Pendelton & Reckert
[2021] FCCA 488
•15 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Pendelton & Reckert [2021] FCCA 488
File number(s): BRC 15464 of 2020 Judgment of: JUDGE TONKIN Date of judgment: 15 March 2021 Catchwords: FAMILY LAW – Children – interim parenting application – mother seeking to relocate child – interim change of school – whether in child’s best interests to relocate on an interim basis – application refused. Legislation: Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 60CG, 65D Cases cited: C & S [1998] FamCA 66
Goode & Goode (2006) FLC 93-286
Hornwood & Tyrell [2017] FCCA 1685
Marvel & Marvel[2010] FamCAFC 101
Morgan & Miles (2007) FLC 93 – 343
SS & AH [2010] FamCAFC 13
U v U [2002] HCA 36
Number of paragraphs: 75 Date of last submission/s: 25 February 2021 Date of hearing: 25 February 2021 Place: Brisbane Counsel for the Applicant: Ms Pendergast Solicitor for the Applicant: Littles Family Lawyers Counsel for the Respondent: Mr Galloway Solicitor for the Respondent: Holloway Jenkins ORDERS
BRC 15464 of 2020 BETWEEN: MR PENDELTON
Applicant
AND: MS RECKERT
Respondent
ORDER MADE BY:
JUDGE TONKIN
DATE OF ORDER:
15 MARCH 2021
THE COURT ORDERS THAT:
Until further order:
1.The child X born in 2007 (“the child) shall live with the mother.
2.The child shall continue to reside in the Suburb B, Suburb C area or within the catchment area for D School.
3.The child shall continue to attend D School.
4.Commencing Thursday 29 April 2021 the child shall spend time with the father from Thursday 29 April 2021 until the following Tuesday 4 May 2021 and each alternate week thereafter during school terms.
School holidays
5.During mid – term school holidays the child shall spend time with his parents week about:
(a)In the years ending in an odd number with the father during the first half of the school holidays and with the mother in the second half of the school holidays; and
(b)In years ending in an even number with the mother during the first half of the school holidays with the father in the second half of the school holidays.
6.The first half of the school holidays is deemed to commence on the last day of the school term following the completion of school and the second half of the school holidays is deemed to conclude when the child is returned to school on the first day of the new school term with the midpoint between the first and second halves of the school holidays occurring at 10 a.m. on the Saturday following completion of the first half of the school holidays.
7.Unless otherwise agreed in writing the child shall spend the Christmas/summer school holidays with his parents on in a two week, two week, one week, one week arrangement in the pattern established pursuant to Order 5 (a) and (b) above.
8.Notwithstanding these orders the child shall spend Mother’s Day from 9 a.m. to 4.30p.m. with the mother and spend Father’s Day from 9 a.m. to 4.30 p.m. with the father.
9.The orders made on 25 February 2021 continue until Thursday 29 April 2021.
10.Orders 1, 2, 6, 7, 8 and 9 made by Consent on 7 December 2020 as amended on 21 December 2020 continue with full force and effect.
11.The matter is adjourned for final hearing for 2 days on a date to be advised in January 2022 and prior to the commencement of the 2022 school year.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Pendelton & Reckert is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TONKIN:
INTRODUCTION
This matter involves a parenting application concerning one child X born in 2007 (now 13). The applicant (father) commenced proceedings on 3 November 2020 seeking an order for equal shared parental responsibility and for the child to live week about with his parents. In the event that the respondent (mother) lives outside Brisbane he sought an order that the child live with the applicant and spend time with the respondent from after school on Friday until before school on Monday each week.
The respondent filed her response on 2 December 2020 seeking interim parenting orders for equal shared parental responsibility and for the child to live with the respondent and an interim order that she be permitted to relocate the child’s residence to Town E. She sought an order that the child spend time with the father every second weekend from after school Friday until 5.30 p.m. Sunday in addition to time during school holidays and special days.
I heard the respondent’s interim relocation application on 25 February 2021 and reserved judgment. Both parties were represented by Counsel.
DOCUMENTS RELIED ON
The respondent to the substantive matter and applicant for interim relocation relied on her affidavits filed on 2 December 2020 and 23 February 2021. The applicant to the substantive matter relied on his affidavits of 3 November 2020, 15 December 2020 and 22 February 2021 and the Family Report of Ms F filed 1 February 2021.
CURRENT PARENTING ARRANGEMENTS
At the time of the interim hearing the child lived with the mother during school term and spent each weekend with his father from after school on Friday until before school on Monday each week. During school holidays he spent week about with each parent save for the long Christmas summer school holidays wherein he spent a two week block with each parent followed by a one week block.
LEGAL PRINCIPLES
In Morgan & Miles (2007) FLC 93 – 343 Justice Boland made the following remarks with respect to the challenges raised by interim relocation applications:
“[88] It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C and S remain apt and relevant.”
In C & S [1998] FamCA 66, the Full Court (Ellis, Lindenmayer & Warnick JJ) considered an appeal of the orders of Barry J requiring that the mother return, on an interim basis, to Brisbane from the Riverina with the children. The mother had relocated before the father could serve her with his application to restrain the relocation. Justice Warnick, delivering judgment on behalf of the Full Court, endorsed Barry J’s comments regarding the standard to be applied to relocations on an interim basis at pages 8 – 9:
“In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a relocation, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents, from what it or they had been immediately beforehand.”
In Hornwood & Tyrell [2017] FCCA 1685, Judge Brown dealt with an urgent interim parenting application concerning the unilateral relocation of two children which presented, as his Honour termed it, “a metaphorical scrambled egg of competing principles based on claims and counter-claims, which cannot be easily unscrambled, if at all”. In determining that the mother should, in the interim, return the children to the town in which they previously lived, Judge Brown noted the following principles applicable to the determination of interim relocation applications:
“[60] …
•It is not desirable for long-term arrangements, for a child, to be determined in an abridged interim hearing;
•As such, it is usually in the best interests of children that issues of relocation be determined, at final hearing, in the context of pre-existing care arrangements, rather than in circumstances which have been engineered to the advantage of one parent, through unilateral actions;
•However, in some cases, there may be circumstances of sufficient emergency, which justify unilateral action, by a parent, including relocation;
•In the context of an interim hearing, which necessarily precludes the court from making concluded findings of fact, the court must do its best to assess the degree of emergency confronting the parent concerned.”
His Honour further remarked at [63] – [64] that in the context of a disputed interim hearing the court’s focus must shift from an attempt to determine the truth of each party’s account to an effort to minimise the risks to the children and damage to any of their existing relationships.
As indicated in Goode & Goode (2006) FLC 93-286 the scope of an enquiry in interim parenting applications is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and must have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
In Marvel & Marvel[2010] FamCAFC 101 the Full Court discussed the difficulties associated with making findings on contested evidence in the following terms:
“[120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted……”
In SS & AH [2010] FamCAFC 13 the majority discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
“In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.”
Section 60B of the Act sets out the objects and principles underpinning Part VII of the Family Law Act 1975 (Cth). Section 60CA provides “In deciding whether to make a particular parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration”. The matters the Court is required to consider (in so far as they are relevant) are set out in section 60CC of the Act. Those matters include primary considerations (s60CC (2)) and additional considerations (s60CC (3)).
Section 65D of the Act gives the Court the power to make such parenting orders as it thinks proper. The parents in this matter have consented to an interim order for equal shared parental responsibility. The Court is required to consider whether an order for equal time is both in the child’s best interests and reasonably practicable. If not the Court is required to consider whether an order that the child spend substantial and significant time is both reasonably practicable and in the child’s best interests. In determining the child’s best interests the Court is required to consider the two primary considerations under section 60CC (2) of the Act namely:
(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.
The Court is required to balance “the benefit to the child of having a meaningful relationship with both of the child’s parents” against any risks to the child. Subsection 60CC (2A) of the Act directs the Court in applying the primary considerations, to give greater weight to subsection 60CC (2) (b) of the Act and requires the Court to consider the “need to protect the child, from physical or psychological harm and being subjected to or exposed to abuse, neglect, or family violence”. Section 60CC (3) (j) and (k) also relate to family violence issues including the existence of any family violence order. Section 60CG of the Act imposes on the Court an obligation to ensure that as much as possible and taking into account the child’s best interests, any orders made will not expose a person to an “unacceptable risk” of family violence.
Both parents support the other parent having a meaningful relationship with the child and both parties are committed to facilitating that relationship. Though the mother raises with the family consultant concerns that the father was controlling during the relationship (as an example “he banged his fist on the high chair yelling to the child ‘just eat’ when the child refused to eat his food”) the father denies these allegations. I am unable to make any findings at this juncture given the nature of these proceedings. The parenting arrangements have been in place since separation and I am satisfied that there is no unacceptable risk to the child spending time with each parent in accordance with the current arrangements.
Subsection 60CC (3) of the Act sets out a number of matters the Court is required to take into consideration when determining what parenting orders are in a child’s best interests. Relevant considerations are addressed below.
BACKGROUND
The parties met in 2002. The father is now 46 and the mother 49. X was born in 2007 and in 2008 the parties moved to Canberra due to the father’s employment. They separated in 2009 when X was 14 months old and the mother returned to Brisbane with X. They reconciled in Brisbane a few months later and separated on a final basis in May 2011 when X was 3 and a half.
The father has re-partnered with Ms G. They commenced a relationship in mid - 2017 and commenced living together in mid 2019. They own a home in Suburb B and both work full time in Brisbane City the father as a professional and Ms G as a manager in Suburb H. The mother takes no issue with the father’s current partner. The father’s parents live in Town J and he spends time with them regularly.
The mother currently lives in rental accommodation at Suburb C with X. She works full time as a Manager in Retail in Brisbane City, the Region K and the Region L. She has had a close relationship with both parents however her father died several years ago. She wishes to move closer to her mother who lives in Town E.
It is common ground that X is a child with special needs. His development is delayed and historically he was later than others in meeting his milestones. He has been diagnosed with Pervasive Developmental Disorder later modified to Attention Deficit Disorder. He was accepted into an Early Childhood Development Program and made significant strides there. He attends upon a paediatrician each four to five months and both parents attend. He continues to receive educational support at school and struggles academically.
Following separation in May 2011 the mother primarily cared for the child returning to work once the child commenced school while the father worked full time with the child spending every weekend with his father from Friday to Monday.
The mother advised the report writer that she was not happy about spending no weekend time with the child however she said the father insisted on this displaying controlling behaviour and she had little option but to agree. The family consultant noted that the father agreed that the mother told him that every second weekend was the “normal” arrangement for the child but “he refused to accept this minimal level of involvement.” The father has always done all the pick - ups and drop offs for the child alleging that the mother told him that he had to be responsible for “all the driving” if he wanted to spend time with the child.
The family consultant observed that “there was some level of ongoing parental conflict throughout the nine years (post separation)” noting that the mother advised “she always needed to accede to the father’s stance”. The mother claimed that the father refused to contribute towards the payment of the child’s school fees stating “she needed to pay since he (the child) was with her during the week”.
The father told the family consultant that the parenting relationship was amicable as long as the mother got her own way. They disagreed apparently on the child receiving religious instruction at school. The parents were in conflict in about 2014 over one of the father’s partner’s Ms M and an incident occurred that involved the police. There was a disagreement about an overseas trip in 2017 planned by the mother during school term for 7 seven weeks. The father opposed the child travelling and missing school for that length of time. They argued over who would care for the child while the mother was away. There is currently an issue about child support. I am unable to determine these issues save that I accept there is conflict between these parents and a significant element of distrust.
Reasons for relocating
The mother said she wants to move to Town E and buy a house. She recently received an inheritance from her father’s estate. Her mother who previously lived in Melbourne retired to Town E. Although the mother continued to work for a chain of retail stores during the pandemic she was “stood down” but subsequently re-instated. In her view the company’s viability (and her continued employment) is precarious with two managers recently being retrenched. She believed she would be next in line.
If she is permitted to move she will have the support of her mother. She has a brother in Brisbane however he leads a separate and busy life. The child and her mother have a very close relationship though they have only spent time together in the past about three times each year.
DISCUSSION
When speaking with the family consultant the child told the family consultant that his mother wanted to move to Town E and “he is not very keen on the idea. He has two main reasons. He doesn’t want to change schools but it also means that he and dad will be spending less time together.” He told the family consultant he was “close to Dad” and if worried about something “he felt a bit closer to dad than to mum. He did lots of stuff with his dad on weekends. He doesn’t spend much time with his mother on weekends” and the idea of more weekends with her “didn’t appeal to him too much”. He was unable to explain why.
He told the family consultant that he wished not have to worry about mum and dad’s feelings. When asked how he would share his time with mum and dad he said he was not sure. When asked about spending week about time with his parents he said “it would probably work better for me if he lived closer to my school”. When asked what was more important not changing schools or not spending less time with dad he said “they were both the same.”
The family consultant formed a view that the child did not know what he wanted but did know that he did not want to change schools and he did not want less time with his father. She observed that it had not been too difficult for him to transition from primary to high school as many of his school mates were going to the same high school. At a new school he would not know anyone.
According to the mother the child was happy to move initially and his only concern was about changing schools. They visited the child’s new school together and the mother tried to reassure the child that he would get used to the change. The father told the family consultant that he had discussed the relocation with the child but “not too much.” He said the child had volunteered that he didn’t want to move or leave his school.
The mother said she has always been X primary carer and they have a close relationship. She said “she has longed to have some weekend time with the child for many years.” She agreed that the child enjoys his time with his father “they do not do homework together on weekends and it’s all free time together”. The family consultant observed that the child had a loving, secure relationship with both his parents.
Though the family consultant observed the parents have “co-parented co-operatively” the affidavit material filed by each of the parties indicates that effective communication is poor between them and they do not trust each other. Both parents criticize the other for shortcomings. The mother said she had not discussed her plans to relocate with the father. She claimed that she didn’t think it would be an issue as the father had moved seven times since separation and he had never consulted her about those moves. I remain sceptical about her claim that she believed the move away would not be an issue for the father. He owns a home in Suburb B with his new partner and they seem settled in that environment. In addition he opposed any change to the child’s school.
The mother proposed that the child’s time be reduced to alternate weekends during school term. The father strongly opposed that.
The mother told the family consultant that she thought the child “would be fine and once they spend quality time together doing things he will enjoy it”. She believed her weekend time with the child is likely to open up opportunities and her mother would be there to assist her to care for the child.
Regarding the dispute the father had suggested that the mother purchase a home near him. She indicated that she does not like the locality and commented “I’m not going to move where he wants me to move. I think it is very controlling of him to want me to move where he wants to be”. She would rather stay where she is than move closer to the father’s home.
The father told the family consultant that “everything had been moving along smoothly until August 2020 and the mother advised him she was worried about losing her job. Her plan B was to purchase a property in Town E with her inheritance. He said he couldn’t stop worrying about her proposal and he believed she would suddenly tell him ‘I’m moving’”. He said the child told him his mother had been looking at properties to buy in Town E and said that he didn’t want to move there because he didn’t want to leave his school.
The father accepted that the move would be good for the mother personally but said she overlooked the child’s relationship with his father. He wanted the whole care arrangement reviewed and wanted week about time. He told the family consultant that the child told him he wanted this arrangement. He said he had wanted midweek time from early on but “she did not want to change the arrangements”.
He complained that if the mother moved to Town E it would make it impossible for him to take the child to school in the mornings. He would have a one hour drive north from his home and then need to double back southwards along the same route and move into slow moving city traffic to get to work. At present the child attends D School and the father is able to detour around the city and it is only a modest increase in time to get to his workplace.
The mother said she believed that the father was trying to sabotage her wish to relocate by influencing the child against moving. The father agreed that he spoke to the child about the relocation wanting the child to understand the father’s position.
He said he felt blindsided by the issues the mother raised against him in her affidavit for example refusing to return the remote to her gated complex. He said she had never raised this with him. He was concerned she raised the issue about Ms M and the fact that he had moved several times. Regarding her complaint about failing to consistently give the child his medication he agreed he had missed that on occasion.
Both parents had attended the child’s paediatric appointments regularly and were focused on the child getting whatever assistance was required including speech therapy in the future once the pandemic eases.
The family consultant observed at [131 - 132] of her report that X is 13 years old and is about to enter his second year at High School. He has ASD and Attention Deficit Disorder and school is not easy for him. He appears introverted, a little rigid and finds change very stressful. He doesn’t know what he wants but does know what he doesn’t want and is definite about this. He doesn’t want to change schools and doesn’t want to spend less time with his dad. She said at [133] that in her view the child “would find it significantly emotionally dislocating if both of his dreaded changes happened together”.
The family consultant observed at [134] if an order was made permitting the mother to relocate the child’s residence he would adjust quietly however it is likely he would be “intensely unhappy for an extended period and his feelings of disruption may manifest in struggling further with schoolwork and other aspects of his life”.
Regarding a change to the parenting arrangements the family consultant did not support markedly reducing the child’s time with his father. She said in her view “these parents could make a week about arrangement work effectively” as they have similar parenting styles and the conflict between them has not been about the child’s day to day care.
SUBMISSIONS
The applicant mother through her Counsel submitted that she currently lived in rental accommodation with the lease due to expire in mid - March 2021. Counsel submitted that there was very little distance between the parent’s home with the mother living at Suburb C and the father living at Suburb B which was a distance of 62 kms taking 52 minutes by road from the parent’s home. Should the mother relocate to Town E the distance was 74 kms or 54 minutes by road. Counsel submitted that if the child lived at Town E it would be reasonably practicable for the father to spend significant and substantial time with the child. He urged the Court that the mother’s application to relocate on an interim basis should be granted. He relied on the comments made by Justice Mary Gaudron in U v U in particular that the Court should consider all possibilities including whether the father could relocate to Town E.
In U v U [2002] HCA 36; 211 CLR 238; 191 ALR 289; 76 ALJR 1416 (5 September 2002) Justice Gaudron said at [35] – [38]:
“[35] Where, as in the present case, the paramount consideration is the child's best interests, it is not always appropriate that the issues be explored and the evidence revealed strictly in accordance with the adversarial procedures that apply in party-party litigation. That being so, it is noteworthy that in this case there was no consideration of the possibility that the father could return to India permanently to avail himself of frequent and regular contact with his daughter. The failure to explore that possibility, particularly given the father's origins, his professional qualifications and family contacts in India, seems to me to be explicable only on the basis of an assumption, inherently sexist, that a father's choice as to where he lives is beyond challenge in a way that a mother's is not.
[36] Further, it must be accepted that, regrettably, stereotypical views as to the proper role of a mother are still pervasive and render the question whether a mother would prefer to move to another state or country or to maintain a close bond with her child one that will, almost inevitably, disadvantage her forensically. A mother who opts for relocation in preference to maintaining a close bond with her child runs the risk that she will be seen as selfishly preferring her own interests to those of her child; a mother who opts to stay with her child runs the risk of not having her reasons for relocating treated with the seriousness they deserve.
[37] It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated. That is so whether it is the mother or the father who wishes to relocate. So much was made clear in AMS v AIF (citation omitted)
[38] In the present case, the need to give proper consideration to the wishes of the parent was not the only reason why each of the proposals had to be separately evaluated. Rather, in a context in which each of the proposals involved some disadvantage for N, as the trial judge acknowledged, a determination could only be made as to what was in her best interests by separately evaluating each of them.”
I consider the comments by Justice Gaudron as significant however these are interim proceedings and authorities suggest that the Court should not be drawn into matters of controversy particularly where there is no scope for making any finding in that regard. No doubt the parties competing proposals will be properly considered when the matter is listed for final hearing.
Counsel for the mother submitted that if she is permitted to relocate the child would be required to change schools. She noted that the father said he would not be able to be involved in the child’s schooling given the distance between his home, work and the new school. Counsel submitted that the father was “selfish in his approach and had little regard for the child”. He suggested the matter was about “what the father wanted”. He submitted that the father had demanded to spend each weekend with the child and very reluctantly allowed the mother to spend one weekend in four. He said the mother felt controlled by the father and felt that she was required to live her life to suit her former partner.
Counsel submitted that the current orders “were unfair” and proposed an arrangement whereby the father spent time with the child from Thursday to Monday each fortnight. He said the father was concerned about his own interests and not that of the child. Regarding this submission I note that the parties had continued in the current arrangement for many years. I infer that if not content each party was prepared to abide by that arrangement. It was at all times open to the parties to bring an application to vary the orders at any time over the past several years.
Counsel for the mother conceded the family consultant did not support the child’s interim relocation away from his school or his current home environment.
Counsel for the father submitted that the child had clearly expressed his wishes and it was not suggested that full weight should not be placed on his wishes given his level of maturity.
Regarding the mother’s contention that the father demanded the child spend each weekend with him Counsel for the father submitted that this was patently false. She said the father would have accepted an alternate weekend arrangement if the mother had permitted the child to spend time with the father during the week. She would not do so and each weekend time was “all he could get” so he accepted that time. In his first affidavit the father raised this suggestion however the mother did not agree. Counsel suggested that it was not the case that the father was selfishly taking all the weekend time.
Counsel for the father referred to paragraph 100 of the family report regarding the child’s developmental age and noted that there was nothing to suggest that the child was insufficiently mature to express his wishes. At paragraph 105 of the family report the child told the family consultant there were two reasons he did not want to move. He did not want to change schools and he would not see his dad as much. It was submitted that these were very practical and direct considerations by the child. Counsel observed that the child was “closer to his dad than his mum”. When asked which of his two reasons which was more important he said “they were both the same”.
Counsel for the father submitted that it was common ground that the child has a developmental delay and in 2012 a paediatrician diagnosed him with Autism Spectrum Disorder and ADHD. The child had experienced issues adjusting from primary school to high school. He was now in his second year at high school and had settled well. He regarded as important that his mates from primary school attended his current school and “he finds support in those friendships”. Counsel submitted that although the child is academically challenged his mates provide security and he is able to manage his environment as best he can and cope with the struggles that involves.
Counsel rejected the mother’s assertion that the father was “self - focused” noting that the father proposed that the current arrangement continue however in Term 2 the child spend week about with each of his parents adopting the family consultant’s suggestion.
Counsel submitted that the Court should consider the comment by the family consultant at paragraph 134 that the child was likely to endorse the relocation but in her view was likely to be intensely unhappy for a long period of t time.
Counsel for the father submitted that no evidence was adduced from the child’s paediatrician as to the impact the relocation would have on the child and his ability to adjust with that change. She submitted that the matter was not about what the mother “does say but rather what she does not say” and noted that the mother said she wanted to move to Town E as her mother moved there two years ago. She submitted that “the mother does not say why she needs to move now”.
Counsel noted that the mother had received an inheritance and wanted to buy a home however “she does not say how much she received by way of inheritance or provide any comparison between Town E and Suburb C regarding the cost of housing”. The mother argued that she may lose her employment but provided no evidence that this was imminent or likely.
Counsel for the father submitted that the mother’s need to move was “entirely self - serving”. She did not suggest that housing was more affordable in Town E nor whether she would continue to work nor what her prospects for finding alternative work were. Counsel submitted that the mother “ignored the real concerns raised by the family consultant that the child did not want to move”.
Counsel submitted that the mother contends the distance between Town E and the father’s home is not great however she ignores the effect of travel on the father and on his ability to spend time with the child as deposed to by the father in paragraph 46 of his affidavit filed on 15 December 2020. Counsel suggested this was not addressed by the mother. It was submitted that the mother was aware that her proposal would effectively mean less time for the child to spend with the father. The father would be required to travel for one hour from Suburb B and then drive south to his employment across the city. Further the child would have no friendship network to support him in the new location.
Counsel observed that the mother’s affidavit was replete with allegations of emotional abuse by the father “yet she has not recorded any specific incident in that regard. It is simply how she feels”. Counsel noted that there had never been a Protection Order in place and police were called on one occasion when the mother argued with the father’s partner Ms M in 2014. Though she claimed that she is overwhelmed by the father emotionally the family consultant indicated that it was likely “the mother has ruminated about these issues and created an even bigger issue”. The family consultant observed that in light of the lengthy co-operative history between the parties she did not ascribe significant weight to any issues of family violence or abuse of the child.
Counsel submitted that the mother had hatched a plan with an intention to move in August 2020. “She has already looked at real estate and schooling for the child. Her plan was to move there to be near her mother and ‘this is how it’s going to be’”. She said the father opposed the relocation whether on an interim or final basis. He proposed a week about arrangement. He had no problem with the mother alone relocating.
Counsel submitted that the child’s relationship with his father was the predominate relationship and that the mother “should not be permitted to relocate at the expense of the child’s relationship with his father”. She said the father had offered that the child spend time with his mother each third week, returning the child to school on Monday morning. He proposed that school holidays be divided equally. Changeover should occur on the Friday night. He sought that a week about arrangement commence in Term 2.
Counsel noted that the father had previously sought a change of schooling for the child which he now abandoned. He proposed that the mother’s third weekend should commence on 13 March 2021 and each third weekend thereafter during term time. Counsel for the father submitted that there was insufficient evidence before the Court to determine that the relocation was in the child’s best interests.
CONCLUSION
In this matter I am guided by the principles set out by the Full Court of the Family Court. These are interim proceedings and the evidence has not been tested. The mother’s proposal represents a significant change for the child. She proposes that she immediately relocate to Town E and enrol the child in a new school. Her mother resides in that area. She intends to purchase a home there.
There is a great level of uncertainty regarding the mother’s proposal. As I understand from her affidavit filed on 23 February 2021 she does not have accommodation in Town E. She is renting a property in Suburb C with the lease soon to expire. I am uncertain where she will live in the immediate future and find that this issue was not dealt with satisfactorily by the mother. It is likely should she be permitted to relocate on an interim basis she may move into her mother’s home. Her mother was not on affidavit to support this. X does not want to move and does not want to leave his familiar surroundings including the many friends he has at school and in the current area.
The mother proposed that N School in Town O “would be the best option for X schooling”. There is no evidence before me that the child is enrolled in that school nor that a place has been allocated for him. It is unclear whether that school is suitable to cater for X’s special needs. The child does not wish to change schools. An important consideration for him is that he will not know anyone at that school. His adjustment to High School has been less difficult than anticipated as many of his friends from primary school have also moved to D School providing him with support. In my view it is not in his interests to remove him from his current school without a thorough investigation of the competing options for schooling for the child. I note that the father at one point sought to change X’s school but has now abandoned that application. I am not satisfied I have sufficient evidence before me regarding the suitability of an alternate school for X in Town E.
I accept the submission from the father’s Counsel that it is unclear how X will cope with the move no report having been provided by his treating paediatrician. The family consultant believed the child would be “intensely unhappy for an extended period and his feelings of disruption may manifest in struggling further with school work and other aspects of life”. I need to be confident that such a significant change for the child will not have a negative impact on his ability to function and manage daily activities including schooling.
I am not satisfied that the move to Town E is reasonably practicable for X. Both parents seek a change in the child’s arrangements such that the father seeks to spend time that includes school days and the mother seeks a change incorporating weekends into her time. I accept the distance between Suburb B and Town E is not great however I accept that logistically the distance creates a practical difficulty for the father dropping the child to school given that he would be required to travel north (he says for an hour) and then back track south and commute through busy city traffic to get to work spending significant longer hours in travel time. Should I make orders for a week about arrangement and grant the mother’s relocation to Town E that would see the father travelling five times a week in those circumstances. Should I make an order for substantial and significant time the father would be required to deliver the child three nights a fortnight and collect him at the conclusion of time.
X has completed the first year of High School. Academically he struggles however his transition to High School has not been as problematic as anticipated. I note that 2020 was an unusual year for children attending school as there was a significant period of lockdown where children were schooled from home. It is early days for X at High School and in my view it is not in his interests to disrupt his schooling at this stage. More importantly X was clear that he did not wish to change schools.
I place weight on the remarks of Justice Boland in Morgan & Miles (2007) FLC 93 – 343 at [88] and the concerns raised regarding interim relocation applications in particular that “the very difficult issues in cases involving a relocation……. make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis”.
I am not satisfied on the evidence that it is in the child’s best interest that he relocate to Town E at this point in time. I find the mother’s proposal uncertain and unclear. If I were to accede to her interim application to relocate the child’s residence noting that she claims she feels unhappy and hopeless in her current situation I may well determine that the move to Town E is not in his best interests requiring yet another change in his living arrangements perhaps to a return to Suburb B and the school he currently attends when the matter is determined on a final basis. Given the child’s special needs I am satisfied that it is important that he be provided with ongoing stability. As such I am satisfied that it is in the child’s best interests that on an interim basis he remain at his current school and remain living in his current environment.
I note that both parents are seeking a change in the child’s current arrangements the mother complaining that she has not been permitted to spend weekend time with the child. I note that the child does not wish his time with his father to be reduced. I accept the comments of the family consultant that the parties have to date been able to co-parent noting that the family consultant suggests a week about arrangement be implemented for the child. I have considered an equal time arrangement as I am required to do. Such an arrangement requires parents who respect each other, have common goals and collaborate without conflict and mistrust. I am not satisfied on an interim basis that a week about arrangement is the child’s best interests.
I have considered a proposal that the child spend substantial and significant time with both parents a regime that includes school days and weekends. I am satisfied that such an arrangement is in X best interests. I intend to make a parenting order that from the commencement of Term 2, 2021 X will live with his mother and spend time with his father from after school on Thursday until before school on Tuesday each alternate week commencing Thursday 29 April 2021. X will spend time with his parents week about during mid - term school holidays and a two week, two week, one week, one week arrangement during the Christmas /summer school holidays. I understand that this has been the agreed arrangement for X during the summer holidays. I order that X will continue to attend D School and will continue to reside in the Suburb B, Suburb C area or within the catchment area for D School until further order. I make orders accordingly.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Tonkin. Dated: 15 March 2021
Key Legal Topics
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Family Law
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Civil Procedure
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Consent
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Jurisdiction
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