R and R
[2001] FMCAfam 70
•8 October 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| R & R | [2001] FMCA fam 70 |
| FAMILY LAW – Relocation – Best interest of children |
| Applicant: | J M R |
| Respondent: | A J R |
| File No: | ZB2465 of 2001 |
| Delivered on: | 4 June 2001 |
| Delivered at: | Brisbane |
| Hearing Date: | 31 May 2001 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Applicant in person |
| Respondent in person |
| Counsel for the Childrens' Representative: | Mr Drysdale |
| Solicitors for the Childrens' Representative: | Legal Aid Queensland |
ORDERS
That if the MOTHER chooses to reside permanently within 100 kilometres of the children’s school, then:
(a)The children, T L R, born on 1 March 1990 and A G R, born
23 August 1991 shall live with the MOTHER;(b)The FATHER, shall have contact to the said CHILDREN at all reasonable times as agreed but at least from after school Thursday to before Tuesday each alternate week;
(c)Contact under paragraph 1(b) shall be suspended during gazetted Queensland school holidays, and shall re-commence on the Thursday after the conclusion of the school holidays;
(d)The FATHER shall have contact to the CHILDREN during school holidays as agreed, but failing agreement as follows: -
(i)For the whole of the June/July 2001 school holidays and odd years thereafter;
(ii)For the whole of the September school holidays in 2002 and even years thereafter;
(iii)For half of the Easter and Christmas/New Year school holidays.
That the CHILDREN shall complete their primary school education at the local Adventist School.
That should the MOTHER choose to relocate permanently to North Queensland then: -
(a)The CHILDREN shall live with the FATHER;
(b)The MOTHER shall have contact to the CHILDREN as agreed but at least: -
(i)For the whole of the Easter, June/July and September gazetted school holidays;
(ii)For half of the Christmas/New Year school holidays;
(iii)The costs of travel for contact shall be shared equally by the parties with the MOTHER to pay airfares for the trip to her and the FATHER to pay airfares for the return trip.
That when the CHILDREN are in the care of one parent (whether permanently or for contact visits), the parties shall facilitate the CHILDREN receiving telephone calls at all reasonable times from the other parent, and permitting the CHILDREN to make calls to the other parent at all reasonable times.
That the parties shall inform the other parent within 7 days of any change to their telephone number or residential address.
Pursuant to S65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and Annexure B to these orders.
IT IS NOTED:
That the parties have agreed to explain the decision and this order to the CHILDREN jointly this afternoon after school with the support of the school teacher, TB.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
ZB2465 of 2001
| J M R |
Applicant
And
| A J R |
Respondent
REASONS FOR JUDGMENT
Introduction
In this matter I have before me an application by the mother of two children, T L R, (born 1 March 1990), and A G R, (born 23 August 1991), for, effectively, permission to relocate with the children to North Queensland. The application was opposed by the father, who, effectively, sought that the children not only remain in the area, but that also, the children live in a more shared residence arrangement. When the matter initially came before me on 5 February 2001, I appointed the child's representative, and listed the matter ultimately for trial on 31 May.
Background
The background of the matter was not seriously in contention. The father is 37 years of age, and the mother is 32 years of age. The parties married in May of 1987, and separated in May 1996. Since separation, the parties have generally been able to resolve the issues relating to contact and residence. The father married T in 1997, and T’s two children - A and G - reside in the home of the father and his wife, the home that is the venue for contact on a fortnightly basis.
The family has lived in the area since 1990. The mother has also re-partnered to D, and they have a child, R, who was born on 6 January 2000, he being now 17 months old. Since separation, the children have generally lived with the mother.
There have been two orders of the Court made in proceedings:
a)in March 1998, where the father had contact effectively five nights per fortnight, but in a regime which provided for Wednesday night contact, and alternate weekend contact;
b)and then, from July 1999, an arrangement which continues to date, whereby the father has contact effectively from after school on a Thursday to before school on a Tuesday each alternate weeks.
Competing proposals
The competing proposals of the parties are the mother's part that the children move with her to Innisfail, and that the father have contact for all of the Easter, June and September holidays, and half of the Christmas holidays. She proposes the travel costs be equally shared. The father proposes that the children - if the mother moves to North Queensland - reside with him, and after consideration of Mr Berry's comments during his evidence, he amended his proposal to be the same as that of the mother; namely, that the children would have contact to their mother if they lived in Brisbane with him each holiday, at Easter, June and September, and half of the Christmas school holidays.
It is fair to note that at the conclusion of evidence, the proposal of the child's representative was that if the mother did move to North Queensland, that the children remain in the area and that the children have contact to the mother in North Queensland effectively on the basis identified by the father. The children's representative also provided me with a thoughtful analysis on the advantages and disadvantages of each of the parents' proposals, which I have considered.
Principles to be applied
The principles which apply to a matter of this nature are well settled. Section 60B of the Family Law Act provides the overall objects in relation to parenting orders, and in particular, the importance that a child have the right of contact on a regular basis to both their parents, and with other people significant to their care, welfare and development. It also provides that the parents should agree about the future plans of their children. Regrettably, the parents in this case have not been able to agree.
a) I was directed to section 60B of the Act, and the object of Part VII of the Family Law Act;
i)to ensure that children receive adequate and proper parenting to help them achieve their full potential and ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children;
ii)the principles underlying these objects are that except when it is or would be contrary to the children’s best interests:
·The 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 never lived together;
·The children have a right of contact on a regular basis with both their parents, and with other people significant in their care, welfare and development;
·Parents share duties and responsibilities concerning the care, welfare and development of their children;
·Parents should agree about the future plans of the children.
c)I am conscious, too, of section 65E of the Act:
In deciding whether to make a particular parenting order in relation to a child a Court must regard the best interests of the child as the paramount consideration.
d)I am conscious, too, of the provisions of 68F that:
In determining what is in the child’s best interests, the Court must consider the matters set out in sub section (ii);
e)And very shortly I intend to do so, seriatim.
f)I am of course bound by the clear guidelines formulated by the Full Court in A v A (2000) 26 FAM LR 382, which I remind myself of now:
i)The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration;
ii)A court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances;
iii)It is necessary for a court to evaluate each of the proposals advanced by the parties;
iv)A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be ‘permitted’.”
v)The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child’s best interests;
vi)It is necessary to follow the legislative directions espoused in s60B and s68F of the Family Law Act (Cth) 1975. The wording of s68F(2) makes clear that the Court must consider the various matters set out in (a)-(l) of that subsection.
vii)The object and principles of s60B provide guidance to a court’s obligation to consider the matters in s68F(2) that arise in the context of the particular case.
viii)It is to be expected that reasons for decision will display three stages of analysis. And:
·A court will identify the relevant competing proposals.
Evidence
The mother and father represented themselves, and had filed an affidavit supported by an affidavit of their current partner. All witnesses were cross-examined. I found that all witnesses gave their evidence truthfully. I was also impressed by the insight both parents had into the very difficult decision which I was being asked to make. They both indicated, it seems to me, that they would have preferred not to have been in the position of having to require the Court to make this decision.
It seemed to me to be a credit to the father that he reframed the nature of the future contact that would apply for the mother should the children remain with him, after hearing the evidence of Mr Berry. This is a case where there are no significant allegations of parental misconduct against the other. There are clearly different, but not necessarily better parenting styles being adopted in each of the households. It seems to me that it is best, when looking at the evidence, to consider the evidence as it exists in each of the households.
Mother’s household
The mother had clearly been the principal care-giver to the children during their lives, and since separation, and she presented in the witness box as a relaxed, aware and thoughtful person. She understands the children, and conceded that they had expressed their wish to remain in the area. She has grappled with the competing demands of her new relationship; mothering her infant, R, and anxiety of her desired move to North Queensland, with the prospect that she may be without her two children.
In the mother's evidence, I sensed an uncertainty as to whether, if the move to North Queensland did not work, she would return to this area. She identified as one of the issues that might impact upon her decision to remain in North Queensland, how much she missed the children, if they were not with her, or if the children were with her, how much they were missing their father. I gained the impression from her evidence that she would reassess the position, but of course one of the difficulties with such an approach is that there is a degree of dislocation required before that can be assessed.
Although the mother says it is a joint decision to move to North Queensland, my perception is that D sees the move slightly differently than that of the mother. That is to be understood because he sees the importance of creating a family with R and the mother, and he obviously has support, both in work and emotionally, from his own family in the North Queensland area. It is no doubt a significant difficulty for him at times to live so far from that support.
He says that he believes the children will cope with the change, and seem more excited about the prospect of living in North Queensland where he has those strong ties, than the mother appeared to me to be. I sense he wants to bring up his own son in North Queensland, and he did not demonstrate the same degree of insight into the possible separation anxieties T and A might experience, that their mother demonstrated.
The mother explained the importance to her and the children of better understanding their Aboriginality, although she did concede that with a longer holiday period, something which the current contact regime makes difficult, she could show the children some of the places where she grew up, and extend the time available to speak to elders of her family, who would provide them with that background.
The mother has adopted and adapted some of the children's dietary and other needs around some of the Adventist faith doctrines which the children now follow. The mother agreed that she supported the children going to a private school, paid for by the father, and that the children's school results have improved. She understands that by going to an Adventist school and living in the father's home that practises that faith, that the children need support so that they are not confused.
Clearly this has been a significant issue in the mother's home, especially where the children have expressed concerns, sometimes to the point of tearful distress, where they see the mother and D (being currently unmarried), living in a relationship not happily condoned by their church and its teachings. The mother's attempts to explain to the children the flexibility and understanding of differences in the non-judgmental way that she espouses have not, it seems, been successful, particularly with A.
A in particular has been more difficult to handle than T. He is described by Mr Berry as articulate, and was described by T as moody. The mother said on a number of occasions that she feels the children do not show her the level of respect that she feels would be normal. She acknowledges that the tensions and uncertainties of this case have had an effect on everyone. The mother says that this decision is the hardest thing she has had to do or consider.
Father’s household
The father presented as a more intense but thoughtful person who cares deeply about his children, but is convinced that they would be better staying in their current school and in the area. He has remarried and that relationship with T appears to be a solid union. He has, since meeting T, become a practising member of the Adventist faith, and when pressed on some of the doctrines of the church he firmly defended them. I sense that on occasions he has felt the need to defend them previously to the mother and perhaps the children. He says that the children have now formed the view that they wish to follow the Adventist faith, and this is perhaps not surprising considering they are going to an Adventist school, and the home in which they spend five days a fortnight practises the Adventist faith both in word and deed.
He is focused on providing for the children's needs, particularly educationally and spiritually. I sensed he is less emotionally aware than the mother, but he showed genuine insight into the difficulties the children would experience if separated from the mother. Whilst his preferred option is to have the mother remain in this area and to move finally into a shared residence arrangement, he varied his holiday contact proposal after hearing Mr Berry gave evidence about the anxieties the children would suffer if the mother moved to North Queensland and they did not.
The communication with the mother which was reasonably good previously, has become strained by the mother's wish to relocate. The leg-shaving incident for T was an example of how a relatively simple yet important developmental event became a part of the conflict. The mother, it seems, thought that T had given approval, whereas the father said he gave the approval for the child to shave her legs. The mother was upset that it occurred without her approval at T's age.
Also, disputes about who disciplines the child in the households have arisen. The father conceded that D, in the presence of the mother, may have to discipline the child, but didn't seem comfortable about it. The mother shared similar views about T. T gave evidence in a forthright manner. She said her two children, A and G, get on well with T and A. When questioned on the impact of her faith upon her children, she explained that their father is not an Adventist and that they have contact with him alternate weekends.
She demonstrated that she had dealt with conflicts in the children being exposed to an Adventist household and a non-Adventist household with her own children. Although she said the Adventist faith recognises Saturdays as “the Sabbath”, she accepts that if a child desperately wanted to play sport on that day, she would permit it if that is what the child really wanted. G apparently already does so. Regrettably, there is little communication between the mother and T. This tension would be known to the children. Efforts to reduce that tension and to forge better understanding of the roles each plays in these children's lives would be very helpful to the children.
Mr David Berry
Mr Berry provided the Court and the parties with a very detailed and helpful report. The parties have read and considered it. I choose not to repeat it verbatim in these reasons. Importantly, Mr Berry identified the differences in the two households and formed a view, which I accept, that the children have a strong bond and attachment to each of their parents, as well as a developing bond with their parents' new partners and the other children in the two households.
The children enjoy and are progressing well at school, which provides some stability to them. They have a wide network of friends and enjoy all school activities, and their smaller, private school provides opportunities for them which they appear to be taking part in. A has expressed a stronger wish to remain in the area than T. This appears in some way also to reflect their different personalities - A being more robust and articulate - T more concerned about feelings and trying to find a solution which pleases everyone.
I agree with the conclusions at paragraph 42 of Mr Berry's report that:
“ There are a myriad of other issues which could be discussed which would demonstrate what a very evenly balanced situation exists in this matter. For every argument or point there is a counter-argument. However, it is reiterated that what shines through is that it would be excruciatingly painful and potentially damaging for the children to be significantly separated from either parent.”
Section 68F(2) factors
Children’s wishes. Mr Berry in his report sets out the wishes expressed by the children that they remain in the area. I put to Mr Berry whether the comments, particularly of T, could be attributed to a desire that there be no change. He did not think that was the case. Certainly he felt that both children preferred the option that everything stay the same but when pressed for a position, A was more comfortable in expressing a firm view that he wished to stay in this area.
Nature of relationship. I find that the nature of the relationship which each child has with each of the parents and with other persons, to be good.
Effect of change. The distance between Ipswich and North Queensland will have an effect on the children's relationship with the parents. It may be, of course, that bearing in mind the close bond that the parents have with each of their children, the effect would be less significant than it may have been if the children were younger. There is no real evidence before me of that.
Practical difficulties. There are no practical difficulties in relation to the children exercising contact to whichever parent they do not live with and both parties have agreed, and there was some costings provided by the child's representative which was helpful, that they will share the expense of air fares which would be on approximately four occasions a year.
Parental capacity. When looking at the capacity of each parent to provide for the needs of the child including emotional and intellectual needs, it seems to me that both parents have the capacity to do this, although both would do it differently. I found it impossible on the evidence to form any view that either parent, when all factors are considered was in a superior parenting position than the other. The Mother, because of her long-term primary carer role has already taken a significant position in the life of the children. However, it should be remembered that since separation, the father has had more than what would be regarded as “normal contact” and in fact the nature of his contact is quite extensive.
Children’s maturity and background. I've taken into consideration the children's maturity, sex and background, including the need to maintain a connection with the lifestyle, culture and traditions of their Aboriginal heritage. Not only is it an important factor under section 65F(2), but it is clearly a matter which the mother regards, quite properly, as of some importance. It would seem however, on the evidence, that during the period that the mother has resided in the area, the extent to which the children have been exposed to their Aboriginal heritage, have been minimal. It may be, of course, that the children now being somewhat older, are better able to understand the importance of this heritage and the orders which I make will, I believe, provide the mother with the opportunity to encourage the children to both seek and to understand more about this heritage.
Child protection. There is no evidence before me that there is any need to protect the child or children from physical or psychological harm. It should be mentioned that the mother did say that she felt the children were in some way being affected by the “guilt brought on by their religion”. I do not find there is any evidence to support that in the way suggested by the mother.
Attitude to the child and parenthood. Again, although different attitudes were revealed, the mother being less structured than the father, a stable, loving and disciplined attitude is demonstrates by both parties.The differences enable the children to explore the unique gifts and qualities of both their mother and father on a regular basis, without risk. The best indication of the positive and insightful attitude to the responsibilities of parenthood, is the achievement by the parties of co-operative arrangements for over five years. The children have coped with approaching puberty, re-partnering by their parents, new siblings and a developing interest in a new faith (all at times major stresses) all in their stride.
Family violence. There are no significant examples of family violence which I would need to take into account under section 68F(2).
Conclusions
Often parenting, like many things in life, is all about timing. Both children at their current age have coped with the changes from the mother's household to the father's household on a regular basis, and even where those households are quite different. The children clearly want everything to stay the same.
I agree with Mr Berry (paragraph 43 of his report), that T and A's interests would be best served by a continuation of the existing arrangements. The law makes it clear that I'm unable to make any orders restricting the mother's movement, nor would I seek to do so. However as the mother feels that she must move to North Queensland, then with some regret, I have concluded the children should remain in The area and continue to attend their current school. I say regret because I am certain these children will greatly miss their mother, D and R.
The holiday contact, as agreed, will go some way to meeting those needs, but I sense the children will still find it difficult initially to adjust. Staying in this area will mean the least number of significant changes for them and therefore the least number of new arrangements to cope with. I have a confidence that the father and T do have an insight into the difficulties the children will experience, and have the capacity to support them through it. I conclude by saying that I hope that the mother re-assesses the timing of her desired move to North Queensland. It is likely that the impact on the children of that move would be less severe on and clearer to the children if it were to occur in a few years time. That ultimately is a question for the mother.
I make the orders set out at the beginning of these reasons.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Baumann FM
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