PICOT & MERCER

[2015] FamCA 508

FAMILY COURT OF AUSTRALIA

PICOT & MERCER [2015] FamCA 508

FAMILY LAW – CHILDREN – International relocation – whether it is in the best interests of the children to permit the mother and children to relocate to the United States of America – where previous final orders made by consent – where father discontinued involvement in proceedings and matter dealt with on an undefended basis 

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

AMS and AIF (1999) 199 CLR 160
B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755
Malcolm & Monroe and Anor (2011) FLC 93-460
Mazorski v Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405, (2009) 41 Fam LR 483
Morgan & Miles (2008) 38 Fam LR 275, (2007) FLC 93-343
Muldoon & Carlyle (2012) FLC 93-513
Sayer & Radcliffe and Anor (2013) 48 Fam LR 298
Taylor & Barker (2007) 37 Fam LR 461

APPLICANT: Ms Picot

RESPONDENT: Mr Mercer

FILE NUMBER: PAC 3342 of 2014

DATE DELIVERED: 2 July 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 18 May 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Norwest Family Law

Orders

1. All previous parenting orders in relation to the children be discharged.

2. The Applicant Mother shall have sole parental responsibility of the children (herein referred to as “the children”):

   (a)       B (born … 2000)

   (b)       C (born … 2001)

3. The children shall live with the Applicant Mother.

4. The Applicant Mother have liberty to remove the children from Australia to relocate to the United States of America.

5. That the children spend time and communicate with the Respondent Father in accordance with the children’s wishes from time to time.

6. The Applicant Mother may apply for a passport for B born … 2000 and C born … 2001 without first obtaining the consent of the Respondent Father.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Picot & Mercer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3342  of 2014

Ms Picot

Applicant

And

Mr Mercer

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. These proceedings concern the two children of Ms Picot (‘the mother’) and Mr Mercer (‘the father’). The two children are B, who is 15 years old, and C, who is 13 years old.

2. The parties married in 1996 in the United States of America (USA). The elder child B was born in the USA in 2000 and the younger child C was born in Australia in 2001. Both children are dual Australian and US citizens. The parties separated in June 2002 and divorced in July 2003. Both parents have since re-partnered.

3. The mother initiated the current proceedings in July 2014. She is seeking that all previous parenting orders be discharged, that she have sole parental responsibility and that the children live with her. The mother is also seeking to relocate with the children to the USA on a permanent basis and that the children spend time and communicate with the father in accordance with their wishes.

4. In his Response filed in October 2014, the father sought that the mother’s application for relocation and all other orders be dismissed, the current orders continue and the children’s names be placed on the Airport Watch List, or in the alternative, that if the children visit the USA that limitations be placed on the mother including time periods and a $100,000 cash surety by the mother.

5. The father subsequently filed a Notice of Discontinuance on 26 February 2015, and this matter therefore proceeded on an undefended basis.

Background

1. The parents married in State D, USA in 1996. The mother’s family, including the maternal grandparents and uncles continue to live in the USA. The elder child, B was born in the USA in 2000 and the younger child, C, was born in Australia in 2001. The parties separated in June 2002.

2. Following separation the mother attempted to live in the USA with the children and the father commenced proceedings opposing the relocation. Final orders were made by consent on 16 December 2004. These orders provide for the children to live with the mother. The orders further provide for the father to have contact with the children every alternate weekend from 6:00pm Friday to 6:00pm Sunday, every alternate week overnight on Monday, block periods in the school holidays and on special occasions and holidays. The parents were also restrained from removing the children from Australia without the consent of the other parent or leave of the Court and the children were placed on the Airport Watch List (AWL).

3. The father’s contact with the children pursuant to these orders was sometimes varied around the father’s work commitments or the children’s activities and commitments, but the orders were otherwise followed.

4. In or around 2009, the mother commenced proceedings to allow the children to travel to the USA for a holiday. Orders were made by Terry FM, as she then was, on 27 February 2009, permitting the mother to take the children to the USA every alternate year for a period no longer than seven weeks, with the mother to facilitate the children communicating with the father by telephone or email whenever the children wished to do so.

5. On 7 June 2012, orders were made by consent discharging the orders made on 16 December 2004 restraining the parents from removing the children from Australia and placing the children on the AWL. The children were consequently removed from the AWL. The mother was thereafter able to take the children to the USA every year. The mother facilitated the children calling their father whenever overseas.

6. The relationship between the children and the father’s wife deteriorated in 2013 and has grown worse over time. The frequency at which the children spend time with the father subsequently decreased and the children only spend irregular time with the father when he contacted and arranged it with the children “[s]ometimes once a month. Sometimes not even that”.

7. On 17 July 2014, the mother commenced the current proceedings.

8. In January 2015, the children and the father’s household went on holiday to the New South Wales coast. After a verbal “fight” with the father, B contacted the mother, who picked up the children. The children have not spent time with the father since then.

9. On 26 February 2015 the father filed a Notice of Discontinuance and did not appear at the hearing.

THE MOTHER’S PROPOSALS

1. At hearing, the mother sought the following orders:

   a)The Applicant Mother shall have sole parental responsibility of the children;

   b)All previous parenting orders in relation to the children be discharged;

   c)The children shall live with the Applicant Mother;

   d)The Applicant Mother shall have liberty to remove the children from Australia to relocate to the United States of America on a permanent basis, and to that end, the necessity for the consent of the Respondent Father to the issue of a passport the children be dispensed with; and

   e)That the children spend time and communicate with the former Respondent Father in accordance with the children’s wishes from time to time.

2. In the Child and Parents Issues Assessment (CPIA) dated 12 February 2015, the mother also proposed to the family consultant that the children spend time with the father once per year in Australia.

3. The maternal extended family, including the maternal grandparents, uncles and cousins, live in the USA and it is planned that the mother will live on the same street as the grandparents in a property owned by the maternal grandfather. The public high school the mother has proposed the children attend is about 13 minutes’ drive from the home. It is also proposed that the mother and her husband will sell their home in Australia and purchase six rental properties from the maternal grandfather. The mother expects that the income will be sufficient for their lifestyle and the continuation of yearly travel (to Australia).

4. The mother further states in her affidavit that she will accommodate and facilitate any wish by the children to communicate with the father while in the USA or spend time with the father when visiting Australia.

THE LAW & DISCUSSION

1. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration. Whilst that is the paramount consideration, it is not the only consideration. In AMS and AIF (1999) 199 CLR 160, Kirby J said:

   [144] … a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. … (footnote omitted)

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act. The objects of Part VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives, that the children are protected from physical or psychological harm, that they receive adequate and proper parenting, and that parents fulfil their duties and meet their parental responsibilities.

3. In determining what is in a child’s best interests the Court must consider the matters set out in s 60CC. Section 60CC outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

4. Section 61DA of the Act provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

5. In the event that the Court orders the parties to have equal shared parental responsibility, the Court must apply the provisions of s 65DAA, which requires a consideration of a child spending equal time with their parents. If the Court finds that is not in the child’s best interests or reasonably practicable then the Court must consider the child spending substantial and significant time with the parents.

6. This particular case has as one of its elements the issue of relocation. Much has been written and said about relocation cases, such that there may be a perception that they are a unique type of case to be determined differently from others. 

7. The jurisprudence (see B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755; Morgan & Miles (2008) 38 Fam LR 275, (2007) FLC 93-343) is clear in that such cases remain to be determined, like all parenting matters, by considering the best interests of the child in the context of the legislative framework.

8. In Taylor & Barker (2007) 37 Fam LR 461, their Honours Bryant CJ and Finn J said:

   [53] … 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. (citations omitted)

   Their Honours went on to say:

   [83] However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or substantial and significant time” with each parent.

9. In Morgan & Miles (supra), Boland J at [79]-[81] identified the relevant principles to be taken into account by a judicial officer when assessing competing proposals about where a child is to primarily reside. Her Honour said:

   [79] In considering whether the child should live with the parent who proposes to relocate a court:

   ·Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.

   ·Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.

   ·Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.

   ·If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.

   ·In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.

   ·When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.

   ·Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:

   - that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;

   - that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;

   - that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;

   - the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.

   ·Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.

10. These principles were cited with approval in Malcolm & Monroe and Anor (2011) FLC 93-460, where the Full Court said:

    [83] We emphasise that it is not the law that a parent wishing to relocate must establish compelling reasons for this to be permissible: see AMS v AIF (1999) 199 CLR 160, 179; and U v U(2002) 211 CLR 238, 259-260. Equally, there is no onus on a parent who may be “left behind” to demonstrate reasons as to why the other parent should not relocate. But it is properly part of a Court’s inquiry to consider what each parent proposes and to determine the context of those plans and reasons for them in determining what is in the best interests of a child.

11. The Court has regard to the objects and principles set out in s 60B.

The Additional Considerations: Section 60CC(3)

1. The Court will now consider the best interest considerations set out in s 60CC that are relevant in this case.

Views of children and factors underlying those views:

1. In the CPIA, the elder child, B, expressed the view that he wanted to relocate to the USA with the mother, as the mother’s family with whom he had good relationships lived there and he liked it there.

2. B stated that he sometimes gets along well with the father, but that the father can get “really angry” and called him names all the time. He further expressed the view that he was unsure whether he wanted to spend time with the father again and stated that if he remained in Australia he would agree to spend time with the father on alternate weekends but for one overnight only. He said that if he moved to the USA he would come to Australia every year and that during that time he would like to stay with the father for two weeks and otherwise at his friends’ houses.

3. The younger child, C, also said that he wished to move to the USA with the mother. He stated that he had visited the USA previously, had relationships with the mother’s family, and that he enjoyed it there and “want[ed] a change”.

4. C also expressed that he was fearful of the father and did not want to ask him for anything, for fear of what his reaction might be. He said that the father swore at, and called him and B the “c words, a head, s word”. He stated that this made him “feel bad, but [he doesn’t] say anything” and he did not know whether the father meant what he said. He expressed the view that if he remained in Australia he would agree to visit the father once or twice a month, but not overnight, and if they were permitted to move to the USA he would visit Australia once a year and considered this was enough time with the father. Given the children’s ages, significant weight should be attached to their wishes to relocate to the USA and spending time with the father.

Nature of children’s relationship with each parent and other significant persons (including grandparents or other relatives):

1. The children have a close relationship with the mother, their main carer. They also appear to have good relationships with the mother’s husband and the mother’s extended family in the USA.

2. The children appear to have a strained and conflictual relationship with the father and his wife. Allegations were made against the father in respect of his physical and verbal abuse of the children, some which were confirmed by the father. The children have not spent time with the father since an incident in January 2015.

Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding children and to spend time and/or communicate with children:

1. The mother has consulted with the father about major long-term decisions concerning the children. However, the father’s time with the children appears to have decreased since 2013 from the time provided for in the 2004 orders, to sometimes once a month or less, and the father has not spent any time with the children since January 2015. The child B stated that since the incident in January 2015, the father has communicated through leaving voicemails saying “when are you going to call, little shit”. The father filed a Notice of Discontinuance and has disengaged from these proceedings to determine the children’s parenting arrangements and country of residence.

Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children:

1. The children live with the mother and the father has provided child support since 2004.

Likely effect of change in the children’s circumstances:

1. If the mother and children relocate to the USA the parent with whom the children live with will not change. However, it will change the extent of time that the children spend with the father.  This change should not be exaggerated, given that the father’s time with the children have been reduced since 2013, and recently ceased.

Practical difficulty or significant expense involved in spending time with and communicating with the other parent:

1. Should the mother be permitted to relocate to the USA there will be obvious significant difficulty and expense with the children spending time with the father who resides in Australia. The mother has indicated that she is willing and able to return to Australia once a year with the children and during this time the children may spend time with the father. Otherwise, there is little difficulty with the children communicating with the father by electronic communication such as Skype.

Capacity of each parent and any other person to provide for the children’s needs including emotional and intellectual needs:

1. There were no issues raised regarding the mother’s capacity to provide for the children’s needs. However, in the CPIA report, while the father confirmed some of the allegations of belittling and verbally abusing the children, he did not appear to consider that he had caused the children harm, which indicates a limited capacity to meet the children’s emotional needs.

Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent:

1. The issue of the children’s background, including culture and traditions, arises in the sense that relocating to the USA would allow the children to develop their connections to their American heritage and family.

Attitude to the children and responsibilities of parenthood demonstrated by each parent:

1. The mother appears to have discharged her responsibilities of parenthood in Australia and in her proposal to relocate to the USA, giving serious consideration of the children’s education, friends and relationships and recreational activities upon relocating to the USA.

2. The father has discharged his financial responsibilities to the children. However, his attitude towards the children, including verbally abusing the children, shows an insensitive attitude to the children and parenting. Moreover, the father has discontinued his involvement in these parenting proceedings.

Family violence:

1. In the CPIA report, the mother and the children raised concerns about the father being physically violent to the children, which to some extent was confirmed by the father. The older child alleged that the father had hit him on the head and “everywhere” on his body in the past, and the younger child explained that the father will “wack us or throw something at us”. The father confirmed that he “might have hit [B] with something” on the last occasion the children spent time with him and in regards to physical discipline “they might get a clip”.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children:

1. The mother’s desire to relocate to the USA appears to have been at issue since separation. However, given the children’s ages and the father’s discontinuance in these proceedings, an order permitting the mother to relocate to the USA with the teenage children is unlikely to result in further proceedings.

The Primary Considerations: Section 60CC(2)

1. The primary considerations are:

   a)The benefit to the child of having a meaningful relationship with both of the child's parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Section 60CC(2)(a) – “meaningful” relationship

1. In Mazorski v Albright [2007] FamCA 520 Brown J considered ordinary definitions of the term “meaningful” and observed:

   [26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive (sic) one. Quantitive (sic) concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark (2009) FLC 93-405, (2009) 41 Fam LR 483, the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

3. The children have lived with their mother for their entire lives and in this time have developed a meaningful relationship with the mother. If the mother is permitted to relocate with the children to the USA, it is clear this relationship will continue.

4. While “meaningful” is not a quantitative concept, it is expected that the opportunity to develop or maintain a meaningful relationship will become more difficult with the limited time the children spend with the father each year if they relocate to the USA. However, the relationship between the children and the father has become increasingly strained since 2013, and since January 2015 the time spent between the father and the children has ceased. The father has discontinued his involvement in these proceedings and made no proposal to develop or rebuild a meaningful relationship with the children.

Section 60CC(2)(b) – need to protect

1. The need to protect the children from harm is a significant consideration in this matter. Serious concerns were raised about the father’s treatment of the children, particularly emotional and verbal abuse. It was the opinion of the family consultant that belittling and verbally abusing the children could have significant impacts on their self-esteem and mental health. C became visibly upset when explaining the father’s verbal abuse and stated that this made him “feel bad”. The children also both alleged physical abuse including being hit on the head, having things thrown at them, and being “stabbed” with a fork, which to some extent was confirmed by the father.

Parental Responsibility

1. Section 61DA of the Act provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

2. There are reasonable grounds to believe that the father has perpetrated family violence. Such, in itself, is sufficient to rebut the presumption. Furthermore, given that the parents have been unable to communicate since the mother started proceedings in July 2014 and the impracticability of shared parental responsibility if the mother relocates to the USA, if the mother is permitted to relocate it is in the best interests of the children that she have sole parental responsibility for the children.

CONCLUSION

1. The question is not as to whether the mother should be able to relocate with the child, but what orders are in the best interests of the child. The best interest of the child must be assessed in the context of the parties’ competing proposals; (Sayer & Radcliffe and Anor (2013) 48 Fam LR 298; Muldoon & Carlyle (2012) FLC 93-513).

2. A consideration of the matters discussed above as to be the best interests of the children, including the nature of the children’s relationships with each parent, the need to protect the children and the children’s views, is indicative that the mother should be permitted to relocate with the children to the USA. Consequently, it is appropriate that the mother should have sole parental responsibility for the children and orders are made as sought by the mother.

3. The orders to be made are set out at the forefront of these Reasons for Judgment.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 2 July 2015.

Legal Associate:

Date:  2 July 2015