P and W
[2002] FMCAfam 487
•24 December 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| P & W | [2002] FMCAfam 487 |
| FAMILY LAW – Relocation – best interest considerations – relocation to U.S. not considered beneficial in view of child’s age of development. |
| Applicant: | P |
| Respondent: | W |
| File No: | BRM 4077 of 2002 |
| Delivered on: | 24 December 2002 |
| Delivered at: | Brisbane |
| Hearing dates: | 3 & 4 December 2002 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Westbrook |
| Solicitors for the Applicant: | Gallagher Jones |
| Counsel for the Respondent: | Mr Burridge |
| Solicitors for the Respondent: | Gadens Gold Coast |
ORDERS
IT IS ORDERED:
That A born 6 November 1996 (“the child”) is not permitted to
re-locate to the United States of America with the MOTHER.
IT IS FURTHER ORDERED:
That the orders of Registrar Dittman of the Family Court of Australia made on 26 March 2002 be discharged.
That the child resides with the MOTHER.
That the MOTHER and FATHER have joint responsibility for making decisions about the long-term care, welfare and development of the child and each party have sole responsibility for making decisions about the day to day care, welfare and development of the child whilst the child is in their care.
That the FATHER have contact with the child, unless otherwise agreed, from 9.00am 3 January 2003 until 12.00 noon 24 January 2003.
That the FATHER have contact with the child at all times as may be agreed but at least as follows:
(a)From after school Thursday to midday Saturday each week;
(b)For one half of all school holidays;
(c)For such times as the parties may agree on the child’s birthday and on the birthdays of the FATHER and his family;
(d)Liberal telephone contact.
That the MOTHER is permitted to remove the child from Australia on holidays during each school holiday period for extended periods provided that the child is with the FATHER for one half of the gazetted school holiday period.
That while the child is in the United States of America the MOTHER ensure that the child contact the FATHER by telephone each Friday between the hours of 10.00am and 11.00am (Brisbane time).
That, not less than 21 days prior to her intended date of departure, the MOTHER produce to the FATHER the following:
(a)A copy of the return airline tickets; and
(b)Proposed itinerary.
That the MOTHER inform the FATHER forthwith upon the child’s safe arrival at her destination in the United States of America.
That the parties advise each other of any medical emergency, hospitalisation or accident involving the child as soon as practicable.
IT IS ORDERED BY CONSENT:
That the child’s passport be held in safe-keeping by a bank or similar institution, to be released only upon the written authority of the MOTHER and FATHER and that after the passport has been used to complete the child’s permitted travel under this order, or as agreed between the parties, the passport shall be returned to safe-keeping within 7 days of the child’s return to Australia.
IT IS NOTED:
Pursuant to section 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A to these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRM 4077 of 2002
| P |
Applicant
And
| W |
Respondent
REASONS FOR JUDGMENT
Introduction
This case involves a parenting dispute about A, a child of six. His mother, P, wishes to take him to the United States to live with her and her present husband J in Walkee Ohio.
The mother was previously in a relationship for about four years with A's father, W. The couple finally separated in February 1998 when A was 15 months old.
Since separation both parents have lived permanently on the Gold Coast. The father has married a US citizen K in October 2001. They welcomed the birth of their daughter O in February this year. O has Downs Syndrome.
The mother married J in March of this year after a relationship initially commenced by the Internet. Her marriage took place some months after she had informed the father of her plans to marry and relocate.
The Mother's proposal
The mother wishes to relocate in January 2003 before the new school term commences after the brief winter holiday in the United States. She proposes that the father have contact:
a)In each year for the whole of the summer school holidays less three weeks, (a total of approximately nine weeks) between approximately 28 May and 21 August.
b)A further two weeks in each year in Queensland Christmas holidays in 2003 and alternate years and at a time agreed in the even years.
c)Liberal contact by telephone e-mail or web-cam.
d)Such other times as agreed including if the father is in the United States.
If the mother is not permitted to relocate with A she says she will remain in Australia and the current regime of contact shall effectively continue.
The Father's proposal
The father's primary proposal is that A reside in the Gold Coast area with the mother and that he have contact as currently occurs. His alternate proposal, namely that if the mother relocate without A then the child would reside with him, does not require consideration because of the mother's clear indication not to relocate without A.
The history of contact
It is of great credit to the parties, that neither can be said to have advanced a negative case against the other. The way they have managed the facilitation of contact since separation nearly five years ago without the need for any Court orders speaks volumes for their capacity to place the interests of A first.
As a result, the current form of shared care provides that A spends from 12 noon Saturday to after school Thursday with her and effectively Thursday night to 12 noon Saturday with the father.
Extensive and fair sharing of holidays occur and it is obvious that some flexibility has been exercised when personal needs of the parents arise, perhaps most clearly demonstrated by the father's care of A for some two months in early 2001 when the mother supported her ailing mother through an ultimately terminal illness.
Re-partnering of the parents has not it seems been the catalyst for increase in tensions and conflict – the mother's stated desire to relocate with A has brought the parties to an unresolvable conflict. It is also fair to note that apart from the father's contact shared in the household by K and now baby O, the father has a close and supported extended family who live on the Gold Coast. They have regular and enriching contact with A including, it seems, a traditional family dinner each Friday.
Principles
In these ex tempore reasons I do not propose to set out fully the law. It is well known by the expert counsel who appeared before me and who addressed me on it. I should indicate that neither the counsel could have said anything further to advance the position of their client's case then they did.
Clearly I am taking into consideration the objects of the Family Law Act 1975 set out in s.60(B); the requirements for trial adjudicators to identify competing proposals and to make an assessment of those competing proposals as set out by the Full Court in Re: A v A Relocation approach; and the observations made by the High Court in such decisions such as AIS v AIF and more recently U v U.
In particular I restate the view that the primary consideration is the best interests of the child, although as the High Court has said that is not the only consideration.
In determining the best interests of the child the Court must consider the factors under s.68F(2) of the Act.
Factual issues
Because the parties have essentially conducted positive cases, the areas of factual dispute are somewhat narrower than is often the case. I do identify the following matters in no particular order of priority.
i)The certainty of the mother's proposals including schooling;
ii)The stability of the mother's relationship with J;
iii)The facilitation of contact;
iv)The mother's reasons for relocating;
v)The mother's contact proposals; and
vi)The deterioration of the relationship between the father and the child.
The certainty of the Mother's proposals
The mother has spent little time in the United States save for two holidays with A permitted by orders of the Court. During these trips in June (three weeks) and in September/October (three weeks) the mother familiarised herself with the area where her husband lives.
J describes the Walkee area as a western suburb of the DeMoise metropolitan area and his home in the Napa Valley is in a semi-rural environment with expensive executive housing and woods where native animals abound.
I had no concerns about accepting J's description of his home as a suitable environment for an active young boy like A. The mother says she has been offered employment as a part of the marketing staff in her husband's business, however, I accept that if that employment does not arise the husband will support her.
To the extent that it was attempted during cross-examination to raise real concerns about this financial security I was not convinced. I had the advantage of seeing J give evidence and I assess him as genuine in his intentions of supporting his wife and A.
The mother has relied upon her husband to identify and recommend appropriate schooling. She is confident in doing so and I do not assess that confidence is misplaced. Having said that, and bearing in mind that A has not yet commenced formal schooling even in Australia, there has not been extensive investigations made of the curriculum or schooling opportunities save for the discussions with the principal of Brookvale School who the mother says was positive about being able to effectively integrate Angus into the American education system.
It is a pity the mother did not share more of her investigations with the father earlier than she did although the father himself did access some information through the net and obviously has K's personal experience to also rely upon.
The mother approaches the proposal to relocate with few concerns about the adjustments socially, culturally or emotionally that will need to be made. I sense to some degree she looks at the proposal positively and minimises some of the obvious adjustments that will need to be made.
Stability of the Mother's relationship with J
In the material filed the husband used descriptions of J such as “total stranger” and suggested that the mother's marriage was designed both to improve her chances in this case as well as being “motivated by the alleged wealth of J”. In some way I can understand his strong negative reactions to J, a person he has not met. It is to his credit he essentially retracted these views under cross-examination.
J is a man of some professional stature with the American engineering profession and has financial security. More importantly, I assess from his evidence and that of the mother that they have a commitment to each other of an enduring nature. The fact that they met by the Internet does not diminish my view, any more than I accept the stability of the father's new relationship with K.
More importantly, even when confronted with the possibility of the mother remaining in Australia, if not permitted to relocate with A, J indicated he would continue to support his wife whilst realistically acknowledging it would create challenges to their ongoing relationship.
Facilitation of contact
The history of the relationship post-separation satisfies me that the mother would facilitate any contact regime. She has the support of her husband to offer security in Australia up to $10,000 if required. I do not regard some of the recent conflicts over a trip to New South Wales (with the paternal grandparents) or the recent USA trip by the father as anything more than litigation induced communication problems.
They both have, in my view, contributed to these difficulties in communication. For example, the opportunities for A to travel with her father to the USA leaving the day after the trial had not been more fully discussed between the parties. I will mention some of my views as to why this occurred shortly.
The Mother's reasons for relocating
I am, of course, conscious that the authorities make it clear that the mother does not have to establish that she has a good reason to relocate. However, I consider in this case her reasons for seeking to relocate are relevant from the best interests of the child's perspective and, in particular, the effect upon them if relocation is or is not permitted.
The mother says relocation was the last option. She says she made investigations about J immigrating and working in Australia. I would regard the investigations as far from extensive. I think the answer really is that J, because of his business and family obligations in the United States of America as detailed in his affidavit, really was not keen or able to relocate and that in any event he would not easily reach those professional and personal heights in Australia.
The mother does not, it seems, have the same extensive family network in Australia, her mother having died and she has a brother living in the United States. Her past employment regime was not career orientated, and both emotionally and financially the support she will receive from her husband is a big difference to what she has experienced in recent times. One would be very surprised if she did not see these opportunities as positive and she does.
The father characterises the mother's motives as selfish. He draws a comparison with K's decision to leave the United States. The paternal grandmother is equally as strident saying:
"I can say with certainty that my son would never have chosen K over his son. I cannot comprehend how P could possibly have considered this other man ever taking a child away from his father."
In particular, the father points to the fact that the mother remarried whilst these proceedings were on foot. He describes the current dilemma as of the mother's making.
Whilst there is some truth in that assertion, I do not accept on the evidence the mother's desire to relocate as a selfish act but rather her solution to a desire to fulfil herself personally in a way which she believes does not create long-term damage to A.
The evidence of the mother about how she would react if not permitted to relocate with A was difficult to assess. Certainly the mother gave no impression that she would expect to plunge into a state of despair and depression of such a magnitude that her primary parenting of A would be at risk. I am not sure if the mother has contemplated that scenario fully.
The father says the mother's reactions suggest she will cope. I cannot so readily agree. Whilst clearly the mother is quite resilient, I think it would be natural to assume she would be disappointed and that in time the remarks contained in the material from the father's family could reasonably engender a sense of ill-will between them be likely to have an effect on A.
The mother's financial security would be gone and it is hard to imagine that a new marriage could either prosper or survive over what would be many years of separation and geographic challenges. I think it is more likely than not that the mother's parental capacity would be reduced over time if she was to remain in Australia. That is one of the factors which I need to take into consideration.
The Mother's contact proposals
Bearing in mind the school calendar in the United States the mother's proposal is as much as could be reasonably expected without significantly affecting A's schooling. Other impacts of spending most of the US summer holidays in Australia arise, however, including:
a)It would effectively preclude A from participating in any major activity in the US with family or friends which would normally take place over the long summer break. As A gets older and peer influences increase this is likely, I believe, to cause some issues for A;
b)The father has concerns that A will come to Australia at a time when summer pursuits were unlikely. He enjoys his swimming and living on the Gold Coast whose natural summer activities abound;
c)As the father only has four weeks of holiday a year I must also consider the needs of his wife K and O. The father would in all probability be unable to spend a significant part of the approximate nine weeks in the Australian winter with A. Although not referred to in the evidence it is obviously likely that the father's parents would be available to assist the management of A for that period of time when schools in Australia have returned and K, working part-time, has also responsibility for a child with special needs. This suggests it would not necessarily be a quality experience for A. Certainly it would be quite different from shared cared arrangement and frequency now existing.
I am satisfied the mother would be able and would meet the costs of two trips a year. I also accept the father's evidence that it is likely he will travel to the USA at least once every two years so that K and O can maintain a bond with K's family. They would, I am sure, see A then notwithstanding the travel distances between the West Coast where I understand K's family live and Iowa.
The extra two weeks a year at either Christmas or Easter, unless agreed, is again at the limit of what can be offered by the mother without affecting A's education, which is something both parents do not wish to occur.
It is obvious both parents currently use technology, and in particular web cam, as a substitute for physical contact with family in the United States. I am satisfied A is also familiar with these concepts. It runs a poor second to physical contact but should not be discounted entirely as a form of communication.
Deterioration of relationship between Father and A
This issue is at the centre of the father's concerns. I accept he holds the concerns genuinely. He has compared in his mind the frequency and quality of the shared regime which has operated since 1998 and cannot accept that his relationship would not be irreparably damaged. He speaks quite emotionally of contact being “severed”. His real sense of anticipated loss is exacerbated by his concerns that A will also lose a special developed relationship with his parents and K and the important developing relationship with O.
He points to O, being highly affectionate and already having an established relationship with A. The mother quite fairly, in my view, readily conceded the strength and importance of the father's relationship with A and other members of the household and the extended family.
She is convinced that the proposals for contact would preserve those relationships. She acknowledges A will suffer a loss but says he will, with her support, adjust and develop. She said if she was wrong and A was inconsolably distressed and not coping that she would have to consider returning. I think this is an option she would not easily take but I accept she would if there was no other.
Interestingly when a scenario was put to the father about whether he would contemplate moving to the United States he said it was unlikely for 10 or 15 years. His wife is an American citizen and has family in the United States. In fact at the time of delivery of this judgment they were in the United States visiting that family.
His employment in Australia is secure but his golf background suggests he is probably employable in the United States. He gave as his dominant reasons for not moving the excellent medical support for O with her condition and his own family connections. I found it difficult to reconcile his genuine concerns for his lost relationship with the strength of these expressed reasons.
This case was perhaps a little unusual in that no expert psychological evidence was offered by either party. As a result bearing in mind that neither parent nor A have really experienced the effect of a relocation there is nothing that particularly reinforces or diminishes the concerns or strategies of either parent.
On what basis other than intuition or inference am I able to say with a degree of probability that the father's bond with A will be severed as he fears any more than I should find that the platform of the stable relationship which exists will endure the lack of frequency and distance.
Section 68F(2) factors
I now turn to consider the relevant s.68F(2) factors. In doing so I will refer but not repeat the findings I have made on contested factual issues:
Wishes
A is, in my view, too young and immature to have any grasp of the enormity of the changes contemplated by the relocation to another country. His excitement about puppies and school is both understandable and no useful guide.
Child relationships
I am satisfied that A has a strong relationship with both his mother and father. Although the mother has been the primary carer for A the frequency of contact and the extended periods of care by the father mean he has an acknowledged attachment of great strength with his father. I could not find on the evidence any predominance. Although the father's concession that if the mother remains A should continue to live with her, suggests acknowledgment of her primary care role.
A really has not had a significant opportunity to get to know J but nothing suggests this looms as a problem. I accept the special relationship A has with his grandparents and K. O has, no doubt, a natural curiosity to A and a strong sense of family exhibited by the father would manifest in encouraging a close and loving interaction.
Whilst I am sure A would miss his sister that sense of loss is unlikely to be as great as the established relationships with the family and his extended family. Relocation would give A an opportunity to form new relationships and nothing in the evidence suggests this would a difficulty for A. I am satisfied all his current relationships in Australia, other than with his mother, would be severely disrupted if he was taken now to America. I am not, however, satisfied that that would be “severed” as the father asserts, but it would be severely affected.
The likely effect of change
On the mother's proposal she will be a happier more fulfilled parent with the capacity to ensure A adjusts to the significant changes that lie ahead. I think to some degree she is looking through rose coloured glasses. Even though I am prepared to share the mother's optimism about her new marriage, A will be required to adjust to new cultures, including sports; new school environments; new home environment and a new significant male figure in his life. His mother will be meeting the challenges of a new “live-in” relationship and a new position of employment. A will be asked to cope with these issues without the frequent support and ready available comfort of his father, in particular, and his extended family in Australia other than on the occasions which can be accommodated around his schooling.
He will lose the opportunity to see the developments of his new sister. He will have reduced opportunities to develop peer friendships, cultivated through the long US summer vacation, because of his need to come to Australia for contact with his father.
When he does return for contact, his father is likely to be working for a great deal of the time, as will K. Any peers he now has will be at school for all but about three weeks of his visit to Australia at that time. Maintaining those friendships will be hard for him. He will be likely to have as his continued primary carer his loving and devoted mother. She is likely to be enthused by meeting the challenges of a new relationship and opportunities.
I find however that even with the best of intentions and most earnest efforts which the Mother will make, she would be unable to satisfy the sense of loss A would feel.
The Father's proposal
On the father's proposal everything would stay the same on a week-to-week basis; the two days with the father, the Friday night family dinner, the Gold Coast lifestyle. He would, I assess, have a mother who may well develop some level of frustration with being thwarted from pursuing her legitimate personal desires and needs. I would be surprised even if the mother committed to make the best of the situation that it would not have an effect on her parenting. Her new relationship will be tested. The Mother’s proposal exposes some uncertainties identified by me, which make it difficult to assess the ultimate effect on her capacity to parent – but not her willingness to do so. The Father’s proposal, maintaining the status quo, is proven to not place the parents under such strains – reflecting in the way A has developed to date. On balance, the effects of the change lead me to favour the father's proposal at this time.
Ability to cater for needs
I have formed the view that in a financial sense the mother's proposal will enhance her ability to cater for the needs of A. J is committed to supporting her and I am sure he will. I do not find any significant disparity in their ability to meet A's emotional and intellectual needs although it might be that O's special needs do impact on the financial and other capacities of the father and K. I have already mentioned my concerns about the effect on the Mother’s capacity to parent of her proposal.
Attitudes to parenting
I have no real criticism of either parent. In fact, although they only lived together for about 15 months as parents it seems they exhibit similar parenting styles, values and principles. I do not regard this factor as determinative.
Practical difficulties of contact
Clearly, if the mother does not relocate there are no practical difficulties. The mother's proposal is more problematic because of distance and school schedules, however, the regime of cost impost does not present any insurmountable difficulties, just costs and challenges.
Clearly, telephone calls, web cam, e-mails and the like, while useful, are no substitute for face-to-face contact for a child of this age. I assess this as a factor that mitigates slightly against the mother's proposal.
Conclusion
This is a very finely balanced decision. I am conscious of the mother's right to freedom of movement and I am fully aware of how those rights will be interfered with if relocation is not permitted. In many ways as identified by Hayne J in U v. U, this is a case where the mother is asked to subordinate her reasonable personal desires to those of the father who says he will and cannot move.
Whilst it is clear on the authorities that the paramountcy of the best interests of the child does not exclude other interests, I have formed the view and I am satisfied that relocation of A at this time and at this stage of his development would be detrimental to him and outweighs the other competing rights and issues. In the circumstances, I am not prepared to allow the mother to relocate with the child to the United States.
I propose to make orders in the form set out in the mother's alternate proposal in her case outline which relates to the contact that the father will have and the right of the mother to travel during each holiday to the United States.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
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