PADMORE & WEAVER
[2018] FCCA 2801
•14 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PADMORE & WEAVER | [2018] FCCA 2801 |
| Catchwords: FAMILY LAW – Parenting – final orders – one child aged 8 years old – mother seeking to relocate with the child – whether the child should live primarily with the mother in new locality or in a shared care arrangement where child has always lived – where the mother is primary carer – where the father has spent regular time with the child – where the child has half siblings in the mother’s home – where the child has a close relationship with extended paternal family – best interests of the child. |
| Legislation: Family Law Act 1975 (Cth), Pt.VII |
| Cases cited: Goode & Goode (2006) FLC 93-286 MRR & GR (2010) FLC 93-424 |
| Applicant: | MR PADMORE |
| Respondent: | MS WEAVER |
| File Number: | NCC 1313 of 2017 |
| Judgment of: | Judge Betts |
| Hearing date: | 13 & 14 September 2018 |
| Date of Last Submission: | 14 September 2018 |
| Delivered at: | Newcastle |
| Delivered on: | 14 September 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Carty |
| Solicitors for the Applicant: | McNeilly Lawyers |
| Counsel for the Respondent: | Ms Flintoff |
| Solicitors for the Respondent: | East Coast Law |
ORDERS
By consent, the parties have equal shared responsibility for the child, [X] born 2010 (“the child”).
The child live with the Mother.
The Mother be permitted to relocate the child’s residence to within 30 km of the Newcastle CBD, as of Friday 5 October 2018.
The child spend time with the Father as agreed between the parents but failing agreement as follows:
4.1 During the NSW school terms each alternate weekend from 5.30pm Friday to 5pm Sunday commencing the first weekend after the start of term in even numbered years and the second weekend after the start of term in odd numbered years;
4.2 On Father’s Day weekend from 5.30pm Friday to 5pm Sunday;
4.3 Additional time in Newcastle as agreed provided that:
4.3.1The Father provides the Mother with at least 14 days written notice of his intentions to spend additional time with the child, and the Mother must not unreasonably refuse the additional time;
4.3.2To implement the time in order 4.3, the Father will collect the child from the Mother’s home at the commencement of the time and return the child to the Mother’s home at the conclusion of the time, when otherwise agreed;
4.3.3The time occur no more frequently than once per school term unless otherwise agreed in writing, which “writing” may include text messages and emails.
4.4 In 2018/January 2019:
4.4.1From 12noon Sunday, 23 December 2018 until 12noon on 5 January 2019;
4.4.2From 12noon on Sunday, 20 January 2019 until 12noon on Sunday, 27 January 2019;
4.5 School holidays:
4.5.1For one half of the NSW school Term 2 and 4 holiday periods being the first half in even numbered years and the second half in odd numbered years, commencing Term 2 school holidays 2019 or as otherwise agreed;
4.5.2During the Term 1 and 3 school holiday periods from 5.30pm on the last day of school term and concluding at 4pm on the second Tuesday thereafter with changeover to occur at Location C at the commencement and conclusion of the time.
Unless otherwise specified in these orders, in order to facilitate the time in order 4, the parties or their nominee known to the child must meet at the Location A at the commencement and conclusion of the time.
The time in order 4 is suspended on Mother’s Day weekend each year and during that time the child will be with the Mother.
By consent, the Father shall have telephone communication with the child each Tuesday and Thursday between 5pm and 5.30pm with the Father to initiate the communication to a telephone number provided to the Father by the Mother, with the Mother to ensure the phone is turned on and the child is available at a scheduled time.
By consent, the Father shall have liberal FaceTime communication with the child and the Mother must not unreasonably restrict the communication.
By consent, whilst the child is spending time with the Father during the school holiday periods, the Mother may have liberal text and FaceTime communications with the child and the Father will not unreasonably restrict the communication.
By consent, the parents will advise each other of a contact number and address for the child when in their care and notify the other parent of any change to those details within 7 days of the change occurring.
By consent, the parents are restrained from making critical or derogatory remarks about each other or members of each other’s family in the presence or hearing of the child and will ensure that the child does not remain in the presence of a third party who does so.
By consent, the parents are at liberty to attend school functions, parent teacher interviews and obtain copies of school reports, school photo order forms, notices, correspondence, copies of newsletters and any other information regarding the child’s schooling.
By consent, the parents must notify each other as soon as practicable of the child requiring any emergency medical and/or dental treatment.
By consent, these orders act as an authority to any medical practitioner/health care facility to provide both parents with any and all information regarding the child’s health, medical treatment, prognosis, diagnosis, reports and records.
By consent, the Mother, her servants or agents be restrained from removing the child from the Commonwealth of Australia without obtaining the consent of the Father, and vice versa.
By consent, neither party will unreasonably withhold consent in relation to order 15 above.
By consent, in the event the child travels with either parent overseas, the travelling parent will provide to the other parent the following:
17.1A travel itinerary, including accommodation details, departure and arrival dates and airline details no later than 28 days prior to the proposed departure;
17.2Copies of the child’s fully paid return airfares within 28 days from the proposed departure date;
17.3A copy of the travel insurance for the proposed holiday;
17.4A copy of any medical certificate evidencing travel immunisations or other medical treatment required for the child to facilitate overseas travel;
17.5Telephone contact details where the non-travelling parent can contact the child at all reasonable times when the child is overseas;
17.6A copy of any relevant visas obtained on behalf of the child for the purpose of overseas travel.
By consent, in the event the child travels overseas with either parent, the child will not be removed from the Commonwealth of Australia for more than 3 weeks each year.
By consent, in the event the child travels overseas with either parent, the parent who is not travelling, is at liberty to contact the child via FaceTime no more than 3 occasion during the period the child is overseas.
By consent, the Mother will hold the child’s passport at all times when the child is in Australia and the Mother will provide the passport to the Father on receipt of the notice given in order 19 above.
By consent, within 14 days of being requested to do so by other parent, both parents must do all such things and sign all documents that may be necessary to obtain or renew the child’s passport.
By consent, simultaneously with order 21, the parent who has been requested to sign the passport documents, must pay to the other parent their one half share of the cost of the application.
By consent, in default of either parent doing all things and signing all documents necessary to give effect to order 21, a Registrar of the Federal Circuit Court of Australia may be permitted to execute all such things and acts necessary to enable a passport to issue for the child.
Each party bear their own costs of the proceedings.
The matter is removed from the Active Pending Cases List.
IT IS NOTED that publication of this judgment under the pseudonym Padmore & Weaver is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT newcastle |
No. NCC 1313 of 2017
| MR PADMORE |
Applicant
And
| MS WEAVER |
Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
BACKGROUND:
These are parenting proceedings brought pursuant to the provisions of Part VII of the Family Law Act (“the Act”). The child the subject of these proceedings is [X] , born 2010 and presently eight (8) years old.
The applicant in these proceedings is [X]’s father, MR PADMORE (“the Father”). The respondent to these proceedings is [X]’s mother, Ms Weaver (“the Mother”).
The proceedings come before this Court because the parents are unable to agree as to where [X] should live and what his care arrangements should be on a week-to-week basis. The Mother wishes to relocate [X] away from Town B in which general locality he has always lived. The Father seeks orders that [X] remain in the Town B locality and that the Father’s time with [X] increase. The Father presently spends time with [X] on alternate weekends, some Tuesday afternoons and on holidays. He wants to move to week-about care, by way of a brief, staged arrangement.
Essentially, the debate is whether [X] should live primarily with the Mother in the Newcastle area as she seeks, or whether he should live in a shared care arrangement in the Town B area where he has always lived.
The Mother has two (2) other children to her new partner, Mr J. These children are [C] born 2017 and [D] born 2018.
The Father is employed at (occupation omitted) where he seems, on all of the evidence, to be a very well-regarded employee and a valuable team member. The Mother is not employed outside of the home but primarily cares for [X], [C] and [D].
The parents’ relationship was brief and they had separated before [X] was even born and at a time when the Father did not know that the Mother was pregnant. Nor, for that matter, did she. The Mother subsequently relocated to the Location B area where she gave birth to [X]. Though not without some difficulty at times, the parties were able to reach agreement in relation to [X] whereby the Father spent time with [X] regularly.
The Father made a significant effort to be able to spend time with [X] when he was a baby, travelling to Location B each week to spend some time with [X]. The Mother facilitated this and it was an agreed course.
In 2012, the Mother relocated to Town B and the Father was able to spend some more time with [X], usually on weekends with the Mother present.
The Father’s time increased in 2015. Although the Father says that he was seeking more time with [X] than this, it is common ground that the 2015 arrangements were not the subject of any significant dispute between the parties and that [X] was able to enjoy a relationship with both of his parents. In particular, [X] was able to develop a relationship not just with the Mother but also with the Father and the paternal family.
Regrettably, things broke down in 2016 after the Mother formed a new relationship with Mr J. It appears that within approximately one (1) month or so of commencing this relationship, the Mother proposed to the Father that she be able to relocate away from the Town B region to live with Mr J who, it is common ground, has always lived in the Newcastle area and who works at Town C.
The Father, understandably, was concerned about this proposal and took objection to it.
Regrettably, the co-parenting situation between the parents deteriorated after this point. The Mother had hitherto been reasonable in terms of demonstrating some flexibility with [X] seeing his father and the paternal family - although certainly it would have potentially been open to her to allow [X] to spend more time with them than she did. That said, the Father did not actively take any steps to progress the matter in terms of spending more time with [X], and certainly, to be fair, [X] was spending regular time with his Father, including at (sport omitted) where the Mother would take him to be able to watch his Father play.
As indicated, the relationship between the parties unfortunately took a turn for the worse after the Mother re-partnered and expressed her desire to move away with [X] and the Father was understandably unhappy at that prospect.
THESE PROCEEDINGS & THE COMPETING PROPOSALS:
The Father commenced these proceedings in May 2017 and they have now come on for trial before me over the last two days.
In terms of the competing proposals, the Father’s proposed orders were set out in his Case Outline filed for the trial. Broadly speaking, he was seeking an order for equal shared parental responsibility. He was seeking to spend four nights out of each 14 nights with [X] for a period of three (3) months, graduating to five (5) nights, and then from 2019 he was seeking seven (7) nights a fortnight with [X], being an equal time arrangement. He also sought various orders about school holidays, communication and the like.
The Mother’s proposed orders were set out in her Response. In it she agreed that there ought to be equal shared parental responsibility for [X]. She, however, sought to relocate to Newcastle to be able to live with Mr J and for the Father to have alternate weekends and half holidays with [X]. She also sought various orders for communication and the like.
The Mother, if able to relocate as she desires, will be living some three and a half (3 ½) hours away from the Father.
The court suggested in the course of the trial that the parties see what agreement they could reach in terms of their respective fallback positions depending on the outcome of the case. Following discussions between the parties, the court now has had the benefit of a document provided to it which is marked “A”, which sets out a proposed minute of orders which is substantially agreed to by each party and to which I have had regard. Those substantially agreed orders represent a change to each parent’s previous proposals. They reflect that there is now significant agreement between the parents in terms of the more minor machinery-related matters (such as handover location in the event of relocation) and the extent of their agreement confirms the view that I formed in this matter – namely that the parents have retained a relatively good capacity to communicate and to cooperate for [X]’s best interests.
DOCUMENTS RELIED UPON:
At trial the Father relied upon his Case Outline, his trial affidavit filed 13 April 2018, his updating affidavit filed 7 September 2018, and the affidavit of Mr S Padmore (his brother) filed 7 April 2018.
The Mother relied upon her Case Outline, her Response filed 29 June 2017, her trial affidavit filed 13 April 2018, her updating affidavit filed 24 August 2018, and the affidavit of her partner Mr J filed 13 April 2018.
I have read and considered all of these documents, including the proposed minute of order referred to earlier and marked “A”.
BRIEF OBSERVATIONS ABOUT THE WITNESSES:
Starting with the Father, my view of him in the witness box was that he was essentially an honest witness. I have no doubt that he is a devoted Father who loves [X] very much. He is very close to his family in Location B. He is an outdoors person and as a father to [X], he has a lot to offer him.
I have absolutely no doubt that the Father is motivated by what he believes to be in [X]’s best interests in seeking that [X] remain living in the Town B area to be able to spend equal time with him.
It is clear that the Father used to have a somewhat better communicative relationship with the Mother than he does now. He agreed, in my view properly, that things became strained after the Mother approached him about relocating in 2016.
It would seem that he had not seriously contemplated moving to Newcastle himself - despite the child’s possible relocation being on the cards for upwards of two years now. I do not criticise him for this, but it is quite clear to me that he cannot - at this point anyway - come to grips with the idea that his son may potentially move away from him and his family at Location B.
He originally sought orders that if the Mother relocated, [X] would live with him and that he would facilitate [X] spending every third weekend with the Mother. When I asked him, if the roles were reversed, whether he would be content with seeing [X] every third weekend, he frankly conceded that he would not be. He agreed that although the travel was something of a burden on [X], it would be better for there to be alternate weekend time arrangement in place.
In relation to the Father’s brother Mr S Padmore, I did not see him give evidence in this case as he was not required for cross-examination. I note his unchallenged evidence that he is known by [X] as “(omitted)”, that he is married with two (2) daughters, (names omitted), who are [X]’s cousins and who no doubt love him and have a close relationship with him. I accept Mr Padmore’s evidence that the paternal family is extremely close, that they regularly spend time together and that the cousins love spending time together. (omitted sport) is a particular passion of [X] that is referred to by Mr S Padmore and I am satisfied that [X] is passionate about his (omitted sport).
Mr Padmore gives evidence in relation to the deterioration of the relationship between the paternal family and the Mother since the issue of relocation came to the fore. I accept his evidence that things are now somewhat strained and awkward as between he and the Mother, and as between other paternal family members and the Mother. [X], regrettably, is caught in the middle of that difficult situation.
Mr Padmore has the view that the Mother has always cut the Father’s time short and refused him any time outside of the recent family law orders. In my view, that is a somewhat harsh judgment to pass, but it probably reflects his close relationship with the Father and his own personal attachment to [X] and his perspective on what has been happening. Certainly, the Mother has shown a distinct reduction in her flexibility as to arrangements since the Father indicated that he would not consent to a relocation.
I have no doubt that Mr Padmore is a much loved uncle to [X] and that his family members, including all of the paternal family, are very special and important people in [X]’s life.
In relation to the Mother, I also considered that she was essentially an honest witness. She believes that her proposal is best for [X]. There is no doubt that she has been [X]’s primary carer for his whole life and essentially she has done a very good job at looking after him. I accept her evidence that she is struggling at the moment in terms of being separated from Mr J and that she has experienced a degree of financial hardship by virtue of the fact that she and Mr J have had to maintain two (2) separate homes.
I have no doubt that the travel between homes for the Mother and Mr J occurring on a weekly basis is something of a strain, particularly given that she has other young children, [C] and [D]. My sense of the Mother’s evidence is that she had some resentment at the Father, which is understandable from her perspective, in that she could not understand why he refused to allow her to relocate.
To be clear, the Father was acting quite properly in not agreeing to any relocation in 2016 and it was quite understandable, particularly at that time, that he would have had concerns about [X] moving away when the Mother’s relationship was so new.
Tendered as an exhibit in these proceedings is exhibit M-1 which consists of some text messages exchanged between the Mother and the Father from early to mid-2016 in relation to the relocation. It is not possible to put any more precise date on the text messages, but it is common ground that this is the timeframe when the messages were sent. It is clear from these messages that the Mother was pressing the Father about moving away at that time and that the Father’s response was that [X] was very happy in Location B, which was shown by his (omitted sport) and school progress. The Father stated that just because the Mother thought that she had found someone did not mean that she could move away with [X]. The Father suggested to the Mother:
“If this new blow in is so perfect, he can move here.”
When the Mother queried the term “new blow in”, the Father responded:
“When it’s a long-term relationship, as in a few years, then yes. I’m not letting [X] move his life around just because you think you’ve found love.”
These texts were no doubt sent very genuinely by the parents. From the Mother’s perspective, the Father’s text held out the prospect that he would agree to the relocation if the Mother’s relationship became more solid. There is no other way to read his text message.
In the time since those texts were exchanged, the relationship between the Mother and Mr J has in fact solidified, and he and the Mother now have two (2) children together, [C] and [D]. From the Mother’s perspective, the Father’s subsequent refusal to consent to her relocation amounts to him reneging.
The Mother does not appreciate why, the parents’ relationship having come to an end, the Father could not understand / give in to / acquiesce in, her perspective that she is entitled to re-partner and to get on with her own life.
From the Father’s perspective, he was concerned that the Mother would even consider moving away from what has been a stable, settled and loving environment for [X] in Location B, in order to pursue love with her new partner.
While it is essential that parents act in a child-focussed manner as best they can at all times, equally the Court cannot expect perfection from parents in circumstances where each feels emotionally engaged and challenged by the other parent’s stance.
Having observed the Mother in the witness box and having considered the material set out in the Father’s trial affidavit, I consider that the Mother was “reactive” following the Father’s refusal to agree to her relocation. Her reactivity gives rise to some concern, a point pressed by Ms Carty on behalf of the Father, that the Mother may not foster the relationship between [X] and the Father as fully as she ought to in the event the Court is minded to consider allowing her to relocate. But this is not my impression of the Mother’s evidence and, indeed, historically she has promoted the relationship with the Father and [X], albeit on terms that to some extent she dictated.
The Mother has been able to properly foster a loving relationship between [X] and the Father right up until recent times. I accept that her co-parenting “flexibility” has greatly diminished since these proceedings have commenced and since the spectre of relocation has become more challenging and emotionally fraught for her, but I do not consider this to be a long term issue on her part. Indeed, her past history is that she has promoted the relationship between father and son.
The Mother said she would not leave [X] behind in the event that the court did not consider that relocation was in [X]’s best interests. Like the Father, I do not consider that she has seriously contemplated the prospect of not obtaining the outcome she seeks in this litigation.
Turning to the Mother’s partner Mr J, I considered, like the other witnesses in this case, that he was honest. He did not appear to have any particular “axe to grind” in the proceedings. He certainly did not come across as harbouring any resentment towards the Father whatsoever.
I am satisfied that Mr J works hard and that he is, in a financial sense, a good provider. His evidence is that he is committed to the Mother and that they intend to marry whatever the outcome of the proceeding. He has a (omitted) qualification and works in the coal industry. He has been employed in his current role for some fourteen (14) years and it is somewhat of a specialised role. It provides him with steady and reliable employment from which he earns between $80,000 and $110,000 per annum. Depending on his weekend work, the income is at the higher end of that range, but his essential base rate from Monday to Friday will be around $80,000 per annum.
He has made some inquiries about possibly moving to Town B if he had to in the event that the relocation was found not to be in [X]’s best interests. His evidence was that, although there are some quarries in the local area, the work is less reliable than what he is used to. Although he said that he would have to adapt and see how things go and would “always be there for the Mother” he did not have any particular plan which would enable him to stay in the Town B area on a full-time basis. He would, inevitably on his evidence, have to work away from Town B for significant periods of time.
I turn lastly to the evidence of the Family Report writer, Ms A. The Court had the benefit of her Family Report which was admitted into evidence and marked as exhibit C-1.
Ms A’s report, in my view, was even-handed. She interviewed the parties. She reviewed the material and she also conducted some family observations of [X] with his two (2) parents.
She noted the Mother’s complaint that, in the years leading up to this dispute, the Father could have spent more time with [X] had he wished to. She noted that the Mother considered that her relocation was in [X]’s best interests and that the Mother considered that if she relocated the Father would still be spending the same amount of time with [X] that he was presently spending now.
The Mother stated that she believed [X] would be happy if the Mother relocated as he would see the Mother happy. The Mother complained, understandably, that on the present arrangements where she lived at Location B, Mr J was not able to spend as much time with their daughter, [C] - noting that at this time [D] had not yet been born. The Mother spoke to Ms A about [X] being anxious and experiencing what seemed to have been panic attacks and it is common ground that he has experienced these problems in more recent times.
The Mother would seem to have taken a somewhat simplistic approach to how easy it would be for [X] to relocate to Newcastle when talking to Ms A. She downplayed the significance of the move, and Ms A had some concerns about whether the Mother was behaving potentially somewhat manipulatively in relation to the relocation, particularly in relation to buying a dog for [X] that was only available to him in Newcastle and not in Location B. The dog was a potential attraction for [X] to want to move to Newcastle.
The paternal grandparents were interviewed by Ms A and they corroborated that there had been a deterioration in the relationship between the Mother and the paternal family since the relocation had emerged as an issue. They were supportive of [X] staying in Town B for understandable reasons and of the Father having greater time with [X].
Mr S Padmore was interviewed and I have already addressed his evidence briefly and I don’t propose to repeat it here.
Mr J told Ms A that he worked in a very specific role which was not so transferable to other industries, which is consistent with the evidence that he gave in the witness box, and which I accept.
In terms of the Father’s interview, he attended with the paternal grandparents and, as I have indicated already, I have no doubt that he has a loving and very close relationship with his paternal family. The Father was pressing Ms A for an order for shared care, referring to his employer being flexible and able to provide him with the time necessary to support that arrangement. He told Ms A – and I accept - that he has regular gatherings with the extended paternal family and that [X] has a loving and close relationship with them.
Like the Mother, the Father also raised the issue about [X] apparently suffering from anxiety, which problem is of recent advent. I agree with Ms A’s observation that historically the parents have been able, relatively amicably, to work out the needs of [X] prior to the issue of relocation coming to the fore but that things have deteriorated since that time.
When [X] was interviewed by Ms A, he told her that:
“He wanted to let the judge know that he would like to live with his family. [X] clarified that family meant Ms Weaver, Mr J and [C]. [X] disclosed that he was worried as he wants to be with his family, but he is concerned that the judge may not rule this way. [X] stated that if he spends more time with Mr Padmore, [X] is worried that he will forget [C] and that he loves [C] and would miss her.”
Ms A noted that [X] refers to the Mother, Mr J and [C] as his family. Presumably this concept now extends to [D], who was not yet born at the time of the Family Report.
Ms A’s Family Report noted the difficulty that the Mother did not want to remain living in Town B with [X]; that if she was effectively obliged to do so by way of a court order then she would be a single mother of three without any support. Ms A was concerned that this could lead to various issues, including depression, as the Mother would have to manage on her own. Ms A was further concerned that in this event the Mother may become resentful of the Father, putting more pressure on the relationship between the parents and on their capacity to cooperatively co-parent [X].
Ms A was also concerned, however, about the prospect of [X] coping with an adjustment to week-about time as sought by the Father. She said that it was something that he could adjust to over time but that it was very much an individual thing to be determined child-by-child. Certainly, it was not [X]’s wish to move to such an arrangement at this time and Ms A’s view was that the child’s primary relationship is with the Mother, which is understandable given that she has always been his primary carer.
As indicated, the Mother does appear to have downplayed the significance to [X] of the move, and, in my view, the Mother has a “blinkered” view in this respect. It is a blinkered view that reflects her adamant desire to be able to relocate. Ms A was concerned that the relationship between the parents had deteriorated somewhat and that it was critical that the Mother be able to properly facilitate the Father’s relationship with [X] going forward - particularly in the event that the court was minded to make an order that, effectively, permitted her to relocate [X].
Ultimately, Ms A’s Family Report recommendations were that the parents share parental responsibility for [X], that [X] live with the Mother and that she be able to relocate with [X] to Newcastle.
Overall, I considered Ms A’s evidence to be of assistance to me in this case. One issue that concerns me, in particular, is that [X] is now experiencing anxiety, which is a problem of recent advent. It seems to me that he is well aware of the competition now in terms of what each parent wants for him in his life, each for their own understandable reasons seeking the orders that they do. [X] would benefit from this litigation concluding and from there being certainty in terms of outcomes going forward.
THE LAW:
These proceedings are conducted pursuant to the provisions of Part VII of the Family Law Act. Pursuant to Part VII, the court has power to make “parenting orders” with respect to children, as that term is defined in section 64B. There are a number of key objects and principles which underpin the operation of Part VII, and these are set out in section 60B of the Act. I do not propose to restate them here.
When deciding whether or not to make a particular parenting order, the Act requires that the court regard the best interests of [X] as the paramount consideration: section 60CA; section 65AA.
In arriving at a best interests determination, the Act prescribes mandatory considerations in section 60CC. There are two (2) primary considerations which are set out in subsections (2)(a) and (2)(b). Subsection (2)(a) refers to the benefit to the child of having a meaningful relationship with both of the child’s parents. Subsection (2)(b) refers to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In this case the Court is dealing with two loving parents, and there are no risk issues engaging subsection (2)(b). There is no suggestion of physical or psychological harm ever having been inflicted upon [X] due to the actions or neglect of his parents, which favourably distinguishes [X] from many children about whom this Court has to make decisions. He is a very lucky little boy.
Returning to the mandatory best interests considerations, section 60CC(3) goes on to prescribe fourteen (14) so-called “additional” considerations. The final additional consideration in contained in section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant – which is clearly in the nature of a “catch-all” provision designed to accommodate the facts of each individual case and family that come before the court.
Parental responsibility is a feature of the legislation, conceptually. Parental responsibility is defined in section 61B of the Act as:
all the duties, powers and responsibilities and authority which, by law, parents have in relation to children.
By section 65DAC, parents who share parental responsibility for a child are obliged to consult with each other about major long-term issues and must make a genuine effort to come to a joint decision.
Major long-term issues are defined in section 4 of the Act. Though the definition is an inclusive one, the statute expressly excludes from the definition a decision by a child’s parent to enter into a relationship with a new partner. Such a matter is not, of itself, a major long-term issue by reference to the statutory definition.
Section 65DAE of the Act provides that, subject to contrary provision in a parenting order, a person who spends time with a child pursuant to an order may make day‑to‑day decisions about a child’s care without consulting a person who has parental responsibility.
Section 61DA of the Act imports a rebuttable statutory presumption that, when making a parenting order for a child, it is in the child’s best interests for the parents to be allocated equal shared parental responsibility. In this case both parents agree that there ought be an order for equal shared parental responsibility, and I am confident that such an order is appropriate and in the best interests of [X], and such an order will, indeed, be made by consent. There is nothing in the evidence to rebut the statutory presumption that equal shared parental responsibility would be in [X]’s best interests. The evidence overwhelmingly supports the making of an order for equal shared parental responsibility.
Once the court makes an order for equal shared parental responsibility, then this engages the statutory pathway set out in section 65DAA of the Act as identified by the Full Court in Goode & Goode (2006) FLC 93-286. Put shortly, this Court must consider, as the first option, making an order for [X] to spend equal time with both parents if such an order is in the best interests of the child and reasonably practicable. In terms of reasonable practicability, the leading decision is that of the High Court of Australia in MRR & GR (2010) FLC 93-424.
In this case the Mother’s primary application is to be able to relocate with [X]. The court must weigh that up against the prospect of an equal time order as sought by the Father. Pursuant to section 65DAA of the Act, the court must consider, as the first option, making an equal time order.
Before doing so, I will turn briefly to some authorities that have grappled with the issue of relocation.
The Full Court[1] said in Zahawi & Rayne [2016] FamCAFC 90:[2]
[1] Thackray, Murphy and Austin JJ.
[2] At paragraphs 43 – 48 of the joint judgment. Footnotes have been omitted
“[C]ounsel for the father sought to place particular reliance upon what was said about the position of “unchallenged custodians” in U v U and in particular what was said by Kirby J in referring to decisions of courts of appeal in Canada and England. Conformably with what had been said by the High Court in AMS that a parent seeking to relocate with children need not show “compelling reasons” for the relocation, the Justices in the later decision of U v U, and in particular Kirby J, referred to long-standing English authority, the emphasis of which can be seen in what Sachs LJ said in Poel v Poel:
…The way in which the parent who properly has custody of a child may choose in a reasonable manner to order his or her way of life is one of those things which the parent who has not been given custody may well have to bear.
As Kirby J also points out, that central proposition has been reinforced by curial statements to the effect that, for example:
[W]hen one parent has been given custody it is a very strong thing for this court to make an order which will prevent the following of a chosen career by the parent who has custody.
and:
[T]his line of authority shows that where the custodial parent herself, it was the mother in all those cases, has a genuine and reasonable desire to emigrate then the court should hesitate long before refusing permission to take the children.
His Honour went on to say:
This Court, and other courts of Australia, are not bound by the decisions of foreign courts on this or any other subject. However, where (as here) Australian legislation has substantially followed a precedent in English legislation, it is obviously sensible to take into account the course of judicial authority in that country dealing with the same legislation. So much was acknowledged in AMS, where the decision in Poel was examined in my reasons with which, on the decisive point, Gleeson CJ, McHugh and Gummow JJ agreed.
However, as his Honour was also anxious to point out, and as is clear from the terms of the Act itself, the application of those propositions does not give rise to any presumption or additional onus. Rather, they posit the acute issues as to the best interests of the children within legitimate parental expectations and desires consequent upon marriage breakdown and the need to construct lives for parents and children consequent thereto.
All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U:
…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
“Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.”
Each case must be determined on its own facts. The Mother does not have to establish compelling reasons for her move nor is there any onus upon her to do so. Equally, the Father has no specific onus upon him to show that it is in the best interests of [X] to spend equal time with both parents. The court has to weigh up each parent’s proposal by reference to the section 60CC factors informed by the objects and principles set out in the Act.
I would also refer to the decision of the Full Court[3] in Adamson & Adamson (2014) FLC 93–622. I particularly refer to paragraphs 65 and 66 of the joint judgment where their Honours said:
“It follows from the decisions of the High Court in AMS & AIF (1999) 199 CLR 160 and U & U (2002) 211 CLR 238 that in parenting proceedings there is no requirement for a parent to demonstrate “compelling reasons” to live where the parent proposes to live, be that a proposed new location or, axiomatically, in their current place of residence. Here, the mother was no more required to demonstrate “compelling reasons” for her choice to remain living in Town S than was the father to do so with respect to his choice to live in Town C or for either to not live anywhere else. The same may be said of their respective choices of employment, the mother’s in Town S and the father’s in Sydney. The Court must be sensitive to the wishes and rights of parents to live and work wherever they desire. (U & U at [82] citing AMS v AIF)
These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.”
[3] Ainslie-Wallace, Murphy & Kent JJ
In U & U [2002] HCA 36 the High Court held that the court is not strictly bound by the competing parenting proposals of each party; subject to affording each party procedural fairness it can craft different orders if required so as to meet the best interests of the child in any given case.
In Godfrey & Saunders [2007] FamCA 102, Kaye J, sitting as the Full Court, held that:
“…[T]he legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.”[4]
[4] Paragraphs 33 and 36 of the judgment respectively
In Mazorski & Albright (2007) 37 Fam LR 518, Brown J referred to the concept of a “meaningful relationship” as being a relationship which is important, significant and valuable to a child. It is a qualitative adjective, not a strictly quantitative one.
This is a statement of the law, and consistent with the evidence of Ms A in cross-examination when she said that:
“The quality of the relationship is a very significant aspect to what is a meaningful relationship.”
and:
“If a child moves away from a parent, then this may result in some loss of the relationship, but it is the quality of the relationship that matters, not just the quantity of the relationship.”
Relocation cases generally always involve two parents, each of whom has a legitimate claim of right. In this particular case the Father says that [X]’s best interests are served by [X] remaining living in Town B where he has always lived and where, apart from some recent anxiety that he is experiencing, he is thriving and has the benefit of relationships on both sides. The Mother’s case is that [X] would be better living with her, Mr J, [C] and [D] as part of a family unit at Newcastle.
BEST INTERESTS:
I turn now to the best interests considerations set out in section 60CC of the Act.
The first primary consideration is the benefit to [X] of having a meaningful relationship with both of his parents. In my view, there is no doubt whatsoever that [X] would benefit from having a meaningful relationship with both parents. Both of [X]’s parents love him and are devoted to him, and in that sense, he is a very lucky boy indeed. I have no doubt whatsoever that [X] would benefit from continuing a meaningful relationship with both of his parents. An equal time order represents the optimum amount of time that [X] could spend with his Father and, in a sense, it is the “most” meaningful order that can be made quantitatively, and also probably qualitatively as well.
In the event of [X] relocating with the Mother, in my view, he would still retain a meaningful relationship with the Father, but it would not be the optimal relationship for them. While the Father expresses some concerns about the Mother not promoting his relationship with [X] in the event she moves, there is no suggestion that she has breached the Court orders, and her own evidence is that the Father is a great dad for [X] and loves him very much, and I accept that evidence without hesitation.
As indicated, the other primary consideration is protection from harm, and that is a factor I do not need to trouble myself with in this case.
I turn now to the additional considerations set out in section 60CC(3).
In terms of [X]’s views, these have been outlined in the Family Report and touched upon by me earlier. I accept that those views were expressed some months ago now, but I have no contrary reliable evidence. In my view the only evidence before me is that [X] wants to continue to live primarily with his Mother and with his sisters. He does not want to move away from them at this point in time, and he does not, at this point in time, seem to want to graduate to anything like equal time with the Father. That said, his wishes are but one factor in this case.
In terms of [X]’s attachments to family, I am comfortably satisfied that [X]’s primary attachment, understandably, is with his Mother. He also has a loving and close relationship with his sisters and with the Father. I have no doubt that he has loving and close relationships with all of the extended family members, and although it is somewhat disappointing that he apparently does not feel comfortable at this point in time talking to his Mother about his paternal cousins, I see this as being related to the very difficult circumstances that the parties presently find themselves in, of which [X] is well aware and he himself is suffering as a result.
The relationships [X] has with family are set out in paragraphs 101 and 102 of the Family Report, and I accept that evidence, particularly, that [X] does not want to be away from his sister [C] for any length of time - which is reflective of their relationship. As indicated, I am comfortably satisfied that [X] also has very close relationships with his paternal family members.
In terms of subsection (3)(c) the Mother advances a faint criticism that the Father could have spent more time with [X] than he has to date. I do not make any adverse finding about that in terms of the Father.
The reality is that the parties were able to navigate what were emotionally difficult circumstances when [X] was younger and, by and large, they did a very good job. I do not make any adverse finding about the Father. Nor for that matter do I make an adverse finding about the Mother, although she has reduced her flexibility since her proposed relocation was refused and the parties have been in litigation. The reality is that she has continued to foster a relationship between the Father and [X].
I would also record here that the Father has made a consistent effort to spend time with [X], including, when he was very little, driving to and from Location B. I am comfortably satisfied that he has done what he can to spend time with [X] throughout his life.
Each of the parents maintains [X], in reference to section 60CC(3)(ca), and it is common ground that the Father pays child support.
In terms of section 60CC(3)(d) much of the heat in this case relates to this additional consideration.
It seems to me that, whatever the outcome of this case, [X] has some big adjustments coming in his life.
I am satisfied that the present situation as between the parents has become to some extent toxic since the relocation was declined by the Father. To be clear, I am not critical of the Father for declining to agree to the relocation, nor am I critical of the Mother for wanting to pursue it for her reasons. I accept that there is now a degree of tension between the maternal and paternal family, and I do not, for the purposes of these reasons, seek to ascribe any particular blame in this respect. In my view, it is an understandable though unfortunate breakdown in relationships arising out of each party’s sense of disappointment and defensiveness about their future life, particularly with [X], potentially being on hold.
I am comfortably satisfied that each party feels quite threatened and anxious about the outcome of these proceedings, and regrettably, [X] has suffered as a result.
The present circumstances in Town B involve the Mother travelling, essentially, each weekend to Newcastle and maintaining two (2) separate homes, although the evidence of Mr J is that they will have to make something happen in terms of their relationship in the event that the relocation cannot occur. I do note that Mr J is in a reliable long-term position with an employer in the Town C region for whom he has been working now for fourteen (14) years. I do not presently see any clear plan for Mr J to be able to transition to working from Town B or, if he can, how that arrangement might work in circumstances where he would, on his own evidence, have to be away for at least half of the time.
Mr J’s present work hours are significant, but if he and the Mother lived together in Newcastle he would propose to be home with the Mother as part of the household each night, albeit from 6 pm. In my view this is a very different situation to the parties living together in Location B, where Mr J would be away for perhaps half the time and the Mother would be in a position of, essentially, being a single mother during those times. In Town B the Mother and Mr J would also experience a degree of financial pressure and stress given the uncertainty around Mr J’s employment situation based at Town B and given that he would, effectively, be walking away from a stable and reasonably well-paying job in Town C.
I am concerned that if the Mother remains in the Town B area that she may continue to experience some resentment against the Father even if Mr J is eventually able to join her in Location B. I am not satisfied that Mr J could do so in the short term, and, in my view, it is not ideal for [X] to be in a situation where his mother, rightly or wrongly, feels that her hopes and dreams of living with Mr J in Newcastle, where they have his family support, have been dashed in this way.
If the Mother were to move to Newcastle to live with Mr J, then there is no doubt that the Father would have to forego the time that he spends with [X] during the school week, and it would also mean foregoing the opportunity to increase his time with [X], possibly equal time as he is seeking.
That said, in Town B, [X] would be able to remain at the same school and to continue to play (omitted sport) with his teammates, which he clearly enjoys. He would also have the opportunity to spend quality time with his paternal family at a greater level than would be possible in the event that he relocates.
As indicated, however, it does not appear at this stage that, on the evidence before me, [X] is ready to transition to anything like equal time with the Father in any event. I say this having regard to his primary attachments and, to a lesser extent, to his wishes.
Unless the move by Mr J to Town B were to occur in the short term, which I think is unlikely in the event that the Mother’s application to relocate was unsuccessful, I fully expect the Mother will continue travelling to Newcastle every weekend (or most weekends). She and Mr J will be experiencing the financial pressure of maintaining two (2) households, together with the travel costs and the significant physical and emotional exhaustion that would inevitably be entailed by that arrangement, particularly noting the two (2) younger children [C] and [D].
If the Mother could move to Newcastle her unchallenged evidence, which I accept, is that there is a school within walking distance of Mr J’s home, and in that sense it would be somewhat easier for her to get [X] to and from school than it is in Location B.
In Newcastle, the Mother would also have support from Mr J’s family, who I have no doubt on the evidence have also developed a good relationship with [X]. I am concerned that if the Mother was to remain in Town B that for much of the time she would be, in a practical sense, a single mother with three (3) children and little or no practical support at least until Mr J arrives. In my view Mr J’s arrival in Town B is uncertain in terms of his employment and noting that he would also have to then be the primary financial supporter of the Mother but in an entirely new and untested employment role, one which he cannot readily identify with any precision at this point in time but, as best he can estimate, would involve him being away for half of the time.
Ms A has some concerns about the Mother’s attitude towards the Father. The Father also expresses some concerns in this respect, particularly in the event the Mother is able to relocate. The Mother has been reactive on occasion and the messages that have been exchanged between the parents, which are in the Father’s affidavit, show her to have been reactive – but in my view, her reactivity is a direct result of what she perceives is the unreasonable approach of the Father not agreeing to her moving in the circumstances. I do not myself consider that the Father’s denial of her request to relocate has been unreasonable, but certainly that is the Mother’s perception.
One possibility that also arises in this case is: if the Mother were to relocate to Newcastle, could the Father follow? It seems to me that this is possible given that he works for a national employer and has, clearly, a very good work relationship with his superiors.
In terms of subsection (3)(e), there are practical difficulties and expenses involved in the event that the Mother relocates to Newcastle with [X]. The parties have been able to agree upon a changeover location, but I accept that there are always issues involved with travel. The Mother would have some assistance from Mr J’s family and has shown some capacity to put herself out for travel in the past.
Certainly, no practical issues whatsoever arise pursuant to subsection (3)(e) if the Mother remains in Location B.
One regrettable aspect of [X]’s relocation, if the Court was of the view that it is in his best interests, is that the Father does not have anywhere to stay in Newcastle. This is unfortunate because it, essentially, limits the extra time that he could potentially spend with [X]. For example, if the Father cannot stay the night in Newcastle then for him to come down and watch [X] play a (omitted sport) game on a weekend would involve a seven (7) hour round trip, which is a very significant impost.
In terms of subsection (3)(f), the Mother has a proven capacity to care for [X] and, in my view, has done an excellent job in doing so. To the extent that she has displayed a more negative or, arguably, at times defensive or even hostile reaction to the Father, I have found that this is reactive to the circumstances that she finds herself in, as I have already indicated.
The Father, in contrast, is untested as a primary carer, and I do not say this to be critical of him. I have no doubt he loves [X] very much, but the reality is that the Father would require significant assistance from his family even if he had an equal time arrangement, and the reality is that [X] would be in the care of others for some of that time rather than spending that time with the Mother or with siblings, noting the bond that [X] has, particularly with [C], as observed by Ms A.
In terms of subsection (3)(g), it is clear enough that [X] is an outdoors child who enjoys playing (omitted sport). One disadvantage to the relocation is that if he were to move to Newcastle, then he would have to miss significant numbers of games during the (omitted sport) season if he travelled away with his Father. The alternative would be that the Father would have to forego some time with [X] to enable him to play (omitted sport) in Newcastle, which perhaps he might be willing to do for grand finals or other significant games, but it would be a significant impost upon on the time that the Father could spend with his son. If [X] were to remain in Location B, then subject to the Mother’s continued travel to and from Newcastle,[5] he could have the benefit of participating in (omitted sport) to the maximum extent.
[5] See paragraph 78 of these Reasons.
In terms of section 60CC(3)(h), I find that the Mother has a positive attitude towards the parenting of [X] and has, historically, promoted the Father’s relationship with him, including enabling him to participate in family events and the like over the years, leading up to more recent times when their circumstances became more strained as a result of the relocation issue. I am comfortably satisfied that the Father is committed to [X] as well and that he will make every effort to spend quality time with his son as best that he can whatever the outcome of the proceedings. Obviously, he can spend more active and more involved time with [X] based in Town B than he can with [X] based in Newcastle.
In terms of section 60CC(3)(l), it is difficult, if not impossible, for me to make a finding as to whether an equal time arrangement would be more likely to lead to future litigation or a relocation would be more likely to lead to future litigation. I do not consider that the evidence points in one particular direction or the other.
In terms of section 60CC(3)(m), the catch-all provision, one issue that stands out in this case is that [X] has two (2) younger siblings, [C] and [D], who are both very young and who have been, necessarily at this time, living away from their own father Mr J. They are a part of [X]’s family unit, and although they are not the children the subject of these proceedings, it is clear enough to me that they have been casualties of the current circumstances that they have found themselves in, which is almost certainly not in their best interests.
CONCLUSION:
In the end, I am not satisfied that it is in the best interests of [X] to spend equal time with the Father. His attachment and connection with the Father do not warrant such an order. It is not in his best interests.[6]
[6] Noting also my earlier findings in respect of s60CC(3)(d).
It is in [X]’s best interests - indeed critical - for [X] to have regular time with the Father and to have a meaningful relationship with him.
I am satisfied, on all of the evidence in this case, that it is in the best interests of [X] that he be permitted to relocate with his Mother to Newcastle but that he spend regular time with his Father, as envisaged in the document which is handed up as exhibit “A”.
I have no doubt that this decision will be deeply disappointing to the Father, but that is my assessment of the evidence that is before me.
The court so orders.
I certify that the preceding one hundred and twenty seven (127) paragraphs are a true copy of the reasons for judgment of Judge Betts.
Date: 27 September 2018
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