PBC and LMC
[2006] FMCAfam 469
•5 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PBC & LMC | [2006] FMCAfam 469 |
| FAMILY LAW – Parenting – relocation – mother seeks to relocate from Sydney to Brisbane – children 10 and 8 – primary attachment to mother – children currently spending substantial time with father. |
| Family Law Act 1975 |
| A v A: Relocation Approach (2000) FLC 93-035 AMS v AIF; AIF v AMS (1999) FLC 92-852 B and B: Family Law Reform Act 1995 (1997) FLC 92-755 H v W (1995) FLC 92-598 R and R; Children’s Wishes (2000) FLC 93-000 U v U (2002) FLC 93-112 |
| Applicant: | PBC |
| Respondent: | LMC |
| File Number: | SYM 3108 of 2006 |
| Judgment of: | Sexton FM |
| Hearing dates: | 24, 25 and 26 July 2006 |
| Date of Last Submission: | 26 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 5 September 2006 |
REPRESENTATION
| Counsel for the Applicant: | Ms S Christie |
| Solicitors for the Applicant: | Watts McCray |
| Solicitors for the Respondent: | Andrew A Torok |
THE COURT ORDERS THAT:
All previous parenting orders be discharged.
The parties have equal shared parental responsibility in relation to the children Jessica age 10 and Sophie age 8 [“the children”].
Each party have sole responsibility for making decisions about other aspects of the care, welfare, development and parental responsibility of the children on a day to day basis during periods when the children are living with either of them.
The mother be restrained from relocating the children’s residence from the Sydney metropolitan area without the prior written consent of the father.
The children live with the mother.
The children live with the father at any time by agreement between the parties, but otherwise:
(a)Each alternate week from Thursday after school or after school care until Monday morning before school (or Tuesday morning if Monday a public holiday);
(b)Each Wednesday in the ‘off’ week from after school or after school care until Thursday morning before school except in the event the father’s residence is more than a 30 minute drive from the children’s school, when the children will be returned to the mother’s residence by no later than 8.00 p.m. on the Wednesday evening and the children will spend that time with the father in the vicinity of the mother’s home;
(c)For the second half of the September school holidays in 2006;
(d)For the Easter period in 2007 and each alternate year thereafter;
(e)For one half of each school holiday period at the end of Terms 1, 2 and 3 being the first half in 2007 and each alternate year thereafter and the second half in 2008 and each alternate year thereafter;
(f)Subject to Order 6(g) herein, for one half of the Christmas school holidays as agreed and failing agreement for the second half commencing in 2006/7 and each alternate year thereafter and for the first half in 2007/8 and each alternate year thereafter;
(g)
Each year from midday on 22 December until midday on
24 December and the children shall spend time with the mother each year from midday on 24 December until midday on
26 December.
The father cause the fees to be paid for the before/ after school day care for those days relevant to time the children spend with him.
School holidays are defined as commencing from after school on the last day of school term until the first day of school (not being a pupil free day) and changeover during the school holidays shall be at 5.00p.m on the middle day of the holidays and the parties shall have an equal number of nights, but if two middle days, changeover shall occur at 5.00 p.m. on the first of the two middle days.
Each party facilitate the children or either of them telephoning the other parent at any reasonable time.
Each party be restrained from changing the children’s school from KPS until Jessica completes her primary education unless the parties agree otherwise in writing.
Each party be restrained from removing the children from school or allowing either child to be absent from school for reasons other than illness without the other party’s written consent.
Each party be restrained from removing the children from the Sydney metropolitan area for a period of more than 4 days without first providing 7 days written notice to the other party and each party shall provide the other party with an itinerary of their travel outside the Sydney metropolitan area and telephone numbers and addresses where the children can be contacted during that period.
The parties keep each other informed and updated in relation to any medical issues involving the children, including providing each other with the names and full contact details of all medical practitioners attended upon by the children and each party shall provide his/her authority for the other parent to communicate with all medical practitioners attended upon by the children or either child from time to time.
This order be sufficient authority to provide to the father the children’s school reports, dates for sports days, parent/ teacher nights, concerts and other events and/or any other information from the school(s) the children may attend from time to time and that each party be at liberty to attend any and all activities to which parents are invited to attend.
Each party shall keep the other informed at all times of his/her address, landline and mobile telephone number.
Each party shall keep the other informed of any and all extracurricular activities engaged in by the children and each party shall authorise the other to communicate with and obtain copies of all relevant information concerning such extracurricular activities from the organisers of same, and that each party have liberty to attend at all of the children’s extracurricular activities in which they may be involved.
Neither party shall make derogatory comments about the other to the children or to any person in the presence or hearing of the children and each party ensure their only comments about the other parent in the presence or hearing of the children are positive.
Neither party shall include the children in any discussion or decision regarding parental responsibility matters.
Neither party shall take the children out of the Commonwealth of Australia without the written consent of the other party (such consent will not be unreasonably withheld), or an order of a Court of competent jurisdiction.
Each party be restrained from entering the residential property of the other party without that party’s prior consent.
The parties must within 7 days contact Relationships Australia on 1300 364 277 to arrange an appointment as soon as practicable for an initial post-separation parenting assessment.
The parties must attend the appointment at any reasonable location nominated by Relationships Australia and complete the assessment.
If assessed as suitable and Relationships Australia nominates counselling, mediation or a program to attend, the parties must attend (as the provider directs) as soon as practicable.
The father meet all costs associated with the parties’ attendance at Relationships Australia.
IT IS NOTED that therapy is intended to address the parties’ communication difficulties. The aim is to re-establish the cooperative and supportive parenting arrangements the parties previously achieved.
Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM 3108 of 2006
| PBC |
Applicant
And
| LMC |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns parenting arrangements for Jessica age 10 and Sophie age 8 (not their real names). The parties live in Sydney. The mother wants to relocate to Brisbane with the children and the father opposes the move. The matter first came before the Court on 10 March 2006 when the father sought and obtained an order for the children to be returned to the Sydney metropolitan area following the mother relocating with the children to Brisbane on 1 March 2006 without his agreement. On 23 March 2006 the parties agreed to interim parenting arrangements pending a final determination of the mother’s application to relocate. Those interim orders provide for the children to live with the mother and spend time with the father 5 nights each fortnight and half school holidays. The mother wants the children to live with her in Brisbane and spend one weekend a month and half school holidays with the father. The father wants the present parenting arrangements to continue whether the mother remains living in the inner-west of Sydney or lives in an outer Sydney suburb, though he acknowledges mid-week overnight time would not be possible if he were living too far from the children’s new schools. The father does not ask that the children live with him for any more time than provided for in the interim orders. The mother will not leave Sydney unless the children are permitted to move with her, so the parties agree the children will remain living the majority of the time with the mother. The mother proposes that if they live in Sydney, the children spend each alternate weekend with the father from Friday until Monday, and alternate Wednesday nights, one night less per fortnight than the present arrangements.
From early 2000, the parties worked out their own parenting arrangements, the children spending regular time with the father. From at least September 2002, the children have routinely spent time with the father each week. In November 2005, the mother decided she wanted to move with the children to Brisbane, where the parties were living at the time of separation in 1998. The parties discussed the mother’s wish to relocate and the mother travelled to Brisbane to research schools, accommodation and employment prospects. It is common ground that the father had not agreed to the relocation when the mother took steps to make the move, including resigning from her employment. The mother says the father gave her the impression he was not opposed to the move until after she had taken those steps. After receiving written advice from the father that he did not agree to the move and after being warned by the father he would seek an injunction from the Court if the mother did not give a written undertaking she would not relocate without his agreement, the mother left Sydney with the children on 1 March 2006, without informing the father. She says she brought her plans forward when the father demanded the written undertaking. On 10 March the court ordered the children’s return to Sydney and the mother returned with them on
18 March 2006.
The mother says she could provide a better lifestyle for the children in Brisbane. She deposes to her belief that “Brisbane is more conducive to raising children and providing a balanced life for children. There is not the frenetic lifestyle and from my observations, the people I know in Brisbane and who are professionals can count as true and reliable friends.” … “I firmly believe the children have a much better chance of attending better schools and more particularly a private school in their high school years if they live in Brisbane as opposed to Sydney” …“which will better prepare the children for their adult life.” The mother says she has no personal supports in Sydney and can no longer rely on the father to provide her with personal support. She believes, if in Brisbane she will be in a position to purchase unencumbered, a spacious house with a pool and garden in a good suburb, rather than a unit or townhouse in a less attractive suburb in Sydney. The mother reported to the family reporter, Ms Marriott being “lonely and unhappy in Sydney”. Sophie, the parties’ 8 year old child, told Ms Marriott her mother feels “very stressed” in Sydney and that money is a big problem.
The father says the children enjoy a ‘normal’ day to day relationship with him in Sydney. He says if the children were to move to Brisbane, they would miss out on that ‘casual and normal relationship’ they presently enjoy with him. He says it is unrealistic to expect the children, with increasing commitments as they get older, to fly to Sydney for weekends each month in the long term. He says the children’s relationship with him will be diminished if they relocate.
The father is 41 and the mother is 40. They started living together in 1991 and married in March 1992. They lived in Brisbane from 1993 until 1996, moved overseas, returned to Brisbane in July 1998, and separated on 31 October 1998. The father then returned to work in the United Kingdom. The mother and children remained living in Brisbane until November 1999 when they moved to Sydney. The father returned to Australia in early 2000 to live in Sydney. The father now lives in the inner west of Sydney with his partner of 18 months Ms Smith. The mother formed a relationship with Mr Brown in 2004. She and Mr Brown bought a house together in the inner west of Sydney in July 2005 but their relationship then broke down. The mother transferred her interest in that property to Mr Brown. The mother says she then “reconsidered a long term plan to return with the children to reside in Brisbane.”
The father works full time and is currently contracted to VF in Sydney. Ms Smith also works for VF. The mother is working in temporary positions while awaiting the Court’s decision as to whether she and the children can move to Brisbane. The mother has worked in both full time and part-time positions since the children started school.
Issues for determination
His Honour Justice Kirby in the High Court decision of AMS v AIF; AIF v AMS (1999) FLC 92-852 said (at paragraph 142):
…each [relocation] case depends on the application of the governing legislation which, in turn, is in a constant state of amendment and re-expression…
Parenting orders are governed by Part VII of the Family Law Act 1975 When making a parenting order, s.61DA of the Family Law Act requires the court to apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for their welfare. Section 65DAC provides that all decisions about major long term issues be made jointly by those who share parental responsibility. Major long term issues are defined in section 4 as education, religious and cultural, health, name and significant changes in living arrangements. There is no dispute between the parties in the present case that they will equally share parental responsibility for the children. I agree that is appropriate. The application of this presumption triggers the application of s.65DAA (1) which requires the court to:
a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
c)if it is, consider making an order to provide for (including a provision in the order) for the child to spend equal time with each of the parents.
Section 65DAA(2) provides that if the court does not make an order for equal time, the court must consider whether the child spending significant and substantial time with each parent would be in the best interests of the child and whether such an arrangement is reasonably practicable. Substantial and significant time and reasonable practicality are defined in s.65DAA(3) and (5).
Section 60CA provides that the child’s best interests are the paramount consideration when considering particular parenting orders and to determine the child’s best interests the court must consider the primary matters set out in s.60CC(2) and the additional matters set out in s.60CC(3). Section 60CC(4) requires that the court consider the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities . Section 65D provides, subject to the presumption of equal shared parental responsibility, that the court may make such parenting order as it thinks proper.
As the Full Court held in B and B: Family Law Reform Act 1995 (1997) FLC 92-755, relocation cases are not a separate category within the Act to be determined by their own principles and rules. Each is a case under Part VII relating to the best interests of the children. The Full Court in A v A Relocation Approach (2000) FLC 93-035 stated the guiding principles to be applied in relocation cases[1]:
a)The best interests of the child are the paramount consideration but not the sole consideration;
b)A court cannot require the applicant to demonstrate “compelling reasons” for the relocation;
c)The court must evaluate the competing proposals presented and weigh up the advantages and disadvantages of each for the child’s best interests;
d)This should not be done in a way that separates the issue of relocation from that of residence;
e)The court must weigh the evidence as to how each proposal would hold advantages and disadvantages for the child’s best interests; and
f)The court must refer to the principles underlying the objects of the parenting provisions of the Family Law Act and the relationship between those principles and the factors which must be considered when deciding what orders are in a child’s best interests.
[1] As summarised in the Family Law Council, Discussion Paper: Relocation (Feb. 2006), Commonwealth of Australia, pp.10-11.
The Full Court in A v A then set out a 3-step summary of the correct approach to be applied in cases involving a proposal to relocate the residence of a child[2]:
a)Identify the competing proposals of the parties;
b)Explain the advantages and disadvantages of each proposal by examining the s.68F(2) factors (now the s.60CC factors) with regard to the objects of the parenting provisions of the Act, which includes an evaluation of the “reasons for relocation as they bear upon the child’s best interests” against other factors; and
c)Explain why one proposal is to be preferred having regard to the best interests of the child as the paramount, but not sole consideration.
[2] Ibid, pp10-12.
The competing proposals
Guided by the High Court authorities of AMS v AIF; AIF v AMS (1999) FLC 92-852 and U v U (2002) FLC 93-112, I invited the parties at the commencement of the hearing, to consider options other than those specifically proposed by each party. The options were identified as follows:
a)Children live with the mother in the vicinity of the inner west of Sydney, spend substantial time with the father and remain at the same school. This is the current situation and the arrangement proposed by the father.
b)Children live with the mother in Sydney in an outer suburb, spend 4 nights a fortnight with the father and the mother be permitted to change the children’s school. This is the mother’s ‘Sydney’ proposal.
c)Children live with the mother in Sydney in an outer suburb, father move to live in closer proximity to the mother, children spend substantial time with the father and the parties be permitted to change the children’s school.
d)Children live with the mother in Brisbane, father also moves to Brisbane, children spend substantial time with the father.
e)Children live with the mother in Brisbane, father lives in Sydney and children spend one weekend a month and half school holidays with the father. This is the mother’s primary proposal.
f)Children live with the father in Sydney, mother lives in Brisbane and children spend time one weekend a month and half school holidays with the mother.
g)Father assist the mother financially to remain living in the inner west of Sydney so arrangements can stay as they are.
The mother seeks orders as in (e) above. The father seeks orders for the current arrangements to continue as in (a). Neither party supports options (d) or (f) or (g). I have considered options (b) and (c) as variations on the father’s proposal, as both options involve the mother and children remaining in Sydney.
Ms Marriott, the family reporter, says the children are primarily attached to their mother and will cope well in Sydney or in Brisbane as long as the mother is happy. In Ms Marriott’s view, with regular contact and frequent communication the children are likely to maintain a bond with the father even if they live in Brisbane. She suggests the mother may be unhappy, possibly depressed, if she is forced to live in Sydney and that the mother’s unhappiness is likely to impact adversely on the children.
The mother’s proposal is outlined in her affidavit evidence. She provides some detail as to her proposed arrangements for housing, employment and schooling. She has inspected a property in a suburb of Brisbane, and says she can afford a house in that area with the approximately $433,000 she holds in savings. This is also where some of her friends are living. She has made inquiries in relation to employment and says she has positive prospects. The children attended RSS in that area, when in Brisbane in March this year. The mother named a number of friends who live in Brisbane and with whom she and the children have close relationships and who provide her with personal support. For the last 8 years, the mother deposes to her and the children spending 10 days during each Christmas school holidays at the home of her friends with pool and tennis court and to visiting friends in Brisbane three times each year. There was no challenge to the mother’s evidence that “the network of caring friends is by far stronger than I have experienced in Sydney. Although in Sydney I have many friends they do not offer the same support network as readily as the Brisbane based families.” Although the mother adduced no affidavit evidence from witnesses in Brisbane, I accept that the mother has made close friends in Brisbane and that she feels connected there.
Evaluation of each proposal against the children’s best interests having regard to the principles underlying the objects of the Act
The objects of the parenting provisions of the Family Law Act, set out in s.60B of the Act, are to ensure that the best interests of children are met by (in summary):
·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
·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
The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; and parents jointly share duties and responsibilities concerning the care, welfare and development of their children.
As already noted, in deciding the arrangements that will promote the best interests of a particular child, the court must consider the matters set out in s.60CC (2) (3) and (4) of the Act as far as relevant in the circumstances of each case. The primary considerations I must consider are:
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Issues relating to (b) do not arise in this case.
The benefit to the children of having a meaningful relationship with both their parents
Each party states the children’s relationship with the other is important for the children. I find the mother’s move to Brisbane without the father’s agreement is inconsistent with this stated position. I am however satisfied that until that time, the mother promoted the relationship between the children and the father.
In the year 2000, the parties put in place a regime for the children to spend significant time with each parent without the need for court intervention. The children have been spending time with the father on weekdays as well as weekends and during school holidays for at least 4 years. ‘Substantial and significant time’ is defined in section 65DAA(3) as time which includes holidays and weekends as well as weekdays such that each parent is involved in the child’s daily routine and occasions and events of particular significance to the child, and the child is involved in occasions and events of special significance to the parent. The parties themselves have therefore, on their own initiative, created a structure which ensures the children have enjoyed both quality and meaningful time with the father. This is precisely the structure the recent amendments to the parenting provisions of the Family Law Act, are intended to promote. As a result, to the credit of both parties, the children now have a good relationship with each of them.
The father outlines in some detail what he does with the children when they are with him. His largely unchallenged evidence is that he ensures the children have fun with him, pay attention to their schoolwork requirements, share their day to day stories with him, take interesting excursions with him and enjoy time with friends and extended family. At the same time, he sets appropriate limits and requires the children to behave in a responsible manner.
There is some evidence to suggest that time away from the father will have a negative effect on the children’s relationship with the father. The father and Ms Smith both say Sophie’s relationship with the father has deteriorated since the mother’s return from Brisbane and the mother says neither child has been as keen to see the father mid-week. Ms Smith has observed that an absence of more than a week away from the father changes the way the children relate to him. Ms Smith gave an example of Sophie declining to engage for about 3 hours after she first arrived, and Jessica being unnaturally talkative.
Ms Marriott, in her report, says the children’s bond with the father is likely to remain strong if the mother takes them to Brisbane, as long as the children have regular contact and frequent communication with him. However, in cross-examination, Ms Marriott concedes that if in Brisbane, the children will miss out on their father being part of their daily lives and the current tensions in the relationships may not improve with the children spending less time with the father.
The law provides that the benefit to the children of having a meaningful relationship with both parents is a primary consideration. In the event the children lived in Brisbane, they would not see their father on weekdays and only twice during school terms for short weekends. Even though the father may travel to Brisbane on business occasionally and he and Ms Smith may visit Brisbane in the future, I find there would be long periods when the children would not see their father. I find in these circumstances, there is a likelihood the children’s relationships with the father will become less meaningful.
I am therefore satisfied the father’s proposal best promotes a meaningful relationship between the children and both parents. As a primary consideration I give this factor significant weight.
I am required now, under s.60CC(3) to consider a number of additional matters.
The children’s expressed views and the weight those views should be given
The Full Court in H v W (1995) FLC 92-598 at 81,947-8 and in R and R: Children’s Wishes (2000) FLC 93-000 at 87,071, said the wishes of children are important and proper weight should be attached to any wishes expressed by a child, depending on their basis and the maturity of the child:
“including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.”
On 13 March this year, Jessica told her mother she wanted to stay in Brisbane. She deposes to Jessica saying “what about what we want?” and “why doesn’t somebody ask us?” and “we told Dad that we want to live in Brisbane. Why did he not listen?” At the time of these remarks, the children had been in Brisbane less than 2 weeks and at a new school for only a few days and were suddenly told they had to return to Sydney.
In June this year, Jessica expressed a different view when she was back in Sydney, at her usual school and in her usual routine. At interview
Ms Marriott says that Jessica, anxious to please both her parents, was reluctant to express her wishes, but it was clear to Ms Marriott that Jessica wants her present situation to remain unchanged. She is in Year 5 and the thought of changing schools and friends, scares her.
The mother says Sophie was as upset as Jessica when told of the return to Sydney in March. Sophie told Ms Marriott her father has done the wrong thing by forcing them to return from Brisbane. She strongly supports the mother’s position. Ms Marriott says however, Sophie is “irritated with her father but not unhappy in a general sense.” This is important evidence.
As already noted, the mother says the children are increasingly reluctant to spend time with the father mid-week, Sophie in particular. However, neither child was unsettled when interviewed by Ms Marriott and neither complained about the present parenting arrangements.
The father’s proposal maintains the status quo which conforms to Jessica’s expressed view. The position with Sophie is less clear.
The mother’s ‘Brisbane’ proposal does not satisfy Jessica’s view, although I take into account Ms Marriott’s evidence that Jessica would adjust if the mother was happy. The mother’s ‘Sydney’ proposal that the children spend one less night a fortnight with the father is consistent with the mother’s evidence about the children’s expressed views to her, but not supported by Ms Marriott’s evidence.
The mother’s ‘Sydney’ proposal that she be permitted to change the children’s school does not satisfy Jessica’s view. I accept there is a possibility that if in Sydney, the mother may move further from the school than she is at present. To satisfy Jessica’s wish to stay at her present school may be possible but difficult in practice.
I give more weight to Jessica’s views on the basis of her age, than to Sophie’s. I am satisfied the father’s proposal better suits the views of the children than either of the mother’s proposals.
The nature of the relationships between the children and each parent and other people important in their lives
The children were aged 3 and 1 when the parties separated. The children did not see a lot of their father for the first 18 months or so after separation as he was working overseas. However, since early 2000 they have spent regular time with him and in the last 4 years, have spent time with him weekly.
Ms Marriott observed the children to be happy and healthy with strong relationships with both parents and a good relationship with the father’s partner. She says in her report:
The children love both their parents. Their primary attachment is to their mother.
There is some evidence to suggest Jessica feels unable to relate as openly to her father as to her mother. The evidence is not sufficiently compelling to change my finding that Jessica has a close and loving relationship with her father.
Sophie is annoyed with her father and seems the more affected of the two children by the father’s opposition to the mother’s wish to move.
I accept Ms Marriott’s view that the current difficulties between Sophie and the father will not be helped by her seeing less of him.The children get on well with their paternal grandparents who live near Orange. There is no evidence before me as to the strength of the children’s relationships with the mother’s extended family. There is no evidence before me as to the strength of the children’s relationships with the mother’s friends in Brisbane or in Sydney.
The children will spend more time with the paternal grandparents and each parent on the father’s proposal than on either of the mother’s proposals. I am therefore satisfied the father’s proposal best promotes the children’s welfare in relation to this factor.
The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the children and the other parent
It is common ground that the parties for the most part supported each other and generally established a pattern of co-operative parenting until at least late 2005. When the mother moved from the southern suburbs of Sydney to the inner west with the children in September 2002 there was no challenge to the father’s evidence that he helped the mother in her garden, helped with household maintenance, with computer problems and spent time with the mother and the children at her home. He lent her furniture and appliances. He looked after her cat when she went on holidays. They had a number of Christmas Days together. When the mother’s relationship with Mr Brown broke down last year, the mother turned to the father for support. The mother says we used to help each other out. I formed the view the father in recent years has provided the mother and the children with a mantle of protection which has greatly benefited the mother and the children. The importance of the parents working together in this way cannot be underestimated.
The mother then decided she wanted to move to Brisbane and perhaps because of their previously mutually supportive relationship, was distressed and surprised the father questioned her decision. At that point, I believe the mother lost sight of the importance of the children’s continuing close relationship with the father and allowed her own needs to take priority.
The mother says her proposal will not impact on the children’s relationship with the father because she will ensure the children travel to Sydney regularly and spend time with him and she will encourage their communication with him. I have doubts about the practicality of the mother’s assertion, as discussed later. I also have concerns whether the mother’s concentration on her own needs will continue to impair her ability to facilitate and encourage the children’s close and continuing relationship with the father. In part this is evidenced by the mother’s request to reduce the amount of time the children spend with the father even if the children remain living in Sydney.
The father, by his proposal, accepts the children should live with the mother. There is no evidence before me to suggest the father will not continue to facilitate and encourage the children’s relationship with the mother.
On the mother’s ‘Brisbane’ or ‘Sydney’ proposal, the children will spend less time with the father. In my view, given my concerns about the mother’s present attitude, these proposals do not provide the same protection to the children’s relationships with the father as the father’s proposal.
The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from a parent or any other person with whom they have been living
The children live with the mother alone in her household. The children spend time with the father and Ms Smith in their household.
On the mother’s Brisbane proposal, the children will change schools and will need to make new friends. The mother says the children already have good friends in Brisbane and will benefit from her social network. Jessica told Ms Marriott she has good friends in Brisbane and heaps of friends in Sydney. The mother says the children will enjoy the less stressful environment of Brisbane as opposed to Sydney. They will live in a more spacious home with superior facilities, live closer to their schools, and may be able to attend BS where they are presently enrolled. This is a potential advantage of the mother’s proposal.
The mother told Ms Marriott she is likely to be happier in Brisbane. If this is true, Ms Marriott suggests the mother’s happiness will be positive for the children. She says the mother reported being unhappy in Sydney. There is a question as to when her unhappiness commenced. In July 2005 the mother purchased a new home in the inner west with her then partner presumably with an intention to happily remain in Sydney. There is no evidence before me to suggest the mother’s unhappiness will persist long term.
On the mother’s proposal, the children will spend less time with the father and their paternal grandparents. They will not enjoy the flexibility of moving between two households and having the father as part of their day to day lives. I have already discussed the likely impact on the children of their separation from their father and their paternal extended family.
Jessica told Ms Marriott she was worried about losing her Sydney friends and changing schools. It may be that Jessica would not be settled in Brisbane. Given Sophie is younger and presently aligned with her mother, I find it less likely a move would affect Sophie to the same degree, at least in the short term.
On the father’s proposal, the present arrangements will not change. If the mother and children remain in Sydney it may be that the mother will remain in the inner west for at least some time. In this case, nothing will change for the children. When and if the mother moves to an outer Sydney suburb, the children will in time, have to change schools, but they will still enjoy frequent time with the father and his support in their day to day lives.
I am not convinced that the anticipated advantages for the children outlined by the mother outweigh the likely disadvantages of the proposed change.
The practical difficulty and expense of the children having contact with both parents
This is a significant issue in these proceedings. The mother proposes that she meet the costs of travel during term time of approximately $7,000 per annum and the father meet the costs of holiday travel. The mother has approximately $433,000 in savings and expects to earn an income of $35,000-$45,000 gross per annum. She wants to use her savings to purchase, without encumbrance, a property in Brisbane. I am not persuaded the mother will be in a position to provide transport costs as she has proposed as well as meet all other necessary living expenses for herself and the children. In addition, the fees and expenses at BS for the two children would seem to be beyond her means even if the father were to meet half the tuition fees as he said he would be willing to do. Although she presented her employment prospects in Brisbane as strong, the mother provided no admissible evidence to support her claim. I believe the monthly term-time trips cannot be sustained unless the father meets the whole of the travel costs. The negative consequence of this is likely to be a reduction in child support for the mother. In evidence, the mother wrongly assumed she could rely on an unchanged level of child support income if she relocates, without taking into account any possible change in assessment as a result of the costs involved in the children spending time with the father.
There are practical difficulties in addition to finance. If in Brisbane, the children will create their social and extra curricular life around their school. Ms Marriott says in cross-examination the children are likely to find monthly trips to Sydney disruptive to their newly formed school community. As well, the physical demands of travel can be underestimated, once the novelty has worn off. I find the mother has given little thought to the financial or practical implications of her move in terms of ensuring the children’s need for regular time with the father.
While I accept that if the mother moves to an outer suburb of Sydney, there may be practical difficulties with the children spending overnight time with the father mid-week, these difficulties are minor when compared with the significant practical difficulties in maintaining contact with the father if the mother’s proposal is followed. I give weight to this factor.
The capacity of each parent or other person to provide for the children’s needs
Neither party was critical of the other’s capacity to care for the children’s physical or intellectual needs and I have no doubt that both parties have demonstrated the capacity to provide for these needs. Each party offers the children a varied day to day life involving healthy social interactions, extra curricular activities as well as excursions and holidays. Each party recognises the importance of each child’s relationship with the other sibling.
An issue arises as to each party’s capacity to provide for the children’s emotional needs.
The mother deposes to the father imposing his views on the children and not allowing them to form their own views. She deposes to the children telling the father they did not want to go to a barbecue with him in December last year, but the girls went because they were intimidated by the father. This is a recurring feature of the father’s conduct. The mother alleges Jessica has complained of being unable to tell her father how she feels because he might get angry. Jessica did not raise any of these concerns with Ms Marriott. Although I accept the mother’s evidence as to the children’s occasional complaints to her, I am not persuaded the father is generally insensitive to the children’s needs or feelings. In fact, I find the father’s actions in arranging support for the children on their return to KPS demonstrated a careful regard for their emotional needs. I find the father and Ms Smith have successfully managed Sophie’s difficult behaviour in recent months and have shown proper regard for her emotional needs.
The mother has shown she has not always demonstrated a capacity to meet the children’s emotional needs. In February this year, I find the mother told the children about their impending move to Brisbane, and asked them to keep it secret from the father. On their last contact visit before leaving, she had the children lie to the father about when they would see him next. This put the children in a very difficult position and I am critical of the mother for this conduct. Ms Marriott said Jessica does not want to express her wishes openly for fear of upsetting one of the parents. The father’s counsel submits the mother has since involved the children inappropriately in her conflict with the father.
I agree.
Ms Marriott says the mother reported being unhappy in Sydney and in Ms Marriott’s view, her unhappiness may negatively impact on the children. The mother says her main supports are her close friends in Brisbane. She has friends in Sydney, her mother lives on the Central Coast and she has a sibling in Sydney, but she says she does not feel as supported by them. It seems the father’s support in recent years has been important for the mother but the mother does not feel as supported by the father since he commenced his relationship with Ms Smith. The father’s counsel submits there is no evidence about the mother’s unhappiness except her assertion that she is unhappy. Neither is there evidence to suggest the mother’s capacity to parent has been affected by her unhappiness. This is true.
I cannot predict with any certainty as to how the mother will manage emotionally if she cannot relocate, but I am encouraged by the evidence of the way the mother has managed hers and the children’s lives since separation. At separation, when the children were very young, the father returned to the United Kingdom to work, leaving the mother without his physical or emotional support. With very young children, the mother left Brisbane at the end of 1999 and settled in Sydney. She has bought and sold two homes and jointly purchased another since being in Sydney. The mother has friends and family in and around Sydney, knows Sydney well and has been employed in a responsible position in Sydney. There is nothing in the evidence to suggest the mother is socially isolated and will not adjust to another move in Sydney, or that she will remain as unhappy when this litigation has ceased as she reported to Ms Marriott. As recently as July 2005 she purchased a home with Mr Brown in Sydney. Now that her relationship with Mr Brown has ended, I accept the possibility that the mother’s emotional needs may be best met by a move to Brisbane but I am not convinced the children share those needs.
The current arrangements have the advantage of maintaining a balance in the children’s positive relationships with the most significant people in their lives, being their father, their mother and their paternal grandparents. The mother’s proposal seeks to vary this balance and it is not clear that this is either necessary or desirable for the children.
The Full Court in B and B (supra) said:
In relevant proceedings under Part VII, the ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
I accept that on the father’s proposal, the mother may be initially unhappy, whether she lives in the inner or outer suburbs of Sydney. She may at first blame the father for her predicament but with professional assistance and on the basis of her ability to cope well in the past, I have confidence the mother will accept the situation and deal constructively with it.
On the mother’s Brisbane proposal, the father will not have the same opportunity to exercise his capacity to parent the children on a day to day basis. The children will suffer a diminished level of intellectual and emotional input they presently enjoy from both parents. The children will also miss the security of their school and their friends. I find the father’s proposal or at least the children living in Sydney best meets the children’s needs in relation to this factor.
The children’s maturity, sex, lifestyle and background
There are no additional matters I have regard to in relation to this factor.
The attitude each parent has demonstrated to the responsibilities of being a parent
I have no doubt as to the mother’s commitment to her children. She has been a single parent since they were aged 3 and 1. She has ensured their continuing relationship with their father. The children impressed Ms Marriott as happy, well adjusted children. The mother should be given appropriate credit for this.
I accept Mr Torok’s submission that the father was frequently absent in the children’s very early years and did not always prioritise the needs of his young family ahead of his own wishes. The father has not always been available for the children. However, I find in more recent years, the father has been available for the children and has provided appropriate support to the mother and to the children. Despite the mother’s assertion that the father does not help with the children’s homework I am not persuaded this is true.
The mother has not always consulted the father about major decisions, a fundamental responsibility of being a parent. She enrolled the children in BPS without consulting the father. She has enrolled the children in extra curricular activities without consulting the father. She has confirmed commitments for the children on weekends in their time with the father, without consulting the father.
The father impressed me as child focussed. I found him frank and open about the difficulties he has experienced with Sophie, particularly since she returned from Brisbane six months ago, and about his concerns about Sophie’s behaviour at other times. I am satisfied the father is trying to address his concerns by setting appropriate boundaries and providing a supportive environment.
The father has taken the children to their commitments during his time with them, even when these had been arranged by the mother without consultation with him. He accepts the error he made in sending court documents to the children’s school and I found him sincere in his wish to repair any damage he may have caused to the mother’s relationship with the school.
Considerable time was spent at hearing on the issue of what role the father played in the mother’s decision to move to Brisbane. It is the mother’s case that the father did not voice his opposition to the move until her plans were in place, she had resigned her job, enrolled the children in a Brisbane school and booked the removalist, although she concedes the father told her on 1 February 2006 that he did not consent. The mother agreed that the father advised her again in mid-February 2006 that he did not consent to the move, and that if she did not guarantee she would not leave, he would seek an injunction from the Court. The mother says she understood when the father and
Ms Smith spoke positively about their visit to a Brisbane school, she assumed he agreed to her relocating. She says the father was aware she had been to Brisbane 3 times to research schools, housing and employment. She says the father paid an enrolment fee for BS for Sophie in 2004, having enrolled Jessica some years before. The mother says if the father had told her when she discussed the move with him in November 2005 that he opposed her relocation, she would have filed an application to the Court at that time.
It is the father’s case that he discussed the mother’s proposal to move to Brisbane with her on several occasions from November 2005 and made it clear to the mother he would not consent until he was satisfied about the parenting and child support arrangements. He annexes to his affidavit the email correspondence with the mother between November 2005 and February 2006. The father says that when he returned from a holiday on 21 January 2006 the children assured him they were staying at KPS but a few days later told him the mother had told them to lie and they were actually going to Brisbane. In February 2006, the father arranged mediation at Unifam and the mother agreed to attend.
I am satisfied the father was prepared to assess the advantages and disadvantages of the mother’s proposal and did give it consideration. However, the father had not consented to the move by the time the mother left Sydney for Brisbane on 1 March 2006. I find the mother was well aware the father did not agree to the move. She says she had advice from two solicitors before she left that she could leave without the father’s consent. She says in cross-examination “I felt we could work this out in a way that would mean we could go to Brisbane.” I am left in no doubt that in the face of the father’s opposition, the mother decided her best chance of successful relocation was to make the move and trust the father would be unlikely to cause the children the emotional distress of being brought back.
Each party acknowledges the breakdown in their communication with each other since March this year when the father commenced proceedings for the return of the children from Brisbane. Although they attended mediation in the weeks prior to this hearing, both agree their relationship has not improved. The mother says if I hear from him or receive an email, I feel physically sick for a couple of hours. The father says the mother was deceitful in leaving for Brisbane without his agreement and he no longer trusts her. The father agrees to participate in therapy with the mother to try to repair their relationship. This in my view is of fundamental importance to the welfare of the children. I am satisfied the father is prepared to make the effort. I do not have the same confidence about the mother.
I have earlier made a finding that the father will continue to facilitate and encourage the children’s relationship with the mother under his proposal and that I have concerns that the mother’s proposals do not provide the same protection to the children’s relationships with the father. In relation to this factor, I have additional concerns that if the children are living in Brisbane, the mother may be less inclined to consult the father about major decisions than if the children are in Sydney.
What orders would minimise the risk of there being further court proceedings about the children
These parties have not been involved in litigation until March this year. Until then, they had an excellent history of co-operation. If the children live in Brisbane, as already noted, I find it likely that in time, the children will find the travel to Sydney physically, socially and emotionally onerous. If the children are reluctant to travel and in time refuse to travel, there may well be contravention proceedings brought by the father or an application for variation brought by the mother. If the children are in Sydney, it is less likely there will be further proceedings between the parties.
The extent to which each parent has fulfilled or failed to fulfil, his or her responsibilities as a parent, including spending time with the children, participating in decision –making about their welfare, and facilitating the other parent to do the same, and the extent to which each parent and party has fulfilled his or her obligation to maintain the children
I have addressed matters in relation to this consideration elsewhere.
While the mother raised an issue about the level of her child support payments when the father was unemployed in 2003, I find the father has, while employed, met his periodic child support obligations.
I am satisfied on all proposals, each party will fulfil his/her obligation to maintain the children and this is not a matter I need take into account.
Conclusion
The legislation makes clear that the children must be the focus of the inquiry. It is a primary consideration that both parents remain significantly and meaningfully involved in the children’s lives. The parents in this case have had that involvement. Ms Marriott says the children are doing well under the current arrangements and made no complaints to her about the time they spend with the father. I must ascertain the children’s best interests with reference to the objects of the Act. Those objects include children having the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests.
In relation to the additional matters I have considered under s.60CC I find none of them outweigh the primary consideration that children benefit from having a meaningful relationship with both parents. I find the mother has recognised the importance of the children’s relationship with the father and promoted their relationships with him. I find her commitment has reduced in recent months. This has led to Sophie’s relationship with the father becoming more fragile and Jessica finding herself trying to please both her parents, who are no longer communicating. I am concerned that the children’s relationships with the father are not as secure as they have been. In my view, this situation will not improve if the children live in Brisbane.
As previously noted, I am not satisfied the mother properly considered the likely impact of her move on the children’s relationships with their father and the likely detriment to the children of removing the father from their day to day lives. I am not satisfied the mother’s proposal as detailed in her oral evidence, is financially realistic. I am not satisfied any benefits the children might enjoy as a result of the mother’s view she will be happier outweigh the likely detriment to the children of missing out on the presence of their father in their routine lives.
I have concluded that if the children stay in Sydney, the children will benefit from a meaningful relationship with both parents. I have concluded the children need their parents in the same city and they need their parents to re-establish a supportive cooperative relationship.
For the children, whatever the precise arrangements, it is imperative the parties can work together and communicate with each other. As already noted, I am persuaded this can only be achieved through therapeutic intervention.
The mother asks that mid-week time be reduced to every second week instead of every week. She says she considered suggesting the children spend an extra night on the alternate weekends but believes 4 nights away from her is too long for the children. She says Sophie in particular, has expressed reluctance to see her father mid-week. I have said elsewhere that I find the mother has contributed to Sophie’s present attitude to her father, and that the parties’ inability to communicate will be exacerbating the problem. I have regard to Ms Marriott’s evidence that the present arrangements are working and as long as the mother accepts she cannot take the children to Brisbane and affirms the importance of the children’s time with the father, the children will make the necessary adjustments and accept the arrangements. Ms Marriott recommends that if the mother remains living in Sydney proximate to the father, the current parenting regime continues. I agree with her recommendation. I am not persuaded there is any reason to reduce the children’s time with the father, although in my view it is better for the children if the alternate weekends incorporate the mid-week night in that week, so there are fewer changeovers. I take into account that it is possible the mother may live further away from the father than at present and that overnight mid-week time in the ‘other’ week would then not be practical. The father says he would consider moving closer to the mother’s residence and the children’s school if the mother lived in the southern suburbs of Sydney, to ensure he lives not further than a 30 minute drive from the children’s schools. If the mother moves and he makes this change, the mid-week overnight time can continue.
In view of Jessica’s expressed wish to maintain the status quo, I will require the parties to keep the children at their present school until Jessica finishes primary school.
I am satisfied that the Orders set out at the commencement of these Reasons are in the children’s best interests.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Sexton FM.
Associate: Collette McFawn
Date: 5 September 2006