed, it is contended, and seemingly not denied, that [X] played a significant protective role in shielding [Y] from this incident. Further, in the course of the hearing on 23rd November, Mrs Orbach confirmed that she would ensure that [Y] would not learn anything about the incident involving her Father.
83.The ICL contends that in relation to section 60CC(3)(b) the evidence confirms that [Y] has a good, close and positive relationship with her Mother, but that the relationship with her Father, although generally positive, can at times be ambivalent according to the memorandum prepared by the family consultant. Likewise in the memorandum from the ICL, she notes that [Y] states that she feels “more calm and relaxed around my Mum”, but with her Father feels “like I have let someone down if I do something wrong”. It is also noted that [Y] has a positive relationship with her step-Father and a generally positive relationship with her step-Mother and step-sister Isobel.
84.In relation to whether or not the parents have fulfilled their obligations to maintain the child, the ICL notes the parents have done so, save for the significant child support debt, which also seems not to be disputed by the Father.
85.In relation to section 60CC(3)(d), I will not recount all of the submissions made by the ICL in this regard, except to note that in relation to the relationship between [X] and [Y] there is a strong bond; it is said to be a “close and supportive relationship”. According to [X] (as noted in the family consultant’s Memo) this relationship “has strengthened since the difficulties they have experienced together since 2009.”
86.Next, the ICL observes (and as I have previously noted) that there is some evidence that [X] has played a protective role to [Y], specifically in relation to shielding her from the fallout from the consequences of the Father’s affair while in Germany last year.
87.It is also proposed, and seems not to be denied if the relocation is permitted, that [Y] will be enrolled in the same school as [X]. [X] will be finishing her final year of high school in 2013.
88.The ICL submits that all of these factors point very strongly in favour of the Mother’s relocation proposal being granted as being in [Y]’s best interests. Moreover, the ICL observes that if the relocation application is refused, [Y] could end up being separated from her Mother if her Mother decides to move notwithstanding that [Y] may not, and that such an occurrence would be significantly detrimental to [Y].
89.The factors in relation to practical difficulty and expense are referred to noting that the drive between [W] and [M] is, approximately, six and a half hours.
90.In relation to the other considerations, for example section 60C(2)(f) and (i), under the Mother’s proposal there would be clearly defined, stable arrangements for [Y] in respect of accommodation, schooling and financial support from her step-Father and Mother in the [M] area. For these reasons, the submissions of the ICL conclude in the following terms:
The ICL strongly supports the Mother’s proposed relocation application on the basis that the application, (a) is consistent with [Y]’s clearly and unambiguously expressed wishes as stated to both the ICL and Ms W, and, (b) for the reasons set out in the submissions, it is in [Y]’s best interests.
91.Although I have referred to the ICL’s memorandum in the course of dealing with the ICL’s submissions, there is one particular matter I wish to highlight. At para.9 of that annexure, the following is stated (emphasis added):
Spoke to [Y] by phone on 14 November 2012. I explained to her what might happen in relation to the Father’s application to vacate final hearing dates. [Y] indicated she was very frustrated. [Y] stated, “Dad is saying stuff. He makes me feel guilty”, “he is sort of persuading, he says things like, “What happens if I have another stroke?” [Y] said to me, “I did have second thoughts, but then I thought he might have another stroke and I can’t do anything about it.” Her emotional stress at being placed in this position was evident.
In para.10 of the ICL’s memo, [Y] is stated to have said the following to the ICL:
I can’t concentrate at school. I keep thinking about this.
The ICL comments that [Y] was concerned that it [the litigation and surrounding issues] was impacting on her performance at school.
92.Accepting all the difficulties that attend interim hearings, especially in relation to the inability to make any formal findings, if comments of the kind reported by the ICL from [Y] regarding her Father making her feel guilty are ultimately established and accepted by the Court, for my part, I would have the greatest difficulty and concern about them.[20] In my view, they would be tantamount to emotional blackmail and would very likely be seen as patently made to secure compliance with the wishes of that parent.
[20] Not dissimilar complaints are set out in Mrs Orbach’s affidavit, filed 20th November 2012, at para.10, where a conversation between the Mother and [Y] are recounted regarding an earlier conversation between [Y] and her Father and [Y]’s [alleged] complaints about pressure being brought to bear on her.
93.Preying upon a child’s emotional well-being by referring to a parent’s state of health, stating for example, “What happens if I have another stroke?” would, in my respectful view, be a most reprehensible statement and an inappropriate attempt to control a child. I stress again that I do not make any formal finding at this stage; all such matters must await a final hearing – if there ultimately is one. However, if satisfied of it having been made, such a statement would show, in my view, significant lack of insight into the responsibilities of parenting, and could not be considered as being in the child’s best interests. It would be a complete inversion of the statutory responsibility to place the child’s best interest as the paramount consideration. Rather, it would be a situation where a parent’s longing to spend time with the child (however well-intentioned, and assuming there is no other motive, such as manipulation against the other parent) took precedence over the child’s best interests.
Memorandum of the Family Consultant (Exhibit A)
94.This detailed memorandum was prepared by the head of the family consultants of the Court in Canberra.[21] It is dated 11th September 2012. Because of the range of matters that have already been addressed and the many references made to it, for more abundant caution I set out in full the text of the memo, beginning on p.4 with the heading “Children and their Relationship”, until its conclusion.[22] Thus:
[21] As previously indicated, the terms “memorandum” and “memo” are used in these reasons inter-changeably, whether referring to the memorandum provided by the family consultant on the one hand, or the short memorandum provided by the ICL, on the other.
[22] I comment on the detail from this memo later in these reasons.
The Children and their Relationships:
[X] and [Y] are articulate intelligent, forthright and pleasant young ladies. There was nothing whatsoever in [Y]’s presentation that would suggest mental health issues.
They were observed to have a strong bond between them. They articulate their close and supportive relationship with each other which [X] says has strengthened since the difficulties they have experienced together since 2009, while in their father’s care.
[X] has made arrangements to commence at [G]/ [M] High School in term 4. She is completing her Year 12 over 2 years due to the difficulties that she has had to contend with during this year.
Both the children had clear views regarding there [sic] living arrangements and their potential re-location with their mother to [M]. They were direct about their strong wish to accompany their mother and step-father to [M]. The details of the conversation with them are:
[X]
From the outset [X] stated that it was the “better option”. She considers that it is not emotionally or psychologically safe for [Y] to live with her father.
She says that [Y] is scapegoated and vilified at her father’s home. She says that [Y] feels “uncomfortable” there. She claims that recently for [Y]’s birthday she was caused to feel unhappy and “not special” by her father and his family.
[X] is concerned that [Y] will experience what she herself has experienced living with her father. She says that as the eldest she would be expected to referee her father and his partner’s arguments. She reports that the couple argue regularly. “As I got older I found it more difficult living there. I was in the middle of their bouts. I was expected by them to side between my step-mother or father”. She says that during the arguments that had occurred in Germany her father had made a number of statements and threats regarding his mental health which had been distressing and frightening for her.
[X] said that she would want to regularly visit [W] after she moves to [M]. She has a particularly close relationship with [name omitted], who has a small business in [W]. She expects that she would spend time with her father when she was there.
[Y]
[Y] is adamant that the best arrangement for her is to move with her mother to [M]. She said that she was 9/10 sure that this was what should occur. She says that she feels closest to her mother – “I feel more calm and relaxed around my Mum. With Dad I feel like I have let someone down if I do something wrong”.
[Y] says that she has told her father that her wish is to re-locate with her mother a number of times. “I’ve told him that I want to move to [M]. He doesn’t like it”.
She says that she has told her father that she would see him during the school holidays. She proposed – “Two weeks in the April and September school holidays with Dad and 1 week in the July holidays and 4 weeks in the December/January holidays”. She said regarding her little sister “I’d see her through the holidays. Dad is usually with her and [name omitted]. I do like seeing my little sister. I feel bad if I don’t. I like seeing Dad the most. I like spending time with just him, like at work and at sport”.
[Y] says that she has other extended family that she also likes to spend time with. She expects that this will be easier in the event that she lives in [M]. She says that she has a lot of her extended family living in Sydney from both her father and mother’s side including cousins. [Y] reports that she has a particularly close relationship with her step-brother, [name omitted], who spends every second weekend with her in [W]. He resides with his mother in Newcastle and she believes that she will be able to spend more time with him if she moves to the [M] area.
[Y] also stated that she would want to spend time with her step-brother and sisters in [W] when she visited her father.
[Y] said that she understood that she would experience the usual transition period settling into a new school. “It would be like what I went through at the beginning of this year”. She said that she would welcome “having a fresh start” and meeting new people. She believes that she would settle into a new school relatively easily. “I’m certain that I will make friends quickly”. [Y] says that if she is not permitted to re-locate with her mother – “I wouldn’t be happy. I would be angry and confused”.
Issues impeding resolution
The parents’ poor relationship with each other and its deterioration since the issues around the children from 2009 onwards.
The circumstances for the mother that have made living in [W] more difficult and less viable for the long term.
Conclusion
From the portrayals of [X] and [Y] regarding their family relationships the events of the last 3 years have caused a significant change in their relationship with their father. Neither of them considers the relationship to be of the quality to provide [Y] with the support and emotional nurture required for her to develop and thrive in his care.
In combination with this is the deterioration in the relationship between the parents, which is highly tense and conflictual. Moving frequently between parents who are in conflict has been empirically shown to be traumatic for children. It is common under these circumstances for older children to become less willing to spend frequent time with one parent.
The circumstances around the mother’s application to re-locate appear reasonable and without any intended malice toward the father.
Jurisprudential Considerations
95.For my part, I consider the primary authorities for applications of this kind, and in the light of the facts as set out above, are Mazorski v Albright[23] and Morgan v Miles.[24]
[23] (2008) 37 Fam LR 518.
[24] (2008) 38 Fam LR 275.
96.Although the comments made by the High Court concerning relocation in AMS v AIF, and again in U v U,[25] were in a different statutory context than the current regime, nonetheless the observations there made also remain critical.[26] I have in mind, in particular, the statements of principle regarding, on the one hand, the paramountcy of the children’s best interests, and on the other hand, the freedom of movement of a parent to `move on’ with their life following the breakdown of a relationship, and that no `compelling reasons’ to do so are formally required.
[25] Respectively AMS v AIF, AIF v AMS (1999) 199 CLR 160, and U v U (2002) 211 CLR 238. These High Court authorities continue to be cited in Full Court decisions, post the 2006 amendment to the Act, and post the later judgment in MRR v GR.
[26] As already indicated, these High Court authorities continue to be cited, post the 2006 amendments, and post the later High Court case of MRR v GR. See, for example, the citations in Goode v Goode at [47], and Malcolm & Monroe at [83].
97.I set out below [3] – [6] of Brown J’s judgment in Mazorski v Albright and respectfully adopt it for its succinct overview of relevant sections (and principles) of Part VII of the Act:[27]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[27] (2008) 37 Fam LR 518. Her Honour’s remarks, in relation to the “twin pillars”, and in relation to “meaningful relationship”, have been consistently cited with approval by the Full Court, for example in Moose & Moose (2008) FLC ¶93-375; McCall v Clark (2009) 41 Fam LR 483; Sigley v Evor (2011) 44 Fam LR 439; Shaeffer v Jacobs (2011) FLC ¶93-468; & Maluka v Maluka (2012) 45 Fam LR 129.
98.Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined a range of relevant considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[28]
[28] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly approved Brown J’s remarks.
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
[37] For recent Full Court discussion and application of MRR v GR, see Adams v Randall (2012) 46 Fam LR 453 at [96] ff.
112.I simply observe here (and not for the first time) that both parties accept – either expressly or implicitly - that if the Court determines that it is in [Y]’s best interests to move with her Mother to the [M] area, the geographical distance between the two areas ([M] and [W]) make both an equal time arrangement (which I do not understand is sought by either party, in any event), and similarly orders for substantial and significant time, completely impracticable. Even were the parties not to accept that reality, the Court should be taken formally to confirm that the distance between those two cities (just over 600 kilometres) makes both an equal time, and similarly a substantial and significant time, order reasonably (indeed utterly) impracticable. On the basis that [Y] move to the [M] area with her Mother, to make either order would not be in [Y]’s best interests. Such is the Court’s “practical assessment” of the “reality of the situation” on the facts of this matter.
Legal Principle: Consideration
113.For all of the words already spilled in this matter (not least in these reasons), in my view, the matter should properly be determined in the light of principle distilled from the following jurisprudential considerations.
114.First, I remind myself that any orders made must be determined to be in [Y]’s best interests.[38]
[38] See s.60CA.
115.Secondly, the factual circumstances, which have been summarised earlier and which I repeat now, are largely uncontested. Indeed, subject to any other comment noted below, they cannot be. Those facts are:
a)The Mother has had a [omitted] position in [M] secured now for many months but which awaits being taken up this year. There is no guarantee that the position can be held for her, as it has been now for some time, beyond that time;
b)The Mother has lived separately from her husband, who as previously noted, has been living and working in the [M] area since early 2012, and has travelled each month to [M] to spend time with her Husband and her daughter [X];
c)As previously noted, the Mother’s eldest daughter ([X]) ([Y]’s sister, of course) now also lives in the [M] area with her step-Father, she attends school there, and will do so this year;
d)The Mother’s parents live relatively close to the [M] area (her Father suffered a stroke in 2008 and is aged 79);
e)The Mother’s residence in [W] was flooded in early 2012, which resulted in her living in rented accommodation;
f)Mr Schroder’s health is understandably uncertain, and no further detail or clarity of his diagnosis and prognosis can be known until he sees his specialist some time early this year;
g)Mr Schroder’s application and further involvement in the current proceeding is necessarily open-ended, obviously pending the outcome of his specialist appointment in 2013 and any further medical tests.
116.In the light of these circumstances, there is no certainty, nor can there be, as to when (or if) the matter might proceed to a final hearing. Such an observation is in no way critical of any party, least of all the Father. However, from a procedural perspective alone, this matter must necessarily wait for further unknown factors to unfold over the coming months, and then, in all likelihood, possibly even wait for a further significant period of time. Even without further medical evidence from the Father, because the trial dates have now been vacated on the Father’s application, no trial dates are now available until well into the second half of this year. Given the uncertainty over the Father’s health, it could be that he will not be in a position to resume the litigation until many months hence. Given the Father’s reliance upon his ill-health, and the quite brief, somewhat tenuous but necessarily inconclusive medical evidence to vacate the trial, I would expect, and certainly would be keen to see, proper and detailed medical evidence of the Father’s medical capacity to withstand the trials of a trial.
117.In my view, such circumstances bring this matter within the general caveat articulated by Boland J in Morgan v Miles, when her Honour spoke, at [88], about the usual need for such cases to be determined at a final hearing “except in cases of emergency” (emphasis added).
118.
In my view, it is not appropriate for any of the parties, nor for [Y] in particular, to remain in a state of legal and domiciliary limbo until some unknown, but likely a not insignificant, date well into the future as to when the matter might (or might not) come back to Court, and be heard at some still later time. On current best estimates, even if the matter were to be heard in the latter part of this year (assuming that
Mr Schroder’s health is sufficiently robust), more likely than not it would still not be until perhaps sometime in 2014 before the matter was finally determined. With Mrs Orbach having lodged her application last year, in my view, the circumstances militate against she and [Y] having to put their lives effectively “on hold” for a completely unknown period of time. In saying this, Mr Schroder must properly, and without criticism, be entitled to take his time to ensure that all medical tests and treatment are attended to, and not until he is fully fit and healthy should he decide whether, and if so when, to continue on the arduous litigious trail.
119.Boland J also stated in Morgan v Miles, at the same place, that there is an understandable concern about determining matters such as these “in an abridged interim hearing.” In my view, there is less abridgement here than would usually be the case. For example, rather unusually but very fortunately for an interim hearing, there is (a) a detailed memorandum from an experienced family consultant, and (b) a series of clearly, and very recently, expressed views of the child given to the ICL, which have been reduced to a formal memorandum. I record – again – that following lengthy discussions with the legal representatives, it was agreed that the matter would proceed by way of submissions; these submissions are both fulsome and, respectfully, very helpful. While many cases do proceed on an interim basis in very attenuated circumstances, in my view, in the light of the procedural and evidentiary circumstances in this matter, it can reasonably be argued that there has been a significant ventilation of the issues, discussion of facts (admittedly without testing and any formal rulings on them), and articulation of relevant principle. This is also to say that (a) there has been much less “attenuation” of a hearing than would usually be the case, and (b) for such limitation as there has been here, there is a significant amount of evidence before the Court and from two important (and independent) sources – the family consultant and the ICL – as well as detailed submissions, in the light of this evidence, from the parties and the ICL.
120.Further to the unusual factual circumstances of the matter, as previously noted, the Court has the clear and unambiguous views of [Y]. Accepting that a child’s “views” are but part of the considerations to which the Court must have regard, and notwithstanding the contest about them raised by the Father, in my view, the Court is entitled to accept that [Y]’s views, as articulated to the family consultant and to the ICL, properly reflect her considered and firm views.[39] I say this for a number of reasons.
[39] See here the Full Court’s comment in Vigano & Desmond, at [110]: “However her Honour’s conclusion as to the children’s best interests was much broader than just their views, as paragraph 20 of her reasons for judgment indicates. It took into account the disruption to the family life including of the mother and her new partner, the importance of supporting the mother as the sole provider of physical, emotional and financial support to the children, the mother’s view that there was no benefit to the children or herself in the pursuit of any relationship with the father until he was released, and Dr W’s view that she could not be certain that the children would not be adversely affected by continuing to see their father.” Respectfully, that case, in which there were very serious allegations of sexual abuse, and the Father was in prison, is obviously factually very far removed from the facts of this case. And further, as already indicated, and confirmed by abundant authority, the views of a child are but one of many considerations prescribed in s.60CC. It is for the Court to determine the weight, relevance and significance of those views having regard to, among other things, the age of the child, and the evidence relating to the views expressed.
121.First, the Court may accept that the family consultant is sufficiently expert to determine whether [Y]’s views are genuine, and whether or not she had been influenced (or coached). I accept, of course, that the comments of the family consultant have not been the subject of cross examination. However, having due regard to the general expertise of family consultants, it would be inappropriate simply to discard, or have little or no regard, to the matters recorded in the detailed memorandum that is now exhibit A. The memorandum is properly before the Court, and it has been prepared by an expert family consultant.[40] Indeed, s.60CD refers specifically to how the views of a child are expressed, which includes, in s.60CD(2)(c), “by such other means as the Court thinks appropriate.”[41] In this case, the memorandum of the family consultant is such an appropriate, independent means.
[40] See the responsibilities of a family consultant pursuant to s.11F and 62G of the Act.
[41] See also the requirement in s.62G(3A) in relation to obtaining and reporting the child’s views.
122.In this regard, I note the following comments by Watts J in Kernot v Matson in relation to comments by a family consultant recorded in a report based on assessments made by the consultant.[42] In that case, his Honour said, at [32] (emphasis added):
It is open to the report writer to make an assessment that the children were telling her the truth based upon the report writer’s observation of them at the time that the children were making the statements. Interviewing children is an area where specialist training is a very useful thing to have. Opinions formed in the process of interviewing children are by their very nature subjective. That, however, is not a basis for rejecting, out of hand, the opinion if given by a person with the requisite specialist knowledge (see Einstein J in Idoport Pty ltd v National Australia Bank Ltd [2001] NSWSC 123 at [83]).
[42] Kernot v Matson (2009) 39 Fam LR 695. I note that his Honour was dealing with a report prepared under s.62G of the Act, whereas here, the memorandum was prepared pursuant to s.11F. That distinction having been noted, in my view the memorandum in this case is significantly detailed and is much more than a summary or overview of issues and observations.
123.Then, at [55] and [57], his Honour commented further in relation to the scope of expertise of a family consultant and the responsibility of the Court in ultimately assessing what orders are in the particular child’s “best interests.” Watts J said:
[55] … recommendations are one piece of opinion evidence that is weighed with all the other evidence that the court takes into account. It will be for the court to judge the reliability of the evidence, including whether or not statements made by the children are true. It will be for the court to judge what arrangements are in the children’s best interests.
[57] There are good reasons why it is in the children’s best interests for further interviews and investigations with them to be avoided if possible. W, who is described as presenting as a sensitive and mature child, was distressed during the interview process.
124.I accept that each case must be determined on its own facts, and that the comments of Watts J cannot, and should not, be accepted without consideration of the factual situation before him, and the different factual scenario before this Court. That said, respectfully and gratefully I adopt his Honour’s comments to the degree that they have application to the current matter. In particular, I draw attention to his Honour’s remarks in relation to the expertise of family consultants in interviewing children, which I take to include any assessment of the views of a particular child and whether they might be influenced by one or more factors, including the child living with his or her primary care-giver, and attending a meeting with a consultant having been brought to it by that same parent, as opposed to being brought to it by the non-resident parent.
125.Further, I accept Watts J’s confirmation that, whatever the evidence of any relevant expert, it remains for the Court to determine what orders are in the best interests of the child in question.
126.Secondly, not to accept, or have proper regard to, the comments of the ICL (including the matters detailed in annexure A to her submissions), even in an interim hearing, in my view, would subvert the clear statutory responsibilities of the ICL, set out in s.68LA of the Act. Indeed, as s.68LA(5)(b) provides or requires, the ICL is compelled to ensure that the views of the child are put before the Court. That has occurred.
127.And as with the family consultant, the Court may assume that the person appointed as the ICL has sufficient expertise to determine whether or not the views held are genuinely held and expressed or otherwise compromised in any way. No such qualification has been stated by the ICL in this case. Indeed, given (a) [Y]’s response, and the certainty and clarity with which she has expressed her views to the ICL (including her recognition of her Father’s concerns about being influenced by her Mother), and (b) the ICL’s considered opinion of the veracity and authenticity of [Y]’s view, in my view the ICL’s memorandum containing [Y]’s most recent articulation of her views, should be accorded very significant weight.
128.Further to these comments, I note the following Full Court authority in relation to the Court’s consideration of “children’s wishes/views.” I note four cases: Harrison and Woollard (H & W) (the children were aged 8 & 7); R and R: Children’s Wishes (children aged 12½ & 10); In the Marriage of R (Children’s Wishes) (children aged 14, 11 and 9); and VW v J (children aged 11 and 6).[43]
[43] Harrison and Woollard (H & W) (1995) 18 Fam LR 788; R and R: Children’s Wishes (2000) 25 Fam LR 712; In the Marriage of R (Children’s Wishes) (2002) FLC ¶93-108; & VW v J (2006) 34 Fam LR 499.
129.The following may suffice as a distillation of appellate and superior court principle regarding the relevance and weight to be given to children’s wishes.[44] I begin with an older High Court discussion.
[44] For extra-judicial discussion, see the following studies (I hasten to add that, in accordance with the Full Court decision in Maluka, already cited, I have not had regard to any of these articles in determining orders that I consider to be in [Y]’s best interests). See F. Bates, “`Completing the Charm’: The Relevance of Children’s Wishes in Contested Cases: A Contextual Commentary,” (2003) 5 Newcastle Law Review 97; N. Taylor, “What do we know about involving children and young people in family law decision making? A research update,” (2006) 20 Australian Journal of Family Law 154; and most recently, P. Parkinson & J. Cashmore, The Voice of a Child in Family Law Disputes, (Oxford: Oxford University Press, 2008).
130.In Reynolds and Reynolds, Mason J said (Menzies & Walsh JJ agreeing):[45]
The admissibility in custody proceedings of statements by children of the kind in question is a difficult subject. The relationship which exists between a child and its parent is plainly a relevant consideration and the wish of a child (of reasonable age) to live with one parent rather than the other is a matter to be taken into account by the court, although the weight to be given to it will depend upon the circumstances of the case.
[45] (1973) 47 ALJR 499 at p.502. It is sufficient to note here certain comments from the classic decisions in Gillick’s Case and Marion’s Case where the House of Lords and the High Court respectively discussed the gradually increasing weight to be accorded the wishes and responsibilities of young people. It is summarised precisely by Deane J in Marion’s Case where he said (1992) 175 CLR at p.293 (emphasis added): “The … extent of the legal capacity of a young person to make decisions for herself or himself is not susceptible of precise abstract definition. Pending the attainment of full adulthood, legal capacity varies according to the gravity of the particular matter and the maturity and understanding of the particular young person.” It will be recalled that the High Court endorsed the views of Lord Scarman in Gillick as representing the common law in Australia with respect to the capacity of children to give consent to medical treatment. See the judgment of the plurality (Mason CJ, Dawson, Toohey & Gaudron JJ) at 175 CLR at pp.237-238. Department of Health & Community Services v JWB & SMB (Marion’s Case) (1992) 175 CLR 218; and Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.
131.In a joint judgment in Harrison and Woollard, Fogarty and Kay JJ stated that “[t]he wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children.”[46] Their Honours continued:[47]
… the court will attach varying degrees of weight to a child’s stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.
[46] (1995) 18 Fam LR at p.797.
[47] (1995) 18 Fam LR at p.800. See also the detailed discussion by Baker J of the psychological literature (at pp.819-823), which includes his Honour noting (at p.820) (emphasis added): “There appears to have been a tendency for adults to underestimate the wisdom of children and their ability to make sound choices about their future welfare. It must be recognised that children know their parents’ attributes and failings better than any outsider and in most cases they alone have direct experience of the environment which each offers.”
132.In R and R, the Full Court (Nicholson CJ, Finn & Guest JJ) considered further the import of Harrison and Woollard. In the course of the joint judgment, their Honours said (at [44]): “What is required is that they [i.e children’s wishes] be given appropriate and careful consideration and not simply treated as a factor in the determination of the child’s best interests without giving them further significance. When validly held wishes are departed from by the trial judge, it is apparent that good reason should be shown for doing so.”
133.I simply remind myself of the statutory regime that now applies under Part VII of the Act, and recent authority to which I have referred, such as Vigano & Desmond. That said, in my view the earlier Full Court decisions noted, and those discussed below, remain important for the discussion of principle.
134.Later in the judgment in R and R, the Full Court said (at [54]): “Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.” And later (at [57]): “… it is not the law that those wishes are determinative of the outcome which may be overridden by other factors relevant to the determination of the child’s best interests.” Respectfully, this statement accords generally with the much more recent discussion by the Full Court in Vigano to which I have earlier referred.[48]
[48] See also the comments of Nicholson CJ in ZN v YH (2002) 29 Fam LR 20, a ‘relocation case’. His Honour referred at [140] specifically to the age and maturity of children as relevant to the weight to be attributed to their views.
135.It is sufficient to note that in VW v J, the Full Court (Finn, May & Guest JJ) there referred, at [28], with approval to the earlier decision in R and R, and the importance of the court (a) not being bound by the views of the child, and (b) according proper weight to the views expressed by the child in question and the reasons given for them.[49]
[49] I note too that the decision in R and R has most recently been cited with approval by the Full Court in Vigano & Desmond at [95].
Discussion & Resolution
136.In accordance with the orders sought by both parties, the current order for equal shared parental responsibility shall be confirmed.
137.In relation to [Y] having a meaningful relationship with both parents, I summarise the situation as I understand and consider it to be at the present time.
138.There is no challenge to the fact that [Y]’s Mother has been her primary carer at least since the consent orders in May 2010. I also accept from Mr Schroder’s submissions that “[Y] has a meaningful relationship and will continue to have one, with both her parents.”
139.Further to and in the light of this submission, in my view, the Court may accept with greater weight than it might otherwise do in interim proceedings, those comments and remarks in the separate memoranda from the family consultant and the ICL that are to the effect that [Y]’s strongly held preferred living environment is to be with her Mother. In saying this, there is no doubt, as recorded in the ICL’s memorandum, that [Y] enjoys spending time with her Father, but that can, at times, be somewhat less relaxed and comfortable than she would wish.
140.Regarding a “meaningful relationship”, and in addition to what has been set out earlier from Mazorski v Albright, I recall the comments of the Full Court in Champness & Hanson.[50] From that case, I note the following (at [103] emphasis in original, and [191]):
[103] 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 the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors.
[191] … the expression “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”.
[50] Champness & Hanson (2009) FLC ¶93-407.
141.These statements from the Full Court inform my decision further in relation to the meaningful relationship that [Y] has with both her parents.
142.In this regard, I should also formally record that I accept the Father’s submission, drawn from Mazorski v Albright, at [26] of Brown J’s judgment, and noted earlier in these reasons, as follows (emphasis added): “It is respectfully submitted that the qualitative nature of the time spent with the parent is more important and relevant than the quantitative measure.”[51] I agree.
[51] This is located at para.14 of the Father’s submissions, which also record the Full Court’s approval of her Honour’s remarks, in McCall v Clark at 41 Fam LR [121]. See also Cales v Cales at 44 Fam LR [139] – [143].
143.Given that the parties, either expressly or by necessary implication, accept the reality, as well as in the light of the comments by the family consultant and the ICL, the Court may safely find that [Y] has a ‘meaningful relationship’ with both of her parents. This is a matter of fact as well as for the purposes of s.60CC(2)(a) and s.60CC(3)(b). Further, in the light of all the facts, [Y]’s views regarding her Father, the already somewhat limited time (i.e. ‘a measure of “quantity”’) that [Y] currently spends with her Father, and the statements of principle discussed, I have little doubt that the “quality” of [Y]’s relationship with her Father will remain and not be impaired with her living with her Mother in the [M] area. And as previously observed, if the Mother’s application was denied, it would much more likely impact negatively on [Y]’s relationship with her Father, and conversely, that relationship is perhaps likely to improve as a result of removing [Y] from the stresses and strains of the current discord between her parents.
144.In this regard, I recall the comments earlier noted from Kay J in Godfrey & Sanders that the Court looks to a meaningful relationship, not an optimal one. His Honour’s comments have since been endorsed by Young J in Davis. I also recall the remarks of Dessau J in relation to a long-distance and meaningful relationship in M v S. All such observations have resonance and application in this case.
145.I turn next to [Y]’s views and the consideration of them under s.60CC(3)(a), noting that they are but one of a number of matters to which the Court must have regard.
146.Accepting that Mr Schroder contends that (a) [Y]’s views have been [unduly] influenced by her Mother, and (b) she has expressed different views to him than those recorded by the family consultant and the ICL, in my view the Court should accord significant weight to [Y]’s views as expressed to the independent and experienced persons I have mentioned. For the reasons given earlier, not least their expertise which can and should be taken to include their capacity to diagnose or to detect that the views expressed are not genuine or that they have been influenced, [Y]’s views have been conveyed to the Court by two different and independent sources. Those views should be given significant weight.
147.In this regard, I accept also the submission that if I were not to accord significant weight to her views, and ultimately find that it is not in her best interests to relocate with her Mother to [M] there could likely be a risk that [Y]’s relationship with her Father could suffer (and significantly so) because she could (or would) perceive him as the cause of, or the impediment to, the success of the relocation application.
148.Whether considered under s.60CC(3)(c) as that sub-paragraph stood prior to the June 2012 amendments, or as amended by them, I simply note that the only contention of any significance under either version of this sub-paragraph to which I should have any regard at this stage of the proceedings is that the Father avers that the Mother (and her Husband) do not promote [Y]’s relationship with him. The Father says that he is fearful that if the relocation application is granted there is a risk that the Mother will not promote (or worse) [Y]’s relationship with him. For her part, the Mother confirms that she has a difficult relationship with the Father.
149.For my part, it is important again to record that [Y] has a meaningful relationship with both of her parents. Given her age, and the comments from the family consultant and the ICL regarding her views and her maturity, I would be very surprised if [Y] did not have a significant say in what was considered to be appropriate arrangements to spend time and communicate with her Father.
150.I simply note, but make no finding about, the following matters that touch on this aspect of the legislative pathway. First, both [Y] and her older sister [X] travelled to Germany in 2012 with their Father. There is no suggestion that the Mother impeded such a significant venture between the girls and their Father. Secondly, as previously mentioned, [X] has ‘voted with her feet’ and moved to [M]. I do not understand there to be any suggestion that the Mother influenced [X] to make such a move. If that be the case, and the Mother did not so influence [X], there is little basis to suggest that she would do so with [Y].
151.A significant factor to be considered in this case is the issue, under s.60CC(3)(d), of the separation of the sibling daughters. Given the comments and observations in the family consultant’s memorandum, in my view, it would be a significantly adverse situation for [Y] if she were to continue to be separated from her sister [X] who now lives in [M] with her step-Father. The fact that they will both attend the same school only adds to the importance of the mutual support they will be able to provide each other.
152.I accept the obvious distance, and the consequences that flow from it, between [W] and [M]. However, there is little doubt that both parties are resourceful and have the means to make both the travel reasonable in its frequency, and the communication in this day and age, more than adequate – as described by Dessau J in M v S as ‘virtual visitation.’
153.I do not understand there to be any evidence to challenge the capacity of either party to provide for [Y]’s needs, and having regard to her age, in any relevant respect for current purposes pursuant to s.60CC(3)(f) and (g).
154.All of the matters already traversed, in my view, are sufficient general consideration of the broad range of matters that are contemplated by s.60CC(3)(i). It is sufficient to note again that there appear to have been few issues between the parties in relation to the exercise of their parental responsibilities since the making of the consent orders in 2010. Accordingly, and on an interim basis, there is little that the Court could, or should, draw adversely against either parent. Rather, the Court may assume that, leaving aside periodic disturbances in separated parenting relationships, the responsibilities of parenthood have generally been satisfactorily addressed by both parties in accordance with the earlier orders.
155.There are no issues of family violence to address.
156.I have already indicated and confirm again that (a) the facts and circumstances of this matter in relation to Mr Schroder’s health, (b) the importance of him having sufficient time to ensure that it is in no way compromised before litigation is resumed (if that be his preferred course), and (c) Mrs Orbach (and [Y]) ought not be required to wait indefinitely to have her application to relocate to [M] to join her Husband, her older daughter ([X]) and to take up a [omitted] position that has been held for her for some time, in my view, bring this matter within Boland J’s ‘exceptional circumstances’ category and warrant the relocation matter to be determined at an interim hearing.
157.As confirmed by her Honour in Morgan v Miles, at [88], the determination of such matters should usually be reserved for a final hearing – except in cases of emergency. The facts and circumstances here have conspired (importantly - not by the effort or actions of any of the parties) to require the matter to be resolved at an interim hearing. Lives must move on;[52] lives of parents and children should not be placed “on long-term hold”; and the lives of those with ill-health should be entitled to take the appropriate time to recover properly before resuming any litigious battle.
[52] To repeat: freedom of movement is linked with the object of family law legislation to facilitate parties to a broken relationship to start a new life for themselves, including the possibility of forming a new relationship “free from unnecessary interference from a former spouse or partner or from a court.” See AMS v AIF, Kirby J at [145], and AMS v AIF, Gleeson CJ, McHugh & Gummow JJ at [40] – [45]; Gaudron J at [96]; U v U, Gummow & Callinan JJ at [89]). See, too, the discussion by Hayne J in AMS, at [217] – [219], where his Honour noted (at [218] emphasis added): “To translate the question into this form - has the mother shown a good, or good enough, reason for wanting to move - focuses attention upon the reasons and motives of the mother. But that is not the proper focus of inquiry. The proper focus is which is better for the child …” His Honour’s comments have recently been cited by the Full Court (Bryant CJ, Finn & Strickland JJ) in Muldoon & Carlyle (2012) FLC ¶93-513 at [91]. Hayne J also said in AMS, at [219] (emphasis in original): “… to focus, as the primary judge did in this case, on the reasons for the mother wishing to move, may have wrongly reduced the inquiry to two competing possibilities (of the mother having custody in Darwin or in Perth) but, more importantly, it turned it into an inquiry about whether the mother should be permitted to move. By turning it into an inquiry about whether she should be permitted to move, attention was distracted (wrongly) from what would promote the welfare of the child.”
158.Further, having regard to the Full Court [majority] decision Taylor v Barker, the facts and circumstances are such that the well-being of the Mother and its impact on her parenting of [Y] ‘may reasonably be inferred from the evidence.’ This decision, most recently cited by the Full Court in Malcolm & Monroe, in my view, adds even greater weight to the importance of the Court’s decision (a) to deal with the application to relocate on an interim basis, and (b) to grant it as being in [Y]’s best interests.
159.In my view, the orders to be made in the Mother’s favour (supported by the ICL and the family consultant) are, in my view, both in [Y]’s best interests, and are the least likely to lead to ongoing litigation, in so far as any trial court is able so to speculate. Further, if [Y]’s views about desiring to move to [M] with her Mother (and to be with her sister and step-Father) should be accepted by the Court as her genuine views, there is equally no doubt about the genuineness of her views about desiring to spend time with her Father during school holidays. The Court should either accept both views as genuinely held, or otherwise reject them. As I have indicated, I accept [Y]’s views as honest, authentic and sincerely held. They should be accorded significant weight.
160.
Accordingly, the Court makes orders generally as sought by
Mrs Orbach. And to ensure that there is sufficient time for Mr Schroder to see and to secure a report from his specialist, the matter will be adjourned to 13th March at 12 noon (with the legal representatives having leave to attend by telephone). If, after seeing his specialist, he needs more time to attend to further tests and the like, I would readily entertain making orders in Chambers to adjourn the matter to allow those important events to occur.
Postscript
161.Since the preparation of the above reasons in draft, an appeal has been lodged, filed on 11th January 2013. The Notice of Appeal, and the Application in an Appeal (which seeks orders to appeal out of time) is supported by an affidavit sworn by the Respondent Father (“the appeal affidavit”). For the sake of completeness, I note the following.
162.As stated at the beginning of these reasons, the Father’s application to vacate trial dates was heard on 23rd November, at which time it was agreed that the Mother’s application to relocate from [W] to the [M] area be dealt with, on an interim basis, by way of written submissions. The last of those submissions was received on 5th December. On 23rd November, I indicated to all present in Court that I would endeavour to deliver reasons by 7th December. As matters transpired (primarily because of the volume of applications and other matters to be dealt with prior to Christmas), it was possible only to pronounce orders on that date.
163.Contrary to what the Father avers in his appeal affidavit (paras.3, 4 & 5), the Court never confirmed that reasons would be delivered in the week commencing 17th December. Rather, on 7th December, the Father’s solicitors were advised that (a) the reasons would not be available before 17th December, and (b) all parties (including the ICL) would be advised by email when the reasons would be published.
164.Further, prior to the pronouncement of orders on 7th December, and contrary to proper practice, the Father’s solicitors sought advice of my Chambers on 7th December as to when the time for appeal commenced. Thus it may at least be inferred that consideration of an appeal was being contemplated even prior to the pronouncement of orders and the delivery of reasons.
I certify that the preceding one hundred & sixty-four (164) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate:
Date: 31 January 2013
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