Potter and Montague
[2009] FMCAfam 1211
•27 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| POTTER & MONTAGUE | [2009] FMCAfam 1211 |
| FAMILY LAW – Relocation – best interests of the child. |
| Family Law Act 1975, Part VII, ss.60B, 60CA, 60CC (3) (b) – (g), (i), 60CC (4), 65AA, 65DAA, 65DAA (2) – (4) |
| F v F (2008) 38 Fam LR 52 P. Parkinson, “Freedom of Movement in an Era of Shared Parenting: The Differences in Judicial Approaches to Relocation” (2008) 36 Federal Law Review 145 |
| Applicant: | MR POTTER |
| Respondent: | MS MONTAGUE |
| File Number: | CAC 1084 of 2008 |
| Judgment of: | Neville FM |
| Hearing dates: | 10 & 11 November 2008, 30 March 2009, 25 June 2009 |
| Date of Last Submission: | 17 July 2009 |
| Delivered at: | Canberra |
| Delivered on: | 27 November 2009 |
REPRESENTATION
| Counsel for the Applicant & Advocate for the Applicant: | Ms Tonkin Ms Strong |
| Solicitors for the Applicant: | Lessli Strong & Associates |
| Counsel for the Respondent: | Ms Godtschalk |
| Solicitors for the Respondent: | Ken Cush & Associates |
ORDERS
That the Mother and Father have equal shared parental responsibility for [X] born [in] 2000.
That in the event that the Mother remains living in Canberra:
Save for Orders 3 and 4 hereof, [X] will live with her Father from after school or day care on Friday until before school or day care the following Friday and each alternate week thereafter and with her Mother from after school or day care on Friday until before school or day care and each alternate week thereafter.
[X] will live with her Father for half of the Christmas/Summer school holidays being the first half in the years ending in an even number and the second half in the years ending in an odd number and will live with her Mother for half of the Christmas/Summer school holidays being the second half in the years ending in an even number and the first half in the years ending in an odd number.
[X] will spend Mother’s Day with her Mother from 9:00am to 5:00pm and Father’s Day with her Father from 9:00am to 5:00pm.
That in the event that the Mother relocates to [B]:
(a)[X] will live with her Father.
(b)[X] will spend time with her Mother as follows:
(i)For two out of three weekends with the Mother to collect [X] after school or day care in Canberra at the commencement of contact and the Father to collect [X] from the Mother’s home in [B] on Sunday afternoon at 4:30pm during daylight saving time and 3:30 pm during eastern standard time at the conclusion of contact;
(ii)On Mother’s Day with changeover as agreed in writing between the parties;
(iii)By telephone, email and webcam at any reasonable time.
IT IS NOTED that publication of this judgment under the pseudonym Potter & Montague is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1084 of 2008
| MR POTTER |
Applicant
And
| MS MONTAGUE |
Respondent
REASONS FOR JUDGMENT
A. Introduction & Procedural History
These proceedings involving relocation and parenting orders in relation to 9 year old [X] were initially heard in late 2008.
A significant issue arose in the course of the trial concerning the Mother’s relationship with a Mr M, who had spent some time in prison for a range of offences, and against whom certain allegations had been made in relation to [X].
Mr M’s criminal record was formally before the Court.[1]
[1] See Exhibit I.
At different times the Respondent Mother, Ms Montague, claimed that there was no longer a relationship with Mr M. However, there was some evidence produced at trial in the form of letters, which suggested that there was, perhaps, some substance to the contentions about an ongoing relationship between Ms Montague and Mr M.
This relationship was concerning for Mr Potter especially in the context of Ms Montague’s application to relocate to the south coast of New South Wales with [X].
Some time after the conclusion of the trial, an application to re-open was made by both parties. The first Application in a Case was filed on behalf of the Respondent Mother on 24th March 2009. That Application sought leave of the Court to adduce further evidence. The evidence related to the death of Mr M.
The Application was granted on 25th March 2009. Both parties were also granted leave to issue further subpoenæ.
On 20th April 2009 a further Application in a Case was filed, this time on behalf of the Applicant Father, Mr Potter. That Application also sought the Court’s leave to adduce further evidence, which related to the accuracy and veracity of oral evidence given at the trial by
Ms Montague regarding her employment with [omitted] in the [B] area.
This second application was heard on 30th June 2009. Leave was granted to adduce the further evidence, which came essentially in the form of an affidavit from Mr C, who is the Human Resources Manager for the [company omitted].
I also granted both parties leave to provide further written submissions in relation to the new evidence within 14 days. Both parties accepted that offer and provided those submissions.
Against this procedural background and history, the case proper and principal issues may be summarised as follows.
B. Issues in Dispute
It is not disputed that [X] has a good and essentially sound relationship with both of her parents. Among other places in which this is displayed is in (a) Counsel for the Mother, Ms Godtschalk’s opening remarks in which she confirmed that “the parties have both been able to foster a very meaningful relationship with [X],”[2] and (b) [X]’s comments to the Family Consultant, Ms Dawson.
[2] Transcript (10th November 2008) p.5.
Ms Dawson’s Report is dated 13th October 2008. It was relied upon by both parties. On the strength of Warnick J’s observations in SPS & PLS,[3] I take the Report to have been admitted into evidence.
[3] SPS & PLS (2008) FLC ¶93-363. See in particular his Honour’s comments at [8] – [22].
At para.17 of that Report, Ms Dawson recorded the following: “[[X]] displayed understanding and belief that she could hurt either parent by stating her wishes. [X] remained fair to each parent and stated that if they did not go to the Coast she thought she should have `7/7 with each parent.’”
In the previous paragraph, Ms Dawson noted that [X], although young “to fully comprehend the nuances of the situation besetting her family. … admitted that she felt confused and worried about both her Mother and her Father.”
In her oral evidence, Ms Dawson stated that [X] was closely allied with her Mother, but also had strong bonds with her Mother.[4]
[4] Transcript (11th November 2008) p.71.
It is not disputed that the parties separated when [X] was approximately 6 months old, she having been born in June 2000.
Ms Montague contended that Mr Potter consented to her relocating. He denies that he ever gave such consent. She said that upon being offered a job at [B], and before she accepted it, she consulted with her older daughters (from an earlier relationship) and with Mr Potter.
Both parents claim that the other has inappropriately “coached” [X].
Ms Montague said that she would not relocate without [X].
Ms Dawson noted in her Report (para.28) that if the relocation does not proceed, then “a shared [care] arrangement is likely to be undertaken eventually.”
On the basis of the above summary, where (a) [X] has a genuinely good relationship with both parents (with her Mother remaining as her main carer), and (b) Mr Potter currently cares for [X] 5 nights per week, the primary issue for determination is whether the application to relocate should be allowed. A central consideration in this regard of course is whether such a move would be in [X]’s best interests.
The remainder of these reasons proceeds as follows: (i) proposals of each of the parties, (ii) the evidence of the parties, (iii) the evidence of Ms Dawson. The final analysis relates to the “legislative pathway” as well as jurisprudential principles concerning relocation.
C. Proposals of the Parties
Both parties handed up a Minute of Orders sought on the first day of the hearing.
Mr Potter sought the following orders:
1. The Mother and Father have equal shared parental responsibility for [X] born [in] 2000.
In the event that the Mother remains living in Canberra:
2.Save for Orders 3 and 4 hereof, [X] will live with her Father from after school or day care on Friday until before school or day care the following Friday and each alternate week thereafter and with her Mother from after school or day care on Friday until before school or day care and each alternate week thereafter.
3.[X] will live with her Father for half of the Christmas/Summer school holidays being the first half in the years ending in an even number and the second half in the years ending in an odd number and will live with her Mother for half of the Christmas/Summer school holidays being the second half in the years ending in an even number and the first half in the years ending in an odd number.
4.[X] will spend Mother’s Day with her Mother from 9:00am to 5:00pm and Father’s Day with her Father from 9:00am to 5:00pm.
In the event that the Mother relocates to [B]:
5.(a) [X] will live with her Father.
(b) [X] will spend time with her Mother as follows:
(i) For two out of three weekends with the Mother to collect [X] after school or day care in Canberra at the commencement of contact and the Father to collect [X] from the Mother’s home in [B] on Sunday afternoon at 4:30pm during daylight saving time and 3:30 pm during eastern standard time at the conclusion of contact;
(ii)On Mother’s Day with changeover as agreed in writing between the parties;
(iii)By telephone, email and webcam at any reasonable time.
Ms Montague sought:
1.The Mother and child be permitted to relocate to [B] in the state of New South Wales.
2.The child [X], born [in] 2000, live with the Mother at [B] in the State of New South Wales.
3.The Mother be restrained from permitting the child to have any contact with Mr M.
4.The child shall spend time with the Father during term time each alternate weekend from 5:30pm Friday until 5:00pm Sunday.
5.The child shall spend half of the Christmas/Summer school holidays with the Father being the first half of the school holidays in even numbered years and the second half in odd numbered years.
6.The child shall spend nine nights each mid-year school term holiday with the Father such time to commence at 5:30pm after school in odd numbered years and 5:30pm on the Friday that falls in the middle of the school holiday period in even numbered years.
7.If the Mother is not permitted to relocate then the child shall spend time with the Father during term time each alternate Friday until each alternate Wednesday and for one half of all school holidays being the first half of holidays commencing in odd numbered years and the second half of the holidays commencing in even numbered years.
D. Evidence of the Parties
Summarily stated, the evidence of the parties may be taken as follows.
Evidence of Mr Potter: In his affidavit filed on 15th September 2008, Mr Potter confirmed that he had bought a house in Queanbeyan specifically so as to be closer to [X]’s school and day-care (for after school). He had previously lived in the northern suburbs of Canberra.
In the same affidavit (para.18), he deposed to a conversation with
Ms Montague in February 2008 in which he contended that [X] has been continually asking about `doing week about’ to which
Ms Montague is alleged to have replied in words to the effect that such an arrangement would be acceptable if Mr Potter increased financial assistance by paying one third of [X]’s costs until the middle of the year.
Mr Potter then records Ms Montague confirming her agreement to move to a shared-care arrangement upon his agreement with making the increase in financial contribution.
Also in the same affidavit (para.21), Mr Potter deposed to a conversation with Ms Montague on 5th June 2008 in which (he said) she advised him that she was moving to [B]. He said that he remonstrated with her about the previous agreement to move to a shared-care arrangement, to which (he said) she advised that that agreement “had changed.”
Mr Potter deposed also to further conversations with Ms Montague about him seeking legal advice regarding his options in the light of the proposed relocation of the Mother, with [X], to the South Coast.
Mr Potter protested in his affidavit, and in his oral evidence, that (a) he did not agree to any relocation, (b) it would not be in [X]’s best interests to move, and (c) [X] was well-settled in school in Canberra and with long-time friends and carers in the ACT.
The above matters put into appropriate context his oral evidence, which dealt with the following.
He confirmed (as already noted) that he has a strong relationship with his daughter, [X]. He also, quite readily, acknowledged that there were some recent “communication issues” with Ms Montague but said that otherwise they had a reasonably good working relationship, including communication.[5] He also indicated that he thought that, once the litigation was over, in time, the reasonably good relationship with
Ms Montague would resume.
[5] These matters are canvassed at Transcript (10th November 2008) pp.11-14 & 21.
He also conceded that there was one area of mistrust with
Ms Montague. That was in relation to her relationship with Mr M. However, because he is now [unfortunately] dead, I need not linger on this aspect.
Mr Potter readily agreed that [X] was rather torn between her parents, which was expressed or manifest in her statements to both parents wherein she indicated her preference for what each parent wished to happen. That is to say that [X] has indicated to Mr Potter that she wished to remain in Canberra, but also to Ms Montague that she wished to be with her Mother and liked the thought of being down the coast.
Mr Potter confirmed that he knew that Ms Montague wished to move down to the South Coast but that he had protested to her about her doing so.[6]
[6] See Transcript (10th November 2008) pp.16-18.
For my part, I have no doubt that Mr Potter consistently confirmed to Ms Montague that he did not wish her to move to the South Coast with [X].
He was, and remains, very concerned about the quality of his relationship with [X] should she move away from the ACT region.
His evidence in this regard is not, in my view, in any way tainted by his indication of earlier discussions in earlier years of he, and
Ms Montague (with [X] of course), moving separately “up the coast” so that a shared-care arrangement could be put in place.[7]
[7] See this discussion at Transcript (10th November 2008) p.19.
Mr Potter confirmed that, especially in day-to-day matters,
Ms Montague is a good Mother to [X].
There seemed little challenge to his contentions that he regularly attended school functions and was otherwise actively engaged in [X]’s life.
I accept Mr Potter’s evidence as genuine on all fronts, not least his assertion that he has a strong relationship with [X], and his recognition of Ms Montague as a good Mother to [X].
I also readily accept his evidence in relation to his very earnest concern to ensure that there is no risk of his relationship with [X] being diminished, particularly by her relocating to the [B] area.
His protest and seeking legal advice are recorded in Ms Montague’s affidavit filed on 9th July 2008 (para.40).
In my view, such things are relevant to my consideration of, among other things, s.60CC(3) (b), (c), (d) and (i), as well as s.60CC(4).
Evidence of Ms Montague: Ms Montague’s evidence can be dealt with almost as summarily as that of Mr Potter.
She quite readily acknowledged that she had a good “workable arrangement” or relationship with Mr Potter regarding [X], at least up until the conversation between them on 5th June 2008 when she advised him that she intended to relocate to the [B] area.
Very fairly, Ms Montague acknowledged that there have been few formal orders made in relation to [X] since the parties separated in 2001. She acknowledged that this was because both parties had [X]’s best interests at heart.[8] These matters are particularly relevant to the considerations set out in s.60CC(3)(b), (c) and (i), as well as s.60CC(4).
[8] Transcript (10th November 2008) pp.33 & 36.
Similarly, Ms Montague recognised (also very fairly) that Mr Potter wished to spend more time with [X], and [X] with him.[9]
[9] Transcript (10th November 2008) p.35.
It was also very clear that Ms Montague had no difficulty, now or in the future, with Mr Potter about matters of changeover or, significantly, regarding communication concerning major long-term issues concerning [X].[10]
[10] Transcript (10th November 2008) p.37.
More often than not, Ms Montague’s evidence was `matter of fact’ and either prefaced or concluded by reference to what was in [X]’s best interest. This included a scenario put to her in cross-examination in the event that orders were made for an equal shared-care arrangement with both parents living in Canberra.[11] I accept her significant capacity in this regard to put [X]’s interest above her own.
[11] See, for example, Transcript (10th November 2008) p.38.
I also accept her evidence, and appreciated her candour, regarding her lack of expectation of Mr Potter’s level of reaction to her indication that she proposed to relocate.[12] I also took her evidence to indicate that she conceded, albeit somewhat reluctantly, that Mr Potter had indicated to her that he was seeking legal advice about her announcement of her plan to relocate.[13] Indeed, as she said in evidence, she expected there to be a period or process of negotiation in relation to her proposed move and Mr Potter’s time with [X].
[12] Transcript (10th November 2008) p.59 & 62.
[13] Transcript (10th November 2008) p.58.
In the course of cross-examination Ms Montague acknowledged that (a) [X] and her Father have a “fabulous relationship”, and (b) she was not proposing to move regardless of the impact on [X]’s relationship with Mr Potter.[14]
[14] Transcript (10th November 2008) p.60.
For the sake of completeness, I note that in her affidavit filed on 9th July 2008 (para.38 ff.) Ms Montague contended that she noticed an advertisement for a job as part of a team as a [health] professional, for which she is formally qualified and experienced. She also indicated that she grew up in the [B] area and always wanted to return to `the coast.’
She said that her three daughters (two from an earlier relationship, now aged 20 and 19 years, and [X]) were all enthusiastic about the possibility of such a move.
Ms Montague’s “job” on the South Coast was the subject of the later application to adduce further evidence. That evidence came from
Mr C’s affidavit, which was filed in Court on 25th June 2009.
Mr C deposed to Ms Montague essentially being ineligible for the position to which she had referred. Because of the decision to which I have come on the basis of the other evidence, I do not propose, nor do I need, to consider the “job” situation of Ms Montague on the South Coast. Nor do I need to make any ruling on the submission on behalf of Mr Potter that Ms Montague’s evidence at the trial was tainted by `fraud’ in relation to her job application.
It is sufficient for current purposes to note the following with respect to Ms Montague’s `job down the coast.’
Generally, I accept her desire to move to be genuine. I also have little difficulty accepting that her view of the availability of the job was also genuine but perhaps somewhat coloured by her desire to move, and that she did not anticipate any concern or opposition from Mr Potter.
Be that as it may, Mr Potter did object for the reasons noted, and there have been problems raised about the availability of the job.
E. Evidence of Family Consultant
Evidence of Ms Dawson: Ms Dawson’s evidence, in her Report and at the trial, was brief, and understandably so.
For example, at trial she observed and agreed with the proposition that [X] was closely allied with her Mother but also with close bonds with her Father. She also observed that [X] wanted to be “fair” to both of her parents. At the same time, it was also seemingly well recognised that, to some degree, [X] was confused not only about the Court process but also how she might manage to straddle the opposing or competing orders sought by her parents.
As Ms Dawson observed, [X] is caught between “two worlds.”[15]
[15] Transcript (11th November 2008) p.74.
In her Report (para.26), Ms Dawson said: “This couple are to be congratulated on their previous parenting as [X] is generally a balanced and confident child.”
Earlier, Ms Dawson recorded [X] saying to her (Report: para.22): “Her message to the Judge was `I don’t know what to say. It would be nice for me to stay and it would be nice for me to go.’”
[X]’s delicately poised comment reflects, to some degree, the balance to be achieved here in determining what orders are in her best interests, without ignoring the important interests of her parents. The resolution of such a denouement can only be achieved by treading the knotty path known as the `legislative pathway.’
F. Relocation Jurisprudence & the Legislative Pathway
I will not prolong these reasons by retailing the always burgeoning jurisprudence on relocation. It is sufficient to note my summary in F v F and the multiple authorities marshalled and discussed there,[16] supplemented by, among other cases, the Full Court decisions in Sealey & Archer and Rosa & Rosa.[17]
[16] (2008) 38 Fam LR 52 at [7] – [8] and the cases there cited. More recently, see my discussion in Burke & Burke [2009] FMCAfam 984.
[17] Respectively [2008] FamCAFC 142 and [2009] FamCAFC 81. See also the helpful and important academic studies that deal with relocation, such as Professor Parkinson in “Freedom of Movement in an Era of Shared Parenting: The Differences in Judicial Approaches to Relocation” (2008) 36 Federal Law Review 145.
Of particular significance here, it seems to me, is the tension between the principles that relates to a parent’s freedom of movement but which must give way to the best interests of the child as the paramount consideration. The majority judgment of the Full Court in Taylor v Barker (Bryant CJ & Finn J) provides a helpful discussion of such considerations.[18] So too is the discussion by Boland J in Morgan v Miles relevant to the current matter.[19]
[18] (2007) FLC ¶93-345 at [84] – [113].
[19] (2007) 38 Fam LR 275, especially at [72] – [81].
No less important is the principle, discussed in many cases that are distilled in F v F, that a parent who wishes to relocate is not required to establish “compelling reasons” for doing so.
I turn to “the pathway.”[20]
[20] See Goode v Goode (2007) 36 Fam LR 422, especially at [10], [47], [48], [56], [81] & [82], and Keach & Keach (2007) FLC ¶93-353 at [24] ff respectively.
By way of introduction to this part of the reasons, I adopt respectfully (and not for the first time), Brown J’s summary of basic principle in Mazorski v Albright,[21] which provides a helpful overview of the Court’s responsibilities under Part VII of the Act. Her Honour’s not infrequently cited “twin pillars” description, of children having a meaningful relationship with both parents and the need to protect children from physical and psychological harm, neatly summarises the general principles that are in tension in these proceedings. Her Honour’s “twin pillars” is a more than convenient “short-hand” expression, which is teased out later, in relation to the “legislative pathway.”
[21] (2007) 37 Fam LR 518 at [3] – [6].
I should immediately note that, in my view (especially having regard to Mr M no longer being a factor in the proceedings), there are no protection issues in play here.
The evidence points strongly to there being an order that confirms the parents to have equal shared parental responsibility.
In large measure, in my view, this case turns on the existing meaningful relationship which [X] has with both of her parents. This is also to anticipate my concern at the risk to the existing meaningful relationship should the current arrangements be disturbed, as they would if relocation was granted. The risks, in my view, are especially acute here given [X]’s age and her sensitivity to and awareness of the contest between her parents. Such matters were noted prominently by Ms Dawson – in my view, rightly so.
At this juncture, it is instructive and important to consider, therefore, albeit somewhat briefly, Brown J’s discussion of “the concept of a meaningful relationship” in Mazorski v Albright, to which I have already referred. Beginning at [20], through to [26], her Honour outlined a range of considerations. I set them out below, and respectfully adopt what Brown J said.[22] Her Honour observed:
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[22] Brown J’s remarks were recently endorsed by the Full Court in McCall & Clark (2009) FLC ¶93-405 at [121].
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA(2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[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.
I have already noted Ms Dawson’s evidence, which I accept (indeed, it was not disputed by any of the parties) that [X] has a meaningful and strong relationship with both parents. As she also observed, they are to be commended for their parenting of [X].[23]
[23] Should it need to be stated, clearly both parents are more than capable of providing for [X]’s needs, as prescribed by s.60CC(3)(f).
[X]’s views are equivocal. This is understandable for the reasons already given. However, the Court can take note of the fact that, whatever her “confusion”, in large measure it stems from the fact that she has such a close relationship with both parents. In such circumstances, and given her age, in my view the Court should be very slow to do anything that might jeopardise the “fabulous relationship” she currently has with Mr Potter. A move away from Canberra would, in my view, pose such a risk. The risks would be emotional – and much more.[24] This is also to say that such a move would not be in [X]’s best interests.
[24] Such matters are not unrelated to the consideration of s.60CC(3)(g).
I am also conscious of the extra financial and time factors involved in such a move to the south coast, which are matters for consideration under s.60CC(3)(d) and (e).
I am more than satisfied, on the evidence, that both parents have significant capacity to work together for [X]’s best interests. They have been able thus far, and doubtless will be able to in the future, to provide for all of [X]’s needs. Both parents also clearly acknowledge and exercise appropriately their parental responsibilities in relation to [X].
Conclusion
In my view, the orders that are in [X]’s best interests are those as sought by Mr Potter. They also readily satisfy the requirements of s.65DAA.
It may be of course that, as [X] grows, her parents may be able to negotiate all manner of things for the future, including relocation. But such things are for another time and place.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: J. Curtis
Date: 27 November 2009
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