PRIDE & PLASTOW
[2018] FCCA 1992
•3 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PRIDE & PLASTOW | [2018] FCCA 1992 |
| Catchwords: FAMILY LAW – Parenting – application by Mother to relocate from country New South Wales to north Queensland to be near her family – considerations relevant to best interests of the child moving with the Mother (even on a deferred basis) or remaining in country New South Wales where the Mother has few supports and feels isolated – Application to relocate granted but deferred for a short period to consolidate the child’s relationship with her Father. |
| Legislation: Family Law Act 1975, ss.60CC(3)(a) – (l), 65DAA |
| Cases cited: AMS v AIF (1999) 199 CLR 160 Wiley & Wiley [2008 FamCAFC 153 |
| Applicant: | MR PRIDE |
| Respondent: | MS PLASTOW |
| File Number: | CAC 1219 of 2016 |
| Judgment of: | Judge Neville |
| Hearing dates: | 12 – 13 September 2017 |
| Date of Last Submissions: | 6 November 2017 & 20 June 2018 |
| Delivered at: | Canberra |
| Delivered on: | 3 August 2018 |
REPRESENTATION
| Solicitor/Advocate for the Applicant: | Mr J Naumann |
| Solicitors for the Applicant: | Walsh & Blair Lawyers, Wagga Wagga |
| Counsel for the Respondent: | Ms M Davis |
| Solicitors for the Respondent: | Farrell Lusher Solicitors, Wagga Wagga |
ON A FINAL BASIS, THE COURT ORDERS BY CONSENT THAT:
The parties have equal shared parental responsibility for the child, [X] (born: 2010).
ON A FINAL BASIS, THE COURT FURTHER ORDERS THAT:
The child live with the Mother.
The Mother be permitted to relocate with the child to within 50kms of Town B, Queensland, but not before the beginning of 2020.
Absent agreement in writing between the parties, until relocation (or if the Mother ultimately does not relocate) the child shall spend time with the Father as follows:
(a)from after school each alternate Friday until before school on Tuesday; and,
(b)for one overnight in the off-week, with that night to be agreed in writing between the parties, and, in the absence of agreement, it will be Wednesday night.
Following relocation, the child spend time with the Father as follows:
(a)during the first and third term school holiday periods from 6:00pm on the date following the last day of the preceding school term to 8:00am on the Saturday immediately preceding the start of the following school term.
(b)during the Summer school holiday period for a period of four weeks, being the first four weeks of the holiday period in even numbered years and the last four weeks of the holiday period in odd numbered years.
(c)by telephone/skype/FaceTime, each Wednesday and Sunday between 7:00pm and 7:30pm, with the Father to initiate the call and the Mother to ensure that the child is in a quiet place without distraction and available to take the Father’s call.
(d)should the father travel to the Town B area, for the weekend from after school Friday until before school Monday, with such time to occur no more than once each school term and the Father to provide the Mother with 14 days’ notice of his intention to spend such time with the child.
(e)at all other times as agreed between the parties.
The child shall speak to the Mother by telephone/Skype/FaceTime each Wednesday and Sunday between 7:00pm and 7:30pm, when the child is spending time with the Father in accordance with Orders 5 (a) and (b).
The Mother be responsible for all costs associated the child’s travel to and from Town C, for the purposes of spending time with the Father, for the first five years following relocation to Queensland.
After the first five years following relocation, travel costs associated with the child spending time with the Father in Town C shall be as agreed in writing between the parties. If no agreement can be reached, agreement is to be facilitated via mediation.
That each parent shall authorise any day care or school that the child shall attend to advise the other parent of any information they require, copies of all school reports, examples of school work, school newsletters, notification of all school activities, parent/teacher nights, and inform the other parent of any emergency, remedial or correctional treatment required by the child as soon as is practicable.
Each parent shall authorise any treating medical practitioner, dental practitioner, hospital or medical practice that the child shall attend from time to time to provide to the other parent any information regarding the child.
If the child falls ill such that one of the parents takes the child to the doctor, that parent shall notify the other parent of the doctor’s contact details, any medication prescribed and any treatment recommended. Each parent shall administer such medication when it falls due, adhere to any medical treatment plan and follow any directions from the doctor for the child. Each parent is then restrained from seeking alternate medical treatment unless the child’s condition appears to deteriorate.
In the event that the child suffers any illness or injury requiring medical attention or hospitalisation whilst in the care of either parent then the parent shall immediately notify the other parent of such illness and the name of the medical practitioner or hospital to which the child has been taken.
Each parent shall advise the other parent of any change of any landline or mobile telephone numbers within 24 hours of that change.
Each parent shall notify the other parent of any change of address within 7 days.
Neither parent, their agents and servants shall denigrate the other parent to the child, in front of the child or within the child’s hearing.
IT IS NOTED that publication of this judgment under the pseudonym Pride & Plastow is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WAGGA WAGGA |
CAC 1219 of 2016
| MR PRIDE |
Applicant
And
| MS PLASTOW |
Respondent
REASONS FOR JUDGMENT
Introduction
This parenting matter concerns the making of Orders that are in the best interests of now almost 7½ year old [X]. This is in circumstances where the Respondent Mother seeks to relocate to Town D (near Town B) in Queensland. She seeks this because, she says, she is very much without support in Town C in country New South Wales, indeed, she says she feels “isolated” since her family moved to Queensland in 2016.
The experienced Family Consultant, Ms S, said in her oral evidence that the Mother’s isolation, on the one hand, and on the other, her likely happiness and less stress if she was permitted to relocate to be with or near her family in Queensland, was “the crux of the matter.”[1] This was in circumstances where, in Ms S's Report (Exhibit A), she had recommended, on balance, that the Mother remain living in the Town C region and not relocate to Queensland to be with her family.
[1] See Transcript (14th September 2017) p.8.
In contrast to the Mother’s situation, the Father has re-partnered, is now the step-Father of two young boys [A] (aged 8 years or thereabouts) and [B] (aged 6), and has another child, [C], who was born in 2017.
The parties lived together from approximately 2006 until 2010, the latter being the year in which [X] was born.
The parties have a strained co-parenting relationship. Unsurprisingly, the Father wants the Mother to remain in the Town C region and, in consequence, for the child to live in a “week-about” arrangement.
For the reasons that follow, and having particular regard to the comments of the majority judgment of the Full Court (Bryant CJ and Finn J) in Taylor v Barker, and the earlier remarks of Kay J (who was sitting as the Full Court) in Godfrey & Sanders, and equally so by Dessau J in M v S to similar effect, the Mother should be able to relocate with [X] to Queensland, but not until the beginning of 2020.[2] This is to ensure that (a) the child will be old enough to travel relatively independently between the residences of both her parents, and (b) [X]’s already strong relationship with her Father is even more securely founded, as well as giving her time to establish a close bond with her baby sibling.
[2] Taylor v Barker (2008) 37 Fam LR 461; Godfrey & Sanders (2007) 208 FLR 287; [2007] FamCA 102; M v S (2008) 37 Fam LR 32. All of the relevant comments referred to here are set out in full later in these reasons.
In my view, it would be untenable for this young, 30 year old Mother to be forced to exist in a modest-sized country town (i) for a significantly long period, (ii) with no prospect of joining her family, and (iii) of her daughter being unable to spend very regular, quality time with her small family, which the Father and his family have enjoyed for quite some years, where (a) she has no family, (b) she has felt isolated for some time and yearns to be with her family in Queensland for support, and (c) she was strongly vilified via some cruel Facebook messages which caused her hurt and distress by the Father, his partner, and their friends, many of them in the Town C area. Presumably, these added to her anxiety and sense of isolation – a young, single Mother harassed by the Father, his partner, and their friends in the general area. To require her to remain in Town C indefinitely would effectively condemn her to a prolonged period of growing unhappiness, and almost certainly ensure that her isolation and anxiety increase over time, both of which will likely impact adversely on her capacity to parent, and, equally, to co-parent with the Father who, contrary to the Mother, has a flourishing life with his partner and growing family. The contrast between the positions of the parents is quite stark and unfortunate. None of this is said critically, of course. It is simply and essentially a statement and recognition of the respective positions of the parties, one of whom is placed very fortunately and very favourably, while the other is currently placed significantly less so.
It is also not without significance that, at one stage, the Father had agreed to the Mother and child relocating. The Mother was entitled to believe, on the basis of what the Father had said more than once, that she would be permitted to relocate. He only changed his mind, on his own evidence, when the Mother, out of a sudden and desperate sense of isolation, over-stayed her time in Queensland.
Minute of Orders Sought by Applicant Father
The Applicant Father filed a Case Outline on 6th September 2017, which set out the following Orders sought:
1. That all previous parenting Orders be discharged.
2. That that parties have equal shared parental responsibly in consultation with one another for making decisions on major long-term issues relating to [X], born 2010 (age 6) (“the Child”).
3. That the Mother have sole parental responsibility for making decisions of the day to day issues when the Child lives with her, and the Father have sole parental responsibility for making decisions of the day to day issues when the Child lives with him.
4. That the Child live with the father:-
4.1 during school terms each alternate week:-
From date of these Orders and until the conclusion of Term 4 in 2017
4.1.1 commencing from the date of these Orders, from after school Friday (or 3pm if a non-school day) to following Wednesday before school (or 8.30am if a non-school day);
From the conclusion of Term 4 in 2017 to the conclusion of Term 3 in 2018
4.1.2 from after school Friday (or 3pm if a non-school day) to the following Thursday before school (or 8.30am if a non-school day);
From the conclusion of Term 3 in 2018 (15 October)
4.1.3 from after school Monday (or 3pm if a non-school day) to the following Monday before school (or 8.30am if a non-school day);
4.2 during the Christmas school holidays:-
4.2.1 for one half of the Christmas school holiday period, being the second half in even years, and the first half in odd years;
4.2.2 for the purpose of Order 4.2, the first day of the Christmas school holiday period shall be the last school day of the year and the last day of the Christmas school holiday period shall be the last full day of the holidays including any pupil free days;
4.2.3. for the purpose of this Order, should there be an unequal number of nights in any Christmas school holiday period, the additional night shall be added to the first half of each relevant Christmas school holiday period;
4.3 during the Term 1, 2 and 3 school holidays:-
4.3.1 in even years, for the first half of the school holidays being from after school Friday to the following Saturday at 2.00 pm; and
4.3.2 in odd years, for the second half of the school holidays, being from the second Saturday at 2.00 pm until Monday before school or Tuesday if Monday is a pupil free day;
4.4 should the Child not be living with the Father, on Father’s Day from 9.00 am to 6.00 pm;
4.5 should the Child not be living with the father, at Easter, in even years, from Easter Saturday at 12.00 pm to Easter Monday at 12.00 pm;
4.6 should the Child not be living with the Father, on Father’s Birthday from 9.00 am to 6.00 pm;
4.7 should the Child not be living with the Father, for not less than 2 hours on the Child’s birthday should it fall on a school day, and not less than 4 hours if the day should fall on a weekend with the same arrangement to apply to the Mother if it is a day that the Child is not in her care;
4.8 at such other times as agreed between the parties;
5. That changeovers outside of the school routine take place on the basis that the Mother delivers the Child to the Father’s residence at the commencement of time and the Father returns the Child to the Mother’s house at the conclusion of time.
6. That the Father’s time with the Child be suspended:-
a. on Mother’s Day from 9.00 am to 6.00 pm;
b. on the Mother’s Birthday, if not already spending time with the Child from 9.00 am to 6.00 pm.
7. In the event of the Child being hospitalised or requiring medical attention the parent spending time with that Child shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.
8. That the Mother be restrained from making the permanent residence of the Child any location more than 20 km from Town C, in the State of New South Wales.
9. That the Mother be prohibited from again removing the Child.
10. That the Father is authorised by this Order to obtain any information from any treating practitioner, hospital or medical practice that the Child shall attend from time to time.
11. Each party shall be entitled and shall authorise where necessary from the school(s) that the Child may attend to provide each party with copies of all school reports, school newsletters, notification of all school activities, parent teacher nights, and inform each parent of any emergency, remedial or correctional treatment as soon as practicable, and that each parent is entitled to attend school events and parent/teacher appointments.
12. That each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline (if applicable) and mobile and advise the other party of any changes to these details within 7 days of such change occurring.
13. That each party shall refrain from making critical or derogatory remarks about the other in the presence or within the hearing of the Child and each party shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other in the presence or within the hearing of the Child.
14. That pursuant to Sections 62B and 65DA of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Minute of Orders Sought by Respondent Mother
The Respondent Mother filed a Case Outline on 7th September 2017, which set out the following Orders sought:
1. That the parties have equal shared parental responsibility for the child, [X], born 2010 (hereinafter referred to as ‘the child’).
2. That the mother be permitted to relocate the residence of the child to within 50 kilometres of Town B, Queensland.
3. That the child live with the mother.
4. That the child spend time with the father as follows:-
a. During the first and third term school holiday periods from 6:00pm on the day following the last day of the preceding school term to 8:00am on the Saturday immediately preceding the start of the following school term.
b. During the summer school holiday period for a period of four weeks being the first four weeks of the holiday period in even numbered years and the last four weeks of the holiday period in odd numbered years.
c. By telephone/skype/FaceTime, each Wednesday and Sunday between 7:00pm and 7:30pm with the father to initiate the call and the mother to ensure that the child is in a quiet place without distraction and available to take the father’s call.
d. Should the father travel to the Town B area, for the weekend from after school Friday until before school Monday, with such to occur no more than once each school term and the father to provide the mother with 14 days’ notice of his intention to spend such time with the child.
e. At all other times as agreed between the parties.
5. That the mother be responsible for all costs associated with the child’s travel to and from Town C, and the arrangements of same, for the purposes of the child spending time with the father in accordance with Orders 4(a) and 4(b) above.
6. That the child shall speak to the mother by telephone/skype/FaceTime each Wednesday and Sunday between 7:00pm and 7:30pm, when the child is spending time with the father in accordance with Orders 4(a) and 4(b) above.
7. If the Court is not minded to permit the mother to relocate the child’s residence pursuant to Order 2 above, in the alternative, the mother seeks the following Orders:-
a. That the child live with the mother;
b. That the child spend time and communicate with the father as follows:-
i. Each alternate weekend from the conclusion of school on Friday until the commencement of school on the following Tuesday;
ii. For the first half of each term school holiday period in even numbered years with such time to commence at 10:00am on the first Saturday of the school holiday period and conclude at 10:00am on the middle Saturday of the school holiday period;
iii. For the second half of each term school holiday period in off numbered years with such time to commence at 10:00am on the second Saturday of the school holiday period and conclude at 10.00am on the last Saturday of the school holiday period;
iv. For one half of the long summer school holiday period, being for the first half in even numbered years and for the second half in odd numbered years;
v. During the Easter long weekend, from after school or 3:15pm on Thursday to before school or 9.00am on Tuesday in odd numbered years;
vi. From 9:00am to 5:00pm on Father’s Day if the child is otherwise spending time with the mother;
vii. For a period of not less than 2 hours on the child’s birthday if the day should fall on a school day and for not less than 4 hours if the day should fall on a weekend or school holiday; and
viii. At such other times as agreed between the parties.
c. That the father’s time with the child be suspended as follows:-
i. For the second half of each term school holiday period in even numbered years and for the first half in odd numbered years;
ii. For one half of the long summer school holiday period, being for the second half in even numbered years, and the first half in odd numbered years;
iii. During the Easter long weekend, from after school or 3:15pm on Thursday to before school or 9.00am on Tuesday in even numbered years;
iv. From 9:00am to 5:00pm on Mother’s Day, if the child is otherwise spending time with the father;
v. For a period of no less than 2 hours on the child’s birthday, if the day should fall on a school day and for not less than 4 hours if the day should fall on a weekend or school holiday; and
vi. At such other times as agreed between the parties.
d. That any changeovers that do not occur at McDonald’s in Town C.
8. That each parent shall authorise any day care or school that the child shall attend to advise the other parent of any information they require, copies of all school reports, examples of school work, school newsletters, notification of all school activities, parent/teacher nights, and inform the other parent of any emergency, remedial or correctional treatment required by the child as soon as is practicable.
9. Each parent shall authorise any treating medical practitioner, dental practitioner, hospital or medical practice that the child shall attend from time to time to provide to the other parent any information regarding the child.
10. If the child falls ill such that one of the parents takes the child to the doctor, that parent shall notify the other parent of the doctor’s contact details, any medication prescribed and any treatment recommended. Each parent shall administer such medication when it falls due, adhere to any medical treatment plan and follow any directions from the doctor for the child. Each parent is then restrained from seeking alternate medical treatment unless the child’s condition appears to deteriorate.
11. That in the event that the child suffers any illness or injury requiring medical attention or hospitalisation whilst in the care of either parent then the parent shall immediately notify the other parent of such illness and the name of the medical practitioner or hospital to which the child has been taken.
12. That each parent shall advise the other parent of any change of any landline or mobile telephone numbers within 24 hours of that change.
13. Each parent shall notify the other parent of any change of address with seven (7) days.
14. That neither parent, their agents and servants shall denigrate the other parent to the child, in front of the child or within the child’s hearing.
15. That the father provide for the child an appropriate child restraint that complies with, and use such child restraint in accordance with, the National Safety Guidelines.
Evidence of the Father
The Father’s evidence, limited as it was (as was the Mother’s also), summarised was as follows.
The Father works as a (occupation omitted) at a (employer omitted), on Mondays from 5.30am until 2.30pm, and the rest of the week between 6am and 3pm. He works one weekend in five.
He confirmed that his recreation of hunting did not usually involve the use of guns but rather knives.[3] He said that he did not have a gun licence himself. There were never any children present if ever guns were used.[4]
[3] There are impressive if not graphic photographs of some of the children with dead animals; those photographs were only “marked for identification”: MFI1.
[4] Transcript (12th September 2017) 14 (hereafter “T” followed by the page number unless otherwise specified).
He said that between 2011 and early 2016, he and the Mother had a regular, flexible arrangement for the child to spend time with the Father.[5] He acknowledged that his relationship with [X] was still developing in early 2016, which is also when he started to live with his new partner, Ms D. Shortly thereafter, he asked the Mother whether the time-with arrangements could move to “50/50.”[6] He confirmed that he was angry with the Mother about denying him this equality of time. He said (in my words) that this anger dissipated after he received legal advice about what would be appropriate “time-with” arrangements for the child in the light of her young age at the time.[7]
[5] T 16.
[6] T 17.
[7] See the discussion at T 19 – 21.
There was an interesting discussion with the Father regarding his comments and disposition towards the Mother wanting to relocate when the maternal Grandmother moved to Queensland.
Put shortly, the Father confirmed that when the Mother advised him that [X]’s Grandmother was moving to Queensland, and she said to the Father that she wanted to move to Queensland also, the Father said to her words to the effect “You’ve got to do what you’ve got to do.” At this time, the Father was not having specific or “entrenched” time with the child. He confirmed further that, at that time when he indicated to the Mother that she could move to Queensland, he was thinking in terms of what was “for the best interests of [X].” On the basis of these comments, and others where he said to the Mother “I think you should go”, he also agreed that the Mother was entitled to have the belief that he was agreeing (or would agree) to her relocating to Queensland with the child.[8]
[8] T 26.
Then the Father changed his mind. He did so, he said, because the Mother and the child had gone to Queensland for a visit with her family and stayed; this was in July 2016. He confirmed that, prior to this happening, he was open to agreeing to the Mother relocating to Queensland.[9] There followed an extended discussion with the Father about (a) him knowing or having, through his then lawyer, relevant contact details for the Mother in Queensland, and (b) the Father writing an “open letter” to his daughter on Facebook.[10] The “letter” was in the following terms as per the Transcript:
Yes, some monsters have filled your head and told you to hate me and I don’t love you. But they’re wrong baby. They’re the ones who ran away and dragged you to Queensland, away from your family and friends and the life that you loved here, to fulfil their needs, and only have their best interests at heart and not yours. I can’t wait till you’re old enough to realise this, chook, and are back in my life. I will fight for you till I take my last breath. Daddy loves you, chicken, and always will, my little princess.
[9] T 27.
[10] The text of the “letter” to the child is set out, among other things, at T 30.
The Father confirmed that he was upset when he wrote this “letter.” This Facebook message obviously was not intended to be seen by the child, as the Father and Mother were not “friends” on Facebook. However, the Mother and the Father’s new partner, Ms D, were such “friends.” Ms D re-posted it, which led to the Mother seeing it, as did quite a number of other people in Town C.[11] In the light of this Facebook posting, there was the following exchange with the Father during the trial (emphasis added):[12]
[11] The list of people who had commented, favourably, on the Father’s “post” are listed at T 37 – 38.
[12] T 36.
.. Now, you knew about all of that because you were already tagged in these posts, weren’t you?‑‑‑Yes. I – I knew he said that.
So you were being notified about the ongoing conversation because you were part of that ongoing conversation?‑‑‑Correct.
You had liked it. You left it little emojis. And you had made comments?‑‑‑Correct.
And this spurred you to comment. You said:
What? WTF? How is this shit, mate? It’s to my daughter.
And Ms D says:
Well, she should have done the right thing, then.
And Mr B says:
Because anything you put on Facebook, they can have and use. Some people are not that nice these days. I have found it will help you in the long run. Trust me on that one.
?‑‑‑Because he was going through the same thing.
So, at that point, you tell his Honour, “I posted this not to get to her. I posted this for my own sense of feelings. I didn’t intend it to be for even [X] to see; it was for me to send out to the world. And I didn’t care either way that she saw it or not.” But at this point, somebody brings to your attention, “This is dangerous. Get it off”?‑‑‑Yes.
“Take it down”?‑‑‑Yes.
And your response is “No. I’m not doing anything wrong”?‑‑‑Correct. Yes. I didn’t think I was doing anything wrong by posting it.
So, at that point, can I suggest to you you couldn’t see the mother’s point of view in relation to the Facebook post?‑‑‑Sorry?
At that point, when you’re saying, “I’ve done nothing wrong” ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ you couldn’t see the mother’s point of view. You were only thinking about whether you had jeopardised yourself?‑‑‑I was thinking of myself. Yes.
So you weren’t thinking of the mother at that point at all, Ms Plastow?‑‑‑No.
Further to this discussion, the following series of questions/ propositions were put to the Father:[13]
[13] T 38 & 39. See also T 40.
Did it occur to you that you were effectively poisoning the waterhole?‑‑‑As in, sorry? I don’t understand.
You’re in Town C?‑‑‑Yes.
Most of these people are in Town C. You post on Facebook and everybody responds?‑‑‑Yes.
And they’re not saying, “Oh, look, mate, she might have her reasons. Better talk to her,” are they?‑‑‑No.
They’re saying, “You can’t take away a father’s right.” They’re saying, “Don’t – some monsters”, “the lowest of the low”, “so-called mother”, “lowest of the low”, “the karma train should take her out”, “the worst shame on this mother”. None of that is particularly wonderful for Ms Plastow, is it?‑‑‑No, it’s not.
And you’re asking her to come back to Town C once you have distributed this message and encouraged this message?‑‑‑Yes.
So can you see how that might be quite challenging for her?‑‑‑I – I can see, yes.
But you weren’t thinking about any of that when you did it?‑‑‑No, I was ‑ ‑ ‑
You were just trying to hurt her ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ thinking of ‑ ‑ ‑
‑ ‑ ‑ weren’t you?‑‑‑No.
She had taken your child and she had hurt you, and you were trying to hurt her?‑‑‑No, I wasn’t.
HIS HONOUR: You were angry, though, were you not?‑‑‑I – I was upset and I was angry, yes. I was very upset.
So who was your anger and upset directed to?‑‑‑To no-one. I was – I – I was upset and angry for at least – for taking my daughter away. But the post was not directed for her to see and to – like, do you – what’s the word? Like, downgrade her.
…
That it seems to have set in train a whole range of negative comments directed towards the mother?‑‑‑ Correct.
Correct?‑‑‑Correct. Yes.
And you understand that that’s – to put it as neutrally as possible, that’s a very difficult circumstance for anyone to deal with, but especially where you and she, in general terms, are trying to work things out; there has been either a fork in the road or a bump in the road, however you want to describe it; and then, all of a sudden, all of this goes public out in the world of social media, with everyone else, as it were, all sort of piling on a scrum, which was not your original intention ‑ ‑ ‑?‑‑‑Mm-hm.
‑ ‑ ‑ but that’s what has happened?‑‑‑Yes. Yes.
MS DAVIS: And you were unable to see that even when somebody said to you, “Mate, delete this”?‑‑‑Yes, I was unable to see it then. Then it come to me, like, “Okay.”
HIS HONOUR: How soon afterwards did it – you know, did the ‑ ‑ ‑?‑‑‑A few days ‑ ‑ ‑
‑ ‑ ‑ did the light go on?‑‑‑ ‑ ‑ ‑ after Mr B had commented. Yes.
So was there anything that anyone else said to you that sort of made a light globe go on to say, “Mm, this is not good. I should shut it down”?‑‑‑Only the comment that Mr B made. And then, when I thought about it, I thought, “Right, shut it down.”
But that was a few days later, thought, wasn’t it?‑‑‑A few days later. Correct. Yes. Yes.
And although the Father said to the Family Consultant that at this time he did not know where the Mother and the child were, he confirmed in his evidence that (a) he knew the Mother was in Queensland (with her family), (b) he had the maternal Grandmother’s telephone number, and (c) the Mother had given her contact details to the Father’s [then] lawyers.[14]
[14] T 31 – 32.
The Father confirmed that the basic issues between the parties related to things like bus pick-up and drop-off times,[15] drop-off and pick-up arrangements for the child at gym,[16] and that even at the time of trial there were still “issues” of “communication”. This extended to contests regarding Mother’s Day “time-with issues”, as well as in relation to the Father’s use (or alleged non-use) of car seats.[17]
[15] T 43 – 45.
[16] T 45 – 47.
[17] T 48 – 50 & 70 - 72.
The Father confirmed that the Mother is a “good Mother.”[18] He also said, on more than one occasion, that if the Mother was permitted to relocate with the child to Queensland, he would “make it work”, acknowledging that he did not know exactly how he would do so.[19]
[18] T 51.
[19] See T 19, 53, 84.
The Father acknowledged that the Mother has confirmed that she will cover all air travel costs for the child between Queensland and the Father’s residence.[20] He confirmed that he could not see any single benefit for the child to move to Queensland with her Mother, but also fairly said that if the child wanted to move then he would support her.[21]
[20] T 54 – 55.
[21] T 60.
The Father reasonably acknowledged the Mother’s concerns about [X] going hunting; the concern was primarily about the safety of children around the hunting knives.[22]
[22] T 64 – 69.
He also acknowledged, to some degree, that the Mother felt intimidated by him. He said that he “understood that, yes, she could – could feel intimidated by me.” He further acknowledged that she has told the Father that she feels “intimidated” by him.[23]
[23] T 74 – 75.
The Father was then taken through an assault that involved him. The incident started out in a pub and led to the Father assaulting a person in a car at a service station a little distance away.[24] The Father characterised this as a “minor scuffle.”
[24] T 75 – 76.
Another area of troubled communication between the parties related to the Father’s access to the child’s school reports. I need not go into detail, save that the Mother had sent the Father a “screen shot” (she sent a MMS message) of the Report.[25]
[25] See T 76 – 80.
Later still in his cross examination the Father confirmed that he had a conversation with [X] in February 2016 about moving to a “week-about” time-with arrangement; he confirmed that the child said that she did not want this to happen. He also confirmed that he pressed the child about her response and indicated that he thought she was saying this because, at the time, her Mother was around. [26]
[26] T 81.
The Father also confirmed that in June 2016 the child had said to him that she did not want to see him any more. Understandably, the Father was upset at this comment and indication of his daughter’s views.[27] He confirmed further that the Mother had facilitated the child’s relationship with him, including making the child available even when there was a dispute between the parents, and also when [X] expressed a contrary view.[28] The only time or circumstance when the Mother had acted to make the child’s time with the Father impossible was when she extended her stay in Queensland in the hope of staying there, but even on this occasion, the Mother returned immediately to Town C when the Court ordered her to do so. He was concerned if the Mother and child went to Queensland that he and his wider family would miss out on time with [X].
[27] T 82.
[28] T 83.
By way of observation on the Father’s evidence: (a) he was basically a truthful witness, and a little “rough around the edges” in no bad or critical way; (b) he acknowledged, as far as he could, the plight of the Mother in her isolation but was, understandably, focussed on his own interests with the child, and those of his wider family; (c) I accept his evidence that, if the Court permitted the Mother and child to relocate, he “would make it work”; (d) his Facebook message (which were further “posted” by his partner) were hurtful of the Mother. It showed a lack of insight, seriously risked damaging and isolating the Mother further in Town C. That said, it was more likely than not an aberration that occurred out of his hurt and anger; and (e) he has a good and close relationship with [X]; he is a good and committed parent, and like most parents, he is still learning each day and working with, or within, his own limitations, some of which he recognises better today than he did a while ago.
In my view, in no unduly critical way, he has a relatively unsophisticated view of parenting, which at times tended towards equating his “time with” the child with a right or entitlement. That view often took priority over the Mother’s interests or other considerations. He showed, at times, some disregard for the Mother’s care of the child and the responsibility that she carried largely on her own for the early part of the child’s life.
Evidence of the Father’s Partner – Ms D
Ms D’s relatively brief evidence – summarised - was as follows. It focussed primarily on the re-posting of the Father’s Facebook message – the “open letter” to the child – and the comments that flowed from it.
Ms D said that she re-posted the Father’s “open letter” because her partner was hurt. She confirmed that, at the time, she did not care of its impact on the Mother. She said that she now sees that it would have hurt the Mother. And she acknowledged that many people commented on the re-posting and did so adversely to the Mother.[29]
[29] T 87 – 90.
As an observation: I accept Ms D’s degree of acceptance that her conduct could have/would likely have hurt the Mother. For my part, it is difficult to overstate the cruelty of the posting, and re-posting of the “messages” on Facebook. The resultant “mob” or “gang” of adverse comment, which is unfortunately typical of many comments of or by internet “rangers”, who seem almost to relish and prowl on helpless victims, was equally abhorrent and clearly calculated to wound the Mother, if not to cower her into some sort of submission or humiliation. Such conduct cannot be condoned. It showed very poor judgment and insight. It is all to the good that there is now some recognition by the Father and his partner of the adverse impact of it.
Indeed, Ms D acknowledged, albeit in a somewhat muted way, that the comments by the posse (my term) of “Facebook critics” were mostly from the Town C region, and their comments would likely have an adverse impact on the Mother.[30]
[30] T 91 – 92.
Ms D acknowledged that Ms Plastow is a “good Mother.”[31] She also acknowledged that she has made regular comments to the child about what Ms Plastow has said to her. She realises now that this is not appropriate.[32]
[31] T 88.
[32] T 92 – 93.
Again by way of observation: I consider Ms D to be, essentially, a truthful witness. Clearly Ms D is a loyal and devoted partner of the Father. She recognises, to some degree at least, the importance of restraint in using social media, especially if it results in an attack on the Mother. I am not quite sure if she appreciates the damage that has been done to the Mother by the Facebook “assault”.
In my view, it is very significant that in the face of such public “outrage”, vilification and denigration of her, the Mother has continued to encourage the child’s relationship with the Father.
The Mother’s Evidence
Summarised, the Mother’s evidence was as follows.[33]
[33] Transcript references to the Mother’s evidence will be from Transcript (13th September, 2017). Unfortunately, pagination of the transcripts for the hearing was not “consecutive.”
The Mother confirmed that she had seen the “hurtful posts” on Facebook from the Father, his partner, and others. Upon seeing the posts she “blocked” them.[34]
[34] T 6.
The Mother said that the main reason she separated from the Father was because of one domestic violence incident directed at her in 2011.[35] She also said that there was little interaction between the parties between 2012 and 2015 because there was very little need for that to occur; the Father was seeing and spending time with the child somewhat sporadically and required arrangements were made via SMS message.[36]
[35] T 7.
[36] T 10.
The parties attended mediation in 2015 and reached agreement. Clause 5 of this agreement required the Father to facilitate the child’s time with the Mother’s family in Queensland. The Mother confirmed that her “relocation” to Queensland was raised in the course of the mediation, and said that she felt “pressured” to reach agreement at mediation.[37] She readily admitted that she had done the wrong thing in staying in Queensland. She said that her family was important to her, and that after her parents moved to Queensland she felt isolated.[38] She said that (a) she gave her contact details in the northern state to the Father’s solicitors at the time, and (b) her “stay” was not planned – it just “happened” once she was “up there” with her family.[39]
[37] T 12 – 14.
[38] T 13 – 14.
[39] T 16.
The Mother confirmed that when the Father and his partner posted on Facebook the “open letter” to the child, and the online barrage ensued against her, some of her friends contacted her.[40]
[40] T 18.
The Mother agrees to equal shared parental responsibility.[41]
[41] T 13.
She confirmed that the Father is reasonably vigilant in attending to the child’s asthma when required.[42]
[42] T 10.
The Mother said that the child remains somewhat unsettled, and has had some counselling.[43] She also confirmed her concerns about [X] going hunting with the Father; the concern is more about the safety and inherent danger of the hunting knives used rather than the “hunting” itself. She confirmed that she had gone with the Father on such a hunt once.[44]
[43] See the counselling notes for [X], Exhibit C.
[44] T 23 – 24.
In Town C, she works casually at a (employer omitted). If she moved to Queensland, she plans to work full-time in order to enable her to abide by her commitment/offer to the Father to pay all air travel costs for the child to spend time with the Father. She also confirmed that, if necessary, her family would assist her to ensure that this occurred.[45]
[45] T 28 – 30.
The Mother said that she usually just agreed with what the Father wanted simply to avoid further argument. That said, she confirmed that both parents had worked hard in difficult circumstances. The Mother fairly acknowledged that if she was permitted to relocate it would disrupt the child’s regular time with the Father as it currently stands.[46]
[46] T 31 – 33.
There was also a general acknowledgement, by both parties, that a relocation – or at least one that took place “soon” – would limit the child’s time to “bond” with her new baby sibling.[47]
[47] See T 34 ff. I should note for completeness that Ms J gave evidence on the Mother’s behalf. She is the person with whom the Mother and child are living in Town C pending the Court’s determination. In my view, and in no critical way, her evidence added little to that which was before the Court otherwise.
In passing, I simply record that the Mother was not infrequently overwhelmed while giving evidence and short breaks were required. I did not take any of her state to be anything other than genuine.
Also by way of general comment: I took the Mother’s evidence, which was perhaps surprisingly a tad circumscribed, to be genuine and truthful. She is a significantly more “sensitive” person than the Father, which is no criticism of either parent. It is simply a statement of fact on my observations of them both. I have no doubt about the Mother’s clear sense of isolation in the Town C region, especially after the unseemly and vilifying Facebook assault on her by the Father, his partner and their friends. Her isolation is also patently increased because of her family having moved to Queensland.
The Family Report
As noted earlier, the Family Report, dated 14th July 2017, became Exhibit B. Although it is a tad long, in my view it is important to set out from the Report the interviews with each of the parents conducted by Ms S, her chat with [X], and finally the evaluation and recommendations section of the Report. Those sections were as follows (emphasis added):
Mr Pride
7) Mr Pride told me he and his ex-partner met many years ago and lived together in Town C for four years. He said that they bought a house together with the help of Ms Plastow’s parents and that he was happy when Ms Plastow became pregnant with their daughter, [X], even though this was unplanned. When they separated, Mr Pride said he moved back to his grandmother’s and Ms Plastow moved to her parents in Town E.
8) Regarding what went wrong in their relationship, Mr Pride thought he was stressed about buying their house and said they had lived apart for a little while before moving into the house to save some money. Even after things went sour, Mr Pride said he thought that they kept a good relationship. After they went their separate ways, he said he remained in contact with Ms Plastow and [X]. He said Ms Plastow would ring and he would go and visit the house. He said [X] was only a year old when they separated. Mr Pride estimated he saw his daughter once or twice a week after the separation. He said he would have the little girl to stay overnight and said his grandmother would look after her during his work hours.
9) Mr Pride went on to tell me that he was second in charge at a (employer omitted). He said he had worked there for nine years. Mr Pride said he started work very early in the morning but was able to finish at 3:00 p.m. and collect his stepsons from the bus. Mr Pride said the boys lived with him and their mother. The boys had different fathers and Mr Pride said the younger child, [B], went to see his father for alternate weekends but the older child, [A], had nothing to do with his father. Mr Pride said he and Ms D had recently bought their own home.
10) Mr Pride said that the current dispute was about Ms Plastow’s wish to relocate to Queensland with [X]. He said he rather wanted to have a week about arrangement. At the time of interview, Mr Pride said [X] stayed with him for four days a fortnight. He said this arrangement had been in place for almost a year and said he had continued to fight to have more time. Previously, Mr Pride said he and Ms Plastow had got along quite well together and said he had text messages on his phone in which she had offered to cook him tea, for example. This was before he met Ms D. However once Ms Plastow began to discuss going to Queensland, Mr Pride said that everything went “completely sour”.
11) During his relationship with Ms Plastow, Mr Pride assured me that there was no violence. He said Ms Plastow had made some allegations that there had been in her affidavit, which he denied.
12) Regarding why [X] was best to stay in the current arrangement or indeed to have more time with him, Mr Pride noted that she settled in quite well when she came to his home and that she had a great relationship with Ms D and the two boys. Whenever [X] came to his house, Mr Pride described her as the happiest child and said that nothing ever worried her. He said she always appeared happy. Mr Pride said they had moved into their new four-bedroomed house on 50 acres and that [X] had her own bedroom. Mr Pride said they were able to have their horses there and said he rode and that his partner loved horses. Mr Pride said that last year, they had bought [X] her own little pony to ride. He said that [X] also had her own dog and said that he had big dogs to go hunting with. He said his partner (employment omitted). Mr Pride added that [X] also had a pet rabbit. Mr Pride was clearly enjoying his new house, saying he had bought [X] a pink little four-wheeler to accompany him around the farm.
13) Mr Pride understood that Ms Plastow wanted to relocate to Town B, a considerable distance away. He understood [X] would only be able to come for holidays, flying unaccompanied. He understood Ms Plastow’s family had relocated to Queensland last year and had proposed to Ms Plastow that she went for extended holidays with [X], rather than moving there. Last year, Mr Pride said Ms Plastow relocated to Queensland without notice, and was subsequently made to return by the Court. He said that this of course made Ms Plastow angrier at him.
14) Emphatically, Mr Pride said he was making no criticisms of Ms Plastow’s care, and said he had never alleged that she was a bad mother. He rather described Ms Plastow as a good mother who took good care of their daughter. In his notice of risk, the only concern expressed by Mr Pride was that at the time of filing, [X] was being psychologically harmed because she had been unilaterally removed from his care.
15) Mr Pride said the school bus pulled up outside the front gate of his house, some 12km out of town and took [X] to school, at Town C Public School. He said that [X] was in Year 1 there and said he had been able to go to watch her perform in school plays and the Easter hat parade. Mr Pride went on to say that [X]’s school report was great and added that she had friends at school.
16) I heard from Mr Pride that most of his family was based in Town C, including his father, grandmother, uncles and brothers His mother lived in Town F and he had a sister in Town G. Mr Pride told me he was born and bred in Town C, describing it as a nice little town. Mr Pride said Ms D’s family lived in Town H and Town I and said they were able to go to Town I for school holidays. He added that [X] loved going to the beach, because she loved seashells and mermaids. He described his daughter “as a bit of a tomboy but she can be a princess too”.
17) In response to my query, Mr Pride said that [X] was not a naughty child. He rather described her as a mother hen, coming to tell them if the boys were doing something wrong. He said the boys were not often naughty either but said that if any of them were naughty, they were sent to their rooms. Mr Pride advised he and Ms D did not smack the children and said he did not believe in it and was not brought up in this way.
18) Mr Pride said that [X] was aware of the proposed move. He said that initially she had wanted to move because she was told that it would be so much better for her there. He alleged [X] had been told that she could have her own room and said she had told him that she had been told that she would be allowed to draw on the walls. When he had suggested a week about arrangement to [X], Mr Pride said the little girl had responded that that would be alright as well. He commented that [X] was only a child and could not make up her own mind about such a thing. He argued she was easily brainwashed.
19) Mr Pride told me that he was worried about this dispute and said that he did not want his daughter to miss out on everything in Town C. He was upset, fearing that he might only see his daughter for six weeks each year. Mr Pride argued Ms Plastow did have some support in Town C, living with a friend’s sister since she returned from Queensland. He conceded all of Ms Plastow’s close family had relocated to Town B. Even though she had no family in Town C, Mr Pride commented Ms Plastow was not 12 years old either.
20) Because he had diabetes, Mr Pride advised that he only had an occasional beer. He said he had stopped smoking cigarettes almost 12 months ago and said he did not use any other non-prescription substances. Mr Pride said that his partner did not drink alcohol and told me that she had just become pregnant. He said that the new baby was expected in. Mr Pride said [X] was hoping for a girl and the boys were hoping for a boy. Mr Pride said that his partner worked at a (employer omitted). She also made some money from (employment omitted). Mr Pride said he and his partner had been both trying to work hard to support the children.
21) Mr Pride told me he had never seen a psychologist or a psychiatrist or been given a mental health diagnosis. He said he suffered from both asthma and diabetes. He was not aware of any family history of mental illness.
22) In response to my query, Mr Pride said Ms Plastow had raised some concerns about his care of their daughter. These included that he did not have a child car seat in his car, an allegation he denied. However, Mr Pride said he and Ms Plastow had been able to message each other about any issues. He said Ms Plastow had recently messaged him to ask if [X] could go to Queensland in the forthcoming school holidays and said he intended to agree to this request.
23) In the event the Judge decided [X] could relocate to Queensland with her mother, Mr Pride said that he would feel very disappointed and upset. He said that it would just be too hard and that [X] would miss out on too much with his family. Mr Pride reiterated how well [X] got on with Ms D and said that they enjoyed doing out some crafts as well as girly things such as hair and makeup. Laughing, Mr Pride said he had been made up a few times. Going on to say that he wanted what was best for [X], Mr Pride said that if [X] wanted to go to Queensland, he would support her to do so. He argued she was pretty young to decide this however. Mr Pride added that he did not want to fight with Ms Plastow.
24) During the last school holidays, when Ms Plastow proposed a week about arrangement, Mr Pride said he rather proposed that they have three weeks each, so Ms Plastow could take [X] to Queensland to see her family. He said she did this. Mr Pride reiterated that he had nothing against Ms Plastow. Saying again that he wanted the best for his daughter, Mr Pride pointed out that her school grades were up and that she had a lot of friends. He described his daughter as a very smart little girl.
25) In terms of whether he had a criminal record, Mr Pride said he did have an assault charge laid against him in 2010. He said he had been defending his brother who had a very bad stutter and said the man he assaulted took him to Court. Mr Pride said he was fined and was not allowed to get a gun licence for 10 years.
26) In conclusion, Mr Pride said he just could not see any benefits for [X] moving to Queensland. He said the only benefit was for her mother but pointed out that [X] was quite happy in Town C with her schooling and friends as well as in her relationship with her stepmother.
27) Previously when Ms Plastow took [X] to Queensland, Mr Pride said he feared he was not going to see his daughter again. This led to friends of his putting comments on Facebook. While they were away Mr Pride said he tried to ring Ms Plastow to no avail and understood she tried to apply for an Apprehended Violence Order against him in Queensland. Mr Pride said he had no address for his ex-partner or his daughter and said they had had to try to contact the Town B Police to try to find her. Mr Pride considered [X] should have a relationship with both of her parents, pointing out that she needed her mother and her father in her life. He argued she needed to see him more than six weeks a year.
Ms Plastow
28) At the beginning of her interview, Ms Plastow told me she had not told [X] very much about the Court proceedings at all and did not want her to learn much about them.
29) Ms Plastow agreed she and Mr Pride were in a relationship for almost five years. She told me that she made the decision to separate, complaining that during the relationship she felt like she was a single mother because Mr Pride was always away hunting and never had time for them. In her Notice of Risk, Ms Plastow alleged Mr Pride with both verbally and physically abusive towards her.
30) After she had [X], Ms Plastow said that she took 12 months maternity leave. However, when [X] was about seven months old, she said that unfortunately she had to go back to work because money was just too tight. At the time of interview, Ms Plastow said she was working on a casual basis at a (employer omitted) in Town C.
31) Ms Plastow agreed that the basic dispute was about her wish to relocate to Queensland. She explained that she only had a very small family including one sister and her parents, and that most of them were in Queensland. When discussing this, Ms Plastow became very upset, explaining this was because she felt so isolated in Town C. Ms Plastow told me that her father worked in Western Australia. Ms Plastow told me that her sister was 20. She added that her grandmother also lived in the same town as her parents. She said that the town was some 20km from Town B. Ms Plastow said that she was brought up in South Australia. She said her parents moved to Queensland in 2016 because her grandmother had already moved up there the year before.
32) When she met Mr Pride, Ms Plastow said she was living with her parents in Town E and said the family had moved there from South Australia in about 2000 or 2001, moving to Queensland just over 12 months ago. Ms Plastow said that about a week before her grandparents were due to relocate to Queensland, her grandfather died and said her grandmother then stayed with her family for about six months until she was ready to go. Ms Plastow said her grandmother still went to Queensland because she had already packed up her house and sold everything up. Ms Plastow explained her cousin had a property in Queensland with two houses on it and that her grandmother had lived in one of them. She explained her parents built a new house.
33) Tearfully, Ms Plastow said she had never been more than half an hour away from her parents. When I asked her why her parents had moved without her, she responded, “Well I guess they can’t be sticking around me all of their lives”. She said she thought her family had thought she would be able to go.
34) When [X] was about three and her grandfather died, Ms Plastow said that when she asked Mr Pride about relocating to Queensland with their daughter, he told her that she had to do what she had to do. She said that earlier on, Mr Pride did not have regular times with [X] but would just ring up and come to see her. She believed there had been no need to have lawyers involved at that point because Mr Pride was not having regular contact, but rather was just ringing when he wanted to come to see their daughter. Ms Plastow described the current situation as very stressful.
35) From last year, Ms Plastow said Mr Pride began to see their daughter four nights a fortnight. She said she did not agree to or sign the consent orders reached at mediation in Town C. Prior to this, Ms Plastow said that there was no regular contact and rather said that she would take [X] to see her father on Monday afternoon but said there was nothing formalised. Ms Plastow said [X] had not often gone overnight prior to the orders.
36) In July last year, Ms Plastow took [X] to Queensland. She explained that she had driven up. In response to my query, Ms Plastow said she had not really planned to do this and said she had not really known what to do. She went on to say she had felt so pressured and knew that she needed her family around her and added that [X] was missing her family as well. Ms Plastow said she had tried to speak to Mr Pride about leaving previously but said he always shut her down, saying that he did not want to talk about it and that she could not make him do so. Ms Plastow said she had not known what to do and had been continually trying to talk about it to him. After they moved, Ms Plastow said [X] was enrolled in school in Queensland and was really enjoying it. After a couple of months however, they were made to return.
37) When she left to go to Queensland, Ms Plastow said she realised a child needed a relationship with both parents. She assured me that she was not at all trying to stop this and proposed [X] came to see her father during school holidays. She said that obviously, something would have to be agreed about Christmas so that they were not both always missing out on it. She proposed that this alternated. Ms Plastow reiterated that she fully understood that [X] really needed to have a relationship with her father and said she had not intended to deny this.
38) According to Ms Plastow, Mr Pride knew where they were in Queensland and said when she left to go up, [X] was already in Queensland for the school holidays with her parents. Ms Plastow said her mother and her grandmother had taken [X] up with them. Ms Plastow estimated it took 15 hours to drive to where her parents lived in Queensland and said they usually stopped a night on the way.
39) At the time of interview, Ms Plastow said she and [X] were living with her best friend in Town C. She said she had not wanted to undergo the hassle of getting her belongings out of storage and renting somewhere until the Court decision was made.
40) When asked what the advantages were for [X] in moving to Queensland, Ms Plastow pointed out that if she was happy, obviously her daughter would be happy. Ms Plastow added that her parents had a really big house and went on to say that [X] and her mother had a very strong bond. Ms Plastow became upset again. She said [X] had always been very close to her mother and especially to her sister. Ms Plastow said that she thought it must have been hard on [X] as well to go from seeing her family all the time to hardly ever seeing them.
41) Around the time of interview, Ms Plastow said that [X] was having some counselling sessions to Sydney via Skype. She explained she had arranged this for her daughter because she thought she might be having some issues with anxiety. When I asked Ms Plastow what symptoms [X] displayed, she said that sometimes her daughter became very frustrated with herself when she came home from her father’s. Ms Plastow said she noted more changes in [X]’s attitude when she spent more time with her father. In response to my query, Ms Plastow reported that [X] was eating and sleeping alright and said she was not aware of the school expressing any concerns about her. Ms Plastow said she had noticed changes in her daughter’s attitude, especially on the Thursday when she came home from her father’s and said she just wanted her to talk to someone so that if there was something she was not picking up on, someone else would do so.
42) Ms Plastow believed [X] was having difficulty recognising and controlling her emotions and said she had been told this by the counsellor they were accessing via Skype. She added no diagnosis had been made as yet. [X] had only had two fortnightly sessions so far.
43) Ms Plastow again said she had protected her daughter from knowledge of the Court proceedings. However, she said when they returned from Queensland, [X] had asked her and her friend when they were getting petrol, if they were going to Court. Ms Plastow said she rather told her daughter that they were going to Town A for a medical check-up, even though they were actually going to Court. Before the interview with me, Ms Plastow said [X] had said to her that she wished that she was going to see Ms F, the previous family consultant, again when they were going to Court. Ms Plastow said [X] told her that her father had said that they were going to Court. Ms Plastow did not think [X] needed to be advised about legal matters.
44) Shortly after they separated, Ms Plastow said she was diagnosed with anxiety. She said she had been struggling for some time before the separation and said a local doctor in Town E had diagnosed her with anxiety and given her some medication. Ms Plastow said she took the medication for between 6-12 months and said it made her feel quite nauseous and she had stopped taking it. Ms Plastow said she had not wanted to rely on medication. In terms of family history, Ms Plastow said her mother had previously been diagnosed with depression after a car accident. Ms Plastow said she only drank alcohol socially and not to excess and did not use any other non-prescription substances. Proudly, Ms Plastow said she gave up smoking 105 days ago. She did not have a criminal record.
45) In terms of how [X] could come down back to Town C to see her father, Ms Plastow said she could not fly directly. She said she would have to go from Town B to Brisbane. Ms Plastow did not seem certain about how this could be effected. However, she went on to say that another option was that she could drive [X] down and visit relatives in Town C while [X] spent time with her father. Ms Plastow said she understood that it might be at her expense to bring [X] back and said she would do so every school holidays. In terms of flying, Ms Plastow said she could always fly from Town B to Brisbane with [X] and then put her on the next plane.
46) When I asked her how she would feel if [X] had to stay in Town C, Ms Plastow became upset again and said she really did not know how she would manage. She said that this would be hard and said she would have to rent a house in the area. She said she was not in a new relationship and indeed, had not been in one since the separation. Ms Plastow said it would be very difficult for her to find a full time job in Town C. Ms Plastow anticipated it would be easier to find work in Queensland and said she had received some calls back from jobs she had applied for after she had had to leave Queensland. Ms Plastow also anticipated it would be easier to rent a house much more cheaply in Queensland after the demise of the mining industry. She said there were a lot of new houses rented very cheaply quite close to her parents.
47) When I pointed out to her that Mr Pride was not making any criticisms of her care of their daughter, Ms Plastow responded that she liked to think that she was a really good mother and said she was trying to do the best for her daughter. She went on to describe [X] as gorgeous. Conversely, Ms Plastow said she had some concerns about things that [X] had said when she returned from her father’s. She said her solicitor had written to Mr Pride’s solicitor sometimes about [X] coming home and telling her that her father had called her names. She said her solicitor had asked Mr Pride’s solicitor to ask his client not to denigrate Ms Plastow to [X]. Apparently [X] had also been called names herself. Ms Plastow was also concerned that [X] was given a hunting knife for her sixth birthday, an action Ms Plastow considered to be highly irresponsible. Another issue had been about Ms Plastow allegedly not using a car seat. Ms Plastow said she and Mr Pride had not parented together for quite some time so she could not really comment much about his care. She said she “sort of knew” Mr Pride’s partner but did not know her very well.
48) Nowadays, Ms Plastow said she and Mr Pride mainly communicated by text. She said if she and Mr Pride were alone together, he could become quite nasty and she wanted to avoid this. She said texts and emails also provided a trail of what was said.
49) Ms Plastow would not be happy if the decision was deferred for a few years until [X] was older, again pointing out that she only had a very small family. She said her cousin also lived near to her parents and said her uncle, her cousin’s father, who lived in Adelaide was also proposing moving to be the rest of the family. Ms Plastow described where her family were living as a nice place with nicer weather. She estimated the closest beach was about 40 minutes away. She said the town where her parents were living was very small and quiet and said that there was a very nice school there. She said that previously when [X] attended the school, within the first two weeks, she was student of the week. Ms Plastow said it was only a very small school.
50) Until she could get employment, Ms Plastow proposed living with her parents and said she and [X] would be able to both have their own rooms in her parents’ house. Currently, Ms Plastow said she worked a couple of casual shifts while [X] was at school and also on the weekend when she was with her father. She said she did not work the weekend [X] was with her. In the time [X] was with her, Ms Plastow said they enjoyed cooking and doing arts and crafts. She described [X] as very crafty and said she loved making things. Ms Plastow said she and [X] had a movie night every second Friday night when [X] was with her and said [X] was allowed to pick dinner and a movie. She said sometimes they also went to the movies.
CHILD AND HER RELATIONSHIPS
[X] and her Father
51) [X] greeted her father in an affectionate manner. Mr Pride asked [X] what they had done the previous weekend and I learned they had been hunting together. This had included camping away. [X] said they had a good time. [X] enthusiastically went on to talk about their pet dogs, cat and her rabbit. She told me what all the animals were called.
52) [X] began to do some drawing. When I admired [X]’s long, thick hair, she told me she was going to grow it to the floor. Mr Pride commented that [X] loved doing craft. He said she was on preventative medication for asthma as he was. He said he had bought a nebuliser for the home as well as one for when they travel. [X] chatted about her shoes which did not have laces. She told me she was in Year 1 at school and said that [A] was in a different class to her. [X] chatted about her school.
53) At the time of interview, Mr Pride said changeovers were at McDonald’s in Town C. He said that prior to the dispute arising about moving to Queensland, Ms Plastow would bring [X] out to his house and drop her off and he would return her to her house. [X] interjected to ask her father if he was still thinking about her going to Queensland. The little girl explained she meant could she go for holidays to Queensland. Mr Pride clarified with [X] that she meant she wanted to go to Queensland to see her grandparents for the forthcoming school holidays and [X] agreed that this was what she meant. Mr Pride pleasantly told his daughter that if she wanted to go to Queensland for the holiday, she could do so. He went on to ask his daughter if she wanted to go and whether she would bring him back some lollies. [X] said that maybe she would.
54) [X] told me she had been to Queensland lots of times. [X] began to use some glue, explaining that in her case, she had everything she needed to do crafts at school. In response to her father’s query, [X] said that she did not really like school. [X] told me her horse’s name. She told me about riding and about the four-wheeler motorbike she had. [X] continued to draw happily. Mr Pride told me he was able to have the weekends off when he had [X] in his care.
55) While she drew, [X] and her father chatted about the arrangements for [A]’s birthday, which was during [X]’s next visit. They were planning a party. [X] explained how she and Ms D were going to secretly make a cake for [A] by her pretending to go to bed and then by Ms D calling her to get up and help her. [X] went on to describe the boys as crazy and said that [B] was annoying.
56) Mr Pride and [X] told me that [X] was able to practice swimming at Ms D’s parent’s pool. When it was hot, they said they went water skiing. Mr Pride said they had just sold their previous boat and were about to buy a new one. Mr Pride said that the previous year, they had spent a lot of money on new life jackets and wetsuits for the children. [X] asked if Ms D was waiting in the car, and Mr Pride said she had not been able to come to Town A because she had to collect the boys from the school bus.
57) [X] sought suggestions about what she should draw next. When I suggested a horse, she said she was not very good at drawing horses but could probably draw a unicorn. Mr Pride advised that he and Ms D had painted a whole wall in the playroom with blackboard paint so that the children could readily draw on it. [X] proceeded to draw a unicorn. Enthusiastically, Mr Pride talked about his workplace. He said sometimes [X] went with him when he was called out to emergencies. [X] gave her father one of the drawings she had done and happily agreed to staying in my office to be observed with her mother.
[X] and her Mother
58) [X] asked her mother if her tooth was bleeding. Her mother assured her that it was not. A discussion ensured about how many teeth [X] had lost already and about the tooth fairy. I heard the fairy attended at home and at both grandparents’ houses as well. Ms Plastow provided [X] with some morning tea. They chatted about a visit to Town A the previous weekend when they had been on the miniature train at the (park omitted).
59) Ms Plastow said they were going to go (store) after the interviews to buy some art craft material and [X] chatted about having to buy a birthday present for her grandmother, who lived in Queensland. Ms Plastow proposed sending her mother some money and a card so she could buy whatever she wanted. A debate ensued. [X] told her mother that her father had said they could go to Queensland for the holidays.
60) Previously, Ms Plastow said they had been to Queensland in January. [X] talked about it having been her Uncle Mr J’s birthday the day before they came home. Ms Plastow explained that this was her cousin. She added all her family was in Queensland. Brightly [X] sang rather a rude song about someone falling down the toilet. There was much laughter. They chatted about other songs.
[X]
61) [X] told me she did not know why she had to talk to me. After I explained, she said she did not have any thoughts about where she wanted to live. [X] explained the current arrangement and said she still wanted to continue doing it. She explained that she spent nine days with her mother and five with her father. [X] reiterated that she would like to keep the current arrangement in place. When I asked her if she wanted more time with her father, [X] said she would prefer the current arrangement because the boys were sometimes annoying.
62) [X] told me who lived at the house where she and her mother were staying since they returned from Queensland. She continued to eat her chili chips before telling me she could not remember how long she and her mother had lived in Queensland previously. [X] said she liked it in Queensland and said she would also like to live up there and come down to Town C for school holidays. She said she had thought of this idea herself. [X] thought that it would also be pretty good to stay in Town C and go to Queensland for the school holidays.
63) When asked what were the good things at her mother’s house, [X] responded that her mother did some craft with her. When asked what was good at her father’s house, [X] responded “Well the exciting thing about Dad’s house is that I am going to be a big sister”. When asked what was bad at her mother’s house, [X] responded “Yes [D]”, before telling me that [D] was one of the children who lived where they were staying now. [X] said that the only bad thing at her father’s house was [B], the younger of her stepbrothers.
64) If she had three wishes, [X] told me that she would wish to be a vampire; would wish to be magic and would wish to be 13. She explained that if she was 13 she would then be older than her stepbrothers.
65) [X] told me that [B] was mean to her. [X] was very helpful at the end of her interview, assisting me to pack up the test. She said she did not really have any chores at either of her parent’s houses.
66) [X]’s test results at Attachment 1 indicated that she was mainly positively involved with both parents. [X] was very involved with her stepbrothers although in totally polarised directions. She liked [A] but was very antagonistic towards [B]. [X] scored in the normal range on a common measure of children’s anxiety.
EVALUATION
67) Mr Pride and Ms Plastow separated in 2010 when their only child was very young. This dispute was precipitated by Ms Plastow unilaterally and without advice, taking [X] to reside in Queensland in July last year. She was made to return [X] to Town C in August last year and since this time, the current arrangements have been in place.
68) Mr Pride denied Ms Plastow’s allegations that he was violent towards her and indeed the parties were able to co-operate for quite some time after they separated until the relocation issue arose.
69) As always, the question of relocation is a vexed one. Austin (2008) commented “Courts have always noted the difficulty of trying to reconcile competing issues and claims posed by relocation (p138)”, before going on to promote the need for an individualised case-by-case approach as well as an assessment of the risks and benefits. When discussing relocation cases, Parkinson et al (2010) noted that relocation cases “reflect the tension between the freedom of people as adults to leave the relationship begin a new life for themselves, and the harsh reality that while marriages (and other relationships) may be dissoluble, parenthood is not. Children usually benefit from a close and continuing relationship with the non-resident parent who cares about them in the absence of abuse, violence or very high conflict. Maintaining that connection if one parent lives a long way from the other is difficult, to say the least (pg 1)”
70) In this matter, Ms Plastow's actions appeared to reflect her extreme distress and anxiety about being separated from her family and she still maintains a strong wish to relocate, arguing, no doubt with some justification, that her daughter will be happier if she is happier. She is temporarily staying with a friend in Town C until the Court makes a decision about whether [X] can relocate or not. In the event, that [X] is not allowed to relocate, Ms Plastow will have to re-establish herself in Town C. Renting her own accommodation might be difficult, given her limited income and she might have to seek government housing. Conversely, Ms Plastow argued obtaining full-time employment and cheaper housing will be easier in Queensland.
71) Mr Pride is committed to remaining in Town C and indeed has established a pleasant lifestyle for himself and his family on a property just out of Town C. He and his partner are expecting a new baby.
72) [X] impressed as a very pleasant, cooperative little girl who related well to both of her parents when I briefly observed her with them. She showed no signs of anxiety in her interview and scored in the normal range on a brief measure of anxiety that I administered to her. She did not significantly discriminate between her parents in the Family Relations Test (see Attachment 1) and rather used the test to express her antagonism towards her stepbrother, [B] and her marked preference for her stepbrother, [A]. Any anxiety currently experienced by [X] most likely reflects her awareness of the conflict between her parents and some knowledge about her mother's wish to relocate to Queensland. She would also have been somewhat unsettled by moving to and from Queensland already.
73) Indeed, the relocation literature cautions that school-age children living in family structures other than intact families are at significantly greater risk for school problems, both academic and behavioural when they encounter as few as one residential move (Tucker, Marx and Long, 1998). Obviously the least disruptive option for [X] would be to remain in Town C and to regularly spend time with both of her parents. Extending her time with her father would be the next least disruptive option, while relocating would be the most disruptive for her.
74) The Court must weigh up the relative advantages and disadvantages for [X] should she move to Queensland. The basis of her parents' views are very obvious. Ms Plastow was anxious and distressed during her interview. This was obviously concerning, given research that indicates that the psychological well-being of primary care-taking parents, in this instance, Ms Plastow, is one of the major factors influencing the adjustment of preschool and school age children following the separation of their parents (Amato, 2000). Ms Plastow will undoubtedly be happier with the support of her family in Queensland while Mr Pride, not surprisingly, wants to maintain a much more regular relationship with his daughter than will be possible if she moves.
75) In Queensland, [X], will not only enjoy a relationship with a happier, less stressed mother but will also see her grandparents and other maternal relatives much more frequently than she can at present. The disadvantages are that she will inevitably see her father and his family, including her stepmother and stepbrothers, much less often and be much less involved in her new half sibling's life, than if she remained in Town C. In Queensland, [X] will be much more of an only child with the advantages and disadvantages this involves. In Town C, she will have to continue to adapt when she was with her father to life with siblings.
76) As in all relocation matters, the ability of the relocating parent to facilitate time with the other parent must be considered. Ms Plastow's unilateral previous move must cast some doubt on her commitment to continuing to involve Mr Pride in their daughter's life, although she assured me she believes this is important. Another concern is the distance and cost of travel involved, given Ms Plastow's current low income. To travel by plane involves two flights each way as well as car travel at either end and travel by road would take at least 15 hours each way, a not inconsiderable journey for a young child.
77) On balance, in my opinion, [X]'s best interests would be served by her remaining in Town C and having holiday access to her grandparents and family either in Queensland or by them coming to visit her here. This will best allow [X] to enjoy family and farm life with her father and to get to know her new half sibling.
RECOMMENDATIONS
78) That [X] remains in Town C with consideration being given to increasing her time with her father to an equally shared arrangement when she is 8.
79) If the Court does not grant Ms Plastow's application to relocate, she might be assisted by some counselling herself. This will assist [X] as well.
The Oral Evidence of the Family Consultant
The Family Consultant gave her oral evidence by telephone on the third day of the hearing. Summarised, it was as follows.[48]
[48] See Transcript (14th September 2017). Hereafter, all references will be to the transcript from this date.
Ms S confirmed that the child’s anxiety related to the ongoing conflict between her parents. The anxiety should improve when the litigation ceases.[49] She also confirmed the child’s excitement at the prospect of there being a new baby.
[49] T 4.
In my view, rather critically, Ms S said that the issue of “relocation” and its impact on the relationships involved was not so much one of “difficulty” but rather one of “difference.” Put simply, the relationships would be “different.”[50] This was so also in the context of the child’s relationship with the Father still developing and in need of consolidation.[51] She expressed concern about issues of “cost” and “distance” regarding the relocation.
[50] T 5.
[51] T 6.
Then Ms S confirmed (as noted earlier in these reasons) that, in her view, the Mother’s happiness and lower stress levels are the “crux of the matter.”[52]
[52] T 8.
She acknowledged that, but for the aberration of tone unauthorised stay in Queensland, the Mother’s actions historically have been protective of the child’s relationship with the Father.[53]
[53] T 10.
Ms S was taken to the counselling notes regarding the child. It was in the following terms:[54]
[54] T 11 – 12.
MS DAVIS: It’s a film called Inside Out. Thank you, your Honour?‑‑‑No, no. Inside Out?
It’s a great film. I suggest you see it. It’s about – it’s effectively about child mental health?‑‑‑No.
And it’s a tool that used by this particular counsellor to talk to the child about things that make her happy and things make her sad. And she has done some happy things and some sad things. And ..... in May 2017 she filled this in. And I’m just going to tell you some things that are in happy and some things that are in a sad and see if they assist you with thinking about this matter. So amongst the things that are in the happy are:
Making dream catchers. Going on play equipment. Playing cricket. Movie night. FaceTiming my family in Queensland. Snuggling in a mermaid towel blanket.
So those are some of the things that make her happy?‑‑‑Right .....
In the things that make her sad, she includes:
Not seeing grandma in Queensland. Missing Ms C, Ms S – grandma – papa and Nanny B. Getting in trouble. Being called mean names by dad. [B] being mean. Says, “Go away.” Swears. Physically hurts me.
?‑‑‑He what, sorry? Missed that one. I’m sorry.
That’s all right. It’s about [B] and it’s in the box about [B] and it says:
Says, “Go away.” Swears. Physically hurts me.
And includes:
Not being able to find my mum.
In the notes that go along with the psychologist’s examining this, this Pixar test with the child, she makes a note that:
[X] said make her sad when her father told her to “Shut up, you bitch.” Father’s girlfriend then told [X] that she should say back to him, “Shut up, you bastard.” Mother stated that [X]’s behaviour is difficult when she returns from her father. She also said that [X] makes concerning remarks like “I’m ugly. I want to scrape my face off.” [X] said that her mother and father’s houses are –
and I’m going to quote because the psychologist quotes child words here –
very, very, very, very, very different.
Listening to that, that occurred in May 2017, does it give you some concern that the child is in the middle of the dispute in this matter?‑‑‑Well, that was a concern I’ve already identified, yes. That she has just left in – she is responding to the conflict in the matter, yes.
In relation to that being put in the middle, during your report at paragraph 23, the father says to:
If [X] wanted to relocate, he would let her.
?‑‑‑Yes.
Ms S confirmed that she understood that the Mother was less supported in Town C and would be better supported in Queensland. She also confirmed the obvious point that, wherever the parties lived, there would still have to be a co-parenting relationship.[55]
[55] T 19.
Ms S also confirmed that the Mother was the more vulnerable of the two parents regarding the impact of the current litigation. She further confirmed that, given the Mother’s commitment to the child’s relationship with the Father, her concerns about the relocation would be allayed in this respect.[56]
[56] T 20.
In short, her concerns about the relocation focussed on the “sheer time” the child would need to travel, given her age, and the cost of the travel.[57] She surmised that a “third way” might be possible, whereby the Mother deferred her move to Queensland by perhaps 2 years. The discussion was in the following terms (emphasis added):[58]
… So they would go, but delay it. Allow the child to have the relationship with her stepbrother. Allow the child to consolidate her relationship with her father. Allow the mother to have something to look forward to where she gets to, she knows she gets to go so she can deal with the next period of time, but eventually she gets to go at a time that it might be more beneficial for the child. Can you comment on that as an option, please?‑‑‑I think it’s an option that I have recommended at times in other reports, and it is an option that could be considered. Again, there are pros and cons to that, aren’t there, how stressed – how stressed is next year going to be for everyone. I’m just thinking ..... but, you know, there would be pros and cons to it. I mean, the other option, I always ask people if both parents can relocate but that’s not possible. Well, ..... yes. It is always useful if we can find a new position. I mean, you could say defer it for two years. But how long do you defer it for is another question.
But there’s a key age, isn’t there, for children in relocation matters where their outcomes are better if they relocate before the age of about 12; is that right?‑‑‑Yes. Yes.
And she is already at the beginning of that age, isn’t she. At seven she is at the right sort of age to be able to maintain her relationships and cope with the adjustment?‑‑‑Yes. I mean, I’m just mooting, you know, you go a year or two years, whatever, while she’s developing a relationship with her half sibling. It’s a moot point. How long do you defer it.
I’m just trying to get some assistance for his Honour?‑‑‑It certainly is something that could be presented as a solution, yes.
[57] T 21.
[58] T 22.
I note the following comments on the evidence of the Family Consultant, both from her Report and her oral evidence.
First, at the end of her oral evidence, Ms S acknowledged that a so-called “third way” of a “deferred” relocation was “something that could be presented as a solution.”[59] Obviously this was not her “primary” recommendation as set out in her Report, noted earlier in these reasons.
[59] T 22.
Secondly, I confess a degree of surprise with Ms S’s primary “recommendation” for the Mother to remain in Town C. In my view, notwithstanding the Family Consultant accepting the Mother’s position of being and consistently feeling “isolated”, she did not consider the “longer term” risk of the Mother continuing to remain feeling “isolated” and the consequent risk to or impact on the child of the further deterioration in the Mother’s happiness. My concern is the apparent “jump” from accepting the Mother’s isolation to then forcing her to remain in this township where she feels quarantined and where, in 2016, the Father, his partner, and a number of their “Facebook friends”, some of whom at least are in the same area, verbally attacked her. Nor, in my view, was much or appropriate weight paid to the recorded comments of the child’s counsellor.
All this said, I acknowledge the experience and detail of the Family Consultant’s evidence, but recall that, as with all other evidence, it is a matter for the Court to weigh that evidence. The Court is not bound by the Family Consultant’s recommendations. Indeed, Kirby J in U v U cautioned that the emphasis should be placed on the child’s “long-term” interests rather than just focussing (or primarily doing so) on the short-term interests. In my view, the Family Consultant gave insufficient attention to the long-term interests of the child in the light of (a) the Mother’s isolation as a young single Mother in a relatively modest-sized township, away from her family, (b) the child’s relationship with her maternal Grandmother, and (c) more generally, the right of the child to spend time with the maternal family in ways that she has hitherto been able to do with the paternal family for many years essentially uninterrupted. While the Mother’s “freedom of movement”, and her general “happiness”, according to High Court principle, are meant to be subservient to the child’s best interests, in my view, they are so intertwined here as to warrant the Court allowing the Mother to relocate in the relatively near future, which is not before the commencement of 2020. By this time, [X]’s relationship with her Father will be even more securely developed, as will her relationship with her baby brother, [C].
Submissions for the Applicant Father
The Father’s original submissions, filed 30th October 2017, were as follows:
1) The Court indicated at the commencement of these proceedings that it was a difficult and finely balanced decision that had to be made. His Honour made continuing comments throughout the course of the hearing. It is not surprising when two parties are engaged in relocation proceedings that the outcome will leave one of the parties disappointed. The Father submits that [X]’s (“the Child”) best interests are served by her remaining in Town C, asserting that the following matters are of most importance to the Court:-
a) the stability of the Child in remaining in Town C;
b) the development of the Child’s relationship with the Father compared to the impacts of that relationship if the Child was allowed to move;
c) the realistic likelihood of the parties being able to arrange time in the future should the Mother be able to relocate;
d) the impacts on the Child should the Father only be permitted to spent time with her during school holidays;
e) the happiness and wellbeing of the Mother;
f) whether the Father will be able to maintain a meaningful relationship with the Child should she be able to relocate;
g) the risks of the Mother being able to re‑establish herself in Town D in Queensland; and
h) the view of the Family Consultant, Ms S, whose view was not changed after cross‑examination.
The Mother’s Unhappiness & Case Generally
2) The Court, in many relocation cases, is faced with a mother who wishes to relocate to another place, typically because they are the primary carer and they are seeking support of family members or others in that other location. Accordingly, it would come as no surprise to the Court that a Mother upset and distressed coming to the Court and that being a major reason for application. That is certainly the position of the Mother in these proceedings.
3) The Mother’s evidence is that she feels isolated in Town C. The Mother has provided no evidence as to how this feeling of isolation is impacting upon her, or how it is impacting on her ability to parent, or fundamentally, how it is impacting upon the Child. There is no evidence of any medical treatment sought by the mother. There is no independent expert evidence in relation to the Mother’s mental health. At best, there is a general concern raised by Ms S with respect to the Mother’s distress or purported anxiety. It is submitted that there is insufficient evidence for the Court to conclude that this is a decisive factor in a finely balanced case. Accordingly, when compared to the case of Nussbaum[60], the Mother’s general wellbeing is relatively unknown and such this matter is clearly able to be distinguished. Applying Taylor v Barker[61]; there is insufficient evidence to able the Court to permit the Mother to relocate. The Mother’s case also lacks evidence of her unhappiness. How can the Court assess the impact of the mother’s unhappiness on the child, if it is not in a position to assess the unhappiness of the Mother herself? The Mother has also provided no evidence that moving to Town D will necessarily make her happier.
[60] Nussbaum & Nussbaum [2017] FCCA 1638.
[61] [2007] FamCA 1236.
4) It is submitted that the Court is at a risk of opening the floodgate should it allow a mother to relocate every time she comes to the Court claiming to be unhappy and that she would be happier if she lived somewhere else, as arguably that applies to nearly every applicant in the Court. As such, it is submitted that the Mother needs to show something more than a general unhappiness, and that by way of independent expert medical evidence. The Mother has not done so in these proceedings as opposed to Nussbaum (supra).
Evidence of Ms S
5) Ms S, in her family report, recommends that the Child remain in Town C with consideration being given to her increasing her time with her Father to an equally shared arrangement when she is 8 years old.[62] In cross‑examination, Ms S gave heavy emphasis to the advantages and disadvantages of the Child relocating to Queensland, directing attention to paragraph 75 of her report.
[62] Family Report prepared by Ms S dated 14 July 2017, paragraph 78-79.
6) The Mother’s Counsel put to Ms S a hypothetical arrangement that involved the Mother remaining in Town C for 12 to 18 months, and then being permitted to relocate to Queensland. Ms S did not provide any clear evidence as to when in time, if the Court were minded to make an Order to that effect, when such time might be ideal for relocation. It really is a ‘how long is a piece of string’ type scenario. In any case, the Mother did not seek the Court to consider this scenario when pressed by His Honour in email to the parties dated 18 September 2017.
7) In summary of Ms S’s evidence, it appears that she was unwavering with respect to her recommendations. Ms S made clear in cross‑examination that she had considered all things relevant when making her recommendations. There is nothing to suggest that she had not taken anything into account that should have been taken into account when preparing her report and formulating her recommendations. There is nothing definitive or nothing exceptional raised so as to have seen Ms S depart from her recommendations.[63]
[63] Ibid.
Evidence of Ms J
8) Ms J gave evidence in cross‑examination about her living with the Mother and the Child. When put to her by the Father’s solicitor how the dynamic of that household was going, Ms J gave evidence that things were going well and that it was a normal household with kids, and that everyone was getting along well.
9) The evidence of Ms J does not assist the Mother’s case. If it is the case that the Mother is desperately unhappy in Town C, then the evidence of Ms J does not corroborate this. In fact, the evidence of Ms J seems to indicate that the Mother has a support network in Town C, that things are travelling along fine for the Mother and she and the child are happy. Importantly she also says nothing that would concern the Court about the child’s current arrangements. The mother has held down a job and the child is doing well at school and living with each family.
Evidence of Ms S
10) The Maternal Grandmother indicates that she will do anything she can to assist the Mother in her application to relocate. If by inference this is to mean financial support, then there is no evidence in relation to the Maternal Grandmother’s financial capacity to adequately assist. Since the Mother’s unilateral relocation, and the maternal grandparent’s relocation to Town D, the maternal grandparents have not, on a single occasion, returned to Town C in order to spend time with the Mother and the Child. The inference is that their inability to do so is by virtue of distance, financial implication and impediment. The Court cannot conclude that the maternal grandparents are capable of doing enough to assist with compliance of any Order if the Mother is permitted to relocate to Queensland.
Dr C
11) The Mother’s evidence in relation to any treatment that the Child has or had received since her return from Queensland was very limited.
12) At present the Child is on a waiting list, or had been on a waiting list with Dr C. However, there has been no follow up by the Mother in relation to the current status and waiting time. The Father’s solicitor put to the Mother whether or not the Child has settled since June 2016, to which the Mother answered “yes”. The Father’s solicitor also asked whether there had been a known cause for the difficulties or anxiety experienced by the Child. The Mother answered “no”. The Father’s solicitor also put to the Mother whether or not it was surprising that the Child had been experiencing difficulties in June 2016, given the issues between the Mother and the Father. The Mother answered “no, it was not a surprise”. Therefore, in the circumstances, the Court ought to conclude that the difficulties experienced by the Child came from or are related only to the level of conflict between the Mother and the Father.
13) The view of the Family Consultant is that the Child showed no evidence of anxiety when interviewed.[64] The Family Consultant describes the Child as a very pleasant co‑operative little girl who related well to both of her parents. This is reflective of tensions having died down between the Mother and Father in the past 12 months.
[64] Family Report prepared by Ms S dated 14 July 2017, paragraph 72.
NSW & Queensland School Holiday Conflict
14) The Child’s has a close and loving relationship with her Father and step-family and enjoys the stable environment that their environment brings.[65] The Child’s relationship with her Father and her step-family will deteriorate if the child is only permitted to spend ‘holiday time’ with them.
[65] Family Report prepared by Ms S dated 14 July 2017, page 32.
15) To add to the geographical, logistical and financial difficulties in this case, NSW and Queensland have differing gazetted school holiday periods and it is therefore simply not the case that the Child and her step-siblings will share the school holiday period together at the same time. This will in turn impact on the ability of the Father and Ms D to arrange holiday time and concurrent annual leave for time away as a family with the Child. At best, the holiday periods will overlap.
16) The impact of this on the Child was not explored by the Mother, however the Court ought to infer that it will only create further difficulty in the Child developing her relationship with her Father and step-family. The Father’s residence brings for the Child a stimulating environment. If permitted to relocate, the Child will miss this and all the benefit and happiness that it beings to her.
Allegation of Violence
17) The Mother gave evidence of an alleged incident of domestic violence.[66] The Mother accepted the incident occurred sometime before her being pregnant with the Child, but provided no detail as to what took place in cross‑examination. The Mother accepted that this incident was a one‑off and never happened again. During the Father’s cross‑examination, the Court intervened, noting that this incident has little bearing on the issues that needed to be determined under Section 60CC, given that it was conceded that there be an Order with respect to equal shared parental responsibility.
[66] Affidavit of Ms Plastow affirmed 23 August 2017, paragraph 22.
18) The Court would be satisfied that family violence is not an issue in this matter.
Unilateral Relocation
19) The Father submits that the date of relocation by the Mother to Queensland is 16 July 2016. The Father’s says that between 14 July 2016 and 19 July 2016, he attempted to contact the mother by text message, and also rang her for the purposes of speaking to the Child. The Mother did not answer the phone. The Mother did not reply to any text messages. Specifically, the Father asked for the address where the Mother had been residing and the Mother accepted that he did not know where she was living. The Mother says that she provided her address and other detail to the Father’s then solicitor. The Father says that he never received this detail. The Father submits that the Mother blocked the Father from the Child’s life. This evidence is overwhelming. The Mother accepted, in her evidence, that with the benefit of hindsight things would have been better if there had have been a reply by her to the Father’s text messages.
20) It was put to the Mother that she was not focused on the Child, but rather focused on herself. The Mother accepted that she had been thinking of herself at that time. The Mother gave evidence that she did not know what to do, that she had never been away from her parents before, and that at that time she was not necessarily focused on the Child, but more focused on her own needs. With respect to her blocking the Father out of the Child’s life, the Mother accepted that with the benefit of hindsight she would have done things differently, and that she would have replied to the text messages by the Father. It is in those circumstances that the Mother conceded that she appreciated the frustration experienced by the Father.
21) The line of questioning by the Mother’s Solicitor to the Father in cross‑examination attempted to draw a conclusion that the Father did know where the Mother was, that the Father had been speaking to the Child and for those reasons, without it being expressly said, an ex parte Order for the Mother’s return should have been avoided. The Father lost contact with the Mother on or about 14 July 2016. The Father filed an Application for a Recovery Order on or about 1 August 2016. The Father, in his Affidavit, annexed a text message expressly asking where the Child is. There was no reply.
22) The Mother’s behaviour throughout this period is concerning and in the context of a relocation case brings into question the Mother’s ability to facilitate a long distance relationship between the Child and the Father.
Conversations about Queensland and Child’s behaviour (May 2016- July 2016)
23) The Mother confirms that she had spoken to the Child about a relocation to Queensland prior to unilaterally relocating, and accepted that she did not downplay a relocation to Queensland. The Mother accepted, based on everything that was happening around the time of her relocation, that it was no surprise that the Child was displaying signs of distress and was acting in the way that she was towards the Father. It is against this background that the Child was displaying signs of anxiety and that, if there is to be a source of her anxiety, it follows the conflict between the parents at that time. It was a difficult time for the Child.
24) The view of Ms S was that any anxiety, if there were to be any anxiety experienced by the Child, was the result of the ongoing proceedings. It is important to note that in Ms S’s family report she concluded that the Child was not showing any signs of anxiety at present.[67] Ms S gave evidence that any anxiety would reduce, because of a reduction in conflict between the parties. The Father’s solicitor also put to Ms S whether or not it was surprising that in or around June/July 2016 the Child was displaying signs of anxiety at that time. Ms S replied “It is not surprising.” Ms S also said “Yes, it would reflect the tension and conflict between the parties.”
[67] Family Report prepared by Ms S dated 14 July 2017.
Facebook
25) The Father provided evidence that the Facebook post was a letter to the Child, was posted in the days following the Mother’s unilateral relocation to Queensland in July 2016 and that it was not his intention for either the Child or the Mother to see it or to gain a reaction from the Mother. The Father was not Facebook friends with the Mother.
26) The post remained on Facebook only for a few days before the Father deleted it. The Father accepted that it was the wrong thing to do. The Mother’s Counsel put to the Father a list of names of those who had commented on the post. This lead to the Mother’s Counsel then using the phrase “poisoning the water hole”. The Court cannot conclude that there had been “poisoning the water hole” and the evidence does not tend to lead to that conclusion. The Mother confirmed that the people that were listed as those commenting on the Facebook post have not approached the Mother following her return to Town C. There is no evidence that there has been any remarks made to the Mother from anyone regarding her unilateral relocation, and the evidence does not support the proposition that socially this has had any effect on the Mother in Town C so as to add to any isolation that she feels.
27) Ms D accepted that it was the wrong thing to do in sharing the Father’s Facebook post. Ms D was remorseful and gave evidence that if she could turn back time and do things differently, she would. Ms D’s sharing of the post was on the spur of the moment, that it did display a lack of insight, but should be viewed through the prism of the Mother’s relocation to Queensland and the stresses that that brought to the Father and his step‑family.
28) The Mother’s Counsel asked Ms S whether these comments by the Father or the post by the Father was reflective of him being dismissive of the Mother. Ms S answered that some people have a tendency to lash out and that this behaviour was reflective only of their relationship at that time.
Communication
29) The Father has provided overwhelming evidence that the parties, since the return of the Mother in July 2016, have by and large communicated in a businesslike fashion.[68] The Mother disputes this. Nevertheless, the Mother accepted that in difficult circumstances there has been respectful communication. The Father’s evidence also details a number of examples of him foregoing time at the Mother’s request to enable her to attend events or travel to Queensland. The present level of communication has been ongoing and has been building throughout 2017, and is reflective of the type of communication to invite the Court to make an Order for equal time.
[68] Affidavit of Mr Pride sworn on 25 August 2017, paragraphs 73-74.
Incidents from 2011 to 2016 and development of the relationship between the Father and Child
30) The Mother accepted in cross‑examination that there had been no incidents of significance between December 2011 and February 2016. Generally, the Mother gives little evidence of what occurred between 2012 and February 2016, in relation to there being any difficulties with time or conduct or behaviour by the Father. The implication must be that there has been no difficulties, and this is supported by the strength of the father’s relationship with his daughter.
31) The Father gave evidence that he spent time with the Child when at his grandmother’s place and that he was spending time with the Child frequent enough to remain a significant figure in her life. It is submitted that the pattern of time that was in place worked well, suited both parties, progressed well during that period.
32) In cross-examination of Ms S, the Father’s solicitor detailed the time with arrangements from the time of separation to March 2016. The Father’s solicitor put to Ms S that against this background of time, was the relationship between the Father and the Child still developing? It was also put to Ms S by the Father’s solicitor that given the time with arrangements from separation to March 2016 that the relationship had developed at a slower rate? Ms S confirmed that the relationship is still developing and had developed at a slower rate. The Father’s solicitor then put to Ms S that against this background, was there a risk to the continuing developing relationship between the Father and the Child. Ms S gave evidence that there was a significant risk to the development of the relationship, before going onto say that the development of the relationship would be dependent upon the amount of time that the Father is spending with the Child.
Mother’s Schooling, Employment & Financial Capability
33) The Mother gave evidence she completed Year 11, and that she had since attained a (qualifications omitted). The Mother currently works at a (employer omitted) part‑time and gave further evidence about her background and previous work history. The Mother has worked predominantly in (employment omitted) earning $500.00 to $600.00 per week. She is presently working 15 to 20 hours a week earning approximately $25.00 per hour. At the (employer omitted) the Mother is that she was eligible for extra shifts, which she takes up from time to time.
34) The Mother is also in receipt of Centrelink benefits provided to her on a fortnightly basis. The evidence was that she receives a single parent pension of $200.00 per fortnight, as well as Family Tax Benefit B, which was $220.00 per fortnight. The Mother gave evidence that if she earns too much, then her Centrelink benefit, more particular her single parent pension, would come down. The Mother accepted in cross-examination that her employment arrangements allow her to maximise Centrelink benefits.
35) The Mother gave evidence that she no longer wishes to pursue studying (course omitted).
36) The Mother is living rent-free. The Mother gave evidence that in her household, between five people, she pays for groceries in the amount of $250.00 per fortnight.
37) When asked by the Father’s solicitor how much money the Mother answered that she had in the bank a sum of $2,000.00. The Mother also gave evidence that if she were permitted to relocate to Queensland, the money would be used towards her relocation. There is no evidence in relation to how she will fund both her and the Child’s return travel from Queensland to Town C no less than four times per year. The Mother did not file a Financial Statement. The Mother’s parents did not file a Financial Statement. The Mother’s parents did not provide any evidence about their capacity to provide to the Mother any financial support. To that end, there is no evidence upon which the Mother could possibly rely in arguing that she has the ability to overcome the financial difficulties posed by relocation and facilitating time between the Father and the Child.
38) Both parties gave evidence that they will do everything that they can to facilitate the Child having a relationship with the Father is the Mother is permitted to relocate. The reality is that both parties do not have the financial capacity to even entertain the Child travelling to Town C at least four times per year. The Father’s financial position will be further compromised by upon the birth of his child with Ms D in 2017.
39) It is submitted that there is a considerable lack of planning in the Mother’s case.
Concluding Submissions
40) The Father repeats the brief submissions at pages 16-17 in his Outline of Case. Should the Child move to Town D, Queensland it is submitted that:-
a) the outcome of such move is unknown and is risky;
b) it will destabilise the Child;
c) it will severely impact on the time the Child has with the Father;
d) it will impact the Father’s ability to have a meaningful relationship with the Child;
e) it will impact on the time the Child spends with her friends and the Father’s extended family;
f) it will prevent the Father from attending her school activities and participating in everyday activities. It will result in the Father being a “holiday dad”;
g) the Child will be separated from her step-siblings, of whom she has a close relationship and soon to be born half-sibling. This will be deeply unsettling for her;
h) it will, most likely, lead to difficulties with the Child when she spends time with the father and his family of the Child not wanting to return from that environment, given her delicate age;
i) simply, the practical difficulties are too great to overcome.
41) The mother is well settled in Town C. The Child has stability and routine. She is performing well at school. She has strong and close relationships with the important people in her life. The father provides her with a positive and beneficial home life whilst she is his care. Her relationship with her father continues to grow and strengthen, and importantly she is soon to have another sibling in her life.
42) Ms S recommends that due to all of the elements that exist for this child, in particular the circumstances of each parent, the respective living arrangements, the age of the child, the age of other important people in the child’s life, the proximity of the party’s households, the child’s schooling and development, and the businesslike way in which the parties are able to communicate, that it is appropriate for [X] to be in living in a shared care arrangement, to be transitioned to over the next 18 months.
The Mother’s further submissions, filed 20th June 2018, at the Court’s invitation, were as follows:
1) These submissions are made in accordance with the request from the Court dated 30 May 2018 and address only the possibility of the mother relocating to Queensland after a delay of some period of time.
2) In answer to that issue, the mother relies on her original submissions filed 6 November 2017 in particular paragraphs 1 -7 and 72. What follows are some more detailed submissions as to the option of delay.
3) Ms S’s comments in relation to a “third way” involving a delay were linked to the child’s age and to letting all parties settle after the litigation. The suggestion contained within Counsel’s question was for 12 months delay and Ms S then looked at pros and cons, including for a one or 2-year delay.
4) Ms S also suggested a different “third way” of both parents relocating to Town D.
5) The child is turning 8 this. Ms S’s evidence was that the best outcomes in relocation matters are for children before the age of 12 and from about 7.
6) This matter was heard on 12 and 13 September 2017. If judgement is given as suggested in the Court’s email, ten months will have passed.
7) The mother would not remove the child from school prior to the end of the academic year, such that her application is for a move during the school holiday period. Initially, her hopes were for a move in the 2017-18 summer holidays. She now proposes a move in the 2018-19 holidays. This would increase the period between hearing and the move from ten to sixteen months.
8) The essential question is: what is the benefit to the child of a delay? Completing her school year with her friends provides a social benefit and has always been the mother’s intention. Spending additional time in close proximity to her infant sibling provides an emotional benefit, and by December 2018 that child will be a year old. Continuing to work with her counsellor may provide a psychological benefit to [X].
9) In many cases, additional time in close proximity to the non-relocating parent provides the child with an opportunity to cement a meaningful relationship with that parent. Ms S’s evidence was that in this case, [X] has a secure attachment to her father that will survive the relocation if there are regular visits. The additional time since the hearing and until December 2018 gives the child and the father more time to consolidate that relationship.
10) It is difficult, based on the evidence in the case including Ms S’s comments, to see a clear benefit to the child of a delay in relocation beyond the current school year.
11) Of significance in Ms S’s mooting of the pros and cons was the potentially negative impact on the mother of a delay in the relocation. Already, the mother is suffering away from her family and unable to properly move on in the same manner as has been achieved by the father. A delay in her relocation puts off the start of her new life; to the detriment of the mother with a flow on effect on the child.
12) For that reason, the mother is unable to support a delay beyond January 2019.
Consideration & Disposition
In U v U, Gummow and Callinan JJ stated the perhaps obvious point that becoming a parent has implications for a person’s freedom to do as he or she wishes, including very often where he or she chooses to live. Necessarily, being a parent imposes obligations and restrictions. Their Honours said, at [92]: [86]
… maternity and paternity always have an impact upon the wishes and mobility of parents; obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement having been incurred.
[86] U v U (2002) 211 CLR 238
In the same case, Hayne J said, at [176]:
… it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.
In more detail, I note the following.
In AMS v AIF, Kirby J simply observed that there is, in parenting cases that involve relocation, a “large element of judgment, discretion and intuition.”[87]
[87] AMS v AIF (1999) 199 CLR 160 at p.211 [150].
In the same case, Hayne J said (internal citations omitted):[88]
[204] The problems that family law legislation deals with are human problems: with all their attendant variety and complexity. And at the end of a court proceeding under such legislation, a judge must make an order - usually an order that says yes or no to some application. "[A] complicated mass of human experience has to be reduced to the simplest possible terms." Because the problems are human problems, because they are as varied and complicated as they are, the legislature speaks in terms more often found in statements of aspiration than legal prescription. It is, then, hardly surprising that the guiding principles prescribed by the legislation for application in cases concerning the guardianship or custody of children or related issues, are principles that seldom, if ever, permit syllogistic reasoning.
[205] Further, when considering the reasons given by a judge who has made an order in an application about the guardianship or custody of children, it is necessary to bear steadily in mind that the judge must grapple with the chaotic complexity of real life, make predictions not only of what he or she concludes may happen in future but also of what will be "best" for the child, and do so having regard to what the parties have chosen to contest or emphasise in the course of the hearing.
[88] AMS v AIF (1999) CLR 160 at p.228 [204] & [205]. Of course, the comments by both Kirby & Hayne JJ are in a legislative context different to that which operates today. Accepting that qualification, respectfully, their Honour’s comments, in my view, are nonetheless important.
Somewhat more recently, Warnick J said:[89]
In most cases about parenting orders under the Family Law Act there is no conceptual difficulty in the court applying the principle that the best interests of the child are the paramount consideration. However, that is not so when deciding upon orders in what have become known as “relocation cases”. That is because, when in relocation cases regard is also had to another consideration, namely the right to freedom of movement of a parent, a delicate interplay of concepts arises. That is on the most favourable view of it. On another view, that to which I incline, the result is an imbroglio of principles.
[89] B & B (2006) FamCA 1207 at [1]. Warnick J was sitting as the Full Court, pursuant to s.94AAA of the Act.
Respectfully, I agree with his Honour, and the earlier statements of the High Court to which I have referred.
In a number of respects, it seems to me that the concerns and observations that I have noted reflect the varied interplay of facts, circumstances, legal principle and discretion, which are the warp and woof of all trials. Such matters were more elegantly put by the High Court in the joint judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy, in that Court’s consideration of appellate intervention. Their Honours said (internal citations omitted):[90]
On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance.” On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
[90] Fox v Percy (2003) 214 CLR 118 at pp.125-126 [23]. See also the extensive discussion by McHugh J in the same case at [65] – [93].
Two other preliminary comments are important to record here also. First, the Full Court observed in Wiley & Wiley (a “relocation case”):[91]
... it has to be remembered that no two cases which involve the possibility of children being moved from their established residence and from one of their parents will ever present in an exactly identical way to the judge or Federal Magistrate who has to determine such cases. In every such case, issues peculiar to that case will arise. Moreover, no two judicial officers will necessarily see the issues arising in any particular case as capable of treatment (for example within the framework of the provisions of s 65DAA) in exactly the same way.
[91] Wiley & Wiley (2008) FamCAFC 153 at [70].
Secondly, in U v U, Kirby J emphasised the importance to consider the long-term interests of the child rather than just focusing on the short term.[92]
[92] U v U (2002) 211 CLR 238 at p.283 [164]. His Honour said: “It is also highly desirable that courts, such as this Court and the Family Court of Australia, should consider such [relocation] cases in accordance with principles that are consistent, conformable to like legislation and attentive to the paramount consideration of the best interests of the child, viewed in the long term and not just the short term.”
I recall too Kay J’s important observation in Godfrey v Sanders, at [36], where his Honour said: “Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.” Similar comments were made by Dessau J in relation to a long-distance and meaningful relationship in M v S at [45] (emphasis added):
I am conscious that a long-distance relationship, with longer but less frequent times spent together, is inevitably different from a relationship where people live closer together with regular face-to-face contact. But it does not itself mean it cannot be meaningful.
All of the comments I have just referred to apply to the facts, circumstances, principles and discretion in the current proceedings.
It is as well also to set out now the jurisprudential framework or scaffold to which the Court must have proper reference.
In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Act. Respectfully and gratefully I adopt her Honour’s comments. Brown J said:[93]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))
[93] (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about the term “meaningful”, as used in Part VII of the Act, in the context of what is comprehended by a “meaningful relationship.” At [20] through to [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[94]
[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.
[94] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks.
[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.
Finally, I consider – briefly – such matters not otherwise addressed in these reasons that might be said to arise out of “relocation cases.”
In F v F, I set out a summary of relevant principle drawn from High Court and Full Court authorities in relation to relocation.[95] That summary is set out below, but with an edited selection of internal citations quoted; thus:[96]
a)In the absence of legislative direction, no single factor is dispositive of decisions governing residence of a child in a context of the proposed relocation of the parent with whom the child resides. (AMS v AIF, Kirby J, [143]; cf. Powell v Ptolemy, [48]).
b)The over-arching issue is to ensure that any parenting order is in the best interests of the child. (AMS v AIF, Kirby J, [144]; U v U, Gummow & Callinan JJ, [80],[97] Hayne J, [171]; Bolitho v Cohen, [71]; Powell v Ptolemy, [40]). This is also to say that if there is a conflict between the welfare or best interests of the child, on the one hand, and the legitimate interests and desires of the parents, on the other, priority must be given to the best interests of the child. (AMS v AIF, Kirby J, [144]; Hayne J, [217-219]; cf. Goode v Goode, [72]).
c)Freedom of movement of parents is a significant priority. That freedom is linked with the object of family law legislation to facilitate parties to a broken relationship to start a new life for themselves, including the possibility of forming a new relationship “free from unnecessary interference from a former spouse or partner or from a court.” (AMS v AIF, Kirby J, [145]. On “freedom of movement” generally, see AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [40-45]; Gaudron J, [96]; U v U, Gummow & Callinan JJ, [89]; cf. Powell v Ptolemy, [36]). Inhibition of movement may impinge upon the happiness of the custodial parent, which may in turn be transmitted to the child. (AMS v AIF, Kirby J, [145]).[98] Freedom of movement, however, takes second place to the paramount interests of the child.
d)There is no presumption in favour of a custodial parent to reside wherever he or she wishes. (AMS v AIF, Kirby J, [146]).
e)The applicant who seeks to relocate need not establish “compelling reasons” for such a move. (AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [47]; Gaudron J, [92]; Kirby J, [191] & [195]; Hayne J, [209]; U v U, Gummow & Callinan JJ, [82]). Nor does either party bear an onus to establish whether relocation is, or is not, in a child’s best interests.
f)Transport and modern means of telecommunication may be relevant factors in making proper arrangements (“new and different facilities of access and contact … with the other parent”) as between a child and his or her non-resident parent, especially in relation to relocation within Australia. (AMS v AIF, Kirby J, [147], [148 & 192]; Paskandy v Paskandy, [57]; cf. M v S and “virtual visitation” [93]).
g)In determining a relocation case that involves changed parenting arrangements, a court must evaluate each of the proposals advanced by the parties, without necessarily being bound by them. (U v U, Gummow & Callinan JJ, [70 & 89]; Hayne J, [171] & [172]; Bolitho v Cohen, [83-85]). Put another way, without embarking upon “some roving inquiry”, and subject to the evidence led – and affording procedural fairness to all – a court will not necessarily be constrained solely by the proposals of the parties in determining what is in the best interests of the child. (U v U, Hayne J, [172]; Bolitho v Cohen, [84]; Powell v Ptolemy, [40]).
[95] F v F (2008) 38 Fam LR 52 at pp.56-58 [7]. A more abbreviated summary is provided by Ryan J in Sheldon & Weir (No.3) at [244] & [245].
[96] It will be seen that, in the light of Full Court authority which confirmed that the earlier decision of A and A (2000) FLC ¶93-035 no longer reflects the principles to be applied in relocation cases and, therefore, should not now be followed, all references to that case have been omitted. See Hepburn & Noble (2010) FLC ¶93-348 at [100], and Cales & Cales (2010) 44 Fam LR 376 at [139].
[97] It should be noted that in U v U, Gleeson CJ agreed with the judgment of Gummow & Callinan JJ, as well as with the comments of Hayne J. See (2002) 211 CLR at p.240 [1].
[98] Cf.Payne v Payne [2001] Fam 473, where Thorpe LJ, summarised, at [26], the two governing propositions under UK legislation and judicial authority over 30 years in relocation cases as (a) the welfare of the child is the paramount consideration and (b) refusing the primary carer’s reasonable proposals for relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. See also the reasons of Dame Butler-Sloss P [85], as well as the comments of Bryant CJ and Finn J in Taylor & Barker (2007) 37 Fam LR 461 at [84] – [113].
This summary of principle must, of course, be understood in the context of the ‘prescribed legislative pathway’ or scaffold in Part VII of the Act, to which I have already referred. Thus, as stated by Bryant CJ and Finn J, who constituted the majority in Taylor v Barker, at [53] (internal citations omitted):
We agree that 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.
To this instruction, I note too the similar, and slightly more fulsome, remarks by the Full Court in McCall v Clark, where their Honours said, at [60]:[99]
In Sealey & Archer [2008] FamCAFC 142 the Full Court (Bryant CJ, Finn and Thackray JJ) said at paragraph 63:
While it has been recognised that the Act does not provide any express direction or guidance as to the overall order in which the provisions of Part VII must be applied (Taylor & Barker (2007) FLC 93-345 at [62]), the legislation does require in s 61DA that when a court makes a parenting order, it must apply the presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility for the child (unless there are circumstances in which the presumption does not apply, or in which it would be inappropriate to apply it, or it is rebutted), and it further requires in s 65DAA that if there is to be equal shared parental responsibility for the child, consideration must be given to the child spending equal time (or if not, substantial and significant time) with each parent.
[99] See also the Full Court’s discussion in Starr & Duggan [2009] FamCAFC 115 at [38] & [39], and by Ryan J in Sheldon & Weir (No.3) at [242] – [243].
And at paragraphs 66 and 67:
Again as was recognised in Taylor & Barker (supra, see in particular paragraphs 58 and 77-83), in a case which involves a proposal that there be a significant change in the place where a child lives, it is appropriate for a court in its application of s 65DAA, and particularly s 65DAA(5), to canvass the advantages and disadvantages of a proposal “to re-locate” the child. We would also expect that the court would have addressed the matters arising under s 65DAA(5) in the context of its consideration of relevant s 60CC matters.
In making the latter observation, we should say that we do not see anything said in Taylor & Barker as suggesting that a trial judge would ignore the relocation proposal when making the necessary s 60CC findings…
Finally, I turn to the detail of the legislative scaffold in Part VII of the Act, and s.60CC(3) in particular, in the light of the evidence before the Court. In the summary that follows, I should be taken to follow each of the “considerations” sequentially, unless otherwise specified, and that each comment or observation, also unless otherwise specified, should be taken as a formal “finding” by the Court.
The “views of the child” are somewhat equivocal. It was confirmed that she has stated to her Father, at times, that she does not want to see him, that she wants to move to Queensland, and that she does not wish to change the “5/9 arrangement” that currently applies. Given her relatively young age, little turns on her “views”, save that the observations recorded by Ms S suggest that, the child’s secure relationship is with her Mother and is continuing to develop with her Father. This might be explained by the uncontested evidence that the child spent sporadic time with the Father, largely from when the parties separated until perhaps 2015.
The comments just made apply equally to s.60CC(3)(b) regarding the child’s relationship with her parents. I note further that the counselling notes record the child’s regular expression of her closeness with her maternal Grandmother and that she missed her. The child also commented on the typical sibling “conflict” with her step-Mother’s, Ms D’s, children.
The earlier comments under the consideration of the child’s “views” also apply to s.60CC(3)(c), (ca), (f), (g) and (i), specifically regarding the early stages of the child’s life and the Father’s somewhat sporadic or ad hoc arrangements to spend time with the child, which the Mother regularly accommodated. The Father acknowledged the Mother to be a “good Mother”. The Father had, at times, a quite unsophisticated view of parenting generally and a somewhat simplistic view of his “entitlement” to spend time with the child. I accept his acknowledgement (and that of Ms D) of the distress he, she, and their friends, caused the Mother, particularly regarding the Facebook saga or incident. That said, his actions and insight seemed to arise frequently only after he had sought some legal advice (and it is obviously proper and commendable that he sought it), and/or or even while he was in the witness box.
I have no such qualms regarding the Mother in relation to any of these “considerations.” But for the single aberration of staying in Queensland, she has facilitated the child’s relationship with the Father, even in circumstances where the parents are in the midst of difficulty.
Perhaps the primary consideration in the current matter, as partly acknowledged by Ms S, arises under s.60CC(3)(e), regarding “practical difficulty and expense.” I accept, on the one hand, the Father’s submissions, that there was little evidence before the Court regarding the Mother’s capacity to honour her commitment to pay the travel costs associated with the child spending time with the Father and his family in Town C. That said, I accept the Mother’s evidence that she will honour that commitment, aided with the assistance of her family. The Court will make it a condition of the Mother’s relocation that she pay such travel costs associated with any airfare for the child, for the first five years following relocation to Queensland.
I also accept the Father’s firm evidence, given on more than one occasion, that if the Mother and the child relocated, he would “make it work.” He struck me as nothing if not a very determined person, and therefore I would have significant confidence that I could count on his word in this regard.
Accepting the Father’s evidence in this regard (about making the Orders of the Court “work”) is also relevant to the consideration of [only] making Orders that will lead to the least likelihood of further litigation regarding the child.[100]
[100] See s.60CC(3)(l).
The only matter of domestic violence referred to was acknowledged to be quite some years ago by the Father towards the Mother. While she feels intimidated by the Father, which I accept, in my view, there is no recent incident to which the Court can or should have regard.
Both parties seek an Order for equal shared parental responsibility. That Order will be made by consent.
In making such an Order, the Court is thereby required to consider the terms of s.65DAA regarding “equal time” or “substantial and significant time”. In my view, (a) given the developing nature still (as recorded by the Family Consultant) of the child’s relationship with the Father, it is not in the child’s best interests to have a shared care/equal time arrangement with her Father and Mother, and in consequence (b) until the Mother and child relocate to Queensland, it is in the child’s best interests to spend five nights per fortnight with the Father and nine nights per fortnight with the Mother. This is to ensure that the child’s relationship with the Father (and his family) is consolidated, and which also recognises the Mother’s long-time primary care of the child.
Absent agreement in writing between the parties, the configuration of the “time-with” arrangements shall be with the Father from after school each alternate Friday until before school on Tuesday, and for one overnight time in the “off week”, that night to be agreed, and in the absence of agreement, it will be Wednesday night.
More generally, subject to what I have said in these reasons, while the Father’s submissions were well done and helpful, for my part, I prefer and accept the Mother’s primary submissions.
In the absence of agreement in writing between the parties the configuration of time to which I have referred shall apply until the Mother and child relocate to north Queensland (within 50 kilometres of Town B) at the commencement of 2020. Thereafter, Orders 8 - 15 as proposed by the Mother in her case outline shall apply, noting in particular that it is a condition of the Mother relocating that she pay for all air travel for the first five years following her relocation. Thereafter, such costs shall be as agreed between the parties, which shall be facilitated, if necessary, via mediation.
If the Mother ultimately chooses not to relocate, in my view, it will remain in the child’s best interests (absent any other agreement in writing between the parties) for the 5/9 arrangement to remain in place.
Conclusion
In coming to this conclusion of a “third way” that will enable the Mother to relocate, but at a later time than she would wish, I draw attention, in the first instance, to the comments of the Full Court in Blanding, which also involved a parent seeking to relocate and being permitted to do so.[101]
[101] Blanding v Blanding (2017) 55 Fam LR 218.
In the course of considering at some length the grounds of appeal, the plurality (Ainslie-Wallace and Berman JJ – with whom Finn J generally agreed) said, at [141] – [142]:[102]
[141] There was thus ample evidence on which his Honour could conclude that the mother’s happiness in not relocating would not only affect her but also the children. We do not then accept the submission that this was a factor of no relevance to his Honour’s determination.
[142] This ground devolves to an argument that his Honour apportioned disproportionate weight to this matter against the other countervailing considerations. As his Honour’s reasons make clear, this was not the sole basis for his determination that the order sought by the mother should be made. However, in his view, it was the most important. The weight or importance to be placed on evidence is a matter exquisitely within the preserve of the trial judge and we are not satisfied that in giving it the weight he did, his Honour erred.
[102] See also the Full Court’s comments at [148] regarding issues of “weight” given by the trial Judge to certain evidence. The Court there said that such matters were “entirely a matter for his discretion.”
Then the Court said further, at [153] and [159] – [160]:
[153] It was contended that his Honour should have “indicated what weight he places on their views and why”. We reject this submission, which carries with it the suggestion that a judge, in considering a range of issues as part of the exercise of a wider discretion in relation to the best interests of children, is in some way required to indicate “weight”. Such a submission misstates the very nature of the weighing process. His Honour clearly rejected the concern that the father had influenced the children directly but was open to the proposition that being aware of his opposition may have an influence on their views. In our view nothing further was warranted nor needed to be said.
…
[159] His Honour carefully and clearly considered the father’s desire to remain a part of the children’s lives. He was conscious of the additional time spent by the father by being involved with the children’s after school activities. His Honour found that the children had a close and normal relationship with the father and the mother [20]. He further took into account that a move to the Region 1 will change the children’s circumstances and that they will see less of their father than before [25].
[160] His Honour referred to and took into account the difficulty and expense of the father spending time with and communicating with the children at [26]. He noted that while it would not prevent them from communicating, it would be more difficult and expensive [27]. His Honour further considered these issues when determining the advantages and disadvantages of the parties’ proposals [44(a)] to [44(e)].
Finally, at [166], the Court said:
In any event, the apportionment of weight or importance to evidence is a matter for the exercise of the trial judge’s discretion. As we have already said, the bar to appellate intervention in relation to such asserted errors in the exercise of discretion is high (see Gronow v Gronow (1979) 144 CLR 513).
In my view, there are many factual and other similarities between the present matter and the case dealt with by the Full Court in Blanding.[103] I need not say more about the utility of any comparison or evaluation of the current matter in the light of similarities in Blanding, other than to recognise the obvious fact that each case is necessarily “fact specific.”
[103] See also the comments by the Full Court in another “relocation parenting case” in Sigley v Evor (2011) 44 Fam LR 439, particularly in relation to what constitutes a “meaningful relationship” in contrast to it being unnecessary to ensure that there be an “optimal relationship.”
Next, in “weighing” all the evidence, which is neatly summarised in the parties’ submissions, in my view the following matters, “finely balanced” as they are, undergird the Orders the Court makes that are in [X]’s best interests :
(a)The developing relationship between the Father and [X], accepting that currently their relationship is good (evidence of Ms S). Likewise the child’s need to “bond” with her young brother, [C];
(b)The Mother’s isolation and her need to be supported by her family in Queensland, as well as the Mother’s sometimes medicated history of “anxiety” (evidence of the Mother, which was not disputed by Ms S);
(c)The Father’s original agreement for the Mother and child to relocate;
(d)The child “missing” her maternal Grandmother and the reasons for her anxiety (the counselling notes for the child);
(e)The Facebook incident, instigated by the Father and supported by his partner, against the Mother in 2016 (acknowledged by all parties). I do not suggest that this incident was anything more than a “one off” incident, but it did have an adverse impact on the vulnerable Mother and in my view showed significant lack of insight by the Father and Ms D. They now see that their actions were wrong and inappropriate;
(f)The Mother’s capacity to facilitate the child’s relationship with the Father. It was accepted by the Father that, but for her staying in Queensland on one occasion, she has facilitated [X]’s relationship with the Father even when the parties were themselves in dispute;
(g)The financial capacity of the Mother to cover relevant travel costs, albeit that this evidence was rather slight;
(h)The evidence of Ms S regarding the impact of a relocation on the relationships here was not that it would make them “difficult” but more a question of them “being different.” This accords with comments from, among others, the Full Court in Godfrey & Sanders, about a relationship with a child being “meaningful” as opposed to “optimal”. It also accords with the High Court’s comments in U v U about the importance for the Court to take a “long term” account of what is in the child’s best interests rather than only a short-term one.
These factors, when assessed against the outline of principle in the plurality judgment of Bryant CJ and Finn in Taylor v Barker, in my view, lead to the conclusion that it is in the best interests of the child to relocate to Queensland with her Mother, but not before January 2020. I make the Orders that I have earlier set out in these reasons.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 3 August 2018
[84] M v S (2008) 37 Fam LR 32
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