Pelham and Newbold

FEDERAL CIRCUIT COURT OF AUSTRALIA

PELHAM & NEWBOLD

[2016] FCCA 3025

Catchwords:
FAMILY LAW – Relocation – best interests of child – mother proposing to relocate eight year old child from Tasmania to Adelaide – diverse parenting styles – conflict between parents.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Taylor & Barker [2007] FLC93-343

Paskandy & Paskandy [1999] FLC 92-878

MRR & GRR [2010] 240 CLR 461
McCall & Clark [2009] FLC 93 - 405

Applicant:

MR PELHAM

Respondent:

MS NEWBOLD

File Number:

HBC 400 of 2009

Judgment of:

Judge McGuire

Hearing dates:

14, 15 & 16 November 2016

Date of Last Submission:

16 November 2016

Delivered at:

Hobart

Delivered on:

1 December 2016

REPRESENTATION

Counsel for the Applicant:

Ms Mooney

Solicitors for the Applicant:

PWB Lawyers

Counsel for the Respondent:

Mr Dixon SC

Solicitors for the Respondent:

Butler, McIntyre & Butler

ORDERS

That all extant orders in respect of the child X born (omitted) 2008 (“the child”) be discharged as from 1 January 2017.
That the parents have equal shared parental responsibility for the child.
That the child live with the mother and that she be permitted to relocate his primary place of residence to South Australia provided that she at all times keep the father advised of the child’s primary address and telephone contact numbers.
That these orders authorise the father to have access to all school activities, reports, newsletters and other correspondence from any school that the child may attend and such as normally made available to parents.
That these orders authorise the father to have access to any medical, dental or mental health practitioner (including specialists) consulted by the child and for the father to be provided with such information normally afforded parents and the mother to prudently keep the father advised of the child’s general practitioner, dentist and any other medical practitioner or behavioural scientist consulted by the child.
That the child spend time and communicate with the father as follows:
(a)during the South Australian gazetted second term holidays from the first day of the holidays until the day prior to the child’s return to school;
(b)during the South Australian gazetted first and third term holidays from the first day of the holidays until the second Monday of the holidays;
(c)for one half of each South Australian gazetted summer school holiday period being the first half of such holidays in 2017/18 and in each alternate year thereafter and the second half of such holidays in 2018/19 and in each alternate year thereafter or otherwise as agreed between the parties;
(d)that the parties will equally meet the expense of the child’s air travel from Adelaide to Hobart for the purposes of the above orders with the father to be responsible for making the airline bookings provided that the mother is given a relevant itinerary not later than 28 days prior to the commencement of each such visit and that each parent to make and pay their contribution to the airfares not later than 14 days prior to the commencement of each such a visit (noting that the child at eight years of age is able to travel on Australian airlines unaccompanied);
(e)on one occasion each school term in Tasmania at the election of the father (including the Easter period) provided that the father give the mother not less than 28 days notice in making such an election in each term and that the father be responsible for the payment of the child’s return airfares from South Australia to Tasmania provided that the father’s elections does not include the child’s birthday in consecutive years;
(f)that at the father's election, should the father travel to South Australia (at his own cost) not more than one occasion each month (but not to coincide with the mother’s school holiday time with X) but subject to the father giving the mother not less than 14 days notice in writing of such election and, if so, then the child to spend time with the father from after school on Friday to before school on Wednesday or such other lesser times as nominated by the father or otherwise as agreed between the parties;
(g)such other times as may be agreed between the parties from time to time in writing; and
(h)by electronic face communication on two days per week on Sunday and Wednesday at 7.00 p.m. (Tasmanian time) with the father to instigate each such communication and that the mother to make the child available to accept the communication such to continue for a reasonable time, but provided that the mother have similar communication with the child on Sundays and Mondays when the child is with the father in school holidays and on these occasions the mother to instigate the communications and the father to make the child available.

IT IS NOTED that publication of this judgment under the pseudonym Pelham & Newbold is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HOBART

HBC 400 of 2009

MR PELHAM

Applicant

And

MS NEWBOLD

Respondent

REASONS FOR JUDGMENT

Applications

These are parenting proceedings in respect of the parties’ only child X born (omitted) 2008 (“X”) who is aged eight years.
The applicant father seeks an order whereby the X live primarily with him and spend time with the mother on a regime dependent upon whether the mother chooses to live in South Australia or in Tasmania.
Significantly, the father seeks an order that the parents exercise equal shared parental responsibility of X.
The father's position has changed significantly during the course of the proceedings and it seems that until shortly before this hearing he was favouring an order whereby X lived in an equal time arrangement between himself and the mother and obviously in Tasmania.
The mother argues for orders whereby X lives primarily with her in South Australia and spends time with the father variously in Tasmania and with Mr Pelham travelling to South Australia.
Unlike the father, the mother proposes an order that she have sole parental responsibility for X. The mother's position in respect of parental responsibility extends to her also effectively conceding parental responsibility to the father should she be unsuccessful in her application that X live primarily with her. The mother’s position is that she will move to South Australia regardless of whether the Court permits X to relocate.
A central theme, therefore, and focus of the dispute between these parents is the mother’s desire to relocate with X from Tasmania to South Australia.

Background

The father is 39 years of age. The mother is 36 years. They started a relationship in 2006 and commenced cohabitation in 2007. They have lived in Tasmania since late 2007.
The parties separated in December 2008 when X was just seven months old.
The father is now in a relationship with Ms J. That relationship has endured since 2011. They have lived together since 2013 in a home at (omitted) where the father has lived consistently since 2011.
The father is self-employed as an (occupation omitted).
The mother currently lives in (omitted) which is (omitted) of Hobart. X attends the (omitted) primary school where he has been since his kindergarten year in 2013.
It is an agreed fact that the mother has moved residences some 14 times with X in less than eight years that the parties have been separated.
The mother is not employed. She apparently has an 'exemption' from Centrelink relieving her from seeking employment due to some 'stress' difficulties. Ms Newbold does, however, have tertiary qualifications in a (qualifications omitted). She has, according to her resume, some considerable experience working with (employers omitted) in various capacities although no recent employment experience in Tasmania. The evidence is that the mother now has an offer of employment suitable to her qualifications and experience in Adelaide. The salary for her employment is $60,000 per annum although she may be offered less than full time hours depending upon her commitments and then at a pro-rata rate of $60,000.
There is no evidence that the mother is currently re-partnered.
The mother’s own mother and extended family and sisters and brother live in Adelaide. The mother proposes that she and X live with her mother.
It is an agreed fact the X has lived primarily with the mother since the parents separated. The arrangements have been evidenced by various Court orders and the Court file indicates that the parties have been frequent visitors to the Family Courts since about May 2009. The most recent substantive orders date from 15 August 2013. Those orders were made by consent. They provide for the mother and the father to have equal shared parental responsibility for X. Those orders occupy some seven pages and are complex and detailed to a degree that I am not surprised has led to some dispute in interpretation and despite what was obviously a valiant attempt by the parties legal representatives to alleviate any room for negotiation between the parents. These orders have been the subject of some ongoing dispute.

The Family Report

The parties and the Court have had the benefit of an insightful Report prepared by Family Consultant, Ms S. That Report is dated 24 October, 2016. It arose out of interviews conducted with the parties and observations with X which took place on 28 September, 2016. At that time Mr Pelham was urging orders for an equal-time arrangement for X between his parents and, of course, the Family Reporter was oblivious to the change in Mr Pelham’s position at the start of the hearing whereby he sought orders for X to live primarily with him.
Ms S gave evidence and was cross-examined by counsel for both parties. Ms S's Report offers recommendations inter-alia as follows:
(1) That X does not relocate with his mother to Adelaide;
(2)That X lives in an equal time week about arrangement with each parent;
(3)That changeovers be conducted as far as possible in mental (sic) environment such as school; and
(4)That if Ms Newbold relocates to Adelaide without X, it is suggested that X spend time with Ms Newbold during holiday periods, either in Hobart and (sic) Adelaide, (the location of spending face-to-face time in either city largely depending on logistical and financial issues) and has weekly conversations via Skype or phone.
At the end of her evidence Ms S was asked whether she has any recommendations in respect of X’s parenting and living arrangements given the changes in the parties positions. Specifically, she was informed that the father now sought orders that X live primarily with him and it was confirmed to Ms S that the mother’s position was that she herself would relocate to Adelaide whether or not the Court permitted X to relocate. Perhaps not surprisingly, Ms S was unable to a give any definitive recommendation in respect of these now competing positions and the tenor of her evidence was that she remained of the view that X's best interests, in any event, would be served by a week-about arrangement between his parents.
Ms S was an impressive witness. Her responses were thoughtful and informed. She did not appear to suffer from clichéd repetitions of social theorem but was focused on the particular dynamics of the relationship that this child has with these particular parents.
Ms S had the advantage of interviewing the father’s partner, Ms J, and also observing X with both parents. Ms S had the benefit of much of the subpoenaed material now before the Court as exhibits.
Ms S’s interviews and observations with the parents informed her, as it did this Court, that these parents have an extremely poor personal relationship and one devoid of communication, trust and cooperation. Ms S at [13] notes the father describing the relationship with Ms Newbold as 'toxic'. Further, at [14], [15] and [16] Ms S reports the father being critical of the mother but, on my reading, more in the terms of her particular personality. Indeed, in the witness box before me the father was able to describe Ms Newbold as ‘a good parent' of X whilst reiterating his concerns as to her particular personality traits which cause her to be overly suspicious and to fall into conflict with various people, including the principle of X’s school and other relevant adults.
Ms S reports Ms Newbold as presenting 'in a cooperative and at times articulate but also emotionally upset, inconsistent and somewhat vague when answering questions' these observations accord with my own view of Ms Newbold in the witness box. Further, Ms S reports at [25] that of Ms Newbold describing her and Mr Pelham as 'just two very different people' and also alluding to Mr Pelham’s distrust of her.
Ms Newbold is reported as seeking to relocate to Adelaide with X for housing, financial, employment and support benefits.
At [30] Ms S reports Ms Newbold as follows:
Ms Newbold said that she believes X would not manage being away from her according to Mr Pelham's proposal. She seemed distressed and unable to contemplate that X would not always live with her, either in Hobart or Adelaide.
Interestingly, in her evidence in cross-examination, Ms Newbold was less emotional in response to a similar question and indeed asserted the following propositions:
i)That X would manage without her as his primary parent if she was to relocate to Adelaide without him;
ii)That she would manage if she were to relocate to Adelaide without X; and
iii)That Mr Pelham would manage if he was to become the primary carer of X.
Ms S had the advantage of interviewing X and observing him with both parents. She describes him as articulate with a vocabulary well beyond his age. At [41] she reports X as saying:
I kind of want to go to Adelaide but kind of don’t.
At [42] Ms S reports X as enjoying talking about his school. He says that he likes school most of the time and that he likes his teachers. He reports that he has good friendships. This evidence is to be considered against that of the mother who seems alert to difficulties in X's education with a particular focus on his grasp of mathematics. The father’s evidence is more consistent with that of Ms S’s and suggesting that X is progressing well both academically and socially at school. Again, however, such a difference between the parents may reflect their personalities as much as any difficulty suffered by X at school. X’s school report and the evidence of the principal suggests that he is progressing well at (omitted) primary school.
X is just eight years of age and the above hesitation suggests that he is unable to rationalise the current issue between his parents within the context of his own best interests. Nevertheless, Ms S delicately probed this issue and at [48] reports:
When asked to answer on a scale from 0 to 10 (zero being a very bad idea and 10 being a very good idea), X was asked to rate how he felt about a number of parenting arrangements. He rated three arrangements as ‘5'. These are: going to Adelaide with his mother; the parenting arrangements remaining the same; and living more often with his father that (sic) his mother. X designated '0' to the arrangement whereby his mother moved to Adelaide and he remained in Hobart living with his father. He designated a '10' to him living in a '50/50 week about arrangement'.
Ms S observed X to be composed and focused when with Mr Pelham and that their interactions were relaxed and spontaneous and also that there was a comfortable relationship for X when Ms J joined the interview.
Similarly, Ms S observed an easy and comfortable relationship with X with his mother. In her evidence, however, she expressed some concern that X stated that he 'felt sick and sat on Ms Newbold’s knee' during the course of her their observation together. The suggestion from Ms S in the witness box is of a more dependent type relationship between X and his mother than with his father and also that Ms Newbold’s responses to X claiming to feel ill may not have been always appropriate. Ms S was cross-examined in this respect with the benefit of evidence suggesting that X had missed some 34 days of school during the 2015 school year which amounts to almost 7 whole weeks of school with further evidence that much of his absence was due to 'illness'.
I found Ms S’s evaluation of the dynamics of this family to be of real assistance. Interestingly, and whilst advocating a shared care arrangement, Ms S at [56] concludes that the history of the relationship between Ms Newbold and Mr Pelham does not to give a strong foundation on which to develop a functional-co-parenting relationship. In respect of these observations she continues, however, in that paragraph to say:
The relationship between Mr Pelham and Ms Newbold does not appear to be sufficiently strong to manage the demands involved in X spending time with this Mr Pelham from interstate.
At both [58] and [59] Ms S indicates that X would benefit from spending more time with Mr Pelham. She developed this point in her oral evidence noting the differing parenting styles between the parents.
At [60] Ms S opines in respect of X’s close relationship with his mother as follows:
Given the apparent closeness of his relationship with Ms Newbold, X may not tolerate being away from her for more than a week at a time at this stage. A week about equal time arrangement is also consistent with X's wishes, suggesting that he has confidence to manage being apart from his mother for a week.
Finally, Ms S urges a week-about arrangement whilst being mindful of the poor or non-existent communication between the parties but justifies her recommendation on the basis of transitions occurring only once a week.

The Father’s Case

The father’s case is that he considers X’s best interests now being served by a living with him regardless of whether the mother relocates to South Australia. He says that he can provide stability of a home, school and parenting role model for X he says that he can provide adequate financial support. The implication is that he is better equipped in all of these respects than the mother.
Mr Pelham further argues that the Court should not be satisfied that Ms Newbold will be either willing or able to foster and facilitate an ongoing regular relationship with him from Adelaide. He asked the Court to doubt the evidence of the mother that she will have any enduring employment, accommodation or supportive relationships in Adelaide should X relocate there with her.
Mr Pelham was an impressive witness. His responses in cross examination were informed and thoughtful. He appeared child focused. He was prepared to make important and candid admissions against interest. He was prepared to make concessions when appropriate. Indeed, it is fair to say that a number of Mr Pelham’s admissions and concessions could be seen as damaging to his own case but reflect admirably on his confident relationship with X and his preparedness to prioritise his son’s best interests. For example, Mr Pelham candidly admitted that he thought his relationship with X strong enough to endure if X was to relocate to Adelaide with his mother. Similarly, Mr Pelham admitted that he considered Ms Newbold’s reasons for wanting to relocate to Adelaide to be honest and legitimate. I must say it is a pleasant but unusual experience for this Court to hear such forthright and honest evidence from a parent confronted with the possible relocation of his son.
Similarly, Mr Pelham was not hesitant in noting Ms Newbold’s good points as a parent and readily volunteered at one stage that she is a 'good mother'. Nevertheless, he maintained and argued his own case with equal vigour and objectivity.

The Mother’s Case

Ms Newbold says that she has consistently expressed a desire to relocate herself back to Adelaide since at least 2009. Her argument is a simple and not uncommon one to come before these Court's in respect of matters involving relocation of children. She says that she has employment available for her in South Australia in a field in which she has experience and expertise. She says that she has accommodation available with her mother. She says that she has the available actual and emotional support from her mother and her siblings. Each of these factors is corroborated in varying degrees by other evidence.

Ms Newbold exposed her own particular personality unambiguously in the witness box. She was prone to tears and lengthy pauses, before her responses. She appeared fragile and vulnerable in her demeanour. These traits, however, seemed to be legitimate and in no way embellished for the benefit of the Court. She was, in my opinion, honest in those responses and, like Mr Pelham, satisfied me that she held X’s best interests as her priority. In this sense, the difficulties for Ms Newbold should not be underestimated. She satisfied me that she has a sincere and well-established desire to relocate herself to Adelaide and, in this sense, I did not detect any sense of 'bluff' in her instructions to her counsel that she would relocate herself to Adelaide even if the Court was not satisfied that such a move was in X’s best interests.
Ms Newbold’s evidence was that she has had great difficulty enduring her recent years in Tasmania. She has not had employment. She has been unable to secure stable accommodation for herself and X. She has not had any or any strong support network in Tasmania and her demeanour in the witness box conveyed to me an honest sense of helplessness and sadness. She is, however, at the same time, prone to being assertive and it is not surprising, from my observations of her, that she has often fallen into conflict with other adults such as school teachers.
Ms Newbold’s evidence is that she will be a happier and more competent parent of X if she is allowed to relocate with him to South Australia. She says that she will encourage and facilitate X's ongoing relationship with his father both directly and through various media.
That Ms Newbold should instruct her counsel to seek an order that she relinquish parental responsibility of X completely to the father if she is unsuccessful in her application is indicative of her own personality. It is difficult to contemplate more diverse personality types than these two parents and it seems that the mother accepts that easy communication between herself and Mr Pelham is now unlikely after some eight years of consistent conflict over X.

The Witnesses

Mr S – School Principal

Mr S provided an affidavit and was cross-examined. His affidavit and his evidence noted both the regular involvement of Ms Newbold in X’s schooling by way of parent help and special tutoring but also her tendency to conflict with teachers and other parents. Mr S was a witness brought to Court by the father and it seems that his affidavit was prepared with a slant towards the father's position and therefore not entirely objective or indeed factually correct as to some premises for his conclusions.
Mr S indicated that X was progressing well at (omitted) School both academically and socially and certainly did not corroborate any of Ms Newbold’s doubts in these respects.
Mr S confirmed that he would generally be concerned as to whether a student’s absenteeism are at X's level.

Ms J

Ms J provided an affidavit and was cross-examined. She is Mr Pelham's partner. She was an assertive and understandably partisan witness and one prone to volunteering gratuitous criticism of Ms Newbold and her parenting. I can be satisfied that she will be a supportive adult in Mr Pelham's home should X live there. I cannot be so confident that she would objectively portray X's mother in a good light.

Ms M

Ms M is a psychologist who has assisted Ms Newbold since September 2015 and through numerous consultations. Ms M’s assistance for Ms Newbold was initiated from alleged childhood sexual abuse suffered by Ms Newbold and for which she has suffered unfortunate recent Court proceedings. Ms M says that therapeutic treatment for Ms Newbold has been respect of her general coping, focusing on managing stress and low mood. Ms M identifies stressors/triggers for Ms Newbold as being, firstly, continuing legal process, secondly, justification of her parenting decisions, and thirdly, feeling disempowered as a parent.
Ms M says that Ms Newbold does not display signs or symptoms consistent with a formal diagnosis of any major mental illness, personality disorder, or intellectual disability. She does, however, observe her presentation being consistent with a complex trauma history manifesting in depressive symptoms and 'sensitivity/ hypervigilance to threats to her sense of self'. She does not identify symptoms of post-traumatic stress disorder or major depressive disorders.
Ms M reports at [26], [27], and [28] as follows:
26.Based on Ms Newbold’s current presentation, I would anticipate that she would continue to struggle with negative thoughts and feelings if she would continue to reside in Tasmania. Ms Newbold has struggled to overcome her low mood and self-criticism despite regular therapy, due to the ongoing triggers in Tasmania.
27.She has found it difficult to develop a social support network in Tasmania and struggles to find employment, which contribute to her negative thoughts and feelings.
28.Financial strains contribute to Ms Newbold’s low mood. Ms Newbold was reported becoming upset that she is unable to afford to regularly participate in entertainment activities with X, such as going to the movies, at present. Ms Newbold intends to live with her mother in South Australia, and has reported employment contacts and opportunities in South Australia. She believes that she can provide a better quality of life for herself and X in South Australia, with fewer financial concerns.
Finally, Ms M notes that Ms Newbold and X share a secure attachment. She opines that it would be possible for Ms Newbold to cope if she chose to leave (presumably because of that established secure attachment).

Ms C

Ms Newbold is the maternal grandmother. Her affidavit and evidence in Court was generally supportive of the mothers parenting and her ability to provide accommodation in Adelaide together with physical and emotional support for her daughter and X.
Ms Newbold’s affidavit at [31] discloses that she has travelled to Tasmania regularly for two – three week blocks and I conclude, therefore, that she would (despite her age) continue to support Ms Newbold if she was to remain in Tasmania (although, of course, this is not an option that Ms Newbold is leaving for the Court).

Mr G

Mr G provided an affidavit was cross-examined. He is Ms Newbold’s prospective employer in Adelaide. He confirmed the availability of employment for Ms Newbold such being open until at least the end of January 2017 and if not taken up by that time then he would be obliged to look for other candidates. He has met Ms Newbold and she has worked for some days in his business. I am satisfied that his offer of employment is legitimate although he appeared to be somewhat oblivious to some of Ms Newbold’s more fragile personality traits.

Mr W

Ms Newbold affirmed an affidavit on 24 October, 2016. He was not required for cross-examination. He is the mother's nephew. He is 27 years of age. He deposed to being currently and potentially supportive of the mother should she relocate with X to Adelaide. His evidence was otherwise unremarkable.

The Issues

The major issues for the Court’s consideration can be summarised as follows: –
i)Are X's best interests served by living primarily with the mother or the father or in a shared care arrangement between them (as recommended by the Family Reporter)? In this sense, the Court is advised that the mother is firm in her resolve that she would relocate herself to Adelaide in any event including that the Court does not permit X's relocation. Nevertheless, and as put to counsel during the hearing, the Court's fundamental and paramount consideration is to make orders which it considers on balance to be in a child's best interest.
ii)A determination as to whether the presumption of equal shared parental responsibility is rebutted as being contrary to X’s best interests? Again, the Court is aware of the mother’s position being that she would intend relinquishing any such right and obligation if the Court was to place X in the primary care of the father. Nevertheless, again the paramount consideration for the Court is the best interests of the child and not simply a choice between the two options left by the parents.
iii)A consideration of X's best interests within the context of the mother's proposal that he relocate with her to Adelaide.

The Relevant Law

Despite the substantial assistance given to Judges by the Legislation under part VII of the Family Law Act 1975 (“the Act”), litigation involving the proposed relocation of a young child remains amongst the more difficult matters facing these Courts. Unlike many parenting matters which ultimately involve only discrete distribution of a child’s quality time between parents, the relocation of a child will inevitably leave the remaining parent aggrieved with a substantial sense of loss. The nature of the relationship between that parent and a child will undoubtedly be changed as to its very nature, basis and frequency. Relationships for the child with extended family members and peers are often tested if not severed. The remaining parent loses any flexibility and spontaneity in the relationship with the child to be replaced by issues of travel logistics and expenses not otherwise anticipated. Children, as they settle into a new environment and new relationships, will often themselves test the durability of the best intentioned Court orders aimed at maintaining a relationship with the remaining parent. Conversely, however, the refusal of an application to relocate the child might result in an otherwise not anticipated change of residence. Otherwise, an unsuccessful applicant may be obliged to live in a location other than their preferred one which will bring similar grief, disappointment and a sense of unfulfilled ambition. A parent may be left feeling isolated without family or other support and the combination of all of these factors may impact on his or her parenting capacity. In summary, therefore, and contrary to the rationale of the Act, matters involving a relocation often bring with them a sense of a “win” or “ or lose” with the Court left with little or no room for subtle construction of orders as in the more usual parenting disputes.
The jurisdiction of the Court is first and foremost in respect of children. Whilst a Court may allow or prevent the relocation of a child it cannot usually, per se, prevent the freedom of movement of an adult. Such has been recognised historically by superior Courts including the High Court which obliges the trial Judges to consider the 'right of freedom of movement of a parent subject always to the best interests of the child.
Interestingly, the Act itself is silent as to the notion of relocation. It follows that a relocation is neither expressly prohibited by law nor is there a presumption against it. That is, a proposal by a parent to relocate a child is simply one factor to be considered among a plethora of others in arriving at orders which, on balance, are in the best interests of the child. In this sense, the Full Court in Taylor & Barker[1] confirmed earlier authority of Paskandy & Paskandy[2] that there can be no dissection of a parenting matter into discrete issues of, firstly, who the child shall live with and then a further or separate issue as to whether a relocation should be 'is permitted'. The Court in Taylor and Barker (supra) observed:
In our view, his Honour dealt with the relocation proposed in the context of his considerations of s60CC and s65DAA at least in so far as it was possible to do so. It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, so far as is possible, in the context of the making of the necessary findings in relation to s60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s65DAA.
[1] [2007] FLC93-343
[2] [1999] FLC 92-878
It is trite to observe that the Act at s60 CA obliges a Court to make orders which have the child's best interests as its paramount consideration.
Matters involving relocation emphasise the dual requirements of parenting orders to be both in a child's best interests and 'reasonably practicable'. These considerations are important where trial Judges are legislatively mandated, upon a finding of equal shared parental responsibility, to follow a statutory and intellectual course of consideration including firstly whether a child spends 'equal time between parents' or, if not in a child's best interests and reasonably practicable then whether the child spends 'substantial and significant time between the parents'. The latter notion is defined at s65DAA (3) of the Act as:
(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays;
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parents.
The parameters of the dispute as set by the parties in the matter now before me perhaps leaves out options of equal time or 'substantial and significant time' for X between his parents by reasons of geography although, of course, the Court ultimately makes orders which on the probity of evidence are in the child's best interests. As the High Court in MRR & GRR[3] observed at [15]:
Section 65DAA (1) is concerned with the reality of the situation of the parents and the child, and not whether it is desirable that there be equal time spent by the child with each parent. The presumption in S65DA (1) is not determinative of the questions arising under S65DAA (1). Section 65DAA (1) (b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both the parents remained in Mt Isa, (the trial Judge) was obliged to consider the circumstances of the parents, more particularly those of the mother, in determining whether equal parenting was reasonably practicable.
[3] [2010] 240 CLR 461
Decisions of the Full Court since the important amendments to the Act in 2006 demonstrate, in my view, that historical principles extracted in relation to matters involving a proposed relocation of a child remain valid. They can be summarised as follows:
·relocation matters are to be determined generally with reference to part VII of the Act;
·the child's best interests remain the paramount but not the sole consideration;
·a relocation proposal is to be evaluated within the context of the necessary findings in relation to the child's best interests (s60CC factors) and, where appropriate, s65DAA (reasonably practicable);
·the Court must consider the parties’ proposals, including the advantages and disadvantages of the proposed relocation, and may be required to formulate proposals itself in the best interests of the child;
·neither party bears an onus to establish the relocation or a continuation of an existing regime will best promote the interests of the child;
·an applicant for relocation need not show 'compelling reasons' in support of the relocation but must, in my view, give or produce probative evidence which permits the Court, on balance, to find that a parenting order involving a relocation of a child is in that child's best interests;
·the child's best interest must be weighed and balanced against the 'right' of the proposed relocating parent's freedom of movement but such ‘right' must ultimately defer to the child's best interests.
The starting point for a Court’s consideration is the presumption at s61DA of the Act of equal shared parental responsibility in parents for their children. Parental responsibility is often defined as all of the duties, powers and responsibilities which parents hold in respect of children by reason of law with such responsibilities usually manifesting in long-term and important decision-making matters for children in respect of issues such as education, religion, medical procedure and similar.
The presumption of equal shared parental responsibility does not apply if a Court is satisfied that there has been family violence or abuse of a child. Despite some historical references by the mother within the broad definition of family violence and abuse in the Act, these issues were not left to the Court and that I am of the view that the presumption applies. Nevertheless, and alternatively, the presumption can be rebutted by evidence satisfying the Court that such an order would not be in the child's best interests. As mentioned above, if the presumption of equal shared parental responsibility applies and is not rebutted then the Court must follow a course of consideration firstly as to whether the child spending equal time between parents is both in the child's best interests and reasonably practicable and, if the answer to either of those questions is in the negative, then whether a child spending 'substantial and significant time' between parents is both in the child's best interests and reasonably practicable.
The framework for determining a child's best interests is provided in s60B of the Act which sets out the objects and principles of the Legislation as follows:
(1) objects of this part are to ensure that the best interests of children are met by:
(a)ensuring the 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
(b)protecting children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring the children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring the parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;
(2) the principles underlying these objects are that (except when it would be contrary to a child's best interest):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly shared duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The Court determines the best interests of children by referencing the probative evidence and the parties proposals to the mandatory consideration set out in s60CC(2) and (3) of the Act. These considerations are divided into 'primary' and ‘additional' considerations. There is, however, no hierarchical importance and each matter is to be considered as to its own particular factual platform and weight to be attributed to each factor accordingly.

Section 60CC factors

Section 60CC(2)(a) – the benefit to the child having a meaningful relationship with both parents

The evidence before me is unambiguous that X enjoys a close and loving relationship with both of his parents. The nature of those relationships might differ but only by reason of the parents’ different personalities and parenting styles.

It is clear that from a long line of Full Court decisions[4] that the adjective 'meaningful' should be seen in qualitative rather than qualitative terms and that the enquiry for the Court is obviously a 'prospective' one but one that also considering the evidence as to the current nature of the relationship between child and parent. The Family Reporter’s expertise and observations are relevant for this consideration. She variously opines that X would benefit from spending more time with his father. She also suggests that the closeness of X's relationship with his mother is such that he may not tolerate to being separated from her for any lengthy period of time.
[4] McCall & Clark [2009] FLC 93 - 405
Significantly, both parents in their evidence were clear that the strength of their particular relationships with X was such that they believed those relationships would endure separation from him.
I am confident that Mr Pelham will prioritise X's needs and would encourage, foster and facilitate X's relationship with his mother should X remain in Tasmania and Ms Newbold relocates herself to Adelaide. Ms Newbold’s own personality and parenting traits are more problematic in this respect. Certainly, Mr Pelham himself expressed some doubt as to whether Ms Newbold would be able to prioritise X's relationship with him if conflictual situations arise. Nevertheless, these matters were put to Ms Newbold in cross-examination and I am satisfied that she understands her obligations accordingly which of course, could be solidified by detailed and precise Court orders.

Section 60CC(2)(b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Fortunately, these issues do not assume great importance in the matter now before me. However, and again, the personalities of the parties are relevant and can be considered here. At [13] of the Family Report Mr Pelham is reported as follows:
Mr Pelham described his relationship with Ms Newbold as 'toxic'. He said that after the initial six months of their relationship, he felt continually ridiculed and criticised by Ms Newbold during what he described as her 'rages' against him, which, from his perspective, could be triggered by innocuous comments that would not predictably cause upset in a person. He said she was excessively jealous and that her moods were volatile and capricious. Mr Pelham said that she 'pushed and poked' him and, at times, behaved menacingly towards him. Mr Pelham said that he felt emotionally unsafe with Ms Newbold and had, for this reason, emotionally separated from her prior to X's conception, despite their connecting physically on occasions. He said that he decided, with the advent of a new baby, he wanted to try to make their relationship work, however, he said the pattern of arguments and Ms Newbold's alleged abuse of him continued to the point that, when he could see that X was been exposed to the conflict, he decided to separate from Ms Newbold. X was seven months old time.
At [23] of the Family Report Ms Newbold reports:
Ms Newbold said that her relationship with Mr Pelham was complicated. She described a different view to his as to the course of their relationship. Ms Newbold said that she does not agree with Mr Pelham's view that she raged at him or was abusive. She said that he tended to be 'closed off' in the relationship and he withdrew from her to the extent that the relationship was not viable and she chose to leave him. Ms Newbold thinks that she finished the relationship; in contrast to what Mr Pelham had said during his interview. Ms Newbold said that she tried to mediate with Mr Pelham but that he made communication intolerable. In talking about this, Ms Newbold was emotionally distressed.
It is clear that the parental relationship has been highlighted by suspicion and acrimony. There is resultant mutual mistrust between the parties and an ever present potential for conflict. It seems likely that X has been exposed to and has an understanding of the conflict between his parents. An advantage of relocation is to put distance between the parties and minimise the opportunities for direct conflict situations. Of course, this would be the case whatever order I make given Ms Newbold’s position that she will move to Adelaide in any event.
The mother has on occasions engaged the State Child Protective authorities and police in Tasmania, and often on matters which would ordinarily appear to be innocuous. Again, I am content to attribute this tendency to the mother’s peculiar personality traits and also to the fact that she feels isolated and without normal support networks in Tasmania. Certainly, however, I would not to categorise her complaints as matters of 'abuse'.

Section 60CC(3)(a) - any views expressed by the child and any factors (such as the child’s maturity level of understanding) that the Court thinks relevant to the weight it should give to the child's views

X is just eight years of age and a Court should be cautious in attributing weight to the views and preferences of such a young child. Nevertheless, both parents describe X with adjectives which suggest maturity. The Family Reporter described him as articulate with the 'nuance and vocabulary well beyond his age'.
Ms S delicately extracted X’s views and preferences as set out at [48] above.
At [47] of her Report Ms S suggests that X has been ‘consulted’ by each parent in respect of the primary issue before the Court. She reports:
When talking about the prospect of living in Adelaide, it became clear that X had detailed information about his mother's proposal. He was also able to state clearly that is mother wants to live in Adelaide and that his father wants him to live 'one week with him and one week with Mum'.
I prefer that at just eight years of the age and exposed to the conflict between his parents, X is unlikely to be able maturely rationalise his best interests in respect of his living arrangements.

Section 60CC(3)(b) - the nature of the relationship of the child with each of the child's parents and that any other persons (including any grandparent or other relative of the child

As mentioned above, X is observed and understood by each of the parents to have mutually good relationships with them. The evidence suggests a comfortable relationship between X and Ms J and also with the maternal grandmother.
The orders sought by Ms Newbold would fundamentally change the nature of X's relationship with his father and with members of the external family. By reasons of geography that relationship would significantly decrease in frequency. The opportunity for spontaneity and flexibility within that relationship would be lost. X's time with his father would be primarily limited to school holidays and perhaps infrequent weekends and, of course, these opportunities would then also need to encompass relationships with extended family. The converse would apply if X is to remain with his father in Tasmania and Ms Newbold, as she maintains, would move her herself to South Australia.
X, however, is described in positive terms by his school principal, the Family Reporter and each of the parents. Certainly, the parents both maintain that X could continue a successful relationship with the other with the use of media and perhaps longer block periods of time with the other parent during school holidays.

Section 60CC(3)(c) - the extent to which each of the child's parents is taken, or failed to take, the opportunity: to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and communicate with the child

Again, the parents differing personalities and parenting styles are to the fore in this consideration. The father has to date delegated primary care of X to the mother but, on the evidence, has consistently sought to maintain his own relationship with his son. Mr Pelham was impliedly criticised in cross-examination by his alleged lack of involvement in X’s schooling relative to that of the mother. I do not accept such criticism. I find Mr Pelham to be an astute and insightful parent who pursues his own parenting style. The fact that he may be less overtly and actively involved in matters such as parent-help at X’s school is in no way a negative trait. Indeed, Mr Pelham has been active in other ways such as engaging with doctors and therapy. Certainly, the mother is more inclined to active and overt participation in X's schooling. Whilst this is an admirable intent, her personality has sometimes caused conflict within the school.
I prefer that children benefit from a breadth of parenting styles. There is no ideal style. Each of these parents differ remarkably in their own chosen style. X should benefit accordingly. Mr Pelham is inclined to more flexibility and avoidance of conflict. Ms Newbold is more assertive and literal in respect matters such as the extant Court orders.

Section 60CC(3)(ca) - the extent to which each of the child's parents has fulfilled or, or failed to fulfil, the parents obligations to maintain the child

Yet again, the tendency to conflict and mistrust between the parents impacts on this consideration. For example, one parent might pay for a medical procedure, but the lack of communication between the parents results in the other parent perhaps not contributing but without any mal intent.
X has lived primarily with the mother. She has provided financial support but claims that her own difficult financial situation impacts on X’s day-to-day enjoyment of life and extracurricular activities. Mr Pelham pays child support commensurate with his assessment obligations. He undoubtedly also contributes for X when the child is with him.

Section 60CC(3)(d) - the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents and any other relevant person

The initial recommendation of the Family Reporter would not involve any separation from X from either parent. Indeed, Ms S's proposal would see X benefiting from a more equitable division of his time between his parents and hence maximising the potential of each relationship. Ms Newbold’s commitment to leave Tasmania, regardless of my orders, will inevitably result in a significant change for X and as set out in detail above. In addition, he will be required to endure the logistics and stresses of travel between Adelaide and Tasmania. I am told and I accept that there is no direct air travel between the two States and that this will involve changeovers in Melbourne. However, the mother's position is such that X will need to deal with these changes regardless of where he lives.
The mother's proposal would also see X changing schools and where the mother has had 14 changes of residence, I expect that the consistency of (omitted) primary school has been a positive for X and is reflected in his academic and social successes. However, the evidence also points to X being an adaptable child who is able to make friends easily (Family Report at [42]).

Section 60CC(3)(e) - 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

The practical difficulties confronting X have been detailed above. There will be logistics of travel. He will lose the ready availability and spontaneity of at least one of his parents. Neither parent is of any considerable wealth and there remains a potential for further conflict in respect of the costs of travel for X between South Australia and Tasmania. The financial circumstances of each parent suggest that there will be limited opportunity for the non-primary parent to travel frequently to X's State of residence.

Section 60CC(3)(f) - the capacity of each of the children’s parents; and any other person to provide for the needs of the child, including emotional and intellectual needs

The Family Reporter at [51] observed Mr Pelham is as follows:
Mr Pelham demonstrated a buoyant, involved, child focused approach to X. He showed a positive parenting style; affirming, supportive and educative. Their interactions appeared relaxed and spontaneous. Their relationship appear easy and warm. When joined by Ms J, the observations continued in much the same way. Ms J added energy and a third dynamic to the interactions.
My observations of the father were of a calmer and more relaxed personality than that of the mother. Nevertheless, she has been the unchallenged primary parent of X since soon after his birth. Significantly, the father has not seen fit to make application for the major parenting role until confronted with Ms Newbold’s application to relocate. In this sense, I infer that he has been content to delegate that primary role to the mother and that, as the caring and insightful parent that he is, must himself have been generally satisfied as to the care given his son by Ms Newbold.
Ms Newbold presents as a more anxious and vigilant parent. This is not a criticism but simply noting the difference in styles between these two parents, a factor of which I presume lay at the very base of their ongoing conflict.
Ms Newbold undoubtedly prioritises X's care, welfare and education. She is heavily involved in school and education activities. She is vigilant as to his diet and health. I accept that her rationale for relocation is genuine and based on increasing her own parenting capacity.
The father and the Family Reporter raised doubts as to the mother's understanding and capacity to facilitate X's relationship with his father should the relocation be permitted. There are quirks to Ms Newbold’s personality which may give such an impression but, overall, I was impressed with her insight and objectivity in respect of her proposals for X’s continuing relationship with his father should the child relocate with her to Adelaide. She understands that her own parenting capacity will be enhanced by employment and financial security together with an available family support network.

Section 60CC(3)(h) – if the child of the Aboriginal or Torres Strait Islander

Not relevant.

Section 60CC(3)(I) - the attitude of the child, and responsibilities of parenthood, demonstrated by each of the parents

The demonstrated history of both these parents is of a responsible attitude towards their son's upbringing and welfare. I am satisfied that each parent understands the need for X to have an ongoing relationship with the other and I am confident, therefore, that such relationship will be maintained whether or not X lives with the father in Tasmania or the mother in South Australia. Despite reservations in their affidavit material, I observed two parents in the witness box able to be more positive and optimistic in this respect.
The father criticises the mother in some respects, including travelling interstate during school time, X's absenteeism from school, and her notifications to professionals. I see this is a factor of a vigilant parent and one perhaps lacking a readily available support to network. Without further evidence, I am not satisfied that the mother is culpable in respect of X's absenteeism. Certainly, a period of some 34 days absence during a school year is of real concern but I note also that the mother had cited and advised the school of illness on the majority of occasions.

Section 60CC(3)(j) - any family violence involving the child or a member of the child's family.

Not relevant.

Section 60CC(3)(L) - whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

Issues of relocation are problematic in respect of this consideration. Obviously, any order that the Court makes is prospective and, in a sense, unknown as to its results. It may be, for instance, that the Court allows the relocation of X with the mother to South Australia but that child does not to settle and struggles or that the mother’s parenting capacity is not improved by the move. Similarly, the logistics of travel may prove onerous for the child or the parents. Conversely, should the Court not permit the relocation then X may suffer the loss of the parent who has been his primary carer virtually since birth and may not settle into the father’s differently constituted family unit and/or the father’s notably different parenting style. All of these factors may lead to the possibility of further litigation for X. Nevertheless, the parents must understand that Courts make orders on the basis of evidence and on the balance of probabilities as to the best interests of the child. Courts are not so presumptuous as to seek ideal or optimum parenting orders for children. Realistically, whatever orders the Court makes, there will be some difficulties for the child and such are accentuated in matters involving relocation. It then beholds the parents to accept the orders and work in cooperative fashion in the child's best interests so as to avoid a further litigation.

Findings and Conclusions

I am satisfied that X has a meaningful and successful relationship with both of his parents. Those relationships differ markedly because of the nature of the family units and the different parenting styles of Ms Newbold and Mr Pelham. However, I am satisfied that both present as good and altruistic parents for X and any criticisms by one against the other reflect only their divergent styles and the nature of the litigation now before the Court. I note again that Mr Pelham has delegated the primary role for X’s care to the mother for the past eight years.
I am satisfied that the mother has genuine and bona fide reasons for wanting to relocate to South Australia. I accept that she has limited support networks in Tasmania but does have family support available to her in South Australia. I also accept that Ms Newbold has available and remunerative employment in South Australia which will undoubtedly add to her own self-esteem and confidence both personally as a parent and to her capacity to provide for X. Indeed, Mr Pelham in the witness box candidly conceded both the bona fides and rationale of Ms Newbold’s intent to move to South Australia. These are all positives for X on the mother’s proposal. I place some weight on the material in Ms M's Report and find that the mother will benefit from direct and emotional support available to her in Adelaide and which has not been available in Tasmania.
I find Mr Pelham to be a most competent parent and role model for his son. His parenting style represents almost an antidote to Ms Newbold’s vigilance and anxiety in her own parenting. He can provide a stability of accommodation and family unit with Ms J and a continuation of what I find to be X’s successful education and socialisation at the (omitted) School. It is a rare pleasure for a Judge sitting in this parenting jurisdiction to witness a parent such as Mr Pelham being so willing to make admissions against interest and concessions including volunteering the better qualities of the other parent. His criticisms of the mother’s parenting, such as they were, were informed and without malice. Indeed, and ironically, I find that it is these very traits of this particular father which would assist X in a successful relocation with his mother.
I accept the evidence of the Family Reporter that X would benefit from increased and more time with his father and this is obviously a matter that argues towards the father’s application. Nevertheless, the nature of X’s relationship with his mother is emphasised in its closeness and perhaps some mutual dependency. X is familiar with his mother's particular parenting style she has been his primary carer for virtually all of his eight years. Despite some hesitation from the Family Reporter in the witness box, I am satisfied that X's primary attachment is to his mother and without reflecting negatively on the obvious attachment that has developed between X and his father. The suggestion of the Family Reporter is that X may suffer some separation anxieties if removed from his mother's primary care and, from my observations of the parties and consideration of the evidence as a whole, I am satisfied that this would be a likelihood. The child is still young. He has always lived with his mother. They have lived primarily in a family unit of two and he is a child familiar with the vigilant involvement of his mother in his life.

I am satisfied on the balance of probabilities that these two competent and altruistic parents will ensure an ongoing relationship for X with the other parent wherever the child might live. I am mindful of the historical communication difficulties and lack of trust between these parents. Again, however, I find this to be reflective of their own personalities and parenting styles. This must be seen against the fact that each of them prioritises X's best interests and I am, therefore, confident that when this litigation is resolved these two parents will cooperate to a degree so as to ensure X's continued relationship with both parents despite what will probably be their own residual personal difficulties, inconveniences, added expense and logistical difficulties.
Matters involving relocation of a child are often finely balanced in the Court's consideration. This is particularly so in this matter. The benefits and detriments of each party's arguments in respect of X's position are set out above. The fact is that there are clear and delineated positives and negatives of each party’s case and it is noteworthy that the Family Reporter considered that X's best interests would be served by a geographical proximity of his parents so that he could move more frequently and regularly between them. I am satisfied that Ms Newbold is legitimate in her evidence that she would move to Adelaide regardless of the Court’s determination and, therefore such a regime as referred to by Ms S is not a reasonable practicability and I do not feel able to make an order in the terms of the Family Reporter's recommendations.
On consideration and on the balance of probabilities, therefore, I am satisfied that X's best interests are served by X continuing to live with his mother. In making such a finding, I place considerable weight on what I see to have been X’s academic and social success whilst living with his mother and, significantly his establishment and maintaining of a strong, bonded and flourishing relationship with his father, such that would endure the changes associated with his relocation. I place weight on what I believe will be the positives for the mother’s parenting and self-esteem personally in a relocation to Adelaide. I am confident that X’s relationship will be maintained actually and also successfully and (ironically) by the very fact of Mr Pelham’s many positive traits as a parent.
Further, and on the balance of probabilities, I reject the mother's proposal that sole parental responsibility should sit with the parent with whom X resides. I find her proposal to be naive and ill-informed as to the rationale of the of the Family Law Act which does, of course, go so far as to offer a presumption of equal shared parental responsibility at section 61DA of the Act. This is no accident of legislative drafting. To my mind, the parliament in its wisdom understood the importance of parents having involvement, communicating, and cooperating in the important decision-making process for children. To my mind, the presumption is not simply that parents discharge that obligation but rather that such is positively in the best interests of the child. These two parents are intelligent, child focused, and articulate. It is true that their personalities are diverse to almost an extreme. Nevertheless, it is incumbent upon them to compartmentalise their own personal difficulties and to communicate and cooperate in the relevant important aspects of their son’s life such as ordinarily the province of parental responsibility. I am satisfied, therefore, that is in X's best interests for the parents to retain equal shared parental responsibility for him.
The Family Reporter was clear in her observations that X would benefit from more time with his father. I share Ms S’s views in this regard. To this end, the Court is now hamstrung by practicalities, logistics and geography. Nevertheless, the authorities are clear that it is the 'quality' of time between a parent rather than simply quantity in the sense of weeks, days and hours which is of importance in establishing and maintaining a successful and meaningful relationship. To this end, I am of the view that X's best interests would be served by spending greater portions of his school holidays with the father so as to maximise these potentials. I propose that X spends the entirety of the second term school holidays in each year with the father in Tasmania. For the first and third term school holidays he will spend from the first day of the holidays until the second Monday of the holidays (being a period encompassing two weekends) with the father. I accept the father's proposal that the summer school holidays be shared equally but encompassing Christmas with each parent in alternate years. There will also be provision for reasonable time with the father should he travelled to South Australia and also for X to travel to Tasmania on one weekend (preferably long weekend) in each term but at the father's expense. The travel costs are otherwise shared equally from the commencement of these orders.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 1 December 2016

[2016] FCCA 3025

1 December 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies

Jurisdiction