Read and Manning
[2016] FCCA 889
•20 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| READ & MANNING | [2016] FCCA 889 |
| Catchwords: FAMILY LAW – Parenting – application for temporary relocation of child with mother to (country omitted) for 10-month period – application opposed by father – mother an (occupation omitted) of the (employer omitted) – mother the primary care-giver of the child since separation – both parties reside in different states – consideration of impact temporary relocation will have on child’s relationship with father and extended paternal family – consideration of impact separation from mother would have on the child in the circumstances of change of residence – mother offered security for child’s return to Australia – temporary relocation granted – child to otherwise reside with mother and spend time with father. |
| Legislation: Family Law Act 1975, ss.60B, 60CC, 65DAA, 65DAC |
| Cases cited: AMS v AIF (1999) 199 CLR 160 U v U (2002) 211 CLR 238 Patrick Parkinson, Freedom of movement in an era of shared parenting: the differences in judicial approaches to relocation (2008) 36 Federal Law Review 145 |
| Applicant: | MR READ |
| Respondent: | MS MANNING |
| File Number: | SYC 2493 of 2015 |
| Judgment of: | Judge Wilson |
| Hearing dates: | 3 – 5 February 2016 |
| Date of Last Submission: | 5 February 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 20 April 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Hutchins |
| Solicitors for the Applicant: | Watts McCray Lawyers |
| Counsel for the Respondent: | Mr P. Glass |
| Solicitors for the Respondent: | Nicholes Family Law |
ORDERS
All previous parenting orders are discharged.
The parties have equal shared parental responsibility for the child X born (omitted) 2009 (“the child”).
The child live with the mother.
The child spend time and communicate with the father as follows:
(a)from 6.00 p.m. on Friday until 6.00 p.m. on Sunday on two weekends in each school term, the precise weekends to be agreed between the parties for the following year, no later than 10 December the year prior, with such weekends to include each New South Wales long weekend where practicable and exclude the mother’s birthday, Mother’s Day, Anzac Day weekend and Melbourne Cup weekend;
(b)for half of each school holiday period at the conclusion of terms 1, 2 and 3 each year, the precise times and dates to be agreed between the parties no later than 10 December the year prior, and in default of agreement as follows:
(i)for the second half of each school holiday period in 2016 and each alternate year thereafter (from 6.00 p.m. on the Friday of the first week of the holidays until 6.00 p.m. on the Friday of the second week of the holidays); and
(ii)for the first half of each school holiday period in 2017 and each alternate year thereafter (from 6.00 p.m. on the Friday of the last day of school until 6.00 p.m. on the Friday of the first week of the holidays).
(c)during the school holiday period at the conclusion of term 4 each year as follows:
(i)in 2016/2017 and each alternate year thereafter, for the second half of the summer holiday period, commencing from 6.00 p.m. on the midpoint of the summer holiday period and concluding at 6.00 p.m. on the Friday of the last week of the summer holiday period; and
(ii)
in 2017/2018 and each alternate year thereafter, from
6.00 p.m. on Sunday of the week immediately preceding Christmas Day until 6.00 p.m. on the midpoint of the summer holiday period.
(d)when the father is in the city where the child resides, by agreement between the parties; and
(e)as otherwise agreed between the parties.
The father be restrained from leaving the child in the sole care of MR A during any time the child is in his care.
The child communicate with the parent with whom he is not otherwise living or spending time at least each Monday, Wednesday and Friday between 6.00 p.m. and 7.00 p.m. by telephone, Skype, Face Time, text or any other means.
The parties agree to the other travelling overseas with the child upon the provision of two (2) weeks’ notice to the other party, with such time not to interfere with the other party’s time with the child, unless otherwise agreed between the parties in writing.
The mother be permitted to travel with the child to (country omitted) between August 2016 and May 2017 (or such other time period as determined by the (employer omitted)) if given a position in the (country omitted) Court in (country omitted) by the (employer omitted).
Order 4 of these Orders be suspended between August 2016 and May 2017 (or such other time period as determined by the (employer omitted)).
While the child is in (country omitted) pursuant to Order 8 herein, the child return to Sydney to spend time with the father (at the mother’s expense) as follows:
(a)for a period of three weeks at the conclusion of Term 2 2016;
(b)from 7 October 2016 to 16 October 2016;
(c)from 28 December 2016 to 7 January 2017;
(d)from 30 January 2017 to 4 February 2017;
(e)from 1 April 2017 to 8 April 2017; and
(f)from 17 June 2017 to 14 July 2017.
Prior to travelling to (country omitted) with the child pursuant to Order 8 herein, the mother shall deposit the sum of $20,000.00 by way of security for the return of the child, such sum to be held in an interest-bearing account in the name of the mother’s solicitors as trustee for the parties and such sum to be returned to the mother upon receipt by Chambers of a joint signed letter confirming that the child has been returned to Australia.
The parties will keep each other informed about all information relevant to the child’s care, welfare and development, including but not limited to:
(a)each party is to keep the other fully informed in relation to all issues concerning the health of the child and each party is to notify the other as soon as practicable thereafter, upon the child attending upon any medical or health practitioner and in the event of an emergency each party is to inform the other without delay of the details of the emergency;
(b)each party shall provide to the other copies of all notices received from the child’s schools and details of all functions, parent/teacher nights and other activities to which parents are invited, as soon as practicable following receipt of such documents; and
(c)each party shall provide all necessary consents and authorities to any school at which and/or medical practitioner upon whom the child attends to ensure that both parents are authorised to communicate with the child’s school and treating practitioners at all times.
Each party is hereby restrained from denigrating the other party, or any member of the other party’s family in the presence and/or hearing of the child.
Both parties complete the courses ‘Tuning Into Kids’ and ‘Parenting Orders Program’.
All extant applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Read & Manning is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
SYC 2493 of 2015
| MR READ |
Applicant
And
| MS MANNING |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerned an application by the respondent mother, Ms Manning (“the mother”) of X born (omitted) 2009 (“the child”), to travel with the child to (country omitted) where the two will live for a duration estimated to be 10 months. The applicant father, Mr Read (“the father”), opposed the mother’s application. Over three days in February 2016 I heard the trial of this proceeding.
At the request of the parties, these reasons for judgment were prepared in expedited circumstances with a view to resolving the conflict between the mother and father in respect of the mother’s proposal. In view of the parties’ request for expedition, these reasons are more compressed than would otherwise be the case. The careful submissions of counsel for the parties have hugely assisted in the formulation of these reasons. I am most grateful to counsel for that and for the efficient yet sensitive way they have approached this difficult issue.
Synopsis
For the reasons that follow, in my judgment it is appropriate to make orders in accordance with the mother’s application.
Relevant factual narrative
The father commenced this proceeding by initiating application filed on 22 April 2015 in which he sought orders adjusting property matters as well as parenting orders concerning the child.
The father was 37 years of age when this proceeding was heard. The mother was 35 years of age when this proceeding was heard. The parties married on (omitted) 2007. Their child was born in (omitted) 2009. The mother and father separated on a final basis in December 2013. Their divorce became final in November 2015.
Before turning to the child, it is necessary to say something about each of the father and mother.
The father
Following final separation, the father worked in a (occupation omitted) capacity in Melbourne while studying (course omitted). He later qualified as a (qualifications omitted). In August 2014 or thereabouts the father moved to Sydney on his own to work for a (employer omitted) there.
The father commenced a relationship with his current partner, Ms J (“Ms J”), in March 2014. The two met in 2004. The father deposed that he has lived in Sydney with Ms J since February 2015. Ms J deposed that the parties commenced cohabitation in March 2014. They are expecting a child in (omitted) 2016.
The mother
At all relevant times in this proceeding, the mother has been a (occupation omitted) in the (employer omitted). She obtained university qualifications and then worked for a time as a (occupation omitted) later joining the (employer omitted) during her pregnancy. The mother took up full-time employment with the (employer omitted) in 2011. She is a (occupation omitted) who, at the trial of this proceeding, had a posting to the (employer omitted) in Melbourne.
A co-operative approach to parenting to date
The uncontroverted evidence in this proceeding was that the mother has been primarily responsible for attending to the child’s day-to-day needs for the entirety of his life. Highly co-operative arrangements have existed over several years by which the father spends time with the child. Despite the fact that the father currently lives in Sydney and the mother lives in Melbourne with the child, for the most part, the parties have co-operated with all changeovers, holidays, spend-time arrangements and other necessary events to ensure the smooth day-to-day existence for the child. The mother and father have exhibited a highly commendable focus towards ensuring that the child is and always has been uppermost in their considerations. The evidence given before me by the mother as well as by the father demonstrated a degree of respect towards the role each other had performed and was required to perform on an on-going basis so as to best advance and promote the interests and welfare of the child. Each of the father and mother have moved on, past their marriage, yet their evidence struck me, powerfully, that each was complimentary of the role the other played in the child’s life. Each recognised, as they should, how critically important it was that the other should enjoy a full, deep and harmonious relationship with the child.
The father currently (occupation omitted) in Sydney in the field of (employment omitted). He and Ms J told me how they looked forward to the birth of their child, expected in (omitted) of this year. Ms J is also a (occupation omitted). She has one three-year-old daughter, A. She expressed enormous enthusiasm at the prospects of a new baby in their lives. According to her evidence, her daughter A already refers to the child as “my brother” and to the father as “daddy”. Ms J gave evidence that impressed me to the effect that she, the child’s father and the other members of that extended family do and will continue to provide a calm, happy, stable and loving family where the child feels secure and loved.
Insofar as it may be necessary for me so to be, I am well satisfied that the living arrangements offered by the father and Ms J in which the child will henceforth live advances the child’s interests in that they will provide a safe, secure and loving environment in which the child can grow.
The evidence revealed that the child currently travels between Sydney and Melbourne with a high level of frequency and that he does so satisfactorily. In more recent times he has been travelling by plane as an unaccompanied minor.
The genesis of this application
The real points of contention between the mother and father in this application can be reduced to a handful of propositions.
The mother wishes to advance her (employer omitted) career by participating in a short-term posting to (country omitted) with the child. She argues that doing so will provide the child with cultural exposure that he would not otherwise get by living in Australia over the equivalent period. The mother says that while living in (country omitted), the child’s development will be enhanced; he will live with her; he will be schooled in (country omitted) and the (employer omitted) will provide financial assistance.
The father opposed the mother’s proposal. He contended the mother’s career could be advanced in the same manner and with the same speed if she undertook courses in Australia rather than in (country omitted). The father argued that it was neither necessary nor desirable to expose the child to life in (country omitted) for the time the mother proposed. The father said that he would be denied the same amount of time to spend with the child if the child lived in (country omitted) for the 10-month period proposed. The father said that the amount of travel the child would need to make over the 10 months that he lived in (country omitted) would place an undue burden on the child both physically and emotionally, none of which was warranted in the circumstances.
Against that background, but before addressing the statutory elements that I am required to address, let me now turn to certain matters of law.
Applicable legal principles
In 2006, the Federal legislature enacted amendments to the
Family Law Act 1975(Cth) (“the Act”) that had the effect of encouraging a greater level of shared parenting, giving greater emphasis to the importance of children maintaining a relationship with both parents, so long as that relationship was not punctuated with violence or abuse. Yet even the most conscientious and well-intentioned parents encounter problems when one parent, following separation, wishes to move a long way away from the other parent, thereby make it more difficult for the parent that does not move to spend time with the child, especially in circumstances where one parent opposes the move in the first place.
This conundrum has been the subject of an array of judicial considerations, some of which are addressed below, as well as academic treatment.[1] As an aside, while predating the 2006 amendments to the Act AMS v AIF,[2] a relocation case,
came before the High Court of Australia in 1999, then under the guise of a constitutional appeal, in which Kirby J observed that it is desirable to avoid using the expression granting “permission” for a person to relocate. There, his Honour held as follows –
To treat the determination of the residence of the child, and the connected issue of custody, as dependent upon the giving or withholding of “permission” to a parent to relocate his or her residence may divert attention from the child's welfare, to the competing needs and demands of the parents in conflict.[3]
[1] See Patrick Parkinson, Freedom of movement in an era of shared parenting: the differences in judicial approaches to relocation (2008) 36 Federal Law Review 145
[2] (1999) 199 CLR 160.
[3] (1999) 199 CLR 160 at [188].
It should also be observed that the Act does not treat what has come to be known colloquially as “relocation cases” as falling within a special category of parenting orders.[4]
[4] Morgan & Miles [2007] FamCA 1230 at [72].
When a court determines a parenting case where one party wishes to relocate, the child’s best interests remain the paramount yet not the sole consideration.[5]
[5] Morgan & Miles [2007] FamCA 1230 at [73].
It was also pointed out in the case of Morgan & Miles[6] (“Morgan”) that the Act does not contain any presumption against a parenting order which involves relocation nor does it contain any presumption in favour of a parent with whom a child lives predominantly at the time of the application. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.
[6] [2007] FamCA 1230 at [74].
Section 65DAC of the Act, parents are required to consult and make a genuine effort to agree about a move which would make it significantly more difficult for the child to spend time with the parent who does not travel. That section, when applicable, precludes the unilateral move by one parent without notice in consultation with the other parent.[7]
[7] Morgan & Miles [2007] FamCA 1230 at [77].
It was also held in Morgan that in considering whether the child should live with the parent who proposes to relocate, a court –
Must be satisfied the parties have … genuinely attempted to resolve the dispute.
Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
…
When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
Will careful (sic) weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
- that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
- that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
- that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
- the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.[8]
[8] [2007] FamCA 1230 at [79].
The Act requires the court to consider the competing proposals put forward by each parent against the criteria set out in s.60CC of the Act as informed by s.60B as well as considering, if a parenting order is made and the presumption of equal shared parental responsibility still applies, the consequences of an order for equal shared parental responsibility. That said, no specific legislative requirement exists which proscribes a requirement that matters under ss.60CC or 65DAA of the Act be determined in any priority.[9]
[9] Morgan & Miles [2007] FamCA 1230 at [81].
In other cases it has been held at a parent’s right to freedom of movement is a consideration that is subordinated to the best interests of the child even in the context of an international relocation.[10]
[10] See U v U (2002) 211 CLR 238 and B v B [2006] FamCA 1207.
Other significant adults in the child’s life
Before turning to the respective proposals of the father and the mother in relation to the child, and before examining the evidence of family consultant Mr G (“Mr G”), I need to say a little about the various other adults who currently have, or will occupy roles of varying degrees of importance in the child’s life.
The father’s new partner
As discussed above, the father has re-partnered with Ms J who has a three-year-old daughter. Ms J gave evidence before me. I found her to be an impressive witness. She spoke about the love she and her daughter A hold for the child. At no stage did Ms J suggest that she had or wanted to replace the mother in the child’s life. Ms J was insistent that she and the father assured the child that the child’s mother and father loved him and that the child was lucky to have both in his life. She said that she told the child that she and her daughter loved him.
The father’s brother-in-law
A degree of controversy surrounded the events during an incident when the child spent time with the father’s brother-in-law. The mother told Mr G of an incident when the child was in the care of the father’s brother-in-law. By reason of poor supervision by the father’s brother-in-law (so the mother contended) while shopping one day, the child was inappropriately touched by one or more other children. The mother said she was unwilling thereafter to consent to the child being in the care of the father’s brother-in-law.
The father gave evidence that he had a large family who lived in Sydney, one member of whom was his brother-in-law. The father did not give evidence that provided much elucidation about the event in respect of which the mother complained. However, the father did not challenge the mother’s concerns in respect of the incident.
The paternal grandmother
By agreement, evidence given by the paternal grandmother Ms F (“the paternal grandmother”) was adduced by an affidavit which she swore on 2 September 2015. The paternal grandmother was not cross-examined. In her affidavit sworn 2 September 2015, the paternal grandmother stated that she was 55 years of age having been married to the paternal grandfather for 38 years. She said she had four children, several grandchildren and that she had worked as a (occupation omitted) for a number of years including occupying the roles of (omitted) and (omitted). The paternal grandmother stated that between October 2009 and early 2012 she had been very involved in the child’s care as he lived with his parents approximately 10 minutes from her home. She said that upon the separation of the father and the mother, she spent time, once a month on average, with the child. The paternal grandmother deposed that since September 2014 she assisted the father by facilitating change-overs by which the child flew to and from Melbourne. She said that on occasions she accompanied the child when flying between Melbourne and Sydney. The paternal grandmother deposed to her attempts to maintain a civil, respectful and child-focused interaction with the mother for which, so she deposed, she had been mostly grateful.
The paternal grandmother deposed to a conversation that took place on 19 December 2014 during which the child said that he was forced to choose with whom he wanted to live and that the child repeated the words “I have to choose” several times in a distressed and anxious manner.[11] However, she said that exchange passed and the child thereafter presented in a confident and relaxed way. The paternal grandmother deposed to a difficult exchange on 5 June 2015 during which the mother sent her a number of text messages accusing the paternal grandmother of lying. The paternal grandmother was not cross-examined on her affidavit so the events of 5 June 2015 appeared to assume no greater significance than they appeared in the affidavit.
[11] Affidavit of Ms F sworn 2 September 2015 at [32].
The maternal grandmother
The maternal grandmother affirmed an affidavit in this proceeding on 20 January 2016 and gave viva voce evidence. She said that she resided in Melbourne but her role in the child’s life increased upon the father and mother moving to Sydney in early 2012. She gave evidence that she was actively involved in all major events in the child’s life and even that she took the child to a medical appointment when his parents were unable to do so. The maternal grandmother said she assisted the father to care for the child when the mother was deployed to (country omitted) in 2013 for eight months. She said that when the father studied for his (course omitted) exams, she cared for the child as well as during the months of April and September 2013. The maternal grandmother gave impressive evidence of a grandmother who was deeply committed to the welfare of her grandson. More recently, since 2014 she said she had purchased clothing for the child, cared for him on a weekly basis each Thursday, watched the child at his gymnastics classes, driven to Canberra with the child and on several occasions cared for the child while the mother attended (employer omitted) courses. For a six-week period in October 2015, the maternal grandmother moved into the mother’s home to care for the child while the mother attended a training course, thereby ensuring the child’s attendance at school, gymnastics classes and swimming training. The maternal grandmother said she had previously flown to Sydney with the child so as to facilitate his time with his father.
The maternal grandmother struck me as a person who had selflessly devoted herself to the child’s welfare.
The mother’s fiancé
The mother gave evidence that she had re-partnered with and intended to marry, Mr B (“Mr B”), an (occupation omitted) who, at the time of the trial of this proceeding, was with the (employer omitted) in (country omitted). The evidence of both the mother and of Mr B was imprecise about the date of their wedding but each said they hoped that the wedding would take place at the end of the 2016 calendar year. The explanation for the imprecision about the date of the marriage lay, largely, in events beyond their control.
Mr B gave evidence that he had recently resolved a divorce with his (nationality omitted) wife. He said he had addressed issues concerning the two children from his previous marriage. Mr B said he was soon to retire from the (employer omitted) and that his employment prospects in civilian life were very promising. So far as his expectations for his place of residence were concerned, Mr B said he would like to live in Australia once he and the mother had married. He said he had met the child face-to-face on a handful of occasions but that he had spoken with the child by Skype on a daily basis and that he and the child enjoyed a very strong bond. Mr B gave evidence that he and the mother would do whatever it may take to marry and then to forge a happy and successful home life for them all.
The foregoing reveals that a large number of people beyond his parents presently have a role in the child’s life. Each has expressed a high level of commitment to providing the child with a loving and stable home environment. Ms J and Mr B bear this out in particular. At a grandparental level, the child is also very well provided for.
The evidence of Mr G
Mr G, the family consultant, family dispute resolution practitioner, mediator and specialist family report writer, provided evidence in this case. He is well-credentialed with university degrees in social work. Mr G speaks three languages and has worked in the field of family law and social work for almost 40 years. He provided a family report dated 6 January 2016[12] and gave extensive viva voce evidence in the proceeding before me.
[12] Affidavit of Mr G affirmed on 29 January 2016, at Annexure “C”.
For the purposes of the evidence he gave, Mr G said that on 24 November 2015 he interviewed the mother and the father jointly, the father separately, Ms J separately, the mother separately and the child. Mr G said on that date he observed the child with the father, Ms J and her daughter A.
For the purposes of the evidence he gave, Mr G said that on 8 December 2015 he interviewed the mother separately as well as the child separately and he observed the child interacting with the mother.
Mr G said that he spoke by telephone with the father on 9 December 2015 and again on 4 January 2016. He further said that he spoke with the mother on 4 January 2016 and again on 6 January 2016. Mr G said he conducted interviews in his consulting rooms in Melbourne and that the father provided him with certain text messages.
By way of overview, Mr G said the relationship between the father and the mother had been inconsistent and variable and that their capacity to communicate depended upon the level of conflict that existed between them at any particular point in time. Mr G recorded that the child remained with the mother following separation in August 2014. He also recorded that the focus of his report was on the proposals of the parents for on-going parenting of the child and the impact those proposals were likely to have on the welfare of the child.
After reciting a number of the factual matters that underpinned this dispute emanating from the various affidavits filed by the father and the mother, Mr G said that the father and the mother presented as loving, committed parents with different perceptions of the matters constituting the best future care arrangements for the child.
Mr G said that the father’s email dated 4 August 2014 to the mother recorded the child’s need for ongoing sustainability.[13] Mr G said that since the father chose to relocate to Sydney, the father became less available to the child with the consequent intensification of the child’s relationship with the mother. Mr G said that when the father became less available, the child would have tended to turn pre-dominantly to the mother for comfort, nurture, reassurance, direction and guidance and that the child would have come to learn that the mother provided the child’s day-to-day physical, emotional and nurturing needs. Mr G questioned whether the mother’s proposal for a temporary posting in (country omitted) was, of itself, sufficient reason to warrant changing a long-standing arrangement as between the child and the mother with all the emotional repercussions such a change entailed. Mr G said that the father was in a relatively new relationship and the arrival of a baby commonly placed stress and strain on such a relationship. Mr G said that the child enjoyed a sound relationship with the father but that placing him with the father on a full-time basis involved an untested situation irrespective of Ms J’s willing acceptance of that untested state of affairs.
[13] Affidavit of Mr Read affirmed 6 January 2016, at Annexure “C”.
Mr G said that placing the child in the father’s care while the mother travelled to (country omitted) would entail further disruption and loss for the child who, by all accounts, had experienced several separations from the mother previously. Mr G questioned whether a further separation from the mother was in the child’s best interests.
Mr G said that the child had been in the primary care of the mother since September 2014 and that placing the child in the father’s care in Sydney would entail the child moving from seeing the mother on a daily basis to considerably less frequent contact. Mr G said such a change was of high magnitude. He said the child and the mother enjoyed a strong and sound relationship which would be eroded and compromised if time with the mother was reduced to the extent proposed by the father. Mr G said that would entail a significant loss to the child which would not be in the child’s interests and that the desirability of such a course of action needed to be questioned.
Mr G said that in the past the child had to accommodate a number of changes including separations and disruptions over previous years. Mr G said that the child had to deal with the loss of the family and parental relationship, the loss of the father, the loss of time with the father and ready accessibility to the father. Mr G said that at the risk of stating the obvious, the father’s decision to move to Sydney was of itself destabilising and disruptive. Mr G said that given the number of adjustments the child had to accommodate, it was imprudent to impose a further change, especially one of the magnitude proposed by the father.
Mr G said that he did not support orders being made for the child to be placed with the father if the mother travelled to (country omitted).
Mr G recommended that the orders presently in existence in relation to the living arrangements for the child remained unchanged.
Mr G was challenged at length by counsel for the father. It was put to Mr G that in formulating his recommendations, he did not consider the uncertainty that presently surrounded the arrangements proposed by the mother, especially with regard to schooling arrangements, travelling to and from (country omitted) and travelling within (country omitted) as well as to and from school. Despite being pressed, forcefully at times, on those issues Mr G maintained his view that the interests of the child were best served by his remaining living with his mother even if that involved a 10-month deployment to (country omitted).
Throughout her cross-examination, the mother was challenged about whether she would return to Australia and, at one point, it was suggested that Australia and (country omitted) did not enjoy diplomatic arrangements pursuant to which the father could successfully compel the mother to return the child to Australia at the end of her posting in (country omitted) if she refused to voluntarily do so. In response, the mother volunteered to provide the sum of $20,000.00 in a separate bank account to be held, in the nature of security, to ensure her due and punctual return to Australia following her deployment to (country omitted). She also pointed to the fact that her career as an (occupation omitted) depended upon her returning to Australia at the end of her deployment to (country omitted).
Of course, while there is no certainty that the mother will in fact return to Australia if she travels to (country omitted) for her 10-month deployment, I am not persuaded that any such uncertainty is, in and of itself, reason for enjoining her from travelling to (country omitted) in the first place.
It is against that background that I am required to adjudicate upon the father’s application to restrain each of the mother and the father from relocating the residence of the child outside a 40-km radius of the Sydney GPO or the Melbourne GPO.
As is canvassed above, I have refused that application. My reasons for that refusal necessarily required a consideration of the intricate provisions of the Act.
The best interests of the child – s.60CC of the Act
In determining what is in the child’s best interests, I am required to consider the matters in ss.60CC(2) and in 60CC(3) of the Act.
Subsection 60CC(2) of the Act has two components that I must consider. Both are called “primary considerations”. The first primary consideration is the benefit to the child having a meaningful relationship with both of the child’s parents.[14] The second primary consideration is the need to protect the child from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence.[15] Neither party contended the second of the two primary considerations applied, that is to say, the need to protect the child from physical or psychological harm.
[14] Family Law Act 1975 (Cth), s.60CC(2)(a).
[15] Family Law Act 1975 (Cth), s.60CC(2)(b).
So far as the first of the two primary considerations was concerned, that is to say, the benefit of the child having a meaningful relationship with the mother and father, I have set out above the manner in which each parent currently enjoys a meaningful relationship with the child. Embedded in the father’s application for orders preventing the child’s relocation to (country omitted) is the father’s belief, presently untested, that the father will lose the benefit of having a meaningful relationship with the child if the child relocates to (country omitted), even for 10 months.
Section 60CC(1) of the Act requires me to take into account the very many elements set out in s.60CC(3) of the Act. They are called “additional considerations”, that is to say, they are additional to the two primary considerations recorded in s.60CC(2) of the Act.
Section 60CC(1) of the Act is expressed in mandatory terms (by the use of the word “must” ) requiring the primary considerations in s.60CC(2) to be taken into account along with the additional considerations in s.60CC(3) of the Act. However, before addressing each of the additional considerations in s.60CC(3), let me address the father’s submissions about what he says will be his loss of or a diminution in the meaningful nature of his relationship with the child if the mother and the child live in (country omitted).
The father submitted that he currently enjoys a workable arrangement pursuant to which the child visits him in Sydney on a regular basis. The father contended that the arrangement factored in school holidays and significant events. The father said he would see less of the child if he moved to (country omitted) for 10 months. In response, the mother put forward a proposal, the effect of which gave the father more time with the child, albeit structured differently to the arrangements that applied as at the date I heard the trial of this case.
When calculating the amount of time to be spent with the father by the child, the arrangements offered by the mother worked to the father’s advantage and not otherwise.
Next, the father argued that the child will be required to spend more time commuting by air if the child lives for 10 months in (country omitted). The father contended that the child should not be required to do so merely to enable the mother to undertake a non-essential course of study. While conceding that the course in (country omitted) is not essential for career advancement, the mother submitted that the child is adventurous by nature and that he enjoys air travel. She said that the child will not find it burdensome or onerous to travel to and from (country omitted) in order to comply with the arrangements she has volunteered to put in place so as to allay the father’s concerns.
The mother said the child currently travels to and from Sydney a good deal in order to meet arrangements that currently apply.
To my mind, the best interests of the child are not served by restricting his travel in the way the father seeks to do. Even with the physical challenges associated with the child travelling to the airport at point of departure, clearing customs, flying, landing, clearing customs at point of arrival and travelling to the home where he will stay for a period of time, I am not persuaded that any such physical challenge is (or collection of physical challenges are) reason for considering that the best interests of the child are not served in his proposed 10-month stay in (country omitted). Put differently, if I were to make orders on the motion proposed by the father enjoining the child from relocating to a point beyond a 40-km radius from the GPO of either Sydney or Melbourne, I would not be promoting the best interests of the child in so doing.
However, that is not the end of the matter as s.60CC(3) of the Act, containing the additional considerations, requires me to take each into account. While laborious, in the passages below I set out the additional considerations and my views on each.
Any views expressed by the child – s.60CC(3)(a)
On behalf of the father it was submitted that given the child’s age and developmental stage, any views expressed by him would be given little weight.
On behalf of the mother, it was submitted that the child was interviewed by Mr G who stated that the decisions as to the child’s future care arrangements are likely to be made on the basis of considerations other than the views and wishes of a six-year-old child.
To my mind, a decision about relocation to (country omitted) for 10 months, having significant magnitude, goes beyond any views expressed by the child, as Mr G suggested.
The nature of the relationship of the child – s.60CC(3)(b)
On behalf of the father it was submitted that there is no issue that the child enjoys secure attachments and benefits from the meaningful relationship he has with both of his parents. The father submitted that the child enjoys close and loving relationships with Ms J and her daughter A as well as with members of the extended parental family and with the child’s maternal grandmother.
On behalf of the mother it was submitted that Mr G wrote in his family report that the child appeared warm, physical and relaxed with the adults in his life, that the child and the mother have a loving, fun and respectful relationship, that the child is developing a close relationship with the mother’s fiancé Mr B who speaks with the child on a daily basis as well as with the child’s maternal grandmother with whom he spends significant time.
To my mind, the child is fortunate to have such an array of familial members with whom he enjoys a close and loving relationship.
The extent to which each parent has taken or failed to take certain opportunities – s.60CC(3)(c)
On behalf of the father it was submitted that the father has taken up the opportunity to participate in decision-making for the child, to spend time and communicate with the child both prior to and following separation although the father’s ability to spend time with and communicate with the child since separation has, to some extent, been hampered by the attitude demonstrated by the mother.
On behalf of the mother it was submitted that the mother has been the child’s primary carer since the father moved from Melbourne to Sydney. The mother submitted that during the relationship, the mother was primarily responsible for decision-making relating to the child, such as his enrolment in childcare and that the father chose not to participate in the decision-making. The mother submitted that since the father moved to Sydney, he had not taken all opportunities available to him to spend time with and communicate with the child. She said there have been a number of occasions when the father chose not to have telephone communication with the child. The mother submitted that the father had also not taken up offers from the mother to spend additional time with the child on his birthday and at Christmas. The mother submitted that Mr G recorded that since the father chose to relocate to Sydney, he became less available to the child and that one can surmise that the child’s relationship with the mother has intensified as result of that decision. The mother submitted that Mr G said that by reason of the father suddenly becoming less available, the child would have come to learn that he relied on the mother to meet his day-to-day physical, emotional and nurturing needs.
To my mind there is a high degree of persuasiveness in the submissions of the mother, supported as they are by the observations of Mr G. The explanation given by the father for his move to Sydney was less than convincing. He said opportunities presented themselves for his work in Sydney. He gave no details of any steps he took to secure employment as a (occupation omitted) in Melbourne. He said he had been told that the Melbourne job market was tough in that very few opportunities for (occupations omitted) presented themselves in Melbourne. I find that explanation impossible to accept. Every day, (occupations omitted) find employment in (employers omitted) in the city of Melbourne. The father moved to Sydney because he chose to move there for reasons, so I find, unconnected in any real way with employment prospects in the city of Melbourne. On his own admission the father told of his not making a single job application to (employers omitted) in Melbourne. To that extent, so far as s.60CC(3)(b) of the Act is concerned, in my view the father failed to take the opportunity to spend time, communicate with or participate in decision-making about the child from the date he moved to Sydney in 2014 until a date in 2015 when he became much more hands-on towards the child.
I do not accept the father’s contention that since separation, the father’s attempts to participate in, communicate with or involve himself in the decision-making in relation to the child has been hampered by the attitude demonstrated by the mother. To the contrary, the evidence revealed that the mother had gone to considerable lengths to attempt to ensure that the father participated in, communicated with and involved himself in decision-making relevant to the child. The father took up only some of those invitations.
The extent to which each parent has fulfilled or failed to fulfil maintenance obligations – s.60CC(3)(ca)
On behalf of the father it was submitted that he has financially supported the child since separation including paying child support prior to and since January 2015. The father submitted that he had met the majority of the child’s expenses associated with airline travel between Melbourne and Sydney since September 2014.
On behalf of the mother it was submitted that for the first four months following separation the father did not pay any amount to the mother by way of child support. The mother contended that she had contributed to the child’s airline expenses so as to spend time with the father.
I accept that the father paid a substantial amount of expenses associated with the child’s travel to and from Sydney. I also accept that the father did not pay any amount by way of child support for the first four months following separation. This is one factor but one factor only weighing in my consideration of the father’s application.
The likely effect of any changes in the child’s circumstances from separation from either of his parents or any other child with whom the child has been living – s.60CC(3)(d)
On behalf of the father it was submitted that the mother has indicated she will not relocate to (country omitted) if the child is not allowed to accompany her. The father contended that the child’s interests will be best met by maintaining stability and consistency in the location of his accommodation in his routine and in his education rather than his relocating with the mother to (country omitted) for 10 months and thereafter relocating to a location presently unknown for the balance of his childhood.
On behalf of the father it was submitted that Mr G questioned whether the mother’s temporary posting to (country omitted) was sufficient reason for changing the child’s long-standing residential arrangements. The mother cited Mr G’s questioning whether a further separation from the mother was in the child’s interests. The mother also submitted that Mr G questioned the desirability of placing the child in the father’s care in Sydney entailing, as it did, the child moving from seeing the mother on a daily basis to having considerably less contact and that such a change was of “high magnitude”.[16]
[16] Affidavit of Mr G affirmed on 29 January 2016, Annexure “C” at [52].
Self-evidently, the maintenance of stability in accommodation for the child and consistency with his routine and education is desirable. That said, to my mind it does not necessarily follow that the alteration of his current accommodation for a period of 10 months, the introduction of a new place of abode, the introduction of a different educational regime and exposure to a new and different culture is antithetical to the child’s best interests. Put differently, to my mind it is to the enhancement of, rather than to the detriment of, the child’s best interests for the mother to expose him to international education opportunities over the limited duration that is proposed.
I do not agree that the child’s best interests are met by confining him geographically to a place in Sydney or in Melbourne for the balance of his childhood. Nor do I accept that the fact that his accommodation is presently unknown upon his return to Australia after the expiration of the posting to (country omitted) militates against the making of the orders proposed by the mother. The mother said that upon their return to Australia following the expiration of the posting to (country omitted), she and the child are likely to live in one of several possible locations including Brisbane or Canberra and that Canberra is the most likely of the two. Equally I do not accept that the child’s education will be compromised nor his routine detrimentally affected by his enrolment in an international school in (country omitted). While the mother was unable to point in precise terms to the daily routine of the international school in (country omitted), that does not tell of instability or inconsistency of routine and education in the manner contended for by the father. Nor does it necessarily tell of undesirability warranting wholesale rejection of the mother’s proposal by reason of the fact that the minute detail of the child’s care in his transportation to and from school and (country omitted) is presently unknown.
The practical difficulty and expense of the child spending time with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations with both parents on a regular basis – s.60CC(3)(e)
On behalf of the father it was submitted that he harboured a very real concern that the mother’s proposed relocation to (country omitted) or to any other destination of her choosing was likely to present considerable practical difficulty and expense in the child maintaining meaningful relationships with his father, with Ms J or A as well as with the father’s extended family, the mother’s extended family and with the father’s child, expected in April 2016. The father submitted that the employment-related benefits the mother contended she will derive in being permitted to relocate with the child away from Melbourne or Sydney are, according to the father, far outweighed by the damage that is likely to be caused to all of the child’s relationships with the other people who are very important to him.
On behalf of the mother it was contended that the father currently lives in Sydney while the child currently lives in Melbourne with the mother. The mother submitted that those arrangements require the child to regularly travel to enable him to spend time with the father thereby incurring costs for both parties. The mother submitted that if she were to be permitted to travel to (country omitted) with the child, the mother would be responsible for all costs associated with facilitating the child’s travel to Sydney to spend time with the father.
To my mind, there can be no doubt that even a short 10-month stay in (country omitted) will have an effect on the child’s ability to maintain the close bonds that he currently enjoys with every member of his extended family. However, that is not to say that there will be an extinguishment of those bonds. Under the regime proposed by the mother, the child will make regular periodic travel between (country omitted) and Sydney for the purpose of visiting the father and, subject to the father arranging as much, the child’s visiting of his extended family. To my mind, the situation was not as perilous as the father submitted. This is not an all or nothing situation. In other words, the mere fact of the child travelling to and living in (country omitted) for 10 months does not of itself foreclose on any contact between the child and his father or between the child and every member of his extended family. The father is the person with the capacity to orchestrate ongoing relations between the child and his extended family during the 10-month period while the child resides in (country omitted). On the visits that he makes to Australia during the 10-month period that he resides in (country omitted), the child will be able to interact with the newborn child and with the child’s father’s family as well as with the mother’s family.
The father characterised the child’s time in (country omitted) as orchestrating damage to the child’s relationships with the other people who are important to him. I do not share that characterisation. True, while the child is in (country omitted) for the proposed 10-month duration he will, obviously, see certain people who reside in Australia with less frequency. However, under the arrangements that currently exist between the father and the child, the father sees the child periodically throughout the year and he sees the father’s extended family members with a corresponding degree of frequency, all within the control of the father. As the mother pointed out in her cross-examination, her proposal for the father’s interaction with the child while they live in (country omitted) will be more frequent than the regime that the father currently enjoys. In those circumstances, far from the move to (country omitted) inflicting ‘damage’ to the relationships that the child currently enjoys, by reason of the revised arrangements consequent upon the proposal to move to (country omitted), the father, the father’s extended family and the child will enjoy more frequent time together. To my mind, that is antithetical to ‘damage’ to their relationships. If anything, it enhances the relationships.
The capacity of each of the child’s parents and any other person (including grandparents or other relatives of the child) to provide for the needs of the child including emotional and intellectual needs – s.60CC(3)(f)
The father contended that no dispute existed that each of the child’s parents have the capacity to provide for his emotional and physical needs.
The mother contended that both parties have the capacity to provide for the child’s needs but that since separation, the mother has been his primary carer and as such, has taken responsibility of providing for those needs on a day-to-day basis. The mother made the additional submission that the father previously left the child in the sole care of the father’s brother-in-law as a result of which the child was inappropriately interfered with by two children. The mother maintained her concern that the father did not appear to regard that incident as being a serious issue.
To my mind, each parent has the capacity to provide for the needs of the child including his emotional and intellectual needs. I have taken into account the incident when the child was left in the care of the father’s brother-in-law. However, that incident is not dispositive of this matter.
The maturity, sex, lifestyle and background of the child and of either of the child’s parents – s.60CC(3)(g)
On behalf of the father it was submitted that the child is presently six years of age and is at grade one at school. The father submitted that in the child’s short lifetime, he has already experienced one major move from Sydney to Melbourne as well as other less significant moves within Melbourne. The father contended that the child was of an age where consistency and stability were very important for him as was maintaining meaningful relationships with all of the important people in his life.
The mother contended that this subsection of the Act raised issues not presently relevant.
I disagree. Moreover, by the terms of s.60CC(1) of the Act, I am specifically required to take into account this subsection.
To my mind there do not appear to be issues arising from the child’s background and lifestyle nor his gender or maturity that are influential one way or the other in the determination of the threshold issue that falls for resolution in this proceeding. Similarly, no issue of either parent in respect of his or her maturity, sex, lifestyle and background points in either direction as to the disposition of this proceeding. I agree with the father’s submissions that consistency and stability for the child is an extremely important matter as is the maintenance of meaningful relationships with all the important people in the child’s life. I have taken into account those matters in my determination of this proceeding.
Whether the child is aboriginal – s.60CC(3)(h)
No evidence was adduced by either party even remotely suggesting that the child was an Aboriginal or a Torres Strait Islander child. It is not necessary to further address this consideration.
The attitude of the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents – s.60CC(3)(i)
The father made no submissions in respect of this subsection.
On behalf of the mother it was submitted that she was the child’s primary carer and was solely responsible for his day-to-day care following the father’s decision to move to Sydney after separation. The mother submitted that she previously and currently nurtures the child’s physical and emotional well-being to a large extent as evidenced by the child’s recent school report and the fact that he is thriving in her care.
There can be no doubt that the father and the mother exhibit a heightened attitude of responsibility towards their duties as parents of the child. While the child is in the care of the father, the evidence reveals that he is happy and balanced. While he is in the care of the mother, the evidence reveals that he is nurtured, happy and balanced. The child loves each of his parents in a manner that does not appear to differentiate nor favour one over the other. While the considerations of this subsection are relevant to my determination in this proceeding, they are not pivotal nor dispositive. That said, I have taken them into account.
Any family violence – s.60CC(3)(j)
On behalf of the father it was submitted that there are no present or past allegations of family violence or family violence orders involving the child or the parties.
The mother contended that this subsection was not a relevant consideration.
I do not agree that this subsection is not a relevant consideration. Plainly, it is. However, I agree with the submissions on behalf of the father that there are no present or past allegations of family violence and therefore I need proceed no further in respect of the matters raised by this subsection.
If a family violence order applies – s.60CC(3)(k)
There is no evidence in this case of the application of a family violence order and therefore I need to proceed no further in respect of any consideration of the matters raised in this subsection.
Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child – s.60CC(3)(l)
The father did not specifically address this subsection.
On behalf of the mother it was submitted that it would be beneficial if the parties were not involved in further proceedings between them.
Self-evidently, it would be beneficial if the parties were not involved in further litigation between them in respect of the child. That said, whether or not the father and the mother engage in further litigation is beyond me at the present time. An end to hostilities between the father and the mother is obviously desirable, in the best interests of the child. However, only the father and the mother can control that issue.
Any other fact or circumstance the court thinks is relevant – s.60CC(3)(m)
On behalf of the father it was submitted that the country to which the mother seeks to relocate the child’s primary resident is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. The father submitted that he could not draw upon the resources of the central authority to assist in returning the child’s place of habitual residence if the mother was permitted to relocate him to (country omitted) and decided not returned to Australia at conclusion of her proposed 10-month relocation. The father urged this factor as a relevant matter telling of, so the father submitted, the desirability of enjoining the mother from relocating to (country omitted).
The mother did not respond to that submission.
To my mind, this proposition injects a submission made in terrorum into the debate. Naturally, no one can guarantee that, as a matter of absolute certainty, the mother will complete her deployment at the conclusion of the 10-month period and return with the child to Australia. However, it seems to me that the likelihood of the mother not returning to Australia after the expiration of her deployment to (country omitted) is so low as to be inconsequential. She is an (occupation omitted) in the (employer omitted). If she failed to return without retiring from the (employer omitted), on one view she would expose herself to prosecution for desertion. In addition, the mother has proposed to provide a surety in the sum of $20,000.00 to allay the father’s fear of this very eventuality. She was not ordered to volunteer that surety sum. She did that of her own volition. While not a sum of enormous magnitude, nevertheless, the sum represents an amount that will occasion a high degree of hardship to the mother to cobble together and, if human experience is any guide, the mother is unlikely to jeopardise the return of that surety by her failure to return to Australia with the child at the expiration of her period of deployment to (country omitted).
The father is correct when he submits that Australia and (country omitted) do not enjoy diplomatic relations that would enable Australia to enlist the resources of the central authority to assist in returning the child to Australia if the mother were to flee and thereby abduct him. However, this submission is a mere spectre raised by the father as his last submission in opposition to the proposal of the mother to travel with the child to (country omitted). The point has very little to commend it in the circumstances of this case.
Other matters
So far as other relevant considerations were concerned, including the matters raised by ss.60CG, 61F, 65DAB and 65DAC of the Act, the father contended that those were not applicable and the mother did not advance any submissions on point.
Conclusion
I make orders in accordance with the proposal advanced by the mother.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 20 April 2016
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