REDWIN & REDWIN
[2013] FCCA 1379
•20 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| REDWIN & REDWIN | [2013] FCCA 1379 |
| Catchwords: FAMILY LAW – Relocation – two children aged 15 years old and 12 years old – wife is the primary carer – wife seeks to relocate to Sydney – children currently embedded in (omitted) area – both children express clear views to remain living in (omitted) – wife’s proposal to relocate lacked substance and effective planning – not in the best interests of the children to relocate. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 117 |
| Caravaggio & Caravaggio [2011] FamCA 254 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 |
| Applicant: | MR REDWIN |
| Respondent: | MS REDWIN |
| File Number: | MLC 10972 of 2008 |
| Judgment of: | Judge Curtain |
| Hearing date: | 26 August 2013 |
| Date of Last Submission: | 26 August 2013 |
| Orders Delivered at: | Dandenong in Chambers |
| Reasons Delivered at: Orders Delivered on: Reasons Delivered on: | Melbourne in Chambers 6 September 2013 20 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hogan |
| Solicitors for the Applicant: | Coulter Roache Lawyers Pty Ltd |
| Counsel for the Respondent: | Mr Hoult |
| Solicitors for the Respondent: | Samantha Ward Pty |
| Independent Children’s Lawyer: | Mr Dunstan, solicitor of Bowlen Dunstan & Associates Pty |
ORDERS
THE COURT ORDERS THAT:
The Amended Response filed 20 August 2012 seeking that the wife and children relocate to Sydney, New South Wales be dismissed.
All prior parenting orders be discharged.
The husband and wife have equal shared parental responsibility for the children of the marriage, X born 12 April 1998 (“X”) and Y born 27 August 2001 (“Y”), (collectively “the children”).
The children live with the wife.
The children spend time and communicate with the husband as follows:
(a)each alternate week from 6.00 pm Thursday to the commencement of school Monday;
(b)from 6.00 pm Wednesday to the commencement of school Thursday in the “off week” to (a) above;
(c)for the first week of each school term holidays in each year;
(d)from 5.00 pm on Saturday immediately preceding Father’s Day to 5.00 pm Father’s Day and if Mother’s Day falls on the weekend when the children ordinarily would be with the husband, they shall be returned to the care of the wife by 5.00 pm on the Saturday;
(e)from the conclusion of school to 7.30 pm on the husband’s birthday and the children’s birthday should their birthdays fall on a weekday and from 1.00 pm to 5.00 pm should their birthdays fall on a weekend, if it is ordinarily the husband’s weekend, then the wife shall have care of the children from 1.00 pm to 5.00 pm on that day of that weekend that is either the children’s birthdays or her birthday;
(f)during the long summer holiday:
(i)for the first half, save for the Christmas period, in 2012/ 2013 and each alternate year thereafter; and
(ii)for the second half on 2013/ 2014, and each alternate year thereafter.
(g)from 3.00 pm Christmas Day to 3.00 pm Boxing Day in 2013 and each alternate year thereafter;
(h)from 3.00 pm Christmas Eve to 3.00 pm Christmas Day in 2014 and each alternate year thereafter;
(i)at such other times as may be agreed between the husband and the wife in consultation with the children.
For the purposes of the time the children are with the husband and wife during the school term holidays, it shall be calculated from the conclusion of school on the last day of term to 5.00 pm on the Sunday prior to school commencing for the next school term.
For the purposes of the time the children are with the husband and wife during the long summer holidays, it shall be calculated from 5.00 pm on 22 December to 5.00 pm on the Sunday before term one commences.
In the event the wife remains living within a thirty (30) kilometre radius of the (omitted) Railway Station, the changeover shall be as agreed between the parents, and failing agreement it shall occur at school each alternate Thursday and Monday mornings and for all other times, the husband shall collect the children from the wife’s residence at the commencement of time and the wife shall collect the children from the husband’s residence at the conclusion of such time.
When living with the husband and wife, Y is to be provided with her own bed and bedding which the husband and the wife are to require Y to sleep in.
In the event the wife relocates outside of a thirty (30) kilometre radius of the (omitted) Railway Station changeover shall be as agreed between the parents and failing agreement it shall occur at the mid-point between the parents’ residences.
The husband and wife shall give the other no less than thirty (30) clear days written notice of any proposed change of their permanent residential address.
The wife shall authorise the children’s school to provide to the husband, at his expense, information in relation to the children’s education (including but not limited to school reports, school photograph order forms and notices).
The husband and wife shall inform each other of any medical illness suffered by the children and provide information to each other and consult with the other party prior to the children receiving medical treatment or undergoing surgery except in any emergency.
Subject to Order 11 above, the husband and wife shall notify the other of any change of address or telephone number or numbers within twenty-four (24) hours of any such change.
The husband and wife, their servants and agents be and are hereby restrained from:
(a)denigrating each other in the presence or hearing of the children or at all; and
(b)discussing any matter pertaining to these proceedings to or in the presence of or the hearing of the children save to advise them of the effect of these orders.
The husband and wife shall facilitate the children communicating by Skype, Facetime or telephone should they wish to do so.
The order appointing the Independent Children’s Lawyer be discharged.
Costs
The wife contribute to the husband’s costs reserved pursuant to Order 3 of the Orders made 7 November 2012 in the sum of one thousand dollars ($1,000) to be wholly paid from the sale proceeds of the wife’s current home in (omitted) and should that sale not occur, then no later than 5.00 pm on 30 June 2014.
Upon payment of the $1,000 costs to the husband he shall sign all documents and do all things necessary to remove the caveat over the certificate of title to the wife’s home, at his expense.
AND THE COURT NOTES THAT:
A.The parents understand that whilst the wife currently has her (omitted) home on the market for sale her changed residential address will be properly located to ensure that the children will spend time with their father pursuant to these orders and attend their schools without any change imposed on the parents and/ or children.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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 these particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Redwin & Redwin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10972 of 2008
| MR REDWIN |
Applicant
And
| MS REDWIN |
Respondent
REASONS FOR JUDGMENT
(AS CORRECTED)
Introduction
This matter involves competing proposals in relation to two children from a marriage, X aged 15 years and Y aged 12. The children to date have lived all their lives in the (omitted) city of (omitted) which is close to the regional centre of (omitted). The Respondent wife has a proposal to move from (omitted) to Sydney with the girls to give her the opportunity to develop and extend a career in the (omitted) industry. The husband opposes this and in the alternative, suggests that if the wife does not remain living in (omitted) with the children they should then live with him and the wife should then be free to pursue her career interstate.
Two Family Reports were prepared by Dr N, a psychologist, who said in the second report dated 19 November 2012 at page 6 the following:
“…Her conversations…suggested that she tended to exaggerate and embellish her career achievements…This tendency also seemed to apply to her discussions around the employment opportunities in Sydney. For example, at first Ms Redwin indicated that she had firm job offers, under questioning this did not appear so...”
In the same report, at page 11 the author said the following:
“Ms Redwin now presented with some seemingly firmer plans to relocate to Sydney. In this assessment, however, Ms Redwin’s plans and projections for the future seemed to become a nebulous and less certain under questioning. At the end of the assessment, I remained uncertain about her plans.”
This was my experience of her in court when giving evidence. Her proposals lack certainty and created serious doubt about providing the children with stability, opportunity and happiness should they reside in Sydney.
Background
The Applicant husband was born on (omitted) 1968 and hence is aged 45 years and the Respondent wife was born on (omitted) 1969 and is now aged 43 years. The parties were married on (omitted) 1998 and have two children, X born (omitted) 1998 who is aged 15 years and Y born (omitted) 2001 who recently turned 12 years.
The parents separated in June 2005 and agreed for the children to remain in the primary care of the Respondent wife and for the children to enjoy spending regular time with the Applicant husband. These proceedings commenced in September 2011 when the husband filed an Application seeking orders for equal shared parental responsibility and the children to live with each parent on a week about basis. Subsequently the husband filed a Further Amended Initiating Application, which was the one before me, on 4 December 2012 which sought final orders initially that the children live with the husband should the wife choose to leave the (omitted) area and reside in Sydney “…or any other location outside of an area 30 kilometers from the (omitted) Post Office…”, and in the alternative, that if the wife remains in (omitted) the children should live with the wife, and they should have substantial and significant time with him.
On 20 August 2012 the wife filed an Amended Response seeking orders that she be permitted to relocate to Sydney, New South Wales in “…mid-January 2013…” and that the children spend time with the husband for half of all school holidays in each year which was amended at the hearing, to provide that the children spend time with the father for all term holidays and one half of the long summer vacation.
When this matter was called on I was advised by Counsel that this hearing would take approximately a half day. Having briefly perused the material I was somewhat surprised at this estimate but it turned out to be fairly accurate. The wife’s case only involved her giving evidence; she called no other witnesses. There was only a short cross examination of the husband. She did not seek to cross examine the report writer where many comments were made about her which were negative and more importantly, both reports clearly recommended that the children should remain living in the (omitted) area, preferably in the care of the wife. This was not challenged.
The evidence
The Applicant husband relied on the following documents:
a)Outline of Case filed 21 August 2013;
b)Further Amended Initiating Application filed 4 December 2012;
c)The husband’s affidavit sworn and filed 5 August 2013;
d)The affidavit of his partner, Ms C sworn and filed 5 August 2013; and
e)The two Family Reports by Dr N, the first dated 17 January 2012 and the second dated 19 November 2012.
The Respondent wife relied on the following documents:
a)The Amended Response filed 20 August 2012; and
b)The wife’s affidavit sworn and filed 21 August 2013.
The Independent Children’s Lawyer relied on the following documents:
a)Outline of Case filed 23 August 2013; and
b)The two Family Reports referred to above relied upon by the husband.
The Applicant’s evidence
The husband was called and adopted the contents of his affidavit. He indicated in chief that he is prepared to pay the school fees for the children and otherwise rely on the “…base assessment of the Child Support Agency…” He subsequently clarified that he would pay all school fees but other school expenses and costs should be split equally. In cross examination, he properly conceded in my view, that he had a strong relationship with the children and it would remain strong if they lived with the wife in Sydney. In my view, a strong relationship should not be confused with a close, loving and happy relationship. He also conceded that the wife was unhappy living in (omitted).
When cross examined by the Independent Children’s Lawyer he indicated that in his view X was absolutely adamant about not going to Sydney and even if this court ordered she should live with her mother in Sydney, there was a likelihood that she would disobey that order. He further indicated that he wanted an order restricting the wife to live within 50 kilometres of (omitted) based on certain conditions including that the children’s school of choice should not be changed should she relocate within that 50 kilometre range.
His affidavit sworn and filed 5 August 2013 was fairly unremarkable and went to some 52 pages including annexures. He detailed inter alia, his close relationship with his current partner and that they recently had a child, Z who was born on (omitted) 2013. At paragraph 12 of unchallenged affidavit the husband detailed the following:
“12. I have also observed that the children have interacted closely with Z since her birth by being involved in her care including:
(a) Cuddling her on a regular basis when she is awake;
(b) Helping Ms C and I to bathe Z;
(c ) Pushing the pram when we go on family walks; and
(d) Coming in to our bedroom to have cuddles with Z in the morning.”
In arriving at these orders I was also mindful of the children’s need to develop a relationship with their half sister.
The husband provided the background, that from January 2006 to date the children spent time with him overnight on Wednesday, Friday and Saturday each alternate weekend and on a Monday night for dinner in the off week. Moreover, the children spend time with him for one week in each school term holiday as well the long summer holiday vacation.
In his affidavit at paragraph 47, the contents of which were not challenged, the husband said as follows:
“I have observed that both X and Y loved life in (omitted) for a number of reasons including:
(a) X’s best friend is her cousin Ms R (“Ms R”) who also lives in (omitted). X and Ms R usually see each other at least three to four times a week;
(b) Y is also very close to her cousins Ms R and Ms T (“Ms T”) who is the same age as Y;
(c) Both X and Y have very close friends who they met when they began school;
(d) X loves the beach and surfing and goes to the beach or surfs approximately every second day from March to September. X goes to the beach with either Ms Redwin, me or Ms R and her other friends;
(e) In the intervening autumn and winter months I have observed that X surfs sporadically especially during July and August when it is very cold;
(f) X is a very competent surfer and came runner up in the 2011 Under 14 girls (omitted) club championships at the (omitted) Club. The championships consist of six individual aggregate contests during the year to get to the final result;
(g) X attends weekly yoga classes each Tuesday evening with a couple of her close friends who live in (omitted);
(h) X and Y have both told me how much they enjoy going to their respective schools. I have observed that they both have a number of close friends who they see regularly each week;
(i) I have observed that X has become more social over the past 12 months and now enjoys spending significant time with her six to eight close friends who live in both (omitted) and (omitted) but predominately in (omitted). I have also observed that X enjoys many activities with her friends including shopping; and
(j) Further I have observed that the children are very close to their paternal grandmother Ms J (“Ms J”). The children spend time with Ms J on a regular basis and enjoy cooking, sewing and painting together. When the children are spending time with me they are occasionally cared for by Ms J whose home is close to their school bus stops.”
Moreover, near the end of his affidavit, which was also not challenged, the husband said as follows:
“124. The children and I enjoy a close relationship and we communicate on a regular basis when the children are living with Ms Redwin.
125. I make sure that I am well aware of what the children and [sic] doing at school and also what they are doing in their personal life. This awareness and knowledge of what is happening in their daily lives, even when they are not living with me enables our relationship to be a close one.”
…
“127. I am also more than capable of providing for the children’s emotional and intellectual needs because I know them well.
128. The children talk to me about issues they have in their lives such as disputes with other children at school and I deal with the issues by listening carefully to their problem, encouraging them to think about what factors are causing the dispute, how the other child might be feeling, and helping them come up with some resolution strategies.
129. I assist the children with their school work and in particular I provide significant assistance to X with her homework, particularly with her Maths. X also requires access to the internet to complete much of her homework. X has told me that she does not have internet access at Ms Redwin’s home.”
The husband also detailed in his affidavit that currently Y is attending grade 6 at (omitted) Primary School and her sister, X attends (omitted) College in (omitted) and that the wife and husband had previously intended that Y would attend that same college with her sister.
In opening, Counsel for the wife indicated that the question of the school for Y was very much a live issue. However neither party had any evidence about this topic apart from brief comments. Their affidavits did not address this dispute. Further, neither party in their application or response sought any final orders as to the question of schooling and I therefore, made it very clear to the parties and Counsel that in my view this was not properly before the court and the question of which school Y attends in 2014 is a matter for the parties to resolve and it would be inappropriate to suggest it should be dealt with during this hearing on little or no evidence. No party sought an adjournment.
There was also an initial dispute about production of the contents of the file of Ms B, who was a therapeutic counsellor for the parties and the children. The wife had filed and served a subpoena on this lady and wanted the file released. I determined that this counselling was undertaken for therapy and it would in the circumstances be inappropriate and not in the public interest for these documents to be released.
The respondent’s evidence
The wife’s proposed relocation and employment was commented on in the first report of Dr N dated 17 January 2012 at page 7 when the wife stated that she is currently applying for work and expected to gain employment in a major metropolitan centre. When she entered the witness box, the wife initially adopted her affidavit and then went on to say that she had a job “…on the horizon…” working school hours for a (omitted) company doing (omitted). She however did indicate that this potential employment was subject to another satisfactory interview. When cross examined on this topic she confirmed she needed another interview to ensure that she had the employment and did not know exactly what salary she would be paid. She said she asked for $70,000 to $75,000 but does not know if in fact that will be the salary level. She said that hopefully it would be.
She also told the Independent Children’s Lawyer in cross examination that she had no contract of employment and that the potential employer said to her “…when you get to Sydney let us know...”
When cross examined by the husband’s Counsel she said she would not uplift the girls without the contract of employment. I read that to mean that I should have the faith in her to find some Sydney based employment, notwithstanding she had not entered into a contract to date and this topic was first raised in the first Family Report some twenty months ago.
In the second Family Report dated 19 November 2012, Dr N at page 6 says this, “…at first Ms Redwin indicated that she had firm job offers, [but] under questioning this did not appear so as Ms Redwin also made claims that she expected to work with (omitted) in Sydney and at a (omitted) company which had offered her full- time work. She said the conditions of these offers were open and there has been no negotiation about her salary…”
Sadly, notwithstanding the report was dated 19 November 2012 and that it is now August 2013 the wife did not appreciate or did not understand the importance of having a firm proposal of employment to put to this court to ensure that the court would be satisfied that she had certain employment when she moved to Sydney that provided her and the children with an adequate, steady and regular income.
In relation to the proposed relocation and a residential address, in the second Family Report at page 5 it said the following, “Ms Redwin said she was not going to “make a rash move” and would ensure that the children were happy about the move and the relocation was “financially viable”. She said that she expected to live in the (omitted) area and had sourced schools and a gymnastics group for the children…”
At paragraph 86 on page 18 of her affidavit sworn 21 August 2013 the wife said she would live in the (omitted) area. In evidence in chief she clarified this and said she was looking at living somewhere between the (omitted) to (omitted) area and expected to pay $500 a week for a three bedroom townhouse or $800 a week for a three bedroom home but at this stage had not found a residence. The wife again comes to the court with a very vague plan as to where she is going to live and what rent she pays. She really should have had a concrete proposal as to the accommodation for herself and the children should they live in Sydney.
In relation to her relocation and the children’s schools in Sydney, the wife said she had considered (omitted) School, and (omitted) High School but when questioned the wife did not know any details of what subjects were provided in year 10, nor the numbers in the classes, nor other significant details about any of these schools. The court should have had detailed evidence of what the schools offered so that it could be satisfied that the proposed style of education that was available was appropriate for their needs should they relocate to Sydney. Yet again the wife came to court with some general plan without detail.
In relation to the proposed relocation and emotional and other supports for the wife in Sydney, she detailed in her affidavit filed 21 August 2013 at paragraphs 87, 88 and 89 that her best friend, Ms M lives in Sydney, she had an uncle and aunt at (omitted) and she has another friend that she has visited. None of these people were on affidavit nor called to give evidence. I could put little weight on the wife’s suggestion that she has an extensive support network in Sydney or any network of support at all, given the lack of evidence.
When cross examined by the Independent Children’s Lawyer she did not agree with his proposition that her proposals were bereft of details but did agree when cross examined by the husband’s Counsel that to a certain point her plans were vague and uncertain. She also indicated to Counsel for the husband that if the children were not happy she would come back. And when cross examined on this topic by the Independent Children’s Lawyer the wife conceded that, “…we can all get there and it might not work…”
It is apparent from the wife’s evidence that the proposals in relation to the relocation are flimsy, without substance or good planning. It gives the court little confidence that any relocation to Sydney currently would be successful and in the best interests of the children. In my view the approach of the wife on this topic is summed up the author of the second Family Report where she says at page 7 the following: “…Assessment of Ms Redwin again suggested that she is a rather indecisive woman who heavily depends on others for advice. She impressed as having a dependent personality style and many of her apparent firm statements appear to have much less substance under questioning. She seems to have some difficulty with decision-making and some rather nebulous ideas…”
The Family Reports
As indicated earlier there were two Family Reports dated 17 January 2012 and 19 November 2012. The author, Dr N was not required for cross examination by any party. Given the criticism of the wife’s proposals in both reports, I was surprised that the wife did not seek to cross examine the author. The contents of those two reports goes into evidence unchallenged. I will comment further on the contents of these reports in the conclusion to this judgment.
Relevant statutory legal principles
Section 60B(1) of the Family Law Act 1975 (“the Act”) sets out the objects of Part VII of the Act, to ensure the best interests of the child is met by:
a)ensuring that child has the benefit of both their parents having a meaningful involvement in their life, to the maximum extent consistent with the best interests of the child; and
b)protecting the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that the child receives adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their child.
Section 60B(2) of the Act sets out the principles underlying those objects They are that (except when it is or would be contrary to a child’s best interests):
a)The child has 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;
b)the child has a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their child;
d)parents should agree about the future parenting of their child; and
e)the child has a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act directs that when deciding to make a particular parenting order the best interests of the child are the paramount consideration. Section 60CC(2) and (3) of the Act set out the primary and additional considerations for the court in determining what is in the child’s best interests.
In making any parenting order, the court must to the extent it is possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence.
If the court is satisfied that the parents are to have, pursuant to s.61DA of the Act, equal shared parental responsibility, then subject to s.65DAA(6) of the Act, it must turn to ss.65DAA(1) and (5) of the Act to consider equal time, and if that is not appropriate in all the circumstances then ss. 65DAA(2), (3), (4) and (5) of the Act requires the consideration of substantial and significant time.
In this case the husband proposed, and the wife agreed in the witness box that there should be an order for equal shared parental responsibility. As indicated above I must now turn to s.65DAA(1) of the Act to consider whether it would be in the children’s best interests and also reasonably practicable for them to spend equal time with their parents.
The husband’s case at the time of the preparation of the first report, was one of wanting week about equal shared care with the wife. The author of the report in preparing that document fully considered and addressed this issue.
The Family Report writer in that report dated 17 January 2012 at page 13 said as follows:
“It is also my assessment that X and Y have very good relationships with both parents, but that they have a (slightly) stronger attachment to their mother. It also seemed significant that Mr Redwin acknowledges that Y may struggle with time away from her mother. I do not consider that shared equal time care is appropriate at this time…”
I accept and adopt that recommendation also noting the views of the children on this topic. In the same report at page 9, X said that she preferred living most of the time with her mother but she did want to see more of her father, and at page 10 Y was reported as saying she wanted the then current status quo to remain and that she likes seeing her father very much but she also missed her mother when with her father. It was clear that she was not in favour of a week about arrangement.
After the release of this report the husband filed a Further Amended Application which changed his position from week about to having a significant and substantial time with the children. It is to his credit that he took on board the advice and recommendations in the Family Reports.
Section 60CC factors
The two primary considerations are set out in s.60CC(2) of the Act. The first primary consideration is:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
In the case of McCall & Clark (2009) FLC 93-405 the Full Court considered this sub-section. At paragraph 109 the Court said:
“The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship””.
It then went on to discuss in paragraph 115 the decision of Mazorski & Albright (2007) 37 Fam LR 518, where the Honourable Justice Brown said the following:
“…I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one.”
At paragraph 170, the Full Court said as follows:
“Bennett J discussed the terminology in G and C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child [sic].”
It then went on to say that there are three possible interpretations of section 60CC(2)(a) and concluded that it preferred the interpretation that was called the ‘prospective approach’ but also said that depending on the factual circumstances, the ‘present relationship approach’ may be relevant.
The ‘present relationship approach’ was defined by the Court in paragraph 118 as follows:
“(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”).
The prospective approach, which I will apply in this case, was set out at paragraph 118 as follows:
“(c) the third interpretation is that the court should consider and weight the evidence at the date of the hearing and determine how, if it is in the child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).”
Currently X and Y have meaningful relationships with both parents and this will be maintained in the current Orders. In my view, a meaningful relationship is not simply determined by the hours or days spent by a child with a parent.
The second primary consideration is:
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
A recent amendment s.60CC(2A) of the Act provides that the court is to give greater weight to s.60CC(2)(b). However (and thankfully) in this case family violence is not an issue at all. Neither parent has made allegations of abuse, neglect or violence.
Additional considerations are:
To the extent that they are relevant, the additional considerations in sub-section 60CC(3) of the Act are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.
The views of both children in this case are important to any outcome given their age and the assessment of the views by Dr N in her reports. In relation to X the first report dated 17 January 2012 at page 9 says as follows:
“X said that she preferred living most of the time with her mother but was not sure how to tell her father this after she had told him otherwise. She said that she wanted to see more of her father too but could not envisage how this could happen with state of her parents’ relationship. It seemed significant that X also suggested that spending more time with her father would upset her mother and she did not want to do that.
There were some other indications that X feels some responsibility for her mother’s emotional happiness too in her discussions of moving away from (omitted). X explained that she really did not want to move but she felt that her mother would be happier living somewhere else. X said with an obvious show of bravado that she thought moving somewhere else would be exciting. My impressions of X were that she was prepared to sacrifice some of her own happiness for her mother.”
In the second report dated 19 November 2012 at pages 7 and 8 the author says as follows:
“X told me sadly “mum wants to move to Sydney I don’t really want to move. I have my friends. Everything is here. I don’t want to move away from my dad and my grandma and my cousin.””
And further on she says:
“When asked to rate what would be best for her, X easily related that having both parents in (omitted) was best for her. She said the next option best option would be to live with her father if her mother moved to Sydney and that her least preferred option would be to move to Sydney with her mother.”
In relation to Y, the first Family Report dated 17 January 2012 at page 10 related the following, “…Y said with concern that she wanted “it to stay the same”. She explained that she liked seeing her father very much but related that, even now, she misses her mother very much and likes to contact her when she is with her father for reassurance...”
In the second report dated 19 November 2012 at page 9, Y made the following comments:
“Y was able to talk about the potential move in a balanced way but showed her preferences in her desperate descriptions of things she would miss. She told me that she like making new friends and that moving to a new school could be fun, but said “I wouldn’t get to see dad much. I’d miss my friends, the beach and my grandma’s house” in sad desperate tones.
At the same time the thought of her mother moving to Sydney without her was clearly painful for Y. She told me that if she had to choose between staying with her father while the mother moved to Sydney and moving to Sydney with her mother, she would prefer to go with her mother.”
(b) the nature of the relationship of the child with:
(i) each of the child's parents;
Each of the children have a close and loving relationship with each of the parents and it is in the bests interests of X and Y that this continues. This is supported by Dr N in both Family Reports.
(ii) other persons (including any grandparent or other relative of the child);
The evidence suggests that the children have a close relationship with their respective grandmothers and other relatives. Other important people in their lives currently are their half sister Z born (omitted) this year and their step mother, Ms C who sets out, inter alia, in her unchallenged affidavit sworn and filed 5 August 2013 the following:
“4. Since Mr Redwin and I began living together the relationship between the children and I developed into what I now regard as a close and loving relationship.
5. The children and I share common interests such as a love of fashion, cooking, music and the beach. Living in (omitted) allows the children and I to go to the beach on a regular basis especially during the summer months.
6. Aside from the normal daily activities we share together such as eating together, watch television and movies together and doing household jobs together, the children and I also:
(a) Shop together;
(b) Attend their school functions together;
(c) Regularly cook together;
(d) Walk our dogs; and
(e) Play tennis.”
The step mother was not required for cross examination and therefore the contents of her affidavit remain unchallenged.
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
This was not a major issue in this dispute. Both parents have taken most, if not all opportunities to be involved in and play a significant role in their children’s lives, although the wife was sometimes critical of the husband on this topic.
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
There is little evidence of this but it appears to me that both parents maintain the children to the extent of their duty and capacity.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
This is a very important issue in this matter. In my view the submission of the Independent Children’s Lawyer, Mr Wayne Dunstan, on this topic is very relevant:
“Dr N has indicated the mother:
“does not fully appreciate the possible effects on the children of relocation and that some of their wonderful confidence and sense of security stems from them being embedded in their community, being surrounded by all that is known and familiar and, most importantly, that they are able to spend time with their father (and other family members) on a regular and consistent basis.”
Dr N has further indicated:
“I could not support Ms Redwin relocating away from (omitted) as I consider that the effects on the children’s stability and confidence are likely to be catastrophic.”
If the children were to relocate, they would not have the opportunity to spend regular time and develop a close relationship with Z.”
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
Should the wife relocate with the two girls, I was not convinced she could regularly contribute to the expense of them spending regular and frequent time with their father. She gave evidence of the cost of airfares travelling with Jetstar from the Avalon airport near (omitted) and I accept that this can be relatively cheap. However, her own evidence of her financial circumstances indicated that she was currently suffering financial stress. She said she was relying on financial assistance from her father to be able service the mortgage over the (omitted) home. She also said her current employers had cut back her employment from three days a week to one day a week. She relies significantly on benefits from Centrelink to make ends meet each week. I also refer to paragraph 66 below in relation to this topic.
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
Her evidence at one stage was that if she relocated to Sydney she would not immediately sell the home in (omitted) but initially rent it out to meet the mortgage payments. She could not establish she would have guaranteed employment in Sydney that would provide her with an adequate income to support herself, the children and meet other expenses including rental of a home related to their care. Her plans were not based on well researched fact but more on hope of what could occur if she was to relocate. There is no substance in her proposals about her financial affairs once she arrives at Sydney.
In the parties and children’s current environment this was not a significant issue, subject to the wife obtaining adequate employment. Should the wife relocate to Sydney there is a real question mark about her ability to provide for the needs of the children given her proposals were not soundly based.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
There was no fact in issue in this dispute that touched in a significant way on any of these matters.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
Both parents were generally child focused but the wife appeared to have some difficulties. In the second Family Report Dr N at page 11 assessed the wife as being, “…a vulnerable individual who has some difficulty with anxiety, a poor sense of self, and dependent personality traits...” In my view she underestimated or undervalued the role of the husband in the children’s lives, for example in the first report at page 7 it says as follows:
“When asked about the possible effects of a relocation on the children’s relationship with their father, Ms Redwin took an egocentric stance saying that Mr Redwin is a “good dad” but that her “world has moved [on]””
The husband also had some issues, in that I formed the view that he under appreciated the role of the primary care giver, and sometimes did say or do things to the children that had the effect of indirectly or directly undermining her role as the mother, in terms of setting boundaries and providing the children with proper and appropriate discipline.
(j) any family violence involving the child or a member of the child's family;
Not relevant.
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
Not relevant.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
In my view the order that would be least likely to lead to further proceedings is one that not only enhances the current environment for the children but also provides some flexibility for the mother to obtain employment either in (omitted) or Melbourne so that she has an opportunity to explore her employability skills whilst at the same time providing the children with stability by attending school and living near or in the (omitted) or (omitted) area, and seeing their father often and regularly at (omitted).
(m) any other fact or circumstance that the court thinks is relevant.
In my view, the Family Reports are clear in their assessment and recommendations that whilst the wife and children should not relocate to Sydney, the children otherwise should remain in the primary care of the wife.
In the main this appears to arise from the wife’s long standing role as primary carer and the need for Y to be in her care. See for example, the second report at page 9 where the author notes, “While she is developing well, it was again clear from Y’s presentation that she did not think she could cope well with being away from her mother for too long.”
The applicant husband did not seriously pursue the option that the children should reside with him should the wife not relocate to Sydney and live more than thirty kilometres from (omitted). For example, the report writer was not cross examined by his Counsel on this issue at all.
The husband appeared to be more concerned about imposing a limit on the wife’s movements with the children. When giving evidence in chief the husband moved from his position in his application of wanting an order that provided a restraint on the wife moving to any other location outside an area of thirty kilometres from the (omitted) Post Office, to wanting an order restraining the wife from living more than fifty kilometres from (omitted), based on certain conditions including that the children’s school of choice should not be changed.
The authorities
In Caravaggio the learned Judge said as follows:
“36. Since the 2006 amendments to Part VII there have been a number of cases in which the Full Court of the Family Court has discussed the approach to relocation cases. In particular, Taylor & Barker (2007) FLC 93-345, Sealey & Archer [2008] FamCAFC 142, Starr & Duggan [2009] FamCAFC 115, McCall & Clark (2009) FLC 93-405 and Hepburn & Noble (2010) FLC 93-438.
37. In Taylor & Barker their Honours in the majority (Bryant CJ and Finn J) referred to Goode & Goode where the Full Court set out the pathway to be followed in parenting cases. The majority specifically adopted the now oft quoted par 65. In the context of the appellant’s assertion that the trial Judge had erred in dealing with the issue of relocation and the reasons for it as a separate and determinative issue instead of following the course referred to in Goode & Goode, the majority in Taylor & Barker held there was no substance to this ground of appeal. They held at par 60:
In our view, his Honour dealt with the relocation proposed in the context of his consideration of s 60CC and s 65DAA, at least in so far as it was possible to do so. It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, as far as possible, in the context of the making of the necessary findings in relation to the relevant s 60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s 65DAA.
38. In McCall & Clark the Full Court discussed and incorporated the matters of principle from Sealey & Archer. Relevantly their Honours said:
60. In Sealey & Archer [2008] FamCAFC 142 the Full Court (Bryant CJ, Finn and Thackray JJ) said at paragraph 63:
While it has been recognised that the Act does not provide any express direction or guidance as to the overall order in which the provisions of Part VII must be applied (Taylor & Barker (2007) FLC 93-345 at [62]), the legislation does require in s 61DA that when a court makes a parenting order, it must apply the presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility for the child (unless there are circumstances in which the presumption does not apply, or in which it would be inappropriate to apply it, or it is rebutted), and it further requires in s 65DAA that if there is to be equal shared parental responsibility for the child, consideration must be given to the child spending equal time (or if not, substantial and significant time) with each parent.
39. And at pars 66 and 67:
Again as was recognised in Taylor & Barker (supra, see in particular paragraphs 58 and 77-83), in a case which involves a proposal that there be a significant change in the place where a child lives, it is appropriate for a court in its application of s 65DAA, and particularly s 65DAA(5), to canvass the advantages and disadvantages of a proposal “to re-locate” the child. We would also expect that the court would have addressed the matters arising under s 65DAA(5) in the context of its consideration of relevant s 60CC matters.
In making the latter observation, we should say that we do not see anything said in Taylor & Barker as suggesting that a trial judge would ignore the relocation proposal when making the necessary s 60CC findings…
No doubt frequently, as in the instant case, the non relocating parent’s proposal will be for an equal shared care arrangement, facilitating the consideration of matters under s 65DAA as one of the proposals, and not as an abstract exercise.
In our view, it is inevitable, given the provisions of the legislation, that the exercise to be undertaken will, on its face, involve dual consideration of some matters. For example, consideration of matters under s 60CC(3)(d) (the likely effect of any change in the child’s circumstances) and matters in s 65DAA(5)(a) and (b) and s 60CC(3)(e) (practical difficulty and expense of a child spending time with a parent) and s 65DAA(5)(a), (b) and (c) involve examination of similar criteria.
40. Thus relocation cases are to be approached as follows:
· they are parenting cases to be determined in accordance with Part VII;
· the child’s best interests is the paramount but not the only consideration;
· a relocation proposal should be considered and evaluated in the context of making necessary findings in relation to the relevant s 60CC matters and, where relevant, s 65DAA;
· in its application of s 65DAA, and particularly s 65DAA(5), it is appropriate to canvass the advantages and disadvantages of a proposal to re-locate the child.
41. It is still the case that neither party bears an onus to establish that a proposed change or the continuation of an existing arrangement will best promote the best interests of a child. AMS v AIF (1999) 199 CLR 160. Notwithstanding a parent’s right of freedom of movement, this must defer to the child’s best interests. (U & U (2002) FLC 93-112). As with any parenting case subject to affording the parties procedural fairness, the Court is not restricted to their proposals.
42. More recently, the High Court published MRR v GR (2010) 240 CLR 461. This relocation case related to a parent’s proposal to leave Mt Isa with the parties’ child and live permanently in Sydney. The child’s other parent proposed to remain in Mt Isa and applied for equal time orders. At par 9 of their reasons the High Court said:
Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.
43. At par 13 the High Court said:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist[12]. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
44. And at par 15 the High Court explained:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”
Conclusion
It should be noted that the wife’s Sydney proposals were so uncertain and non-concrete, that an assessment of them pursuant to s.65DAA of the Act by canvassing the advantages and disadvantages under one separate and distinct heading was not possible. This process in effect was carried out when analysing the wife’s evidence and the relevant statutory legal principles considered above.
It should also be further noted that the proposed orders providing the children with time with their father substantially mirrors the orders sought by him, in the alternative, and is supported in the last paragraph of page 11 of the second Family Report. In my view, this did not require a step by step analysis pursuant to s.65DAA of the Act, particularly given this case was heard in the Relocation List program which requires orders to be handed down in or around fourteen days after trial and judgment to be delivered around twenty-eight days after trial. Far more quickly than is the case with other matters.
As I have said earlier in this judgment, the two reports of Dr N were not challenged and therefore go into evidence. They are a very important part of the jigsaw that makes up this case given they provide the court with useful assessments of both parties and the children and in particular, helpful recommendations.
In the first report dated 17 January 2012 it says at page 9:
“X spoke eagerly and spontaneously about her enjoyment of each parent and her life with them. She described her life with her mother as more comfortable and feeling more like her home, but also gave animated descriptions of her time with [her] father that suggested a rich and warm family life.”
At the same page of that report X also said that she preferred living most of the time with her mother but wanted to see more of her father.
At page 10 of the first report Y said the following:
“…her father’s proposal worried her and the thought of not seeing her mother as much as she currently did made her want to cry. Y said with concern that she wanted “it to stay the same””.
Under the heading of Summary and Recommendations in the first report at page 14 the author said the following:
“I consider that she [the mother] does not fully appreciate the possible effects on the children of relocation and that some of their wonderful confidence and sense of security stems from them being embedded in their community, being surrounded by all that is known and familiar and, most importantly, that they are able to spend time with their father (and other family members) on a regular and consistent basis.
I would caution Ms Redwin that any decision to relocate should ensure that she considers all the factors and implications from her and her children’s stand point. However on the information available to me, I could not support Ms Redwin relocating away from (omitted) as I consider that the effects on the children’s stability and confidence are likely to be catastrophic.”
This last quote was put to Ms Redwin by the Independent Children’s Lawyer and she replied that in her view catastrophic “…way out of control…” she went on to say:
“I would never take the children to a place where I didn’t think I could financially support them, give them something they’re used to…give them loving and caring and keep their relationship with their dad. That is not what I would intend to do and I have not done that as yet.”
The difficulty with these comments was that the wife did not cross examine the author of the reports nor present any evidence of any firm and clear proposals, that gave the court any confidence about her living successfully in Sydney with the children.
In the second report dated 19 November 2012, Dr N at page 7 reported X’s comments as being as follows:
“X told me sadly “mum wants to move to Sydney I don’t really want to move. I have my friends. Everything is here. I don’t want to move away from my dad and my grandma and my cousin.””
She also went on to say, “…that moving away from her father, her family and friends, school and pets would be very hard for her.”
When she was asked about the parenting arrangements remaining as they were X was reported to say that everyone is “…pretty happy now…”
In relation to Y in the same report at page 8, the author says:
“Y showed through her behaviour (sad expression, downcast eyes) how thoughts of moving troubled her. She told me that even her mother’s words that, if they move to Sydney, “we can still do everything and get to see dad a lot” did not reassure her.”
At page 9 of the report it says:
“Y was able to talk about the potential move in a balanced way but showed her preferences in her desperate descriptions of the things she would miss. She told me that she liked making new friends and that moving to a new school could be fun, but said “I wouldn’t get to see dad much. I’d miss my friends, the beach and my grandma’s house” in sad desperate tones.”
In the second report under the heading of Summary and Recommendations the author says as follows:
“If Ms Redwin were to move to Sydney, I would have some concerns about her functioning and capacity to care for the children without considerable support…I consider that their confidence and sense of stability is supported through their life in (omitted). Their conversation is full of their community and strong relationships with peers and family. As I stated in my previous report, I consider that relocating away from (omitted) is likely to have deleterious effects on the children’s stability and confidence.”
…
“If Ms Redwin does not relocate, it seems possible, on Ms Redwin’s account, that her career could be pursued in Victoria. Mr Redwin’s proposal to consolidate the children’s time from Thursday to Monday each alternate week and Thursday overnight in the following week seems to have many advantages, including the potential to assist Ms Redwin in her chosen career.”
This proposal in the running was slightly varied to a Wednesday overnight in the off week as this better accommodated the wife’s needs.
In all the circumstances of this case and upon hearing and reading the evidence, it is the court’s view that it is not in the best interests at this stage that the wife should relocate with the children to Sydney. As her case was put, there were not firm, clear proposals that the court had any confidence in.
Costs
There was a claim by the husband for payment of costs reserved by his Honour Riethmuller pursuant to order 3 made 7 November 2012. This is not to be confused with the further orders made pursuant to 1 to 3 of the husband’s Application in a Case filed 2 November 2012 where there is a self-executing order in paragraph 2 regarding the costs of the Family Report. The wife clearly caused the husband to bring the Application in a Case given she would not meet the 50% of the costs of an updated report by Dr N. That updating report was very necessary.
However, the wife said her financial situation had become very difficult and she only had limited employment, but she has an income earning capacity that could have been more fully utilised.
In the circumstances, including that of the public interest, I thought it was appropriate pursuant to s.117 of the Act that she should contribute to those costs but not pay all of the claim, given her currently limited funds.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Curtain
Date: 20 September 2013
CORRECTIONS
The hearing date of 27 August 2013 has been corrected to 26 August 2013.
The date of last submission being 27 August 2013 has been corrected to 26 August 2013.
Key Legal Topics
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Family Law
Legal Concepts
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Costs
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