Pickle and Sackville
[2017] FCCA 1456
•11 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PICKLE & SACKVILLE | [2017] FCCA 1456 |
| Catchwords: FAMILY LAW – Parenting – relocation. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CC (2),(a), (3), 61DA, 65DA, (1), 65DAA(1), (3) |
| Cases cited: Paskandy v Paskandy (1999) FLC 92-878 Taylor v Barker (2007) 237 FamLR 461 |
| Applicant: | MR PICKLE |
| Respondent: | MS SACKVILLE |
| File Number: | LNC 47 of 2017 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 5 & 6 June 2017 |
| Date of Last Submission: | 6 June 2017 |
| Delivered at: | Burnie |
| Delivered on: | 11 July 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr P McVeity |
| Solicitors for the Applicant: | Jonathan Smith Lawyers |
| Counsel for the Respondent: | Mr G Williams |
| Solicitors for the Respondent: | Glynn Williams |
ORDERS
That the parents have equal shared parental responsibility for the children [X] born (omitted) 2007 (“[X]”), [Y] born (omitted) 2009 (“[Y]”) and [Z] born (omitted) 2011 (“[Z]”).
That [X], [Y] and [Z] live with the mother and the mother be permitted to establish their permanent place of residence in the [Town A] municipality of Tasmania but be and is hereby restrained from further relocating the children or any of them from [Town A] without the express written consent of the father or a Court order save and except that she may relocate back to the [Town B] municipality.
That the children, [X], [Y] and [Z] spend time and communicate with the father as follows:
(i)each second weekend between Friday at 5.00 p.m. and Sunday at 5.00 p.m.;
(ii)for the Tasmanian gazetted term school holidays in each year from 5.00 p.m. on the first Friday until 5.00 p.m. on the second Saturday in each holiday and for these purposes weekend time in 3(i) above be suspended during school holidays;
(iii)on a week about basis during the summer school holidays each year commencing from the first Friday of such holidays at 5.00 p.m. until the second Friday at 5.00 p.m. in each second week thereafter;
(iv)
in any event at Christmas in 2017 and each alternate year thereafter between Christmas Eve at 5.00 p.m. and Boxing Day at 11.00 a.m. provided that the children then spend time with the mother between Boxing Day at 11.00 a.m. and
27 December at 5.00 p.m.;
(v)in any event at Christmas in 2018 and each alternate year thereafter from Boxing Day at 11.00 a.m. until 27 December at 5.00 p.m. provided that the children then spend time with the mother between Christmas Eve at 5.00 pm and Boxing Day at 11.00 am;
(vi)that should Father’s Day fall on a weekend when the children are not otherwise with the father pursuant to these orders then from the Saturday eve of Father’s Day at 5.00 p.m. until Father’s Day at 5.00 p.m. but provided that if Mother’s Day falls on a weekend when the children are with the father pursuant to these orders then such time shall cease at 5.00 p.m. on the Saturday;
(vii)by telephone, Skype or other available media at any reasonable time;
(viii)that for the purposes of the children spending time with the father, changeovers take place at a point agreed between the parties equidistant between their homes;
(ix)such other times or variations of the above as agreed between the parties from time to time.
Pursuant to ss.62B and 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Pickle & Sackville is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BURNIE |
LNC 47 of 2017
| MR PICKLE |
Applicant
And
| MS SACKVILLE |
Respondent
REASONS FOR JUDGMENT
These are parenting proceedings in respect of the parties’ three children being:
[X] born (omitted) 2007 (10 years);
[Y] born (omitted) 2009 (eight years); and
[Z] born (omitted) 2011 (6 years).
The father seeks orders whereby the children live in a week about regime between the parents with the implication being that the children live in the [Town B] municipality of north-western Tasmania.
The mother proposes that the children live primarily with her and spend each second weekend and half school holidays with the father. Her proposal involves the children living with her in [Town A] being a town almost 2 hours drive from the father’s farm and home at [Town B].
Both parties accept that the presumption of equal shared parental responsibility should apply.
Background
The parents commenced cohabitation in mid 2003. They married on (omitted) 2007 and separated on 14 February 2015.
The family unit had lived on a (omitted) farming property at (town omitted) where Mr Pickle operated a farming enterprise into its third generation and supplemented by a (omitted) business involving (omitted). This business mainly operates during the Autumn and Spring (omitted).
Upon separation the wife and children moved to (region omitted) which is the major population centre at [Town B] being only some 15 minutes from (town omitted). The children attended a (omitted) primary school in (region omitted).
The father remained on the farm following separation. He had, however, suffered a stroke on 12 May 2012, leaving some residual physical difficulties necessitating him to employ a farm manager.
The mother had operated a (omitted) business located in (region omitted) since 2009.
In or about December 2016 the mother’s solicitor advised that she was considering a move for herself and the children from (region omitted) to [Town A]. No formal request was made for the father’s consent.
On or about 15 January 2017 the mother unilaterally relocated the children from (region omitted) to [Town A].
Prior to the mother’s relocation, the children during 2016 generally had been spending time with the father on each week for two nights from after school Monday until the commencement of school Wednesday and on each alternate weekend from Friday afternoon until Sunday afternoon. Since the mother’s relocation the children have been spending each second weekend with the father.
These proceedings were commenced by the father’s application filed 10 February 2017 initially seeking an interim order for the children to return to [Town B] and a reinstatement of their previous parenting and living arrangements. That application came before me for a first mention on 3 April 2017. Both parties were represented. On the basis of the Court offering an early trial date in the 'relocation list', the parties agreed to dispense with the interim hearing thereby leaving the children with the mother in [Town A] but with a concession from the mother’s Counsel that the Court would not give weight to any submissions of the children being ‘settled' in [Town A] and their new school where the father had agreed to vacate his right to an interim hearing.
The mother has re-partnered with Mr I. Mr I did not provide an affidavit. He apparently continues to live at (omitted) which is in [Town B]. He works there as a (omitted). He has shared care of two daughters aged nine and 12 years. The mother’s evidence is that Mr I and his daughters spend each second weekend at [Town A] with the mother and [X], [Y] and [Z]. The mother was equivocal as to the status and future of her relationship with Mr I but steadfastly maintained that she would not return to [Town B].
The mother claims that the father has re-partnered with an old friend, Ms S. The father claims that the relationship is platonic. Ms S did not give evidence.
The parties have unresolved property proceedings before this Court.
The Mother’s Case
The mother says that the children's best interests are served by living with her as a primary home base. She says that this is her preferred regime whether or not the Court determines that the children should live in (region omitted) or [Town A]. The mother argues that the parents are of different personality and parenting model. She says that she has been the primary parent for the children during the relationship and that the father does not have the requisite experience and skills to care for the children on a week-about basis.
The mother says that the various 'trials' of parenting regimes following separation were unsuccessful due to the father’s lack of commitment and his readiness to delegate his responsibilities to the mother herself or to others. She says that the father would regularly return the children to her prior to school because of his work commitments. There is also an implication in the mother’s argument that the residual physical and mental difficulties suffered by the father following his stroke limit his ability to care for the children’s physical, intellectual and emotional needs.
The mother says further that the children's best interests are served by them living with her in [Town A]. She says that she will and can maintain a meaningful relationship for the children with their father albeit on alternate weekends and school holidays. She indicates that the children have a successful and established relationship with their father that will endure the changes she proposes. She says that her parenting will be enhanced by her being happier in [Town A] where she has support and family not available to her at [Town B]. In this respect, the mother says that a prime motivator for her leaving [Town B] was “bullying” by social media either from the father himself or his supporters following separation whereupon she felt isolated in the small and partisan community of greater (region omitted). She gives evidence that she was 'stalked' by the father in frequently driving past her (region omitted) residence.
Contrary to her indications to the family reporter, the mother said in Court that she would reluctantly return to [Town B] to parent the children should the Court order the return of the children.
The Father’s Case
Mr Pickle seeks orders whereby the children live in a week-about basis between he and the mother. This proposal is a relatively recent one made in an amended application filed 22 May 2017 where his previous proposals had been more in line with a return to the previous arrangement whereby he had the children with him for six nights per fortnight as set out above.
The father argues that the mother has acted unilaterally and consistent with her propensity to dictate parenting arrangements for their children without necessarily focusing on the children's best interests.
The father says that his relationship with his children will be damaged by them relocating to [Town A] which would limit or completely extinguish any opportunity for a flexible and spontaneous relationship with his children where he could be involved in their schooling and extracurricular activities.
The father argues that the children themselves prefer to live and attend school at [Town B]. To the family reporter, Mr Pickle expressed concerns as to 'fairness' in his proposals of equal time.
Mr Pickle indicated in Court and to the family reporter that he might consider relocating himself to [Town A] should the Court not accede to his application to return the children. My observations, however, on the evidence generally, suggested that this might not be a well thought out option where his career is centred on the third-generation farming property at (town omitted).
The Issues
There is a primary issue as to whether the children should live primarily with the mother and have a 'traditional access' relationship with the father limited to weekends and school holidays or, on the father's proposal that the children live in either an equal-time or, alternatively, a regime of ‘substantial and significant' time between the parents.
The dominating theme of the evidence is the mother’s proposal to relocate the children permanently from their established home and schooling, prior to January 2017, in [Town B] to [Town A].
This in turn raises issues as to the mother’s capacity to encourage and facilitate to children’s continuing relationship with their father given the vagaries of distance. There is a related issue generally as to the mother’s insight and attitude to the responsibilities of parenting with emphasis on the children's needs to have a relationship with their father.There is an issue raised as to the capacity of the father to attend to the children’s needs given the physical and emotional/intellectual implications of his stroke together with his lack of experience.
The Evidence
The Father
The father relied on his trial affidavit sworn 22 May 2017. He was extensively cross-examined.
Whilst I observed Mr Pickle to be generally a witness of the truth, his evidence clearly exposed his ongoing grief at the demise of his marriage and his perceived loss of his children. The tenor of his evidence and also some direct statement showed a desire for ‘fairness', rather than necessarily an objective focus on the best interests of the children. This is not a criticism but simply an observation of an entirely understandable emotion. It is clear to me, however, that this sense of fairness grounds and dominates the father’s application and the orders that he seeks.
I also observed a certain naiveté in the father’s insight and understanding as to the responsibilities of parenting. A prime example was when Counsel in cross-examination put to Mr Pickle that his proposal for equal-time might not be a practical one given his obligations to the farm amongst other considerations. His response was:
… It is practical if I can get other help which I wasn't allowed to have.
Mr Pickle revealed that he would require assistance from other people to effectively care for the children on a week-about basis. He names those persons in his affidavit but did not, for reasons best known to him, put them on affidavit for scrutiny by the mother and the Court.
Generally, I observed the father to be a dedicated and loving parent for his children and one desirous of the best possible relationship with them. I repeat, however, that there was a certain naiveté in his understanding of the obligations of parenting and a veil of subjective emotion permeating his evidence.
The Mother
Ms Sackville relied on her affidavit sworn 6 April 2017. She too was cross-examined at length.
My observations of the mother in the witness box were of an honest and credible witness and as a parent who saw herself as the primary and most capable person to parent her children. On the evidence, she is undoubtedly a skilled parent and the indications are that the children are highly attached to and dependent upon her.
I observed, however, the mother to be a more assertive and confident witness than was the father. Consistent with her having historically being the primary parent for these three young children, there was a tendency for Ms Sackville to be entitled and empowered in her parenting when giving responses such as 'I will allow the children to spend time with their father…’
I observed the mother to be determined in her case to be both the primary parent of the children and to relocate their main residence to [Town A]. That determination, however, at times revealed a lack of insight and understanding in the children's needs to have and maintain a relationship with their father. In this sense, I detected some confusion in Ms Sackville of her own wishes and ambitions with the objective best interests of her children.
Lay Witnesses
The father relied on affidavits from Ms T, Mr A, and Mr G. Ms T gave evidence and was briefly cross-examined. Mr A and Mr S were not required for cross-examination.
Ms T's affidavit was suitably complimentary but partisan of the husband's parenting. Significantly, however, in the witness box she disclosed a recent shared meal between her family, the father and the children. She deposed that the children were comfortable, settled and confident in their relationship with Mr Pickle despite their move to [Town A] some months ago in January 2017.
Mr A is a psychologist. He provided an assessment in respect of [X] and found some anxieties in the child consistent with the evidence of both parents. Mr A’s assessment, however, dates from 12 July 2016 and, in the context of the evidence as a whole, is of limited assistance.
Mr S is the Principal of the children's former school being
(omitted) primary school at (region omitted). He deposes to [X] receiving assistance from the school’s speech pathologist and experiencing both educational and ‘pastoral care' difficulties but with assistance from the school. Improvement was noted in both areas during 2016 and consistent with the parent’s evidence.[Z] was also provided with speech therapy assistance. The evidence in respect of [Y] is unremarkable.
The mother adduced evidence from Ms M, Ms P and Ms D. None of these deponents was required for cross-examination. Ms M is the Principal of (omitted) primary school. She provided a general report dated 3 April 2017 in respect of all the children and generally positive in its content.
Ms D is the school Chaplain at (omitted) school, (region omitted). Her evidence is consistent with that of Mr S.
Ms P is a school Principal but not of a school attended by these children. She is a long-term friend of the mother. Her evidence is generally descriptive and complimentary of the mother for whom she provides the affidavit but otherwise unremarkable
The mother also relied on affidavit of Ms K. She was required for cross-examination. She gave evidence of observing a changeover for the children between their parents on Sunday 9 April 2017 where the father apparently said to the mother 'why are you doing this to me?' Ms K also deposes to [Z] announcing that she would prefer to move back to (region omitted) and of being 'coached’ by the father to tell the family reporter that she wished to spend more time with her father.
I place little weight on this evidence within the context of the evidence as a whole.Finally, the mother relied on an affidavit of Ms E Sackville sworn 10 April 2017. Although she does not say, I expect Ms E Sackville is related to the mother. Her evidence is generally unsubstantiated and emotive comment and I attribute little or no weight to it.
Family Report - Mr J
Mr J is a psychologist well experienced in preparing reports for Family Courts. In this matter he interviewed the parents and children and observed them together on 13 May 2017. His report is dated
24 May 2017.Mr J’s recommendations are summarised at [99] of his report thus:
Even if it were reasonably practicable, equal time or substantial and significant time is not considered to be in the children’s best interests. It is not clear that the father has sufficient capacity to provide for the children’s needs if they were to spend substantial time in his sole care. The parenting alliance appears insufficient for shared care to work effectively, especially given the different parenting styles. [X] does not want an equal time care arrangement. [Y] would like to spend more time with the father, but not equal time. [Z] said she would like to spend equal time with the father, but it is difficult to know how much weight should be afforded to her views.
Mr J notes the children being 'settled and progressing well' in [Town A]. Nevertheless, as mentioned above, I place limited weight on this consideration given the concession of both parents in April with the father electing not to prosecute his interim application in favour of an early final trial date.
Mr J’s reporting of the parents and his observations of them were generally in accordance with my own, including some sense of 'parenting entitlement' in the mother. Mr J also noted at [14] the father’s sense of 'fairness' as under pinning his application.
The difficulties perhaps endured by the father in reconciling his own desires with the best interests of the children is noted at [16] as follows:
Asked to comment on the mother’s parenting qualities, [Mr Pickle] said he had no criticism of the mother’s parenting. He said
[Ms Sackville] does a good job and the children are well cared for.
He noted the children can be difficult in their behaviour and he considered [Ms Sackville] did well to manage them. He said
[Ms Sackville] is a loving and affectionate parent as shown by the fact the three children are all happy and doing well.
At [29] Mr J reports the mother identifying a major issue between the parties being the father’s 'emotional dependence and difficulty adjusting to the separation.’ My observation of Mr Pickle sits consistently with that report.
The mother also identifies at [37] the different parenting styles of she and the father noting him as 'disorganised’ and she as 'structured'.
Mr J interviewed each of the children. He reports [Z] (aged
6 years) as saying she preferred to live in (region omitted). He observed [Y] (aged eight years) as confident and forthright but feeling caught in the middle of the parents’ disagreement. At [60] [Y] is reported as liking 'to stay at the same school and live in [Town A] to spend more time at dads'. [X] is 10 years of age. He was observed as a reserved young boy and showing some signs of anxiety. He stated his preferences at [68] to remain living in [Town A] and to spend time with his dad each second weekend. Significantly, [X] was able to report his father's emotional upset at the end of each visit but that his own reaction showed a high degree of maturity, empathy and an ability to move comfortably between his parents.At [88] Mr J summarises his observations of the children as follows:
All three children appear to have an essentially positive relationship with the mother and the father. Observed interaction was relaxed and positive with no significant resistance observed. Only [X] showed some indications of some estrangement from the father in rating his relationship (sic) him lower than the mother, not enjoying spending time with him, and being reluctant to say goodbye to him. [X] identified his father’s emotionality as an issue. Although he denied it is difficult when questioned directly, he raised it on two occasions. [X] also indicated a close positive relationship with Mr I and other significant adults in [Town A]. [Y] is most emotionally burdened by the dispute between the parents.
She indicated a close positive relationship with each of them, but also a close positive relationship with other significant adults in [Town A]. [Z], at six years old, feels equally close to her mother and father and indicated a close relationship with Mum’s friends, Ms B and Ms P.Whilst Mr J’s recommendations appear unequivocal at [99] as set out above, I raised with him the influence, if any, on those recommendations from [101] where he states:
While the father’s desire to spend equal time with the children in (region omitted) is not difficult to understand, it is difficult to see how that can be achieved given the mother does not intend to return to (region omitted), and the father does not propose the children live with him. (my emphasis)
It eventuated that Mr J was unaware of, firstly, that the mother has advised the Court that she would indeed return to (region omitted) if the Court made orders for the children's return and, secondly, that the father now proposes a regime of equal time for the children on a
week-about basis between he and the mother (such not disclosed until his amended application which was not available to Mr J).
Mr J expressed some surprise as to these two changes of positions of the mother and the father. Interestingly, he then volunteered a statement as to the importance for these three young children to maintain a relationship with their father being a comment that I understood to suggest a benefit to the children from a higher frequency of relationship with their father than that proposed by the mother but which of course might be said to be a benefit for most child/parent relationships. Consequently, I now consider Mr J’s recommendations and his report generally with these caveats.
Relevant Law
These being parenting proceedings, it is trite to observe that section 60CA of the Family Law Act 1975 (“the Act”) stipulates that the child's best interests are to be the paramount consideration for a Court dealing with children’s parenting and living arrangements.
Notably, the Act itself is silent as to the notion of 'relocation’. It follows that the relocation of children is neither expressly prohibited by law nor is there a presumption against it. That is, any proposal by a parent to relocate children is but one of numerous factors to be considered and given weight by trial judges in arriving at orders which, on balance, meet the children's overall best interests.
Full Courts of the Family Court in Paskandy v Paskandy[1] and later confirmed, after the significant amendments to the Act in 2006 in Taylor v Barker[2] state that a consideration of parenting orders for children should not dissect the matter into discrete issues of, firstly, who the children shall with live with and then, secondly, a further or separate issue as to whether a relocation should be 'permitted'.
The Court in Taylor v Barker (supra) noted:In our view, his Honour dealt with the relocation proposed in the context of his considerations of s60CC and s65DA at least in so far as it was possible to do so. It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, so far as is possible, in the context of the making of the necessary findings in relation to s60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s65DA.
[1] (1999) FLC 92-878
[2] (2007) 237 FamLR 461
S61DA offers a presumption that parents have equal shared parental responsibility for their children. 'Parental responsibility’ is defined in the Act as '… all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.’ For all practical purposes, such responsibility normally rests in the making of long-term important decisions for children in respect of issues such as their education, religion, medical procedure and similar and as distinct from the more mundane day-to-day decisions that parents normally make in respect of their children.
The parties in the matter now before me each concede that the presumption of equal shared parental responsibility should apply and is not rebutted as being contrary to the best interests of children. Fortunately for the children in this matter, issues of family violence, although raised in a peripheral sense by the mother, do not feature such as to, in my view, make the presumption not applicable.
If the Court then is to make an order for equal shared parental responsibility then it must follow a statutory course of consideration in respect of options for the children's living and parenting arrangements. Firstly, the Court is to consider whether the children living in an equal-time regime between their parents is both in the children's best interests and reasonably practicable. If the answer to either of those questions is in the negative then the Court must turn to consider whether the children spending 'substantial and significant time' with each parent is both in the children's best interests and reasonably practicable.
'Substantial and significant time' is defined in the Act at s.65DAA(3) as:
(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; 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.
Matters involving a proposed relocation of children, therefore, emphasise the dual requirements of the parenting orders to be both in the children's best interests and 'reasonably practicable’. Obviously, a geographical constraint presented by most relocation proposals prevents any practical operation of an 'equal time' or 'substantial and significant time' arrangement for children with the remaining parent. The significance here is that the father has argued, firstly, for orders consistent with 'substantial and significant time' and then later for 'equal time'. The mother's proposal includes that the children be relocated almost two hours from their previous home thereby practically ruling out either option.
The High Court in MRR & GRR[3] observed at [15]:
Section 65DA(1) is concerned with the reality of the situation of the parents and the child, and not whether it is deemed 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 s65DAA (1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in X, (the trial judge) was obliged to consider the circumstances of the parents, more particularly those of the mother, in determining whether equal parenting was reasonably practicable.
[3] [2010] 240 CLR 461
Given the lack of statutory assistance in respect of the notion of ‘relocation’, superior Courts have over time endeavoured to extract a set of principles to assist trial judges in dealing with children's matters involving a proposed relocation of children. Those principles might be summarised as follows:
i)Relocation matters are to be determined generally in accordance with Part VII of the Act and within the context of making the necessary findings relevant to children's best interests with reference to the factors in s.60CC of the Act but also within the context of s.65DAA considerations of equal time or 'substantial and significant time' and 'reasonable practicability';
ii)The children's best interests remain the paramount but not the sole consideration;
iii)Neither party bears an onus to establish that the relocation or a continuation of an existing regime will best promote the interests of the children;
iv)An applicant for relocation need not show 'compelling reasons' in support of the relocation but must, in my view, give or adduce probative evidence which permits the Court, on balance, to find a parenting order involving a relocation of a child in that child's best interests;
v)The child's best interests must be weighed and balanced with the 'right' of a parent’s freedom of movement' but such right must ultimately defer to the children's best interests;
vi)The Court must consider the advantages and disadvantages of each of the parties’ proposals including the proposed relocation and may, if required, formulate proposals itself in the best interests of the children.
The best interests of children are determined on a weighing and balancing of the probative evidence and the parties’ proposals with reference to the mandatory considerations in ss.60CC(2), and (3) of the Act. Those considerations are based upon the objects and principles of the Act set out in s.60B as follows:
(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 the children receive adequate in proper parenting to help them achieve their full potential; and
d)ensuring the parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)the principles underlying these objects are that (except when it would be contrary to a child's best interest):
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)parents jointly shared duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children; and
e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The particularised s.60CC factors are divided into 'primary' and 'additional' considerations at subsections (2) and (3) respectively. There is, however, no hierarchical distinction or prioritisation of those considerations and each matter sits on its own particular factual platform.
Section 60CC Considerations
s60CC(2)(a) - the benefit to the children of having a meaningful relationship with both parents
The evidence before me of both parents and the family reporter is that these three young children enjoy a close, bonded, successful and meaningful relationship with both of their parents. The evidence of Ms T, a witness for the father, was enlightening in this regard.
It is at the crux of Mr Pickle's argument that the mother's proposal might damage his relationship with his children. They are, of course, yet young children aged six, eight and 10 years. He says that he has enjoyed a relationship of the high frequency with the children even since the parents' separation and that a diminishing of that frequency might impact to the detriment of those relationships. This is a valid consideration for the Court given that experts generally agree that high frequency of the relationships for young children with parents is an important factor in establishing and maintaining those relationships and perhaps more so than with older or teenage children and one noted here by Mr J.
Importantly, however, and whilst this consideration is a 'primary one' it is not in itself determinative of this dispute. The Full Court in Champness & Hansen[4] dealt with a submission in this regard as follows:
The submissions of Counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial judge to make orders most likely to ensure the children had a 'meaningful relationship' with both parents. This is an incorrect assumption. The Court’s obligation is to make orders most likely to promote the child's best interests. In seeking to achieve that objective, s60CC(2)(a) directs the Court to consider 'the benefit to the child' of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed, along with all of the other relevant factors.
[4] [2009] FamCA FC 96
Since the important amendments to the Act in 2006, Courts have grappled with the notion of 'meaningful relationship'. It is now reasonably settled that the focus for trial judges is on the quality of those relationships rather than simply distributing quantity of children's time between their parents. Further, the consideration is a prospective one into the future but one which obviously must take into account the current status of the relationships between children and their parents.[5]
[5] McCall & Clark (2009) FLC 93-405
In summary, therefore, the force of the evidence suggests that [X], [Y] and [Z] have secure, established, comfortable and successful relationships with both their parents. The evidence of Ms T is that, from her recent observations, the children’s relationships with their father remain so and despite them living in [Town A] since January 2017 and the time with their father being at reduced to each second weekend. The children are, however, still young and it is important that those current successful relationships are maintained.
S60CC(2)(b) - the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
Fortunately for these children, this is not a matter where family violence in its usual senses features here. Nevertheless, the definition of 'family violence' in the Act is a broad one and there is some relevant evidence which would come under the umbrella of that definition. Specifically, the mother argues that, at least in part, her move to [Town A] was motivated by the father 'stalking' her by regularly driving passed her residence. She was not challenged as to that evidence. She says also that she suffered some distress by being the victim of a social media campaign which she suggests was orchestrated by either the father himself or his supporters and where she then felt ostracised and/or victimised within the small town the environment (region omitted). Again, she was not seriously challenged as to the veracity of this evidence although the author(s) of the social media comments remains unknown.
The relevance of such evidence is that the mother, as a parent of these three young children, should be able to parent those children without such stresses and it is reasonable logic to assume the children will benefit by their mother being relieved of such stresses. As such, this evidence gives some credence and motivation to the mother’s move from (region omitted) to [Town A], unilateral as it was.
S60CC(3)(a) - any views expressed by the children and any factors (such as the children's maturity level of understanding) that the Court thinks are relevant to the weight it should give to the children's views
These children are young with the eldest, [X], being just 10 years of age. The Court should, therefore, be cautious as to any weight attributed to their views given their lack of maturity.
There is a suggestion in the evidence of Ms K and also from the family report that the father has offered the children some low level influence for the benefit of the family report.
[X], the eldest child, appears the most assertive in his preferences and views and is reported at [69] as:
[X] went on to say that ‘Dad gets upset and emotional when we leave on Sunday afternoon.’ Asked if it worried him when Dad was like that, [X] said ‘No. I give him a pat on the back and say ‘you’ll be right.’’
Asked to rate the strength of his relationships with significant others, [X] adopted a somewhat black and white approach, giving some people the highest possible rating and all others the same mid-range rating. He gave the higher rating to his Mum, [Mr I], his teacher, aunt [Ms A], Mum’s friend [Ms P], and Mum’s aunt [Ms L] and [Mr G]. He gave the lower rating to his Dad, Dad’s friend [Ms S], [Y] and [Z]. Asked what (sic) he gave his Dad a lower rating than Mum, [X] said it was because Dad is so emotional.
S60CC(3)(b) - the nature of the relationship of the children with each of the year children's parents and that of any other persons (including any grandparent or other relatives of the children)
The evidence suggests to me that the nature of the relationship of the children with the mother has been a primary one where she has been the parent involved in their day-to-day care. Their relationship with the father is no less important but, by the nature of his work, he has assumed a different role with them. He has, however, been a constant in their lives on a daily basis until the mother’s unilateral relocation to [Town A]. This has resulted in a fundamental change in the nature of the children's relationships with their father. It is now limited to each second weekend. The loss of frequency has apparently impacted on the father and [X] is well aware of Mr Pickle’s emotional distress and it is perhaps significant that at [29] of the family report (omitted) identifies “…the father’s emotional dependency and difficulty adjusting to separation…'
The orders sought by the mother would entrench this change in the nature of the children's relationship with their father. By reasons of distance, he would be effectively denied flexible and spontaneous contact and involvement with them in their schooling and extracurricular activities. The time for the children with him would be limited to weekends and school holidays. Notably, the Act itself in prioritising the course of consideration, recognises the importance for children and parents to be mutually involved in each other’s lives and activities.
The father’s proposal is for equal time for the children on a week-about basis between their parents. This would also change the nature of their relationships and particularly with their mother from whom they have received their primary parenting.
S60CC(3)(c) - the extent to which each of the children's parents has taken, or failed to take, the opportunity to participate in making decisions about long-term issues in relation to the children and to spend time and communicate with the children and the extent to which each of the children's parents has fulfilled, or failed to fulfil, the obligations to maintain the children
The family unit here prior to separation developed along traditional lines whereby the mother took greater responsibility for the care of the children and the father worked hard as a financial provider. Nevertheless, it seems that these parents co-operated in respect of the important decisions for their children. This changed in January 2017 when the mother unilaterally determined to relocate the children from (region omitted) to [Town A]. The evidence suggests a tendency, at least after separation in her to make decisions and then impose those decisions on the father in respect of the children's time with him.
It is trite to observe that Family Courts do not and should not sanction unilateral decision-making by parents. Indeed, s.61DA offers a presumption that it is in children's best interests for there to be
co-operative and shared parenting decision-making. Significantly, the tenor of the Act itself emphasises any rights that exist sit with the children and any notions of the parental ‘ownership’ of children are discouraged.My observations of the mother in the witness box were of a parent who thought of herself as entitled and empowered in the decision-making role to the exclusion, or at least the diminishing, of the father's role.
S60CC(3)(d) - the likely effect of any changes in the children circumstances, including the likely effect on the children of any separation from either of the parents or any other person with whom they have been living
This is a fundamental consideration for the Court in any application involving a proposal for relocation of children. As mentioned above, realistically any relocation will affect a child's relationship with the remaining parent. That relationship will reduce in frequency. There will be logistical considerations. The children are likely to suffer conflict between the requirements of Court orders to visit the remaining parent and with their own lifestyle and extracurricular activities. The children will come to see the 'relocating parent' as somehow different or perhaps more important than the 'remaining parent'. These are all factors to take into account in the matter now before me. Other considerations such as the current strength and success of the children’s relationship with the remaining parent together with the insight of the 'relocating parent' to encourage and facilitate a continuing relationship with the other parent all enter this consideration. Consequently, my observations as to the mother’s sense of 'right' and propensity for unilateral decision-making become important and weighty considerations.
S60CC(3)(e) - the practical difficulty and expense of the children spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the children's right to maintain that personal relationships and direct contact with both parents on a regular basis
The mother's proposal would impose something less than two hours travel for the children each alternate weekend and in each direction in order to spend time with their father. Relatively to the matters that come before this Court, this might not be seen as overly onerous.
It does, however, involve 3.5 – 4 hours travel for children out of each second weekend. It would impose an obligation on the children (and the mother) that might conflict with the children's other interests.
It would ordinarily involve a commitment by both parents and where the evidence suggests that the mother here has not necessarily previously shown the insight, understanding and acknowledgement of her parenting responsibilities accordingly.
S60CC(3)(f) - the capacity of each of the children's parents and each other person (including any grandparent or other relative of the children) to provide for the needs of the children, including emotional and intellectual needs
The mother has a demonstrated and conceded capacity to attend to the children’s physical needs. She has been their primary parent.
She impresses me as a very capable and devoted mother. At [16] of the family report Mr Pickle is quoted and worthy of repeating here:Asked to comment on the mother’s parenting qualities, Mr Pickle said he had no criticism of the mother’s parenting. He said [Ms Sackville] does a good job and the children are well cared for. He noted the children can be difficult in their behaviour and he considered [Ms Sackville] did well to manage them. He said [Ms Sackville] is a loving and affectionate parent as shown by the fact the three children are all happy and doing well.
My concerns as to the mother’s parenting capacity rest with her understanding of the children's needs to maintain a relationship with their father. She has demonstrated a propensity for unilateral decision-making. In her evidence in Court she compared the children's relationships with her own former [Town A] school friends to be of ‘equal importance' to their relationship with their father being a comment that is demonstrative of the insight lacking in this otherwise good mother. The Act, properly in my view, places an onus on any parent to encourage and facilitate a child's relationship with the other parent. This is very much an active obligation which requires a high level of insight, understanding and acknowledgement.
The father’s capacity to care for the children on a week-about basis as he proposes is questionable, even on his own evidence. In the witness box he volunteered that a week-about arrangement 'would be practical if he was able to enlist the assistance of others'. I accept that he now employs a farm manager. Nevertheless, there appeared to be a lack of practical realism in Mr Pickle’s assertions that he could combine his farm and calf transporting business commitments with the care of the children including such practical matters as setting them off to school on five consecutive mornings. Indeed, the mother’s evidence is that previous trialled regimes resulted in him returning the children to her prior to school or, at least, there being some conflict between his obligations to the children and his work. In this context, it was notable that the father are was still seeking some 'flexibility' in any arrangements with the mother again indicating some difficulty for him in committing to any defined orders for equal time for the children.
Mr J deals with the father’s capacity at [95] of the report as follows:
The father is considered to have sufficient capacity to provide for the children’s needs for short periods of unsupervised overnight time. He demonstrated rather simplistic parenting ideas and showed little capacity for self-reflection. By his own admission, the stroke has left some residual brain damage causing greater emotional reactivity…
If the Court accepts the mother remain substantially responsible for the children even when they stayed overnight with the father, then it follows that the father’s actual capacity to provide for their needs on a continuing basis is not yet demonstrated. Having said this, the mother did conceded (sic) that the father cared for the children well for the 9 days the mother and Mr I went on a cruise.
The concluded opinion is that, while the father has sufficient capacity to provide for the children's needs for short periods of time, the mother would appear to be the more competent parent, in this was acknowledged by the children.
S60CC(3)(g) - the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children or either of the parents
These matters have been dealt with above.
S60CC(3)(h) - if the children are aboriginal or Torres strait Islander children
Not Relevant.
S60CC(3)(i) - the attitude to the children and the responsibilities of parenthood, demonstrated by each of the children's parents
The father is most obviously a keen and devoted parent. He desires to maximise his time with his children and his relationship with them.
The mother’s attitude to the responsibilities of parenting is problematic by reason of her propensity to make unilateral decisions without consulting the father. Further, in the witness box she demonstrated a sense of entitlement in respect of the children to the exclusion of the father.
S60CC(3)(j) and (k) – In family violence involving the child or any members of the child’s family and any family and family violence orders that are applicable
There is no evidence of State Court family violence orders between his parents.
Any other issues under this subsection have been dealt with above.
S60CC(3)(l) - whether it would be preferable to make the order that would be less likely to lead to the institution of further proceedings in relation to the children
The orders that Courts make in respect of children are prospective in their effect. As such, there will always be some changes in the circumstances of the parents and the children such that there may be further litigation and despite Courts aspiring to bring settlement and order to families and an end to litigation. It is therefore incumbent upon parents, armed with the Court orders and reasons, to move forward to parent their children co-operatively. Nevertheless, and as indicated above, there are factors here which should alert the parties and hopefully avoid further litigation for them. Firstly, and again, there is the mother’s tendency towards unilateral decision-making. I intend to make an order here for equal shared parental responsibility which unambiguously obliges each parent to consult constructively with the other parent in respect of important decisions for the children and certainly is inconsistent with any idea of unilateral decision-making. Further, there was the interesting evidence of the mother in respect of her relationship with Mr I. He, in fact, continues to live in [Town B] and would not be unreasonable to anticipate a further move her by the mother and perhaps back to [Town B] if that relationship continues. Thirdly, I harbour residual concerns as to the mother’s commitment or, more relevantly, her understanding of the importance for these three young children in maintaining a relationship with their father. These are all issues which might raise further litigation.
Findings and Conclusions
Matters involving the proposed relocation of children are among the more difficult of cases coming before these Courts. Unlike the majority of parenting cases where the Court may be creative in constructing orders with fine discretions and allowing children the fullest beneficial relationships with both parents and where, for example, a Court may be deciding what regime children live between parents over a fortnight, such simplicity is not available in cases involving a proposed relocation.
If an order is made to relocate children then inevitably the nature of the children's relationship with the remaining parent will be fundamentally changed. Opportunities for high frequency, flexibility and spontaneous direct contact will be lost. Contact between children and parent will often be substituted by use of media such as email and Skype but without the benefits of direct contact. The remaining parent will be understandably left aggrieved with a sense of loss probably leading to residual bitterness and suspicion and hence little opportunity for
co-operative and entrusting parenting with the other parent into the future.Conversely, the refusal of the parent’s application to relocate children can lead to that parent being equally aggrieved, bitter and unfulfilled in personal, life, relationship or career ambitions. The impact on children living with an unhappy and bitter parent are obvious.
I am generally satisfied in this manner that [X], [Y] and [Z] enjoy established, successful and meaningful relationships with each of their parents.
I am satisfied that, during the marriage, the parents evolved differently in respect of their responsibilities to parenting. The mother took a greater hands-on role. The father was the financial provider but nonetheless important for and to the children.
I am satisfied that issues of family violence do not feature here although I am satisfied that the mother suffered some social criticism and isolation within the small community of (region omitted) and that this was a legitimate factor influencing her move to [Town A].
I am satisfied generally on the evidence of Ms T and the family reporter that the children's relationship with their father is durable and has maintained its strength and quality in the months from January when the mother moved to the [Town A]. I make these findings being mindful, however, of Mr J's comments at [88] that [X] shows some indications of estrangement from his father in rating his relationship with him lower than with the mother.
I am satisfied that [X] has a preference to remain living in [Town A] and to live primarily with his mother. I am persuaded to give some weight to [X]’s wishes given his age and the evidence as to how he deals with his father’s sense of emotional dependency.[6]
[6] See Family Report at [69]
I give little weight to the views and preferences of the younger two children because of their ages but am content that they are desirous of a continuing relationship with each of their parents.
Having had the opportunity to consider the parties’ affidavits and those of their witnesses together with the family report and, importantly, the benefit of observing in hearing them in the witness box I am satisfied that they offer different parenting styles. The mother is the more experienced hands-on parent. The father is still dealing with the residue of his marriage breakdown and there exists a form of emotional dependency on the children. The mother is an experienced and competent parent in respect of the children's physical needs. The father is untried in discharging the responsibilities of parenting children on a day-to-day basis over any lengthy period of time. Further, the parties own relationship remains emotionally disparate and untrusting.
The father understandably is suspicious of the mother’s propensity to make unilateral decisions for their children. The mother is dubious as to the father's capacity to care for the children and his motivation for seeking orders for equal time.I am not persuaded that the father has the physical capacity, experience, time and commitment to care for the children on a week-about basis as best evidenced by his own voluntary concession in the witness box that he would require the assistance of others. He adduced no evidence so as to persuade me that he would have that ongoing and committed assistance.
I am not satisfied, therefore, that a week-about arrangement for these particular children with these parents would be in the children's best interests. Such an arrangement would suffer from diverse parenting style and non-cooperative suspicious parenting.
There are some advantages to the mother’s proposal that she be the primary parent of the children but to live in [Town A]. Primarily, she would have the support of friends and family in the environment in which she herself grew up. Her own personal contentment and happiness would result, it is reasonable to expect this would have vicarious benefit for the children. To the contrary, I have accepted that the mother left (region omitted) in part because of being socially ostracised. Her unchallenged evidence is of no actual or emotional support in (region omitted).
I am also satisfied that the children could maintain a beneficial relationship with their father should they live with the mother in [Town A]. They would have the benefit of block periods of time during school holidays. Whilst their time with their father would be reduced during school term to each second weekend, these are children who have demonstrated an established and successful relationship with their father which will endure less frequency of direct contact but maintain the quality.
There are, of course, disadvantages to the mother's proposal and primarily the lack of frequent, flexible and spontaneous contact between children and father. The imposition of travel has the capacity to become onerous, inconvenient and conflicting with other activities. Nevertheless, relative to the matters coming before these Courts, I do not find this to be a prohibitive inconvenience.
The father's proposal has antithetical benefits and detriments to those of the mother's proposal. Mr J recognised the benefits to children of having frequency and easy availability to their parents.
The logistics of travel are alleviated on the father's proposals. He says that the mother has lived in [Town B] for some 13 years, and also has a relationship in [Town B] and she should not be emotionally troubled by a return to [Town B].In conclusion, I am satisfied that the mother had bona fide reasons to move to [Town A]. I am satisfied that these children’s best interests are served by living primarily with the mother. I am satisfied that her freedom of movement and personal happiness are proper considerations and not inconsistent with the best interests of the children. I am satisfied that the children's relationship with their father can be maintained successfully on the mother's proposal. In all of the circumstances, I am satisfied that the maintenance of a relationship between children and father is reasonably practicable on the mother's proposal. Any concerns as to the mother's propensity for unilateral decision making and a lack of insight into these children’s needs to maintain relationships with their father can be attended to by me making precise court orders which unambiguously obligate the mother and any flexibility or negotiating of variances will be left to evolve as these two parents hopefully develop a greater degree of trust and child focused communication in the future.
I will make orders whereby the parents have equal parental responsibility for their children where with the benefit of these reasons, the mother should understand that she has no right to prima facie to make unilateral decisions for the children. There will be an order that the children live primarily with their mother and that she be permitted to permanently relocate them to [Town A] but with an injunctive order that she not further relocate the children excepting back to [Town B] without the express written consent of the father or an order of this Court. There will be orders that the children spend time with the father each second weekend and for half school holidays.
I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 11 July 2017
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