R and C
[2003] FMCAfam 161
•2 May 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| R & C | [2003] FMCAfam 161 |
| FAMILY LAW – CHILDREN – Proposal to remove child from one part of a state to another – parenting orders – contact orders – shared parenting proposal – planned relocation of mother – place of residence of child when one parent wishes to relocate – proposals of parents about residence and contact with child – best interests of child paramount consideration – child aged eleven years and six months at date of hearing – proposal that child reside for six months at a time with each parent and attend two different schools held to be unrealistic. Family Law Act 1975 (Cth), ss.60B, 65E, 68F(2) AMS v AIF; AIF v AMS [1999] HCA 26; (1999) 24 Fam LR 756; FLC 92-852 A v A: Relocation Approach [2000] FamCA 751; (2000) 26 Fam LR 382; H v L [2000] FamCA 752; (2000) FLC 93-036 |
| Applicant: | D M R |
| Respondent: | L C |
| File No: | NCM 2806 of 2002 |
| Delivered on: | 2 May 2003 |
| Delivered at: | N |
| Hearing Dates: | 3 & 4 April 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitor for the Applicant: | In Person |
| Solicitor for the Respondent: | Perry & Smith |
ORDERS
All earlier parenting orders are discharged.
The child C K R born 20 October 1991 is to reside with the Respondent mother who is to have responsibility for the day to day care, welfare and development of the said child on all occasions when the child is in her care.
The father and the mother are to retain joint responsibility for the long-term decisions affecting the care, welfare and development of the said child.
The father is to have contact with the said child as follows:
(a)on the fourth weekend of each month during school term time, commencing at 6.00 pm on the Friday and concluding at 5.00 pm on the Sunday PROVIDED THAT if the Monday following the weekend is a public holiday then contact will conclude at 5.00 pm on the Monday;
(b)for half of each of the autumn and spring school holiday periods as agreed between the parties and, in default of agreement, the first half;
(c)for the whole of the winter school holiday period in each year;
(d)for the second half of the Christmas/January school holiday periods commencing in December 2003 and each odd numbered year thereafter and for the first half of each of the said school holiday periods commencing in December 2004 and each even numbered year thereafter;
(e)for the weekend that includes Father’s Day in each year;
(f)from 9.00 am to 5.00 pm on any two Saturdays or Sundays during each school term to be exercised in the N metropolitan area provided that the father gives the mother not less than fourteen (14) days notice of his intention to exercise such contact;
(g)for not less than two (2) hours on the child’s birthday if that day falls on a school day or for not less than four (4) hours if that day falls on a weekend, such contact to be exercised in the N metropolitan area;
(h)by telephone each evening during school term time between the hours of 6.00 pm and 6.30 pm, and at any reasonable time on the child’s birthday, the father to telephone the child on her mobile telephone;
(i)by telephone on the father’s birthday, for which purpose the mother shall do all things necessary to assist the child to telephone the father; and
(j)at such other times as the parties shall agree.
The father is not to exercise contact with the child on the weekend that includes Mother’s Day.
For the purpose of exercising contact, the father shall collect the child from the mother or her nominee at the McDonald’s Family Restaurant at Taree at the commencement of each contact and return the child to the mother or her nominee at the conclusion of each contact period.
The father is to have the responsibility for the day to day care welfare and development of the said child at all times when she is in his care.
The mother is to inform the father of any medical specialist appointment arranged for the said child or any illness or injury sustained by the said child requiring treatment at a hospital within a reasonable time of such event occurring.
The mother is to do all such things as may be necessary to authorise the principal of any school attended by the said child to provide to the father on a regular basis at his expense copies of all school reports relating to the child, newsletters, bulletins and information about school photographs as are usually provided to parents of children attending the child’s school.
All documents produced in answer to any subpoena with the exception of exhibits may be returned.
The application is removed from the pending cases list.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT N |
NCM of 2002
| D M R |
Applicant
And
| L C |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the father of a girl called C K R who was born on 20th October 1991 for orders that the mother should not remove the child’s residence from N Heads to N and that the child reside with him. In her response, filed on 21st February 2002, the mother seeks orders that the child should live with her and that the father have contact each third weekend and for half of each school holiday.
Background
The parties commenced a relationship in 1990 and the child C was born the next year. They moved to N Heads in 1995. The applicant was discharged medically unfit from the New South Wales Police Service in 1996. Over the next few years he was obtained psychiatric and other treatment for post traumatic stress disorder and other conditions.
There were several incidents between the parties during the course of the relationship, including an occasion in January 1998 when the applicant removed the child from the C B PriM School. The following day, the respondent obtained an interim residence order from the Local Court at B, and on 5th February 1998 she obtained an Interim Apprehended Violence Order against him. That order was discharged shortly afterwards on certain undertakings. The Family Court at N made orders for residence in the respondent’s favour on 6th February 1998.
The parties resumed their relationship in May 1998, but the respondent left the applicant on 6th February 2000. The child C went with her, and the applicant had regular contact with her from then on.
The respondent suffered from cancer, which resulted in her hospitalisation and surgery in July 2001. The applicant looked after the child until 21st August.
In October 2001 the applicant formed a relationship with a family friend, K A P. That relationship continues, although the parties do not presently reside together.
The respondent sought to move to N with the child. Her family reside in N. The applicant opposed this step and commenced these proceedings in the Local Court at Coffs Harbour. The court made an interim injunctive order on 29th January 2002 restraining the respondent from relocating the child’s residence from the N area.
The proceedings were transferred to this Court, by way of the Family Court, sitting on circuit at Coffs Harbour. On 15th April 2002 Brewster FM ordered that a Family Report be prepared pursuant to s.62G of the Family Law Act and listed the matter for final hearing during the week commencing 24th June 2002. The hearing was not reached during that sittings due to the pressure of other business and on 27th June 2002, interim orders were made by consent providing that the child should reside with the mother and the father should have defined contact with her on the last weekend of each calendar month and for periods of time during the forthcoming school holidays. The consent orders included an order discharging the injunction made by the Local Court restraining the mother from relocating the child’s residence to N. The court ordered that an updated Family Report should be prepared.
On 14th November 2002 the parties signed Minutes of a consent order adjourning the proceedings to the sittings of the Court at Coffs Harbour in April and listing the matter for hearing over a period of two days. An Auslan interpreter was ordered to assist the mother. The consent orders provided that the child C should continue to reside with the mother and the father should have defined contact.
The matter was heard over two days on 3rd and 4th April 2003 with the aid of an Auslan interpreter each day. The evidence did not finish until quite late on the second day, which was the final day of the sittings, and the parties asked if they could make written submissions.
Evidence
The father gave evidence by affidavit and was cross-examined by Mr Roser, counsel for the mother.
The mother gave evidence by affidavit and was cross-examined by the father. One M M W gave evidence by affidavit and was cross-examined by the father. With respect, Mrs W’s evidence did not contain any matter that I considered to be significant.
The mother also relied on affidavits by her parents, J and K C, and two medical practitioners, P L and A N. The applicant elected not to cross-examine any of these witnesses.
There were also two Family Reports made available, both prepared by S P, who was at that time a Court counsellor with the Family Court, employed at its L Registry. Ms P has since left the Family Court. The two reports were the original, dated 6th June 2002, and the updated report, dated 6th November 2002.
The reports are significant in that their recommendations are diametrically opposed. In her first report, dated 6th June, Ms P recommended that:
“Unless the Court finds evidence to the contrary C should reside with her father.”
In the later report, dated exactly five months later, Ms P made this recommendation:
“I recommend that residence remain with Ms C (ie the mother).”
The applicant told the Court that he wished to challenge the updated report and objected to its being admitted. He said that the counsellor was biased and had not gone through a proper process in preparing the updated report. The interview process for the original report took virtually an entire day, but the interviews for the updated report were all over in a morning.
The applicant did not show how the second report indicated a bias when the first report, by the same person, did not. He frankly conceded the difficulty of establishing that a report containing a recommendation unfavourable to his case was biased when an earlier report by the same author that did favour his case was not biased.
I decided that I would admit both reports into evidence and offered the parties the opportunity to cross-examine the counsellor. The counsellor had since left the employment of the Family Court, but some inquiries revealed that she would be available for cross-examination by telephone after 4.00 pm on Friday 4th April. Mr Roser of counsel, for the mother, did not seek to cross-examine the counsellor and the applicant then decided that he, too, would not require her for cross-examination.
In his cross-examination, the father admitted that he had not planned on what should happen if the child C were to remain living with her mother. He said that he wanted C to live with him, and that the mother could have contact on Tuesday and Thursday evenings. He agreed that that arrangement would not be viable if the mother were to remain living in N.
The father said that C was “as happy as can be expected” living in N and she likes her school. She has made a number of new friends. The father emphatically denied that the child enjoyed a close and loving relationship with her grandparents although he admitted that they love her. He said that there was no doubt that the mother loved C and, after a pause, agreed that the child loved her mother.
The father conceded that there were advantages for the mother in living in N, but felt that the disadvantages for C outweighed the advantages. The main disadvantage he described as:
“The glaringly obvious that she can’t see her father that she’s always been with, the current access is not good for her. We get to see each other 47 hours once a month. That’s hard on her when we could see each other every day.”
The father said that his current position was that his life is his daughter. He will not be able to work again for medical and psychological reasons. He did not intend to move to N. He was involved in a serious motor car accident, which involved being trapped in the car. He went back to work and was subsequently hit by a truck. He has been diagnosed with post traumatic stress disorder. The symptoms include irritability, insomnia, nightmares, anxiety, depression, panic attacks, flashbacks and hyper arousal. He still suffers from some of those symptoms.
He is not currently seeing a psychiatrist or a psychologist, and has not done so for three years. There has not been any psychiatric report, he said, that mentioned that he was not a good father.
The father is involved in a relationship with Ms P, who has a child of her own. He said that his relationship with her has been something that has fluctuated over time. At times, she has lived with him. They were not living together at the time of the hearing but they do spend time together. He believed that they would live together in the future.
The father told the Court, in answer to a question from the Bench, that he had consented to the interim orders in June 2002 because he thought that he had to consent. He believed that the orders were “predetermined”.
The mother gave evidence with the aid of an Auslan interpreter. She gave some oral evidence in chief to update the information about her situation. She has obtained employment and she no longer goes to TAFE. She has commenced work on a casual basis and now works 40 hours each fortnight. She said that this would not affect the times that C went to school.
It was the mother’s evidence that C enjoys her new school, although she had decided to cut down on some of her sporting commitments. The mother said that C is happy to hear from her father by means of daily telephone contact, and she would not stop her from doing that.
In cross-examination by the father, the mother agreed that she had never known him to consume alcohol or administer to himself any illegal drug. She did not entirely agree with his contention that he had always provided her with emotional support. She admitted that there was an occasion that she had attempted to take her own life, saying that she was not thinking straight at the time in what was a very emotional day. She agreed that it was the husband who had called the ambulance.
The mother also agreed that there had been an incident between Ms P and herself which included a heated argument. She agreed that she had hit Ms P but denied that she had knocked her to the ground. She later went around to Ms P’s home with a bundle of flowers and an apology card.
As I mentioned earlier, Ms M W was required for cross-examination. Neither her affidavit evidence nor her oral evidence was of any significance in this matter.
I considered both Family Reports. I note that the father was residing with Ms P at the time of the first report, although they were no longer residing together at the time the second report was prepared. Both parties told the counsellor that they felt that the Federal Magistrate who dealt with the matter in June 2002 “had made his intentions clear, and so the consent orders were made in line with those intentions.”[1] The father told the counsellor that he had never been happy with the result (although I note that he did not seek leave to appeal).
[1] Family Report 6.11.2002, paragraph 2.
In the later report, prepared after the child had moved to N with the mother, the counsellor reported that C had settled into her new life very well and was enjoying school. She still missed her father greatly. She expressed a wish to spend extra holiday time with the parent she did not live with.
Principles to be applied
The principles which apply to matters of this nature are well settled, and recent decisions have not altered the attitude that the Court should take in any significant way. Section 60B of the Family Law Act sets out the overall objects in relation to parenting orders. The object of Part VII of the Act is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Subsection 60B(2) sets out the principles underlying the object of part VII, which are, except when contrary to the child’s best interests:
“(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married, or have never lived together; and
(b)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children.”
In this matter, as in any matter where the Court is required to make parenting orders, the Court “must regard the best interests of the child as the paramount consideration” (s.65E). Section 68F sets out the matters which the Court must consider in order to decide what the child’s best interests are.
The High Court of Australia has considered the relocation question in AMS v AIF; AIF v AMS (1999) 24 Fam LR 756; FLC 92-852. It is an error for a court to require the party who wishes to relocate with the child to demonstrate “compelling reasons” to justify the proposed relocation. The welfare of the child is the paramount, but not the only, consideration. At the same time, it is equally an error for a court to require the other party to provide compelling reasons, or at least a preponderance of reasons, for not permitting the party who wishes to relocate to do so (SMG v RAM (2000) FLC 93-020).
The Full Court of the Family Court has more recently considered the issue in A v A: Relocation Approach [2000] FamCA 751; (2000)
26 Fam LR 382; FLC 93-035, where the court considered the earlier decisions of Paskandy v Paskandy (1999) 25 Fam LR 607; FLC 92-878 and Martin v Matruglio (1999) 25 Fam LR 510; FLC 92-876. The principles to be applied are, in sumM:
a)the best interests of the child are the paramount, but not the only consideration;
b)a court cannot require the parent who wishes to relocate with the child to demonstrate “compelling reasons” for the relocation;
c)the court has to evaluate each of the proposals advanced by the parties;
d)relocation cannot be separated from the issue of residence and the best interests of the child;
e)the evaluation of the competing proposals must weigh the advantages and disadvantages of each proposal for the best interests of the child; and
f)the court must consider the relevant s.68F(2) matters in respect of each proposal.
The Full court went on to say:
“It is to be expected that reasons for decision will display three stages of analysis:
1.A court will identify the relevant competing proposals;
2.For each relevant s. 68F(2) factor, a court will set out the relevant evidence and submissions…
3.On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not the sole consideration.”
It is no longer the case that the court should consider whether the reasons to relocate are genuine, whether they are optional or whether they are seen as important or essential for the orderly life of the parent, as was previously held in B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC 92-755 (at paragraph 9.63). It is still a consideration, however, that in evaluating the competing proposals, the may consider evidence that the proposed relocation would be of benefit to the child as much as to the parent, whilst the inability of a party to move may impose significant pressures upon that parent:
“A very important aspect of a child’s best interests is to live in a happy family environment…Ordinary common experience indicates that long-term unhappiness by a residence parent is likely to impinge in a negative way upon the happiness and therefore the best interests of children who are part of that household” (at page 84,222).
The High Court of Australia again considered the question of relocation in U v U [2002] HCA 36; (2002) 29 Fam LR 74, where a mother wished to leave Australia with the child to return to her country of origin. The Court is obliged to give careful consideration to the proposed arrangements of the parties, but is not bound by those proposals. The court has to look at the matters set out in s.68F. The objective is always to achieve the child’s best interests.
The competing proposals in the light of Section 68F(2)
I am required to give consideration to the relevant s.68F (2) factors as they apply to the parties’ proposals. First of all, I should set out what the competing proposals are.
The father’s proposal is that the child should not relocate to N, or rather that she should return to the N area. This would either require the mother to relocate back to that area, so that a shared care arrangement could recommence, or that the child should reside with the father if the mother wished to remain in N.
The father has an alternative proposal, which was discussed by the counsellor in paragraph 11 of her updated report, and which the father mentioned in his oral evidence on 3rd April 2003. This alternative proposal is that the child should spend six months living with each parent, and that she should attend two different schools for each half of the year. He admitted that he had not thought out the contact arrangements.
The mother’s proposal is that she and the child should reside with the child in N and the father should have contact on the fourth weekend of each month, for half the school holidays, and on a daily basis during school term time.
The Court is not bound to consider only the proposals put by the parties, but may consider other arrangements for the best interests of the children (U v U (supra)). In this case, there does not appear to be any other realistic proposal for consideration. The father does not intend to relocate his own residence to N.
These proposals must be considered in the light of the matters in s.68F(2).
Section 68F (2)(a) – any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding)
This child was born on 20th October 1991. Her wishes are set out in the two Family Reports. In the earlier report, she expressed the wish to stay with her father. In the later report, C is described as saying that she would be happy to live with either parent, and felt that it would be good if the father would move to N.
“She believed that it would be good to spend extra time with the parent she did not live with, and asserted that she and her dad did more fun things together. She agreed with the writer that perhaps this meant that the extra holiday time should be spent with him.”[2]
[2] Family Report dated 6.11.2002, paragraph 7
The child is of an age where her wishes should be given some weight (Harrison & Woollard (1995) 18 Fam LR 788; FLC 92-598; R and R: Children’s Wishes (2002) 29 Fam LR 230). This does not necessarily mean that they should decide the outcome of the case, but they are important and should be considered.
Section 68F(2)(b) – the relationship of the child with each parent and with other persons
C has a close and loving relationship with each parent. There is evidence that she misses the regular contact that she had with her father. She now resides next to her maternal grandparents, whom she sees on most days. The evidence suggests that she has a good relationship with them, although the father disagrees.
Section 68F(2)(c) – the likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either parent
There is evidence that the child misses seeing her father now that she has moved to N, as she used to see him daily. At the same time, she seems to have settled into her new school, and the only downside seems to be the reduced contact with her father.
Section 68F(2)(d) – the practical difficulty and expense of a child having contact with a parent
The father complains about the distance between the homes of the parents. The distance is significant. The father says in his written submission that the child needs to travel 840 kilometres for a contact visit on a weekend. The father submits that this case mirrors the facts in H & L, and that this Court should therefore follow that decision, where the mother was restrained from relocating the children’s residence from S to L.
Section 68F(2)(e) – the capacity of each parent to provide for the needs of the child
The mother has the capacity to meet the child’s physical, emotional and educational needs. I have some concern about the father’s evidence that his daughter is his life. I note that the counsellor in her second report expressed the view that the father “did not demonstrate an understanding of C’s perspective and experience in some of his proposals”.[3]
[3] Report 6.11.2002, paragraph 13
The father’s proposal that the child could spend six months living with each parent, and attend two different schools, is a cause for concern. The father seems not to understand that a proposal that involved a child going from one school to another every six months would be highly disruptive, to my mind, not only to her educational progress but to her ability to make and maintain friendships among her peers. I consider that it is unrealistic and impractical.
Section 68F(2)(f) – the child’s maturity, sex and background
C is aged eleven years and six months, as she was born on 20th October 1991. There is no real significance that she is a girl, as there is no preference by the courts that girls should reside with their mothers (Raby (1976) 2 Fam LR 11,348; FLC 90-104). There is nothing unusual in the child’s background.
Section 68F(2)(g), (j)(etc) – the need to protect the child from physical or psychological harm, family violence etc.
The Local Court of NSW at B made an interim Apprehended Violence Order against the father, but there is no Apprehended Violence Order presently in force. There are allegations of violence in the past.
Section 68F (2)(h) – Attitudes to parenting
Each parent is committed to the child’s welfare. The father is seen as more of the ‘fun’ parent by the child, whilst the mother appears to be more inclined towards enforcing rules.
Section 68F(2)(k) – The Order least likely to lead to further proceedings
It is often difficult for a Court to predict the Orders that would be least likely to lead to further proceedings.
There are no other facts or circumstances that I consider to be relevant.
Conclusions
The father submits that the case of H & L (supra) presents similar facts to this case, and should be followed. In H & L, Flohm J restrained a parent from relocating the children’s residence from S to L, and an appeal against this decision was dismissed by the Full Court of the Family Court. The judgment refers to the fact that a central issue in that case was the fact that L is over 800 kilometres from S.
The father states in his submission that “The distance between N Heads and N is 840 km, the prospect of air travel I believe is out of the proposal.”
I consider that H & L can be distinguished on its facts. I do not accept that the distance between N and N Heads is 840 kilometres, if the distance between S and L is over 800 kilometres. I can take judicial notice of the fact that S is south of N and L is a considerable distance to the north of N Heads. The distance between N and N heads is significantly less than the distance between S and L.
The second Family Report stands. Whilst the father challenged the conclusions of the counsellor, he declined to take the opportunity to test her evidence by cross-examination.
There is a clear indication that the child has settled down in N and is enjoying her school there. It would appear that her desire to stay with her father in N was at least in part a reflection of her fear of the unknown. I am mindful of the fact that, whatever the reason, the father consented to an order that the mother no longer be restrained from relocating the child’s residence from the N area, and the child has relocated without any apparent ill effect. Whilst the father complains about the proceedings in June 2002, he did not, as I mentioned earlier, seek leave to appeal that decision.
I have already expressed a view about the father’s alternative proposal that the child should reside with each parent for half of the year. I see this proposal as not being in the child’s best interests, as it would be highly disruptive to her education and to her ability to make and maintain friendships amongst her peers. It is an unrealistic proposal.
At the same time, it is clear that C and her father are very close, and she obviously misses him. I consider that, whilst she should continue to reside with her mother, there should be additional contact during the school holidays to allow the development of the relationship.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 13 May 2003
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