P & S
[2005] FMCAfam 198
•29 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| P & S | [2005] FMCAfam 198 |
| FAMILY LAW – Relocation – child aged six currently in shared care arrangement – shared care arrangement in place since June 2002 – mother wishes to relocate child to B from A S – father wishes to maintain shared care arrangement in A S – evaluation of competing proposals – investigation of outcome independent of parties’ proposals – possibility of father relocating to B – possibility of moratorium in respect of relocation – reasonableness of father seeking to restrict mother’s freedom of movement where possibility exists of his relocation – child equally bonded to both parents – best interests – assessment of contact proposals. Family Law Act 1975, ss.60B, 65E, 65F(2) A v A: Relocation Approach (2000) FLC 93-035 |
| Applicant: | C M P |
| Respondent: | B R S |
| File No: | DNM 2413 of 2002 |
| Delivered on: | 29 April 2005 |
| Delivered at: | Darwin |
| Hearing date: | 20 April 2005 |
| Judgment of: | Brown FM |
REPRESENTATION
| The Applicant in person |
| The Respondent in person |
ORDERS
That after the 1 January 2007 the mother C M P be permitted to relocate the residence of the child of the relationship T J S born 19 December 1998 from A S in the N T of Australia to B in the state of Q.
That until 1 January 2007 the said child live with the mother from 5.00pm on Tuesday of each week until 5.00pm on the following Saturday and live with the father from 5.00pm on Saturday of each week until 5.00pm the following Tuesday.
That the parties retain joint responsibility for making all decision concerning the long term care, welfare and development of the said child.
That in the event that the father B R S moves permanently to an address within a 50 kilometre radius of the B General Post Office by 1 April 2007, the said child live with each of his parents on a week about basis during Q school terms and for one half of each Q school holiday.
In the eventuality that the father elects not to move as specified in order (4) hereof the child live with the mother and the father have contact to the child in A S as follows:
(a)For the first half of each Q school holiday in 2007 and each odd ending year thereafter;
(b)For the second half of each Q school holiday in 2008 and each even ending year thereafter;
(c)By telephone at all reasonable times but on no less than two occasions each week;
(d)At any other times and on any other conditions as may be mutually agreed upon by the parties from time to time.
That the father and mother share the cost equally of the air travel for the child to undertake contact as set in order 5 hereof with the father to pay the child’s airfare from B to A S and the mother to pay the child’s return airfare from A S to B at the conclusion of each contact period.
That each of the parties have responsibility for making decisions concerning the day to day care, welfare and development of the said child when he is in his or her respective care.
That the father and mother each keep the other informed of any major illness or accident suffered by the child when in his or her care as soon as is possible after the child is injured or falls ill and keep the other informed of the identity of each treating doctor or like professional attended by the child in the eventuality of accident or illness.
That the parties attend a course of counselling or mediation as directed by the Director of Court Counselling at D to discuss the implementation of these orders and devise strategies to co-parent the said child.
That a copy of these reasons for judgment be provided to Mr R and the Director of Court Counselling at D.
That all outstanding applications are otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ALICE SPRINGS |
DNM 2143 of 2002
| C M P |
Applicant
And
| B R S |
Respondent
REASONS FOR JUDGMENT
Introduction
When parents who know longer live together ask the court to determine where and with whom their child should live, it is the best interests of the child which are paramount and the court must decide which of the competing proposals is most likely to advance the child’s best interests.
B R S and C M P are the parents of T J S born 19 December 1998. They have been unable to agree on the division of parenting responsibility between them and each seeks final parenting orders in his or her favour. Ms P wants to relocate with T to B and proposes that Mr S have contact to him during school holidays and at other times by agreement. Mr S wants T to continue to live in A S for at least the next four years so that he can remain in the shared care of the parties. Failing that, if Ms P does go to live in B, he wants T to live with him.
Relocation cases are very difficult for all concerned, involving as they do competing and irreconcilable claims of right. These claims of right arise when the parents of the child concerned have separated and for legitimate reasons they wish to take different directions as to where they will live in future. On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees fit, both as a parent and as an individual; separate from the other parent concerned. On the other hand, it is the right of a child to maintain a meaningful relationship with both his or her parents, in the now changed circumstances of his or her parents’ separation.
There is no satisfactory outcome in this case. Both Mr S and Ms P are capable and devoted parents. They both wish to play as large a role as possible in T’s life, as he grow and develops. At the same time, they both wish to pursue career and personal opportunities in the location of their choice. In the mother’s case, in B, from where her fiancée comes and where she believes there are great opportunities for herself and T. In the father’s case, in A S, where he has lived for most of his life and where he has established a home and a business and where he has many personal ties.
If I make the orders Ms P wishes, T will lose a great deal of contact with his father, because he will living far away from him; and Mr S will be sad and upset at the separation. In addition, contact will necessarily be limited to school holidays and Mr S will be deprived of the opportunity to interact with T on a day to day basis. He will not be able to be involved with T as he goes to school each day. He will be unable to take him to tennis or motor cross on each weekend.
If I a make the order Mr S wishes, T will continue to see a lot of his father, but will continue living with Ms P, who will be prevented from following the life of her own choosing in B; and Ms P will be sad and upset about the situation. She will not be able to do what she wants to do. In either case, the consequences of the problem and its resolution may well be a source of continuing bitterness between the parties, one of whom will inevitably feel harshly treated.
I say this at the outset, because I think it right to acknowledge and express my regret for the inevitable distress the resolution of this problem will bring, whatever the outcome. I hope that the parents will each cope with the situation as well as possible, so that the inevitable difficulties for T will be minimised and his loving relationship with each of his parents will be maintained as well as the circumstances permit.
Background
Ms P was born in A S on 19 September 1982. She has lived nearly all her life in A S, apart from periods of time in T C and P L, when she was pregnant with T. She currently works as rental services officer, with B C R in A S.
Mr S was born in P L on 22 February 1976. He came to live in A S, when he was nine and has lived here ever since. He currently works in his own business, as a licensed agent.
Ms P fell pregnant with T, when she was in year 10 at school. It was a traumatic time for all concerned. Ms P had to leave school. When T was six months old, she joined the workforce. Later she managed to complete her secondary education. When T was a baby, the parties tried to make their relationship work, for his sake. Their relationship was a tempestuous one, marked by many separations. The parties finally separation in late 2000 or early 2001. The parties separated on bad terms and have remained on bad terms ever since. They are unable to communicate directly with one another.
It is Mr S’s perception that Ms P was resistant to him having a proper parental relationship with T. The relationship between the parties continues to be extremely difficult. Domestic violence orders and trespass notices have been issued in the past.
Mr S first initiated proceedings in the Federal Magistrates Court on 25 February 2002. At that stage, he wanted T to live with him and to have contact with his mother. He was very critical of Ms P’ lifestyle and what he saw as her inability to care for T properly.
Ms P responded to this application on 5 April 2002. She wanted T to live with her and to have regular contact with Mr S. She also was very critical of the father and accused him of using drugs. She said that the father had not accepted the end of the relationship between the parties.
However, not withstanding the obvious tensions between the parties, they were able to agree on final orders for T’s care on 4 June 2002. The parties agreed that T should live with Ms P and have contact with Mr S from 5.00pm each Wednesday until 5.00pm the following Saturday. This means that T lives with his father for three evenings each week. This arrangement has continued until the present time, although the days have been changed from 5.00pm on Saturday until 5.00pm the following Tuesday. Although it is not expressed as such, the parties have a shared care arrangement for T. He spends four nights each week with his mother and three nights with his father.
The parties cannot remember the last time they spoke to one another, politely or normally. They each acknowledge that if they do converse with one another, it will inevitably end up in conflict. Accordingly, they exchange a bare minimum of information between them, via telephone text messages or in writing. T walks from one or other of their cars into the other’s home at contact handovers. This is to avoid the parties coming into direct contact with one another. They both attend T’s school sports day or school concert but stand at opposite sides of the sports ground or school hall and T moves between them.
In early 2004, Ms P met M S. Mr S was on a working holiday around Australia, when he arrived in A S. He had taken a year's leave without pay from his job with C-C A in B. Ms P and Mr S fell in love and began to live together. Mr S extended the period of his leave without pay and has lived in A S ever since. He and Ms P plan to marry, on the G C, in September of 2006.
In September of 2004, Ms P and T went for a holiday of ten days to B. They were impressed with the city. Ms P and Mr S want to live together, with T, in Mt G, the suburb of B in which Mr S used to live. Mr S wants to return to his job in B.
After 22 years of living in A S, Ms P finds the town small and confining. She wants a change. She believes that there are many more opportunities for herself and T in B, a city of several million. The prospect of T living away from A S fills Mr S with dismay. He too has formed another relationship, with L S. Ms S has lived in A S all her life and is well settled here. Mr S owns a house in A S, which is his pride and joy. He wants to continue to run his licensed agent business.
Very soon after she had come back from B, Ms P commenced these proceedings in the Federal Magistrates Court. This brought the uneasy truce between the parties to an end. The level of tensions between them, already uncomfortably high, has increased. T has to cope with this tension and move between the two conflicted households of his parents each week.
However, there is nothing to indicate that T is anything other than a happy and well adjusted child, who is progressing well at school. He is obviously much loved by both Mr S and Ms P, who both want the best outcome for him from these proceedings.
Mr S has given thought to living outside of A S. If he had to live somewhere other than A S, B would be his first choice. However, it is his position that he is not able to go to B yet, primarily because of his commitments to his business and Ms S. Also he does not want to sell his house and face the prospect of a reduced standard of living in B.
In order to assist the court and the parties with this matter, a family report was prepared by Mr R, an experience psychologist and court counsellor. Mr R assessed T as thriving, in spite of the parties’ difficulties with parenting him co-operatively. Because of the possibility of the father moving to Be, Mr R made the following recommendations:
“The mother’s present application for relocation with T to B should be adjourned further for skilled mediation as to the actual time frame that would be acceptable to both parties and, above all else for the maintenance of T’s observable thriving condition, before both parties relocate to B.
Should this mediation fail, then T should remain living in A S, preferably in both parties presence for the foreseeable future under the present arrangement and subject to consideration of week about residence.”
Because of Mr R’ recommendation, the hearing of this matter, which had been fixed for hearing in February of 2005 was adjourned so that the parties could have further mediation. Unfortunately the mediation has failed and it is Ms P wish to move with T to B at the end of 2006. Mr S would not consider such a move until at least the end of 2009, when T will be approaching the end of primary school. This is the background to this matter.
The evidence
Findings are made on the balance of probabilities and my observation of the demeanour of witnesses. In what follows, statement of fact constitute finding of fact.
Both Ms P and Mr S represented themselves in these proceedings. Their affidavit material was brief. Both made serious personal allegations against the other. Ms P asserted that there was a history of mental illness in Mr S’s family; that he himself abused marijuana and amphetamines; and was emotionally dependent on T. She was also critical of Mr S for allowing T to suffer a number of injuries, whilst in his care, in January and December of 2002 and June of 2004. For his part, Mr S asserted that Ms P had a gambling problem and could not manage money; was irresponsible so far as drinking and driving was concerned; and had worked in the sex industry. Given the obvious acrimony between the parties and their lack of legal representation, I was very concerned at the prospect of the parties cross-examining each other.
Ms P and Mr S attended court with their current partners, Mr S and Ms S respectively, for emotional support. However, neither Mr S nor Ms P had obtained an affidavit from either Ms S or Mr S. Both seemed to me be important witnesses and I was concerned at the absence of evidence from them.
Ms P did not want to call any other evidence besides herself. She told me that she had no questions to ask of Mr R. Mr S relied on affidavits from D P, Ms P’ brother; Ms P W, Ms P’ mother; and Ms L G, a fellow employee of Ms P, at B C R. None of these affidavits was particularly extensive. Ms P indicated that she did not wish to cross-examine any of the respective deponents of the affidavits. Mr S indicated that he did not wish to ask Mr R any questions either.
Given the lack of legal representation and their absence of extensive affidavit material, I decided that it was appropriate that the proceedings, before me, be conducted with as little formality as possible. With the agreement of each of the parties, I had them both sworn in at the bar table at he commencement of the hearing. I then indicated that each of them could make a statement at the beginning of their respective cases as to why his or her respective proposal was likely to be in T’s best interests. Then I took a leading role in questioning each of the parties about their respective cases. Then both Mr S and Ms P were given the opportunity to cross examine the other. I also decided to call both Mr S and Ms S as witnesses in the case, with the agreement of both parties. I concede that this was a somewhat unusual approach, but I believe in keeping with the principles outlined in section 42 of the Federal Magistrates Act, which enjoin this court to proceed without undue formality.
It was obvious to me that both Ms P and Mr S deeply love T and have each built their respective lives around him and his care. To their mutual credit, both parties acknowledged that the other was a good parent, who had much to offer T. Each acknowledged that T loved the other very much indeed.
The parties behaved very well towards each other during the hearing. However, there was no disguising the antipathy they each hold for the other. For example, when Mr S was describing his home, about which he is clearly very proud and the acquisition of which he views as a considerable achievement, Ms P was unable to restrain herself and loudly exclaimed “but it’s a dump”.
Mr S conceded that he was thin-skinned so far as criticism of himself is concerned. At one stage of the proceedings, he launched a tirade against Ms P, in which he said, amongst other things, that he was “sick and tired” of being “continually bagged” by Ms P and he could no longer put up with her “crap”.
Sadly, both parties seem unaware of the potential for the deep rooted conflict between them to have severely detrimental consequences for T, as he grows up. In passing, during the case, I remarked that it would be sad if T had to have two twenty first birthday parties, because his parents were unwilling to attend the same celebration. Mr S indicated that he himself had had two twenty firsts and it had been “good”. It seems that he is not unduly concerned about the poisonous relationships between the parties and its consequences for T.
I asked both of the parties if they thought there would be consequences for their future parenting relationship, if, as seems inevitable, one or other of them was unsuccessful in these proceedings. Sadly, both indicated their belief that their relationship was “so bad, it couldn’t get any worse”. Neither could suggest any way in which they might communicate better in future and neither seemed to have any great insight into the possible psychological consequences, for T, of this schism in his emotional life.
Both Ms P and Mr S had fractured emotional lives as children. Ms P’ parents separated and she lived with her father, who later committed suicide. She is now estranged from her mother and younger brother D, who in fact lives with Mr S. She has little contact with her two half brothers, O and G, aged 14 and 12. Mr S’s parents also separated when he was young. In Mr S’s words, his mother “walked out” on the family. As a result, he was brought up by his father and had little contact with his mother, from whom he is now estranged.
Neither party conceded any connection between their own past difficulties and their current conflicted state. I suspect that both blame the other for their current disastrous relationship. Neither is open to the suggestion of professional help to improve their parenting relationship.
From Mr S’s point of view, one of the main advantages of the current situation, so far as T is concerned is that he has “two of everything – two birthdays; two Christmases’; two bedrooms; two sets of toys; two networks of family and friends”. Mr S is very happy living in A S, which he described as “a land of opportunity”. He also indicated that he did not know how he would personally cope, if T was not living in A S. Mr S presented as an intense and emotional person. He was however well aware of the dilemma presented by this case and was not unsympathetic to Ms P’ wish to move away from A S.
On the other hand, Ms P described A S as a town that was “sliding downhill”. She indicated that previously she had liked living in A S and though it a pretty town. Now she did not like it, as it was full of “vagrants”. She did not want T to grow up in such a town. She was also critical of political decision makers in A S who, by way of example, had determined that planing permission should be granted to build a “super sex store” in the town when what was really required was a Target store or some other major retailer. Ms P presented as a confident and articulate person. She acknowledged that she was not a shy person. In my assessment, she is likely to be somewhat strong willed and perhaps impulsive. She appeared to have little empathy for Mr S’s feelings about losing his day-to-day relationship with T.
a) The mother’s proposals and evidence
Although she has lived most of her life in A S, Ms P is no longer happy in the town. It is greatly to her credit that, although her secondary education was interrupted by T’s birth, she was able to complete her Higher School Certificate. She went back to school when T was 12 months old. She has worked at a number of responsible positions, including being a medical receptionist; a legal receptionist; and a conveyancing clerk. She has been at B for the past 14 months, work which she enjoys. She is currently earning approximately $32,000.00 per annum. It is open to her to transfer to B within the B organisation.
Ms P visited B for 10 days in August of 2004. She found the city beautiful and clean, in marked contrast to her impressions of A S. She herself has never previously visited B and has no close relatives in the city. She does however have a good relationship with Mr S’s father and step-mother, Mr M and Mrs L S, who live in B I. Ms P sees the opportunity for T to develop a closer relationship with his paternal grandparents as an advantage of her proposal.
However, from her point of view, the greatest advantage of a move to B for T, is that it is likely to provide him with greater opportunities in future, particularly educational and sporting opportunities. She would like T to engage in surf lifesaving and learn the drums. Obviously, whilst living in A S, regular visits to the beach are out of the question and so far as drum lessons are concerned, T is on a waiting list in A S. She would like to take herself and T to the theatre or the ballet. In Ms P’ estimation, opportunities for activities in B are “endless”, whereas in A S, they are extremely limited. Essentially, she feels A S is a dump and she is sick of it. In her affidavit, she deposed as follows: “I do not wish to be stuck in a town where I am no longer happy for another 10 or 12 years until the child is old enough to make his own decision.”[1]
[1] See mother’s affidavit filed the 6 October 2004 at paragraph 4(iii)
During 2004, Ms P was studying law, via correspondence, from D U. She was in first year. She has deferred her studies in 2005. She found it difficult studying externally. In future, she would like to attend university, either part-time or full-time and complete a tertiary qualification. Clearly, she would be more able to attend university in B than in A S, where there is only a limited tertiary syllabus available.
Mr S was an important witness in Ms P case. I found him to be a likeable and impressive witness. There is not doubting the sincerity and depth of his attachment both to Ms P and T and that his feelings are reciprocated. He seems to have added a great deal of depth and stability to Ms P’ life. In particular, Mr S is prepared to make his own ambitions subservient to the needs of Ms P and T.
Mr S was born in B, V on 17 January 1978. He has never been married previously and has no children. He moved to H B in Q, with his mother and sister, when he was 18 years of age. After leaving school, he worked in a hardware shop in H B for about a year. He then joined C-C A around the end of 1998. He regards C-C as a good employer and the firm apparently holds Mr S in high regard. He has been involved in sales and distribution at C C. In order to develop his expertise with the firm, he has worked throughout Q for it. He was based in H B for approximately one year; L for approximately one year; R for approximately one year; and more recently in B for two or three years. When he was based in B, he lived in Mt G. In 2004 he took a year off work, without pay, to travel around Australia with friends. He arrived in A S about 15 or 16 months ago and met Ms P soon after he had arrived. He got a job labouring at the J S D F at P G. More recently, he has worked for M T, where he is the manager of incoming freight.
Mr S is a gregarious and pleasant person. He enjoys meeting people and living in small towns. He is a keen Australian Rules footballer and has been a member of several football clubs. Although he likes living in small towns, he does not particularly like A S but deposed that he could “cope in the town”.
Mr S indicated that he missed B, where he had friends and his uncle and cousins lived. His closest relatives, namely his mother and sister, have recently moved to T. C-C have recently extended Mr S’s leave without pay. He is welcome back at the company, if he is able to return by the start of 2006. At M T, he is earning $40.000.00 per annum. When he left C-C, he was earning $55,000.00 per annum and had the use of a company car, together with potential bonuses related to his sales performance.
One of the major advantages of Ms P’ proposal is that she and Mr S are likely to be better off in financially in B than A S. In particular, they would like to buy a family home for themselves and T. Their evidence, which I accept, is that housing is considerably cheaper in Mt G than in A S. Mr S is enthusiastic about Mt G, which he describes as being well resourced with schools and other facilities. He and Ms P plan to have children after they are married.
Mr S described T as being “extremely bright” and “lots of fun”. When someone mistakenly assumed that Mr S was T’s father, T corrected the person and apparently indicated that Mr S was his "best mate”. I accept that Mr S and T have a close and appropriate relationship.
To his credit, Mr S can see nothing but good in Mr S. He believes that Mr S is a positive influence on both Ms P and T. However, there is nothing in the evidence to indicate that Mr S wishes to supplant Mr S’s role as T’s father.
Because of the schism between Ms P and Mr S, Mr S has never actually spoken to Mr S. He indicated that he would like to get to know Mr S and for them to have a workable relationship with one another. In my view, this is an extremely positive development and perhaps a practical means by which the parties may improve their relationship. Mr S was sincere when he indicated that T had been well brought up by both his parents and was a credit to them both. Mr S and T play together. In particular, they often kick a football around. Mr S is the coach of the O K group T attends on Saturday mornings. Ms P attends to the paperwork for the group.
Mr S seems to be an employable person in his chosen fields of work. Recently, he was offered a two year contract in A S with C-C. However, he did not take the position because he was concerned about the uncertainty created by these proceedings and did not want to let the firm down, if it was ultimately determined that Ms P and T could live in B. Clearly, B is his preferred place of abode, however he would not consider moving there without Ms P and T.
Mr S is very critical of the mother’s driving record. In January of 2003, she was convicted of driving with a blood alcohol level in excess of .08. Her reading was .093. She was fined and disqualified from driving for six months. In June of 2003, she was charged with driving whilst disqualified. Her evidence was that she impetuously decided to drive into A S. She was fined $1,500.00. More recently, towards the end of 2003, she was involved in a motor vehicle accident, when the car she was driving left the road and struck a fence. She had been drinking prior to the accident and was found to have a blood alcohol level of .12. She broke her leg in the accident. Once again she was fined and further disqualified from driving.
These incidents do the mother no credit. However, in my view, they have no strong relevance to these proceedings. T was with Mr S at the time of each offence. I accept the mother is a social drinker. Certainly, there is no evidence to indicate clearly alcohol addiction or that the use of alcohol has impinged upon Ms P’ abilities to properly parent T. Ms P has since completed a driver education course, in order to regain her driver’s licence. Ms P conceded that she had behaved irresponsibly in the past. It confirms my impression of her that she has, at times, a tendency to act impulsively and without thinking of the consequences.
Through his work, Mr S comes into contact with police and officials at the A S’ court house. He believed that the mother had been charged with some offences relating to a false report to police. He also believed that Ms P had been involved in a violent incident at her home last year. Ms P confirmed that she had been assaulted by a relative of a former boyfriend and this person had been charged and dealt with by the courts. I do not consider that this is an important issue at all. However, it confirms my impression that Mr S is swift to criticise Ms P and to draw adverse inferences against her based on speculation and innuendo. I include in this category Mr S’s assertion that the mother has been a sex worked in the past. This is a baseless allegation. There is also no evidence to support Mr S’s allegation that Ms P has a gambling problem. It is some what hypercritical for the father to accuse the mother of constantly “bagging” him when he is prepared to do the same thing.
Ms P is not without fault in this regard. Much of her case revolved around a number of incidents, which occurred in 2002 and 2004, when T was accidentally injured, whilst in his father’s care. These matters will be more closely considered in the father’s evidence.
The parties find it practically impossible to agree about anything to do with T’s care. Sadly, it seems that any issue to do with T, has the potential to become an area for conflict between them. For example, the parties were unable to agree as to which primary school T should attend. It was the mother’s preference that T be enrolled at a catholic primary school. Mr S’s preference was for T to attend B P S, which is near his home in A S. Ms P second preference was for T to attend L P S, which is near her home. Ultimately, it was agreed that T should attend L P S, where he is in year one and is doing well. I have read his most recent report, which confirms his satisfactory progress.
Ms P confirmed that Mr S was a “good dad”, in her estimation and T loves him very much. She however believes that she and Mr S have different styles of parenting. Although she describes herself as being not overly strict, she is in her estimation a firm parent, who does not spoil T. By implication, it seems to be her position that Mr S is an unduly indulgent parent, who spoils T, particularly in regards to toys and his motor cycle. Disputes about financial matters are one of the thicker threads in the cord of the dispute between the parties. Ms P believes that she assumes a greater responsibly for T’s financial support than Mr S does. She pays T’s school fees, which are a modest amount of $65.00 per annum and provides more of T’s shoes and clothing. However, she concedes that Mr S supports T when he is at his home and also has to provide him with school uniforms for the two days T attends school, whilst he is in his father’s care.
It seems that the parties have each sought reviews of the applicable child support assessments, from time to time. I have not been provided with those determinations. The most recent assessment of child support, dated 7 October 2004, indicates that Mr S is currently assessed as having to pay Ms P the sum of $46.33 per month, based on a child support income, for Mr S, of $20,000 per annum. In the past, Mr S was assessed to pay $123.33 per month.
Ms P (and indeed conversely Mr S in his evidence) noted that T was extremely reluctant to discuss what occurred in his father’s household when with her. She said that at times she had difficulty settling T down after he had been with his dad. However, she indicated that T looks forward to seeing his father and he was able to do different things at his house than at hers, in particular motor bike riding.
Ms P agreed that T would find the transition to B difficult and would be very upset initially. She agreed that T would miss his dad. However, she believed that she would be able to provide sufficient emotional support for T to guide him through this difficult period and reassure him that he would be seeing his dad in the future.
She believed that T would adjust to the change in about three months. She also said that T confided in her and she believed that the closeness of their relationship with one another would get T through these initial difficulties. In addition, she herself would have no difficulty in T ringing his father, if he was feeling lonely. She said she herself, in spite of her antipathy for Mr S, would be supportive of T’s relationship with his father. In particular, she pointed to the fact that T had been given a camera and had placed photographs of Mr S in his bedroom. In her affidavit, Ms P deposed as follows:
“I feel that the child is now old enough to comprehend that if his parents live in different states and he speaks to his father on the phone whenever he likes, and that every school holidays he will be flying back to A S to spend with his father. I would also be willing incur costs of travel expenses for the child.”[2]
[2] See mother’s affidavit filed the 6 October 2004 at paragraph 7
Ms P believes that T has now reached an age when it is convenient for him to move. She believes that a move at some later stage would be disruptive to his education. She also believes that T’s relationship with Mr S is now fully formed and T will not forget his father in between periods of contact, as might perhaps have happened if he had moved when he was younger. As has already been indicated, she has indicated a willingness to make T available for contact in A S, in each school holiday period, at her expense. At this stage, she does not believe that T would be able to travel between B and A S alone. She proposes that she would accompany him on each occasion.
Ms P’ application does not flesh out, in any great detail, how contact arrangements would actually occur. In her evidence, Ms P indicated willingness for Mr S to have contact for all of the three shorter Q school holidays and for four or five weeks during the end of year holiday. These are generous proposals and I fear that they have not been fully thought through.
Ms P evidence was that the cost of a return airfare between A S and B was approximately $450.00. If there are four such trips each year, this would result in costs for contact travel of at least $1,800.00 per annum. As already indicated, Ms P believes that it would be necessary for her to accompany T, resulting in a further cost of $1,800.00. Ms P did not seem to have considered how her proposal to accompany T would impinge upon her work commitments. In particular, she was unable to stay whether she would stay in A S during each contact visit or would return to B. If the former, it may be necessary for her to pay accommodation expenses. If the latter, obviously there would be further travel expenses involved.
The parties also have extreme difficulty in communicating about matters to deal with T. I am not as confident as Ms P that the parties would be able to manage the necessary arrangements for T to travel between B and A S and return. I also have considerable doubts that Ms P would be able to keep to her commitment to pay for all the travel involved. Ms P’ proposal for contact left me with a feeling of disquiet. This impression confirmed my assessment that Ms P acts impulsively, from time to time, and does not think through the consequences of her actions.
Ms P has never lived in Mt G. She was however most impressed with the suburb, when she visited it in August 2004. She has obtained prospectuses and pamphlets regarding a number of organisations in Mt G, namely Mt G S S; Mt G S C; YMCA After-School Care in Mt G; Mt G E S S; and U Mt G S S. I have no reason to believe anything other than that these are excellent schools and organisations, which cater appropriately for the needs of children who live in the Mt G area. I accept that Mt G is a well serviced suburb of one of Australia’s largest cities. However, the mere provision of these documents does not positively establish that T’s needs will be better catered for in B than in A S.
Ms P believes that it is unreasonable and unfair of Mr S to keep her in A S indefinitely against her will. She believes that it is open to him to move to B, at some stage in the not so distant future. She indicated that she would be upset and depressed, if she was not able to leave A S with T, but would not consider leaving without him. She also conceded that she would put on a brave face, if her wishes were frustrated and would continue to be the best parent she could be for T, in A S. Certainly, there is no evidence to indicate that Ms P is at risk of suffering any significant psychological injury, such as a depressive reaction, if she is compelled to remain living in A S. In my assessment, she is an emotionally robust person, particularly since she has gained the support of Mr S.
Ms P asserts that a number of her close friends have recently left A S. I accept this is so. However, I do not think that Ms P labours under any particular disability in regards to the making of friends. She is not excessively shy. To the contrary, as I have already indicated, I believe her to be an outgoing and confident person.
b) The father’s proposals and evidence
Mr S presented as a dogged individual, who has had to fight Ms P every step of the way to maintain his relationship with T. He remains resentful and bitterly disposed towards her. Whatever the outcome of these proceedings, these emotions are likely to remain his predominant ones, so far as Ms P is concerned. My impression is that Mr S is not really interested in building any form of rapport with Ms P, whom he regards as selfish and essentially unreliable. He believes that he is a more consistent parent than she is.
However, he acknowledged that Ms P is a good mother, who loves T and provides appropriate care for him. It is also to his credit that he sees Mr S as an important person in T’s life and did not seem to be threatened by Mr S and his relationship with T, in any way at all. Mr S, although highly suspicious of Ms P, did not attempt to suggest that her wish to move to B was maliciously motivated or dishonest in any way. He acknowledged the dilemma facing the court in balancing Ms P’ entitlement to freedom of movement with T’s interests. However, it is clearly his position that T’s interests will best be served if he remains living in A S for the foreseeable future and the current arrangements for his care continue.
In his affidavit, Mr S indicated his principle reasons for believing this to be so as follows:
“I do not wish my son to leave A S as I love the contact with my son.
I do not believe K would fulfil her promise to pay airfares.
T would become extremely stressed if the contact did not occur.
I am confident that T would become extremely stressed if the current contact arrangements which have been in place since June 2002 were to change…
As I own my own my business, it is very difficult for me to take time off during the whole of each of the school holidays.”[3]
[3] See father’s affidavit of evidence at paragraph 2
Mr S is a great enthusiast for all things to do with A S. This is hardly surprising, as he has lived in the town most of his life.
It is his case that A S is extremely well resourced with schools and leisure activities. Certainly, he does not believe that anything available to T in B would compensate T for the loss of regular interaction with his father on a day to day basis both during the school week and on weekends.
Mr S lives at a house situated at McK Street, in A S. He owns the house, which is subject to a mortgage. He is very proud of the achievement, the ownership of his home represents. It has come about as a result of financial sacrifice on his part. He provided me with a number of photographs of his home. These showed that it is equipped with a swimming pool, trampoline and cubby house for T, as well as a computer and other electronic equipment. I have no doubt that it provides comfortable and appropriate accommodation for T.
The father is a great motor cycle enthusiast. He came to the sport as an adult because his own father strongly disapproved of it. However, Mr S wishes T to take part in the sport. T has his own motor cycle and all the appropriate safety equipment necessary. I was shown pictures of T on his motor cycle and accept that father and son enjoy engaging in motor cross regularly.
There is some truth to Ms P’s assertion that, at times, Mr S focuses more on his own emotions than those of T. His evidence was often emotionally charged. He is fearful that he himself will not be able to cope if T goes to live in B. I do not quite know what he meant by that. Undoubtedly, however, T is the focus of his life, particularly on those days each week when T is with him. At those times, Mr S arranges his work so that he can spend the maximum amount of time with T.
Mr S is on the school council of the L P S. He attends T’s classroom on each Monday and Tuesday and stays for approximately one hour on each occasion. He assisted T’s class teacher to organise an excursion for T’s class to the A S D Park. He prides himself on his ability to involve himself in day to day aspects of T’s life, particularly his schooling. This is to his great credit. Like Ms P, Mr S is clearly devoted to T. In his own words, Mr S "puts everything towards my son.”
Mr S was born in P L. His father was a truck driver, who was employed by B. As a result, Mr S Senior had positions in country N S W and in Q. However, the family settled in A S, when Mr S was nine years of age. He completed year 10 at school in A S and then completed a butchery apprenticeship. He was apprentice of the year. However, he found butchery not to his liking and preferred employment that enabled him to travel. As a result, he obtained work as a truck driver and delivery person.
The relationship between the parties was obviously a difficult and traumatic one, for both Mr S and Ms P. I suspect that Mr S is still coming to terms with the end of that relationship. He remains resentful that he was forced to commence legal proceedings, against Ms P, to gain contact to T. He believes that, in the past, Ms P was capricious so far as his contact with T was concerned and arbitrarily withdrew T’s contact with him at her whim. He indicated that he “gets very upset when I am around K”. For this reason, he finds it easier not to have anything to do with her. One of the unforseen consequences of these proceedings was that Mr S was able to get some of his feelings “off his chest”, so far as Mr P was concerned, particularly what he regards as her continual and unwarranted criticism of his home and lifestyle.
Mr S Senior operated a licensed agents business in A S for some years. This business is involved with the service of court documents; debt collection; surveillance work; and the repossession of motor vehicles. Mr S took over this business from his father in the middle of 2000.
Unfortunately, Mr S Senior has been ill. He suffered bowel cancer, which required major surgery. Due to this illness Mr S Senior has retired to B I. Unfortunately again, Mrs S, the father’s stepmother, has recently had a fall and apparently suffered a serious head injury. Mr S is close to his father and step-mother and regularly visits them in Q. T has accompanied him on these visits.
In spite of the animosity between the parties, Ms P gets on well with Mr S Senior and describes him as a “lovely man”. However, Mr S seems somewhat suspicious that Ms P would abide by her promise to take T to visit his paternal grandparents regularly, if she and T lived in B.
Ms S was a pleasant and self-assured witness. She was born in A S on 27 December 1982. On her mother’s side, she is part of a large family, which has lived in A S for several generations. At the moment, she is employed as a business support officer at the C for A T. She and Mr S have been living together for the past two years and regard their relationship as a long term one. They would like to have children together.
She described T as an active child, with a lot of energy, who was “bright…not shy”. She confirmed that T was reticent about describing activities, which he did with his mother to her. However, Ms S indicated that T had told her he would like his mum and dad to live together.
Ms S indicated that she had tried to break the ice with Ms P in the past but felt she had been rebuffed in this regard. She did not think she and Ms P could ever be friends. She said she would like to get to know Mr S. This seems to be a positive indication.
It is a major theme of Ms P’ case that Mr S is an irresponsible parent, who at times has not taken proper care of T. In her affidavit material she raises four incidents, as a result of which T has suffered an injury and has been taken to hospital by his father. She has obtained T’s treating notes from the A S H in respect of these incidents. The parties have never really discussed what happened during each of these incidents and this has deepened the suspicion and hostility between them.
The first incident occurred on 8 January 2002, at about 1.30pm. T was with Mr S and a friend. They had recently returned from holidays. Mr S was called away to his accountant to attend to some business. T was left in the care of the friend. Whilst the friend was in the toilet, T claimed on Mr S’s new motor bike, which was inside the house. The motor cycle overbalanced and toppled over onto T. T suffered a broken leg.
Mr S took T to the hospital. He contacted Ms W but not Ms S. She did not learn about the accident until 6.30pm that evening. She was worried and angry. To use Mr S’s expression, he did not inform Ms S because he knew “she would carry on and I did not need it because I was concentrating on my son”.
The accident was a serious one and like many accidents could have been avoided, if more care had been taken. But it was an accident. However, in my opinion, it was reprehensible that Mr S did not inform Ms P sooner of the accident. She was entitled to know about it. What the incident serves to illustrate is how problematic is the shared care arrangement for T, when his parents are incapable of sharing such important information about their child and his health.
The second incident occurred a short time later, on 26 January 2002. By this stage, T had a cast on his leg. Mr S took T to the speedway, with some friends. One of these friends was throwing T in the air and catching him. The friend failed to catch him on one occasion and T fell and knocked his head. Mr S was greatly concerned and took T to the hospital, where he was examined in the Accident and Emergency Department. He was not admitted for treatment.
Again, Ms P views this as an example of grossly careless and irresponsible behaviour on Mr S’s part. She has reason to believe that the person who dropped T had been drinking. I share her suspicions. However, once again, this was an accident. I do not believe that it is possible to extrapolate from this incident and reach the conclusion that Mr S is a grossly and persistently negligent parent. Rather, at worst, this incident seems to reflect a momentary lapse of judgement on his part.
The third incident occurred on 13 December 2002. Mr S left T in the care of his brother, whilst he went shopping. Whilst he was away, T sustained a three centimetre laceration to his bottom lip, whilst playing in the swimming pool. Mr S does not know exactly how the injury happened. The medical notes do not clarify the issue. It may be that Tyron was thrown into the swimming pool by either Mr S’s brother or one of his friends. Fortunately T’s injury was not life threatening and was treated with sutures. He was not retained at the hospital.
Due to the circumstances surrounding the injury, the paediatric registrar was involved. His note reads as follows:
“Child will be looked after by the father and his parents.
I think mechanism is satisfactory for injury received.
Father will be caring for child and not leaving him in brother’s care again.
Child will probably be safe.
I do not feel FACS involvement is warranted at this point.
No other injuries noted on examination.
Child looks well kept.
Can be released to father’s care.”
Ms P continues to be deeply suspicious of Mr S in respect of this incident. Given the hostility and difficulty the parties have in communicating with one another, her suspicions have a fertile ground in which to grow. Mr S can perhaps be criticised for leaving T with his brother. However, accidents do happen in even the most regulated of homes. Again, it is not possible for me to conclude that this incident is symptomatic of any routine or systematic neglect of T by Mr S. To the contrary, his response to the incident indicates his concern for T.
The fourth and final incident occurred on 28 June 2004. T was in Ms S’s care at the time, whilst Mr S attended a school council meeting. Ms S took T to the volleyball centre where she regularly plays. A number of other young children attend the centre, from time to time, with their parents. There is a play area for children. T was in this area, playing with his friends, when he fell and sustained a large bruise to his forehead. He bumped his head on something hard. I do not think there is anything suspicious about this incident at all and no blame attaches to Ms S. It was an accident. Mr S took T to the Accident and Emergency Department to ensure there was no underlying injury. This was appropriate behaviour.
As I have already indicated, both parties have a tendency to think the worst of the other and draw adverse conclusions on the basis of incomplete evidence. Ms P believes that Mr S has a long history of serious drug abuse, including the use of intravenous amphetamines. Mr S denies this, but acknowledges smoking marijuana on social occasions. Apart from Ms P’ assertion of the fact, there is no independent evidence to corroborate her assertions. In particular, there is no evidence to indicate that Mr S’s drug use has had adverse consequences for his capacity to properly parent T. Similarly, there is no evidence to support Ms P’ assertion there is a high level of mental instability in Mr S’s family and that he himself is prone to mental illness.
It is Ms P’ case that Mr S is unhealthily dependent on T, for his own emotional well being. Certainly Mr S is an emotional person, who is deeply distressed at the potential outcome of these proceedings. It is true that Mr S has said that he does not know how he will “cope”, if T lives away from him in B. It is only natural, I think, that Mr S would be upset at that prospect. But it is drawing a long bow to suggest that he is allowing T to “emotionally care-take” him. Certainly Mr R did not observe this occurring.
Mr S does not dismiss the prospect of living away from A S in the future. If he did leave A S, B would be his first choice of home. In Mr S’s words, “B has great appeal to me.” However, Mr S would want to move on his own terms and not under a sense of compulsion. It would be an emotional bind for him to leave “25 years of friends” in A S. He is particularly concerned at the prospects of Ms S leaving her family in A S.
From a financial point of view, Mr S does not believe that a move is a viable proposition for him at this time. He enjoys the flexibility running his own business gives him. The business provides him with a modest income of $27,000 per annum, together with the benefits which flow from self-employment, such as use of a company car and subsidised telephone and fuel. My impression was that Mr S does not particularly enjoy some aspects of his work, particularly when he has to deal with angry people, in the context of debt collection. He finds certain aspects of the work stressful. However, he does not want to leave the business now, as he feels he would be letting his father down. In Mr S’s words he wants his father to be “proud” of him, for making a success of the business.
Mr S has owned a number of houses in A S. His first home was a modest affair and he rented out a bedroom, so that he could support the financial commitment of his purchase. He has gradually improved his residential situation. He purchased his current home, two years ago, for $189,000. It is now valued at $250,000. He has done considerable improvements to it. As I have already indicated, he takes great pride in his home and it would be an emotional wrench for him to leave it.
Mr S is somewhat evasive about when he would be prepared to consider leaving A S. At one stage, he indicated that he would consider such a move in two or three years. At a later stage, he indicated it would be when T had finished primary school and was at an age when he himself could choose where and with whom of his parents he wished to live. The prospect of T choosing in this way, is something that fills with Ms P with horror.
However before considering any move, Mr S would want to be assured that he and his family would enjoy a similar lifestyle in B to that which that they currently enjoy in A S. This means Mr S having a good job in B and being able to provide his family with a comfortable home in which to live. In the medium to long term, Mr S could see himself in a position in the sales area and indicated to Mr R that he would consider a return to butchery. My impression of Mr S is that he would not greet any such move with enthusiasm. The prospect of moving fills him with apprehension. Mr S would also require the consent of Ms S before considering any move.
The purpose of Ms G’s affidavit was to refute Ms P’ assertion that she would be able to transfer her employment with B from A S to B. Ms G was not required for cross examination by Ms P. However it seems clear that the two women, once friends, have now fallen out. I do not place a great deal of weight on Ms G’s evidence. At the end of the day, it is my assessment that Ms P is likely to get employment in A S or B, whether she remains with the B organisation or not.
Ms W’s affidavit was also a brief one. She deposed that she and her husband do not intend to move away from A S in the near future. She conceded that Ms P wanted to leave A S and was no longer happy in the town. However, it was the general tone of Ms W’s affidavit that she was concerned at this prospect. Ms W has some expertise in the field of education. She believes that there are good schools in A S. She is also concerned that Ms P does not have a lot of money and may experience difficulties in maintaining contact.
It is clear that Ms W and Ms P are currently estranged. Ms W however does see T regularly. In Ms W’s affidavit, she indicated she usually sees T on Friday nights. Ms P believes that it is more like once a fortnight and sometimes includes an overnight visit. Although the evidence is far from clear in this regard, I am satisfied that T has a significant relationship with his maternal grandmother.
D P, Ms P’ brother, lives with Mr S and describes himself as one of Mr S’s friends. I did not find Mr Ps’ affidavit particularly helpful. His affidavit, as with Ms W’s affidavit, served to emphasise the fracture in Ms P’ family.
c) The Family Report
The Family Report in this matter was prepared by A R. He is a member of the A P S and a regulation eight counsellor. His report was relied upon by both parties and was admitted into evidence. However, neither of the parties wished to cross-examine him about the report. I found Mr R report insightful and I place weight on his professional opinion.
T was observed by Mr R with both Ms P and Mr S and then Mr S and Ms S. Mr R found T to be a bright, self-confident and outgoing six year old. In Mr R’ view, T was totally familiar and comfortable with both his parent and indeed with Mr S and Ms S. He found both Mr S and Ms P to be practiced parents and play partners and appropriate authority figures, able to provide intimacy, advice, praise and physical comfort. Overall, T appeared to be a physically and psychologically thriving child. It was clear to Mr R that T was bonded to both his father and his mother. This caused Mr R to form the view that T’s relationship with his father and his mother was of “equal quality…with both parties’ present partners as acceptable and interchangeable parenting figures”.
Mr R interviewed both parties separately, about their hopes and aspirations for themselves and T. Mr S indicated that his long term plans may involve a move to B and returning to work as a butcher or possibly the acquisition of tertiary qualifications. Ms P indicated that she would accept any decision to refuse her relocation and would be “not devastated but not happy…if T stays here we will not go without him…contact (with father) will stay the same…maybe week about later…will buy a home here…I can’t leave him.”
When Mr R interviewed T, he initially expressed some enthusiasm for living in B. However when Mr R explored the issue more closely with him, T apparently became distressed, particularly at the prospect of being separated from his father or of his mother and Mr S going to B without him. This caused T to indicate to Mr R that it was his preference for his mother and Mr S to stay in A S and, by implication, for the present situation to continue.
As a result of these matters, Mr R reported as follows:
“The parties’ relationship as parents appears to be strained but not unworkable, both have new partners totally acceptable to T and have back up child care in A S.
Any reconciliation of their former relationship is out of the question, their current partners appear to satisfy their own and T’s needs.
Both parties appear to have ambitions to move to B; however the timing of these moves is seriously out of kilter, for the mother a matter of months, for the father a matter of years.
T initially impressed as a typical six year old, curious, adventurous and largely living in the day to day present, however, like many children of their parents failed relationships, he had secret wishes he was able to reveal to the writer despite formal warnings of no confidentially from his parents knowledge of these wishes.
Despite his only six years of age, his final wishes and solutions to his parent’s relocation dispute should be given the weight of any eight (sic) year old child.
Both parties appear to have equal bonding and parenting skills that have produced an observable thriving child in A S.
T has indicated that the mother’s short term move to B will create new stresses for him in terms of reduced contact with his father.
To her credit the mother claimed to have T’s interests as the paramount consideration regarding her application to relocate to B.
While resisting the mother’s relocation, the father was prepared to consider all contact proposals including week about residence share should the mother remain living in A S.
Obviously, the mother’s relocation to B will seriously alter and reduce T’s present pattern of contact with his father even if school holiday contact costs and logistics are resolved.
Above all else, currently T is assessed as a thriving child despite his parents, alleged, parenting difficulties, whatever has happened in A S appears to have worked so far towards his welfare and development.
The mother’s discomfort with the A S environment and the father’s delayed move to B should be subordinated to T’s needs.
T needs to establish a school attendance routine in the familiar territory of A S before he moves to B.
Ideally and with the help of counselling and mediation, the parties should attempt to formulate a mutually acceptable plan for T to relocate to B at some future time with both parties.
Without reflecting on A S, B potentially has better educational and development resources for T.
At the same time both parties do not appear to have had the experience of the potential problems of living in a large city such as B in comparison with A S.
On the available evidence, the parties planned moves to B should be delayed and coordinated towards T’s optimum needs following a realistically negotiated time for both of them to relocate to B.”
As has already been indicated, Mr R was hopeful that the parties would be able to reach a compromise and agree on a date when they could both move to B. He hoped that both Mr S and Ms P would be willing to sacrifice some aspects of their future plans, in order to bring about the best results for T. No doubt he formed this view because he was satisfied that the indications given by both Ms P and Mr S that they considered their respective plans to be subservient to T’s best interest, were sincere. In particular, Ms P’ indication that she would not consider moving to B without T and would accept a decision that prevented her from moving.
Having heard the evidence in this matter, I am concerned that Mr R may have underestimated the degree of hostility between the parties. They do not seem to me to have access to any great stocks of magnanimity. Certainly Ms P feels she has delayed her plans long enough and Mr S feels put out at any suggestion that he should move at a time other than of his own choosing. I suspect that this is likely to be many years away. In this sense, I am concerned that Mr R may have overestimated Mr S’s willingness to move. Mr S is likely to take a long time to assimilate the pros and cons of such a move, particularly if there is no sense of urgency about it. In my estimation, Ms P is a more compulsive person than Mr S, as is demonstrated by her institution of these proceeding in the weeks after she had returned from her ten day holiday to B. In any event, it has not been possible for Mr S and Ms Ps to harmonise their plans. The recommended mediation failed and it falls to the court to make a decision.
In these circumstances, Mr R was opposed to any immediate relocation of T, certainly not until T was well settled into the routines of school. By implication, Mr R was concerned at the potential harm which might be inflicted on T if he was removed from regular interaction with one or other of his parents, to whom he appeared equally closely bonded. Although still a young child, Mr R believed that T’s wish that his mother remain in A S should be given appropriate weight.
The Law
The applications of both parties concern parenting orders. The law to be applied is contained in the Family Law Act. Section 60B of the Act sets out the principles and objects which underlie the part of the legislation dealing with children. Important principles are that children have the right to know and be cared for by both their parents and a right of contact on a regular basis with both their parents and other people significant to their care, welfare and development. The objects and principles are subject to section 65E which provides that in deciding whether to make a particular parenting order the court must regard the best interest of the child or children concerned as the paramount consideration.
Deciding the parenting arrangement that will promote the best interests of a particular child, the court must consider the various matters set out in s.68F(2) of the Family Law Act. The various subsections contained in s.68F(2) comprise a list of matters that must be considered that each is relevant to each particular case. Paragraph (l) permits the court to take into account any other fact or circumstance that the court thinks is relevant. This ensures that the infinite variety of individual children’s circumstances can be address in any order made by the court. It is the court’s duty to make relevant findings of fact concerning the cases of each of the parties and then apply each of the relevant subsections contained in s.68F(2) to those findings in a common sense and practical way in order to ensure that the final orders that are made result in a situation that will serve T’s best interests.
In A v A: Relocation Approach[4], the Full Court of the Family Court, following a number of decisions of the High Court, stipulated that certain guidelines should apply to the determination of a parenting case that involves a proposal to relocate the residence of a child. It held that the best interests of the child remained the paramount consideration but not the sole consideration. The court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation. It is necessary for the court to evaluate each of the proposals advanced by the parties. That evaluation must assess the advantages and disadvantages for the child’s best interests of each proposal and consider each relevant s.68F(2) factor. When evaluating the proposals, the court must have regard to the fact that neither party bears an onus (the court must have regard to the whole of the evidence relevant to the best interests of the child) and the importance of a party’s right to freedom of movement.
[4] A v A: Relocation Approach (2000) FLC 93-035
If the court considered that the arrangements proposed by one or other of the parents were not adequate in respect of contact, it might become necessary for the court to order a regime which would best meet the right of a child to know and have physical contact with both parents, independently of the parties’ proposals. In some circumstances, this might include impinging upon the right of a parent to freedom of movement. In A v A, the Full Court said as follows:
“The ultimate issue is the best interests of the child and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.”[5]
[5] A v A (supra) Page 87,552
The High Court has pointed out that cases involving relocation are intrinsically difficult and require a careful and delicate analysis of all the relevant facts.[6] Every relocation case is different. Although T’s best interest are my paramount consideration, they are not my only consideration. I cannot ignore the legitimate interests and desires of the parties concerned. In this context, I must remember that both Mr S and Ms P, as Australian citizens, are members of a democratic society that recognises and prizes the rights of people to move freely and to live where and how they choose. Australia is a free country and its citizens enjoy a right to freedom of movement.
[6] see AMS v AIF; AIF v AMS (1999) FLC 92-852
Indeed, one of the purposes of the Family Law Act is to enable the parties to a relationship to disconnect with one another and lead their own lives as they see fit. Accordingly, a party’s wish to pursue an object that will bring about his or her greater happiness, is a legitimate consideration and must not be ignored. On the other hand, the responsibilities of being a parent can last a lifetime and by their nature may curtail, to some extent or other, some aspects of a parent’s freedom of choice to do absolutely as he or she wishes.
The High Court returned to the issue of relocation in the case of U & U.[7] In the case, the High Court considered that the primary court deciding the issue of relation, although obviously obliged to give careful consideration to the competing proposals of each of the parties concerned was not bound by or limited only to consider those proposals. This is because proceedings dealing with children are not strictly adversarial, as they are intimately bound up with the interests of a third person, who is not strictly a party to the proceedings, namely the child concerned. The best interests of a child are not necessarily congruent with the interests of his or her parents. As a result, the objective of any parenting proceedings under the Family Law Act, always remained to achieve the child’s best interest. From this it followed, although it might not be one of the proposals of the parties concerned, it was nonetheless appropriate for the court to enquire of the respondent to an application for relocation, as to whether he or she was able to move to be nearer the child concerned, if relocation did occur.[8]
[7] U & U (2002) FLC93-112
[8]See U & U (supra) per Hayne J at 89,103
These are relevant considerations in this case. I am not bound by the two proposals of the parties, namely, a relocation from the end of 2005 as Ms P proposes and on the other hand, a preservation of the existing status quo as Mr S proposes. My duty is to achieve the result which I think will best serve T’s interests. Obviously this may include the possibility of Ms P being restrained from leaving A S with T to a date later than Ms P would prefer. This also may have the consequences of Mr S considering his proposed move to Be at a sooner rather than later stage and at a time not of his selection.
In U & U, the High Court emphasised the difficulty in relocation cases of a court balancing the desirability of the child concerned having contact with both parents, with the equally beneficial outcome that the child lived in a “stress free environment”. The High Court observed that, attempting to strike such a balance, it was “unlikely that many of such situations would admit of perfect solutions.” The High Court also noted that often “parenthood entailed long term obligations, which were inevitably restrictive of personal choice and movement”.[9]
[9] See U & U (supra) at 89,090-1
Discussion
Ms P’ evidence is that if she is not allowed to take T to B, she will remain living in A S. However, it is her preference to leave the town, with T, at the end of 2005. If Ms P is not allowed to leave A S when she wishes, she would not oppose the current shared parenting arrangement for T continuing. Mr S wishes Ms P to be prevented from taking T from A S for an indefinite period of time. If this occurs, he would not want to change the shared parenting arrangements currently in existence. He is not seeking to be T’s sole residence providing parent. However, he himself does not rule out the possibility of both he and Ms P living in the B area at some stage in the future and the shared parenting regime being transplanted there. Accordingly there are other outcomes available to the court in this case, independent of those advocated by the parties themselves, principally that Ms P and T remain living in A S for a longer period of time than that currently proposed by Ms P, so that both parties may work together towards moving to B in a co-ordinated fashion. This seems to be an outcome that would appeal to Mr R.
One of the unusual features of this case is that T has been in a shared parenting regime for a significant period of time. This is not a case where there is one “residence parent” and one “contact parent”. This is not a case where a contact parent is attempting to restrict the resident parent in order to ensure that he or she has the optimal level of contact with the child concerned.
It is often said to be axiomatic that a parent’s capacity to meet his or her child’s emotional and psychological needs is maximised if he or she is well settled, secure and happy. People are usually happier if they are pursuing their own ambitions and leading the life of their own selection.[10]
[10] See B & B: Family Law Reform Act (1997) FLC 92-755 at page 84,222 and Fragomeli& Fragomeli (1993) FLC 92-393 at page 803,023
However, this is not quite the case here. T is in shared care. Accordingly, if Ms P remains in A S, it seems probable that her level of unhappiness and discontent, (if any), at that outcome, will have less of an impact on T than if she had been his sole or primary residence providing parent up to this stage. The significant factor in this case is that it is Ms P who wishes to end the shared parenting regime, by moving T to B. On any view, this is a significant change of circumstances for T. However, if Ms P does remain in A S, she does not want the shared parenting regime to change. Nor does Mr S.[11] Ms P is not rigorously opposed to the shared parenting regime. She concedes there are benefits in it for T and it has been the reality of his life. She would be content for it to continue in B. Obviously she opposes the regime, so far as it impinges on her freedom of movement. As the High Court observed, every relocation case is unique.
[11] Although the possibility of the shared care arrangement for T changing to a week about one was canvassed with Mr R, in a formal sense Mr S’s application is for the maintenance of the status quo
Ordinarily it is thought to be desirable that parents, who have a shared parenting regime or are contemplating such a regime, should have a ready facility to communicate with one another; a trust in the other’s abilities as a parent; complementary values and beliefs; a capacity to co-operate on parenting issues; and where disputes arise between them, an ability to resolve those disputes without extreme levels of conflict.[12] Clearly this is not the case in this matter. All those indicia are missing.
[12] See T & N [2001]FMCAfam 222 at page 34
In the case of Ms P and Mr S, the decision to embark on a shared parenting regime does not seem to have been a considered or consensual one. No doubt the arrangement appealed to Mr S’s sense of fairness. However, I suspect both parties agreed to it because each feared something worse if the matter proceeded further. The arrangement represented an uneasy compromise, which always had the potential to collapse in conflict. But it is important to note that this shared care arrangement is the only arrangement that T has ever really known. There is no evidence to indicate that it is causing him emotional harm or distress. To the contrary, according to Mr R, T is worried at the prospect of it coming to an end.
It is now necessary to contrast and compare the advantages and disadvantages of the possible outcomes in this case. The advantages of Ms P’ proposals include the following:
·She herself is likely to be a happier person in B. This may have implications for her capacity to parent T to the full extent of her abilities;
·Ms P will be able to pursue her ambition to attend university as an internal student. If she obtains a tertiary qualification, it is her likely to have financial implications for her and so for T;
·Mr S will be able to pursue the career of his choice with C-C in B. This is likely to have financial implications for him and Ms P, as he will be earning a significantly higher salary than he does in A S;
·T maybe removed from the possibility of emotional harm as a result of being exposed to the acrimonious and conflicted relationship between his parents;
·In a bigger city, T is likely to have more educational, recreational and cultural opportunities, particularly as he matures;
·T may be able to consolidate his relationship with his paternal grandparents, Mr and Mrs S at B I.
The disadvantages of Ms P’ proposal seem to be as follows:
·T’s relationship with his father is likely to be significantly altered. T will not be able to interact with his father on a day to day basis, particularly in regards to his schooling and leisure time activities;
·T is likely to feel some distress at being moved out of the shared parenting regime;
·Contact arrangements between A S and B are likely to be expensive and difficult to organise;
·Mr S is likely to find it difficult to accommodate school holiday contact with T whilst running his business in A S.
The likely advantages of Mr S’s position are as follows
·T will remain in the care arrangement with which he is familiar and in which he appears to have thrived;
·As Ms P’s has indicated that she will not leave A S without T, he will have the benefit of having a strong relationship with both his parents;
·T will be able to maintain his current level of relationship with his maternal uncle and maternal grandparents;
·T’s wishes (certainly as they were expressed to Mr R) will be followed;
·There will be no disruption to Mr S and Ms S’s plans and living arrangements.
The disadvantages of Mr S’s proposals seem to be as follows:
·Ms P will be unhappy and dissatisfied at such an outcome. Her feelings may impact on her capacity to parent T to the full extent of her abilities;
·Mr S will not be able to return to his position with the C-C company and the family will be deprived of the financial benefits which flow from his employment with C-C;
·It is likely that the parenting arrangement between the parties, already poor, will be rendered even more dysfunctional and this may have implications for T’s long term emotional wellbeing.
The advantages of Ms P being delayed from removing T from A S for a longer period than she currently advocates appear to include the following:
·Mr S would have a concrete date on which he could base his own plans to move to B. He would have more time to investigate accommodation and employment prospects in B;
·Theoretically both parties could follow their own long term ambitions without undue disturbance to T in the short to medium term and move in tandem to B in a fixed timeframe;
·The shared care arrangement, in which T has thrived up to date, could be transplanted to B, without interruption;
·T would be able to get used to the routines of school attendance in A S before such a move, as advocated by Mr R;
·A balance could be struck between T’s needs, Ms P’ ambitions and liberties and Mr S and Ms S’s legitimate interests and expectations;
·If T is older and Mr S remains living in A S the costs of contact between A S and B will be less because T will not require accompaniment. In addition T will have a greater intellectual understanding of the reasons for the move and his relationship with Mr S is likely to be more resilient to the consequences of the move.
The disadvantages of such a proposal appear to be as follows:
·Both parties would be disappointed at such an outcome;
·There can be no guarantee that such a moratorium would result in Mr S being willing to uproot himself and Ms S and move to B at some date in the future, when they are not prepared to leave now;
·A moratorium may only delay further and inevitable litigation between the parties about who of then should provide T’s principle place of residence. This will heighten tensions between then, to T’s ultimate detriment and scuttle the possibility of on-going shared care, in which T has to date done well.
These are, in summary form, the competing proposals I must evaluate against the criteria provided by s.68F(2) of the Family Law Act. As is apparent from this brief analysis, the exercise I must undertake is “to attempt a resolution of often irreconcilable considerations”,[13] which arise from complex issues. T has two capable and loving parents, whose wishes in regard to his care are in conflict. The case provides no ready solution. However the ultimate issue remains T’s best interests and the extent to which a freedom of a parent to move impinges upon his best interests, then it must give way.[14]
Section 68F(2) factors – determining the best interests of the child
[13] See AMS v AIF (supra) per Kirby J at 86,041
[14] See A vA (supra) at 87,552
a) The wishes of the child
Tyron is six years and four months old. Although initially excited at the prospect of moving to B, I accept Mr R’ evidence that the move also fills him with anxiety. T is particularly worried at the prospect of not seeing Mr S as regularly as he currently does. This caused T to express to Mr R his wish that the status quo, so far as his care is concerned, should continue.
T does not have any real experience of living in B, away from his father. Given his age and likely current level of development, he has little real insight into what it will be like living away from his father. T is obviously very young. He does not have great deal of insight into the difficult issue which confronts his parents and indeed, the court. However, in my view, his wishes must be given some accord in these proceedings, not withstanding his extreme youth.
T is also entitled to financial support from both his parents. It seems likely that a greater financial responsibility, in this regard, falls on Ms P’ shoulders than Mr S’s. However, T spends a considerable portion of his time with Mr S and Mr S has provided him with many things, particularly the motor cycle which he seems to love so much. There is not a gross discrepancy in the incomes of the parties. I do not think that this is a strongly relevant consideration in this matter.
i) Any family violence involving the child or a member of the child’s family
j) Any family violence order that applies to the child or a member of the child’s family
Mr S has provided the court with a copy of a domestic violence order which was made in his favour on 13 August 2002. The order was made by consent and without admissions. In the past, he has taken out a trespass order on Ms P. I have no doubt that the relationship between the parties in the past was a tempestuous one and both have said and done things which, I hope, they have later had cause to regret.
The parties currently manage their disastrous and acrimonious relationship by not communicating with the other at all. I accept that, at this stage, every direct physical interaction between them, has the potential to end unhappily and with conflict. Avoidance of the other is the means by which the parties manage this potential. Sadly, both Mr S and Ms P believe that their relationship will neither get better nor worse. In these circumstances, I do not think that this is a strongly relevant consideration in this case, against which to gauge the party’s competing proposals.
k) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. Ms P seeks a significant change to the existing shared care arrangement and, if she is successful, there is little doubt that Mr S will be unhappy with the result and is likely to find it difficult to accept. Similarly, if Ms P is not allowed to pursue her ambitions in B, she is likely to be greatly disappointed and believe the court’s decision is flawed.
Save for advocating a focus on T’s interests, which Mr R’s attempted to do by suggesting the parties seek a compromise regarding their co-ordinated departure from A S, there is little the court can do to ensure that future litigation is contained, regardless of the outcome in these proceedings. Either one or other of the parties and indeed both of them are likely to be disappointed with the result of the case.
In the short term, an extended moratorium on Ms P’ departure from A S seems to me to be the result which is most calculated not to lead to litigation in the short to medium term. Ms P will be disappointed but will have a release date from A S, the place she currently finds so unappealing. Mr S will be able to plan, if he wishes, for his and Ms S’s move to B. He has said he is open to a move to B at some stage in the future. This result would supply the compromise, which the parties themselves were unable to find, through the mediation advocated by Mr R. I concede however it may result in a postponement of another bitter and inevitable round of litigation concerning which of the parties should be T’s principle residence providing parent, as each party comes to the conclusion that any further equal sharing of parenting responsibilities is inimical to their respective personal aspirations. It is also not improbable that certain aspects of the law applicable to the sharing of parental responsibility will change in future.
As I have already observed, given that T is in shared care and appears to be thriving in this arrangement, it seems to me that Ms P is subject to greater potential restrictions on her freedom of movement than perhaps other parents, who have a more significant role in providing a residence for their child or children than she currently does. This is particularly so when she agreed to the shared parenting arrangement in the first place. Moratoriums are not usually desirable, as they often have the consequence of heightening tension between the parties concerned. But in this case, where it is neither unreasonable nor beyond the bounds of possibility that Mr S himself will consider moving to B, such a moratorium becomes a far more attractive proposition. This is particularly so where the relationship between the parties concerned is already poor and it is said can get no worse.
l) Any other fact or circumstance the court thinks is relevant
It is a major plank of Ms P’ case that her and T’s relocation to B will provide them with greater financial security. In B, Mr S will be able to return to his previous employment with C-C, which is significantly better paid than his present employment in A S. This is a significant factor, which cannot be overlooked. However, I do not believe that Mr S is necessarily condemned to an inferior career in A S, if he does not return to B in the next several months. He struck me as a capable person, who is likely to be employable wherever he lives – as his recent offer from C-C in A S demonstrates.
Ms P also wishes to go to B so that she can fulfil her ambition to attend university. This is a laudable ambition. However, at this stage, Ms P has no clear proposal as to which course of study at which university, she wishes to pursue. She is currently deferred from her law studies as an external student at D U. Ms P has youth on her side in respect of her ambition to pursue a tertiary education for herself in the future.
Like most couples, Ms P and Mr S want to buy a home for themselves. They want to have children. They believe that this will be easier to achieve in Mt G, where house prices are cheaper than in A S. No detailed evidence of real estate prices was provided in this case. Nothing much turns on this fact. However, a house in Mt G is likely to have more savour for Ms P than a similar one in A S, regardless of the price.
Ms P’ wish to pursue opportunities for herself and her family in B are a legitimate expectation, which cannot easily be dismissed. After twenty two years of living in A S – a town that now holds unhappy connotations for her – I can well understand why she would want to start anew in B. I can understand why Ms P is weary of small town life and why she would want to live in a city, particularly a city which offers prospects to her partner. These are factors which favour Ms P’ proposal.
Conclusions
This is a difficult case. The interests of Ms P and T come into conflict. For understandable and human reasons, Ms P wants to live in B. She wants a new start in a big city. Her partner wants to return to the well paid job he had in B, which is secure and which he enjoys. It is a significant thing to prevent any person living in the place of his or her choice. As a result, Ms P need not provide compelling reasons as to why she wishes to move with T. That would set the bar too high in these proceedings and potentially have the consequence of compelling former partners to live in proximity to one another indefinitely and unduly restrict their freedom.
One of the purposes of the Family Law Act is to provide mechanisms to enable former partners to disentangle their lives and start afresh. There is no principle of law that the parents of children are required to live indefinitely close to one another in order to ensure that their children will have the optimum level of contact with both parents. The entitlement of a child to maintain his or her relationship with a parent and have contact with that parent must be set against the reasonable expectation of the other parent that, as a citizen of a democratic nation, he or she will be free to live how and where he or she chooses. Children may maintain their relationships with their parents through measures which cannot be regarded as being the best possible means available, in the court’s attempt to strike this balance.[15]
[15] See D & SV (2003) FLC 93-137
However, Ms P’ interests are not the only matter at stake in this case. T’s best interests remain paramount. Although Ms P’ legitimate wishes and expectations cannot be overlooked, they are subservient to T’s best interests. A balance must be struck between the two. I have not found this to be an easy task in this case. Both party’s proposals have disadvantages as well as advantages. In the end, it is necessary to attempt to weigh up the various factors and so focus on what I believe is likely to be the best result for T. In my view, the factors that chiefly temper the balance in this case are T’s age and more importantly, the nature of his relationship with both his parents, which has flowed from the shared parenting arrangement, in place since the middle of 2002.
T is young and will not understand why the shared parenting arrangement has come to an end. He is likely to be distressed at such an outcome. His significant relationship with Mr S, to whom he is as closely bonded as he is to Ms P, will be undermined. I am concerned that Ms P’ offer of liberal holiday contact, in A S, at her expense, is unfeasible and glibly offered. I hold grave fears that Ms P would be capable of fostering T’s relationship with his father in such difficult and changed circumstances.
I cannot overlook the fact that Ms P and Mr S consensually agreed to the shared parenting arrangement, which is now entrenched and long standing. In ideal circumstances, both would wish it to continue. In spite of the poor parenting relationship between the parties, T has thrived in the arrangement. This is a credit to both his parents.
The fact of this shared parenting arrangement; T’s wish that it should continue; and that T is doing well with it; make it difficult for Ms P to unilaterally bring it to an end. She is not pre-eminent over Mr S in terms of her involvement or relationship with T. At the end of the day, the most important factor in this case, is that T is equally bonded to both his parents and, at this stage of his development, to reduce one of those bonds has the potential to do him emotional harm. This was Mr R’ opinion and I accept it.
However, at the end of the day, Mr S wishes to snuff out Ms P’ dream of moving to B and buying a house for herself and Mr S in Mt G and in time going to university. Only bitterness and disappointment for Ms P can flow from this stance on his part. In the longer term, I hold grave fears for orders that would compel the shared parenting regime to continue, when one parent’s ambitions are stifled as a result of the actions of the other. Although the parties do not believe it is possible, I believe that the poor relations between the parties could become even more poisonous. The emotional rift in T’s life has the potential to become more pronounced and I fear for his psychological integrity as a result.
In such circumstances, it is legitimate to enquire of Mr S whether he is prepared to move to B. Essentially to ask of Mr S whether he himself is also willing to make his ambitions and personal needs subservient to T’s best interests, as he currently requires Ms P to do, by the position he has adopted in these proceedings. He asks Ms P either to pursue her plans and aspirations in B without T or remain in A S with T and for the shared parenting regime to continue unchanged. He offers no concrete compromise himself.
Mr S has indicated that he has an interest in moving to B at some stage in the future. He has qualifications as a butcher, a trade which is highly portable. In the long term, he would like to involve himself in sales work. He is a capable person with skills. No doubt it would be an emotional wrench for him to leave A S and the home he holds dear. However it is not unfeasible for him and Ms S to extricate themselves from their life in A S.
In the somewhat unusual circumstances of this case, I do not consider it reasonable to allow Mr S to sit back and indefinitely stymie Ms P’ legitimate expectations, when he himself is able to move and has indeed considered such a possibility. Such an outcome would represent an unnecessary restriction on Ms P’ entitlement to move freely within this country. However, as was observed by the High Court, the legal and moral obligations of parenthood and the concomitant restrictions of personal freedom that result from it can and do last a lifetime. This is particularly so given the equality of parenting arrangements that has existed up to this stage. As a consequence, neither Mr S nor Ms P is free to work in a vacuum, so far as their personal aspirations are concerned because of that arrangement. It is this factor, which makes this case so particularly difficult.
The commitment to a joint parenting regime was a consensual arrangement. Its ending has potentially great consequences for T’s best interests, which remain paramount. It seems appropriate in the circumstances of this case that the possibility of the shared parenting arrangement continuing should be given the best chance of being achieved. However that prospect remains in the parties’ hands. Mr S cannot be forced to move to B. He has not strictly sought a change or residence of T from the current arrangement to one where he alone provides T’s residence. His preference is for the shared arrangement to continue indefinitely in A S. Ms P will not go to B without T. In such an eventuality she wishes the shared care arrangement to continue. It is untenable for Mr S to restrain her ambitions indefinitely. If the parties are unable to compromise, the court must break the deadlock with T’s best interests as its lodestar.
At the end of these somewhat complex reasons for judgement, I have come to the conclusion that T’s best interests will be served by Ms P’ being restricted in removing T from A S until T is eight years of age at the end of 2006. Neither party will be satisfied at this outcome. However it will provide T with two years in which to establish himself in the routines of school, as Mr R recommends. It will also give Mr S and Ms S a period of approximately 20 months to investigate the possibility of moving to B concurrently with Ms P and Mr S. T is likely to be better able to cope with the move when he is older.
Under the compulsion of a relocation date, Mr S is likely to explore these issues with more alacrity than he has done previously. At the end of 2006, he himself will be presented with the choice of having to move if he wishes the shared parenting regime to continue. If he is not willing to move, it seems oppressive that he should require Ms P to remain in A S indefinitely and sacrifice her legitimate expectations because of the ties of parenthood. He will be confronted with the choice he currently presents to Ms P.
The parties in this case were hamstrung by their lack of legal representation and the complexity of the issues involved. Mr S in particular did not specify with a high degree of clarity the orders he specifically sought in the case. He does not, strictly speaking, seek a change of the existing parenting arrangements. He gave no thought to the orders he would seek in the eventuality of both he, Ms P and T living in B. Although a week about arrangement was canvassed with Mr R, Mr S did not formally seek it. Ms P said she would consider it later. His proposals for contact, in the eventuality of T living in B and he remaining in A S, were vague. These difficulties heighten the possibility of further litigation.
At the end of these deliberations, I have come to the conclusion that it is untenable for the court to enforce a joint parenting arrangement in A S indefinitely, in the face of the mother’s wish to move to B. It is for that reason, I have specified a specific date on which she may move to B with T. If Mr S wishes the shared care arrangement to continue, he must make some concrete commitment to it and move to B, in a specific time frame. In my view, it is untenable for the court to maintain the shared parenting regime, effectively under compulsion, without some such commitment on Mr S’s part. Not only would the compulsory enforcement of the shared parenting regime in A S, on an indefinite basis, have likely implications for T’s wellbeing, but it would also unduly fetter Ms P’ entitlement to freedom of movement.
Ideally, shared parenting regimes exist in an atmosphere of co-operation and trust. These components are not present in this case but nonetheless the arrangement is long standing and T has passed through the difficult circumstances of his parents’ relationship relatively unscathed. This is to the parties’ credit and seems to be as a result of their mutual decision not to communicate directly with one another. However, it seems difficult to accept that such a shared parenting arrangement can have the possibility of longer term success and the child concerned in it continue to prosper, if the arrangement continues only because of the sacrifice of the aspirations of one party to it, at the dictation of the other. The best chance of the shared parenting arrangement in this case continuing and T continuing to thrive seems to me to be if the arrangement can be transferred, as consensually as possible, to B. However that outcome remains in Mr S’s control.
This is a far from perfect solution to this difficult case. Ms P will feel that her life has been placed on hold for the next 20 months. So will Mr S and he may not be able to return to his job at C-C. Mr S will feel he is being forced to move to B prematurely. He is likely to be bitter at having to sell his house and business. The possibility of further litigation will be high.
However, it seems to me that such an outcome will give T the best prospect of maintaining his current level of relationship with both parents and, at the same time, of his parents being able to pursue their long term aspirations. I cannot lose sight of the fact that Mr S does see some future for himself in B. He is able to move there. He finds B to be an attractive city. His parents live in the vicinity. No doubt, Mr S enjoys the flexibility of running his own business. But in strictly financial terms, it is difficult to describe the business as being lucrative.
This outcome represents a compromise to what Mr R saw of the dilemma of the parties’ plans, in terms of their relocation to B, being out of kilter. It compels both Mr S and Ms P, if they wish, to make their future plans subservient to T’s best interests. I accept that both have been sincere when they have expressed the view that T’s best interests are their pre-eminent concern. Both Ms P and Mr S acknowledge that the shared parenting regime has been of benefit to T. In an ideal situation, both would want it to continue. It is in their power to ensure that it does. But it will require sacrifice on both their parts and indeed on the parts of Mr S and Ms S.
The parties will require expert mediation to assist them through this process. Mr R recommended that this should occur. If Mr S is not prepared to move to B, T should live primarily with Ms P from the 1 January 2007 onwards in B and have contact with his father during half of each school holiday. The parties should share the cost of this travel. I do not believe that it is reasonable for Ms P to bear all the costs, particularly because the incomes of the parties are approximately equal. By this stage it will not be necessary for T to be accompanied.
If Mr S does move, the shared parenting regime should continue in B. I believe that this would be the best outcome for T. This was also the view of Mr R. From T’s point of view, whether this arrangement continues in A S or is transposed to B seems to be of little moment, provided he is secure in the love and relationship of both his parents.
Mr S has given no close thought to where he will live if he does move to B and what sort of work he will pursue there. It is likely that there will be logistical difficulties in regards to the transfer of the shared parenting regime. At the present time, T’s care is shared on a three day/four day basis each week. This seems to have been a successful option when T has been young and both parties concerned have lived in fairly close proximity to one another in the small township of A S. It may be more difficult to achieve in B. For this reason, I consider it appropriate for T’s care to be shared on a week about basis, if Mr S does move to B.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgement.
I certify that the preceding two hundred and six (206) paragraphs are a true copy of the reasons for judgment of Brown FM
Deputy Associate: J Commins
Date: 29 April 2005
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