Paltrow and Sizemore
[2008] FMCAfam 974
•29 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PALTROW & SIZEMORE | [2008] FMCAfam 974 |
| FAMILY LAW – Children – relocation – mother wishes to relocate with child to Queensland – mother relocating irrespective of Court’s decision – both parents are responsible, committed and capable parents – relocation principles – best interests of child. |
| Family Law Act1975 (Cth) ss.60B, 60CA, 60CC & 65DAA |
| Morgan & Miles (2007) FLC 93-343 AMS v AIF; AIF v AMS (1999) FLC 92-852 A v A; Relocation Approach (2000) FLC 92-035 U v U (2002) 211 CLR 238, (2002) FLC 93-112 P & P [2006] FMCAfam 518 Bolitho and Cohen (2005) FLC 93-224 Godfrey & Sanders [2007] FamCA 102 M & S (2007) FLC 93-313 Bright and Bright v Bright and Mackley (1995) FLC 92-570 |
| Applicant: | MS PALTROW |
| Respondent: | MR SIZEMORE |
| File Number: | HBC 46 of 2008 |
| Judgment of: | Roberts FM |
| Hearing dates: | 27 & 28 August 2008 |
| Date of Last Submission: | 28 August 2008 |
| Delivered at: | Hobart |
| Delivered on: | 29 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Smith |
| Solicitors for the Applicant: | PWB Lawyers |
| Counsel for the Respondent: | Mr W Ayliffe |
| Solicitors for the Respondent: | Simmons Wolfhagen |
ORDERS
THAT MR SIZEMORE (“the father”) and MS PALTROW (“the mother”) have equal shared parental responsibility for [X] born in 2002 (“the child”).
That the child is to live with the father.
That the child is to spend time with the mother as agreed but failing agreement as follows:
(a)In Queensland for each of Easter, May/June and August/September Tasmanian school holidays.
(b)In Queensland for half of each Tasmanian long summer school holiday as agreed but failing agreement for the first half in those years when the holiday starts in an even numbered year and the second half of such holiday when the holiday starts in an odd numbered year.
(c)For blocks of up to seven (7) days when the mother is in Tasmania during school terms on the basis that the mother is to give the father at least fourteen (14) days notice of her intention to return to Tasmania for such purpose.
That for the purposes of the child’s travel to and from Queensland the parties shall each contribute half of the cost of the child’s airfares with the father being responsible for the airfares of any accompanying adult when he travels to Queensland and the mother being responsible for the airfares of any accompanying adult when he returns to Tasmania.
That the child is to be able to communicate with the mother at reasonable times when he is with the father by telephone and/or internet video conferencing.
That the child is to be able to communicate with the father at reasonable times when he is with the mother by telephone and/or internet video conferencing.
IT IS NOTED that publication of this judgment under the pseudonym Paltrow & Sizemore is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
HBC 46 of 2008
| MS PALTROW |
Applicant
And
| MR SIZEMORE |
Respondent
REASONS FOR JUDGMENT
The issues
In this matter the author of the family report said;
Clearly there can be a no win/win situation.
The proceedings involve competing applications in relation to a little boy, [X], who was born in 2002, so he will be six in a couple of months’ time.
[X] is quite obviously a delightful little boy. Everybody says so. While I would expect his parents and his grandparents to say it, even unbiased commentators say it as well.
·The Family Report writer, Ms Fowler, describes him as “a delightful youngster who has strong loving relationships with both his parents”.
·His teacher speaks of him glowing terms as well. In his mid-year report she gives him excellent ratings in numeracy and literacy and describes him as a helpful and happy class member.
It is therefore sad that a court has to make a decision in relation to [X]’s future that cannot result in “a win/win situation”. Indeed, the stark options presented to the court suggest that one parent will “win” and the other will “lose”. Unfortunately, it also appears that [X] will lose something either way.
The applicant is MS PALTROW (“the mother”) and the respondent is MR SIZEMORE (“the father”).
The mother wants to move to Queensland with [X] but the father does not want [X] to go. The mother tells the court that she will move to Queensland even if I will not allow [X] to go.
The mother’s proposal is that she be able to move with [X] to Currumbin on the Gold Coast to join her husband, Mr M, whom she married in November last year.
Essentially, she proposes that the father spend time with [X] during the Queensland school holidays and also that [X] be able to communicate with his father by Skype video conferencing on a daily basis. (That is in her Case Outline and in her affidavit, although it was not originally in her application.)
Neither the mother's application nor her Case Outline sets out a “fall‑back position” in the event that the court does not accede to her request that [X] be allowed to relocate to the Gold Coast.
The father clearly opposes a move by [X] to Queensland. He originally proposed that [X] remain in Tasmania and live on a week and week about basis with each of his parents. However, that proposal had been made before the mother stated that she is going to Queensland even if [X] is not allowed to go. During the hearing he put forward a proposal that essentially would allow [X] to spend most of his school holidays with the parent with whom he is not living. That proposal is set out in Exhibit “F2”.
Clearly, the father's primary position is that [X] should live on a shared equal time basis with each of parents but, if the mother is insistent upon a move to Queensland, then [X] should live with him and spend most of his holidays with her. If he is not successful in relation to that, his “fall-back position” is that [X] should spend most of his school holidays with him.
The father also proposes that there be telephone and Skype-type communication.
Background
The father is 39 years old and the mother is aged 26. They lived together from 2000 until January 2005 and [X] is their only child.
In November 2007, the mother married Mr M. He is 42 years old and he has children from previous relationships. Relevantly he has a son, [Y], who is 13 and a daughter, [Z], who is 11. Last year they moved from Tasmania to Queensland with their mother, [N], and her new partner.
The unchallenged evidence is that when he was four years old [Y] was abducted and told he would be cut up with a knife. Not surprisingly, he was emotionally scarred by the experience but, according to reports, he is now a happy and bright boy who loves surfing, fishing, sailing and swimming. He is a talented musician for his age. [Z] is described as a strong, fit girl who enjoys outdoor activities.
The unchallenged evidence is also that [Y] spends most of his time with the mother's husband, Mr M, and [Z] appears to spend most of her time with her mother, but each spends time with the other parent.
It is also clear and unchallenged that when [Y]’s and [Z]’s mother decided to move from Tasmania to Queensland, the mother’s husband, Mr M, decided to move there to be close and available to [Y] and [Z], but particularly to [Y].
When the mother and father separated they were able to agree upon a sharing agreement in relation to [X]. It was essentially fifty-fifty, but that became a 9/5 fortnightly arrangement when [X] started kindergarten with [X] spending nine nights in the fortnight with his mother and five with his father.
The father says that there was an agreement between them to revert to the fifty-fifty arrangement this year when [X] commenced full-time schooling. The mother says there was no such agreement. In any event, it is clear that the 9/5 arrangement per fortnight has continued this year.
The mother and the father currently live in close proximity.
The mother lives with her own parents, who are very involved in [X]’s life. Similarly, the father’s parents live nearby and also are very involved in [X]’s life. [X] is indeed fortunate to have both sets of loving grandparents very involved in his life and living close to where he lives.
[X] is in “Prep” at [R] Primary School and the clear evidence is that he is doing very well there and both parents consider it to be a very good school.
A Family Report was ordered by me and Mrs Fowler provided that Family Report on 2 May 2008. It was received into evidence the day before yesterday and Mrs Fowler was not required for any cross‑examination.
The evidence
The mother relied upon affidavits from herself, her husband and her mother. All were cross-examined. The father relied upon affidavits from himself, both of his parents and two friends. Only he and his father were cross-examined.
What is clear from the totality of the evidence, including the Family Report is that [X] is a much loved, happy, well adjusted little boy who has two very good parents and four involved and loving grandparents.
It is clear that the mother has made her decision to move to Queensland firmer since the interviews for the Family Report. It is quite clear that, at the time of those interviews, Mrs Fowler was led to believe that her remaining in Tasmania was still one of the available possibilities. However, it is clear that that is now not the case.
Relevant Law
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration[1].
[1] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
· ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
· protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
· ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
· ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [2]
[2] See subsection 60B(1)
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
· children have the right to know and be cared for by both their parents; and
· children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
· parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
· parents should agree about the future parenting of their children[3].
[3] See subsection 60B(2)
In determining what is in a child’s best interests I must consider the matters set out in section 60CC. It refers to “primary considerations” and “additional considerations”.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence[4].
[4] Subsection 60CC(2)
The court must also take into account those of the “additional considerations” that are relevant[5].
[5] Subsection 60CC(3)
The law in relation to relocation of children is very fully set out by Boland J in Morgan & Miles[6]. I do not propose to restate all of what her Honour said. However, I think that it is worth restating what she said at paragraphs 80 and 81:
It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount but not sole consideration;
- that a parent wishing to move does not need to demonstrate “compelling” reasons;
- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
[6] (2007) FLC 93-343
remain valid.
What the legislation now requires is:
- consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
- if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
Those “earlier core principles” to which her Honour referred come from decisions such as AMS v AIF; AIF v AMS[7], A v A; Relocation Approach[8] and U v U[9].
[7] (1999) FLC 92-852
[8] (2000) FLC 92-035
[9] (2002) 211 CLR 238, (2002) FLC 93-112
In a recent paper, Professor Patrick Parkinson said[10]:
The best interests of the child remain, of course, paramount, but they are not at large. The decision about the future of a child in a parenting matter is not a personal decision of the judge but a judicial decision. There is not a hierarchy of considerations, paramount, primary and additional. Rather, the assessment of the best interests of the child in a given case relies upon a reasoned assessment of the primary and additional considerations in s.60CC, and the other considerations such as in s.65DAA, taking into account the objects and principles of Part VII of the Act.
[10] Prof. P Parkinson, “Relocation in the Era of Shared Parental Responsibility”, May 2008, Sound Education in Family Law
In my view, that is a succinct statement of the law in relation to relocation applications.
It is not surprising that relocation cases often cause significant anguish for the litigating parents and are difficult for courts to decide. The difficulties were succinctly put by his Honour Brown FM as follows[11]:
Relocation cases are invariably very difficult for all concerned, involving as they do two competing and irreconcilable claims of right. These claims of right arise when the parents of a child have separated and for legitimate reasons 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.
[11] P & P [2006] FMCAfam 518
His Honour had also earlier in his Reasons said at paragraph 21 that “there is no satisfactory outcome in this case. The various options available cannot be manipulated like the surface of a Rubik’s Cube to reach a perfect result.”
However, it is clear that the court is not bound by either of the parents’ proposals. See Bolitho and Cohen[12].
[12] (2005) FLC 93-224
Parental responsibility
The Family Report writer recommends only that parental responsibility be shared. Clearly the father agrees with that, but the mother does not mention parental responsibility in either her Application or her Case Outline. I therefore make the assumption that she is not seeking sole parental responsibility.
The court must apply presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child or in family violence.[13]
[13] Section 61DA
In my view the behaviour set out in paragraphs 11 and 12 of the mother’s affidavit do not place this case high on the list of family violence cases, and there is certainly no suggestion of any child abuse. I am therefore of the view that it is in [X]'s best interests for there to be equal shared parental responsibility.
If a parenting order is to provide that the parents are to have equal shared parental responsibility for the child, the court must:
· consider whether spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable; and
· if it is, consider making an order to provide for the child to spend equal time with each of the parents.[14]
[14] Subsection 65DAA(1)
However, if an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that is reasonably practicable.[15]
[15] See subsections 65DAA(2) and (3)
It is clear in this case, given the stark options presented to the court, that neither “equal time” nor “substantial and significant time” as defined, is an option simply because one parent will be in Queensland and the other parent will be in Tasmania.
At this point, I should say that all appear to accept that moving to Queensland is not a reasonable option for the father. He is a [occupation omitted] who works on [omitted] It is a skill that is in demand in Tasmania and I think that everybody accepts that it is a skill that is not in demand on the Gold Coast.
Section 60CC
I turn now to consider the section 60CC factors and the evidence in the light of those factors.
Primary considerations
The first primary consideration under section 60CC is “the benefit to the child of having a meaningful relationship with both of the child’s parents”.
In M & S[16] (to which Mr Ayliffe referred me yesterday), Dessau J said at paragraph 45:
I am conscious that a long-distance relationship, with longer but less frequent times spent together, is inevitably different from a relationship where people live closer together with regular face to face contact. But it does not in itself mean it cannot be meaningful.
[16] (2007) FLC 93-313
In a similar vein, in the relocation case of Godfrey & Sanders[17], Kay J (sitting as the Full Court) said:
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
[17] [2007] FamCA 102
The first primary consideration clearly ties in with the objects of Part VII of the Act as set out in section 60B of ensuring that children have the benefit of both of their parents having a meaningful involvement in their life to the maximum extent consistent with the best interests of the child.
In this case [X] clearly has meaningful relationships with both of his parents. In some respects it is very reassuring that his relationships with both parents are strong, loving relationships because that will help him adjust to the inevitable diminution of time that he will spend with one of his parents as a result of his mother’s decision to move to Queensland.
In this regard Ms Fowler said at paragraph 35, and I say numbered paragraph 35 because I am sure it was not the 35th paragraph:
Clearly, there can be no win/win situation. [X] appears to be strongly attached to both parents and should he be separated from either one, given he has regular time and communication with his absent parent, parental relationships should be strong enough to be maintained from a distance.
The second primary consideration in section 60CC is “the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence”. I am pleased to say that that is just not an issue in this case.
Additional considerations
Any views expressed by the child and any factors that the court thinks are relevant to the weight it should give to the child's views
In this regard Ms Fowler said at paragraph 24:
In interviewing [X], he depicted both of his parents in a very positive light using a number of communication tools and despite describing different things they did together [X] described his relationship with each of them in similar ways. [X] is aware that his mother is seeking to move to Queensland to live with Mr M and his children and he understood that he will be returning to Tasmania to visit his father. [X], however had a limited understanding of how this would affect him or his future relationships.
Given that [X] is not yet six, I am not surprised by that last sentence. [X] is not really old enough for his views to be of any great influence on the decision that the court must make.
The nature of the relationship of the child with the parents and other persons
It is abundantly clear that [X] has warm and positive relationships with both of his parents. The unchallenged Family Report by Mrs Fowler states at paragraph 23:
[X], aged approximately five years is a delightful youngster who was observed to have strong loving relationships with both of his parents. Both parents interacted with [X] well, and talked and played with him in age appropriate manner. [X] was obviously comfortable, relaxed and affectionate with each of his parents and his presentation did not differ between each observation.
[X] also has four loving grandparents. He lives in currently in the same household as the maternal grandparents and he sees the paternal grandparents frequently. In this regard, [X] is a lucky boy.
In Bright and Bright v Bright and Mackley[18] the late Treyvaud J said:
Kay J, in a decision to which I was referred, of Stevens and Lee (1991) FLC 92-201, made remarks which are similar to those which others may have made and certainly which I have made on occasions.
His Honour was at pains there to point out, as I do now, that it is very important for children's proper upbringing and development that they have contact with a much wider family than merely the parents of the relevant child. It is very important for a child to understand that he or she is part of a wider family, that he or she has grandparents on both sides, uncles, aunts and cousins, so that the child grows up feeling part of an extended and supportive family.
[18] (1995) FLC 92-570 at page 81,658
I wholeheartedly agree with those sentiments.
If the mother's application is successful there will be a significant lessening of opportunity for [X] to see and spend time with his grandparents on both sides. His maternal grandparents plan to travel to Queensland at least twice per year if he moves there.
If [X] is here in Tasmania, the father would be likely to rely upon both sets of grandparents to assist him with his care.
Clearly, the mother has no concerns that the father will not encourage the relationship between [X] and her parents. She told Mrs Fowler that the father promotes both the maternal and paternal relationships.
[X] clearly has good relationships with all the other people involved in his life and they include not only the mother’s husband, but also Ms W and Mr G. I accept that in Ms W he has someone who is almost a second paternal grandmother.
The willingness and ability of each parent to facilitate and encourage a close and continuing relationship with the other parent
I have no concerns about this consideration, no matter whether [X] is living in Tasmania or living in Queensland. Mrs Fowler said at paragraph 31:
Ms Paltrow and Mr Sizemore are to be commended for their commitment to maintaining a shared-care arrangement for [X] which has been flexible enough to accommodate his developmental needs. This family has been exemplary in successfully navigating the difficult path of shared-care parenting for [X]’s early years through his transition into full-time school. They have sought the resources of extended family and despite many difficulties have continually focused on the best interests of their son. As a result of this commitment Ms Paltrow,
Mr Sizemore and their families have raised a happy, healthy, well-adjusted young boy who has strong and positive attachments to both his parents.
The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either parents or any other child, or other person with whom the child has been living
For obvious reasons this consideration looms large in every relocation case.
The mother’s proposal would see [X] separated from his father and from the grandparents on both sides. The father’s proposal will see [X] separated from his mother with whom he has lived for nine out of every fourteen days for the last year and a half. However, that is only the father’s proposal because the mother has said that she is going to Queensland even if the Court says that [X] must remain in Tasmania. In short, the father’s proposal is one that is not really his first choice. It is a choice that he makes because of a choice that the mother has made.
As I have said, it is lucky that [X] has such good relationships with both parents because that will help him adjust to the separation from one of his parents.
The mother’s proposal will see [X] separated from four loving grandparents; a loving additional substitute grandmother and also from his school and friends.
I do not have any great concerns, however, about a change of school. Children change schools and make adjustments all the time. [X] is clearly a sociable boy, so he would make new friends if he had to. He is clearly an intelligent boy who will thrive in any educational system and at the age of five he knows the difference between an arachnid and an insect, which is something that a lot of people do not know. In my view, he will adjust well to any change of school that may be necessary.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
This is also a consideration that is obviously important in relation to relocation applications.
With his mother in Queensland and his father in Tasmania it is clear that there will be expense in maintaining a relationship with the parent with whom he is not living. That will cut both ways. I am pleased to see that both parents are now willing to also have regular “Skype” type of communication because that will assist in maintaining contact and relationships. While the Internet has its drawbacks and dangers for children, it clearly has advantages as well.
In relation to expense I am pleased to see that the father is prepared to pay his share, or what he considers to be his share, of the necessary air fares. I comment that too often I see parents who simply say: “You want to move. You pay.” Luckily, I do not see that unhelpful approach here.
The capacity of each parent or any other person to provide for the needs of the child, including emotional and intellectual needs
In general I am quite satisfied with each parent's capacity to provide for [X]’s needs.
However, I must have some concerns about the mother saying that she will live in Queensland even if [X] does not. That suggests to me that the mother has put her wants and needs above those of the son. Indeed, she appears to put the needs of her stepson [Y] above those of her son. On the one hand she is willing to foster the relationship of [Y] with his father but her proposal would do that at the expense of [X]’s relationship with his father.
I do not underestimate the trauma of the abduction to [Y] some years ago, nor do I criticise Mr M for wanting to be with him, but the Court’s duty in this matter is to [X] and his best interests are the Court’s primary concern.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
This was raised by Mr Ayliffe as being a factor of importance. However, I do not believe that there is any evidence that the mother’s and Mr M’s adherence to Reiki Tummo is contrary to [X]'s best interests.
The mother and Mr M have been Reiki Tummo adherents together for approximately two years, and Mr M has for longer than that. There is just no evidence that it has done [X] any harm at all. He may have said that he has been bored on occasions, but what five‑year-old has not said that about many a situation. The simple fact is that [X] is a well-adjusted child and he is not being adversely affected by the lifestyle in either parent's home.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents
There is no doubt that [X] is blessed with two very good, responsible, committed and capable parents. I do not need to repeat what
Mrs Fowler said at paragraph 31 of the Family Report.
Both parents are to be congratulated on their parenting. I will say that it is almost refreshing to have heard a case over a day and a half in which the words “alcohol” and “drugs” were not mentioned at all.
Conclusions
As Brown FM said in P & P, relocation cases are invariably difficult for all concerned. Each case is very much determined on its own facts.
In this case, I have had to balance the stability for [X] in Tasmania of the father, two sets of loved and loving grandparents and a familiar school against living with the mother with whom he has lived nine of every fourteen nights for the last one and a half years.
I have to weigh in the balance the uncertainty of the mother taking on additional step-parental responsibilities, studying and helping to run a business; and running a business is clearly something that she has not done before.
When I weigh all these factors, I conclude that [X] should remain in Tasmania with his father.
From [X]’s point of view, I would have preferred that a shared care arrangement continue in Tasmania, but that option is not now put forward as being available. The mother has made that decision, not a decision that I envy in any way, and which was undoubtedly an extremely difficult decision for her to make.
In those circumstances, it is my view that it is in [X]’s best interests to live with his father and spend time with his mother on a regular basis during school holidays. He should also be able to communicate with his mother on a regular basis either by telephone or by “Skype” type of video conferencing.
I will make orders that provide for this.
I certify that the preceding eighty seven (87) paragraphs are a true copy of the reasons for judgment of Roberts FM
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