PETTY & CROWLEY
[2016] FCCA 3169
•16 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PETTY & CROWLEY | [2016] FCCA 3169 |
| Catchwords: HELD – Mother permitted to relocate to (omitted), Queensland with the parties’ two children – parties to maintain equal shared parental responsibility, the children to spend regular time with the Father. |
| Legislation: Family Law Act 1975 (Cth), ss.60B; 60CA; 60CC; 61DA; 65DAA |
| Cases cited: AMS v AIF (1999) 199 CLR 160 |
| Applicant: | MS PETTY |
| Respondent: | MR CROWLEY |
| File Number: | MLC 7836 of 2016 |
| Judgment of: | Judge Bender |
| Hearing date: | 5 December 2016 |
| Date of Last Submission: | 5 December 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 16 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms O'Connell |
| Solicitors for the Applicant: | David Stagg & Tonkin |
| Counsel for the Respondent: | Ms Mallett |
| Solicitors for the Respondent: | Pearsons Lawyers |
ORDERS
The parties have equal shared parental responsibility for the children of the marriage X born (omitted) 2011 (“X”) and Y born (omitted) 2013 (“Y”).
X and Y live with the Mother.
The Mother be permitted to relocate to (omitted), Queensland with X and Y.
X and Y spend time and communicate with the Father as follows:
(a)subject to Order 4 (b) herein for half of each Queensland school term holidays as agreed between the parties and failing agreement for the first half from the first Saturday of the holidays to the second Sunday of the holidays;
(b)for the whole of either the June/July or September term holidays as nominated by the Father in writing no less than 28 days prior to the commencement of the nominated holidays;
(c)for one half of the Queensland long summer vacation as agreed between the parties in writing and failing agreement the second half in 2016/17 each alternate year thereafter and the first half in 2017/18 and each alternate year thereafter;
(d)during the school term for one weekend each month on such weekend as is agreed between the parties and failing agreement the third weekend of each month save that X and Y will spend the Father’s Day weekend with the Father and the Mother’s Day weekend with the Mother;
(e)by telephone, Facetime, Skype or Viber:
(i)no less than three times a week at times to be agreed between the parties, such times to enable the Father to read a bed time story to X and Y no less than once a week and to otherwise engage with X and Y on their daily activities;
(ii)if not with the Father, on X and Y and the Father’s birthday, at Christmas and on Easter Sunday;
(f)as otherwise agreed between the parties in writing (including text message and email).
Changeover for the time X and Y spend with the Father pursuant to Orders 4(a), (b), (c) and (d) herein shall take place at Brisbane airport.
The Mother shall be responsible for the cost of herself, X and Y travelling between (omitted) and Brisbane and the Father shall be responsible for the costs of himself, X and Y travelling between Canberra (or such other location where the Father resides) and Brisbane.
Each party keep the other informed at all times of their current residential address and contact telephone number.
The Mother and Father be permitted to attend all school events relating to X and Y normally attended by parents and receive at their expense all school reports, school photograph order forms and newsletters.
The Mother and Father shall advise the other of any serious illness or injury suffered by X or Y as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
The Mother and Father and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of X or Y and from permitting any other person so to do.
IT IS NOTED that publication of this judgment under the pseudonym Petty & Crowley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 7836 of 2016
| MS PETTY |
Applicant
And
| MR CROWLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter relates to where the parties’ children X born (omitted) 2011 (“X”) and Y born (omitted) 2013 (“Y”) are to live and what their living arrangements are to be following the breakdown of the parties’ relationship in circumstances where both parties will not continue to live in Melbourne.
The Father, who is a twenty plus year (occupation omitted) of the (employer omitted) (“(omitted)”) has been successful in his application to become a (occupation omitted) and to undertake a four year (course omitted) at the (school omitted) commencing in January 2017.
The Father’s primary position is that orders be made that require the Mother, X and Y to move to Canberra and that X and Y live with each of the parties in a shared care arrangement.
The Father also put forward an alternative proposal for X and Y’s living arrangements following the evidence from Ms S, the family report writer. It is the Father’s alternate proposal that X and Y live with the Mother in any of (omitted), Melbourne or Brisbane. For the four years of his study the Father proposes X and Y spend time with him for a minimum of one weekend per month during the school term, half school holidays and on special occasions. Upon completion of his degree, the Father will seek a posting to the city the Mother, X and Y are living in and thereafter seek to have arrangements put in place for X and Y to spend either equal time or significant and substantial time with him.
The Mother is seeking orders that X and Y live with her and she be permitted to relocate to (omitted), a small town of 450 people in far North Queensland. This is where she grew up and where her parents live.
The Mother proposes that X and Y spend time with the Father one weekend each month in Brisbane during school term, for half of the term holidays save that for either 2nd or 3rd term holidays such time be for the entirety of that holiday subject to the Father having leave, half of the long summer vacation such that X and Y have all of Christmas with the Father and all of Christmas with the Mother in the alternate year and by Skype, Facetime or telephone on no more than three times a week. It is the Mother’s proposal that holiday time be in Canberra or wherever the Father is posted and time be in Brisbane or environs.
Background
The Mother was born on (omitted) 1977 in (omitted) and is aged 39 years. She is currently engaged in home duties. She has not re-partnered.
The Father was born on (omitted) 1977 and is also aged 39 years. He has been a (occupation omitted) of the (employer omitted) since leaving school and is currently an (occupation omitted). As noted he is shortly to become a (occupation omitted) and commence a degree in (qualifications omitted) at the (school omitted) in Canberra.
The Father has re-partnered with Ms A (surname unknown). Ms A is in the (employer omitted) and hopes to be posted to Canberra in 2018 to join the Father.
The Mother joined the (employer omitted) aged eighteen immediately upon finishing school and left (omitted) Queensland. She has not lived in (omitted) Queensland since then.
The Mother left the (employer omitted) in 2003 and obtained employment in (omitted). (omitted) is approximately 90 minutes from (omitted).
The parties commenced a relationship in 2007 when the Mother was visiting friends in (omitted). At that time the Father was posted to the (employer omitted) in (omitted). They commenced cohabitation in August 2007 in (omitted).
In or around 2010 the Father was posted to Perth. The parties moved to Perth and X was born there.
In or around 2012/2013 the Father was posted to Melbourne. Y was born in Melbourne.
The parties married in (country omitted) on (omitted) 2014.
During the parties’ relationship, other than periods of maternity leave when X and Y were born, the Mother has been in full time employment. The parties engaged a live in au pair from August 2014 to March 2016 at which time the au pair resigned.
The parties separated under the one roof on 25 March 2016 when the Father advised the Mother the marriage was at an end.
In April 2016 the Mother was retrenched from her employment and has not been in paid employment since.
In July 2016 the Husband was posted to (omitted) to undertake an intensive course, the length of the course and what it entailed was not explained to the Court. The Husband was required to stay in (omitted) for the first seven weeks of the course and he was thereafter able to return to Melbourne for weekends.
The parties attended mediation on two occasions prior to the Husband’s departure to (omitted) and reached agreement that the Husband would spend time with X and Y on the weekends in Melbourne once he was able to leave (omitted).
It is the Mother’s evidence that once the Father was able to return to Melbourne on the weekends, she vacated the former matrimonial home on the weekends so that the Father, X and Y could spend time together without her being there.
It is the Mother’s evidence that on the weekends the Father takes X and Y to stay either with his girlfriend or his Mother and Step-Father without telling her she does not need to leave the home.
It is the Father’s evidence that whilst he, X and Y sleep away from the former matrimonial home on the weekends they “come and go” from the home and the Mother is often there.
The Father did not tell the Mother of his new relationship with Ms A. The Mother only became aware of the Father’s new relationship when X and Y returned home from time with the Father and told her about Ms A.
Even though the parties separated in March 2016, the Father was reluctant to tell X and Y of the separation despite the Mother’s requests they do so. In October 2016 after the Father again prevaricated on this issue, the Mother told X and Y of the separation on her own. It is the Mother’s evidence she told X and Y of the parties’ separation as the interviews for the family report were scheduled for 25 October 2016 and she felt that process would make no sense to X and Y if they did not know of the separation and their imminent move from Melbourne.
On 16 October 2016 the Father arrived at the former matrimonial home without notice and advised the Mother that his course at (omitted) had been postponed because of the parties’ separation.
The Father remains living in the former matrimonial home and is now working at the (employer omitted) that is some five minutes away from the former matrimonial home. He continues to take X and Y from the former matrimonial home each weekend despite living in the former matrimonial home.
The parties currently reside in accommodation provided by the (employer omitted). As the parties are separated, when the Father relocates to Canberra to commence his studies in January 2017, the home will no longer be available to the Mother.
The Evidence
The Mother
The Mother relies on her affidavits sworn 18 August 2016,
20 October 2016 and 11 November 2016.
The Mother also relies on the following affidavits:
(a)Mr J sworn 24 October 2016. Mr Petty is the Mother’s brother;
(b)Ms S sworn 17 October 2016. Ms Petty is the Maternal Grandmother;
(c)Ms E affirmed 18 October 2016. Ms E is a friend of the Mother;
(d)Ms A sworn 19 October 2016. Ms A was the parties’ au pair;
(e)Ms C sworn 20 October 2016. Ms C is X’s kindergarten teacher;
(f)Ms S sworn 20 October 2016. Ms S is a friend of the Mother; and
(g)Ms M sworn 20 October 201. Ms M is a friend of the Mother.
Having perused the affidavits of the Mother’s witnesses, I determined pursuant to section 69ZX of the Family Law Act 1975 (Cth) (‘the Act’) that only the Maternal Grandmother be required to give oral evidence and that otherwise the Mother’s witnesses were not required for cross-examination.
The Mother
It is the Mother’s evidence that she has been and continues to be X and Y’s primary carer and that it is in their best interests that she continue in that role.
It is the Mother’s evidence that she does not want to move to Canberra. It is a city with which she has absolutely no connection having never lived there and having neither friends nor family in Canberra or environs.
It is the Mother’s evidence that whilst she was prepared to move to Canberra to support the Father in his career whilst they were married, this is not something she wishes to now have to do.
It is the Mother’s evidence that amongst (employment omitted) families there is a comradery and mutual understanding of the need to make a new home that arises from the necessity for frequent moves that a career in the (omitted) requires.
It is the Mother’s evidence that now she and the Father are separated, she is no longer part of the (employer omitted) community and she will therefore not be welcomed into or find support from that community.
It is the Mother’s evidence that once the Father completes his qualifications in four years’ time he will at best receive a further four year posting to (omitted) or, in all probability, receive a posting to an (employer omitted) elsewhere in Australia where his expertise can be fully utilised by the (employer omitted). The Father agreed with the Mother’s evidence in this regard.
It is argued by the Mother that to require she, X and Y to move to Canberra when at best the Father is only going to be there for four to eight years cannot be seen to be in X and Y’s best interests.
It is the Mother’s evidence that she wishes to relocate to (omitted) in order to be able to provide a secure and stable home for X and Y. The Mother argues X and Y can settle, go to school, make friends and grow up without the disruption of multiple moves that the Father’s career would have required if the parties had stayed together or if orders were made as proposed by the Father .
It is the Mother’s evidence that (omitted) is a great place for X and Y to grow up. Whilst it is a small community of some 430 people, it is only fifteen minutes from (omitted) which has a population of approximately 5000 people. It is also only 90 minutes from (omitted).
It is the Mother’s evidence that she grew up in (omitted) and her parents and friends continue to live in that community.
It is her proposal that initially she, X and Y will live with her parents until such time as she was able to establish a degree of financial independence at which time she will find accommodation in the township for herself, X and Y.
It is the Mother’s evidence that living in (omitted) will give her the necessary emotional and practical support to parent X and Y as a single parent. It is the Mother’s further evidence that in addition to her parents who are both now retired, she can call on longstanding family friends to assist her in X and Y’s care should the need arrive.
It is the Mother’s evidence that there are two primary schools in (omitted).
The Mother deposes in her affidavit sworn 18 August 2016 that she had discussions with the parents of current students at the two primary schools in (omitted) and that she formed the view that it would be best for X to attend (omitted) State School as that school has the stronger community presence in the area.
The Mother further deposes in paragraph 12(c) of her affidavit sworn 18 August 2016 that (omitted) State School has confirmed a position for X in 2017. The Mother also deposes that there has been a position confirmed for Y in 2017 at the (omitted) Kindergarten.
It is the Mother’s evidence that whilst (omitted) does not have a secondary school, there are two high schools in (omitted) and it would be her intention that X and Y attend one of those schools for their secondary education.
It is the Mother’s evidence that in the week prior to the final hearing she made application to (employer omitted) in (omitted) for a position as a (occupation omitted), work she was doing prior to being retrenched in April of this year. The hours of this employment are within school hours.
It is the Mother’s evidence that applications for this position closed on 23 November 2016 and she is hopeful of obtaining an interview.
In the event she was permitted to relocate to (omitted), the Mother was questioned as to the cost and practical arrangements for X and Y to spend time with the Father.
(omitted) is approximately 90 minutes from (omitted) which is the closest airport to (omitted). It is the Mother’s proposal that she would drive to (omitted) and then fly with X and Y to Brisbane where they would meet the Father who would fly to Brisbane to collect X and Y for the holidays. The Father would then fly with X and Y to Canberra. At the end of time in Canberra the Father would accompany X and Y to Brisbane where the Mother would meet them, fly back to (omitted) and drive home.
It is the Mother’s proposal that she bear her costs and the costs of X and Y getting to Brisbane and that the Father bear his costs and the costs for X and Y travelling from Brisbane to Canberra and back.
It is the Mother’s evidence that she has made enquiries of the cost of air travel. It is the Mother’s evidence that (omitted)/Brisbane return is approximately $400 per person and that the costs for the Father for return fares Canberra/Brisbane are of a similar amount.
When questioned as to how she could afford those costs, it is the Mother’s evidence that she would have the support of her parents as well as what she hopes would be income from her part time employment.
Having heard the evidence of Ms S that Y in particular would be unable to maintain a meaningful relationship with the Father given his young age unless he has face to face time with the Father at least on a monthly basis as an absolute minimum, the Mother amended her proposal to face to face time not only being spent during school holidays but also that she would bring X and Y to Brisbane for a weekend every month during the school term to enable them to spend time with the Father on a monthly basis.
When questioned as to how she could afford the additional travel costs of monthly travel time, it is the Mother’s evidence that she will just have to make sure that she budgets accordingly.
The possibility of the Mother moving to a major city where there is an airport base such as Brisbane, Melbourne or (omitted) was discussed with the Mother. This proposal was put on the basis this would allow X and Y to spend regular time with the Father for the next four years whilst the Father is based in Canberra and thereafter the Father would apply to be posted to the city in which the Mother, X and Y were residing so that he could spend significant and substantial time with them. This would ensure X and Y would have a stable home and enable them to spend significant and substantial time with the Father in the medium to long term.
It is the Mother’s evidence that she does not have the financial resources required to establish herself in any other city but (omitted) at this time. It is her further evidence that she would not have the support of her parents and family friends in any other city but (omitted).
It was submitted by the Mother’s Counsel that there is no evidence before the Court that the Father will be able to obtain a posting to Brisbane or any other city nominated by the Father. In those circumstances the Mother would have been forced to reside in a city that she does not want to live in for a period of at least four years only to find that the Father is unable to live there anyway.
It is the Mother’s evidence that she fully accepts that X and Y have a loving relationship with the Father and that he is a good Father to them.
It is the Mother’s firm evidence that she believes that X and Y will be able to maintain a meaningful relationship with the Father if she were to live in (omitted) and that further she will ensure that their relationship is maintained by committing to X and Y spending face to face time with the Father no less than every month as well as frequent and plentiful Skype/Facetime communication.
The Mother was asked whether she could guarantee that X and Y would stay in (omitted) if she was permitted to relocate there. The Mother responded that no one could guarantee that they would stay in the same place but that any move she made from (omitted) would be solely dictated by the needs of X and Y.
The Mother gave the example that if either X or Y had special needs, whether that be educationally or health wise, that could not be met in (omitted)/(omitted) then she would contemplate a move to ensure that X and Y had those special needs met.
Ms S
Ms Petty is the maternal grandmother. She swore an affidavit in support of the Mother on 17 October 2016 and gave viva voce evidence at the final hearing.
It is the maternal grandmother’s evidence that she and the Mother are very close although they have not seen each other as often as she would like given the Mother left home at eighteen to pursue her career in the (employer omitted) and had otherwise moved on in her life.
It is her evidence that she and the Mother are in regular weekly communication.
It is the maternal grandmother’s evidence that she has a loving relationship with Y and X having visited them in both Perth and Melbourne. It is her evidence that X and Y have visited her and the maternal grandfather in (omitted) on two or three occasions.
It is the maternal grandmother’s evidence that when the Mother first advised her that the Father had told her their relationship was over, she indicated to the Mother that if “worse came to worse” the Mother could return to (omitted) to live with she and the maternal grandfather as they were happy and willing to support her, X and Y in any way they could.
When giving her viva voce evidence the maternal grandmother was quite clear that she did not anticipate that they would all live together indefinitely but rather that the Mother, X and Y would live with she and the maternal grandfather until the Mother was able to get herself back on her feet emotionally and financially.
It is the maternal grandmother’s evidence that she and the maternal grandfather will provide whatever support the Mother, X and Y need in (omitted), whether that be emotional, financial, babysitting or the like.
The maternal grandmother describes (omitted) as a fabulous place for children to grow up in and impressed as genuine in wishing to help the Mother, X and Y in any way that she could.
The Father
The Father relies on his affidavits sworn 12 December 2016 and
2 November 2016.
The Father gave viva voce evidence at the final hearing.
The Father also relies on the affidavits of the paternal grandmother, Ms W sworn 20 October 2016 and the paternal step-grandfather, Mr D sworn 20 October 2016.
Having perused the affidavit of the paternal grandmother and paternal step-grandfather, I determined pursuant to section 69ZX of the Act that those witnesses were not required to give oral evidence at the hearing.
It is the Father’s evidence that he has been very much a hands on parent to X and Y and that they have a close and loving relationship.
It is the Father’s evidence that he has been working for many years towards having the opportunity to obtain an (qualifications omitted) degree within the auspices of his service with the (employer omitted). It is the Father’s evidence that he had applied for admission to the course in Canberra well prior to the parties’ separation but only got confirmation that he had been successful in obtaining a place at University after the parties had separated.
It is the Father’s belief that the only way that X and Y can continue to have a close and loving relationship with him is for they, together with the Mother, move to Canberra so that he is able to continue to spend significant and substantial time with them.
It is the Father’s evidence that whilst he is a full time student he will have more than adequate time free to be able to spend significant and substantial time with X and Y.
As was set out earlier in this judgment, having heard the evidence of Ms S, the Father also indicated a willingness to take a more long term view to Y and X’s living arrangements which would enable them to settle and stay in the same place for their childhood but would enable him to seek a posting once he had finalised his qualifications so that he could be with them as they moved into adolescence and their older teenage years.
For this reason, the Father altered his proposal to one whereby the Mother, X and Y move to live in any of (omitted), Melbourne or Brisbane, in that order of priority, on the basis that immediately upon qualification he would seek a posting to the city in which the Mother, X and Y were resident. It is Father’s evidence that once he is qualified there is high demand for people with his skills within the (employer omitted) and that there is a very strong likelihood that he would be given the posting he sought, particularly given his family circumstances.
It is the Father’s evidence that if the Mother is permitted to relocate with X and Y to (omitted), it will never be possible for him to live in the same town as they do. It is the Father’s evidence that he would not be able to seek a posting to (omitted), the closest services (employer omitted) to (omitted), as there are no positions requiring his qualifications at that (employer omitted).
It is the Father’s evidence that if the Mother is permitted to relocate with X and Y to (omitted) it will not be practically possible for X and Y to maintain a meaningful relationship with him because of the distance and the time and cost of travel, whether that be between (omitted) and Canberra or between (omitted) and any other location to which he might be posted once he has acquired his qualifications.
It is the Father’s evidence X and Y’s ability to maintain a meaningful relationship with him if they move to (omitted) is even more difficult given their very young ages and the necessity that they spend significant and substantial time with him to properly develop and maintain this relationship with him.
It is the Father’s evidence that he has genuine concerns about the commitment of the Mother to support X and Y’s relationship with him. It is his evidence that when he was in (omitted) he experienced difficulties in being able to regularly communicate with X and Y by Skype or telephone. He therefore expressed concern about the Mother facilitating Skype communication between himself and X and Y on a regular basis. The Father also expressed concerns about the Mother being in a position to afford to bring X or Y to Brisbane on a monthly basis as is the Mother’s proposal for time spent.
The Father agrees however that whilst he was unable to leave (omitted) at the commencement of his course, the Mother facilitated X and Y spending a weekend with his Mother and Step-Father and she also took them to his sister’s place for his nephew’s birthday party.
The Father also agrees that since his return from (omitted), the Mother has facilitated him spending each weekend with X and Y including vacating the matrimonial home to allow them the luxury of one on one time together.
Ms S
Ms S is a psychologist/family consultant who at the request of the parties prepared a family report in this matter dated 7 November 2016 which is attached to her affidavit sworn 16 November 2016. Ms S also gave viva voce evidence at the final hearing.
In Ms S’s report under the heading “Evaluation” she states as follows:
42. Ms Petty claims the main reason for relocating to (omitted) is to give the children stability and constancy which they will not have either if they live with their Father or if she follows Mr Crowley to Canberra. Her family and her principal supports are in (omitted).
43. Mr Crowley’s employment is such that postings to different locations in Australia are likely. While he expects to remain in Canberra for another three to four years if requested after completing his study, it is expected he will transfer again if not in four years then in seven to eight years. The implication for the children is that they will move again possibly several times in their lifetime if they reside with their Father. On the issue of stability, the children are less likely to have stability with their Father by the virtue of his employment.
44. Should Ms Petty relocate to Canberra as proposed by Mr Crowley, the current dispute may well present itself in the future again; either in four or seven to eight years’ time. Ms Petty says she cannot depend on Mr Crowley as his location is not guaranteed.
45. It may well be more difficult for the children to relocate after 7 to 8 years in one location, as they would have established roots, friendships and social networks. They will be at an age (X 13 years and Y 11 years) where relocation is more difficult because of their established roots. While a 7 to 8 year relocation to Canberra has the advantage of stability for a significant period of time, relocation at that time is likely to more problematic for the children. A relocation in four years’ time may appear to be more disruptive, but the children will be of an age where they are likely to adjust more easily and transition more readily when 7 to 9 years old.
46. Stability is important for children particularly when there has been the distressing experience of a separation. Familiarity with one’s environment, continuity and consistency are facts that support children in their development and at a time of separation can be important and decisive factors to consider. While relocation is inevitable for the children, the possibility of a secure, stable and consistent environment with their Mother in (omitted) cannot be ignored.
47. However, need for stability and secure environment needs to be weighed up against the children’s need to have a relationship with both parents. Relocation should be considered in light of the children’s needs and their capacity to sustain a relationship over distance which at their age is limited. While Skype communication does much to keep the boys connected to the other parent, they are young and reliant on the other parent to promote the relationship. Their concept of time and distance is not well developed, nor their literacy and language to be able to communicate or sustain meaningful conversations. Their experience of and relationship with their parents come from, among other things, the everyday involvement and active engagement in their life. Clearly, this will not be possible from (omitted) and Canberra except for holiday periods which provide a different experience for the children.
48. There is no doubt the children have a loving and close relationship with each parent. They will miss the absent parent. While there was apparently little visible signs of distress or anxiety while Mr Crowley was absent in (omitted) for several months, relocation to (omitted) is different as there will be a significant interval between spending time with their Father. It is likely to have a greater impact on the children’s adjustment than Ms Petty suggests. They are likely to experience loss and grief for the other parent although over time, they are young, resilient and psychologically strong enough to adjust. They should be able to settle and thrive.
49. It is up to the Court to determine the merits of Ms Petty’s proposal to live in (omitted). However, both parents relocating to Canberra has obvious benefits for the children; namely that they will continue to have both parents actively involved in their day to day life. As young children, they need regular and frequent time with the other parent which long distance location cannot provide.
50. There is little difference in the parents’ capacity to care for the children and what they offer the children in their proposed relocation. Both parents will require a level of childcare; the children will have access to childcare services with their Father and his family at other times as they reside some three hours from Canberra; while they will have family members to support their care with their Mother. Mr Crowley’s concerns about the maternal grandparents’ capacity to care for the children are noted and will be a matter of evidence before the Court. Ms Petty contends she has a good relationship with her parents who are retired and readily available.
51.Ms Petty is currently available full time for the children although this may change in the future. Although both parents worked in tandem to care for the children in the past, it appears Ms Petty had a greater role in their care by virtue of her part time work. Her role as primary parent has been consolidated since March this year when she stopped working and especially so during Mr Crowley’s significant absence for about three months. By virtue of this history, it is likely the children have come to expect and are familiar with their Mother’s primary role and increasing dependence on her as primary parent. However, while this is expected to be the case, there was little by way of clinical evidence that their primary attachment is to their Mother but that they have a secure attachment with each parent. It was not possible to quantify the attachment to either parent.
52. The parent’s capacity to promote and support the children’s relationship is critical in relocation. Both parents speak positively of the other in relation to the care of the children and readily acknowledge they love the children. There appears to be little concern that either will not make this a priority although Mr Crowley expresses concern about Ms Petty’s genuine motivation to do so….
54. In summary, the children will be well cared for by either Ms Petty or Mr Crowley who are loving and caring parents. The children seem to have a close and strong relationship with each parent and their needs have been met by both parents to date. Given the history, it appears Ms Petty may have had a greater role in their day to day care but that is not to minimise Mr Crowley’s involvement in their care.
55. While there is no guarantee Ms Petty will not relocate again, she is more likely to provide the greater stability and continuity for the children which will benefit them. But this will come at a cost for the children who will not have the opportunity to have their Father actively and meaningfully involved in their lives. Should Ms Petty remain in Canberra, some consideration should be given to the children residing primarily with their Mother in order to maximise and provide them a stable, consistent and predictable routine which is more likely to be achieved with their Mother who appears to be more readily available for the children.
It is Ms S’s viva voce evidence that based on the history of this family, both parents were very much involved in the care of X and Y. It is her belief that X and Y are more familiar with their Mother’s primary care and that with the breakdown of the relationship, X and Y will be more familiar with the Mother being their primary carer moving forward.
It is Ms S’s evidence that whilst the Mother, X and Y moving to Canberra would ensure that X and Y would be able to have both parents continue to be actively involved in their lives, there is a concern that when the Father has to again move, whether that be in four or eight years’ time, a change at that time for X and Y would come at a time when it would be most difficult for X and Y as they would be young adolescents and most resistant to having to move from their peers and established networks.
It is Ms S’s evidence that the move to Canberra would be very difficult for the Mother as she would be very unhappy about moving to a place where she feels she has no support, where she would feel that the Father’s needs have taken priority over hers and would feel it was unfair that the Father got to make the decision on the basis of his best interests and not those of herself and X and Y.
It is Ms S’s evidence that the challenges and burdens the Mother would face financially and emotionally if required to move to Canberra, given she would be required to live where she does not want to, where she does not know anyone and where she would have to establish networks outside of the (employer omitted) family with which she was previously familiar would also add to the Mother’s unhappiness.
It is Ms S’s evidence that the Mother’s original proposal for X and Y to spend half holiday or extended holiday time with the Father as well as Skype and telephone communication would not enable them to maintain a meaningful relationship with the Father. It is Ms S’s evidence that this would be particularly so for Y given he is only three and a half and even difficult for X even though he is that little bit older and has more tools and skills to maintain that relationship than his little brother.
It is Ms S’s evidence that in order for X and Y to maintain a meaningful relationship with the Father they will need to spend face to face time with him no less than every month. In addition Y and X would need to be able to communicate with the Father through flexible and frequent Skype communication which could include arrangements for the Father to be able to Skype the boys as they go to bed so that he can read them a bed time story as well as facilitating the boys being able to contact the Father when they had particularly exciting or interesting news to pass on to him about something that had happened during their day.
The possibility of the Mother, X and Y relocating to Brisbane rather than (omitted) on the basis that the Father would seek a posting to that city upon the completion of his degree was put to Ms S.
It is Ms S’s evidence that she thought this to be a really good option. Whilst the Father was studying in Canberra, Ms S noted it would be much easier for X and Y to travel between Brisbane and Canberra than it would be to travel between (omitted) and Canberra and it would also make it much easier for the Father to visit X and Y in Brisbane.
It is Ms S’s evidence that this proposal would provide stability for the Mother in the long term and would ensure that the Father was available to spend significant and substantial time with Y and X in the medium term and particularly during the vital period of their adolescence.
Ms S was questioned as to whether she had formed a view on the Mother’s willingness to facilitate and encourage a relationship between X and Y and the Father. It is Ms S’s evidence that she has formed the view that the Mother has and will continue to promote a relationship between the Father, X and Y.
The Legal Approach
In this matter the parties currently reside in Melbourne where they are currently separated under the one roof. The Father, who is a (occupation omitted) in the (employer omitted), will be posted to Canberra in January 2017 where he will be (occupation omitted) and will commence a four year (omitted) degree at the (omitted).
The Father is proposing that the Mother, X and Y also move to Canberra so that X and Y will be able to continue to spend significant and substantial time, if not equal time with him in order to preserve their existing loving and meaningful relationship.
Having heard the evidence of the report writer Ms S and comments made by me, the Father put forward an alternative proposal that the Mother, X and Y move to any of (omitted), Melbourne or Brisbane (in that order of preference) on the basis that the Father would seek a posting to the city the Mother, Y and X were living in immediately upon completing his university degree. This would provide long term stability for X and Y and result in them, in the medium term, being able to spend substantial and significant time with the Father which could only be seen to be in their best interests going forward.
The Mother rejected the Father’s proposal she live in any of (omitted), Melbourne or Brisbane on the basis she does not wish to live in any of these cities and she does not have the financial resources or the practical and emotional support that would enable her to establish a home in any of these cities.
The Mother is seeking to be able to relocate with X and Y to (omitted) in North Queensland where her parents live and where she grew up.
Relocation cases are often discussed as if they form a discrete subset of parenting cases that are to be determined differently to other parenting matters. The jurisprudence makes it clear, however, that this is not so and that a relocation matter is to be determined in the same way that all parenting matters are determined, that is, by following the legislative framework prescribed under the Family Law Act 1975 (Cth) (‘the Act’) to determine what order is in the child’s best interests.
In Taylor v Barker [2007] 37 Fam FLR 461 at 475, their Honours Bryant CJ and Finn J said:
When dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible: see U v U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.
In Cowley & Mendoza [2010] FamCA 597, His Honour Murphy J succinctly stated as follows:
A “relocation case” is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances. A relocation case falls to be determined like any other parenting case.
This matter is however not only a relocation case but one in which the Father is seeking a coercive order that the Mother be ordered to relocate to a destination she does not wish to live in.
That this Court has the power to make such an Order is not in dispute.
In Sampson & Hartnett (No.10) [2007] FamCA 1365 at paragraphs 57 and 58 held as follows:
57. If it is within power to order a person not to relocate, it would be surprising if it was not within power to order a person to relocate, although one would imagine the exercises of power to the latter effect would be even more rare, because the effect is more drastic. The person being ordered not to move at least has chosen that location as some stage and for reasons which one assumes at least once existed. This contrasts with a person who may not wish to go somewhere and therefore the order is much more of an imposition on that person’s freedom.
58. However, we conclude there is power under s 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare, because:
(i) the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and
(ii) in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent’s choosing.
In the Full Court of Adamson & Adamson [2014] FamCAFC 232 their Honours, Ainslie-Wallace, Murphy and Kent JJ having cited with approval paragraph 58 of Sampson (supra) held at paragraph 37 as follows:
37. In Sampson this Court thus made it plain that “[t]he proper exercise of such a power is likely to be rare” and orders made pursuant to an exercise of that discretion would be “…at the extreme end of the discretionary range…” (Sampson at [58] and [83]). It follows that there should exist “rare” or “extreme” factors that warrant the Court exercising its discretion to make “coercive” orders requiring a parent to relocate so as to continue to be the primary carer of their child/ children (Sampson at [17]).
Best Interests of the Child
Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1. The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
To determine what is in the best interests of the child, the Court must consider the matters set out in Section 60CC(2) and Section 60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the Court must be considered and assessed in the context of each of the parties’ proposals. The Court should then make a decision as to which of the parties proposals or such other arrangements as the Court determines given the Court is not bound by the parties’ proposals (see AMS v AIF (1999) 199 CLR 160, U & U (2002) 211 CLR 238), is in the children’s best interests.
Section 60CC(2)
Section 60CC(2) of the Act sets out the primary considerations that the Court must take into account when determining what is in the child’s best interests. They are as follows:
Section 60CC(2)(a) – The Benefit of the Child having a meaningful relationship with both of the child’s parents
In Heath v Hemming(No.2) [2011] FamCA 749, Justice Kent in paragraph 104 reviewed the authorities relating to parenting cases involving proposed relocation. In subsection (a) of paragraph 104
His Honour considered Section 60CC(2)(a) and summarised the case law in relation to the benefit of the child having a meaningful relationship with both of the child’s parents as follows:(a)s60CC(2)(a) expresses the primary consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents. Similarly, s60CC(3)(b) requires the Court to consider the nature of the relationship of the child with, inter alia both parents and the objects and principles expressed in s60B also contain various references to the involvement of both parents in the life of their child.
In Sigley & Evor (2011) 44 Fam LR 439 the Full Court recently considered what is required by the term “meaningful relationship” in s60CC(2)(a). The Full Court:
(i)approved the interpretation that a “meaningful relationship” is one which is important, significant and valuable to the child (citing Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 per Brown J and McCall v Clark [2009] FamCAFC 92; (2009) FLC 93-405 per the Full Court);
(ii)concluded that the preferred interpretation of “benefit to the child of having a meaningful relationship” in
s60CC(2)(a) is that the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (referred to by the Full Court as “the prospective approach”). However, the Full Court noted that s60CC(3)(b) requires a Court to explore existing relationships between a child and the child’s parents and other persons and thus, depending upon the factual circumstances, examination of the evidence as to the nature of the child’s relationships at the date of hearing (referred to by the Full Court as “the present relationship approach”) may also be relevant, for example where a significant relationship had not been established between a child and a parent at the date of trial;(iii)confirmed that the legislation aspires to promote a meaningful relationship, not an optimal relationship. (Citing M v S [2006] FamCA 1408; (2007) FLC
93-313 per Dessau J at [38]-[39]; Godfrey v Sanders [2007] FamCA 102 per Kay J at [33]-[36] and Champness v Hanson [2009] FamCAFC 96; (2009) FLC 93-407 per the Full Court at [103]);(iv)concluded that “meaningful relationship” is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a meaningful relationship;
Clearly, if it is determined that a meaningful relationship with both parents is in the child’s best interests the starting point will be to consider whether such a relationship is already established. If not, whilst all factors must be weighed in the balance, it may be a determinative factor in assessing a proposed relocation. If such a relationship is already established, the consideration will be whether such a relationship can be promoted in the context of the proposed relocation. In either case, factors such as the child’s age and level of maturity (s60CC(3)(g)) may assume particular importance. This may also lead a Court to consider some proposal other than that of either party, for example, providing for some period of time before the relocation is permitted to occur during which a “meaningful relationship” with the non-relocating parent may be established or further established or to allow the child to reach an age where it is likely that a meaningful relationship will be maintainable.
There is no doubt that X and Y have a close, loving and meaningful relationship with both of their parents. X and Y love and are loved by both of them.
If the Mother is permitted to relocate with X and Y to (omitted), it must necessarily significantly reduce the time that they can spend with the Father. This must diminish the relationship that currently exists between X, Y and the Father.
It is Ms S’s evidence that in the event the Mother, X and Y are permitted to relocate to (omitted), X and Y will not be able to maintain a meaningful relationship with the Father if they spend less than monthly face to face time with the Father as well as frequent and flexible Skype/Facetime communication. It is Ms S’s evidence that electronic communications where the children see the absent parent is very important for young children of X and Y’s age.
Section 60CC(2)(b): the need to protect the child from physical and psychological harm from being subjected to or exposed to abuse, neglect or family violence
Whilst both parties in their affidavit material raise concerns about the other’s alleged excessive alcohol consumption, there is no evidence whatsoever before the Court that supports these allegations in any way whatsoever.
It is very clear from the evidence that both parties are loving, caring and devoted parents to X and Y and that X and Y are not at risk of physical or psychological harm or being exposed to abuse, neglect or family violence from either of the parties.
Section 60CC(3)
Section 60CC(3) of the Act sets out the additional considerations the Court must consider when determining what is in X and Y’s best interests.
Each of the matters set out under that section will be considered in turn where applicable to this matter.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
Neither X or Y are of an age where they have capacity to express any views on where it is they wish to live.
Further, the parents only recently advised X and Y of their separation and as the parties have continued to live separated under the one roof, neither child really has any concept of their impending move or that their parents are going to live apart.
Section 60CC(3)(b): the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparents or other relative of the child).
As has been set out in this judgment, X and Y have a close and loving relationship with both of their parents.
Ms S in her family report at paragraph 37 and 38 made the following observations:
37. The parents were courteous and genial with one another. They interacted together with the children, they created a comfortable and harmonious environment for the children who were observed to interact in an easy and relaxed manner with each parent. The children moved easily between their parents, engaged both of them, and were happy and settled with both individually. The boys were observed to balance the interaction between the parents, so that one or the other had the full attention of one parent. The children did not appear to prefer one parent over the other.
38. There was little to differentiate the parents’ interaction and engagement with the children which was warm, sensitive and responsive. Clinically, the observation was largely unremarkable and confirmed the positive and close relationship the children have with each parent.
In her viva voce evidence Ms S advised that it is the Mother that X and Y are more familiar with providing their primary care. Ms S expressed the view that it is in X and Y’s best interests that they continue to live in the Mother’s primary care. She does not support a change of primary care to the Father.
It is clear from the evidence that X and Y have a positive relationship with their paternal grandmother and paternal step-grandfather with whom the Father is very close.
It would appear that the Father’s relationship with his father is somewhat strained however the Mother has ensured that X and Y have a relationship with him.
It is also clear from the evidence that X and Y have a loving relationship with the maternal grandparents who have visited them and who X and Y have visited. X and Y also have Skype communication with the maternal grandparents on a weekly basis.
Section 60CC(3)(c): the extent to which each of the child’s parents has taken or failed to take the opportunity :
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child.
Both parties have fully participated in X and Y’s lives.
Section 60CC(3)(ca): the extent to which each of the child’s parents have fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
I am satisfied both parties have properly maintained X and Y and will continue to do so going forward.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his parents; or
(ii) any other child or other person (including any grandparent or other relative of the child), with whom he or she has been living
If X and Y are permitted to relocate to (omitted) with the Mother, it must reduce significantly the time they can spend with the Father and extended paternal family.
It will also reduce the capacity of the Father to participate in X and Y’s activities outside of monthly weekend and holiday time and as he will be unable to attend school events, mid-week sporting events and their extra-curricular activities.
Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
As has been set out previously in this judgment there are serious practical difficulties for X and Y in spending time with the Father in the event they are residing in (omitted) and he is in Canberra.
In order for X and Y to get to Canberra they will need to drive 90 minutes to (omitted), take an accompanied flight with the Mother to Brisbane where she proposes the Father meets them and then fly to Canberra with him. The return journey will require the Father to fly with them to Brisbane where the Mother proposes she will meet them so that they can fly to (omitted) and then drive home.
The total cost to the parties for this travel, particularly in peak school holiday periods will be close to $3,500 each holiday.
Both parties agree that it will take a day of travel for X and Y to get from (omitted) to Canberra and a day of travel for them to get back from Canberra to (omitted).
The Mother is also proposing to fly with X and Y to Brisbane on a monthly basis to ensure that they spend face to face time with the Father in order for them to maintain a meaningful relationship with him.
Again the Mother will have to incur costs of $1,200 for return flights for the three of them and similarly the Father will need to not only incur the costs of a return flight for himself from Canberra to Brisbane but presumably the cost of accommodation for the weekend for himself, X and Y.
The Mother, X and Y residing in Brisbane, (omitted) or even Melbourne would reduce the cost of and amount of travel required for all parties concerned.
Section 60CC(3)(f): the capacity of each of the child’s parents and any other person to provide for the needs of the child including emotional and intellectual needs
The parties in this matter clearly have the capacity to meet X and Y’s emotional and intellectual needs and have done so and are doing so.
It is submitted on behalf of the Father that whilst the Mother will clearly be unhappy if required to live other than in (omitted), she will adapt to moving to a new city where she does not necessarily currently have friendships or known supports. It is submitted on behalf of the Father that as someone who has been in the (employment omitted) and someone who was married to someone in the (employment omitted), the Mother has the skills to acclimatise to a new location and create friendships and support groups. The Father submits the Mother will be able to do so if she were required to move to Canberra or the other cities proposed by him.
The Mother argues that there is a comradery and sense of inclusion when you are part of the (employer omitted), whether that be as a (occupation omitted) or as the spouse of a (occupation omitted). It is the Mother’s evidence that now that she and the Father are separated she is no longer part of the (employer omitted) and therefore a move to Canberra outside of that environment would be extremely difficult for her, X and Y.
Section 60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
X is only five and a half and Y only three and a half.
Given their young ages it is clear from the evidence of Ms S that they need regular face to face time with the Father in order to be able to maintain a meaningful relationship with him.
It is Ms S’s clear evidence that anything less than monthly face to face time with the Father will result in X and Y not being able to maintain a meaningful relationship with the Father.
The Father is a long term (occupation omitted) of the (employer omitted). As an (occupation omitted) he is required to live wherever he is posted by the (employer omitted).
He will spend the next four years in Canberra completing his degree after which time he can be posted anywhere in Australia.
It is the Father’s evidence that it is usual for there to be a further (employment omitted) at the completion of study and it is therefore probable he will remain in Canberra for eight years.
The Father also indicates in his evidence that where possible the (employer omitted) attempts to take into account family requirements when determining a (employment omitted). However, (employer omitted) requirements always win out.
What this means is that if orders were made that required the Mother, X and Y to relocate to Canberra, in either four or eight years’ time, the Father will have to move. This will either require the Mother, X and Y to move again or if it is determined that it is not in their best interests to leave Canberra, result in a distance relationship between X and Y and the Father upon his (employment omitted) from Canberra.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The parties in this matter are loving, responsible and caring parents.
The only concern at this time is the ability of these parents to communicate cooperatively in relation to their parenting going forward as separated parents.
It is apparent from the evidence of the parties that the Mother has been very hurt by the Father’s decision to separate and that she continues to struggle with all the ramifications separation involves for her. This includes the loss of her marriage, the loss of her home and the loss of the practical and financial supports that being the spouse of a (employer omitted) involved.
The current separation under the one roof and uncertainties about the future has not assisted the parties in their communication either.
To their credit, when attending upon Ms S for the purposes of the family report she noted them to be courteous and genial with one another and to create a comfortable and harmonious environment for the children.
Ms S also noted in her family report that whilst X told her that his parents still argue and that he feels sad when he hears them fighting, he has little genuine awareness of the parental dispute and conflict and made no disclosures which suggested that he was being drawn into or caught in the middle of the parental conflict.
It is to be hoped that whatever the decision in this matter is, both parties focus on what is in X and Y’s best interests and ensure that they are able to establish a level of communication and co-operation that enables X and Y to have the benefits of both parents being involved in all aspects of their lives moving forward.
Section 60CC(3)(j): any family violence involving the child or a member of the child’s family.
Not relevant.
Section 60CC(3)(k): if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter.
Not relevant.
Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In a vast majority of cases, it is the ambition of this Court to make orders that enable the parents to move on and parent their children without the necessity of the future involvement of the Court.
Given the Father will be required to move from Canberra in four or eight years’ time and the possibility that if permitted to relocate to (omitted) with X and Y, the Mother may find living in the small country town she has not lived in since she was at school more difficult than she is anticipating, there is a risk in this case that whatever is ordered by this Court as to the living arrangements that best meet X and Y’s needs at this time may change going forward.
Section 60CC(3)(m): any other factor or circumstance that the Court thinks is relevant
The Mother has not lived in (omitted) since she left twenty one years ago. Since then she has lived all over Australia and it may be that she finds returning to the home of her youth more difficult to adjust to than she anticipates.
It is the Mother’s sensible evidence that she cannot guarantee that she will remain in (omitted). It is her evidence, which is accepted, that the only reason she would move from (omitted) is if such a move was in the best interests of X and Y because (omitted) was unable to meet their particular needs or interests. It is therefore her evidence that any move from (omitted) would be because it was best for X and Y that such a move was made.
I agree with the observations of Ms S that the Mother’s decision making seems to be very much focused on the best interests of X and Y and not necessarily on what is in her best interests and that the only reason she would move from (omitted) is because it was best for X and Y.
Presumption of Equal Shared Responsibility
Section 61DA of the Act provides that the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This presumption is rebutted if there are reasonable grounds to believe that either of the child’s parents have engaged in abuse of the child or family violence or where there is evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for that child.
Both parties in this matter seek that the Court make orders that they have equal shared parental responsibility for X and Y.
As set out in this judgment, the parties in this matter are caring, loving and committed parents who put X and Y’s best interests at the forefront of their actions.
As such it is clearly in X and Y’s best interests that the parties have equal shared parental responsibility going forward.
Both parties concede that currently there are difficulties with their communication.
It is apparent from the Father’s evidence that he has not been fully forthcoming with the Mother since separation, including not telling her of his new relationship, advising her that he was returning from (omitted) or letting her know when he will not be staying in the former matrimonial home on the weekends that he is with Y and X so that the Mother does not have to move out.
The Mother concedes that with separation under the one roof she can at times snipe at the Father and that this on occasion occurs when X and Y are present.
With their impending physical separation, and given that both put proposals before the Court that do not see them living in the same city, the parties will have to communicate effectively, cooperatively and flexibly in relation to X and Y’s parenting going forward, as a failure to do so will only impact negatively on their children.
Consideration of Equal Time or Substantial and Significant Time
Where the parents have equal joint parental responsibility for a child, section 65DAA of the Act requires the Court to consider the child spending equal time, or a substantial and significant time, with each parent.
Section 65DAA(1) provides as follows:
1. If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Sections 65DAA(2) and (3) of the Act provide as follows:
2. If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only 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.
Section 65DAA(5) of the Act provides as follows:
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must 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.
In the matter of MRR v GR [2010] HCA 4, the High Court considered the interrelationship between section 60CA, section 61DA(1) and section 65DAA of the Act.
In MRR v GR (supra), the High Court held at paragraph 9:
Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", [i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents.
The High Court then held at paragraph 13:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
The High Court further held at paragraph 15:
“Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s61DA(1) is not determinative of the questions arising under s.65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.”
In Adamson (Supra) the Full Court considered the interaction between the coercive power of the Court to order someone to relocate or not relocate in the context of section 65DAA of the Act.
In paragraphs 38 to 41 their Honours held as follows:
38. For reasons which will also be expanded upon below, it is important to observe that this Court also said in Sampson, when discussing the application of s 65DAA:
74.As preface to this discussion, we make the following observations. A person wishing to relocate will frequently be living in a settled environment awaiting the imprimatur of the court before moving. In other circumstances, where a move has already been made, or is planned, settled arrangements in the new location will be in place or arranged. Where the court may be ordering the return of a parent to a location in which they have lived for some time, but from which they have moved without the consent of the other party and in circumstances in which existing orders or arrangements for the other parent to spend time with the children will be rendered ineffective, there will usually be arrangements in the original location for the practicalities of life, such as accommodation, schooling and employment if relevant, which can readily be identified by the Court. If there are not, that fact would normally be a relevant consideration.
75.To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move. One would therefore reasonably expect a close analysis of the moving party’s capacity and/or the other parties’ capacity to provide for such practicalities having regard to the orders proposed by the court. It is probably only in the circumstance of significant wealth of both parties that it might reasonably be inferred that the practicalities of life could be met without detailed inquiry.
(Emphasis added)
39. In MRR v GR (2010) 240 CLR 461, the High Court said at [13]:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
(Footnotes omitted)
40. At [15] the High Court emphasised that s 65DAA is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time (or substantial and significant time) spent by the child with each parent; and that reality requires a practical assessment of the feasibility of an order for equal time (or an order for substantial and significant time).
41. It can thus be seen that having the power to make a coercive order is one thing, but the circumstances which must exist to justify its legitimate exercise is quite another.
Their Honours then considered the trial judges application of section 65DAA of the Act. Having noted that there was no issue that the child in that case would live other than in the primary care of the Mother their Honours held at paragraph 65 to 70 as follows:
65. It follows from the decisions of the High Court in AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238 that in parenting proceedings there is no requirement for a parent to demonstrate “compelling reasons” to live where the parent proposes to live, be that a proposed new location or, axiomatically, in their current place of residence. Here, the mother was no more required to demonstrate “compelling reasons” for her choice to remain living in Town S than was the father to so do with respect to his choice to live in Town C or for either to not live anywhere else. The same may be said of their respective choices of employment, the mother’s in Town S and the father’s in Sydney. The Court must be sensitive to the wishes and rights of parents to live and work wherever they desire. (U v U at [82] citing AMS v AIF)
66.These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.
67.Consequently, whilst the Court is not bound by the proposals advanced by parents and can, subject to natural justice considerations, adopt modified proposals, the justification for that is the same and the extent of modification legitimately can only be as far as is necessary to avoid adverse effects upon best interests. As Callinan J observed in AMS v AIF (cited with approval by Gummow and Callinan JJ in U v U (with whom Gleeson CJ, McHugh and Hayne JJ agreed)):
It will generally not be possible for a trial judge to construct a framework and environment for the upbringing of a child. What happens in practice is that those competing for the care and custody of a child will present proposals to the Court to advance the welfare of the child. Judges frequently will be able to mould or adopt such proposals in making orders but rarely will they be able to invent or construct substantially different arrangements for children from those proposed by the parties.
(Footnote omitted)
68.It can thus be seen that it was not the task of the trial judge to mould or create, by the exercise of discretionary powers, the most desirable solution or desirable circumstances, blind or indifferent to each parent’s fundamental right to exercise their respective rights to choose where they lived and worked consistent with M’s best interests. Rather, those rights were to be respected. Only if the exercise of such parental rights could be seen as so adversely effecting M’s best interests could interference with their exercise be legitimate; and then only to the extent necessary to avoid such adverse effects, having considered available alternatives.
69.Moreover, if ultimately it was determined that interference with parental rights was called for, all alternatives, including the father’s exercise of his right to choose where he lived and where he worked, would need to be considered. As Hayne J observed in U v U (in the context of a case involving proposed international relocation of a child from Australia to India) at [176]:
It is now recognised as self-evidently true that, apart from some cases of abusive relationships, children benefit from the development of good relationships with both their parents. The right to know and be
cared for by both parents and the right of contact on a regular basis with both parents are said to be principles underlying the objects of Pt VII of the Act (s 60B(2)(a) and (b)). If effect is to be given to those principles, it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.
(Original emphasis)
70. It is against the background of these important principles that “reasonable practicability” in s 65DAA falls to be considered and determined. As the passages of MRR v GR to which we have earlier referred amply demonstrate, it is the reality of the situation confronted in which the assessment is to be made. If it were otherwise, it would follow axiomatically that Courts exercising jurisdiction under Part VII of the Act would not only likely prevent any proposed relocation of any parent in cases where that issue arises; but the Court would routinely order restraints or injunctions interfering with the parental rights to which we have referred so that “reasonable practicability” (by requiring parents to live proximate to each other) was achieved and maintained.
In this matter if the Mother, X and Y were to relocate to Canberra there would be no practical difficulty in X and Y being able to spend equal time or significant and substantial time with the Father at least in the short to medium term.
However, given the Father will be posted away from Canberra either in four or eight years’ time there will be practical difficulties for those arrangements to continue going forward.
In the event the Mother does not relocate to Canberra but is able to relocate to (omitted) which is her preference then it is not at all practical or possible for X and Y to spend equal or significant and substantial time with the Father.
It is the Father’s proposal, having heard the evidence of the report writer that orders be made requiring the Mother to either relocate to (omitted), remain in Melbourne or relocate to Brisbane so that upon the completion of his degree he can ideally arrange a posting to that location which would see him being able to spend significant and substantial time if not equal time with X and Y upon that posting.
The Mother, however, does not wish to relocate to either Canberra, (omitted), Melbourne or Brisbane.
It is the Mother’s preference to relocate to (omitted) where she has the ability to live with her parents and upon establishing some degree of financial security, establish her own home in (omitted)/(omitted). In (omitted), she will have the practical, emotional and financial support of her family, long term family friends and school friends to assist her in the care of X and Y as a single parent.
It is submitted on behalf of the Mother that if she were required to relocate other than to (omitted), she has neither the financial or familial support that would make such a relocation viable for her. It is submitted the Mother does not have an established home, X and Y do not have known schools or child care, she does not have family or friends or a history of employment in any of Canberra, (omitted) or Brisbane. She therefore argues it is not practical for her to move to any of these cities. Further, as the parties will lose their home in Melbourne on the Father moving to Melbourne the Mother also argues that it is not practical for her to remain in Melbourne.
It is the Mother’s evidence that whilst she and the Father were together, the (employer omitted) subsidised their living expenses and covered all their relocation expenses. Now that she and the Father are separated the (employer omitted) will only fund one relocation for her and will not in any way subsidise housing for she, X and Y upon that relocation.
Further, it is submitted on behalf of the Mother that there is no guarantee that the Father will be posted to any of (omitted), Melbourne and Brisbane when he completes his degree. As such she would be forced to live in a city that she does not wish to live in only to find that the Father does not end up living in that same city when he completes his degree.
It is therefore argued by the Mother that this is not a matter that falls into the category of “rare or extreme factors” that would warrant the Court exercising its discretion to make coercive orders requiring a parent to relocate so as to continue to enable her to remain the primary carer of X and Y or enable X and Y to maintain a circumstance where they are able to spend equal time or significant and substantial time with the Father.
Conclusion
Relocation cases are amongst the most difficult that come before the Court for determination, as usually the Court is dealing with two loving and caring parents who have a close relationship with their children. This is such a case. This matter is made even more difficult because neither party can or wishes to remain in Melbourne where they currently reside.
The Father, a (occupation omitted) of the (employer omitted) has been afforded the opportunity to study for and obtain a degree in (qualifications omitted) at the (school omitted) in Canberra over the next four years. This enables the Father to achieve, after 21 years in the (employer omitted) a (occupation omitted) and a longstanding ambition. There is absolute no criticism levelled at the Father for taking this opportunity.
If the parties had not separated, the Mother, X and Y would have moved with the Father to Canberra and, no doubt at the completion of his degree, continued to live the life of the spouse and family of a (occupation omitted) of the (employer omitted) and followed him throughout Australia to his various postings.
However, the parties are separated and the Mother now wants an opportunity to create a settled and stable home for X and Y that does not see them having to uproot and move as they would have had to if their parents had stayed together.
The Father’s primary position is for the Mother, X and Y to move to Canberra and then presumably move again when his next posting comes through.
Having heard the evidence of Ms S that stability and permanency for X and Y throughout their childhood and teenage years is in their best interests, the Father put forward a proposal that the Mother, X and Y relocate to (omitted) where there is a huge (employer omitted) that the Father has previously been posted to. The parties also own real estate in (omitted) and have friends in the area. Upon the completion of his degree the Father would apply for a posting to (omitted) which would enable him to resume significant and substantial time with X and Y as they would all be living in the same city. This would give X and Y a stable home and the opportunity especially in their teenage years to spend significant and substantial time with the Father.
The Father also notes that (omitted) is driving distance from Canberra and this would facilitate X and Y being able to spend regular time with him during the four years of his degree.
The Father proposes Melbourne as a second option and Brisbane as a third option as a home for the Mother, X and Y in the event the Mother was adamantly opposed to (omitted) as a permanent place of residence.
The Mother is seeking to be able to relocate to (omitted) in far north Queensland with X and Y.
The Mother grew up in (omitted) and her parents still live there. It is the Mother’s evidence that she, X and Y will initially be able to live with her parents until she is able to re-establish herself financially at which time she would look for independent accommodation in (omitted) or (omitted) some fifteen minutes away.
It is the Mother’s evidence that living in (omitted) will not only give her somewhere to live in the short term, it will also provide her with the practical and emotional support of her parents as well as long term family friends in supporting her with X and Y’s care now that she is a single parent.
It is the Mother’s evidence that she wishes to provide X and Y with the stability and permanency of a home and that it is her belief that this is best achieved by she, X and Y living in (omitted).
It is the Mother’s evidence that she has no wish to live in any of Canberra, (omitted), Melbourne or Brisbane.
In relation to Canberra, it is the Mother’s evidence that she knows absolutely no one in Canberra. Further, it is the Mother’s evidence that she does not have the finances to establish a home in Canberra at this time given the previous supports that were available to her as the spouse of a (occupation omitted) are no longer available to her because she and the Father are separated.
The Mother also points to the reality that at most the Father will live in Canberra for four or eight years after which time he will be posted to somewhere else in Australia as another reason why she, X and Y living in Canberra is not in X and Y’s best interests.
The Mother questions the efficacy of she, X and Y being required to live in a city of the Father’s choosing that ultimately he will be required to leave.
In relation to any of (omitted), Melbourne or Brisbane, it is the Mother’s evidence that she does not have the financial resources to establish a home in any of those cities. Nor does she have the emotional, practical and financial support that her parents can provide if she were to live in (omitted).
The Mother quite properly notes that whilst the Father may apply for a posting to the city that she, X and Y are ordered to live in, there is no guarantee that he will be successful in his application for that posting. This would mean she, X and Y will have been required to move to and live in a city not of her choosing and the Father never actually living in that city.
There is absolutely no doubt that if the Mother is permitted to relocate to (omitted) with X and Y, the quality of the relationship that X and Y currently have with the Father is going to be negatively impacted.
X, and particularly Y, are only young boys and neither are of an age to have developed the requisite skills or maturity to easily maintain a meaningful relationship with the Father living so far away from him.
It is the evidence of Ms S that if the Mother were to relocate to (omitted), X and Y would need to spend face to face time with the Father no less than every month in order to be able to maintain a meaningful relationship with him.
It is the evidence of Ms S that familiarity with one’s environment, continuity and consistency are factors that support children in their development and at a time of separation can be important and decisive factors to consider. Ms S notes in her family report that while relocation is inevitable for X and Y the possibility of a secure, stable and consistent environment with their Mother in (omitted) cannot be ignored.
That this Court has the power to make coercive orders requiring the Mother to live where she would choose not to is not in doubt.
As has been previously set out in this judgement, the Full Court in Adamson (supra) has held there should exist “rare” or “extreme” factors to warrant the Court exercising its discretion to make coercive orders requiring a parent to relocate to a location not of their choice.
The Full Court in Adamson (supra) paragraph 66 stated as follows:
66. These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.
In this matter, as is in the case of most relocation cases, the optimal outcome for X and Y would be for their newly separated parents to live sufficiently proximate to each other so that they could continue to spend regular, significant and substantial time with both of their parents and for them to have both of their parents able to be involved in their day to day lives.
This optimum outcome is one that is not available on a long term basis for X and Y.
If the Mother were to be ordered to relocate with X and Y to Canberra, the Father will have to move away to Canberra in four or eight years’ time.
For significant and substantial time to continue, X, Y and the Mother would then need to follow the Father to his next posting.
It is the clear evidence of Ms S that this will not be in X and Y’s best interests.
If orders were made that required the Mother to relocate to one of the cities nominated by the Father in anticipation of him being able to obtain a posting to that city in four years’ time, there is a genuine risk that the Father will not get such a posting and the Mother, X and Y would be living in a city separate to that of the Father for the entirety of their childhood.
The Mother’s proposal that she be permitted to relocate to (omitted) will provide security and stability for X and Y. It will provide the Mother with the financial, practical and emotional support offered by the Mother’s parents and the long term friends that live in that community.
The obvious downside to a relocation to (omitted) is its location in far north Queensland which makes it difficult to get to and from unless the Father was able to be posted to (omitted). This is not possible. A relocation to (omitted) therefore means the Father will never be able to live in the same location as X and Y.
Having considered all the evidence in this case, it is apparent that X and Y’s best interests are met by them living in a location which is best able to provide them with stability, security and certainty going forward as well as affording them an opportunity to maintain a meaningful relationship with the Father. I am of the view that location is (omitted).
This determination is however very much predicated upon the expectation that the Mother will ensure that she makes the necessary personal and financial sacrifices to ensure, as is her proposal, that X and Y are able to spend face to face time with the Father no less than every month consisting of weekend time during the school term and lengthy holiday time.
This will place a considerable financial burden on both parties. However, I am satisfied that both parties are sufficiently committed to their childrens’ best interests to ensure that this takes place.
It was apparent from the Mother’s evidence that she has a parenting style that favours routine and structure. She was somewhat critical of the Father for straying from that routine, particularly after separation.
It is the evidence of Ms S that in addition to a minimum of monthly face to face time between the Father, X and Y, there will also need to be frequent Skype/Facetime communication between the Father and the boys if their meaningful relationship with their father is to be maintained.
Ms S suggests arrangements that allow the Father to be able to for example have flexible Skype communication as being ideal so that, he can read bedtime stories to X and Y via Skype during the week, rather than there being a rigid time for these calls. Ms S was very clear that this very important and a way of adding to X and Y’s relationship with their Father.
The Mother’s proposal was quite strict about there being Skype communication twice a week at 6.30pm. This proposal will not meet X and Y’s needs and the Mother will have to be prepared to be in adjusting Skype times so that X and Y are able to speak to the Father when they need to and enable him to chat to them during bath time, read them bedtime stories, or join them in playing games.
I would note that given the necessity for monthly face to face time between X, Y and the Father in order for them to maintain a meaningful relationship with the Father, a failure by the Mother to ensure that this occurs would, I suggest, warrant a revisiting of this decision.
Given the geographic distance between the parties, they are going to need to have very open lines of communication to ensure they are able to jointly make decisions that are in the best interests of X and Y. They will also need to co-ordinate what will be at times quite complex and difficult arrangements to ensure X and Y spend monthly time with the Father.
Therefore, if they have not already done so, both parents would clearly benefit from a post separation parenting course and should undergo same as soon as possible.
I certify that the preceding two hundred and thirty-nine (239) paragraphs are a true copy of the reasons for judgment of Judge Bender
Date: 16 December 2016
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