Peters and Peters
[2009] FMCAfam 415
•22 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PETERS & PETERS | [2009] FMCAfam 415 |
| FAMILY LAW – Parenting – relocation – mother seeks to relocate with children to New South Wales – children aged 12 and 15 – children’s views – children’s best interests. |
| Family Law Act 1975, ss.60CA, 60CC, 60CC(2), 60CC(3), 60CC(4), 61DA, 64B, 65DAA, 65DAA(2), 65DAA(3), 65DAA(4), 65DAA(5) |
| DIH & MJH (No. 3) [2005] FMCAfam 501 Garvey v Eccles [2008] FMCAfam 1218 Godfrey v Sanders (2007) 208 FLR 287 In the Marriage of Hall (1979) 5 Fam LR 609 Morgan v Miles (2007) Fam LR 275 R & R: Children’s Wishes (2000) 25 Fam LR 712 Silas & Barry (2009) FMCAfam 448 |
| Applicant: | MR PETERS |
| Respondent: | MS PETERS |
| File Number: | MLC9397 of 2008 |
| Judgment of: | Monahan FM |
| Hearing date: | 16 February 2009 |
| Date of Last Submission: | 17 February 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 22 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Agresta |
| Solicitors for the Applicant: | Pearsons Barristers & Solicitors |
| Counsel for the Respondent: | Ms Stewart |
| Solicitors for the Respondent: | Aitken Partners Pty Ltd |
ORDERS
All previous Parenting Orders be discharged.
That the parties have equal shared parental responsibility for the children, [X] born in 1994 and [Y] born in 1997 (“the Children”).
That the Wife be permitted to move with the Children, to Sydney in the State of New South Wales from 19 July 2009. For the purpose of this travel the Husband will deliver the children to the home of the Wife’s parents at [address omitted], at 7:30pm on Saturday 18 July 2009. The Wife shall be responsible for the children’s costs for this flight.
That the Children live with the Wife and each party have responsibility concerning other aspects of the care, welfare and development of the Children when they are with that party.
That the Children spend time with the Husband as follows:
(a)For one weekend (being Friday to Sunday, or, if the adjacent Friday or Monday is a non-school day in New South Wales, beginning on Thursday or ending on Monday as applicable) per month at the times set out in the schedule marked “A” (excluding any such times which conflict with school holidays), and thereafter unless agreed otherwise, on the first weekend of each calendar month (being Friday to Sunday, or, if the adjacent Friday or Monday is a non-school day in New South Wales, beginning on Thursday or ending on Monday as applicable and to avoid confusion this means the relevant weekend starts when or after the calendar month does);
(b)The Husband may also travel to Sydney to spend time with the Children at his own expense on the weekend (being Friday to Sunday, or, if the adjacent Friday or Monday is a non-school day in New South Wales, beginning on Thursday or ending on Monday as applicable) fourteen days after the times set out in the schedule marked “A” (excluding any such times which conflict with school holidays), upon fourteen days’ notice (the husband supporting any school activities occurring at such times);
(c)That the time set out at subparagraphs 5(a) and (b) be suspended during all the Children’s school holiday periods;
(d)From 5 to 18 July 2009;
(e)Commencing with the school holidays after third term in 2009, for the first half of all New South Wales school holiday periods excluding the long summer school holidays;
(f)In the New South Wales long summer school holidays:
(i)Commencing in 2009 (which shall be taken to be in the year when Christmas falls even though some of those holidays will take place in January the following year) and each alternate year thereafter, for the first half; and
(ii)Commencing in 2010 (which shall be taken to be in the year when Christmas falls even though some of those holidays will take place in January the following year) and each alternate year thereafter, for the second half.
(g)Otherwise at such times and locations as agreed in writing (including by email or SMS), without the need for fourteen days’ notice.
That for the purposes of the above parenting arrangements:
(a)Changeover take place between 7:00pm and 9:00pm being the time the children arrive at the arrival gate of the destination airport;
(b)The specific time for changeover be determined by the party who has arranged the flight contacting the other parent, no less than one week before the time of the flight, to provide:
(i)The relevant flight numbers; and
(ii)The estimated time, at the time of booking, for which the children’s flight arrives in and leaves from the city of the other party’s residence;
(c)For clarification, flights to Tullamarine airport be treated as flights to Melbourne and flights to Mascot airport be treated as flights to Sydney;
(d)It is the responsibility of the parent ending their time with the Children to take the children to the applicable airport to ensure they arrive in time for their flight;
(e)It is the responsibility of the parent beginning their time with the Children to make themselves available at the applicable airport to collect the Children at the flight’s estimated time of arrival;
(f)The Wife arrange and pay for the flight costs of the children travelling in accordance with orders 5(a), 5(e) and 5(f) to Melbourne, such payment to be made at least 7 days prior to travel save as otherwise agreed between the parties;
(g)The Husband arrange and pay for the flight costs of the children travelling in accordance with orders 5(a), 5(e) and 5(f) from Melbourne, such payment to be made at least 7 days prior to travel save as otherwise agreed between the parties; and
(h)The Wife may accompany the children for the initial six flights, and every second flight for a further six flights or otherwise as agreed between the parties.
That communication with the children can include the use of individual mobile telephones for each child (to be paid for by the parent providing them), internet video messaging, internet telephony, landline, email and other media where applicable and appropriate. Specifically communication shall take place:
(a)At least twice weekly, including one video communication for a period of up to two hours (via internet);
(b)On the birthdays of that child and the absent parent; and
(c)On Christmas Day, Easter Sunday and for Mother’s and Father’s Day if the applicable parent is absent.
That both parties do all things necessary to approve the children’s school’s release to the other parent of relevant school notices, reports and parent-teacher interviews.
That both parties make reasonable efforts for joint parent/teacher interviews with the Children’s school or schools to be conducted by teleconference.
Both parties shall do all things necessary to keep the other informed about the children’s activities, health, education and development (preferably through the use of a communication book or electronic equivalent).
That the wife provide all sufficient quality and suitable clothing accessories and footwear for the children during their time with the Husband up to the limit of standard airline carry-on baggage for each child.
Each party shall immediately notify the other of a serious illness, injury, incident or accident involving either of the children whilst in their care.
Neither party denigrate the other in the presence of the children.
If the parties are unable to reach agreement regarding the children’s long term care, welfare and development both parties participate in family dispute resolution counselling.
If either party wishes to travel overseas with the Children during their time with the Children:
(a)The party who wishes to travel notify the other party in writing at least two months prior to the travel;
(b)The costs of the holiday, including flight costs, be met by the party who wishes to travel;
(c)That party provide an itinerary to the other party setting out telephone contact details and accommodation for each night of the holiday; and
(d)Upon provision of such information the other party forthwith sign all documents necessary to arrange for Visas and passports to approve such travel for the Children.
If [X] expresses a wish to either parent to relocate to the other parent’s residence, then both parents are to do all things necessary to ensure that:
(a)[X] discuss the relocation with each parent in person;
(b)Two weeks after the latter of such discussions [X] shall contact both parents to confirm whether or not she still holds such wishes; and
(c)If she advises both parents that she does hold the same wishes, both parents do all things necessary to facilitate such relocation.
All pending Applications and Responses are removed from the list.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
AND THE COURT NOTES THAT:
A.It is the intention of the parties that the children commence school at [B] High School, Sydney in the third term of 2009.
B.If, at the time of either child’s birthday or Christmas Day, the parent not normally with the child or children at that time (“the absent parent”) is to be in her or their vicinity, then upon reasonable notice and the relevant child or children being agreeable, both parties intend, if possible, the absent parent spending time on that day with the relevant child or children.
C.It is the intention of the parties that the dates set out at Schedule “A” synchronise with the current cycle. It is the intention of the parties that the synchronisation continues and within one month of publication of New South Wales School holidays for the years 2013 to 2015 both parties intend to do all things necessary to agree to synchronised monthly weekend times for each relevant school year.
IT IS NOTED that publication of this judgment under the pseudonym Peters & Peters is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC9397 of 2008
| MR PETERS |
Applicant
And
| MS PETERS |
Respondent
REASONS FOR JUDGMENT
Introduction
On 15 October 2008 the husband issued proceedings in the Federal Magistrates Court in Melbourne, seeking various parenting orders in respect of the children of the marriage, namely [X] (“[X]”) born in 1994 and [Y] (“[Y]”) born in 1997 (“the children”). In summary the husband was seeking that the existing orders made by the Federal Magistrates Court made on 31 January 2007 remain in full force and effect and that the wife be restrained from relocating with the children to New South Wales and from removing the children from a
50 kilometre radius of [G]. The husband filed an Amended Application on 6 February 2009 seeking alternative orders in the event that the Court allowed (or disallowed) the children relocating with the wife to New South Wales.
In her response filed on 14 November 2008 the wife sought, inter alia, parenting orders that would allow her to relocate with the children to New South Wales and changes to the existing parenting orders on the assumption that the relocation request was granted.
The matter came before his Honour Federal Magistrate Burchardt on 18 November 2008. On that occasion, his Honour adjourned the matter for hearing before myself on 16 February 2009 and made interim orders by consent of the parties which included an order that the parties attend upon family consultant Trevor Holland for the preparation of a privately obtained family report. There was also an order (until further order) restraining the wife from relocating to Sydney and requiring the children to attend [M] Secondary College unless otherwise agreed by the parties.
The parties attended upon Trevor Holland for the preparation of a family report on 3 November 2008. This report is discussed shortly.
The matter came before me for hearing over two days commencing on 16 February 2009. Both parties were legally represented.
Background
The applicant husband was born in 1968 and is currently aged 40 years. The respondent wife was born in 1969 and at the time of the hearing was aged 39 years.
The parties married in September 1991 and there are two children of the marriage, namely [X], currently aged 15 years and [Y], currently aged 12 years. The parties separated under the one roof on 2 May 2002 and physically separated in late July 2002. Parenting orders were made by consent of the parties in the Family Court of Australia on 25 August 2005 and in the Federal Magistrates Court of Australia on 31 January 2007. These later orders are currently in force.
The husband has re-partnered with Ms F although they do not cohabit on a full time basis. According to the husband’s evidence, Ms F and her children live with the husband at his home at [G] on Friday and Saturday nights only.[1]
[1] Transcript, page 26, line 31.
The wife has re-partnered with Mr C who resides at [E] in New South Wales. Although the parties are not cohabiting on a full time basis, they propose to marry in March 2009.
The current parenting orders were made with the consent of the parties, by Federal Magistrate Connolly on 31 January 2007 (“the current parenting orders”). They provided that the parties have equal shared parental responsibility for their children, that the children live with the wife and spend time with the husband on alternate weekends (from the end of school Friday evening to Sunday evening) and each other Thursday for two hours from 5.30 pm. The orders also provided for telephone contact and for the children to spend time with their father during school holiday periods and on other special occasions.
The proposals of the parties
In his Amended Application filed 6 February 2009 and his Case Outline document filed 13 February 2009, the husband sought the following orders:
“Orders sought
1. All previous parenting orders be and are hereby discharged.
2. That the parties have equal shared parental responsibility for the children [X] born in 1994 and [Y] born in 1997.
3. That the children live with the Husband and each party have responsibility concerning other aspects of the care, development and welfare of the children when they are with that party including extra-curricular activities including ensuring the children attend to their homework.
4. That the children spend time with the Wife, to whom all costs of interstate travel shall be borne, as follows:
(a) each alternate weekend commencing (insert Day/Month/Year) from 8.30 pm Friday to 7.30 pm Sunday and in the event Friday and/or Monday is a non school day then commencement and/or conclusion time(s) shall be extended to the Thursday and/or the Monday;
(b) by telephone each Tuesday and Thursday, on [Y]’s and the Wife’s birthday to the Husband’s mobile or landline at 6.30 pm for a period of one half hour or less;
(c) School Holidays — TBA — pending suitable NSW School holiday times not interfering with time spent with the Husband during Victorian School Holiday Times for each of the term breaks;
(d) for the second half of the long summer break.
5. That changeover for the purposes of these orders shall take place at the arrival/departure gate of the airport not more than 30 KMs from Melbourne CBD.
6. That the wife accompany the children on the first six travelling occasions, and then for a further six occasions every alternate subsequent visit;
7. That the Husband be at liberty to telephone the children should they be in the care of the Wife to the Wife’s mobile or landline at the following times:
(a) at 6.30 pm on any Wednesday;
(b) on any birthday of [X], Mr Peters, Ms F, [E], or [D];
(c) Fathers’ Day
for a period of one half hour or less and the children undertake such communication with privacy.
8. That both parties shall facilitate the children or either of them making calls to the other parent in the event the child or children wish to call the other parent when in their respective care and the children undertake such communication with privacy.
9. That the Wife’s time with the children pursuant to paragraph 4(a) and (b) hereof shall be suspended during all school holiday periods and resume on such weekend in the cycle as if not interrupted by the holidays.
10. Each party shall immediately notify the other of any serious illness, injury, incident, or accident involving either of the children whilst in their care.
11. That the wife transfers all wardrobe clothing and accessories for the children to the Husband.
12. That alternatively if this Honourable Court determines that the Wife be permitted to relocate to New South Wales with the children, then I seek Orders as follows:
(a) That the wile be responsible for all travel costs including but not limited to rescheduling of flights due to illness, inclement weather or industrial action, to/from an airport not more than 30KMs from Melbourne CBD, for contact with the Husband as follows:
(i) each alternate weekend commencing (insert Day/Month/Year) from Friday evening commencing prior to 6.30 pm to Sunday evening after 7.30 pm and in the event Friday and/or Monday is a non school day then commencement and/or conclusion time(s) shall be extended to the Thursday and/or the Monday;
(ii) Any time in Sydney for a period of not less than 48 hours, unless agreed.
(b) that the wife accompany the children on the first six travelling occasions, and then for a further six occasions every alternate subsequent visit;
(c) That communication with children is unrestricted including the provision and use of individual mobile phones for each child, internet video messaging, Internet Telephony, landline, email and other mediums where applicable and appropriate. The children shall undertake such communication with privacy. Specifically, set times for the following,
(i) every second Thursday be available for a two hour video communication session (via internet),
(ii) birthdays for [X], Mr Peters, Ms F, [E], and [D], (iii) and special occasions;
(d) That both parties shall facilitate the children or either of them making calls to the other parent in the event the child or children wish to call the other parent when in their respective care and the children undertake such communication with privacy.
(e) School holiday contact, where possible, is to coincide with Victorian School Holiday times so that the children have the opportunity to maintain relationships with current friends and family to continue those relationships as best as possible, for 2009:
(i) Thursday 9th April to Sunday 19th April, 2009. [1st 1 week of NSW school hols]
(ii) Friday 10th July to Sunday 19th July, 2009. [1st week of NSW school hols]
(iii) Friday 2nd October to Sunday 11th October, 2009. [1st week of NSW school hols]
(iv) Friday 18th December to Sunday 10th January, 2009. [1sthalf of NSW school hols]
(v) That changeover for the purposes of these orders shall take place at the arrival/departure gate of the airport not more than 30 KMs from Melbourne CBD.
(f) That the Wife consults with the Husband in relation to all aspects of the children’s education and assures all relevant school notices, reports, photographs, parent-teacher interview times etc. are forwarded to the Husband.
(g) That the wife provides all sufficient, quality and suitable clothing, accessories and footwear for the children during their contact visits with the Husband.
(h) Each party shall immediately notify the other of any serious illness, injury, incident, or accident involving either of the children whilst in their care.”
In her Case Outline filed 11 February 2009, the wife sought the following orders (which varied slightly from her Response filed 14 November 2008):
“1. As from the date of these Orders, all previous Parenting Orders be discharged.
2. That the parties have equal shared parental responsibility for the children, [X] born in 1994 and [Y] born in 1997.
3. That the Mother be permitted to relocate with the Children, to Sydney in the State of New South Wales.
4. That the Children live with the Mother and each party have responsibility concerning other aspects of the care, welfare and development of the Children when they are with that party.
5. That the Children spend time with the Father as follows:
(a) For the first weekend of each calendar month;
(b) On up to four other weekends per calendar year when the Father may travel to Sydney upon him providing to the Mother one month’s written notice, and spend from 9:00am to 7:00pm on Saturday and 9:00am to 7:00pm on Sunday of that weekend with the Children and otherwise as agreed;
(c) That the time set out at subparagraphs 5(a) and (b) be suspended during all the Children’s school holiday periods and resume on the weekend following the first week of the new school term as if not interrupted by the holidays;
(d) For the first half of the April and September New South Wales school holidays in each year from the Friday evening immediately following the end of term to the Sunday nine days later;
(e) For the second halt of the June New South Wales school holidays in each year from the second last Friday of those holidays to the Sunday immediately prior to the children recommencing school;
(f) In odd years commencing in December 2009 from the end of the final school term until 21 days later; and
(g) In even years commencing in December 2010 from 27 December until 17 January;
(h) Otherwise at such times and locations as agreed in writing (including by email or SMS).
6. That for the purposes of the above parenting arrangements:
(a) Unless otherwise agreed, changeover take place between 6:00pm and 8:00pm after a school day and at all other times between 4:00pm and 6:00pm;
(b) The specific time for changeover be determined by the party who has arranged the flight contacting the other parent, no less than one week before the time of the flight, to provide:
(i) the relevant flight numbers; and
(ii) the estimated time, at the time of booking, for which the children’s flight arrives in and leaves from the city of the other party’s residence;
(c) For clarification, flights to airports within 60 kilometres from the General Post Office of Melbourne or Sydney be treated as flights to that city;
(d) The parent ending their time with the Children be responsible for taking the children to the applicable airport to ensure they arrive in time for their flight;
(e) The parent beginning their time with the Children be responsible for making themselves available at the applicable airport to collect the Children at the flight’s estimated time of arrival;
(f) The Mother arrange and pay for the flight costs of the children travelling in accordance with orders 5(a), 5(d) and 5(e) to Melbourne, such payment to be made at least 7 days prior to travel save as otherwise agreed between the parties;
(g) The Father arrange and pay for the flight costs of the children travelling in accordance with orders 5(a), 5(d) and 5(e) from Melbourne, such payment to be made at least 7 days prior to travel save as otherwise agreed between the parties;
(h) The Mother may accompany the children for the initial six flights, and every second flight for a further six flights or otherwise as agreed between the parties. -
7. That the parties each be entitled to communicate with the Children through means of telephone, email and msn/webcam at times to be arranged which take into account the daily activities of the Children and the other party.
8. That both parties make reasonable efforts for joint parent interviews with the Children’s school or schools to be conducted by teleconference.
9. That if either party wishes to travel overseas with the Children during their time with them:
(a) The party who wishes to travel notify the other party in writing of such intention at least two months prior to the travel;
(b) The costs of the holiday, including flight costs, be met by the party who wishes to travel;
(c) That no less than 7 days prior to any such overseas travel, the party who wishes to travel with the children provide to the other party an itinerary setting out telephone contact details and accommodation for each night of the holiday and keep them advised of any amendments thereto; and
(d) Upon provision of such information the other party forthwith sign all documents necessary to arrange for Visas and passports to approve such travel for the Children.
10. Such further or other orders as this Honourable Court deems appropriate.”
In her closing address on behalf of the husband, Ms Agresta outlined four possible orders that could arise from the decision in this case:[2]
“There's the stay proposal, with the children in my client's care. There's the go proposal, which is the mother's that they go to Sydney. There's the split sibling proposal, with [X] staying here and [Y] going with her mother. And in regard to the go proposal, your Honour, there is a possibility of an interim order. So there are four possibilities.”[3]
[2] Transcript, page 134.
[3] Transcript, page 134, lines 42-44 and page 135, lines 1-2.
The Court agrees with this summary but adds that there is, of course the option of making no order, particularly in relation to a child who the Court is satisfied is mature enough to make a decision as to which parent he or she wishes to reside with.
Family report
In accordance with consent orders made by his Honour Federal Magistrate Burchardt on 18 November 2008 a family report was prepared by Trevor Holland on 19 December 2008. The report was admitted into evidence with the consent of both parties and was marked exhibit “A”. Both parties required Mr Holland to be present at the hearing for the purposes of cross examination. On pages 1-2 of his report, Trevor Holland outlines the issues between the parties:
“Ms Peters is seeking to relocate to New South Wales with both children to co-habit with her partner Mr C. Mr C lives in Sydney and has three children [A] age 8, [B] age 9, and [C] age 13.
Ms Peters states that she has thought through the implications of the move and believes her proposal will maintain the children’s relationship with Mr Peters’.”
…
“Ms Peters is of the opinion that the emotional and financial benefits gained by her as a result of the move would be reflected in her parenting of the children, and believes the time offered to Mr Peters is enough for him to maintain a significant and meaningful relationship with the children. Ms Peters states that her relocation to Sydney is a more practical proposition than
Mr C relocating to Melbourne due to his job requirements, and the special needs of his daughter [A] who has been diagnosed with Autism.”
“Mr Peters opposes the application for Ms Peters to relocate to New South Wales with the children. He is of the opinion that such an arrangement will interfere with the ongoing continuity, intimacy, and involvement he currently has with the children, and his relationships with them will be significantly diminished as a result.
Mr Peters is seeking a continuation of Orders from the 31 January 2007 and feels the impact on the children would be less if Mr C relocated to Melbourne. He stated that he is prepared, ready, and willing to take on the full time care of the children should the Court see fit to Order this.”
Mr Holland describes his interview with the respondent wife on pages 3-5 of his report. On page 4 of his report, Mr Holland states:
“Ms Peters described the love she feels for Mr C and her determination to be with him in New South Wales. Ms Peters feels the issue needs to be determined quickly as they do not want to continue to live apart from each other. She stated that she had come to terms with the prospect that [X] may want to live with her father and was unsure what impact this would have if the children were separated. Ms Peters stated that she would be extremely unhappy and sad if not allowed to relocate with the children and feels it would have a profound impact on her parenting and quality of life.”
Mr Holland confirms that the wife stated to him that she would personally relocate without the children (if need be) in the event that the Court did not give permission for them to all go. The wife “felt the children would adjust and understand if this was the case but reiterated her wish for the children to relocate with her.” [4]
[4] Trevor Holland, Family Report dated 19 December 2008, page 4.
Lastly, Mr Holland states:
“Ms Peters stressed that he did not want her determination to move to be viewed as placing the relationship with Mr C above the children’s needs. Ms Peters views her happiness and the children’s well being as inextricably linked and not mutually exclusive. She is of the opinion that her proposal, and determination to make the arrangement work, will provide the time and opportunity for the children to continue having a significant and meaningful relationship with their father.” [5]
[5] Ibid, page 5.
Mr Holland describes his interview with the husband on pages 5-6 of his report. Mr Holland indicates that the husband describes his relationship with the children “as close and intimate” and he maintains that he has “worked hard at not being labelled as controlling”.
Mr Holland describes how the husband was of the opinion:
“…that while Ms Peters has not actively undermined his relationship with the children she has not actively promoted it. He states that Ms Peters has always set very firm parameters around the arrangements for the children and does not deviate from them, and gave Ms Peters refusal for the children to have mobile phones as an example.” [6]
[6] Ibid.
Mr Holland also states that:
“Mr Peters feels the current arrangement gives him the opportunity to track and be involved with the children’s lives on a weekly basis. He is familiar with their school and peers, and describes an ongoing intimate rapport with the children that is facilitated by this regular personal contact. Mr Peters is concerned that this will be lost if the children relocate and as a result the children will be psychologically and emotionally disadvantaged.” [7]
[7] Ibid, page 4-5.
Trevor Holland describes his interview with [X], then aged 14, on pages 6 and 7. He comments that [X] presents as a “physically mature 14 year old” who appears to have a good grip on the issues between the parents and an understanding of their respective point of views with regards to the wife’s proposal to relocate to New South Wales. In particular, Mr Holland states:
“[X] describes a happy school life with good friends and above average academic performance she is anxious about changing school. [X] feels her relationship with her father has improved markedly since she has been spending more time with him and feels more able to relate and communicate with him. She stated, “I love dad he brings another dimension to my life, but mum is my main emotional base person. I don‘t want to be disconnected from either of them.”” [8]
[8] Ibid, page 6.
Later Mr Holland states:
“…[X] stated that her discussions with her mother had been reassuring and she was more accepting of the proposal but would still like the option of returning and living with her father if she does not like it. [X] commented that if her mother goes to New South Wales and she stays with her father she will “find a way to make it work”.
[X] stated that she was aware of her father’s concerns about losing the relationship and their waning interest in the travel over time. [X] offered the opinion that these concerns were real but felt it was impossible to predict how it would turn out she stated, “Regardless of what happens I think it is going to be stressful time for us all.”” [9]
[9] Ibid, page 7.
Lastly, Mr Holland states that [X] reports that she gets on well with
Mr C and his children and that “she is leaning towards going to New South Wales with her mother if the Court allows it.” [10]
[10] Ibid.
Mr Holland describes his interview with [Y], then aged 11, on pages 7-8. He describes [Y] as a “bright and confident child who was articulate and at times assertive in prosecuting her view of the situation.” [11]
Mr Holland indicates that [Y] expressed her wish to relocate to New South Wales with her mother and makes the comment that [Y] “sees it as a new adventure and an opportunity to meet new people and see new places and animals she has not seen before.” [12] Mr Holland indicated that [Y] was aware of the husband’s concerns in relation to the relocation and that she had informed Mr Holland “that she had done the “calculations” on how much time she would lose with him, and she did not think this would impact on her relationship with her father.” [13] Mr Holland also reported that while [Y] likes her current school and group of friends, she believes she “makes friends easily and thought it would take about a month to find friends and “fit in” at her new school.” [14] Lastly, Mr Holland comments as follows:“[Y] impressed as bright and confident with a pseudo mature presentation, she is adamant that she wants to relocate to New South Wales and is slightly irritated at her father’s objections. She has a naïve optimism and appears to be caught up in the excitement and adventure of the proposal and is resistant to exploring any alternative that contradicts her view.” [15]
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] Ibid.
[15] Ibid, page 8.
Mr Holland describes his conjoint view with the husband, [X] and [Y] on page 8 of his report.
Mr Holland provides his evaluation on pages 9 through 12 of his report. He describes both parents as being “caring and committed” [16] and states that both children enjoy warm and intimate relationships with their parents despite some difficulties in the post separation period.[17] Mr Holland states that the concerns of the parties seem genuine and valid. In respect of the wife, he observes that she “appears to be confronted with the existential dilemma of her own happiness and personal development versus the children’s needs at this point in their lives.”[18]
[16] Trevor Holland’s report dated 19 December 2008, page 9.
[17] Ibid.
[18] Ibid.
Mr Holland acknowledges the husband’s concerns that should the relocation progress his relationship with the children will be
significantly impacted upon.[19]
[19] Ibid.
In relation to the two children, Mr Holland comments that their positions “reflect their developmental and cognitive capacities along with their different attachment profiles.”[20] Mr Holland then states:
“[X] has a closer attachment with her father which was some what compromised at the time of the separation, but has ultimately resolved as a result of the previous intervention. Her developmental maturity enables her to weigh the pros and cons and the complexity of the issues in a more balanced and critical way.” [21]
[20] Ibid.
[21] Ibid.
In respect of [Y], Mr Holland states:
“[Y] was five at the time of her parent’s separation, Mr Peters acknowledges being under involved in family life in the years preceding the separation, and Ms Peters is at the core of [Y]’s world and clearly identified as the primary attachment figure. [Y]’s age and stage make it difficult for her to adequately process the full implications of the proposed move.”[22]
[22] Ibid.
Later, Mr Holland acknowledges:
“Clearly the level of intimacy and proximity Mr Peters has to the children’s lives will be reduced by the proposal, and Mr Peters will not enjoy the level of contact with their schooling, friendship group, extracurricular activities, and the regular face to face weekly interaction that enables the sharing of these aspects of the children’s lives.”[23]
[23] Ibid, page 10.
Mr Holland then goes on to describe the children as being:
“…at an age and stage where they are cognitively able to hold an internal construct of the relationship they have with their father over time and space. The attachment they share with their father is warm and reciprocated, the time proposed if it is maintained, and any extra time Mr Peters spent in Sydney to orient him self to the children’s lives, coupled with modern communications and liberal phone contact, would be adequate in maintaining this psychological bond albeit at qualitatively poorer level.”[24]
[24] Ibid.
Mr Holland echoes some concern in respect of the wife’s interpretation of previous Court orders and, in his view her tendency to be relatively “prescriptive”, thus leading to little flexibility with respect to spending time arrangements outside of the agreed parameters.[25] In particular,
Mr Holland notes that “Ms Peters has refused to permit the children to have mobile phones in the past, and this is a tool that would certainly provide some independence and autonomy to Mr Peters and the children if the relocation proceeds.”[26]
[25] Ibid.
[26] Ibid
In the event that the Court refused the relocation of the children, Mr Holland states that given the “children share a warm and reciprocated attachment with Mr Peters…he would be well placed to take up the full time care of the children.”[27] In respect of the impact of this option upon the children , Mr Holland comments:
“[X] has already considered this course of action and she remains ambivalent about the move to New South Wales and living with her father remains a viable and ongoing possibility. [X] stated that she would like to return to her father’s care should the move to New South Wales prove unsuccessful for her. While she would experience the separation from her mother as difficult she is psychologically robust and her developmental context would facilitate such a decision.”[28]
[27] Ibid, page 11.
[28] Ibid.
With respect to [Y], Mr Holland clearly has more concerns. He states:
“…[Y] reveals that her primary attachment and nurturing source is with her mother, and her comments about separation from her mother are cogent and coherent themes in the context of her family experience and developmental age and stage. It is likely that [Y] would experience psychological and emotional difficulties if prematurely separated from her mother.”[29]
Interestingly, Mr Holland goes on to state that while [Y]’s separation from her mother “would not be recommended, the separation from the children from each other should prove relatively unproblematic.”[30]
[29] Ibid.
[30] Ibid.
In conclusion Mr Holland states on page 12 of his report:
“The report writer has sought to provide a psychological analysis of the relationships and capacities of the children in relation to the proposals. The opinion formed is that the children’s relationship with Mr Peters would be significantly impacted by the relocation and may result in a diminution in the quality and intimacy of the relationships.
However, the children’s cognitive capacities are at a stage and level of development, and the proposed arrangement adequate enough for this to be ameliorated to some extent. I am unable to measure or comment on this variable with any degree of accuracy suffice to say; the greater the cooperation and commitment to the proposal the better the outcomes achieved.”
The evidence of the parties
Both parties provided the Court with affidavit and oral evidence. In addition the wife’s new partner, Mr C, gave evidence on affidavit and at the hearing (by telephone with leave of the Court).
Applicant husband’s evidence
The following documents were relied upon by the applicant husband:
· Amended Application filed 6 February 2009;
· Affidavit of husband sworn 14 October 2008 and filed 15 October 2008 (“his first affidavit”);
· Affidavit of husband sworn 5 February 2009 and filed 6 February 2009 (“his second affidavit”); and
· Outline of Case document filed 13 February 2009.
At paragraph 8 of his first affidavit, the husband states the children spend time with him each alternate weekend and for extended holiday time pursuant to the existing consent Orders. He describes his usual activities with the children in paragraph 9. The husband elaborates further in paragraph 23 of his first affidavit, describing himself as a “hands on father.”[31]
[31] Husband’s first affidavit sworn 14 October 2008 and filed 15 October 2008, paragraph 23.
At paragraph 11 of his first affidavit the husband indicates that in April 2008 the wife first approached him about the possibility of relocating to Sydney. It would appear that the parties engaged in further correspondence by email with respect to these issues and a copy of some of the relevant emails were attached to husband’s first affidavit.[32]
[32] See Exhibits “AH-1” and “RW-1”.
At paragraph 15 of his first affidavit, the husband asserts that the elder child [X] has expressed her wish not to relocate with her mother. In support he attached to his first affidavit a copy of a letter that [X] wrote to the wife outlining her views against relocation.[33] At paragraph 16 of his first affidavit he explains that [Y]’s views, (that tend to support the relocation), would also tend to demonstrate “her inability to comprehend the magnitude of the relocation and its impact.”
[33] See Annexure “DP-04”.
At paragraph 18 of his first affidavit, the husband describes the likely travel times the children would have to undertake to maintain a connection with him, should relocation be permitted. At paragraph 19 of his first affidavit the husband states his fear that his relationship with the children would deteriorate because they may become resistant to the travel that would be required into the years ahead.
At paragraph 25 of his first affidavit he states his view that the wife’s partner should consider relocating from Sydney to Melbourne and at paragraph 26 and 27 of his first affidavit he indicates that should the wife wish to relocate he is well placed to provide a stable home for the children that would enable them to maintain contact with their current friends and family and remain at [M] Secondary school.
The husband reiterates these concerns and views in his second affidavit. In addition, at paragraph 21 and 22 of his second affidavit he asserts that the loss of midweek contact with the children (whereby they enjoy a meal together, etc) would have a detrimental effect on maintaining a close relationship between them.
At paragraph 28 of his second affidavit the husband asserts as follows:
“It is my concern that my relationship with [X] and [Y] will diminish if they are permitted to relocate to New South Wales and further that [X] and [Y] will be psychologically and emotionally disadvantaged if they could not maintain the [sic] current contact regime. In this regard, Mr. Holland in his report contends that research studies would to some extent support my concerns (page 10, paragraph 1 of Mr. Holland’s report.)”
Leave was given to Ms Agresta for the husband to lead some additional evidence with respect to the husband’s current circumstances and his relationship with his partner Ms F.
During examination in chief, the husband confirmed that, in the event that the children do not relocate with the wife, he would propose obtaining accommodation nearer to the children’s current school being [M] Secondary College.[34] The husband also indicated that from his present residence, it would take him approximately 25 minutes to drive the children to school each way.[35]
[34] Transcript, page 11, line 23.
[35] Ibid, line 37.
As mentioned above the husband was also questioned in chief with respect to his extended family and his current arrangements with his partner Ms F and her children. He describes the children’s relationship with his extended family (i.e. the paternal grandparents, paternal aunt and paternal uncles) as being “very good”[36]. In respect of his partner Ms F the husband stated as follows:
“Okay. Ms F, who's also in the court today, we hold separate residences. Ms F has two children; [D], 17 and [E], 14, and on weekends we actually co-habitat at my place with the family together so the children have a sense of a family environment. Throughout the week we hold separate residences. We have chosen to do that for several reasons: one of the main reasons though has always been a consideration for the children – for
Ms F's children and my children – in terms of not wanting to exacerbate any relationship issues by having the whole family together on a constant basis. So we've kept that in mind in terms of making decisions as to whether and when we - or when we finally decide to live together. And her children, particularly [E], get on very, very well with my two girls and, you know, has expressed some – has expressed her, I guess, devastation that the children may relocate to New South Wales and, therefore, see less of my two girls.”[37][36] Transcript, page 12, lines 1-24.
[37] Transcript, page 12, lines 35-44 and page 13, lines 1-5.
Under cross examination by Ms Stewart for the wife, the husband admitted that ideally he would prefer that the current arrangements continue (i.e. the children remain living with their mother and spending significant time with him).[38] In this respect the husband later acknowledged the wife was a “good mum” and stated in addition:
“I accept that she is a good mum to the children in terms of her environment and the way she takes care of the children within her environment. I don't believe that she actively fosters relationships between the children and myself. And one of the issues that I have is that through distance, through things like not being able to attend parent-teacher interviews, not being able to attend school campus – as I have in the past – involvement with dancing and the various other activities that I participate in with the children inside and outside of any contact, will definitely have a large impact on the relationship between myself and my children.”[39]
[38] Transcript, page 14, lines 39-40.
[39] Transcript, page 15, lines 22-30.
Later Ms Stewart questioned the husband in relation to ways in which communication between the children and himself may be facilitated, in addition to face to face contact either fortnightly or monthly. In response the husband stated:
“If I could rely on Ms Peters to foster that additional communication and provide the infrastructure and the opportunity and the right environment, then those things [referring to telephone calls, MSN and SMS communication] are possible. However, it's not ideal.[40]
[40] Transcript, page 18, lines 8-11.
Later the husband acknowledged that he had provided both his children with a mobile phone and acknowledged that the wife had not been happy about his decision to do so.[41] Ms Stewart then asked the husband:
“...if we had, for instance, an order that you were able to provide the girls with a mobile phone, and that my client do nothing to interfere with them being switched off or on, the girls would have something to say about that. But if my client is ordered not to interfere with that, then that would provide you some level of security, wouldn't it?”
“Some level. It begs me to question why it's taken – it beats me to question why it's taken to this point to allow that unfettered and uninterrupted communications that occurred in the past.”[42]
[41] Ibid, line 25.
[42] Ibid, lines 27-34.
Later the husband was cross examined in relation to [X]’s letter to her mother, a copy of which is attached to his first affidavit (being annexure “DP-04”). The husband agreed that he had “encouraged” [X] to write the letter to her mother and express her thoughts and concerns about the relocation.[43] The husband was then asked by Ms Stewart:
[43] Transcript, page 22, lines 34-36.
“…she wrote this letter at your house, didn't she?”
“I can't answer that. I don't know that she did or she didn't. She didn't write it in my presence. I just encouraged her to write a letter…” [44]
[44] Ibid, lines 38-40.
Later the husband asserted that he still had concerns about the relocation, notwithstanding [X]’s comments in Mr Holland’s report (as evidenced in page 6 of his report), that the child was prepared “to give it ago” and was prepared to “find a way to make it work” (i.e. referring to the relocation).[45]
[45] Transcript, page 23, line 19 and 22.
Respondent wife’s evidence
The wife relies upon the following documents:
· Response filed 14 November 2008;
· Wife’s Affidavit sworn 12 November 2008 and filed 14 November 2008;
· Affidavit of Mr C (wife’s partner) sworn 12 November 2008 and filed 19 November 2008; and
· Outline of Case document filed 11 February 2009.
The wife details her relationship with Mr C and Mr C’s children in paragraphs 10 through 18 of her affidavit. She states that Mr C has three children from a previous marriage, namely [A] nearly 9 years, [B] nearly 10 years and [C] who is 13 years. At paragraph 14 the wife states:
“[A], [B] and [C] live with their mother and spend alternate weekends and half of the school holidays with their father. [A] has been diagnosed with autism and requires greater support with speech, occupational therapy and schooling. Although she can speak many words, often she cannot clearly articulate her concerns or understand risks. She has difficulties with socialising and tends to become single-minded. Stable routines are important for her and she finds change, or unusual circumstances or people, distressing.” [46]
[46] Wife’s affidavit sworn 12 November 2008 and filed 14 November 2008, paragraph 14.
The wife describes Mr C’s employment details in paragraph 19 of her affidavit. At paragraph 20 she indicates that she is proposing to seek some [omitted] work with the New South Wales [omitted] Department following her relocation. Overall the wife states that she is confident that her financial circumstances will be such that she will be able to help finance the travel costs to enable her children to spend time with the husband into the years ahead.
The wife describes the children’s views in paragraphs 30 to 32 of her affidavit. She acknowledges receiving [X]’s letter which she attaches to her own affidavit (Annexure “KLP-1”) and discussing the relevant letter with her daughter. She details those discussions in paragraph 31(b)(i)-(v) of her affidavit. Overall the wife’s assertions with respect to [X]’s views seem to accord with those expressed by [X] to
Mr Holland, namely that is that [X] is prepared to consider relocation to Sydney but would like the option of returning to live with her father should she so desire.
The wife describes [Y] as being “enthusiastic about the proposed relocation”, and she details this in paragraph 32 (a)-(c) of her affidavit.
In her oral evidence, the wife was asked questions by her Counsel,
Ms Stewart, in relation to the husband previously providing the children with mobile phones:
“How old were the girls at that stage?”
“I'm not sure. They were quite young, so maybe [Y] was seven, [X] 10. Maybe six to nine – in there.”
“Did you have some objection to the mobile phones?”
“I did, yes.”
“And what was that?”
“One, that it wasn't discussed with me, and I felt that the girls at that stage were a little young to be responsible for carrying around the mobile phones.”
“How do you feel about the mobile phones now?”
“Well, I think that the mobile phone, nowadays the children have a lot more - they're older and are able to be a lot more responsible with a mobile phone at this stage, so I could see that as a viable means of communication.”[47]
[47] Transcript, page 32, lines 27-39.
Later in her examination in chief, the wife acknowledged that she has made arrangements for the children to be enrolled at [B] High School (in New South Wales) but their enrolment at [M] Secondary College is continuing.[48]
[48] Transcript, page 37, line 1.
Under cross examination by Counsel for the husband, Ms Agresta, the wife acknowledged that she was proposing to relocate to Sydney even if the children were not permitted to relocate.[49] The wife further acknowledged that her home in [S] is currently on the market for sale and that she and the children are in the process of packing up their property.[50]
[49] Transcript, page 38, line 2.
[50] Transcript, page 38, lines 7-9.
The wife was thereafter cross examined at some length about [X]’s views. Although the wife acknowledged that [X] was being placed in a “difficult position”,[51] the wife subsequently went on to state:
“I'm not saying that she [[X]] still hasn't got reservations about the move, but she has definitely indicated to me and also to Mr Holland that she's prepared to give it a go on the proviso that she has – you know, she can take the opportunity of coming to live with her dad.”[52]
[51] Transcript, page 43, line 39.
[52] Transcript, page 44, lines 35-40.
Later the wife re-indicated that she was prepared to support [X]’s wishes in the event that she moved and subsequently wished to return to live with her father.[53]
[53] Transcript, page 46, line 17-18.
The wife was subsequently questioned by Ms Agresta in relation to whether (in the event that relocation is permitted), the children could spend fortnightly rather than monthly time with their father. The wife acknowledged that although she was initially agreeable to fortnightly time she considered that monthly visits would be more appropriate. That having been said, the wife subsequently indicated under cross examination that fortnightly visits could be “tried.”[54]
[54] Transcript, page 61, line 26.
The wife was also questioned at some length about various conversations and emails sent between the parties with respect to the children spending more time with their father at various events in the years following separation. On several occasions the wife acknowledged that she may have made some “mistakes in the past.” At one point she said:
“…I'm open to accepting that I've made mistakes. You know, some of that time was a very difficult time, and so it's important to be able to moving past some of those things and not be drawing back on those things all of the time.”[55]
[55] Transcript, page 72, lines 32-35.
Later the wife said:
“…I think that Mr C has actually helped me to be a lot more relaxed about a good many things, because he can definitely understand Mr Peters’ point of view, and so I think that he has actually opened my eyes to a good many things that perhaps I was uptight about that really aren't very important.”[56]
[56] Transcript, page 73, lines 15-20.
Lastly, the Court asked the wife several questions including how the wife would feel (in the event that the relocation was permitted) if [X] decided that she wished to return to Melbourne to live with her father.[57] At one point the wife stated:
“Look, I would miss her, but, you know - yes, but I'm not going to be cut off from see her, like, you know, that's - she's still your child so, you know, I wouldn't think that we would have no contact at all. I figure at this age that she'll be starting to make some choices like as she gets a bit older anyway … There may be times that - well, I guess I envisage that there may be times where, you know, she would like to stay with her dad longer, or stay - go down for additional time, and I've also told her that I wouldn't stand in her way of those sorts of things either.”[58]
[57] Transcript, page 111.
[58] Transcript, page 112.
Evidence of Mr C (the wife’s partner)
The wife’s partner Mr C also gave evidence on behalf of the wife in his affidavit sworn 12 November 2008 and filed 19 November 2008. Mr C provides details about his three children, [A], [B] and [C] in paragraphs 5 through 10 of his affidavit. In respect of his eldest child [A] (aged nearly 9) he states at paragraph 7 through 10:
“7. [A] has been diagnosed with dyspraxia (which limits speaking abilities) and autism and this requires greater support from her mother and myself regarding her speech, occupational therapy and schooling.
8. [A] is having difficulties in grade two. Although she can speak many words, she cannot clearly articulate her concerns, understand risks or empathise. She has difficulties with socialising and tends to become single-minded. Stable routines are important for her and she finds change, or unusual circumstances or people, distressing…
10. Given my children’s ages and [A]’s autism I consider, from a parental view point, that it is more practical for Ms Peters to move to Sydney than me to move to Melbourne.”
Mr C outlines his financial circumstances, and those of the respondent wife, in paragraph 11 through 14 of his affidavit. At paragraph 14 he states:
“From a financial view point, it is far more practical for
Ms Peters to move to Sydney than for me to move to Melbourne.”
Lastly, Mr C describes his relationship with the wife’s children in paragraphs 15 through 17 of his affidavit.
The Court gave leave to Mr C to give further evidence by telephone as he was unable to travel to Melbourne due to work commitments. Under cross examination from Ms Agresta for the husband, Mr C confirmed that his ex-wife, whom his children reside with on a full time basis, lives approximately 10 kilometres from his current residence.[59] In addition, he confirmed that he spends time with his children each alternate weekend from Friday through Sunday.[60] Mr C also confirmed that he has no prior convictions, has never been in trouble with the police and has had no involvement with child protection authorities.[61] Although Mr C indicated that he had some discussions with the respondent wife with respect to relocating to Melbourne, he acknowledged under cross examination that he did not wish to leave his children and he had lesser job prospects should he move.[62]
[59] Transcript, page 115, line 26.
[60] Ibid, lines 23-24.
[61] Ibid, lines 39, 43 and Transcript, page 116, lines 1-2.
[62] Transcript, page 118, lines 15-25.
The report writer’s evidence
As previously indicated the report of the family consultant Mr Holland was admitted into evidence with the consent of the parties as exhibit A. Mr Holland was also cross examined by respective Counsel for the husband and the wife.
Ms Agresta for the husband asked Mr Holland about the potential for a loss in the quality and the intimacy of the husband’s relationship with the children should the relocation be permitted (referring to specific comments in Mr Holland’s report in his penultimate paragraph on page 12).[63] In response Mr Holland stated:
“The risks, I think, would be associated with the relationship not being as close, not being as intimate. The children are not feeling as supported. There is some research – and it's only a small body of research in this particular area, and it's as part of a meta analysis by Kelly and Lamb and the most cogent piece of this indicates that a large group of American students were followed into early adulthood and those children or young adults whose parents had relocated and had not had significant continued contact with the other parent, came out higher on a whole range of different outcomes in terms of mental health and indeed in some areas in physical health as well. So their outcomes were poorer than those children who (1) stayed in intact families, and (2) who had been in families that had separated but who'd stayed in close proximity. That's where that statement comes from.”[64]
[63] Transcript, page 75, lines 37-42.
[64] Ibid, lines 42-45 and Transcript, page 76, lines 1-10.
During her cross examination of Mr Holland, Ms Stewart for the wife asked questions in relation to the potential risks that [Y] may suffer should her sister [X] remain with the husband in Melbourne.[65] In response, Mr Holland stated:
“…I think that if that became an issue and it was a way in which the court was leaning and I was asked a question do I think these children could cope with being separated from each other? Then my answer would be yes, providing every effort was made for them to catch up on the once a month and so on and so forth.”[66]
[65] Transcript, page 82, lines 14-16.
[66] Ibid, lines 17-22.
Mr Holland went on to reconfirm [X]’s view that if she did relocate she would like the option of returning to Melbourne.[67] He described [X] as being “ambivalent” about the move and wanted the “caveat of coming back without too many problems.”[68] Mr Holland also stated that in the event that [X] did change her mind and wished to return to Melbourne he felt he gained the impression that the wife would not oppose such.[69]
[67] Ibid, line 29.
[68] Ibid, lines 37-38.
[69] Transcript, page 83, lines 39-41.
I also asked Mr Holland a question arising from page 11 of his report in relation to his statement that “the separation of the children from each other should prove relatively unproblematic.” I specifically asked
Mr Holland whether he thought [X] had the appropriate personality to make it clear to her mother, in the event that a relocation proceeded, that she had changed her mind and wished to return and live with her father. Mr Holland responded:
“For [X] I don't think it would be a struggle with her mother in relation to that. For [X] I think – if she decided that she wanted to come back – it would be an internal struggle for her about leaving her mother and her sister, and she would come to that conclusion one way or the other. But I had no sense that
Ms Peters would restrain her, and I had no sense that [X] would not have the maturity and the ability – if things were going wrong for her – and indeed the narcissism of adolescence – to say, "I don't want to do this any more and it looks a whole lot better back at dad's", and I had a sense that [X] had the capacity to do that, and I did not have a sense that Ms Peters would restrain her from being able to say that.”[70][70] Transcript, page 86, lines 27-35.
I also asked Mr Holland whether [X] had articulated her plans for her future schooling. Mr Holland responded:
“Yes, she has, and she's well embedded in her school community. She has close friends. One of the major points of ambivalence for her now is about leaving this secure embedded community that she finds herself in, which becomes dramatically more important as an adolescent than it does at any other stage I think, and that's a significant issue for her in terms of her ambivalence around the relocation.”[71]
[71] Ibid, lines 37-45.
The Full Court of the Family Court’s decision of In the Marriage of Hall (1979) 5 Fam LR 609 contains an authoritative statement about how reports such as the one written by Mr Holland should be treated in proceedings such as this case:[72]
[72] In the Marriage of Hall (1979) 5 Fam LR 609 at 614-615.
“In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a) There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities: In the Marriage of Wood (1976) 2 Fam LR 11,182 ; 11 ALR 657 ; [1976] FLC 90-098 at 75,447; In the Marriage of Harris Fam LN No 33 ; (1977) 29 FLR 285 ; [1977] FLC 90-276.
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e) Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
(g) It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.
(h) Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation …
(i) Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied …”
In this matter the report writer’s evidence was tested and not found wanting in relation to his recommendations. In addition, as Mr Holland is the only independent and expert party in these proceedings, the Court must give the report and his oral evidence considerable weight.
The law
Parental responsibility
The Court is asked to make specific parenting orders in relation to these proceedings. More specifically, the Court is asked to determine whether the wife is able to relocate with the children to New South Wales, or alternatively whether the children should remain in Melbourne and live with the husband. In this respect, the Court notes that it is the wife’s intention to relocate without the children if the Court does not permit the children’s relocation. That all having been said, there is no disagreement between the parties that they should have equal shared parental responsibility for the children.
Parenting orders are defined in section 64B of the Family Law Act 1975 (“the Act”). Parenting orders deal with where the child is to live, the time the child is to spend with another person or otherwise allocate parental responsibility in relation to a child.
Section 60CA of the Act makes it clear that for the purposes of making a parenting order the Court must regard the best interests of the child as the paramount consideration.
Section 61DA incorporates a presumption that the Court is required to consider when making a parenting order. That is, the Court must apply a presumption that it is in the best interests of the child concerned for the child’s parents to have equal shared parental responsibility. As previously stated, there appears common ground between the parties in this matter that they should have equal shared parental responsibility for the children.
Relocation
The law in relation to the relocation of children has been the subject of numerous comments by the Family Court and the Federal Magistrates Court.
The Act does not contain any presumption against a relocation (parenting) order and nor is there any presumption that favours the parent that the child has been primarily residing with.[73] In other words, “relocation cases” are not a special category of parenting orders. What the Act does is to provide the Court with a structured discretion to determine what order is appropriate in the circumstances.[74]
[73] Morgan v Miles (2007) 38 Fam LR 275 at 289 (per Boland J sitting as the Full Court).
[74] Ibid.
The impact of the 2006 amendments to the Family Law Act 1975 in relation to relocation cases has been described in the following terms by her Honour Boland J in the case of Morgan v Miles(2007) 38 Fam LR 275 at paragraphs 79-81:
“[79] In considering whether the child should live with the parent who proposes to relocate a court:
· Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
· Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
· Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
· If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
· In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
· When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
· Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
- that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
- that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
- that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
- the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
·Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
[80] It follows from my exposition of the legislation, that earlier core principles:
·that the child’s best interests remain the paramount but not sole consideration;
·that a parent wishing to move does not need to demonstrate “compelling” reasons;
·that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
·the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.
[81] What the legislation now requires is:
·consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
·if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility.
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.”
In Godfrey v Sanders (2007) 208 FLR 287, Kay J, sitting as the Full Court of the Family Court, suggested at paragraph 36 that the current legislation aspires to promote a meaningful relationship, not an optimal one, and that the diminution in the relationship no longer means that the relationship is not meaningful. That having been said, I agree with the comments of his Honour Altobelli FM in cases such as Garvey v Eccles [2008] FMCAfam 1218 and Silas & Barry (2009) FMCAfam 448[75] that the question of a meaningful relationship must be considered in terms of “quality” of time rather than the quantity of time. Nevertheless, the frequency of time spent between children and their parents remains a relevant factor.
[75] Silas & Barry (2009) FMCAfam 448 [46].
Equal time or substantial and significant time
The Court is required under section 65DAA of the Act to consider whether the children’s best interests would be served by making an order that they spend equal time,[76] or alternatively substantial and significant time,[77] with each of their parents.
[76] Section 65 DAA(1).
[77] Section 65 DAA(2).
This is not a case where equal time parenting can be an outcome. Given the wife’s intentions to relocate herself to New South Wales (with or without the children), it would not be “reasonably practicable” for the Court to make an equal time parenting order, [78] nor is such sought by either party.
[78] See section 65 DAA(1)(b) of the Act.
That having been said, the issue of the children spending “substantial and significant time” with the parent that the children do not primarily reside with is a live issue in this case. Consequently, the Court must consider section 65DAA(2)-(5) of the Act. Both parties envisage that the children will need to frequently travel between Melbourne and Sydney for either monthly (or fortnightly) weekend visits and for significant periods during their school holidays. Moreover, both parties envisage that the children will communicate with the parent that they are not primarily residing with by telephone and internet technology. The availability and frequency of travel modes (principally plane travel) coupled with telephone and internet technology may make an order for “substantial and significant time” “reasonably practicable” in this case.[79]
[79] See section 65DAA(2)(d) of the Act.
Nevertheless, the Court notes that section 65DAA(3) stipulates that a child will only be taken to spend “substantial and significant time” with a parent if:
“(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; and
(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 parent.”
In considering the reasonable practicality issue, section 65DAA(5) requires the Court to have regard to:
“(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.”
As mentioned above, the availability and frequency of plane travel, coupled with telephone and internet technology, makes an order for “substantial and significant time” “reasonably practicable” in a technical sense. However, given section 65DAA(3), it is clear that an order that would only allow the children in this case to spend weekend time (monthly or fortnightly) and school holiday time, may not be considered “substantial and significant time”. Nevertheless, given the reality of this situation (i.e. with the parents residing in two different states), and the creative use of internet and telephone technology, [80] it is possible, for the parent that the children do not primarily reside with, to be able to be involved in the children’s daily routines, school work and other activities. That parent may also need to travel, on occasions, to where the children primarily reside to attend school and other functions. That all having been said, this will require co-operation between the parents into the future. Of course, any such order must be made in the best interests of the children.
[80] Notwithstanding, I do agree with the reservations expressed by Altobelli FM in respect of “virtual visitation” in Garvey v Eccles [2008] FMCAfam 1218 at [38].
Determining the best interests of the child
The issues that arise for this purpose are the primary and secondary considerations that the Court must take into account under section 60CC of the Act. What is considered to be in the best interests of the child in these types of cases necessarily depends on the particular circumstances in each case. In each case different circumstances require different resolutions.
The Court will now turn to consideration of the factors in section 60CC(2), (3) and (4) of the Act in the context of this case. The primary considerations are set out in section 60CC(2).
The benefit to the child of having a meaningful relationship with both parents
It is clear from the evidence of the parties that both accept the need for [X] and [Y] to have a meaningful relationship with each of them. The matter is complicated in this case because the wife has indicated that she will be relocating herself to Sydney in the event that the Court refuses to allow the children to relocate. Consequently, the children’s relationships with their parents will potentially become more stressed as they deal with the reality that they will be spending less time with their father if both children relocate, or less time with their mother if both children do not relocate. Regardless, any outcome must provide the children with the ability to spend as much time with the parent that they will not be primarily residing with.
That having been said, the Court is mindful of the evidence of Mr Holland in relation to the possible diminution in the quality and the intimacy of the children’s relationships with both parents given the wife’s decision to relocate herself to New South Wales. The Court does however draw comfort from Mr Holland’s assessment in the final paragraph of his report that “the children’s cognitive capacities are at a stage and level of development, and the proposed arrangement adequate enough for this to be ameliorated to some extent.”[81]
The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence
[81] Trevor Holland’s report dated 19 December 2008, page 12.
There are no specific issues of abuse or family violence in this matter.
In determining the best interests of the child, the Court is also required under section 60CC(3) to consider additional considerations where relevant.
The child’s expressed views and the weight those views should be given
The strong views expressed by [X] and [Y] provide the key to unlock the future arrangements between the parties.[82] The evidence from Mr Holland is quite clear that [Y] wishes to relocate with her mother to New South Wales and would like to spend significant time through weekend visits and school holidays. In contrast, the evidence from Mr Holland is that the elder child [X] is ambivalent about relocating to New South Wales but has indicated a willingness to move with her mother provided that, in the event that she changes her mind down the track, she has the option of returning to live with her father. [X] seemed to assert this proviso “forcefully” in her interview with Mr Holland and also appears to have indicated this to her parents. Clearly, [X]’s wish to return to her father should she subsequently wish to is made with her knowledge that she would also be separating, not just from her mother, but from her younger sister [Y].
[82] See DIH & MJH (No.3) [2005] FMCAfam 501 at [17] (per Sexton FM).
In R & R: Children’s Wishes (2000) 25 Fam LR 712, the Full Court of the Family Court said:
There are many factors that may go to the weight that should be given to the wishes of the children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive syntheses on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.[83]
[83] 25 Fam LR 712 at 724 (per Nicholson CJ, Finn and Guest JJ )
After having considered all the evidence, and particularly Mr Holland’s recommendations, the Court is satisfied that the children’s views as such should be accommodated as best as can be in all the circumstances.
The nature of the relationships between the child and each parent and other people important in their lives
There is no doubt that both the husband and the wife love their daughters. It is also clear that the children have a good relationship with their extended family including their maternal and paternal grandparent, aunties, uncles and cousins. Moreover, as both the wife and husband have formed new relationships with persons who have children from previous relationships, the children’s best interests involve ongoing relationships with not just their parents but also their parents’ partners and their parents’ partners’ children.
The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the children and the other parent
The Court agrees with Mr Holland’s assessment in the final sentence of his report where he states “the greater the cooperation and commitment [by the parties to the proposed relocation or otherwise] …the better the outcomes achieved.”[84]
[84] Ibid.
Despite past difficulties in their parenting relationship, the Court is satisfied that both parties now possess the requisite skills and experience post separation to encourage and foster a close and continuing relationship between the children and the other parent.
Any changes in the child’s circumstances including the likely effect on the children of any separation
Clearly the proposals of both the wife and the husband will result in changes to [X] and [Y]’s existing circumstances. Given the wife’s intention to move to New South Wales regardless of the Court’s decision, the children’s relationship with both parents is about to enter into a new phase. Clearly the outcome must reflect the children’s best interests.
The practical difficulty and expense of the child spending time with both parents
There is an issue in this case about the cost of travel that will be necessary to enable the children to spend time with the parent that they do not primarily reside with. Both parties considered and addressed this issue in their evidence. As to frequency, the Court doubts that fortnightly travel between capital cities could be sustained in the long-term. The practical reality is that monthly travel, in addition to school holidays and other special occasions, is the most practical outcome in such situations.
The most likely costs will be funding the cost of airfares for flights between Melbourne and Sydney. In his Outline of Case document the husband proposes that the wife should be responsible for all of these travel costs, regardless of whether the children primarily reside with the wife or himself. In her Outline of Case document the wife proposes that the parties equally pay for the travel costs (i.e. the wife pay the travel costs from Sydney to Melbourne and the husband pay for the travel costs from Melbourne to Sydney).
The Court notes from the evidence that the husband is employed and he admitted in evidence that he earns approximately $120,000 per annum.[85] The husband also indicates in paragraph 20 of his first affidavit that he currently pays $1,380 per month in assessed child support. In her evidence the wife indicated that she is currently earning $34,000 per annum as a [occupation omitted] and that it is her intention to seek work as a [occupation omitted] in New South Wales.[86] Her partner also gave evidence that he is in full time employment and currently earns approximately $120,000 per annum.[87] In light of this evidence, the Court is satisfied that the parties have the financial resources to fund the necessary travel costs into the future. Given the husband’s financial resources, in particular, the Court sees no reason why the travel costs should not be shared equally between the parties. These costs can be taken into account for child support purposes.
The capacity of each parent to provide for the child’s needs/ the attitude each parent has demonstrated to the responsibilities of being a parent
[85] Transcript, page 11, line 8.
[86] Transcript, page 57, line 1 and page 58, line 5.
[87] Transcript, page 119, line 35.
The Court is satisfied that both the husband and the wife have the capacity to provide for [X] and [Y]’s needs and have generally demonstrated a positive attitude to the responsibilities of being a parent.
Whilst there have been issues about the use of email between the parties over the years, it is clear that the parties need to have a line of communication to assist the parties into the future in dealing with the responsibilities of raising these two children in their adolescence. The use of landline telephone, mobile phone and internet technology will enable the children to have an open channel of communication between themselves and the other parent that they are not residing with on a full time basis.
The maturity, sex, lifestyle and background of the child and the parents
There are no specific matters here that assist the Court. That having been said the Court notes the previous comments about the strong views asserted by both children with respect to the relocation. Certainly, the Court is satisfied that the elder child, [X], has the requisite maturity to have her views reflected if in her best interests.
Any family violence (or any family violence order) involving the child or a member of the child’s family
There is no issue of family violence or any family violence order between the parties.
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
While the Court proposes that any parenting order that it makes be subject to any agreement between the husband and the wife that benefits both [X] and [Y], it is clear that the parties will require specific Court orders to assist them in their future parenting of [Y]. The Court has formed the view that it is reluctant to make any orders impacting specifically upon [X] and would prefer the parties to respect [X]’s wishes either to relocate, with her mother or not, and if she does relocate, to have the ability to change her mind and return to Melbourne should she so desire.
Any other fact or circumstance the Court thinks is relevant
There are no additional issues which the Court thinks are relevant.
The Court is also required under section 60CC(4) to consider the “extent to which each parent has fulfilled, or failed to fulfil, his or her responsibilities as a parent…” In this case both the husband and the wife have been actively involved in their children’s lives and, despite their current disagreement over the children’s proposed relocation, the evidence suggests they have been able to make the necessary long-term decisions in relation to their children.
Conclusion
The husband and wife should continue to have equal shared parental responsibility for their children [X] and [Y]. The Court is satisfied that [Y]’s best interests would be served by allowing her to relocate with the wife to New South Wales and for that relocation to occur, if possible, by the commencement of the third school term this years (i.e. July 2009). The Court is also satisfied that [Y]’s best interests would be served by her spending time with her father as often as is practicable. In this respect, the Court believes [Y] should spend at least one weekend per month with her father in Victoria. In the event that the husband was able to travel to Sydney, [Y] should be able to spend some time with the husband provided adequate notice was given and it did not impact adversely upon her schooling. In addition, [Y] should spend at least one half of all school holiday periods with the husband, and in default of any agreement, the husband should have the second half of all school holiday periods commencing in 2010 and alternate years thereafter and the first half of all school holiday periods commencing in 2011 and alternate years thereafter. There also needs to be appropriate orders with respect to [Y] being able to communicate with the husband at least twice weekly, by telephone or preferably by interactive internet technology, for extended periods, and on special days such as relevant birthdays.
In relation to [X], the Court is reluctant to make any orders, final or interim, unless the parties were in agreement. It is quite clear that [X] has the necessary maturity for her views to be respected. The Court is satisfied that respecting her views would be in her best interests and consequently [X] should be able to determine whether she wishes to relocate with her mother, or not, and in the event that she does or does not relocate, [X] should have the opportunity to change her mind if she so wishes. [X] may chose to relocate with her mother as early as the commencement of the third school term of 2009 or may prefer to relocate at the commencement of the 2010 school year. In the event that [X] does relocate then it would be in her best interests to spend time and communicate with her father on the same basis as stated above with respect to [Y]. In the event that [X] does not wish to relocate, or returns to Melbourne after relocating, then it is recommended that she spend such time with her mother and her sister [Y] as can be arranged and in this respect the Court would recommend that she spend at least one weekend per month and at least half of the school holidays with her mother and sister in Sydney, as well as time in Melbourne should her mother return for a visit. Clearly, [X]’s time with her mother and sister would need to be reflective of the time that [Y] was spending with the husband and [X] in Melbourne. In other words, the outcome needs to maximise the two children being able to spend as much time with each other as possible.
The costs of air travel between Melbourne and Sydney should be equally borne by the parties. The Court agrees with the wife’s proposal that she be responsible for all travel costs from Sydney to Melbourne, and that the husband be responsible for all travel costs between Melbourne and Sydney. There appears to be agreement between the parties that the wife travel with her daughters on the first six return visits from Sydney to Melbourne to familiarise them with the travel environment. The Court notes that both children are now old enough to travel as unaccompanied minors.
The orders should also include obligations on both parties to keep each other informed about [X] and [Y]’s activities, health, education and development (preferably through the use of a communication book or electronic equivalent) and not to denigrate each other in [X] or [Y]’s presence.
Lastly, the orders should include a requirement that both parties participate in family dispute resolution in the event that they are unable to reach agreement relating to [X] and [Y]’s long term care, welfare and development.
Counsel will now have the opportunity to present the precise terms of the orders sought by the parties in order to give effect to the terms of this judgment.
I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of Monahan FM
Associate: Shani Drogemuller
Date: 19 June 2009
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